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The Lender has already foreclosed on your house at the time they bring a Unlawful Detainer action against you. The Unlawful Detainer is just an eviction and not a foreclosure proceeding. If you want to stop the eviction, you have to claim that they have no right to evict because of a defective deed due to fact that they are not true lender, etc.
A qualified exception to the rule that title cannot be tried in an unlawful detainer proceeding [see Evid Code § 624; 5.45[c]] is contained in CCP § 1161a. By extending the summary eviction remedy beyond the conventional landlord-tenant relationship to include purchasers of the occupied property, the statute provides for a narrow and sharply focused examination of title.
A purchaser of the property as described in the statute, who starts an unlawful detainer proceeding to evict an occupant in possession,must show that he or she acquired the property at a regularly conducted sale and thereafter “duly perfected” the title [CCP § 1161a; Vella v. Hudgins (1977) 20 C3d 251, 255, 142 CR 414, 572 P2d 28 ]. To this limited extent, as provided by the statute, title
may be litigated in the unlawful detainer proceeding [ Cheney v. Trauzettel (1937) 9 C2d 158, 159, 69 P2d 832 ].
CCP § 1161
1. In General; Words and Phrases
Term “duly” implies that all of those elements necessary to valid sale exist. Kessler v. Bridge (1958, Cal App Dep’t Super Ct) 161 Cal App 2d Supp 837, 327 P2d 241, 1958 Cal App LEXIS 1814.
Title that is “duly perfected” includes good record title, but is not limited to good record title. Kessler v. Bridge (1958, Cal App Dep’t Super Ct) 161 Cal App 2d Supp 837, 327 P2d 241, 1958 Cal App LEXIS 1814.
Title is “duly perfected” when all steps have been taken to make it perfect, that is, to convey to purchaser that which he has purchased, valid and good beyond all reasonable doubt. Kessler v. Bridge (1958, Cal App Dep’t Super Ct) 161 Cal App 2d Supp 837, 327 P2d 241, 1958 Cal App LEXIS 1814.
The purpose of CCP 1161a, providing for the removal of a person holding over after a notice to quit, is to make clear that one acquiring ownership of real property through foreclosure can evict by a summary procedure. The policy behind the statute is to provide a summary method of ouster where an occupant holds over possession after sale of the property. Gross v. Superior Court (1985, Cal App 1st Dist) 171 Cal App 3d265, 217 Cal Rptr 284, 1985 Cal App LEXIS 2408.
Construction, Interpretation, and Application
This section extended the former statute to permit persons not in the relationship of landlord and tenant to maintain an action in unlawful detainer. Hewitt v. Justice’s Court
of Brooklyn Township (1933, Cal App) 131 Cal App 439, 21 P2d 641, 1933 Cal App LEXIS 731.
Under this section, which was added to the code in 1929, an action in unlawful detainer by a purchaser at a trustee’s sale under a deed of trust is a proper proceeding to
remove persons from the demised premises; and, the remedy being purely statutory, if the determination of the question of title to realty becomes necessary, the legislature
had the right to provide for the trial of that issue in such a proceeding. Nineteenth Realty Co. v. Diggs (1933) 134 Cal App 278, 25 P 2d 522, 1933 Cal App LEXIS 54.
In an action to recover possession of premises under this section, the record title owner is sufficiently the owner, notwithstanding that he holds title as trustee for some other
person, to maintain the suit. Kraemer v. Coward (1934, Cal App) 2 Cal App 2d 506, 38 P2d 458, 1934 Cal App LEXIS 1455.
This section does not create a new right and an exclusive remedy to enforce it, but merely creates a new remedy without excluding the old remedy of ejectment where it
may apply. Mutual Bldg. & Loan Asso. v. Corum (1934, Cal App) 3 Cal App 2d 56, 38 P2d 793, 1934 Cal App LEXIS 1138. This section does not apply to a quiet title action. Duckett v. Adolph Wexler Bldg. &Finance Corp. (1935) 2 Cal 2d 263, 40 P2d 506, 1935 Cal LEXIS 321.
This section, which extends the summary remedy of unlawful detainer to certain cases where property has been sold, has no application where the party in possession raises
complete issues as to title and the right of possession in an action to quiet title in a courtof equity; and under such circumstances the court has power not only to decide the
issues presented but to carry its decrees into effect, and it may grant relief by directingthe issuance of a writ of possession even though another and different remedy might
have been available had an action to quiet the title not been brought. Furlott v. Security-First Nat’l Bank (1936, Cal App) 14 Cal App 2d 118, 57 P2d 952, 1936 Cal App LEXIS
This section is not unconstitutional. St. George v. Meyer (1937) 9 Cal 2d 161, 69 P2d
993, 1937 Cal LEXIS 373.
The unlawful detainer statutes, including CCP 1161 of this section are purely statutory remedies created by the legislature; hence, it is competent for the legislature to
determine the scope of the issues that may be tried in such an action. Altman v. McCollum (1951, Cal App Dep’t Super Ct) 107 Cal App 2d Supp 847, 236 P2d 914, 1951 Cal App LEXIS 1990.
CCP 1161a, governing unlawful detainer proceedings, does not require a defendant to litigate, in a summary action within the statutory time constraints, a complex fraud claim
involving activities not directly related to the technical regularity of a trustee’s sale. Vella v. Hudgins (1977) 20 Cal 3d 251, 142 Cal Rptr 414, 572 P2d 28, 1977 Cal LEXIS 192.
So long as a person’s possession of real property is achieved through the landlord tenant relationship, unlawful detainer may be properly used to regain possession in the
event of the tenant’s default (CCP 1161, 1161a). Neither the relationship nor the remedy is eliminated by the mere fact that, in addition, there is an executory contract of
sale between the parties under which the rent is credited against the purchase price, in whole or in part. Provouskivitz v. Snow (1977, Cal App 2d Dist) 74 Cal App 3d 554, 141
Cal Rptr 531, 1977 Cal App LEXIS 1943.
