Defense Trends in Unlawful Detainer Actions

Landlords Banksters/Bulk Investors are being put into difficult and expensive situations by a disturbing new trend in the defense of Unlawful Detainers. The State of California has enacted a law effective January 1, 2013 wherein the courts will provide notice to the tenants of the availability of “public interest” defense firms as well as their contact information in each and every case.

These public interest law firms are not the traditional law firm in that they their specific goal is to impede the landlord’s Bankster’s/Bulk Investor’s efforts in favor of the ‘downtrodden’ tenant. They employ marginal legal tactics in order to effectuate favorable settlements from landlords Banksters/Bulk Investors who cannot afford don’t want to pay high litigation costs. This often results is the landlord Bankster/Bulk Investor not only forgiving sizable amounts of rent, but also paying large settlements or allowing tenants additional time to vacate at the landlord’s Bankster’s/Bulk Investor’s expense. Their typical tactics include extensive written discovery, long depositions and requesting jury trials.

The demand for jury trial is the most difficult tactic used. Often attorneys must appear three or more times to get a room for trial, due to the reductions at the courts, in general. The trials can cost $10,000 and more. There is the additional risk that a sympathetic jury will side with the ‘poor’ tenant as many of the jurors are themselves renters. All this once again tips the scales of justice in the renter’s favor and creates the environment wherein landlord’s Bankster’s/Bulk Investor’s pay additional costs and add great frustration to obtain justice evictions in our legal system.

There, fixed it for ya…

Notice how they didn’t mention this was enacted to protect tenants living in foreclosed homes…

Copy of the new law below…

~

4closureFraud.org

~

Beginning January 1, 2013, a new California law takes effect that provides additional protections for tenants of foreclosured properties. Key points:

1. You don’t have to be a “bona-fide” tenant anymore

2. Every tenant gets at least 90 days BUT law does not apply if any party to the note remains in the property as a tenant, subtenant, or occupant.

3. You must still pay the rent to the new owner.

4. The entire term of a fixed length lease must be respected if it is executed before the foreclosure sale but that can be reduced to 90 days if ANY of the following apply:

(a) The purchaser or successor in interest will occupy the

housing unit as a primary residence.

(b) The lessee is the mortgagor or the child, spouse, or parent

of the mortgagor.

(c) The lease was not the result of an arms’ length transaction.

(d) The lease requires the receipt of rent that is substantially

less than fair market rent for the property, except when rent is

reduced or subsidized due to a federal, state, or local subsidy or

law.

5. The purchaser or successor in interest shall bear the burden

of proof in establishing that a fixed-term residential lease is not entitled to protection.

6. This bill would provide that in any action for unlawful detainer

resulting from a foreclosure sale of a rental housing unit pursuant

to specified provisions, the above provisions regarding objection

to the enforcement of a judgment do not limit the right of a tenant

or subtenant to file a prejudgment claim of right of possession or

to object to enforcement of a judgment for possession, regardless

of whether the tenant or subtenant was served with a prejudgment

claim of right to possession, as specified.

http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_2601-2650/ab_2610_bill_20120831_enrolled.pdf

Assembly Bill No. 2610

Passed the Assembly August 27, 2012

Chief Clerk of the Assembly

Passed the Senate August 23, 2012

Secretary of the Senate

This bill was received by the Governor this day

of , 2012, at o’clock m.

Private Secretary of the Governor

CHAPTER

An act to amend Section 2924.8 of the Civil Code, and to amend

Sections 415.46 and 1161b of the Code of Civil Procedure, relating

to tenants.

legislative counsel

‘

s digest

AB 2610, Skinner. Tenants: foreclosure and unlawful detainer.

(1) Existing law requires a notice of sale to be posted before

any power of sale can be exercised under the power of sale

contained in any deed of trust or mortgage. Existing law, until

January 1, 2013, requires a resident of property upon which a

notice of sale has been posted to be provided a specified notice

advising the resident that, among other things, if the person is

renting the property, the new property owner may either give the

tenant a new lease or rental agreement, or provide the tenant with

a 60-day eviction notice, and that other laws may prohibit the

eviction or provide the tenant with a longer notice before eviction.

