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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.
Try to have an open mind. You may think that you don't have a chance to win, but only because you don't know. For example, contrary to popular belief, winning a case over nonpayment of rent is actually the easiest for the tenant to win: a defective notice, prior illegal late fees or repairs that you made, uninhabitable conditions that exist now, unsatisfied citations by the building or health department, illegal structures, unlicensed managers, unregistered fictitious business names, miscalculations, waivers, special agreements with the prior landlord, unsigned leases, confusing lease languages, illegal lease terms, rent control requirements,...the list goes on and on. One little mistake in the landlord's case and you win, even if the real reason you didn't pay is because you didn't have the money.
Winning, in reality, is getting what you want, or getting the best with what you've got. It's about practical consequences, not just winning the trial. While you're fighting the eviction, you're not paying any rent, so you can save up to move and take the time to look around. Just by fighting the eviction, you're gaining the time to take it easy, the pressure is off, and you can calmly look for a new place, if that's your plan. You're watching your frustrated and angry landlord being held at bay ironically by the process he chose, rather than work things out with you, peacefully and reasonably. You're seeing his embarrassed and confused lawyer scrambling to keep pace with your better tactics, while your landlord is wondering why he's paying so much for a lawyer who is being outwitted by his unrepresented tenant. It's hilarious. And then, on the day of trial, they buckle, and all their saber rattling comes to an end: you get what you wanted. I see it over and over again. All you need to do is play the game better that they do, and if you have a winning case, all the better!
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 now 4½ years [not a misprint]; it could have been longer were it not for judicial corruption, and that case is now on appeal. That was an unusual situation, for sure, but eviction cases lasting for several months to more than a year are not uncommon. Each case depends on the facts, the law, the Plaintiff's lawyer, the judge, the clerks and what you want to invest in getting the additional time.
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:
If the landlord wants you out, he can negotiate with you, wait for you to go, or take his chances in court with the UD.
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. Your rights in an eviction depend on whether you are the former owner, a tenant of the former owner, or a guest of either of them. Congress passed the "Protecting Tenants at Foreclosure Act of 2009" [PTFA for short] and California amended Code of Civil Procedure 1161b and 1161c, to provide special protections for, as the name implies, tenants of foreclosed landlords. The PTFA continues in effect through 2014, and the California law continues in effect as the new law from 2015-2019. Before the property went to foreclosure sale, you were supposed to have been given a special notice under Civil Code 2924.8 telling you that the sale was about to occur and that you have certain rights. It is rare that they do this.
For the Former Owner
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.
One 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.
If you are the former owner, once the foreclosure sale is over and the trustee's deed back to the bank or the new buyer is recorded in the county recorder's office [called "perfecting title"], the new owner has to give the former owner a 3-day notice to quit. If the former owner doesn't move by that time, then the new owner has to file an eviction lawsuit to get a judgment, as in any other case as described below. It might seem that the former owner doesn't have much of a defense, but there are a couple of things that may occur. One is that the new buyer may serve the 3-day notice before the new deed is recorded, which invalidates the 3-day notice. Another is that, prior to the foreclosure, the former owner may have rented the house or a portion of the house to a tenant, such as to help makes ends meet or show income to qualify for a re-financing of the loan. In that case, the former home owner can continue to stay in possession while their tenant fights the eviction under the PTFA. There may be other defenses that are related to the sale, or the legal status of the new buyer, or even some fraudulent conveyance by which the former owner was tricked. Even without a strong defense, just fighting the eviction case can get the former owner a couple more months to relocate and have a smooth transition.
If you are the guest or non-renting family member of the former owner, then the 3-day notice is all you get, too.
For the Tenant
If you are the spouse, child or parent of the former owner and are renting all or a portion of the property, then you get the 30- or 60-day notices applicable to normal monthly tenancies. This is not uncommon, where the young adult child of the former owner is still living at home, but paying rent while getting started or going to college or in transition. It can also be the case of a couple getting a divorce, where the spouse of the former owner is "renting" the house as part of the settlement agreement.
If a local rent control or just cause eviction ordinance 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.
