Category: I Have a Plan

Legal solutions are different for everybody, but the legal options to protect oneself are not. This category is to evaluate options available and a plan of action for each of these

Delaware AG’s MERS suit should strike fear in MBS industry

From: Jake Naumer

Lawyers for MBS investors and bond insurers have already poured untold hours into scrutinizing mortgage loan file documents for breach of contract cases against issuers. They’ve generally focused on whether the underlying mortgage pools live up to the representations and warranties MBS issuers made about things such as owner income and loan-to-value ratios. But imagine if they can argue, as the Delaware AG does in Thursday’s MERS suit, that trusts never owned the loans in MBS pools at all. We’re looking at a whole new world of put-back liability.

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http://newsandinsight.thomsonreuters.com/Legal/News/ViewNews.aspx?id=31220&terms=%40ReutersTopicCodes+CONTAINS+%27ANV%27

http://newsandinsight.thomsonreuters.com/Legal/News/ViewNews.aspx?id=31220&terms=%40ReutersTopicCodes+CONTAINS+%27ANV%27

http://newsandinsight.thomsonreuters.com/Legal/News/2011/10_-_October/Pauley_s_BofA_MBS_ruling_is_boon_to_New_York,_Delaware_AGs/

—
Jake Naumer
Resolution Advisors
3187 Morgan Ford
St Louis Missouri 63116
314 961 7600
Fax Voice Mail 314 754 9086

Delaware v. MERS Complaint

MERS-Complaint Delaware

United States of America v Allied Home Mortgage | Feds File Massive Fraud Case Against Allied Home Mortgage

Feds File Massive Fraud Case Against Allied Home Mortgage
by Tracy Weber and Charles Ornstein ProPublica,
Federal prosecutors sued Allied Home Mortgage Capital Corp. and two top executives Tuesday, accusing them of running a massive fraud scheme that cost the government at least $834 million in insurance claims on defaulted home loans.
Houston-based Allied and its founder and chief executive, Jim Hodge, were the subject of July 2010 stories by ProPublica [1], which detailed a trail of alleged misconduct, lawsuits and government sanctions spanning at least 18 states [2] and seven years. Borrowers recounted how they had been lied to by Allied employees, who in some cases had siphoned their loan proceeds for personal gain. Some lost their homes.
Despite years of warnings, the federal government had not — until this week — impaired the company’s ability to issue new mortgages.
The suit [3], filed Tuesday in U.S. District Court in Manhattan, seeks triple damages and civil penalties, which could total $2.5 billion. Simultaneously, the U.S. Department of Housing and Urban Development suspended the company and Hodge from issuing loans [4] backed by the Federal Housing Administration. The company was also barred from issuing mortgage-backed securities through the Government National Mortgage Association (Ginnie Mae).
Allied has billed itself as the nation’s largest privately held mortgage broker with some 200 branches. (At one point, the company operated more than 600.) The sprawling network made Hodge, a folksy Texan, a rich man [5] with properties in three states and St. Croix and two airplanes to get to them.
Allied and Hodge played the “lending industry equivalent of heads-I-win and tails-you-lose,” U.S. Attorney Preet Bharara said at a news conference Tuesday. “The losers here were American taxpayers and the thousands of families who faced foreclosure because they could not ultimately fulfill their obligations on mortgages that were doomed to fail.”
The government’s complaint alleges that between 2001 and 2010, Allied originated 112,324 home mortgages backed by the FHA, which typically go to moderate- and low-income borrowers. Of those, nearly 32 percent — 35,801 — defaulted, resulting in more than $834 million in insurance claims paid by HUD.
In 2006 and 2007, the company’s default rate was a “staggering” 55 percent, the complaint said.
In addition, another 2,509 mortgages are currently in default, which could result in another $363 million in insurance claims paid by HUD.
Borrowers told ProPublica last year that company employees falsified records to bolster their credit worthiness and lured them into unaffordable deals by lying about the terms.
The government’s complaint says: “Allied has profited for years as one of the nation’s largest FHA lenders by engaging in reckless mortgage lending, flouting the requirements of the FHA mortgage insurance program and repeatedly lying about its compliance.”
Tuesday’s action against Allied follows criticism that the government has been slow to act on rampant fraud and abuse in the mortgage market. In the case of Allied, the government had reams of evidence of possible misconduct. Among ProPublica’s findings last year:
• Allied had the highest serious delinquency rate [6] among the top 20 FHA loan originators from June 2008 through May 2010.
• Nine states sanctioned the firm from 2009 to mid-2010 for such violations as using unlicensed brokers and misleading a borrower.
• Federal agencies cited or settled with Allied or an affiliate at least six times since 2003 for overcharging clients, underpaying workers or other offenses.
• At least five lenders sued, claiming Allied tricked them into funding loans for unqualified buyers by falsifying documents and submitting grossly inflated appraisals, among other allegations.
Allied spokesman Joe James said the company was aware of the government lawsuit but had not received a copy of it and could not comment.
Hodge did not return a phone call and email seeking comment. But last year, he told ProPublica that the problems experienced at some of Allied’s branches should not tarnish his firm’s overall record. “If you look at the volume that we did or do,” he said, “it’s not significant.”
In an interview Tuesday, Helen Kanovsky, HUD’s general counsel, defended the time it took her department to take action.
“We had tried sanctions before,” she said. “We had assessed civil monetary penalties and that had not worked.
“The extraordinary remedy that we have — to be able to terminate somebody’s FHA capacity [and] basically put them out of business — requires a very high level of evidence and a high level of proof.”
The government’s 41-page lawsuit details an alleged scheme by Allied to deceive HUD about its employees and the risks associated with its loans. For years, it operated a network of “shadow” branches that were not approved by HUD and falsely certified that they met legal requirements.
Allied also disguised the high default rates of some branches, the complaint alleges, by tinkering with their addresses to apply for new HUD identification codes for the same offices. When HUD updated its system to prevent such manipulation, Allied simply moved all of its branches to a sister company and obtained new IDs, “thus again achieving a clean slate on its default rates,” the suit said. The sister firm, Allied Home Mortgage Corp., is also named as a defendant.
Hodge created a “culture of corruption,” the suit said. He “intimidated employees by spontaneous terminations and aggressive email monitoring, and silenced former employees by actual and threatened litigation against them.”
In one case, Hodge instructed his chief information officer to capture the password for the personal email account of Jeanne Stell, the company’s executive vice president and compliance officer. Then, he installed an electronic listening device under the information officer’s desk, the complaint alleges.
Allied also was employing felons, including a state manager who had been sentenced to 60 months in prison for distributing methamphetamine and a branch manager running the office under a falsely-assumed name, the suit said.
The government joined a whistleblower lawsuit filed by a former Allied branch manager in Massachusetts, Peter Belli. In addition to Allied and Hodge, the suit also names Stell as a defendant.
Belli had filed other suits against Hodge and Allied. He said Tuesday that, while his legal pursuit of his former employer had been long and hard, “I never really ever felt like quitting because I was married to the cause.”
Allied is also facing at least one federal criminal investigation into its now-shuttered Hammond, La., branch. In multiple lawsuits, borrowers allege that the office deceived them from 2005 through 2007 by misrepresenting loan terms, falsifying records, failing to pay off prior mortgages and diverting hundreds of thousands of dollars.
At his news conference, Bharara said Tuesday’s filing was a civil matter and that the investigation into Allied is continuing. “We will go wherever the facts lead us.”
Allied-Lawsuit

I believe it, don’t you?

Fourteen Servicers Begin Lengthy Foreclosure Review Process
By: Krista Franks 11/01/2011
The Office of the Comptroller of the Currency (OCC) and the Federal Reserve Board both announced Tuesday that the independent foreclosure reviews of 14 large servicers issued in April are now under way.
About 4.5 million borrowers could have their loans reviewed and potentially be compensated for imposed financial hardship, according to a previous statement by the OCC.
According to the OCC, the review will take several months due to the volume of potential foreclosures to review.
The foreclosure review is part of a broader list of enforcement actions for the servicers to rectify missteps in the foreclosure process. The enforcement actions mandated by the OCC include improved borrower communications, greater oversight of third-party vendors, updated management information systems, and the elimination of “dual tracking” – which takes place when a servicer forecloses while a borrower is being considered for a modification.
The OCC issued enforcement actions to: Ally’s GMAC Mortgage, Aurora Bank, Bank of America, Citibank, EverBank, HSBC, JPMorgan Chase, MetLife, OneWest, PNC, Sovereign Bank, SunTrust, U.S. Bank, and Wells Fargo.
The Federal Reserve Board issued similar mandates in April and is also requiring the four large servicers it oversees – GMAC , HSBC, SunTrust, and JPMorgan’s EMC Mortgage – to appoint a single point of contact to certain distressed borrowers.
“The independent foreclosure review is a significant component of the mortgage servicers’ compliance with our enforcement actions,” said acting Comptroller of the Currency John Walsh. “These requirements help ensure that the servicers provide appropriate compensation to borrowers who suffered financial harm as a result of improper practices identified in our enforcement actions.”
Independent consultants will begin reviewing cases in which borrowers believe they suffered financial harm due to foreclosure actions that occurred between 2009 and 2010.
Servicers began mailing letters to borrowers Tuesday explaining the process of requesting a review, according to the OCC.
If independent reviewers determine a borrower did face financial harm due to misrepresentations or errors by the servicer, the servicer will be required to compensate the borrower.
“Borrowers are encouraged to carefully consider the information about the review program to determine if they should participate,” stated the Fed in its Tuesday announcement. “There are no costs associated with being included in the review.”
The Fed is also calling on independent reviewers to conduct a comprehensive examination of certain categories of foreclosures. For example, they will look for violations of the Servicemembers Civil Relief Act and review all cases in which a borrower filed a complaint about their foreclosure proceeding.
Borrowers’ requests for reviews will be accepted through the end of April.

