Mortgage Foreclosure Victory: Nevada Supreme Courts Agrees to Damage Award; Couple Wronged by Countrywide Mortgage in Misidentification of Home in Foreclosure

Courtesy of the Las Vegas Review Journal

By John L. Smith

Gerald and Katrina Thitchener lost nearly all their material possessions thanks to an arrogant error by Countrywide Home Loans officials.

They weren’t just stripped of their furniture and clothing when a mistake by Countrywide in 2002 set in motion a foreclosure procedure that resulted in their condominium being “trashed out.” Couches and coats can be replaced.

These little people with little money and no political clout also lost precious and irreplaceable things. There were Gerald’s service medals from the Persian Gulf War and the picture he cherished of his Air Force unit’s meeting with President George H.W. Bush. There was Katrina’s wedding band and dress, and the video taken the day they were married.

Then there were the lost pictures, photos of departed family members, of high school days, of their children.

The Thitcheners lost a lot back in 2002, including some of their faith in the system; but on Thursday the Nevada Supreme Court determined that their losses, and the actions of the mortgage giant, deserved compensation in the approximate amount of $2 million.

It took a six-year fight, but Thitchener is no stranger to battle.

A Gulf War veteran, he served 15 years in the Air Force as an F-16 mechanic before being honorably discharged in April 2001. On the same week he left active duty, he signed on with Nevada’s Air National Guard.

There was little time to rest.

Thitchener quickly returned to active duty following the events of Sept. 11, 2001. He was transferred from Las Vegas to Tucson, Ariz.

Katrina, pregnant at the time, remained in the family’s condominium with the couple’s children, Kaitlyn and Steven. When it became apparent Gerald wouldn’t be returning to Las Vegas soon, Katrina made occasional commutes to Tucson and eventually took an apartment there.

Although they had missed some payments on the condo to Countrywide in early 2002, their mortgage was current in June of that year, and the family’s monthly bills were forwarded to their Tucson address.

They left their power on in Las Vegas and paid their property taxes and homeowner association’s dues. In addition to all the personal items, food was left in the cupboards and refrigerator.

But when Countrywide moved to foreclose on another condo in the Thitchener’s complex, a mistake was made that resulted in the Air Force man and his family losing almost everything. The Thitcheners lived in unit 118. Unit 10 was in foreclosure.

When the time came to “trash out” the foreclosed-upon condo, unit 118 was selected despite all the warning signs of occupancy. The result was devastating.

Not that Countrywide admitted the gravity of its mistake. The Thitcheners through their lawyers, Terry Coffing and Terry Moore, fought for more than two years before winning a $3.4 million judgment in District Court. Before trial, they had sought to settle the case for $400,000.

During trial, Thitchener wore his Air Force uniform to court. While some might have groused that he was playing up his military status during a time of heightened patriotism, it was also true that his only suit was thrown away during the assault on his condominium.

Countrywide lost, but wasn’t chastened. It appealed to the state Supreme Court.

The state Supreme Court on Thursday not only agreed with the Thitcheners that the punitive damage award in the case “was supported by substantial evidence,” but it used the case as a vehicle to “clarify” the state’s case law on the subject. In doing so, it overruled two previous decisions and refined its own legal language regarding punitive damages.

That amounts to a substantial amount of fine-tuning in this area of Nevada law. It also should mean that the Thitcheners will be compensated for their losses.

“Despite the fact Countrywide knew where the Thitcheners were, the foreclosure went forward,” Coffing says. “Despite all the red flags going up that said, ‘This is wrong,’ they went ahead and did it anyway.

“Here’s a guy, a salt-of-the-Earth, good-hearted guy who never harmed a fly, slugging it out for our country and enduring incredible hardship. And then this happens to him. It’s very fulfilling to help those kinds of people.”

It is, in fact, enough to restore your faith in a legal system known all too often for comforting the comfortable and trashing the little people.