Defend against an Unlawful Detainer action

Alright, so you’ve found yourself facing an “unlawful detainer” order, which is often the next step after a foreclosure on a home. We are helping many clients in non-judicial states with this issue but it can also be a tactic to get you out of your home in states with a Judicial foreclosure process. This is a serious matter, so let’s talk about some defenses you might have.


  1. **Wrongful Foreclosure**: If you can show that the foreclosure itself was flawed, then you’ve got a strong defense against being kicked out. Obviously, Neil and I have spoken and written about basic defenses at length but in non-judicial states often the first time you can make an argument or defense is after the foreclosure sale.

Here’s why:

Non-judicial process barely makes it past the restrictions for due process and the additional restrictions on the conditions preceding the filing of a foreclosure action. Each state must provide a statutory scheme for both non-judicial process and judicial process. Sometimes there is an election to file under judicial process even when non-judicial process is available. But most of the time they file into non-judicial process because they can get away with murder.

Disregard what you read elsewhere about the procedure of non-judicial process. Most so-called experts will tell you that it starts with the Declaration of default. But that is not true. It starts with a notice of substitution of trustee on the deed of trust. In non-judicial States the closing of the transaction with the homeowner results in a deed to a trustee to hold as security for the alleged loan. The trustee may take instructions from a beneficiary under the deed of trust. The homeowner is the trustor. The beneficiary can only be a party who owns the underlying debt and has the legal Authority to enforce the note and lien.

The failure to contest the notice of substitution of trustee gives rise to an inference that the party referenced as the beneficiary in the notice is in fact a beneficiary — which is virtually never the case. There is no debt. It is possible to challenge the notice of substitution of trustee and add counts for mandatory and prohibitive injunctions.

But once a notice of default is served on the homeowner at most, certainly after a notice of sale is served on the homeowner, it is virtually impossible to litigate proactively against the actions of the fraudulent actors in a non-judicial foreclosure. Constitutionally, of course, there is nothing right with that practice. But it is a fact. But since nontraditional foreclosure does not require any pleadings or any allegations, the courts have held that there’s an adequate opportunity to raise all the issues that could’ve been raised proactively after the sale has been conducted. And many such cases have been successful as we have personally experienced.


  1. **Notice Issues**: Before they can evict you, they must give you proper notice. If they didn’t follow the rules, you may be able to fight the eviction.


  1. **Bankruptcy**: Filing for bankruptcy can temporarily stop the eviction process. But be careful, this can be a complex move and as with most good defense tactics should only be done with legal advice.


  1. **Redemption Rights**: In some states, you can actually buy back your property even after a foreclosure. If you have that right, and the time hasn’t run out, they can’t kick you out.


  1. **Ownership Confusion**: Sometimes, especially with mortgages being sold and transferred, the entity trying to evict you might not actually have the right to do so. Make them prove they own the loan and the property.


  1. **Servicemember Protections**: If you’re in the military, there are special rules that might give you more time or protection against eviction.


  1. **Rent-Control or Just-Cause Protections**: If you’re in an area with strong tenant protections, these rules might offer you some defenses even though you’re facing eviction after a foreclosure.


  1. **Lease Agreements**: If you were renting the home from the owner who was foreclosed upon, you might have rights under your lease.


  1. **Payment or Settlement**: If you can pay what’s owed or reach some sort of deal, you might be able to stop the eviction.


  1. **Errors in the Unlawful Detainer Action**: If there are mistakes in how they filed the paperwork or pursued the unlawfull detainer action, you can challenge those errors.


Remember, you’ve got rights, but you need to act quickly. Always consult a legal advisor to understand your options and the local laws that apply to your individual situation.

5 Responses

  1. This only applied in this case after the foreclosure took place and the “Bank” held title to the property and was evicting the former owner. Another reason we urge our clients to not wait til the eve of a foreclosure sale to defend yourself effectively; especially in a non-judicial state like Idaho.

  2. Examples of lack of any due from my personal experience:

    Michigan Judges Kent and Jarbou lied non-stop that fake corporation PennyMac Loan Services, LLC “collects its own debt” – which is not true and cannot be true under any circumstances because my transaction was sold as “VA loan” thus is must be some “trust” , “trustee” and “beneficiaries “

    PennyMac Loan Services, LLC is a fake company registered by Countrywide President Stanford Kurland as a single member LLC. To rent it’s name for a cohort of investment banks, hedge funds and fintech companies

    Kurland is dead since 2021, so PennyMac is a single dead member LLC. Yet, it’s name is still in use by the same investment banks and their hedge funds -and even by GSEs because banks invested do my money in fake advertisements about PennyMac as “big player”

    judges Jarbou and Kent denied all my requests for limited discovery even for inspection of my original documents despite my numerous requests.

    Instead Judge Jarbou used her position of power to extort from me payments for a fake corporation or give them my home.

    I was not given any opportunity to verify this alleged “debt” or even say a word

    This is not due process, it’s a mob action.

    Chicago Judge Coleman who has at least $4 million personal investment in my defendants Bank of America instantly denied my case with prejudice before I even served my defendants.

    When I asked her clerk for disclosures of judge Coleman personal interests with my other defendants, Coleman sent me two Marshals to scare and intimidate me at my home.

    Coleman’s total personal investments in the scheme are about $12 million. I leave aside a question where this judge with $250k taxpayers paycheck got these money from.

    Chicago Judge Patricia Spratt, wife of senior Appeal Court judge William Bauer instantly denied my Petition to vacate void judgement and deployed three sheriffs to kidnap me in her courtroom

    Spratt who was Bauer’s long term Secretary, lost her judicial election and was appointed on judicial seat by Bauer’s friend Justice Theiss on Anita Rivkin Carothers seat which suddenly became “vacant”

    Sprat paid $25k to Rivkin’s nephew Isaak Carothers (served in jail for bribes)

    And so on.

    It’s not about the law. It’s about the money.

    Judges are deployed to cover and promote this crime.

  3. Lance, the problem is – Judges who don’t care about any laws. They don’t even allow any discovery. The law is – one banker said so. Here is no due process. Judges fabricate its own facts and convert fabricated pieces of paper into free money and free homes for investment banks as revenues.

  4. Hi, the other option you have not pointed out in your assessment of the U.D. action is to get the case out of that corrupt venue by reclassification to your state or federal court for further litigation.

    In this regard you will not be subject to that action for which you will most certainly lose.

    Best Regards,

  5. Idaho has made the Unconstitutional Ruling
    ( Unconstitutional because it is a “Issue of the Facts” ), that, an Entity Does Not have to Prove it is the legitimate owner of the debt.
    As ruled in ( TROTTER v. BANK OF NEW YORK MELLON ).

Contribute to the discussion!