MOST POPULAR ARTICLES GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE Submitted on 2011/08/24 at 9:08 pm Norwest and Alt-A Land Title & Fidelity National Insurance morpted into Microsoft open platform on CLOUD and portals now through which new GMAC Mortgage & State of Maryland in the pass-thru-agency state portal funded to access FIS, FNF, LPS, DOCX, TDSFinancial eLynx, MERS, etc. http://livinglies.wordpress.com/administrative/20 … Read More
Month: August 2011
Bombshell Admission of Failed Securitization Process in American Home Mortgage Servicing/LPS Lawsuit (via Livinglies's Weblog)
KISS: KEEP IT SIMPLE STUPID from Garfield
Finality versus good and evil. In the battlefield it isn’t about good and evil. It is about winner and losers. In military battles around the world many battles have been one by the worst tyrants imaginable.
Just because you are right, just because the banks did bad things, just because they have no right to do what they are doing, doesn’t mean you will win. You might if you do it right, but you are up against a superior army with a dubious judge looking on thinking that this deadbeat borrower wants to get out of paying.
The court system is there to mediate disputes and bring them to a conclusion. Once a matter is decided they don’t want it to be easy to reopen a bankruptcy or issues that have already been litigated. The court presumably wants justice to prevail, but it also wants to end the dispute for better or for worse.
Otherwise NOTHING would end. Everyone who lost would come in with some excuse to have another trial. So you need to show fundamental error, gross injustice or an error that causes more problems that it solves.
These are the same issues BEFORE the matter is decided in court. Foreclosures are viewed as a clerical act or ministerial act. The outcome is generally viewed as inevitable.
And where the homeowner already admits the loan exists (a mistake), that the lien is exists and was properly filed and executed (a mistake) and admits that he didn’t make payments — he is admitting something he doesn’t even know is true — that there were payments due and he didn’t make them, which by definition puts him in default.
It’s not true that the homeowner would even know if the payment is due because the banks refuse to provide any accounting on the third party payments from bailout, insurance CDS, and credit enhancement.
That’s why you need reports on title, securitization, forensic reviews for TILA compliance and loan level accounting. If the Judges stuck to the law, they would require the proof first from the banks, but they don’t. They put the burden on the borrowers —who are the only ones who have the least information and the least access to information — to essentially make the case for the banks and then disprove it. The borrowers are litigating against themselves.
In the battlefield it isn’t about good and evil, it is about winners and losers. Name calling and vague accusations won’t cut it.
Sure you want to use the words surrogate signing, robo-signing, forgery, fabrication and misrepresentation. You also want to show that the court’s action would or did cloud title in a way that cannot be repaired without a decision on the question of whether the lien was perfected and whether the banks should be able to say they transferred bad loans to investors who don’t want them — just so they can foreclose.
But you need some proffers of real evidence — reports, exhibits and opinions from experts that will show that there is a real problem here and that this case has not been heard on the merits because of an unfair presumption: the presumption is that just because a bank’s lawyer says it in court, it must be true.
Check with the notary licensing boards, and see if the notaries on their documents have been disciplined and if not, file a grievance if you have grounds. Once you have that, maybe you have a grievance against the lawyers. After that maybe you have a lawsuit against the banks and their lawyers.
But the primary way to control the narrative or at least trip up the narrative of the banks is to object on the basis that counsel for the bank is referring to things not in the record. That is simple and the judge can understand that.
Don’t rely on name-calling, rely on the simplest legal requirements that you can find that have been violated. Was the lien perfected?
If the record shows that others were involved in the original transaction with the borrowers at the inception of the deal, then you might be able to show that there were only nominees instead of real parties in interest named on the note and mortgage.
Without disclosure of the principal, the lien is not perfected because the world doesn’t know who to go to for a satisfaction of that lien. If you know the other parties involved were part of a securitization scheme, you should say that — these parties can only be claiming an interest by virtue of a pooling and servicing agreement. And then make the point that they are only now trying to transfer what they are calling a bad loan into the pool that the investors bought — which is expressly prohibited for multiple reasons in the PSA.
This is impersonation of the investor because the investors don’t want to come forward and get countersued for the bad and illegal lending practices that were used in getting the borrower’s signature.
Point out that the auction of the property was improperly conducted where you can show that to be the case. Nearly all of the 5 million foreclosures were allowed to be conducted with a single bid from a non-creditor.
If you are not a creditor you must bid cash, put up a portion before you bid, and then pay the balance usually within 24-72 hours.
But instead they pretended to be the creditor when their own documents show they were supposed to be representing the investors who were not part of the lawsuit nor the judgment.
SO they didn’t pay cash and they didn’t tender the note. THEY PAID NOTHING. In Florida the original note must actually be filed with the court to make sure that the matter is actually concluded.
There is a whole ripe area of inquiry of inspecting the so-called original notes and bringing to the attention the fraud upon the court in submitting a false original. It invalidates the sale, by operation of law.
MANDELMAN MATTERS: DEADBEAT BORROWERS AND THIEVES WHO CALL THEM THAT
“If you’re allowed to foreclose and kick someone out of his or her home without being the party that either owns the loan or represents the person who owns the loan… if you can ignore those laws, why can’t you ignore other laws too? Which laws apply, when one of the parties didn’t make his or her payments?”
Home » Today’s New… “But, You Didn’t Make Your Payment” Exemption to the Law
Today’s New… “But, You Didn’t Make Your Payment” Exemption to the Law
I’m not a lawyer, so let’s be very clear about that, but I’m about to tell you how the law has always worked in this country, as far as I have understood it.
If you came to repossess my car, then you were required to be the person or entity that held the pink slip to my car, or you had to be working for the person or entity that held the pink slip to my car. If you were not the person or entity holding my pink slip, then you couldn’t come repossess my car.
In fact, if you came and repossessed my car but were NOT the person or entity holding my pink slip, then we had a phrase to describe that occurrence as well … you were STEALING MY CAR.
Pretty straightforward, right? I don’t even think you need to finish law school if that’s the extent to which you want to understand the law. And don’t let any of the attorneys that may be reading this around you try to make it more complicated, because it’s not. It is that simple… you can’t repossess someone’s car unless you’re the person or entity that holds the pink slip, or title, to that car… or are working for that person or entity, of course.
That’s the same way it’s supposed to work where houses are concerned. If you don’t make your mortgage payments, that doesn’t mean that everyone in the country is allowed to throw you out of your home… only the person or entity that holds your mortgage is supposed to be able to do that, right? Of course that’s right, silly. And don’t play semantics with me, that’s the deal.
But in this country today, there appears to be a new exemption to quite a few laws… it’s called the “But you didn’t make your mortgage payments” exemption, and when it comes into play, nothing else seems to much matter… you just lose.
Like, what if you don’t make your mortgage payments and the entity that comes to evict you from your home is one that you’ve never heard of before. And they have no proof whatsoever that they own your loan or represent the entity that owns your loan. Well, in general it’s tough cheese. The judge just says, “But you didn’t make your mortgage payments,” and that’s the end of that. And most everyone seems to be in agreement with this line of thinking.
You say, “But, your Honor… they’ve broken a dozen laws here… important laws… laws governing the transfer of property rights upon which the country has been built.” And the judge just gets annoyed saying, “But you didn’t make your mortgage payments,” and that’s the end of that. It’s almost like a get out of jail free card.
So, you say, “But your Honor, they’ve forged the documents, falsified the records, committed fraud on your court.” But he says it doesn’t matter… you didn’t make your mortgage payments… you have no rights and the party that’s foreclosing is now exempt from all of the laws that might otherwise apply. In fact, those laws are now reduced to being mere “technicalities.” And no one cares about technicalities as compared to you not making your mortgage payments.
So, I’m just wondering… don’t you think this sets kind of a dangerous precedent?
Let’s say that you’re not making your mortgage payments. And one night after dinner, the doorbell rings and you answer the door and it’s a representative of your mortgage servicer… and he punches you right in the face and then proceeds to beat the crap out of you.
And you end up in court. And the judge says, “But you didn’t make your mortgage payments, “ and dismisses the case. And you say, “But, your Honor… my mortgage servicer beat the crap out of me and that’s against the law, in fact there are all sorts of laws broken by him beating the crap out of me.” But the judge just replies, “But you didn’t make your mortgage payments, “ and that’s the end of that.
Do you think I’m being ridiculous? Why? What’s the difference between ignoring one set of laws and another set of laws? If you’re allowed to foreclose and kick someone out of his or her home without being the party that either owns the loan or represents the person who owns the loan… if you can ignore those laws, why can’t you ignore other laws too? Which laws apply, when one of the parties didn’t make his or her payments?
You see, I think the reason we have laws about the transfer of property is because it was important that someone not lose their property without those laws being followed. Whether one made their payments or not, wasn’t the point… the point was simply that the transfer of property rights has always been seen as a pretty big deal under the law, as far as I can tell.
I think the reason we let things get a little loose concerning foreclosure is that we trusted the bankers who were foreclose. In California, and all of the non-judicial foreclosure states, as far as I know, you don’t need to prove to the court that you hold the title to someone’s home in order to foreclose, and I’m pretty sure that the reason that was okay to our lawmakers was that they trusted the bankers… and they never envisioned not trusting them in that regard.
The problem is that today there is an abundance of evidence that says we cannot trust our bankers… quite often they lie, commit fraud on the courts, and in general are more than willing and able to fabricate and falsify whatever is required to foreclose on someone’s home… period. They don’t care at all… and they don’t get in trouble for it either, which I find the most disturbing part of the whole thing.
So, since its become clear that bankers lie, and cannot be trusted, we’re going to need to bring back the old laws about having to prove you’re the right party to be foreclosing on someone’s home before you’re allowed to do so. Several states have already done this… Hawaii and Arkansas, most recently. Arizona tried to pass such a law, but the banking lobby got to them and killed them both.
California had a bill that would have come close, but the banking lobby killed it in committee, for heaven’s sake. It was too dangerous to even debate in the legislature.
Some have said to me, “But Mandelman… the banks need to be able to foreclose or repossess when people don’t make their house or car payments.” And I reply… “No one is debating that point. Of course they can foreclose when payments are not made. If they’re the party who holds the beneficial interest, as the lawyers says, in the loan. If they lost the pink slip, they’ll have to correct that problem before they can come take back my car.”
It’s no different than if my car gets impounded for being parked in the wrong spot. When I show up to get it out of impound, I better have the registration, right? If I don’t, what am I told by the man at the impound lot? No ticket, no laundry, right?
We have laws about the transfer of property in this country and there are reasons for these laws. None of these laws say anything about banks only being required to follow them when someone is current on his or her payments.
Let’s stop making this more complicated than it needs to be… if the trust can prove that it does hold the note, that the note was properly assigned to that trust, that the note was endorsed… or whatever was supposed to happen according to the laws and rules, did in fact happen, then fine… foreclose away. But if that’s not the case, banker people… then you have to fix it… before you’re allowed to foreclose.
Sorry, and I know how unfair you think this is, but forging the documents isn’t an okay answer to this problem. Like if you want to repossess my car and you lost the pink slip, the acceptable answer is not to fake one on your laser printer and get Linda Green to sign it, got it? That’s not how we fix things in this country, and it doesn’t matter who made payments on time and who didn’t.
If that’s inconvenient, then so be it. And I have to think it’s a damn sight less inconvenient than what’s going on today, and if it’s even more inconvenient than that, then the bankers in this country have really screwed up bad, and we should all be shown what they’ve done.
I ran all of this by a lawyer friend of mine and here is the language from the Deed of Trust (page 23):
“Reconveyance. Upon payment of all sums secured by this security instrument, lender shall request trustee to reconvey the property and shall surrender this security instrument and all notes evidencing debt secured by this security instrument to trustee. Trustee shall reconvey the property without warranty to the person or persons legally entitled to it.”
So, apparently this language appears in EVERY Deed of Trust, including yours, your Honor. So when you want your pink slip/title/note in order to have your mortgage burning party, you may be disappointed to find that no one seems to have it.
And what about title insurance in the future? Will we be able to get it as a result of this whole mess being allowed to go on unchecked? I don’t think anyone really knows the answer to that question.
Lastly, the question always seems to come around to one of damages. How did the note not being properly endorsed to the trust and the trust being permitted to foreclosing anyway damage the homeowner? Again, it’s quite simple, really…
If someone is allowed to repossess my car even though that entity doesn’t hold my pink slip or work for the entity that holds my pink slip, then whoever repossessed my car STOLE IT. And that, by itself, sounds pretty damaging.
But what if someone shows up later and says they have the pink slip? What then? Will they be understanding and say, “Oh, someone else got it. No problem, we’re sorry to have bothered you. We’ll follow up with them.”
Somehow I doubt that will happen that way. And there are several reasons I’m not at all sure that this won’t be the case in the years to come. For one thing, both Taylor Bean & Whittaker and New Century Mortgage were found to have sold mortgages to more than one person at the same time, and others have admitted that it happens all the time.
And for another, I know of several homeowners who have filed quiet title actions and are still waiting for someone to show up and say they own the loan… in one case that’s recently been brought to my attention, it’s been almost a year and still no one has shown up. Does that mean no one will? Or will someone show up years from now? (Here’s the case, click it and you’ll see.)
Harvey v Garbett, Quiet Title Case in Draper Utah
I don’t really know, but wouldn’t it just be easier for the entity foreclosing to be the entity that actually holds the beneficial interest in the loan? You know, just as the law has always intended?
There’s another reason that it makes sense to require the right entity to foreclose… because the right entity, the entity that does in fact hold the beneficial interest in the loan would be much more likely to want to modify the loan as opposed to foreclosing on it, in instances where the payments have not been made.
You see, servicers chose to foreclose because it’s in their own best interests to foreclose, but what about the investor’s best interests? After all the investor is who put up the money in the first place, so what about the investor’s best interests?
Surely the investor would rather have a modified loan, especially in instances where the home is terribly underwater and by foreclosing the investor will realize an enormous loss and then not be able to sell it… perhaps for several years… wouldn’t you think that investor would prefer to modify the loan and get payments again?
Louis Ranieri, who is often referred to as the father of mortgage-backed securities had the following to say about foreclosing:
“The cardinal principle in the mortgage crisis is a very old one. You are almost always better off restructuring a loan in a crisis with a borrower than going to a foreclosure.
In the past that was never at issue because the loan was always in the hands of someone acting as a fiduciary. The bank, or someone like a bank owned them, and they always exercised their best judgment and their interest. The problem now with the size of securitization and so many loans are not in the hands of a portfolio lender but in a security where structurally nobody is acting as the fiduciary.”
Well, what do you know about that? So, it seems there are lots of good reasons that we should make sure that the entity foreclosing is the entity who does in fact own the loan, or at least work for the entity that owns the loan.
So, why are we making this so damn difficult? And why is it such a big problem for a bank-servicer-whatever to show up and actually prove that the trust actually holds the note in question? They don’t really expect us to buy into that whole, “But we lost them, your Honor. All of them, your Honor. It was a mass misplacement, your Honor.”
I mean, come on now… are we really supposed to believe that ALL of the major banks lost ALL of the notes and ALL at the same time? Seriously? I know 14 year-old boys that could tell you that such a story is simply not believable.
It’s time to come clean banker-people. Your story stinks to high heaven and the homeowners, lawyers, investors, and even the government investigators are all getting closer to uncovering the truth every day.
And until the banks start telling the truth, or modifying loans in the best interests of the investors and homeowners like they are supposed to…
… how about we the people pass a bill that requires the entity foreclosing to prove they are the entity that owns the loan… because it’s clear… abundantly clear… that we certainly can’t trust the trustee any more.
$1.2 Trillion in Secret Additional Bailout for Banks with No Collateral and No Commitments (via Livinglies's Weblog)
GOING AFTER THE NOTARY, STEP BY STEP (via Livinglies's Weblog)
WALLS CLOSING IN ON LAW FIRMS AND SUBSTITUTE TRUSTEES AS FAKED, FORGED DOCUMENTS SURFACE IN ABUNDANCE (via Livinglies's Weblog)
Attorney General Kamala D. Harris Sues Law Firms Engaged in National “Mass Joinder” Mortgage Fraud
SAN FRANCISCO — Attorney General Kamala D. Harris today announced that the California Department of Justice, in conjunction with the State Bar of California, has sued multiple entities accused of fraudulently taking millions of dollars from thousands of homeowners who were led to believe they would receive relief on their mortgages.
Attorney General Harris sued Philip Kramer, the Law Offices of Kramer & Kaslow, two other law firms, three other lawyers, and 14 other defendants who are accused of working together to defraud homeowners across the country through the deceptive marketing of “mass joinder” lawsuits. “Mass joinder” lawsuits are lawsuits with hundreds, or more, individually named plaintiffs. This is the first consumer action by the Attorney General’s Mortgage Fraud Strike Force.
Kramer’s firm and other defendants were placed into receivership on Monday, Aug. 15. The legal actions were designed to shut down a scheme operated by attorneys and their marketing partners, in which defendants used false and misleading representations to induce thousands of homeowners into joining the mass joinder lawsuits against their mortgage lenders. Defendants also had their assets seized and were enjoined from continuing their operations. Nineteen DOJ special agents participated as the firms were taken over Wednesday, Aug. 17, along with 42 agents and other personnel from HUD’s Office of Inspector General, the California State Bar, and the Office of Receiver Thomas McNamara at 14 locations in Los Angeles and Orange Counties. Sixteen bank accounts were seized.
“The defendants in this case fraudulently promised to win prompt mortgage relief for millions of vulnerable homeowners across the country,” said Attorney General Harris. “Innocent people, already battered by the housing crisis, were targeted for fraud in their moment of distress.”
“The number of lawyers who have tried to take advantage of distressed homeowners in these tough economic times is nothing short of shocking,” said State Bar President William Hebert. “By taking over the practices of four attorneys accused of fraudulent marketing practices, the State Bar can put a stop to their deplorable conduct as part of our ongoing effort to protect the public.”
It is believed that at least two million pieces of mail were sent out by defendants to victims in at least 17 states. Defendants’ revenue from this scam is estimated to be in the millions of dollars.
As alleged in the lawsuit, defendants preyed on desperate homeowners facing foreclosure by selling them participation as plaintiffs in mass joinder lawsuits against mortgage lenders. Defendants deceptively led homeowners to believe that by joining these lawsuits, they would stop pending foreclosures, reduce their loan balances or interest rates, obtain money damages, and even receive title to their homes free and clear of their existing mortgage. Defendants charged homeowners retainer fees of up to $10,000 to join as plaintiffs to a mass joinder lawsuit against their lender or loan servicer.
Consumers who paid to join the mass joinder lawsuits were frequently unable to receive answers to simple questions, such as whether they had been added to the lawsuit, or even to establish contact with defendants. Some consumers lost their homes shortly after paying the retainer fees demanded by defendants.
This mass joinder scam began with deceptive mass mailers, the lawsuit alleges. Some mailers, designed to appear as official settlement notices or government documents, informed homeowners that they were potential plaintiffs in a “national litigation settlement” against their lender. No settlements existed and in many cases no lawsuit had even been filed. Defendants also advertised through their web sites.
When consumers contacted the defendants, they were given legal advice by sales agents, not attorneys, who made additional deceptive statements and provided (often inaccurate) legal advice about the supposedly “likely” results of joining the lawsuits. Defendants unlawfully paid commissions to their sales representatives on a per client sign-up basis, a practice known as “running and capping.”
Defendants’ alleged misconduct violates the following laws:
-False advertising, in violation of section 17500 of the Business and Professions Code
-Unfair, fraudulent and unlawful business practices, in violation of section 17200 of the Business and Professions Code
-Unlawful running and capping, in violation of section 6152, subdivision (a) of the Business and Professions Code (i.e., a lawyer unlawfully paying a non-lawyer to solicit or procure business)
-Improper fee splitting (defendants unlawfully splitting legal fees with non-attorneys)
-Failing to register with the Department of Justice as a telephonic seller.
Homeowners who have paid to be added to one of the lawsuits should contact the State Bar if they feel they may be victims of this scam. They can also contact a HUD-certified housing counselor for general mortgage related assistance.
The Department of Justice has seized the practices of the following non-attorney defendants:
Attorneys Processing Center, LLC; Data Management, LLC; Gary DiGirolamo; Bill Stephenson; Mitigation Professionals, LLC; Glen Reneau; Pate Marier & Associates, Inc.; James Pate; Ryan Marier; Home Retention Division; Michael Tapia; Lewis Marketing Corp.; Clarence Butt; and Thomas Phanco.
The State Bar has seized the practices and attorney accounts of the attorney defendants:
The Law Offices of Kramer & Kaslow; Philip Kramer, Esq; Mitchell J. Stein & Associates; Mitchell Stein, Esq.; Christopher Van Son, Esq.; Mesa Law Group Corp.; and Paul Petersen, Esq.
Attorney General Harris is challenging the defendants’ alleged misconduct in marketing their mass joinder lawsuits; her office takes no position as to the legal merits of any claims asserted in the mass joinder lawsuits filed by defendants.
Victims in the following states are known to have received these mailers, or signed on to join the case. This is a preliminary list that may be updated:
Alaska, Arizona, California, Colorado, Connecticut, Florida, Hawaii, Maryland, Massachusetts, Michigan, Missouri, Nevada, New Jersey, New York, Ohio, Texas, Washington
The complaint, temporary restraining order, examples of marketing documents and photos of the enforcement action are available with the electronic version of this release at http://oag.ca.gov/news.
NY POST: 92% —BANKS STILL FORECLOSING WITHOUT ANY RIGHT (via Livinglies's Weblog)
Should Borrower File Eviction Against Bank? (via Livinglies's Weblog)
Gomes and the U.S. Supreme court some body had better help these attorneys argue and brief the case
Wednesday, August 17th, 2011, 2:49 pm
A controversial case challenging the ability of Mortgage Electronic Registration Systems to foreclose on a California man was filed with the Supreme Court Monday, making it the first major MERS case to reach the nation’s highest court.
If the Supreme Court agrees to hear Gomes v. Countrywide, Gomes’ attorney, Ehud Gersten, says the court will have to decide whether a lower court stripped his client, Jose Gomes, of due process by allowing MERS to foreclose without ensuring the registry had the noteholder’s authority to foreclose.
“I believe this to be the first case in the country to take MERS to our Supreme Court,” Gersten told HousingWire. His claim could not be immediately verified.
“Ultimately, what this case is saying is if you are going to be taking someone’s home away from them, do you have the proof or the right to do so?” Gersten said. “If the Supreme Court starts to question MERS, and its business structure, it is going to have an effect on every MERS case in the country.”
MERS, the electronic registry at the center of the foreclosure crisis, has been under fire nationwide as foreclosure attorneys purport the firm, and its parent company Merscorp Inc., illegally foreclosed on properties.
Gersten, meanwhile, said MERS has a brief period of time to respond before the Supreme Court decides whether it will accept the case (click here for the filing).
Attorneys familiar with the Gomes case are not optimistic about its chances of being heard by the Supreme Court.
“While recent statistics show that the Supreme Court takes on average less than 3% of cases on certiorari, it takes even a smaller percentage of those advanced by private litigants, as opposed to the government,” said Patton Boggs attorney Anthony Laura. “Also it takes fewer cases out of the state court system than it does out of the federal Courts of Appeals.”
“So, the likelihood that this case will be taken is slim indeed,” Laura adds. “I believe those slim odds are even slimmer because the argument Gomes is making to the U.S. Supreme Court is one he did not previously raise.”
Laura said that, as a premise for invoking the jurisdiction of the Supreme Court, Gomes claims that the court below abridged his 14th Amendment rights.
“My recollection is that Gomes never made a Constitutional argument below, neither in the California Court of Appeals nor in the petition for review to the California Supreme Court,” he said. “In my view, the U.S. Supreme Court will look skeptically on his just raising that argument now.”
The original plaintiff, Jose Gomes, appealed to the nation’s highest court after California’s Supreme Court decided not to review the 4th Appellate District Court of California’s decision in favor of MERS.
Gomes’ petition says he’s challenging the foreclosure because MERS “did not have the current noteholder’s authority to foreclose.”
Gersten argues his client “was entitled to proof that the loan servicer, trustee or an entity such as MERS, either named in the deed of trust or acting through assignments of interest, had legal authority on behalf of the promissory note’s current holder to foreclose.”
The 4th Appellate District Court’s decision, which Gomes wants overturned, held MERS had the authority to initiate a foreclosure on Gomes because the deed of trust “explicitly provided MERS with the authority to do so,” according to court records.
The state appellate court also ruled in favor of MERS after finding the deed of trust contained no language to suggest the “lender or its successors and assigns must provide Gomes with an assurance that MERS is authorized to proceed with a foreclosure,” according to court records.
MERS chose not to comment on the case, but a spokeswoman said the company is aware of the filing with the Supreme Court.
California man wants foreclosures deemed unconstitutional in the state
by KERRI PANCHUK
Proposed Illinois Legislation Would Freeze Evictions for Four Months
California AG Wants Pay Option ARM Answers
Does the Senate’s housing bill encourage foreclosures?
California Law Freezes Foreclosures, Burns Servicers
Short Sales Cost Lenders $310m More Than Necessary, CoreLogic Study Finds
Thursday, August 4th, 2011, 7:31 am
A California man is on a mission to end foreclosures across his state, claiming an outright ban on the practice would force banks to help distressed borrowers.
In documents filed with California’s secretary of state, Sacramento resident David Benson said he’s trying to gain enough signatures – 807,615 to be exact – to get his foreclosure ban considered by voters across the state.
Benson wants to amend the California constitution, making homeownership a fundamental right.
His plan would require lenders to assist borrowers unable to pay for their homes due to financial distress and illness.
It also would force lenders to reduce a loan’s principal amount to reflect declines in property value that go beyond 10%.
Benson’s proposal says any “loan issued for and secured by a home or property by any lending institutions, loan servicers, mortgagee, trustees and beneficiaries doing business in the state of California, shall be able to be refinanced without credit review or penalty at minimum cost, within 45 days of being requested.”
That provision would automatically apply if a borrower has maintained the mortgage for at least three years.
Anthony Laura, an attorney at Patton Boggs who reviewed the proposal, said the amendment “would have the opposite effect of diminishing, not enhancing, homeownership in California.”
“While homeownership may be part of what many consider to be the American Dream, I have a hard time conceiving it as a constitutional right. Should this proposed amendment make it on the ballot and ultimately pass, it would only serve to discourage lenders from making mortgage loans in California.”
Laura said without those mortgages, few people could afford homes.
Write to Kerri Panchuk.
JUDGES: ASSUME THE BORROWER IS WRONG
So you have denied the claims of the pretenders and put that in issue. You have even alleged fraud, forgery and fabrication and the catch-word “robosigning”. But the Judge, alleging that he did not want to “make new law” (which wasn’t true) or allegedly because he didn’t want to start an avalanche of litigation interfering with judicial economy (and therefore allowing fraud and theft on the largest scale ever known to human history) has not only denied your claims and motions, but refused to even put the matter at issue, thus enabling you to at least use discovery to prove your point.
So the pretenders have their way: no evidence has been introduced into the record. You have proffered, they have proffered, but somehow their proffer means something more than your proffer even though no proffer is evidence.
Attorneys recognize this as low hanging fruit on appeal, where the trial judge is going to get the case back on remand with instructions to listen to the evidence and allow each side to produce real evidence, not proffers from counsel, and allow each side to conduct discovery. It’s not guaranteed but it is very likely. And the pretenders know that if it ever gets down to real evidence as opposed to arguments of counsel, they are dead in the water, subject to sanctions and liability for slander of title and other claims.
So they have come up with this strategy of setting supersedeas bond higher and higher so that the order appealed from goes into effect and they are able to kick the can down the road with a foreclosure sale, more transfers etc in the title chain, thus enabling them to argue the deed is done and the “former” homeowner must be relegated to only claiming damages, not the home itself. People can be kicked out by eviction proceedings that typically are conducted in courts of limited jurisdiction where in most states you are not allowed to even allege that the title is not real or that it was illegally obtained.
Initially supersedeas bond was set at levels that could be met by homeowners — sometimes as little as $500 or a monthly amount equal to a small fraction of the former monthly payment. Now, Judges who are heavily influenced by banks and large law firms, especially chief Judges who stick their noses into cases not assigned to them, are making sure that the case does NOT go to jury trial and essentially influencing the presiding Judge ex parte, to set a high supersedeas bond thus preventing the homeowner from obtaining a stay of execution on the eviction or the final judgment regarding title.
Of course it is wrong. But it is happening. You counter this by (1) making the record on appeal as to the merits of the appeal (2) adding to the record actual affidavits and testimony as to value, rental value etc. and (3) of course demanding and evidential hearing on the proper amount of the bond. Here you want to search out and produce the bond set in similar cases in the county in which your case is pending. Make sure you have a court reporter and a transcript on appeal and that the record on appeal is complete. It is not uncommon for certain documents to get “lost” or allegedly not “introduced” so when the appellate court gets it you can be met with the question of “what document?”
The other reason they are increasing supersedeas bond is because of a misconception by many pro se litigants and even some attorneys. They have the impression that the appeal is over if the bond is NOT posted with the clerk. And they have the impression that they can’t challenge the amount of bond set, or even go to the appellate court just on that issue and ask the appellate court to set bond — something they might not do but when they remand it, it is usually with instructions to the trial judge to hear evidence on the relevant issues — again something the pretenders don’t want.
Supersedeas bond ONLY applies to execution of the order or judgment that you are appealing. You can AND should continue with the appeal and if you win, the Judgment might be overturned — which means by operation of law you probably get your house back.
All these things are technical matters. Listening to other pro se litigants or even relying upon this other sites intended to help you is neither wise nor helpful. Before you act or fail to act, you should be in close contact with an attorney licensed in the jurisdiction in which your property is located. Local rules can sometimes spell the difference between the life or death of your case.
