Lender Becomes a Landlord
The lender often finds itself the owner of the property at a foreclosure sale. At that moment, the relationship between the occupant of the property and the purchaser at the foreclosure sale immediately changes. The purchaser becomes the landlord of the occupant and the occupant becomes the tenant of the purchaser. This forced tenancy situation is generally referred to as tenancy at sufferance. Tenancy at sufferance describes the situation where a person or entity initially gains possession of the property legally and lawfully, but thereafter remains in possession of the property without permission of the owner. If the occupant refuses to leave, an owner must resort to the courts to evict the occupant.

Tenant at Sufferance vs. Tenant at Will
By law, the former owner or tenant who remains on the property after the foreclosure sale is usually a tenant at sufferance. The tenancy at sufferance is the weakest type of tenancy recognized by law and is just a notch above trespasser. However, certain actions by the purchaser may convert the tenancy to a less attractive (from the lender's viewpoint) tenancy at will. The legal status of tenant at sufferance is important because such a tenant does not have the same rights, as other types of tenants, such as tenants at will, i.e., a tenant who does have the permission (express or implies) of the owner to remain on the property. For instance, a tenant at will is required to be given additional time and notice before he or she can be evicted. For a tenant at sufferance, all that is usually required before proceeding with an eviction is a demand that the occupant vacate the property or demand for possession.

Importance of Status
It is extremely important for the lender not to take any action that would convert the tenancy at sufferance into a tenancy at will. This conversion could be implied from any action on the part of the lender to consent or agree to the tenant's possession of the property. This change in tenancy status occurs most often when the purchaser accepts rent from the occupant. A lender accepting rent could create a tenancy at will and, before evicting, be required to give additional notice. Consequently, rent should never be required or accepted by the lender (although in some instances rent is paid into court, which is not the same as being paid directly to the lender).

Effects of Lease
Sometimes, the person residing at the property is the tenant of the original owner. Many times this person is totally unaware of the foreclosure sale until they receive notice of the eviction action. Unless he or she has a lease that is superior to the security deed, however, the tenant is also a tenant at sufferance just as the original owner would be. The unfortunate result for this tenant is that they must vacate the property even though they paid rent to the individual responsible for paying the mortgage. Unless they leave on their own, they can be evicted and forcibly removed from the premises, if necessary.

Alabama Eviction Synopsis
After a foreclosure sale, any occupant still in the property becomes a tenant in sufferance. The purchaser sends written notice (by certified mail, return receipt requested) to the occupants requesting they vacate the property. The borrower or other occupants have ten days after receipt of the letter to vacate. If they fail to do so, they forfeit their statutory right to redeem the property. The purchaser may pursue an ejectment action to recover possession of land and remove the borrower from the premises.

The ejectment action occurs after a foreclosure sale, if the tenant refuses to deliver possession within ten days of written demand. If the purchaser at a foreclosure sale does not take any action to consent or agree to the mortgagor's possession of the property, then the mortgagor is the tenant at sufferance of the purchaser. After the demand for possession is made, the actual legal proceeding to evict the occupant is initiated by filing a complaint for ejectment in the appropriate court. Once the eviction is filed, the defendant is served with process by a special process server. Personal service is always required in ejectment cases. If the defendant cannot be located for service, then the lender can serve by publication, which causes a delay in the process.

The defendant has 30 days from the date of service to file an answer in an ejectment lawsuit. If no answer is filed, the plaintiff is entitled to a writ of possession (order allowing eviction) by default. If an answer is filed, a hearing is set. At the hearing the lender must present evidence that a foreclosure occurred, that the party seeking the eviction was the purchaser at the foreclosure sale, or a transferee of the purchaser, and that some type of demand for possession has occurred. Once these facts are proven, the purchaser is usually granted a judgment declaring that it is entitled to possession of the property and ordering the clerk to issue a writ of possession. After the order granting possession, the lender must apply for a writ of possession. Once issued and sent to the sheriff, the eviction can be scheduled - usually within two to four weeks of it being issued. The eviction is carried out by a labor crew, normally supplied by the plaintiff, under the supervision of the sheriff. On the scheduled sale date, the personal property is "set out" on the curbside.

Georgia Eviction Synopsis
Upon the completion of a properly conducted nonjudicial foreclosure sale in Georgia, the borrower and anyone claiming title or possession by or through the borrower, becomes a "tenant in sufferance" subject to immediate eviction. The only condition precedent to filing an eviction after foreclosure is a demand for possession.