Service and Effect of Notice
Failure to serve the three-day notice upon the trustor of a trust deed, as well as upon his subtenant, does not vitiate a proceeding under this section, where the subtenant only
and not the trustor contested the plaintiff’s right to possession as a purchaser under thetrust deed, and such failure may be deemed waived by the subtenant. In 2008 in california the tenant that is anybody but the trustor has sixty days and this must be clearly on the notice. Mailhes v. Investors Syndicate (1934) 220 Cal 735, 32 P2d 610, 1934 Cal LEXIS 595.
Service of a notice to quit on subtenants is not jurisdictional. San Jose Pacific Bldg. &Loan Asso. v. Corum (1934, Cal App) 2 Cal App 2d 276, 37 P2d 866, 1934 Cal App
Persons by and Against Whom Action May Be Brought
A purchaser or trustee at an execution sale or under a deed of trust may maintain an action under this section. Pacific States Sav. & Loan Co. v. Hoffman (1933, Cal App)
134 Cal App 601, 25 P2d 1006, 1933 Cal App LEXIS 180. In an action to recover possession of premises under this section, after sale under a
deed of trust, a foreign corporation, which made the loan to defendants, was not doing business in this state in making said loan, where the notes and deed of trust were
executed by defendants in favor of a party secured by defendants’ agent, and said documents, with draft attached, were forwarded by defendants’ agent to an eastern city
where they were approved and accepted by said foreign corporation, which had theretofore been a stranger to the transaction, and which, upon such acceptance,
honored the draft and sent the money to the state, payable to the order of defendants. Kraemer v. Coward (1934, Cal App) 2 Cal App 2d 506, 38 P2d 458, 1934 Cal App
An action under this section is not restricted to cases covered by 1161 where a tenant holds possession “in person, or by subtenant,” and may be brought against any person
claiming the right of possession as a successor to or under one whose title is terminated on sale of the property through a deed of trust, pursuant to CC 2924. Stockton Morris
Plan Co. v. Carpenter (1936, Cal App) 18 Cal App 2d 205, 63 P2d 859, 1936 Cal App LEXIS 191.
Where a vendor remaining in possession for a limited period as part of the consideration for the sale of realty failed to surrender possession within two years after completion of
the sale as provided by the contract, unlawful detainer was the proper form of action and the court was authorized to award treble damages. Moss v. Williams (1948, Cal
App) 84 Cal App 2d 830, 191 P2d 804, 1948 Cal App LEXIS 1278.
Mortgagee is not entitled to possession of property, either before or after default, and he has no right of entry except when he is vested with title to property on foreclosure and
sale; hence, applying provisions of CC 2924 that transfer of interest in property made only as security for performance of another act is to be deemed mortgage, plaintiff’s
right to maintain unlawful detainer action was not impaired by existence of deed naming defendant as grantee of property where such deed recited on its face that it was for
security only and said defendant made no attempt to show there had been any foreclosure of any security interest asserted by him which would have entitled him to
possession. Byrne v. Baker (1963, Cal App 2d Dist) 221 Cal App 2d 1, 34 Cal Rptr 178,1963 Cal App LEXIS 2099.
Judgment creditor who purchases at his own execution sale and first records sheriff’s certificate of sale is protected by provisions of CC 1107, 1214, and his rights are
therefore superior to those of holder of unrecorded deed; any interest defendant acquired by deed in property which is subject of action for unlawful detainer would not
operate as bar to plaintiff’s right to maintain action where defendant’s deed was not recorded until after plaintiff’s title under execution sale had been perfected and
marshal’s deed to property recorded. Byrne v. Baker (1963, Cal App 2d Dist) 221 Cal App 2d 1, 34 Cal Rptr 178, 1963 Cal App LEXIS 2099.
A subsequent purchaser from a purchaser at a foreclosure sale was entitled to bring unlawful detainer actions pursuant to former CCP 1161a, subd. (3) (see now CCP
1161a(b)), against occupants of condominium units; the policy of the statute, to provide a summary method of ouster when an occupant holds over possession after sale of the
property, would not be served by restricting availability of the action to the original purchaser at the foreclosure sale. Moreover, the requirements that the subsequent
purchaser prove his acquisition of title from the foreclosure sale purchaser does not destroy the summary nature of the action. Evans v. Superior Court (1977, Cal App 2d
Dist) 67 Cal App 3d 162, 136 Cal Rptr 596, 1977 Cal App LEXIS 1215.
Homeowners cannot be evicted, consistent with due process guarantees, without being permitted to raise affirmative defenses which if proved would maintain their possession
and ownership. Accordingly, in an unlawful detainer action brought in municipal court by a corporation that had acquired title to homeowners’ property through a loan transaction
after the homeowners had defaulted on a prior loan, the homeowners were entitled to defend the eviction action based on their claims of fraud and related causes which they
asserted; therefore the action necessarily exceeded the jurisdiction of the municipal court and could not be tried there. Asuncion v. Superior Court of San Diego County
(1980, Cal App 4th Dist) 108 Cal App 3d 141, 166 Cal Rptr 306, 1980 Cal App LEXIS2038.
The procedure in unlawful detainer is covered in CCP 1161 et seq. The remedy, as broadened by statutory changes, is available in three situations: (1) landlord against
tenant for unlawfully holding over or for breach of the lease (the traditional and most important proceeding), (2) owner against servant, employee, agent, or licensee, whose
relationship has terminated, and (3) purchaser at sale under execution, foreclosure, or power of sale in mortgage or deed of trust, against former owner and possessor. The
statutory situations in which the remedy of unlawful detainer is available are exclusive, and the statutory procedure must be strictly followed. Berry v. Society of Saint Pius X
(1999, Cal App 2d Dist) 69 Cal App 4th 354, 81 Cal Rptr 2d 574, 1999 Cal App LEXIS 42, review or rehearing denied (1999, Cal) 1999 Cal LEXIS 2245.
