Fill and Sign the Eviction Foreclosure Form

© 2016 - U.S. Legal Forms, Inc USLegal Guide to Eviction in Foreclosure I NTRODUCTION In May 2009, as part of the Helping Families Save Their Homes Act of 2009 (Pub. L. 111- 22), President Obama signed the Protecting Tenants at Foreclosure Act of 2009 (PTFA, the “Act”). The Act went into effect May 20, 2009. PTFA was enacted in May of 2009, but was originally set to expire on December 31, 2012. The Dodd-Frank Wall Street Reform and Consumer Protections Act will extend the Protecting Tenants at Foreclosure Act through the end of 2014. The Act applies to any residential real property and any person who acquires the property, whether a lender who acquires it via a credit bid or a third party investor at a foreclosure sale. The Act does not apply to tenants who are the child, spouse or parent of the mortgagor. The original lease agreement must have been the result of an arms-length transaction and require the payment of a fair market rent. N OTICE R EQUIREMENTS Under the Protecting Tenants at Foreclosure Act of 2009, the purchaser at foreclosure takes the property subject to any unexpired lease. The law also requires the foreclosure auction purchaser to give notice to vacate to any month-to-month tenant. The notice must be served at least ninety days prior to its effective date. The new federal law applies to both single-family homes and large apartment complexes. Lenders, purchasers of foreclosed properties, and residential tenants should be aware of the rights and obligations contained in the Act. Pursuant to the Act, an immediate successor in interest “of any foreclosure on a federally-related mortgage loan or on any dwelling or residential real property” is required to (i) honor the remainder of the term under a “bona fide lease” entered into prior to the notice of foreclosure and (ii) give at least 90 days notice to vacate to a “bona fide tenant” who does not have a lease or has a lease terminable at will. Under the Act, a lease or tenancy shall be considered “bona fide” only if-- •the mortgagor or the child, spouse, or parent of the mortgagor under the contract is not the tenant; •the lease or tenancy was the result of an arms-length transaction; and •the lease or tenancy requires the receipt of rent that is not substantially less than fair market rent for the property or the unit's rent is reduced or subsidized due to a Federal, State, or local subsidy. I NTERACTION W ITH S TATE L AW By its terms, the Act will only replace state or local law to the extent it offers less protection than the Act. Any state or local laws that provide longer time periods or additional protections for tenants in this situation will remain in effect. HUD G UIDANCE HUD has provided certain guidance with respect to the Act. In June 2009, HUD outlined in detail the obligations imposed by the PTFA in a notice published in the Federal Register. See 74 Fed. Reg. 30,106 (June 24, 2009) (available at http://edocket.access.gp o.gov/2009/pdf/E9- 14909.pdf). The stated purpose of the notice was to ensure that “individuals or entities that participate in HUD programs or with whom HUD interacts through its programs are aware of the obligations imposed on immediate successors [in] interest in any residential property pursuant to a foreclosure.” Id. HUD explicitly made clear in the notice that the obligations imposed by the PTFA are not limited to FHA-insured or HUD-assisted housing, but apply “to all successors in interest of residential property, regardless of whether a federally related mortgage is present.” Id. On December 15, 2009, HUD issued a further notice providing public housing agencies with guidance on how to implement the PTFA and the tenant protections provisions of the American Recovery and Reinvestment Act (“ARRA”) with respect to Section 8 voucher recipients.29 See HUD Notice PIH 2009 – 52 (HA) (available at http://www.hud.gov/offi ces/pih/publications/ 29 ARRA, enacted before the PTFA, provides certain protections for Section 8 tenants in properties assisted with funds under the Neighborhood Stabilization Program. See HUD Notice PIH 2009 – 52 (HA). 