SAY NO TO LENDERS FRAUD!
Contact Us: MortgageReductionLaw.com
Dear Homeowner,
It’s been widely reported around the country, via internet, blogs and newspapers, how the lenders used the foreclosure mills and other legal ways, to fabricate fraudulent documents to record in the county recorder offices and pretend they have legal standing to initiate the foreclosure procedure.
Neil Garfield in his blog http://www.livinglies.com, The Huffington Post, The New York Times, Steve Vondran in his website http://www.foreclosuredefenseresourcecenter.com, Tim McCandless in his blog https://timothymccandless.wordpress.com and many others have been advocating for the homeowners trying to raise awareness in the courts so that justice can be served.Contact Us: MortgageReductionLaw.com
A few years ago, when the Mortgage Debacle started, these lenders went after the Mortgage Brokers after they found themselves in trouble for the many defaulted loans. They filed civil and criminal lawsuits convicting these brokers for fabricating documents and forging signatures to fund the loans. The legal system, judges and General Attorneys were prompt to convict “these so called criminals”.Contact Us: MortgageReductionLaw.com
Today the tables have turned 180 degrees and we have discovered how these entities have been widely practicing what they accused others of. Today the lenders are fabricating documents, forging signatures and filing fraudulent documents with the government agencies to weasel their way into owning the homeowners’ properties.Contact Us: MortgageReductionLaw.com
The fact that judges preceding the Unlawful Detainer hearings are not educated enough about the matter and don’t want to take the time to hear the attorneys defending the homeowners, does not help to make this wrong right. Securitization is a very complicated subject that cannot be taught in an Unlawful Detainer hearing or even in a Wrongful Foreclosure hearing. The way judges have been manipulating the information provided by the homeowners in their lawsuits to rule in favor of the lenders is despicable!Contact Us: MortgageReductionLaw.com
That’s why it’s so important to have all your property recorded documents used to foreclose on your home, been researched and analyzed by an expert that can identify all the issues that can be used in a Court of Law to fight for your home.
When you go in front of a Judge with enough evidence to prove that fraud was committed by the lender when the lender fabricated documents used to foreclose, you have a good chance to get the Judge’s attention. Fraud is a subject they know, it’s a crime and they can rule in your favor. It would be very difficult for a Judge to justify this fraudulent behavior on the part of the lender.
Later on, once you have successfully received an injunction, you can bring the securitization argument in your complaint and make the lender prove their innocence.Contact Us: MortgageReductionLaw.com
The documents used to initiate the foreclosure of your home have been fraudulently fabricated by either the Trustee or the Lender.
Some attorneys who have explored this cause of action in their civil lawsuits, have been able to get relief for the homeowners by getting the in Temporary Restraining Order and the Injunction granted.
Below please find proof of a very common practice within these entities when they fabricate documents. They use the name of one person who becomes an officer of many entities and the signature is very different in different documents. This has happened in your case too.
This is a portion of our report after thoroughly performing research and discovery for one of our clients: (testimonial letters can be provided upon request after signing a confidentiality agreement).
SIGNED BY: LINDA GREEN AS VICE PRESIDENT FOR AMERICAN HOME MORTGAGE SERVICING, INC. AS SUCCESOR IN INTEREST TO OPTION ONE MORTGAGE CORPORATION
TOO MANY JOBS
For this report, over 500 mortgage assignments were examined.
Each Assignment was filed by Docx, a mortgage servicing company in Alpharetta, GA; each was notarized in Fulton County, GA.
Many of these Assignments have been used in foreclosure actions to prove that the lender has the legal right to file the foreclosure actions.
The name of Linda Green, frequently appears on Docx documents. The following list summarizes some of the many job titles used by Green.Contact Us: MortgageReductionLaw.com
JOB TITLES HELD BY LINDA GREEN
11-11-2004 & 06-22-2006
Vice President, Loan Documentation, Wells Fargo Bank, N.A., successor by merger to Wells Fargo
Home Mortgage, Inc.
08-11-2008 & 08-14-2008
Vice President, Mortgage Electronic Registration Systems, Inc., as nominee for American Home Mortgage Acceptance, Inc
08-27-2008
Vice President, American Home Mortgage Servicing as successor-in-interest to Option One Mortgage Corporation
09-19-2008
Vice President, Mortgage Electronic Registration Systems, Inc., as nominee for American Brokers Conduit
09-30-2008
Vice President, Mortgage Electronic Registration Systems, Inc., as nominee for American Home Mortgage Acceptance, Inc
09-30-2008
Vice President, Mortgage Electronic Registration Systems, Inc., as nominee for American Brokers Conduit
10-08-2009
Vice President & Asst. Secretary, American Home Mortgage Servicing, Inc., as servicer for Ameriquest Mortgage Corporation
10-16-2008
Vice President, Mortgage Electronic Registration Systems, Inc., as nominee for American Home Mortgage Acceptance, Inc
10-17-2008, 11-20-2008
Vice President, Mortgage Electronic Registration Systems, Inc., as nominee for American Brokers Conduit
11-20-2008
Vice President, Option One Mortgage Corporation
12-08-2008
Vice President, Mortgage Electronic Registration Systems, Inc., as nominee for American Brokers Conduit
12-15-2008
Vice President, Mortgage Electronic Registration Systems, Inc., as nominee for HLB Mortgage
12-24-2008
Vice President, Mortgage Electronic Registration Systems, Inc., as nominee for American Home Mortgage Acceptance, Inc
12-26-2008
Vice President, American Home Mortgage Servicing, Inc
01-13-2009
Vice President, Mortgage Electronic Registration Systems, Inc., as nominee for Family Lending Services, Inc
01-15-2009
Vice President, Mortgage Electronic Registration Systems, Inc., acting solely as nominee for American Home Mortgage Acceptance, Inc
02-03-2009
Vice President, Mortgage Electronic Registration Systems, Inc., as nominee for American Broker Conduit
02-24-2009
Vice President, American Home Mortgage Servicing, Inc. as successor-in-interest to Option One Mortgage Corporation
02-25-2009
Vice President, Bank of America, N A
02-27-2009
Vice President, American Home Mortgage Servicing, Inc., as successor-in-interest to Option One Mortgage Corporation
03-02-2009
Vice President, Mortgage Electronic Registration Systems, Inc., acting solely as nominee for American Home Mortgage
03-04-2009
Vice President, Argent Mortgage Company, LLC by Citi Residential Lending Inc., attorney-in-fact
03-06-2009 & 03-20-2009
Vice President, Mortgage Electronic Registration Systems, Inc., as nominee for American Home Mortgage Acceptance, Inc
04-15-2009, 04-17-2009, 04-20-2009
Vice President, Bank of America, N.A.
05-11-2009, 07-06-2009
Vice President, Mortgage Electronic Registration Systems, Inc., as nominee for American Home Mortgage Acceptance, Inc
07-14-2009
Vice President, Bank of America, N.A.
07-30-2009
Vice President, Mortgage Electronic Registration Systems, Inc., as nominee for American Home Mortgage Acceptance, Inc
08-12-2009
Vice President, Sand Canyon Corporation f/k/a Option One Mortgage Corporation
08-28-2009
Vice President, Mortgage Electronic Registration Systems, Inc., as nominee for American Home Mortgage Acceptance, Inc.
09-03-2009
Asst. Vice President, Sand Canyon Corporation formerly known as Option One Mortgage Corporation
09-03-2009
Asst. Secretary, Mortgage Electronic Registration Systems, Inc., acting solely as nominee for American Home Mortgage
09-04-2009
Asst. Secretary, Mortgage Electronic Registration Systems, Inc., acting solely as nominee for American Home Mortgage
09-08-2009
Vice President, Bank of America, N.A.
09-21-2009 & 09-22-2009
Vice President, Mortgage Electronic Registration Systems, Inc., as nominee for American Home Mortgage Acceptance, Inc
ATTACHED TO THIS DOCUMENT OTHER DOCUMENTS SIGNED BY LINDA GREEN THAT SHOW THE VARIATIONS OF HER SIGNATURE
IT APPEARS AS IF THE SIGNATURE OF MS. GREEN COULD BE A FORGERY.Contact Us: MortgageReductionLaw.com
A forgery is a writing which falsely purports to be writing for another and is executed with the intent to defraud. Ordinarily a forged instrument cannot carry title.
THE SIGNATURE BELOW IS THE SIGNATURE IN THIS ASSIGNMENT OF DEED OF TRUST:Contact Us: MortgageReductionLaw.com
THE FOLLOWING SIGNATURES ARE FROM DIFFERENT DOCUMENTS RECORDEDIN DIFFERENT COUNTIES:
THIS WHOLE SYSTEM IS A FARCE. A BROKEN DOWN, FRAUDULENT, SHAKY, DISHONEST AND TERRIFYINGLY CORRUPT SYSTEM.
The press and the general public is starting to pick up on these major systemic issues that judges, attorneys and other insiders have known about for some time…when the whole system collapses we’ve all got a real mess on our hands.
As we all struggle to unravel this monstrous mess, breaking down capacity will be a key focus in the problem. We’re all going to be searching around to determine who to sue and where to sue them, but because the courts failed to enforce the most basic pleading requirement….i.e. specifically identify who the parties to the lawsuit are, this is going to be most difficult.
One of the persistent and most pervasive problems in the whole foreclosure crisis is the inability of any party to get reliable or credible information about what is owed on a mortgage, who that phantom amount is owed to and what negotiated amount a lender, servicer or other party involved in the transaction might accept to modify or short sale the underlying loan.
A very concerning issue is the publication on the MERS website of information that identifies who the servicer on a loan is and who the investor in that loan is. But, neither the servicer or investor matches up to the information in many cases.
When you combine all this information with the depositions of Robo signers that are posted on many website, you’ll understand that in a large number of cases, the only connection between the plaintiff foreclosing and the mortgage being foreclosed is a sloppy and hastily executed Assignment signed by an officer that has no corporate authority and has no personal knowledge of the information contained on those documents.
It’s simply not okay to use the “robosigning” practice in the non judicial foreclosure states because these foreclosure cases don’t have to go to court.
The following are some of the most clear legal reasons why the Robo-Signer Controversy should entitle hundreds of thousands of homeowners wrongfully foreclosed and evicted to sue in non judicial foreclosure states. Robo Signers are illegal because fraud cannot be the basis of clear title, trustee’s deeds following Robo Signed sales should be void as a matter of law, notarization is a recording requirement for many of the documents, which was often botched, and most importantly because robo signed falsifications are meant for use in court, including unlawful detainers and bankruptcy matters.Contact Us: MortgageReductionLaw.com
CALIFORNIA
1. Clear Title May Not Derive from a Fraud (including a bona fide purchaser for value).
In the case of a fraudulent transaction California law is settled. The Court in Trout v. Trout, (1934), 220 Cal. 652 at 656 stated:
“Numerous authorities have established the rule that an instrument wholly void, such as an undelivered deed, a forged instrument, or a deed in blank, cannot be made the foundation of a good title, even under the equitable doctrine of bona fide purchase. Consequently, the fact that defendant Archer acted in good faith in dealing with persons who apparently held legal title, is not in itself sufficient basis for relief.” (Emphasis added, internal citations omitted).
This sentiment was clearly echoed in 6 Angels, Inc. v. Stuart-Wright Mortgage, Inc. (2001) 85 Cal.App.4th 1279 at 1286 where the Court stated:
“It is the general rule that courts have power to vacate a foreclosure sale where there has been fraud in the procurement of the foreclosure decree or where the sale has been improperly, unfairly or unlawfully conducted, or is tainted by fraud, or where there has been such a mistake that to allow it to stand would be inequitable to purchaser and parties.” (Emphasis added).
If forged signatures are used to obtain the foreclosure it makes a difference!
2. Any apparent sale based on Robosigned documents or forged signatures should be void and without any legal effect.
In Bank of America v. LaJolla Group II, the California Court of Appeals held that if a trustee is not contractually empowered under the Deed of Trust to hold a sale, it is totally void. Voidness, as opposed to voidability, means that it is without legal effect. Title does not transfer. No right to evict arises. The property is not sold.
In turn, California Civil Code 2934a requires that the beneficiary execute, notarize and record a substitution for a valid Substitution of Trustee to take effect. Thus, if the Assignment of Deed of Trust, the Substitution of Trustee or the Notice of Default are Robo-Signed, the sale should be void.Contact Us: MortgageReductionLaw.com
3. These documents are not recordable without good notarization.
In California, the reason these documents are notarized in the first place is because otherwise they will not be accepted by the County recorder. Moreover, a notary who helps commit real estate fraud is liable for $25,000 per offense.
Once the document is recorded, however, it is entitled to a “presumption of validity”, which is what spurned the falsification trend in the first place. California Civil Code Section 2924. Therefore, the notarization of a false signature not only constitutes fraud, but is every bit intended as part of a larger conspiracy to commit fraud on the court.
4. The documents are intended for court eviction proceedings.
A necessary purpose for these documents, after the non judicial foreclosure, is the eviction of the rightful owners afterward. Even in California, eviction is a judicial process, albeit summary and often sloppily conducted by judges who don’t really believe they can say no to the pirates taking your house. However, as demonstrated below, once these documents make it into court, the bank officers and lawyers become guilty of felonies:
California Penal Code section 118 provides (a) Every person who, having taken an oath that he or she will testify, declare, depose, or certify truly before any competent tribunal, officer, or person, in any of the cases in which the oath may by law of the State of California be administered, willfully and contrary to the oath, states as true any material matter which he or she knows to be false, and every person who testifies, declares, deposes, or certifies under penalty of perjury in any of the cases in which the testimony, declarations, depositions, or certification is permitted by law of the State of California under penalty of perjury and willfully states as true any material matter which he or she knows to be false, is guilty of perjury.Contact Us: MortgageReductionLaw.com
This subdivision is applicable whether the statement, or the testimony, declaration, deposition, or certification is made or subscribed within or without the State of California.
Penal Code section 132 provides: Every person who upon any trial, proceeding, inquiry, or investigation whatever, authorized or permitted by law, offers in evidence, as genuine or true, any book, paper, document, record, or other instrument in writing, knowing the same to have been forged or fraudulently altered or ante-dated, is guilty of felony.
The Doctrine of Unclean Hands provides: plaintiff’s misconduct in the matter before the court makes his hands “unclean” and he may not hold with them the pristine remedy of injunctive relief. California Satellite Sys. v Nichols (1985) 170 CA3d 56, 216 CR 180. California’s unclean hands rule requires that the Plaintiff don’t cheat, and behave fairly. The plaintiff must come into court with clean hands, and keep them clean, or he or she will be denied relief, regardless of the merits of the claim. Kendall-Jackson Winery Ltd. v Superior Court (1999) 76 CA4th 970, 978, 90 CR2d 743. Whether the doctrine applies is a question of fact. CrossTalk Prods., Inc. v Jacobson (1998) 65 CA4th 631, 639, 76 CR2d 615.
5. Robo Signed Documents Are Intended for Use in California Bankruptcy Court Matters. One majorly overlooked facet of California is our extremely active bankrtupcy court proceedings, where, just as in judicial foreclosure states, the banks must prove “standing” to proceed with a foreclosure. If they are not signed by persons with the requisite knowledge, affidavits submitted in bankruptcy court proceedings such as objections to a plan and Relief from Stays are perjured.
The documents in support are often falsified evidence.
CONCLUSION
Verified eviction complaints, perjured motions for summary judgment, and all other eviction paperwork after robo signed non judicial foreclosures in California and other states are illegal and void. The paperwork itself is void. The sale is void. But the only way to clean up the hundreds of thousands of effected titles is through litigation, because even now the banks will simply not do the right thing. And that’s why robo signers count in non-judicial foreclosure states. Victims of robosigners in California may seek declaratory relief, damages under the Rosenthal Act; an injunction and attorneys fees for Unfair Business practices, as well as claims for slander of title; abuse of process, civil theft, and conversion.Contact Us: MortgageReductionLaw.com
Keep the trustees deed out of evidence in the unlawful detainer
TIMOTHY L. MCCANDLESS, ESQ. SBN 147715
LAW OFFICES OF TIMOTHY L. MCCANDLESS
820 Main Street, Ste. 1
Martinez, CA
(925) 957-9797 Telephone
(909) 382-9956 Facsimile
Attorney for Defendant Zenkarla S. Salazar
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SANTA CLARA
GMAC MORTGAGE, LLC FKA GMAC MORTGAGE CORPORATION,
Plaintiff,
vs.
ELIZABETH L. DE VRIES; ZENKARLA S. SALAZAR
and DOES 1 through 10, Inclusive
Defendant. Case No.: 111CV198467
DEFENDANT’S MOTION IN LIMINE TO EXCLUDE ALL EVIDENCE
To the Court, to Plaintiff, GMAC MORTGAGE, LLC FKA GMAC MORTGAGE CORPORATION, [hereinafter “GMAC”] and its attorney of record:
PLEASE TAKE NOTICE that, on Friday, August 5, 2011, at 9:00 AM, or as soon thereafter as the matter may be heard, Defendant, ZENKARLA S. SALAZAR, will in limine judicii move the court, and hereby does move, for an order excluding from trial all evidence proffered by Plaintiff GMAC.
The motion will be heard in Department 19 of the Santa Clara Superior Court.
The motion will be brought pursuant to Evidence Code sections 353 and 400 et seq., Code of Civil Procedure section 430.10(b), and related decisional law.
The ground of the motion will be that the Unlawful Detainer Complaint, fails to disclose the reason why Plaintiff supposedly complied with Civil Code section 2932.5 and Civil Code section 2924; and accordingly the Complaint fails to state a claim for which relief may be granted, and thus there remain no issues of fact for which relevant evidence might be adduced at trial.
More importantly, it is acknowledged that banks, lenders and third party buyers have a secured interest in deed which was assigned and recorded as mandated by Civil Code Section 2932.5. In this case, plaintiff did not have the power of sale as mandated by Civil Code Section 2924 because there is no evidence that the secured interest of the current beneficiary has been properly acknowledged and recorded.
The motion will be based upon this notice of motion and motion, the attached Memorandum of Points and Authorities, on the pleadings and other papers on file for the above-captioned case, and upon such other and further evidence as the court may deem fit.
//
DATED: August 4, 2011 ________________________________________
LAW OFFICES OF TIMOTHY L. MCCANDLESS
By: Timothy P. McCandless, Esq.
Attorney for DEFENDANT
ZENKARLA S. SALAZAR
MEMORANDUM OF POINTS AND AUTHORITIES
I.
FACTUAL BACKGROUND
Defendant Zenkarla S. Salazar is a tenant that holds a valid lease up and until February 2013 with the subject property located at 1568 Valley Crest Drive, San Jose, CA 95131. This lease agreement was submitted with her answer and was entered before the default. Defendant Salazar demonstrated that she is a bonafide tenant and has a three-year lease at the time she was served with the Unlawful Detainer complaint.
Defendant Elizabeth L. De Vries was the original trustor of the subject property and executed the Deed of Trust recorded on February 23, 2006 at the County Recorder of Santa Clara County. Plaintiff claimed that a default occurred on the note, that the Trustee recorded a Notice of Default and initiated this unlawful non-judicial foreclosure. After the sale occurred, GMAC took over the title of the subject property.
This Unlawful Detainer action is commenced and prosecuted pursuant to California Code of Civil Procedure Section 1161a(b). Where real property is sold at a trustee sale in accordance with sections 2924 et seq., of the California Civil Code under a power of sale contained in a deed of trust, the persons who executed said deed of trust, their successor in interest, their tenants and sub-tenants, may be evicted in an action of Unlawful Detainer. California Code of Civil Procedure Section 1161a(b)(3).
The sole evidence being offered by Plaintiff is the Deed of Trust and the Trustee’s Deed Upon sale, which is inadmissible evidence, because Plaintiff GMAC cannot and has not laid the proper foundational proof that it was ever maintained a secured interest in this particular property.
Judicial notice will not suffice to establish Plaintiffs burden. „Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter.‟” (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882.)
“Judicial notice may not be taken of any matter unless authorized or required by law.” (Evid. Code, § 450.) “Matters that are subject to judicial notice are listed in Evidence Code sections 451 and 452. A matter ordinarily is subject to judicial notice only if the matter is reasonably beyond dispute. [Citation.]” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113.)
“Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning.” (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.) While courts take judicial notice of public records, they do not take notice of the truth of matters stated therein. (Love v. Wolf (1964) 226 Cal.App.2d 378, 403.) “When judicial notice is taken of a document, . . . the truthfulness and proper interpretation of the document are disputable.” (StorMedia, Inc. v. Superior Court (1999) 20 Cal.4th 449, 457, fn. 9 (StorMedia).)
This court considered the scope of judicial review of a recorded document in Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106 (Poseidon). “[T]he fact a court may take judicial notice of a recorded deed, or similar document, does not mean it may take judicial notice of factual matters stated therein. [Citation.] For example, the First Substitution recites that Shanley „is the present holder of beneficial interest under said Deed of Trust.‟ By taking judicial notice of the First Substitution, the court does not take judicial notice of this fact, because it is hearsay and itcannot be considered not reasonably subject to dispute.” (Id. at p. 1117.)
The same situation is present here. The Substitution of Trustee recites that the Bank “is the present beneficiary under” the 2003 deed of trust. As in Poseidon, this fact is hearsay and disputed; the trial court could not take judicial notice of it. Nor does taking judicial notice of the Assignment of Deed of Trust establish that the Bank is the beneficiary under the 2003 deed of trust. The assignment recites that JPMorgan Chase Bank, “successor in interest to WASHINGTON MUTUAL BANK, SUCCESSOR IN INTEREST TO LONG BEACH MORTGAGE COMPANY” assigns all beneficial interest under the 2003 deed of trust to the Bank. The recitation that JPMorgan Chase Bank is the successor in interest to Long Beach Mortgage Company, through Washington Mutual, is hearsay. Defendants offered no evidence to establish that JPMorgan Chase Bank had the beneficial interest under the 2003 deed of trust to assign to the Bank. The truthfulness of the contents of the Assignment of Deed of Trust remains subject to dispute (StorMedia, supra, 20 Cal.4th at p. 457, fn. 9), and plaintiffs dispute the truthfulness of the contents of all of the recorded documents.
Judicial notice of the recorded documents did not establish that the Bank was the beneficiary or that CRC was the trustee under the 2003 deed of trust. Defendants failed to establish “facts justifying judgment in [their] favor” (Bono, supra, 103 Cal.App.4th at p. 1432), through their request for judicial notice.
Because the non-judicial foreclosure process is subject to strict scrutiny, and given the material failure of a condition precedent by Plaintiff and/or Plaintiff’s agent, the entire non-judicial foreclosure process is invalid. Therefore, the Deed of trust and the Trustee’s Deed Upon Sale cannot be admitted into evidence, as no lawful foundation can be laid. Robert Herrera et al., v. Deutsche Bank National Trust company et al, Third Appellate District case attached 6-28-2011.
Moreover, Defendant Salazar contends that Plaintiff never maintained a recorded interest in the subject real property at any time during the foreclosure proceedings in this case. In order to enforce the power of sale pursuant to California Civil Code section 2924, the secured instrument must be properly acknowledged and recorded pursuant to California Civil Code section 2932.5. The power of sale may only be exercised under California Code of Civil Procedure section 2924, if and only if, the secured interest of the current beneficiary has been properly acknowledged and recorded. In this instance, it was not.
Thus, there is a major substantive failure in the non-judicial foreclosure process and the transaction cannot stand. In order for GMAC to have proceeding the first instance under Civil Code section 2924 et seq., it was required to be record owner, which was not.
As such, Plaintiff GMAC is not entitled to obtain possession of the Subject Property as such evidence overcomes the rebuttable presumption of correctness of the sale.
Secured interests in real property are demonstrated by recordation so that the entire world will know that a party maintains a secured interest therein. That is why interests in real property are recorded and deeds are submitted as evidence to assert rights of interest and title. It is a fundamental precept of property law that in order to enforce the power of sale, the beneficiary of a deed of trust must be able to prove the existence of their secured interest in the subject property. Here, GMAC has never demonstrated that it ever had such a secured interest.
There are no valid recorded assignments recorded by GMAC as the new beneficiary of the Deed of Trust executed by Defendants thus, under California Civil Code Section 2924, plaintiff could enforce the power of sale. Thus, this non-judicial foreclosure of this particular property is invalid and plaintiff GMAC is not the lawful owner of this property and not entitled to obtain possession pursuant to California Civil Procedure Section 1161a.
II.
THE COURT HAS POWER TO EXCLUDE ALL EVIDENCE FROM TRIAL, ON GROUNDS ANALOGOUS TO A GENERAL DEMURRER.
The court has power to consider and grant an objection to all evidence under Evidence Code sections 353 and 400 et seq. If no cause of action or defense is stated by the respective pleading, then no “factual issue” any longer exists, and therefore no evidence may be admitted on grounds of “relevance” under Evidence Code sections 400 et seq.
It is well established that a party may bring an in limine objection in order to exclude all evidence, as a sort of general demurrer or “motion for judgment on the pleadings”. “Although not in form a motion, this method of attacking the pleading is identical in purpose to a general demurrer and motion for judgment on the pleadings and is governed by the same rules. [Citations.]” 5 WITKIN, Cal.Proc.3rd page 386, “Pleading” at §953. See also 6 WITKIN, Cal.Proc.3rd pages 571-573, “Proceedings Without Trial” at §§272-273.
According to 5 WITKIN, Cal.Proc.3rd page 340, “Pleading” at §899, a “general” demurrer concerns only the defense that the pleading does not state facts sufficient to constitute a cause of action or defense. That is precisely what defendant contends here: the Unlawful Detainer Complaint fails to state a claim for which relief may be granted, because it fails to plead a necessary element of compliance with Civil Code sections 2932.5 and 2924 et al.
III.
THE COURT MUST STRICTLY ENFORCE
THE TECHNICAL REQUIREMENTS FOR A FORECLOSURE.
The harshness of non-judicial foreclosure has been recognized. “The exercise of the power of sale is a harsh method of foreclosing the rights of the grantor.” Anderson v. Heart Federal Savings (1989) 208 Cal.App.3d 202, 6 215, citing to System Inv. Corporation v. Union Bank (1971) 21 Cal.App.3d 137, 153. The statutory requirements are intended to protect the trustor from a wrongful or unfair loss of his property Moeller v. Lien (1994) 25 Cal.App.4th 822, 830; accord, Hicks v. E.T. Legg & Associates (2001) 89 Cal.App.4th 496, 503; Lo Nguyen v. Calhoun (6th District 2003) 105 Cal.App.4th 428, 440, and a valid foreclosure by the private power of sale requires strict compliance with the requirements of the statute. Miller & Starr, California Real Estate (3d ed.), Deeds of Trust and Mortgages, Chapter 10 §10.179; Anderson v. Heart Federal Sav. & Loan Assn., 208 Cal. App. 3d 202, 211 (3d Dist. 1989), reh’g denied and opinion modified, (Mar. 28, 1989); Miller v. Cote (4th Dist. 1982) 127 Cal. App. 3d 888, 894; System Inv. Corp. v. Union Bank (2d Dist. 1971) 21 Cal. App. 3d 137, 152-153; Bisno v. Sax (2d Dist. 1959) 175 Cal. App. 2d 714, 720.
It has been a cornerstone of foreclosure law that the statutory requirements, intending to protect the trustor from a wrongful or unfair loss of the property, must be complied with strictly. Miller & Starr, California Real Estate (3d ed.), Deeds of Trust and Mortgages, Chapter 10 §10.182. “Close” compliance does not count. As a result, any trustee’s sale based on a statutorily deficient Notice of Default is invalid (emphasis added). Miller & Starr, California Real Estate (3d ed.), Deeds of Trust and Mortgages, Chapter 10 §10.182; Anderson v. Heart Federal Sav. & Loan Assn. (3dDist. 1989) 208 Cal. App. 3d 202, 211, reh’g denied and opinion modified, (Mar. 28, 1989); Miller v. Cote (4th Dist. 1982) 127 Cal. App. 3d 888, 894; System Inv. Corp. v. Union Bank (2d Dist. 1971) 21 Cal. App. 3d 137, 152-153; Saterstrom v. Glick Bros. Sash, Door & Mill Co.(3d Dist. 1931) 118 Cal. App. 379.
It is a fundamental precept of property law that in order to enforce the power of sale, the beneficiary of a deed of trust must be able to prove the existence of their secured interest in the subject property. Here, GMAC has never demonstrated that it ever had such a secured interest.
Additionally, any trustee’s sale based on a statutorily deficient Notice of Trustee Sale is invalid. Anderson v. Heart Federal Sav. & Loan Assn. (3d Dist. 1989) 11 208 Cal.App. 3d 202, 211, reh’g denied and opinion modified, (Mar. 28, 1989). The California Sixth District Court of Appeal observed, “Pursuing that policy [of judicial interpretation], the courts have fashioned rules to protect the debtor, one of them being that the notice of default will be strictly construed and must correctly set forth the amounts required to cure the default.” Sweatt v. The Foreclosure Co., Inc. (1985 – 6th District) 166 Cal.App.3d 273 at 278, citing to Miller v. Cote (1982) 127 Cal.App.3d 888, 894 and SystemInv. Corp. v. Union Bank (1971) 21 Cal.App.3d 137, 152-153.
