Attorney Vondran http://www.foreclosuredefenseresourcecenter.com/california-foreclosure-defense-lawyer/foreclosure-defense-blog/........
Explains in part, how an eviction in California within "foreclosure" can be key, depending on the facts; since eviction is considered a "summary" process, complex fraud is not supposed to be litigated within an eviction. However, in CA, the complex fraud can be set out in another case and related then, to the eviction. If allowed, the cases may be consolidated. In most cases, the eviction can be masked as follows:
General masking rule: CCP§ 1161.2(a)(5):
Only masks UD documents for 60 days post-filing
File becomes public unless UD defendant prevails in 60 days
Post-foreclosure UD masking rule: CCP§1161.2(a)(6):
UD documents are masked for 60 days post filing
Permanently masked unless:
...within those 60 days
...against all defendants
...after a trial
WARNING: IF YOU ARE BEING EVICTED, GET LEGAL HELP RIGHT AWAY.
TRYING TO DO IT ON YOUR OWN CAN RESULT IN DISASTEROUS RESULTS.
CCP 1161a(b)(3) – eviction process for borrowers who are foreclosed.
The elements of an unlawful detainer action based upon the sale of real property at a trustee’s sale are set forth inCode of Civil Procedure section 1161a which states:
“(b) In any of the following cases, a person who holds over and continues in possession of a manufactured home, mobile home, floating home, or real property after a three-day written notice to quit the property has been servedupon the person, or if there is a subtenant in actual occupation of the premises, also upon such subtenant, as prescribed in Section 1162, 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.”
This is the section most BFP’s or the loan servicers (or securitized loan trustee’s) will bring an eviction action under following a foreclosure sale on the prior borrower’s property. As this section points out, the Plaintiff bringing the wrongful holdover (unlawful detainer action) bears the burden to prove the sale was in accordance with Section 2924 of the Civil Code (which are California’s non-judicial foreclosure statute.
Under California Evidence Code Section 500, the purchaser at the trustee sale who brings the UD should be required to prove the elements necessary to evict. This section states:
“Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting.”
California Homeowner Bill of Rights – adds to the requirements to California Civil Code 2924 obligations to pursue a valid non-judicial foreclosure sale.
CCP 1161a (cited above) indicates that the foreclosure sale has to be in accordance with section 2924 of the Cal. Civ. Code. So what then does the code require? We have talked about the California HBOR in other blog posts. The CHBOR added, among other code sections, 2924.19 (click to see our video on CC 2924.19). As the video points out, there are two new code sections that a loan servicer needs to comply with if it wants to be “in accordance with 2924” as is required as set forth above to evict.
Specifically, as the video points out, California Civil Codes 2924.17 (substantiating the right and authority to foreclose with accurate and reliable evidence / no foreclosing with robosigned documents) and Civil Code 2924.18 (no “dual tracking“) were added to California’s non-judicial foreclosure statutes. Shouldn’t these legal issues thus be litigatable in the unlawful detainer Courts when a lender, servicer, creditor, BFP, or securitized loan trustee seeks to evict the homeowner following a foreclosure sale? Seems logical to me.
But it has been said that Unlawful Detainer is a “summary proceeding” that cannot adjudicate “complex” issues of title.
As the Court held in Drybread v Chipain Chiropractic Corp (2007) 151 Cal.App.4th 1063, 1072.):
“The summary proceedings for unlawful detainer are based on the English statutes that abrogated the common law right of a person wrongfully dispossessed to regain possession of real property by force. The statutory situations in which the remedy of unlawful detainer is available are exclusive, and the statutory procedure must be strictly followed. The proceeding has characteristics of a contract action, e.g., it usually involves a lease, and often seeks its termination and recovery of rent. But this type of relief is deemed incidental to the main purpose of the suit—recovery of possession. Title is not in issue in the conventional unlawful detainer suit.
The remedy of unlawful detainer is designed to provide means by the timely possession of premises which are wrongfully withheld may be secured to the person entitled thereto. The summary character of the action would be defeated if, by cross-complaint or counterclaim, issues irrelevant to the right of immediate possession could be introduced.
The language of this case raises more questions than it answers. Without production of the endorsed note, timely deposited with the securitized loan trust (so as not to create a “Glaski” issue), how can a Plaintiff in a wrongful foreclosure action show that it is the “person entitled to” possession of the property or that somehow it is being “wrongfully withheld” from them? Is this really an “irrelevant issue” as to whether the Plaintiff is entitled to possession of the property? Is this really a “complex” legal issue that cannot be quickly resolved since the legal authority to foreclose (which is required under the CHBOR to be resolved before foreclosure proceeds as set forth above) is supposed to be substantiated early on in the non-judicial foreclosure process. Surely this would then be a simple matter of producing a copy of the original endorsed note. Some defense attorneys will refer to this as a “novel legal theory.” Yet you cannot walk into a small claims court and ask the judge for a monetary judgement without the judge asking to see the IOU. Is this really that different?