17 notices/09/pih2009- 52.pdf). With respect to the PTFA, the notice explains that, pursuant to the Act, a foreclosure shall not be good cause to terminate a Section 8 voucher recipient tenant’s lease, unless the new owner will occupy the unit as a primary residence and the tenant receives 90 days’ advance notice to vacate. The HUD notice also makes clear that, with respect to Section 8 tenants, the PTFA specifies that the immediate successor in interest pursuant to a foreclosure takes the property subject to the Housing Assistance Payments (HAP) contract between the prior owner and the public housing agency. The December 2009 notice requires public housing agencies to notify the landlord and tenant that the terms of the HAP contract incorporate the changes in law outlined in the June and December 2009 notices. Public housing agencies are also directed to notify housing choice voucher applicants as well as prospective landlords about the new law. The December 2009 notice also instructs public housing agencies regarding what actions to take when they learn that a property is in foreclosure, including making all reasonable efforts to determine the status of the foreclosure and the ownership of the property; continuing to make payments to the original owner until legal transfer of ownership; attempting to obtain from the successor in interest a written acknowledgment of the assignment of the HAP contract; and informing the tenants that they must continue to pay rent in accordance with the lease, or escrow the rent if the new owner is unidentified or unable to accept payment. According to the December 2009 notice, if a public housing agency is unable to make housing assistance payments to the successor in interest, then the agency should so inform the tenants, and refer them, as needed, to a local legal aid office. The agency is also directed to make inquiries to determine whether the units in the foreclosed property receive assistance under the Neighborhood Stabilization Program, in addition to having a tenant who has a housing choice voucher; where that is the case, the agency can use the funds that would have been used to pay rent for other purposes, such as paying utilities or moving expenses. FAQ’ S FOR T ENANTS May I be evicted after my home is sold at a foreclosure sale? Yes. After the foreclosure sale the highest bidder (usually lender) becomes the new owner. If you do not leave voluntarily or enter into an agreement which allows you to stay, the new owner may evict you. Can the person, bank or other institution who buys the building at foreclosure make me leave right away? No. The new owner needs to end your tenancy by giving you a notice to leave of at least 90-days. If you have an unexpired lease, you may be able to stay until the end of the lease. What can I do if the new owner says I have to leave in less than 90 days? You can send a letter telling the new owner about the law. •Keep a copy of the letter you send. •It may help to go to the post office and pay for a return receipt to make the new owner sign to prove they got your letter. •If you get a green receipt signed by the new owner in the mail, save it. You must also offer to pay the new owner your rent and live up to the other terms of your lease. What if I have a lease that has more than 90 days left? In most cases, the new owner cannot evict you until the end of the lease. There are two exceptions. •If the new owner wants to use your home as their primary residence, the new owner only has to give you a 90-day notice to leave after they become the owner. •If you do not pay your rent or violate other terms of my lease the new owner may evict you as described above. What must the 90 day notice say? The new federal law applies to both single- family homes and large apartment complexes. It also applies to weekly as well as monthly rentals. It does not specify what the notice should say. State requirements should be consulted for any applicable state notice specifications. Should I move before the sheriff or constable locks me out? Yes. If an order evicting you is entered, make every effort to move yourself and all of your belonging out before the sheriff or constable locks you out. If you cannot remove your belongings in time, try to schedule a reasonable time to return for them. If you do not remove them within a reasonable time, the new owner may store them and charge you a reasonable fee. Later they may be sold to pay the fee. Can I rent to a friend or a family member in to get the extra 90 days? Under the “Helping Families Save Their Homes Act of 2009, S. 896, P.L. 111-22”, a lease or tenancy shall be considered bona fide only if-- •the mortgagor or the child, spouse, or parent of the mortgagor under the contract is not the tenant; •the lease or tenancy was the result of an arms-length transaction; and •the lease or tenancy requires the receipt of rent that is not substantially less than fair market rent for the property or the unit's rent is reduced or subsidized due to a federal, state, or local subsidy. What if I wish to continue renting the dwelling? You may be able to negotiate to see what the new