California: 5 days to file defense in UD and other ways they get you

Q: How do we stop an unlawful detainer when the law states that we can’t challenge title? Homeowners in the State of California should know that the Unlawful Detainer is a lawsuit filed for POSSESSION and that the Court does not or better put cannot rule on the matter of TITLE. This, time is of the essence in raising defense when the homeowner receives the Summons & Complaint from the agent albeit the law firm representing the mortgage servicer or lender. YOU will have only 5 days to raise defense in the UD Court IN WRITING. The cost in failing to respond within 5 days? A motion by the suing party for a Summary Judgement under a Notice of Entry by Default by the bank/servicer/law firm (collection agency) to EXECUTE “Writ of Possession” in cooperation with the Sheriff’s Office to force EVICTION usually within 15 days on the clock.
Fight to keep your home and be adequately prepared and learn all that you can to defend the validity of the foreclosure/trustee sale action from this website’s tools so you can win to stay in possession of your home. Any amount you wish to contribute to this website blog does not even compare to what you will gain if YOU can remain steadfast in your resolve and belief that it is a violation of your civil rights in this country for someone to strip you of title and ownership interest from the largest single most important lifetime investment- your family home.
If we have managed thus far to still stay inside our home after opposing 2 Sheriff eviction lock- out experiences (with lots if battle scars to show) I know YOU can too! The date is February 28, 2009. The date we re-financed our mortgage loan March 2006. It is with gratitude thanks to Neil and his courageous friends who have freely shared without cost to help us and others on this blog that we have been able to still stay and keep our home of 20 years.

A: Technically you are right. And readers would be well-advised to follow the requirements of statute in terms of objecting to sale.
The problem, as Judge Boyco and Judge Shack have pointed out  is that there is a vast inequality in terms of access to knowledge and the law that results in an equality of access to the courts, particularly in non-judicial settings. The failure to object to the sale, like the entry of a default judgment is subject to being set aside based upon excusable neglect and the showing of a meritorious defense.
The filing of an unlawful detainer does not stop, or in legal parlance, estop,  homeowners from bringing actions (lawsuits) against the Plaintiff/Petitioner in the UD. It also does not prevent the homeowner from claiming the Plaintiff/Petitioner procured the title by fraud. I believe in California this must be done in two different court jurisdictions and this is where the “pretender lender” bluffs their way through the process. Whether the homeowner lawsuit is filed in general jurisdiction or in Federal Court, the lower court should issue a stay of the UD because the transfer of title is not a judicial event. Hence res judicata does not apply. The filing of the UD is the first time that the parties are in court and the homeowner’s core defense is that the Petitioner is not the proper party to have title, much less file a UD.
The absence of the issuance of a stay order by the lower court, the court of general jurisdiction or the Federal or Bankruptcy Court is therefore in a non-judicial forum a violation of due process requirements in the 5th and 14th amendment of the U.S. Constitution. Failure to issue the stay denies the homeowner access to the courts to seek redress for what is essentially civil or  criminal theft. In fact, it is my belief that in these situations, the homeowner should file a police report alleging theft of the title to their real property in a scheme of economic fraud.

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23 Responses

  1. [...] California: 5 days to file defense in UD and other ways they get you …California: 5 days to file defense in UD and other ways they get you. Posted on March 1, 2009 by Neil Garfield. Q: How do we stop an unlawful detainer when the … [...]

  2. I have been fighting a UD and I filed bankrupcy and the attorney of the bank got the judge to give her the ok to continue the UD. I also have a lawsuit against freddie mac and US bank and their attorney removed my case from the superior court to the federal without notifying me. All I got was paperwork saying that I had a new case number at the federal court and the reason was because federal home loan mortgage corporation which is freddie mac are federal banks I really don’t know if that is legal or not what they did. I don’t have a attorney I have a perleagal helping me . What I need it to know is how can I consoladate both cases now that they are in separate courts?