Existing law makes it an infraction to tear down the notice within

72 hours of posting. Existing law requires a state government entity

to make translations of the notice available in 5 specified

languages, for use by a mortgagee, trustee, beneficiary, or

authorized agent, in order to satisfy the notice requirements.

This bill would revise certain portions of the notice to instead

require a resident of property upon which a notice of sale has been

posted to be advised that if the person is renting the property, the

new property owner may either give the tenant a new lease or

rental agreement, or provide the tenant with a 90-day eviction

notice. The bill would require the notice to advise a tenant who

has a lease that the new property owner is required to honor the

lease unless the new owner will occupy the property as a primary

residence or under other limited circumstances. The bill would

require the Department of Consumer Affairs to make translations

of the notice available, as described above. The bill would provide

that these changes to the notice would become operative on March

1, 2013, or 60 days following posting of a dated notice

incorporating those amendments on the Department of Consumer

93

AB 2610 — 2 —

Affairs Internet Web site, whichever date is later. The bill would

extend the operation of these provisions until December 31, 2019.

By extending the operation of provisions establishing a crime,

this bill would impose a state-mandated local program.

(2) Existing law provides, that in an unlawful detainer action,

if an owner or owner’s agent has obtained service of a prejudgment

claim of right to possession, as specified, no occupant of the

premises, whether or not that occupant is named in the judgment

for possession, may object to the enforcement of the judgment, as

specified.

This bill would provide that in any action for unlawful detainer

resulting from a foreclosure sale of a rental housing unit pursuant

to specified provisions, the above provisions regarding objection

to the enforcement of a judgment do not limit the right of a tenant

or subtenant to file a prejudgment claim of right of possession or

to object to enforcement of a judgment for possession, regardless

of whether the tenant or subtenant was served with a prejudgment

claim of right to possession, as specified.

(3) Existing law, until January 1, 2013, requires a tenant or

subtenant in possession of a rental housing unit at the time that

property is sold in foreclosure to be provided 60 days’ written

notice to quit before the tenant or subtenant may be removed from

the property, as specified.

This bill would instead require a tenant or subtenant in possession

of a rental housing unit under a month-to-month lease at the time

that property is sold in foreclosure to be provided 90 days’ written

notice to quit before the tenant or subtenant may be removed from

the property. The bill would provide tenants or subtenants holding

possession of a rental housing unit under a fixed-term residential

lease entered into before transfer of title at the foreclosure sale the

right to possession until the end of the lease term, except in

specified circumstances. The bill would also extend the operation

of these provisions until December 31, 2019.

(4) The California Constitution requires the state to reimburse

local agencies and school districts for certain costs mandated by

the state. Statutory provisions establish procedures for making that

reimbursement.

This bill would provide that no reimbursement is required by

this act for a specified reason.

93

— 3 — AB 2610

The people of the State of California do enact as follows:

SECTION 1. Section 2924.8 of the Civil Code is amended to

read:

2924.8. (a) (1) Upon posting a notice of sale pursuant to

Section 2924f, a trustee or authorized agent shall also post the

following notice, in the manner required for posting the notice of

sale on the property to be sold, and a mortgagee, trustee,

beneficiary, or authorized agent, concurrently with the mailing of

the notice of sale pursuant to Section 2924b, shall send by

first-class mail in an envelope addressed to the “Resident of

property subject to foreclosure sale” the following notice in English

and the languages described in Section 1632:

Foreclosure process has begun on this property, which may affect

your right to continue to live in this property. Twenty days or more

after the date of this notice, this property may be sold at

foreclosure. If you are renting this property, the new property

owner may either give you a new lease or rental agreement or

provide you with a 90-day eviction notice. You may have a right

to stay in your home for longer than 90 days. If you have a

fixed-term lease, the new owner must honor the lease unless the

new owner will occupy the property as a primary residence or in

other limited circumstances. Also, in some cases and in some cities

with a “just cause for eviction” law, you may not have to move at

all. All rights and obligations under your lease or tenancy, including

your obligation to pay rent, will continue after the foreclosure sale.