The same reasoning applies even to a notice of a trustee’s sale. Courts will set aside a foreclosure sale when there has been fraud, when the sale has been improperly, unfairly, or unlawfully conducted, or when there has been such a mistake that it would be inequitable to let it stand. Bank of America Nat. Trust & Savings Ass’n v. Reidy (1940) 15 Cal. 2d 243, 248; Whitman v. Transtate Title Co.(4th Dist. 1985) 165 Cal. App. 3d 312, 322-323; In re Worcester (9th Cir. 1987) 811 F.2d 1224, 1228. See also Smith v. Williams (1961) 55 Cal. 2d 617, 621; Stirton v. Pastor (4th Dist. 1960) 177 Cal. App. 2d 232, 234; Brown v. Busch (3d Dist. 1957) 152 Cal.App. 2d 200, 203-204.
In this case, there is no evidence whether GMAC maintained a properly acknowledged and recorded security instrument in the subject property, anytime during the non-judicial foreclosure process. The Trustee’s Deed Upon Sale was recorded on December 9, 2010 when defendant De Vries’ property was sold at a trustee sale on November 15, 20102011when they have not complied with the requirements of California non-judicial foreclosure law. The foreclosers made no reasonable efforts to insure that it is acting under the authority of a lawsuit beneficiary.
A primary concern in this matter is the fact that GMAC had no legal right to foreclose upon the home of Defendant De Vries, even if she had not paid as required, if the same GMAC has not fully complied with Civil Code section 2932.5 and 2924. The basis for its noncompliance, and why this precludes a finding that Plaintiff’s title was “duly perfected”, is set forth below.
IV.
SINCE 2008, THE ABILITY TO ENFORCE THE POWER OF SALE OF A SECURED INSTRUMENT IN REAL PROPERTY IS MANDATED BY CALIFORNIA CIVIL CODE SECTION 2932.5 WHICH ALLOWS AN ASSIGNEE TO PROCEED WITH A NON-JUDICIAL FORECLOSURE PROVIDING THAT THE ASSIGNMENT IS PROPERLY ACKNOWLEDGED AND RECORDED.
In 2008, the California Legislature added Civil Code section 2932.5. The previous section is of particular relevance here:
Where a power to sell real property is given to a mortgagee, or other encumbrancer, in an instrument intended to secure the payment of money, the power is part of the security and vests in any person who by assignment becomes entitled to payment of the money secured by the instrument. The power of sale may be exercised by the assignee if the assignment is duly acknowledged and recorded.
There is no assignment ever recorded by GMAC. See also Code of Civil Procedure section 459: “it is not necessary to state the facts showing such performance, but it may be stated generally that the party duly performed all the conditions on his part required thereby; if such allegations be controverted, the party pleading must establish on the trial the facts showing such performance.”
Nonetheless, this pleading of compliance that “[o]ne of the below necessary requirements was met by the Beneficiary:” violates another rule of pleading, namely, that allegations be made positively. “Pleading in the alternative is not permitted. The opposing party is entitled to a distinct statement of the facts claimed by the pleader to exist, and a statement in the alternative is uncertain and ambiguous. It is no answer to an objection to averments made alternatively to say that, if either of the averments is true, a cause of action is alleged. Such a pleading is vulnerable to special demurrer, and there is authority that the defect cannot be cured by verdict or by judgment by default. But where the point is raised for the first time on appeal, it is not ground for reversal if the appellant was not prejudiced by the uncertainty.” 49 Cal.Jur.3d (1979 ed.), pages 412-413, “Pleading” at §51.
The noncompliance with California’s law of pleading here is prejudicial. The issue of whether or not the lender recorded a receiver’s deed is expected to be a major factual issue at the trial. It is true that defendant SALAZAR might use contention interrogatories and other specially worded interrogatories to find out what factual theory, exactly, underlies the cryptic alternative statement that “[o]ne of the below necessary requirements was met by the Beneficiary:”. And defendant SALAZAR must still then, at that point, discover the evidence upon which Plaintiff (or, more precisely, Plaintiff’s predecessor-in-interest) relies in contending that there was compliance with California Civil Code subsection 2932.5.
CONCLUSION
The public record shows, as a matter of law, that PLAINTIFF GMAC and Plaintiff’s predecessor-in-interest did not comply with the requirement to disclose according to Code of Civil Procedure subsection 2932.5 Although the Plaintiff could supply this information and cure the pleading error here, yet such an reparative measure will not cure the invalidity of that there they complied with Civil Code 2924 and that no document was recorded with the Office of the County Recorder. Until that defect is repaired, there cannot be any “duly perfected title” that serves as the basis for Plaintiff’s Unlawful Detainer case. The case must be stopped, and that may be done by an exclusion of all evidence, as prayed for above.
Respectfully submitted,
Dated: August 4, 2011 LAW OFFICES OF
TIMOTHY MCCANDLESS ESQ.
_____________________________________
Timothy L. McCandless, Esq.,
Attorney for Defendant
ZENKARLA S. SALAZAR
California Eviction Defense Manual
Chapter Outlines
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31
1
Overview of Unlawful Detainer Law
I. SCOPE OF THIS BOOK §1.1
II. LANDLORD’S ALTERNATIVES TO UNLAWFUL DETAINER ACTION §1.2
III. ETHICS §1.3
IV. SUMMARY OF UNLAWFUL DETAINER PROCESS §1.4
A. Description of Unlawful Detainer Action §1.5
B. Reduced Time Frame Governing Unlawful Detainer Procedure §1.6
C. Landlord Must Strictly Comply With Statutory Requirements §1.7
D. Notice Requirements §1.8
E. Bases for Terminating Tenancy; Applicable Notice §1.9
1. Termination Requiring 3-Day Notice (Longer Notice Permitted) §1.10
2. Termination Requiring 30-Day or 60-Day Notice §1.11
3. Termination Requiring Other Notice §1.12
4. Termination Requiring No Notice §1.13
F. Jurisdiction and Venue §1.14
G. Default Judgment §1.15
H. Bases for Defending Unlawful Detainer Actions §1.16
I. Trial
1. Tenant Entitled to Jury Trial if Answer Presents Admissible Defenses §1.17
2. Rent and Damages Awardable to Landlord §1.18
J. Posttrial Motions §1.19
K. Execution by Sheriff §1.20
V. SUMMARY OF POTENTIAL TENANT RESPONSES TO LANDLORD’S ACTIONS §1.20A
VI. INVALIDITY OF LEASE PROVISION WAIVING TENANT’S RIGHTS §1.21
VII. WRIT OF IMMEDIATE POSSESSION §1.22
VIII. UNAVAILABILITY OF UNLAWFUL DETAINER IF TENANT IS NO LONGER IN POSSESSION OF PREMISES §1.23
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Relationship of Unlawful Detainer to Other Actions
I. ISSUES NOT COGNIZABLE IN UNLAWFUL DETAINER ACTIONS §2.1
II. COORDINATION AND CONSOLIDATION OF UNLAWFUL DETAINER WITH OTHER ACTIONS §2.2
A. Coordination of Complex Actions §2.2A
B. Transfer of Noncomplex Actions §2.2B
C. Consolidation of Actions Pending in Same County §2.2C
III. CONVERSION OF UNLAWFUL DETAINER ACTION TO ACTION FOR EJECTMENT §2.3
IV. SEVERING POSSESSION ISSUE FROM RENT-DUE ISSUE §2.4
V. TENANT’S SUIT FOR DECLARATORY OR INJUNCTIVE RELIEF; STAY OF UNLAWFUL DETAINER ACTION
A. Overview: Can Unlawful Detainer Actions Be Enjoined? §2.5
B. Obtaining Injunctive Relief
1. Legal Basis; Grounds §2.5A
2. The Newby Exception: Adequate Remedy at Law §2.5B
3. Overcoming Newby Limitations §2.5C
4. Procedure; Bond Required §2.5D
VI. LANDLORD’S SUIT FOR INJUNCTIVE RELIEF §2.6
VII. ACTIONS AFTER ENTRY OF JUDGMENT §2.7
VIII. ARBITRATION PROVISION IN LEASE §2.8
IX. ADMINISTRATIVE MANDAMUS §2.9
X. BANKRUPTCY §2.10
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Self-Help by Landlord
I. USE OF SELF-HELP BY LANDLORD §3.1
II. FORCIBLE ENTRY AND DETAINER §3.2
A. Examples of Forcible Entry and Detainer §3.3
B. Retaking Abandoned Premises Is Not Forcible Entry or Detainer §3.4
C. Recovering Punitive Damages for Forcible Entry or Detainer Requires Showing of Malice §3.5
III. SHUTTING OFF UTILITIES OR OTHERWISE BARRING TENANT’S USE OF PROPERTY
A. Civil Code §789.3 §3.6
B. Remedies Under Public Utilities Code and CC §1942.2 §3.6A
IV. OTHER ACTIONS BY LANDLORD THAT MAKE PREMISES UNINHABITABLE §3.7
V. SELF-HELP EVICTIONS OF TENANTS IN RESIDENTIAL HOTELS §3.8
VI. SELF-HELP EVICTIONS OF LODGERS §3.9
VII. SELF-HELP EVICTIONS OF OCCUPANTS OF TRANSITIONAL HOUSING §3.10
VIII. SELF-HELP EVICTIONS OF HOTEL GUESTS §3.11
IX. ANTI-HARASSMENT STATUTE (CC §1940.2) §3.12
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Representing the Tenant; Office Procedures
I. OFFICE PROCEDURES §4.1
II. LAW OFFICE AUTOMATION §4.2
III. LEGAL REFERENCE MATERIALS §4.3
A. Necessary Legal Sources and Forms §4.4
B. Useful Additional Library Materials §4.5
IV. INITIAL STEPS BEFORE DECIDING WHETHER TO REPRESENT TENANT
A. Initial (Telephone) Contact With Prospective Client §4.6
B. Form: Telephone Intake Form §4.7
C. Scheduling Meeting With Prospective Client §4.8
D. Conflict of Interest in Representing Tenant
1. Performing a Conflicts Check §4.9
2. Common Conflict Situations in Unlawful Detainer Actions §4.10
E. Initial Meeting With Prospective Client §4.11
F. Use of Client Interview Questionnaire §4.12
G. Form: Client Interview Questionnaire §4.13
H. Conduct of Initial Meeting §4.14
I. Investigate Tenant’s Relationship With Former Counsel and Any Litigation History §4.15
J. Contact Landlord’s Attorney for Preliminary Look at Opposing View of Case §4.16
K. Initial Assessment of Case §4.17
L. Scope of Initial Assessment §4.18
M. Allaying Tenant’s Fears §4.19
V. REPRESENTATION OF TENANT
A. Decision to Represent Tenant §4.20
1. If Attorney Will Not Represent or Assist Tenant §4.21
2. When More Time Needed for Decision on Representation §4.22
3. Form: Substitution of Attorney—Civil (Without Court Order) (Judicial Council Form MC-050; Mandatory) §4.23
4. If Attorney and Tenant Agree That Attorney Will Represent or Assist Tenant §4.24
5. Disclosure Regarding Professional Liability Insurance §4.24A
B. Representation Agreements and Ground Rules §4.25
1. Delegating Tasks to Client §4.26
2. Contents of Representation Agreement §4.27
3. Form: Representation Agreement—Private Practitioner §4.28
4. Form: Client Retainer Agreement—Legal Services Organization §4.29
C. Limited Scope Representation (Unbundling)
1. Applicable Law §4.29A
2. Checklist: Tenant Fee Agreement §4.29B
D. Deposit of Rent Due Into Client Trust Account §4.30
E. Form: Requirement for Deposit of Rent Into Attorney-Client Trust Account §4.31
VI. PROCEDURE AFTER REPRESENTATION IS UNDERTAKEN
A. Ascertain Goal of Representation §4.32
1. Ascertain Whether Tenant Wants to Continue Living in Rental Unit §4.33
2. Goal of Representation Is Not Necessarily Successful Defense of Unlawful Detainer Action §4.34
B. Counsel Should Investigate Facts of Case §4.35
C. Determining Defense Strategy §4.36
D. Making Choices on Strategy and Tactics §4.37
E. Example of Strategic and Tactical Choices in Procedure When Defective 3-Day Notice Was Served §4.38
1. Strategy and Tactics: Filing Motion to Quash Service of Summons or Demurrer §4.39
2. Strategy and Tactics: Filing an Answer §4.40
3. Strategy and Tactics: Filing Motion for Summary Judgment §4.41
F. Counsel Should Simultaneously File Pleadings, Conduct Discovery, and Negotiate §4.42
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Grounds for Eviction
I. GROUNDS FOR EVICTION GENERALLY §5.1
II. GROUNDS FOR EVICTION BASED ON TENANT’S DEFAULT; 3-DAY NOTICE REQUIRED §5.2
III. REASONS FOR TERMINATION NOT BASED ON TENANT’S DEFAULT; NOTICE REQUIRED §5.3
IV. REASONS FOR TERMINATION NOT BASED ON TENANT’S DEFAULT; NOTICE NOT REQUIRED §5.4
V. TERMINATING MOBILEHOME PARK TENANCIES §5.5
VI. EVICTION BROUGHT BY CITY PROSECUTOR OR CITY ATTORNEY §5.6
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Three-Day Notice
I. PURPOSE AND EFFECT OF 3-DAY NOTICE §6.1
A. Purpose of 3-Day Notice §6.2
B. If 3-Day Notice Is Defective §6.3
II. IMMEDIATE TENANT RESPONSE TO SERVICE OF 3-DAY NOTICE (BEFORE COMPLAINT HAS BEEN FILED) §6.4
III. STRICT COMPLIANCE WITH STATUTE IS REQUIRED §6.5
IV. NOTICE REQUIRED EVEN IF LEASE PROVIDES THAT IT IS NOT NECESSARY §6.6
V. COMPUTATION OF NOTICE PERIOD §6.7
VI. NOTICE IS VALID EVEN THOUGH IT CONTAINS MORE THAN ONE REASON FOR EVICTION §6.8
VII. NOTICE MAY BE WITHDRAWN §6.9
VIII. FORM OF NOTICE §6.10
A. Notice Must Be in Writing §6.11
B. Description of Premises in Notice §6.12
C. Signature on Notice §6.13
D. Demand for Possession Must Be Unequivocal §6.14
E. Statement of Three Days in Notice Itself May Not Be Required §6.15
F. Notice May Declare Election of Forfeiture §6.16
G. Demand for Rent and Charges
1. Notice to Quit Must Include Demand for Rent as Alternative §6.17
2. Notice Must Specify No More Than Rent Actually Due §6.18
a. Precise Amount of Rent Need Not Be Specified if Calculation of Rent Depends on Tenant’s Accounting §6.19
b. Statement of Rent Due, and Additional Claims in Notice §6.20
c. Effect of Federal Fair Debt Collection Practices Act §6.20A
3. Notice Seeks Less Than Actual Amount Owed §6.21
4. One-Year Limitation on Amount of Rent That Can Be Demanded §6.22
5. Inclusion of Late Charges in Notice §6.23
6. Validity of Late Charges Landlord Claims Are Due
a. As Liquidated Damages §6.24
b. As Violation of Usury Law §6.24A
IX. SERVICE OF NOTICE
A. When Notice May Be Served §6.25
1. “Holidays” Defined §6.26
2. When Tenant May Perform Under Notice §6.27
B. Method of Service §6.28
C. Statutory Requirements for Service of 3-Day Notice §6.29
X. WHEN 3-DAY NOTICE IS BASED ON FAILURE TO PAY RENT §6.30
XI. TENDER OF RENT
A. Method of Tender of Rent §6.31
B. Proof That Tender Was Made §6.32
C. Depositing Money in Landlord’s Bank Account §6.33
D. Effect of Tender of Rent on Obligation to Pay Rent §6.34
E. Time of Tender of Rent
1. Tender of Rent Before Service of Notice §6.35
2. Tender of Rent After Notice Is Served and Before Notice Period Expires §6.36
3. Tender of Rent After Notice Period Has Expired §6.37
XII. WHEN 3-DAY NOTICE IS BASED ON DEFAULT UNDER LEASE OTHER THAN FAILURE TO PAY RENT
A. Violation of Covenant in Lease Generally; Statutory Basis for 3-Day Notice §6.38
1. Express and Implied Covenants §6.39
2. Trivial or Technical Breach Not Sufficient §6.40
3. Waiver and Estoppel §6.41
4. Repeated Acceptance of Late Rent §6.42
5. Effect of Tenant’s Performance §6.43
6. Whether Notice Must Be Given in Alternative §6.44
7. Stating the Breach §6.45
B. Violation of Covenant Against Subletting, Assignment, or Waste; Maintaining Nuisance; or Using Premises for Unlawful Purpose §6.46
1. Subletting, Assignment, and Waste §6.47
2. Nuisance §6.48
3. Unlawful Purpose §6.49
XIII. SALE UNDER EXECUTION, MORTGAGE, OR TRUST DEED §6.50
XIV. COMMON FLAWS IN 3-DAY NOTICE OR ITS SERVICE THAT RENDER NOTICE INEFFECTIVE §6.51
XV. EFFECT OF SERVICE OF MORE THAN ONE NOTICE §6.52
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Thirty-Day/Sixty-Day Notices and Termination Without Notice
I. TERMINATING PERIODIC TENANCIES
A. Using 30-Day Notice §7.1
B. Using 60-Day Notice §7.1A
II. IMMEDIATE TENANT RESPONSE TO SERVICE OF NOTICE §7.2
III. TENANT REMAINS IN POSSESSION AFTER TERMINATION
A. “Holdover” Tenant Defined §7.3
B. Tenant Serves Landlord With Notice of Termination and Remains in Possession After Termination Period §7.4
C. Term Has Expired but Tenant Holds Over §7.5
D. Termination of Employment of Resident Employee §7.6
E. Death of Tenant §7.7
F. Expiration of Fixed-Term Lease §7.8
G. Effect of Landlord’s Acceptance of Rent After Expiration of Fixed Term §7.9
H. Effect of Clause Providing for Automatic Extension or Renewal §7.9A
I. Lodger Who Holds Over in Owner-Occupied Dwelling §7.10
J. Expiration of Periodic (Generally Month-to-Month) Lease §7.11
IV. LENGTH OF PERIOD OF NOTICE
A. Shortened Notice Periods by Agreement §7.12
B. Date on Which Mailed Notice Is Effective §7.13
C. Notice Period Must Expire Before Complaint Can Be Filed §7.14
V. WITHDRAWAL OF NOTICE; ACCEPTANCE OF RENT PAYMENTS §7.15
VI. FORM OF NOTICE
A. Notice Must Be in Writing §7.16
B. Description of Premises and Signature §7.17
C. Notice Cannot Be in the Alternative §7.18
D. Statement of 30 or 60 Days §7.19
E. Cover Sheet; Evictions After Foreclosure §7.19A
VII. APPORTIONMENT OF RENT §7.20
VIII. METHOD OF SERVICE §7.21
IX. TENANCY AT WILL §7.22
X. EFFECT OF SERVICE OF 30-DAY OR 60-DAY NOTICE IN CONJUNCTION WITH SERVICE OF 3-DAY NOTICE §7.23
XI. COMMON FLAWS IN NOTICE OR ITS SERVICE, RENDERING NOTICE INEFFECTIVE §7.24
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Service of Notices on Tenant
I. EVALUATING SERVICE OF NOTICE §8.1
II. METHODS OF SERVICE OF NOTICE §8.2
A. Personal Service §8.3
B. Substituted Service (CCP §1162(a)(2)) §8.4
C. Service by Posting, Delivery, and Mail (CCP §1162(a)(3)) §8.5
1. Service by Posting Alone Is Insufficient §8.6
2. Service by Mail Alone Is Insufficient §8.7
D. Extension of Tenant’s Time to Act When Notice Is Mailed §8.8
1. Notice Effective on Receipt §8.8A
2. Notice Effective on Mailing §8.8B
3. Effective Date of Notice Extended by CCP §1013 §8.8C
4. Rationale Favoring Extension of Response Period Under CCP §1013 When Notice Is Mailed §8.9
III. IMPROPER SERVICE
A. Effect of Defective Service of Notice §8.10
B. Actual Receipt of Improperly Served Notice §8.11
IV. EFFECT OF SERVICE ON PERSONS OTHER THAN TENANT §8.12
A. Occupants Who Are Neither Tenants nor Subtenants §8.13
B. Cotenants §8.14
C. Subtenants §8.15
V. EXAMPLES OF COMMON MISTAKES IN SERVICE §8.16
VI. PROOF OF SERVICE OF NOTICE §8.17
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Negotiating Strategies
I. IMPORTANCE OF NEGOTIATION AND EARLY SETTLEMENT §9.1
A. Definitions of Terms: “Negotiation,” “Target Point,” “Resistance Level,” and “Bottom Line” §9.2
B. Determining Tenant’s Goals and Expectations §9.3
C. Determining the Bargaining Range §9.4
D. Possible Bargaining Outcomes §9.5
E. Evaluating Case §9.6
II. KEY FACTORS TOWARD SETTLEMENT IN TENANT’S FAVOR
A. Merits of Tenant’s Case §9.7
B. Whether Tenant Is Willing to Relinquish Possession §9.8
C. Whether Tenant Is Impervious to Judgment for Damages §9.9
D. Whether Rental Agreement Contains Attorney Fee Clause §9.10
III. DEVELOPING A BARGAINING STRATEGY §9.11
A. Look for Means to Strengthen Tenant’s Case and Weaken Landlord’s §9.12
B. Tenant’s Attorney Must Be Ready to Move Quickly to Take Advantage of Settlement Opportunities §9.13
C. Tenant’s Attorney Should Be Aware of Landlord’s Goals and Fears §9.14
D. Determining How Much to Demand in Initial Settlement Offer §9.15
IV. ADVANTAGES AND DISADVANTAGES OF FACING OPPOSING COUNSEL KNOWN TO TENANT’S COUNSEL §9.16
V. USING BARGAINING TACTICS §9.17
VI. COMMUNICATING WARNINGS TO OPPOSING PARTY §9.18
VII. WHEN LANDLORD’S COUNSEL APPEARS TO BE DRAWING OUT ACTION TO GENERATE FEES §9.19
VIII. DRAFTING SETTLEMENT AGREEMENT §9.20
IX. EVALUATING SUCCESS OF SETTLEMENT AGREEMENT §9.21
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Proceeding in Forma Pauperis
I. AUTHORITY FOR OBTAINING WAIVER OF COURT FEES AND COSTS §10.1
II. RIGHT TO PROCEED IN FORMA PAUPERIS §10.2
III. SUBSTANTIVE SHOWING OF INDIGENCE §10.3
IV. CLASSES OF CLAIMANTS AND CATEGORIES FOR WHICH FEES AND COSTS MAY BE WAIVED §10.4
V. FEES AND COSTS IN TRIAL COURT
A. Types of Fees and Costs Waived by Initial Application §10.5
B. Waiver of Other Fees and Costs §10.6
C. Applying to Proceed in Forma Pauperis
1. Procedure for Request for Waiver of Court Fees and Costs §10.7
2. Grant of Waiver of Court Fees and Costs Without Hearing §10.7A
3. Hearing on Applicant’s Entitlement to Waiver of Court Fees and Costs §10.7B
4. Court Issues and Serves Order on Request to Waive Court Fees §10.7C
5. Effect of Denial of Waiver on Pleadings Already Filed by Applicant §10.7D
6. Procedure for Subsequent Determinations of Fee Waiver Eligibility §10.8
D. Right to Waiver or Reimbursement of Discovery Costs §10.9
E. Right to Appointment of Attorney §10.10
VI. FEES AND COSTS ON APPEAL
A. Proceeding in Forma Pauperis §10.11
1. Filing Fees §10.11A
2. Fees for Transcript §10.11B
3. Fees for Interpreter §10.11C
4. Appeal Bond Fees §10.11D
B. Review of Denial of Request §10.12
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Service of Summons and Complaint; Motion to Quash Service of Summons
I. SERVICE OF SUMMONS AND COMPLAINT §11.1
II. IMMEDIATE ACTIONS THAT CAN BE TAKEN ON TENANT’S BEHALF AFTER SERVICE OF SUMMONS §11.2
III. ATTEMPTS TO AVOID SERVICE OF SUMMONS §11.3
IV. FORM OF SUMMONS §11.4
V. FORM: SUMMONS—UNLAWFUL DETAINER—EVICTION (JUDICIAL COUNCIL FORM SUM-130) §11.5
VI. SERVICE OF PROCESS §11.6
A. Methods of Service §11.7
B. Strict Construction of Service Statutes §11.8
C. Effect of Defective Service §11.9
D. New Summons Need Not Be Served With Service of Amended Complaint §11.10
E. Return of Service §11.11
F. Personal Service §11.12
G. Substituted Service §11.13
1. Substituted Service on Individual Defendant §11.14
2. Substituted Service on Business Entity §11.15
3. Showing Reasonable Diligence §11.16
4. Recital on Return of Service §11.17
H. Service by Mail With Acknowledgment of Receipt §11.18
I. Service by Posting and Mailing §11.19
J. Order Allowing Service by Posting §11.20
K. Completion Date of Service by Posting §11.21
L. Service by Publication §11.22
VII. SPECIAL APPEARANCE REQUIRED ON MOTION TO QUASH
A. What Constitutes a General Appearance §11.23
B. Making a Special Appearance §11.24
VIII. GROUNDS FOR MOTION TO QUASH §11.25
A. Error in Filled-Out Summons §11.26
B. Failure to Properly Serve All Required Papers §11.27
C. Motion to Quash When Cause of Action Is Not Properly Unlawful Detainer §11.28
D. Complaint Contains Another Cause of Action in Addition to Unlawful Detainer §11.29
E. Complaint Prays for Damages Not Allowed in Unlawful Detainer §11.30
F. Defendant Erroneously Designated
1. Pleading Requirements; “Doe” Defendants §11.31
2. Entering Judgment Against “Doe” Defendant §11.32
IX. CONSTITUTIONAL CHALLENGE TO FIVE-DAYS-TO-ANSWER REQUIREMENT §11.33
X. MOTION TO QUASH—PROCEDURE
A. Time to File Motion; Effect of Motion on Time to File Answer §11.34
B. Form of Notice §11.35
C. Hearing on Motion to Quash; Burden of Proof §11.36
D. Filing Fees §11.37
XI. FORM: MOTION TO QUASH SERVICE OF SUMMONS; POINTS AND AUTHORITIES; DECLARATION OF TENANT §11.38
XII. FORM: ORDER GRANTING MOTION TO QUASH SERVICE OF SUMMONS §11.39
XIII. EFFECT OF GRANTING MOTION TO QUASH §11.40
XIV. EFFECT OF DENIAL OF MOTION TO QUASH §11.41
XV. APPLICATION FOR WRIT OF MANDATE IF MOTION DENIED §11.42
XVI. POSSIBLE EFFECT OF CCP §1167.4 ON WHETHER TIME FOR FILING RESPONSIVE PLEADINGS IS TOLLED BY PETITION FOR WRIT §11.43
XVII. CHART: TIMELINE FOR TENANT ACTIONS IF SUMMONS OR SERVICE OF SUMMONS WAS DEFECTIVE §11.44
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Default Judgments
I. PROCEDURE FOR OBTAINING JUDGMENT BY DEFAULT §12.1
II. CHECKLIST: OBTAINING RELIEF FROM ENTRY OF DEFAULT §12.2
III. SERVICE OF APPLICATION FOR ENTRY OF DEFAULT; LANDLORD’S OBLIGATION TO INFORM TENANT §12.3
IV. EFFECT OF ENTRY OF DEFAULT; LATE FILING OF RESPONSE §12.4
V. ENTRY OF DEFAULT; WRIT OF IMMEDIATE POSSESSION §12.5
VI. PROVE-UP HEARING FOR RELIEF OTHER THAN RESTITUTION §12.6
VII. PROCEDURE FOR ENTERING DEFAULT IF SERVICE WAS BY PUBLICATION §12.7
VIII. SETTING ASIDE DEFAULT AND DEFAULT JUDGMENT §12.8
A. Stipulation to Set Aside Default and Default Judgment §12.9
B. Form: Stipulation to Set Aside Default and Default Judgment; Order §12.10
C. Procedures for Applying to Set Aside Default §12.11
D. Grounds for Setting Aside Default and Default Judgment §12.12
1. Mistake, Inadvertence, Surprise, or Excusable Neglect (CCP §473)
a. Relief May Be Granted for Client or Attorney Error §12.13
b. Relief Must Be Granted for Attorney Error §12.14
c. Time Limitations on Bringing Motion Under CCP §473 §12.15
d. Showing in Support of Motion; Declaration §12.16
e. Excuses for Default; Examples §12.17
(1) Mistake of Fact §12.18
(2) Attorney’s Mistake of Law §12.19
(3) Excusable Neglect §12.20
(4) Fraud §12.21
2. Clerical Mistakes; Vacating Void Judgments (CCP §473, ¶4) §12.22
a. Judgment Void on Its Face §12.23
b. Judgment Void in Fact, But Not Void on Its Face §12.24
3. When Service of Summons Does Not Result in Actual Notice to Party (CCP §473.5) §12.25
4. Motion or Separate Action in Equity Available to Vacate Judgment on Ground of Fraud or Mistake §12.26
5. Erroneously Entered Default or Default Judgment §12.27
6. Examples of Erroneously Entered Defaults and Default Judgments §12.28
IX. WHEN WRIT OF EXECUTION HAS BEEN ISSUED §12.29
X. FORMS: MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT
A. Form: Notice of Motion to Set Aside Default and Default Judgment; Supporting Memorandum §12.30
B. Form: Declaration Supporting Motion to Set Aside Default and Default Judgment §12.30A
