Civil Litigation (Real Estate Law)

Important UD Cases

100

This case stands for the proposition that post-foreclosure, the private right of action to sue over California Civil Code 2923.5 is extinguished.

What is Mabry v. Superior Court 185 Cal. App. 4th 208. "There is nothing in section 2923.5 that even hints that noncompliance with the statute would cause any cloud on title after an otherwise properly conducted foreclosure sale. We would merely note that under the plain language of section 2923.5, read in conjunction with section 2924g, the only remedy provided is a postponement of the sale before it happens.”

200

What case stands for the proposition that a stipulated judgment in an unlawful detainer is res judicata as to the propriety of the foreclosure?

What is Malkoskie v. Option One Mortgage Corporation, 188 Cal. App. 4th 968. "By stipulating to judgment against them, plaintiffs conceded the validity of Wells Fargo's allegations that the sale had been duly conducted and operated to transfer “duly perfected” legal title to the property. “‘Title is duly perfected when all steps have been taken to make it perfect, i.e., to convey to the purchaser that which he has purchased, valid and good beyond all reasonable doubt … [citation], which includes good record title [citation] … [.]’ [Citation.]” (Stephens, Partain & Cunningham v. Hollis (1987) 196 Cal.App.3d 948, 953 [242 Cal. Rptr. 251].) Plaintiffs' argument below that no valid legal title passed to Wells Fargo in the sale is therefore foreclosed by their voluntary stipulation to a judgment that necessarily decided valid title passed to Wells Fargo entitling the bank to possess the property."

300

Which Supreme Court of California case stated that “the plaintiff need only prove a sale in compliance with the statute and deed of trust, followed by purchase at such sale, and the defendant may raise objections only on that phase of the issue of title. Matters affecting the validity of the trust deed or primary obligation itself or other basic defects in the plaintiff’s title, are neither properly raised in this summary proceeding for possession, nor are they concluded by the judgment.”

What is Cheney v. Trauzettel, (1937) 9 Cal. 2d 158.

400

Which case, most freqently cited by borrower's counsel, states "We are prepared to hold homeowners cannot be evicted, consistent with due process guaranties, without being permitted to raise the affirmative defenses which if proved would maintain their possession and ownership...Accordingly, title to the property is inevitably in issue in this unlawful detainer action, and the action is not within the jurisdiction of the municipal court."

What is Asuncion v. Superior Court of San Diego County, 108 Cal. App. 3d 141. In Asuncion, the former homeowners were defrauded out of title to their home which they had owned for nearly nine years by the unlawful detainer plaintiff in an apparent foreclosure rescue scam. The former homeowners alleged that, in making a short term loan to them for purposes of curing their default on their mortgage loan, the unlawful detainer plaintiff had fraudulently secured title to their property when they unknowingly signed a grant deed conveying title to their home to the plaintiff. Because the former homeowner’s alleged that title to the property at issue in the unlawful detainer action was obtained by fraud, the Court allowed the action to be transferred to permit the former homeowners to defend the eviction action based on claims of fraud in the acquisition of title by the plaintiff.

500

CCP 715.050 states that when the defendant files bankruptcy after a judgment from the unlawful detainer court has been passed down, the defendant has no legal or equitable ownership interest in the property and the plaintiff may proceed with a lockout. Which Bankruptcy Court Case deems CCP 715.050 unconstitutional?

What is Westside Apts., LLC v. Butler (In re Butler), 271 B.R. 867 (Bankr. C.D. Cal. 2002)? "The BK court found that in Westside, the UD defendant clearly had no legal interest in the property. However, they did decide that she had an equitable interest in the property, which was therefore protected by the automatic stay under § 362(a)(3). “Although I share the concerns voiced in Baca and Smith, it is not the province of the California legislature, nor the state or federal courts to attempt to circumvent the application of § 362. Rather, it is within the sole discretion of Congress to modify or eliminate the application of § 362 to residential unlawful detainer actions.” Until then, this Court will not allow a landlord to enforce a valid writ of possession against a tenant in possession of residential property notwithstanding the tenant's bankruptcy filing. Future creditors who seek to rely on Smith, Baca, or CAL.CIV.PROC.CODE § 715.050 for purposes of making an end run around obtaining relief from the automatic stay run the risk of liability for violating the automatic stay."