The purchaser at the foreclosure sale must demand possession of the property. After the lender has demanded possession and the borrower has failed to vacate the property, the lender initiates the eviction proceeding by filing a dispossessory affidavit with the applicable court in the county where the property is located. Most lenders generally prefer to file this dispossessory affidavit in the magistrate's court (if one exists in the applicable county) where possession is simplified and costs are generally lower. The sheriff then serves the dispossessory affidavit upon the borrower or other occupant.

After service is complete, the borrower or other occupant has seven (7) days in which to file an answer. If no answer is filed, then the case goes into default and the court may issue a writ of possession that may be executed immediately. If an answer is filed, however, then an expedited trial will be scheduled, usually within two (2) weeks after the filing of the answer. At the trial the lender generally presents evidence that the foreclosure sale was conducted and that the borrower failed to vacate the property after a demand for possession was made. Unless the borrower can prove that no demand for possession was made or that some blatant defect occurred with respect to the dispossessory proceeding itself (i.e. improper service of process or improper dispossessory affidavit), the court will usually enter a judgment in favor of the lender granting a writ of possession. If the lender prevails at a trial where the borrower disputes the eviction, Georgia law allows the judge to give the borrower an additional 7 days prior to issuing the writ of possession. This additional time is reflected in the judgment.

After the 7-day period expires (or immediately after a default as described above), the writ of possession is issued authorizing the sheriff or other judicial officer to carry out the dispossessory. It generally takes about a week (sometimes two weeks) after a writ of possession is actually issued before the sheriff can schedule the eviction. On the date of the scheduled eviction, the lender usually provides a crew to remove the occupant's personal belongings. At this time the lender should secure the property.

Mississippi Eviction Synopsis
In Mississippi, an unlawful entry and detainer action is the statutory summary proceeding to obtain possession of real property after a foreclosure sale and must be brought within one (1) year of being deprived of possession. Following a foreclosure sale, the purchaser (or owner) usually makes written demand for possession of the property, even though there is no explicit notice provision in the Mississippi Code.

Filing a complaint in the appropriate court initiates the actual legal proceeding to evict the occupant. The Complaint usually states the purchaser is the owner of the property and the occupant is a tenant holding over after a foreclosure sale. When the complaint is filed with the clerk of the justice court, the clerk issues a summons and schedules the hearing. The hearing is scheduled for not less than five (5) days or more than twenty (20) days after the date the Complaint is filed. Then the clerk completes a warrant inserting the date, time and place of the hearing. After these papers are completed, the Sheriff or a process server serves the occupant with the Complaint, the summons, and the warrant to appear at the hearing.

If the occupant does not appear at the hearing, then the owner is entitled to an order allowing eviction or judgment for possession by default. If the borrower or occupant appears, a trial occurs which normally results in an order entitling the owner to a judgment and a Writ of Habere Facias Possessionem. At a contested hearing, the owner must present evidence showing the foreclosure sale occurred and the owner was the purchaser or a transferee of the purchaser at the foreclosure sale. Once the owner proves these facts, the owner is entitled to a judgment and a Writ of Habere Facias Possessionem. This Writ entitles the owner to the actual eviction process.

The Writ Habere Facias Possessionem shall not be issued until five (5) days have elapsed. After this five (5)-day period has elapsed, the court then issues the Writ of Habere Facias Possessionem. Then the owner may schedule the eviction with the sheriff's office. The lender's labor crew, under the supervision of the sheriff, carries out the actual eviction. On the scheduled date, the personal property is "set out" on the curbside.

North Carolina Eviction Synopsis
A purchaser at a foreclosure sale in North Carolina is entitled to possession of the property as of the date of the delivery of the deed. The only thing required of the purchaser at the foreclosure prior to utilizing this process is demand for possession. Written notice demanding possession of the property must be made ten days prior to filing a petition for an order for possession. Ten days after the notice demanding possession is sent, the purchaser files an application with the clerk of General Court of Justice, Superior Court Division. The application is not required to be served on the defendants prior to the entry of a writ of possession. However, the sheriff must give the defendants notice of the approximate time the writ will be executed. The sheriff may serve notice by: 1. delivering a copy of the notice to the defendants or authorized agent at least two days before the date of execution; 2. by leaving a copy of the notice at the property with a person of suitable age who resides at the property at least two days before the date of execution of the writ; or 3. by mailing a copy of the notice by first-class mail to the defendants at their last known address at least five days before the date of execution of the writ.

There is no requirement, nor is there an opportunity, for a defendant in a post-foreclosure action to file an answer. There is no requirement, nor is there and opportunity for an eviction hearing. The issues relating to possession of property are actually determined as part of the foreclosure process itself.

