Balancing the Scales of Justice for Pro Se Homeowners

Overview of Unlawful Detainer

Overview of Unlawful Detainer

Unlawful Detainers were most typically used for evicting wayward tenants and were designed to give the property owner a quick, and fairly inexpensive, way of regaining possession of their property. And when the owner of the property is clear cut, that system works the way it should. But with the flood of foreclosures, and the fake documents being created by national banks like Wells Fargo, N.A.; JP Morgan Chase, N.A.; Citibank; Bank of American, N.A.; and GMAC to foreclose, the public is fighting back and this is not such an easy, quick process.

For first, an unlawful detainer is a summary procedure. What that means is that it is automatically fast tracked through the system, taking priority over all other civil matters.  Timelines are shorten to five day increments and the ONLY  issue that can be litigated is  possession of the property.  However, discovery is still allowed (but depositions are limited to one); civil code of procedure and evidence still must be followed.  The PLAINTIFF is the BANK and if you deny their allegations the Plaintiff must PROVE their case. And judicial notice of their fake documents does not cut it. (Though most trial judges ignore the fraud, and against the law judicially notice the documents; but appeals courts are overturning these rulings).                                            

Bank tantrumNow the banks cry, whine and stomp their feet when a homeowner questions their title - but in an unlimited detainer the issue of title, to a very  limited extent CAN be litigated in the unlawful detainer.   What this means is you cannot bring up issues about the origination of the loan, modification issues, or the formation of the deed of trust.  But what you CAN bring up is whether the sale is valid and whether the parties involved actually complied with California Civil Code Section 2924. 

So hang on tight, we have some great stuff that can help you fight the banks at this stage of the fight.  See our Fighting Unlawful Detainer

Every homeowner is entitled to "notice' the new property owners wants you to leave the property.  The notification usually starts with a 3 Day Notice to Quit (or Vacate).  This notice must meet with very specific guidelines.

First, the Notice may be served in person to you, a person over 18 years of age, or may be posted to the front of your door and then mailed first class mail.  If it is posted, then the person who served it must file an affidavit with the stating their attempts to serve you in person. The server does not have to have the court's permission to post the notice; and usually the court will require nothing more than they knocked or rang the doorbell. (Do not confuse service of the 3 Day Notice to Quit with the Summons and Complaint!)

Second, the Notice must specify who is claiming ownership of your property and provide proof. It the Notice just simply states, "We purchased the property" but fails to give evidence, then the notice is defective.  If an unlawful detainer is filed against you, you can demurrer or file a motion to quash for defective notice.

Third, the Notice cannot be ambiguous in any way. If the Notice gives several different scenarios that may apply to you, then it is defective. 

Fourth, if you are a tenant then see our Tenants Section!

 

The summons is official notification from the Court that you are being sued, and if you want to protect your rights you must appear and fight the complaint.  Being served has very specific guidelines that MUST be followed. 

The server must serve you in person. They cannot drop it off on your porch, stick in your mailbox, or handed it to your three year old toddler. (See below)  If they do, then the service is improper and would be grounds for what is called a Motion to Quash.  A motion to quash is simply a motion you file with the Court telling the court that you have not been served properly and therefore are not under the court's jurisdiction.  THIS IS IMPORTANT. Some people just ignore it, knowing that it was improper, but if you don't tell the court how would the court know?   If you don't tell the court, then the plaintiff can file a default against you!  So if you know a complaint was filed, and after two weeks haven't been served, then check with the court. 

Now if the process server tries several times to contact you and cannot ever catch you at home, they can go to the court, document their 'due diligence'" and request the right to "post and mail" the summons and complaint.  The court must give them a court order granting them a right to post and mail the summons. (So then they can drop it off on your porch).  So when the summons is dropped off, check with the court and see if the plaintiff got a court order allowing the "post and mail" service. If there is no court order, consider a motion to quash; if there is a court order, read the complaint. Because now you must respond.  

Respond does NOT necessarily mean you need to ANSWER. You can respond with a demurrer, motion to quash, or motion to strike.  

 

 

If the summons and complaint were properly served, you then need to respond to the complaint. Please do not ignore this!  If you do the Plaintiff can ask for a default, and within a few short weeks have a writ of possession, which the Sheriff then will remove you from the property.

Depending on your situation you can respond one of several ways:

Motion to Quash:  If the service was improper or the 3 Day Notice is defective, you can file a Motion to Quash.  The hearing for the Motion to Quash is usually heard within 3 to 7 days of filing the motion.  If you lose the Motion to Quash, the Court will tell you that you must respond within five days.

Demurrer/Motion to Strike:  If there is a defect in the complaint (like they did not attach proof of their claimed ownership; a copy of the 3 day notice, etc.) or the attorney verified the complaint, you can file a Demurrer (California version of a Motion to Dismiss) or a Motion to Strike. You can file both or just one of them, but you can't file a Demurrer then a Motio to Strike. The two motions are usually filed at the same time.

Answer: It is IMPERATIVE when you file an answer that you deny each paragraph that is untrue, or if you don't know, deny it because you don't know.  There is standard Answer form that you may use to answer the complaint.  Again, make sure you deny each paragraph, this is important. When you deny something in the complaint, the Plaintiff must prove it is true.

