How Fast can I Evict them? The idea of purchasing rental income properties was a great idea until the reality produces a tenant, who had made all kinds of promises to get into the property, stops p…
Source: How fast can I Evict them?
How Fast can I Evict them? The idea of purchasing rental income properties was a great idea until the reality produces a tenant, who had made all kinds of promises to get into the property, stops p…
Source: How fast can I Evict them?
The idea of purchasing rental income properties was a great idea until the reality produces a tenant, who had made all kinds of promises to get into the property, stops paying the rent, begins to mistreat the property, or becomes the neighborhood drug dispensary. As soon as this happens, they come to me, Andrew H. Griffin, III, at the Law Offices of Andrew H. Griffin, III. I am a Real Estate attorney and broker licensed to practice law in the State of California. The question that I hear most often is “how fast can I get them out?” The answer to this question is the as most legal questions. “It Depends!”.
The timetable for evicting tenants in California depends upon the following:
Evictions in California are Summary Proceedings. Summary Proceedings are not bound by the same time requirements as others. The process is faster to allow landlords to obtain possession of the property and to reduce the loss of income. Even though it is a faster procedure, it is also a much stricter to prevent the Tenant from unnecessarily losing his home. This means that a Landlord can lose its case for any error, no matter how small.
Every Landlord must provide proper notice before a case is filed in court. Proper notice depends upon may factors. These factors include the alleged breach of a covenant or duty of the tenant and/or the reason that the Landlord seeks to regain possession of the property.
The time stated in a Notice, whether it’s a 3-Day, 30-Day, 60-Day or 90-Day notice, must completely run before the UD complaint can be filed with the Court. If a case is filed untimely, the Landlord could lose the case and would have to begin again, starting with providing the proper notice.
Filing and Service of the complaint
An Unlawful Detainer (UD) complaint can be filed with the Court once the appropriate notice has been served and the time has run. Once again, the pleading requirements are strict. The complaint must accurately and legally depict the allegations. The Landlord can lose a case if allegations are improperly made. The complaint must be properly served. If personally served, the tenant has 5 Days to file an answer or response with the Court. If substituted service is achieved, the 5-Day period to respond is extended to 15 days.
Failure to Answer
If personally served, the tenant has to file a response with the Court within 5 days. If the Tenant fails to answer or respond, the Landlord can file a request to enter default. Once a default is entered by the court, the tenant is prevented from objecting to the UD action unless permission is received from the court.
Trial or default Prove up
If an answer is filed, the landlord must request a trial date. The Court is required to schedule a trial date to be held within 20 days of the written request. The Landlord is required to prove entitlement to possession and/or damages in trial or if a default has been entered against the tenant.
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Would you give your son $20,000.00 to keep safe for you? Would you put your son’s name on the title of your home? That’s exactly what my client, Gabriela did. Gabriela’s 30-year-old son, Jason, came to her one day and asked her to put him on title so that if anything happened to her, then this would be a form and estate planning. He said that he would take care of all paperwork and all she had to do is sign in front of a notary public. He also convinced her to open up a bank account in his name so that she could deposit $20,000.00 that he would keep for her for safekeeping.
After she signed the deed, Jason returned to her requesting that she sign a document which stated that the property was a complete gift to him so that he would not have to pay transfer taxes. English is not her first language, but she knew that she had not given the house as a “Gift“. When she told him “no”, he got angry and said, “It’s too late. The house is mine. There is nothing that you can do to get it back. Sue me if you think you have a chance to get it back!“
This was her favorite son and she was shocked by his behavior. Gabriela had already put $20,000.00 into a bank account titled only in his name and now he was “stealing” the house that she owed money against .
Gabriela sought the aid of her husband, but Jason ignored the pleas of his father to return the property. She went to her other sons to convince their brother to listen to his mother, but this caused more problems. Her oldest son tried to convince Gabriela to let Jason keep the house. He reasoned that since Jason was already paying rent and living in the home with his family that he should keep the home. Her youngest son wasn’t successful in convincing Jason. He received threats from Jason when he tried to convince Jason to give the property back to their mother.
