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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 person 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.

TENNESSEE EVICTIONS FAQ's

Q. What are the ramifications of accepting REO rental income payments while in eviction? Do we assume a landlord/ tenant role?
A. This should NEVER be done without a court order. Otherwise, a new Landlord / Tenant relationship is created that creates additional requirements and time before an eviction can be completed.

Q. Can we send the Notice to Quit prior to the expiration of the redemption period?
(i.e. send a 30-day Notice to Quit prior redemption expiration, shaving the notice period time off the eviction timeline, etc.). A. Tennessee does not have a redemption period applicable to this question.

Q. What are the property disposition laws?
A. In Tennessee the personal property is placed at the curb under the supervision of the local sheriff, marshal or constable and should not be touched by the new owner (the mortgage company) thereafter. This is true unless some time after the lockout, the personal property has never been removed and the local government orders the contiguous landowner (the mortgage company) to dispose of the personal property. The removal of such personal property should not be done without such an order; otherwise, the mortgage company subjects itself to a claim of conversion from the owner of the personal property.

Q. What are the Notice of Abandonment requirements?
A. We are unaware of any abandonment notice requirements in Tennessee. Instead, an eviction should be completed in all instances where personal property is left behind at the real property, regardless of whether the personal property has been abandoned.

Q. What and whom are we required to have present at the lockout?
A. In Tennessee a move-out crew is required to be present at the lockout along with the local sheriff, marshal or constable.

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