Defend against an Unlawful Detainer action

Oct 20, 2023

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.

**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.

**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.

**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.

**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.

**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.

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

**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.

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

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

**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.

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