Rent Control

100

True or False: In Just Cause jurisdictions, you can terminate a tenancy post-foreclosure by giving the tenants 90 days notice.

False. The post-foreclosure tenant is entitled to stay and pay rent and continue their tenancy. Tenants may only be evicted when there is "just cause."

200

True or false: Rent control jurisdictions use the same standards to verify whether a tenancy is bona fide as state and federal law.

False. Very rarely will the lack of a bona fide tenancy be grounds for eviction under rent control. If the market rate is substantially under fair market value, if the transaction was arms length, if the "tenant" is the borrower's child, these are not grounds to deem the lease not bona fide.

300

This is the amount of money you would need to pay a person in Los Angeles who has a dependent child living with them, and has lived in the Property for more than three years, if you are asking them to move based on no fault of their own.

What is $18,300.

400

These are among the most common affirmative defenses in rent controlled jurisdictions (name three).

What are: (1) Failure to maintain habitable premises; (2) Failure to register the property with the housing authority; (3) The unit is an illegal unit and no rent can be collected; (4) Defendant alleges that Plaintiff modified or canceled the Notice to Quit; (5) The amount of the rent requested is excessive.

500

These are the twelve legal reasons for eviction in most rent control / just cause jurisdictions (name four).

What are: 1. The tenant has failed to pay the rent to which the landlord is entitled. 2. The tenant has violated a lawful obligation or covenant of the tenancy, other than the obligation to surrender possession upon proper notice, and has failed to cure such violation after having received written notice thereof from the landlord. 3. The tenant is committing or permitting to exist a nuisance in or is causing damage to the rental unit, or to the appurtenances thereof, or to the common areas of the complex containing the rental unit, or is creating an unreasonable interference with the comfort, safety, or enjoyment of any of the other residents of the same or adjacent buildings. 4. The tenant is using or permitting a rental unit to be used for any illegal purpose. 5. The tenant, who had a written lease or rental agreement which terminated on or after the effective date of this Chapter, has refused, after a written request or demand by the landlord to execute a written extension or renewal thereof for a further term of like duration with similar provisions and in such terms as are not inconsistent with or violate of any provision of this Chapter or any other provision of law. 6. The tenant has refused the landlord reasonable access to the unit for the purpose of making repairs or improvements, or for the purpose of inspection as permitted or required by the lease or by law, or for the purpose of showing the rental unit to any prospective purchaser or mortgagee. 7. The person in possession of the rental unit at the end of a lease term is a subtenant not approved by the landlord. 8. The landlord seeks in good faith to recover possession of the rental unit for use and occupancy by: a) the landlord, or the landlord's spouse, children, or parents, provided the landlord is a natural person and not a corporation or partnership; or b) for a resident manager, provided that: no alternative vacant unit is available for occupancy by a resident manager; except that where a building has an existing resident manager in order to replace her/him with a new manager. 9. The landlord, having complied with all applicable notices and advisements required by law, seeks in good faith to recover possession so as to undertake Primary Renovation Work of the rental unit or the building housing the rental unit, in accordance with a Tenant Habitability Plan accepted by the Department, and the tenant is unreasonably interfering with the landlord’s ability to implement the requirements of the Tenant Habitability Plan by engaging in any of the following actions: a. The tenant has failed to temporarily relocate as required by the accepted Tenant Habitability Plan; or b. The tenant has failed to honor a permanent relocation agreement with the landlord pursuant to Section 152.05 of this Code. 10. The landlord seeks in good faith to recover possession of the rental units under either of the following circumstances: a. to demolish the rental unit: or b. to remove the rental unit permanently from rental housing use. 11. The landlord seeks in good faith to recover possession of the rental unit in order to comply with a governmental agency's order to vacate, order to comply, order to abate, or any other order that necessitates the vacating of the building housing the rental unit as a result of a violation of the Los Angeles Municipal Code or any other provision of law. 12. The Secretary of Housing and Urban Development is both the owner and plaintiff and seeks to recover possession in order to vacate the property prior to sale and has complied with all tenant notification requirements under federal law and administrative regulations.

