Posted on 06/18/2012 6:34:09 PM PDT by ducttape45
I need to get some advice on a housing issue and I hope there is a legal expect in FreeperLand that can help me.
I, and my neighbor (the house is a duplex) were told we need to vacate the premises and that we would soon be getting eviction notices from the perspective banks that own the property. My place is owned by one party, my neighbor's part is owned by a different party. The properties will eventually go up for sheriff's sale.
I have tried contacting the mortgage company that holds the loan on my half of the duplex but they won't talk with me. I have also contacted the Indiana State Homeowner's Protection Unit and though they are investigating this, they also can't/won't tell me anything or give me advice.
I need some legal advice. I want to find out how far the foreclosure process has progressed. I also want to know if I can stay here and do I have any rights as the current occupant? Do I have to move out if/when the notice from the mortgage company arrives?
I'm not getting any answers and I need to know what to do. I am very frustrated.
Thank you.
I need to get some advice on a housing issue and I hope there is a legal expert (not expect) in FreeperLand that can help me.
You want some legal advice? Don’t solicit legal advice on the internet.
Indiana laws regarding rental property were written for an age when you had tenant farmers with 40 acres and a cow on the premises.
That doesn't mean they haven't improved ~ regulation of mechanics leins some 50 years go helped keep subcontractors from stealing homes.
Given the current state of Indiana law owners should be prohibited from renting out any property.
It sounds as though it is time to look for another place. The owner is unable or unwilling to keep the property and you, as a renter, under anything but a very unusual rental contract, have no choice but to vacate as the owner dictates. I would guess that even leases have small print that provide for this situation and you, as a renter, will have few, if any rights to affect the apparent upcoming transaction.
But that depends entirely on your state's law.
I would consult an attorney. Get a recommendation from your church or someone you know who owns a business. Do NOT pick a lawyer out of the yellow pages. Some state and local bar associations have a tenant rights section.
But do consult an attorney.
Like any other tenant you can stay until the sheriff shows up at the door to boot you out there are usually several required notices before that. That being said the laws are state specific. There is a law here in Florida that states that a tenant with a written lease may stay til the end of the lease in other words the foreclosing bank must honor the lease just like an open market purchaser. Contact a local lawyer if you really want to stretch it out but maybe you are being sent a message that it is time to buy.
You do not own the property. You have no right to anything. As unfair as it is, the owner does not even need a reason to evict you except that he/they want you off their property.
If you had a lease, it was with the old landlord. A new landlord is not legally bound by that lease.
I think you may have a misunderstanding of the current law. The Protecting Tenants of Foreclosure Act of 2009 basically says the following three things:
1) If you are on a month-to-month lease, you must be provided with a minimum of 90 days notice prior to eviction.
2) If you have a longer lease, you must be allowed to stay until the end of your lease term.
3) If the current buyer intends to occupy the property, you can be provided with a 90 day notice even if you have a longer lease term.
Check your state laws as well, but this federal law certainly applies.
Bottom line - see a lawyer
Here’s a recent story from Maine. Not sure how close this is to your situation. It may be of interest to you and other FReepers reading the thread.
Turner, Maine tenants sue landlord, claim he rented them house he didn’t own
Are you in a lease?
I'm hesitant about consulting lawyers from this area because they are in cohoots with the local realty association. I really want to find someone from a major city like Indianapolis or Evansville, any place but Miami County, Indiana. I will look up the "The Protecting Tenants of Foreclosure Act of 2009" and see what it says, but I will still need a good lawyer to help me with this.
I really don't want to move until absolutely necessary, and since I am on a month-to-month lease (I've been here three years) it's advantageous to me because if I can find a good job elsewhere in the states I can up and leave any time I want.
Thanks for your help.
The original lease was for one year, and I’m now “month to month” but yes I am in a lease.
“You do not own the property. You have no right to anything. As unfair as it is, the owner does not even need a reason to evict you except that he/they want you off their property.
If you had a lease, it was with the old landlord. A new landlord is not legally bound by that lease.”
This ill informed bs is why you shouldn’t seek legal advice over the internet.
I’m a real estate broker, which requires several classes in re law, over 20 years esxperience including rental properties, and the cited poster doesn’t know what he is talking about.
It’s actually “Protecting Tenants at Foreclosure” (not of), so keep that in mind if you search it.
If you are on a month-to-month lease, unless the state laws of Indiana specifically say you can stay longer, you must be provided with 90 days notice prior to eviction. If you get an eviction notice that says 30 days, they are in violation of federal law. In your situation, the federal minimum is 90 days. After that, your case looks pretty clear.
