Notice of Unlawful Detainer (Eviction) from Court

[helpme2010]

Can someone please help me to best respond to this complaint. Fannie Mae has filed the eviction with the court. I only have a couple days to respond to the complaint.

I downloaded an ANSWER - Unlawful Detainer form from the court website.

My goal is to buy a little more time, I am getting really close to finding a place to rent, but just need some more weeks.

How should I answer the complaint? It has the opportunity for me to deny all statements or I can say all statements are true, except... Also affirmative defenses.

Finally, once I fill this out, if this is the correct form, how do I get it to the court? There is no fax number or anything other than an address. Do I fax it, do I mail it, do I have to get it notarized or witnessed? Do I have to take it to court or have someone take it for me to the clerks desk?

Thank you so much

[etechjc]

Wish you luck, However I believe at this point it is no longer your house and I think once the file for eviction there is not a whole lot that can be done to delay. Although Im sure those who know more than I will chime in.

Filing a reply will buy you a couple weeks at least. You send it to the address on the court document Certified mail with delivery confirmation, Also in some states you need to send a copy to the opposing lawyer.

Don't do a blanket deny, Im not sure about evictions, But I believe this is a good way to get SJ if the court believes your wasting there time.

On a side note, I wish my mortgage would file for an eviction.

[tobee43]

helpme2010!!!! ahhhhhhhhhh so sorry to hear about the eviction.


in most cases in california since it's a primarily a non judicial state, usually, one doesn't have an opportunity to get themselves into court to fight the eviction. especially in light of the fact that USUALLY and i know there may be some exceptions, but usually a Notice of Unlawful Detainer is issued by the lender or landlord when and the owner or tenant doesn't voluntarily move out after the lender has properly given the required notice to the tenant or owner, the landlord and or lender can evict the tenant. thus and unfortunately this order to evict the, in this case, Fannie Mae must file an unlawful detainer lawsuit in superior court.

your chances of flighting it now, ...you need to answer it and have the hearing and see if the ( and i thought you did plan on moving??) but during the hearing usually in superior court you can beg the jugdge to have the bank work with you, if your intentions is to stay there and work something out to keep your place.

the bad news is... is if Fannie Mae wins a writ of possession is issued. the writ of possession orders the sheriff to remove you from the premises, and only gives you 5 days from the date the writ is served to leave voluntarily. if the you don't leave by the end of the fifth day, the writ of possession authorizes the sheriff to physically remove and lock you out and seize (take) belongings ..... that have been left in the house. then fannie mae can take possession.


here's what little i could find with respect to answering the summons:


How to respond to an unlawful detainer lawsuit

"If you are served with an unlawful detainer complaint, you should get legal advice or assistance immediately. Tenant organizations, tenant-landlord programs, housing clinics, legal aid organizations, or private attorneys can provide you with advice, and assistance if you need it. (See "Getting Help From a Third Party ")

You usually have only five days to respond in writing to the landlord's complaint. You must respond during this time by filing the correct legal document with the Clerk of Court in which the lawsuit was filed. If the fifth day falls on a weekend or holiday, you can file your written response on the following Monday or nonholiday.305 Typically, a tenant responds to a landlord's complaint by filing a written "answer." (You can get a copy of a form to use for filing an answer from the Clerk of Court's office or online at www.courtinfo.ca.gov/cgi-bin/forms.cgi (Form 982.1(95).)

You may have a legal defense to the landlord's complaint. If so, you must state the defense in a written answer and file your written answer with the Clerk of Court by the end of the fifth day. Otherwise, you will lose any defenses that you may have. Some typical defenses that a tenant might have are listed here as examples:

The landlord's three-day notice requested more rent than was actually due.
The rental unit violated the implied warranty of habitability.
The landlord filed the eviction action in retaliation for the tenant exercising a tenant right or because the tenant complained to the building inspector about the condition of the rental unit.

Depending on the facts of your case, there are other legal responses to the landlord's complaint that you might file instead of an answer. For example, if you believe that your landlord did not properly serve the summons and the complaint, you might file a Motion to Quash Service of Summons. If you believe that the complaint has some technical defect or does not properly allege the landlord's right to evict you, you might file a Demurrer. It is important that you obtain advice from a lawyer before you attempt to use these procedures.

If you don't file a written response to the landlord's complaint by the end of the fifth day, the court will enter a default judgment in favor of the landlord. A default judgment allows the landlord to obtain a writ of possession (see Writ of Possession), and may also award the landlord unpaid rent, damages and court costs.

The Clerk of Court will ask you to pay a filing fee when you file your written response. The filing fee typically is about $180. However, if you can't afford to pay the filing fee, you can request that the Clerk allow you to file your response without paying the fee (that is, you can request a waiver of the fee). An application form for a fee waiver, called an "Application for Waiver of Court Fees and Costs,"can be obtained from the Clerk of Court or online at:

www.courtinfo.ca.gov/cgi-bin/forms.cgi (Form 982a(17)).306

After you have filed your written answer to the landlord's complaint, the Clerk of Court will mail to both you and the landlord a notice of the time and place of the trial. If you don't appear in court, a default judgment will be entered against you.