Gabriela went to the San Diego County Recorder’s Office to keep the offending deed from being recorded but they couldn’t help her. She went to her mortgage broker who couldn’t help. After a month of begging Jason to return the property, Gabriela came to me, Andrew H. Griffin, III, at the Law Offices of Andrew H. Griffin, III. I am a real estate and bankruptcy attorney licensed to practice law in the State of California.
I immediately filed a lawsuit to Quiet Title in the Superior Court of California, County of San Diego and obtained a Temporary Restraining Order (TRO) to keep Jason from selling, transferring or getting a loan on the house. I was assured by Jason’s attorney after successfully converting the TRO into a Permanent Injunction that Jason would quickly sign the property back to his Mother. However, instead of quickly resolving the problem, Jason intentionally made things worse.
Jason was not paying the $1,500.00 monthly rent that he had paid in the years that he lived in the home. Gabriela had to pay the mortgage on the home where she was residing and pay the taxes, insurance and the mortgage on the home where Jason was residing. It was extremely difficult to make these payments on a custodian’s salary. She had to pay to keep the home from foreclosure by paying the mortgages. She had the additional burden to pay for attorney’s fees and costs to fight the misrepresentations and fraud of her “favorite” son.
Jason testified under penalty of perjury in his deposition that he had been paying rent to his mother but she accepted only cash and refused to provide receipts. Even after I reminded him that he would need proof of payment in Court, he refused my offers to pay the rent through my law office so that his payments could be properly credited.
The actions by her son cut deep into their relationship. She was not able to see her grandchildren. The crisis divided her family. The months continued to pass adding the financial and emotional stress to Gabriela. Her husband lost his job and she began to have more difficulty paying for the mortgages. She cashed out her retirement accounts which caused her to incur income tax obligations and penalties to the IRS.
Jason tried to add to the hardship by requesting a continuance of the trial date. Jason even went to court to compel Wells Fargo bank to declare the mortgage immediately due and payable because he claimed that his mother had violated the terms of the loan agreement (the due on transfer clause) by putting his name on the home. It was difficult to believe that a son, a favorite son, would do this to his mother.
The first day of trial, August 26, 2013, was difficult for me because my father was visiting me for three weeks. I was angry that I had to spend my time in trial preparation and in trial while my father was vacationing in my home. I couldn’t understand why Jason’s attorney would allow this case to go to trial especially since he told me at its inception that his client would turn over the home to his mother.
My father was with me in the courtroom on the first day of trial. In opening arguments I started to tell the Judge the facts of the case and what I expected the evidence to show. During my rehearsed and prepared speech I started to feel an emotion that I had never felt in my 30 years of practicing law while arguing before the court.
I could feel my voice start to crack. I felt tears well up in my eyes. I was starting to cry. I cried before the judge!
It seemed like an eternity between the time that I was able to get my voice back without crying. There was complete silence in the courtroom while I, the professional attorney, was choking back tears. All I could think was “my father came all the way from the east coast to see his son obtain justice for his deserving client, but all he sees is me crying in front of the Judge.”
Yesterday, October 10, 2013, we received the decision from the Honorable Kevin Enright, judge of the Superior Court of California for the County of San Diego. He granted our complaint to quiet title. He ruled that the deed transferring the home was invalid and ordered the return of the home to my client. He awarded the $20,000.00 that was put into the son’s bank account returned to Gabriela. The judge was also convinced that Jason had not paid the monthly rent of $1,500.00 since April of 2012, (Even though Jason and Jason’s wife testified that Jason’s wife handed cash to Gabriela each month) and ordered Jason to pay the rent from April 2012 to present.
The final award was over $50,000.00 which Jason was ordered to pay Gabriela. The Court also granted her title to a home worth over a half million dollars. Unfortunately, the loss of the mother and son relationship was priceless.
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Diane trusted Victor to refinance her home. After all, Victor was her brother. Victor had refinanced her home and their mother’s home on multiple occasions. Diane had no reason to mistrust her brother. So, on February 12, 2009, when Victor told Diane that his company called “Equity Savers” would “save” her home by a loan modification, she trusted him.
