 |
Eviction |
|
First Step - Get out of Victim Mode
Chances are, you're panicked at the moment because the landlord has started evicting you. You feel like a victim. If you feel intimidated or threatened by the process, you're normal. You don't know what to expect, and the landlord acts like he's holding all the cards. You've heard rumors about how it goes. It's like walking in the dark, and things are hitting you in head. We're going to turn on the floodlights, give you a map, show you where the safe spots are and how to avoid the danger zones, and get you where you want to be. You can't have fun doing this if you're intimidated. The goal here is to replace your fear and anxiety with knowledge, a strategy, a clear plan, and enjoyment of the game you've just been invited to play. Yes, it's a game, and one that you can win in real terms. The downside is real, certainly, but not the end of the world. Usually, your worst case scenario is that you have to move to another location, and continue with life there. Yes, having to move is such a hassle, sometimes an expensive one. Nobody likes moving. However, it's not something you couldn't have chosen to do, in your own sweet time. And there we are: you might want to move, but just not yet. Most clients have lots of fun doing this, driving the landlord crazy. The Eviction Process Eviction is the means by which a landlord can legally get you to move out. If you win, you stay put. If you did nothing to stop it, you would lose but have about a month from the filing of the eviction lawsuit before you would be locked out by the Sheriff. If you fight it, getting 2-3 months more time [even if you lose] is easy. My record is 14 months, and it could have been longer. That landlord gave up over $10,000 in back rent just to have the tenant leave, so we settled for that. As shown in the diagram below, eviction usually starts with a notice, then goes to a lawsuit called an "unlawful detainer", or "UD" for short. If you win, you stay in possession and the landlord has to reimburse you for your legal costs. If you lose, the Sheriff has to give you a 5-day notice before a lockout, and finally you leave. You can go back and get your stuff after being locked out. While you're in this process, you pay no rent; you still owe it, but it stays in your pocket. You can use that money to pay for legal expenses to fight the eviction [thanks, Mr. Landlord!] and to pay for moving, if you choose to do that. Landlords try to scare you into moving, and
not fighting it, because they know how much hassle you can give them, and
how expensive it can be to get you out. Here are the common myths: Foreclosures If you are a homeowner or the tenant of a property owner who is facing foreclosure, or has lost the property through foreclosure, there are thousands like you through California faced with the same dilemma. Under the law, you are entitled to no special treatment because you used to be the owner, now because you had a lease with the owner. You are basically treated the same as any apartment tenant being evicted for no reason. The bank does not have to talk to you, work with you, consider your family or children's education, or even try to sell the property to you. Junk yard dogs seem to have more manners and common sense than the people you will probably meet to tell you to get out. You can't pay them for more time, or even expect courtesy when they want to show the property to new buyers or realtors while you're still living there. Out! Out! Out! is what you get, in most instances. Occasionally, a bank will offer "cash for keys," where they tend you some money to move out without a fuss. Sounds good up front, but what if you move and they don't pay you? Even agreements looking like they promise payment can be invalidated by having you sign, but they don't, or by having someone sign who doesn't have authority, or can't be found later, or not giving you a copy. The real zinger for tenants of the former landlord is that you sign off your rights in exchange for the money. What rights? You have the right to get your full security deposit back from the bank, because it is the new owner and the current owner owes you your deposit, even if they never got it from the old owner. [The exception is where the former landlord pays you the full deposit beforehand.] The "cash" that you're getting is almost always less than the full deposit, so that when you sign the agreement, you give up the bird in your hand for two in the bush. The bank has the obligation to pay you the full deposit, not just a part, so your "cash for keys" agreement has you giving up the rest of your deposit, and then you have to find your former landlord, who may very well have filed bankruptcy. All that glitters is not gold. Another quirk in the legal system is where a desperate property owner is met by the vultures who have seen the recorded Notice of Default indicating a pending foreclosure. They prey upon the desperate and often use "we can help" devices like an "equity purchase" where they "buy" your interest in the property under the guise that they will cover your mortgage payments for a while until you can financially recover, and you pay them "rent." As you can expect, they don't pay the mortgage, but just collect your "rent," and let the property continue through foreclosure. If you are one of those, you have the right to sue them but the bank's foreclosure will probably continue. The time line on a foreclosure is this: Usually after a few months of mortgage delinquency, the bank records. posts, and mails a Notice of Default, giving the owner 90 days to bring the account current. If that doesn't happen, the next step is the bank giving a 30-day Notice of Trustee's Sale, which is also recorded, posted, and mailed. The trustee's sale is the auction where the property is sold to the bank or a new buyer. Just before the trustee's sale is the time when many property owners file for bankruptcy, because they will be hit with a huge tax bill when their mortgage is no longer their debt - the IRS