POSTPONING POSSESSION

If a foreclosure has already occurred on your property you have lost title, but not possession. Possession is a separate right that can only be taken from you by due process – meaning personal service of an Unlawful Detainer lawsuit and a trial and judgment. You may be prepared to vacate your property immediately after a foreclosure, but many people aren’t and they want to delay possession as long as possible.

Prevent a Bona Fide Purchaser Purchasing Your Property

A bona fide purchaser is a protected third-party who has acquired clear title and the right to evict a foreclosed homeowner. The way to prevent a purchaser buying your property in a foreclosure sale from being a bona fide purchaser is to file a lawsuit and record a Lis Pendens with the county recorder before the foreclosure sale occurs. A buyer can purchase and begin eviction, but no buyer can be a bona fide purchaser once a Lis Pendens is recorded because they have constructive notice of the litigation by the recorded Lis Pendens. It is the duty of the buyer to check the county records for any Lis Pendens, which gives them notice of the litigation and takes away any of the protections a bona fide purchaser enjoys.

Most investors don’t purchase a property that is the subject of litigation and many times a beneficiary will postpone a sale until the litigation can be dismissed or settled. A sale may still occur, but it will likely be a sale back to the bank that owns your mortgage or the mortgage servicer, since the average investor will probably want to avoid the headache. Lenders and servicers that purchase back a property at a foreclosure sale (REO) are usually less aggressive than a third-party purchasers in evicting a homeowner after a foreclosure.

If a Bona Fide Purchaser Has Purchased Your Property

A bona fide purchaser has the right to evict you, but there are still things you can do to fight eviction and delay it. The sooner you begin to strategize regarding delaying possession, the more likely you will be able to be successful in doing so. If you start the moment you receive service of the Unlawful Detainer, there are more strategies available to you. If you wait until the sheriff is coming with a NOTICE to VACATE you will be out of options.

Contact Experienced Attorneys for Skilled Guidance

With decades of experience, our honest and attentive attorneys and staff at Advocate Legal guide homeowners through the complex process of keeping possession after foreclosure.