All About Eviction
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|Posted on October 7, 2013 at 8:06 PM||comments (2)|
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 (5)|
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 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.