FHFA OIG Report

Click to access EVL-2011-004.pdf

Should be self-explanatory…

Litigation docs from Matt Weider

The cat is way out of the bag. The lenders and banks that brought our country to the verge of collapse with fraud, misrepresentation and lies have now brought these same practices into local courtrooms. Every day judges who sign foreclosure orders are confronted with legal pleadings that do not conform to the most basic requirements of professional standards, but who really cares about that…the real issue is that because the lenders cannot produce the evidence they need to proceed with their cases, they….produce the evidence they need to proceed with their cases.
I’ve previously posted about affidavit and assignment fraud…it comes in three areas:
1) False Affidavits of Service or False Affidavits That We Could Not Serve the Defendant. (See Sewer Service);
2)False Assignments of Mortgage (MERS assigns this Mortgage to Deutsche Bank who now has the right to foreclose);
3)False Affidavits of Amounts due and owing.
A Subpoena for Every Foreclosure!
Many times these documents are false on their face, but sometimes it takes a little digging to uncover the lies and misrepresentations….that’s where a subpoena comes in. The following is text of a subpoena I use. Next is a Motion to Strike Affidavit. Now there are going to be foreclosures that are proper (such as when original lenders foreclose) but in virtually every other case (especially when a pretender lender is a Plaintiff), when pressed, you’re going to find that the evidence submitted to the court is filled with mistakes lies or outright misrepresentations. Given what we’re learning about the scope of this problem…subpoenas should be dropped in every case for every fact witness, assignor, assignee and affiant. Please share results of your work with me! Together we’ll take my beloved courts back.
________________________________________

SUBPOENA DUCES TECUM FOR RECORDS WITH DEPOSITION
STATE OF FLORIDA:
TO:
YOU ARE HEREBY COMMANDED to appear before a person authorized by law to take depositions at the law offices of MATTHEW D. WEIDNER, P.A., 1229 Central Avenue, St. Petersburg, Florida 33705, on MONTH DAY, 2010, for the taking of your deposition in this action and to have with you at the above time and place the following:
1. All books, papers, records, documents and other tangible things kept by LITTON LOAN SERVICING, LP concerning the transactions alleged in the complaint against Annabel E. Montgomery.
2. Any and all other books, papers, records, documents or tangible things that relate to HSBC BANK, USA, ASSOCIATION AS TRUSTEE FOR THE ACE SECURITIES CORPORATION HOME EQUITY LOAN TRUST, SERIES 2005-AG1, ASSET BACKED PASS-THROUGH CERTIFICATES’ claim against ANNABEL E. MONTGOMERY.
3. All employment records that exist between Christopher Spradling and any employer who has employed Spradling within the last three years including current employers.
4. All records that purport to give Christopher Spradling the authority to sign or execute any documents on behalf of any person or entity.
5. All documents, records, books, evidence or instructions that you reviewed or relied upon in order to prepare the affidavit or assignment executed in this case.
These items will be inspected and may be copied at that time. You will not be required to surrender the original items. You have the right to object to the production pursuant to this subpoena at any time before production by giving written notice to the attorney whose name appears on this subpoena. You may condition the preparation of the copies upon the payment in advance of the reasonable cost of preparation.
If you fail to: (a) appear as specified, or (b) furnish the records instead of appearing as provided above; or (c) object to this subpoena you may be in contempt of Court. You are subpoenaed by the attorneys whose names appear on this subpoena, and unless excused from this subpoena by the attorney or the Court, you shall respond to this subpoena as directed.
DATED on XXXX X, 2010.
FOR THE COURT
Matthew D. Weidner, P.A.
1229 Central Avenue
St. Petersburg, FL 33705
By: ________________________________
Matthew D. Weidner
FBN: 0185957
Defendant’s Motion to Strike Affidavit of Christopher Spradling and for attorney’s fees and costs
COMES NOW, the Defendant Annabel E. Montgomery (hereinafter “Defendant”), by and through the undersigned counsel MATTHEW D. WEIDNER, and respectfully MOTIONS THIS COURT TO STRIKE AFFIDAVIT OF CHRISTOPHER SPADLING AND FOR ATTORNEY’S FEES AND COSTS, pursuant to Fla. R. Civ. Pro. 1.510, and in support thereof states as follows:
FACTS
1. This is an action for foreclosure of real property owned by the Defendant.
2. The named plaintiff in this case is HSBC BANK, USA, NATIONAL ASSOCATION, AS TRUSTEE FOR THE ACE SECURITIES CORPORATION HOME EQUITY TRUST, SERIES 2005-AG1, ASSET BACKED PASS-THROUGH CERTIFICATE (hereinafter “Plaintiff”).
3. On February 2, 2010 Plaintiff, by and through its counsel Florida Default Law Group, P.L. (hereinafter “Florida Default Law Group”), gave Notice of Filing of Affidavit as to Amounts Due and Owing and the accompanying Affidavit (hereinafter “Affidavit”).
4. The Affiant of the above-mention Affidavit was identified as Christopher Spradling (hereinafter “Spradling”). Spradling identified himself as a “Foreclosure Manager” for LITTON LOAN SERVICING, LP (hereinafter “Litton”). Litton, in turn, was identified as “the servicer of the loan…[Litton] is responsible for the collection of this loan transaction and pursuit of any delinquency in payments.”[1]
5. Spradling, based upon his personal knowledge, averred in the Affidavit that: (1) the Plaintiff or its assigns was owed a total of $408,809.30; (2) the Plaintiff was entitled to enforce the Note and Mortgage; and (3) Plaintiff was entitled to a judgment as a matter of law.[2] The Affidavit does not contain any mention as to who owes the Plaintiff the sum alleged save for one sentences line which cryptically state “[s]pecifically, I have personal knowledge of the facts regarding the sums which are due and owing to Plaintiff or its assigns pursuant to the Note and Mortgage which is the subject matter of the lawsuit” and a second which states “I am familiar with the books of account…concerning the transactions alleged in the Complaint.”[3] Emphasis added.
6. Nowhere in the Affidavit was either Litton or Spradling identified as either the Plaintiff or the Plaintiff’s authorized agent.
7. Upon information and belief, Litton is simply a “middleman” of sorts who is responsible for the transfer of funds between the various assignees of the underlying Mortgage and Note and has no knowledge of the underlying transactions between the Plaintiff and Defendant.
8. Upon information and belief, Spradling, as employee of Litton and not the Plaintiff, has no knowledge of the underlying transactions between the Plaintiff and Defendant.
LEGAL REASONING IN SUPPORT OF MOTION
1. I. Plaintiff Failed to Attach Documents Referred to in the Affidavit
1. a. Failure to Attach Documents Violates Fla. Stat. §90.901 (1989)
Florida Statue §90.901 (1989) states, in pertinent part, that “[a]uthentication or identification of evidence is required as a condition precedent to its admissibility.” The failure to authenticate documents referred to in affidavits renders the affiant incompetent to testify as to the matters referred to in the affidavit. See Fla. R. Civ. Pro. 1.510(e) (which reads, in pertinent part, that “affidavits…shall show affirmatively that the affiant is competent to testify to the matters stated therein”); Zoda v. Hedden, 596 So. 2d 1225, 1226 (Fla. 2d DCA 1992) (holding, in part, that failure to attach certified copies of public records rendered affiant, who was not a custodian of said records, incompetent to testify to the matters stated in his affidavit as affiant was unable to authenticate the documents referred to therein.)
Here, Spradling affirmatively states in the Affidavit that he is “familiar with the books of account and have examined all books, records, and documents kept by LITTON LOAN SERVICING, LP concerning the transactions alleged in the Complaint.”[4] Furthermore, Spradling averred that the “Plaintiff or its assigns, is owed…$408,809.30.”[5] Nevertheless, Spradling has failed to attach any of the books, records or documents referred to in the Affidavit. In addition, Spradling does not meet the definition of “custodian,” which is “a person or institution that has charge or custody (of…papers).” See Black’s Law Dictionary, 8th ed. 2004, custodian. By Spradling’s own admission “[t]he books, records, and documents which [Spradling] has examined are managed by employees or agents whose duty it is to keep the books accurately and completely.”[6] Emphasis added. Thus, Spradling has only examined the books, records, and documents which he refers to in the Affidavit while the true custodians of these documents are the employees or agents whose duty it is to keep the books accurately and completely. In essence, Spradling averred to records which he did not submit nor could he testify for the authenticity of just as the affiant in Zoda did.
Spradling’s failure to attach the documents referred to in the Affidavit without being custodian of same is a violation of the authentication rule promulgated in Fla. Stat. §90.901 (1989), which renders him incompetent to testify to the matters stated therein as the Second District in Zoda held. Therefore, the Affidavit should be struck in whole.
1. b. Failure to Attach Documents Violates Fla. R. Civ. Pro. 1.510(e)
Fla. R. Civ. Pro. 1.510(e) provides, in part, that “[s]worn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.” Failure to attach such papers is grounds for reversal of summary judgment decisions. See CSX Transp., Inc. v. Pasco County, 660 So. 2d 757 (Fla. 2d DCA 1995) (reversing summary judgment granted below where the affiant based statements on reports but failed to attach same to the affidavit.)
As previously demonstrated, Spradling referred to books, records, and documents kept by Litton which allegedly concerned the transaction referred to in the Complaint against the Defendant. Nevertheless, as previously demonstrated, Spradling has not attached any of these books, records or documents. This failure to do so is a violation of Fla. R. Civ. Pro. 1.510(e) and is grounds for a reversal of a summary judgment decision in favor of the Plaintiff. Therefore, the Affidavit should be struck in whole.
1. II. Affidavit Was Not Based Upon Spradling’s Personal Knowledge
As a threshold matter, the admissibility of an affidavit rests upon the affiant having personal knowledge as to the matters stated therein. See Fla. R. Civ. Pro. 1.510(e) (reading, in pertinent part, that “affidavits shall be made on personal knowledge”); Enterprise Leasing Co. v. Demartino, 15 So. 3d 711 (Fla. 2d DCA 2009); West Edge II v. Kunderas, 910 So. 2d 953 (Fla. 2d DCA 2005); In re Forefeiture of 1998 Ford Pickup, Identification No. 1FTZX1767WNA34547, 779 So. 2d 450 (Fla. 2d DCA 2000). Additionally, a corporate officer’s affidavit which merely states conclusions or opinion is not sufficient, even if it is based on personal knowledge. Nour v. All State Supply Co., So. 2d 1204, 1205 (Fla. 1st DCA 1986).
The Third District, in Alvarez v. Florida Ins. Guaranty Association, 661 So. 2d 1230 (Fla. 3d DCA 1995), noted that “the purpose of the personal knowledge requirement is to prevent the trial court from relying on hearsay when ruling on a motion for summary judgment and to ensure that there is an admissible evidentiary basis for the case rather than mere supposition or belief.” Id at 1232 (quoting Pawlik v. Barnett Bank of Columbia County, 528 So. 2d 965, 966 (Fla. 1st DCA 1988)). This opposition to hearsay evidence has deep roots in Florida common law. In Capello v. Flea Market U.S.A., Inc., 625 So. 2d 474 (Fla. 3d DCA 1993), the Third District affirmed an order of summary judgment in favor of Flea Market U.S.A as Capello’s affidavit in opposition was not based upon personal knowledge and therefore contained inadmissible hearsay evidence. See also Doss v. Steger & Steger, P.A., 613 So. 2d 136 (Fla. 4th DCA 1993); Mullan v. Bishop of Diocese of Orlando, 540 So. 2d 174 (Fla. 5th DCA 1989); Crosby v. Paxson Electric Company, 534 So. 2d 787 (Fla. 1st DCA 1988); Page v. Stanley, 226 So. 2d 129 (Fla. 4th DCA 1969). Thus, there is ample precedent for striking affidavits in full which are not based upon the affiant’s personal knowledge.
Here, the entire Affidavit is hearsay evidence as Spradling has absolutely no personal knowledge of the facts stated therein. As an employee of Litton, which purports to be the servicer of the loan, he has no knowledge of the underlying transaction between the Plaintiff and the Defendant. Neither Spradling nor Litton: (1) were engaged by the Plaintiff for the purpose of executing the underlying mortgage transaction with the Defendant; or (2) had any contact with the Defendant with respect to the underlying transaction between the Plaintiff and Defendant. In addition, the Affidavit fails to set forth with any degree of specificity what duties Litton performs for the Plaintiff, save for one line which states that Litton “is responsible for the collection of this loan transaction and pursuit of any delinquency in payments.”[7] At best, Litton acted as a middleman of sorts, whose primary function was to transfer of funds between the various assignees of the underlying Mortgage and Note. Litton is not the named Plaintiff in this case, nor does the Affidavit aver that either Spradling or Litton is the agent of the Plaintiff.
Because Spradling has no personal knowledge of the underlying transaction between the Plaintiff and Defendant, any statement he gives which references this underlying transaction (such as the fact that the Plaintiff is allegedly owed sums of monies in excess of $400,000) is, by its very nature, hearsay. The Florida Rules of Evidence define hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fla. Stat. §90.801(1)(c) (2007). Here Spradling is averring to a statement (that the Plaintiff is allegedly owed sums of money) which was made by someone other than himself (namely, the Plaintiff) and is offering this as proof of the matter asserted (that Plaintiff is entitled to enforce the Note and Mortgage and that Plaintiff is entitled to a judgment as a matter of law.) At best, the only statements which Spradling can aver to are those which regard the transfer of funds between the various assignees of the Mortgage and Note.
The Plaintiff may argue that while Spradling’s statements may be hearsay, they should nevertheless be admitted under the “Records of Regularly Conducted Business Activity” exception. Fla. Stat. §90.803(6) (2007). This rule provides that notwithstanding the provision of §90.802 (which renders hearsay statements inadmissible), hearsay statements are not inadmissible, even though the declarant is available as a witness, if the statement is
[a] memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or as shown by a certification or declaration that complies with paragraph (c) and s. 90.902(11), unless the sources of information or other circumstances show lack of trustworthiness. Emphasis added.
There are, however, several problems with this argument. To begin, and as previously demonstrated, no memorandums, reports, records, or data compilation have been offered by the Plaintiff. Furthermore, the books, records, and documents referred to by Spradling in the Affidavit (which, of course, were not attached) were kept by Litton, who cannot be a person with knowledge as Litton does not have any personal knowledge of underlying transaction between the Plaintiff and the Defendant. Finally, Litton, as the source of this information, shows a lack of trustworthiness because Spradling failed to attach the books, records, and documents to the Affidavit and because neither Litton nor Spradling have knowledge of the underlying transaction between the Plaintiff and the Defendant.
Because Spradling’s statements in the Affidavit are not based upon personal knowledge, they are inadmissible hearsay evidence. As no hearsay exception applies to these statements, the Affidavit should be struck in whole.
1. III. Affidavit Included Impermissible Conclusions of Law Not Supported by Facts
An affidavit in support of a motion for summary judgment may not be based upon factual conclusions or opinions of law. Jones Constr. Co. of Cent. Fla., Inc. v. Fla. Workers’ Comp. JUA, Inc., 793 So. 2d 978, 979 (Fla. 2d DCA 2001). Furthermore, an affidavit which states a legal conclusion should not be relied upon unless the affidavit also recites the facts which justify the conclusion. Acquadro v. Bergeron, 851 So. 2d 665, 672 (Fla. 2003); Rever v. Lapidus, 151 So. 2d 61, 62 (Fla. 3d DCA 1963).
Here, the Affidavit contained conclusions of law which were not supported by facts stated therein. Specifically, Spradling averred that the Plaintiff was entitled to enforce the Note and Mortgage and that the Plaintiff was entitled to a judgment as a matter of law, two legal conclusions, but did not support this conclusion with statements which referenced exactly who the Plaintiff was entitled to enforce the Note and Mortgage against. In fact there is no mention of any of the parties in question save for one cryptic line in where Spradling states that “[s]pecifically, I have personal knowledge of the facts regarding the sums which are due and owing to Plaintiff or its assigns pursuant to the Note and Mortgage which is the subject matter of the lawsuit” and another which states “I am familiar with the books of account…concerning the transactions alleged in the Complaint.”[8] Nowhere in the Affidavit does Spradling state that the Plaintiff is entitled to enforce the Note and Mortgage against the Defendant nor does Spradling state that the Plaintiff is entitled to a judgment as a matter of law because the Defendant owes the Plaintiff money. At best the Affidavit accuses someone of owing the Plaintiff $408,809.30 and that the Plaintiff should be able to enforce some Note and Mortgage against that particular someone. By not clearly identifying the parties in question, Spradling has not adequately supported his two legal conclusions.
Because the Affidavit contained impermissible conclusions of law which were not supported by facts stated therein, the Affidavit should be struck in whole.
1. IV. Sanction of Attorney’s Fees is Appropriate
Fla. R. Civ. Pro. 1.510(g) reads, in full, that
[i]f it appears to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur, including reasonable attorneys’ fees, and any offending party or attorney may be adjudged guilty of contempt. Emphasis added.
The undersigned counsel has expended considerable time and resources preparing to defend against an affidavit which has, on its face, no basis in law. Both Florida Default Law Group and the Plaintiff both knew that Spradling’s affidavit lacked authenticity and reliability yet still chose to file it with the Court. In addition, this is not Florida Default Law Group’s first time filing affidavits in bad faith. Recently, the Bankruptcy Court for the Southern District of Florida sanctioned both Florida Default Law Group and its client, WELLS FARGO, $95,130.45 for false representations made in affidavits in that court as well as other bankruptcy courts in Florida. See In re: Fazul Haque, Case No. 08-14257-BKR-JKO (Order Granting Wells Fargo, N.A.’s Motion for Relief from Stay and Imposing Sanctions for Negligent Practice and False Representations, Oct. 28, 2008). This is indicia of a modus operandi on Florida Default Law Group’s part to present misrepresentations and false affidavits to the Court which make an award of attorney’s fees and costs an appropriate sanction.
WHEREFORE, Defendant asks this Court to GRANT its MOTION TO STRIKE AFFIDAVIT OF CHRISTOPHER SPRADLING and enter an ORDER granting ATTORNEY’S FEES AND COSTS and any other relief the Court deems just and proper.
________________________________________
[1] See Affidavit As to Amounts Due and Owing, pg. 1.
[2] Id, pgs. 1, 2.
[3] Id.
[4] See Affidavit As to Amounts Due and Owing, pg. 1.
[5] Id, pg. 2.
[6] See Affidavit As to Amounts Due and Owing, pg. 1.
[7] See Affidavit As to Amounts Due and Owing, pg. 1.
[8] See Affidavit As to Amounts Due and Owing, pg. 1.

