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[ Follow Ups ] [ Post Followup ] [ The Forum Board ] [ FAQ ] Re: Lien Posted by Rod Ciferri on July 31, 2011 at 6:21 PM In Reply to: Re: Lien posted by Robert on July 31, 2011 at 5:45 PM : Okay so you are living in the home and a notice of Trustee sale is posted to your door. : What do you do next? Nothing you can do since you cannot take it to Judicial foreclosure. : So you wait until it is sold at trustee sale. It either goes back to the bank or is sold to 3rd party. : You get the eviction notice, you are not a tenant, you claim to be an owner so you must be out in 3 days. : What is your argument in court for the Unlawful detainer to not get kicked out? You can't claim ignorance! : Sounds like you are trying to claim that the lien was not a proper lien but that argument won't fly in that court since the : trustee sale has already happened. You delay for a while and you are kicked out. : If you want to challenge the lien you will need to go to court with a lawsuit when the NOD is filed and you will need standing. : Since the loan is not assumable and has a clause for payoff is transferred good luck. I'm thinking I move in right after the sale (if the bank buys it back; I don't want to hassle third party investors - they will likely be bona fide purchasers - unlike the bank). Remember, I would only do this on a sale that was so irregular as to be void, so, the bank has notice of the irregularities and cannot be a bona fide purchaser. Since the bank is not a bona fide purchaser, it doesn't get the conclusive presumption of title like most third parties would get. A non-bona fide purchaser of a trustee's deed only gets a rebuttable presumption of title. My possession and quitclaim rebuts that presumption right off the bat, shifting the burden of proof back to the bank. The bank then has to lay its cards on the table (something it rarely has to do in California since everyone is trying to sue the bank in quiet title/wrongful foreclosure and they haven't been able to carry their initial burden of proof to shift it back to the bank). If I don't win on demurrer, I will do discovery and likely find some other entity that claims title and other damaging information. Then comes their summary judgment motion or trial. At that point, they will have no choice but to prove their title. In order to prove their title, they have to prove that the foreclosure sale was proper. If they can't, I win. Basically, I would make all the same arguments the banks have been making to defeat the quiet title/wrongful foreclosure actions of the homeowners. It worked for the banks where the homeowner was a plaintiff; it will work against the banks now that the banks are forced to be plaintiffs. Follow Ups: Re: Lien BIG 6:35 PM, 07/31/11 (3) Re: Lien Rod Ciferri 6:49 PM, 07/31/11 (2) Re: Lien Robert 11:42 AM, 08/01/11 (1) Re: Lien Rod Ciferri 8:36 PM, 08/01/11 (0) Post a Followup: Name : E-Mail : Subject : Comments: : : Okay so you are living in the home and a notice of Trustee sale is posted to your door. : : What do you do next? Nothing you can do since you cannot take it to Judicial foreclosure. : : So you wait until it is sold at trustee sale. It either goes back to the bank or is sold to 3rd party. : : You get the eviction notice, you are not a tenant, you claim to be an owner so you must be out in 3 days. : : What is your argument in court for the Unlawful detainer to not get kicked out? You can't claim ignorance! : : Sounds like you are trying to claim that the lien was not a proper lien but that argument won't fly in that court since the : : trustee sale has already happened. You delay for a while and you are kicked out. : : If you want to challenge the lien you will need to go to court with a lawsuit when the NOD is filed and you will need standing. : : Since the loan is not assumable and has a clause for payoff is transferred good luck. : I'm thinking I move in right after the sale (if the bank buys it back; I don't want to hassle third party investors - they will likely be bona fide purchasers - unlike the bank). Remember, I would only do this on a sale that was so irregular as to be void, so, the bank has notice of the irregularities and cannot be a bona fide purchaser. Since the bank is not a bona fide purchaser, it doesn't get the conclusive presumption of title like most third parties would get. A non-bona fide purchaser of a trustee's deed only gets a rebuttable presumption of title. My possession and quitclaim rebuts that presumption right off the bat, shifting the burden of proof back to the bank. The bank then has to lay its cards on the table (something it rarely has to do in California since everyone is trying to sue the bank in quiet title/wrongful foreclosure and they haven't been able to carry their initial burden of proof to shift it back to the bank). : If I don't win on demurrer, I will do discovery and likely find some other entity that claims title and other damaging information. Then comes their summary judgment motion or trial. At that point, they will have no choice but to prove their title. In order to prove their title, they have to prove that the foreclosure sale was proper. If they can't, I win. : Basically, I would make all the same arguments the banks have been making to defeat the quiet title/wrongful foreclosure actions of the homeowners. It worked for the banks where the homeowner was a plaintiff; it will work against the banks now that the banks are forced to be plaintiffs. 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