  3. Pls, insane situation. Lost our house in non-judicial foreclosure (California) in March to trustee of our 300k 2nd Trust Deed (line of credit). Prior to trustee’s sale, we filed a civil suit for fraud/predatory lending and demurrer (?). Lost that and then also our UD defense last week.

    Our funding from the sale of our business is in escrow so we can’t access it yet. My dad lives with us and was on title with us. He has terminal cancer, my wife is disabled, we have 3 children and I’ve been unemployed since I sold my business, so we can’t afford to move or pay even pay rent to lender to stay.

    We’re truly desperate and in shock. There is a lot of equity in our house and can’t understand why trustee should be making out like a bandit here, instead of going to jail.

    Our attorney says my dad should immediately file bankruptcy to halt evicition, that an appeal and stay would be difficult to obtain and too costly. I’d be very grateful for your thoughts on this.

  4. Anita– if you have an attorney and you paid him a retainer—you better be screaming at him to do something fast!!

    You really only have 5 days after you are served with summons and complaint for UD. If something is not filed, the opposing side will get your home, get the writ and then the sheriff will evict you (usually within several weeks). You should do everything in your power (your attorney’s power) to NOT LET THEM get the writ.

    I’d be calling, paging, texting–EVEN JUST go to your attorneys office and demand some work.

    Disclaimer: I am not an attorney nor offering legal advice. I just am sharing my experience.

    Also, I don’t know all your particulars, but if you have a fraud case already filed, have you gotten an emergency TRO?

    Are both your cases in California superior court?

  5. I received a UD yesterday and I want to know what should I do bcz my Lawyer did not do anything after the 3 day notice to leave weeks ago bcz he is waitning for a result of another case he has and in the meantime I get this…. i have read on these entries that I only have 5 days before we file a motion in court.
    we were fighting this in litigation bcz of many violations made on our loan. I do not want to give this home up bcz this is our only habitation. What do we do?

  6. The only thing I would add is don’t be surprised if the Court tries to make you bring all your past due payments current and pay reasonable rental value while the case goes on as a condition to granting a motion for stay of the unlawful detainer proceedings (the Courts – unlimited Civil and UD court both refused to consolidate). I argued TILA rescission prevents the Court from requiring the payment of past monies claimed owed, but the judge refused to go there. This is a contingency to consider.

    Steve Vondran, Esq.
    Foreclosure & BK Lawyer
    Arizona / California
    Phone (877) 276-5084.

  7. Hello:

    My suggestion, if it is not too late, would be to find an attorney to assist you with everything. I am an attorney in Fresno, California. Having done this for almost a year, I can certainly tell you, if you want to put up a fight, the Banks are ready and armed to fight, so this cannot be won without some legal knowledge.

    If you are in the central valley and seek advice via a consultation, please feel free to give me a call.

    LAW OFFICES OF CATARINA M. BENITEZ
    2014 Tulare Street, Suite 400
    FRESNO, CA 93721
    Telephone: (559) 472-7337
    Facsimile: (559) 579-1100

  8. Cat
    I’m not an attorney, please consult one.

    I was told by an attorney who regularly posts on this site that it is not a good strategy to go to a trial in UD court.

    He suggested that I file the fraud/TILA complaint and consolidate the two. That is what I did. I did an ex-parte Motion to Consolidate after I filed the fraud/TILA etc. complaint.

    The ex-parte was with the judge in the UD case. He did consolidate. Keep in mind, this was in Calif. The UD was filed in limited civil and the fraud/TILA in the unlimited civil—but both within the Superior Court of Calif.

    You’d have to work with an attorney if you want to file your fraud/TILA in Federal Court. I would not be able to say anything about that process.

    Obviously, the timing has to work for you. If you don’t get your ex-parte hearing for Motion to Consolidate prior to UD trial….don’t know.

    Always consult an attorney. I am not providing legal advice, only my experience and opinion.

    If you go to ScribD, that is where I found a template for Motion to Consolidate.

  9. I have a question about Unlawful Detainers and Civil Complaints. I have a trial in the UD court scheduled for next week but was wondering if it’s too late to file a civil complaint and motion to consolidate the civil and UD actions. Any thoughts?

