CandyMan.

What we find at the properties is typically a small percentage of what the former homeowners take with them and it could be because they didn't have room in their rental truck for another box or bag.

Or maybe they ran out of time before the sheriff came to evict them?

Or perhaps they actually felt relieved to be rid of their excess, reminders that they spent too much and lost their home because of it?

It's so hard to say why people do what they do or leave behind things that others could use.

We've done a couple of trashouts where we had the Salvation Army truck at the property instead of a U-Haul because there was so much that was in excellent condition.

I don't know if you've been to the landfills lately or not. But the number of trashout crews and their trucks are growing steadily, adding enormously to the waste problems. A couple of landfills have closed down in the past couple of years to due reaching their limit.

If everyone would donate instead of take it to the dump, we'd all be better off in the long run.

Linda

Probably true. However, it's not up to Linda to enforce the law. It is up to Linda to protect herself and to attempt to enforce her legal contract with Broker.

Presumably, according to her contract agreement with the Broker, Linda would have hauled the boat away and taken steps to properly dispose. What that disposition was was up to Linda. The Broker, by his actions, breached their contract agreement, pure and simple. But what is at the heart of this breach? We cannot say that, by his actions, he denied Linda potential monies from sale of the boat, because Linda's contract (probably) was only for removal of trash and debris. That Linda may benefit financially over and above her fee for trash removal by selling items is not to the point. She may or may NOT profit from sale. We cannot know. So, that issue is moot. While it may be common practice in the industry for PP outfits to sell some of the trash, probably no where in the contract was this stated.

What is (apparently by Linda's reaction to the Broker's actions) at issue is Linda's contracted (and implied legal) responsibility for such items where ownership may be at question. To my mind, the nature of such items should have been determined PRIOR to the bid/order for trashout services. I would suspect this wasn't done. However, according to her written instructions, she was to remove the boat and assume responsibility for its disposition. Linda should be able to rely that the boat is trash of no value. IF Linda sees value in this trash, that is her own perception. She relies that both the bank and her general contractor (the Broker) believe and rely that it is worthless.

Here's where it gets a little murky for me-- the reason the Broker tries to hook up the boat to his towbar. He claims that Linda was going to donate the boat to charity. So? That claim implies that there is value in the boat. At that point, we have to ask value to whom? To the bank? If so, when did it become valued? And, should the bank be able to sell it and retain the proceeds? Is it at this point we suddenly decide to see who legally owns the boat? That issue should have been ascertained PRIOR to ordering it disposed of.

So, what we are probably looking at is Broker always wanted the boat and hoped to either buy it or get it free from Linda. He told the bank it was trash of no value. Linda will not sell the boat to the broker, so broker does an endrun, and Linda follows him, involving Broker's client(s). She raises a "defense" to Broker taking the boat that it may still belong to the original owner and that SHE will make all the necessary legally-required inquiries to protect all the parties. However, is that Linda's duty to the parties? Probably not. It is an attempt at "staying" the broker's actions. Does she have a duty to protect the Broker from his own actions? No, she does not. Does she have a legal "right" to take the boat? If it's in her written instructions and in the contract agreement with Broker, yes.

So, this is a contractual dispute, and not a dispute over the legalities of personal property left behind, per se. Here's where it get tricky. IF Linda had reason to believe that she was being asked to remove and dispose of personal property, the value of which and therefore ownership of which had not been properly investigated, was that wrong? If, only when this boat is being taken from her she raises this issue, what does that mean? To my mind, she cannot attempt to enforce the laws regarding disposition of personal property with a value exceeding guidelines against the Broker without revealing that she had some knowledge that there may be certain procedures she has to go through to legally have and hold the boat that has value above guidelins. THOSE issues should have been raised by Linda prior. IF she relies on Broker's implied okay on the valuelessness of the boat, that it is trash of no or very limited value, she gives it to him.

So, to wrap this up (for me and I'm not an attorney), the burden of legalities surrounding personal property and legal disposition of such resides with the Bank. They "shift" that burden somewhat to the Broker, who must act in a legal manner on their behalf. The burden NEVER shifts to the PPC acting at the Broker's direction. Unless they had specific knowledge that the directions given by the broker may have been extra-legal.

I expect Linda will comment, and I look forward to that.

No legal advice intended or given, only a reasonable person's inquiry and opinions

Your analysis is flawed at the first step. Who wants the boat, who owns the boat and who can dispose of the boat is immaterial. If its value is over $300 it must be stored for a minimum of 18 days. The boat is not real estate, it is personal property. The bank, cannot, do an end run around state laws, no matter what they say. The bank, as the new owner will be held responsible for releasing personal property without following the law. That is the bottom line. Their written instructions provided that the boat be stored, not trashed out. In order for them to sell it or donate it, the bank would need title. Linda was going to provide title through DMV (which is where boats are registered). That's her call, her written instructions stand (and are legally proper). The fact that broker wants the boat or wants to donate to charity or obscure who was going to allegedly donate to charity (remember it was the broker who said Linda was going to donate to charity, not Linda) is beside the fact.