The Law of Capitalism THE MASS MISS JOINDER

I attended the Attorney General and state Bar hearing as to the intervention of the state bar into the law practice of Mitchell Stein and the K2 mass Joinder cases in Los Angeles in front of Judge Johnson. The tentative was a scathing implication of Mitchell Stein and his purported involvement with the “marketing companies” and the allegations of unfair business practices all needed for the AG and the State Bar to step in and confiscate 1.6 million in various accounts.

I was there to opine the status of the case itself and the merits of the cases and as to the victims rights as against the banks. If the Bar took over the practice would they defend the cases would they protect the victims right. No they are not; right now they the State Bar are telling the victims they are on there own.

Once again these suits I have been following and hoping could get past the Demur stage the Banks would be forced to answer. Then there would be motions for Summary Judgement and if the Victims could survive the Summary Judgement and thousands of requests for admissions and interrogatories propounded on the thousands of plaintiffs. It could be done I would have to associate about 10 other lawyers and 30 paralegals but it could be done for about $700,000.00. Then I believe the Banks would enter settlement negotiations with the victims witch I calculate to be about 6500 victims to date.

Mandelman characterized the case as follows:

The case at the core of the Kramer and Kaslow mass joinder lawsuit is: Ronald vs. Bank of America. Basically, the case accuses Countrywide (subsequent cases being filed include Citibank, One West, GMAC/Ally Bank, and perhaps others) of perpetrating a massive fraud upon homeowners by knowingly inflating appraisals, creating a bubble the bank knew would pop and leave homeowner equity devastated, violate privacy statutes, and then Civil Code sections when they refused to modify… you get the idea.

The case says that Countrywide execs knew and did it anyway in order to make zillions of dollars securitizing the loans and therefore only others would incur the future losses.

Here’s an overview of what the third amended complaint says in its Introduction section:

2. This action seeks remedies for the foregoing improper activities, including a massive fraud perpetrated upon Plaintiffs and other borrowers by the Countrywide Defendants that devastated the values of their residences, in most cases resulting in Plaintiffs’ loss of all or substantially all of their net worths.

6. Hand-in-hand with its fraudulently-obtained mortgages, Mozilo and others at Countrywide hatched a plan to “pool” the foregoing mortgages and sell the pools for inflated value. Rapidly, these two intertwined schemes grew into a brazen plan to disregard underwriting standards and fraudulently inflate property values – county-by- county, city-by-city, person-by-person – in order to take business from legitimate mortgage-providers, and moved on to massive securities fraud hand-in-hand with concealment from, and deception of, Plaintiffs and other mortgagees on an unprecedented scale.

7. From as early as 2004, Countrywide’s senior management led by Mozilo knew the scheme would cause a liquidity crisis that would devastate Plaintiffs’ home values and net worths. But, they didn’t care, because their plan was based on insider trading – pumping for as long as they could and then dumping before the truth came out and Plaintiffs’ losses were locked in.

9. It is now all too clear that this was the ultimate high-stakes fraudulent investment scheme of the last decade. Couched in banking and securities jargon, the deceptive gamble with consumers’ primary assets – their homes – was nothing more than a financial fraud perpetrated by Defendants and others on a scale never before seen. This scheme led directly to a mortgage meltdown in California that was substantially worse than any economic problems facing the rest of the United States. From 2008 to the present, Californians’ home values decreased by considerably more than most other areas in the United States as a direct and proximate result of the Defendants’ scheme set forth herein.

This massive fraudulent scheme was a disaster both foreseen by Countrywide and waiting to happen. Defendants knew it, and yet Defendants still induced the Plaintiffs into their scheme without telling them.

10. As a result, Plaintiffs lost their equity in their homes, their credit ratings and histories were damaged or destroyed, and Plaintiffs incurred material other costs and expenses, described herein. At the same time, Defendants took from Plaintiffs and other borrowers billions of dollars in interest payments and fees and generated billions of dollars in profits by selling their loans at inflated values.

14. Since the time Plaintiffs filed the initial Complaint herein, Defendants’ improper acts have continued, including, inter alia: (i) issuing Notices of Default in violation of Cal. Civil Code §2923.5; (ii) misrepresenting their intention to arrange loan modifications for Plaintiffs, while in fact creating abusive roadblocks to deprive Plaintiffs of their legal rights; and (iii) engaging in intrinsic fraud in this Court and in Kentucky by stalling in addressing Plaintiffs’ legitimate requests to cancel notices of default and for loan modifications, and by refusing to respond, in any way, to Plaintiffs’ privacy causes of action.

Now, there’s no question… this is a real lawsuit. Some attorneys believe it will be a very difficult case to win, while others think it’s quite viable and likely to settle. I can see both sides of that argument.

On one hand, it would seem difficult to prove that Countrywide caused the housing bubble; there were certainly many parties involved and numerous other contributing factors as well. On the other hand, the case has numerous aspects that are unquestionably true and certainly wrong.

Then there’s what’s known as “the banker factor.” Actually, I’m making that up, but you know what I mean. The banks aren’t going to lay down for this as it would open an enormous can of litigating worms… so they have to fight… or is there no percentage in that either? Well, now you’ve seen first hand why I chose not to go to law school.

I really haven’t the foggiest idea what’s going to happen… and neither does anyone else.