Action Involving Issue of Title and Right to Possession
On a sale under a deed of trust, the purchaser has an immediate right to possession; and where a party exchanged property for an apartment house encumbered by a deed
of trust, under which notice of default and election to sell was filed before the exchange,but the sale was conducted after the date of exchange, regardless of the right of
possession prior to foreclosure the party who would have received the property under the exchange was not entitled to a judgment for possession of it after the sale. Farris v.
Pacific States Auxiliary Corp. (1935) 4 Cal 2d 103, 48 P2d 11, 1935 Cal LEXIS 506.
Proof that he has duly perfected his title by a sale regularly conducted may be made by the plaintiff in a proceeding under subd 3. Mortgage Guarantee Co. v. Smith (1935, Cal
App) 9 Cal App 2d 618, 50 P2d 835, 1935 Cal App LEXIS 1196.
Matters affecting the validity of a trust deed, primary obligation, or other basic defects in the title of a plaintiff who purchased at a sale under the trust deed may not be raised by
the defendant in an unlawful detainer action. Cheney v. Trauzettel (1937) 9 Cal 2d 158,69 P2d 832, 1937 Cal LEXIS 372.
Right to possession alone is involved in a summary proceeding under this section, and the broad question of title cannot be raised and litigated by a cross-complaint or
affirmative defense. Cheney v. Trauzettel (1937) 9 Cal 2d 158, 69 P2d 832, 1937 Cal LEXIS 372; Delpy v. Ono (1937, Cal App) 22 Cal App 2d 301, 70 P2d 960, 1937 Cal
App LEXIS 116.
The title of a purchaser at a sale under a trust deed is involved in an action in unlawful detainer brought by him to the limited extent that he must prove his acquisition of title by
purchase at the sale, and the defendant may attack the sufficiency of the sale. Cheney v. Trauzettel (1937) 9 Cal 2d 158, 69 P2d 832, 1937 Cal LEXIS 372; Delpy v. Ono
(1937, Cal App) 22 Cal App 2d 301, 70 P2d 960, 1937 Cal App LEXIS 116; Seidell v. Anglo-California Trust Co. (1942, Cal App) 55 Cal App 2d 913, 132 P2d 12, 1942 Cal App LEXIS 146.
The validity of a trust deed attacked as part of a conspiracy to evade the Alien Land Law
was an issue relating to title which could not be raised in an unlawful detainer action by
the purchaser at the trust deed sale. Delpy v. Ono (1937, Cal App) 22 Cal App 2d 301,
70 P2d 960, 1937 Cal App LEXIS 116.
Where after a sale of trust property the purchaser sued the trustor in a justice’s court for unlawful detainer and alleged ownership by virtue of purchase at a trustee’s sale
regularly conducted, denial of such allegations put in issue title to the property and a judgment which restored possession to such purchaser was sufficient adjudication of
title to render applicable the doctrine of res judicata. Bliss v. Security-First Nat’l Bank (1947, Cal App) 81 Cal App 2d 50, 183 P2d 312, 1947 Cal App LEXIS 1021.
While the broad question of title cannot be raised in an unlawful detainer action, where the action is brought under subd 4, the plaintiff must establish the sale of the property
and the title perfected under such sale before recovery can be allowed. Kelliher v. Kelliher (1950, Cal App) 101 Cal App 2d 226, 225 P2d 554, 1950 Cal App LEXIS 1103.
Where purchaser at trustee’s sale proceeds in unlawful detainer under section, he must prove his acquisition of title by purchase at sale but is not required to prove more with
respect to title. Abrahamer v. Parks (1956, Cal App 2d Dist) 141 Cal App 2d 82, 296 P2d 341, 1956 Cal App LEXIS 1814.Under subd 3, title, to the extent required by this section, not only may, but must, betried in actions if provisions of statute extending remedy beyond cases where conventional relation of landlord and tenant exist are to be judicially nullified. Kartheiser
v. Superior Court of Los Angeles County (1959, Cal App 2d Dist) 174 Cal App 2d 617,345 P2d 135, 1959 Cal App LEXIS 1746.
Question of title is not triable in unlawful detainer action, but only question of right of possession. Patapoff v. Reliable Escrow Service Corp. (1962, Cal App 2d Dist) 201 Cal App 2d 484, 19 Cal Rptr 886, 1962 Cal App LEXIS 2618.
Broad questions of title may not be litigated in unlawful detainer action; though purchaser at execution sale who proceeds in unlawful detainer action under provisions
of this section must prove his acquisition of title by purchase at sale, it is only to this limited extent, as provided by statute, that title may be litigated in such proceeding.
Byrne v. Baker (1963, Cal App 2d Dist) 221 Cal App 2d 1, 34 Cal Rptr 178, 1963 Cal App LEXIS 2099.
A proceeding for unlawful detainer is summary in character, and ordinarily, only claims bearing directly on the right of immediate possession are cognizable. Also, crosscomplaints
and affirmative defenses, legal or equitable, are permissible only insofar as they would, if successful, preclude removal of the tenant from the premises. As a consequence, a judgment in unlawful detainer usually has very limited res judicata effect and will not prevent one who is dispossessed from bringing a subsequent action to resolve questions of title or to adjudicate other legal and equitable claims between the parties. However, to the limited extent provided by CCP 1161a, subd. 3, providing that a person who continues possession of real property may be removed where the
property has been duly sold and the title of the sale has been duly perfected, title may be litigated in such a proceeding. Vella v. Hudgins (1977) 20 Cal 3d 251, 142 Cal Rptr
414, 572 P2d 28, 1977 Cal LEXIS 192.