XI. ORDER SETTING ASIDE DEFAULT AND DEFAULT JUDGMENT §12.31
XII. FORM: ORDER SETTING ASIDE DEFAULT AND DEFAULT JUDGMENT §12.32
XIII. EFFECT OF ORDER SETTING ASIDE DEFAULT AND DEFAULT JUDGMENT §12.33
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Demurring and Moving to Strike
I. ATTACKING LEGAL SUFFICIENCY OF COMPLAINT §13.1
II. THE DEMURRER §13.2
A. Grounds for General Demurrer §13.3
B. Grounds for Special Demurrer §13.4
C. Sustaining Demurrer With or Without Leave to Amend §13.5
D. Demurrer Permitted on Grounds of No Jurisdiction Over Subject Matter §13.6
E. Effect of Another Pending Unlawful Detainer Action §13.7
F. Parties
1. Improper Defendant §13.8
2. Improper Plaintiff §13.9
G. Venue and Trial Court Location §13.10
H. Description of Premises With Reasonable Certainty §13.11
I. Existence of Landlord-Tenant Relationship §13.12
J. Notice of Termination
1. Alleging Service of Notice §13.13
2. Alleging Proper Notice §13.13A
3. Alleging Contents of Notice §13.14
a. Default in Rent §13.15
b. Breach of Covenant Other Than Nonpayment of Rent §13.16
c. Subletting, Waste, Nuisance, or Use for Unlawful Purpose §13.17
d. Expiration of Term
(1) Fixed Term §13.18
(2) Periodic Tenancy §13.19
K. Tenant Continues in Possession §13.20
L. Fraud, Force, or Violence §13.21
M. Compliance With Implied Warranty of Habitability §13.22
N. Statute of Limitations §13.23
O. Checklist: Demurrable Defects in Complaint §13.23A
P. Form: Demurrer to Complaint §13.24
III. MOTION TO STRIKE §13.25
A. Irrelevant, False, or Improper Allegations §13.26
B. Defects Not Subject to Demurrer §13.27
C. Improper Request for Damages §13.28
D. Necessary Allegations for Finding Statutory Damages §13.29
E. Rental Value of Premises After Suit Brought §13.30
F. Attorney Fee Provision in Lease §13.31
G. Verification §13.32
H. Failure to State “§1161a” in Caption §13.32A
I. Sample Form: Motion to Strike §13.33
IV. PROCEDURE FOR DEMURRER AND MOTION TO STRIKE
A. Answer May Be Filed With Demurrer §13.34
B. Timing of Hearing on Demurrer and Motion to Strike §13.35
C. Supporting Memorandum §13.36
D. Effect of Overruling of Demurrer §13.37
E. Frivolous Demurrers §13.38
F. Motion to Strike §13.39
V. FILING FEES §13.40
VI. EXTENSION OF TIME TO PLEAD §13.41
VII. MOTION FOR JUDGMENT ON PLEADINGS §13.42
VIII. SPECIAL (ANTI-SLAPP) MOTION TO STRIKE §13.43
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Answering and Alleging Affirmative Defenses
I. RIGHT TO ANSWER §14.1
II. USE OF JUDICIAL COUNCIL FORMS §14.2
III. TIME TO ANSWER §14.3
IV. GOOD CAUSE TO EXTEND TIME TO ANSWER
A. Length of Extension §14.4
B. Steps Tenant Should Take to Get Extension of Time to File Answer §14.5
V. DENIALS §14.6
VI. BASES FOR DENIALS §14.7
VII. AFFIRMATIVE DEFENSES §14.8
A. Priority of Title After Foreclosure Sale §14.9
B. Implied Warranty of Habitability and Retaliatory Eviction §14.10
C. “Equitable” Defenses §14.11
D. Laches §14.12
E. Other Affirmative Defenses §14.13
F. Illegal Discrimination §14.13A
1. Violation of Unruh Civil Rights Act as Defense §14.14
a. Application of Unruh Act to Landlords §14.15
b. Prohibition of Arbitrary Discrimination Under Unruh Act §14.16
c. Minimum Income Policy §14.17
d. Examples of Reach of Unruh Act §14.18
2. Discrimination Based on Age
a. Discrimination Against Families With Children §14.19
b. Senior Citizen Housing §14.20
3. Discrimination Under Federal Fair Housing Acts §14.21
4. Discrimination Under California Fair Employment and Housing Act §14.22
5. Family Day Care Home §14.22A
6. Immigration Status §14.22B
7. Domestic Violence §14.22C
G. Other Violations of Housing Statutes and Ordinances
1. Certificate of Occupancy Violations §14.23
2. Landlord’s Duty to Repair; “Repair and Deduct” Statutes (CC §§1941–1942.5) §14.24
3. Violation of Tenantability Statutes (CC §1942.4) §14.24A
a. Indications That Premises Are Untenantable §14.25
b. Conditions Rebuttably Presumed to Breach Habitability Requirements §14.26
c. If Tenant Causes Condition of Premises §14.27
d. Tenant’s Remedies §14.28
e. Waiver of Tenant’s Rights §14.29
4. Statutory Violations Under Rent Control §14.30
H. Fraud §14.31
I. Adhesion Contract §14.32
J. Waiver and Estoppel §14.33
K. Express Promise to Repair §14.34
1. Dependent or Independent Covenants §14.35
2. Oral Promise Made Before Written Lease §14.36
a. Consideration §14.37
b. Statute of Frauds §14.38
c. Parol Evidence Rule as Applied to Leases §14.39
d. Dependency of Covenants §14.40
3. Tenant’s Arguments for Admission of Oral Promise Made Before or at Time of Execution of Written Agreement §14.41
4. Oral Promise Made Before Entry Into Oral Lease §14.42
5. Promise Made Subsequent to Lease §14.43
6. When Tenant Makes Promise to Repair §14.43A
L. Implied Covenant of Good Faith §14.44
M. Actual Partial Eviction §14.45
N. Notice Served More Than One Year After Rent Due §14.46
O. Breach of Covenant of Quiet Enjoyment §14.47
P. Offsets §14.48
Q. When Tenant Has Vacated Premises §14.49
VII. VERIFICATION §14.50
VIII. FILING ANSWER AFTER RULING ON DEMURRER §14.51
IX. EXTENSION OF TIME TO PLEAD §14.52
X. AMENDING ANSWER §14.53
XI. CROSS-COMPLAINTS §14.54
A. When Tenant Has Vacated Premises §14.55
B. When Landlord Fails to Challenge Cross-Complaint §14.56
C. Procedure §14.57
D. Form: Answer—Unlawful Detainer (Judicial Council Form UD-105) [Deleted] §14.58
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Affirmative Defenses—Implied Warranty of Habitability
I. INTRODUCTION
A. Adoption of Implied Warranty of Habitability: Hinson v Delis; Green v Superior Court §15.1
B. Definition of Implied Warranty of Habitability §15.2
C. Supreme Court Rationale in Adopting Implied Warranty Doctrine §15.3
D. Landlord May Be Held in Breach Even if Another Is Responsible for Defect §15.4
E. Time Within Which Landlord Must Correct Defects §15.5
II. USES OF IMPLIED WARRANTY OF HABITABILITY DOCTRINE §15.6
A. When Warranty Used in Suit for Affirmative Damages and Other Relief §15.7
B. Procedure When Using Warranty as Defense in Unlawful Detainer Action §15.8
C. Effect of Tenant Prevailing at Trial on Warranty Defense §15.9
III. ESTABLISHING BREACH OF WARRANTY
A. Facilities Covered §15.10
1. Government-Owned Housing §15.11
2. Portions of Premises Covered by Warranty of Habitability §15.12
B. Housing and Building Code Violations
1. Sources of Housing and Building Code Standards §15.13
2. Examples of Housing and Building Code Violations §15.13A
3. Jury Instructions Relating to Code Violations §15.14
4. Defects Actionable Under Implied Warranty or Negligence But Not Covered by Housing and Building Codes §15.15
C. Failure to Protect Tenants From Criminal Acts §15.16
1. Determining Whether Landlord Has a Duty to Protect Against Criminal Acts §15.17
2. Examples of Duty Not Found or Duty Held Not Breached §15.18
3. Examples of Duty Found or Landlord Held in Breach §15.19
4. Breach of Duty Raised by Allegation of Breach of Implied Warranty §15.20
5. Level of Security at Time Tenant Moves Into Premises §15.21
6. Proving Causation §15.21A
D. Seriousness of Defects
1. Requirement That Defects Be Serious §15.22
2. Examples of Defects Held Serious Enough to Constitute Breach of Implied Warranty §15.23
3. Evidence of Breach §15.24
a. Proving That Existing Conditions Violate Code §15.25
b. Presumption of Breach of Habitability Standards §15.26
c. Viewing the Premises §15.27
E. Special Problems
1. Premises Uninhabitable at Inception of Tenancy §15.28
2. Premises Become Uninhabitable After Tenant Is Served With Notice of Termination §15.29
3. Waiver of Warranty §15.30
4. Defect Caused by Tenant’s Wrongful Action §15.31
5. Defects Caused by Acts of Nature §15.32
IV. NOTICE OF DEFECT §15.33
V. REASONABLE TIME TO REPAIR NOT REQUIRED §15.34
VI. PROTECTIVE ORDERS §15.35
A. When Protective Orders Are Appropriate §15.36
B. Advantages to Tenant of Voluntary Deposit Into Attorney’s Trust Account §15.37
VII. DAMAGES FOR BREACH OF IMPLIED WARRANTY §15.38
A. Relief Based on Affirmative Defense of Breach of Implied Warranty §15.39
1. Period During Which Damages Accrue §15.40
2. Tenant Must Pay “Reasonable Rent” Even if Warranty Breached §15.41
3. Various Approaches to Measuring Damages §15.42
a. “Difference-in-Value” Approach §15.43
b. “Discomfort-and-Annoyance” Approach §15.44
c. “Percentage-Reduction-of-Use” Approach §15.45
4. Limits on Amount by Which Rent May Be Reduced §15.46
5. Amount of Rent Reduction in Subsidized Housing §15.46A
6. Nominal Damage Awards §15.47
B. Actions Brought Under CC §1942.4 §15.48
C. Actions Based on Tort of Breach of Implied Warranty §15.49
D. Hybrid View of Warranty of Habitability—Contract and Tort §15.50
VIII. EFFECT OF RECENT PURCHASE OF PROPERTY BY LANDLORD §15.51
IX. LACK OF CERTIFICATE OF OCCUPANCY §15.52
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Affirmative Defenses—Retaliatory Evictions
I. LEGAL FRAMEWORK §16.1
II. SEVERAL SOURCES OF LAW MAY APPLY SIMULTANEOUSLY §16.2
A. Civil Code §1942.5
1. Tenants’ Actions on Habitability (CC §1942.5(a))
a. Protected Parties and Acts §16.3
b. Limitations on Protection
(1) Tenant Cannot Be in Default in Payment of Rent §16.4
(2) Tenant May Not Invoke CC §1942.5(a) More Than Once a Year §16.5
(3) Protective Period Under CC §1942.5 Limited to 180 Days §16.6
(4) Defense Unavailable in Ellis Act Evictions §16.6A
2. Tenant Union Activity (CC §1942.5(c)) §16.7
3. Exercise of “Rights Under Law” (CC §1942.5(c)) §16.8
a. Additional Examples of Acts Protected by CC §1942.5(c) §16.9
b. Examples of Acts Protected Before Enactment of CC §1942.5 §16.10
4. Tenant Cannot Waive Rights (CC §1942.5(d)) §16.11
5. Notice and Burden of Proof (CC §1942.5(e)) §16.12
6. Procedure for Proving Retaliation When Landlord Includes Grounds in Notice (CC §1942.5(e)) §16.13
7. Remedies (CC §1942.5(f)–(g)); Punitive Damages and Attorney Fees §16.14
8. Remedies Not Exclusive (CC §1942.5(h)) §16.15
B. Public Policy; Retaliation for Refusal to Commit Crime Improper §16.16
C. Victims of Domestic Violence §16.16A
D. Other Statutory Rights
1. Retaliation Based on Tenant’s Assertion of Statutory Rights; Implied Protection §16.17
2. Retaliation Based on Tenant’s Assertion of Statutory Rights; Express Statutory Protection §16.18
3. Common Law §16.19
4. Local Rent Control Ordinances §16.20
5. Constitution §16.21
III. LIMITATIONS ON RETALIATORY EVICTION DEFENSE §16.21A
IV. PROOF OF RETALIATORY MOTIVE
A. Sole or Dominant Motive §16.22
B. Treatment of Mixed Motives in Labor Law §16.23
C. Presumptions and Burden of Proof §16.24
D. Evidence §16.25
E. Analogies Drawn From Labor Law to Prove Retaliatory Motive §16.26
F. Form: Affirmative Defense on Ground of Retaliatory Eviction §16.27
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Special Considerations Governing Evictions in Rent-Controlled Cities
Myron Moskovitz
Sonya Bekoff Molho
Steven A. MacDonald
Denise McGranahan
Sallyann Molloy
I. SCOPE OF LOCAL RENT CONTROL ORDINANCES
A. Local Control Versus State Preemption §17.1
B. Statewide Vacancy Decontrol
1. Existing Housing §17.1A
a. Phase-In Periods §17.1B
b. Lease Restrictions on Subletting Allowed §17.1C
c. Exceptions to Preemptive Effect §17.1D
2. New Construction and Single-Unit Exclusions §17.1E
a. Phase-In Periods for Condominiums and Single-Family Homes §17.1F
b. Exceptions to Preemptive Effect §17.1G
II. PRACTICE CONSIDERATIONS IN RENT CONTROL JURISDICTIONS §17.2
III. CITIES SUBJECT TO RENT CONTROL §17.3
IV. EVICTIONS AND RENT CONTROL
A. Overview §17.4
B. Just Cause for Eviction §17.5
1. Failure to Pay Rent §17.6
2. Failure to Cure Violation of Rental Agreement §17.7
3. Conduct Constituting a Nuisance §17.8
4. Use of Premises for Illegal Purpose §17.9
5. Refusal to Permit Landlord Access to Premises §17.10
6. Refusal to Execute New Lease §17.11
7. Subletting §17.12
8. Violation of Lease Restricting Occupancy §17.12A
a. Exception: Relative or Domestic Partner of Tenant §17.12B
b. Exception: Surviving Relative of Deceased Tenant §17.12C
c. Exception: Landlord Knowingly Accepts Rent From Occupant §17.12D
9. Rehabilitation of Unit §17.13
10. Demolition or Conversion of Units—Ellis Act Evictions §17.14
a. Constitutional Challenges; Preemption §17.14A
b. Effect of Other State Laws §17.14B
11. Occupancy by Owner or Owner’s Relative §17.15
a. Representing Tenants in Evictions for Owner Occupancy §17.16
b. Good Faith in Owner-Occupancy Evictions §17.17
12. Grounds Not Stated in Ordinance: Termination of Manager; Foreclosure §17.18
13. Failure to Use Premises as Principal Residence §17.18A
C. Notice and Pleading Requirements §17.19
D. Burdens of Proof and Presumptions §17.20
E. Defenses to Evictions §17.21
F. Statute of Limitations §17.22
G. Damages for Unlawful Evictions §17.23
H. Attorney Fees §17.24
V. NEGOTIATING AND DEFENDING ELLIS ACT EVICTIONS
A. Preliminary Considerations
1. Scope of Ellis Act §17.25
2. Representing Organized Tenants §17.26
3. Factual Investigation
a. Review Notices and Status of All Affected Units §17.27
b. Explain Ellis Process to Client §17.28
c. Ascertain Client’s Age, Health, and Economic Status §17.29
d. Investigate Unexpired Leases §17.30
B. Relocation Benefits §17.31
1. Benefits Available for Displaced Tenants Regardless of Income §17.32
2. Landlord’s Misrepresentation of Availability of Benefits §17.33
3. Documentation Proving Eligibility §17.34
4. Other Issues Affecting Payment of Benefits
a. Timely Payment §17.35
b. Waiver of Relocation Fees §17.36
c. One Fee per Unit §17.37
d. Services in Lieu of Fees §17.38
e. Failure to Pay Fees §17.39
C. Technical Defenses Based on Notice and Filing Requirements §17.40
D. Unexpired Leases §17.41
E. Tenant’s Options Regarding Unlawful Detainer Action Under Ellis Act
1. Answering the Complaint §17.42
2. Retaliatory Eviction Defense Limited §17.43
3. Failure to Take All Units Off Market §17.44
4. Other Possible Defenses §17.45
F. Discovering Violations After Eviction
1. Use of Ellis Act to Move Out Long-Term Tenants §17.46
2. Use of Post-Ellis Property for Home Ownership §17.47
a. Effect of State and Local Subdivision Laws §17.48
b. Effect of State and Local Laws Regulating Apartment Conversions §17.49
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Special Considerations Governing Evictions From Federally Assisted Housing
Catherine M. Bishop
Nancy Ann Palandati
Deborah A. Collins
I. “FEDERALLY ASSISTED LOW-INCOME HOUSING” DEFINED §18.1
II. ASCERTAINING WHETHER TENANT LIVES IN FEDERALLY ASSISTED HOUSING AND, IF SO, WHAT KIND §18.2
III. TYPES OF FEDERAL HOUSING PROGRAMS §18.3
A. Public Housing §18.3A
B. Section 8 §18.3B
C. HUD-Assisted and -Subsidized Housing §18.3C
D. HUD-Assisted Units Threatened With Prepayment of Mortgage or Opt-Out of Section 8 Contract §18.3D
E. Rural Housing Service (RHS) Subsidized Rental Housing §18.3E
F. Low-Income Housing Tax Credit (LIHTC) §18.3F
G. Other State and Local Programs §18.3G
IV. SUBSTANTIVE RIGHTS IN EVICTION ACTIONS
A. Application of State Law §18.4
B. Evictions After Foreclosure
1. Preemptive Measures Governing Evictions §18.4A
2. Postponing Sale of Multifamily Residential Buildings §18.4B
C. Good Cause Requirement §18.5
1. Public Housing §18.6
2. Project-Based Section 8 and HUD-Assisted and -Subsidized Housing §18.7
3. Section 8 Housing Choice Voucher Program §18.8
4. Rural Housing Service (RHS) Rental Housing §18.9
5. State and Local Housing Programs for Low-Income Families §18.10
6. Other Housing Programs for Low-Income Families §18.11
D. Facts Constituting Good Cause §18.12
1. Failure to Pay Rent §18.13
2. Serious Tenant Wrongdoing, Including Criminal Activity
a. Violation of Lease or State or Federal Law §18.14
b. Drug or Criminal Activity
(1) Statutory Authorization and Standards for Eviction §18.15
(2) Federal Standards Upheld in Rucker §18.16
(3) When State Law Standards Apply §18.16A
(4) Aftermath of Rucker; Unresolved Issues §18.17
(5) Permission to Obtain Criminal Records, Drug Treatment Information §18.17A
c. Exception: Victims of Domestic Violence Protected §18.17B
3. Violation of Program Regulations §18.18
4. Examples of Improper Grounds for Evicting Tenant §18.19
E. Defending Evictions
1. Project Owner’s Abuse of Power §18.20
2. Defensive Strategies in PHA Evictions §18.20A
3. Bankruptcy Discharge of Delinquent Rent in Public or Subsidized Housing §18.20B
V. EVICTION PROCEDURES: NOTICE AND ADMINISTRATIVE HEARING OR MEETING §18.21
A. Notice Requirements §18.22
B. Pretermination Grievance Hearing or Meeting §18.23
C. Notice and Hearing Required Before Forfeiture Under Federal Antidrug Statute §18.24
D. Relief From Forfeiture §18.25
VI. DAMAGES MAY BE AWARDED FOR WRONGFUL EVICTION FROM FEDERALLY ASSISTED HOUSING §18.26
VII. ENJOINING EVICTIONS FROM FEDERALLY ASSISTED HOUSING §18.27
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Special Considerations Governing Evictions in Commercial Tenancies
Myron Moskovitz
Clifford R. Horner
I. OVERVIEW OF UNLAWFUL DETAINER IN COMMERCIAL TENANCIES §19.1
II. THREE-DAY NOTICE TO PAY RENT OR QUIT
A. Lease Provisions May Affect Eviction Procedures §19.2
B. Statutory Requirements
1. Estimated Rent (CCP §1161.1) §19.3
2. When Rent Is Not Estimated §19.4
3. Service Requirements §19.5
4. Landlord’s Acceptance of Partial Tender of Rent §19.6
III. THREE-DAY NOTICE FOR VIOLATION OF COVENANT OTHER THAN PAYMENT OF RENT §19.7
A. Covenants Restricting Assignments
1. Common Law Rules §19.8
2. Statutory Law §19.9
B. Covenants Regarding Tenant Improvements §19.9A
C. Covenants Restricting Change in Use §19.10
IV. TERMINATION NOTICES FOLLOWING FORECLOSURE §19.10A
V. TERMINATION UNDER EXPRESS LEASE PROVISIONS §19.10B
VI. DEFENDING EVICTION BY ASSERTING BREACH OF LEASE BY LANDLORD
A. Covenant to Repair; Implied Warranty of Habitability
1. Dependent Versus Independent Covenants §19.11
2. Argument Favoring Adoption of Dependent Covenant Doctrine in Commercial Leases §19.12
a. Minimize Litigation §19.13
b. Eliminate Unfair Burdens on Tenant §19.14
c. Protect Tenant’s Right to Pursue Livelihood §19.15
d. No Impact on Summary Nature of Unlawful Detainer §19.16
e. Out-of-State Decisions Favor Interdependent Covenants §19.17
3. Effect of Toxic Mold Legislation §19.17A
B. Covenant of Quiet Enjoyment §19.18
C. Other Contractual Defenses §19.18A
D. Implied Warranty of Fitness §19.19
E. Implied Covenant of Good Faith §19.20
1. Duty to Maintain Third Party Leases §19.21
2. Sublessor Required to Exercise Option to Extend Master Lease §19.22
3. “No Compete” Covenant Applied to Expansion of Shopping Center §19.23
4. Good Faith Covenant Applied in Favor of Landlord §19.24
VII. NONCONTRACTUAL DEFENSES TO COMMERCIAL EVICTION ACTIONS
A. Retaliatory Eviction §19.25
B. Good Cause to Terminate Petroleum Distributorship §19.26
C. Equitable Defenses §19.27
VIII. LANDLORD’S RIGHT OF ENTRY PENDING EVICTION §19.28
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Effect of Sale of Property on Unlawful Detainer Proceedings
I. EFFECT OF SALE OF PROPERTY ON UNLAWFUL DETAINER §20.1
A. Sale Before Eviction Action Is Begun §20.2
B. Sale After Eviction Action Has Begun §20.3
II. EVICTING AFTER SALE UNDER CCP §1161a §20.4
A. Use of 30-Day Notice on Residential Owner’s Tenant or 60-Day or 90-Day Notice After Foreclosure §20.5
1. When 60-Day Notice Applies §20.6
2. Additional Preforeclosure Notice of Sale §20.7
3. Postponing Sale of Multifamily Residential Buildings §20.7A
4. When 90-Day Notice Applies §20.8
B. Litigating Title in Unlawful Detainer Action §20.9
C. Effect of Local Eviction Control Ordinances §20.10
D. Effect of Section 8 Eviction Controls §20.11
E. Postforeclosure Bank Eviction Policies §20.12
F. Defending Postforeclosure Evictions: Priority of Title, Title Dispute, Improper Foreclosure, or Improper Notice Following Foreclosure §20.13
III. UTILITY CUTOFFS §20.14
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Effect of Filing Bankruptcy on Proceedings in Unlawful Detainer
I. EFFECT OF TENANT FILING BANKRUPTCY
A. Automatic Stay on Evictions §21.1
B. Exceptions to Stay for Residential Tenancies
1. After Entry of Judgment for Eviction §21.1A
2. When Eviction Based on Endangerment of Property or Illegal Use of Controlled Substance §21.1B
C. Significant Changes Under 2005 Act §21.1C
II. LANDLORD MAY SEEK RELIEF FROM AUTOMATIC STAY §21.2
III. PENALTY FOR IMPROPER FILING OF BANKRUPTCY §21.3
IV. LEASE CLAUSES PURPORTING TO TERMINATE LEASE ON FILING OF BANKRUPTCY §21.4
V. TERMINATION OF UTILITIES AND OTHER SERVICES §21.5
VI. ASSUMPTION OF LEASE BY TRUSTEE §21.6
VII. SECURITY DEPOSITS §21.7
VIII. DISADVANTAGES TO TENANT OF FILING FOR BANKRUPTCY §21.8
IX. FILING PETITION IN BANKRUPTCY AS TACTIC IN UNLAWFUL DETAINER ACTION §21.9
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Summary Judgment
I. PURPOSE OF MOTION FOR SUMMARY JUDGMENT §22.1
II. TIMING OF MOTION §22.2
III. BURDEN OF PROOF §22.2A
IV. FACTUAL BASES FOR TENANT’S MOTION FOR SUMMARY JUDGMENT §22.3
V. MOVING PARTY’S SUPPORTING PAPERS §22.4
VI. OPPOSING PARTY’S COUNTERDECLARATIONS; ORDERS §22.5
VII. SUMMARY ADJUDICATION OF ISSUES §22.6
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Discovery
I. PURPOSES OF DISCOVERY §23.1
II. STATUTORY METHODS OF DISCOVERY §23.2
III. AVAILABILITY OF DISCOVERY IN UNLAWFUL DETAINER §23.3
IV. DEFENSE STRATEGY SHOULD INCLUDE PLAN FOR DISCOVERY §23.4
V. FORMAL AND INFORMAL DISCOVERY METHODS §23.5
VI. FORMULATING A DISCOVERY PLAN
A. When to Make and Implement Plan §23.6
B. Coordinating Various Discovery Techniques §23.7
C. Timeline for Initiating Tenant Discovery Directed to Landlord §23.8
D. Actions to Take if Discovery Cannot Be Completed Before Trial Date §23.9
VII. PURSUING DISCOVERY BEFORE ACTION FILED §23.10
A. Methods of Discovery Available Before Action Is Filed §23.11
B. Procedure for Pursuing Discovery Before Action Is Filed §23.12
C. Usefulness of Pursuing Discovery Before Action Is Filed §23.13
VIII. DISCOVERY AFTER SUMMONS AND COMPLAINT ARE SERVED §23.14
A. Time Limits on Responding to Discovery Requests §23.15
B. Preventing Setting of Trial Date Before Discovery Is Complete §23.16
C. Petitioning for Writ of Mandate if Court Refuses to Extend Trial Date §23.17
IX. METHODS OF DISCOVERY §23.18
A. Oral Depositions §23.19
1. Usefulness of Depositions §23.20
2. Expense of Depositions §23.21
3. Procedure for Oral Depositions
a. When Deposition May Be Taken §23.22
b. Setting Depositions of Parties §23.23
c. Setting Depositions of Nonparties §23.24
d. Witness and Mileage Fees §23.25
e. Procedures at Deposition §23.26
f. Inspection of Documents at Deposition §23.27
g. Reviewing, Correcting, and Approving Deposition §23.28
B. Written Interrogatories §23.29
1. Usefulness of Written Interrogatories §23.30
2. Disadvantages of Written Interrogatories §23.31
3. Limit on Number of Interrogatories That May Be Propounded §23.32
4. Form: Declaration for Additional Discovery §23.33
5. Procedure for Propounding Written Interrogatories §23.34
C. Pretrial Demand for Production of Documents or Inspection §23.35
1. Usefulness of Demand for Production §23.36
2. Introduction Into Evidence of Documents Produced §23.37
3. Tactical Considerations in Requesting Production §23.38
4. Protective Orders Against Request for Production §23.39
D. Requests for Admissions §23.40
1. Usefulness of Requests for Admissions §23.41
2. Procedure for Requests for Admissions §23.42
3. Form: Declaration in Support of Request for Additional Admissions §23.43
4. Effect of Failure to Respond to Request for Admissions §23.44
5. Effect of Failure to Admit Fact Later Found True §23.45
6. Requests for Admissions May Not Be Combined With Other Discovery Requests §23.46
7. Effect of Admission Made in Response to Request §23.47
8. Admissions and Responses Are Not Filed But Retained by Parties §23.48
X. SANCTIONS FOR REFUSAL TO MAKE DISCOVERY §23.49
A. Categories of Sanctions That May Be Imposed §23.50
B. What Constitutes Misuse of Discovery Process §23.51
C. Specific Sanctions That Court May Impose §23.52
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Rights of Occupants Not Named in Lease
I. OCCUPANTS WHO ARE NOT NAMED IN LEASE §24.1
II. PREJUDGMENT CLAIM OF RIGHT TO POSSESSION §24.2
A. Service of Prejudgment Claim to Right to Possession Form
1. Service by Marshal, Sheriff, or Process Server §24.3
2. Time of Service §24.4
3. Service on Occupants Other Than Tenant or Subtenant §24.5
B. Effect of Proper Service by Landlord of Prejudgment Claim Form §24.6
C. Effect of Inadequate Service by Landlord of Prejudgment Claim Form §24.7
D. Judicial Council Form CP10.5: Prejudgment Claim of Right to Possession §24.8
III. POSTJUDGMENT CLAIM OF RIGHT TO POSSESSION §24.9
A. Removal of Occupant by Sheriff or Marshal §24.10
B. Procedure by Occupant in Making Postjudgment Claim of Right to Possession §24.11
C. Judicial Council Form CP10: Claim of Right to Possession and Notice of Hearing §24.12
IV. HEARING ON CLAIM OF RIGHT TO POSSESSION §24.13
V. PROCEDURE AT HEARING ON CLAIM OF RIGHT TO POSSESSION §24.14