Victor told his sister that he, and Francisco, through their company, Equity Savers, would purchase Diane’s home and then enter into a one-year lease with her. Diane paid her brother $3,605.00, which he said was payment for the first and last month’s rent. Victor promised that after a year he would sell the home back to Diane for $230,000.00. Victor also represented that $10,000.00 would be credited to be used as a down payment. Victor advised his sister to stop making payments to the mortgage company so that the purchase would be easier.
On November 20, 2009, Victor’s partner, Orozco visited Diane at her home and changed the terms of the agreement to repurchase the property for the sum of $350,000.00 and that they would finance the loan at Eight (8%) percent. Diane signed the agreement without knowing that on September 30, 2009, the bank had already taken back the home through foreclosure. Her brother knew or should have known that Diane no longer owned her home at the time of the agreement because she shared all the letters and notices that came from the bank. On each occasion Victor told Diane not to worry because this was part of the purchase process of his company.
Diane and her husband, Eduardo, did not know that their home was owned by her bank until she met her attorney, Andrew H. Griffin, III of the Law Office of Andrew H. Griffin, III. On June 22, 2010, Griffin filed a lawsuit action against Victor and others in the Superior Court of California, County of San Diego. The case took almost two years to complete. On January 27, 2012, Superior Court Judge, Timothy Taylor, granted a judgment against Victor and in favor of Diane and her husband in the amount of $150,000.00 and in the amount of $950.00 for the total judgment in the sum of $150,950.00.
Victor filed for bankruptcy under Chapter 7 on March 17, 2011, but did not list the debt to Diane in his Bankruptcy Petition. Victor received a discharge on or about September 26, 2011. The Case was closed on October 14, 2011. On July 5, 2012, Griffin, received a letter informing him of the bankruptcy petition asserting that Victor no longer had the obligation to pay Diane. As a result, Griffin filed an Adversary Complaint against Victor to determine whether the judgment based in fraud would still have to be paid. On September 30, 2013, United States Bankruptcy Judge, Wayne Johnson, signed a judgment stating that the State Court judgment of $150,950.00 was a debt based upon fraud and was not excluded from the debts discharged in Victor’s Bankruptcy.
Victor is still obligated to pay his sister $150,950.00, but the relationship between bother and sister and the entire family will forever be changed.
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On August 6, 2008, Castro telephoned AAFL who promised that in exchange for payments of 70% of his mortgage payments that AAFL would perform an “audit of their mortgage to search for and identify legal defects in the mortgage agreement. Once the “defects” in the mortgage were identified, steps, including the initiation of a lawsuit, would be taken to halt foreclosure proceedings and force loan restructured or modification. Castro sent AAFL all of his paperwork regarding the loan and mailed three payments totaling $9,162.66 as instructed. Despite this fact, the foreclosure sale of the property took place on November 3, 2008, and the bank repossessed the home displacing Castro, his family and his pets. No litigation was ever initiated by Shoemaker or AAFL against his lender as promised.
Castro then hired attorney, Andrew H. Griffin, III of the Law Office of Andrew H. Griffin, III to represent him. Griffin filed a complaint against AAFL and Mark Shoemaker in the Superior Court of California, County of San Diego on December 31, 2009. (Case No.: 37-2009-00080288-CU-OR-SC) The case took almost 4 years to complete. During this time Shoemaker filed for Bankruptcy. He lost his license to practice law and he also lost his license as a California real estate broker.
Shoemaker, in spite of being a disbarred attorney, blamed Castro’s problem on Castro, his Lender, and Griffin as Castro’s Attorney. The Court in the State Bar of California found that Shoemaker “used Advocate and his status as an attorney to convince cash-strapped homeowners to pay him thousands of dollars in hopes of saving their homes from foreclosure,” Judge Honn wrote in his May 28, 2010, order Shoemaker, however, “often did little to nothing to help these clients. In fact, many of these homeowners were worse off after retaining [Shoemaker’s] services.”
