Self-Help Eviction: Don’t Even Think About It! Wrongful Foreclosure=Wrongful eviction

24 Jun

Posted on May 24, 2010 by Julie Brook

Here’s an all-too-common scenario these days: A property goes into foreclosure, the owner who buys the foreclosed property wants to evict the current tenants, who are living there lawfully. The owner decides to skirt the normal legal processes and engage in a self-help eviction. This is a very risky and potentially illegal course of action! Additionally when it is the lender evicting. If the foreclosure was Wrongful that makes the eviction Wrongful and substantial damages may be available as against the biggest banks in the world.

A self-help eviction can take many forms: changing the lock on a unit, adding a lock without providing keys to the tenant, cutting off utilities, and forcibly entering the rental unit and refusing to permit the tenant to reenter. These practices have one thing in common: to oust the tenant from possession without complying with the legal requirements for eviction.

California law is clear that an owner who has purchased property at a foreclosure sale cannot take possession after the foreclosure unless the occupants’ consent has been freely obtained or a judge has awarded possession following a court proceeding. See CCP §§1159-1179a. Also note that the law governing evictions after foreclosure is rapidly changing. In rent-controlled cities, the eviction of tenants of the borrower following foreclosure is prohibited unless the tenant defaults.

Unlawful self-help by a landlord or owner can result in

* Criminal penalties (see Pen C §§418, 602.5), and
* Actual and punitive damages (see Jordan v Talbot (1961) 55 C2d 597, 12 CR 488).

OwnerSecrets.com warns that self-help evictions can result in suits for the common law intentional torts of conversion, trespass to chattels, and trespass.

Self-help is never a good choice for evictions. Instead, evictions should always be handled through legal processes, generally by an unlawful detainer action, i.e., a fast, summary procedure that is generally limited to the issues of possession of the premises and associated damages.

On how to legally conduct a lawful eviction, see CEB’s online book Handling Unlawful Detainers and Landlord-Tenant Practice book (evictions following foreclosure are governed by both state and federal law and are covered in chap 8 of that book). On defending evictions, see CEB’s Eviction Defense Manual.

Also, check out our June programs on Representing Residential Landlords and Tenants in Unlawful Detainer Actions, which will be available On Demand beginning June 29th.

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3 Responses to “Self-Help Eviction: Don’t Even Think About It! Wrongful Foreclosure=Wrongful eviction”

  1. KH June 26, 2010 at 4:13 pm #

    I was served with an UD complaint, which I answered claiming the Trustee sale was invalid and should be void because it was held a day earlier than the postponed date posted on the Trustee’s web site. Under NRS 107.080 any sale held without proper notice can be voided by any court with comp. juris. Also I claimed the Trustee’s Deed had Fraud on it’s face, as it claimed the sale took place on the date stated in the NOS or on the properly postponed date (NOT TRUE). Furthermore I claimed the acts of grand theft, and conpiracy were comitted by the Trustee, the Bank and the auctioneer. These actions deprived me of my right to protect my property.
    In court the judge asked me to explain and in doing so, also present any supporting evidence I may have. I explained on the day the sale was to be originally held, I gave the auctioneer some docs, to be sent to the Trustee. Afterwhich I asked if the sale was postponed. The Agent replied yes.. but you’ll need to check the Trustee’s Site to see when the will be held. The Trustee’s Site stated the 1/4/10 sale was postponed, and the sale will be held on 1/6/10. The Trustee and the auctioneer both knew this, but the auction was held on 1/5/10, and without notice or bidders the bank was able to get the house below market value, easily.
    I showed the judge the info printed from the Trustee’s site, all three dates. The judge asked the bank’s attorney to comment. The attorney I don’t know anything about it. That pissed off the judge a little, and ordered the attorney to return in 2 weeks with a better response. Two weeks later, the only thing the attorney had to offer the judge was a disclaimer which states the info on their site may not be acurate (the place I was to get the info from, the source). The judge was going to grant the writ, until she asked if I had anything else to present… WOW good thing I filed a ch 13 BK, pro-se the day before..
    But now I fear the BK Trustee. Also I’m not sure I’ll be unable to handle the BK pro-se.
    Then what?
    Dist court to fight the sale, pro-se?

    Anybody like to help?
    Lord knows I need help.
    call me anytime 702.
    782_9159..

    Thanks everyone.
    Kevin, in Vegas

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  1. Timothymccandless's Weblog - July 10, 2010

    […] Self-Help Eviction: Don’t Even Think About It! Wrongful Foreclosure=Wrongful eviction […]

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