Eviction defense no declaration no valid sale no eviction

30 Mar


Plaintiff claims they have complied with civil code 2924 in paragraphs 4 thru 7 of their complaint that they have met the burden of proof in that a sale had occurred and the trustees Deed establishes this presumption that the sale was “duly Perfected” and Civil Code 2924 has been complied with.
Defendant would claim that they have not defendant will submit to the court a certified copy of the Notice of Trustees Sale and ask the court to take judicial notice of said document.
If the Trustees sale had occurred prior to Sept 6,2008 plaintiff would prevail but for other procedural defects in the assignment of the Deed of Trust in Civil code 2932.5 prior to sale.
For our purposes we need not look any farther than the Notice of Trustees Sale to find the declaration is not signed under penalty of perjury; as mandated by new Civil code 2923.5. (c) . (Blum v. Superior Court (Copley Press Inc.) (2006) 141 Cal App 4th 418, 45 Cal. Reptr. 3d 902 ) This lender did not adhere to the mandates laid out by congress before a foreclosure can be considered duly perfected.
As a general rule, the purpose of the unlawful detainer proceeding is solely to obtain possession, and the right to possession is the only issue in the trial. The title of the landlord is usually not an issue, and the tenant cannot frustrate the summary nature of the proceedings by cross-complaints or affirmative defenses.
A different rule applies in an unlawful detainer action that is brought by the purchaser after a foreclosure sale. His or her right to obtain possession is based upon the fact that the property has been “duly sold” by foreclosure proceedings, CC1161a (b) (3) and therefore it is necessary that the plaintiff prove each of the statutory procedures has been complied with as a condition for seeking possession of the property.
When the eviction is by a bona fide bidder at the sale the defendant has no defenses to eviction. However as in this case a beneficiary that is the plaintiff in the unlawful detainer action must prove that it has duly complied with each of the statutory requirements for foreclosure, and the trustor can put these questions in issue in the unlawful detainer proceeding. Miller and Star 3rd 10:220.

4 Responses to “Eviction defense no declaration no valid sale no eviction”

  1. Cindy April 9, 2009 at 5:37 pm #

    Please send me a copy of the legal document that I can use as a defense to my UD.
    thanks. If there is an attorney who get’s it in the SF bay area that is available (and willing) to take my case on contingency, please call 831-431-7272. Approximately $400k in equity. WAMU foreclosed without NOD, NOS, without providing an accounting per order of the Fed Court.

  2. TG June 25, 2009 at 8:15 am #

    Thanks! Judgement in our favor @ UD trial.

  3. Kevin January 15, 2010 at 12:34 pm #

    Hello Tim,
    I need somebody you can assist me. I live in LV, NV. I’ve posted some questoins on Livinglies website under http://livinglies.wordpress.com/foreclosure-defense-forms/letters-and-notices/
    My house was scheduled to be auctioned off 1/4/10 the Trustee postponed the sale til 1/6/10, but held the sale on 1/5/10 w/o notice to any parties of interest. Therefore the bidders who were told on 1/4 to return on 1/6 were not able to bid and the bank now owns my house, (BY THEFT in my opinion).
    Anybody who can assist me please contact me A.S.A.P.

    Thank you very much.

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