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~ Blogs from Andrew H. Griffin,III

Griffinlawblog

Tag Archives: Law Office of Andrew H. Griffin

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

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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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Aside

Victory over Loan Modification Fraud!

27 Friday Sep 2013

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

≈ 1 Comment

Tags

advocate for fair lending, advocate for fair lending mark shoemaker, damages for loan modification fraud, disbarred attorneys, foreclosure in san diego, fraud, fraudulent loan modification companies, fraudulent misrepresentation, fraudulent misrepresentation case, Judge, Judge Judith F. Hayes, Law Office of Andrew H. Griffin, loan modification companies, loan modification fraud, loan modification scam, loan scams, mark shoemaker, nondischargable, relief from automatic stay, State Bar of California

Fraudulent Loan Modification Companies prey on the Distressed

Fraudulent Loan Modification Companies prey on the Distressed

George Castro, like many other homeowners who purchased a home in 2004, obtained an Adjustable Rate Mortgage. The loan was secured by his residence which he shared with his wife, three children, a dog and a pet horse. The interest rate adjusted after five years to a point where the monthly loan payments increased substantially and he found it difficult to keep the payments current.
Castro attempted to resolve the problem with his Lender but was met with insurmountable obstacles. A loan modification company, Advocate For Fair Lending,LLC (AFFL) promised to assist distressed homeowners with problems like his.  Castro heard about AAFL from a friend. Castro went onto the AAFL website where he read sales materials indicating that AAFL offered to help borrowers “Save your home”. The internet sales materials indicated, “We force the lender to work with us on your behalf. If necessary, we will initiate legal action against your lender…. We force the lender to recast the terms of your loan… The lender will be forced to reimburse all loan settlement monies paid by the borrower in regards to this loan. You might even own your property free and clear… If the lender doesn’t accept demand (sic), then Court action is initiated”.
AAFL was owned and operated by Mark A. Shoemaker who was a Real estate broker licensed by the state of  California and attorney who owned and operated the Law Office of Mark A. Shoemaker.  As the President/Chairman of Advocate for Fair Lending, LLC.,  Shoemaker promised that he could “analyze” the loan and if the loan was found to be illegal, the loan could be completely removed from Castro’s residence.

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”.

The finding of fraud by the Court is of particular importance because Shoemaker had filed for bankruptcy under Chapter 7 of the Bankruptcy Code. Griffin, a bankrutuptcy attorney, obtained a relief from automatic stay to bring the lawsuit. The judgment of fraud is significant because the debt by Shoemaker would be nondischargeable in his Bankruptcy Petition. After entry of judgment, Griffin will return to the bankruptcy Court to obtain a judgment determining that the debt to Castro is nondischargeable. This means that Shoemaker would have to pay the money to Castro regardless of his Bankruptcy Petition. The Statement of Decision will become a final judgment 15 Court days after it was filed. The decision awarded the amount of $34,162.60  plus costs of suit per code to Castro.

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