Post-Foreclosure Eviction Defense (CCP 1161b)

Two statutory tracks: CCP 1161a and CCP 1161b

California has two interlocking statutes for post-foreclosure evictions. CCP § 1161a(b) lets the new owner (after a trustee’s sale or a judgment of foreclosure) recover possession through unlawful detainer. CCP § 1161b sets the special notice requirements: 90 days for bona fide tenants in possession at the time of sale, 3 days for the former owner or co-occupants.

Who gets 90 days vs. who gets 3

A “bona fide tenant” under CCP § 1161b(b) is a tenant whose tenancy was:

• Created in an arm’s-length transaction (not with the former owner’s parent, spouse, or child where the rent was below market),
• Required to pay rent that is not substantially less than fair market rent, and
• In existence at the time of the trustee’s sale.

If the occupant is the former owner or someone who never paid rent, the 3-day notice under CCP § 1161a applies. The plaintiff must prove the relationship in the Complaint and at trial.

Federal overlay, Protecting Tenants at Foreclosure Act (PTFA)

The PTFA (originally 2009, sunset 2014, restored in 2018) requires the immediate successor in interest after foreclosure of a “federally-related mortgage” to honor an existing bona fide lease for the remainder of the lease term, subject to two exceptions: (1) the property is sold to a purchaser who will occupy it as a primary residence, in which case the tenant gets a 90-day notice, or (2) the lease was not bona fide. Section 8 voucher tenants are explicitly protected, the new owner must assume the HAP contract or give a 90-day notice.

Defenses unique to post-foreclosure UD

Imperfect title

The plaintiff in a post-foreclosure UD must prove perfect compliance with the non-judicial foreclosure scheme in CC §§ 2924 through 2924k. Common defects: wrong amount in the notice of default, defective notice of sale, sale conducted in violation of the postponement rules, beneficiary lacked authority, or the trustee’s deed was recorded outside statutory windows. Imperfect title is a complete defense to possession under Bank of America v. La Jolla Group II (2005) 129 Cal.App.4th 706.

Improper service of the 90-day notice

Service must comply with CCP § 1162. Posting and mailing without diligent attempts to personally serve is defective. The 90 days runs from completed service, not from when the notice was issued.

Wrong notice for the wrong occupant

If the bank served a 3-day notice on a bona fide tenant who was entitled to 90 days, the case fails. Conversely, if the former owner claims tenant status but cannot show a lease and arms-length rent, the 3-day notice was sufficient.

Just-cause and rent-control overlays

The City of Los Angeles RSO has historically treated post-foreclosure evictions of bona fide tenants as subject to LARSO just-cause requirements, meaning the new owner cannot evict a covered tenant without one of the 14 LARSO just causes. AB 1482 just-cause provisions also apply where the property is covered. These overlays often defeat post-foreclosure UDs entirely.

What to do right now

• Save the trustee’s deed (it should be recorded, check the county recorder).
• Save the notice you received and the envelope.
• Pull your lease and proof of rent payments, this is how you prove bona fide tenant status.
• If the unit is in LA, check whether LARSO applies (most pre-1978 multi-family buildings do).
• Move quickly, the 90 or 3 days runs even while you’re figuring this out.

Related pages

• Eviction Defense overview
• 30/60/90-Day Termination Notice
• Improper Service Defense
• LARSO (LA Rent Control)
• Section 8 Eviction Defense