Unlauful detainer law and forclosure law collide

14 Responses to Unlauful detainer law and forclosure law collide

  1. Pharns Genece says:
    April 27, 2009 at 10:53 pm

    If I followed this correctly.. You can challenge the sale of your foreclosed home to a third party investor and possibly win…. Please tell me that what all that said..

    Reply
  2. Abby in CA says:
    June 20, 2009 at 12:14 pm

    If you just had an Unlawful Detainer case filed against you, you need to act very fast to fight it.
    Do not be afraid. Take Action. I fought and I had the 3 day notice to quit scotch taped to my door at the end of Oct. 2008. I am still in my home.

    Read this guide to help you.

    http://www.scribd.com/full/16401692?access_key=key-24ib1nw4hoa854uh33v8

    There are also some other legal documents I have posted in ScribD which may help you fight a UD (Unlawful Detainer).

    It is best to retain an attorney to assist with the UD.

    Tim McCandless is an extremely great attorney for foreclosure fraud issues.

    Reply
  3. JM says:
    December 5, 2009 at 12:53 am

    Timothy, do you help with Quo Warranto actions?

    Reply
  4. Anna Walker says:
    February 26, 2010 at 5:56 pm

    I need assistance in answering a summary Judgement. I have filed a motion for the lender to produce the note. I know you have a template for summary judgements. Do you have any examples of arguments that were used and were successful. Thanks Anna

    Reply
    • timothymccandless says:
      February 26, 2010 at 10:05 pm

      SUMMARY OF ARGUMENT
      This is an unlawful detainer proceeding under C.C.P. sec. 1161a after a trustee’s
      unlawful detainer action under C.C.P. sec 116la after a foreclosure sale: (I) that the
      sale.
      The sole issue is whether Plaintiff is entitled to possession of the Property. It is obvious that Plaintiff has NOT demonstrated in its moving papers and will demonstrate at the hearing that Plaintiff is not entitled to possession of the Property against Defendant, that Plaintiff property was not sold in accordance with Civil Code Section 2924, and that title has been duly perfected.
      MEMORANDUM OF POINTS AND AUTHORITIES
      A SUBSEQUENT PURCHASER FROM A PURCHASER AT A FORECLOSURE SALE CANNOT MAINTAIN AN UNLAWFUL DETAINER ACTION UNDER SUBDIVION 3 OF THE CODE OF CIVIL PROCEDURE SECTION 1161A
      Section 1161A is framed in terms of the events which may give rise to the cause of action had the persons against whom such actions may be brought. It is silent as to who may bring an action under the section. 67 Cal.App.3d 168.
      In Chenev v. Trauzettel, 9 Cal.2d 158 [69 P.2d 832] and Greene v. Superior Court, 51 Cal.App.3d 446 [124 Cal.Rptr.139], subdivision 3 of Section 1161a of the code of Civil Procedure can be maintained only by the immediate purchaser at the foreclosure sale. In Cheney, the action was brought by the purchaser at the foreclosure sale and in Greene, there had been no foreclosure sale.
      Exhibit “B” of Defendant’s Request for Judicial Notice shows that INDYMAC FEDERAL BANK quitclaimed to DEUTSCHE BANK. INDYMAC was the purchaser and NOT Deutsche.
      Real parties assert that to allow the action to be maintained by a subsequent purchaser from a purchaser at a foreclosure sale would alter [67 Cal.App.3d 169] the summary nature of the remedy. In Evans v superior Court, 67 Cal.App.3d 162, the court did not agree:
      “At common law the sole issue in an unlawful detainer action was the right to possession, a tenant being stopped to challenge his landlord’s claim of title. The essence of the statutory action, too, is a right to possession and remains summary in character; however,”…to the limited extent of proving deraignment of title [emphasis added] in the manner expressly provided for in the unlawful detainer statutes themselves the question of title not only may, but must be tried in such actions…” (Hewitt v Justice’s Court, supra, 131 Cal.app.439, 443). In an action pursuant to section 1161a, subdivision 3, title is in issue to the extent that plaintiff must prove that a sale was held in compliance with section 2924 of the Civil Code, and that title under such was duly perfected. (Kartheirser v. Superior Court, 174 Cal.App.2d 614 [345jP.2d 135].) Adding the additional requirement that a subsequent purchaser from the foreclosure sale purchaser prove his own acquisition of title from said foreclosure sale purchase no more destroys the summary nature of the proceedings than does the corresponding requirement that the landlord’s successor in estate prove his acquisition of such interest in proceeding pursuant to section 1161 of the code of Civil Procedure.”

