The Tricky World of Unlawful Detainer and Eviction

It may be fairly said that in nonjudicial states, the banks take the greatest risk when they file, as Plaintiff, in an unlawful detainer action. It is the first time they are required to actually state their case, establish legal standing and ask for “relief.” They must plead and prove legal standing. The trap door is that they usually have no legal standing, the foreclosure sale was “private”, and the first time time their actions generally come under judicial review is in the judicial procedure leading to eviction.

It is in these cases that the banks will fight any semblance of real discovery because if they complied they would revealing the fraudulent nature of their actions. Below is one homeowner’s response to objections to discovery filed by “U.S. Bank, as trustee” etc.

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The lawyer’s who file unlawful detainer actions do so on behalf of a party that probably doesn’t exist. They have already held a private sale of the property on behalf of the same party as successor beneficiary. That party still doesn’t exist, and the sale is both void and fraudulent. They have already filed a Substitution of Trustee on behalf of the false successor beneficiary which is also false and fraudulent. And they have sent a Notice of Default and Notice of Sale all for the same nonexistent entity — or at the very least an entity that has no interest in the alleged loan contract, the note or the mortgage or deed of trust.

Somehow the lawyers get a court of law to treat the private sale as a judicial act, and thus apply doctrines of claims preclusion (res judicata, collateral estoppel, Rooker Feldman). This puts the homeowner in the position of having his claims of fraud either precluded or ignored. Nonjudicial sale is by very definition a private act that does not involve the judiciary.

It is in that context that you will see the battle formed. Here is a well written response to the “objections” to discovery filed by the “bank.” A careful reading will reveal the inherent weaknesses in all such nonjudicial foreclosures — especially those performed in the name of an “unidentified trust.” The usual practice is to either exclude the word “trust” from the name of the “successor” beneficiary or to insert the word “trust” in a place that does not necessarily mean that an existing trust has been identified.

see DF Reply to PL Opp to Motion to Compel

The names have been changed to protect privacy of the homeowner.

Note that in judicial states, these are the same issues except that a homeowner MUST raise the issues in defense of the foreclosure complaint filed by the lawyers who are asserting they represent a Plaintiff that either does not exist or that has no interest in the alleged loan contract, note or mortgage.

Practice Note: Some lawyers argue, and I think I agree, that a homeowners is theoretically better off NOT contesting the private nonjudicial sale and saving his ammunition for the unlawful detainer action. That strategy is based upon the fact that in the context of the private foreclosure sale, the homeowner has the burden of pleading and proving a case against foreclosure in a court predisposed to presuming the validity of the void notices etc.

In the unlawful detainer the burden pleading and proof shifts from the homeowner to the lawyers who are pursuing removal of the homeowner.

Therefore, there is a good strategical argument for waiting until the “party” seeking foreclosure must allege the facts supporting its case. The people who argue for this strategy point out that the right to seek a TRO prohibiting the sale is illusory. It puts the homeowner in the position of defending against allegations that have not been written filed or even asserted. It is the legal equivalent of shadow boxing.

Public Policy: My opinion is that when a foreclosure becomes contested, the parties should be realigned. That means the Defendant becomes the Plaintiff and must file a claim which can be admitted or denied or defended by the homeowner. The current nonjudicial foreclosure process is in my option, a denial of due process —requiring the homeowner to prove what would have been alleged by the foreclosing party, and then defending those allegations. I have long held that nonjudicial foreclosure is currently unconstitutional in its application.

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