This is not a contractual dispute. It is illegal to do as the broker and the bank suggested. In the end, do you think that either of them would defend Linda in a lawsuit? The answer is no, especially in light of the written instructions she had in her possession. The bank would say our instruction to subcontractor were in writing. It would become a pissing match and to what end? Trouble for Linda.

The law is the law, to argue otherwise is preposterous.

Here's a link to the applicable statutes:

http://law.justia.com/california/codes/civ/1980-1991.html

CanDo

I'm afraid of what some are missing in this thread is "in California, it's the law". Once Linda was brought into the picture she became a party to this issue. She had no choice, other than the one she chose.

One of our members posted that "this just the way it is" and I'm not facing reality. I don't really care how long this type of behavior has gone on.....Where the ice gets a little thin with me is "when I'm aware of it". Then, I'm given no choice. In most cases, the issue can be resolved......when it can't, then I TAKE OUT THE TRASH.

The broker, in question, doesn't appear to be the brightest pup in the litter. I'd pay money to hear the conversation with the brokers AM, when he/she finds out that the phone conversation was being recorded.

Interesting topic. From my point of view, I'm tending to agree with most of DueDiligence's post. Linda was contracted to handle the trashout for this property. Depending on what was written into the contract, the bank/amc may have the right to change the work order at any time. There's similar language in the listings I get. If the work order was changed correctly, then the boat is no longer any concern of Linda's (regardless of what the Broker said he was going to do). Even if it was not, Linda herself said that she refused to handle any of the trashout and received a termination letter from the broker the day after. If that is the case, I don't see how Linda could have any liability with regards to the boat--she didn't remove it and was actually fired for not doing so.

As far as the broker, though, I don't think that Linda should be too concerned over him or what he did/is planning to do. From my following of this story, there was not a confirmation that the broker did keep the boat, donated it to charity, or sunk it in the nearest lake. Until he actually does something with the boat, all of the conjecture is irrelevant. If or when he does do something with the boat, it is of no concern to Linda. After all, she was officially terminated. If it is taken illegally, it becomes a civil matter. If there is a lawsuit that involves Linda because of the illegal removal of the boat, all Linda would have to do is show her termination letter with regards to that property. She would be immediately dismissed from anything.

If I were Linda, I would strongly document to the AMC/bank regarding the possible illegal disposition of the boat via email and fax. Then, I would completely remove myself from the situation (good thing you have the termination letter) and let the proper authorities handle the situation after everything has played itself out. I think getting involved further is of no benefit to her.

Sorry, but the harsh reality is a lot of this business is CYA. We have absolutely no control over what others do and no authority to enforce the rights of an individual/owner (especially if the individual violated is silent on the abuse).

Based on Linda's first post:

We got the written authorization necessary for a full trashout on a property for the debris removal, janitorial, yard cleanup, and boat removal.

I saw nothing about storage, other than, when the Broker approached Linda to buy the boat, she said “no”. Her reasoning was that SHE felt she had to impound it, make a DMV search, etc. Her implication here is that no one had done that. Not the bank, not the Broker. We still don’t know whether she knew this for a fact, or would just be taking precautions after the fact.

If Linda's agreement with the Broker was to haul the boat away to storage (for whatever reason), she is entitled to do that. But that’s not the situation. I saw nothing in her post that indicated that she was directed in writing to store the boat by the Bank or by the Broker. IF no one, not the Bank, not the Broker had made those inquiries regarding the boat, and Linda had a concern about that, Linda should not have been laying hands on it. Linda cannot and should not take on the Bank’s burden. It is out of her scope.

So, without making the extraordinary assumptions you have, (such as the value of this boat, or whether or not sufficient inquiries were made regarding ownership, which, from what I've read—I cannot know and neither can you)-- according to her agreement, she was to haul away the boat. That is her agreement with the Broker. No where in her agreement according to her posts did she have an agreement with the Broker to undertake investigations regarding either the value of the boat OR legal ownership of the boat on either the bank’s behalf or the Broker’s. IF she did so agree, then she would be within her rights to insist that her contract indicated that she was to have charge of the boat (take it away), and was responsible for making sure that all laws and guidelines for disposition were according to law. I doubt that is the case. Whatever investigations Linda makes after she has the boat in her hands protects Linda. IF reasonable investigations were not made prior to the boat being turned over to Linda for DISPOSAL, Linda protects herself by undertaking them prior to selling or converting the boat.

