Foreclosure: Is a black-eye that will haunt. Utah is a default judgement state. The note holder may sell the automatic deficiency judgment to a debt-chasing attorney who can collect the difference from what they recoup and what the bank was owed. This is rarely done but with losses mounting hight it may become more common. It’s wiser to negotiate a short sale and get the deficiency waived.

Loan Modification is where the lender makes a determination that changing the terms of the loan is in the best interests of the note holder.  Government usually provides some sort of incentive but this isn’t the only reason the lender will permanantly change the terms of the loan.  They might lower the payment by reducing the interst rate, amortizing over 40 years vs. 30 years.  An interest rate reduction could be temporary or for the life of the loan.

Short-Sale: Is where the seller through their agent or broker who specializes in short-sales asks the bank to let them sell the house for less than what is owed for a win-win situation versus the stain of foreclosure.

Pre-Foreclosure: Is when the seller has equity they need to preserve but foreclosure is looming. A delicate situation where a full-time professional or specialist is essential.

Forebearance: Is a one-time solution to a temporary problem. If you fall behind you can, upon approval, defer the amount owed by attaching it to the end of the loan. The servicer will then give you a fresh start at the regullarly schedule payment.

STAYING IN THE HOME AFTER FORECLOSURE

THE FIVE STEPS

Eviction is an effecient legal process by which a landlord or owner can get you out of the house.

The first and most important thing you should know about eviction is that your landlord cannot,

1. lock you out of your home,
2. move you out of your home,
3. or take any property from your home

before going through the five-part eviction process.

Another important thing you should know is that if you are evicted, the judge may order you to pay the landlord triple damages, meaning three times the accured rent prorated daily (after the expiration of the eviction notice) and property damage.

STEP 1: NOTICE

The first part of the eviction process occurs when the owner gives you a written notice to leave the premises.

THERE ARE FIVE TYPES OF EVICTION NOTICES IN UTAH

TYPES OF NOTICES

1. 1. Three-Day Alternative Notice for Non-Payment of Rent and/or Other Amounts Due
   2. Three-Day Notice to Vacate
   3. Three-day Notice to Comply or Quit
   4. Fifteen-Day “No Cause” Notice
   5. Five Day Notice to “Tenant-at-Will”

This notice can be used if you do not have any agreement with the landlord to live in the unit as a regular tenant. For example, if you took over someone’s apartment without the landlord’s agreement or if you stay after a lease expires, you did not make any arrangements to stay, and your rent payment was not accepted. This notice to a “tenant-at-will” must notify you to leave in five days. This notice may also be given to a tenant after a foreclosure, even if the “tenant” is the former owner. If a tenant is renting from an owner and the property is foreclosed, the new owner does not have to honor any prior rental agreements but may evict existing tenants with a tenant-at-will notice. (If a property is sold, however, the new owner must still honor prior agreements.)

HOW THE NOTICE IS SERVED ON YOU

There are four ways to give you an eviction notice:

1. 1. 1. Hand it to you or have someone hand it to you (it does not have to be a Sheriff, police officer, or constable); or
      2. Send a copy by registered or certified mail to your home; or
      3. Leave a copy with someone of suitable age at your home or business AND mail a copy to your address (leaving a notice with a child who is not old enough to be responsible is not allowed); or
      4. Post a copy on your property (such a by taping it to the door) if you cannot be located and no one is at home.

STEP 2: LAWSUIT

If you do not comply with the notice you receive, the second step of the eviction process occurs. The landlord files a complaint and a summons with the court and has someone serve these papers on you.

You must reply in writing within the time stated on the summons (usually three BUSINESS days counting as the first day the day after you are served). Attached to the summons will be the complaint which explains the landlord’s side of the story. You or your attorney must file a paper with the court called an answer, or you will be evicted very quickly. If you don’t file your answer with the court on time, the judge will issue a default judgment in favor of your landlord, ordering the sheriff to move you out. If you file your answer and disagree with the complaint, the case will be decided later. You will have a chance to submit documents or testify before the judge decides the case. Your answer MUST be delivered to the court by the deadline; DO NOT MAIL your answer.

NOTICE OF POSSESSION BOND

If you are also served with another paper that indicates that your landlord has posted a plaintiff’s possession bond, the eviction process has been speeded up. You could get this notice at the same time you get the summons and complaint or anytime afterward. (Possession bonds are not used everywhere in Utah. And since changes were adopted in 2007, few eviction cases now include possession bonds.)

You must do one of the following WITHIN THREE BUSINESS DAYS after receiving this notice:

1. 1. 1. If the eviction is for non-payment, pay all rent or utilities owing, late fees, attorney’s fees (if provided in your rental agreement) and court costs. You can then stay; or
      2. File a counterbond with the court. You must do the paperwork and ask a judge to set the amount of the counterbond, then pay it to the court. You can then stay and have a trial later;
      3. Demand a hearing with the court in writing. The court has a form to do this. The hearing will be held as soon as possible. At this hearing, the court can make a decision about all the issues or simply decide who has the right to possession of the unit. If instead of dealing with all the issues, the court wants to postpone dealing with some of them, but allows you to stay you may have to post a counterbond in order to stay in the unit pending the rest of the procedure.
      4. Move out. Money issues will still need to be decided later.