But then, Columbus couldn’t exactly stop and ask for directions either, which, it’s worth noting is why, when sailing for The New World, he landed in the Bahamas and named them San Salvador, but assumed he had found the Indies so he named the native people Indians (leading me to always wonder what he would have named them had he not gotten so hopelessly lost.)

(What if his favorite word was “Jujubees,” and he had named the natives “Jujubees?” Then I would have grown up playing Cowboys & Jujubees?)

So, since no one can know what’s going to happen in the future of this case, I thought I’d take a look at where it is today. From a review of the Los Angeles Superior Court’s online records database we find these events have transpired to-date or are set for the near future…
1. Original complaint was filed in March 2009.
2. First amended complaint was in June of 2009.
3. Second amended complaint March 2010.
4. August 2010: the banks try to remove the case to federal court, but fail.
5. Third amended complaint was filed July 7, 2010.
6. The defendant banksters have demurred again, but it doesn’t appear that the demurs filed in December have been heard.
7. Status conference set for Thursday, February 3rd, 2011.
8. There is a hearing date scheduled for March 29, 2011, but it’s not clear to me what will be happening at that hearing.

So, this is their third “amended complaint.” That means the defendants… the banks… have demurred twice. That means that the banks have come to court claiming that the mass joinder plaintiffs don’t state a cause of action… or in other words saying the plaintiffs have no case… and the court has allowed the plaintiffs to amend the complaint three times so far.

Like almost everything in the law, I guess you could read that a couple of different ways. On one hand it seems positive… the case brought by the mass joinder plaintiffs has not been tossed out by the judge yet. That’s good, right?
On the other hand… the court could “sustain the demur without leave to amend,” in which case the mass joinder suit would be over and done.

And that’s why litigating is always a gamble, and by no means a sure thing.
Here’s an oversimplified look at the mass joinder’s causes of action.

First Cause of Action… Fraudulent Concealment – This is saying that the bank was hiding things from the borrowers.

Second Cause of Action… Intentional Misrepresentation – This is lying when you knew you were lying. In other words, you knew an appraisal was wrong… it came in at $500,000, but you knew it was worth $400,000 and you passed it off anyway.

Third Cause of Action… Negligent Misrepresentation – This is like saying that you’re lying but it wasn’t intentional. Let’s say that you ordered an appraisal but never really looked at the appraisal to make sure it was done correctly. You include this cause of action in case the conduct doesn’t rise to the level of intentional misrepresentation, and perhaps because some insurance policies don’t cover intentional acts.

Fourth Cause if Action… Invasion of Constitutional Right to Privacy – This is saying that the banks disclosed personal information… perhaps when selling the loans to another investor.

Fifth Cause of Action… Violation of California Financial Information Privacy Act – See above or read the actual complaint.

Sixth Cause of Action… Civil Code 2923.5 – Defendants are prohibited by statute from recording a Notice of Default against the primary residential property of any Californian without first making contact with that person as required under § 2923.5 and then interacting with that person in the manner set forth in detail under § 2923.5. Nothing special here, but its been upheld by other courts in California.

Seventh Cause of Action… Civil Code 1798 – When they gave away your private information, they didn’t tell you they did it? Defendants failed to timely disclose to Plaintiffs the disclosure of their personal information as required under California Civil Code § 1798.82

Eighth Cause of Action… Unfair Competition Against All Defendants – Defendants’ actions in implementing and perpetrating their fraudulent scheme of inducing Plaintiffs to accept mortgages for which they were not qualified based on inflated property valuations and undisclosed disregard of their own underwriting standards and the sale of overpriced collateralized mortgage pools, all the while knowing that the plan would crash and burn, taking the Plaintiffs down and costing them the equity in their homes and other damages, violates numerous federal and state statutes and common law protections enacted for consumer protection, privacy, trade disclosure, and fair trade and commerce.

In Conclusion…

Attorney Phillip Kramer, in his own words, made it quite clear that his firm was not responsible for the mailer I received or the telemarketing about which I’ve been notified. Once again, he says…

“I know of no outbound calling. If asked, I would not approve of that. I knew that some law firms wanted to send out mailers. I have insisted that everyone comply with State Bar rules and that anything with my name must be pre-approved. As of this date, no one has submitted any proposed marketing for my review. That piece was done without my knowledge.

I am happy to pay a referral fee to other law firms. I do not split fees, pay commissions, nor do I pay referral fees to non-lawyers. I do not use cappers, and have never authorized anyone to robocall, telemarket, spam email, or undertake any mass marketing on my behalf.”

With that said I was going to apply to the Bar to take over the cases if they would relinquish the 1.6 to pay for the work to be done for the victims. Before making such a wild leap into this caos I called my State bar lawyer. He informed me that I should not even go close to these cases that all lawyers involved will be DISBARRED. I said wow but what about the merits of the cases the judge in the case had already overruled the demur as to some of the causes of action. The State Bar (by their actions in not finding a lawyer to protect the victims) is recommending that case be dismissed the Attorney General IS NOT PURSUING THE RIGHTS OF THE VICTIMS . I persisted with my lawyer. To which he exclaimed ” DON’T YOU GET IT MCCANDLESS THE AG AND THE BAR ARE WORKING FOR THE BANKS”.

Are Temporary Loan And Mortgage Modifications A Scam?

As part of the Troubled Asset Relief Program financial bailout, many large national banks accepted huge sums of money from the United States government. Many of these large banks also signed agreements with the United States Treasury, in which they agreed to participate in the Home Affordable Modification Program. This program provides participating banks and mortgage servicers incentives to provide affordable mortgage loan modifications and other alternatives to foreclosure to eligible borrowers who are in danger of losing their homes.

Many banks have worked hard with homeowners to provide the homeowners with temporary trial modifications of their loans. These trial modifications, which are basically temporary modifications to the loan, are designed to lead to homeowners entering into permanent loan modifications with their banks, in order to save their homes permanently. Many homeowners have complied with temporary loan modifications on a trial basis, by providing the required documentation and making all agreed-upon payments towards the loan as it has been temporarily modified. However, many banks have not lived up to their promise to provide homeowners who have satisfied all requirements of a temporary loan modification with a permanent loan modification. This has resulted in thousands of residents across the country being deprived of the opportunity to permanently cure their delinquencies and save their homes.

The Home Affordable Modification Program has allocated to it approximately $75 billion dollars of government funds. Unfortunately, many banks have not gone far enough to make sure that their homeowners can obtain a permanent mortgage modification, even after the homeowners have satisfied all of the requirements of a temporary mortgage modification, which is supposed to lead to a permanent modification. Many of the agreements that the banks have with the homeowners state specifically that if the homeowner is in compliance with the loan modification trial period and makes all payments during the trial period, then the bank will provide the homeowner with a loan modification agreement on a permanent basis, but in practice this has not always happened.

 

These practices are not only contrary to the spirit of the federal legislation that created the Troubled Asset Relief Program, but may also violate the agreements between the banks and the homeowners. If you or someone you know has been effected by this practice, please contact us to discuss your legal options.

Small claims has equitable powers…….. this could work! ….. Could this Work????

Here is a crazy idea

In 2009 the California legislature gave equitable powers to the small claims court

We make up a little package that includes the deed of trust and the notice of default and show they are not the party in interest ie… The original Bank…… is not the pretender lender……… and ask the small claims court to rescind the Notice of Default

Banks have to defend without their lawyers and without demurs

Then there would be a court order rescinding the notice no damages just rescission

Here is the amended code pay close attention to (b)

California Code of Civil Procedure Section 116.220

Legal Research Home > California Laws > Code of Civil Procedure > California Code of Civil Procedure Section 116.220

(a) The small claims court has jurisdiction in the
following actions:
   (1) Except as provided in subdivisions (c), (e), and (f), for
recovery of money, if the amount of the demand does not exceed five
thousand dollars ($5,000).
   (2) Except as provided in subdivisions (c), (e), and (f), to
enforce payment of delinquent unsecured personal property taxes in an
amount not to exceed five thousand dollars ($5,000), if the legality
of the tax is not contested by the defendant.
   (3) To issue the writ of possession authorized by Sections 1861.5
and 1861.10 of the Civil Code if the amount of the demand does not
exceed five thousand dollars ($5,000).
   (4) To confirm, correct, or vacate a fee arbitration award not
exceeding five thousand dollars ($5,000) between an attorney and
client that is binding or has become binding, or to conduct a hearing
de novo between an attorney and client after nonbinding arbitration
of a fee dispute involving no more than five thousand dollars
($5,000) in controversy, pursuant to Article 13 (commencing with
Section 6200) of Chapter 4 of Division 3 of the Business and
Professions Code.
   (5) For an injunction or other equitable relief only when a
statute expressly authorizes a small claims court to award that
relief.
   (b) In any action seeking relief authorized by paragraphs (1) to
(4), inclusive, of subdivision (a), the court may grant equitable
relief in the form of rescission, restitution, reformation, and
specific performance, in lieu of, or in addition to, money damages.
The court may issue a conditional judgment. The court shall retain
jurisdiction until full payment and performance of any judgment or
order.
   (c) Notwithstanding subdivision (a), the small claims court has
jurisdiction over a defendant guarantor as follows:
   (1) For any action brought by a natural person against the
Registrar of the Contractors' State License Board as the defendant
guarantor, the small claims jurisdictional limit stated in Section
116.221 shall apply.
   (2) For any action against a defendant guarantor that does not
charge a fee for its guarantor or surety services, if the amount of
the demand does not exceed two thousand five hundred dollars
($2,500).
   (3) For any action brought by a natural person against a defendant
guarantor that charges a fee for its guarantor or surety services,
if the amount of the demand does not exceed six thousand five hundred
dollars ($6,500).
   (4) For any action brought by an entity other than a natural
person against a defendant guarantor that charges a fee for its
guarantor or surety services or against the Registrar of the
Contractors' State License Board as the defendant guarantor, if the
amount of the demand does not exceed four thousand dollars ($4,000).
   (d) In any case in which the lack of jurisdiction is due solely to
an excess in the amount of the demand, the excess may be waived, but
any waiver is not operative until judgment.
   (e) Notwithstanding subdivision (a), in any action filed by a
plaintiff incarcerated in a Department of Corrections and
Rehabilitation facility, the small claims court has jurisdiction over
a defendant only if the plaintiff has alleged in the complaint that
he or she has exhausted his or her administrative remedies against
that department, including compliance with Sections 905.2 and 905.4
of the Government Code. The final administrative adjudication or
determination of the plaintiff's administrative claim by the
department may be attached to the complaint at the time of filing in
lieu of that allegation.
   (f) In any action governed by subdivision (e), if the plaintiff
fails to provide proof of compliance with the requirements of
subdivision (e) at the time of trial, the judicial officer shall, at
his or her discretion, either dismiss the action or continue the
action to give the plaintiff an opportunity to provide that proof.
   (g) For purposes of this section, "department" includes an
employee of a department against whom a claim has been filed under
this chapter arising out of his or her duties as an employee of that
department.

Please let me know what you think on this one

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An individual Chapter 11 bankruptcy may be better for you than Chapter 13

 

In my 21 years of practicing bankruptcy law, I have never been as excited by anything as the development of the individual Chapter 11 case.