Special Protections for Bona Fide Tenants
If you are the tenant of the former owner, you have a completely different situation than what the law previously provided. It used to be that your tenancy was wiped out by the foreclosure and you had to leave on only 60 days' notice, even if you had a lease. Now, under the PTFA, the rental agreement continues, and technically the bank [meaning also any new buyer for purposes of this discussion] is supposed to come on as though he had bought the building and become your new landlord under the same terms and conditions as before. However, whether it's the bank taking back the property to resell to recover its loan money or a new buyer who probably just wants to "flip" the property [immediately putting on the market for a high price than bid at the foreclosure sale], neither one wants to be your landlord. They want you out, and they rarely even ask for rent. What the try to do is get around the law using various tactics to cheat you out of your PTFA rights. [Note: the PTFA expires at the end of 2014]
The PTFA applies only to a "bona fide tenant," which the PTFA defines as (1) not being the spouse, child or parent of the former owner, (2) paying market rent for what you occupy, and (3) having an agreement that is not contrived. It can be an oral agreement. The tenant can be the brother or friend of the former owner. The agreement had to be made before the sale occurred; an agreement made afterwards is no good. The agreement can be for the entire property, such as a house with yard, or for one of the buildings, such as the back house, or a bedroom with common area privileges, like a boarder. Former owners who have rented a room to a boarder prior to the foreclosure may end up staying in possession for months while the battle rages between the new owner and their tenant. For such a bona fide tenant, the bank has to give at least a 90-day notice to move for monthly tenants.
However, if the tenant has an unexpired lease, that 90-day notice cannot be given unless and until there is a buyer ready to move into the property as their primary residence. Thus, if the boarder has a year lease, the bank cannot evict him by the 90-day notice until those conditions exist. Selling to a speculator, or someone who only wants rental property, or only wants the property as a second or vacation home, the 90-day notice cannot be given. This is vexing to the bank, because their realtor wants an empty building to show, not one where they need to get the tenant's permission first. And thus, to please the realtor, the bank and its lawyer engage in a sinister scheme to cheat the tenant of out their rights, by intimidation, scary litigation, financial burdens of defense, and so forth. They plan to win by attrition, since they cannot win on the merits.
While the PTFA was pending, California created its own protections for the tenants of foreclosed landlords which parallels the PTFA to a large extent. New Civil Code §1161b and 1161c [expiring 12/31/19] similarly require a 90-day notice of termination to evict, which cannot be given to a tenant with a fixed-term lease unless (1) there is a buyer ready to move in as their primary residence, (2) the tenant is a spouse, parent or child of the former owner, (3) the lease was contrived [i.e., not "arms length bargaining"] OR the lease rent is substantially below market value. However, unlike the PTFA, the 90-day notice provisions do not apply at all if the former owner remains as an occupant, tenant, or subtenant, such as leasing out a room in the house to the otherwise protected tenant. Under Section 1161c, the tenant is required to be given notice of the intended foreclosure.
When you think about it, having the time to move out can be the most valuable of all. Kids in school, work schedule prevents moving time, no money to move, or no place found, can be the primary barriers.
Dirty Tricks Department - How the bank or new owner and their lawyers try to cheat you out of your PTFA rights
Here's the typical scenario. The bank gives the 3-day notice and 90-day notice required by the PTFA and California law, addressed only to the former owner. They don't check to see if there is a tenant. Instead the notice may say that if the tenant does not show proof to them within 3 days that they have a lease, they must move out and forfeit their rights to possession. That is not the law; it is fraud. There is no such requirement in either the federal or California law conditioning the rights on such proof. However, it tricks a lot of tenants into thinking that they blew the deadline, and so they must move. If the tenant does give that notice, such as faxing the lease to the bank's lawyer, they will probably still do the eviction, anyway, thinking they can scare the tenants into moving, and tell them that they don't have a chance.