Special Rules for Tenants in the Military: A servicemember may be entitled to a stay (delay) of an eviction action for 90 days. This rule applies to the servicemember and his or her dependents (such as a spouse or child) in a residential rental unit with rent of $2,400 per month or less. The servicemember's ability to pay rent must be materially affected by military service. The judge may order the stay on his or her own motion or upon request by the servicemember or a representative. The judge can adjust the length and terms of the delay as equity (fairness) requires.

Eviction of "unnamed occupants"

Sometimes, people who are not parties to the rental agreement or lease move into the rental unit with the tenant or after the tenant leaves, but before the unlawful detainer lawsuit is filed. When a landlord thinks that these "occupants" might claim a legal right to possess the rental unit, the landlord may seek to include them as defendants in the eviction action, even if the landlord doesn't know who they are. In this case, the landlord will tell the process server to serve the occupants with a Prejudgment Claim of Right to Possession form at the same time that the eviction summons and complaint are served on the tenants who are named defendants. See additional discussion of "unnamed occupants" and Claim of Right to Possession forms."


349 Code of Civil Procedure Section 415.46.
350 Code of Civil Procedure Section 1174.3.
351 Code of Civil Procedure Section 415.46.
352 Code of Civil Procedure Section 1174.3.
353 Code of Civil Procedure Section 1174.3.


best of luck to you...really! i know how long and hard this situation has been on you.

[helpme2010]

tobee, this is an excellent source of information, thank you so much, I appreciate your time. I did the fax filing. I am hoping this buys me say a month or so in the house. I am only trying to buy time at this point so I can find a place to rent. I have been looking for 3 months now, actually tried to rent multiple places, several refused because of my bad credit, but 2 went through and the leases were created. One I had to cancel because they were over a year behind on HOA and refused to make the payments to get out of default. The 2nd I had to cancel because they were in foreclosure and the house was listed for a trustees sale.

I am having my realtor run title checks before I move to the lease for now on. I am even paying 4 months rent in advance plus a security deposit. I also have a very good job now. What the heck else does it take to get a place to live? MY gf and I are looking for houses 7 days a week, and it's the most stressful thing you can ever imagine.

Thanks again for the help.

[helpme2010]

Oh tobee and anyone else, I forgot to ask, how much time do you think my answer to the default will buy me? e.g. before the judge will set up a court date (hopefully I will have a new place before then). Or if there is a court date, I wonder how much time I will have after that. I may just end up putting everything in storage and renting a hotel room until I find a new place, that is if I run out of time.

But how much time do you think I have until a court date is set?

[tobee43]

tobee, this is an excellent source of information, thank you so much, I appreciate your time. I did the fax filing. I am hoping this buys me say a month or so in the house. I am only trying to buy time at this point so I can find a place to rent. I have been looking for 3 months now, actually tried to rent multiple places, several refused because of my bad credit, but 2 went through and the leases were created. One I had to cancel because they were over a year behind on HOA and refused to make the payments to get out of default. The 2nd I had to cancel because they were in foreclosure and the house was listed for a trustees sale.

I am having my realtor run title checks before I move to the lease for now on. I am even paying 4 months rent in advance plus a security deposit. I also have a very good job now. What the heck else does it take to get a place to live? MY gf and I are looking for houses 7 days a week, and it's the most stressful thing you can ever imagine.

Thanks again for the help.

i hope you find something soon. look everywhere!!!!

i don't know how long answering the summons will buy you, however, as announced on the news last evening the calif. court systems are stressed and cutting. that may stall your court date for a bit...that along with vacation schedules for the judges. all i can say, it is likely it will give you at least more than the 5 days!!! it's just difficult to tell you how much longer. hopefully someone from calif., will chime in with a more definitive answer for you.

try OTHER realtors as well...ask friends...put an add in the newspaper, i HATE craigslist, however, in some areas it is still working, but of course you have to careful with everything and everybody. your local paper may be the biggest help in locating a place. if you run an ad house or apt needed??? just a suggestion.

as usual, i wish you and your gf the best!!!!!

[discouraged]

Even though I have not even been served with the sheriffs sale yet, and after that, with MN law, I still have 6 months, I am thinking ahead and planing on garage sales and whatever I can do to limit what I have so I can fit into a small space. IF I am forced into moving before I am ready, I plan on renting a storage unit and then rent a motel room.

That is my worst scenerio plan but would work until I found what I wanted or moved or......began a new life somewhere.

[tobee43]

i agree discourage, it is always good to have a plan.

we secured another place prior to our filing. although we were fortunate enough to know a person who had an empty place, but before that we had to stay with some friends for a bit. it wasn't where we thought we would end up, but it was a place to go. we then did exactly what you did, put our things in storage until our permanent move here.

[HHM]

Having followed your story for a while, this action was inevitable, at least now you are finally facing the "reality" of your situation.

