Breaking it Down: What to Say and Do in an Unlawful Detainer or Eviction

Homeowners seem to have more options than they think in an unlawful detainer action based upon my analysis. It is the first time in a nonjudicial foreclosure where the foreclosing party is actually making assertions and representations against which the homeowner may defend. The deciding factor is what to do at trial. And the answer, as usual, is well-timed aggressive objections mostly based upon foundation and hearsay, together with a cross examination that really drills down.

Winning an unlawful detainer action in a nonjudicial foreclosure reveals the open sores contained within the false claims of securitization or transfer.

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THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

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HAT TIP TO DAN EDSTROM

Matters affecting the validity of the trust deed or primary obligation itself, or other basic defects in the plaintiffs title, are neither properly raised in this summary proceeding for possession, nor are they concluded by the judgment.” (Emphasis added.) (Cheney v. Trauzettel (1937) 9 Cal.2d 158, 159-160.) My emphasis added

So we can assume that they are specifically preserving your right to sue for damages. But also, if they still have the property you can sue to get it back. If you do that and file a lis pendens they can’t sell it again. If a third party purchaser made the bid or otherwise has “bought” the property you probably can’t touch the third party — unless you can show that said purchaser did in fact know that the sale was defective. Actual knowledge defeats the presumptions of facially valid instruments and recorded instruments.

The principal point behind all this is that the entire nonjudicial scheme and structure becomes unconstitutional if in either the wording of the statutes or the way the statutes are applied deprive the homeowner of due process. Denial of due process includes putting a burden on the homeowner that would not be there if the case was brought as a judicial foreclosure. I’m not sure if any case says exactly that but I am sure it is true and would be upheld if challenged.


It is true that where the purchaser at a trustee’s sale proceeds under section 1161a of the Code of Civil Procedure he must prove his acquisition of title by purchase at the sale; but it is only to this limited extent, as provided by the statute, that the title may be litigated in such a proceeding. Hewitt v. Justice’ Court, 131 Cal.App. 439, 21 P.(2d) 641; Nineteenth Realty Co. v. Diggs, 134 Cal.App. 278, 25 P.(2d) 522; Berkeley Guarantee Building & Loan Ass’n v. Cunnyngham, 218 Cal. 714, 24 P.(2d) 782. — [160] * * * In our opinion, the plaintiff need only prove a sale in compliance with the statute and deed of trust, followed by purchase at such sale, and the defendant may raise objections only on that phase of the issue of title

So the direct elements are laid out here and other objections to title are preserved (see above):

  • The existence of a sale under nonjudicial statutes
  • Acquisition of title by purchase at the sale
  • Compliance with statutes
  • Compliance with deed of trust

The implied elements and issues are therefore as follows:

  • Was it a Trustee who conducted the sale? (i.e., was the substitution of Trustee valid?) If not, then the party who conducted the sale was not a trustee and the “sale” was not a trustee sale. If Substitution of Trustee occurred as the result of the intervention of a party who was not a beneficiary, then no substitution occurred. Thus no right of possession arises. The objection is to lack of foundation. The facial validity of the instrument raises only a rebuttable presumption.
  • Was the “acquisition” of title the result of a purchase — i.e., did someone pay cash or did someone submit a credit bid? If someone paid cash then a sale could only have occurred if the “seller” (i.e., the trustee) had title. This again goes to the issue of whether the substitution of trustee was a valid appointment. A credit bid could only have been submitted by a beneficiary under the deed of trust as defined by applicable statutes. If the party claiming to be a beneficiary was only an intervenor with no real interest in the debt, then the “bid” was neither backed by cash nor a debt owed by the homeowner to the intervenor. According there was no valid sale under the applicable statutes. Thus such a party would have no right to possession. The objection is to lack of foundation. The facial validity of the instrument raises only a rebuttable presumption.

The object is to prevent the burden of proof from falling onto the homeowner. By challenging the existence of a sale and the existence of a valid trustee, the burden stays on the Plaintiff. Thus you avoid the presumption of facial validity by well timed and well placed objections.

