Nickens v. Mount Vernon Realty Grp., LLC

• Decision Date: 19 October 2012
• Docket Number: No. 7,Sept. Term, 2012.,7
• Parties: Demetrius NICKENS v. MOUNT VERNON REALTY GROUP, LLC, et al.
• Court: Maryland Court of Appeals

429 Md. 53

54 A.3d 742

Demetrius NICKENS

v.MOUNT VERNON REALTY GROUP, LLC, et al.

No. 7, Sept. Term, 2012.

Court of Appeals of Maryland.

Oct. 19, 2012.

Thomas Davies, Murnaghan Appellate Advocacy Fellow (C. Matthew Hill, Public Justice Center, Baltimore, MD; Kim Parker of Law Office of Kim Parker, P.A., Baltimore, MD), on brief, for petitioner.

Michele Zahner Blumenfeld (Robert L. Ferguson, Jr. of Ferguson, Schetelich & Ballew, P.A., Baltimore, MD), on brief for respondents.

Russell J. Pope (Treanor, Pope & Hughes, P.A., Towson, MD), on brief, for respondents.

Heather L. Gomes, Esq., Hong Park, Esq., Legal Aid Bureau, Inc., Riverdale, MD, for amici curiae brief of Legal Aid Bureau, Inc., Civil Justice, Inc., St. Ambrose Housing Aid Center, Inc. and National Law Center on Homelessness & Poverty in support of petitioner.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, BARBERA, and McDONALD, JJ.

HARRELL, J.

I. FACTS AND PROCEDURAL HISTORY

We consider in this case primarily whether Respondents ¹ committed an impermissible forcible entry when they enforced (through lock-out) the foreclosure purchaser's lawful possessory interest in a dwelling located at 3022 Kentucky Avenue in Baltimore by the means of the common law remedy of self-help,² as opposed to receiving first the issuance of a statutory writ of possession from the Circuit Court for Baltimore City. Demetrius Nickens, Petitioner, commenced residence with his parents in the dwelling on the realty previous to the institution of the foreclosure proceeding against his parents. Nickens's parents owned title to and were the mortgagors as to the subject real property. Between the time his parents moved out in August 2006 and until sometime in 2007, Nickens, who remained an occupant of the dwelling after his parents moved elsewhere, paid monthly to his parents in rent an amount equivalent to their then monthly mortgage payments. The amount of the monthly mortgage payment apparently increased significantly in September 2007. Nickens's parents were unable to meet the increased mortgage payment amount. Apparently, Nickens stopped making any payments to his parents in September 2007. He continued to live alone in the house, however.

On 11 January 2008, the law firm of Buonassissi, Henning, & Lash, P.C. (“BHL”), as agent for the American Servicing Company (“ASC”), the mortgage servicer, initiated a foreclosure action against Nickens's parents, the mortgagors, in the Circuit Court for Baltimore City. Nickens notified BHL that he resided in the property when he entered an appearance in the foreclosure proceeding. The property was sold at a foreclosure sale, which was ratified by the Circuit Court on 30 January 2009. The mortgagee, Deutsche Bank National Trust Company (“Deutsche Bank”), was the successful foreclosure sale purchaser and was awarded a judgment of possession on 14 May 2009.

At some time thereafter, BHL retained the property management services of Mount Vernon Realty Group, LLC (“MVRG”), owned by James E. Parks, III, and which employs Parks' mother, Irene Parks. Also after the 14 May 2009 award of the judgment of possession, the Parkses and MVRG notified Nickens that they intended to enter the home and remove Nickens's belongings, unless he vacated the house. On 6 September 2009, having learned apparently from a letter to them from Nickens relating that he would be out of town on that day,³ the Parkses and MVRG entered the unoccupied home, changed the locks, placed a “no trespassing” sign on the front door, and disposed of Nickens's personal possessions before he returned.^4,5 Nickens estimated that his belongings, which included allegedly new appliances, computers, clothing, personal and financial papers, furniture, and other personal items, were worth $75,000.

Nickens filed a complaint against Respondents in the Circuit Court on 19 April 2010. In an amended complaint, he asserted ten counts relative to Respondents' lock-out and disposition of his personal property: (1) violation of the Fair Debt Collection Practices Act (“FDCPA”); (2) violation of the Maryland Consumer Debt Collection Practices Act; (3) unfair and deceptive trade practices; (4) trespass; (5) conversion; (6) respondeat superior; (7) emotional distress; (8) wrongful eviction; (9) intrusion; and, (10) civil conspiracy. Respondent, in responsive motions to dismiss, asserted that Nickens did not set forth in his complaint any claim upon which relief could be granted. After a hearing, the court granted Respondents' motions to dismiss, with prejudice.