  10. Patrick–do a search online for Tim McCandless, ESQ. He is an attorney in California. Call him. He works specifically on foreclosures, morrtgage fraud etc. and he posts on this site. You need to call him right away.

  11. Patrick-you should seek an attorney pronto. I think the next step after 3 day notice to quit is that you will soon be served with a Summons & Complaint for Unlawful Detainer (lawsuit for eviction). Keep notes on how, when etc. you are served all these papers. Once you are served you have to respond very quickly with filing your legal papers. However, and I am not an attorney, but you should be filing your own Fraud/TILA violation case in either state court or federal court, if indeed you are a victim of mortgage fraud and/or TILA violations or other violations. Look on this site for ‘Attorneys Who Get It ‘ and there is a list there of attorneys by state. You need to get one right away. Avoid letting the Unlawful Detainer (eviction) court case go far. It will MOVE very fast. Once you are served UD, if you are in California, you only have 5 days to respond with your legal filing. You might be able to get the judge to combine your UD with the Fraud/TILA case you file. Also, have you considered filing bankruptcy? Call a bankruptcy attorney. Typically bankruptcy will put a stop to foreclosure process. Again, I am not an attorney and am not giving legal advice, but am explaining things I did in my case.

  12. Quick question for its friday and I may have to file something.. I lost the home approximately 2 weeks ago and have posession of it but not living in it.
    I intend to contest a number of issues that have merit.

    The son of the beneficary who got the house back served me papers by throwing them over the fence when I was walking away, he never looked at me just said your served..

    Letter is a 3 day Notice to Quit from a attorney threating the UD will be soon after..

    As I said I am contesting the validity of the auction itself amongest other things BUT WHAT should I file right now against 3 day Quit?????

  13. I have been reading a lot of good stuff.in your website. Lsteon to my story.
    my house was foreclosed in November. I got unlawfull detainer in Jan and got writ of position in March. and got notice of sherrif on my door. I ve filed the bkr ch.13 to stay of eviction. that was only bought me time 2 months. Now I extended to stay and pay for rent to the plaintiff. I do wamt to save this home and reverse the title.
    I field the fruad case but I have UD case as well. I asked the judge who issued the judgement to set aside the judgment and re enter the new judgement she denied it.
    I’m scare the sherrif will come to the door and evict me from the premises.

    My question how would I stop the sherrif.

    How I can make the judge to consolidate my UD with my big case. I field the Fruad case on June 24th. but the dame writ of position is killing me. Please advise. what should I do. to stay of eviction. please advise.
    I keep hiting the wall. this urgent sitution; thx

  14. UPDATE—small victory in California UD case. I am so thankful for this website and to both Neil Garfield and Tim McCandless.

    I was in court recently as the oppsing side had filed a motion for summary judgement in my UD case. I filed a counter motion for summary judgement but several days prior had filed my ‘fraud’ case against New Century Morgtgage & several other banks. I also filed
    a ‘motion to consolidate’ the UD case with the ‘fraud’ case.

    I went to my UD summary judgement hearing and it truly was a small miracle, the judge said she wanted to talk to me shortly. When she did, she said that my case was now all one–to be heard with the larger ‘fraud’ case and that their would be no further hearing on the UD case. There was no bond requirement.

    The opposing attorney was rather stunned.

    He also could not believe I was acting as my own attorney.

    The ‘fraud’ case has a date in August.

    I am still in my home.

    I am now filing a lis pendans and going to get it recorded.

    Angels are truly with us!!

    Thanks again to Neil and Tim!!

  15. The Arizona Supreme Court authorized a new set of civil procedures which apply to ‘Eviction Actions”; which are defined as forcible detainer and special detainer actions. These actions of course include a lenders attempt to remove a homeowner once a foreclosure sale is allegedly complete.

    I am not an attorney so there is the disclaimer.

