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This question is for Expert Barrister at http://www.justanswer.com/law /expert-barrister/
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Answered in 2 hours by:
7/5/2013
Barrister
Barrister, Attorney
Category: Legal
Satisfied Customers: 38,648
Experience: 17 yrs practice, Civil, Criminal, Domestic, Realtor, Landlord 26 yrs
Verified
Hello and good morning.
.
Thank you for requesting me personally. However, I don't see your actual legal question posted.
.
If you can post it, I will do my best to help or get you to someone who can.
.
.
Thanks
Barrister
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Customer reply replied 4 years ago

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:



http://www.davis-stirling.com/MainIndex/Statutes/CivilCode13674/tabid/906/Default.aspx#axzz2Y5kirWlH



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.


 


Thanks,


 


Michelle ;)


 

Irwin Law
Irwin Law, Attorney
Category: Legal
Satisfied Customers: 7,427
Experience: Lawyer & Real Estate Broker, 30+ years, foreclosure, land contracts, inheritance, probate.
Verified

Hi Michelle: Another expert her and I'll try to assist, but I'm not sure the answer will be what you are hoping for. Also, thanks for the pertinent URLs to the relevant information. It certainly helped. First, the debt foreclosed upon by the HOA had to be in excess of $1,800, so I presume that it was. That's Davis-Sterling. Next, the 90 day right of redemption kicked in on the date of the trustee's sale. You don't say whether that time has now passed, only that you were in fact evicted in less than 90 days from the sale date. You want to know what legal cause of action that gives rise to in your favor.

If the 90 day period isn't over, you still have the right to redeem the property and re-assert your right of possession by evicting the current occupants. You could have sued to bar the eviction under the redemption statute and retained possession for the full 90 days. If that time elapsed without you doing anything, then your action for damages is probably limited to the reasonable rental value of the home during the 60 days or so that you had the right to live there. That would be the legal limit of damages unless the redemption statute provides differently, which I don't believe it does. You cannot equate your situation with a personal injury tort action. It's like comparing grapefruit with potatoes. If the 90 days has passed, the legal title is now vested in the purchaser, and you have no claim to void the sale because of the violation of the redemption period law, so the maximum that a court would probably consider, or permit a jury to consider is the value of the days that you lost possession.

I hope that this information is helpful. Please click on a smiley face so that I will be compensated for assisting you. If you have a follow up question please send me back a Reply without entering any rating. Also, be sure to verify this information with a local attorney who is familiar with your local laws and procedures. Thanks again for using Pearl.Com- Just Answer. Your business is appreciated.

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Customer reply replied 4 years ago

Thanks for your time and reply. Per Davis Stirling, I have found the following.


 


==================================================



Transfer of Ownership. During the 90-day redemption period title to the property does not transfer to the highest bidder. Instead, the trustee records a "certificate of sale" which gives notice of the bidder's right to the property. If the delinquent owner does not redeem the property within the 90-day period, title is recorded and ownership transfers to the buyer. Because the highest bidder does not officially own the property until the end of the redemption period, the bidder does not have a right of possession and cannot evict the owner from the property during the redemption period.



Read more: Right of Redemptionhttp://www.davis-stirling.com/MainIndex/RightofRedemption/tabid/1420/Default.aspx#ixzz2YIwZnVlp


==================================================


 


I feel the process was handled in an illegal manner because the title was recorded on the day of the sale not on day 91 which is the requirement. Therefore, I feel that my home / title was taken / stolen and I was wrongfully evicted on day 14.


 


Your thoughts?


 


 


 


 


 


 

It is not what you feel is right or wrong, but rather, the law says what your remedy would be under these circumstances, if anything. I emphasize 'if anything' because without even though your eviction violated this statute, without a statute saying what the penalty for that is, there is nothing to base a lawsuit on but common law. Again, you had the right to redeem the property within 90 days, which you didn't or have not done. You could have stopped the eviction dead in it's tracks with an injunction suit, but you chose not to, for reasons you don't state here. In law, this is called "sitting on ones' rights" and one does not gain favor in a court of law by doing so. Yes, they evicted you some days before the statute says they could. That would be a civil violation of that statute. But the statute appears to be silent as to any specific penalty for that, so a judge cannot simply make up one. Which brings me back to the aspect of common law damages for being deprived of your right to possession for a certain number of days. The best you can hope for IMO, is that a court would put a fair per diem value on those days and award you that amount without reducing it for failure to mitigate it by seeking an injunction when the eviction was first attempted. The law

of contract and statutory damages is not without rules and boundaries which bind courts and juries. A worst case scenario is that a judge might say that without a statutory damage provision for violation of the redemption right, there can be no damages awarded, and s/he tosses your gets dismissed right out of the gate. If you really want to know what your case is worth, try hiring a trial lawyer on a contingency fee basis. My guess is that you've already tried and haven't been able to. I am sorry to have to bring you this rough analysis of your situation, but I've seen lawsuits that should never have been filed, literally take over and wreck peoples lives. Therefore, please don't shoot this messenger. I might be saving you more grief and aggravation than you can imagine.

 

I hope that this information is helpful. Please click on a smiley face so that I will be
compensated for assisting you. If you have a follow up question please send me
back a Reply without entering any rating. Also, be sure to verify this
information with a local attorney who is familiar with your local laws and
procedures. Thanks again for using Pearl.Com- Just Answer. Your business
is appreciated.





 

Irwin Law
Irwin Law, Attorney
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Experience: Lawyer & Real Estate Broker, 30+ years, foreclosure, land contracts, inheritance, probate.
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