BILL NUMBER: AB 2610 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 19, 2012
AMENDED IN ASSEMBLY MARCH 29, 2012
INTRODUCED BY Assembly Member Skinner
FEBRUARY 24, 2012
An act to amend Section 2924.8 of the Civil Code, and to amend
Section 1161b Sections 415.46, 1161b, and
1161c of the Code of Civil Procedure, relating to
foreclosures tenants .
LEGISLATIVE COUNSEL'S DIGEST
AB 2610, as amended, Skinner. Foreclosure: tenants.
Tenants: foreclosure and unlawful detainer.
Existing
(1) Existing law requires a
notice of sale to be posted before any power of sale can be exercised
under the power of sale contained in any deed of trust or mortgage.
Existing law, until January 1, 2013, requires a resident of property
upon which a notice of sale has been posted to be provided a
specified notice advising the resident that, among other things, if
the person is renting the property, the new property owner may either
give the tenant a new lease or rental agreement, or provide the
tenant with a 60-day eviction notice, and that other laws may
prohibit the eviction or provide the tenant with a longer notice
before eviction. Existing law makes it an infraction to tear down the
notice within 72 hours of posting. Existing law requires a state
government entity to make translations of the notice available in 5
specified languages, for use by a mortgagee, trustee, beneficiary, or
authorized agent, in order to satisfy the notice requirements.
This bill would revise certain portions of the notice to instead
require a resident of property upon which a notice of sale has been
posted to be advised that if the person is renting the property, the
new property owner may either give the tenant a new lease or rental
agreement, or provide the tenant with a 90-day eviction notice. The
bill would require the notice to advise a tenant who has a lease that
the new property owner is required to honor the lease unless
the new owner will occupy the property as a primary
residence or unless the lease was signed within the last 15 days
and that the tenant may have the right to stay in the property
for longer than 90 days. The bill would require the Department of
Consumer Affairs to make translations of the notice available, as
described above. The bill would provide that these changes to
the notice would become operative on March 1, 2013, or 60 days
following posting of a dated notice incorporating those amendments on
the Department of Consumer Affairs Internet Web site, whichever date
is later. The bill would extend the operation of these
provisions indefinitely.
By extending the operation of provisions establishing a crime,
this bill would impose a state-mandated local program.
(2) Existing law provides, that in an unlawful detainer action, if
an owner or owner's agent has obtained service of a prejudgment
claim of right to possession, as specified, no occupant of the
premises, whether or not that occupant is named in the judgment for
possession, may object to the enforcement of the judgment, as
specified.
This bill would provide that those provisions do not limit the
right of a tenant, subtenant, or occupant to file a prejudgment claim
of right of possession or to object to enforcement of a judgment for
possession, regardless of whether the tenant, subtenant, or occupant
was served with a prejudgment claim of right to possession, as
specified, in the case of an unlawful detainer arising out of, among
other circumstances, a foreclosure sale.
Existing
(3) Existing law, until January
1, 2013, requires a tenant or subtenant in possession of a rental
housing unit at the time that property is sold in foreclosure to be
provided 60 days' written notice to quit before the tenant or
subtenant may be removed from the property, as specified.
This bill would instead require a tenant or subtenant in
possession of a rental housing unit under a month-to-month lease at
the time that property is sold in foreclosure to be provided 90 days'
written notice to quit before the tenant or subtenant may be removed
from the property. The bill would provide tenants or subtenants
holding possession under a residential lease with the right to
possession until the end of the lease term unless the new owner
will occupy the property as a primary residence or unless the lease
was signed within the last 15 days. The bill would require a
residential lease that is entered into 75 days or more after a notice
of default against the property has been recorded to contain a
notice to advise the potential tenant that the foreclosure
process has begun on the property, and that the property may be
sold, which will terminate the lease . The bill would also
extend the operation of these provisions indefinitely.
(4) Existing law, until January 1, 2013, and subject to
exceptions, requires that in the case of any foreclosure on a
residential property, the immediate successor in interest in the
property pursuant to the foreclosure shall attach a cover sheet, as
specified, to any notice of termination of tenancy served on a tenant
of that property within the first year after the foreclosure sale.
This bill would extend the operation of these provisions
indefinitely.
The
(5) The California Constitution
requires the state to reimburse local agencies and school districts
for certain costs mandated by the state. Statutory provisions
establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 2924.8 of the Civil Code is amended to read:
2924.8. (a) (1) Upon posting a notice of
sale pursuant to Section 2924f, a trustee or authorized agent shall
also post the following notice, in the manner required for posting
the notice of sale on the property to be sold, and a mortgagee,
trustee, beneficiary, or authorized agent, concurrently with the
mailing of the notice of sale pursuant to Section 2924b, shall send
by first-class mail in an envelope addressed to the "Resident of
property subject to foreclosure sale" the following notice in English
and the languages described in Section 1632:
"Foreclosure
Foreclosure process has begun on this property, which
may affect your right to continue to live in this property. Twenty
days or more after the date of this notice, this property may be sold
at foreclosure. If you are renting this property, the new property
owner may either give you a new lease or rental agreement or provide
you with a 90-day eviction notice. Y ou may have a
right to stay in your home for longer than 90 days. If you have
a lease, the new owner must honor the lease unless the new
owner will occupy the property as a primary residence or unless the
lease was signed within the last 15 days . You may
have the right to stay in your home for longer than 90 days.
