Invalid Title As an Affirmative Defense to an Eviction After a Foreclosure Sale

This article will discuss using invalid title as an affirmative defense that may be raised by defendants in an unlawful detainer (eviction) after a foreclosure sale in California. Invalid title means that the plaintiff in the eviction case does not have a duly perfected title.

With the housing crisis and the large amount of foreclosures, the number of evictions after a foreclosure sale has increased dramatically in California.

The issue of whether plaintiff has valid title ordinarily cannot be raised in eviction cases and, if it is raised in the tenant’s answer, it would subject to a motion to strike.

Since a valid title is part of plaintiff’s prima facie case, it is in issue under a specific denial, assuming that valid title is alleged in the complaint. If a valid title is not alleged in the complaint that would be grounds for a general demurrer on the grounds of failure to state a cause of action.

However, the rules are different in an eviction after foreclosure sale in California in that an eviction after foreclosure or other similar sale under Code of Civil Procedure Section 1161a requires the purchaser seeking eviction to have “duly perfected” title.

This means that in an eviction after foreclosure, a plaintiff’s lack of title is an affirmative defense as stated by the California Supreme Court.

There may be many reasons that a plaintiff does not have a valid title. For instance Civil Code Section 2934a requires that if a substitution of trustee is made after a notice of sale has been given, a new notice of sale containing the name, street address, and telephone number of the substituted trustee must be given pursuant to Civil Code Section 2924f after execution of the substitution, or any sale conducted by the substituted trustee will be void.

Clearly if the sale conducted by the substituted trustee was void this means that the purchaser did not obtain valid title to the property. As a result they cannot show that they have duly perfected title to the property.

This type of objection could be raised by a general demurrer, however, for tactical reasons it may be a better choice to plead that defense in the answer, and then obtain the appropriate documentary evidence, namely certified copies of the recorded documents, to use at trial, or in a possible motion for summary judgment and/or adjudication. Certified copies of documents are self-authenticating pursuant to California Evidence Code Sections 1450 through 1454.

The author sincerely hopes that you have enjoyed this article.

Yours Truly,

Stan Burman

Copyright 2012 Stan Burman. All rights reserved.