Allege invalid title as a defense to an unlawful detainer (eviction) after foreclosure in California
This blog post will briefly discuss some of the affirmative defenses that may be raised by defendants in an unlawful detainer (eviction) after foreclosure sale in California. In particular it discusses why and how to allege invalid title as as an affirmative defense to an eviction after foreclosure sale in California. Note that the defense of invalid title can only be used by defendants in an eviction after foreclosure sale in California.
With the housing crisis and the large amount of foreclosures, the number of evictions after a foreclosure sale has increased dramatically.
The Courts have ruled that title issues ordinarily cannot be raised in unlawful detainers and, if raised in the tenant’s answer, are subject to motion to strike. See High v. Cavanaugh (1962) 205 Cal. App. 2d 495, 498–499.
Since title is part of plaintiff’s prima facie case, it is in issue under a specific denial, assuming title is alleged in the complaint. If valid title is not alleged in the complaint that would be grounds for a general demurrer on the grounds of failure to state a cause of action.
However, the rules are different in an eviction after foreclosure sale in California in that an eviction after foreclosure or other similar sale under Code of Civil Procedure § 1161a requires the purchaser seeking eviction to have “duly perfected” title. Thus, in an eviction after foreclosure, plaintiff’s lack of title is a defense. See Vella v. Hudgins (1977) 20 Cal. 3d 251, 255, see also Evans v. Super.Ct. (Robbins) (1977) 67 Cal. App. 162, 169.
There may be many reasons that a plaintiff does not have valid title. For instance Civil Code § 2934a requires that if a substitution of trustee is made after a notice of sale has been made that a new notice of sale containing the name, street address, and telephone number of the substituted trustee must be given pursuant to Civil Code § 2924f after execution of the substitution, or any sale conducted by the substituted trustee will be void. Clearly if the sale conducted by the substituted trustee was void than the purchaser did not obtain valid title to the property.
This type of objection could be raised by a demurrer, however, for tactical reasons it may be a better choice to plead that defense in the answer, and then obtain the appropriate documentary evidence, namely certified copies of the recorded documents, to use at trial, or in a possible motion for summary judgment and/or adjudication. Certified copies of documents are self-authenticating pursuant to California Evidence Code §§ 1450 through 1454.
Attorneys or parties in California who wish to view a portion of an answer to unlawful detainer that contains the affirmative defense that plaintiff does not have valid title can see below.
http://www.scribd.com/doc/46578589/Sample-Answer-to-Unlawful-Detainer-Complaint-for-California
The author of this article, Stan Burman, is a freelance paralegal with over 15 years of experience in California Civil Litigation. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information.