owner might offer you a new lease or agree that you can remain longer than 90 days. What can I do if the new owner serves me with a summons and complaint asking a court to evict me without giving me notice? You should contact a lawyer immediately. If you unable to contact a lawyer, go to the Clerk of the court on the summons and complaint immediately. File an answer with the court that says the new owner failed to give the notice required by the Protecting Tenants at Foreclosure Act, Pub. L. No. 111-22, §702 (2009). You may obtain a form answer with instructions. Go to court on the date the court sets for a trial and take with you: 1.the copy of your letter to the new owner, 2.the green return receipt, if you received one, 3.the copy of the new law that is attached to this notice and 4.a copy of your lease, if you have one. What can I do if a sheriff or constable arrives at my door to evict me? Tell the sheriff or constable that if you received no eviction notices or you were not served with a summons and complaint. Ask for time to go to court to get the order evicting you set aside. FAQ S F OR L ANDLORDS How do I know if the occupants are “bona fide” tenants? The Helping Families Save Their Homes Act of 2009 only protects “bona fide” tenants who were renting from the owner at the time of foreclosure. Under the Act, a lease or tenancy shall be considered “bona fide” only if-- •the mortgagor or the child, spouse, or parent of the mortgagor under the contract is not the tenant; •the lease or tenancy was the result of an arms-length transaction; and •the lease or tenancy requires the receipt of rent that is not substantially less than fair market rent for the property or the unit's rent is reduced or subsidized due to a Federal, State, or local subsidy. Can a purchaser at foreclosure sale make tenants leave right away? No. You must first to end the tenancy by giving a 90-day notice to leave. Moreover, if the tenants have an unexpired lease, they may be able to stay until the end of the lease. What if the tenant does not want to stay 90 days or for the remainder of the lease? You and the tenant may negotiate for an earlier move. For example, you could offer some financial incentive to leave sooner. What if the occupant is a Section 8 tenant? A Section 8 tenant has a portion of the rent paid by a public housing authority (PHA) pursuant to a lease and a Housing Assistance Payment (HAP) contract with the former owner. Section 8 tenants have all of the rights under the Helping Families Save Their Homes Act of 2009 listed above. They also have two additional protections: (1) the HAP contract continues in effect with you taking the place of the previous owner and (2) the foreclosure is not a lawful reason to terminate the tenant’s lease. If the occupant claims to be a section 8 tenant, contact your local PHA. What can I do if the tenant has not left voluntarily by the end of the notice period? After the expiration of the notice period, you may serve the occupants with a Summons and Complaint for Unlawful Detainer which asks the court for an order evicting them. H OW T O F ILE A S UMMARY E VICTION A CTION G UIDANCE M ANUALS FOR I NSTITUTIONS • The OCC and FRB have issued specific examination procedures for their examiners to use in evaluating compliance with the PTFA. - The OCC’s exam procedures are available at http://www.occ.treas.go v/ftp/bulletin/2010- 2a.pdf (see also http://www.occ.treas.go v/ftp/bulletin/2010- 2.html for the bulletin announcing the issuance of the procedures). - The FRB’s procedures are available at http://www.federalreser ve.gov/boarddocs/supma nual/cch/200911/protect. pdf and http://www.federalreser ve.gov/boarddocs/calette rs/2009/0905/09- 05_attachment.pdf (see also http://www.federalreser ve.gov/boarddocs/ CALETTERS/2009/090 5/caltr0905.htm for the letter announcing the issuance of the procedures). • The OTS, FDIC and NCUA have not publicly issued PTFA- specific exam procedures; however, all three have issued guidance to institutions under their jurisdiction. - The OTS’ issuance states that OTS- regulated entities “should implement a process to ensure compliance with these requirements” (http://www.nhlp.org/fil es/OTS%20Memo.pdf). - The FDIC’s issuance states that its examiners “will monitor and enforce compliance with the requirements of this law in the same manner as other consumer protection laws and regulations” (http://www.fdic.gov/ne ws/news/financial/2009/ fil09056.html). - The NCUA has issued a “Regulatory Alert” stating that credit unions are expected to comply with the PTFA (http://www.ncua.gov/R esources/RegulatoryAler ts/Files/2009/09-RA- 08.pdf).