      DEUTSCHE BANK acquired this property via a Quitclaim Deed [See Exhibit “G” of plaintiff’s Motion for Summary Judgment and Exhibit “B” of Defendant’s Request for Judicial Notice]. This was recorded in the County of Contra Costa Recorder on September 15, 2009. Plaintiff DEUTSCHE has never claimed the status of bona fide purchaser without notice, nor could a subsequent purchaser from a purchaser at a foreclosure sale assert such status against one in open and notorious possession of the premises. (Manig v. Bachman, 127 Cal.app.2d 216 j[273 P.2d 5961].
      Moreover, DEUTSCHE cannot prove their acquisition of title by purchase at the sale and that this title may be litigated in this proceeding pursuant to Code of Civil Procedure 1161a. There is an issue of title thus there is a triable issue of fact in this action.

      Reply
  5. deborah harper says:
    June 28, 2010 at 11:55 am

    my u.d. case involves a foreclosure proceedure.
    notice to tenants nit properly given. van nys superior denied demurrer incorrectly. three judges all uninformed and unknowledgeable re:notice not perfected. case now entering second appellate, appeal to be filed by 6/29/2010. we need case law briefs re: improper notice proceedure

    Reply

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  7. LAURIE MENDOZA says:
    September 7, 2010 at 10:22 am

    i would like to share with all of you something that happen today with me. i went through the unlawful detainer court. anything and everthing i did was denied by the judge. my answer to plaintiffs summons and complaint was followed by a motion to desmiss portions of my answer. the part of my answer that the plaintiff wells fargo bank, na was my affirmative defense. i filed an opposition to plaintiff motion to strike. the opposition was denied. the motion to strike was granted with out leave to amend. then i get an amended order that said i could amend but that came after i filed a motion to dismiss and the court gave me a little over 24 hours to amend my answer. a hearing for the motion to dismiss was held and denied. the plaintiff filed the request for a hearing on the unlawfu detainer so i filed a request for a hearing by jury. so plaintiff wells fargo filed the summary judgement with request to take judicial notice. so instead of filing a pleading i decided to argue the matter in front of the judge. when the hearing for summary judgement was on august 25 . i first asked the judge to recuse himself. that was denied. request for summary judgement was granted along with the judicial notice. the reason i asked the judge to recuse himself was i found at the court on the public computer for unlawful detainer that the attorney had a boiler plate for the motion to strike. i felt the commissioner and the attorney had a workling relationship that i did not trust.
    so on the 1st of september i got the orde granting summary judgement. on september 2nd the sheriff posted the writ and i have to be out of my house tomorrow at 6:01 am.
    i have a son who has mental illness. today its been a hard day for him. his papa, which is my father built my home in 1959. my son acted out today and the sheriff , sacramento, had to come to my home. the deputy’s were 2 women. we talked and they could see my son was quite adjutated. they the women officers called for backup just in case they needed it. another officer arrived in a plain white car but he was in uniform. the woman officer said to me oh this is the officer who will come to move you out tomorrow. after my son settled down i made the remark to the officer who will be by tomorrow. i stated to him you know you are not dealing with a tenant tomorrow you are dealing with a homeowner.this officer replied back oh i an eviction is a eviction and you have had at least ten days for this and you knew it was coming and besides he says i dont even hardley look at the eviciton i just enforce them. i told the officer you really should pay attention.
    bottom line and im sorry i am so long winded is the judges dont read the defendants pleadings and the officers dont care what kind of evictions. i asked the office to quit helping the banks to committ fraud. do only what your title is and u are to evict tenants for landlords and not homeowners for banks.
    tomorrow i wish would never come. my son and i will start living in my car. and i will not be here whe the officer comes to put me out. i never have benn homeless and i never had a evction. my son will be displaced and he is really confused right now. i will be glad when our voices are heard and things change for the best.
    sincerely
    laurie mendoza

    Reply
  8. Abby in CA says:
    September 7, 2010 at 10:47 am

    Laurie
    you can file an appeal to the writ.

    did you also file a larger fraud case? are you in California courts? where are you?

    what about filing bankruptcy? that may stop it cold…..

    contact blaqrubi@yahoo.com…talk to her….

    ps—go to the state welfare office…they should give you some emergency housing since you have disabled child

    Find your regional center (federal) welfare office…..