” `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. [Citation.]’ (Vella v. Hudgins (1977) 20 Cal.3d 251,255, 142 Cal.Rptr. 414,572 P.2d 28; see Cruce v. Stein (1956) 146 Cal.App.2d 688,692,304 P.2d 118; Kelliherv. Kelliher(1950) 101 Cal.App.2d 226,232,225 P.2d 554; Higgins v. Coyne (1946) 75 Cal.App.2d 69, 73, 170 P2d 25; [*953] Nineteenth Realty Co. v. Diggs (1933) 134 Cal.App. 278, 288-289, 25 P2d 522.) One who subsequently purchases property from the party who bought it at a trustee’s sale may bring an action for unlawful detainer under subdivision (b)(3) of section 1161a. (Evans v. Superior Court (1977) 67 Cai.App.3d 162, 169, 136 Cal.Rptr. 596.) However, the subsequent purchaser must prove that the statutory requirements have been satisfied, i.e., that the sale was conducted in accordance with section 2924 of the Civil Code and that title under such sale was duly perfected. {Ibid.) ‘Title is duly perfected when all steps have been taken to make it perfect, i.e. to convey to the purchaser that which he has purchased, valid and good beyond all reasonable doubt (Hocking v. Title Ins. & Trust Co, (1951), 37 Cal.2d 644, 649 [234 P.2d 625,40 A.L.R.2d 1238] ), which includes good record title (Gwin v. Calegaris (1903), 139 Cal. 384 [73 P. 851] ), (Kessler v. Bridge (1958) 161 Cal.App.2d Supp. 837, 841, 327 P.2d 241.) ¶ To the limited extent provided by subdivision (b){3) of section 1161a, title to the property may be litigated in an unlawful detainer proceeding. (Cheney v. Trauzettel (1937) 9 Cal.2d 158, 159, 69 P.2d 832.) While an equitable attack on title is not permitted (Cheney, supra, 9 Cal.2d at p. 160, 69 P.2d 832), issues of law affecting the validity of the foreclosure sale or of title are properly litigated. (Seidel) v. Anglo-California Trust Co. (1942) 55 Cai.App.2d 913, 922, 132 P.2d 12, approved in Vella v. Hudgins, supra, 20 Cal.3d at p. 256, 142 Cal.Rptr. 414, 572 P.2d 28.)’ ” (Stephens, Partain & Cunningham v. Hollis (1987) 196 Cai.App.3d 948, 952-953.)
 
Here the court goes further in describing the elements. The assumption is that a trustee sale has occurred and that title has been perfected. If you let them prove that, they win.
  • acquisition of property
  • regularly conducted sale
  • duly perfecting title

The burden on the party seeking possession is to prove its case “beyond all reasonable doubt.” That is a high bar. If you raise real questions and issues in your objections, motion to strike testimony and exhibits etc. they would then be deemed to have failed to meet their burden of proof.

Don’t assume that those elements are present “but” you have a counterargument. The purpose of the law on this procedure to gain possession of property is to assure that anyone who follows the rules in a bona fide sale and acquisition will get POSSESSION. The rights of the homeowner to accuse the parties of fraud or anything else are eliminated in an action for possession. But you can challenge whether the sale actually occurred and whether the party who did it was in fact a trustee. 

There is also another factor which is whether the Trustee, if he is a Trustee, was acting in accordance with statutes and the general doctrine of acting in good faith. The alleged Trustee must be able to say that it was in fact the “new” beneficiary who executed the substitution of Trustee, or who gave instructions for issuing a Notice of Default and Notice of sale.

If the “successor” Trustee does not know whether the “successor” party is a beneficiary or not, then the foundation testimony and exhibits must come from someone who can establish beyond all reasonable doubt that the foreclosure proceeding emanated from a party who was in fact the owner of the debt and therefore the beneficiary under the deed of trust. 

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22 Responses

  1. THIS IS WHAT HAPPEN TO US. Our house was non judicially foreclosed despite THERE IS a pending law suit to litigate foreclosure. The bank or the servicer threatened us with eviction after the non judicial foreclosure. We moved out not to take any chances of being homeless. The bank-assigned real estate agent entered the house and now the house is put out in the market for sale. We are afraid to file lis pendens as the bank or the servicer may say that it is to slander title even though there are defects in the assignment of mortgage and irregularities, controversies and violations in the Pooling and Servicing Agreement of the Trust. Somehow they were able to file foreclosure deed with the town, perhaps, with affidavits. The whole thing looks fraudulent and may involve bribery..

    Could we file damages for ejecting us from our home unlawfully or get the house back? We could not get an attorney as we don’t have the fee they are asking for. Please help and guide us. Thank you.

  2. I complained to cfpb they just exchanged letters if group of us go to congress who already know the game of the servisers. I am so drained out oh how system so clustering encouraging complicated episodes! I agree we should not just walk away even if we don’t win, I’m not good in standing up by myself alone

  3. […] via Breaking it Down: What to Say and Do in an Unlawful Detainer or Eviction — Livinglies’s Webl… […]

  4. My last comment was directed at Mr. nadianasrawi ‘s ” Wolf in a sheep clothes! ” statement.

    If everyone walked away like docile sheeple, who will fight the injustice and fraud that is being committed everyday.

  5. You obviously do not know the meaning of the word “home” or “homeless” to make a statement so callously flip.

    This is not something where a calculator determines ” fight or flight”.