In an unlawful detainer action against occupants of condominium units by a subsequent purchaser from a purchaser at a foreclosure sale, pursuant to CCP 1161a, subd. (3),
questions of title unrelated to compliance with Civ. Code, 2924, concerning a power of sale contained in a trust deed, and issues which would have been unavailable to the
occupants’ predecessor in interest, the maker of the trust deed, could not be raised asdefenses, but would have to be litigated in a quiet title action. Since such issues were
not cognizable in the unlawful detainer action, the judgment in that action would not be res judicata as to those issues, nor would the pendency of the unlawful detainer action
be a bar to the simultaneous maintenance of a quiet title action. Evans v. Superior Court (1977, Cal App 2d Dist) 67 Cal App 3d 162, 136 Cal Rptr 596, 1977 Cal App LEXIS 1215.
In an action for unlawful detainer, the trial court erred in dismissing the tenants’ affirmative defense that raised the issue of title, where the landlord had previously filed
an action seeking declaratory relief and quiet title thereby putting the title in issue. Greenhut v. Wooden (1982, Cal App 2d Dist) 129 Cal App 3d 64, 180 Cal Rptr 786,1982 Cal App LEXIS 1304.
Adoption of specific findings on each detail of the proceeding for the sale of the property under a deed of trust were not necessary, where the court found that the defendant,
who died pending the action, took a deed and possession with full knowledge that his grantors had no title, that he was in unlawful possession, and had no right thereto at any
time. Stockton Morris Plan Co. v. Carpenter (1936, Cal App) 18 Cal App 2d 205, 63 P2d859, 1936 Cal App LEXIS 191.
A judgment in unlawful detainer is res adjudicata in a subsequent suit to set aside a trustee’s deed on the ground of irregularity in the foreclosure proceedings, where the
unlawful detainer action brought by the purchaser at the trust deed sale involved the same issues which were determined in favor of the regularity of the foreclosure
proceedings and the validity of the deed. Seidell v. Anglo-California Trust Co. (1942, Cal App) 55 Cal App 2d 913, 132 P2d 12, 1942 Cal App LEXIS 146.
It was improper to grant summary judgment in an unlawful detainer action institutedunder this section, where a supporting affidavit related facts concerning a transfer of title
not within the personal knowledge of the plaintiff concerning which he was incompetent to testify. Kelliher v. Kelliher (1950, Cal App) 101 Cal App 2d 226, 225 P2d 554, 1950 Cal App LEXIS 1103.
Municipal court has jurisdiction of an unlawful detainer action by the purchaser at a trustee’s sale against the trustor where the purchaser alleges the reasonable rental
value of the premises to be $100 a month and seeks damages for less than two months. Karrell v. First Thrift of Los Angeles (1951, Cal App) 104 Cal App 2d 536, 232 P2d 1, 1951 Cal App LEXIS 1656.
Facts that owner of realty was not in default under trust deed executed by her, that the note secured by such instrument had been fully paid, and that she had no notice that
property was to be sold were available to her as a defense in a prior unlawful detainer action brought against her by a successor of the purchaser at a trust deed sale, and
having failed to appear in that action she is precluded from asserting such matters in a subsequent suit instituted by her for a decree setting aside the deed from the trustee to
the original purchaser, the sale to such purchaser and his successor, and the judgment in the unlawful detainer action. Freeze v. Salot (1954, Cal App) 122 Cal App 2d 561, 266
P2d 140, 1954 Cal App LEXIS 1085.
In summary proceeding of unlawful detainer, only the right to possession is involved, but when purchaser at trustee sale proceeds under this section, title may be litigated to
limited extent that purchaser must prove his acquisition of title by purchase at sale. Cruce v. Stein (1956, Cal App 2d Dist) 146 Cal App 2d 688, 304 P2d 118, 1956 Cal App LEXIS 1522.
Conclusions of law and not facts are stated by a complaint alleging that the plaintiff became the owner in fee and entitled to the possession of the premises by virtue of a
sale under CC 2924, where nothing more about the deed and sale is alleged. AmericanNat’l Bank v. Johnson (1932, Cal App Dep’t Super Ct) 124 Cal App 783, 124 Cal App 4th
Supp 783, 11 P2d 916, 1932 Cal App LEXIS 6.
Although a complaint is insufficient as a statement of facts to bring the case within CCP 1161 where the answer shows that the fact and validity of the sale under the deed of
trust is made an issue by the defendants, they cannot on appeal question the sufficiency of the complaint. Harris v. Seidell (1934, Cal App) 1 Cal App 2d 410, 36 P2d 1104, 1934 Cal App LEXIS 1289.
Taking of the necessary steps to a valid sale is sufficiently alleged by a complaint under subd 3 alleging that the plaintiff duly performed and caused to be performed all the
conditions on his part required by CC 2924, and by other applicable laws and provisions of the deed of trust. San Jose Pacific Bldg. & Loan Asso. v. Corum (1934, Cal
App) 2 Cal App 2d 276, 37 P2d 866, 1934 Cal App LEXIS 1418.
A complaint based on subd 3, substantially in the language of the statute is sufficient. Quinn v. Mathiassen (1935) 4 Cal 2d 329, 49 P2d 284, 1935 Cal LEXIS 547.
An allegation of due compliance with CC 2924 is sufficient without alleging compliance in haec verba. Quinn v. Mathiassen (1935) 4 Cal 2d 329, 49 P2d 284, 1935 Cal LEXIS 547.