VI. PROCEEDING WITH ENFORCEMENT OF WRIT OF POSSESSION §24.15
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Trial
I. SETTING CASE FOR TRIAL
A. Request and Counter-Request to Set Trial §25.1
B. Setting Date for Trial §25.2
C. Effects of Local Practices §25.3
1. Trial by Temporary Judge §25.4
2. Procedure After Trial Date Is Set §25.5
D. Resetting Trial Date §25.6
1. Procedure If Parties Do Not Agree on New Trial Date §25.7
2. Determining Whether Moving Party Has Shown Good Cause §25.8
3. Determining Whether There Is Reasonable Probability Plaintiff Will Prevail at Trial §25.9
4. Determining Damages Landlord Might Suffer §25.10
5. Reduction of Damages Based on Diminution of Value or Setoff §25.11
6. Order to Deposit Potential Damages §25.12
7. Advancing Trial Date on Tenant’s Failure to Make Deposit §25.13
8. Costs of Escrow Recoverable by Prevailing Party §25.14
9. Distribution of Funds Held in Escrow After Trial §25.15
II. IF TENANT VACATES PREMISES BEFORE TRIAL §25.16
III. PRETRIAL CONFERENCE §25.17
IV. RIGHT TO JURY TRIAL §25.18
A. Jury Instructions §25.19
B. Waiver of Jury Trial
1. Bases for Waiver §25.20
2. Requesting Jury Trial After Waiver §25.21
3. Tenant’s Right to Jury Trial on Equitable Issues §25.22
a. Examples of Legal Issues §25.23
b. Examples of Equitable Defenses §25.24
C. Jury Verdicts
1. General and Special Verdicts §25.24A
2. Judgment Based on Jury Verdict §25.24B
V. DISQUALIFYING JUDGE §25.25
A. Challenge for Cause (CCP §170.1) §25.26
1. Conditions That May Not Be Used as Grounds to Disqualify Judge §25.27
2. Bias or Prejudice §25.28
3. Procedure for Disqualification §25.29
B. Peremptory Challenges (CCP §170.6)
1. Grounds for Challenge §25.30
2. Procedure for Peremptory Challenges §25.31
3. Time Limits for Moving to Challenge §25.32
4. Effect of Challenge §25.33
C. Tactical Considerations §25.34
VI. SUBPOENAS
A. Subpoenas for Witnesses §25.35
B. Subpoena Not Necessary to Require Attendance of Party or Agent §25.36
C. Service of Subpoena §25.37
D. Fees for Appearing in Court in Response to Subpoena §25.38
E. Subpoena Duces Tecum (Books and Papers) §25.39
1. Service of Subpoena Duces Tecum; Affidavit of Good Cause Necessary §25.40
2. Fees for Appearing in Court in Response to Subpoena Duces Tecum §25.41
3. Subpoena Duces Tecum Not Necessary for Party §25.42
F. Penalties for Disobeying Subpoena §25.43
VII. EVIDENCE PROBLEMS
A. Prima Facie Case; Nonsuit §25.44
B. Proof of Tenant’s Possession §25.45
C. Proof of Service of Notice §25.46
D. Proof of Rent Due §25.47
E. Judicial Notice §25.48
F. Use of Books and Records §25.49
G. Laying Foundation for Admission of Business Record §25.50
H. Proof of Damages §25.51
I. Waiver of Rent During Trial §25.52
J. Proving Retaliatory Eviction §25.53
1. Strength of Retaliatory Motive §25.54
2. Evidence of “Just Cause” to Evict §25.55
3. Evidence of Retaliatory Motive
a. Evidence Inferred by Conduct §25.56
b. Indirect Evidence §25.57
K. Fees for Appointment of Interpreter §25.58
VIII. TRIAL BRIEFS §25.59
IX. CONTINUANCES §25.60
A. Grounds for Continuance §25.61
1. Unavailability of Counsel §25.62
2. Unavailability of Party §25.63
3. Unavailability of Witness §25.64
4. Other Statutory Grounds for Granting Continuance §25.65
5. Unexpected Testimony §25.66
B. Procedure for Obtaining Continuance §25.67
1. Good Cause Required §25.67A
2. Stipulation for Continuance §25.67B
3. Conditions for Obtaining Continuance §25.67C
4. Appealability of Order Denying Continuance §25.67D
X. DEFAULTS AT TRIAL §25.67E
XI. CONFORMING PLEADINGS TO PROOF
A. General Law for Ordinary Civil Actions §25.68
B. Special Law for Unlawful Detainer Complaints
1. Amendment Based on Trial Evidence §25.68A
2. Amendments Before Trial Excluded §25.68B
3. Permissible Scope of Amendments §25.68C
C. Amended Versus Supplemental Complaint §25.68D
XII. STATEMENT OF DECISION §25.69
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Judgment
I. JUDGMENTS IN UNLAWFUL DETAINER ACTIONS §26.1
II. CONDITIONING JUDGMENT FOR TENANT ON PAYMENT OF RENT §26.2
III. TENANT MUST BE IN POSSESSION §26.3
IV. WHAT COURT CAN AWARD
A. Judgment Can Grant Possession of Premises §26.4
B. “Rent” and “Damages” §26.5
1. Determining Whether Amount Due Is Rent or Damages; Period Covered §26.6
2. Rent §26.7
3. Apportionment of Rent §26.8
4. Damages
a. Damages Occurring Before Holdover §26.9
b. Reasonable Rental Value During Holdover §26.10
c. Damages Against Subtenant §26.11
d. Damages After Judgment §26.12
e. Statutory Damages for Malicious Holdover §26.13
C. Forfeiture §26.14
D. Notice May Specify Election to Declare Forfeiture §26.15
E. Interest May Be Awarded §26.16
F. Costs May Be Awarded §26.17
G. Attorney Fees Authorized by Lease or Statute §26.18
1. Reciprocity of Attorney Fee Provision §26.19
2. Award of Fees Under Invalid Rental Agreement §26.20
3. Prevailing Party §26.21
4. Entitlement to Attorney Fees on Tender and Deposit of Amount Owed §26.22
5. Prevailing Party When Tenant Raises Habitability as Affirmative Defense §26.23
6. Size of Fee Award; Local Fee Schedules §26.24
7. Fees Awardable After Settlement Offer Rejected §26.25
8. Fees Awardable Beyond Court’s Jurisdictional Limit §26.26
9. Fees Awardable to Public Interest Attorneys §26.27
10. Fees Awardable for All Issues Argued §26.28
11. Attorney Fees Payable to Party—Not to Attorney §26.29
12. Attorney Fees Awardable as Sanctions Regardless of Lease Provision §26.30
13. Effect of Voluntary Dismissal §26.31
14. Fees Awardable for Enforcement of Right Important to Public Interest §26.32
15. Procedures for Requesting Fees §26.33
16. Related Statutes Providing for Award of Attorney Fees §26.34
H. Limitation on Award for Judgments in Municipal Court of Less Than $10,000 §26.35
I. Witness Fees May Be Awarded §26.36
J. Costs of Execution of Judgment May Be Recovered §26.37
V. EFFECT OF JUDGMENT ON CONSUMER CREDIT REPORTING §26.38
VI. RES JUDICATA AND COLLATERAL ESTOPPEL EFFECT OF JUDGMENT §26.38A
VII. UNLAWFUL DETAINER JUDGMENT FORMS
A. Form: Order for Judgment for Defendant Conditioned on Payment of Rent After Trial (Warranty of Habitability) §26.39
B. Form: Judgment—Unlawful Detainer (Judicial Council Form UD‑110) §26.40
C. Form: Judgment—Unlawful Detainer Attachment (Judicial Council Form UD‑110S) §26.41
D. Form: Stipulation for Entry of Judgment (Unlawful Detainer) (Judicial Council Form UD‑115) §26.42
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Posttrial Motions
I. POSTTRIAL MOTIONS COVERED §27.1
II. FIVE-DAY STATUTORY STAY OF EXECUTION (FOR APPLICATION FOR RESTORATION OF POSSESSION) §27.2
III. DISCRETIONARY STAY OF EXECUTION
A. Pending Hearing on Posttrial Motions §27.3
B. Temporary Stay Based on Hardship §27.4
C. Form: Ex Parte Application for Stay of Execution §27.5
D. Form: Memorandum in Support of Ex Parte Application for Stay of Execution §27.6
IV. MOTION FOR JUDGMENT NOTWITHSTANDING VERDICT §27.7
A. Grounds for Judgment Notwithstanding Verdict §27.8
B. Procedure for Making Notice of Motion §27.9
C. Time of Ruling on Motion §27.10
D. Form: Notice of Motion for Judgment Notwithstanding Verdict §27.11
E. Form: Order Granting or Denying Judgment Notwithstanding Verdict §27.12
V. MOTION FOR NEW TRIAL §27.13
A. Grounds for Motion for New Trial §27.14
B. Court’s Power to Vacate or Modify Judgment §27.15
C. Notice of Motion for New Trial §27.16
D. Time for Making Motion for New Trial §27.17
E. Form: Notice of Motion for New Trial §27.18
F. Form: Declaration in Support of Notice of Motion for New Trial §27.19
G. Hearing on Motion §27.20
H. Court’s Time to Rule on Motion §27.21
VI. MOTION TO SET ASIDE AND VACATE JUDGMENT §27.22
A. Notice of Motion §27.23
B. Time for Making Motion §27.24
C. Form: Notice of Motion to Vacate Judgment and Enter Different Judgment §27.25
D. Form: Order Granting Motion to Vacate Judgment and Enter Different Judgment (CCP §663) §27.26
VI. APPLICATION FOR RELIEF FROM FORFEITURE §27.27
A. Grounds for Relief From Forfeiture §27.28
B. Rent Must Be Paid and Other Covenants Performed §27.29
C. Procedure for Seeking Relief From Forfeiture §27.30
D. Form: Application for Relief From Forfeiture §27.31
E. Effect of Grant or Denial of Relief §27.32
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Enforcement of Judgment—Removing Tenant and Tenant’s Belongings
I. REMOVING TENANT §28.1
A. Contents of Writ §28.2
B. Sending Scare Notice to Tenant After Judgment Is Entered §28.3
C. Procedures for Serving and Enforcing Writ of Possession §28.4
D. Sheriff Must Evict if Tenant Does Not Vacate Within 5 Days §28.5
E. Effect of Failure by Sheriff to Act by Return Date of Writ §28.6
F. Judicial Council Form EJ‑130: Writ of Possession of Real Property §28.7
II. SHERIFF’S DEPARTMENT PRACTICES AND CHARGES §28.8
III. DISPOSITION OF TENANT’S PERSONAL PROPERTY
A. Personal Property Not Removed by Tenant §28.9
B. Recovery of Personal Property After Eviction §28.10
C. Treating Tenant’s Personal Property as Lost or Abandoned §28.11
D. Claim by Tenant for Personal Property (CC §1965) §28.12
E. Advantages and Disadvantages of Requesting Surrender §28.13
F. Form: Claim for Return of Personal Property Under CC §1965 §28.14
IV. DISPOSITION OF LOST PROPERTY §28.15
V. DISPOSITION OF PROPERTY ABANDONED BY TENANT §28.16
A. Landlord Must Store Abandoned Property in Safe Place §28.17
B. Notice Requirements for Disposal of Abandoned Property §28.18
C. Release of Property to Owner on Payment of Costs §28.19
D. Storage Costs §28.20
E. Sale of Unclaimed Property; Liability of Landlord §28.21
VI. EXECUTION ON TENANT’S PERSONAL PROPERTY IN LANDLORD’S POSSESSION §28.22
VII. SETTING ASIDE IMPROPER EXECUTION SALE §28.23
VIII. SUPPLEMENTAL COST BILL §28.24
IX. MOTION TO QUASH OR RECALL WRIT OF EXECUTION §28.25
X. CLAIM OF EXEMPTION §28.26
A. Judicial Council Form EJ‑160: Claim of Exemption §28.27
B. Hearing on Objections to Claim of Exemption §28.28
C. Judgment on Claim of Exemption §28.29
XI. WAGE GARNISHMENTS §28.30
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Appeals
I. APPEAL PROCEDURES §29.1
A. Limited Civil Cases: Timeline for Action After Entry of Judgment §29.2
B. Unlimited Civil Cases: Timeline for Action After Entry of Judgment §29.3
II. APPEALABLE JUDGMENTS AND ORDERS §29.4
III. VACATING PREMISES DOES NOT MOOT TENANT’S APPEAL §29.5
IV. FRIVOLOUS APPEALS §29.6
V. OBTAINING IMMEDIATE TEMPORARY STAY OF ENFORCEMENT OF JUDGMENT §29.7
VI. STAY PENDING APPEAL §29.8
A. Evaluating Need for Stay Pending Appeal §29.9
B. Proper Judge §29.10
C. Grounds on Which Stay May Be Granted §29.11
VII. UNDERTAKING ON APPEAL §29.12
VIII. FORM: WAIVER OF SECURITY §29.13
IX. FORM: NOTICE OF MOTION FOR STAY §29.14
X. REVIEW OF DENIAL OF STAY §29.15
XI. CLEAR ABUSE OF DISCRETION MUST BE SHOWN §29.16
XII. SCOPE OF TRIAL COURT JURISDICTION PENDING APPEAL §29.17
XIII. EVALUATING WHETHER TO APPEAL §29.18
XIV. SUMMARY OF APPELLATE PROCEDURE
A. Applicable Rules §29.19
B. Appeals From Limited Civil Cases §29.20
C. Appeals From Other Superior Court Actions §29.21
D. Standard of Review §29.22
E. Initiating Appeal
1. Notice of Appeal §29.23
2. Form: Notice of Appeal §29.24
3. Form: Notice of Appeal/Cross-Appeal (Limited Civil Case) (Judicial Council Form APP-102) §29.25
4. Form: Notice Designating Record on Appeal (Limited Civil Case) (Judicial Council Form APP-103) §29.26
5. Filing Deadlines Applicable to Appeals From Limited Civil Cases §29.27
6. Filing Deadlines Applicable to Other Superior Court Judgments §29.28
7. Record on Appeal §29.29
a. Electronic Recording or Agreed Statement §29.30
b. Form: Proposed Statement on Appeal (Limited Civil Case) (Judicial Council Form APP-104) §29.31
c. Requesting Reporter’s Transcript §29.32
F. Filing Briefs in Appellate Division of Superior Court §29.33
G. Filing Briefs in Court of Appeal §29.34
H. Purpose of Oral Argument §29.35
I. Decision on Appeal and Rehearing §29.36
J. Relief for Tenant After Reversal §29.37
K. Costs and Attorney Fees on Appeal §29.38
L. Abandonment of Appeal §29.39
M. Transfer to District Court of Appeal
1. Transfer of Appeal of Limited Civil Case From Superior Court to Court of Appeal §29.40
2. When Transfer Is Denied by District Court §29.41
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Civil Writs
I. CIVIL WRITS IN GENERAL §30.1
II. NATURE AND SCOPE OF WRIT §30.2
A. Conditions Under Which Writ of Mandate Will Issue §30.3
B. Alternative and Peremptory Writs of Mandate §30.4
C. Factors in Deciding Whether to Seek Writ §30.5
III. OBTAINING A STAY OF EXECUTION PENDING APPEAL OR DECISION ON PETITION FOR WRIT OF MANDATE §30.6
IV. PERSUADING COURT THAT WRIT SHOULD BE GRANTED §30.7
A. Inadequacy of Other Remedy Must Be Shown §30.8
B. No Direct Appeal §30.9
C. Common Situations in Which Relief by Writ Is Sought §30.10
D. Direct Appeal Possible §30.11
V. PROCEDURE IN OBTAINING WRIT
A. Relief Must First Be Sought in Lower Court §30.12
B. Court in Which Writ Petition Must Be Filed §30.13
C. Applicable Statutes and Rules of Court §30.14
D. Names of Parties §30.15
E. Time Limitation §30.16
F. Procedures in Superior Court §30.17
G. Pleadings in Mandamus Proceeding §30.18
1. Contents of Petition §30.19
2. Common Errors in Petitions for Writ §30.20
3. Opposition to Issuance of Writ §30.21
H. Hearing §30.22
I. Issuance of Peremptory Writ §30.23
J. Mootness §30.24
K. Damages and Costs §30.25
VI. REVIEW OF SUPERIOR COURT ACTION ON WRIT §30.26
VII. APPEAL FROM DISTRICT COURT OF APPEAL DECISION TO SUPREME COURT §30.27
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Return of Security Deposit and Disposition of Last Month’s Rent
I. TENANT’S RIGHTS IN SECURITY DEPOSIT AND LAST MONTH’S RENT §31.1
II. PAYMENTS TO LANDLORD ON SIGNING OF LEASE THAT ARE NOT CONSIDERED “SECURITY” §31.2
III. SECURITY “DISGUISED” AS ADVANCE RENT §31.3
IV. EFFECT OF DESIGNATION OF DEPOSIT AS “LAST MONTH’S RENT” RATHER THAN “SECURITY DEPOSIT” §31.4
V. LIMITATIONS ON AMOUNT OF SECURITY THAT MAY BE REQUIRED §31.5
VI. TENANT’S CLAIM TO SECURITY HAS PRIORITY OVER THAT OF LANDLORD’S CREDITORS §31.6
VII. SECURITY MAY NOT BE NONREFUNDABLE §31.7
VIII. PROVING AMOUNT OF SECURITY DEPOSIT §31.8
IX. LIMITS ON LANDLORD’S USE OF SECURITY DEPOSIT §31.9
X. LANDLORD’S DUTY TO RETURN DEPOSIT §31.10
A. Tenant’s Right to Request Inspection of Premises and Cure Deficiencies; Use of Deposit §31.10A
B. Tenant’s Right to Refund of Security Deposit Balance and Accounting §31.10B
XI. LANDLORD’S SALE OR OTHER TRANSFER OF PREMISES §31.11
XII. INTEREST ON SECURITY DEPOSIT §31.12
XIII. DAMAGES FOR LANDLORD’S IMPROPER RETENTION OF DEPOSIT §31.13
XIV. EFFECT ON UNLAWFUL DETAINER §31.14
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Overview of Unlawful Detainer Law
I. SCOPE OF THIS BOOK §1.1
II. LANDLORD’S ALTERNATIVES TO UNLAWFUL DETAINER ACTION §1.2
III. ETHICS §1.3
IV. SUMMARY OF UNLAWFUL DETAINER PROCESS §1.4
A. Description of Unlawful Detainer Action §1.5
B. Reduced Time Frame Governing Unlawful Detainer Procedure §1.6
C. Landlord Must Strictly Comply With Statutory Requirements §1.7
D. Notice Requirements §1.8
E. Bases for Terminating Tenancy; Applicable Notice §1.9
1. Termination Requiring 3-Day Notice (Longer Notice Permitted) §1.10
2. Termination Requiring 30-Day or 60-Day Notice §1.11
3. Termination Requiring Other Notice §1.12
4. Termination Requiring No Notice §1.13
F. Jurisdiction and Venue §1.14
G. Default Judgment §1.15
H. Bases for Defending Unlawful Detainer Actions §1.16
I. Trial
1. Tenant Entitled to Jury Trial if Answer Presents Admissible Defenses §1.17
2. Rent and Damages Awardable to Landlord §1.18
J. Posttrial Motions §1.19
K. Execution by Sheriff §1.20
V. SUMMARY OF POTENTIAL TENANT RESPONSES TO LANDLORD’S ACTIONS §1.20A
VI. INVALIDITY OF LEASE PROVISION WAIVING TENANT’S RIGHTS §1.21
VII. WRIT OF IMMEDIATE POSSESSION §1.22
VIII. UNAVAILABILITY OF UNLAWFUL DETAINER IF TENANT IS NO LONGER IN POSSESSION OF PREMISES §1.23
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Relationship of Unlawful Detainer to Other Actions
I. ISSUES NOT COGNIZABLE IN UNLAWFUL DETAINER ACTIONS §2.1
II. COORDINATION AND CONSOLIDATION OF UNLAWFUL DETAINER WITH OTHER ACTIONS §2.2
A. Coordination of Complex Actions §2.2A
B. Transfer of Noncomplex Actions §2.2B
C. Consolidation of Actions Pending in Same County §2.2C
III. CONVERSION OF UNLAWFUL DETAINER ACTION TO ACTION FOR EJECTMENT §2.3
IV. SEVERING POSSESSION ISSUE FROM RENT-DUE ISSUE §2.4
V. TENANT’S SUIT FOR DECLARATORY OR INJUNCTIVE RELIEF; STAY OF UNLAWFUL DETAINER ACTION
A. Overview: Can Unlawful Detainer Actions Be Enjoined? §2.5
B. Obtaining Injunctive Relief
1. Legal Basis; Grounds §2.5A
2. The Newby Exception: Adequate Remedy at Law §2.5B
3. Overcoming Newby Limitations §2.5C
4. Procedure; Bond Required §2.5D
VI. LANDLORD’S SUIT FOR INJUNCTIVE RELIEF §2.6
VII. ACTIONS AFTER ENTRY OF JUDGMENT §2.7
VIII. ARBITRATION PROVISION IN LEASE §2.8
IX. ADMINISTRATIVE MANDAMUS §2.9
X. BANKRUPTCY §2.10
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Self-Help by Landlord
I. USE OF SELF-HELP BY LANDLORD §3.1
II. FORCIBLE ENTRY AND DETAINER §3.2
A. Examples of Forcible Entry and Detainer §3.3
B. Retaking Abandoned Premises Is Not Forcible Entry or Detainer §3.4
C. Recovering Punitive Damages for Forcible Entry or Detainer Requires Showing of Malice §3.5
III. SHUTTING OFF UTILITIES OR OTHERWISE BARRING TENANT’S USE OF PROPERTY
A. Civil Code §789.3 §3.6
B. Remedies Under Public Utilities Code and CC §1942.2 §3.6A
IV. OTHER ACTIONS BY LANDLORD THAT MAKE PREMISES UNINHABITABLE §3.7
V. SELF-HELP EVICTIONS OF TENANTS IN RESIDENTIAL HOTELS §3.8
VI. SELF-HELP EVICTIONS OF LODGERS §3.9
VII. SELF-HELP EVICTIONS OF OCCUPANTS OF TRANSITIONAL HOUSING §3.10
VIII. SELF-HELP EVICTIONS OF HOTEL GUESTS §3.11
IX. ANTI-HARASSMENT STATUTE (CC §1940.2) §3.12
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Representing the Tenant; Office Procedures
I. OFFICE PROCEDURES §4.1
II. LAW OFFICE AUTOMATION §4.2
III. LEGAL REFERENCE MATERIALS §4.3
A. Necessary Legal Sources and Forms §4.4
B. Useful Additional Library Materials §4.5
IV. INITIAL STEPS BEFORE DECIDING WHETHER TO REPRESENT TENANT
A. Initial (Telephone) Contact With Prospective Client §4.6
B. Form: Telephone Intake Form §4.7
C. Scheduling Meeting With Prospective Client §4.8
D. Conflict of Interest in Representing Tenant
1. Performing a Conflicts Check §4.9
2. Common Conflict Situations in Unlawful Detainer Actions §4.10
E. Initial Meeting With Prospective Client §4.11
F. Use of Client Interview Questionnaire §4.12
G. Form: Client Interview Questionnaire §4.13
H. Conduct of Initial Meeting §4.14
I. Investigate Tenant’s Relationship With Former Counsel and Any Litigation History §4.15
J. Contact Landlord’s Attorney for Preliminary Look at Opposing View of Case §4.16
K. Initial Assessment of Case §4.17
L. Scope of Initial Assessment §4.18
M. Allaying Tenant’s Fears §4.19
V. REPRESENTATION OF TENANT
A. Decision to Represent Tenant §4.20
1. If Attorney Will Not Represent or Assist Tenant §4.21
2. When More Time Needed for Decision on Representation §4.22
3. Form: Substitution of Attorney—Civil (Without Court Order) (Judicial Council Form MC-050; Mandatory) §4.23
4. If Attorney and Tenant Agree That Attorney Will Represent or Assist Tenant §4.24
5. Disclosure Regarding Professional Liability Insurance §4.24A
B. Representation Agreements and Ground Rules §4.25
1. Delegating Tasks to Client §4.26
2. Contents of Representation Agreement §4.27
3. Form: Representation Agreement—Private Practitioner §4.28
4. Form: Client Retainer Agreement—Legal Services Organization §4.29
C. Limited Scope Representation (Unbundling)
1. Applicable Law §4.29A
2. Checklist: Tenant Fee Agreement §4.29B
D. Deposit of Rent Due Into Client Trust Account §4.30
E. Form: Requirement for Deposit of Rent Into Attorney-Client Trust Account §4.31
VI. PROCEDURE AFTER REPRESENTATION IS UNDERTAKEN
A. Ascertain Goal of Representation §4.32
1. Ascertain Whether Tenant Wants to Continue Living in Rental Unit §4.33
2. Goal of Representation Is Not Necessarily Successful Defense of Unlawful Detainer Action §4.34
B. Counsel Should Investigate Facts of Case §4.35
C. Determining Defense Strategy §4.36
D. Making Choices on Strategy and Tactics §4.37
E. Example of Strategic and Tactical Choices in Procedure When Defective 3-Day Notice Was Served §4.38
1. Strategy and Tactics: Filing Motion to Quash Service of Summons or Demurrer §4.39
2. Strategy and Tactics: Filing an Answer §4.40
3. Strategy and Tactics: Filing Motion for Summary Judgment §4.41
F. Counsel Should Simultaneously File Pleadings, Conduct Discovery, and Negotiate §4.42
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Grounds for Eviction
I. GROUNDS FOR EVICTION GENERALLY §5.1
II. GROUNDS FOR EVICTION BASED ON TENANT’S DEFAULT; 3-DAY NOTICE REQUIRED §5.2
III. REASONS FOR TERMINATION NOT BASED ON TENANT’S DEFAULT; NOTICE REQUIRED §5.3
IV. REASONS FOR TERMINATION NOT BASED ON TENANT’S DEFAULT; NOTICE NOT REQUIRED §5.4
V. TERMINATING MOBILEHOME PARK TENANCIES §5.5
VI. EVICTION BROUGHT BY CITY PROSECUTOR OR CITY ATTORNEY §5.6
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Three-Day Notice
I. PURPOSE AND EFFECT OF 3-DAY NOTICE §6.1
A. Purpose of 3-Day Notice §6.2
B. If 3-Day Notice Is Defective §6.3
II. IMMEDIATE TENANT RESPONSE TO SERVICE OF 3-DAY NOTICE (BEFORE COMPLAINT HAS BEEN FILED) §6.4
III. STRICT COMPLIANCE WITH STATUTE IS REQUIRED §6.5
IV. NOTICE REQUIRED EVEN IF LEASE PROVIDES THAT IT IS NOT NECESSARY §6.6
V. COMPUTATION OF NOTICE PERIOD §6.7
VI. NOTICE IS VALID EVEN THOUGH IT CONTAINS MORE THAN ONE REASON FOR EVICTION §6.8
VII. NOTICE MAY BE WITHDRAWN §6.9
VIII. FORM OF NOTICE §6.10
A. Notice Must Be in Writing §6.11
B. Description of Premises in Notice §6.12
C. Signature on Notice §6.13
D. Demand for Possession Must Be Unequivocal §6.14
E. Statement of Three Days in Notice Itself May Not Be Required §6.15
F. Notice May Declare Election of Forfeiture §6.16
G. Demand for Rent and Charges
1. Notice to Quit Must Include Demand for Rent as Alternative §6.17
2. Notice Must Specify No More Than Rent Actually Due §6.18
a. Precise Amount of Rent Need Not Be Specified if Calculation of Rent Depends on Tenant’s Accounting §6.19
b. Statement of Rent Due, and Additional Claims in Notice §6.20
c. Effect of Federal Fair Debt Collection Practices Act §6.20A
3. Notice Seeks Less Than Actual Amount Owed §6.21
4. One-Year Limitation on Amount of Rent That Can Be Demanded §6.22
5. Inclusion of Late Charges in Notice §6.23
6. Validity of Late Charges Landlord Claims Are Due
a. As Liquidated Damages §6.24
b. As Violation of Usury Law §6.24A
IX. SERVICE OF NOTICE
A. When Notice May Be Served §6.25
1. “Holidays” Defined §6.26
2. When Tenant May Perform Under Notice §6.27
B. Method of Service §6.28
C. Statutory Requirements for Service of 3-Day Notice §6.29
X. WHEN 3-DAY NOTICE IS BASED ON FAILURE TO PAY RENT §6.30
XI. TENDER OF RENT
A. Method of Tender of Rent §6.31
B. Proof That Tender Was Made §6.32
C. Depositing Money in Landlord’s Bank Account §6.33
D. Effect of Tender of Rent on Obligation to Pay Rent §6.34
E. Time of Tender of Rent
1. Tender of Rent Before Service of Notice §6.35
2. Tender of Rent After Notice Is Served and Before Notice Period Expires §6.36
3. Tender of Rent After Notice Period Has Expired §6.37
XII. WHEN 3-DAY NOTICE IS BASED ON DEFAULT UNDER LEASE OTHER THAN FAILURE TO PAY RENT
A. Violation of Covenant in Lease Generally; Statutory Basis for 3-Day Notice §6.38
1. Express and Implied Covenants §6.39
2. Trivial or Technical Breach Not Sufficient §6.40
3. Waiver and Estoppel §6.41
4. Repeated Acceptance of Late Rent §6.42
5. Effect of Tenant’s Performance §6.43
6. Whether Notice Must Be Given in Alternative §6.44
7. Stating the Breach §6.45
B. Violation of Covenant Against Subletting, Assignment, or Waste; Maintaining Nuisance; or Using Premises for Unlawful Purpose §6.46
1. Subletting, Assignment, and Waste §6.47
2. Nuisance §6.48
3. Unlawful Purpose §6.49
XIII. SALE UNDER EXECUTION, MORTGAGE, OR TRUST DEED §6.50
XIV. COMMON FLAWS IN 3-DAY NOTICE OR ITS SERVICE THAT RENDER NOTICE INEFFECTIVE §6.51
XV. EFFECT OF SERVICE OF MORE THAN ONE NOTICE §6.52
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Thirty-Day/Sixty-Day Notices and Termination Without Notice
I. TERMINATING PERIODIC TENANCIES
A. Using 30-Day Notice §7.1
B. Using 60-Day Notice §7.1A
II. IMMEDIATE TENANT RESPONSE TO SERVICE OF NOTICE §7.2
III. TENANT REMAINS IN POSSESSION AFTER TERMINATION
A. “Holdover” Tenant Defined §7.3
B. Tenant Serves Landlord With Notice of Termination and Remains in Possession After Termination Period §7.4
C. Term Has Expired but Tenant Holds Over §7.5
D. Termination of Employment of Resident Employee §7.6
E. Death of Tenant §7.7
F. Expiration of Fixed-Term Lease §7.8
G. Effect of Landlord’s Acceptance of Rent After Expiration of Fixed Term §7.9
H. Effect of Clause Providing for Automatic Extension or Renewal §7.9A