If the Broker modifies their agreement by taking charge of the boat, he can do that. He’s the contractor. He then shifts responsibility for proper disposal to himself. Now, the issue will be between the Broker and the Bank. Linda is out of it. If Broker wants to break the law, he may do so. If Bank wants to break the law, they may do so. Linda is NOT the law. She has a right to protect herself from legal consequences as she sees them; and by letting Broker and Bank have the boat, she is no longer liable.

While I understand what the law is, I also have to determine, before the law can be applied, who has been given control of the boat, for what reason, and under what circumstances. Those can be fine determinations depending on what party was acting under what directions, assurances, and capacity. I also don’t have any problems with laws looking like they COULD be broken. So far, none have. So getting all up in arms about The Law is just plain silly and really misses all the fine points about this interesting situation.

NTB: Well said. Well reasoned. Very sober analysis. I agree, it's a very interesting topic and it's even more interesting to dissect it!

Linda needs to disinject herself from the boat business. Actually, she has effectively done that.

My last concern, and you may share that as an observer, is that with the media situation, Linda should consider being extremely circumspect. She's well out of harm's way now, and I'd hate to see her put in the way of a of tortious interference complaint. They're simple as pie to bring and sometimes (depending on the judge and the attorney's ability to convince on finer points and the passion and conviction expressed publicly by the defendant), simple as pie to win.

Yeah, I wouldn't be talking to the media, either. They're there to screw somebody over depending upon their perspective--I think the days of unbiased journalism are over. If you're not involved, you don't have to worry about that.

The lender has control over the personal property left behind; hence the law comes into play as to how it is to be disposed of. Let me repeat that, the lender, not the broker. Then there's the matter of instructions, Linda had written instructions, she specifically stated that she gets written instructions to avoid these situations. Regardless of what happened at the job site, her written instructions were countermanded verbally by both the broker and the am. How many times does an AMC tell us that nothing is final until it is reduced to writing? As I stated previously, let's pretend that Linda did allow the broker to just take the boat. Let's say that the person who is on title wanted it back. Do you really think that the broker would 'fess up or do you think the broker would produce the written instructions and hang Linda out to dry? What about the AMC? Don't you think their legal department would say that the written instructions controlled the situation? As to the value of the boat, even an aluminun fishing boat with no motor has a value of more than $300.

All of my authorizations have come from the broker, who cuts & pastes the authorization from the AM into an e-mail for me.

So, Linda did NOT have "written" authorization from the Bank. She had a copy of what the Broker was authorized to have done, on the Bank's behalf, by the selected vendor with whom he contracted; OR she had whatever the Broker purported to have cut and pasted. He could also have cut/pasted selectively. It only serves to outline what Linda was expected to do in carrying out her obligations to the Broker.

We now can agree that Linda's instructions came from the Broker and NOT the Bank. They are HIS instructions, purportedly copied from the instructions to him from the Bank. They are NOT Linda's instructions from the Bank. She has no standing.

So we are, despite your original feelings in the opposite, back to the contract between Broker and Linda. Which is absolutely where this all resides, and the centerpiece of my original post. The true issue. Which you raise in your most recent post, thank you.

And that is, the Broker counter-manded his own instructions (the contract) to his vendor. He can do that. There is no legal bar (which you somehow brought in as bar vis CA laws governing disposal of personal property, which have no bearing on the crux of the issue-- the contract), to his countermanding or changing the nature of the agreement somehow being in violation of those laws. No matter WHAT his reasons, good/bad may be, he can do that. Linda's only possible objection or avenue is breach. IF she wanted to do that. Her avenue is NOT approaching the Bank with whom she has NO agreement or understanding.

She could have let him take the boat. She could have said, "Well, our agreement was that I take the boat and I'll need you to sign a statement that you've decided to change that and take the boat yourself." That is what reasonably could have been done. Then chain of custody is clear, and Linda is in the clear.

And yes, the Bank could say that the written instructions TO THE BROKER controlled the situation. So? He failed to act on those written instructions. However he failed to do that, either by not communicating them to his vendor or by counter-manding them, the instructions are to HIM, period. You point out that the AM counter-manded her own instructions to the Broker. She, too, can do that. Again, Linda has no standing.

It is only your opinion, then, that the boat was worth more than $300 (that has not been established in any of these posts) because, to your experience, even aluminum fishing boats are worth more. That may or may not be true. But, the value or non-value of the boat is not at issue here, as far as Linda should be concerned. What IS at issue is whether Linda could have, according to her agreement with the Broker, taken the boat OR demanded from the Bank that she be allowed to take the boat. And, the answer is no on both counts. Legally, she must take direction from the Broker, and the Bank had no agreement with her.