    This is about theft.

    The judicial protection of “property liberties” under the “due process” clause.

  6. I don’t know anything about your lawyer or his handling of your case so I won’t comment on that. I say this because sometimes people have good lawyers, but expect a miracle when they don’t have a case. That puts the lawyer in a funny position – do you tell them “no” and get called every name in the book, or do you take the case and probably lose, and get called every name in the book? Hobson’s choice.

    I may be banned from commenting for saying this – but it is simply false that “everyone” facing a foreclosure has a defense to it. You need rare facts. If you’re in default, buh-bye, unless you’ve got some really compelling explanation for that, in addition to facts which support an actual cause of action against the foreclosing entity. It’s not enough to say “they’re all fraudulent and robosigning and banksters and false notaries”.

    Pain and suffering isn’t a cause of action, it is a kind of damages which attaches to tort causes of action. In the foreclosure context that would be something like negligence or fraud. Fraud is actually very hard to prove.

    Anyway, I wish you the best of luck

  7. Thank the real leader and guidance Mr Neil Garfield Thank you David for your generousity and kindness and answering our questions.
    Have happy safe holiday best wishes for 2018 years

  8. How about suing them for pain and suffering!

  9. Thank you David! I couldn’t find competent lawyer! There was few referral by prepaid legal shield was mistake to rely on them last lawyer I retained him $4k Mark Gallagher was acting to buy the house back busy to find out how I’m gonna get the cash the Sherrif proudly kicked us out this lawyer has no name on my case in the court and till the last day was telling me “just find place for couple days, till u come back, I wanna come and see the house”, the house was locked has sign no trespassing!

  10. @nadianasrawi – That’s a very good point – everyone contemplating litigating against a big bank over a foreclosure needs to engage in a cost-benefit analysis. If you don’t have equity, and if you can’t find a competent lawyer for a reasonable amount, then perhaps you need to think about whether it makes sense to start the litigation. And you need to have a lawyer who will tell you what your odds are of winning, because there are no universal defenses to foreclosure, and you need extraordinary facts to have a chance at it. I know of people who had zero equity, spent tens of thousands on lawyers, lost, and are still licking their wounds. I know others who just moved on and got on with their lives, and are ok. I’m not saying don’t fight, but be careful about whether it is a battle worth fighting.

  11. Wolf in a sheep clothes! If retaining might cost as much more than the equity of the house then what is the wise direction to continue

  12. I never got my day in court despite hiring 2 attorneys. I live on SS Disability now. Attorney? An impossibility on $800 a month.

    I’m not denying the sale happened, I only know too well that it did when the Sheriff unceremoniously escorted me off my property and then helped himself to my personal belongings.

    Isn’t a foreclosure sale illegal when fraudulent documents have been used to procure that sale? And while working with HUD and my servicer in the midst of loan modification negotiations? Dual tracking?
    How about a statement from the “servicer” announcing my loan was paid off? Or the statement where thousands of dollars in payments went into some little “Unapplied Funds” account? I could go on and on but why should I, it doesn’t matter to anyone but me, and I’m nobody.

    I don’t have the means to sue the Texas billionaire that stole my home and was never my lender. The man who laughs at the judicial system because the law doesn’t apply to him. Those laws are conveniently twisted into something recognizable as double talk for the double standard that has laid waste to millions of lives and it will continue on it’s poisonous path of devastation. Why? Because they can.

    I just wanted a straight answer to my simple questions on the legalities of those documents. Nothing more.

  13. kevin what is your contact info? Can u help in Georgia?

  14. I’ll just add that while this post does disclaim that it isn’t legal advice, when I read this I can’t help but thinking that many people are going to think that now they have to allege in their UD defense case that the “sale didn’t exist” and that the “trustee didn’t exist” or “wasn’t properly appointed.” That of course isn’t the intent of the article, but pro se litigants (and crappy lawyers) will take it that way.

    Sort of like how EVERYONE after the Yvanova Supreme Court case started alleging they had “void assignments.” That didn’t pan out for them.

    There is no one-size-fits-all approach that will make you win your legal case. You need to hire competent counsel who can figure out what the best approach is for your case. Alleging the “sale didn’t exist” when it clearly did, is just going to make one look crazy and stupid. Which aren’t helpful, I might add.

  15. Arizona Home of 25 years Foreclosed – Profile: female, 65, single

    1. Would the Substitution of Trustee doc (naming Quality Loan as Trustee) be valid if the Notary didn’t exist, (per affidavit from SOS Texas)?

    2. Would the sale of the property be valid?

    3. Would the Corporation Assignment Of Deed Of Trust be a valid doc if the Corporation was not a legal entity when notarized?