I. Lodger Who Holds Over in Owner-Occupied Dwelling §7.10
J. Expiration of Periodic (Generally Month-to-Month) Lease §7.11
IV. LENGTH OF PERIOD OF NOTICE
A. Shortened Notice Periods by Agreement §7.12
B. Date on Which Mailed Notice Is Effective §7.13
C. Notice Period Must Expire Before Complaint Can Be Filed §7.14
V. WITHDRAWAL OF NOTICE; ACCEPTANCE OF RENT PAYMENTS §7.15
VI. FORM OF NOTICE
A. Notice Must Be in Writing §7.16
B. Description of Premises and Signature §7.17
C. Notice Cannot Be in the Alternative §7.18
D. Statement of 30 or 60 Days §7.19
E. Cover Sheet; Evictions After Foreclosure §7.19A
VII. APPORTIONMENT OF RENT §7.20
VIII. METHOD OF SERVICE §7.21
IX. TENANCY AT WILL §7.22
X. EFFECT OF SERVICE OF 30-DAY OR 60-DAY NOTICE IN CONJUNCTION WITH SERVICE OF 3-DAY NOTICE §7.23
XI. COMMON FLAWS IN NOTICE OR ITS SERVICE, RENDERING NOTICE INEFFECTIVE §7.24
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Service of Notices on Tenant
I. EVALUATING SERVICE OF NOTICE §8.1
II. METHODS OF SERVICE OF NOTICE §8.2
A. Personal Service §8.3
B. Substituted Service (CCP §1162(a)(2)) §8.4
C. Service by Posting, Delivery, and Mail (CCP §1162(a)(3)) §8.5
1. Service by Posting Alone Is Insufficient §8.6
2. Service by Mail Alone Is Insufficient §8.7
D. Extension of Tenant’s Time to Act When Notice Is Mailed §8.8
1. Notice Effective on Receipt §8.8A
2. Notice Effective on Mailing §8.8B
3. Effective Date of Notice Extended by CCP §1013 §8.8C
4. Rationale Favoring Extension of Response Period Under CCP §1013 When Notice Is Mailed §8.9
III. IMPROPER SERVICE
A. Effect of Defective Service of Notice §8.10
B. Actual Receipt of Improperly Served Notice §8.11
IV. EFFECT OF SERVICE ON PERSONS OTHER THAN TENANT §8.12
A. Occupants Who Are Neither Tenants nor Subtenants §8.13
B. Cotenants §8.14
C. Subtenants §8.15
V. EXAMPLES OF COMMON MISTAKES IN SERVICE §8.16
VI. PROOF OF SERVICE OF NOTICE §8.17
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Negotiating Strategies
I. IMPORTANCE OF NEGOTIATION AND EARLY SETTLEMENT §9.1
A. Definitions of Terms: “Negotiation,” “Target Point,” “Resistance Level,” and “Bottom Line” §9.2
B. Determining Tenant’s Goals and Expectations §9.3
C. Determining the Bargaining Range §9.4
D. Possible Bargaining Outcomes §9.5
E. Evaluating Case §9.6
II. KEY FACTORS TOWARD SETTLEMENT IN TENANT’S FAVOR
A. Merits of Tenant’s Case §9.7
B. Whether Tenant Is Willing to Relinquish Possession §9.8
C. Whether Tenant Is Impervious to Judgment for Damages §9.9
D. Whether Rental Agreement Contains Attorney Fee Clause §9.10
III. DEVELOPING A BARGAINING STRATEGY §9.11
A. Look for Means to Strengthen Tenant’s Case and Weaken Landlord’s §9.12
B. Tenant’s Attorney Must Be Ready to Move Quickly to Take Advantage of Settlement Opportunities §9.13
C. Tenant’s Attorney Should Be Aware of Landlord’s Goals and Fears §9.14
D. Determining How Much to Demand in Initial Settlement Offer §9.15
IV. ADVANTAGES AND DISADVANTAGES OF FACING OPPOSING COUNSEL KNOWN TO TENANT’S COUNSEL §9.16
V. USING BARGAINING TACTICS §9.17
VI. COMMUNICATING WARNINGS TO OPPOSING PARTY §9.18
VII. WHEN LANDLORD’S COUNSEL APPEARS TO BE DRAWING OUT ACTION TO GENERATE FEES §9.19
VIII. DRAFTING SETTLEMENT AGREEMENT §9.20
IX. EVALUATING SUCCESS OF SETTLEMENT AGREEMENT §9.21
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Proceeding in Forma Pauperis
I. AUTHORITY FOR OBTAINING WAIVER OF COURT FEES AND COSTS §10.1
II. RIGHT TO PROCEED IN FORMA PAUPERIS §10.2
III. SUBSTANTIVE SHOWING OF INDIGENCE §10.3
IV. CLASSES OF CLAIMANTS AND CATEGORIES FOR WHICH FEES AND COSTS MAY BE WAIVED §10.4
V. FEES AND COSTS IN TRIAL COURT
A. Types of Fees and Costs Waived by Initial Application §10.5
B. Waiver of Other Fees and Costs §10.6
C. Applying to Proceed in Forma Pauperis
1. Procedure for Request for Waiver of Court Fees and Costs §10.7
2. Grant of Waiver of Court Fees and Costs Without Hearing §10.7A
3. Hearing on Applicant’s Entitlement to Waiver of Court Fees and Costs §10.7B
4. Court Issues and Serves Order on Request to Waive Court Fees §10.7C
5. Effect of Denial of Waiver on Pleadings Already Filed by Applicant §10.7D
6. Procedure for Subsequent Determinations of Fee Waiver Eligibility §10.8
D. Right to Waiver or Reimbursement of Discovery Costs §10.9
E. Right to Appointment of Attorney §10.10
VI. FEES AND COSTS ON APPEAL
A. Proceeding in Forma Pauperis §10.11
1. Filing Fees §10.11A
2. Fees for Transcript §10.11B
3. Fees for Interpreter §10.11C
4. Appeal Bond Fees §10.11D
B. Review of Denial of Request §10.12
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Service of Summons and Complaint; Motion to Quash Service of Summons
I. SERVICE OF SUMMONS AND COMPLAINT §11.1
II. IMMEDIATE ACTIONS THAT CAN BE TAKEN ON TENANT’S BEHALF AFTER SERVICE OF SUMMONS §11.2
III. ATTEMPTS TO AVOID SERVICE OF SUMMONS §11.3
IV. FORM OF SUMMONS §11.4
V. FORM: SUMMONS—UNLAWFUL DETAINER—EVICTION (JUDICIAL COUNCIL FORM SUM-130) §11.5
VI. SERVICE OF PROCESS §11.6
A. Methods of Service §11.7
B. Strict Construction of Service Statutes §11.8
C. Effect of Defective Service §11.9
D. New Summons Need Not Be Served With Service of Amended Complaint §11.10
E. Return of Service §11.11
F. Personal Service §11.12
G. Substituted Service §11.13
1. Substituted Service on Individual Defendant §11.14
2. Substituted Service on Business Entity §11.15
3. Showing Reasonable Diligence §11.16
4. Recital on Return of Service §11.17
H. Service by Mail With Acknowledgment of Receipt §11.18
I. Service by Posting and Mailing §11.19
J. Order Allowing Service by Posting §11.20
K. Completion Date of Service by Posting §11.21
L. Service by Publication §11.22
VII. SPECIAL APPEARANCE REQUIRED ON MOTION TO QUASH
A. What Constitutes a General Appearance §11.23
B. Making a Special Appearance §11.24
VIII. GROUNDS FOR MOTION TO QUASH §11.25
A. Error in Filled-Out Summons §11.26
B. Failure to Properly Serve All Required Papers §11.27
C. Motion to Quash When Cause of Action Is Not Properly Unlawful Detainer §11.28
D. Complaint Contains Another Cause of Action in Addition to Unlawful Detainer §11.29
E. Complaint Prays for Damages Not Allowed in Unlawful Detainer §11.30
F. Defendant Erroneously Designated
1. Pleading Requirements; “Doe” Defendants §11.31
2. Entering Judgment Against “Doe” Defendant §11.32
IX. CONSTITUTIONAL CHALLENGE TO FIVE-DAYS-TO-ANSWER REQUIREMENT §11.33
X. MOTION TO QUASH—PROCEDURE
A. Time to File Motion; Effect of Motion on Time to File Answer §11.34
B. Form of Notice §11.35
C. Hearing on Motion to Quash; Burden of Proof §11.36
D. Filing Fees §11.37
XI. FORM: MOTION TO QUASH SERVICE OF SUMMONS; POINTS AND AUTHORITIES; DECLARATION OF TENANT §11.38
XII. FORM: ORDER GRANTING MOTION TO QUASH SERVICE OF SUMMONS §11.39
XIII. EFFECT OF GRANTING MOTION TO QUASH §11.40
XIV. EFFECT OF DENIAL OF MOTION TO QUASH §11.41
XV. APPLICATION FOR WRIT OF MANDATE IF MOTION DENIED §11.42
XVI. POSSIBLE EFFECT OF CCP §1167.4 ON WHETHER TIME FOR FILING RESPONSIVE PLEADINGS IS TOLLED BY PETITION FOR WRIT §11.43
XVII. CHART: TIMELINE FOR TENANT ACTIONS IF SUMMONS OR SERVICE OF SUMMONS WAS DEFECTIVE §11.44
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Default Judgments
I. PROCEDURE FOR OBTAINING JUDGMENT BY DEFAULT §12.1
II. CHECKLIST: OBTAINING RELIEF FROM ENTRY OF DEFAULT §12.2
III. SERVICE OF APPLICATION FOR ENTRY OF DEFAULT; LANDLORD’S OBLIGATION TO INFORM TENANT §12.3
IV. EFFECT OF ENTRY OF DEFAULT; LATE FILING OF RESPONSE §12.4
V. ENTRY OF DEFAULT; WRIT OF IMMEDIATE POSSESSION §12.5
VI. PROVE-UP HEARING FOR RELIEF OTHER THAN RESTITUTION §12.6
VII. PROCEDURE FOR ENTERING DEFAULT IF SERVICE WAS BY PUBLICATION §12.7
VIII. SETTING ASIDE DEFAULT AND DEFAULT JUDGMENT §12.8
A. Stipulation to Set Aside Default and Default Judgment §12.9
B. Form: Stipulation to Set Aside Default and Default Judgment; Order §12.10
C. Procedures for Applying to Set Aside Default §12.11
D. Grounds for Setting Aside Default and Default Judgment §12.12
1. Mistake, Inadvertence, Surprise, or Excusable Neglect (CCP §473)
a. Relief May Be Granted for Client or Attorney Error §12.13
b. Relief Must Be Granted for Attorney Error §12.14
c. Time Limitations on Bringing Motion Under CCP §473 §12.15
d. Showing in Support of Motion; Declaration §12.16
e. Excuses for Default; Examples §12.17
(1) Mistake of Fact §12.18
(2) Attorney’s Mistake of Law §12.19
(3) Excusable Neglect §12.20
(4) Fraud §12.21
2. Clerical Mistakes; Vacating Void Judgments (CCP §473, ¶4) §12.22
a. Judgment Void on Its Face §12.23
b. Judgment Void in Fact, But Not Void on Its Face §12.24
3. When Service of Summons Does Not Result in Actual Notice to Party (CCP §473.5) §12.25
4. Motion or Separate Action in Equity Available to Vacate Judgment on Ground of Fraud or Mistake §12.26
5. Erroneously Entered Default or Default Judgment §12.27
6. Examples of Erroneously Entered Defaults and Default Judgments §12.28
IX. WHEN WRIT OF EXECUTION HAS BEEN ISSUED §12.29
X. FORMS: MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT
A. Form: Notice of Motion to Set Aside Default and Default Judgment; Supporting Memorandum §12.30
B. Form: Declaration Supporting Motion to Set Aside Default and Default Judgment §12.30A
XI. ORDER SETTING ASIDE DEFAULT AND DEFAULT JUDGMENT §12.31
XII. FORM: ORDER SETTING ASIDE DEFAULT AND DEFAULT JUDGMENT §12.32
XIII. EFFECT OF ORDER SETTING ASIDE DEFAULT AND DEFAULT JUDGMENT §12.33
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Demurring and Moving to Strike
I. ATTACKING LEGAL SUFFICIENCY OF COMPLAINT §13.1
II. THE DEMURRER §13.2
A. Grounds for General Demurrer §13.3
B. Grounds for Special Demurrer §13.4
C. Sustaining Demurrer With or Without Leave to Amend §13.5
D. Demurrer Permitted on Grounds of No Jurisdiction Over Subject Matter §13.6
E. Effect of Another Pending Unlawful Detainer Action §13.7
F. Parties
1. Improper Defendant §13.8
2. Improper Plaintiff §13.9
G. Venue and Trial Court Location §13.10
H. Description of Premises With Reasonable Certainty §13.11
I. Existence of Landlord-Tenant Relationship §13.12
J. Notice of Termination
1. Alleging Service of Notice §13.13
2. Alleging Proper Notice §13.13A
3. Alleging Contents of Notice §13.14
a. Default in Rent §13.15
b. Breach of Covenant Other Than Nonpayment of Rent §13.16
c. Subletting, Waste, Nuisance, or Use for Unlawful Purpose §13.17
d. Expiration of Term
(1) Fixed Term §13.18
(2) Periodic Tenancy §13.19
K. Tenant Continues in Possession §13.20
L. Fraud, Force, or Violence §13.21
M. Compliance With Implied Warranty of Habitability §13.22
N. Statute of Limitations §13.23
O. Checklist: Demurrable Defects in Complaint §13.23A
P. Form: Demurrer to Complaint §13.24
III. MOTION TO STRIKE §13.25
A. Irrelevant, False, or Improper Allegations §13.26
B. Defects Not Subject to Demurrer §13.27
C. Improper Request for Damages §13.28
D. Necessary Allegations for Finding Statutory Damages §13.29
E. Rental Value of Premises After Suit Brought §13.30
F. Attorney Fee Provision in Lease §13.31
G. Verification §13.32
H. Failure to State “§1161a” in Caption §13.32A
I. Sample Form: Motion to Strike §13.33
IV. PROCEDURE FOR DEMURRER AND MOTION TO STRIKE
A. Answer May Be Filed With Demurrer §13.34
B. Timing of Hearing on Demurrer and Motion to Strike §13.35
C. Supporting Memorandum §13.36
D. Effect of Overruling of Demurrer §13.37
E. Frivolous Demurrers §13.38
F. Motion to Strike §13.39
V. FILING FEES §13.40
VI. EXTENSION OF TIME TO PLEAD §13.41
VII. MOTION FOR JUDGMENT ON PLEADINGS §13.42
VIII. SPECIAL (ANTI-SLAPP) MOTION TO STRIKE §13.43
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Answering and Alleging Affirmative Defenses
I. RIGHT TO ANSWER §14.1
II. USE OF JUDICIAL COUNCIL FORMS §14.2
III. TIME TO ANSWER §14.3
IV. GOOD CAUSE TO EXTEND TIME TO ANSWER
A. Length of Extension §14.4
B. Steps Tenant Should Take to Get Extension of Time to File Answer §14.5
V. DENIALS §14.6
VI. BASES FOR DENIALS §14.7
VII. AFFIRMATIVE DEFENSES §14.8
A. Priority of Title After Foreclosure Sale §14.9
B. Implied Warranty of Habitability and Retaliatory Eviction §14.10
C. “Equitable” Defenses §14.11
D. Laches §14.12
E. Other Affirmative Defenses §14.13
F. Illegal Discrimination §14.13A
1. Violation of Unruh Civil Rights Act as Defense §14.14
a. Application of Unruh Act to Landlords §14.15
b. Prohibition of Arbitrary Discrimination Under Unruh Act §14.16
c. Minimum Income Policy §14.17
d. Examples of Reach of Unruh Act §14.18
2. Discrimination Based on Age
a. Discrimination Against Families With Children §14.19
b. Senior Citizen Housing §14.20
3. Discrimination Under Federal Fair Housing Acts §14.21
4. Discrimination Under California Fair Employment and Housing Act §14.22
5. Family Day Care Home §14.22A
6. Immigration Status §14.22B
7. Domestic Violence §14.22C
G. Other Violations of Housing Statutes and Ordinances
1. Certificate of Occupancy Violations §14.23
2. Landlord’s Duty to Repair; “Repair and Deduct” Statutes (CC §§1941–1942.5) §14.24
3. Violation of Tenantability Statutes (CC §1942.4) §14.24A
a. Indications That Premises Are Untenantable §14.25
b. Conditions Rebuttably Presumed to Breach Habitability Requirements §14.26
c. If Tenant Causes Condition of Premises §14.27
d. Tenant’s Remedies §14.28
e. Waiver of Tenant’s Rights §14.29
4. Statutory Violations Under Rent Control §14.30
H. Fraud §14.31
I. Adhesion Contract §14.32
J. Waiver and Estoppel §14.33
K. Express Promise to Repair §14.34
1. Dependent or Independent Covenants §14.35
2. Oral Promise Made Before Written Lease §14.36
a. Consideration §14.37
b. Statute of Frauds §14.38
c. Parol Evidence Rule as Applied to Leases §14.39
d. Dependency of Covenants §14.40
3. Tenant’s Arguments for Admission of Oral Promise Made Before or at Time of Execution of Written Agreement §14.41
4. Oral Promise Made Before Entry Into Oral Lease §14.42
5. Promise Made Subsequent to Lease §14.43
6. When Tenant Makes Promise to Repair §14.43A
L. Implied Covenant of Good Faith §14.44
M. Actual Partial Eviction §14.45
N. Notice Served More Than One Year After Rent Due §14.46
O. Breach of Covenant of Quiet Enjoyment §14.47
P. Offsets §14.48
Q. When Tenant Has Vacated Premises §14.49
VII. VERIFICATION §14.50
VIII. FILING ANSWER AFTER RULING ON DEMURRER §14.51
IX. EXTENSION OF TIME TO PLEAD §14.52
X. AMENDING ANSWER §14.53
XI. CROSS-COMPLAINTS §14.54
A. When Tenant Has Vacated Premises §14.55
B. When Landlord Fails to Challenge Cross-Complaint §14.56
C. Procedure §14.57
D. Form: Answer—Unlawful Detainer (Judicial Council Form UD-105) [Deleted] §14.58
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Affirmative Defenses—Implied Warranty of Habitability
I. INTRODUCTION
A. Adoption of Implied Warranty of Habitability: Hinson v Delis; Green v Superior Court §15.1
B. Definition of Implied Warranty of Habitability §15.2
C. Supreme Court Rationale in Adopting Implied Warranty Doctrine §15.3
D. Landlord May Be Held in Breach Even if Another Is Responsible for Defect §15.4
E. Time Within Which Landlord Must Correct Defects §15.5
II. USES OF IMPLIED WARRANTY OF HABITABILITY DOCTRINE §15.6
A. When Warranty Used in Suit for Affirmative Damages and Other Relief §15.7
B. Procedure When Using Warranty as Defense in Unlawful Detainer Action §15.8
C. Effect of Tenant Prevailing at Trial on Warranty Defense §15.9
III. ESTABLISHING BREACH OF WARRANTY
A. Facilities Covered §15.10
1. Government-Owned Housing §15.11
2. Portions of Premises Covered by Warranty of Habitability §15.12
B. Housing and Building Code Violations
1. Sources of Housing and Building Code Standards §15.13
2. Examples of Housing and Building Code Violations §15.13A
3. Jury Instructions Relating to Code Violations §15.14
4. Defects Actionable Under Implied Warranty or Negligence But Not Covered by Housing and Building Codes §15.15
C. Failure to Protect Tenants From Criminal Acts §15.16
1. Determining Whether Landlord Has a Duty to Protect Against Criminal Acts §15.17
2. Examples of Duty Not Found or Duty Held Not Breached §15.18
3. Examples of Duty Found or Landlord Held in Breach §15.19
4. Breach of Duty Raised by Allegation of Breach of Implied Warranty §15.20
5. Level of Security at Time Tenant Moves Into Premises §15.21
6. Proving Causation §15.21A
D. Seriousness of Defects
1. Requirement That Defects Be Serious §15.22
2. Examples of Defects Held Serious Enough to Constitute Breach of Implied Warranty §15.23
3. Evidence of Breach §15.24
a. Proving That Existing Conditions Violate Code §15.25
b. Presumption of Breach of Habitability Standards §15.26
c. Viewing the Premises §15.27
E. Special Problems
1. Premises Uninhabitable at Inception of Tenancy §15.28
2. Premises Become Uninhabitable After Tenant Is Served With Notice of Termination §15.29
3. Waiver of Warranty §15.30
4. Defect Caused by Tenant’s Wrongful Action §15.31
5. Defects Caused by Acts of Nature §15.32
IV. NOTICE OF DEFECT §15.33
V. REASONABLE TIME TO REPAIR NOT REQUIRED §15.34
VI. PROTECTIVE ORDERS §15.35
A. When Protective Orders Are Appropriate §15.36
B. Advantages to Tenant of Voluntary Deposit Into Attorney’s Trust Account §15.37
VII. DAMAGES FOR BREACH OF IMPLIED WARRANTY §15.38
A. Relief Based on Affirmative Defense of Breach of Implied Warranty §15.39
1. Period During Which Damages Accrue §15.40
2. Tenant Must Pay “Reasonable Rent” Even if Warranty Breached §15.41
3. Various Approaches to Measuring Damages §15.42
a. “Difference-in-Value” Approach §15.43
b. “Discomfort-and-Annoyance” Approach §15.44
c. “Percentage-Reduction-of-Use” Approach §15.45
4. Limits on Amount by Which Rent May Be Reduced §15.46
5. Amount of Rent Reduction in Subsidized Housing §15.46A
6. Nominal Damage Awards §15.47
B. Actions Brought Under CC §1942.4 §15.48
C. Actions Based on Tort of Breach of Implied Warranty §15.49
D. Hybrid View of Warranty of Habitability—Contract and Tort §15.50
VIII. EFFECT OF RECENT PURCHASE OF PROPERTY BY LANDLORD §15.51
IX. LACK OF CERTIFICATE OF OCCUPANCY §15.52
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Affirmative Defenses—Retaliatory Evictions
I. LEGAL FRAMEWORK §16.1
II. SEVERAL SOURCES OF LAW MAY APPLY SIMULTANEOUSLY §16.2
A. Civil Code §1942.5
1. Tenants’ Actions on Habitability (CC §1942.5(a))
a. Protected Parties and Acts §16.3
b. Limitations on Protection
(1) Tenant Cannot Be in Default in Payment of Rent §16.4
(2) Tenant May Not Invoke CC §1942.5(a) More Than Once a Year §16.5
(3) Protective Period Under CC §1942.5 Limited to 180 Days §16.6
(4) Defense Unavailable in Ellis Act Evictions §16.6A
2. Tenant Union Activity (CC §1942.5(c)) §16.7
3. Exercise of “Rights Under Law” (CC §1942.5(c)) §16.8
a. Additional Examples of Acts Protected by CC §1942.5(c) §16.9
b. Examples of Acts Protected Before Enactment of CC §1942.5 §16.10
4. Tenant Cannot Waive Rights (CC §1942.5(d)) §16.11
5. Notice and Burden of Proof (CC §1942.5(e)) §16.12
6. Procedure for Proving Retaliation When Landlord Includes Grounds in Notice (CC §1942.5(e)) §16.13
7. Remedies (CC §1942.5(f)–(g)); Punitive Damages and Attorney Fees §16.14
8. Remedies Not Exclusive (CC §1942.5(h)) §16.15
B. Public Policy; Retaliation for Refusal to Commit Crime Improper §16.16
C. Victims of Domestic Violence §16.16A
D. Other Statutory Rights
1. Retaliation Based on Tenant’s Assertion of Statutory Rights; Implied Protection §16.17
2. Retaliation Based on Tenant’s Assertion of Statutory Rights; Express Statutory Protection §16.18
3. Common Law §16.19
4. Local Rent Control Ordinances §16.20
5. Constitution §16.21
III. LIMITATIONS ON RETALIATORY EVICTION DEFENSE §16.21A
IV. PROOF OF RETALIATORY MOTIVE
A. Sole or Dominant Motive §16.22
B. Treatment of Mixed Motives in Labor Law §16.23
C. Presumptions and Burden of Proof §16.24
D. Evidence §16.25
E. Analogies Drawn From Labor Law to Prove Retaliatory Motive §16.26
F. Form: Affirmative Defense on Ground of Retaliatory Eviction §16.27
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Special Considerations Governing Evictions in Rent-Controlled Cities
Myron Moskovitz
Sonya Bekoff Molho
Steven A. MacDonald
Denise McGranahan
Sallyann Molloy
I. SCOPE OF LOCAL RENT CONTROL ORDINANCES
A. Local Control Versus State Preemption §17.1
B. Statewide Vacancy Decontrol
1. Existing Housing §17.1A
a. Phase-In Periods §17.1B
b. Lease Restrictions on Subletting Allowed §17.1C
c. Exceptions to Preemptive Effect §17.1D
2. New Construction and Single-Unit Exclusions §17.1E
a. Phase-In Periods for Condominiums and Single-Family Homes §17.1F
b. Exceptions to Preemptive Effect §17.1G
II. PRACTICE CONSIDERATIONS IN RENT CONTROL JURISDICTIONS §17.2
III. CITIES SUBJECT TO RENT CONTROL §17.3
IV. EVICTIONS AND RENT CONTROL
A. Overview §17.4
B. Just Cause for Eviction §17.5
1. Failure to Pay Rent §17.6
2. Failure to Cure Violation of Rental Agreement §17.7
3. Conduct Constituting a Nuisance §17.8
4. Use of Premises for Illegal Purpose §17.9
5. Refusal to Permit Landlord Access to Premises §17.10
6. Refusal to Execute New Lease §17.11
7. Subletting §17.12
8. Violation of Lease Restricting Occupancy §17.12A
a. Exception: Relative or Domestic Partner of Tenant §17.12B
b. Exception: Surviving Relative of Deceased Tenant §17.12C
c. Exception: Landlord Knowingly Accepts Rent From Occupant §17.12D
9. Rehabilitation of Unit §17.13
10. Demolition or Conversion of Units—Ellis Act Evictions §17.14
a. Constitutional Challenges; Preemption §17.14A
b. Effect of Other State Laws §17.14B
11. Occupancy by Owner or Owner’s Relative §17.15
a. Representing Tenants in Evictions for Owner Occupancy §17.16
b. Good Faith in Owner-Occupancy Evictions §17.17
12. Grounds Not Stated in Ordinance: Termination of Manager; Foreclosure §17.18
13. Failure to Use Premises as Principal Residence §17.18A
C. Notice and Pleading Requirements §17.19
D. Burdens of Proof and Presumptions §17.20
E. Defenses to Evictions §17.21
F. Statute of Limitations §17.22
G. Damages for Unlawful Evictions §17.23
H. Attorney Fees §17.24
V. NEGOTIATING AND DEFENDING ELLIS ACT EVICTIONS
A. Preliminary Considerations
1. Scope of Ellis Act §17.25
2. Representing Organized Tenants §17.26
3. Factual Investigation
a. Review Notices and Status of All Affected Units §17.27
b. Explain Ellis Process to Client §17.28
c. Ascertain Client’s Age, Health, and Economic Status §17.29
d. Investigate Unexpired Leases §17.30
B. Relocation Benefits §17.31
1. Benefits Available for Displaced Tenants Regardless of Income §17.32
2. Landlord’s Misrepresentation of Availability of Benefits §17.33
3. Documentation Proving Eligibility §17.34
4. Other Issues Affecting Payment of Benefits
a. Timely Payment §17.35
b. Waiver of Relocation Fees §17.36
c. One Fee per Unit §17.37
d. Services in Lieu of Fees §17.38
e. Failure to Pay Fees §17.39
C. Technical Defenses Based on Notice and Filing Requirements §17.40
D. Unexpired Leases §17.41
E. Tenant’s Options Regarding Unlawful Detainer Action Under Ellis Act
1. Answering the Complaint §17.42
2. Retaliatory Eviction Defense Limited §17.43
3. Failure to Take All Units Off Market §17.44
4. Other Possible Defenses §17.45
F. Discovering Violations After Eviction
1. Use of Ellis Act to Move Out Long-Term Tenants §17.46
2. Use of Post-Ellis Property for Home Ownership §17.47
a. Effect of State and Local Subdivision Laws §17.48
b. Effect of State and Local Laws Regulating Apartment Conversions §17.49
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Special Considerations Governing Evictions From Federally Assisted Housing
Catherine M. Bishop
Nancy Ann Palandati
Deborah A. Collins
I. “FEDERALLY ASSISTED LOW-INCOME HOUSING” DEFINED §18.1
II. ASCERTAINING WHETHER TENANT LIVES IN FEDERALLY ASSISTED HOUSING AND, IF SO, WHAT KIND §18.2
III. TYPES OF FEDERAL HOUSING PROGRAMS §18.3
A. Public Housing §18.3A
B. Section 8 §18.3B
C. HUD-Assisted and -Subsidized Housing §18.3C
D. HUD-Assisted Units Threatened With Prepayment of Mortgage or Opt-Out of Section 8 Contract §18.3D
E. Rural Housing Service (RHS) Subsidized Rental Housing §18.3E
F. Low-Income Housing Tax Credit (LIHTC) §18.3F
G. Other State and Local Programs §18.3G
IV. SUBSTANTIVE RIGHTS IN EVICTION ACTIONS
A. Application of State Law §18.4
B. Evictions After Foreclosure
1. Preemptive Measures Governing Evictions §18.4A
2. Postponing Sale of Multifamily Residential Buildings §18.4B
C. Good Cause Requirement §18.5
1. Public Housing §18.6
2. Project-Based Section 8 and HUD-Assisted and -Subsidized Housing §18.7
3. Section 8 Housing Choice Voucher Program §18.8
4. Rural Housing Service (RHS) Rental Housing §18.9
5. State and Local Housing Programs for Low-Income Families §18.10
6. Other Housing Programs for Low-Income Families §18.11
D. Facts Constituting Good Cause §18.12
1. Failure to Pay Rent §18.13
2. Serious Tenant Wrongdoing, Including Criminal Activity
a. Violation of Lease or State or Federal Law §18.14
b. Drug or Criminal Activity
(1) Statutory Authorization and Standards for Eviction §18.15