In theory, you could sue the previous owner for the costs of looking for a new place to live, but it probably is way more trouble than it’s worth.
Start looking for a new place, get ready to move and wait for the notice to vacate, then vacate.
There’s a federal law regarding vacate notices?
In California unless you have a lease with different requirements, no lease so it is automatically month to month IE the owner can ask you to leave in 30 days for any reason.
Ah.... With a monthly lease, you probably don’t have any ground to stand on there. If you had a longer term lease, you’d probably have some ‘rights’. Of course, this can vary widely, depending on state laws.
One things for sure, I wouldn’t write them another check. Stay there for free, pocketing the rent money until the day before the bank literally throws you out. If you’re lucky, you might get 2 or 3 months(or more) of free rent out of the deal. Just save that money for your next place, a nice vacation, or whatever you wish. If the bank tries to collect any rent from you, advise them to piss up a rope(in the nicest way possible, of course - depending on their attitude).
My mother in law was in a similar situation(but without the complexities of multiple banks owning the different units). As soon as the place went into foreclosure, my wife stopped making the rent payments(my wife manages her finances). The bank talked up a big game, implying that she could be thrown out literally any day, but my wife saw through that BS. The bank never even asked for the first rent payment. It was 6 months before the place sold at auction. She then simply started making payments again, to the new landlord. In your case, with multiple banks involved, it could be a year before that place eventually sells. It could take those banks months to negotiate amongst themselves before it even really gets started.
My son’s friend who lives in VA just moved from a house he’d been renting when the landlord lost the house in foreclosure. Than bank let him live there for 6 months rent free just so it wouldn’t go vacant.
Don’t know how he wrangled that one but it might be worth checking into seeing if you can do the same.
+1
Protecting Tenants at Foreclosure Act of 2009, Public Law 111-22, effective date May 20, 2009, “sunsets” Dec. 31, 2012.
Good Answer.
“Fool me once, shame on you. Fool me twice, shame on me.”
Learn from your mistakes and difficulties in life and move on. Forget about looking in the rearview mirror and dwelling on the past and what I call the “woulda, coulda, shoulda” factor. It will get you nowhere. Life is not fair, so deal with it accordingly. You’ll be money ahead and have peace of mind.
My advice is to get on with it and find a new place to live now before you’re forced to. Don’t waste your time and money on lawyers trying to solve your problem. You’ll be poorer for it and you’d still have to move out.
This advice has served me well over my 64 years.
First of all, the laws regarding this issue are specific to Indiana. Second, I don’t think you’re doing yourself any favor using the terminology “month to month lease”. There is no such thing. Third, I am an ex-realtor in CA, but I would not deign to quote you IN law.
There may or may not be some kind of Federal law that prevents your eviction under the circumstances you describe. But a very important principle is that “the law does not apply itself”. If the law is applicable, it is up to you to hire an attorney to force the other side to comply with it. You don’t just get to say “hey, there’s this law that says I have to have 90 days notice of an intent to evict, so this eviction letter you just handed me is void.” Nope. You have to go to court to fight it, or go to court to obtain a temporary restraining order TRO and I don’t care how black and white your case might be. By the way...I just spent about $30,000 in legal fees getting a TRO. And that has utterly nothing to do with being in court to determine the merits of my fundamental complaint/accusation against the defendant. I estimate that will be $70,000 additional. I don’t expect a simple rental case to cost that much, but I will tell you one thing: Lawsuits are for losers. Individuals almost never have the funds to pursue a lawsuit.
You need local, real estate specific legal advice. It would not surprise me to find out that there are one or more tenant advocacy groups in your area that you could visit and consult with for free. If they say there is any sort of law which gives you some period of time during which you are immune from an eviction notice, get the code section number of that law.
If you *do* need to actually retain and hire an attorney to protect your rights, unless it can be done by one and only one letter on letterhead, and you cannot find out if that will be effective except by having him produce it and seeing what happens-—meaning you incur the bill anyway—the chances of that attorney submitting an invoice to you for legal services less than the rent you would have to pay for those 3 months of stay is just about zero. Ergo, in your position I would prepare to move.
“Second, I don’t think you’re doing yourself any favor using the terminology “month to month lease”. There is no such thing.”
WRONG.
IC 32-31-1-2
Creation of tenancy at will month to month
Sec. 2. A general tenancy in which the premises are occupied by the express or constructive consent of the landlord is considered to be a tenancy from month to month. However, this section does not apply to land used for agricultural purposes.
As added by P.L.2-2002, SEC.16.