    PS—-disclaimer: I am not an attorney and not offering legal services or advice

    Reply
  9. LAURIE MENDOZA says:
    September 7, 2010 at 11:10 am

    hi abby
    im in fair oaks california right by sacramento. my son is 32. so hes not a child anymore. i just cat get my house acked im sitting here just in a stupor. how do you pack 40 years of your life up so quick? im just lost. can i ask you something abby? my son was not served. what does that have to do with any of this. im just having a hard time thinking right now.the uhul truck is due back in 3 hours. i have had it for 2 days. i just feel stuck. the sheriff is coming tomorrow at 6;01 AM
    laurie mendoza

    Reply
  10. Abby in CA says:
    September 7, 2010 at 11:19 am

    Laurie—my daughter is going into labor.

    I cannot call you right now…

    DO THIS—call the civil clerk….ask them how to pay for my time (by day or week)….you have to have cash.

    my friend down here in bay area paid for 4weeks after the writ…..so you can pay money to stave off sheriff coming tomorrow morning..

    HURRY and call civil clerk

    contact my friend Leslie at Blaqrubi@yahoo.com…..talk to her…

    Reply
  11. Ruth D. says:
    September 9, 2010 at 11:36 pm

    We are doing everything in our “neck of the woods” to fight this evil, and we have a bit of a testimony of what occurred in court today. We went to our Summary Judgement on an Unlawful Detainer hearing…BUT, what we had done 2 days ago seemed to turn the tides. We were desperate not to lose our home, so we filed to Remove to Federal Court…and we succeeded! There are certain criteria which have to be met in order to file a Federal Case (look them up in the Federal Rules of Civil Procedure, or FRCP). We attempted to include all of the criteria in our case. We brought up the issue of “Federal Question”, diversity/jurisdiction, issues of title and contract, all of which cannot nor will not be heard in a UD court…but will be heard in Federal court. I have copies of all of our docs to send to anyone who wishes to see what we have done. Our email is: rdeamicis@juno.com Of course, we still have to win the Fed Case, but at least this is a start. We need them to hear all the issues that are so relevant to a typical foreclosure case, and a Federal case my just be the place to do it…all without risking losing your home in the meantime! In Fast track or Rocket Docket UD courts, you most likely will not be heard…and then the Sheriff will come knocking on your door! Scary thought! There is something you can do! Even if you don’t go to the Federal Court…at least appeal! Don’t give up!
    Best Wishes to my Fellow Foreclosure Fighters, ~Ruth~

    Reply
    • CARRIE BEKKER says:
      September 11, 2010 at 12:58 pm

      Hi, Ruth. My husband and I are fighting a UD action, and our hearing is scheduled for Sept. 22. Rather than filing an answer, we filed a Demurrer and Plaintiff’s counsel is very pissed off (boohoo). I have been poring over various blogs and pleadings and the CA courts website as to how best to address defects in the Complaint, while at the same time drafting a Complaint in CA State Court for unlawful foreclosure, foreclosure fraud, bad faith, violation of CA laws, yadayadayada. Your strategy seems simpler and more effective, so I’d be very keen on seeing the documents that you prepared and filed. I’ve been a paralegal for 30 years and am not a lawyer, but i’ve got a pretty good grasp on the procedural and legal issues, as I’ve been researching them ever since we started battling the “bank” last summer. Many thanks for any assistance you can provide. We’re not leaving until/unless we have exhausted every possiblility. What’s happening to us homeowners is criminal, and we all must fight or Corporate America wins. We must let that happen. The banks and servicers sell fear, but we don’t have to and SHOULD NOT buy it; it’s a smokescreen, and they’re betting they know more than we do. Au contraire, mon frere. I have three sayings that I live by: ” What would you attempt to do if you could not fail?” “Tough times don’t last but tough people do” and “Never, ever, ever give up” (Winston Churchill).

      All the best,
      Carrie

      Reply

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