(2) Federal Standards Upheld in Rucker §18.16
(3) When State Law Standards Apply §18.16A
(4) Aftermath of Rucker; Unresolved Issues §18.17
(5) Permission to Obtain Criminal Records, Drug Treatment Information §18.17A
c. Exception: Victims of Domestic Violence Protected §18.17B
3. Violation of Program Regulations §18.18
4. Examples of Improper Grounds for Evicting Tenant §18.19
E. Defending Evictions
1. Project Owner’s Abuse of Power §18.20
2. Defensive Strategies in PHA Evictions §18.20A
3. Bankruptcy Discharge of Delinquent Rent in Public or Subsidized Housing §18.20B
V. EVICTION PROCEDURES: NOTICE AND ADMINISTRATIVE HEARING OR MEETING §18.21
A. Notice Requirements §18.22
B. Pretermination Grievance Hearing or Meeting §18.23
C. Notice and Hearing Required Before Forfeiture Under Federal Antidrug Statute §18.24
D. Relief From Forfeiture §18.25
VI. DAMAGES MAY BE AWARDED FOR WRONGFUL EVICTION FROM FEDERALLY ASSISTED HOUSING §18.26
VII. ENJOINING EVICTIONS FROM FEDERALLY ASSISTED HOUSING §18.27
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Special Considerations Governing Evictions in Commercial Tenancies
Myron Moskovitz
Clifford R. Horner
I. OVERVIEW OF UNLAWFUL DETAINER IN COMMERCIAL TENANCIES §19.1
II. THREE-DAY NOTICE TO PAY RENT OR QUIT
A. Lease Provisions May Affect Eviction Procedures §19.2
B. Statutory Requirements
1. Estimated Rent (CCP §1161.1) §19.3
2. When Rent Is Not Estimated §19.4
3. Service Requirements §19.5
4. Landlord’s Acceptance of Partial Tender of Rent §19.6
III. THREE-DAY NOTICE FOR VIOLATION OF COVENANT OTHER THAN PAYMENT OF RENT §19.7
A. Covenants Restricting Assignments
1. Common Law Rules §19.8
2. Statutory Law §19.9
B. Covenants Regarding Tenant Improvements §19.9A
C. Covenants Restricting Change in Use §19.10
IV. TERMINATION NOTICES FOLLOWING FORECLOSURE §19.10A
V. TERMINATION UNDER EXPRESS LEASE PROVISIONS §19.10B
VI. DEFENDING EVICTION BY ASSERTING BREACH OF LEASE BY LANDLORD
A. Covenant to Repair; Implied Warranty of Habitability
1. Dependent Versus Independent Covenants §19.11
2. Argument Favoring Adoption of Dependent Covenant Doctrine in Commercial Leases §19.12
a. Minimize Litigation §19.13
b. Eliminate Unfair Burdens on Tenant §19.14
c. Protect Tenant’s Right to Pursue Livelihood §19.15
d. No Impact on Summary Nature of Unlawful Detainer §19.16
e. Out-of-State Decisions Favor Interdependent Covenants §19.17
3. Effect of Toxic Mold Legislation §19.17A
B. Covenant of Quiet Enjoyment §19.18
C. Other Contractual Defenses §19.18A
D. Implied Warranty of Fitness §19.19
E. Implied Covenant of Good Faith §19.20
1. Duty to Maintain Third Party Leases §19.21
2. Sublessor Required to Exercise Option to Extend Master Lease §19.22
3. “No Compete” Covenant Applied to Expansion of Shopping Center §19.23
4. Good Faith Covenant Applied in Favor of Landlord §19.24
VII. NONCONTRACTUAL DEFENSES TO COMMERCIAL EVICTION ACTIONS
A. Retaliatory Eviction §19.25
B. Good Cause to Terminate Petroleum Distributorship §19.26
C. Equitable Defenses §19.27
VIII. LANDLORD’S RIGHT OF ENTRY PENDING EVICTION §19.28
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Effect of Sale of Property on Unlawful Detainer Proceedings
I. EFFECT OF SALE OF PROPERTY ON UNLAWFUL DETAINER §20.1
A. Sale Before Eviction Action Is Begun §20.2
B. Sale After Eviction Action Has Begun §20.3
II. EVICTING AFTER SALE UNDER CCP §1161a §20.4
A. Use of 30-Day Notice on Residential Owner’s Tenant or 60-Day or 90-Day Notice After Foreclosure §20.5
1. When 60-Day Notice Applies §20.6
2. Additional Preforeclosure Notice of Sale §20.7
3. Postponing Sale of Multifamily Residential Buildings §20.7A
4. When 90-Day Notice Applies §20.8
B. Litigating Title in Unlawful Detainer Action §20.9
C. Effect of Local Eviction Control Ordinances §20.10
D. Effect of Section 8 Eviction Controls §20.11
E. Postforeclosure Bank Eviction Policies §20.12
F. Defending Postforeclosure Evictions: Priority of Title, Title Dispute, Improper Foreclosure, or Improper Notice Following Foreclosure §20.13
III. UTILITY CUTOFFS §20.14
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Effect of Filing Bankruptcy on Proceedings in Unlawful Detainer
I. EFFECT OF TENANT FILING BANKRUPTCY
A. Automatic Stay on Evictions §21.1
B. Exceptions to Stay for Residential Tenancies
1. After Entry of Judgment for Eviction §21.1A
2. When Eviction Based on Endangerment of Property or Illegal Use of Controlled Substance §21.1B
C. Significant Changes Under 2005 Act §21.1C
II. LANDLORD MAY SEEK RELIEF FROM AUTOMATIC STAY §21.2
III. PENALTY FOR IMPROPER FILING OF BANKRUPTCY §21.3
IV. LEASE CLAUSES PURPORTING TO TERMINATE LEASE ON FILING OF BANKRUPTCY §21.4
V. TERMINATION OF UTILITIES AND OTHER SERVICES §21.5
VI. ASSUMPTION OF LEASE BY TRUSTEE §21.6
VII. SECURITY DEPOSITS §21.7
VIII. DISADVANTAGES TO TENANT OF FILING FOR BANKRUPTCY §21.8
IX. FILING PETITION IN BANKRUPTCY AS TACTIC IN UNLAWFUL DETAINER ACTION §21.9
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Summary Judgment
I. PURPOSE OF MOTION FOR SUMMARY JUDGMENT §22.1
II. TIMING OF MOTION §22.2
III. BURDEN OF PROOF §22.2A
IV. FACTUAL BASES FOR TENANT’S MOTION FOR SUMMARY JUDGMENT §22.3
V. MOVING PARTY’S SUPPORTING PAPERS §22.4
VI. OPPOSING PARTY’S COUNTERDECLARATIONS; ORDERS §22.5
VII. SUMMARY ADJUDICATION OF ISSUES §22.6
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Discovery
I. PURPOSES OF DISCOVERY §23.1
II. STATUTORY METHODS OF DISCOVERY §23.2
III. AVAILABILITY OF DISCOVERY IN UNLAWFUL DETAINER §23.3
IV. DEFENSE STRATEGY SHOULD INCLUDE PLAN FOR DISCOVERY §23.4
V. FORMAL AND INFORMAL DISCOVERY METHODS §23.5
VI. FORMULATING A DISCOVERY PLAN
A. When to Make and Implement Plan §23.6
B. Coordinating Various Discovery Techniques §23.7
C. Timeline for Initiating Tenant Discovery Directed to Landlord §23.8
D. Actions to Take if Discovery Cannot Be Completed Before Trial Date §23.9
VII. PURSUING DISCOVERY BEFORE ACTION FILED §23.10
A. Methods of Discovery Available Before Action Is Filed §23.11
B. Procedure for Pursuing Discovery Before Action Is Filed §23.12
C. Usefulness of Pursuing Discovery Before Action Is Filed §23.13
VIII. DISCOVERY AFTER SUMMONS AND COMPLAINT ARE SERVED §23.14
A. Time Limits on Responding to Discovery Requests §23.15
B. Preventing Setting of Trial Date Before Discovery Is Complete §23.16
C. Petitioning for Writ of Mandate if Court Refuses to Extend Trial Date §23.17
IX. METHODS OF DISCOVERY §23.18
A. Oral Depositions §23.19
1. Usefulness of Depositions §23.20
2. Expense of Depositions §23.21
3. Procedure for Oral Depositions
a. When Deposition May Be Taken §23.22
b. Setting Depositions of Parties §23.23
c. Setting Depositions of Nonparties §23.24
d. Witness and Mileage Fees §23.25
e. Procedures at Deposition §23.26
f. Inspection of Documents at Deposition §23.27
g. Reviewing, Correcting, and Approving Deposition §23.28
B. Written Interrogatories §23.29
1. Usefulness of Written Interrogatories §23.30
2. Disadvantages of Written Interrogatories §23.31
3. Limit on Number of Interrogatories That May Be Propounded §23.32
4. Form: Declaration for Additional Discovery §23.33
5. Procedure for Propounding Written Interrogatories §23.34
C. Pretrial Demand for Production of Documents or Inspection §23.35
1. Usefulness of Demand for Production §23.36
2. Introduction Into Evidence of Documents Produced §23.37
3. Tactical Considerations in Requesting Production §23.38
4. Protective Orders Against Request for Production §23.39
D. Requests for Admissions §23.40
1. Usefulness of Requests for Admissions §23.41
2. Procedure for Requests for Admissions §23.42
3. Form: Declaration in Support of Request for Additional Admissions §23.43
4. Effect of Failure to Respond to Request for Admissions §23.44
5. Effect of Failure to Admit Fact Later Found True §23.45
6. Requests for Admissions May Not Be Combined With Other Discovery Requests §23.46
7. Effect of Admission Made in Response to Request §23.47
8. Admissions and Responses Are Not Filed But Retained by Parties §23.48
X. SANCTIONS FOR REFUSAL TO MAKE DISCOVERY §23.49
A. Categories of Sanctions That May Be Imposed §23.50
B. What Constitutes Misuse of Discovery Process §23.51
C. Specific Sanctions That Court May Impose §23.52
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Rights of Occupants Not Named in Lease
I. OCCUPANTS WHO ARE NOT NAMED IN LEASE §24.1
II. PREJUDGMENT CLAIM OF RIGHT TO POSSESSION §24.2
A. Service of Prejudgment Claim to Right to Possession Form
1. Service by Marshal, Sheriff, or Process Server §24.3
2. Time of Service §24.4
3. Service on Occupants Other Than Tenant or Subtenant §24.5
B. Effect of Proper Service by Landlord of Prejudgment Claim Form §24.6
C. Effect of Inadequate Service by Landlord of Prejudgment Claim Form §24.7
D. Judicial Council Form CP10.5: Prejudgment Claim of Right to Possession §24.8
III. POSTJUDGMENT CLAIM OF RIGHT TO POSSESSION §24.9
A. Removal of Occupant by Sheriff or Marshal §24.10
B. Procedure by Occupant in Making Postjudgment Claim of Right to Possession §24.11
C. Judicial Council Form CP10: Claim of Right to Possession and Notice of Hearing §24.12
IV. HEARING ON CLAIM OF RIGHT TO POSSESSION §24.13
V. PROCEDURE AT HEARING ON CLAIM OF RIGHT TO POSSESSION §24.14
VI. PROCEEDING WITH ENFORCEMENT OF WRIT OF POSSESSION §24.15
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Trial
I. SETTING CASE FOR TRIAL
A. Request and Counter-Request to Set Trial §25.1
B. Setting Date for Trial §25.2
C. Effects of Local Practices §25.3
1. Trial by Temporary Judge §25.4
2. Procedure After Trial Date Is Set §25.5
D. Resetting Trial Date §25.6
1. Procedure If Parties Do Not Agree on New Trial Date §25.7
2. Determining Whether Moving Party Has Shown Good Cause §25.8
3. Determining Whether There Is Reasonable Probability Plaintiff Will Prevail at Trial §25.9
4. Determining Damages Landlord Might Suffer §25.10
5. Reduction of Damages Based on Diminution of Value or Setoff §25.11
6. Order to Deposit Potential Damages §25.12
7. Advancing Trial Date on Tenant’s Failure to Make Deposit §25.13
8. Costs of Escrow Recoverable by Prevailing Party §25.14
9. Distribution of Funds Held in Escrow After Trial §25.15
II. IF TENANT VACATES PREMISES BEFORE TRIAL §25.16
III. PRETRIAL CONFERENCE §25.17
IV. RIGHT TO JURY TRIAL §25.18
A. Jury Instructions §25.19
B. Waiver of Jury Trial
1. Bases for Waiver §25.20
2. Requesting Jury Trial After Waiver §25.21
3. Tenant’s Right to Jury Trial on Equitable Issues §25.22
a. Examples of Legal Issues §25.23
b. Examples of Equitable Defenses §25.24
C. Jury Verdicts
1. General and Special Verdicts §25.24A
2. Judgment Based on Jury Verdict §25.24B
V. DISQUALIFYING JUDGE §25.25
A. Challenge for Cause (CCP §170.1) §25.26
1. Conditions That May Not Be Used as Grounds to Disqualify Judge §25.27
2. Bias or Prejudice §25.28
3. Procedure for Disqualification §25.29
B. Peremptory Challenges (CCP §170.6)
1. Grounds for Challenge §25.30
2. Procedure for Peremptory Challenges §25.31
3. Time Limits for Moving to Challenge §25.32
4. Effect of Challenge §25.33
C. Tactical Considerations §25.34
VI. SUBPOENAS
A. Subpoenas for Witnesses §25.35
B. Subpoena Not Necessary to Require Attendance of Party or Agent §25.36
C. Service of Subpoena §25.37
D. Fees for Appearing in Court in Response to Subpoena §25.38
E. Subpoena Duces Tecum (Books and Papers) §25.39
1. Service of Subpoena Duces Tecum; Affidavit of Good Cause Necessary §25.40
2. Fees for Appearing in Court in Response to Subpoena Duces Tecum §25.41
3. Subpoena Duces Tecum Not Necessary for Party §25.42
F. Penalties for Disobeying Subpoena §25.43
VII. EVIDENCE PROBLEMS
A. Prima Facie Case; Nonsuit §25.44
B. Proof of Tenant’s Possession §25.45
C. Proof of Service of Notice §25.46
D. Proof of Rent Due §25.47
E. Judicial Notice §25.48
F. Use of Books and Records §25.49
G. Laying Foundation for Admission of Business Record §25.50
H. Proof of Damages §25.51
I. Waiver of Rent During Trial §25.52
J. Proving Retaliatory Eviction §25.53
1. Strength of Retaliatory Motive §25.54
2. Evidence of “Just Cause” to Evict §25.55
3. Evidence of Retaliatory Motive
a. Evidence Inferred by Conduct §25.56
b. Indirect Evidence §25.57
K. Fees for Appointment of Interpreter §25.58
VIII. TRIAL BRIEFS §25.59
IX. CONTINUANCES §25.60
A. Grounds for Continuance §25.61
1. Unavailability of Counsel §25.62
2. Unavailability of Party §25.63
3. Unavailability of Witness §25.64
4. Other Statutory Grounds for Granting Continuance §25.65
5. Unexpected Testimony §25.66
B. Procedure for Obtaining Continuance §25.67
1. Good Cause Required §25.67A
2. Stipulation for Continuance §25.67B
3. Conditions for Obtaining Continuance §25.67C
4. Appealability of Order Denying Continuance §25.67D
X. DEFAULTS AT TRIAL §25.67E
XI. CONFORMING PLEADINGS TO PROOF
A. General Law for Ordinary Civil Actions §25.68
B. Special Law for Unlawful Detainer Complaints
1. Amendment Based on Trial Evidence §25.68A
2. Amendments Before Trial Excluded §25.68B
3. Permissible Scope of Amendments §25.68C
C. Amended Versus Supplemental Complaint §25.68D
XII. STATEMENT OF DECISION §25.69
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Judgment
I. JUDGMENTS IN UNLAWFUL DETAINER ACTIONS §26.1
II. CONDITIONING JUDGMENT FOR TENANT ON PAYMENT OF RENT §26.2
III. TENANT MUST BE IN POSSESSION §26.3
IV. WHAT COURT CAN AWARD
A. Judgment Can Grant Possession of Premises §26.4
B. “Rent” and “Damages” §26.5
1. Determining Whether Amount Due Is Rent or Damages; Period Covered §26.6
2. Rent §26.7
3. Apportionment of Rent §26.8
4. Damages
a. Damages Occurring Before Holdover §26.9
b. Reasonable Rental Value During Holdover §26.10
c. Damages Against Subtenant §26.11
d. Damages After Judgment §26.12
e. Statutory Damages for Malicious Holdover §26.13
C. Forfeiture §26.14
D. Notice May Specify Election to Declare Forfeiture §26.15
E. Interest May Be Awarded §26.16
F. Costs May Be Awarded §26.17
G. Attorney Fees Authorized by Lease or Statute §26.18
1. Reciprocity of Attorney Fee Provision §26.19
2. Award of Fees Under Invalid Rental Agreement §26.20
3. Prevailing Party §26.21
4. Entitlement to Attorney Fees on Tender and Deposit of Amount Owed §26.22
5. Prevailing Party When Tenant Raises Habitability as Affirmative Defense §26.23
6. Size of Fee Award; Local Fee Schedules §26.24
7. Fees Awardable After Settlement Offer Rejected §26.25
8. Fees Awardable Beyond Court’s Jurisdictional Limit §26.26
9. Fees Awardable to Public Interest Attorneys §26.27
10. Fees Awardable for All Issues Argued §26.28
11. Attorney Fees Payable to Party—Not to Attorney §26.29
12. Attorney Fees Awardable as Sanctions Regardless of Lease Provision §26.30
13. Effect of Voluntary Dismissal §26.31
14. Fees Awardable for Enforcement of Right Important to Public Interest §26.32
15. Procedures for Requesting Fees §26.33
16. Related Statutes Providing for Award of Attorney Fees §26.34
H. Limitation on Award for Judgments in Municipal Court of Less Than $10,000 §26.35
I. Witness Fees May Be Awarded §26.36
J. Costs of Execution of Judgment May Be Recovered §26.37
V. EFFECT OF JUDGMENT ON CONSUMER CREDIT REPORTING §26.38
VI. RES JUDICATA AND COLLATERAL ESTOPPEL EFFECT OF JUDGMENT §26.38A
VII. UNLAWFUL DETAINER JUDGMENT FORMS
A. Form: Order for Judgment for Defendant Conditioned on Payment of Rent After Trial (Warranty of Habitability) §26.39
B. Form: Judgment—Unlawful Detainer (Judicial Council Form UD‑110) §26.40
C. Form: Judgment—Unlawful Detainer Attachment (Judicial Council Form UD‑110S) §26.41
D. Form: Stipulation for Entry of Judgment (Unlawful Detainer) (Judicial Council Form UD‑115) §26.42
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Posttrial Motions
I. POSTTRIAL MOTIONS COVERED §27.1
II. FIVE-DAY STATUTORY STAY OF EXECUTION (FOR APPLICATION FOR RESTORATION OF POSSESSION) §27.2
III. DISCRETIONARY STAY OF EXECUTION
A. Pending Hearing on Posttrial Motions §27.3
B. Temporary Stay Based on Hardship §27.4
C. Form: Ex Parte Application for Stay of Execution §27.5
D. Form: Memorandum in Support of Ex Parte Application for Stay of Execution §27.6
IV. MOTION FOR JUDGMENT NOTWITHSTANDING VERDICT §27.7
A. Grounds for Judgment Notwithstanding Verdict §27.8
B. Procedure for Making Notice of Motion §27.9
C. Time of Ruling on Motion §27.10
D. Form: Notice of Motion for Judgment Notwithstanding Verdict §27.11
E. Form: Order Granting or Denying Judgment Notwithstanding Verdict §27.12
V. MOTION FOR NEW TRIAL §27.13
A. Grounds for Motion for New Trial §27.14
B. Court’s Power to Vacate or Modify Judgment §27.15
C. Notice of Motion for New Trial §27.16
D. Time for Making Motion for New Trial §27.17
E. Form: Notice of Motion for New Trial §27.18
F. Form: Declaration in Support of Notice of Motion for New Trial §27.19
G. Hearing on Motion §27.20
H. Court’s Time to Rule on Motion §27.21
VI. MOTION TO SET ASIDE AND VACATE JUDGMENT §27.22
A. Notice of Motion §27.23
B. Time for Making Motion §27.24
C. Form: Notice of Motion to Vacate Judgment and Enter Different Judgment §27.25
D. Form: Order Granting Motion to Vacate Judgment and Enter Different Judgment (CCP §663) §27.26
VI. APPLICATION FOR RELIEF FROM FORFEITURE §27.27
A. Grounds for Relief From Forfeiture §27.28
B. Rent Must Be Paid and Other Covenants Performed §27.29
C. Procedure for Seeking Relief From Forfeiture §27.30
D. Form: Application for Relief From Forfeiture §27.31
E. Effect of Grant or Denial of Relief §27.32
Back to Top28
Enforcement of Judgment—Removing Tenant and Tenant’s Belongings
I. REMOVING TENANT §28.1
A. Contents of Writ §28.2
B. Sending Scare Notice to Tenant After Judgment Is Entered §28.3
C. Procedures for Serving and Enforcing Writ of Possession §28.4
D. Sheriff Must Evict if Tenant Does Not Vacate Within 5 Days §28.5
E. Effect of Failure by Sheriff to Act by Return Date of Writ §28.6
F. Judicial Council Form EJ‑130: Writ of Possession of Real Property §28.7
II. SHERIFF’S DEPARTMENT PRACTICES AND CHARGES §28.8
III. DISPOSITION OF TENANT’S PERSONAL PROPERTY
A. Personal Property Not Removed by Tenant §28.9
B. Recovery of Personal Property After Eviction §28.10
C. Treating Tenant’s Personal Property as Lost or Abandoned §28.11
D. Claim by Tenant for Personal Property (CC §1965) §28.12
E. Advantages and Disadvantages of Requesting Surrender §28.13
F. Form: Claim for Return of Personal Property Under CC §1965 §28.14
IV. DISPOSITION OF LOST PROPERTY §28.15
V. DISPOSITION OF PROPERTY ABANDONED BY TENANT §28.16
A. Landlord Must Store Abandoned Property in Safe Place §28.17
B. Notice Requirements for Disposal of Abandoned Property §28.18
C. Release of Property to Owner on Payment of Costs §28.19
D. Storage Costs §28.20
E. Sale of Unclaimed Property; Liability of Landlord §28.21
VI. EXECUTION ON TENANT’S PERSONAL PROPERTY IN LANDLORD’S POSSESSION §28.22
VII. SETTING ASIDE IMPROPER EXECUTION SALE §28.23
VIII. SUPPLEMENTAL COST BILL §28.24
IX. MOTION TO QUASH OR RECALL WRIT OF EXECUTION §28.25
X. CLAIM OF EXEMPTION §28.26
A. Judicial Council Form EJ‑160: Claim of Exemption §28.27
B. Hearing on Objections to Claim of Exemption §28.28
C. Judgment on Claim of Exemption §28.29
XI. WAGE GARNISHMENTS §28.30
Back to Top29
Appeals
I. APPEAL PROCEDURES §29.1
A. Limited Civil Cases: Timeline for Action After Entry of Judgment §29.2
B. Unlimited Civil Cases: Timeline for Action After Entry of Judgment §29.3
II. APPEALABLE JUDGMENTS AND ORDERS §29.4
III. VACATING PREMISES DOES NOT MOOT TENANT’S APPEAL §29.5
IV. FRIVOLOUS APPEALS §29.6
V. OBTAINING IMMEDIATE TEMPORARY STAY OF ENFORCEMENT OF JUDGMENT §29.7
VI. STAY PENDING APPEAL §29.8
A. Evaluating Need for Stay Pending Appeal §29.9
B. Proper Judge §29.10
C. Grounds on Which Stay May Be Granted §29.11
VII. UNDERTAKING ON APPEAL §29.12
VIII. FORM: WAIVER OF SECURITY §29.13
IX. FORM: NOTICE OF MOTION FOR STAY §29.14
X. REVIEW OF DENIAL OF STAY §29.15
XI. CLEAR ABUSE OF DISCRETION MUST BE SHOWN §29.16
XII. SCOPE OF TRIAL COURT JURISDICTION PENDING APPEAL §29.17
XIII. EVALUATING WHETHER TO APPEAL §29.18
XIV. SUMMARY OF APPELLATE PROCEDURE
A. Applicable Rules §29.19
B. Appeals From Limited Civil Cases §29.20
C. Appeals From Other Superior Court Actions §29.21
D. Standard of Review §29.22
E. Initiating Appeal
1. Notice of Appeal §29.23
2. Form: Notice of Appeal §29.24
3. Form: Notice of Appeal/Cross-Appeal (Limited Civil Case) (Judicial Council Form APP-102) §29.25
4. Form: Notice Designating Record on Appeal (Limited Civil Case) (Judicial Council Form APP-103) §29.26
5. Filing Deadlines Applicable to Appeals From Limited Civil Cases §29.27
6. Filing Deadlines Applicable to Other Superior Court Judgments §29.28
7. Record on Appeal §29.29
a. Electronic Recording or Agreed Statement §29.30
b. Form: Proposed Statement on Appeal (Limited Civil Case) (Judicial Council Form APP-104) §29.31
c. Requesting Reporter’s Transcript §29.32
F. Filing Briefs in Appellate Division of Superior Court §29.33
G. Filing Briefs in Court of Appeal §29.34
H. Purpose of Oral Argument §29.35
I. Decision on Appeal and Rehearing §29.36
J. Relief for Tenant After Reversal §29.37
K. Costs and Attorney Fees on Appeal §29.38
L. Abandonment of Appeal §29.39
M. Transfer to District Court of Appeal
1. Transfer of Appeal of Limited Civil Case From Superior Court to Court of Appeal §29.40
2. When Transfer Is Denied by District Court §29.41
Back to Top30
Civil Writs
I. CIVIL WRITS IN GENERAL §30.1
II. NATURE AND SCOPE OF WRIT §30.2
A. Conditions Under Which Writ of Mandate Will Issue §30.3
B. Alternative and Peremptory Writs of Mandate §30.4
C. Factors in Deciding Whether to Seek Writ §30.5
III. OBTAINING A STAY OF EXECUTION PENDING APPEAL OR DECISION ON PETITION FOR WRIT OF MANDATE §30.6
IV. PERSUADING COURT THAT WRIT SHOULD BE GRANTED §30.7
A. Inadequacy of Other Remedy Must Be Shown §30.8
B. No Direct Appeal §30.9
C. Common Situations in Which Relief by Writ Is Sought §30.10
D. Direct Appeal Possible §30.11
V. PROCEDURE IN OBTAINING WRIT
A. Relief Must First Be Sought in Lower Court §30.12
B. Court in Which Writ Petition Must Be Filed §30.13
C. Applicable Statutes and Rules of Court §30.14
D. Names of Parties §30.15
E. Time Limitation §30.16
F. Procedures in Superior Court §30.17
G. Pleadings in Mandamus Proceeding §30.18
1. Contents of Petition §30.19
2. Common Errors in Petitions for Writ §30.20
3. Opposition to Issuance of Writ §30.21
H. Hearing §30.22
I. Issuance of Peremptory Writ §30.23
J. Mootness §30.24
K. Damages and Costs §30.25
VI. REVIEW OF SUPERIOR COURT ACTION ON WRIT §30.26
VII. APPEAL FROM DISTRICT COURT OF APPEAL DECISION TO SUPREME COURT §30.27
Back to Top31
Return of Security Deposit and Disposition of Last Month’s Rent
I. TENANT’S RIGHTS IN SECURITY DEPOSIT AND LAST MONTH’S RENT §31.1
II. PAYMENTS TO LANDLORD ON SIGNING OF LEASE THAT ARE NOT CONSIDERED “SECURITY” §31.2
III. SECURITY “DISGUISED” AS ADVANCE RENT §31.3
IV. EFFECT OF DESIGNATION OF DEPOSIT AS “LAST MONTH’S RENT” RATHER THAN “SECURITY DEPOSIT” §31.4
V. LIMITATIONS ON AMOUNT OF SECURITY THAT MAY BE REQUIRED §31.5
VI. TENANT’S CLAIM TO SECURITY HAS PRIORITY OVER THAT OF LANDLORD’S CREDITORS §31.6
VII. SECURITY MAY NOT BE NONREFUNDABLE §31.7
VIII. PROVING AMOUNT OF SECURITY DEPOSIT §31.8
IX. LIMITS ON LANDLORD’S USE OF SECURITY DEPOSIT §31.9
X. LANDLORD’S DUTY TO RETURN DEPOSIT §31.10
A. Tenant’s Right to Request Inspection of Premises and Cure Deficiencies; Use of Deposit §31.10A
B. Tenant’s Right to Refund of Security Deposit Balance and Accounting §31.10B
XI. LANDLORD’S SALE OR OTHER TRANSFER OF PREMISES §31.11
XII. INTEREST ON SECURITY DEPOSIT §31.12
XIII. DAMAGES FOR LANDLORD’S IMPROPER RETENTION OF DEPOSIT §31.13
XIV. EFFECT ON UNLAWFUL DETAINER §31.14
STUDY: Mortgage Assignments to Washington Mutual Trusts Are Fraudulent (via Livinglies's Weblog)
The Free House Myth
posted by Katie Porter
As challenges to whether a “bank” (usually actually a securitized
trust) has the right to foreclose because it owns the note and mortgage become more common, rumors swirl about the ability to use such tactics to get a “free house.” There are a few instances of consumer getting a free house, see here and here, for examples, but these are extreme situations not premised on ownership, but on a more fundamental flaw with the mortgage. In general, the idea that even a successful ownership challenge will create a free house to the borrower is an urban myth. I’ll explain why below, but there is a policy point here. The myth of the free house drives policymakers to complain about the moral hazard risks of holding mortgage companies to the law and tries to set up homeowners who are paying their mortgages against those who are not. It serves the banks’ political agenda to be able to point to the “free house” as an obviously unacceptable alternative of consumers winning legal challenges. It’s key then to understand that the “free house” is largely a creature of consumers’
and banks’ over-active imaginations.