sees it as "income." Therefore, owners file bankruptcy, which stalls the eviction for about a month or so until the bank can get the bankruptcy judge to let them proceed with the foreclosure and eviction. The time line on the eviction is this: After the foreclosure sale, it takes a few days to record the deed, and then a Notice to Quit [or similar title] is given to the occupants of the property. The notice gives 3-days to the former owner, but often includes a separate Notice to the tenants, giving the statutory 30 days to move out. This is like any other eviction notice, in that it has to expire before they can file the eviction case. If the local rent control applies to your dwelling, and you are a tenant, it may prohibit your eviction due solely to the foreclosure. Los Angeles has such protections for its tenants. The fact the the bank starts the eviction, and seems to have a clear-cut case is not necessarily the situation. Due to the large volume of foreclosure evictions, the eviction firms often hire temporary staff who are poorly trained and make all kinds of mistakes in the eviction paperwork and process. Therefore, if you stay and fight the eviction lawsuit, you can stay in possession for a longer period of time, often months, and even work out a settlement where, if you just go, you owe nothing for all that time. UD Flow Chart Here is the simplified flow chart for an eviction case, what the landlord expects as his "worst case scenario":
This eviction contemplates that you only file an answer, and if you lose, that you simply get locked out without a fight. This eviction takes about a month from start to finish. Here is the UD Flow Chart considering the many options and circumstances which you may face, and which you can create. It is not complete, because there are several additional circumstances that can arise which if included would make the chart even more confusing. If you start from the upper left corner and follow the arrows through the "S" pattern, until you get to TRIAL, where it forks into winning or losing, and forks again at the appeal. The triangles address trouble spots, where the eviction case might have already secretly been over, and you need to take immediate action to have your day in court. The "discovery" pattern at the right side happens simultaneously with the demurrer and answer stage, prior to trial. The approximate number of days before the given event is identified in red. You can see and download an Acrobat "pdf" version, which is clearer and prints nicely onto legal sized paper, by clicking here: [PDF] You can also view the full-sized version as a "jpg" file [JPG]
The eviction lawsuit exemplified in this flow chart could take 6 months or more to complete, and cost the landlord about $10,000-$20,000 to complete. In its simplest version, it can take 2-3 months, and cost you as little as $600 in attorney fees, assuming a typically improper service is challenged by a motion to quash, the defective complaint is challenged by a demurrer, and no jury trial is requested. You can see this as your game board, where there are several ways to trip up your landlord, who isn't expecting anything like this amount of complication. Playing the game better than your landlord proves to be a humiliating experience for him. It also gives you the leverage you need to prepare for trial, get more time to look around and move out, or to negotiate a settlement when the humiliation becomes unbearable. After all, the idea of filing the eviction was to scare you out, and bully you. When you're taking your time, costing the landlord money, and laughing at him, with all the other tenants taking note, the landlord's plans for making quick work of you come to a screeching halt. The Big Bad Wolf can't win. You should also know that if you cannot afford the filing fees, you can get the fee waiver application forms from the Court Clerk, and submit them in lieu of actual payment. When in doubt, do that, because it may be granted, it gives you more time, and it protects your case file from others viewing it. Taking Action Now that you have an idea of what is in store, you need to decide how you want to approach this. You have three options available, depending on your budget, need for time, and the complexity of your case. 1. Eviction Defense
Kit [click] If you are low on funds and cannot afford to
hire a lawyer, at all, the Eviction Defense Kit on this site is your best
option. The Kit explains all of your defenses, your strategy, how to fill
out the forms, how to conduct discovery, how to prepare for trial, how to
pick a judge, how to present yourself at trial, and what happens
afterwards. It has the Answer form and form interrogatories, along with
some organizational forms. Even if you also hire a lawyer, the Kit
gives you details about the process which will put you at ease and help
you work with the lawyer. 2. Consultation
and Drafting by Ken Carlson [Click] You can either pay for Ken Carlson to (a)
consult with you and draft papers for you in a piecemeal basis or
(b) pay for complete case monitoring on an hourly basis. You begin
with a phone consultation, after faxing the paperwork to him. He then
evaluates whether a motion to quash or demurrer is your best choice for a
first paper, and gives you an overall strategy and complete understanding
of your defenses. If you choose the piecemeal basis, you pay him to
prepare the paperwork at the set rates, and pay for each consultation at
$100 per half-hour, and take responsibility for monitoring your own case,
and when the next papers are due. If you choose the hourly basis, Ken also
monitors the case and acts as your lawyer would, except that his name does
not go on the paperwork. When it comes time to go to trial, Ken helps you
find a trial lawyer to "substitute in" and appear on your
behalf, just like the big law firms do it. Ken brings that lawyer up to
speed. 3. Hiring
a Local Lawyer [click] The California Tenant Law website contains the
most complete list of lawyers who will represent tenants in California.
