All About Eviction
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|Posted on September 29, 2020 at 3:24 PM||comments (9)|
Per the Hanson Law Firm, please see below information regarding an important deadline:
MUST SEND THE "COVERED PERIOD" NOTICEON OR BEFORE SEPTEMBER 30, 2020,OR THE RIGHT TO EVICT OR SEEK UNPAID RENT AT A LATER TIME MAY BE WAIVED.[See the notice form provided by the State of California here.]
In order to later seek damages for unpaid rent under AB3088, residential landlords must provide several documents to tenants who have not timely paid rent:
Act before it is too late.
Call me or email me to prepare forms. Residential Landlords are required to send special notice to tenants by September 30, 2020 or you may lose the right to evict or collect past due rent.
|Posted on August 19, 2020 at 2:32 PM||comments (0)|
The Eviction Moratorium will expire at midnight on September 1, 2020. However, it depends county-by-county whether or not this will be adopted. This overrides Governor Newsome's Executive Order stating that there is an Eviction Moratorium through September 28, 2020. Some counties may choose not to lift the Moratorium.
Please read the whole article.
|Posted on January 21, 2015 at 3:17 PM||comments (0)|
|Posted on October 7, 2013 at 8:06 PM||comments (0)|
The most prevalent delay tactic at the moment is that tenants will file bankruptcy the day before trial and force its continuation. First they will file a Chapter 7. You then wait two weeks for the Trustee in Bankruptcy to throw it out due to lack of Schedules, or one of the mandated disclosure documents. If you're lucky, you continued the trial date for a month, because then the next antic they pull is to file a Chapter 13. Then it's another 2-week wait. The Trustee will automatically kick it out if the necessary documents are not provided, but they've already bought themselves a month in delay.
Another tactic used in properties after foreclosure, is that the prior owners of the home will find a "straw man." They will find someone else who is in foreclosure and they will pretend and create fraudulent transfer deeds and create a 20% interest in the property. Then they file bankruptcy in the name of the fraudulent straw man. We have seen at least two of these in the last couple of months. The County Recorder has been informed and has contacted the District Attorney regarding these fraudulent deeds.
Another tactic is to have someone that doesn't even live in the house file a Prejudgment Claim, and then file an Answer, and then they file bankruptcy just before the trial date.
In these days of financial corruption and schemes, you need to be patient and build the eviction costs into the purchase of your property.
|Posted on May 24, 2013 at 1:39 AM||comments (0)|
A bankruptcy can stop an eviction, but it depends on whether or not it is a "skeletal" bankruptcy or a bona fide filing. A "skeletal" bankruptcy is one that is done with the bare-bones documents in order to get it on file. That is, the Petition, the list of three main creditors, the credit counseling certification and the Declaration regarding the Debtor's Social Security number. In a bona fide filing, these documents would be filed, but also the filing would include Schedules, which are detailed documents reflecting the true financial picture of the Debtor. In a Chapter 13, the Debtor also has to file a proposed Plan of Reorganization. It is a lot of work.
Many times, Defendants in an eviction action will file bankruptcy in order to delay the unlawful detainer/state court proceedings. If the Debtor has filed bankruptcy more than twice within a year and a half, the Debtor is not afforded the protection of the automatic stay. This is why I always have a search done of the bankruptcy docket to see how many times the Debtor might have previously filed -- especially if the eviction is taking place due to a purchase under a Trustee's Deed Upon Sale. When a bankruptcy petition is filed, the Trustee automatically calendars a two week tickler for the completion of the Schedules. If those Schedules aren't filed before the two weeks are up, the bankruptcy is automatically dismissed. Some debtors will also request an extension of time to file the Schedules and this will buy them another two weeks of delay. This way, the Defendants have bought themselves a full month.
The Bankruptcy Courts have been overrun with bogus, sham filings in order to delay legal actions. These filings are clogging up the court system. It is very expensive for the Plaintiff to hire bankruptcy counsel to file a motion for relief from the stay.
When a bankruptcy is filed, there is a 30-day automatic stay that goes into place. A Motion for Relief from Stay can be filed by a bankruptcy attorney, and sometimes they can go in on shortened time and get the motion heard and an order obtained for relief within a two-week period of time. This is quite expensive, as I've stated already. Many times, the Plaintiff will just wait to see if the Schedules are filed and if not, whether the Trustee has dismissed for failure to complete the filing. However, if you see that the Debtor has filed over 45 pages of documents, you know that the Schedules have been filed and that you need to file a Motion for Relief from Stay.