The State Court trial lasted for 4 days. On September 20, 2013, Judge Judith F. Hayes of the Superior Court found that Shoemaker was liable to Castro for fraud and unlawful business practices under Business and Professions Code section 17200 for his actions in operating AAFL. Judge Hayes opined that the fraud was committed in Shoemaker’s professional capacity as a lawyer and as owner of AAFL. The Court further held that as the owner and sole shareholder of AAFL, and as an attorney, Shoemaker made false statements of material fact to Castro to induce him to pay a total of $9,162.66 for the purpose of stopping the foreclosure sale of their home. Judge Hayes stated that Shoemaker “through his company, AAFL, falsely represented that they had the power to force the lender into a restructure or modification of [Castro’s] mortgage. AAFL’s advertising materials failed to disclose to [Castro] that AAFL had little or no success in this regard”.
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I know I am supposed to be working, but I can’t stop my mind from wandering. I think that I am a victim of all of this “Black Friday” marketing. All of the Courts in San Diego are closed today, the day after Thanksgiving. I have no idea how this day, “Black Friday”, has evolved into a National Holiday. Why are the Bankruptcy Courts closed? Why is everyone at the mall so early in the morning? Why am I the only attorney in the building working today? When did “Black” start to mean something good?… I have been taught that Black Cats, Black Clouds, Black Listed, Black Hole, Black Sheep, etc. all had negative connotations. Now “Black Friday” is supposed to be something good. Maybe since I am a “Black” man I should just remain silent and accept the new movement that “Black is the new Green”!
I don’t even watch TV (except to be disappointed by my San Diego Chargers!) but I have been influenced with so much “Black Friday” advertising that I feel that I should not be in the office. I have been brainwashed. Maybe that’s why I’m having such a hard time working today. (So much that I have to stop what I’m doing and write this blog.)
I am sure you know that the reason why that they call it “Black Friday” is because the day is important to businesses because they need to climb out of the “Red” ink (no offense to Native Americans) and into the “Black” ink. Getting “into the Black” supposedly has no racial connotation. It is said to mean that the business is finally making a profit.
Then I started thinking even harder. How precarious is business if you have to wait until the third week of November to know if you are making a profit? How nerve wracking it must be to work almost eleven complete months to ascertain whether your business has made a profit for the year? How many people would take that risk? Why would you take that risk? Who in their right mind would own a business?
Then I realized that I must not be in my right mind. I have worked from myself as an attorney for almost 30 years. I also own and operate a real estate firm. I am a professional mediator. Owning these businesses gave no guarantee that I would be paid on the first and fifteenth of each month. I guess I am just as crazy as all of the rest of the businesses who promote theses “Black Friday” sales.
This Country was built on entrepreneurs like me who don’t believe that “Failure is not an option” (the tag line for the movie, Apollo 13.) We are a country of risk takers. Without risk, we can find no success. When asked about his failures while inventing the light bulb, Thomas Edison said “I have not failed. I’ve just found 10,000 ways that won’t work.” We have to welcome and embrace failures in order to learn from our mistakes so that we do not make the same mistakes.
As an attorney whose practice concentrates on bankruptcy and insolvency matters, I have to support my fellow risktakers. So, I’m headed to the 7-11 because their “Black Friday” special is a free cup of any sized drink if you buy a slice of pizza! (Hmmm, I’m sure there is no left over food at home after yesterday!!!)
Well…. I am sitting on the plane headed back to San Diego and thought I’d write one of my infamous blogs which I haven’t written in a long time…
I went to Maria’s graduation from Vanderbilt in Nashville Tennessee (congratulations Maria–I am very proud!)
This time I thought I would change things up…. do things a little differently. So, the first thing was that I didn’t personally make my flight itinerary. I simply waited to the last minute and asked my secretary to find the cheapest way to get me there and back….
So, the result was… instead of my familiar Southwest airlines I was booked on Delta… I thought, great now I’ll see a different perspective….what I didn’t know that the perspective would be so glaring that my glasses turned into sunglasses to block out the glare!