Traditionally, Chapter 13 has been used for personal reorganizations while Chapter 11 has been reserved for more complex corporate reorganizations.� However, a small handful of sophisticated bankruptcy lawyers, like Brett Mearkle of Jacksonville, Florida and BLN contributors Brett Weiss and Kurt O�Keefe, are taking advantage of the debtor-friendly rules of Chapter 11, to provide more meaningful debt restructuring for individual consumers.

Before 2005, individual Chapter 11 cases were virtually non-existent. However, the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, which has generally been horrible for individual debtors, changed a critical rule in Chapter 11 that has made it the choice for bankruptcy lawyers seeking the best restructuring options for many middle-class Americans.� That rule, known as the Absolute Priority Rule, no longer applies to individuals filing under Chapter 11.� The result is that, unlike corporate debtors, an individual (or married couple) filing under Chapter 11 does not have to repay 100% of his unsecured debts.� Rather, the individual need only pay his �disposable income� over a 5 year period, just like in Chapter 13 cases.

The challenge for bankruptcy lawyers is streamlining the Chapter 11 case for consumers to bring the overall cost of filing down.� Currently, my firm has managed to bring down the cost of a typical Chapter 11, but even so, the individual Chapter 11 case costs $10,000 to $30,000, depending on the facts.� However, in as many as half of all consumer reorganizations, these increased fees and costs are far outweighed by the savings and convenience of Chapter 11.

These savings, like �cram down� of automobiles and elimination of the trustee�s administrative fee, will be discussed in more detail in my upcoming articles.

The change to the Absolute Priority Rule has gone widely unnoticed by consumer bankruptcy lawyers, largely because so few understand Chapter 11.� However, we are starting to realize the power of Chapter 11 for consumers, and a concerted effort is being made by many to understand this complicated area of bankruptcy law.� I’ll be in Tucson next week, attending a three day seminar conducted by The National Association of Consumer Bankruptcy Attorneys to learn how to identify which consumers will benefit from Chapter 11 and how to file these types of bankruptcies.� Of course a three-day seminar is really the beginning of an education in Chapter 11, and I predict there will be more advanced seminars to follow.

Be on the lookout for more articles and videos by me and other BLNers on the advantages and nuances of the individual Chapter 11.

CAL. CCP. CODE § 473 After default judgement against lender… then what… WAIT 6 months

California Code – Section 473

(a)(1)The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.

(2)When it appears to the satisfaction of the court that the amendment renders it necessary, the court may postpone the trial, and may, when the postponement will by the amendment be rendered necessary, require, as a condition to the amendment, the payment to the adverse party of any costs as may be just.

(b)The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. However, in the case of a judgment, dismissal, order, or other proceeding determining the ownership or right to possession of real or personal property, without extending the six-month period, when a notice in writing is personally served within the State of California both upon the party against whom the judgment, dismissal, order, or other proceeding has been taken, and upon his or her attorney of record, if any, notifying that party and his or her attorney of record, if any, that the order, judgment, dismissal, or other proceeding was taken against him or her and that any rights the party has to apply for relief under the provisions of Section 473 of the Code of Civil Procedure shall expire 90 days after service of the notice, then the application shall be made within 90 days after service of the notice upon the defaulting party or his or her attorney of record, if any, whichever service shall be later. No affidavit or declaration of merits shall be required of the moving party. Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties. However, this section shall not lengthen the time within which an action shall be brought to trial pursuant to Section 583.310.

(c)(1)Whenever the court grants relief from a default, default judgment, or dismissal based on any of the provisions of this section, the court may do any of the following:

(A)Impose a penalty of no greater than one thousand dollars ($1,000) upon an offending attorney or party.

(B)Direct that an offending attorney pay an amount no greater than one thousand dollars ($1,000) to the State Bar Client Security Fund.

(C)Grant other relief as is appropriate.

(2)However, where the court grants relief from a default or default judgment pursuant to this section based upon the affidavit of the defaulting party’s attorney attesting to the attorney’s mistake, inadvertence, surprise, or neglect, the relief shall not be made conditional upon the attorney’s payment of compensatory legal fees or costs or monetary penalties imposed by the court or upon compliance with other sanctions ordered by the court.

(d)The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.

$196 Billion LawsuitAgainst 17 Banks

FHA Files a $196 Billion LawsuitAgainst 17 Banks
The Federal Housing Finance Agency (FHFA), as conservator forFannie Mae and Freddie Mac (the Enterprises), today filed lawsuitsagainst 17 financial institutions, certain of their officers and variousunaffiliated lead underwriters. The suits allege violations of federalsecurities laws and common law in the sale of residential private-label mortgage-backed securities (PLS) to the Enterprises.Complaints have been filed against the following lead defendants, inalphabetical order:1. Ally Financial Inc. f/k/a GMAC, LLC – $6 billion2. Bank of America Corporation – $6 billion3. Barclays Bank PLC – $4.9 billion4. Citigroup, Inc. – $3.5 billion5. Countrywide Financial Corporation -$26.6 billion6. Credit Suisse Holdings (USA), Inc. – $14.1 billion7. Deutsche Bank AG – $14.2 billion8. First Horizon National Corporation – $883 million9. General Electric Company – $549 million10. Goldman Sachs & Co. – $11.1 billion11. HSBC North America Holdings, Inc. – $6.2 billion12. JPMorgan Chase & Co. – $33 billion13. Merrill Lynch & Co. / First Franklin Financial Corp. – $24.8 billion14. Morgan Stanley – $10.6 billion15. Nomura Holding America Inc. – $2 billion16. The Royal Bank of Scotland Group PLC – $30.4 billion17. Société Générale – $1.3 billion
Some links to actual lawsuits:
Here is the press release from FHFA:

If the loan was not perfected; then there is no lien; and if the servicer was obligated to make the payment as a co-obligor; then there was no default

SEE 42-in RE Cruz vs Aurora
AURORA LOAN SERVICES LLC, SCME MORTGAGE BANKERS INC, ING BANK FSB, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS ALL BITE THE DUST, SUBJECT TO LIABILITY AND NO ABILITY TO FORECLOSE WITHOUT COMPLYING WITH LAW.
Salient points of Judge Mann’s Decision:

TRUTH IN LENDING was dismissed because they were time-barred. LESSON: Don’t ignore TILA claims or TILA audits. Get a forensic Analysis as early as possible, assert them immediately, assert rescission as soon as possible. TILA has teeth, but if you assert it late in the game.
YOU CAN’T FORECLOSE ON UNRECORDED INSTRUMENTS: Judge Mann came right out and said the California Supreme Court would not and could not decide otherwise. Any other holding would defeat the purpose of recording and create uncertainty in the marketplace. This will cause a lot of grief to pretenders. It is getting harder for them to come up with people who are willing to lie, forge or fabricate documents. Getting a notary to affix their signature and seal will soon be a thing of the past unless the signature, the person and the document is real.
THE ASSUMPTION THAT THE LOAN IS IN DEFAULT IS STILL A PROBLEM: As long as lawyers and pro se litigants are willing to concede that the obligation was in default, they are giving up their largest chip — i.e., that the loan was not in default and the loan was not subject to a perfected lien for the same reason that the court cites in its opinion. Our loan level analysis shows repeatedly that in most cases the servicer is continuing to make payments and reporting to investors that the loan is performing even as they send delinquency letter’s notices of default and notices of sales. The Court missed this point because nobody brought it up. Don’t expect the Court to do your work for you. If you have reason to believe that the servicer is still paying on your loan you should be stating that the loan is not in de fault, denying any delinquency to the creditor and objecting to any action that is based upon the premise of “default.” Note that if the servicer is paying your bills, the servicer MIGHT have a right of action against you, but it certainly isn’t under the terms of the note or mortgage.
THE ASSUMPTION THAT A VALID PERFECTED MORTGAGE LIEN EXISTS IS STILL A PROBLEM: Again, the problem is not with the Courts but with the lawyers and pro se litigants who simply assume that this is not an issue. Put yourself in the banks’ shoes. If all you had were nominees for undisclosed principals on the note and mortgage would you be OK with that? No? Then the lien was never perfected, which means for legal purposes it doesn’t exist. Just because it shows in black and white doesn’t make it true. LESSON: Deny the lien exists, deny it was perfected and make them prove how it was perfected. They can’t. In most cases neither the mortgage originator nor the nominee beneficiary (MERS) had a disclosed lender or beneficiary, nor did they incorporate the real terms of the payment to the investor/lenders. If this was a law school exam and the student wrote that the loan was perfected, the grade would be “F”.
THE ISSUE OF FEDERAL PREEMPTION AND THEREFORE JURISDICTION AND VENUE ARE STILL IN FLUX: This Judge found that federal preemption prevents the homeowner from alleging TILA as state claims. The courts are not decided on this and the issue of res judicata and Rooker -Feldman will come into play once the issue is really resolved with finality. Beware then how you assert a claim and that you don’t let the statute of limitations run out by failing to assert the right claim under TILA in the right court. better to get dismissed than to find out that you are time-barred.
WRONGFUL FORECLOSURE IS A TITLE ISSUE NOT A FAIRNESS OR TECHNICAL ISSUE: Judge Mann, correctly in my opinion, states that an assignment from MERS must be allowed in order to clear up title. But, she states that without recording an interest within the chain of title, you have no right to foreclose under the states recording laws. I think this is right, and I think it applies in all 50 states. LESSON: Plead your wrongful foreclosure, slander of title and quiet title cases as title cases and stop adding extra things that you think may them juicier. Either the title is right or it is wrong. There is no middle ground.
MERS ISSUE IS STILL OBSCURE: While the assignment from MERS, if recorded clears up one part it leaves another part undecided again because it wasn’t raised properly. There is a difference between “bare record title” and an “interest in the land.” The MERS assignment is like a quit-claim deed from someone without any interest in the land and used to clear up the chain of title on paper, but it does not convey any interest. MERS on its website and in the public domain specifically disclaims any interest in the obligation, note or mortgage. That is its selling point to members who use its “Service.” And that is why it can’t foreclose and it is subject to cease and desist orders from regulators. As with other affidavits or quit-claims to clear up apparent clouds on title, the recorded assignment or quitclaim does nothing to convey a larger interest than that possessed by the grantor. LESSON: If the pretenders want to foreclose they can’t rely on the MERS assignment. They must file a credible affidavit that states that the affiant was the undisclosed principal in the original transaction with the borrower and that it joins in or separately assigns the actual interest in the obligation, note or mortgage. In my opinion, this is the only way to perfect the original “lien.” Whether it will relate back to the original transaction is an issue the courts must decide.
NO DIFFERENCE BETWEEN A DEED OF TRUST AND A MORTGAGE: Pretenders who try to elevate a deed of trust above a mortgage are headed for a brick wall. Courts never liked non-judicial foreclosure in the first place. They are not about to to reverse centuries of law and provide higher status to a non-judicial foreclosure or the instruments that allow it. ONLY the statutes that provide for extra care on the part of the trustee are constitutional, since due process is the only way anyone in this country can be deprived of life, liberty or property. LESSON: Pound on the issue that the pretender cannot prevail in a judicial foreclosure so they are trying to get away with it in a non-judicial foreclosure. If you want to see how this will eventually unfold, look at Florida and other states that had similar issues in their “Contracts for deed.” Despite clear contractual language the courts have universally held they are mortgages and that they must be foreclosed as mortgages.