[helpme2010]

Having followed your story for a while, this action was inevitable, at least now you are finally facing the "reality" of your situation.

Well still trying day after day. I am working with my agent to line up some places to look at again today. I have come very close to the final signing of the lease with 2 other properties only to find them both in default/foreclosure, so I had to bail out of those homes. I am also running across people that won't rent to me because of my BK, even though I am willing to put down 4 months rent plus a security deposit of another month (that's 5 fricken months up front). Plus I have a very high paying job now.

So eventually if I run out of time, I will follow discouraged advice and put my stuff in storage and living in a motel. It is amazing that it may come down to this. It's crazy, with a ton of money and a great job and I feel like I am going on interviews for a job with these renters. Only to find many of them are the ones that should be interviewed for their bad credit.

[chicagoannie]

Keep us updated, helpme. I have found your story fascinating - and I hope you get the few more weeks you need to find a great place to rent!

Thank goodness you are being careful about whom you rent from. In any future rental contracts I will be putting a clause in any lease that if the property falls into default and I am current with my rent, 1) I will use security deposit as last month's rent, and 2) I am released from any obligation to complete the lease term.

[daxtell]

i believe some rental companies will work with you and private owners too. i was approved for a very nice apartment in a safe, and nice community with a large management company a year ago right before i filed for bankruptcy and my credit was awful. but my income was good. in that year since i filed for bankruptcy and was discharged and my job situation changed to making 1/2 what i was making. my lease is up now and i needed a bigger place with more space. and this same company ran my information again to qualify for a bigger place and they approved me again even with the bankruptcy now. i had researched all over town the last few weeks and i got really lucky at this place it is one of the nicest but the most affordable and the management is awesome. that is important because you do not want to choose a place that will not take care of the property properly. most places that i visited or researched were not so much concerned about my bad credit so much so as they were concerned about my rental history. they used these systems called saferent or other means to determine if you had evictions or unlawful detainers on your record. when my foreclosure happened, i avoided the unlawful detainer process by moving out beforehand. you may have to explain to a future landlord or company that the unlawful detainer was for the foreclosure and not an actual rental company as it does not designate that on your background report when it is run by these companies.

[helpme2010]

i believe some rental companies will work with you and private owners too. i was approved for a very nice apartment in a safe, and nice community with a large management company a year ago right before i filed for bankruptcy and my credit was awful. but my income was good. in that year since i filed for bankruptcy and was discharged and my job situation changed to making 1/2 what i was making. my lease is up now and i needed a bigger place with more space. and this same company ran my information again to qualify for a bigger place and they approved me again even with the bankruptcy now. i had researched all over town the last few weeks and i got really lucky at this place it is one of the nicest but the most affordable and the management is awesome. that is important because you do not want to choose a place that will not take care of the property properly. most places that i visited or researched were not so much concerned about my bad credit so much so as they were concerned about my rental history. they used these systems called saferent or other means to determine if you had evictions or unlawful detainers on your record. when my foreclosure happened, i avoided the unlawful detainer process by moving out beforehand. you may have to explain to a future landlord or company that the unlawful detainer was for the foreclosure and not an actual rental company as it does not designate that on your background report when it is run by these companies.

Daxtell, I enjoyed your post. I am assuming the unlawful detainer (eviction) will not go on my record if I settle this before a judge makes the ruling. So if I can move out and get a new place in time or move my furniture to a public storage and live in a motel, I should be able to avoid this on my credit report.

This is amazing. I have plenty of money, I have offered a total of 5 months rent (4 month rent + 1 month security deposit). I have a very high paying job with a very powerful company. I understand the BK, but I have zero debt, no credit, lots of money and lots of income.

It is amazing that every time I try to rent a place, either they don't want me because of my credit or I can't rent from them because they are in foreclosure or default. I am just trying to rent a place, I am not running for president of the United States of America.

[etechjc]

Im surprised your having so much troubles.2 months After our CH7 discharge we moved to KC and thought we were going to have the problems you are. I was even prepared to pay the first year + Deposit in full. Turned out the fact that we had a Fat and Lazy 6 year old Black Lab was more of an issue than the Bankruptcy was. Everyone would rent to us, But want $300, $400 and one person asked for a $1000 (rent was $600 a month with a $600 deposit)Non refundable pet deposit. We finally found a rental company that rented to us for $700 deposit plus a $300 pet deposit all of it being in the lease as fully refundable, Then they turned around and gave us the first month for half price which saved us more than the pet deposit costed.

It only took us a week and half to find a place, And everyone who was going to do a credit check we outright told that we had recent discharge. Not a single one of them cared, They all told us as long as there was no criminal background and we could provide proof of enough income there was no problems.

So it must be an area thing.

[daxtell]

helpme.... yes the the companies that care about the unlawful detainers will ask you right up front (at least the nice ones) if you have any before they run your information. it is difficult and by no means easy. i wish you luck. you have planned well and with a little more looking and asking i think you will find something.