    However, I have been involved in Pro Se litigation for nearly a year in Arizona. One of the things I set up at the beginning of my lawsuit was a subscribtion to West Publications for the Rules of Court.

    On Friday I received the (effective date) January 30, 2009 rules addendum.

    There is an entire NEW set of Civil Rules. The title of the rule is: “Rules of Procedure for Eviction Actions”, shortened in Rule 1 to “RPEA”. I do not yet know the history behind the rulemaking as I didn’t see this coming. The Arizona Supreme Court web site as a rulemaking forum wihch should have the historical dat behind the new rules.

    I just started reading the rules, which encompass 13 pages of 8 point type, dual paragraphs.

    I suggest that anyone with a UD/FE action on the horizon make sure they have a copy of the NEW Arizona Rules.

    Upon reading the new rules I was actually shocked (in a good way) to read RPEA 4(a). I’ll quote the actual verbiage from section 4(a):

    a. Due Diligence. Each party and attorney filing or appearing in an eviction action or defense shall exercise due diligence to ensure that the action has a good faith basis; that the relief sought is consistent with the applicable rental agreement or applicable law; and that all required notices have been properly served. Attorneys must exercise reasonable care that their pleadings are accurate and well-ground in fact and law.

    4(b) is a good faith requirement.

    4(c) is a section under which a party of attorney can be sanctioned for (a) or (b).

    While Rule 11 of the Arizona Rules of Civil Procedure require due diglgence in the filing of papers (generally) my opinion is Rule 11 is a rule hard to enforce. RPEA 4(a) seems to invoke a harsher set of rules for the party or attorney who simply wants to file boiler plate pleadings in a UD/FE action.

    I can see what is coming with Rule 4(a). Immediately upon filing a complaint the Defendant responds with a Rule 4(a) motion alleging that the Complaint is defective because their was no due diligence to ascertain the name of the real part in interest. Arizona Rules allow the Trustee to escape most liability for failure to conduct due diligence in the conduct of their non-judical foreclosure sales and subsequent filing of trustee deeds. Rule 4(a) looks a back door to unraveling a non-judicial foreclosure.

    When you read these NEW rules you get a sense of, well, at least I did, someone, somewhere finally understanding that the Forcible Detainer actions filed before Commissioners have become a mill and, in my opinion, rarely if ever give rise to due process for the Defendant(s).

    There are a few gotchas though; most notably Rule 5(g) which refers to failure to obtain service. If the Defendant ‘appears’ the rule construes a waiver of any objections of service unless the Defendant asserts the ground at the initial hearing or in a ‘previously’ filed written statement. Given that the usual time frame are shortened in a UD/FE action, it would seem prudent to lay out a plan of attack the moment the Defendant knows an action has to is about to be filed.

    These new Eviction Rules are complex and written by both sides of the industry. I’ am still digesting the Rules but I can sure forecast and rightly hope that at least in Arizona will may finally see a shift of the power away from the UD/FE lawyers.

    Hopefully a real lawyer will weigh in with a concise synopsis of these long overdue rule changes.

  16. To Mr. McCandless–do I already have to have another case filed in superior court before doing the motion to consolidate?

    I can do that this week.

    Thx.

  17. As to the Summary Judgment it can be on calender in as little as 5 days it will put these eviction mills on their heels. They may not be able to respond and it will put you on the offense and the lender on the defense. Combine this with a motion to consolidate to Superior Court. The eviction Judge may order the case consolidated with the Superior case with no bond. Hope this helps

  18. Message for Mr. McCandless
    If I file a Motion for Summary Judgement in the UD action by the foreclosing entity, what does that do for time….will that hearing be scheduled quickly?

    Should I ask for any discovery at all?
    Like produce the note?

    Appreciate your feedback. Thx

  19. Well, and I kind of expected it, I lost on the demurer and I hurried yesterday to file the response for UD complaint. In the past no opposing attorney was present but at demurer a subsitute guy from my area showed up to sit in for the opposing attorney firm from San Diego.