Tim McCandless Blogs its amazing what you can do if you don’t watch TV

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trustdeedinvestment.wordpress.com
rocketrecoverysystem.wordpress.com
mortgagereductionlaw.wordpress.com
mortgageregistationsystems.wordpress.com
massjoinderlitigation.wordpress.com
financialelderabuse.wordpress.com
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http://mybk7.com
http://mortgagereductionlaw.com
http://evictiondefender.com
http://prodefenders.com
http://neilgarfield.com
http://massjoinderlitigation.info
http://fairdebtcollectionpracticesact.org
http://thestopforeclosureplan.com

Mortgage Assignments to Washington Mutual Trusts Are Fraudulent

Posted on August 7, 2011 by Neil Garfield
EDITOR’S NOTE: We know the foreclosures were gross misrepresentations of fact to the Courts, to the Borrowers and to the Investors. This article shows the crossover between the MegaBanks — sharing and diluting the responsibility for these fabrications as they went along. If you are talking about one big bank you are talking about all the megabanks.
The evidence is overwhelming. The reasons are many. But the fundamental theme here is that Banks are committing widespread fraud using the appearance of credibility just because they are banks.
Thus the strategy of pushing hard in discovery and persevering through adverse rulings appears to be getting increasing traction. Every time anyone, including judges, take a close look at this mess the conclusion is the same — the Banks’ foreclosures have been a sham. The homeowners still legally own their home and the lien is unenforceable or non-existent.
What part of the obligation of the borrower still exists? To whom is it payable? These are questions the Banks as servicers refuse to answer. It’s a simple set of questions that never had any bite to them until now.
From Lynn Symoniak
Mortgage Fraud
Bank of America
JP Morgan Chase
Lender Processing Services
WaMu Trusts
Washington Mutual
WMABS Trusts
WMALT Trusts
Action Date: August 6, 2011
Location: Jacksonville, FL
An examination of over 5,000 Mortgage Assignments to Washington Mutual
Trusts shows that these Trusts (WaMu, WMALT and WMABS) used Mortgage
Assignments signed by employees of JP Morgan Chase to foreclose. The
most prolific of the Chase signers, all from Jacksonville, Florida,
include Elizabeth Boulton, Margaret Dalton, Barbara Hindman, Patricia
Miner, Roderick Seda and Shelley Thieven. These Chase employees sign
as MERS officers on behalf of at least 30 different mortgage companies
to convey mortgages AND NOTES to Washington Mutual trusts that closed
years earlier.
In the vast majority of these cases, Bank of America is the Trustee.
Because the original loan documents are missing, Bank of America
allows Chase to make up new documents as needed to foreclose. The vast
majority of these Assignments state that the Trusts acquired these
mortgages in 2009 and 2010.
There are two separate frauds here:
1. not having the documents despite the promises to investors that the
documents were obtained and safely held; and
2. fabricating the replacement documents to foreclose.
In almost every case, Bank of America is the Trustee.
Did the FDIC just not notice any of this? There are thousands of these
specially-made Assignments signed by Chase employees for WaMu, WMALT
and WMABS trusts used across the country.
When Bank of America did not use documents fabricated by Chase to
foreclose, it used documents fabricated by LPS in Dakota County, MN.

A TRUSTEE CANNOT MAINTAIN AN ACTION ON BEHALF OF A TRUST THAT DOESN ‘T EXIST

I looked into the records for that entity in the SEC EDGAR online database and discovered that the last annual report was filed in 2007, contemporaneously with a FORM 15 filing.That Form 15 filing claimed a standing under 15d-6 of the 1934 SEC regulations which exempts the entity of filing an annual report, whereby the number of claimed investors had fallen below the SEC registration and reporting threshold of 300 persons. ( To my understanding, the same Form 15 filing is also used when a registered, reporting, entity is dissolved.)

I then began looking at many other securitized trusts in the EDGAR database. Literally dozens and dozens of these securitized trusts have done exactly the same thing. The trust is established and appropriate SEC documents are filed for a period of time, usually 1 or 2 years. The trust then files a Form 15 claiming exemption of the obligation to file reports with the SEC under 15d-6
The paper trail for the Trust with the SEC thereby ends. Many of these trusts have not filed anything with the SEC for years. Many as far back as 2005 and 2006. Some of the SEC Form 15d-6 filings disclosed as few as 15 or less investors . Bear in mind, these are for trusts that purportedly hold well over $1 BILLION in mortgages, and there are dozens and dozens of these trusts with a mere hand full of investors! I also noted that the agents of record of many of these trusts have changed many times, and are very infrequently named, but list only an address and phone number, (usually in New York). In several of the cases I ‘ve looked at in the EDGAR database, I actually called some of the phone number listed at 3:00am EST and got the voicemail of someone at a bank in N.Y. Note that the answering party was NEVER a bank listed as the Trustee, (as Deutsche Bank is in my case), or the trust administrator as listed in the PSA or any subsequent SEC filings. I actually got the voicemail of some fellow at HSBC Bank who was the anonymous contact in my case! My point is this — Has anyone actually verified that the securitized trusts claimed to be under the trusteeship of some of these banks still ACTUALLY EXIST? We ‘ve been so focused on the NOTE and the fraudulent paper being slung about for assignment of those notes, and whether or not the plaintiff has standing to bring the foreclosure action, has anyone thought to see if the plaintiff trust is even still active or not? Were many of these trusts actually dissolved after payouts from credit default swaps and TARP funds and the actual investors now long gone? We have no records to show whether they are alive or dead. Most of these trusts haven ‘t filed anything with anyone in years as far as I can tell. Certainly, as in my case, Deutsche Bank, (as Trustee), still exists, but can these plaintiff securitized trusts be made to prove they still exist? What happens to a foreclosure case if the plaintiff entity,(the securitized trust, not the Trustee for it), no longer exists or cannot prove it exists? IT ‘S TIME FOR ME TO GET BACK TO AN ISSUE THAT I HAVEN ‘T TALKED ABOUT FOR A WHILE AND IT IS THIS CAPACITY ISSUE BECAUSE IT STRIKES AT THE HEART OF THESE CASES. SIMPLY PUT, A TRUSTEE CANNOT MAINTAIN AN ACTION ON BEHALF OF A TRUST THAT DOESN ‘T EXIST.

OUR NANCY DREW BLASTS THROUGH THE DEVIL IN THE DETAILS ON NORWEST, GMAC ET AL (via Livinglies's Weblog)

OUR NANCY DREW BLASTS THROUGH THE DEVIL IN THE DETAILS ON NORWEST, GMAC ET AL 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

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Bombshell Admission of Failed Securitization Process in American Home Mortgage Servicing/LPS Lawsuit (via Livinglies's Weblog)

Bombshell Admission of Failed Securitization Process in American Home Mortgage Servicing/LPS Lawsuit MOST POPULAR ARTICLES GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE EDITOR'S NOTE: It is comforting to know that at least some people are paying attention. From one of the largest servicers in the country comes an admission that securitization of mortgage loans was an illusion. The facts alleged by AHMSI  in its lawsuit against LPS are true in virtually all cases in which any bank or other entity has claimed an interest in a mortgage l … Read More

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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.

$1.2 Trillion in Secret Additional Bailout for Banks with No Collateral and No Commitments (via Livinglies's Weblog)

$1.2 Trillion in Secret Additional Bailout for Banks with No Collateral and No Commitments MOST POPULAR ARTICLES GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE see VIDEO $1.2 Trillion in EXTRA BAILOUT MONEY FROM FED SECRETLY GIVEN TO DOMESTIC AND FOREIGN BANKS Of course the figure is much higher, but the secrecy surrounding the money given by the Fed to the banks is something to enrage any tea party advocate and for that matter any taxpayer. The Federal Reserve window was opened to banks who actually sold their mortgage bonds … Read More

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GOING AFTER THE NOTARY, STEP BY STEP (via Livinglies's Weblog)

GOING AFTER THE NOTARY, STEP BY STEP MOST POPULAR ARTICLES GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE EDITOR'S NOTE: Here is a good place to start — the devil is in the details. You will find that the more you probe the more people and bad documents emerge. Persistence pays. Here is a letter that one homeowner just sent to the notary. The thing I like about going after the notary is that they are low-hanging fruit for homeowners. First of all there is that SURETY bon … Read More

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WALLS CLOSING IN ON LAW FIRMS AND SUBSTITUTE TRUSTEES AS FAKED, FORGED DOCUMENTS SURFACE IN ABUNDANCE (via Livinglies's Weblog)

WALLS CLOSING IN ON LAW FIRMS AND SUBSTITUTE TRUSTEES AS FAKED, FORGED DOCUMENTS SURFACE IN ABUNDANCE MOST POPULAR ARTICLES GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE The boys are playing rough now, but US Bank, failing to take its queues from Deutsch is plunging ahead with CalWestern by its side, using forged, fabircated, faked documents that wouldn't be valid even if they were properly executed. The securitizers tricked and stole from investors, tricked and stole from the borrowers and now are taking the only asset (home) of value … Read More

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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)

NY POST: 92% ---BANKS STILL FORECLOSING WITHOUT ANY RIGHT MOST POPULAR ARTICLES GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE IF THE BANKS DON'T OWN THE PROPERTY OR THE MORTGAGE, WHO DOES? EDITOR'S NOTE: My figures tracking thousands of foreclosures indicate the same thing that the New York Post found. There are a scattered few foreclosures that are good old-fashioned foreclosures of valid mortgages. The borrower didn't pay and there were no third party payments; the mortgage documents were t … Read More

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Should Borrower File Eviction Against Bank? (via Livinglies's Weblog)

Should Borrower File Eviction Against Bank? MOST POPULAR ARTICLES GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE EDITOR'S COMMENT: I was talking with an expert in landlord tenant law and I received an interesting suggestion. The case involved someone who has just been served with a writ of restitution where the owner had to peaceably leave her home — or it wouldn't be so peaceful. The suggestion was that the owner file a forcible detainer action of her own against the current p … Read More

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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

 

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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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2

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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3

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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4

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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5

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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6

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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7

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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8

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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9

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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10

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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11

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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12

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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13

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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14

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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15

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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16

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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17

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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18

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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19

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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20

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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21

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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22

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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23

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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24

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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25

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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26

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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27

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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28

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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29

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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30

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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31

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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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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2

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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3

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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4

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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5

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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6

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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7

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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8

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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9

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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10

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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11

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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12

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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13

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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14

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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15

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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16

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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17

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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18

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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19

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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20

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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21

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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22

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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23

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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24

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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25

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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26

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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27

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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28

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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29

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 Top

30

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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31

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)

STUDY: Mortgage Assignments to Washington Mutual Trusts Are Fraudulent MOST POPULAR ARTICLES GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE EDITOR'S NOTE: We know the foreclosures were gross misrepresentations of fact to the Courts, to the Borrowers and to the Investors. This article shows the crossover between the MegaBanks — sharing and diluting the responsibility for these fabrications as they went along. If you are talking about one big bank you are talking about all the megabanks. The evidence is ov … Read More

