How Do They Count the Ten Days After a Foreclosure

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.