A Forcible Entry and Detainer is an action that a new property owner (the foreclosing bank) can take if the existing occupant refuses to leave after appropriate notice (90 day notice of Trustee Sale). This occupant could be either a tenant or original owner of property that was sold at a foreclosure or trustee’s sale. Foreclosure eviction laws are subject to change, but this article is current as of March 2010.
The tenant/occupant receives a written demand to vacate the property. The term of the period to vacate is dictated by the type of occupancy – whether commercial or residential and whether a tenant or an owner that was foreclosed on. This term normally is either 5 or 7 days, unless the contract states otherwise. After the 5-7 days expire and the tenant/occupant still refuse to leave then a complaint for a forcible detainer action can be filed. The statutes provide for a very short notice period before a court hearing.
The sole issue at the court hearing is whether or not the tenant/occupant has the right to possession. If they do not then they will be found guilty of a forcible entry and detainer. The court will enter an order directing the tenant/occupant to vacate within 5 judicial days. After that period has expired the Sheriff’s office can then evict the tenants/occupants, remove their personal property and give the rightful owner possession and control of the property. It would be wise for the rightful owner to change the locks and take steps to protect the property.
Typically the seller must vacate the home within 7 to 14 days after a Trustee Sale (auction). Often the bank will offer the homeowner a $1,000 – $2,000 relocation fee if the homeowner moves within several days and leaves the home is good condition. If a foreclosed homeowner is being forced out without a moving fee or several days to move, the homeowner has rights. Inform the lender’s representative that you request a moving fee or are requiring them to file a Forcible Entry and Detainer Action. If they refuse to comply with either of these or if you feel your rights are being infringed upon, contact the local Sheriff for enforcement of current foreclosure eviction laws.
If the lender has to file a Forcible Entry and Detainer Action, you will not be able to get any cash for moving expenses.[Note: more research was done after this article was posted. Reference this article to see how a part of the government may be breaking the law : Fannie Mae blantantly violating protecting tenants at foreclosure act]
Paralegal – Director of Short Sales,
Winsor & Coleman, PLC