Homeowner Rights, Foreclosure Eviction Laws, and Forcible Detainers
A Forcible Entry and Detainer is an action that a new property owner (the foreclosing bank) can take if the existing occupant refuses to leave after appropriate notice (90 day notice of Trustee Sale). This occupant could be either a tenant or original owner of property that was sold at a foreclosure or trustee's sale. Foreclosure eviction laws are subject to change, but this article is current as of March 2010.
The tenant/occupant receives a written demand to vacate the property. The term of the period to vacate is dictated by the type of occupancy - whether commercial or residential and whether a tenant or an owner that was foreclosed on. This term normally is either 5 or 7 days, unless the contract states otherwise. After the 5-7 days expire and the tenant/occupant still refuse to leave then a complaint for a forcible detainer action can be filed. The statutes provide for a very short notice period before a court hearing.
The sole issue at the court hearing is whether or not the tenant/occupant has the right to possession. If they do not then they will be found guilty of a forcible entry and detainer. The court will enter an order directing the tenant/occupant to vacate within 5 judicial days. After that period has expired the Sheriff's office can then evict the tenants/occupants, remove their personal property and give the rightful owner possession and control of the property.
It would be wise for the rightful owner to change the locks and take steps to protect the property.
Typically the seller must vacate the home within 7 to 14 days after a Trustee Sale (auction). Often the bank will offer the homeowner a $1,000 - $2,000 relocation fee if the homeowner moves within several days and leaves the home is good condition. If a foreclosed homeowner is being forced out without a moving fee or several days to move, the homeowner has rights. Inform the lender’s representative that you request a moving fee or are requiring them to file a Forcible Entry and Detainer Action. If they refuse to comply with either of these or if you feel your rights are being infringed upon, contact the local Sheriff for enforcement of current foreclosure eviction laws.
If the lender has to file a Forcible Entry and Detainer Action, you will not be able to get any cash for moving expenses.
[Note: more research was done after this article was posted. Reference this article to see how a part of the government may be breaking the law : Fannie Mae blantantly violating protecting tenants at foreclosure act]
Georgi Stratton ,Paralegal - Director of Short Sales, Winsor & Coleman, PLC Direct: 480.695.6565 Fax: 480.699.8853 Email: georgistratton@yahoo.com
Question: If a home owner has been renting their once principle resident property for nearly a year in hopes of market recovery, but near the end of the lease expiring with the tennant, decides to stop paying the mortgage to the bank with intent of giving back the property to banks (deed in lieu of foreclosure, or worst case, foreclosure by banks), can the mortgage holder do anything to the property, or to the tennant (such as a lock out) before foreclosure is completed?
What might be the fastest foreclosure in AZ?
Posted by: anonymous | July 25, 2010 at 01:09 PM
On one hand you have the law and on the other hand you have what some banks are actually doing. As I understand current laws, a lease agreement is a binding contract to be honored. Additionally, the bank does not have a legal right to lock you out before a foreclosure action because they technically don't own the property. Even if they tried to intimidate you with a lockout, there is no reason they would not accept your lease payment and allow you to stay in the property. In other words, if your landlord is not paying the mortgage there is no reason to pay your landlord, but you could pay the lease payment to the bank and they should have no problem with you staying in the house during your lease.
The quickest foreclosure action is the deed in lieu of foreclosure. That can happen in a matter of weeks because the current property owner is signing over all rights to the house and the bank will own it very quickly.
It seems to me your best course of action would be to have the current owner, your landlord, communicate your desire to stay in the house and make lease payments to the bank.
Posted by: Ron | July 25, 2010 at 08:01 PM
The landlord will have to register an unlawful detainer lawsuit. This is to be done in one of the superior court. This is the judicial process and one party is to be called the plaintiff and the other is to be called the defendant. In fact the tenant is called the defendant and the landlord is called the plaintiff. If you have gone through any judicial process then you must know about this process clearly.
Posted by: DoMyOWnEvictions | August 02, 2010 at 10:42 PM
hello
does the owner of the house has any rights to bidding on his own home at trustee sale?if yes ,do you recommend an attorny to be there for him on the sale day?are you still protected by arizona anti deficeincy law if you win your own home at the trustee sale?thank you
Posted by: tom | January 04, 2011 at 03:01 AM
Thanks for all this info. Great post and so much info. I think this will help alot of people
become more informed to make decisions on where they are heading.
Posted by: dubturboreview | February 25, 2011 at 09:57 PM
In fact the tenant is called the defendant and the landlord is called the plaintiff.
Posted by: ClubPenguinCheats | March 04, 2011 at 12:57 AM
If a homeowner of 20 years is foreclosed, and locked out. will filing an ex parte stall the 15 days to remove belongings.
Posted by: debbie bridges | March 16, 2011 at 06:34 PM
If a homeowner has been foreclosed,and lockout has occurred but personal property still in home, is there any document or order that be filed thru the court to stop the removal of personal property for an extended period of time and how much
Posted by: debbie bridges | March 16, 2011 at 06:40 PM
Debbie, I am much more a realtor than a lawyer. Here is my source for those kinds of questions:
http://www.doctorevictor.com/ an expert eviction attorney. Best of luck!
Posted by: Ron | March 17, 2011 at 07:49 AM
The quickest foreclosure action is the deed in lieu of foreclosure. That can happen in a matter of weeks because the current property owner is signing over all rights to the house and the bank will own it very quickly
Posted by: bad boys 3 | April 19, 2011 at 02:52 AM
This is true. Some banks make it easier than others. I understand it still shows up as a foreclosure on your credit report. However, the biggest advantage is that you do not have to sustain as many late payments on your credit report.
Posted by: Ron | May 05, 2011 at 12:21 PM
An informative blog! In fact the tenant is called the defendant and the landlord is called the plaintiff. If you have gone through any judicial process then you must know about this process clearly.
Posted by: Camarad | August 26, 2011 at 03:11 AM
thank goodness for rule breaking! I love your page.Thank you for another great article.so you are allowed to change them whenever you want.this article was very interesting.great read, its always fun to read about happy events.I found this very interesting.
Posted by: Justin Bieber Shoes | September 16, 2011 at 06:31 PM
I think, this theme is quite actual now. After the 5-7 days expire and the tenant/occupant still refuse to leave then a complaint for a forcible detainer action can be filed. The statutes provide for a very short notice period before a court hearing.
Posted by: Garrett Hedlund | September 26, 2011 at 04:06 AM
ibought a house in mesa which i qulified for both homes. My intention was to pay for both while i put my old houseon the market untill sold ,well during this process i found out i had kidney cancer.After two months off work i could no longer pay.Green tree has been harassing me for two months now . they have not filed anything through the state or given me written notice of foreclosure
but they went and sent someone to change locks on my old housesince they have not filed anything i believe this is tresspassing. I might add my realtor has her lock pad on front door since we are trying to do a short sale can someone please help me?
Posted by: Robert Lopez | January 01, 2012 at 04:44 AM
Here is a resource for you:
http://www.azforeclosureprevention.org/index.htm
They would only change the locks if they believe the house is vacant. They want to protect the house assuming they will own it after foreclosure.
Many real estate attorneys will give a limited amount of free advice. I recommend this one:
http://www.valleywidehomes.com/real-estate-mortgage-short-sale-process-legal-implications/
Click on the word attorney. Good luck!
Posted by: Ron | January 06, 2012 at 01:12 PM