Archive for July 2010

Tenants in Foreclsoure- Threatened Eviction

Tenants in Foreclosure- Threatened Eviction

I utilized the form letter on to draft a letter to my landlords letting them know that I would be applying my security deposit towards my July and half of the August rent. I sent the letter to them on the first of the month and within a couple of hours I had an email back from them saying that;
• The home was no longer in foreclosure
• The state and federal laws did not apply in this case
• Our agreement states that as long as we are in the home we need to pay rent
• That if we did not pay the rent by 9am on the 2nd they would send us a late notice and then if payment was not received within 7 days they would proceed with the eviction process

The landlord’s response was wrong on so many levels and I really didn’t know where to start so I just let it sit to see what they would do. Well, they did as they said and on the 2nd they sent a certified letter to my home saying that I was late and if I didn’t pay within 7 days they would expect my family to vacate the home.

Since the landlord was unlawful on so many different levels I really didn’t know where to start. I again spent the time calling their mortgage company, calling the trustee and even going to the county to verify the home was in fact still in foreclosure. The trustee and county have to provide the information because it is public record. The mortgage company on the other hand cannot tell you much unless they receive written authorization from the home owners. Still, if you keep your questions very general on the process they can usually give you some helpful information.

Everyone kept suggesting I retain an attorney to help, but I saw no reason why I should spend the money on an attorney to tell the landlords what I already knew. I really felt that I was so obviously right and they were so obviously wrong that this should be a battle I can manage on my own. Still, I did have some help from a friend who is a retired attorney to review my response before sending it off.

My response citing several laws landlord/tenant laws they were in violation. I started by research by turning to a book that I’ve used for year as a landlord titled Landlord/Tenant Rights in Oregon by Janay Ann Haas ( ). This gave me a good place to start and then I dug deeper into the legislation and it was very helpful, but rather cumbersome to find information in. My response:
• Again stated that I stood behind my July 1 letter and according to SB 952 and ORS 86.765 I am able to apply my security deposit towards the rent when the home is in foreclosure.
• Cited that our rental contract states that rent is not late until after 5pm on the fifth day of the month, so his demand for payment by 9am on the 2nd does not supersede that.
• ORS 90.385 prohibits a landlord from retaliating by servicing a notice to terminate tenancy or by bringing or threatening to bring action for possession after the tenant has performed or expressed intent to perform any other act for the purpose of asserting, protecting or invoking the protection of any right secured to tenants under any federal, state or local law. Under this we would be entitled to remedies provided under ORS 90.275.
• In addition to the wrongful notice mentioned ORS 90.394 and 90.155 and how they were not providing a proper nonpayment notice or following the correct timelines outlined in these statutes.
• I also let them know that according to our rental agreement we can seek for repayment of any attorney fees we incur in defending ourselves against their unlawful behavior.

The letter seemed to work because within a day or two I received an email from the landlords saying they were seeking legal council and would get back to us in a few days. A few days later they said they would continue renting month to month to us per the terms we had outlined in the letter.

A small victory. I still don’t know if and when the home will be sold for sure, possibly as soon as the end of August.

One thing I’ve been tackling with though is why have the landlords acted this way? I have been a model tenant and it seems they really do want to keep the home and continue to collect my rent payments. Are they are just desperate? Do they really not understand the situation they are in?

Tenants in Foreclosure- Security Deposit

Tenants in Foreclosure- Security Deposit

When I first found out the home I’m renting was in foreclosure my initial thought was to stop paying the rent. I felt that if the landlords were not going to pay the mortgage then why should I pay the rent? I felt betrayed by the homeowners and say now reason why they should financial benefit from the horribly position they put me in.

Well, after several emails and discussion from between me and the landlords it was decided that we would continue to pay the rent because I were contractually obligated to the landlords. The contract they had with the bank was separate. The landlords were fulfilling their end of the agreement and I needed to fulfill mine.

The sale date for the home is the end of August. It just so happens that my lease ends August 15th. The security deposit I put down on the home was equal to the July and half of Augusts rent. Even though I had agreed to fulfill our contract there was still the concern over the landlords paying back my security deposit. The landlords promised time and time again that they had the security deposit set aside, but all signs were pointing to them not.

After doing some research and found this great FAQ sheet on the on the Oregon Department of Consumer and Business Services website
It confirmed that tenants who are in foreclosure can in fact use their last month’s rent or security deposit towards unpaid rents. The form states

“Can I apply by security deposit or last month’s rent towards this month’s rent now that I know my home is in foreclosure?
Yes. Starting in September 2009, you can apply any security deposit and/or prepaid rent towards your monthly rent payments once you become aware that your home is in foreclosure. You must notify the landlord in writing that you are going to do this. Attached to this flyer is sample letter #2 that you can send to your landlord when you pay the amount of your rent minus your security deposit and/or prepaid rent. Once the home is foreclosed upon, you are unlikely to get your security deposit and/or prepaid rent back from the old owner. You should apply this money to your rent as soon as you know that your home is facing foreclosure.”

