Elements of a Post-foreclosure Eviction
– Notice Requirements
– Compliance with CC 2924
– Present Right to Possession
Unlawful Detainer Litigation

Notice Requirements

Former Borrowers v. Tenants

– Former borrowers
3 days’ notice
– Tenants
90 days’ notice (in most cases)

Protecting Tenants at Foreclosure Act (Section 702)

– All bona fide tenants
Must be given at least 90 days’ notice
– Bona fide tenants with more than 90 days remaining on lease
Entitled to stay until the end of the lease, if lease entered into before “notice of foreclosure”

– EXCEPTION: lease may be terminated with a 90-day notice if purchaser will occupy unit as primary residence or if lease terminable at will under state law

Bona Fide Tenancy (PTFA)

A lease or tenancy is bona fide only if:
– Tenant is not the mortgagor or the mortgagor’s child, spouse, or parent; and
– Lease was the result of an arms length transaction; and
– Rent is not substantially less than fair market rent (unless the reduction is due to governmental subsidy)

HCV (Section 8) Tenants

– Section 8 tenants are deemed to be bona fide tenants. 74 Fed. Reg. 30108
– New owner takes title subject to both the Section 8 lease and the HAP contract

– EXCEPTION: Lease may be terminated with a 90 day notice if new owner will occupy unit as primary residence
– Any eviction notices must also be sent to the Housing Authority. 24 CFR 982.310(e)(2)(ii).

State Law Notice Requirements

CCP 1161b
– 60-day notice requirement for all tenants
– AB 2610 (effective 1/1/13):
– 90-day notice requirement for all tenants
– lease protections
– CCP 1161c
– Cover sheet requirement for post-foreclosure eviction notices

Service of Notice

Cal. law (CCP 1162):
– Personal service;
– Substitute service; or
– Posting and mail
– Does actual receipt cure service defects?
– Compare Valov v. Tank (1985) 168 CA3d 867 with Culver Ctr. Partners E #1 LP v. Baja Fresh Westlake Village, Inc. (2010) 185 CA4th 744

3/60/90 Day Notices

– Invalid? Alta Cmty. Invs. III v. Ottoboni, No. 1370195 (Cal. Super. Ct. July 29, 2010) (holding that 3/30/60/90 day notice is fatally ambiguous)

Post-FC Evictions in Just-Cause Jurisdictions

Just cause for eviction required
– Nonpayment of Rent
– 90-day notice required? PNMAC Mortg. v. Stanko, No. 11U04495, 2012 WL 845508 (Los Angeles, Cal. Super. Ct. Mar. 7, 2012) (yes)
– AB 1953 (effective 1/1/13):
– Cannot demand rent accrued before compliance with CC 1962
– Breach of Lease
– 90-day notice required?

Compliance with CC 2924

CCP 1161a

A person who holds over . . . may be removed therefrom as prescribed in this chapter:
– (3) Where the property has been sold in accordance with Section 2924 of the Civil Code, under a power of sale contained in a deed of trust executed by such person, or a person under whom such person claims, and the title under the sale has been duly perfected.
“Title” issues may be litigated in post-foreclosure UDs
– Malkoskie v. Option One Mortg. Corp., 188 Cal. App. 4th 968 (2010)

Properly Conducted Sale

Trustee must have authority to conduct sale
– Wells Fargo Bank, N.A. v. Detelder-Collins, No. APP10000325 (Riverside Super. Ct. App. Div. Mar. 28, 2012) (UD judgment reversed because plaintiff failed to provide substitution of trustee to show that trustee had authority to conduct sale)
Sale void if conducted in breach of loan mod.
– Barroso v. Ocwen Loan Servicing, LLC, 208 Cal. App. 4th 1001 (2012) (permanent modification)

Failure to provide proper foreclosure notices
– JP Morgan Chase v. Callandra, No. 1371026 (Cal. Super. Ct., Santa Barbara Co. Oct. 21, 2010) (tenant may challenge foreclosure based on failure to post NTS)
– But tender/prejudice requirement for former homeowners

Right to Possession – Present Right to Possession

Expiration of Notice Period?
– Expiration of Bona Fide Lease?
– Must still satisfy 90-day notice requirement

UD Litigation – Unlawful Detainer Process

Service of Summons and Complaint
– Personal;
– Substitute; or
– Nail and mail with court approval (after reasonable diligence)
– Five days to answer
– Pre-answer motions:
– Delta motion to quash (prejudgment claimant?)
– Demurrer (defect must appear on face of complaint)
– Answer
– Summary Judgment
– Trial

60-Day “Curtain” (CCP 1161.2)

Limited civil UDs are masked for the first 60 days
– Unmasked after 60 days unless tenant prevails within the 60 days

Except for post-foreclosure cases
– Permanently masked unless plaintiff prevails against all defendants after trial within 60 days

Unnamed Occupants

“Doe” occupants
– Must intervene in case by filing prejudgment claim of right to possession within 10 days of service
– BUT see AB 2610 (effective 1/1/13):
– PJCRTP form may be filled out and presented at any time, even after judgment

Appeal

Notice of appeal – 30 days after notice of entry of judgment
– No automatic stay of the writ of possession
– Ask for stay
– Trial court
– Writ proceeding in appellate division
– Appeal bond
– Little case law for post-foreclosure UD issues
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Hypo

Tom Tenant’s 3-BR home in Sacramento, CA was sold at foreclosure sale on October 1. Tom’s existing lease expires on November 1, 2013. Under this lease, he pays $1,600 in rent each month under the lease, but the surrounding homes rent for about $2,300 per month. On October 5, Ivan Investor, who purchased the property at the trustee sale, served Tom with a 60-day notice to quit. Is the notice correct?

– What if Tom was a Section 8 HCV tenant?
– Or if Tom lived in Oakland instead of Sacramento?

Homeowners who finds themselves in a situation where their lender is fraudulently trying to use cooked up documents to steal their most prized possessions “their homes”, needs to do whatever is necessary to stop these interlopers from stealing their homes. To do this, homeowners need to fight them to the finish in order to avoid the situation of change of status from “borrowers to tenants” as described above. Homeowners in wrongful foreclosures should do their best to reclaim what is rightfully theirs even if the lenders initially succeeded in foreclosing using fraudulent documents. It can reversed and dismissed by the courts through vigorous litigation, that’s where http://www.fightforeclosure.net comes in.

To learn how you can effectively use well structured (Pro Se “Self Representation”) litigation pleadings to effectively challenge and reclaim your status as a homeowner instead of a tenant, visit http://www.fightforeclosure.net