Eviction After Foreclosure

Homeowners facing foreclosure should be aware of the eviction process after their home has been sold at a foreclosure sale.  Many homeowners are under the mistaken belief that immediately after the foreclosure sale, a sheriff will immediately be at their door to evict them.  This simply isn’t true and an understanding of Arizona’s eviction laws is necessary so that homeowners will be aware of their rights and obligations after their home has been foreclosed upon.

Arizona law generally prohibits the landlord or owner of residential property from exercising so-called “self-help” remedies to evict their tenants or other occupants of the property. Thus, the owner cannot change the locks or shut off utilities without first bringing an eviction lawsuit.

Residential eviction lawsuits in Arizona are called forcible entry and detainer actions. Arizona’s forcible entry and detainer actions laws specifically cover evictions by the new owner of a home (often the former mortgage lender) following a trustee’s sale or foreclosure.

The first step which the new owner must take to evict the former owner is to make a written demand for possession. Assuming the former owner doesn’t leave after receiving the written demand (Arizona law is unclear as to the time period the former owner has to vacate after receiving the notice), the new owner must file a complaint in court and serve a summons upon the former owner in order to evict him.  Trial is generally supposed to be five business days after the complaint is filed, although the trial date may be extended for a few more days.  If the former owner doesn’t appear for trial or is found guilty, an eviction order (called a “writ of restitution”) will be issued directing the sheriff to evict the former owner. The writ cannot be issued until five calendar days after the judgment is entered. The sheriff can then can go to the property and forcibly remove the former owner, although in reality because of the backlog of  foreclosures in Arizona today, that time period is likely to be longer.

A major exception to the rule that residential owners of property cannot exercise self help is if the property has been abandoned by its former occupant. A relatively common occurrence after foreclosure is for the new owner (or more likely an agent for the new owner) to inspect the home and upon inspection find that most or all of the personal belongings of the former occupant have been removed. Under the belief that the property has been abandoned, the new owner in order to avoid a costly and time consuming eviction action and to possibly prevent the vacant home from being vandalized, exercises self help and changes the locks.  Frequently, however, the reason the personal property has been removed is because the former owner is in the process of moving out but has not yet done so and is actually still living at the home!  Although the law in Arizona is not crystal clear on the issue of abandonment claims in cases of evictions after a foreclosure, in order to avoid a claim of abandonment by the new owner, the former owner should notify the new owner, in writing by certified mail, return receipt requested, that he is not surrendering the home and is, in fact, still living there.

Homeowners should be aware that if they continue to occupy the property following a foreclosure sale, the new owner may try to characterize this post-sale occupancy as a criminal trespass and/or bring a lawsuit against the former homeowner to recover damages which may be in the form of a reasonable rent for the number of days that the new owner did not have possession of the home. Because Arizona’s laws are relatively complex and sometimes unclear, it is of course recommended that legal counsel be consulted by homeowners potentially facing eviction after foreclosure.

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3 Responses to Eviction After Foreclosure

  1. ruthanntraci says:

    house sold at auction 3/15 federal housing to fannie mae notified 3/17; agent came back prior to 10 days, called for extention cash for keys/needed more time, cash for keys given to room mate/homeowner living in home never given eviction notice, fannie mae and their attorney told plenty of time, 30/60 pushin for 30, did not give any cash for anything, left home in perfect shape/took stove and refrigerator with; other candidate was offered to rent home back/also told would be given cash for keys, although would deduct for store/refrigerator;stove&refrigerator special promo $800 for both/illegal entry/locked out 4.13.11,didn’t matter still not given cash for keys any kind of assistance for moving, senior on fixed income, created a hardship, trying to maintain other mortgages. No recourse, nobody is concerned

  2. Haley Shea says:

    I beleive my home was foreclosed illegally. My bank, (B of A) lied to me continually for years and I spoke to over 120 people and was told lie after lie and given, so much wrong information it is unbeleivable.

    I worked for a time with HUD & UTLS and they was astounded at what B of A did with my loan.

    The new owners are harassing me and telling me that I legally had to leave within 5 days of the sale and had to leave all appliances and fixtures in the house and couldn’t remove anything that was in the house at the time of foreclosure.

    As I was the only one in the house who would know? Not that I would lie, but the buyer did see the home during a showing and tried to buy it short-sale and then bought at auction thru a company in ND that charged him $10,000. They are the actual owners although he drops by and wants to come in daily.

