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How Do They Count the Ten Days After a Foreclosure

Posted by 15789465 on

My blog reports tell me that a couple of people came to my blog after searching on the question above. This is the relevant Alabama statute:
Section 6-5-251 Delivery of possession to purchaser on demand. (a) The possession of the land must be delivered to the purchaser or purchaser's transferees by the debtor or mortgagor if in their possession or in the possession of anyone holding under them by privity of title, within 10 days after written demand for the possession has been made by, or on behalf of, the purchasers or purchaser's transferees. (b) If the land is in the possession of a tenant, written notice must be given to the debtor or mortgagor, and the debtor or mortgagor must direct the tenant to deliver possession or recognize the purchaser as his or her landlord in the event the lease antedates the mortgage, judgment, or levy. If the debtor or mortgagor cannot be found, notice to the tenant is sufficient and he must deliver possession within 10 days. (c) Failure of the debtor or mortgagor or anyone holding possession under him or her to comply with the provisions of this section forfeits the right of redemption of the debtor or one holding possession under the debtor.
This raises a few questions. WARNING: The answers below are just my opinion. I have not found an Alabama Supreme Court case that says exactly what the right answer is.  Please consult with an attorney before taking any actions, or failing to do something. Question One: When does the ten days start to run? The Alabama Supreme Court case of Purcell v. Smith, 388 So.2d 525 (1980) examined the ten day time period related to the demand for redemption.  Purcell looks at a different part of the law, but I think we can analogize that whatever the court decided in Purcell, it might decide the same way in a case involving the 10-day demand for possession. The court said the 10 days started to run when the person actually receives the notice.  This is the exact wording of what the court said:

"Although the date of placing the demand in the mail would be the most certain and uniform date for the "triggering" of the ten-day period, the reality is that the purchaser, through no fault of either of the parties, may not receive the demand until much later after it was mailed. The statute gives the purchaser ten days in which to prepare the statement of lawful charges so that he may have time to consult with his attorney, if necessary, and to fairly and reasonably assess his proper demands. See Foerster v. Swift, 216 Ala. at 229, 113 So. at 31. But more importantly, the purchaser forfeits the right to claim improvements on the property if he does not respond within ten days. Code 1975, § 6-5-234. The forfeiture of such important rights cannot depend upon the vagaries of modern mail delivery. The ten-day period for response by the purchaser must begin to run from actual receipt by the purchaser of the demand. The burden is on the redemptioner to see that the purchaser receives the demand either by personal delivery or by mail within a sufficient time to effect redemption. If the period for redemption is fast running out and the redemptioner relies upon the mails to timely deliver his demand, then he so relies at his peril"

Here's where my warning above is very important.  I'm a very conservative person. If there were a foreclosure, and the bank bought my property, I'd assume the ten day demand for possession would be mailed the same day.  I'd plan on being out within ten days of the foreclosure. I wouldn't play games about when I might or might not have actually received a letter.  But, if it's "after the fact" and you're looking for something that might save your fanny and give you a little extra time, you might want to discuss the case above with your lawyer. Question Two:  Mechanically, how do you count the days? There are lots of things in the law that give people certain numbers of days to do things.  Different rules applies to different situations.  For example, when filing court documents in a lawsuit, sometimes you don't count weekends and holidays, but only business days. For purposes of the 10-day for possession after a foreclosure, every single day counts, even if it is a weekend or holiday. If you receive the notice on Tuesday, then Wednesday is Day One.  That would make the next Friday Day Ten.  I would assume you have until midnight on Friday, but could not find any decision where someone has put it to the test. I hope this helps, for the people looking for an answer, and for you others who wondered, but didn't think to "google" it.

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  • Hi Howard, The Alabama Rules of Civil Procedure apply time counting rules apply to documents filed in court, and deadlines for doing certain things in court. They do not apply across the board to all situations in the law when people have certain deadlines.

    For any deadlines set in other statutes, you must use Alabama Code Section 1-1-4 for the rule about computing time. It says:

    “Section 1-1-4
    Computation of time.

    Time within which any act is provided by law to be done must be computed by excluding the first day and including the last. However, if the last day is Sunday, or a legal holiday as defined in Section 1-3-8, or a day on which the office in which the act must be done shall close as permitted by any law of this state, the last day also must be excluded, and the next succeeding secular or working day shall be counted as the last day within which the act may be done. In designating the hours of the day, the time used shall be that of the ninetieth degree of longitude west of Greenwich, otherwise known as central standard time; provided, that whenever daylight saving time shall be in effect within the state, the time used shall be that known as central daylight time."

    Denise L. Evans on
  • arcp 6(a) “In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. … When the period of time prescribed or allowed is less than eleven (11) days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation.”

    i recently was the defendant in a circuit court case with tax-sale related issues. the judge (apparently) ruled that the ten days to provide the statement of charges was ten business from actual receipt of the demand, therefore my claim met the statutory requirement. Of course the judge did this knowing he would have other and more palatable reasons to deny my claim (just becuase i am a bona fide paranoid doesn’t mean everyone is not out to get me – see the movie conspiracy theory) and therefore the case is on appeal for other reasons. If the al ct civ app issues an opinion it may address the issues of the ten days, but only for statement of charges. (if it gets deflected to the supreme ct i’m sure they’ll probably also dictate rules for counting the omar, etc.)

    howard ross on
  • Good idea — I will take a photo of the posted notice next time (if there is one) — this is also why I took a witness with me. You are 100% right – you can’t be too cautious or have too much of a paper trail nowadays.

    Craig Buchanan on
  • Hi Craig, The case I quoted does mention notice by mail or by personal delivery. I would certainly agree that if you post the notice on the front door of the property, that counts as personal delivery. But, judges are funny sometimes. I can imagine a situation where someone claims they never use the front door, so they didn’t actually receive the notice, and a judge then sides with them. I think personal delivery (with a photo of them receiving the papers from you) is always the best policy if you are able to prove personal delivery. It is just so easy to have a little lapel camera or similar thing these days, I don’t know why everyone doesn’t just take a photo or video of such matters.

    Denise L. Evans on
  • Denise —

    I had to go to court to eject a former owner on a property I purchased last summer, and the legal advise I received was 10 days from posting of notice on the property. My attorney advised me to physically post notice on the front door, and take a 3rd party with me to witness it. To be safe, I also mailed the notice. When I got no response, I filed an ejectment proceeding into the court. It took about 6 weeks for the court to serve notice and get on the docket. Once I prevailed, it took another 2 weeks for her to actually (finally!) vacate the premises. When I went to court, the judge looked at my demand letter and took it at face value. I filed suit ten calendar days after posting notice. Just my experience —

    Craig Buchanan on

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