You’ve been there 18 months, so you obviously like it there. I’d offer to buy it from the bank, should go pretty cheap, and should make your monthly expenses go down.
Based on the information you provided, you should have 30 days to vacate after the eviction notice, unless you have violated some aspect of the rental agreement, in which case you will have 10 days to vacate. A violation could be anything from failure to pay your rent on time to a failure to maintain the premises. Note that you might not agree with the cause for a 10 day notice. Landlord rights spelled out in the rental agreement transfer with ownership of the property.
Basically you are on borrowed time and unless you pre-paid rent, you are likely operating in a window of 10 to 30 days, depending on what was stated in the notice you recieved. It is unclear if that was an information notice that you would recieve an eviction notice, or if that was the eviction notice itself.
There is such a thing as month to month tenancy.
There such a thing as a lease, which can be for any period of time the landlord and tenant agree to.
I don’t get how your irrelevant piece of code proves me wrong and you right. There wouldn’t be the difference in terminology “tenancy at will” and “lease” if there wasn’t a legal difference. Many leases automatically and specifically convert to month-to-month tenancy should no lease extension be executed between L & T. That is a tenancy at will. I don’t know if the OP’s lease does that, as I haven’t read it. It could also automatically renew into a lease. But a “month to month lease” is a contradiction in terms.
What country do you live in?
Tenants have lmany rights under a lease. In some (mostly liberal) states, they're treated like royalty with the landlord getting the ass-end of most legal proceedings. Under nearly any circumstance, they very much do "need a reason to evict you" if "he/they want you off their property."
Every hear of contract law?
Also, leases, like most other leans or encumberances, nearly always transfer with the real property - not the owner.
It's one thing advertise your ignorance when you have no idea of the subject matter, it's another to do so when someone is seeking advice.
I know you lawyers hate it when you are wrong. Don’t take it so hard.
I’m not a lawyer. Am I wrong about that, too? Or is that another thing you think you know better?
You don’t pay rent;
You don’t live up to your end of the written or oral lease agreement
time for which you rented your dwelling is up, and the landlord wants you to move.
If you have a written lease, you have a right to stay in the residence until the end of the lease term, as long as you live up to your end of the lease. you do not have a written lease, in most circumstances the law considers you to have an oral month-to-month lease. Either you or your landlord can terminate the lease at the end of any month, for any reason or for no reason.
I don’t know anything about Indiana law, but an acquaintenance here in Oregon had a similar thing happen.
He was living in a 4-plex which was foreclosed. He stopped paying rent and just kept staying there, thinking he would get an eviction notice sooner or later.
Well, the eviction notice never came, but the foreclosing bank waited about 6 months and then offered him $2000 to move out.
I would start banking the rent instead of paying it, and wait for an offer from the bank. If they send you an eviction, call them up and say you need moving assistance. Sooner or later they will offer you money to just move out.
I don’t know anything about Indiana law, but an acquaintenance here in Oregon had a similar thing happen.
He was living in a 4-plex which was foreclosed. He stopped paying rent and just kept staying there, thinking he would get an eviction notice sooner or later.
Well, the eviction notice never came, but the foreclosing bank waited about 6 months and then offered him $2000 to move out.
I would start banking the rent instead of paying it, and wait for an offer from the bank. If they send you an eviction, call them up and say you need moving assistance. Sooner or later they will offer you money to just move out.
I don’t know anything about Indiana law, but an acquaintenance here in Oregon had a similar thing happen.
He was living in a 4-plex which was foreclosed. He stopped paying rent and just kept staying there, thinking he would get an eviction notice sooner or later.
Well, the eviction notice never came, but the foreclosing bank waited about 6 months and then offered him $2000 to move out.
I would start banking the rent instead of paying it, and wait for an offer from the bank. If they send you an eviction, call them up and say you need moving assistance. Sooner or later they will offer you money to just move out.
I just witnessed a case like this. Calling someone ignorant before you know the facts is just....well...ignorant.
If a bank or lender is foreclosing on your landlord’s property, the landlord owes money on the mortgage. The bank is trying to take your landlord’s property by foreclosure. If the bank wins the foreclosure, it will get title to the property, and your landlord will lose whatever rights he or she had in the property. Good chance you as the tenant will as well. The bank may either become the owner or the property may be sold at public auction to a new owner.
If you are the TENANT, you may receive a summons / complaint as well - you could be a DEFENDANT in the foreclosure proceeding. If you receive notice, read it and understand it. BE SURE TO FILE A RESPONSE. Protect what rights you may have as a tenant. LAWS VARY BY STATE and COURT JURISDICTION.