After receiving the application for the order of possession, the Clerk will issue an order for possession and direct the order to the sheriff, authorizing him to evict the defendants. The sheriff has seven days to execute the writ from the date it receives it from the clerk. The defendants can take possession of their property from the sheriff during the eviction. If they fail or refuse to do so, the sheriff may deliver the property to a storage warehouse and require the plaintiff to advance the cost of moving and storage. After the expiration of a ten-day period, if the borrowers do not take possession of their property, the plaintiff may dispose of the property or sell it.

Once the foreclosure has been finalized and the purchaser is entitled to possession of the real property sold, the purchaser or Trustee may request that the Clerk issue an order for possession. Ten days notice must be given to the parties in possession at the time application for the order is made. When ten days have elapsed, an order for possession shall be directed to the sheriff, authorizing him to remove all occupants and their personal property from the premises and to put the purchaser in possession.

Tennessee Eviction Synopsis
The status of an occupant remaining at the property after a foreclosure sale in Tennessee is vague. So too are the laws regarding written demand for possession of the property. Therefore, to avoid complicating the unlawful detainer proceeding, it is common practice to send notice of demand to the occupants of the property.

Filing a Forcible Entry and Detainer (FED) action to recover possession of the property from a borrower who will not vacate after the foreclosure sale, initiates the actual legal proceeding. An FED may be initiated in the Court of General Sessions or Circuit Court in the county where the property is located. A Detainer Warrant is served upon the borrower by the sheriff and requires a hearing within six days. Service is usually accomplished by "tack and mail", i.e., the sheriff's posting a copy of the affidavit on the door and mailing a copy to the defendant at the property address. A Writ of Publication may accomplish Service on the borrower if personal service cannot be obtained.

A hearing is set, usually within two to three weeks after service. A default judgment is usually awarded in favor of the lender if the borrower does not answer the warrant or appear in court. If the defendant appears, a trial occurs. At any contested hearing, the lender must present evidence that a foreclosure occurred and that the party seeking the eviction was the purchaser at the foreclosure sale, or a transferee of the purchaser. Once these facts are proven, the purchaser is usually granted a judgment declaring it is entitled to possession of the property. The judgment becomes final in ten days if the defendant files no appeal. Assuming a judgment for possession is entered in the lender's favor, a Writ of Possession can be issued by the court after 10 days if the property is still occupied. The Writ of Possessions authorizes the sheriff of the county to physically remove the occupants of the property and any personal property found on the premises. Once the writ has been issued and sent to the sheriff, the eviction can be scheduled. A labor crew, supplied by the purchaser and supervised by the sheriff, carries out the eviction. On the scheduled eviction, the personal property is "set out" on the curbside.

Virginia Eviction Synopsis
In Virginia, an unlawful detainer is the most common action used to obtain possession of real property after a foreclosure sale. Following a foreclosure sale, the purchaser must demand possession of the property and provide the occupant, by certified return receipt mail, with a notice to vacate. This notice to quit gives the occupant five (5) days to vacate before the filing of the unlawful detainer.

Filing the unlawful detainer in the district court initiates the actual legal proceeding to evict the occupant. The summons states that the plaintiff is the owner of the property and the defendant is the former borrower or an unknown occupant holding over after a foreclosure sale. Once the summons is filed, the defendant is served with process by the sheriff.

A hearing is scheduled for three (3) to four (4) weeks from the date of filing. At the hearing, if the defendant and or unknown occupant does not appear, then the plaintiff is entitled to judgment for possession (the order allowing eviction) by default. If the borrower or occupant appears and contests the matter, a trial is set, normally resulting in an order that the purchaser is entitled to Writ of Possession. At a contested hearing, the purchaser must present evidence that the foreclosure occurred and that the party seeking the eviction was the purchaser at the foreclosure sale, or a transferee of the purchaser. Once these facts are proven, the purchaser is usually granted a judgment declaring that it is entitled to possession of the property. The judgment becomes final in ten (10) days if the borrower or occupant does not file an appeal.

After the ten-day appeal period expires, the court issues a Writ of Possession. Once the order has been entered and a Writ of Possession is issued, the lender must schedule the eviction with the sheriff's office. The writ is usually executed within two (2) to four (4) weeks of it being issued. The writ expires if the eviction is not completed within thirty (30) days of issuance. The lender's labor crew, under the supervision of the sheriff, carries out the eviction. On the scheduled date, the personal property is "set out" on the curbside.