Q: How do we stop an unlawful detainer when the law states that we can’t challenge title? Homeowners in the State of California should know that the Unlawful Detainer is a lawsuit filed for POSSESSION and that the Court does not or better put cannot rule on the matter of TITLE. This, time is of the essence in raising defense when the homeowner receives the Summons & Complaint from the agent albeit the law firm representing the mortgage servicer or lender. YOU will have only 5 days to raise defense in the UD Court IN WRITING. The cost in failing to respond within 5 days? A motion by the suing party for a Summary Judgement under a Notice of Entry by Default by the bank/servicer/law firm (collection agency) to EXECUTE “Writ of Possession” in cooperation with the Sheriff’s Office to force EVICTION usually within 15 days on the clock.
Fight to keep your home and be adequately prepared and learn all that you can to defend the validity of the foreclosure/trustee sale action from this website’s tools so you can win to stay in possession of your home. Any amount you wish to contribute to this website blog does not even compare to what you will gain if YOU can remain steadfast in your resolve and belief that it is a violation of your civil rights in this country for someone to strip you of title and ownership interest from the largest single most important lifetime investment- your family home.
If we have managed thus far to still stay inside our home after opposing 2 Sheriff eviction lock- out experiences (with lots if battle scars to show) I know YOU can too! The date is February 28, 2009. The date we re-financed our mortgage loan March 2006. It is with gratitude thanks to Neil and his courageous friends who have freely shared without cost to help us and others on this blog that we have been able to still stay and keep our home of 20 years.
A: Technically you are right. And readers would be well-advised to follow the requirements of statute in terms of objecting to sale.
The problem, as Judge Boyco and Judge Shack have pointed out is that there is a vast inequality in terms of access to knowledge and the law that results in an equality of access to the courts, particularly in non-judicial settings. The failure to object to the sale, like the entry of a default judgment is subject to being set aside based upon excusable neglect and the showing of a meritorious defense.
The filing of an unlawful detainer does not stop, or in legal parlance, estop, homeowners from bringing actions (lawsuits) against the Plaintiff/Petitioner in the UD. It also does not prevent the homeowner from claiming the Plaintiff/Petitioner procured the title by fraud. I believe in California this must be done in two different court jurisdictions and this is where the “pretender lender” bluffs their way through the process. Whether the homeowner lawsuit is filed in general jurisdiction or in Federal Court, the lower court should issue a stay of the UD because the transfer of title is not a judicial event. Hence res judicata does not apply. The filing of the UD is the first time that the parties are in court and the homeowner’s core defense is that the Petitioner is not the proper party to have title, much less file a UD.
The absence of the issuance of a stay order by the lower court, the court of general jurisdiction or the Federal or Bankruptcy Court is therefore in a non-judicial forum a violation of due process requirements in the 5th and 14th amendment of the U.S. Constitution. Failure to issue the stay denies the homeowner access to the courts to seek redress for what is essentially civil or criminal theft. In fact, it is my belief that in these situations, the homeowner should file a police report alleging theft of the title to their real property in a scheme of economic fraud.
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