United States District Court, D. Connecticut
ABU HASHEM W.Q. MALICK, AND SHUJATT Q. MALICK, Plaintiffs,
J.P. MORGAN CHASE BANK, N.A. AND SAFEGUARD PROPERTIES, LLC, Defendants.
MEMORANDUM OF DECISION FOLLOWING BENCH TRIAL
Hon. Vanessa L. Bryant United States District Judge
Plaintiffs, Abu Hashem W.Q. Malick (“A. Malick”) and Shujatt Q. Malick (“S. Malick”), bring federal constitutional and state law claims against Defendants, J.P. Morgan Chase Bank, N.A. (“JPMC”) and Safeguard Properties, LLC (“Safeguard”). The Court conducted a bench trial, at which it finds the following facts were established by at least a clear preponderance of the evidence. See Fed. R. Civ. P. 52(a).
I. Findings of Fact
Plaintiff A. Malick is the owner and current resident of the premises located at 4405 Black Rock Turnpike, Fairfield, CT 06824-7832 (hereinafter “the Premises”). The Premises are located near the Merritt Parkway, a major route through the state of Connecticut, and on Route 59, a major route that runs through Easton, Connecticut. They are also within walking distance, approximately four or five houses away, from a motel.
On or about June 25, 2007, A. Malick entered into a mortgage agreement with Washington Mutual Savings Bank (the “Mortgage”). The Mortgage contained two provisions relevant to this litigation. The first provision stated:
Preservation, Maintenance and Protection of the Property; Inspections. Borrower shall not destroy, damage or impair the Property, allow the Property to deteriorate or commit waste on the Property. Whether or not Borrower is residing in the Property, Borrower shall maintain the Property in order to prevent the Property from deteriorating or decreasing in value due to its condition. Unless it is determined pursuant to Section 5 that repair or restoration is not economically feasible, Borrower shall promptly repair the Property if damaged to avoid further deterioration or damage . . . . Lender or its agent may make reasonable entries upon and inspections of the Property. If it has reasonable cause, Lender may inspect the interior of the improvements on the Property. Lender shall give Borrower notice at the time of or prior to such an interior inspection specifying such reasonable cause.
The second provided:
Protection of Lender's Interest in the Property and Rights Under this Security Instrument. If (a) Borrower fails to perform the covenants and agreements contained in this Security Instrument . . . or (c) Borrower has abandoned the Property, then Lender may do and pay for whatever is reasonable or appropriate to protect Lender's interest in the Property and rights under the Security Instrument, including protecting and/or assessing the value of the Property, and securing and/or repairing the Property . . . . Securing the Property includes, but is not limited to, entering the Property to make repairs, change locks, replace or board up doors and windows . . . and have utilities turned on or off. Although Lender may take action under this Section 9, Lender does not have to do so and is not under any duty or obligation to do so. It is agreed that Lender incurs no liability for not taking any or all actions authorized under this Section 9.
[Pls.’ Trial Ex. 8 at ¶¶ 7, 9].
A. Malick did not make any mortgage payments after August 2008. In November 2008, A. Malick began serving a term of incarceration, which ran through May 25, 2012. After months of nonpayment, in early 2009, JPMC commenced foreclosure proceedings against the Premises.
The Premises were unoccupied during A. Malick’s approximately three-and-a-half year term of incarceration. A. Malick asked his brother, S. Malick, to check on the Premises. S. Malick believed the Premises were haunted, and was reluctant to enter the house. He occasionally drove by and conducted a curbside examination of the house. He allowed the mail to accumulate and only collected it sporadically. Neither of the Malicks paid the utility bills, thus, within a few months of A. Malick’s incarceration, the house was without heat or electricity, and remained in this state until he was released. No yard maintenance was performed for months, causing the grass to grow at least a foot high. Finally, during the first winter following A. Malick’s incarceration (2009), the home was never winterized. As a result, a pipe burst, causing water to seep through the interior of the home, damaging the sheet rock and rendering the Premises uninhabitable. In March 2011, S. Malick reported the damage to a Fairfield police officer, but he did not repair the damage or commence regular inspections or maintenance of the Premises.
