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City Has Qualified Immunity in Foreclosure Warrantless Entry Suit

By Robyn Hagan Cain | Last updated on

Pets are the forgotten victims of the housing market collapse. While we hear the stories of struggling families living on the streets or in their cars, it is easy to overlook the heartache those families face when deciding how, or if, they can care for their four-legged friends when they no longer have a home.

Today, we have a Sixth Circuit Court of Appeals case that involves such a problem, and demonstrates how a city's missteps in a foreclosure can lead to warrantless entry claims and qualified immunity defenses.

Picture this: A borrower realizes that she is going to lose her home. She leaves the house, and all her worldly possessions behind. Hardest of all, she leaves her cats.

Her daughter continues to return to the house to feed and care for the feline friends for almost a year. One day, a property preservation company hired by the bank that holds the mortgage discovers that the house -- like many other foreclosed homes -- is full of the former homeowner's possessions ... And cats.

The property preservation service calls the city. The city, without confirming the service's authority, sends the animal warden. The warden sets traps for the cats.

The homeowner sues the city, based on the city official's warrantless entry into the home. The city moves for summary judgment, arguing that it is entitled to qualified immunity. The district court sides with the city, and the Sixth Circuit Court of Appeals affirms.

It's no surprise that the City of Garfield Heights, Ohio won its qualified immunity claim in this case. A defendant is entitled to qualified immunity on summary judgment unless the evidence, viewed in the light most favorable to the plaintiff, "would permit a reasonable juror to find that the defendant violated a constitutional right, and the right was clearly established."

While the Fourth Amendment protected the homeowner against warrantless entry absent consent, the courts found that the property preservation company gave valid consent to the city to enter the home because the company was a "third party who possessed common authority" over the premises. The courts noted that city officials were "sloppy" in failing to confirm the company's authority, but their actions did not rise to the "reckless" standard required by Ohio law.

Though the city was insulated from warrantless entry liability thanks to qualified immunity, city officials should take extra precautions when faced with similar requests in foreclosure situations. Here, Garfield Heights could have avoided some of the legal hassle in this case had it simply confirmed the property preservation company's authority before acting.

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