You may wish to contact a lawyer or your local legal aid office or

housing counseling agency to discuss any rights you may have.

(2) The amendments to the notice in this subdivision made by

the act that added this paragraph shall become operative on March

1, 2013, or 60 days following posting of a dated notice

incorporating those amendments on the Department of Consumer

Affairs Internet Web site, whichever date is later.

(b) It is an infraction to tear down the notice described in

subdivision (a) within 72 hours of posting. Violators shall be

subject to a fine of one hundred dollars ($100).

93

AB 2610 — 4 —

(c) The Department of Consumer Affairs shall make available

translations of the notice described in subdivision (a) which may

be used by a mortgagee, trustee, beneficiary, or authorized agent

to satisfy the requirements of this section.

(d) This section shall only apply to loans secured by residential

real property, and if the billing address for the mortgage note is

different than the property address.

(e) This section shall remain in effect only until December 31,

2019, and as of that date is repealed, unless a later enacted statute,

that is enacted before December 31, 2019, deletes or extends that

date.

SEC. 2. Section 415.46 of the Code of Civil Procedure is

amended to read:

415.46. (a) In addition to the service of a summons and

complaint in an action for unlawful detainer upon a tenant and

subtenant, if any, as prescribed by this article, a prejudgment claim

of right to possession may also be served on any person who

appears to be or who may claim to have occupied the premises at

the time of the filing of the action. Service upon occupants shall

be made pursuant to subdivision (c) by serving a copy of a

prejudgment claim of right to possession, as specified in

subdivision (f), attached to a copy of the summons and complaint

at the same time service is made upon the tenant and subtenant, if

any.

(b) Service of the prejudgment claim of right to possession in

this manner shall be effected by a marshal, sheriff, or registered

process server.

(c) (1) When serving the summons and complaint upon a tenant

and subtenant, if any, the marshal, sheriff, or registered process

server shall make a reasonably diligent effort to ascertain whether

there are other adult occupants of the premises who are not named

in the summons and complaint by inquiring of the person or

persons who are being personally served, or any person of suitable

age and discretion who appears to reside upon the premises,

whether there are other occupants of the premises.

(2) If the identity of such an occupant is disclosed to the officer

or process server and the occupant is present at the premises, the

officer or process server shall serve that occupant with a copy of

the prejudgment claim of right to possession attached to a copy of

the summons and complaint. If personal service cannot be made

93

— 5 — AB 2610

upon that occupant at that time, service may be effected by leaving

a copy of a prejudgment claim of right to possession attached to

a copy of the summons and complaint addressed to that occupant

with a person of suitable age and discretion at the premises, affixing

the same so that it is not readily removable in a conspicuous place

on the premises in a manner most likely to give actual notice to

that occupant, and sending the same addressed to that occupant

by first-class mail.

(3) In addition to the service on an identified occupant, or if no

occupant is disclosed to the officer or process server, or if

substituted service is made upon the tenant and subtenant, if any,

the officer or process server shall serve a prejudgment claim of

right to possession for all other persons who may claim to occupy

the premises at the time of the filing of the action by leaving a

copy of a prejudgment claim of right to possession attached to a

copy of the summons and complaint at the premises at the same

time service is made upon the tenant and subtenant, if any, affixing

the same so that it is not readily removable in a conspicuous place

on the premises so that it is likely to give actual notice to an

occupant, and sending the same addressed to “all occupants in care

of the named tenant” to the premises by first-class mail.

(4) The person serving process shall state the date of service on

the prejudgment claim of right to possession form. However, the

absence of the date of service on the prejudgment claim of right

to possession does not invalidate the claim.