The list is arranged by geographic region, and then by city, with no
particular order after that. Each listing has the name, address, and
telephone number of the lawyer, and if they have it, their e-mail and
website address. If there are restrictions by these lawyers on the type of
case, it is shown. Many of them represent both landlords and tenants, as
Ken did, but some only represent tenants. Since this website is NOT a
lawyer referral service, there is NO recommendation made. Other Considerations Bankruptcy You may have heard that a bankruptcy can stop the eviction, but it only delays the process. Federal Bankruptcy law automatically "stays" [stops] an eviction action. However, the over-use of bankruptcy to stall evictions has caused the Bankruptcy Courts to create a special process to quickly reinstate the eviction. Consequently, if you were to file a bankruptcy with the intent to delay the eviction, the stay could be "lifted" within as little as 2 weeks, and probably less than 4 weeks, and you're back where you were. If you were planning to file a bankruptcy anyway, it MUST be filed before trial, not after you lose the trial. Before trial, the landlord has to go to the Bankruptcy Court to get permission to continue with the eviction, and then reset a new date fro the trial, all of which can easily take a month. A bankruptcy filed after you lose your case can reduce your payment of that judgment amount, but it DOES NOT NECESSARILY STOP THE LOCKOUT. There are technical circumstances and rules about that, which are beyond the scope of this website. Tenant Blacklisting One of the most insidious aspects of evictions comes
from credit reporting services. If you do not win your case, or it is
not dismissed within 60 days after your eviction action has been
filed, these
companies inspect the court records and write down the names of all
defendants. When you go to apply for an apartment after that,
the property management company checks the blacklist, and if your name is
on it, your application will probably not be considered. For the rest of
your life, whenever you try to rent an apartment, your name on that
blacklist will stand in the way. Even if the person was named as a defendant by mistake, and
the case against them is dismissed, that person's name stays on the
"blacklist" forever. Collection of the Judgment By the Landlord: Just because you get more time to move doesn't mean
that you owe nothing to the landlord for the time you stayed. The
Court can still award full rental value for the entire period of time you
were in possession, unless you can settle the case for no rent
or a lesser payment, or you filed a bankruptcy. Interest on the
judgment continues to accrue at 10% per year - higher than the bank. By You:
If you win the eviction case, the landlord has to at least reimburse you
for your court filing fees. If the rental agreement or your defense permit
attorney fees, you are entitled to an award of reasonable attorney fees as
well, even if you don't have an official attorney [Mix v. Tumanjan], such
as where Ken is helping you. This is a money judgment which you can
collect in a number of ways, including sending the Sheriff to the
landlord's bank and taking money from his account, having the Sheriff
collect rents from your neighbors which the landlord would otherwise get,
having the Sheriff take the landlord's car and selling it, or having the
Sheriff put the rental property up for sale at an auction. Each of these
requires you to advance the costs, and some are more expensive than
others. However, when you collect, the Sheriff adds those extra costs on
the judgment amount being collected, so your landlord pays for your
collection efforts. You can also put a lien on all the landlord's
property, so he can't sell or refinance it without you being paid, and
interest at 10% per year does accrue on his judgment as well.
updated 1/3/09
|
|
