Six Tips to delay Unlawful Detainer Eviction after foreclosure
Jan. 10, 2020
Since we started Advocate Legal Litigation Support, this is the question we get asked the most. When clients come to us before foreclosure, our goal is to help them stop it, but when they come to us after, our goal is to keep them in their homes as long as possible. There’s nothing wrong or illegal in this and in our practice we have kept people in possession anywhere from six months to two years after foreclosure. The amount of time you get to stay in possession depends on multiple variables; some of which are out of your control, but some of which are in your control and we can help you navigate.
Tip #1 – Reach out for help as soon as possible.
The best time to contact an attorney is before foreclosure, obviously, so that they can prevent it. But if your foreclosure sale took you by surprise, say for example you trusted the nice gentleman on the phone that works for the servicer who said the sale would not occur because you were in a trial payment plan for your loan modification and whoops it occurred anyway, you should call an attorney immediately after the sale. If you want to sue for Wrongful Foreclosure to get back your title we can absolutely assist you with sample pleadings and workflows for that, but remember that’s a lawsuit for title and title is different than possession.
California is a nonjudicial foreclosure state which means that title can be taken away after you receive a Notice of Default and a Notice of Trustee’s sale with a sale date and the home is sold. However possession cannot be taken away without due process and that’s a trial called an Unlawful Detainer. Once you get into the Unlawful Detainer trial as a former title-holder there are law and motion procedures that you can follow which will keep the process going longer and keep you in possession. Keeping possession is what this article is about.
Tip #2 – Make sure you are in the correct court
Not all unlawful detainer courts are equally fair towards a foreclosed home-owner (nice way of saying that some are shadier than a Ficus tree) and attorneys that specialize in eviction know this and go to those courts even when their case doesn’t belong there. So the first thing you do when you get an unlawful detainer complaint is check to see if you are in the right court. If you aren’t in the right court your first “answer” is a motion for change of venue. If you are in the right court, you go to the next step.
Tip #3 – Don’t rush to answer.
The Unlawful Detainer complaint says that you must “answer” in five days, but what it really means is that you must respond. The biggest mistake people make in delaying possession is to come to us after they have filed an answer, when there are many things you can do before that. An answer is a specific type of responsive pleading, but it there are many responsive pleadings you can file before you are ordered by the Court to answer. What motions or objections you file will depend on specific things, but usually this can delay having to answer for up to two months. Only after you answer can the case be set for a trial.
One of the responsive pleadings you can file is called a demurrer (a motion to dismiss) which will require you to get a hearing date. What usually happens after you request a demurrer hearing is that you set the hearing date out as far as possible and the opposing counsel makes an ex parte motion to shorten the time to hear the motion, even demanding that it be heard immediately. Once your demurrer is heard, if it is denied, you will be ordered by the court to answer, but there are still other actions you can take.
Tip #4 – It’s not your job to be nice.
Our client Nadia was such a sweet old lady; so sweet she almost let the purchaser of her Huntington Beach home change the locks to her house when he came by after the foreclosure sale citing some bogus landlord-tenant statute that allowed him to inspect the premises. Luckily we got to her in time and told her to call the police which she did. Boy was that new owner mad!
Homeowners are usually nice people, but when you are facing eviction you have to start thinking like an attorney and stop being nice. Oprah Winfrey told a story of going into a room full of television executives with her attorney and everyone slapping him on the back collegially, happy to see him. “Hmm,” she thought. “I have the wrong attorney.” She came back with a new attorney that nobody was happy to see and knew she had the right attorney. It’s sad, but when you see the veins bursting out of the neck of your opposing counsel, you are succeeding in Unlawful Detainer Court. You are channeling your inner ninja, acting like the kind of attorney that Oprah would hire.
Tip #5 – Demand a judge!
After the new owner failed to evict Nadia by changing the locks he shoved an Unlawful Detainer complaint under her door and Nadia responded with a demurrer. As instructed, Nadia set the hearing date out as far as possible as instructed and as predicted the opposing counsel made an ex parte motion to hear the demurrer immediately. Unfortunately at the hearing, the clerk asked Nadia to agree to an attorney substitute instead of a judge and Nadia agreed because she wanted to be nice. Remember Tip #4.
Although she tried to walk it back (after speaking to us) the temporary judge would not give Nadia her judge and ruled in the new owner’s favor. The temporary judge didn’t even address her demurrer, but ordered her to answer in five days even though she had brought up valid issues of imperfect title. Of course we had more tricks up our sleeve, but that lost Nadia at least a couple of weeks.
Tip #6 – Remember you are a homeowner, not a tenant.
Unlawful Detainer is what is called a summary proceeding which means it is designed to move quickly, mostly to benefit the landlords that have to evict tenants that don’t pay rent. Because of its summary nature, Unlawful Detainer Courts are at the bottom of the food chain, usually not computerized so that you can’t see your case online, and with the least impressive judges. There are also limited defenses and due process rights available to tenants trying to stay in possession.
Even though the same summary nature applies to homeowners after foreclosure, that is the Unlawful Detainer trial will move just as quickly, you will have to hassle with the same archaic system, and less impressive judges, still there are different statutes in place to protect you. For instance, in a landlord-tenant dispute, a landlord need only provide a lease along with an Unlawful Detainer Complaint and the Court assumes [s]he is the owner of the property from which they are evicting a tenant. However, a new owner evicting after foreclosure must show that [s]he has perfected title. Based on un-perfected title, or other issues related to service, an Unlawful Detainer case can be won by a former owner, forcing the new owner to start again from the beginning with a new case.
A good Unlawful Detainer attorney will charge you at least $7000 to defend you in court and that is a fair price to pay if they are good. Advocate Legal Litigation support provides you with sample pleadings and workflows so that you can be your own attorney and the charge is $39 per month. You do the work, but you also save money.