I'm shaking my head. The statutes govern what happens to the personal property. Again, I go back to my analogy regarding running a red light. The fact that you're not caught doing it (or photographed doing it here in Califoria) does not make it right or legal to have run the red light.

If you don't want to do a personal property eviction (which is what this is) or you find the laws cumbersome and think they can be ignored as a convenience, then I suggest you keep your E & O coverage up-to-date. This is an E & O claim waiting to happen. I don't know about you but I don't have 1st dollar defense, I do have a hefty deductible. I'm sure the judge will side with your analysis...that is until the owner shows up and wants his boat or his whatever back. As to now trying to shift this as a risk managment issue consider this, under California law, if we hold ourselves out to be something other than a real estate agent (for example we hold ourselves out to be REO specialists), the law will hold us to a higher standard. While our professed ignorance of the right and wrong way to do things may make some of us feel better, the judge won't be as understanding of our ignorance.

Y'all people are C-R-A-Z-Y. LOL.
Here's how I would have handled that situation:
Scene 1:
MadHatter is performing trash out, Broker comes in and says he'll rid the boat for me. MadHatter asks Broker to bring her a notarized letter signed by said Broker taking responsibility for the boat per instructions from the AM.
Cut to credits and start music....
Appropriate theme song thanks to the Foo Fighters...
"Done, I'm done, and I'm on to the next one......"

But then I live in a Fantasy World. Frankly sometimes I am surprised myself that I passed my R.E. exam (on the first try no less!). I just do what I'm told and CMA!!!

Oh, I forgot to add. When it came time to PAY UP ...MadHatter would slightly discount for the boat removal and add "boat not removed per attached notarized document" and attach a copy of the notarized letter.
Because the Hatter didn't get where the Hatter is by lettin people walk all over her...ya hear?
That's a win win right there. Hatter looks clueless (just doin her job) and in the end it's pretty clear where the boat went.

One thing that concerns me Linda is when you say that you get your orders from the Asset Manager through the broker by "cut and paste" e-mail. That allows too much freedom for an unethical broker, which you seem to have wanting to employ you, to alter the order from the AM.

I seem to have two situations depending on who the client is. In some situations the client will hire that work done directly, typically using a company like Safeguard, Field Assets, Cyprexx, etc. In that case my only duty is to report if the work they have done is in any way unsatisfactory. With other clients I am asked to obtain bids and let the contract once a bid has been approved. Like Jack I pay my contractors directly (and quickly) and stand the time and risk for reimbursement.

If you were in my part of the country I think I would want you as one of my contractors. I appreciate trustworthy contractors and find they appreciate a broker they know will pay them when the job is done. A broker should not expect to "benefit" from the trash out in any personal way, the expectation should be that the work was done in a professional and legal manner.

This is your fall-back position? When you've failed to make your case or been able to defend what you've posted, you attack me and attempt to mischaracterize the nature and intent of my posts. You wrongfully relate to this forum that I either said things I never said or implied things I never implied.

Apparently all this was about YOU. You've flipped out and put yourself into this. Now don't go and try to make it all about me, okay? Falsely to boot! Just stick to the facts without all this distracting foolishness.

I called you on your assumptions and misstatements, and you're angry about that. You were misleading the dance, so to speak. After dispelling those (mistakes for which you have ungraciously failed to apologize), I simply clarified, got it down to the basic issues, cut out extraneous and off-point legal considerations you brought up, and you're angry. So, let's give you a whirl, okay?

The statutes govern what happens to the personal property. Explain exactly how that statement has any bearing on who should take the boat and who should not. Lay it out. Just don't make the statement, back it up. This is the issue that Linda raised. This is her defense to the broker taking the boat, both to him, and then she voiced it to the Bank. Did the Broker have the right, according to his contract with Linda, to counter-mand orders to Linda or not? Tell us how the statutes enter in right there, right then. Because you've said repeatedly that they do. Tell us how. And you can't use the silly redlight thing, either. Tell us how the statutes are being broken. Tell us how Linda uses those statutes to stop the broker from taking the boat, or worse, uses them to stop the Bank from doing whatever it is or is not doing with the boat. Give us your reasoning. Step by step. You claim the statutes govern this situation. Tell us how. And don't try to wiggle out with, "If you don't know then you shouldn't be licensed" or something similarly dumb like that.

You've hung your hat on those statutes being a part of the dispute between Linda, the Broker and Linda and the Bank. Some of us have said it's a contractual dispute, pure and simple. Now you have the opportunity to tell us everything you know about the application of these statutes to the dispute. Go ahead...