by Mark B. Zinman, Zona Law Group
For investors buying properties at trustee’s sale, it is critically important that they gain possession of the property at the earliest time possible and for the least expense. We have streamlined our handling of such cases, enabling landlords to file their evictions and process them quickly through the justice court system. Due to a lawsuit filed by another law firm, this is no longer the case.
Effective immediately, evictions in posttrustee’s sales cases can no longer be filed in justice court and must be filed in superior court.
To understand the significance of this ruling, it is important to understand the differences between the courts. Justice courts were created as a court of the people. The justice courts regularly handle high volume cases, including collections under $10,000 and almost all landlord-tenant cases. Therefore, the judges are well suited to hear post-trustee’s sale evictions. The process is faster and generally the court fees and attorneys’ fees are lower. Superior Court is a more formal court and requires litigants to follow more stringent disclosure rules. Additionally, Superior Court handles less cases and schedules them out farther. This leads to a slower court process, with evictions often taking weeks or months, not usually less than one month. This is in stark contrast to what investors are used to.
Unfortunately, post-trustee’s sale evictions changed with the Court of Appeals ruling in Secure Ventures v. Honorable Gerlach. In that case, another firm that practices in this area, challenged a court ruling and asked the Court of Appeals to determine whether such evictions could be filed in justice court. There are two different statutes which control evictions (aka forcible detainers) and where they can be filed. It was unclear whether evictions under both statutes could be filed in justice court. The Court of Appeals said that the two statutes give the courts different powers and that posttrustee’s sale evictions must be brought in Superior Court.
This means that post-trustee’s sale evictions will immediately become slower and more expensive. The attorneys’ fees alone will be much higher, to account for the extra procedural matters we must address. Additionally, as there are less cases filed in Superior Court, we will have to make special court runs for the attorneys’ to go to the hearings in these matters, as opposed to already being in court for standard landlord-tenant matters.
It is important to note that this ruling does not affect all evictions, just ones wherein there is a transfer of title and the former owner retains possession against the will of the new owner. Landlord-tenant matters are not affected by this ruling at all and can continue to be processed in justice court.