Another new tactic is for the Defendant to file bankruptcy the same day as the filing of the Unlawful Detainer Action, or to file before the Unlawful Detainer action is filed, thereby having a stay in effect when the unlawful detainer is filed. According to the law, the Debtor doesn't have to give notice to the Plaintiff that he has filed for protection in bankruptcy. Even if the unlawful detainer action is filed THAT MORNING and the bankruptcy is filed after it on the same day, the stay is effective for the whole day and the Unlawful Detainer action cannot go forward and Plaintiff is precluded from proceeding. This seems very unfair, but it is the law. I am now doing bankruptcy searches before filing my unlawful detainers if they involve property purchased in a trustee's sale.
|Posted on January 10, 2013 at 5:33 PM||comments (8)|
There are some new laws that were enacted at the beginning of the year. Below is a synopsis:
Landlord May Dispose Abandoned Personal Property Less Than $700
Commencing January 1, 2013, the total resale value of personal property left behind by a tenant after termination of a tenancy that the landlord must sell at a public auction (rather than dispose of or retain for his or her own use), has been increased from $300 to $700, if certain procedures are followed. This law, however, also prohibits a landlord from assessing any storage cost if the tenant reclaims personal property within 2 days of vacating the premises. The statutory notices of Right to Reclaim Abandoned Property have been revised to reflect these changes. Furthermore, a landlord’s notices of termination of tenancy and pre-move out inspection must contain specified language that former tenants may reclaim abandoned personal property left on the premises, subject to certain conditions.
Tenant Entitled to a 90-Day Notice to Terminate After Foreclosure
Effective January 1, 2013, a month-to-month tenant in possession of a rental housing unit at the time the property is foreclosed must be given a 90-day written notice to terminate under California law. For a fixed-term residential lease, the tenant can generally remain until the end of the lease term, and all rights and obligations under the lease shall survive foreclosure, including the tenant’s obligation to pay rent. However, the landlord can give a 90-day written notice to terminate a fixed-term lease after foreclosure under any of the following four circumstances: (1) the purchaser or successor-in-interest will occupy the property as a primary residence; (2) the tenant is the borrower or the borrower’s child, spouse, or parent; (3) the lease was not the result of an arms’ length transaction; or (4) the lease requires rent that is substantially below fair market rent (except if under rent control or government subsidy). The purchaser or successor-in-interest bears the burden of proving that one of the four exceptions has been met. This law does not apply if a borrower stays in the property as a tenant, subtenant, or occupant, or if the property is subject to just cause rent control. This law will expire on December 31, 2019.
Landlord Must Disclose Notice of Default to Prospective Tenants
Starting January 1, 2013, every landlord who offers for rent a residential property containing one-to-four units must disclose in writing to any prospective tenant the receipt of a notice of default that has not been rescinded. This disclosure must be made before executing a lease agreement. If a landlord violates this law, the tenant can elect to void the lease and recover one month’s rent or twice the amount of actual damages, whichever is greater, plus all prepaid rent. If the lease is not voided and the foreclosure sale has not occurred, the tenant may deduct one month’s rent from future amounts owed. The written disclosure notice as provided by statute must be in English, Spanish, Chinese, Tagalog, Vietnamese, and Korean. A property manager will not be held liable for failing to provide the written disclosure notice unless the landlord has given the property manager written instructions to deliver the written disclosure to the tenant. This law will expire on January 1, 2018.
|Posted on May 21, 2012 at 8:59 PM||comments (1)|
Because you can find anything you want on the internet, there are many new delay tactics out there that are being utilized by defendants in unlawful detainer actions. The latest is the removal of the case from state court to federal court by feigning a federal court issue. This does work in delaying the matter for a few weeks, but it is risky and the federal courts are wise to it. Also, the Defendant is leaving the door open for sanctions, which the courts are now granting with regularity.
Many defendants are paying up to $1,500 monthly for "delay services" which are promised by companies with catchy names like www.stayinyourhome.com or www.dontleaveyet.com. These companies promise that they will keep the defendant in his/her home for up to 6-9 months. There is no way to ensure this without committing fraud upon the court, and the California Bar Association is going after attorneys promising these types of results, and independent, non-attorneys who are clogging up the court system. The State of California is in a financial rescession and the courts, among other institutions, are majorly suffering from the cutbacks. It is criminal that in this economic climate, a defendant is allowed to file frivolous lawsuits just to delay the inevitable outcome. What these people don't tell the defendants is that the eviction will go on their record and they will also have a money judgment against them which will be collectible through wage garnishment or bank levy, or recorded as a personal lien through an Abstract of Judgment.
