Monday, December 12, 2011

Eviction after the Foreclosure Auction and more

During my research, I came across this very good article amongst several written by Ralph Thompson on his website: 
Yeah, the website name isn't all...
Yet, he offers lots of good information and links. I may re-post a few more later on...

Eviction is Next Step after the Auction

Prepare early for your move to a new home. The new owner can start legal eviction procedures, which can only take a matter of days. A lawyer who is knowledgeable about foreclosure evictions could help delay the foreclosure sale and keep you in your house longer. I recommend you speak to a local attorney before the auction. (You can present your case, for free, by contacting LegalMatch.)
Filing bankruptcy will stop an eviction, even if your petition is filed minutes before the sheriff arrives. You will eventually be evicted--but it will be weeks, perhaps months later. Speak with a bankruptcy attorney to see if this option is appropriate in your case. (You may also want to read my page on Foreclosure Prevention with Bankruptcy for more information.)
After a judicial foreclosure you cannot be evicted during the redemption period. Redemption is discussed earlier.

(NOTE: If you think you were wrongfully foreclosed you may soon be entitled to a review and possible compensation.)

If you don't leave your house after it sells at a trustee's auction, the lender can have the sheriff evict you through a process called "unlawful detainer."
The unlawful detainer process is the same used by a landlord to evict a tenant--you are now a holdover tenant in the lender's house.

What is a notice to quit?

The purchaser at a foreclosure sale must serve the occupants with a Notice to Quit before filing an eviction lawsuit to gain possession of the property.
If the occupant is the former owner or a tenant of the former owner, a 3-Day Notice to Quit is required. If the notice period expires and the occupants have not left, then the new owner may then file an unlawful detainer. (The eviction process is different in each state).
Even having an eviction lawsuit filed against you can damage your credit. It may be better to leave voluntarily than face eviction. Many landlords and apartment managers will review your credit before accepting you as a tenant. You should monitor your credit score before looking for a new home. If your score is especially bad you may want to limit your search to small residential landlords who don't check credit.

Ask for time to move out

It doesn't hurt to ask for extra time to move out. If you have taken fairly good care of the house, the buyer may keep you on as a caretaker until the buyer's plans for the property can be finalized. If the buyer wants to remodel for instance, it could be several months before plans are approved. During that time the house will be vacant and an occupied house is less likely to be vandalized or have other problems. And be sure to ask for cash for keys!

Additional Protection for Renters

In a bill recently passed by Congress and signed by President Obama renters with month-to-month rental agreement must be given 90 days notice before they can be evicted. Renters with leases are allowed to stay in foreclosed home until their lease expires(unless the foreclosed property is sold to a bonafide purchaser, in which case they must be given 90-day notice.)
In 2008 the California legislature passed Senate Bill 1137. That bill gave tenants who are affected by foreclosure an additional 30 days notice before they could be evicted. They now must be given 60 days. This law however is superseded by the more stringent 90-day federal rule.

Considering a Short Sale?

A short sale can substantially reduce the amount of time you can live in your home. With a short sale, once your house is sold you need to move out so the new owners can move in. On the other hand, if you decide to let your lender foreclose you can't be evicted until your home has been auctioned. This can sometimes be many months after you stop paying your mortgage payment. Even after the auction, you may be able to negotiate "cash for keys" and get paid to move out. Remember a short sale can result in income taxes. Learn more here.If you have received a 1099C (reporting cancellation of debt income to the IRS) visit my tax resolution website to learn more about dealing with the IRS.

Fannie Mae and Freddie Mac Procedures

Two of the largest guarantors of mortgages, Fannie Mae and Freddie Mac, announced changes to their policy towards renters who are victims of foreclosure. The proposed plan is to let renters living in foreclosed houses to sign leases with Fannie or Freddie while the property is for sale. As a renter, you are allowed to either accept "cash for keys" or sign a new month to month rental agreement with Fannie Mae or Freddie Mac. They will not seek credit reports. Keep in mind, that you will either have to vacate the house when it is sold in foreclosure (or be evicted). You can find Fannie Mae's official policy at the bottom of this page (as a PDF attachment.)
Posted by Ralph Thompson on Thu, 07/14/2011 - 14:09
Sample 3-Day Notice Served After Foreclosure

Sample 3-day notice

This page has a sample 3-Day Notice. I've provided it to help lessen the shock if and when you should receive one. I know my client's find it very distressing when they are served with this document. The three-day notice is the first step of the eviction process, at least in California.

NOTICE IS HEREBY GIVEN THAT Peter Purchaser purchased the property located at 1234 Anywhere Street, Salinas, CA (“the Premises”) at a foreclosure/trustee sale held in accordance with California Civil Code Section 2924 on August 15, 2012, pursuant to the power of sale contained in a Deed of Trust recorded on September 8, 2007 as Instrument Number 12345 of Official Records of Sample County.

NOTICE IS FURTHER GIVEN THAT within three (3) days after service of this Notice on you, you are required to vacate and surrender possession of the Premises to the undersigned, who can be reached at (555)555-5555 on all business days, unless you provide evidence you are a bona fide tenant pursuant to Section 702(a)(2)(A) of the Federal “Protecting Tenants at Foreclosure Act of 2009 (“PTFA”) or are protected by Section 703 of the PTFA.

IF YOU ARE A TENANT of the prior owner, you must, within 72 hours, provide the following documents to the undersigned by mail, fax, or in person:
a. A return phone number with the best time to reach you; b. A copy of your rental agreement with the prior owner; c. The receipt for the last six (6) payments made to the landlord for the residence. Cancelled check or money orders can be provided instead of receipts. c. Copies of the last six (6) month’s utility bills.

IF, WITHIN THE APPLICABLE PERIOD SET FORTH ABOVE, either you fail to surrender possession or fail to provide evidence that you are a bona fide tenant pursuant to Section 702(a)(2)(A) of the “PTFA” or are protected by Section 703 of the “PTFA”, the undersigned will commence eviction proceedings against you to recover possession of the Premises and for damages caused by your unlawful detainer of the Premises. This Notice is given pursuant to the provision of “PTFA” and California Code of Civil Procedure Sections 1161a, 1161b, and 1161c.

Date: August 16, 2012 /s/ Peter Purchaser

Proof of Service must be attached. You can find a sample Proof of Service here.

A 30-day notice is typically not used for a foreclosure eviction.

For the full article, go to: Eviction after the Foreclosure Auction


rojer rashi said...

Bankruptcy is a legal process that gives debtors relief from debts they cannot pay.two kinds of bankruptcy available for individuals and families – Chapter 7 and Chapter 13.Chapter 13 bankruptcy, debtors facing foreclosure may pay their mortgage arrearages over 3-5 years.filing Chapter 13 bankruptcy may be one way of stopping foreclosure.

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