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

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

Comptroler of the currecy consent orders

Recent Consent Orders
Consent Order, Sovereign Bank, Wyomissing, Pennsylvania, 04410, NE-11-17, April…
Order shall be directed to the Comptroller of the Currency, or to the individual, … or office designated
by the Comptroller of the Currency. Sovereign Bank Consent Order Page
http://www.mortgagedaily.com/forms/OccConsentOrderSovereign041311.pdf
Consent Order, OneWest Bank, FSB, Pasadena, California, 18129, WN-11-011, April…
Order shall be directed to the Comptroller of the Currency, or to the individual, division, or office
designated by the Comptroller of the Currency. OneWest Bank, FSB Consent Order
http://www.mortgagedaily.com/forms/OccConsentOrderOnewest041311.pdf
Consent Order, EverBank, Jacksonville, Florida, 15115, SE-11-014, April 13, 2011
Order shall be directed to the Comptroller of the Currency, or to the individual, division, or office
designated by the Comptroller of the Currency. EverBank Consent Order Page 24
http://www.mortgagedaily.com/forms/OccConsentOrderEverbank041311.pdf
Consent Order, Aurora Bank FSB, Wilmington, Delaware, 06069, NE-11-16, April 13…
Order shall be directed to the Comptroller of the Currency, or to the individual, division, or office
designated by the Comptroller of the Currency. Aurora Bank FSB Consent Order
http://www.mortgagedaily.com/forms/OccConsentOrderAurora041311.pdf
Consent Order U.S. Bank
Office of the Comptroller of the Currency (“OCC”), as part of … Office of the Comptroller of the Currency
250 E Street … OF THE TREASURY COMPTROLLER OF THE CURRENCY ) In the Matter
http://www.mortgagedaily.com/forms/OccConsentOrderUSBank041311.pdf
Consent Order PNC
Office of the Comptroller of the Currency (“OCC”), as part of … Office of the Comptroller of the Currency
250 E Street … OF THE TREASURY COMPTROLLER OF THE CURRENCY ) In the Matter
http://www.mortgagedaily.com/forms/OccConsentOrderPNC041311.pdf

Consent Order 2011-044
Office of the Comptroller of the Currency (“OCC”), the Board of … Office of the Comptroller of the
Currency 250 E Street … Office of the Comptroller of the Currency 250 E Street
http://www.mortgagedaily.com/forms/OccConsentOrderMerscorp041311.pdf
Consent Order MetLife
Office of the Comptroller of the Currency (“OCC”), as part of … Office of the Comptroller of the Currency
250 E Street … OF THE TREASURY COMPTROLLER OF THE CURRENCY ) In the Matter
http://www.mortgagedaily.com/forms/OccConsentOrderMetlife041311.pdf
Consent Order JPMorgan Chase
Office of the Comptroller of the Currency (“OCC”), as part of … Office of the Comptroller of the Currency
250 E Street … OF THE TREASURY COMPTROLLER OF THE CURRENCY ) In the Matter
http://www.mortgagedaily.com/forms/OccConsentOrderChase041311.pdf
Consent Order HSBC
Office of the Comptroller of the Currency (“OCC”), as part of … Office of the Comptroller of the Currency
250 E Street … OF THE TREASURY COMPTROLLER OF THE CURRENCY ) In the Matter
http://www.mortgagedaily.com/forms/OccConsentOrderHSBC041311.pdf
Consent Order Citibank
Office of the Comptroller of the Currency (“OCC”), as part of … Office of the Comptroller of the Currency
250 E Street … OF THE TREASURY COMPTROLLER OF THE CURRENCY ) In the Matter
http://www.mortgagedaily.com/forms/OccConsentOrderCitibank041311.pdf
Consent Order Bank of America
Office of the Comptroller of the Currency (“OCC”), as part of … Office of the Comptroller of the Currency
250 E Street, … Office of the Comptroller of the Currency 101 South Tryon
http://www.mortgagedaily.com/forms/OccConsentOrderBoA041311.pdf
OCC Consent Order – PNC Bank, N.A. | April 13, 2011 | MortgageDaily.com
Stories about legal settlements, judgments and mortgage class actions. Consent Order Between Office of
the Comptroller of the Currency and PNC Bank, N.A., April 13, 2011 back to
http://www.mortgagedaily.com/OccConsentOrderPNC041311.asp

OCC Consent Order – Onewest Bank FSB | April 13, 2011 | MortgageDaily.com
Stories about legal settlements, judgments and mortgage class actions. Consent Order Between Office of
the Comptroller of the Currency and Onewest Bank FSB, April 13, 2011 back to
http://www.mortgagedaily.com/OccConsentOrderOnewest041311.asp
OCC Consent Order – MetLife Bank, N.A. | April 13, 2011 | MortgageDaily.com
Stories about legal settlements, judgments and mortgage class actions. Consent Order Between Office of
the Comptroller of the Currency and MetLife Bank, N.A., April 13, 2011 back
http://www.mortgagedaily.com/OccConsentOrderMetlife041311.asp
OCC Consent Order – Citibank, N.A. | April 13, 2011 | MortgageDaily.com
Reach mortgage executives, loan originators and other people tied to mortgage industry. … Free
mortgage news for prospective borrowers. … Web site or for your RSS reader. … Data
http://www.mortgagedaily.com/OccConsentOrderCitibank041311.asp
OCC Consent Order – Everbank | April 13, 2011 | MortgageDaily.com
Stories about legal settlements, judgments and mortgage class actions. Consent Order Between Office of
the Comptroller of the Currency and Everbank, April 13, 2011 back to story
http://www.mortgagedaily.com/OccConsentOrderEverbank041311.asp
OCC Consent Order – Aurora Bank FSB | April 13, 2011 | MortgageDaily.com
Stories about legal settlements, judgments and mortgage class actions. Consent Order Between Office of
the Comptroller of the Currency and Aurora Bank FSB, April 13, 2011 back to
http://www.mortgagedaily.com/OccConsentOrderAurora041311.asp
OCC Consent Order – US Bank National Association | April 13, 2011 | MortgageDaily….
Stories about legal settlements, judgments and mortgage class actions. Consent Order Between Office of
the Comptroller of the Currency and US Bank National Association, April 13,
http://www.mortgagedaily.com/OccConsentOrderUSBank041311.asp
Servicers Hit With Federal Orders – OCC announces consent orders with 8 servicers …
Office of the Comptroller of the Currency, a government … banking regulators. Acting Comptroller of the
Currency John Walsh said … 3 billion HSBC-OCC consent order JPMorgan
http://www.mortgagedaily.com/ServicerSettlement041311.asp

OCC Consent Order – Bank of America, N.A. | April 13, 2011 | MortgageDaily.com
Stories about legal settlements, judgments and mortgage class actions. Consent Order Between Office of
the Comptroller of the Currency and Bank of America, N.A., April 13, 2011
http://www.mortgagedaily.com/OccConsentOrderBoa041311.asp
OCC Consent Order – Wells Fargo Bank, N.A. | April 13, 2011 | MortgageDaily.com
Stories about legal settlements, judgments and mortgage class actions. Consent Order Between Office of
the Comptroller of the Currency and Wells Fargo Bank, N.A., April 13, 2011
http://www.mortgagedaily.com/OccConsentOrderWells041311.asp
Interagency Review of Foreclosure Policies and Practices | April 13, 2011…
Office of the Comptroller of the Currency and Office of Thrift Supervision, April 13, 2011 back to story
Your browser does not support iframes. back to story Bank news Servicing
http://www.mortgagedaily.com/InteragencyReview041311.asp
OCC Consent Order – Sovereign Bank | April 13, 2011 | MortgageDaily.com
Stories about legal settlements, judgments and mortgage class actions. Consent Order Between Office of
the Comptroller of the Currency and Sovereign Bank, April 13, 2011 back to
http://www.mortgagedaily.com/OccConsentOrderSovereign041311.asp
OCC Consent Order – JPMorgan Chase Bank, N.A. | April 13, 2011 | MortgageDaily.com
Stories about legal settlements, judgments and mortgage class actions. Consent Order Between Office of
the Comptroller of the Currency and JPMorgan Chase Bank, N.A., April 13,
http://www.mortgagedaily.com/OccConsentOrderChase041311.asp
OCC Consent Order – Lender Processing Services, Inc. | April 13, 2011…
Stories about legal settlements, judgments and mortgage class actions. Consent Order Between Office of
the Comptroller of the Currency and Lender Processing Services, Inc., April
http://www.mortgagedaily.com/OccConsentOrderLPS041311.asp
OCC Consent Order – Ally Financial Inc. | April 13, 2011 | MortgageDaily.com
Stories about legal settlements, judgments and mortgage class actions. Consent Order Between Office of
the Comptroller of the Currency and Ally Financial Inc., April 13, 2011 back
http://www.mortgagedaily.com/OccConsentOrderAlly041311.asp

CC Consent Order – HSBC Bank USA, N.A. | April 13, 2011 | MortgageDaily.com
Stories about legal settlements, judgments and mortgage class actions. Consent Order Between Office of
the Comptroller of the Currency and HSBC Bank USA, N.A., April 13, 2011 back
http://www.mortgagedaily.com/OccConsentOrderHSBC041311.asp
OCC Consent Order – Suntrust Banks, Inc. | April 13, 2011 | MortgageDaily.com
Stories about legal settlements, judgments and mortgage class actions. Consent Order Between Office of
the Comptroller of the Currency and Suntrust Banks, Inc., April 13, 2011
http://www.mortgagedaily.com/OccConsentOrderSuntrust041311.asp
OCC Consent Order – MERSCORP Inc. | April 13, 2011 | MortgageDaily.com
Stories about legal settlements, judgments and mortgage class actions. Consent Order Between Office of
the Comptroller of the Currency and MERSCORP Inc. and the Mortgage
http://www.mortgagedaily.com/OccConsentOrderMerscorp041311.asp

17 News Investigation: Homeowner challenges bank

17 News Investigation: Homeowner challenges bank.

one west bank and the consent order with admissions of wrongdoing

One West Bank click to see full order from comptroller of the currency

standing

A. Standing

The party seeking to invoke federal jurisdiction has the burden of establishing standing.28

Constitutional standing analysis includes three elements: (1) the plaintiff must have suffered an

injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized,

and (b) actual or imminent, not conjectural or hypothetical; (2) there must be a causal connection

between the injury and the conduct complained of; and (3) it must be likely, as opposed to

merely speculative, that the injury will be redressed by a favorable decision.29

Beyond these three constitutional requirements,30 there are additional, prudential standing

limitations,31 including the requirement that a plaintiff must assert its own legal rights and

interests, and cannot rest its claim to relief on the legal rights or interests of third parties.32 One

cannot sue to protect the interests of another when the plaintiff’s only interest is a “byproduct” of

26 See Home Builders Ass’n, v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998) (citation and internal quotationmarks omitted).