In action by lessee for damages for eviction, where it was obvious from allegations of the complaint that the parties to the lease intended that the lessee should not be
disturbed in its possession and use of the premises by the foreclosure of a trust deed or mortgage securing a bond issue, and the complaint alleged facts sufficient to show the
assertion of a paramount title and right to possession by the purchaser on foreclosure under said deed of trust, the allegations of eviction were sufficient against demurrer.
Stillwell Hotel Co. v. Anderson (1935) 4 Cal 2d 463, 50 P2d 441, 1935 Cal LEXIS 569.
In action in unlawful detainer for rent and possession of property held in part by oral agreement and in part under a written lease, there was no merit in the contention that
the property covered by the written lease was not sufficiently described in the complaint where the description was sufficient to enable the appealing defendant to enter on the
same and make avail thereof, and, at the trial, said defendant testified that at all times he understood what land was referred to both by the lease and the notice to pay or
surrender possession; and, under the circumstances, the addition in the lease of theword “station,” after the name of a town near which the land was located, did not make
the description doubtful or imperfect. Mendoza v. Castiglioni (1936, Cal App) 14 Cal App2d 710, 58 P2d 939, 1936 Cal App LEXIS 951.
A cause of action under subd 3 is stated by a complaint alleging that the property was sold to the original plaintiff in accordance with the terms of a deed of trust executed by
the former owners, and in accordance with CC 2924, where a supplemental complaint details the proceedings required by CC 2924, including notice of default. Stockton
Morris Plan Co. v. Carpenter (1936, Cal App) 18 Cal App 2d 205, 63 P2d 859, 1936 Cal App LEXIS 191.
An allegation of due compliance with CC 2924, as authorized by 459, is not merely a conclusion of law, but an allegation of fact which, if not denied, must be deemed to have
been admitted. Bank of America Nat’l Trust & Sav. Asso. v. McLaughlin Land &Livestock Co. (1940, Cal App) 40 Cal App 2d 620, 105 P2d 607, 1940 Cal App LEXIS
150, cert den (1941) 313 US 571, 61 S Ct 958, 85 L Ed 1529, 1941 US LEXIS 686.
An unlawful detainer proceeding is summary in character, and use of cross-complaint in such case would frustrate remedy and render it inadequate. Tide Water Associated Oil
Co. v. Superior Court of Los Angeles County (1955) 43 Cal 2d 815, 279 P2d 35, 1955 Cal LEXIS 387.
It is proper to sustain, without leave to amend, demurrer to a complaint seeking to set aside a sale under a trust deed, based on alleged failure to comply with the legal
requirements as to notice, where the trust deed, which was made a part of the complaint, discloses a provision making the recital in the trustee’s deed conclusive, and
where such deed, also made part of the complaint, recites that sale and notice complied with the law. Pierson v. Fischer (1955, Cal App 3d Dist) 131 Cal App 2d 208, 280 P2d
491, 1955 Cal App LEXIS 2037.
Complaint in unlawful detainer against defaulting trustors of trust deed states facts sufficient to constitute cause of action where it alleges that plaintiff, to whom property
was sold by trustee, “is owner and entitled to possession of,” property, and where there is attached to complaint as exhibit a copy of trustee’s deed which recites that default
was made in payment due on note and obligation secured by trust deed specified them. Abrahamer v. Parks (1956, Cal App 2d Dist) 141 Cal App 2d 82, 296 P2d 341, 1956 Cal
App LEXIS 1814.
In unlawful detainer action based on sale of property by defendants to plaintiff andagreement to vacate property by specified date “if it is possible,” it is not necessary to
allege facts showing that it was possible for defendants to vacate premises by date set,and complaint alleging that real property involved had been duly sold to plaintiff and title
under sale had been duly perfected, that plaintiff was entitled to possession, that threeday notice to quit premises had been personally served on defendants, and that they
held over and continued in possession after three-day notice had been served, is sufficient. Johnson v. Hapke (1960, Cal App 2d Dist) 183 Cal App 2d 255, 6 Cal Rptr 603, 1960 Cal App LEXIS 1746.
Equitable defense of cancellation of escrow and withdrawal of defendant’s consent to transfer before made is properly raised in action by vendee for removal of vendor from
premises and award of damages for withholding possession. Kessler v. Bridge (1958,Cal App Dep’t Super Ct) 161 Cal App 2d Supp 837, 327 P2d 241, 1958 Cal App LEXIS 1814.
Equitable defense of delivery of deed to plaintiff in violation of escrow is properly raised in action by vendee for removal of vendor from premises and award of damages for
withholding possession. Kessler v. Bridge (1958, Cal App Dep’t Super Ct) 161 Cal App2d Supp 837, 327 P2d 241, 1958 Cal App LEXIS 1814.
Equitable defense of failure of consideration is properly raised in action by vendee forremoval of vendor from premises and award of damages for withholding possession.
Kessler v. Bridge (1958, Cal App Dep’t Super Ct) 161 Cal App 2d Supp 837, 327 P2d 241, 1958 Cal App LEXIS 1814.
Equitable defense of fraud in inducement for relinquishment of property is properly raised in action by vendee for removal of vendor from premises and award of damages
for withholding possession. Kessler v. Bridge (1958, Cal App Dep’t Super Ct) 161 CalApp 2d Supp 837, 327 P2d 241, 1958 Cal App LEXIS 1814.
Equitable defense of rescission of transaction prior to suit is properly raised in action by vendee for removal of vendor from premises and award of damages for withholding
possession. Kessler v. Bridge (1958, Cal App Dep’t Super Ct) 161 Cal App 2d Supp 837, 327 P2d 241, 1958 Cal App LEXIS 1814.
Equitable defense of unauthorized unilateral change in escrow instructions by plaintiff to effect delivery of deed is properly raised, in action by vendee for removal of vendor from
premises and award of damages for withholding possession. Kessler v. Bridge (1958,Cal App Dep’t Super Ct) 161 Cal App 2d Supp 837, 327 P2d 241, 1958 Cal App LEXIS 1814.