    No one has shown me any ded to who actually owns the house, my bank never informed me that it was sold. My realtor did, but my bank has never contacted me.

    I have 2 loan modifications that were offered to me and 1 they said after was no longer available when they sent it and it went out my mistake. That program was obsolute. I would receive another shortly. This was after I made all my forebearance payments on time. I was given another loan modification and the rate, loan balance & terms the same, but payment was much more.

    No one could explain this to me and the figures didn’t add up. I used to be an underwruter and can figure interest. HUD and a loan mod atty also said they figures were incorrect. B of A said they did not ned to review them or show me how they came up with them. Many people told me this. They also (again many people) told me they did not know if my forebearance was credited to me and no one would check.

    They said they “couldn’t” as it went to a 3rd party agancy. But the checks that were cashed were made out to B of A I think. Not entirely sure. I would ned to check that as it was 2 years ago. I did call each month to make sure that the payment arrived and they told me yes each month.

    I have lots of documentation.
    I am disabled and very ill. I cannot physically move myself or afford to pay people to pack & move me. I have been waiting for my SSI that I am quite sure will be approved as 2 Drs who are famous wrote letters that I was unable to work now or ever and that my illness were incurable and incuded some medical records. To get more records wpuld be expensive. There was enough included and my illness are in the SSI guidelines and I do think I will be awarded SSI.

    I am pushing them to get my case re-heard and SSi had put my case in the expidate pile to be heard ASAP.

    I asked if I win how soon will I get the back $ or any benefits. The woman I spoke to could not tell me and lead me to beleive that no one at the office could.

    I was not expecting my house to be foreclosed and I feel they not only made mistakes, they did illegal things in regard to my loan. So did my HUD rep and the woman from UTLS.

    I want to sue for illegal foreclosure and many other s things having to do with my health.

    But for now until I can get my tumors bioposied and treated and $ to pay people to pack I want to be left alone and not harassed by the “new owner” stopping by daily and knocking & ringing my bell when I am asleep and unwell.

    Can you help me for free (on a contingency basis)? And also give me advise about what to do to stay until I am well enough and have the fund to move (I am hoping it will be within 4 weeks). But who knows. SSI is not much more informative than B of A, but they do not LIE or intentionally mislead me as B of A did.

    I was told from B of A that the decision to not push back the foreclosure date no matter what offer came thru was made on May21, a week before they told me it was being considered (the new short-sale person). I asked why they didn’t tell me and I was told over and over by a supervisor, “I can’t comment”. I know enough to know “I can’t comment” is a cover-up when it comes from a supervisor. So I called back and asked to speak to a regular peson the same question and got a different answer.

    I was told that if I had known I could have filed bankrupty and held up the sale for several months and they wanted it to go to sale right away! So they all lied (knowingly or not) to prenet me from doing what I would have to have stayed until I was well enough to move and had the funds to move. With the bankrupty an atty would have worked out a payment schedule where he would have stopped the foreclosure for $150. I could have taken care of my health and my SSI would have come thru before filig bankrupty.

    There are so many crazy lies from B of A over the last 2 & 1/2 years it is mind-blowing. You would think the loan came out of a 3rd world country. The things they said, “the post-it” attached to your file came loose? I asked didn’t they have it all on computer and the answer was “no”, my file got transferred from state to state and each state scred up more & more.
    But I really ned to know my rights s to the people who say I should have been pout 5 days after the sale and charged $10,000 to handle the sale for the new guy. They are both the people he hired (whose name the house is in) and he himself. Can you help me free as until I get my SSI $< I have no income and cannot work. I sell personal belongings to pay utilities each mont.

    By the way the house has black mold and danagerous electricial issues. That is also why I don't have an income. I used to be able to rent rooms until the black mold made my roommates sick. I keep getting sicker the longer I stay her, but I also do not have a place to move to w/o the SSI $ and may ned surgery quickly.

    Can you help or give me names of people who can? I would love to ask questions as I haven't been able to find out much accurate, correct information on the I-net.

    I do have lots of documentation. From the start even though they told me, "don't worry, you'll get a loan modification for sure", they made so many mistakes and gave me so much conflicting answers to my questions I knew it could go wrong.

    I know thes new owners are wrong about some things, I'm sure, but I really need to know what attorney I can speak to about my case.

    I have tried the volunter attorneys every day since the FC and can't get thru. Please help, it is so hard being disabled with no family and no income and relying on GOVT agencies.

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