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Title must be perfected.

Following a foreclosure sale and prior to the bank or new owner attempting to move forward and initiate an eviction procedure the law imposes certain requirement that all new owners MUST do prior to starting any eviction.

There is a procedure that is available in all counties in California that allows documents to be recorded at the County Recorder’s office that give public notice, otherwise known as constructive notice to any and all interested parties.

The winning bidder at a foreclosure sale is entitled to receive a Trustee’s Deed Upon Sale that is signed and notarized by a representative of the foreclosure company. This document transfers title from the homeowner who lost their home to the new owner. Most foreclosure companies don’t record the Trustee’s Deed Upon Sale. It is up to the new owner to go and record the Trustee’s Deed upon Sale at the County Recorder’s office

If a foreclosure sale takes place on Monday and on Tuesday the new owner initiates an eviction procedure by serving or delivering a 3 Day Notice to Quit to the former owner but has not yet recorded the Trustee’s Deed Upon Sale the eviction is defective. The reason being is that per public records provided by the County Recorder’s office the former owner still owns the property.

Once the Unlawful Detainer is filed in court a response known as a Demurrer to the Complaint can be filed. This type of court action requests the court to dismiss the unlawful detainer case due to California Civil Code 1161a violations.

There are many instances where we have seen clients who have contacted our company having already having been served with an unlawful detainer where the Trustee’s Deed upon Sale was not recorded. The law states that when this situation occurs the court must dismiss the case. Unfortunately in the real world we have seen where Judges just didn’t care and denied our client’s demurrer thus allowed the case to move forward.

It is very unfortunate but in a court of law there is just no way to predict the outcome of a motion or trial. The law does provide and allow an option to appeal a decision that may not have been made properly. It just adds a lot of extra work and expense to fighting an unlawful detainer. The good news is that it also provides for a little more time.

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