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Isn't It A Violation Of The Homeowner's Due Process Right To Require Him To Pay Rent To The Lender As A Condition To Grant Consolidation Of The Lender's Unlawful Detainer With His Title Action?
Posted by: Kenny Tan
April 30, 2011

Shortly after a home is foreclosed on by a lender, the lender will seek eviction of the homeowner through an unlawful detainer action. An unlawful detainer is a summary proceeding - the whole litigation process is expedited with limited time to properly prepare for trial which may be a jury trial if timely requested.

Only to a limited extent may title be litigated in an unlawful detainer to recover possession of property after a trustee's sale - courts severely limit a borrower's ability to litigate title issues in the unlawful detainer beyond challenges to compliance with Civil Code 2924. You can expect the bank to file motions to exclude any evidence on the defects in the acquisition of the loans by the bank. Courts are bound by the rules and will readily grant these motions.

Thus, a homeowner who believes his property has been wrongfully foreclosed on would have to file a separate civil suit to litigate title issues that cannot be litigated in the unlawful detainer, even when he would've been entitled to keep his house if he prevails on these issues.

But the lender's unlawful detainer and homeowner's civil action run on separate tracks - which means the unlawful detainer would probably be over long - usually in a couple of months- before the civil action is even ready for trial - usually in a year or longer. He would be evicted from his home without an opportunity to be heard on issues which if he prevails on would keep him in his house - a deprivation of his due process rights.

Under Asuncion v. Superior Court, a homeowner in this situation may ask the court to consolidate the two cases so all issues will be tried in a single trial or request a stay of the unlawful detainer action until the title issues have been decided in the title action.

But is the court required to grant the consolidation?

Asuncion seems to imply that consolidation is this instance, if requested by the homeowner, is mandatory - as evidenced by the court's use of the language "due process guarantees".

These days we're seeing more courts grant requests for consolidation but only on condition that the homeowner pays rent to the lender while the matters are litigated.

Does the court have the discretionary power to make the homeowner pay rent to the lender a condition to granting the consolidation? Isn't that condition itself a violation of a homeowner's due process right? (It's like saying to the homeowner "I think you're going to lose this case, so I'm going to order you to pay money to the lender even if you've not lost your case")

If a homeowner isn't in a landlord-tenant relationship with the lender, why should he pay rent to the lender? Shouldn't that money be deposited into the court - as opposed to the pocket of the lender - pending the resolution of the cases even if it is justifiable to make such an order. And if the case is resolved in favor of the homeowner, it goes back to him, and if not, it goes to the lender.

Also Code of Civil Procedure Section 1048 does not expressly grant the court the power to condition consolidation of cases on payment of money from one party to the other. While the court has some discretionary power under CCP 1048 to impose certain conditions to avoid "unnecessary costs or delay", what relationship does making the homeowner pay rent to the lender bear to the avoidance of unnecessary costs or delay? How is that not a violation of the due process right of an homeowner? 

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