Summary proceeding in unlawful detainer is subject to control of equity in proper case; hence, if defendant in such action possessed valid equitable rights in property that
would make it inequitable for plaintiff to proceed, defendant could, by seeking injunction in quiet title suit pending between parties, prevent plaintiff from proceeding. Byrne v.
Baker (1963, Cal App 2d Dist) 221 Cal App 2d 1, 34 Cal Rptr 178, 1963 Cal App LEXIS 2099.
In an unlawful detainer action under CCP 1161a, subd. (3), by a subsequent purchaser from a purchaser at a foreclosure sale, the subsequent purchaser may not claim the
status of a bona fide purchaser without notice against one in open and notorious possession of the premises, so as to cut off defenses which would have been available
to the occupant against the original purchaser. Evans v. Superior Court (1977, Cal App 2d Dist) 67 Cal App 3d 162, 136 Cal Rptr 596, 1977 Cal App LEXIS 1215.
The statutory remedies for recovery of possession and of unpaid rent (CCP1159-1179a; Civ. Code, 1951 et seq.) do not preclude a defense based on municipal
rent control legislation enacted pursuant to the police power imposing rent ceilings and limiting the grounds for eviction for the purpose of enforcing those rent ceilings. Thus,
CCP 1161 (unlawful detainer), does not preempt a defense based upon local rent control legislation. Also, since 1161 does not preempt such a defense, it follows that
CCP 1161a (removal of person holding over after notice to quit), does not preempt such a defense. Accordingly, 1161a did not preempt that portion of a local rent stabilization
ordinance limiting the grounds for eviction. Passage of such legislation by a local government was an exercise of police power which substantively placed a limitation on
an owner’s property rights. Gross v. Superior Court (1985, Cal App 1st Dist) 171 Cal App 3d 265, 217 Cal Rptr 284, 1985 Cal App LEXIS 2408.
The county’s motion for summary judgment on plaintiff’s claim of excessive force in evicting her should be granted, absent evidence the county had a policy or custom other
than to lawfully enforce writs of possession. Under CCP 1161a, a writ of possession may be effectuated without a warrant; peace officers may obtain possession through
eviction under a valid writ of possession. Busch v. Torres (1995, CD Cal) 905 F Supp 766, 1995 US Dist LEXIS 19998.
To prevail, in action by vendee against vendor for removal of vendor from premises and award of damages for withholding possession, plaintiff must prove affirmatively that
property was “duly sold” and that “the title under the sale has been duly perfected,” and, contrary to rule applying to unlawful detainer where landlord-tenant relationship is
involved, title thus becomes issue. Kessler v. Bridge (1958, Cal App Dep’t Super Ct) 161 Cal App 2d Supp 837, 327 P2d 241, 1958 Cal App LEXIS 1814.
In unlawful detainer action, property involved is shown to have been duly sold by defendants to plaintiff, within meaning of CCP 1161, by evidence that at request of
defendant husband, joined in by defendant wife as evidenced by her activeparticipation, both executed escrow constructions and grant deed conveying title to
plaintiff, and that no material representations were made by plaintiff to defendants concerning escrow instructions, reconveyance of second trust deed, grant deed or
general agreement of parties. Johnson v. Hapke (1960, Cal App 2d Dist) 183 Cal App2d 255, 6 Cal Rptr 603, 1960 Cal App LEXIS 1746.
In unlawful detainer action based on sale of property to plaintiff and agreement by defendants to vacate premises by stated date “if it is possible,” such agreement
conditioned defendants’ performance on event that was within their control, placing collateral duty on them to bring about happening of event of vacating premises within
reasonable time, and placing burden on them to show any reason why it was impossible to vacate on or before agreed date, and where such burden was not fulfilled finding that
it was possible for defendants to vacate on or before agreed date was supported. Johnson v. Hapke (1960, Cal App 2d Dist) 183 Cal App 2d 255, 6 Cal Rptr 603, 1960
Cal App LEXIS 1746.
In fixing plaintiff’s damages for unlawful detention of real property purchased at a nonjudicial sale under a trust deed, the trial court did not err in considering, in part, the rents
received by defendant during the period of unlawful detention. The proper measure of damages in an unlawful detainer action is the detriment to the owner because of the
detention of the property, and the detriment to plaintiff caused by defendant’s unlawful detention was measurable in the amount of a reasonable rental value that plaintiff might
have realized had it not been denied possession. MCA, Inc. v. Universal Diversified Enterprises Corp. (1972, Cal App 2d Dist) 27 Cal App 3d 170, 103 Cal Rptr 522, 1972
Cal App LEXIS 838.
20 thoughts on “Unlawful detainer law and forclosure law collide”
If I followed this correctly.. You can challenge the sale of your foreclosed home to a third party investor and possibly win…. Please tell me that what all that said..
If you just had an Unlawful Detainer case filed against you, you need to act very fast to fight it.
Do not be afraid. Take Action. I fought and I had the 3 day notice to quit scotch taped to my door at the end of Oct. 2008. I am still in my home.
Read this guide to help you.
There are also some other legal documents I have posted in ScribD which may help you fight a UD (Unlawful Detainer).
It is best to retain an attorney to assist with the UD.
Tim McCandless is an extremely great attorney for foreclosure fraud issues.
Timothy, do you help with Quo Warranto actions?