Protecting Tenants at Foreclosure

100

The federal law "Protecting Tenants at Foreclosure" extends protections to all bona fide tenants in possession if the foreclosure sale took place after which date?

What is May 20, 2009.

200

Which familial relationships with the former borrower will be deemed non-bona fide if those persons are tenants?

Who are the borrower themselves, spouse, children and parents. Notably absent are cousins, aunts, uncles, godparents, best friends, etc.

300

A tenant with a bona fide month to month lease will receive this many days to vacate after the notice for possession is served?

What is ninety days.

400

A tenant with a bona fide fixed term unexpired lease will receive how much time to vacate after the Notice for Possession is served.

What is, until the end of their lease term.

500

The PTAF Act stated that in order for a lease to be bona fide it must be entered into prior to the "notice of foreclosure." The Dodd-Frank Financial Reform Act of 2010 clarified that the "notice of foreclosure" means what step of the foreclosure process?

What is the foreclosure sale.

Stop the UD!

100

This legal standard is used to assess whether an unlawful detainer action should be stayed or consolidated pending the outcome of the unlimited civil suit.

What is a likelihood of success on the merits, the possibility of irreparable harm, and the requirement of posting a bond - the same as a preliminary injunction.

200

This noticed motion is brought in the unlimited civil suit and has the effect of merging the unlimited suit and the unlawful detainer action.

What is a Motion to Consolidate.

300

When filed with the Court, this judicial council form has the same functional effect of consolidating an unlawful detainer case and unlimited civil case without notice, a hearing or the requirement of a bond being posted.

What is a Notice of Related Cases?

400

A stay on executing the writ of possession may not exceed how many days?

What is a maximum of forty days. A stay may not exceed 10 days after the final day for issuing a notice of appeal without the opposing party’s consent, where a stay on appeal would require the posting of an undertaking, regardless of whether an appeal is actually filed. California Code of Civil Procedure § 918(b). An appeal from a judgment directing the delivery of possession of real property may not be stayed without filing an undertaking. California Code of Civil Procedure §917.4. Moreover, a stay pending appeal in unlawful detainer cases requires the defendant to post an undertaking in the form of advanced monthly rent California Code of Civil Procedure §1176(a). Since the time to appeal limited unlawful detainer action is thirty days from the clerk’s mailing of notice of judgment (Cal. Rules of Court 8.822), a stay in a limited unlawful detainer case may not ordinarily exceed forty (40) days from the issuance of judgment.

500

True or false: after a judgment is entered in an unlawful detainer action, it is permissible for the Defendant to obtain a permanent injunction on enforcing the writ of possession from the Judge in another unlimited civil case.

False. When judgment has been entered, a stay order entered by a judge other than the trial judge in an unlawful detainer case is void, because the exclusive power to grant a stay in such cases is lodged by California Code of Civil Procedure § 1176 in the trial judge. Magnaud v. Traeger (1924) 66 Cal App 526. Section § 1176 specifically requires that the petition for stay of judgment shall first be directed to the judge before whom it was rendered.

UD Process

100

Prior to filing an unlawful detainer complaint, what must be served upon the tenants, and how long in advance must it be served?

What is a Notice for Possession, and what is 90 days for bona fide tenants pursuant to the PTAF and 60 days for non-bona fide tenants pursuant to state law.

200

True or false: in order to serve a Notice for Possession by posting and mailing, an order to post must be be obtained from the Court.

False. Pursuant to CCP 1162, a Notice for Possession may be personally served or posted and mailed at the Property. An order to post is not required.

300

After the complaint is served, how long do defendants have to answer before a default may be taken?

What is 5 calendar days if personally served, 15 calendar days if served by substitute service or an order to post.

400

Discovery and discovery motions and motions for summary judgment may be brought on how many days notice in Unlawful Detainer actions? Bonus questions (for double points): for a Motion to Set Aside a Default, how many days notice must be given in an unlawful detainer action?

What is 5 calendar days for an MSJ CCP 1170.7, and 5 calendar days for all discovery CCP 1170.8. What is 16 court days pursuant to CCP 1005 for motion to set aside the default.

500

This is the procedure by which "unknown occupants" are served with the complaint for unlawful detainer, even though their names or even their existence are not known for certain.

What is a prejudgment claim of right to possession pursuant to CCP 1174.25.