So I utilized the sample letter supplied to inform the landlords of my intent to use the security deposit towards my July 1-April 15 rent. The response from the landlords is that they were going to evict me for nonpayment. I’ll cover this topic the next post.

Tenants in Foreclosure- The Signs

Looking back there were a few signs that the home I was renting was heading into foreclosure.

Last summer I was fully engulfed in the search for a home to rent. It’s very different looking for a home to rent as opposed to looking for one to purchase. When you are looking at a home to purchase you can see beyond the flaws because you know you can do the whole DIY thing and change it. Still, when you are looking to rent you do not want to rent a home that you are going to want spend money and time improving because it’s a waste of your funds to improve a home that you don’t own.

Accepting a lower rent amount
I finally found a really great newer home that would be perfect to live in. It was newer and the homeowners had good taste in decorating. The only problem was the rent was a few hundred dollars more than what I had budgeted. So I pitched my budgeted rent amount to the landlords and they accepted it! I don’t think that most tenants realize they can negotiate the terms of the lease. Tenants can offer a lower rent amount, lower deposits or different terms such as dividing the security deposit into a few payments. I’ve been a landlord for 6 years and have never had anyone ask if I would accept a lower rent amount. The worst thing a landlord can say is “no” so what’s it hurt to ask?

Still, looking back now at the landlords accepting $300 dollars less a month for rent I’m thinking it should have raised some red flags for me. There really was no negotiating on this. They just accepted it. I don’t know that they knew the home would end up going into foreclosure then, but I do think they were probably behind at the time and desperate for any funds they could get.

Someone taking photos of the home
A few months after moving in I noticed someone pull up to my home and snap some photos. This definitely raised flags for me! I have a friend who is contracted to do this type of work for banks. The two biggest reasons he goes to take photos are to check the progress on home under construction and to check on the condition of homes in foreclosure. Well, my home definitely was not under construction so my mind immediately went to foreclosure. When I contacted the homeowners about the person taking photos I was told they were looking into refinancing the home. Well I really should have known better. If they were refinancing the bank would want a full appraisal which would mean entry into the home and not just someone quickly driving by and snapping photos.

Some knocking on the door looking to deliver something to the owner
After a few months that someone taking photos turned into someone knocking on my door and looking for the owners. All he could tell me was the name of the company that contracted him. After several calls to that company with no return call I gave up.

The landlord visiting
Now this one is hard to be sure if it is tied or not. About a month before I was served with the foreclosure notice the landlord came to “check in”. She said she wanted to see if there were any repairs that needed to be done. I assumed she just wanted to scope out the house to make sure we were taking good care of it. While she was here she picked up some items that she had left behind. Was this because she knew she might lose the house? Did she want to take a look at the house to see if it was worth fighting to keep?

Tenants in Foreclosure- Do you keep paying rent?

After being a homeowner for almost a decade I found my circumstance last year putting me back into the role of tenant. I still fall into the role of landlord too, but the home I live in now I am a tenant.

In April of this year I received a certified letter informing me that the home I am renting is in foreclosure. My initial feeling was anger towards the owners, wondering what they have been doing with my rent. My next feeling was sadness because my plan was to slowly work through the process of finding a home to buy or better yet build one (or should I say have one built). Now I had to worry about where I and my family would be living in a few months. How would I explain to my 8 year old daughter why we have to move after living in this home for only a year?

My experience working in collections and my work educating youth in personal finance left me believing there would be no alternative but for the home to be sold in August. Still, we are in a strange market right now and the norm seems to changing constantly. The homeowners have assured me time and time again that they are working with the bank on a modification and the home will be brought out of foreclosure and oh yes…keep paying that rent!

After receiving the notice of foreclosure I saw no reason why I should pay them the rent. Still, after a conversation from the landlords and some research on my part I found that as long as they still own the home I still am obligated to pay the rent.

I just happened to find a great website for tenants in foreclosure because I was in a meeting where the Department of Consumer and Business Services was presenting on their resources for consumers. My worry is for those who don’t work in the industry as I do and do not have the resources or time to dedicate to the research the issue. How are they suppose to find the resources they need to help them through this process?

So what are your thoughts? Is it right that as a tenant you are still obligated to pay rent to a landlord who is not paying the mortgage?

My plan is to break this series into several posts as I work through this process. What I’ve come to find out is that this is really is a very confusing and emotional process for someone to have to go through. My hope is that my sharing what I’ve learned will help others faced with a similar situation.

In future posts I will discuss the signs leading up to this, the security deposit and others topics as they arise with my situation.