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Griffinlawblog

~ Blogs from Andrew H. Griffin,III

Griffinlawblog

Tag Archives: courts in san diego

How fast can I Evict them?

30 Monday May 2016

Posted by griffinlaw in Attorneys in San Diego, Blogroll, Evictions, Landlord, Real estate, Rentals, Tenant, The Law Office of Andrew H. Griffin,III, Valle de Oro Finances Services, Valle de Oro Financial Services

≈ 1 Comment

Tags

Andrew H. Griffin, courts in san diego, eviction, Landlord, Law Office of Andrew H. Griffin, real estate attorney, real estate attorney san diego, real estate san diego, Tenant

How Fast can I Evict them?
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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:

  • The type of Notice and the service of the Notice.
  • The filing and service of the Unlawful Detainer (UD) complaint.
  • The filing of a response or failure to respond to the complaint.
  • The trial or default prove up.
  • Obtaining the writ of execution and sheriff’s eviction.

CEE-Chart
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.

Notice

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.

notice to quit images

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

courthousebuildingwithcolumns

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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I cried before the Judge!

10 Thursday Oct 2013

Posted by griffinlaw in business, The Law Office of Andrew H. Griffin,III

≈ 1 Comment

Tags

Andrew H. Griffin, attorneys san diego, bankruptcy, complaint to quiet title, courts in san diego, due on transfer clause, financial and emotional stress, foreclosure, foreclosure in san diego, fraud, fraudulent misrepresentation, Judge Kevin Enright, Law Office of Andrew H. Griffin, mortgage broker, mortgage company, Permanent Injunction, Quiet Title, real estate attorney, real estate attorney san diego, San Diego County Recorder's Office, Temporary Restraining Order, United States Bankruptcy Judge, Wells Fargo Bank

Mother-and-son

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.

32.81616-116.911919

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“Black” Friday Blog

24 Saturday Nov 2012

Posted by griffinlaw in Blogroll, business, Uncategorized

≈ 1 Comment

Tags

attorneys san diego, bankruptcy, bankruptcy chapter 11, bankruptcy chapter 7, business, courts in san diego, Holidays, mediator san diego, People, real estate attorney, real estate attorney san diego, real estate san diego, San Diego Chargers, society, Thanksgiving Day

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!!!)

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