How The Nonjudicial Foreclosure Process Discourages Homeowner Defenses In Court
De BISAWiki
You can expect an eviction if your home is sold because of a foreclosure sale. Whether the sale is by auction, or by a trustee's or sheriff's sale, the actual eviction is the legal process by which a property owner has a tenant or trespasser physically removed. When your home is sold at a foreclosure sale, you become a trespasser as soon as the court ordered "Notice to Evict" is issued by the court. In some states, the lender's attorney can request the eviction notice to become part of the final judgment and automatically be in effect when the property is sold at the auction.
Thus, homeowners have two main options when faced with a possible eviction First, they can try to work out some deal with the bank, either for more time to stay in the property until they move out, or to purchase the property back somehow but continue living there until they have accomplished this. Or, the former owners may want to argue against the bank in court and point out the numerous rule violations that have occurred. Either way may buy the homeowners more time to save their homes or move out with the best chance of a quick financial recovery.
But the bank, after the sheriff sale, will have to request that the court order the former owners and current unlawful occupants to be removed from the house. Usually all they would do is show that the title was transferred on the day of the sheriff sale, which establishes stop eviction the new owner as having a legal right to determine who lives in the property. After the foreclosure victims have used all of their options to stop foreclosure with no success, and the sheriff sale has been conducted, the eviction process will usually begin very soon.
If the bankruptcy is filed after your landlord has obtained a judgment of possession against you then the “bankruptcy stay” is not automatic. On page three of the bankruptcy petition you will be asked if your landlord has a judgment of possession against you. If so, then to stop the eviction you must declare that under New York state bankruptcy laws you have the legal right to cure the default. At this time you will also need to leave a deposit with the bankruptcy court clerk for the amount of rent that will be owed to your landlord within 30 days of the filing.
Once the landlord files an eviction suit, a constable will try to hand deliver the eviction suit papers to your home. If the constable or sheriff makes two (2) unsuccessful attempts, they should post the papers in a visible location on the outside of the rental unit and mail you a copy. (It is best to get the papers so you know what is happening. Avoiding being served does not delay the process and might result in you losing the case automatically if you do not know when or where to defend yourself.) Only the constable or the sheriff can legally deliver the eviction suit papers from the court.
You may not have violated the lease as is claimed by the landlord. The landlord may not have given you a proper notice. Know that it is illegal to evict a tenant because the tenant requested repairs or called a housing inspector (see retaliation). An eviction should also be denied if your landlord is discriminating against you based upon race, religion, disability, sex, national origin, color, or having children. The landlord also may have miscalculated the rent owed because of the abuse of late fees. Despite what some landlords say, there are defenses to an eviction suit. These and other issues are discussed more in the Defenses section below.
