California Post Foreclosure Eviction Defense Overview

If you have been served with a Notice to Quit, received a notice from court that an unlawful detainer has been filed, or received an unlawful detainer after your recent California foreclosure, it is important to act immediately.

Under the California Court of Appeals Case Malkoskie v. Option One Bank (2010) 188 CA4th 968, it is arguable that any judgment for eviction will certify the propriety of your foreclosure, and prevent you from bringing a later suit (per a legal doctrine called res judicata). Because an eviction by the bank to remove you from the home requires the bank to prove that it got title from its foreclosure, if the court holds that the bank may evict you, it is inherently okay-ing the eviction, which means you MUST raise these defenses in the unlawful detainer or you will be without further recourse.

The legal process involved in evicting you from your home requires the bank to go through many steps, and is not an immediate result. If you get a 3 day notice, it may still be another 8 weeks before the sheriff shows up to evict you. Those steps are:

1. NOTICE: before any eviction suit may be filed against you, the proper notice must be given to you. If you are the foreclosed owner, 3 days are required. If you are a tenant, at least 90 days is required, or the duration of any written lease in effect. (However you must still pay rent to the new owner).

2. FILE a lawsuit in court.

3. SERVE: the lawsuit must be served on you personally or by proper substitute service. This process can take from 1 day to two weeks, depending on whether you are available for personal service.

4. REPLY: 5 days after you are served, you must file your response. That time is increased by 5 days if you are not personally served, but service is done another way. IF YOU HAVE A WRONGFUL FORECLOSURE DEFENSE, IT MUST BE INCLUDED HERE!

5. DISCOVERY: Once your answer is on file, you will have the opportunity to demand proof of the bank's case. This is where it is very important to force the bank to prove its foreclosure was proper. Discovery is a broad topic, so be sure to follow up your research on it separately. Many forms are available online. (If you do not demand discovery, the bank will file its form filings which will be likely accepted by the judge.)

6. SETTLEMENT OR TRIAL: Before trial, you will be sent for mandatory settlement conference. Usually, the new owner will offer time, money, or both, to get you to leave voluntarily. The trial can happen as soon as three weeks from your reply (see 4 above), so this process moves very fast.

7. POST TRIAL OPTIONS: If you do not settle, and then lose your trial, you will have the opportunity to ask for a 40 day stay of execution of judgment for hardship, appeal the judgment, and possibly apply for a stay pending appeal. (If you did not raise any valid defenses to the case, your appeal will not likely have any merit.)

8. REMOVAL BY WRIT: Finally, if you pass on post trial options, and have lost your case, the court will direct the sheriff to remove you. Depending on your county, this can take up to two weeks, as the sheriff's offices usually process these only on certain days, and have a busy schedule. The sheriff's office usually warns you when this is going to happen.

In sum, your 3 Day Notice to Quit is the first among many warnings you get before the sheriff removes you. It can take up to 8 weeks after this, and you could possibly win the case if you have a valid defense to the title from foreclosure. If you file a valid appeal and are granted a stay, you could stay in the property another year plus or minus, with payment of monthly rental bond. Finally, if you have a case for wrongful foreclosure, you may be able to stay the bank's eviction case for the entire duration by moving for consolidation. It is always advisable to talk to a lawyer BEFORE this process begins, so if you have received a 3 day notice, it is vital to act fast.

Michael Patrick Rooney, Esq. is an attorney, licensed broker, and notary public in San Francisco, CA. He practices consumer protection law, with a major focus as a California wrongful foreclosure attorney. His website is

This article was published on 22 Jun 2013 and has been viewed 640 times
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