If you are a defendant and an unlawful detainer has already been filed against you, your best move is to try to enter into a Stipulated Judgment whereby you agree to vacate the property on a date certain and, in return, the plaintiff will agree not to go after you for monetary damages. However, don't enter into a Stipulated Judgment unless you are definitely going to comply, otherwise the consequences will be immediate eviction.
In the long run, it is better to take your $1,000 a month or $1,500 a month and save it away for the move-out costs and security deposit for your new home.
If you have already received a Notice of Default, don't pay these people to postpone your trustee's sale. Contact a HUD counselor or Maeve Elise Brown at HERA (Housing and Employment Rights Advocates) and have them legitimately fight for you. Don't pay someone $1,000 a month, but instead put your money away and start looking for another place to live that you can afford. An unlawful detainer action on your record will make your life miserable as a renter for many years later.
|Posted on August 6, 2011 at 12:04 AM||comments (3)|
I recently had to take two of my clients to Small Claims Court in order to get paid and, although it was nerve-wracking and scary to prepare a case, appear in front of a judge and speak in front of a room full of people, it was so worth it.
I was owed $2,500 by one of my clients and another $550 from another. I had both matters heard the same day in the same court -- that worked out! I got my money in both cases.
Some tips for success now that I've done it three times:
1. Make sure you have sent out a letter or email requesting payment prior to filing your claim.
2. Make sure you have copies of all documents evidencing proof of why the money is owed to you and the agreements of the parties -- whether the agreements were a formal agreement or in an email or text.
3. Prepare, prepare! Write up a synopsis of your case and note the evidence that corresponds to your proof. These are called "exhibits" and they should be consequentively numbered and an extra set brought to court for the judge and to show the other side before the trial begins.
4. If it is a fee dispute, ALWAYS agree to a mediator. Most likely, you will settle, but if you don't, you can always see the judge afterwards.
5. You get to see the judge right away if your matter is uncontested because the other party doesn't show up.
6. If you win in Small Claims Court, you also get your costs on top of the requested amount owing.
I was really lucky in that both my matters paid me right away. In most cases, you end up with a money judgment, and then you have to figure out how to collect on it. However, nothing sought, nothing gained!
For me, the work to file the Small Claims Demand, the f/
|Posted on June 21, 2011 at 4:18 PM||comments (25)|
Whether you are buying foreclosed properties or are just buying REO properties through MLS, how do you deal with a pre-existing tenant situation? I have pulled together some legal research (see below), and it says that "the new owner takes the place of the seller and becomes the new landlord." (Section 8.7) So, if you are a new owner, and you assume the lease, you need to notify the tenant that you are the new owner and where they are to send the rental payments. The tricky questions arise if they default on the lease and they were tenants under a prior owner that lost the property in foreclosure, and the trustee's sale took place less than a year ago.
Under the "Protecting Tenants at Foreclosure Act of 2009", tenants after a foreclosure are to be given a 90-day notice to vacate before an eviction can be filed with the court. So, which is it? A 3-day notice for non-payment of rent because they defaulted on the lease, or a 90-day? As you can see from the legal research (Section 8.68F), "The scope of the Act is unclear if a tenant is in default under the Lease."
What to do? Your best bet is to establish a landlord/tenant relationship right away with the tenant by acknowledging their lease, possibly having them sign a new lease with you, and accepting rental payments. If you haven't been paid anything and no landlord/tenant relationship was ever established, your best bet is to go with a 90-day notice.
|Posted on June 20, 2011 at 9:33 PM||comments (11)|
So, you've bought a home in a trustee's sale on the courthouse steps and you've just found out that the prior owners are not living there, but tenants of the prior owners are. What does that mean? According to the "Tenants in Foreclosure Act of 2009", that means that you have to give them 90 days' notice before filing an eviction complaint with the court. Yes, 90 days. The notice also has to have a special cover sheet entitled "Notice to Renters" which has specific language with regard to where the tenants can receive legal aid or legal help, and encouraging them to do so.
Also, if you bought the property as an investment and you don't intend to live in it yourself, and the tenant has a bona fide lease, which could have another year or more left on it, you have to honor the lease and collect the rent. You're also responsible for the security deposit if you did not obtain it from the prior owner.