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RPPTL Real Estate Leasing Committee

[RPPTL LandTen] Tenant in foreclosure question

Leonard Cabral

Tue, Nov 6, 2012 2:42 AM

Group

A mortgage company forecloses and a tenant has a lease for one year and is
considered a bonafide tenant by court. Mortgage company sells to Fannie
Mae. One year is up on the lease. Mortgage compay files for a writ of
possession. Can Fannie Mae get a writ of possession on the same pleadings
and case number as the mortgage company? Does a 90 day notice apply? any
cases on point?

Leonard Cabral, Esq.

212 N. Park Ave., Suite 14

Sanford, FL 32771

(407) 330-4998

leonardcabral@cfl.rr.com

To write a review click the link below.

https://www.avvo.com/attorneys/32771-florida-leonard-cabral-1244181/write_re
view.html

Group A mortgage company forecloses and a tenant has a lease for one year and is considered a bonafide tenant by court. Mortgage company sells to Fannie Mae. One year is up on the lease. Mortgage compay files for a writ of possession. Can Fannie Mae get a writ of possession on the same pleadings and case number as the mortgage company? Does a 90 day notice apply? any cases on point? Leonard Cabral, Esq. 212 N. Park Ave., Suite 14 Sanford, FL 32771 (407) 330-4998 leonardcabral@cfl.rr.com To write a review click the link below. https://www.avvo.com/attorneys/32771-florida-leonard-cabral-1244181/write_re view.html

Shane Weaver

Tue, Nov 6, 2012 3:45 AM

Leonard,

The 90 days' notice is in addition to honoring the lease term. There's an "and" between 702(a)(1) and (2). Banks usually know to issue the 90-day notice during the life of the lease to avoid this problem.

I'm unclear on (a.) who ended up with the property through the foreclosure sale, and (b.) who's moving for the writ--mortgage company, Fannie Mae, or both simultaneously.

If the mortgage company is moving for the writ, they can't do it because they're an immediate successor in interest and have not given the requisite 90-day notice. On the other hand, if it's Fannie Mae and they acquired title from the mortgage company at some point after the sale, the PTFA may not even apply to them. This is because Fannie Mae would not be an immediate successor in interest. (See, e.g., Sachdev Plaza, LLC v. McDonald, 2012 WL 3064644 (Conn. Super. 2012)).

On the subject of writs of possession, I have argued that a successor in interest cannot simply seek a writ of possession under an existing foreclosure, but needs to file a new eviction instead. The PTFA doesn't merely create some kind of grace period, it extends an existing tenancy by swapping in a new landlord for the foreclosed one. Thus, the normal tenancy continues, the tenant must pay rent, banks cannot simply lock them out, etc.

In light of that, I believe the tenant must be removed through a regular eviction action (as in Sachdev and other cases), not a writ of possession under a concluded foreclosure. Maybe that argument will work in your county, though again, it might be irrelevant if Fannie Mae is not an immediate successor in inerest.

I hope that helps.

Sincerely,

Shane Weaver, Esq.
Fair Housing Project
Legal Aid Society of Palm Beach County, Inc.
423 Fern Street, Suite 200
West Palm Beach, FL 33401
Tel. (561) 822-9785
Fax (561) 822-9885

From: landten-bounces@lists.flabarrpptl.org [landten-bounces@lists.flabarrpptl.org] On Behalf Of Leonard Cabral [leonardcabral@cfl.rr.com]
Sent: Monday, November 05, 2012 9:42 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Tenant in foreclosure question

Leonard Cabral, Esq.
212 N. Park Ave., Suite 14
Sanford, FL 32771
(407) 330-4998
leonardcabral@cfl.rr.com

To write a review click the link below.
https://www.avvo.com/attorneys/32771-florida-leonard-cabral-1244181/write_review.html

Leonard, The 90 days' notice is in addition to honoring the lease term. There's an "and" between 702(a)(1) and (2). Banks usually know to issue the 90-day notice during the life of the lease to avoid this problem. I'm unclear on (a.) who ended up with the property through the foreclosure sale, and (b.) who's moving for the writ--mortgage company, Fannie Mae, or both simultaneously. If the mortgage company is moving for the writ, they can't do it because they're an immediate successor in interest and have not given the requisite 90-day notice. On the other hand, if it's Fannie Mae and they acquired title from the mortgage company at some point after the sale, the PTFA may not even apply to them. This is because Fannie Mae would not be an immediate successor in interest. (See, e.g., Sachdev Plaza, LLC v. McDonald, 2012 WL 3064644 (Conn. Super. 2012)). On the subject of writs of possession, I have argued that a successor in interest cannot simply seek a writ of possession under an existing foreclosure, but needs to file a new eviction instead. The PTFA doesn't merely create some kind of grace period, it extends an existing tenancy by swapping in a new landlord for the foreclosed one. Thus, the normal tenancy continues, the tenant must pay rent, banks cannot simply lock them out, etc. In light of that, I believe the tenant must be removed through a regular eviction action (as in Sachdev and other cases), not a writ of possession under a concluded foreclosure. Maybe that argument will work in your county, though again, it might be irrelevant if Fannie Mae is not an immediate successor in inerest. I hope that helps. Sincerely, Shane Weaver, Esq. Fair Housing Project Legal Aid Society of Palm Beach County, Inc. 423 Fern Street, Suite 200 West Palm Beach, FL 33401 Tel. (561) 822-9785 Fax (561) 822-9885 ________________________________________ From: landten-bounces@lists.flabarrpptl.org [landten-bounces@lists.flabarrpptl.org] On Behalf Of Leonard Cabral [leonardcabral@cfl.rr.com] Sent: Monday, November 05, 2012 9:42 PM To: 'RPPTL Landlord Tenant Committee' Subject: [RPPTL LandTen] Tenant in foreclosure question Group A mortgage company forecloses and a tenant has a lease for one year and is considered a bonafide tenant by court. Mortgage company sells to Fannie Mae. One year is up on the lease. Mortgage compay files for a writ of possession. Can Fannie Mae get a writ of possession on the same pleadings and case number as the mortgage company? Does a 90 day notice apply? any cases on point? Leonard Cabral, Esq. 212 N. Park Ave., Suite 14 Sanford, FL 32771 (407) 330-4998 leonardcabral@cfl.rr.com To write a review click the link below. https://www.avvo.com/attorneys/32771-florida-leonard-cabral-1244181/write_review.html