I need assistance in answering a summary Judgement. I have filed a motion for the lender to produce the note. I know you have a template for summary judgements. Do you have any examples of arguments that were used and were successful. Thanks Anna
SUMMARY OF ARGUMENT
This is an unlawful detainer proceeding under C.C.P. sec. 1161a after a trustee’s
unlawful detainer action under C.C.P. sec 116la after a foreclosure sale: (I) that the
The sole issue is whether Plaintiff is entitled to possession of the Property. It is obvious that Plaintiff has NOT demonstrated in its moving papers and will demonstrate at the hearing that Plaintiff is not entitled to possession of the Property against Defendant, that Plaintiff property was not sold in accordance with Civil Code Section 2924, and that title has been duly perfected.
MEMORANDUM OF POINTS AND AUTHORITIES
A SUBSEQUENT PURCHASER FROM A PURCHASER AT A FORECLOSURE SALE CANNOT MAINTAIN AN UNLAWFUL DETAINER ACTION UNDER SUBDIVION 3 OF THE CODE OF CIVIL PROCEDURE SECTION 1161A
Section 1161A is framed in terms of the events which may give rise to the cause of action had the persons against whom such actions may be brought. It is silent as to who may bring an action under the section. 67 Cal.App.3d 168.
In Chenev v. Trauzettel, 9 Cal.2d 158 [69 P.2d 832] and Greene v. Superior Court, 51 Cal.App.3d 446 [124 Cal.Rptr.139], subdivision 3 of Section 1161a of the code of Civil Procedure can be maintained only by the immediate purchaser at the foreclosure sale. In Cheney, the action was brought by the purchaser at the foreclosure sale and in Greene, there had been no foreclosure sale.
Exhibit “B” of Defendant’s Request for Judicial Notice shows that INDYMAC FEDERAL BANK quitclaimed to DEUTSCHE BANK. INDYMAC was the purchaser and NOT Deutsche.
Real parties assert that to allow the action to be maintained by a subsequent purchaser from a purchaser at a foreclosure sale would alter [67 Cal.App.3d 169] the summary nature of the remedy. In Evans v superior Court, 67 Cal.App.3d 162, the court did not agree:
“At common law the sole issue in an unlawful detainer action was the right to possession, a tenant being stopped to challenge his landlord’s claim of title. The essence of the statutory action, too, is a right to possession and remains summary in character; however,”…to the limited extent of proving deraignment of title [emphasis added] in the manner expressly provided for in the unlawful detainer statutes themselves the question of title not only may, but must be tried in such actions…” (Hewitt v Justice’s Court, supra, 131 Cal.app.439, 443). In an action pursuant to section 1161a, subdivision 3, title is in issue to the extent that plaintiff must prove that a sale was held in compliance with section 2924 of the Civil Code, and that title under such was duly perfected. (Kartheirser v. Superior Court, 174 Cal.App.2d 614 [345jP.2d 135].) Adding the additional requirement that a subsequent purchaser from the foreclosure sale purchaser prove his own acquisition of title from said foreclosure sale purchase no more destroys the summary nature of the proceedings than does the corresponding requirement that the landlord’s successor in estate prove his acquisition of such interest in proceeding pursuant to section 1161 of the code of Civil Procedure.”
DEUTSCHE BANK acquired this property via a Quitclaim Deed [See Exhibit “G” of plaintiff’s Motion for Summary Judgment and Exhibit “B” of Defendant’s Request for Judicial Notice]. This was recorded in the County of Contra Costa Recorder on September 15, 2009. Plaintiff DEUTSCHE has never claimed the status of bona fide purchaser without notice, nor could a subsequent purchaser from a purchaser at a foreclosure sale assert such status against one in open and notorious possession of the premises. (Manig v. Bachman, 127 Cal.app.2d 216 j[273 P.2d 5961].
Moreover, DEUTSCHE cannot prove their acquisition of title by purchase at the sale and that this title may be litigated in this proceeding pursuant to Code of Civil Procedure 1161a. There is an issue of title thus there is a triable issue of fact in this action.
my u.d. case involves a foreclosure proceedure.
notice to tenants nit properly given. van nys superior denied demurrer incorrectly. three judges all uninformed and unknowledgeable re:notice not perfected. case now entering second appellate, appeal to be filed by 6/29/2010. we need case law briefs re: improper notice proceedure
i would like to share with all of you something that happen today with me. i went through the unlawful detainer court. anything and everthing i did was denied by the judge. my answer to plaintiffs summons and complaint was followed by a motion to desmiss portions of my answer. the part of my answer that the plaintiff wells fargo bank, na was my affirmative defense. i filed an opposition to plaintiff motion to strike. the opposition was denied. the motion to strike was granted with out leave to amend. then i get an amended order that said i could amend but that came after i filed a motion to dismiss and the court gave me a little over 24 hours to amend my answer. a hearing for the motion to dismiss was held and denied. the plaintiff filed the request for a hearing on the unlawfu detainer so i filed a request for a hearing by jury. so plaintiff wells fargo filed the summary judgement with request to take judicial notice. so instead of filing a pleading i decided to argue the matter in front of the judge. when the hearing for summary judgement was on august 25 . i first asked the judge to recuse himself. that was denied. request for summary judgement was granted along with the judicial notice. the reason i asked the judge to recuse himself was i found at the court on the public computer for unlawful detainer that the attorney had a boiler plate for the motion to strike. i felt the commissioner and the attorney had a workling relationship that i did not trust.
so on the 1st of september i got the orde granting summary judgement. on september 2nd the sheriff posted the writ and i have to be out of my house tomorrow at 6:01 am.
i have a son who has mental illness. today its been a hard day for him. his papa, which is my father built my home in 1959. my son acted out today and the sheriff , sacramento, had to come to my home. the deputy’s were 2 women. we talked and they could see my son was quite adjutated. they the women officers called for backup just in case they needed it. another officer arrived in a plain white car but he was in uniform. the woman officer said to me oh this is the officer who will come to move you out tomorrow. after my son settled down i made the remark to the officer who will be by tomorrow. i stated to him you know you are not dealing with a tenant tomorrow you are dealing with a homeowner.this officer replied back oh i an eviction is a eviction and you have had at least ten days for this and you knew it was coming and besides he says i dont even hardley look at the eviciton i just enforce them. i told the officer you really should pay attention.
