The facts you stated suggest you are the homeowner and your lender has begun the process to foreclose on your home by conducting a trustee's sale. The trustee's sale must take place at least 90 days after the lender records the "Notice of Trustee's Sale." Trustee's commonly schedule a the trustee's sale but then postpone the sale if a loan modification or a sale of the property is pending. If the loam modification is not made or the sale does not close escrow, then the trustee can simply proceed with the trustee's sale. Because you are not a tenant, the "Protecting Tenants at Foreclosure Act of 2009" does not apply to you. Once the property has been sold at a trustee's sale, the new owner (i.e., the bank or whoever purchased it) must serve the occupant (you) with a "5-Day Demand for Possession." If you do not vacate, then the new owner must file an eviction action. If the new owner files an eviction action, the new owner can (and normally will) seek a judgment for possession of the property, along with a money judgment for "fair market value rent" for the property from the date of the trustee's sale until the date you are removed from the property. The process of serving the demand for possession, filing the eviction action, going to the initial hearing and/or trial, and then having the constable or sheriff serve a Writ of Restitution will take about 3 to 5 weeks, depending on how quickly the new owner takes action.
The foregoing is based on Arizona law and the limited facts that appear in the question.
Think of yourself as a tenant who's lease has expired. So, simply put, the new owner/landlord needs to give you a 5 day notice to leave. Following that, they will need to take you to justice court where a judge will order that you be evicted. Then, if you don't move out, the owner can have the sheriff forcibly remove you. So, you're likely "safe" for a couple of weeks, plus however long it may be for the sheriff. But unless you are thinking about bringing your loan current, the less stressful step is to move out by the foreclosure date.
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The other responses are correct. You are like a hold-over tenant and can be evicted with a 5 day notice. Be warned that depending upon who buys the house, the treatment could vary. Some buyers are very aggressive and may try to enter right away. Others will work with you to get you out. In some cases, buyers offer small monetary incentives to encourage you to move quickly.
Please be wary of the modification ... I have worked with far too many clients who believed the modification would happen and found themselves moving despite their best efforts.
Douglas Edmunds is in the business of helping people and companies file for bankruptcy protection. The bankruptcy code requires that I call my firm a "debt relief agency." Any answers or information provided is for general information purposes only and is not intended to be a legal opinion, legal advice or a complete discussion of the legal issues. This is not intended to create a attorney-client relationship. Each individual's situation is different and you should seek independent legal advice from an attorney familiar with the laws of your state for specific information.
As a practical matter, you don’t need to pack your bags and leave by the foreclosure date. Trustee’s sales are commonly postponed, especially if you are in the process of getting a loan modification. Even if it is not postponed, the new owner of the property must use the eviction process to force you out, which takes time. But more often than not, the new owner – especially if it is your lender – will use a carrot instead of a stick, offering you incentives to leave voluntarily within a reasonable time without trashing the place. You shouldn’t wait until the trustee’s sale to start exploring your future housing situation, but I think it is worth waiting to see what the new owner of the property is going to do before you actually move out.
This communication is intended to be for general informational purposes only. It does not constitute legal advice nor does it establish an attorney-client privilege. You should contact a qualified attorney in your jurisdiction to obtain specific advice about your situation.