Foreclosure: Record Trustee’s Deed Before Serving 3-Day Notice

  When real property is purchased at a foreclosure sale, it is frequently necessary for the new owner to institute unlawful detainer proceedings to recover possession. Is it necessary for the Trustee’s Deed Upon Sale to record before a valid 3-day notice to quit is served?

  In Dr. Leevil, LLC v. Westlake Health Care Center, the California Supreme Court answered this question in the affirmative. In reversing the Court of Appeals, the Court held that duly perfected title, including the recording of the Trustee’s Deed Upon Sale, is required before a valid 3-day notice to quit may be served.

  Practice tip: after purchase at a foreclosure sale, duly perfect title and do not serve a 3-day notice to quit before the trustee’s deed records.


Unlawful Detainer: Personal Service of Notice to Quit Must Be Attempted; Post Foreclosure Plaintiff Must Prove Duly Perfected Title

  In an unusual move, the California Supreme Court ordered publication of an opinion issued by the Santa Clara County Superior Court, Appellate Division, in an limited jurisdiction unlawful detainer case: Bank of New York Mellon v. Preciado. The decision specified two errors in the unlawful detainer proceedings: 1) the proofs of service of the 3-day notice failed to show that personal service was attempted; 2) the post foreclosure plaintiff failed to prove its title was duly perfected. Each defect required reversal of the judgment and a new and different judgment in favor of defendants. Continue reading

Unlawful Detainer: Relief from Forfeiture Available After Default Judgment

  The Appellate Division, County of Los Angeles, holds that the trial court must exercise its discretion and consider the merits of a motion for relief from forfeiture made pursuant to Code of Civil Procedure section 1179, where plaintiff has obtained a default judgment in an unlawful detainer action. Continue reading

Unlawful Detainer: No Jury Trial Waiver for Failure to Deposit Court Ordered Damages

  There is a right to a jury trial in an unlawful detainer action, unless waived. A waiver may occur pursuant to Code of Civil Procedure section 631 only by:

1) Failure to timely demand a jury trial;
2) Failure to appear at trial;
3) By written consent;
4) By oral consent in open court, entered in the minutes;
5) By failing to announce that a jury is required, at the time the cause is first set for trial, if it is set upon notice or stipulation, or within five days after notice of setting if it is set without notice or stipulation;
6) By failing to pay jury fees as required by statute. Continue reading

Protecting Tenants at Foreclosure Act: No Private Right of Action

  In Logan v. U.S. Bank National Association the Ninth Circuit held that no private right of action exists under the Protecting Tenants at Foreclosure Act of 2009. Accordingly, the court affirmed the dismissal of a complaint seeking damages and injunctive relief against a bank that had filed an unlawful detainer action against the tenant of a former owner of foreclosed property. The Act is intended to provide a defense to bona fide tenants in eviction proceedings – it cannot be used offensively.

  I consult with clients and accept cases involving foreclosure and unlawful detainer proceedings, including available defenses under the Protecting Tenants at Foreclosure Act of 2009. For other types of cases I accept, please scroll my Home and My Practice pages. If you are seeking a legal consultation or representation, please give me a call at 818.971.9409. – Michael Daymude