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California Attorney Patricia Rodriguez: Litigation of Possession of Real Property...

The Plaintiff (the bank in an unlawful detainer) must prove three issues: (1)the defendant is still in possession, (2) the defendant was properly served with three day notice to quit and (3) the plaintiff has a duly perfected security interest.

You can request a temporary restraining order or preliminary injunction either before the sale takes place or within the unlawful detainer, but you must be able to show a likelihood of success on the merits, exigent circumstances, and irreparable harm.

A temporary restraining order provides a temporary stop and prevents the selling of the home, while a preliminary injunction is a permanent restraint from selling the home for the duration of ongoing litigation.

After the unlawful detainer complaint is filed, then it must be personally served. Upon personal service or an order to post and mail the defendant (homeowner), the defendant has five days to respond to the complaint. Unknown occupants who want to make a claim for possession must file and serve a prejudgment claim of possession within ten days of service of the complaint.


If service of the complaint is not proper, then the defendant’s may file a motion to quash. A motion to consolidate, in a title action, can also be filed to bring the title action and unlawful foreclosure claims together, stopping the eviction (unlawful detainer). A bond may be required for this action, a temporary restraining order or preliminary injunction. Once a defendant(s) responds to the complaint via demur then the court will likely order defendants to answer the complaint within 5 days at the demur hearing. Once an answer is filed, Plaintiff(s) will file a request for a trial to be set. Defendants may file a counter-request asking for a jury trial within five days of the original request to set the case for trial.


At trial, if a judgment is rendered for Plaintiffs, then the defendants will have to appeal within 30 days and can also file a motion to stay the judgment pending the appeal. If the stay is denied then defendants may take a writ to the order to deny the request for a stay. The writ is successfully granted on many occasions.

In Wedgewood v. Brown-Wilson (California), the Court reversed a trial court because Plaintiff failed to provide duly perfected title as mandated by CCP Section 1161 and a trustee’s deed upon sale is not prima facie evidence of a duly perfected title contrary to previous holdings in the appellate division. Riverside – is not published so it is not persuasive case law.

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