Hello....this is Michelle.....and this question is for Expert Barrister at http://www.justanswer.com/law/expert-barrister/ or a super smart litigator who clearly understands California's Davis-
Stirling Act which applies to all common interest developments in California.
Please take the time to review the links I am providing below so that we can have an intelligent conversation. I am still new to this so I will do my best to not waste your time in any way.
The focus is on Civil Code §1367.4. Limitations on Foreclosure - here is the link:
Further, drilling down even more we end up at Civil Code §1367.4(c)(4) which happens to spell out the 90-day redemption period and lack of eviction rights.
OK, let's go back to the original question at http://www.justanswer.com/real-estate-law/7pdxk-california-hoa-forecloses-subordinate-1st-lien.html and scroll towards
the near bottom.
The question is regarding the point when the HOA or third party buyer actually takes title. Based on my research and your answer in addition to the very nice summary at http://www.davis-
stirling.com/MainIndex/RightofRedemption/tabid/1420/Default.aspx#axzz2Y5kirWlH ------ it is pretty much obvious that the HOA or third party buyer DOES NOT receive or better yet (SHOULD NOT RECEIVE) title from the trustee until after 90 days have passed.
In addition, the owner CAN NOT be evicted.
Now...let's go back to the original poster / customer named Michelle. What if we assume the following additional information:
1. The trustee sale is held and the HOA is the only bidder at $17,950.00 on a home with $100,000 equity. The sale WAS NOT published or promoted to other home owners in the community by way of the minutes as required by law. ZERO LEGAL ADVICE WAS OBTAINED FROM ANY LEGAL PROFESSIONALS.
2. Her title was stripped from her ON THE DAY OF the HOA foreclosure by the trustee's recording of a Deed of Trust instead of Certificate of Sale. ZERO LEGAL ADVICE WAS OBTAINED FROM ANY LEGAL PROFESSIONALS.
3. The County Recorder records the document and transfers title from the owner to the HOA. ZERO LEGAL ADVICE WAS OBTAINED FROM ANY LEGAL PROFESSIONALS.
4. ZERO LEGAL ADVICE WAS OBTAINED FROM ANY LEGAL PROFESSIONAL AND the HOA and management company immediately post a 3 day to vacate notice on Michelle's door. A couple of days later, Michelle is handed an unlawful detainer which then leads to a strongly worded document by the Sheriff Department to vacate the property within 5 days. SLAM DUNK, WE HAVE MICHELLE'S HOME, NOW GET OUT! Ooooppps, wait a second.....an eviction lawyer was involved with the unlawful detainer ---- I think Michelle would refer to him as the clueless type that runs a puppy mill rather than a professional services firm.
YES!!! And all this happened within the first 14 days of the date of the trustee sale date ---- NOT AFTER THE EXPIRATION OF THE 90 DAY REDEMPTION PERIOD.
So why did this happen? Was it GREED? Did someone "on the inside" have a plan to score the home on the cheap via the bank foreclosure? Keep in mind that the HOA DID contact Michelle's lender to "let them know that they HOA did NOT want to keep the house as a rental."
Yes, a really bad situation....neighbors doing evil things.......there is more to this story, but sticking to the facts is most important.
So.....as you might guess, here is what Michelle is getting at:
Does she have grounds to sue for damages? Who does she go after first? What damages? For example....she lost her home? That should be nasty enough to get the attention of the HOA's insurance company...don't you think? People get $140,000 for a staged slip and fall.....losing your home without some due process and/or the correct legal means should be worth something on a much larger scale don't you think?
Should she seek to go after.....Trustee? The court? Sheriff? Recorder?
Too many chefs in this kitchen right?
Well, when you have time for a detailed reply then that will be very much appreciated......please take your time if you want to check on any items.....you will receive very positive feedback no matter what.