The first thing that I noticed was that Delta had FIRST CLASS!!!… Southwest has no first class (unless you call paying an extra ten bucks so you can be assured to get in the first group that boards as first class!).. When I got to the airport gate the gate attendant is calling names of people who got upgraded to first class… I thought cool.. this must be on a lottery system…. so, I listened intently for my name…no such luck.. But thats ok, (just like those nominated for academy awards) I felt privileged just for the consideration——at least that’s how my positive mind considered it.
So, I got on the plane and thought “cool, this is so much better than southwest. I know which seat I’m going to get. I have a seat already assigned to me”… Not like southwest which is like a game of musical chairs 10 people fighting over 9 seats!… This is going to be so much better!
So I get on the plane. I have my iPad, laptop and bible flash cards.( I am teaching my sunday school students to memorize the books of the bible —backward, forward and by number–so, as the teacher, I have to know them better than the students!) I have my briefcase with work. I have plenty to do. I’m ready to be productive!….
So…………. I immediately fall asleep… I really don’t remember much of the first hour of the trip!
I am awakened because I am in the isle seat and the food cart hits me in the shoulder..My positive mind says “great, good thing they woke you for the snacks”… but then I remembered that it was Thursday and as you know (well maybe you don’t) I have been fasting on Tuesdays and Thursdays for about a year and a half now. So, now I am awake and upset because I can’t make the choice between peanuts or cookies based on what I have a taste for at the moment since I can not eat them.
So I begin my observations of the differences between Southwest and Delta… The first thing that I notice is the technology. In each headrest there is a monitor with cool things (some free).. you can check out the gps in the plane, speed, distance traveled and time for arrival… (cool!) there are tv shows, basketball playoff games, cnn and movies!
I was traveling to Nashville with a stop in Atlanta. I immediately noticed that all of the stewardesses were old!… Its hard to guess the ages of women but all of them had grey hair… and I am not exaggerating!…none would be younger than 45… Again, my positive mind says..”cool, I got experienced people here on the plane”.
Since I have the isle seat, I have to get up every time the middle or window seat wants to go to the bathroom…Again, not really a problem since I sat next to a married couple and they were polite enough to go together at the same time (when I had to go as well)..
so the flight to Atlanta was pretty uneventful until……..
it started getting bumpy… the turbulence (unexpected rough air–as they call it) was really not alarming… anyone who flies has felt it.. All you have to do is tighten your stomach like you do in a roller coaster and after a few seconds its all over…. No big deal …. until…..
after the fifth or sixth roller coaster dive the pilot order the stewardesses (Im sorry, flight attendants) to take their seats and suspend the distribution of the snacks….I wasn’t really concerned about it until the pilot made an announcement that we were going to descend 10,000 feet at the advice of air traffic control so that our ride would smoothen out…. Still not a big concern…. until
Apparently its a felony, a mortal sin, a crime punishable by death… (just plain wrong) to get out of your seat to go to the bathroom when the seatbelt sign is on under 30,000 feet because……….
This lady got out of her seat to go to the bathroom and I heard this shrill sounding voice above the roar of the jet engines saying “get back in your seat!!! Don’t you see that the captain has turned on the fasten seatbelt sign?… I felt sorry for the lady. She stopped dead in her tracks but I could tell that she had to go…. really bad. Sometimes these roller coaster rides make you have to go even more!!…She made the choice to defy the stewardess (flight attendant) and go to the bathroom even though she was being warned that it was for her safety and that they could not protect her while she was out of the seat…
As it turned out… she did not need their protection. We landed in Atlanta 9 minutes early…
Ok… we landed 9 minutes early but got to our gate 37 minutes late!…(for those of you who are not bored you can continue reading to find out why)
Anyway…. we land in atlanta…. but we stop on the tarmac… nowhere near the gate…. We just stop… We are told that it will be a moment until the gate is ready to receive us and that when they are we will proceed to the gate.
After fifteen minutes people are getting restless. I start to hear conversations around me about the time their connection flights are leaving. People begin to start pushing the button to summon the steward….flight attendants. The guy behind me summons the flight attendant and asks her if he can move to the front of the plane to be the first to leave to catch his connecting flight…(I listen to that request because if he does it, so will I since I have to go to Nashville)—-but, that request is denied…. Even the couple next to me (who haven’t said a word to me the whole trip except to use the bathroom) start talking to me about their connecting flight asking me about mine….. the entire plane starts to murmur aloud regarding connecting flights….