(d) Proof of service under this section shall be filed with the

court and shall include a statement that service was made pursuant

to this section. Service on occupants in accordance with this section

shall not alter or affect service upon the tenant or subtenant, if any.

(e) (1) If an owner or his or her agent has directed and obtained

service of a prejudgment claim of right to possession in accordance

with this section, no occupant of the premises, whether or not that

occupant is named in the judgment for possession, may object to

the enforcement of that judgment as prescribed in Section 1174.3.

(2)

(f) The prejudgment claim of right to possession shall be made

on the following form:

93

— 7 — AB 2610

93

AB 2610 — 8 —

PREJUDGMENT CLAIM OF RIGHT TO POSSESSION

NOTICE

EVERYONE WHO LIVES IN THIS RENTAL UNIT MAY BE

EVICTED BY COURT ORDER. READ THIS FORM IF YOU LIVE

HERE AND YOUR NAME IS NOT ON THE ATTACHED

SUMMONS AND COMPLAINT.

If you live here and you do not complete and submit this form within 10

days of the date of service shown on this form, you will be evicted

without further hearing by the court along with the persons named in the

summons and complaint.

If you file this form, your claim will be determined in the eviction action

against the persons named in the complaint.

If you do not file this form, you will be evicted without further hearing.

CLAIMANT OR CLAIMANT’S ATTORNEY TELEPHONE NO.

(Name and Address):

ATTORNEY FOR (Name):

NAME OF COURT:

STREET ADDRESS:

MAILING ADDRESS:

CITY AND ZIP CODE:

BRANCH NAME:

PLAINTIFF:

DEFENDANT:

CASE NUMBER:

DATE OF SERVICE:

(Date that form is served or

delivered, posted and mailed by

the officer or process server)

PREJUDGMENT CLAIM OF RIGHT

TO POSSESSION

Complete this form only if ALL of these statements are true:

1. You are NOT named in the accompanying Summons and

Complaint.

2. You occupied the subject premises on or before the date

the unlawful detainer (eviction) complaint was filed.

(The date is in the accompanying Summons and Complaint.)

3. You still occupy the subject premises.

FOR COURT — USE ONLY

93

— 9 — AB 2610

PREJUDGMENT CLAIM OF RIGHT TO POSSESSION

I DECLARE THE FOLLOWING UNDER PENALTY OF PERJURY:

1. My name is (specify):

2.

3. The address of “the premises” subject to this claim is (address):

4. On (insert date): , the landlord or the landlord’s

authorized agent filed a complaint to recover possession of the premises.

(This date is in the accompanying Summons and Complaint.)

5. I occupied the premises on the date the complaint was filed (the date in

item 4). I have continued to occupy the premises ever since.

6. I was at least 18 years of age on the date the complaint was filed (the

date in item 4).

7. I claim a right to possession of the premises because I occupied the

premises on the date the complaint was filed (the date in item 4).

8. I was not named in the Summons and Complaint.

9. I understand that if I make this claim of possession, I will be added as a

defendant to the unlawful detainer (eviction) action.

10. (Filing fee) I understand that I must go to the court and pay a filing fee of

$ or file with the court “Application for Waiver of Court

Fees and Costs.” I understand that if I don’t pay the filing fee or file the

form for waiver of court fees within 10 days from the date of service on

the form (excluding court holidays), I will not be entitled to make a

claim of right to possession. I also understand that I will have 5 days

(excluding court holidays) to file a response to the Summons and

Complaint after I file this claim of possession.

NOTICE: If you fail to file this claim, you will be evicted without

further hearing.

I reside at (street address, unit no., city and ZIP code):

93

AB 2610 — 10 —

PREJUDGMENT CLAIM OF RIGHT TO POSSESSION

11. Rental agreement. I have (check all that apply to you):

a. an oral rental agreement with the landlord.

b. a written rental agreement with the landlord.

c. an oral rental agreement with a person other than the landlord.

d. a written rental agreement with a person other than the landlord.

e. other (explain):

I declare under penalty of perjury under the laws of the State of California

that the foregoing is true and correct.