I would do exactly the same, though it would probably upset me at some level to live without knowing if said evict notice would come at any time. OTOH, 3-5-6 months of free rent ain’t chopped liver.
The laws on this issue are kind of iffy, and the circumstances of the rights of the apparent foreclosing authority are equally weird.
I mean...the story is, the prior “owner” was collecting rent and pocketing it, eg, not paying his mortgage. Fine. Except in very unusual circumstances there is nothing in the purchase agreement between foreclosing lender and borrower that assigns rents to the lender; the lender has no right to them. As far as the lender is concerned, whether the tenant is paying rent or not is absolutely meaningless. It is a zero, it means sub-nothing. Meanwhile, the lender, if the property went through MERS, there’s about a 60% chance that title is altogether goofy and cannot be proven to standards specified in the statute of frauds, in successor-in-interest terms. The lender may not have the note to prove they really own the property, it may have been sold and resold. So there is a significant chance that the lender cannot adequately prove he holds valid title to the property and thus he cannot prove he can legally foreclose! (I have no idea whether Indiana is a judicial or non-judicial foreclosure state)
But, as you said, without knowing any of that, a tenant has not the slightest obligation to pay rent to the lender. None.
A duplex with units owned by separate parties? Okay, it’s obviously a condo (unless you are confusing a duplex with a twin). Forget about the other unit, since it’s owned by a different party. Depending on the neighborhood, the bank that holds the mortgage on your unit may be interested in keeping somebody in there in order to prevent the copper and anything of value from being spirited away in the night.
My daughter was in the exact same situation and lived in the house rent-free for several months. One thing for sure - - don’t send any more money to the landlord.
Good luck.
1. The tenant is not a party in a foreclosure.
2. A lease goes with the property. The bank would honor the remainder of the lease.
3. If the lease is month to month, the bank could, when gaining ownership, give notice to the tenant that the month to month lease was terminated. In that case, whatever the state laws are, would control the length of notice. In Calif. that would be 30 or 60 days notice.
4. A rental agreement, verbal or written, IS a legal right/interest to use the property according to the lease terms.
5. I would advise the tenant to get advice from a real estate attorney.
Just curious: couldn't that principle cut both ways?
Just curious: couldn't that principle cut both ways?
You need to consult with a local Realtor who can access Foreclosure Radar or whatever Realty Trac system that is available in your area to see if the home is in forclosure and when the expected sale date is. If you have a long term lease that extends beyond the sale date, you should hire an attorney to serve notice of your extended tennacy to the court or trustee who is holding the sale. Please consult with a Realtor and an attorney on your rights as a leaseholder. Good Luck!
http://www.rentlaw.com/news/2008/tenantforeclosure.htm
I too would advise speaking to an attorney, but the most they can DO is file appeals which cost the tenant a bunch of money he probably doesn’t have, and at the end, you will still have to move. Filing appeal after appeal will stall for time, but the money it costs, plus having to pay the rent in the meantime, can kick most people’s behinds.
If you need the time and have money to burn, go for it, but why go through the aggrevation? Use that money and move.
I’m not quite sure what you mean. What *I* mean is that, you may find yourself in a situation, as I did, that the law describes in scary-precision accurate detail. Mine was, a caretaker for my uncle who had willed me over $400K flat out stole his estate. In CA, the laws governing financial elder abuse are flamingly clear, they are written in very simple non-legalese. Etc; etc; etc; There is a presumption in elder law that a non-relative who acquires all or part of an elder’s estate received it by trickery of some sort, just like there is a presumption in law of “innocent until proven guilty”.
She got just about all of it. It took me $30,000 in legal fees just to freeze the bank account that contained that which she had stolen but not yet dispersed. Just to get the TRO.
What I mean by “the law does not apply itself” is that the law does not give a crap about you, unless, of course, it decides to pounce on you and your activities. There is no magical authority out there seeking to redress wrongs, looking to have events conform to legalese. You have to sue/litigate to get others to conform to what is written in the law, no matter how closely someones’ actions appear to match what appears to be a description of a violation of the law. Just like, a prosecutor would have to do that to you if he/she decided you were guilty of a crime and decided to prosecute you. And it is astronomically expensive. Unbelievable. When I see the bills from my attorney, I fall over.
Something like:
Paralegal: Sent Mr X notification of blahblah , 10 mins $35.
Atty: Asked paralegal did you include XYZ?, 10 mins $75.
Para: Wait, I’ll check 10 mins $35.