    Thank you Mr. Garfield, for being so tenacious and for being a good man. I’ve been a follower for over ten years. The pain never stops. Multiplied by fifteen million…too much pain to fathom.

    Gets a little dark this time of year.

  16. First of all, I completely agree that California’s summary nonjudicial foreclosure followed by summary eviction scheme has due process problems. I recently filed a cert petition with the SCOTUS arguing that it violated Due Process provisions of the US Constitution under the 5th and 14th Amendments. Petition denied.

    To date, there is no legal authority which holds that such is a due process violation. You can make the argument. But until that authority exists, don’t expect it to get you anywhere in court.

    Also, take a look at the case cites above. You’ll see no citations to recent (past ten years) cases cited above. That is because, despite the number of homeowner cases filed, those victories are rare and the cases don’t exist.

    Essentially the only defense to a post-foreclosure UD action is to allege title was not duly perfected. But aside from rare victories such as the unpublished Wedgwood case, one should understand the odds are against you.

    There are actual legal presumptions that foreclosure sales were conducted properly once there is a Trustee’s Deed, under California law. So, as a homeowner, you will most definitely have the burden of overcoming that presumption, because that presumption and a certified copy of the TDUS will essentially meet the new owner’s burden of proof.

    Anyone who tells you they are winning post-foreclosure UD cases with regularity and that it can be done with regularity it selling you snake oil.

    If you have a case, best to fight it early on, and to have COMPETENT counsel early on, prior to the foreclosure sale, and to get things in motion well before that. This is if you want to save your house. If your goal is something else (e.g., wasting the next 5 years of your life playing victim on Facebook) then you may have other ideas and methods to achieve that.

  17. @Kevin Michael’s
    Does the unlawful detainer have to be filled before foreclosure happens?

  18. THIS IS ONE OF THE AFFIRMATIVE DEFENSES THAT I’VE CREATED AND USED TO EFFECTIVELY KEEP PLAINTIFFS FROM PROVING THEIR CASE. IT STOPS “BONA FIDE PURCHASERS” IN THEIR TRACKS.

    Defendant disputes a fact upon the existence or nonexistence of which depends the admissibility or inadmissibility of plaintiff’s evidence, namely the content of that certain Trustee’s Deed Upon Sale recorded on ___________, as document number____________, of the Official Records of ____________County.

    Such fact is, [all of those elements necessary to a valid sale exist for the reason that all recitals contained in a copy of a writing certified as a true and correct copy of the record described above, inclusive of but not limited to a recital that all requirements of law regarding the mailing of copies of notices and the posting and publication of copies of the notice of sale have been complied with, is admissible evidence of a statement that was made other than by a witness while testifying at a relevant hearing and that is offered to prove the truth of the matters stated, is not lacking foundation and is not assuming facts not in evidence.

    As a result of such dispute, defendant denies each material allegation of the complaint and requests the trial court pursuant to subdivision (a) of Section 451 of the Evidence Code take judicial notice of Sections 110, 115, 400,405 and 1200 of the Evidence Code, paragraphs 1 and 2 of subdivision (b) of Section 431.30 of the Code of Civil Procedure, paragraphs 3 and 4 of subdivision (a) of Section 2924 of the Civil Code, subdivision (c) of Section 2924 of the Civil Code, paragraph 1 of subdivision (b) of Section 2924f of the Civil Code and KESSLER V. BRIDGE (1958) 161 CAL. APP. 2D SUPP. 837, 841.

  19. I am sorry to hear what happened to you Leah Dean. Bank of America as default servicer and Ocwen trying to do the same thing to me using Bank of New York as Plaintiff and I am fighting these crooks in Court. I have just filed a motion for sanctions against them. You could have and should have fought them.

  20. LDTX
    My eviction took place back in April of 2015. Harris County Texas. I was evicted in a civil court. Stonecrest Acquisitions, a San Jose California investment company and their Stafford Texas Law Firm evicted me using a Deed Without Warranty Document that was notarized by a Arizona State Notary.

    I lost my home and the attorney for Stonecrest Acquisitions placed a $12,000.00 judgement against me.

    My Servicer Bank of America named Creditor as Bank of New York Mellon Trustee for Asset Backed Certificates as the Creditor. Shortly after Stonecrest Acquisitions sold the property to a Single female, I received a 1099-A Abandonment and Acquisitions form. EIN number on the form belongs to annuities held by Bank of America. The 1099-A form states Lender is Bank of America.

    The fraudulent crimes against me get deeper and I have a foreclosure and eviction on my credit. Bank of New York Mellon and Bank of America clearly did everything they could do to prosper and harm a individual’s way of life.

    I will never have the privilege of owning anything ever again.

  21. won over 30 unlawful detainers consecutively in California; at other places in US 18 in a row. all dismissed.

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