Also, in some cases and in some cities with a "just
cause for eviction" law, you may not have to move at all. You
may wish to contact a lawyer or your local legal aid office or
housing counseling agency to discuss any rights you may
have." have.
(2) The amendments to the notice in this subdivision made by the
act that added this paragraph shall become operative on March 1,
2013, or 60 days following posting of a dated notice incorporating
those amendments on the Department of Consumer Affairs Internet Web
site, whichever date is later.
(b) It shall be an infraction to tear down the notice described in
subdivision (a) within 72 hours of posting. Violators shall be
subject to a fine of one hundred dollars ($100).
(c) The Department of Consumer Affairs shall make available
translations of the notice described in subdivision (a) which may be
used by a mortgagee, trustee, beneficiary, or authorized agent to
satisfy the requirements of this section.
(d) This section shall only apply to loans secured by residential
real property, and if the billing address for the mortgage note is
different than the property address.
SEC. 2. Section 415.46 of the Code of
Civil Procedure is amended to read:
415.46. (a) In addition to the service of a summons and complaint
in an action for unlawful detainer upon a tenant and subtenant, if
any, as prescribed by this article, a prejudgment claim of right to
possession may also be served on any person who appears to be or who
may claim to have occupied the premises at the time of the filing of
the action. Service upon occupants shall be made pursuant to
subdivision (c) by serving a copy of a prejudgment claim of right to
possession, as specified in subdivision (f), attached to a copy of
the summons and complaint at the same time service is made upon the
tenant and subtenant, if any.
(b) Service of the prejudgment claim of right to possession in
this manner shall be effected by a marshal, sheriff, or registered
process server.
(c) (1) When serving the summons and
complaint upon a tenant and subtenant, if any, the marshal, sheriff,
or registered process server shall make a reasonably diligent effort
to ascertain whether there are other adult occupants of the premises
who are not named in the summons and complaint by inquiring of the
person or persons who are being personally served, or any person of
suitable age and discretion who appears to reside upon the premises,
whether there are other occupants of the premises.
If
(2) If the identity of such an
occupant is disclosed to the officer or process server and the
occupant is present at the premises, the officer or process server
shall serve that occupant with a copy of the prejudgment claim of
right to possession attached to a copy of the summons and complaint.
If personal service cannot be made upon that occupant at that time,
service may be effected by (1) leaving a copy of a
prejudgment claim of right to possession attached to a copy of the
summons and complaint addressed to that occupant with a person of
suitable age and discretion at the premises, (2)
affixing the same so that it is not readily removable in a
conspicuous place on the premises in a manner most likely to give
actual notice to that occupant, and (3) sending
the same addressed to that occupant by first-class mail.
In
(3) In addition to the service on
an identified occupant, or if no occupant is disclosed to the
officer or process server, or if substituted service is made upon the
tenant and subtenant, if any, the officer or process server shall
serve a prejudgment claim of right to possession for all other
persons who may claim to occupy the premises at the time of the
filing of the action by (1) leaving a copy of a
prejudgment claim of right to possession attached to a copy of the
summons and complaint at the premises at the same time service is
made upon the tenant and subtenant, if any, (2)
affixing the same so that it is not readily removable in a
conspicuous place on the premises so that it is likely to give actual
notice to an occupant, and (3) sending the same
addressed to "all occupants in care of the named tenant" to the
premises by first-class mail.
The
(4) The person serving process
shall state the date of service on the prejudgment claim of right to
possession form. However, the absence of the date of service on the
prejudgment claim of right to possession does not invalidate the
claim.
(d) Proof of service under this section shall be filed with the
court and shall include a statement that service was made pursuant to
this section. Service on occupants in accordance with this section
shall not alter or affect service upon the tenant or subtenant, if
any.
(e) (1) If an owner or his or her agent has
directed and obtained service of a prejudgment claim of right to
possession in accordance with this section, no occupant of the
premises, whether or not such that
occupant is named in the judgment for possession, may object to the
enforcement of that judgment as prescribed in Section 1174.3.
(2) Paragraph (1) shall not limit the right of any tenant,
subtenant, or occupant of the property to file a prejudgment claim of
right of possession pursuant to Section 1174.25 at any time before
judgment, or to object to enforcement of a judgment for possession as
prescribed in Section 1174.3, whether or not the tenant, subtenant,
or occupant was served with a prejudgment claim of right to
possession, when the judgment for possession arises from an action
for unlawful detainer pursuant to Section 1161a.
