Child's death mired in nation's foreclosure crisis

McClatchy NewspapersOctober 29, 2010 

WASHINGTON — In a nation with millions of foreclosed homes, the one next door proved the most dangerous for 2-year-old Isaac Dieudonne.

On Oct. 11, 2009, Margarrette and Woulby Dieudonne were moving into their new home in Miramar, Fla., when their son Isaac strolled unnoticed out the Haitian family's open front door. Minutes later, the toddler was found floating facedown in the algae-ridden backyard pool of a neighboring foreclosed home.

A neighbor administered CPR as the foul water spewed from Isaac's mouth. Thirteen minutes after arriving at the hospital, he was pronounced dead.

The Dieudonnes' tragedy led to a wrongful death lawsuit that shows how complications from the nation's housing downturn can slow the wheels of justice.

The Dieudonnes never moved into their new home after the accident and Margarrette hasn't been back since that fateful evening. Between bouts of depression, insomnia and emotional emptiness, she's found it difficult to visit her son's grave, even on the anniversary of his death.

But with a heavy heart and four helium-filled balloons in hand, she made the solemn cemetery trek on Oct. 11 out of respect for Isaac.

"I feel an obligation for me to at least show up on his birthday and on his birthday in heaven because I feel like he's watching over me and he may feel like I abandoned him. But I haven't," she said, fighting back tears. "So I went there to place two balloons (at his grave). And I released two to the sky to let him know I love him and, even though he's in heaven, I truly do miss him."

Untold thousands of foreclosed homes across the United States pose an added public safety hazard because of their green, murky backyard pools, which can breed mosquitoes, nourish problem animals and rodents, or, in the case of Isaac Dieudonne, attract young children.

The Dieudonnes' lawsuit hinges on a simple, but painful, question: Who is most liable for the boy's accident? Was it the parents who were watching him or the property owners, servicing companies and maintenance firms that were responsible for making sure the vacant house met public safety requirements?

Like millions of foreclosed properties across the country, the home where Isaac drowned has been awash in legal action over the years, making it difficult to determine who owned the property at the time of the accident.

It took months for the family's attorney, Janet Spence of Pembroke Pines, to sort through the property's muddied chain of title possessions and transfers. At one point, Spence said, the home had two separate foreclosure actions pending simultaneously.

Spence also has faced some of the same paperwork irregularities that have put the nation's foreclosure cases on indeterminate hold.

Several documents transferring the mortgage appear to be flawed or possibly fraudulent, with conflicting dates. Two documents show that the mortgage was transferred from one mortgage company to an affiliated company in November 2007 and again in February 2008.

One of the questionable documents was generated by the Florida Default Law Group in Tampa, one of four law firms that are under state investigation for allegedly "fabricating and/or presenting false and misleading documents in foreclosure cases," according to the Florida Attorney General's Office.

Because of the confusing paper trail, Spence has named 20 defendants in the case. They include banks that once owned the mortgage, companies that serviced the loan, property maintenance companies and even a company that was holding the mortgage for the banks.

Some defendants, such as American Home Mortgage Servicing Inc. and the property management firm Field Asset Services Inc., are claiming parental negligence in the case. Others, including JPMorgan Chase, say they had no ownership stake in the property when the accident occurred.

"What you've described is a really tragic example of what happens when properties are abandoned and no one individual or institution will accept responsibility for the property," said Dan Kildee, the president of the Center for Community Progress, which pushes for redeveloping vacant and abandoned properties. "It's particularly troubling when mortgage-foreclosed properties are managed by a servicer who claims they don't own the property and therefore they don't have any obligation to protect the public."

The Dieudonne case is similar to that of 5-year-old Sheyenne Jenkins, who drowned in May 2008 in the backyard pool of a home in Avon, Ind., whose owners had abandoned it several months earlier at the height of the housing crisis.

Family members say that Isaac and Sheyenne, who was visiting her grandparents at the time of her accident, were drawn to the vacant homes by rubber balls left in the pool area.

Sheyenne's mother, Secrena Erwin, knows the Dieudonnes' pain firsthand.

"I can't tell anybody how to cope. I don't know how to cope myself some days," she said. "It's hard. Every day you fight that uphill battle. You get up every morning and just hope it's a nightmare, but you don't wake up."

More than two years after the accident, she's still enraged.

"I'm angry at the banks because once the house was abandoned, they did not take any action to secure the property. They said they hadn't taken possession," Erwin said. The attorney for HSBC Mortgage Services, the lender named in Erwin's lawsuit, didn't respond to several inquiries.

Edward Mermelstein, a noted real estate lawyer in New York, said banks were "learning as they go" to deal with the property management responsibilities that came with their mushrooming portfolio of foreclosed homes.

"They didn't have to deal with (property maintenance issues) a couple of years ago. This is something that is unfortunately moving very quickly and is not something the banks have the ability to take care of. They're not staffed for these types of issues."

Some have argued that once a bank undertakes to improve a foreclosed property, it's acknowledged possession, which could make it even more liable for accidents than if it had done nothing.

"That's a very weak argument as far as I'm concerned," Mermelstein said.

On a recent visit to the Florida home where Isaac died, Spence and Woulby Dieudonne said the side gate where Isaac probably entered the property was still open. The screen door to the enclosed pool area was locked, but Spence said holes and tears in the enclosure still allowed easy entrance to the pool, which remains full of dirty water, but is now covered by wood scaffolding.

The Miramar city code requires that gates on pool safety barriers have spring locks that self-close after opening. The requirement applies to the screened pool enclosure and the fence around the backyard, Spence said. Safety barrier gates also must be locked when the pool isn't being used. Spence said that neither the pool enclosure nor the backyard fence met either requirement at the time that Isaac drowned.

The Dieudonne case was filed originally in state court, but was moved to U.S. District Court after a defendant claimed that the case lacked a valid Florida-based defendant. That claim was later proved false and ultimately was withdrawn. Because of that, Spence is asking that the case go back to state court and that the federal judge impose punitive sanctions against the defendants for allegedly providing false information about the disputed Florida defendant. A hearing on those issues is set for November.

The day Sheyenne Jenkins died, a puddle of water had formed on top of the protective cover that was over the pool. Sheyenne apparently lost her footing on the algae-slickened cover and died in the accumulated water, said Erwin's attorney J. Michael Katz.

"In police photos, you can actually see that this poor little girl struggled and struggled to get out because you see her finger marks going down one side" of the cover, Katz said.

Erwin's lawsuit claims that the homeowner who vacated the property didn't leave a surface pump in place to drain water from the pool cover. The attorney for the homeowner didn't respond to several requests for comment.

The suit also claims that the mortgage company, the homeowner, the neighborhood association and a management company were negligent in failing to maintain the fence around the pool and in leaving the pool area unlocked.

The girl's grandparents, who were watching the child, also were named as defendants. The case is set for trial in August 2011.

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