In sorting out why even a successful ownership challenge does not give homeowners a free house, it is helpful to parse some key concepts. The first one is standing, which is the right of a party to ask a court for the relief it seeks. This comes in different flavors, including constitutional standing, but in the foreclosure context, usually boils down to whether the moving party is the “real party in interest.” In re Veal, the recent decision from the 9th Circuit BAP authored by Judge Bruce Markell, mentioned previously on Credit Slips , contains a discussion of standing in the foreclosure context. At least in part, the concern of the real party in interest doctrine is to make sure that the plaintiff is the right person to get legal relief in order to protect the defendant from a later action by the person truly entitled to relief. Note that standing is a concept that only applies in court; here that means in judicial foreclosures. In states that allow non-judicial foreclosure, the issue is slightly different. Does the party initiating the non-judicial foreclosure have the authority to do so under the state statute authorizing the sale? For example, cases such as In re Salazar discuss whether a recorded assignment of the mortgage is needed, as opposed to an unrecorded assignment, to initiate a foreclosure. Under either standing or statutory authority, a “win” by the homeowner leads to the same result. The foreclosure cannot proceed.
But this win is not the same as a free house. Just because a party lacked standing or statutory authority does not mean that there is not some party out there that does have the authority to foreclosure. Nor does a win on standing mean that there cannot be action taken to give the initial foreclosing party the authority that they need, which might occur by transferring possession of the note or by executing a series of assignments, to foreclose at a later date. Unless other problems exist, there is still a valid note that obligates the homeowner to pay money due and there is still a mortgage encumbering the house. The homeowner does not get a free house. Rather, the homeowner just doesn’t lose her house today to foreclosure. These are pretty different outcomes!
This doesn’t mean that I think the standing/ownership issue is inconsequential. For homeowners, a successful challenge that results in the dismissal of a foreclosure can lead to a loan modification or the delay itself can give the homeowner the time to find another solution. For investors in mortgage-backed securities, the problems with paperwork likely increase their loss severities in foreclosure, both because of increased litigation costs and because of delay in correcting problems. (And there may be even more serious problems for investors relating to whether the transfers even succeeded in putting the homes in the trust.) But we shouldn’t confuse these issues with the idea that what is at stake in sorting out this mess is giving a “free house” to some Americans, despite the lamentations of this LaSalle Bank lawyer after a judge ruled that LaSalle as trustee lacked standing to foreclose. A fruitful discussion of these issues needs to begin with a clear understanding of the consequences of the problem, as well as empirical evidence on how widespread these problems are.
The free house is political handwringing, not legal reality.
July 18, 2011 at 4:22 AM in Mortgage Debt & Home Equity Comments It’s certainly not a “free” house. I think it’ll be a nightmare for homeowners who prevail in one of these actions to try and sell their homes. Just because party X can’t foreclose doesn’t mean that there isn’t a valid mortgage still on the property. No buyer is going to want to buy (and no title insurer will want to insure) unless that mortgage is paid off. And that means determining who is the mortgagee.
Adverse possession and/or quiet title actions might help solve some of this, but they are not self-executing solutions. Homeowners will have to go to court and litigate. That’s expensive and it takes time. So, at best, these homeowners are getting not “free” houses but houses with a severely depressed value.
Posted by: Adam Levitin | July 18, 2011 at 06:46 AM
The author skims the surface of the latte and finds after skimming the surface there is no more cream. Duh.
The Banks are often appearing as trustees on behalf of NY Trusts most of which died on or about 2008. If the trusts are dead than who has the right to appear in court? Nemo est hires viventis. No one is the heir of a living person and I would suggest, no one is the a trustee able to act on behalf of a dead trust. If the paper was successfully transferred to the trust, then perhaps the thousands of suckers who bought a RMBS are the owners. But if the paper was never successfully transferred, then the trusts and the trustees are certainly not the owners with standing. The original lenders might be but after phony documents have been created assigning the note and the mortgage to dead trusts, how could they possibly have the right of ownership?
The “myth” of the free houses was created not by consumers “oy!!” but by the very Banks who are picking up “free” houses every day by pretending to be trustees acting on behalf of dead trusts or trusts that never properly held the mortgages and notes. It is very much like Ronald Reagan calling a nuclear submarine the Corpus Christie or calling armed combatants “peacekeepers.” The “free house” was the Orwellian double speak created by Bankers for Bankers and their judicial minions and hand maidens have adopted their language very well.
—
Jake Naumer
Resolution Advisors
3187 Morgan Ford
St Louis Missouri 63116
314 961 7600
Fax Voice Mail 314 754 9086
MERS in California
From LivingLies:
I think that everyone is missing the #1 problem MERS has in CA.
MERS is a Non-Authorized Agent and cannot legally assign the Promissory Note, making any foreclosure by other than the original lender wrongful, for the following reasons.
1) Under established and binding Ca law, a Nominee can’t assign the Note. Born V. Koop 1962 200 C. A. 2d 519[200 CalApp2d Page 527, 528
2) On most Notes, the term Nominee is not included and MERS never takes ownership, making it unenforceable and unassignable by MERS.
Ott v. Home Savings & Loan Association, 265 F. 2d 643 [647,648
3) Ca Civil Code §2924, et seq. is exhaustive and a Nominee is never included as an acceptable form of “authorized agent” in a judicial or non-judicial foreclosure.
Finally, GOMES V. COUNTRYYWIDE HOME LOANS, INC., 192 Cal.App.4th 1149, IS FLAWED!
a) The Gomes case simply failed to address and apply the established and binding definition of a nominee.
b) The first thing the Deed of Trust does is (i) take away MERS right to payments and (ii) take away the right to enforce the Note.
c) REGARDLESS WHAT A BORROWER AGREES TO, a borrower cannot legally grant MERS the right to assign the note or any of the rights of the note owner.
________________________________________
MERS Fatal Flaws
MERS cannot legally assign a Promissory Note because, MERS is a Non-Authorized Agent under Established and Binding California Real Property Law and the borrower can’t provide that power to MERS.
First, a Nominee is someone who is nominated potentially for a future position. Much like being nominated for President, yet a Presidential Nominee doesn’t receive any powers until the person actually becomes President.
Second, in the Deed of Trust MERS is identified “Solely as a Nominee” and as the Beneficiary. Which is logically and legally impossible, because a party can only be either the nominated Beneficiary or the Beneficiary. You can’t “not be” and “be” the beneficiary at the same time.
Third, Ca Civil Code §2924, et seq. is exhaustive and a Nominee is never included as an acceptable form of “authorized agent” in a judicial or non-judicial foreclosure.
Fourth, MERS acts “Solely as a Nominee” for lenders, and under Established California Law a “Nominee” is a “Non-Authorized” form of agent, which fails to comply with California Civil Code §§ 2924 through 2924k, as a nominee inherently lacks the right to enforce or assign, the Note or real property ownership rights, per the following case.
“In Cisco v. Van Lew, 60 Cal.App.2d 575, 583-584, 141 P.2d 433, 438., Cisco could not enforce the land sale contract because he was not a party to it, the court, at pages 583-584, said: “The word ‘nominee’ in its commonly accepted meaning connotes the delegation of authority to the nominee in a representative or nominal capacity only, and does not connote the transfer or assignment to the nominee of any property in or ownership of the rights of the person nominating him.”
Born V. Koop 1962 200 C. A. 2d 519[200 CalApp2d Page 527, 528], see file below
Fifth, in addition to MERS’ inherit lack of authority, MERS is not a party to the Note and the Note fails to use the words, for example “ Lehman Brothers Bank, FSB or Lehman Brothers Bank, FSB Nominee”.
“The purpose of the document in question here was to offer an obligation to Harold L. Shaw alone and not to his nominee or any other person whomsoever.”
Ott v. Home Savings & Loan Association, 265 F. 2d 643 [647,648], see file below
Finally, GOMES V. COUNTRYYWIDE HOME LOANS, INC., 192 Cal.App.4th 1149, IS FLAWED!
a) The Gomes case simply failed to address and apply the established and binding definition of a nominee.
b) The first thing the Deed of Trust does is (i) take away MERS right to payments and (ii) take away the right to enforce the Note.
c) REGARDLESS WHAT A BORROWER AGREES TO, a “Borrower” cannot legally grant MERS the right to assign the note or any of the rights of the note owner.
“It is no defense to deceit that false statement was made pursuant to some statutory scheme such as statutory procedures for trustee’s sale (§ 2924 et seq.).” Block v. Tobin (App. 1 Dist. 1975) 119 Cal.Rptr. 288, 45 Cal.App.3d 214.
“It is true, as Defendants repeatedly assert, that California Civil Code § 2924, et seq. authorizes non-judicial foreclosure in this state. It is not the case, however, that the availability of a non-judicial foreclosure process somehow exempts lenders, trustees, beneficiaries, servicers, and the numerous other (sometimes ephemeral) entities involved in dealing with Plaintiffs from following the law.” Sacchi vs. Mortgage Electronic Registration Systems, Inc. US Central District Court of California CV 11-1658 AHM (CWx), June 24, 2011
Therefore, without an endorsement on the Note and an assignment directly from the original lender, assignments by MERS; the substitution of the Trustee; and trustee sale are unlawful and void.
“The assignment of the lien without a transfer of the debt was a nullity in law.” (Polhemus v. Trainer, 30 Cal. 685; Peters v. Jamestown Box Co., 5 Cal. 334; Hyde v. Mangan, 88 Cal. 319;
Jones on Pledges, secs. 418, 419; Van Ewan v. Stanchfield, 13 Minn. 75.)
“A lien is not assignable unless by the express language of the statute.”
(Jones on Liens, sec. 982; Wingard v. Banning, 39 Cal. 343; Ruggles v. Walker, 34 Vt. 468; Wing v. Griffin, 1 Smith, E.D. 162; Holly v. Hungerford, 8 Pick. 73; Daubigny v. Duval, 5 Tenn. 604.)
CALIFORNIA SUPREME COURT, DAVIS, BELAU & CO. V. NATIONAL SUR. CO., 139 CAL 223, 224 (1903)
“The note and mortgage are inseparable; the former as essential, the latter as an incident. An assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity.”
CARPENTER V. LONGAN, 83 U. S. 271 (1872), U.S. Supreme Court
“California courts have repeatedly allowed parties to pursue additional remedies for misconduct arising out of a nonjudicial foreclosure sale when not inconsistent with the policies behind the statutes”
California Golf, L.L.C. v. Cooper (2008) 163 Cal.App.4th 1053,1070
“(2) Whenever a court becomes aware that a contract is illegal, it has a duty to refrain from entertaining an action to enforce the contract. (3) Furthermore the court will not permit the parties to maintain an action to settle or compromise a claim based on an illegal contract”
Bovard v. American Horse Enterprises, Inc., 201 Cal.App.3d 832 (1988)
On April 11th, 2011,
The Honorable Judge Margaret M. Mann made very clear the following,
based upon California Supreme Court and U.S. Supreme court cases:
• Assignments must be recorded before the foreclosure sale
• Recorded assignments are necessary despite MERS’ role
• MERS’s system is not an alternative to statutory foreclosure law
Bankruptcy No: 10-17456-MM13 re: Eleazar Salazar,
see attached below Mann_order_salazar.pdf
2) Nothing under California Civil Code §§ 2924 through 2924k applies, unless there is a legal chain of title for the Deed of Trust with the Note from the original lender to MERS, and then to the foreclosing party.
The First Fatal Flaw – MERS never takes ownership of the underlying Note, Voiding the “Original” Deed of Trust.
Under California Law, the named Beneficiary on the Deed of Trust must have ownership of the underlying Note. MERS consistently claims to be only “Holding the Note” as a Nominee for the original lender, never “Owning the Note”.
Why MERS doesn’t have ownership of the Note:
1. There is no assignment or indorsement of the Note from the original lender to MERS.
2. The Deed of Trust is not a substitute for an Assignment or legal transfer of the Note from the Original lender to MERS.
“It is well established law in the Ninth Circuit that the assignment of a trust deed does not assign the underlying promissory note and right to be paid, and that the security interest is incident of the debt.” Rickie Walker case, see attached
3. MERS is a mortgage exchange not unlike a stock exchange. It allows banks to buy and sell home mortgages much like stock. Stock exchanges don’t own the stock on their exchange, only the investors do.
4. A Nominee in California cannot own the Note,
“The word “nominee” in its commonly accepted meaning, connotes the delegation of authority to the nominee in a representative or nominal capacity only, and does not connote the transfer or assignment to the nominee of any property in or ownership of the rights of the person nominating him.”
Cisco v. Van Lew, 60 Cal.App.2d 575, 583-584, 141 P.2d 433, 438.
5. In California, a Note payable to the original lender is not a bearer instrument, the original lender must indorse or assign the Note to MERS.
See Cal Com. Code §§3109,3201,3203,3204. and Rickie Walker case Order, and P&A pg6 attached below
6. MERS requires that the owner of the Note never claim MERS as a “Note-Owner”
MERS Membership Rule 8 Foreclosure, Section 2(a)(i), page 25, 26, see attached below
7. MERS consistently argues in court that it does not own the promissory notes,
MERS v. NEBRASKA DEPARTMENT OF BANKING AND FINANCE No. S-04-786, see attached below
8. Finally, Moeller v. Lien and CCC § 2924 DOES NOT “EXPRESSLY” EXCLUDE
OR SUPERCEDE CA Comercial Code § 3301, OR ANY OTHER CA LAWS!
In the case of California Golf, L.L.C. v. Cooper, 163 Cal. App. 4th 1053, 78 Cal. Rptr. 3d 153, 2008 Cal. App. LEXIS 850 (Cal. App. 2d Dist. 2008), the Appellate Court held that the remedies of 2924h were not exclusive.
9. U.S. Supreme Court decision, Carpenter v. Longan (Carpenter v. Longan, 83 U.S. 271, 21 L.Ed. 313 [1873])):
“The note and mortgage are inseparable; the former as essential, the latter as an incident. An assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity. Case law in virtually every state follows Carpenter.”
Deed of Trust is also void, without a recorded assignment of the Deed of Trust for each transfer of the Note:
1. MERS Involvement in the loan effectively stripped the deed of trust lien from the land and a foreclosure is not legally possible, Bellistri v. Ocwen Loan Servicing, LLC, 284 S.W.3d 619 (Mo.App. E.D.,2009), attached below
2. Any assignment of the Deed of Trust & Note from MERS to a successor is void and fraudulent.
RICKIE WALKER CASE, see attached below
Therefore, MERS definition of “Holding the Note” is not the legal equivalent of “Owning the Note”;
California Civil Code section 2924 for foreclosure only applies if MERS owned the note.
The Second Fatal Flaw – MERS tracking system is not a legal chain of title and the debt may be uncollectible.
When a Note is sold, it has to be indorsed the same way you basically sign a check for deposit or cashing.
Under California Law the Note is not a bearer instrument, but an instrument payable only to a specifically identified person, per California Commercial Code §3109; any transfer of the Note requires a legal Negotiation, Endorsement and a physical delivery of the note to the transferee to perfect the transfer, per California Commercial Codes §§3201, 3203, 3204.
see attached Rickie Walker Order.
“MERS Basics “Registration vs. Recording. (PPT Slide)
o MERS is not a system of legal record nor a replacement for the public land records.
o Mortgages must be recorded in the county land records.
o MERS is a tracking system. No interests are transferred on the MERS® System, only tracked.”,
MERS Southeast Legal Seminar – MERS Basics slide 7,
see attached below. or http://www.mersinc.org/files/filedownload.aspx?id=63&table=DownloadFile
“A mortgage note holder can sell a mortgage note to another in what has become a gigantic secondary market. . . . For these servicing companies to perform their duties satisfactorily, the note and mortgage were bifurcated.”
MERSCORP President and CEO, R.K. Arnold, Yes, There is Life on MERS, Prob.& Prop., Aug. 1997, at p.16, see attached below
Clear Title May Not Derive From A Fraud (including a bona fide purchaser for value).
In the case of a fraudulent transaction California law is settled. The Court in Trout v. Taylor, (1934), 220 Cal. 652 at 656 made as much plain:
“Numerous authorities have established the rule that an instrument wholly void, such as an undelivered deed, a forged instrument, or a deed in blank, cannot be made the foundation of a good title, even under the equitable doctrine of bona fide purchase. Consequently, the fact that defendant Archer acted in good faith in dealing with persons who apparently held legal title, is not in itself sufficient basis for relief.” (Emphasis added, internal citations omitted).
This sentiment was clearly echoed in 6 Angels, Inc. v. Stuart-Wright Mortgage, Inc. (2001) 85 Cal.App.4th 1279 at 1286 where the Court stated:
“It is the general rule that courts have power to vacate a foreclosure sale where there has been fraud in the procurement of the foreclosure decree or where the sale has been improperly, unfairly or unlawfully conducted, or is tainted by fraud, or where there has been such a mistake that to allow it to stand would be inequitable to purchaser and parties.” (Emphasis added).
In Alliance Mortgage Co. v. Rothwell (1995) 10 Cal. 4th 1226, 1231 [44 Cal. Rptr. 2d 352, 900 P.2d 601], the California Supreme Court concluded that:
“ ‘the antideficiency laws were not intended to immunize wrongdoers from the consequences of their fraudulent acts’ ” and that, if the court applies a proper measure of damages, “ ‘fraud suits do not frustrate the antideficiency policies because there should be no double recovery for the beneficiary.’ ” (Id. at p. 1238.)
Great Article source: http://www.exclusiveforeclosures.net/real-estate-foreclosures/doan-on-%E2%80%9Cproduce-the-note%E2%80%9D/
Therefore, any attempt to collect by other than the original lender may be impossible without a legal chain of title, because MERS tracking system is not a legal chain of title.
Source: https://sites.google.com/site/mersfatalflawsincalifornia/
________________________________________
MERS Defense Flaw
Legal Disclaimer: All information contained on this website is alleged and general in nature, and should not be construed as legal advice or a substitute for legal advice. It was not written by an attorney and should only be reviewed by an attorney.
MERS alleged status as of November 18th, 2010
PROTECTION FROM VOIDABILITY IS ONLY PROVIDED FOR THE YEARS TAXES ARE PAID.
On July 21, 2010 MERS registered with the California Secretary of State.
MERS registration was necessary, and not retroactive for the following reasons:
1. MERS needed to register with the State of California, because MERS is Not a Foreign Lending Institution nor claims to be, therefore California Corporate Code § 191(d) does not exempt MERS from California Corporate Code §2105.
“the court cannot conclude that MERS falls within any of the five enumerated examples of “foreign lending institutions,” and the court declines to address sua sponte whether MERS otherwise satisfies subsection (d).”. . . “the enforcement of any loans by trustee’s sale, judicial process or deed in lieu of foreclosure or otherwise. . .” “Accordingly, section 191(c)(7) does not exempt MERS’s activity.”
CHAMPLAIE v. BAC, No. 2:09-cv-01316-LKK-DAD (E.D.Cal. 10-22-2009) pg23,24, attached below
As a result of MERS intentional failure from obtaining a certificate of qualification from the California Secretary of State as a “Beneficiary”, including filing returns and paying taxes, MERS is not allowed the right to defend a lawsuit when named as or defending its actions in a “Beneficiary” capacity, pursuant to California Revenue & Taxation Code Section §§ 23301, 23301.6, 23304.1.
“A suspended corporation is not allowed to exercise the powers and privileges of a corporation in good standing, including the right to sue or defend a lawsuit while its taxes remain unpaid”
PERFORMANCE PLASTERING v. RICHMOND AM. HOMES, 153 Cal.App.4th 659 (2007) 63 Cal.Rptr.3d 537
2. MERS must first produce a Certificate of Relief from Voidability for the time prior to July 21, 2010, California Revenue & Tax Code 23305.1 and file with this Superior Court Clerk receipt of payment to the California Secretary of State for taxes and penalties, California Corporations Code §2203(c).
“UMML qualified to transact intrastate business, but failed to pay the necessary fees, penalties and taxes.
The trial court correctly dismissed the complaint without prejudice.”
United Medical Management Ltd. v. Gatto, 49 Cal. App. 4th 1732 – Cal: Court of Appeals, 2nd Appellate
“we will dismiss a nonqualified foreign corporation’s appeal if we determine the nonqualified foreign corporation transacted
intrastate business in California.9 (Corp. Code, §§ 2105, 2203.) We believe this approach advances the policies of preventing tax evasion through the even-handed administration of the tax laws, while encouraging qualification of foreign corporations by prohibiting a delinquent corporation from enjoying the privileges of a going concern.”
“9 Pursuant to Corporations Code § 2203, subdivision (c), and as recognized in United Medical, supra, and Mediterranean Exports, Inc. v. Superior Court, supra, a nonqualified foreign corporation is prohibited from maintaining an action in state court only until it complies with Corporations Code section 2105, pays to the Secretary of State a penalty of $250 and the fees for filing the required statement, and files with the court clerk receipts substantiating payment of such fees and franchise taxes and any other business taxes. Since the tax liability will be the issue presented to us, we will allow a nonqualified foreign corporation to maintain an action before us if it presents evidence substantiating it has qualified with the Secretary of State and paid the $250 penalty pursuant to Corporations Code section 2203, subdivision (c).”
In the Matter of the Appeal of Reitman Atlantic Corporation, 2001-SBE-002-A, See attached below
3. MERS will very likely cite one of these two cases:
United Medical Management Ltd. v. Gatto 49 Cal.App.4th 1732 (1996),
or Perlas v. Mortgage Elec. Registration Systems, Inc., 2010 WL 3079262 * 7, an unpublished case as of 10/18/2010
Both of which are based upon this case:
“A nonqualified corporation subject to a misdemeanor prosecution and on conviction to a heavy fine for doing business without complying with the law, is permitted to qualify, be restored to full legal competency and have its prior transactions given full effect.” (Tucker v. Cave Springs Min. Corp. (1934) 139 Cal. App. 213, 217 [33 P.2d 871].
So demand MERS filing of receipts and that Certificate of Relief from Voidability!
191 CHAMPLAIE_v_BAC_HOME_LOANS_SERVICING_LP_E_D_Cal_10-22-2009
atto, 49 Cal. App. 4th 1732 – Cal_ Court of Appeals, 2nd Appellate Dist., 5th Div. 1996 – Google Scholar
bellistri-v-ocwen
Joseph Born v. Koop
mann-order_salazar
MERS RULES(June2009)
MERS Southeast Legal Seminar (11.10.04) final
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC v. NEBRASKA DEPARTMENT OF BANKING AND FINANCE – NE Supreme Court
Ott v. Home Savings & Loan Association
Perlas v. MERS
R.K. Arnold, MERS Admits Bifurcation
Reitman Atlantic Corporation BOE
Reitman Atlantic Corporation BOE
Rickie_Walker_P_and_A
RickieWalkerOrder
QUIET TITLE IS NOT A DEFENSE — IT IS OFFENSE AND IT IS A HIGHLY EFFECTIVE LAWSUIT
Posted on August 1, 2011 by Neil Garfield
I WRITE THIS BECAUSE WITH SO MANY PRO SE LITIGANTS AND UNINFORMED LAWYERS WEIGHING IN IT IS SOMETIMES NECESSARY TO CLARIFY THE ISSUES.
Quiet Title is not a defense. If used defensively you will most likely lose your case and also unintentionally waive rights that you might not even know you had. The fact that it is being used as a defense it testament to the number of bad decisions we get. They are not really bad. They are inevitable because “quiet title” was presented incorrectly.
You can say what you want about the rules being burdensome, but rules are necessary to make sure that everyone is doing the same thing in the same way. Otherwise there would be chaos.
So here is the deal: Quiet Title is a lawsuit, also known as a cause of action. There are numerous example of quiet title lawsuits in the forms on this blog and in the articles. I think there are even some forms in the comments.
You are seeking the Court to enter an order in which the Judge signs a piece of paper (Final Judgment) that declares the TITLE rights of the parties with respect to a particular piece of property.
The Judgment is entered in civil court clerk’s office but then you must also record it in the title registry.
Normally, homeowners seek to have their title determined to be unencumbered by the claims of one or more defendants who have either expressed their claim somehow or who appear in the title record but actually (factually) lack any interest in the particular piece of real property that is the subject matter of the lawsuit.
Typically, and most easily you have a Plaintiff or Petitioner, as it may be called who files the lawsuit. That is usually the Homeowner but it could be another lien-holder who believes that the title encumbrances to be either invalid or inferior to their own lien (see articles on HOA liens for assessments).
The Petitioner Homeowner is asking the Court for a declaration that says the Petitioner’s title is in fee simple absolute and that it is not encumbered by the lien that appears in the title registry by way of a mortgage deed or deed of trust.
The Petitioner must tell the court why that lien that is recorded in the title registry is not valid or has a lower priority than the title of the homeowner. Normally the reason is something like the fact that the record contains a lien in favor of Company X but that no money is owed to Company X and that therefore there is no obligation, which therefore means that there is no note that could be introduced as evidence of a non-existent obligation and in turn means that the mortgage lien is securing an obligation that does not exist, possibly never existed. There are other reasons too that you can use. See articles on this Blog.
The target should most likely be the originating lender as that would destroy the chain of title FROM the originating lender, unless there are already assignments recorded. If there are assignments recorded you may want to name those who hold those assignments as Defendants or respondents, as they be called, to clear their supposed interests, based upon robo-signing or any number of other reasons.
Quiet Title is not about the obligation and does not wipe out the obligation. It merely declares that one or more liens cannot be enforced and should be removed from the title registry. You will see some cases where pro se litigants lost — because they did not plead or prove their case correctly. If you look at quiet title actions in which both sides are institutions you will find plenty of support for what you are doing
Its about standing
Pro Per Debtor Stops Attorneys for US Bank – in RE Deamicis
Posted: 31 Jul 2011 10:21 PM PDT
Pro Per Debtor Stops Attorneys for US Bank – in RE Deamicis
By Daniel Edstrom
DTC Systems, Inc.
She has been fighting tooth and nail. Nobody was listening. The current bankruptcy judge was skeptical when she showed up in bankruptcy. But now his ruling on a motion for relief from stay blows the doors off her case. It seems that bank attorneys are confused by something that should be very simple for an attorney. The issue is who is the real party in interest? Many have failed to comprehend what is in a name. If a very large bank is included in the name, most just glaze over it and go right to the pleadings. Here it is in a nutshell: US Bank, NA as Indenture Trustee is MEANINGLESS. This is because when a trust is involved, the trust is the real party, not the bank. US Bank is a trustee of hundreds if not thousands of trusts. Naming them as Trustee does not identify an entity that is real. In the debtors case, the bank foreclosed on her home in the name of US Bank as Indenture Trustee of [some Terwin Trust]. This was a non-judicial foreclosure. In the UD (unlawful detainer), which is a judicial case to evict her, the name used was US Bank as Indenture Trustee. The lawyers did not specify a specific trust. She lost that case in state court and before she was evicted she filed bankruptcy. She had to keep objecting and protesting. Eventually the judge came to the realization that something was wrong. In fact the judge ruled as follows:
“The defect cannot be cured, either directly or implicitly, by any ruling this court can make on behalf of the Terwin Trust in the Second 362 Motion.”
I almost fell out of my chair when I read that. If they put the wrong name, they have to cure the problem. Based on my research, in a very large number of cases the wrong party is named. Including yours truly. Have a nice day, I know I will.
Download the case here: http://dtc-systems.net/wp-content/uploads/2011/08/in-RE-Deamicis-Real-Party-in-Interest-For-Publication.pdf
Mortgage Asistance 877-227-4341 