William A. Roper, Jr. wrote: NOTE: Caution To Those In Non-Judicial Foreclosure States
I recently received an inquiry from a borrower in a non-judicial foreclosure state, asking for help identitfying authoritative standing
decisions that might be helpful in resisting an already completed non-judicial foreclosure in the borrower's jurisdiction.I want to emphasize that while making a standing argument can be a potent defensive tactic in many judicial foreclosure jurisdictions, in non-judicial foreclosure states, the alleged mortgage investor typically is seeking to foreclosure using a private power of sale appearing within the deed of trust, security deed or other mortgage security instrument.
With a private sale
, the alleged mortgage investor is NOT usually seeking to invoke a Court's jurisdiction
to effect the foreclosure and the standing argument is therefore usually ineffective. The two most common defensive strategies used in non-judicial foreclosure states include Bankruptcy and affirmative action by the borrower to obtain a Temporary Restraining Order restraining the sale.
In a Bankruptcy setting, the alleged mortgage investor again is placed in the position of needing to come into court to (a) file a proof of claim, and/or (b) file a motion for relief of stay. In some instances, the borrower has successfully filed an adversary action against the alleged mortgage investor.
While a borrower may be able to successfully resist a claim or a motion for relief of stay based upon the alleged mortgage investor's failure to prove its rights (which is comparable to the standing argument), the pure standing argument is usually applicable only in a judicial foreclosure
setting.THIS IS A TREACHEROUS AREA OF THE LAW AND YOU DO NOT WANT TO PUT YOUR HOME AT RISK PURSUING AN INVALID STRATEGY. CONSULT A LAWYER FAMILIAR WITH THE LAW IN YOUR JURISDICTION!
And on that note....
MOTION TO STRIKE PORTIONS OF DEFENDANT’S ANSWER FILED BY J.P. MORGAN CHASE BANK, N.A.
San Mateo County_Law & Motion_Tentative Ruling:
CLJ 202669 J.P. MORGAN CHASE BANK, N.A. VS. VIRGILIO ORTIZ, ET AL.
· DENIED. The Motion of Plaintiff to Strike Portions of the Defendant Jamie Ortiz’ Answer is DENIED. See, Code of Civ. Proc. Sec. 1161a and Vella v. Hudgins (1977) 20 Cal.3d 251, 255.
· Plaintiff is seeking to establish its right to possession under CCP Sec. 1161a, under which Plaintiff is obligated to show it has perfected title! An “eviction after foreclosure . . . sale under CCP Sec. 1161a requires the purchaser seeking eviction to have ‘duly perfected’ title. Thus, in Sec. 1161a UDs, a plaintiff’s lack of title is a defense.” Friedman, Garcia & Hagarty, Landlord-Tenant (The Rutter Group) Sec. 8:388, citing Vella v. Hudgins (1977) 20 Cal.3d 251, 255 and Evans v. Sup.Ct. (Robbins) (1977) 67 Cal.App.3d 162, 169.
· The Vella court states: “A qualified exception to the rule that title cannot be tried in unlawful detainer is contained in Code of Civil Procedure section 1161a, which extends the summary eviction remedy beyond the conventional landlord-tenant relationship to include certain purchasers of property . . . . Section 1161a provides for a narrow and sharply focused examination of title.” Vella, supra, 20 Cal.3d 251 at 255.
· There is nothing contrary to law or improper about the allegations made in the Answer.
· If the tentative ruling is uncontested, it shall become the order of the court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required, as the tentative ruling affords sufficient notice to the parties.