All About Eviction
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|Posted on May 21, 2012 at 8:59 PM||comments (3)|
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 June 21, 2011 at 4:18 PM||comments (228)|
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 (18)|
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.
|Posted on March 15, 2011 at 8:06 PM||comments (5)|
With the onset of the foreclosure craze has come a barrage of information on the internet regarding how to delay an eviction. It used to be that very few were savvy enough to drag out an eviction for too long. If a tenant doesn't do anything and is fairly easy to serve, the Sheriff can come within 3-4 weeks from the date of the filing of the complaint.
However, most tenants and/or occupants are filing answers -- which means that the case must be set for trial and it is a good idea to be represented by an attorney for the court appearance -- or they are filing Demurrers (documents which say the complaint or the notice is wrong on its face) or Motions to Quash Service (process server goofed). In fact, I had a case recently where the tenant filed a motion to remove the case from state court to federal district court, and we had to hire an attorney with federal court experience and licensing to file objections and get it remanded back down to state court.
Evictions are becoming increasingly more difficult to do because of all the techniques floating around on the internet. A property owner cannot count on the 4-6 week rule for possession any more. The length of time all depends on the knowledge of legal procedures by the tenant and many of them have gotten quite brazen with the lengths that they will go through to manipulate the legal system.
|Posted on March 15, 2011 at 7:52 PM||comments (2)|
Has your home been sold in a Trustee's Sale and you've just been served with a 3-day Notice to Quit? Is there a real estate agent hounding you to sign a Move-Out Agreement? Do they look shady and aren't showing you any documentation or proof of ownership? Keep your doors shut and give us a call. If someone truly has purchased your property on the courthouse steps, their next step will be to file an Unlawful Detainer action (eviction) and then serve you with a Summons and Complaint.
If your house was auctioned in a Trustee's Sale while you were actively engaged in loan modification discussions with your lender, then you need to contact the folks at www.sueyourlenders.com.
If you have been served with a Notice to Quit, you need to contact us right away before you miss your opportunity to exert all the legal remedies available to you.
Don't hide your head in the sand! Unlawful Detainer (Eviction) actions have precedence in the court system and move very quickly. A Plaintiff that knows what they're doing can get you out within 4-6 weeks from the filing of the complaint. Contact us today and let us help you!
|Posted on January 20, 2011 at 2:51 PM||comments (0)|
Here you will find an Eviction Procedures Diagram. It shows the steps of an eviction in simple, laymen's terms. I hope that this is helpful for you to understand the procedure of an eviction.
Happy New Year!
|Posted on December 3, 2010 at 3:51 PM||comments (0)|
The first step in an eviction is to give the tenant notice of their violation of the lease, whether it be for nonpayment of rent or violation of a covenant of the lease (e.g., trash all over, illegal activity or too many occupants). It is important to have a proper form of notice provided by a knowledgeable source with up-to-date information.
After the proper notice has been served on the tenant, and the notice term has expired (their time is up), then you need to file a complaint with the correct court. One the Complaint is filed and the Summons issued by the Court Clerk, then it needs to be served by a registered process server. You can have your best friend or his buddy serve it if they are over 18 years old and not a party to the action, but would it really be worth it if they didn't properly serve the tenant and then the tenant filed a Motion to Quash the Service of the Summons? Also, a registered process server will be willing to appear in court for you if he/she is needed. Would your friend or his buddy do that?
When it's time for a response to be due (either 5 or 15 days after service either personally on the tenant(s) or by substituted service), then you call the court to see what the tenant has done. If they have filed an answer, then you set the case for trial and get ready to go to court. If they haven't done anything, then you prepare your default papers and file them with the court. At that time, the court enters the default, gives you a judgment for possession only and issues your Writ of Execution.
The next trip is to the Sheriff. The Sheriff will need Sheriff Instructions, money and the issued Writ of Execution. The Sheriff then will post a Notice to Vacate on the door of the tenant within two business days of receipt of your papers, and that Notice to Vacate will give the tenant approximately six days to get out. If the tenant doesn't get out by the vacate date, then the Landlord will call the Sheriff for his scheduled lockout date, which will only be given to the Landlord or the Landlord's attorney or legal aid, regarding the time the Sheriff is scheduled to be at the property for the lockout. You will need to appear at the property to meet the Sheriff at the door for the lockout. At that time, you'll let the Sheriff in, he'll escort the tenants out if necessary, and you'll change the locks right then and there. The Sheriff will then give you a Writ of Possession to prove that FINALLY YOU ARE THE OWNER AND IN POSSESSION OF YOUR PROPERTY AGAIN!
As you can see, it is a long and arduous task to get possession back once you have given it away. Also, if at any time you slip up and don't dot your i's or cross your t's, the court will slap you hard and possibly make you start over.
Like I said, I'm here to make all this simple because I know how. What shall we discuss on our next blog> How about tenant's rights after foreclosure? Stay tuned . . .
|Posted on November 20, 2010 at 12:53 AM||comments (0)|
This is my first posting to my All About Eviction Blog. I am going to try to discuss and give information on topics that I feel are being repeatedly asked by my clients. Some of those topics will include: "If my landlord files an Unlawful Detainer Complaint against me, how long do I have before the Sheriff arrives?" or "If I am in foreclosure, but there is a tenant renting from me with a long-term lease, what are the tenant's rights?" or "Can I evict my tenant, even though they are paying the rent, if they have more people in the unit than were originally stated in our lease?"
Also, if anybody wants to bring up a separate topic for discussion, then we can go ahead and discuss that topic.
I want this space to be for information, clarification and reference.
I will be posting on a regular basis and will try to post a topic every 3-4 days. My first topic will be "The Procedural Steps in an Eviction". Stay tuned.