 

This is an interesting area of dispute.   A lot of attorneys for the banks just sign the complaint, claiming that the client is "not in the county" which is an outright lie.  What national bank is not in a county in California?  Then when called on it, they will say, "The headquarters aren't in my county" or "the person who handles this isn't in the county" or some other lame excuse. 

Most of the judges don't care; but astute judges that like following the law don't miss the point and usually will grant a motion to strike or demurrer, telling the Plaintiff they have 10 days to verify the complaint. 

Unlawful Detainers is one of those complaints that must be verified, to aver the facts within the complaint are true.  If a person signs a complaint claiming all the facts are true, and then they are found not to be true, can get in serious trouble.  Think about it, Wells Fargo, Bank of America, JP Morgan, etc. created fake documents to foreclose, think they are going to sign a complaint, under the penalty of perjury, that they aren't lying? 

We discuss in detail how to fight this sham verification process in our Fighting Unlawful Detainers

 

Unlawful Detainers move very fast; if you want to do discovery then it is recommended you serve your discovery at the time you file the answer to the complaint. The plaintiff must answer the discovery within five days of receiving the discovery.  Some things you can consider asking in discovery are:

1) Identify the person responsible for initiating this complaint by name, title, address, phone number, etc.  (Part of this is to see if they are in the county, though their presence isn't mandatory)

2) Provide a copy of the receipt evidencing the purchase of the property.

3) Provide a copy of all advertisements of the Trustee Sale. Identify the name of the publication, the contents of the publication, and proof of the advertisement.

This is a double edge sword, if they produce it in discovery, they can produce it at trial. Most plaintiffs don't show up with this at trial, but if you ask for it, they may. This becomes very interesting when the Plaintiff is a 3rd party. They still have to prove the Trustee Sale occurred in compliance with California Civil Code Section 2924.  And mostly won't have it available during discovery much less at trial.  

 

The day has come, you now must face off with the Plaintiff. Usually the attorney (most likely a special appearance attorney that does these all day long) will show, with a realtor or property manager and the process server who served the 3 Day Notice to Quit. (Because if they are not a certified process server they must testify in person they posted the notice). 

The evidence the Plaintiff will seek to enter into evidence is the a certified copy of the 3 Day Notice to Quit (or Vacate) and the Trustee Deed Upon Sale or Grant/QuitClaim Deed showing their ownership of the title.

THIS IS WHERE YOU MUST FIGHT - the winning is NOT in affirmative defenses - it is in DEFEATING THEIR EVIDENCE and WITNESSES. 

Most people don't object to either the 3 Day Notice to Quit or Trustee Deed Upon Sale being entered, but you MUST object to two these two documents.  (See Fighting Unlawful Detainer for details on objecting to these two documents). 

 Once the Plaintiff has presented their case, then it is your turn to present your affirmative defenses. 

Most likely the judge will make a ruling right then and there. If you lose, then the next step is the Court will sign a "writ of possession". 

 

 

The writ of possession is the court order telling the Sheriff to remove you from the property.  Usually the Sheriff will post a Notice to Vacate the property (usually a five day notice).  The time between the trial and the sheriffs notice varies; it can be as quick as a week and as long as a month.    Take this seriously.

When the sheriff shows up he will ask you to move out to the street while a locksmith changes the locks on the door.  You will officially no longer be in possession.  If you have belongings in the property you can make arrangements with the property owner to come and remove your belongings. By law, they must give you access (per agreed upon date/times) to enter the house and remove your belongings and cannot officially remove the belongings for up to 15 days after the eviction.  However, this doesn't mean they won't and some people may remove your belongings and put them into storage - which you will have to pay the costs of the moving and storage to get your belongings back.  How this gets handle depends on the ethics of the company's that are involved; but the most important thing to remember is that you DO NOT have to leave anything behind. You can and should make arrangements to retrieve your belongings and if they do not cooperate, go back to the court and ask the court to order them to allow you access to get your belongings.

 

 

There are two types of stays - one is temporary stay of up to 40 days; and the other is a stay pending the outcome of an appeal.   In order to get a stay you have to go back to the judge who heard the unlawful detainer case.  This judge can issue a temporary stay up to 40 days and not be appealed by anyone for issuing the stay.

If the judge does issue the stay you will usually have to pay the daily rental rate right then and there, for whatever days he grants the stay.  So if the daily rate is $50 per day, and he grants you a two week stay (14 days) then you will have to pay (usually by cash or cashiers check) of $700 right then.  Most courts will issue a temporary stay (unless you have a particularly snarky judge) of a couple of weeks.  If the court denies the stay, you can do a writ of mandate to the appellate court asking them to step in; but if you do not demonstrate extreme hardship, that is usually a waste of time. (Especially in Los Angeles County).

The other stay is a stay pending the outcome of the appeal.  These are rarely granted, and if you are unable to show extreme hardship usually denied; but for appeal purposes it is always a good idea to ask for the stay so you can show the appellate court  you did everything in your power to show the trial court his ruling was incorrect. 

 If you are in Los Angeles Count, go here to the Sheriffs Court Case Summary.  Enter your case number along with your last name; it will present a listing of the activity on the case, including the date of the Notice to vacate and the date of the lock out.  

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