NOTICE: If you file this claim to possession, the unlawful detainer action

against you will be determined at trial. At trial, you may be found liable for

rent, costs, and, in some cases, treble damages.

WARNING: Perjury is a felony punishable by imprisonment

in the state prison.

Date:

(TYPE OR PRINT NAME) (SIGNATURE OF CLAIMANT)

…………………………………………. ➧

93

— 11 — AB 2610

PREJUDGMENT CLAIM OF RIGHT TO POSSESSION

NOTICE TO OCCUPANTS

YOU MUST ACT AT ONCE IF ALL THE FOLLOWING ARE TRUE:

(1) You are not named in the accompanying Summons and Complaint.

(2) You occupied the premises on or before the date the unlawful

detainer (eviction) complaint was filed.

(3) You still occupy the premises.

You can complete and SUBMIT THIS CLAIM FORM within 10 days

from the date of service (on the form) at the court where the unlawful

detainer (eviction) complaint was filed.

If you do not complete and submit this form (and pay a filing fee or

file the form for proceeding in forma pauperis if you cannot pay the

fee), YOU WILL BE EVICTED.

After this form is properly filed, you will be added as a defendant in

the unlawful detainer (eviction) action and your right to occupy the

premises will be decided by the court. If you do not file this claim, you

will be evicted without a hearing.

SEC. 3. Section 1161b of the Code of Civil Procedure is

amended to read:

1161b. (a) Notwithstanding Section 1161a, a tenant or

subtenant in possession of a rental housing unit under a

month-to-month lease or periodic tenancy at the time the property

is sold in foreclosure shall be given 90 days’ written notice to quit

pursuant to Section 1162 before the tenant or subtenant may be

removed from the property as prescribed in this chapter.

(b) In addition to the rights set forth in subdivision (a), tenants

or subtenants holding possession of a rental housing unit under a

fixed-term residential lease entered into before transfer of title at

the foreclosure sale shall have the right to possession until the end

of the lease term, and all rights and obligations under the lease

shall survive foreclosure, except that the tenancy may be terminated

upon 90 days’ written notice to quit pursuant to subdivision (a) if

any of the following conditions apply:

(1) The purchaser or successor in interest will occupy the

housing unit as a primary residence.

(2) The lessee is the mortgagor or the child, spouse, or parent

of the mortgagor.

(3) The lease was not the result of an arms’ length transaction.

(4) The lease requires the receipt of rent that is substantially

less than fair market rent for the property, except when rent is

reduced or subsidized due to a federal, state, or local subsidy or

law.

(c) The purchaser or successor in interest shall bear the burden

of proof in establishing that a fixed-term residential lease is not

entitled to protection under subdivision (b).

(d) This section shall not apply if any party to the note remains

in the property as a tenant, subtenant, or occupant.

(e) Nothing in this section is intended to affect any local just

cause eviction ordinance. This section does not, and shall not be

construed to, affect the authority of a public entity that otherwise

exists to regulate or monitor the basis for eviction.

(f) This section shall remain in effect only until December 31,

2019, and as of that date is repealed, unless a later enacted statute,

that is enacted before December 31, 2019, deletes or extends that

date.

SEC. 4. No reimbursement is required by this act pursuant to

Section 6 of Article XIIIB of the California Constitution because

93

AB 2610 — 12 —

the only costs that may be incurred by a local agency or school

district will be incurred because this act creates a new crime or

infraction, eliminates a crime or infraction, or changes the penalty

for a crime or infraction, within the meaning of Section 17556 of

the Government Code, or changes the definition of a crime within

the eaning of Section 6 of Article XIII B of the California

Constitution.

93

— 13 — AB 2610

Approved , 2012

Governor