After observing the physical deterioration of the home, Defendant JPMC hired LPS Field Services, LLC (“LPS”), now known as ServiceLink Field Services, LLC, to determine whether the Premises were occupied or whether they had been abandoned. LPS employees monitored the occupancy status of the Premises from July 2009 through November 2010. By the end of November 2010, LPS determined that the Premises had been abandoned. After learning this, Defendant JPMC instructed LPS to inspect the interior and secure the Premises. Janice Seymour, a property preservation supervisor for Defendant JPMC, testified that eight days before LPS entered the Premises, it posted a notice on the exterior, informing Plaintiffs of Defendant JPMC’s intent to inspect and secure them. Neither S. Malick nor A. Malick responded to this notice, or otherwise informed JPMC or LPS that the Premises were not abandoned.
As a result, in December 2010, LPS changed the locks on the Premises and began its internal inspections. From December 2010 through June 2012, LPS inspected the Premises at least once (and often multiple times) every month, taking extensive photos of the interior and exterior, and preparing detailed reports regarding the presence of occupants and personal items, whether the Premises were adequately secured upon arrival, the condition of the exterior and interior of the home, including the presence of appliances and damage to rooms, floors, and plumbing, whether or not the home was receiving utilities, and maintenance needs, such as winterizing, debris removal, changing of the locks, replacement of glass, and lawn maintenance. See, e.g., [Pls.’ Trial Ex. 7 at SLFS000145-148, SLFS000258-262, SLFS000398-400; Dkt. #58-3, Ex. C to Def. JPMC’s Rule 56(a)(1) Statement at SP000068-75; Dkt. #58-5, Ex. E to Def. JPMC’s Rule 56(a)(1) Statement at SLFS000398-400; Dkt. #59, Exs. A-G to Pls.’ Rule 56(A)(2) as to JPMC’s Mot. at SLFS000133-36, SLFS000141-42, SLFS000145-56, SLFS000159-60, SLFS000175, SLFS000177, SLFS000233-55, SLFS000321-24, SLFS 326-29, SLFS000464-65, SLFS000468]. LPS hired contractors to perform maintenance tasks, such as winterizing the home, changing the locks, and lawn care. See [Dkt. #59, Exs. A-D to Pls.’ Rule 56(A)(2) as to JPMC’s Mot. at SLFS000233-34, SLFS000624-29, SLFS000630, SLFS000632; Dkt. #58-3, Ex. C to Def. JPMC’s Rule 56(a)(1) Statement at SP000068-75].
On March 25, 2011, upon observing two broken windows, that furniture had been moved, and, that the locks on the front door had been changed, S. Malick called the Fairfield police a second time. [Pls.’ Trial Ex. 3 at 1]. S. Malick also saw a sign posted on the front of the house. The sign stated: “THIS PROPERTY IS MANAGED BY CHASE, ” and provided telephone numbers for both JPMC and “LPS Field Services” in the event “maintenance is needed” or “IN CASE OF EMERGENCY.” [Pls.’ Trial Ex. 4 at 1]. During their inspection, the Fairfield police also noticed this sign, called the phone number listed on it, and confirmed that Chase Bank, through LPS, was managing the Premises. [Pls.’ Trial Ex. 3 at 1]. Before leaving the house that day, S. Malick changed the locks on the Premises, but he did not repair the broken windows or do anything else to secure them or make them appear occupied.
With the home under S. Malick’s locks, on April 9, 2011, the Fairfield Police returned, after receiving a call from A. Malick’s neighbor. The Police found the house unsecured in multiple ways, in deplorable condition, and likely to have been frequented by an unknown person or persons for short stays. See [Dkt. #67, Mem. of Decision Granting and Denying Defs.’ Mots. for Summ. J. at 10-11 (citing record evidence)]. On or around April 20, 2011, LPS conducted an interior and exterior inspection of the Premises. [Pls.’ Trial Ex. 7 at SLFS000145-148]. The report from this inspection also noted that someone had been inside, and that they broke locksets, windows, and locks, and took a refrigerator, dishwasher, beds, and dressers. [Id. at SLFS000148]. After this visit, LPS replaced the locks S. Malick had put on the home.
On May 15, 2011, LPS inspectors returned to the Premises. See [Dkt. #59-1, Ex. E to Pls.’ Rule 56(a)(2) Statement as to JPMC’s Mot. at SLFS000252-55, SLFS 000464-65]. The photos taken during this visit display extensive damage, including exposed wiring and plumbing and large amounts of debris strewn about the house. [Id. at SLFS000253-54]. However, some appliances and fixtures, including an oven and sink in the kitchen, and a toilet and sink in a bathroom, are visible. [Id. at ...