This of course is only one of the potential issues that can arise in a UD homeowner eviction case.
However, despite the “no legal challenges” to title position taken by some courts, there is legal authority under CCP 1161a to challenge to “duly perfected title”
When a Plaintiff seeks to evict a former borrower in UD Court, the Code of Civil Procedure 1161a requires the purchaser seeking eviction to have “duly perfected” title. Thus, Plaintiff’s lack of title is and should be a proper defense. See Vella vs Hudgins (1977) 20 Cal.3d 251, 255 which held:
“For our present purpose, it is sufficient to note that the proceeding is summary in character; that, ordinarily, only claims bearing directly upon the right of immediate possession are cognizable……..and that cross-complaints and affirmative defenses, legal or equitable, are permissible only insofar as they would, if successful, “preclude removal of the tenant from the premises.”
The Vella court continued:
“A qualified exception to the rule that title cannot be tried in unlawful detainer is contained in Code of Civil Procedure section 1161a, which extends the summary eviction remedy beyond the conventional landlord-tenant relationship to include certain purchasers of property such as Hudgins. Section 1161a provides for a narrow and sharply focused examination of title. To establish that he is a proper plaintiff, one who has purchased property at a trustee’s sale and seeks to evict the occupant in possession must show that he acquired the property at a regularly conducted sale and thereafter “duly perfected” his title. (§ 1161a, subd. 3.) Thus, we have declared that “to this limited extent, as provided by the statute, title may be litigated in such a proceeding.” See also Cheney v. Trauzettel.
Evicting Plaintiff’s and their attorneys will likely argue that the trustee’s deed constitutes prima facie evidence of duly perfected tile and that the Trustee’s Deed establishes that the Defendant purchased the property at a trustee’s sale held in compliance with Civil Code section 2924 and that as such, title has been duly perfected in the Defendant. See Beck v. Reinholt (1956) 138 Cal. App. 2d 719, 292 P. 2d 906. This, of course, is not always the case and legal challenges might need to be raised depending upon the type of evidence you have, and the facts of your case.
What a Plaintiff must prove in a unlawful detainer case
So, if you are still with me you are doing well. The question then becomes, what must an evicting Plaintiff prove in California to make a prima facie case for eviction (especially where legitimate title issues are present, for example when a servicer will not comply with, nor respond to a request to produce “evidence of the indebtedness” as required under California Civil Code section 2923.55 – another section added by the CHBOR).
Evicting Plaintiffs in California UD courts bear the burden of establishing:
(1) Proper service of a valid 3 day notice to quit;
(2) Proper legal compliance with the foreclosure notice and recording requirements of Cal. Civ. Code § 2924 et seq. | Cal. Civ. Code § 2924(a)(1)-(5) for requirements you should insist on)
(3) Plaintiff “duly perfected title” (which should incorporate the CHBOR “authority to foreclose” requirements discussed above). See California Civil Code § 2924(a)(6) added section to California non judicial foreclosure laws (holder of beneficial interest in note/deed of trust).
(4) Show that the tenant or former borrower is improperly holding over.
See Aurora Loan Servs., LLC v. Brown, 2012 WL 6213737 for an unpublished case discussing the basic requirements. Note, you cannot normally cite to unpublished legal opinions.
WARNING: THIS DATA ABOVE, IS FROM GENERAL LEGAL CODES OF CALIFORNIA, AS STATED ON ANOTHER SITE. THIS IS NOT LEGAL ADVICE TO SPECIFIC FACTS YOU MAY HAVE, YOU WILL NEED TO KNOW YOUR EXACT FACTS TO SHOW A LOCAL ATTORNEY EXACTLY WHAT DID HAPPEN. THIS TYPE OF LITIGATION IS FRAUGHT WITH VERY VERY SPECIFIC FACT BASED DATA, AND EVEN ONE DIFFERENT FACT CAN CHANGE AN ENTIRE CASE.
CASE LAW IN THIS AREA CHANGES VERY VERY RAPIDLY AND NEW CASES CAN QUICKLY OVERTURN CASES THAT ARE LESS THAN ONE YEAR OLD. LOAN MODIFICATIONS ARE NEVER GUARANTEED AND THE NEW LAWS AND CASES ARE VERY SPECIFIC. BOTH STATE AND FEDERAL LAWS ARE OFTEN INVOLVED AND THE CASES WHERE LENDERS HAVE CHANGED AND SERVICERS HAVE CHANGED ARE COMMON. IN MANY CASES MOST PEOPLE DON'T KNOW WHO THEIR LENDER IS.