The Tricky World of Unlawful Detainer and Eviction

It may be fairly said that in nonjudicial states, the banks take the greatest risk when they file, as Plaintiff, in an unlawful detainer action. It is the first time they are required to actually state their case, establish legal standing and ask for “relief.” They must plead and prove legal standing. The trap door is that they usually have no legal standing, the foreclosure sale was “private”, and the first time time their actions generally come under judicial review is in the judicial procedure leading to eviction.

It is in these cases that the banks will fight any semblance of real discovery because if they complied they would revealing the fraudulent nature of their actions. Below is one homeowner’s response to objections to discovery filed by “U.S. Bank, as trustee” etc.

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The lawyer’s who file unlawful detainer actions do so on behalf of a party that probably doesn’t exist. They have already held a private sale of the property on behalf of the same party as successor beneficiary. That party still doesn’t exist, and the sale is both void and fraudulent. They have already filed a Substitution of Trustee on behalf of the false successor beneficiary which is also false and fraudulent. And they have sent a Notice of Default and Notice of Sale all for the same nonexistent entity — or at the very least an entity that has no interest in the alleged loan contract, the note or the mortgage or deed of trust.

Somehow the lawyers get a court of law to treat the private sale as a judicial act, and thus apply doctrines of claims preclusion (res judicata, collateral estoppel, Rooker Feldman). This puts the homeowner in the position of having his claims of fraud either precluded or ignored. Nonjudicial sale is by very definition a private act that does not involve the judiciary.

It is in that context that you will see the battle formed. Here is a well written response to the “objections” to discovery filed by the “bank.” A careful reading will reveal the inherent weaknesses in all such nonjudicial foreclosures — especially those performed in the name of an “unidentified trust.” The usual practice is to either exclude the word “trust” from the name of the “successor” beneficiary or to insert the word “trust” in a place that does not necessarily mean that an existing trust has been identified.

see DF Reply to PL Opp to Motion to Compel

The names have been changed to protect privacy of the homeowner.

Note that in judicial states, these are the same issues except that a homeowner MUST raise the issues in defense of the foreclosure complaint filed by the lawyers who are asserting they represent a Plaintiff that either does not exist or that has no interest in the alleged loan contract, note or mortgage.

Practice Note: Some lawyers argue, and I think I agree, that a homeowners is theoretically better off NOT contesting the private nonjudicial sale and saving his ammunition for the unlawful detainer action. That strategy is based upon the fact that in the context of the private foreclosure sale, the homeowner has the burden of pleading and proving a case against foreclosure in a court predisposed to presuming the validity of the void notices etc.

In the unlawful detainer the burden pleading and proof shifts from the homeowner to the lawyers who are pursuing removal of the homeowner.

Therefore, there is a good strategical argument for waiting until the “party” seeking foreclosure must allege the facts supporting its case. The people who argue for this strategy point out that the right to seek a TRO prohibiting the sale is illusory. It puts the homeowner in the position of defending against allegations that have not been written filed or even asserted. It is the legal equivalent of shadow boxing.

Public Policy: My opinion is that when a foreclosure becomes contested, the parties should be realigned. That means the Defendant becomes the Plaintiff and must file a claim which can be admitted or denied or defended by the homeowner. The current nonjudicial foreclosure process is in my option, a denial of due process —requiring the homeowner to prove what would have been alleged by the foreclosing party, and then defending those allegations. I have long held that nonjudicial foreclosure is currently unconstitutional in its application.


15 Responses

  1. I question whether this post was written by a lawyer. First sign, it incorrectly uses the possessive apostrophe for the plural word lawyers. Next, it starts off with an entire paragraph of low-probability generalizations, as if they are universal facts. In terms of riling up potential litigants perhaps that is useful, but it is not helpful information to the vast majority of the potential foreclosure litigants out there.

    And any lawyer worth his salt knows the word “fraud” is the most over-used word in the world of foreclosure litigation.

    I do, however, agree that the current system in California – with summary proceedings for both the nonjudicial foreclosure and the subsequent unlawful detainer (eviction) action – are a failure of due process.

  2. I have been posting under ANON for a long time. Now have trouble — not the same as Anon — (lower case).

  3. File a temporary restraining order against the servicer anon based on the facts of your case.

  4. Reblogged this on Real Estate Sales Jobs.

  5. Michael, this is Anon. We moved out of the house as the bank’s servicer threatened with possible eviction. The house is put on sale on the market after the non-judicial foreclosure. Could we do anything to invalidate the foreclosure?

  6. Nadia, the bank that foreclosed on you is supposed to record the sheriffs deed in the recording office for your county. Then go from there. I bet either they didn’t do it or it’s recorded in the servicers name. I don’t know if you’re foreclosure was judicial or not. The deed has to be in the party’s name who brought the foreclosure.

  7. I don’t whom u asking Anon! The Sherrif kicked us out on 10/13/17, we like an idiot thought we buying the house back f the new owner the lawyer took $4k and even after kicked he was saying “can u find couple day place till u come back to the house? I wanna see u” “we still have another case right?”
    Ah I’ve been stabbed left & right

  8. Anon are you still in the house?

  9. We are fraudsters bum bum buttu bum bum bump bump.Like the farmers car insurance commercial .Thats what the fake bank servicers sing.Ha Ha I thought that was funny

  10. Good info Neil, Problem and strategy with examples to draw from. Thank you for the info.

  11. Settlers invasion modern holocaust

  12. The Bank of New York Mellon allegedly claiming as successor in interest, foreclosed on our property through Specialized Loan Servicing LLC, even though the assignment of mortgage was defective and they can’t be successor in interest due to violations in Pooling and Servicing Agreement. Now the house is put on the market for sale allegedly by the bank. We don’t know what to do.

  13. Reblogged this on California freelance paralegal and commented:
    This is particularly true in California as shown by these authorities.

    See The Bank of New York Mellon v. Preciado (2013) 224 Cal.App. 4th Supp 1, 10 (plaintiff only entitled to unlawful detainer judgment if the foreclosure sale was duly conducted in accordance with California law.)

    In an unlawful detainer action brought under section 1161a, the court necessarily must decide whether the purchaser at the trustee’s sale acquired legal title to the property at issue in accordance with Civil Code section 2924. Malkoskie v. Option One Mortgage Corp. (2010) 188 Cal.App.4th 968, 974. The resulting unlawful detainer judgment is therefore a determination that the foreclosure sale was conducted in accordance with Civil Code section 2924. (Ibid.)
    Civil Code section 2924 does no more than “establish presumptions about the adequacy of notices related to a foreclosure sale[.]” Bank of America v. La Jolla Group II (2005) 129 Cal.App.4th 706, 713. The presumption created by Civil Code section 2924 does not preclude actions alleging other defects in the foreclosure process. (See id. at p. 714.) For example, “[n]o statute creates a presumption—conclusive or otherwise—for any purchaser—bona fide or otherwise—that any recitals in a trustee’s deed render effective a sale that had no contractual basis.” (Ibid.) “The [Civil Code] section 2924 presumptions pertain only to notice requirements, not to every defect or inadequacy short of fraud.” (Ibid.)

  14. All readers:
    In Calif you cannot challenge the sale unless you file a separate action in which you seek quiet title, et al., and then move the court for a consolidation of the UD and the Superior Court case. If any need assistance call Mr. Nelson at 818-453-3585 immediately.

  15. This applies to my case that needs to go to scotus. The first court action was unlawful detainer. But wells flipped around dates to try to make it look like I started litigation.

    Sent from my iPhone


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