Balancing the Scales of Justice for Pro Se Homeowners

Unlawful Detainer Wins/Losses

Posted by on Jul 5, 2012

The Unlawful Detainer stage is probably the most scary, frustrating experience in this whole fraudclosure debacle.  Having said that, some homeowners are winning but many are losing.  But with each win, with each loss, I learn a little more about what it will take to get the Court to FOLLOW THE LAW.

 San Diego Win – Demurrer

In this UD the homeowner filed a Demurrer against JP Morgan Chase; the sole basis of the Demurrer was the improper verification of the Complaint by the attorney when JP Morgan Chase had personnel IN the County who could sign the complaint.

The homeowner used a Info To Fight Foreclosure sample Demurrer pleading and had an attorney argue the motion in front of the Court.

1)      The Judge was a “pro-term” judge – it was an attorney acting as a “judge”.    Ethical attorney’s seem to follow the law to the T – versus retired Judges who don’t care about whether their rulings getting overturned or criminal judges who get “stuck” hearing the Case.

2)      The JP Morgan attorneys filed their opposition at the hearing. Their opposition was focused solely on the the “quit/pay” notice, claiming that they had no responsibility to give a prior property owner the opportunity to “pay” instead of quit.  Huh? Had nothing to do with the Demurrer filed by the San Diego homeowner – so this leads me to believe that the attorneys used a “template” at the last minute and had no clue what the Demurrer was about, which left them unprepared to argue the verification issue.

3)      While the judge could not “judicially notice” the exhibits demonstrating the presence of JP Morgan in Los Angeles County, the point was not “lost” on the Judge.  He too questioned why an organization the size of JP Morgan did not have someone who could sign and verify the complaint…so he sustained the Demurrer and gave the Plaintiff 10 days to file the verified complaint.

4)      JP Morgan never filed a verified complaint.  Hmmm…why do you think that is?

Los Angeles Loss – Demurrer

In this UD, which is ongoing, the TENANT filed a Demurrer on the basis that the UD Complaint had been filed a mere 9 days after the Notice  to Vacate had been posted.  The Notice to Vacate was a 3/90 Day Notice.  3 days for the prior property owner and 90 days for all other residents and the fact that the Complaint had been verified by the attorney even though the “new” property owner clearly was in the same county.

California has a statute, CCC § 1161b in which tenants are to be given a minimum of SIXTY days to vacate the property.  (The current tenant is related to the prior property owner and therefore did not qualify for the Federal “Saving Homeowners Act”)   In this matter the new owner had given 90 days, so California law states that the current tenants should have been given the full 90 days prior to any lawsuit being filed.

1)      The tenant demanded a “judge” and refused to have a Commissioner hear the matter.  As a result the matter was removed to a “judges” calendar – the Judge who heard the matter was a “Criminal Judge” who was not familiar with Unlawful Detainers.

2)      The Judge  heard the matter as the LAST hearing of the day.  By the time the tenant was heard the Courtroom was clear of ANY one sitting in the galley, there was no electronic recording nor was there a court reporter.   The Judge ADMITTED to not understanding the UD statutes because she was a “criminal” Judge – and in a classic deference to an attorney and a demonstration of bias towards a pro per the Judge stated, “well they have a ground for the UD so the Demurrer is overruled”;  refusing to acknowledge or deal with the issue of timing of the lawsuit or improper attorney verification.   When I hear these kinds of things I lose a little more respect for Judges.

The tenant then filed a Writ – which was summarily “denied” by the appellate court.

San Diego UD – Stayed for Chapter 11 Bankruptcy Filing

In this matter the homeowner first had the Case remanded and consolidated with a Federal Complaint; to which the Plaintiff’s sought and was granted a Motion to Dismiss and the case was remanded back to the UD Court.  Recognizing that the UD Court is a rocket docket forum which rubber stamps the banks fraud, on the morning of the UD hearing the homeowner filed a Chapter 11 which automatically put a stay in place.

What was/is fascinating about this case is that when the UD started the attorney assigned was apparently an associate of the firm.  As the homeowner filed against the UD – both with discovery and with a motion to consolidate it to the Federal Complaint, the UD was moved up the chain of authority within the Plaintiff’s law firm.   By the time the homeowner was scheduled for the UD trial THE senior partner of the firm had taken over responsibility for the case.

It appears, and I would love to hear what other homeowners are experiencing – the Plaintiff’s law firm saw the UD as a ministerial act – a matter of mere paperwork which would not require any real lawyering.  As the homeowner proved that she would not let her home go without a fight, the law firm found that it had to actually pay attention to the case and it required more seasoned, experienced attorneys to oppose the homeowner.   In this case the Plaintiff has the Court on its side because the Court’s allow about 15 minutes for each UD hearing and typically have a timeline of about 45 days from the filing of the UD to the trial, to dispose of the UD.  UD court is an ugly forum to try to be heard and homeowners rights are routinely trodden upon as the UD Court rubber stamps the fraud; but as we are finding, there are ways to be heard.   In this case, the homeowner sought the one sure way to stop the eviction and that was through a Bankruptcy that put in an automatic stay.

There are many more homeowners fighting at this stage of the fraudclosure process.  Some of the issues homeowners are investigating and fighting:

1)      Improper attorney verification –  this is becoming more and more of an issue and as we learn how homeowners are getting the Courts to recognize, RESPECT and APPLY the law…we will share the arguments

2)      Objecting to the Trustee Deed Upon Sale – homeowner aggressively objects to the introduction of the TDUS based on the hearsay recitals and defective Notice of Default

3)      Relating/Consolidating the Case and Getting a Stay against the UD –  filing a Complaint for Wrongful Foreclosure, Improper Trustee Sale, and Quiet Title.   We are seeing homeowners generate UD Killers with properly plead complaints against the fraudclosure.

Paid members – watch for our blog on UD Killers – how to kill the UD and save your home!

Until next time…





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