bottom line and im sorry i am so long winded is the judges dont read the defendants pleadings and the officers dont care what kind of evictions. i asked the office to quit helping the banks to committ fraud. do only what your title is and u are to evict tenants for landlords and not homeowners for banks.
tomorrow i wish would never come. my son and i will start living in my car. and i will not be here whe the officer comes to put me out. i never have benn homeless and i never had a evction. my son will be displaced and he is really confused right now. i will be glad when our voices are heard and things change for the best.
i am a homeowner whom has gone through the eviction process, with the professionals that we count on to protect us, dont. it is a heart wrenching experience. and on top of that, as publicly known as the wrongful deeds done by the foreclosing parties have become, it boggles the mind….that the police power which we pay for, is made up of so many individuals…whom, dont think. just do whatever they are told. how is that person whom cant or doesnt see the marginal increase in evictions, had 100’s of homeowners convey the exact same scenario, continue to displace entire families without violating his oath as an officer? i hope you still check mccandless website or receive the forwarded email from this site as id like to know, what ended up happening….if you did get evicted. did you take the plaintiff /foreclosing party to trial. if not, you should. take care. – justice4all
you can file an appeal to the writ.
did you also file a larger fraud case? are you in California courts? where are you?
what about filing bankruptcy? that may stop it cold…..
contact email@example.com…talk to her….
ps—go to the state welfare office…they should give you some emergency housing since you have disabled child
Find your regional center (federal) welfare office…..
PS—-disclaimer: I am not an attorney and not offering legal services or advice
im in fair oaks california right by sacramento. my son is 32. so hes not a child anymore. i just cat get my house acked im sitting here just in a stupor. how do you pack 40 years of your life up so quick? im just lost. can i ask you something abby? my son was not served. what does that have to do with any of this. im just having a hard time thinking right now.the uhul truck is due back in 3 hours. i have had it for 2 days. i just feel stuck. the sheriff is coming tomorrow at 6;01 AM
Laurie—my daughter is going into labor.
I cannot call you right now…
DO THIS—call the civil clerk….ask them how to pay for my time (by day or week)….you have to have cash.
my friend down here in bay area paid for 4weeks after the writ…..so you can pay money to stave off sheriff coming tomorrow morning..
HURRY and call civil clerk
contact my friend Leslie at Blaqrubi@yahoo.com…..talk to her…
post your email address on here…..
We are doing everything in our “neck of the woods” to fight this evil, and we have a bit of a testimony of what occurred in court today. We went to our Summary Judgement on an Unlawful Detainer hearing…BUT, what we had done 2 days ago seemed to turn the tides. We were desperate not to lose our home, so we filed to Remove to Federal Court…and we succeeded! There are certain criteria which have to be met in order to file a Federal Case (look them up in the Federal Rules of Civil Procedure, or FRCP). We attempted to include all of the criteria in our case. We brought up the issue of “Federal Question”, diversity/jurisdiction, issues of title and contract, all of which cannot nor will not be heard in a UD court…but will be heard in Federal court. I have copies of all of our docs to send to anyone who wishes to see what we have done. Our email is: firstname.lastname@example.org Of course, we still have to win the Fed Case, but at least this is a start. We need them to hear all the issues that are so relevant to a typical foreclosure case, and a Federal case my just be the place to do it…all without risking losing your home in the meantime! In Fast track or Rocket Docket UD courts, you most likely will not be heard…and then the Sheriff will come knocking on your door! Scary thought! There is something you can do! Even if you don’t go to the Federal Court…at least appeal! Don’t give up!
Best Wishes to my Fellow Foreclosure Fighters, ~Ruth~
Hi, Ruth. My husband and I are fighting a UD action, and our hearing is scheduled for Sept. 22. Rather than filing an answer, we filed a Demurrer and Plaintiff’s counsel is very pissed off (boohoo). I have been poring over various blogs and pleadings and the CA courts website as to how best to address defects in the Complaint, while at the same time drafting a Complaint in CA State Court for unlawful foreclosure, foreclosure fraud, bad faith, violation of CA laws, yadayadayada. Your strategy seems simpler and more effective, so I’d be very keen on seeing the documents that you prepared and filed. I’ve been a paralegal for 30 years and am not a lawyer, but i’ve got a pretty good grasp on the procedural and legal issues, as I’ve been researching them ever since we started battling the “bank” last summer. Many thanks for any assistance you can provide. We’re not leaving until/unless we have exhausted every possiblility. What’s happening to us homeowners is criminal, and we all must fight or Corporate America wins. We must let that happen. The banks and servicers sell fear, but we don’t have to and SHOULD NOT buy it; it’s a smokescreen, and they’re betting they know more than we do. Au contraire, mon frere. I have three sayings that I live by: ” What would you attempt to do if you could not fail?” “Tough times don’t last but tough people do” and “Never, ever, ever give up” (Winston Churchill).
All the best,
I just ran across your email/blog date in 2010. I was just wondering how it turned out for you relative to protecting your home.
This subject of this post ties in well with your other subjects on your home page. Good post. My best friend should find interesting this article.
You may want to listen to my radio interview as it discusses what I did with my UD
oh….look for the lead-in headline about ‘Granny….
Timothy I must say that I’m very impressed, your information is extensive and appears precise; based on my current knowledge. My question is: Do know of anyone who compares to you on the east coast? I too am fighting a UD, and don’t have a lot of time to act.
Do you know of anyone that is comparable to you on the east coast namely New York?