Para: Yes, I sent it. 10 mins $35
Atty: OK, good 10 mins $75
Para: Thank you, 10 mins $35
So for me to get an email about something that happened, didn’t happen, might happen, is supposed to happen, could have happened but we don’t have this document yet, and if it happened, wouldn’t necessarily control anything, is $290.
In a criminal case the prosecutor isn’t spending his/her own money; If you are the target, it is up to you to “de-apply” the law, and the law does not care how much money you may have to spend to clear yourself. Mine was a civil case. I swear, my attorney charged me for the time it took to take my checks to the bank and deposit it.
I’m not a lawyer, and I’m not too familiar with the Indiana laws. I work in Property Management in Illinois, so I can only give you a couple general pieces of information.
You should be able to easily look up online what the landord-tenant ordinances are in your state and locality. Those will supercede any lease you may have (meaning clauses in your lease that conflict with them are unenforceable), and also contain provisions that can apply even if you don’t have a lease. Normally, without a lease, you are treated as if you had an implicit, verbal month-to-month agreement that can be terminated by either party by giving proper notice.
There can be exceptions to those ordinances, for example, if the property is owner-occupied, so look out for those before you try to determine if any of the ordinances can be used in your favor. There are often exceptions which provide the ability for breaking lease agreements by the owner in the event of foreclosure, so that’s another thing to look for. If that’s not in the ordinance, it may still be in your lease agreement.
If you need legal advice, (and I almost hate to recommend this simply because, working for a landlord, these folks are the bane of my existence), there are groups called tenant unions that base their entire business on helping people find ways to turn these ordinances and lease agreements to their advantage. Even if they can’t help you stave off eviction, they could point to some violation of the ordinance or lease that would allow you to sue for civil compensation that might mitigate your situation. If they can find a legitimate violation, most landlords will settle out of court, rather than face judges and juries that usually render verdicts favorable to the “little guy”. I don’t know if that will hold true for mortgage companies, who may have armies of lawyers at their disposal.
As for eviction, that’s a process you can usually fight in court and drag out for quite a while, depending on the state laws. There are very specific laws that must be complied with regarding serving proper notice that can force the evictor to start the whole process over if a judge finds they were not satisfied. After the notice is properly served, you still will have a day in court before the judge issues an eviction order, and then another delay before the sheriff will actually serve the eviction order. So, months can pass between the initial eviction notice and when can you be forced to legally vacate the premises.
Do some research on the laws and read your lease, if you have one, to get a general idea of what you are up against. Then go out and find a lawyer, or at the very least speak to a tenant union, or if you can a “human relations commission” or other government advocate group that is devoted to helping people with these matters.
I am not a lawyer, and I never played one on TV!
I am not in your state, but where I live if they call it a “sheriffs sale” it’s for back taxes and not a bank foreclosure.
You might be able to pick up a good deal! Here you would need to call the county and ask if the property is being sold for back taxes. I don’t know about Indiana.
Also, the new owner may still want to rent to you, no?
The advice about not making rent payments might be practical, but it’s not necessarily wise. Even if the process of eviction is not sped up by failure to pay rent, the owner can certainly get an order of default for the unpaid rent during the eviction process, and even without that, they can put the debt on your credit report and consign you to constant harassment by collection agents until the debt is paid.
Unless they decide they won’t bother to try and collect, you can probably forget about ever getting a mortgage, or renting from another landlord that does any kind of screening, if you were to follow that route.
My first post was as it relates to PA where I reside based on a month to month lease.
This info is for Indiana and is a little different, but not much. As I said, you can make an attorney rich or save yourself the aggrevation...OR you can sue your former landlord for monetary damages.
Indiana
http://real-estate.laws.com/tenants-rights
Eviction in Foreclosure Rights:
When economic crises cause a landlord to default on the property’s mortgage, the underlying bank will assume the role as the new landlord. When this happens, the bank will typically sell the property as quickly as possible, resulting in the eviction of tenants. Although this situation is impossible to predict or halt, the Protecting tenants at Foreclosure Act of 2009 provide that leases survive foreclosures. The legislation allows tenants to stay at least until the end of their lease and month-to-month renters are entitled to 90 days’ notice before a forceful move-out is realized.
In addition to the protection awarded under the act, tenants have the right to sue for breaking the promise latent in the rental contract. When a landlord defaults on a mortgage payment they are ruled accountable for the economic suffrage imposed on their tenants. To sue, file a complaint in your local small claims court to recoup the losses associated with moving expenses, apartment searching costs, difference in new and old rent, application fees and other costs associated with relocation.
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