Then the plane starts to move and we all quiet…. then we stop again right before we get to the “empty” gate. ….An announcement then came that 90 percent of the passengers were going to connecting flights and that we should all leave as quickly as possible…..
So, when the announcement stopped people unbuckled their seat belts and went into the overhead bins to get their baggage…. The problem was…..
We still weren’t at the gate!…Another announcement came on for everyone to take their seats and to buck up so that we could travel to the gate…. Do you think people listened?
(good answer…No!)…They didn’t sit down. The more that got their suitcases, the more people who wanted to get theirs so that they could get a head start to their connecting flights!!!
Another announcement warned that we could not move until everyone was seated and then other seated passengers started yelling at the standing passengers to sit down so that they could make their connections. People were frustrated because we were told that we couldn’t go to the gate because it was occupied but we could see that there was no other plane at the gate…. “Just open the door… I could make it to the terminal in 2 minutes or less.”
At first, I didn’t become too concerned because I had an hour layover…but we were on the tarmac for 37 minutes which meant that my hour had been reduced to 27 minutes…I am also a little concerned because the Playoff basketball game (Atlanta v. Boston) was turned off since we had landed……
Meanwhile, the couple next to me was becoming agitated for several reasons. The vocal guy seated behind us, who asked if he could move his seat, started cursing and releasing “F” bombs all over place. The language got the husband angry to the point that he told the guy to watch his mouth…They only had a 20 minute layover and we were still on the tarmac when their connecting flight to Pittsburgh was scheduled to take off…so, if anyone had the right to be upset they were justified.
Now, I have been on other flights (like Southwest) where they will tell you the gates that you have to run to to get to your connecting flight…. or they will tell you not to worry because the connecting flight knows that you are here and that they are waiting for you at the gate with a cart to get you to the connecting flight…. but in this case nothing!!!
The flight attendant said that they had no information… no gate information, no information as to the status of the connecting flight,…nothing to give us..They couldn’t even tell us why we couldn’t move up to the empty gate!!! The only thing that they could tell us was that “90% of the passengers on board had connecting flights!”….This really didn’t comfort any of us… It just meant that there would be more competition trying to get out of the plane.
I (like others) turned on my cell phone and started texting. Dad is calling me trying to find out where I am. I’m trying to text him (If I call I could be arrested since I’m not supposed to have my phone on)… and of course, texting is not Dad’s strong suit, so I get no response….I’m torn between answering his calls and suffering the consequences. I know he is at the Tennessee airport waiting for me…
We finally started moving and got to the gate….
But I learned something that night…..
One of the things that I learned is when you are seated at the rear of the plane, it can be a good 15 minutes before the isle clears in front of you so that you are able to leave!!! (even when the people who had no connecting flights were nice enough to stay seated so that the connecting people could leave…)
I also learned that… when you are late for a connecting flights people will run in the airport…. actually leaving their children to fend for themselves…
It was kind of funny to see the children run out of their flip flops… go back to get them..and their parents not even notice!!!!
But more importantly I learned…….
………….that Atlanta was on Eastern standard time and that Nashville was on central time.
Dad had arrived at the Nashville airport to pick me up without adjusting for his Atlanta watch…My cell phone automatically adjusts its time to the time zone that I am in so I, too was looking at Atlanta time!!
However, I learned none of these things until I got to Nashville!!!!..
All the stressing was for naught! I got into the gate and still had a nice wait for the 32 minute flight to nashville…arriving ok..
Any way…getting sleepy…I wanted to tell you what I learned before I went to sleep..
If I awake and have time… I will tell you about the present experience of being the only Black person in this plane to Salt Lake City Utah….
(It could be worse,I could have my Obama “change” tee shirt on or I could have anti-Romney slogans on my brief case!)
Love, the Dad, the Son, the boss, the friend, the Drew!