Sometimes the bank's lawyer will start the UD right after the 3-day notice and not even wait the 90 days. Other times, the UD will start after the 90 days, but without ever checking whether there is a tenant or the tenant has an unexpired lease, which would make the 90-day notice premature and illegal. Why not? Because they intend to scare or otherwise drive that tenant out of possession by the scary litigation and the overwhelming expense that the tenant cannot afford [using most tenant lawyers, that could be the case].
The eviction case will typically ONLY name the former owner as the Defendant, hopefully tricking the tenant into believing that this is none of their business and therefore doing nothing. However, there is a paper buried in the batch called a "Prejudgment Claim of Right to Possession" saying that if YOU claim a right to possession [such as under the PTFA to get 90 days' notice, etc], you MUST fill out and file this paper within 10 calendar days or forever forfeiture your right to defend yourself. The bank is not required to put that paper on top, so you see it is for you to read. You have to snoop into the paperwork against your general morals, in order to discovery this page, realize that it is intended for YOU, and thereby take action. Actually, if you file it AFTER the 10 days, but the bank has not already taken the default of "all occupants," you can still file that notice. Within 5 calendar days after that, you have to file your first paper to fight the case; if you forget to to do that, you lost [although you COULD undo that, it's most expensive to do]. If you don't file a response, and the former owner doesn't fight it, as they often don't, the bank takes a default judgment and the Sheriff removes you and everyone else in short order.
Of course, I'm prepared for each of these things, if only you can get to me as early as possible. Catching the other side in their mistakes is what gets you more time, makes the eviction more risky and costly for them, and ultimately gives you more leverage in the end, because they have been wrong all along, and only thought they could get away from it. It is quiet common for such a case to settle when after you've lived there for months without paying a dime, and the bank gives up any money claim, agrees to seal the case, and pays you [$5,000 or more!] just to move in 60 more days. To them, it's cheaper than losing the case and having to start all over again. They're not doing it out of the goodness of their hearts. You put them in that position. That's your power.
Occasionally, a bank will offer "cash for keys," where they tender 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 security deposit, so that you give up the two birds in your hand for the one in the bush, and it may fly away. 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.
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, through the Legal Services section of this site. [NOTE: Landlords' lawyers who are losing their case will often whine to the judge that you are merely using "dilatory tactics" to postpone what they arrogantly perceive as the inevitable, and present a copy of this page to the judge, claiming that you are "playing games." Of course, they are embarrassed in front of their clients that you are merely pointing out their many bumbling mistakes, using the required process to do so. Nothing wrong with that. The Legislature provides you the means to do so, and the Court must apply that law. If the landlords' lawyer were more competent in their work, you would not be able to challenge them as you do. Besides, when you win your case, they will have to explain why their clients paid so much only to lose.]
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 exploit the mistakes of both your landlord and his lawyer, who aren'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.
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. Basic 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. The Deluxe Eviction Defense Kit [click]
The $120 Deluxe Eviction Defense Kit is the basic
kit plus detailed instructions on how to do your own jury trial
[or regular trial if you prefer]. Preparing for the trial, jury
instructions, witness and exhibit lists, opening statements, presenting
evidence, testifying, and more are explained in plain and simple
language. Even if you need more help, knowing the process in advance in
such straight-forward and logical terms takes all the fear out of the
process. When you walk in confident, ready to go, especially when the
landlord was expecting you to be scared to death, he knows he's in
You can hire Ken Carlson to consult with you and draft papers for you in a piecemeal basis or
(b) call him on the Hotline on a per-minute basis. You begin
with a phone consultation, after faxing or scanning and emailing 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,. You take responsibility for monitoring your own case,
and when the next papers are due. If you choose the Hotline, Ken can
answer most questions without an appointment being necessary, although
it costs 50% more for this "rush job" contact. 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
4. 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.
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 a month, and probably less than 3 months, and you're back where you were. If the bankruptcy is lifted, the eviction is only for possession, not money, so the landlord can only lose in real terms.
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 for the trial, all of which can easily take a month. Sometimes the judge will just reset the trial for the expected time to get the bankruptcy order permitting the eviction to continue. 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.
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
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
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.
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.
Ready to take the next step? Contact Ken Carlson.