Rights of Former Homeowners

Rights of Former Homeowners after Foreclosure

Previous property owners sometimes remain in their homes after foreclosure. If you owned your home but have lost it in foreclosure, you should be aware of the rights and responsibilities you now have with respect to the new owner. Although you may face similar problems as tenants do, your legal rights are not the same.

Banks routinely seek to evict former owners after foreclosure. To evict a former homeowner, a new owner must follow specific procedures. The new owner must serve a notice and go to court. Since a previous homeowner who remains in the property after foreclosure is considered a tenant at sufferance, she is entitled only to a notice that her right to possession has terminated by operation of law.²⁵ In this context, lenders usually use a 72-hour notice, which has been found sufficient.²⁶ The new owner must then file a summary process case, in which the old owner can defend herself.

Tenants at sufferance have the same rights as other tenants to defend against eviction by bringing certain claims against the owner.²⁷ A former homeowner, as a tenant at sufferance, may therefore have a defense to eviction if, for example, bad conditions arose in the home after the foreclosure and they cannot be traced back to the former homeowner's own actions during the time when he owned the property.²⁸ Former homeowners may also win an eviction case if they did not receive reasonable notice before the case was filed, or if the bank's court complaint is defective (see Chapter 13: Evictions ). In most cases, a former homeowner cannot raise questions about the validity of the loan or the foreclosure in an eviction case.

However, if you filed for bankruptcy, your eviction case cannot go forward without the permission of the Bankruptcy Court.²⁹ You should alert the court in which your eviction case is pending that you have filed for bankruptcy. The bank would then have to file a motion in the bankruptcy case to get permission to move forward with the eviction. . Only if the motion is allowed can it go forward with the eviction case. You may challenge the foreclosure in your bankruptcy case.³⁰

Because former homeowners have only limited defenses to eviction, you may not be able to win an eviction case brought by the new owner after you have lost your home in foreclosure. If you would like to continue to fight to stay in your home, you should try to connect with a community organization. For a list of such organizations, see the Directory, or go to MASStenants.net. You can also ask the judge in your eviction case to postpone the eviction and give you more time to move.³¹ To do this, you must fill out the Stay of Execution form (see Booklet 8). For more information on getting a stay of execution, see the section of Chapter 13 called Postponing the Eviction.