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Officer Jails Real Estate Agents Who Foreclosed on His House

By Jonathan R. Tung, Esq. on May 11, 2016 | Last updated on March 21, 2019

Circuit cases don't often involve terribly outlandish scenarios. Here's an exception. In this qualified immunity case, a police officer arrested the real estate agents for the new owners of his home after they foreclosed on his house.

Based on that brief set of facts, how do you think the court ruled? You're probable right.

The Foreclosure Facts of Lt. Timothy Filbeck

Timonthy Filbeck was a police officer in Butts County, Georgia. In 2005, he and his wife bought a home rather unfortunately timed before the Great Recession that began in 2007-08. When the Filbecks fell behind on their mortgage payments, their lender notified them of an impending acceleration of their loan and moved forward with foreclosure and sale procedures. The Filbecks moved out and lived with family. Property was still left at the former Filbeck home.

In the coming weeks and months, foreclosure papers were posted on the property by agents and lending agents. When Mr. Filbeck returned one day to the house, he discovered some personal property missing. Infuriated, he tore down the notices, nailed the door shut, boarded up the windows and took possession of the home. When agents returned to serve Filbeck with papers indicating a right to repossess, he arrested them and took them to the county jail for overnight custody stay.

Qualified Immunity

It does not take a lawyer to understand that Mr. Filbeck overstepped his authority as a law enforcement officer. But an analysis is probably due.

With regards to qualified immunity , the circuit court concluded that Filbeck's badge did not give him "license to break the law." Citing case law, the court underscored that qualified immunity claims do not immunize officers who should have objectively understood their conduct would violate an arrestee's civil rights. But when Filbeck alleged reasonableness in his actions, the court had more to offer.

Filbeck's claim was that his actions were supported by probable cause in a belief that the agents were in on -- get this -- burglary. Since his personal belongings were missing, he claimed that his home had been broken into.

The problem, the court noted, was that there was fair notice that possession of the home was a pending issue. In fact, Filbeck himself physically tore down the foreclosure notice sign. So, with actual notice proven, Filbeck could not be heard to allege a probable cause case as nothing, given the facts, could support probable cause.

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