    At what point did you win on your UD? once you filed response and went to trial? did you ask for discovery?

    Like to learn from you. What bank were you dealing with on foreclosure?

    Did you get the foreclosure set aside?
    Title back in your name?

    Thx

  20. Hi Abby would be interested in your outcome I just won on UD in California because lender was a no show. However a poor forum from our side of fighting the foreclosure.

  21. Correction–after the demurrer hearing, if you lose, you MUST file by the NEXT DAY, the UD Response!!

    I barely made it back to the courthouse to file it today.

    So, if you are going to file the Motion to Quash after you receive Summons/Complaint you must do that within 5 days.

    If you have filed a Demurrer and lose, then you have to file the UD response the very next day!!

  22. In today’s eviction process one needs to avoid trial at all costs. The aforementioned demur is a good start. But in order to get the courts attention one should file a summary judgment motion on the issue of “dully perfected Trustee Sale under 2924″ Normally the courts in California are reluctant to here issues about title but because the Plaintiff must plead and prove these issues its the only shot you have.

    The motion should include a declaration that the lender has not complied with Civil Code 2923.5 and as such 2924 has not been dully perfected. A separate statement of undisputed issues and a short Point and authority page citing 2923.5 and 2924. There will be no cases because 2923.5 was only enacted Sept 6,2008.

    When speaking with the presiding Judge in San Jose yesterday I informed him in argument in a motion to quash service that we could win the trial if given a chance to go to trial. He quoted the normal rule that title could not be argued. I told him he was correct (I always say That) but since the change in the law 2923.5 enacted Sept 6,2008 the burden shifts to the plaintiff to prove “dully Perfected title” he said I might be right but we will have to take it up (to the Appellate court to find out)

  23. For those facing UD actions in California-you need to take action right away to protect yourself from eviction.

    I AM NOT AN ATTORNEY, but one who is dealing with this process now.

    1st. once you get the ‘Notice to Quit’ start writing your
    ‘Motion to Quash’ but keep notes & all details of the service or attempted service of the actual UD or Unlawful Detainer Complaint.

    You can research what a Motion to Quash means online.

    You must file the Motion to Quash within 5 days of being served with the Summons and UD Complaint.

    Keep all papers, includng envelopes.

    You will need to go to the local California Superior Courthouse to file the Motion to Quash. If you cannot pay monies to file, then complete the courts ‘Waiver of court fees’….you can find this online…search or look for it at the California Superior Court forms website.

    If you have a financial hardship, the clerk will file the ‘Motion to Quash’ but then may schedule a follow on financial hearing.

    Otherwise, bring some cash for fees.

    You will need to bring at least 3 copies of all documents you will file–one or two stay with court and the other will be yours. You still need to make copies for the other party you will be serving, but that copy needs to have the filing clerk’s date/time stamp on it.

    Then you have to somehow get the Motion to Quash served on the other party–the one that foreclosed on you. You can do this easily by going to a UPS store, sending it overnight and bring with you the courts form for ‘Proof of Service’…you can get the UPS person to sign it—this Proof of Service has to be done by someone other than you and over the age 18.

    Keep copies of all paperwork. Start a binder.

    You need to make a copy of the ‘Proof of Service’ for you files and then you need to get the original back to the court clerk.

    You may get a hearing date for the ‘Motion to Quash’ and you need to appear. In my case, the judge ruled in my favor and they had to re-serve me all over.

    My next filing was a ‘demurrer’ to the complaint.

    I have a hearing on this today.

    If at all possible, get an attorney. The above is just my experience with this process and some tips.

    Depending on what happens today at my demurrer hearing, I may need to file a ‘answer’ or ‘response’ to the original complaint. I am working on this docuement now. This document also has to be filed within 5 days of today. The courts count Sat & Sunday as days!!

    Also to note, once I was re-served with the UD complaint, I had to file the demurrer within 5 days.

    Pay attention to the filing deadlines.

    I am gathering more data and plan to file my complaint in federal court.

    Good Luck & Keep Fighting for your home!

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