(f) The prejudgment claim of right to possession shall be made on
the following form: GRAPHIC INSERT HERE: SEE PRINTED VERSION OF THE
BILL]
SEC. 2. SEC. 3. Section 1161b of the
Code of Civil Procedure is amended to read:
1161b. (a) Notwithstanding Section 1161a, a tenant or subtenant
in possession of a rental housing unit under a month-to-month lease
at the time the property is sold in foreclosure shall be given 90
days' written notice to quit pursuant to Section 1162 before the
tenant or subtenant may be removed from the property as prescribed in
this chapter. Tenants
(b) (1) Tenants
or subtenants holding possession under a residential lease
of a rental housing unit at the time that the property is sold at
foreclosure shall have the right to possession until the end of
the lease term.
(2) Paragraph (1) shall not apply if a new owner will occupy the
unit as a primary residence or if the lease was entered into within
15 days prior to the posting of the notice of sale pursuant to
Section 2924f, provided however, that in either case the new owner
shall provide the notice described in subdivision (a).
(3) Every residential lease entered into 75 days or more after the
recording of a notice of default for the property shall include the
following notice in English and the languages described in Section
1632:
Foreclosure proceedings have begun on this property, which may
affect your right to continue to live in this property if you sign
this lease. This property may be sold at a foreclosure sale in as
soon as 20 days, which will terminate this lease. If you rent this
property, the new owner may evict you after a 90-day eviction notice.
In some cities with a "just cause for eviction" law, you may not
have to move.
(b)
(d) This section shall not apply if any party to the
note remains in the property as a tenant, subtenant, or occupant.
(e) This section shall not preempt any local ordinance and is in
addition to any other rights and remedies available to tenants and
owners as provided by federal, state, and local law.
SEC. 4. Section 1161c of the Code of
Civil Procedure is amended to read:
1161c. (a) In the case of any foreclosure on a residential
property, the immediate successor in interest in the property
pursuant to the foreclosure shall attach a cover sheet, in the form
as set forth in subdivision (b), to any notice of termination of
tenancy served on a tenant of that property within the first year
after the foreclosure sale. This notice shall not be required if any
of the following apply:
(1) The tenancy is terminated pursuant to Section 1161.
(2) The successor in interest and the tenant have executed a
written rental agreement or lease or a written acknowledgment of a
preexisting rental agreement or lease.
(3) The tenant receiving the notice was not a tenant at the time
of the foreclosure.
(b) The cover sheet shall consist of the following notice, in at
least 12-point type:
Notice to Any Renters Living At
street address of the unit]
The attached notice means that your home was recently sold in
foreclosure and the new owner plans to evict you.
You should talk to a lawyer NOW to see what your rights are. You
may receive court papers in a few days. If your name is on the papers
it may hurt your credit if you do not respond and simply move out.
Also, if you do not respond within five days of receiving the
papers, even if you are not named in the papers, you will likely lose
any rights you may have. In some cases, you can respond without
hurting your credit. You should ask a lawyer about it.
You may have the right to stay in your home for 90 days or longer,
regardless of any deadlines stated on any attached papers. In some
cases and in some cities with a "just cause for eviction law," you
may not have to move at all. But you must take the proper legal steps
in order to protect your rights.
How to Get Legal Help
If you cannot afford an attorney, you may be eligible for free
legal services from a nonprofit legal services program. You can
locate these nonprofit groups at the California Legal Services Web
site (www.lawhelpcalifornia.org), the California Courts Online
Self-Help Center (www.courtinfo.ca.gov/selfhelp), or by contacting
your local court or county bar association.
(c) If the notice to quit specifies an effective date of at least
90 days after the notice is served, without qualification, no cover
sheet shall be required, provided that the notice incorporates the
text of the cover sheet, as set forth in subdivision (b) in at least
10-point type. The incorporated text shall omit the caption and the
first paragraph of the cover sheet and the fourth paragraph of the
cover sheet shall be replaced by the following language:
You may have the right to stay in your home for longer than 90
days. If you have a lease that ends more than 90 days from now, the
new owner must honor the lease under many circumstances. Also, in
some cases and in some cities with a "just cause for eviction law,"
you may not have to move at all. But you must take the proper legal
steps in order to protect your rights.
(d) This section shall remain in effect only until
January 1, 2013, and as of that date is repealed, unless a later
enacted statute, that is enacted before January 1, 2013, deletes or
extends that date.
SEC. 3. SEC. 5. No reimbursement is
required by this act pursuant to Section 6 of Article XIII B of the
California Constitution because the only costs that may be incurred
by a local agency or school district will be incurred because this
act creates a new crime or infraction, eliminates a crime or
infraction, or changes the penalty for a crime or infraction, within
the meaning of Section 17556 of the Government Code, or changes the
definition of a crime within the meaning of Section 6 of Article XIII
B of the California Constitution.