A Cook County judge has refused to allow a Chicago man to proceed with a class action lawsuit he brought against a company that specializes in cleaning out and securing foreclosed properties, in which he accused the company of essentially ignoring whether the homes are occupied before entering and setting to work.
While saying plaintiff Michael Bryant may be able to press his own case, Cook County Circuit Judge Franklin Valderrama said the circumstances surrounding each and every foreclosure eviction case differ too much to grant Bryant the chance to expand his case to include potentially hundreds of others who Bryant and his lawyers contend were similarly treated by vendor ServiceLink Field Services.
“In particular … whether any particular putative class member had a possessory interest in a property in which ServiceLink caused property preservation services to be performed would require an inquiry into the nature of the putative class member’s relationship to the property, whether ServiceLink caused property preservation services to be performed on the property at a time when the putative class member had a possessory right in the property, and whether the property preservation services on the property were unauthorized,” Valderrama wrote in his decision, filed Oct. 17.
The case stems from an encounter between Bryant and representatives in early 2011, shortly after lender U.S. Bank secured a court order granting it possession of a property in the 1400 block of West Harrison Street in Chicago, in which Bryant lived.
According to court documents, Bryant and his wife began renting that property in late 2007, more than a year after U.S. Bank had initiated foreclosure proceedings against the property’s owner, Geraldine Holt. The Bryants continued to pay monthly rent for at least the next three years, even after their initial lease had expired.
In 2010, the court record indicates the Bryants moved most of their personal belongings to a home next door.
However, throughout 2010 and in early 2011, court documents said “residency checks” of the old property on behalf of a real estate broker continued to report that dwelling as occupied. Further, the record indicated Bryant declined requests to vacate the property because “he was interested in purchasing” it.
In December 2010, the court granted an order to U.S. Bank to clear out the property. And in February 2011, U.S. Bank’s agent hired ServiceLink to perform “property preservation services,” including cleaning out the dwelling, shutting off water service and changing the locks.
However, at some point that month, the Bryants confronted ServiceLink contractors and prevented them from performing their work, claiming they were tenants living in the dwelling and calling the police, who forced ServiceLink’s contractors to return personal property taken from the dwelling.
In June 2011, U.S. Bank asked a court to allow it to evict the Bryants.
The Bryants then responded with a lawsuit of their own, alleging ServiceLink and others had trespassed and violated the city of Chicago’s Residential Landlord Tenant Ordinance, among other charges.
They asked the court to expand the case to include many others who they alleged had been similarly treated under a ServiceLink policy of seeking to clean out and secure dwellings, regardless of whether tenants may have personal property on the site, indicating the property was occupied.
ServiceLink denied it has any such policy.
However, the company further asserted the court could not approve a class action in this case, essentially because the circumstances surrounding each property cleanout would be too different.
“ServiceLink argues that even if Michael (Bryant) were to prevail on his individual claim for trespass against ServiceLink, that would not establish a right to recovery for all class members because Michael’s class claim for trespass requires an individualized inquiry into the nature of each putative class member’s tenancy,” Judge Valerrama wrote.
And the judge agreed, noting, “… the issue of whether it, in fact, had a policy to disregard the presence of private property when determining whether a property is occupied is not a common question to all putative class members that would predominate over individualized issues.”
“For example, if Michael establishes that he had a possessory right (to the property) that would not establish that any putative class member had a possessory right in a property in which ServiceLink caused property preservation services to be performed,” the judge wrote.
Further, the judge turned down Bryant’s request to expand the case under the Chicago RLTO to include all plaintiffs of any property serviced by ServiceLink. Similarly, the judge said any such cases would likely differ too much, from property to property, to allow a class action to proceed on those grounds.
According to Cook County online court records, Bryant is represented in the action by attorney Berton N. Ring, of Chicago.
ServiceLink is defended by the firm of Holland & Knight, of Chicago.