On appeal, Nickens presented to the Court of Special Appeals two central questions relevant to our review here: (1) whether the Circuit Court erred in dismissing Nickens's forcible entry claim,⁶ and (2) whether the Circuit Court erred in dismissing Nickens's conversion claim.⁷ The intermediate appellate court affirmed, in an unreported opinion, the judgment entered by the Circuit Court. The appellate court held that Respondents did not violate Maryland law by using self-help to repossess the real property. The court concluded, as to Nickens's conversion count, that Respondents' interference with Nickens's right to his belongings was not an act of conversion because Nickens abandoned effectively any interest in his personal property by leaving it in a house in which he lacked any lawful possessory interest.

We granted Nickens's petition for a writ of certiorari, Nickens v. Mount Vernon Realty Group, LLC, 425 Md. 396, 41 A.3d 570 (2012), to consider two questions:

1. Did the Court of Special Appeals err in holding that the common law right of peaceable self-help permits a foreclosurepurchaser to surreptitiously enter a residential property and change the locks while the resident is out?

2. Did the Court of Special Appeals err in dismissing plaintiff's conversion claim, holding that plaintiff had abandoned all personal property in the residence, despite the complete absence of evidence that he intended to abandon it?

We shall affirm in part and reverse in part the judgment of the Court of Special Appeals. We hold, first, that the long-recognized remedy of peaceable self-help allows a property owner to use reasonable means to repossess his, her, or its property from an unlawful possessor of that real property. Under the well-pleaded facts and reasonable inferences, even viewed in a light favorable to Nickens in this case, Respondents, as agents of the successful foreclosure purchaser, employed the peaceable self-help remedy reasonably when MVRG and the Parkses entered the residential property and changed the locks for the purpose of repossessing the property. Second, because no discovery occurred as to how Respondents, in the absence of Nickens and in the course of exercising the self-help remedy, disposed of Nickens's personal belongings, it was premature (at the least) to enter judgment for Respondents on Nickens's otherwise well-pleaded conversion claim. There being no adequate basis from which to conclude that Nickens abandoned his personalty or that Respondents acted reasonably in disposing of his belongings, we reverse the judgment dismissing the conversion count and direct remand for further proceedings.

II. STANDARD OF REVIEW

Ordinarily, when a trial court purports to grant a motion to dismiss, we review that action based solely on the allegations contained within the four corners of the complaint, Converge Servs. Group, LLC v. Curran, 383 Md. 462, 475, 860 A.2d 871, 879 (2004); Green v. H & R Block, 355 Md. 488, 501, 735 A.2d 1039, 1046 (1999); however, “pursuant to Maryland Rule 2–322(c), when a trial judge is presented with factual allegations beyond those contained in the complaint to support or oppose a motion to dismiss and the trial judge does not exclude such matters, then the motion shall be treated as one for summary judgment.” Okwa v. Harper, 360 Md. 161, 177, 757 A.2d 118, 127 (2000). Throughout the Circuit Court's hearing on Respondents' motions to dismiss, Nickens and Respondents referred to asserted facts not included in the amended complaint, including an affidavit of Terry Lee Nickens, one of the former owners of the property; a copy of the deed of trust for the property; and, copies of email communications between the parties. The motions judge did not exclude expressly on the record that the extrinsic factual averments were not considered. Thus, we regard the trial court's action on Respondents' motions to dismiss as the grant of motions for summary judgment.

“[T]he proper standard for reviewing the granting of a summary judgment motion should be whether the trial court was legally correct.” Heat & Power Corp. v. Air Products & Chemicals, Inc., 320 Md. 584, 592, 578 A.2d 1202, 1206 (1990); Honaker v. W.C. & A.N. Miller Dev. Co., 278 Md. 453, 458 n.3, 365 A.2d 287, 290 n.3 (1976); Lynx, Inc. v. Ordnance Products, Inc., 273 Md. 1, 8, 327 A.2d 502, 509 (1974).

Upon review of a summary judgment motion, “ ‘we are first concerned with whether a genuine dispute of material fact exists' and then whether the movant is entitled to summary judgment as a matter of law.” Grimes v. Kennedy Krieger Inst., Inc., 366 Md. 29, 71, 782 A.2d 807, 833 (2001) (quoting Williams v. Mayor & City Council of Baltimore, 359 Md. 101, 113, 753 A.2d 41, 47 (2000)).

III. DISCUSSION

1. Respondents' Use of the Common Law Remedy of Peaceable Self–Help

Nickens does not dispute that Respondents had the legal right to possess the property at issue when MVRG and the Parkses locked him out of the house. The parties disagree as to whether the manner by which Respondents repossessed the property (and disposed of Nickens's belongings) was lawful. Respondents maintain that they employed lawfully the common law remedy of self-help. Nickens contends that a surreptitious lock-out is not a permitted form of peaceable self-help, but rather a forcible entry, and that the procedure made available in Balt. City Code, Art. 13, § 8B–2 (2008) ⁸ was the...