WARNING: YOU must properly respond to the Notice of Possession Bond, if you don’t, you will be evicted immediately.  Click here to use the Utah Court system

The law permits a landlord to ask for a hearing within 10 days if the landlord claims you didn’t pay the rent or other amounts due, or when the landlord claims that you or someone associated with you committed a criminal act on the premises.

STEP 3: TRIAL

If you file an Answer with the court on time and respond to the Notice of Possession Bond as explained in STEP 2 above, or the landlord alleges you didn’t pay the rent or you committed a criminal act on the premises, you will generally have a trial.

You and your landlord present witnesses and other evidence. These trials are like other non criminal cases. You have the right to a jury if you ask. However, the first hearing scheduled in eviction cases often deals only with the issue of possession (who has the right to possess the rental property). Often many such hearings are scheduled at the same time. In such cases, a judge will often only decide who has the right to be in the rental property, leaving all other issues to be decided later. If the judge believes you owe some rent, the judge will likely give you 3 days to leave the rented premises. The actual amount of rent due will not be decided until later.

STEP 4: JUDGMENT (Judge’s Decision)

This usually happens in court while you and the landlord are both there. Then the decision is put on paper and signed by the judge.

In most cases, if the landlord and tenant appear in court and the judge orders the tenant to vacate the premises by a certain time, no other proceedings will take place in the eviction action as long as the tenant moves out by the judge’s deadline. If the tenant does not move out, the landlord can get the judge to order immediate restitution of the premises meaning that as soon as the tenant is served with the order, the sheriff can forcibly evict the tenant even if the tenant’s possessions are still in the rental unit.

You will usually receive a copy of the judgment or order. If the landlord wins, the judge will order you to move out. If you don’t move out, the judge will order the sheriff to move you. The judgment will order you to pay damages so proceed with caution.

Remember, your landlord cannot legally lock you out of your unit or move you out of your unit until the landlord has a court order (Order of Restitution). Call the police or the sheriff if the landlord tries to take such actions without a court order.

APPEALS

You or your attorney can appeal a judgment within ten days after the judge signs it. You will have to pay a filing fee or sign an affidavit showing you can’t pay the fee. By itself, an appeal does not stop an eviction.

HOW TO FIGHT A DEFAULT JUDGMENT AGAINST YOU

It you fail to respond to the Summons and Complaint, or to the Notice of Possession Bond or other notice of a hearing, the court may issue a default judgment. If you want to have a default judgment undone, you must file a Motion to Set Aside and a Request for Hearing. You must have a legal reason to do so. This paper asks the judge to reopen the case. You can request the forms for these papers at Utah Legal Services. You will most likely have to file a bond (pay money into court) in order to set aside the default.

STEP 5: REMOVAL FROM THE HOME (Order of Restitution)

If you lose in court at Steps 2 or 4, you will be served with an order to vacate and remove your property – Order of Restitution – usually within three calendar days from the day the judge signs the judgment. In some cases, a judge can shorten this time so that you might be evicted immediately, as soon as the sheriff or constable comes to your rental unit with the Order.

A form to request a hearing will be attached. This is not an opportunity to fight the eviction, just to dispute the terms of the order or the way it was enforced. Requesting this hearing will not stop the order to vacate. To stop the order to vacate, go to the end of this section.

If you do not stop this order, and you do not vacate and remove your property, the sheriff or constable can enter the premises to remove you. They will make a list of what possessions you have left and put those possessions in storage. You will have thirty days to request a hearing or reclaim your property by paying for the moving costs and storage fees. If somebody else owns any of the property that is in storage, that person has thirty days to prove that he or she owns it and ask the landlord in writing to return it, or request a hearing.

If you do not claim your property or request a hearing within thirty days, your property will be sold or possibly donated to charity. They will send you notice of the sale at your last known address. If you are present at the sale, you can say in what order your property should be sold. They can sell only what is necessary to cover the costs of removal, storage, and the sale, and should release the rest of your property to you.

If you are not present, your property will be sold to pay for costs and for what the court decided you owe the landlord. If any money is left, they will send it to you if they know where to find you.

HOW TO CHALLENGE AN ORDER OF RESTITUTION (ORDER TO VACATE)

If you want to stay in your unit and you lost in court, you will have to file a Motion to Set Aside Judgment (as explained at the bottom of Step 4) a Motion to Stay, AND a Request for Hearing. These papers ask the judge to stop the eviction and reopen the case.

NOTE: IF YOU FILE A MOTION TO STAY, YOU WILL HAVE TO DEPOSIT SOME MONEY WITH THE COURT.