 

the litigation.33 However, courts have generally held that a party in interest may assign its legal

claims to a third party, typically by a contract assigning its full and exclusive interest in a legal

claim to the assignee.34 The assignee may then bring suit in its own name on behalf of the party

in interest.35

AHMIS relies on Sprint Communications Co. v. APCC Services, Inc. to demonstrate its

standing. There, APCC Services aggregated the legal claims of approximately 1,400 payphone

operators who had claims against long-distance telephone carriers.36 When customers made a

call on a payphone using an access code or a 1-800 number, the provider of the access code or 1-

800 number paid the long-distance carrier a fee.37 The payphone operator could then seek

payment from the long-distance carrier for the use of its payphone, and, if the carrier did not pay,

the payphone operator could sue the carrier.38 Because pursuing these legal claims individually

could be prohibitively expensive, many payphone operators assigned their claims to aggregators,

like APCC Services, which collected the claims of payphone operators.39 If the suit was

successful, the aggregator turned over the award to the payphone operators and received a fee for

its services.40 The Supreme Court noted that the assignee’s contract with the payphone operators

contained clear language granting full and exclusive legal power to the assignee.41 Since the

33 Vt. Agency of Natural Res. v. United States (ex rel. Stevens), 529 U.S. 765, 772, 120 S. Ct. 1858, 1862 (2000)

(holding that a qui tam relator under the False Claims Act has Article III standing).

34 Sprint Commc’ns Co. v. APCC Servs. Inc., 554 U.S. 269, 284–85, 128 S. Ct. 2531, 2541 (2008) (holding that an

assignee of legal claims could bring suit for another even though the assignee had to forward all proceeds to that

third party and only received servicing fees).

35 Id. at 285, 128 S. Ct. at 2541–42.

36 Id. at 272, 128 S. Ct. at 2534.

37 Id. at 271, 128 S. Ct. at 2534.

38 Id.

39 Id. at 271–72, 128 S. Ct. at 2534.

40 Id. at 272, 128 S. Ct. at 2534.

41 The contract stated that each operator “assigns, transfers and sets over to [the aggregator] for purposes of

collection all rights, title and interest of the [payphone operator] in the [payphone operator’s] claims, demands or

causes of action for ‘Dial-Around Compensation’ . . . due the [payphone operator] for periods since October 1,

1997.” Id. at 272, 128 S. Ct. at 2534 (alteration in original).

Case 3:10-cv-01936-M Document 24 Filed 07/20/11 Page 6 of 11 PageID 182

Page 7 of 11

Supreme Court had long granted assignees standing to sue for third parties,42 and since APCC

Services was unmistakably an assignee, the Supreme Court held that APCC Services had

standing, despite the fact that it would forward any aggregated award to the payphone

operators.43

AHMSI also relies upon CWCapital Asset Mgmt., L.L.C. v. Chicago Props., L.L.C. In

CWCapital, the Seventh Circuit held that a contract giving a mortgage servicer “full power and

authority, acting alone” to initiate any action the servicer believed necessary may be construed as

giving the servicer “effective equitable ownership” to the legal claim.44 Although the contract at

issue lacked clear language assigning ownership of the legal claim, the Seventh Circuit construed

as an assignment the contract since it gave the servicer total and exclusive control over legal

claims, including the right to pursue any legal actions it deemed necessary, and the right to sue in

the mortgagee’s name without indicating its status as servicer. 45 The Seventh Circuit found the

servicer to be an “effective assignee.”

However, here AHMSI does not allege it is an assignee or effective assignee of the

mortgagees’ legal claims, nor does it allege or show that its contract with the mortgagees of

record made AHMSI an assignee or effective assignee.46 AHMSI asserts that it is “responsible

for the servicing of mortgage loans,” and that it “may be subject to liability if property entrusted

to its care is not returned.”47 Such an assertion merely implies that a contract exists between

42 Id. at 285, 128 S. Ct. at 2541.

43 Id. at 287, 128 S. Ct. at 2542–43.

44 610 F.3d 497, 501 (7th Cir. 2010).

45 Id. However, when a court determines that a contract was only meant to confer a power of attorney, the contract

will not suffice to give a third party standing under the assignee exception. See W.R. Huff Asset Mgmt. Co. v.

Deloitte & Touche, L.L.P., 549 F.3d 100, 108 (2d Cir. 2008).

46 See, e.g., Lear Siegler Servs. v. Ensil Int’l Corp., No. SA-05-CV-679-XR, 2009 WL 3297975, at *4 (W.D. Tex.

Oct. 13, 2009) (dismissing a case for lack of jurisdiction where plaintiff failed to provide a contract showing an

assignment had been made).

47 Pl.’s Opp’n to Defs.’ Mot. to Dismiss at 7.

Case 3:10-cv-01936-M Document 24 Filed 07/20/11 Page 7 of 11 PageID 183

Page 8 of 11

AHMSI and the mortgagee, but does not create a reasonable inference that AHMSI is an

assignee or an effective assignee of the mortgagees’ legal claims.

AHMSI argues that HUD must either process insurance claims submitted by AHMSI or

return collateral to AHMSI since AHMSI is “the party that dealt with [HUD] throughout the

administrative process.”48 However, the NHA and its accompanying regulations define HUD’s

responsibilities, and the regulations state that the FHA Commissioner “shall have no obligation

to recognize or deal with any party other than the mortgagee of record with respect to the rights,

benefits and obligations of the mortgagee under the contract of insurance.”49 While the NHA

allows for the assignment of insured mortgages, it does not require the FHA to enter into a legal

or any other type of relationship with an assignee. The FHA Commissioner retains the right to

deal with the mortgagee alone.

The regulations allow mortgagees to employ mortgage servicers. However, the

regulations make clear that the mortgagee “shall remain fully responsible to the Secretary for

proper servicing, and the actions of its servicer shall be considered to be the actions of the

mortgagee.”50 Further, such assignment of servicing does not amount to assignment of the

mortgagee’s right to pursue legal claims against HUD or its Secretary.

AHMSI does not allege or prove that it is an assignee, that its contract with the

mortgagee amounts to an effective assignment, or that the NHA and its accompanying

regulations require HUD to recognize AHMSI as such. In light of those failures, AHMSI has not

proven it has standing.

Possible Counter-Attack in Unlawful Detainer (Eviction) in Fraudulent Foreclosure Cases (via Livinglies's Weblog)

Possible Counter-Attack in Unlawful Detainer (Eviction) in Fraudulent Foreclosure Cases MOST POPULAR ARTICLES GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE factual issues for Unlawful Detainer case NFG 7-15-11 Various states have two levels of  jurisdiction that make it difficult to raise the proper issues in eviction even if there has been no preceding judicial action or if the preceding judicial action has been predicated on fraudulent evidence proffered and accepted by the court. I ended up working on the issue and it … Read More

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FREE HOUSE MYTH DEBUNKED BY PORTER AND LEVITIN (via Livinglies's Weblog)

FREE HOUSE MYTH DEBUNKED BY PORTER AND LEVITIN MOST POPULAR ARTICLES GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE 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 … Read More

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BOA Feeling the Heat is Striking Back at Foreclosure Defense Lawyers as Lawsuits are Filed Against Firms Who Represent BOA (via Livinglies's Weblog)

BOA Feeling the Heat is Striking Back at Foreclosure Defense Lawyers as Lawsuits are Filed Against Firms Who Represent BOA MOST POPULAR ARTICLES GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE EDITOR'S NOTE: The battle is heating up. BOA, for example, is stepping up efforts to cause as much trouble as possible for those foreclosure defense lawyers who are getting traction in the courts. This started some time ago as some people were actually indicted for using tactics that were essentially the identical to the bogus filings of the pretenders. The indictments … Read More

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Robo-signing continues without consequences (via Livinglies's Weblog)

Robo-signing continues without consequences MOST POPULAR ARTICLES GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE No Punishment = Continued Misconduct Posted on July 19, 2011 by Mark Stopa Esq. http://www.stayinmyhome.com/blog/?p=1565 In Maine, a group of drug dealers was caught distributing drugs to local middle schoolers. They confessed, yet the District Attorney declined to press charges, so the drug dealers returned to the school and passed out more drugs. In Kansas, police ap … Read More

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assingmment please?? 2932.5 with a side of Veal

The brief below as circulated by the California Bar’s: Insolvency Law Committee:
Herrera vs. Deutsche Bank National  Trust Co.,  2011 Westlaw 2547979 (Cal.App.)

 

Facts: A married couple  (“the homeowners”) purchased a home at a foreclosure sale.  Supposedly,  unbeknownst to them, their interest in the home was subject to a prior (and  perhaps unrecorded) deed of trust that never appeared in their title  search.  After a series of assignments, a lending institution conducted  a non-judicial foreclosure sale under that prior unrecorded deed of  trust.  Supposedly, the homeowners never received notice of the sale.  The lender entered a successful credit bid; the trustee issued a trustee’s  deed in favor of the lender.  When the lender later asserted its title,  the homeowners brought suit, seeking to set aside the sale on the ground that  the lender never owned the underlying note or the trust deed and therefore  could not conduct a proper sale.

 

The lender and the trustee brought a motion for summary judgment, claiming  that properly-recorded documents showed that the trust deed had been assigned  to the lender.  The trial court granted summary judgment for the lender.

 

Reasoning:  The appellate  court reversed, holding that the lender had not made a competent evidentiary  showing in opposition to the homeowners’ motion for summary judgment.   The lender argued that the trial court properly took judicial notice of the  recorded assignment.  But the court distinguished between judicial  notice of the recorded document and its contents, holding that the lender  could not show that it was really the beneficiary under that deed of  trust.

 

The lender claimed that a declaration filed by an employee of the trustee had  established the truth of the facts contained in that assignment, which were  thus covered by the “business records” exception to the hearsay  rule.  The court disagreed:  “The records used to generate the  information in the Assignment . . . were undoubtedly records not prepared by [the  trustee] but records prepared by [the lender’s predecessors in interest.]  [The lender has] not shown how [the employee] could have provided information  about the source of that information or how those documents were  prepared.”

 

For the moment, let’s disregard the strange factual predicate, where someone  buys a property subject to an undisclosed deed of trust and gets no notice of  a subsequent foreclosure.  (That doesn’t happen very often.)  The  really alarming part of this opinion is the disqualification of the remote  assignee’s employee as a party who can properly authenticate the business  records that were generated by remote assignors.  If that rule is  universally true, how can the subsequent transferees ever establish a chain  of title, especially where the remote assignors are defunct entities (and  their former employees are scattered to the winds)?  And if that chain  can’t be competently established, does that mean that a homeowner threatened  by foreclosure can now bring a timely action for injunctive relief, on the  theory that the foreclosing creditor lacks the authority to do so? A fortiori, if such a claim can be  brought to overturn a completed sale, it ought to be cognizable in order to  halt a pending sale.

 

Note that the issue in this case (the lack of an evidentiary foundation for  the assignment of the deed of trust) is subtly different from the one in the  Ninth Circuit BAP’s recent opinion in In  re Veal, — B.R. —-, 2011 WL 2304200, (9th Cir. BAP (Ariz.)).   That case dealt with the problem of the assignment of a mortgage without the  assignment of the underlying note.  (For a complete discussion of Veal, see 2011 Comm. Fin. News. 52, Purported Assignee  of Mortgage Lacks Standing to Obtain Relief from Automatic Stay Because  Assignment Transferred Mortgage Without Underlying Note.)

 

More significantly, I think that the holding in Herrera, a California state appellate opinion, may  conflict with or undermine such cases as Ferguson  v. Avelo Mortg., LLC, 2011 WL 2139143 (Cal. App. 2d Dist. 2011),  opinion modified, 2011 WL 2438948 (Cal. App.), and Gomes v. Countrywide Home Loans, Inc., 192 Cal. App. 4th  1149, 121 Cal. Rptr. 3d 819 (4th Dist. 2011), review denied, (May 18, 2011).  (For a discussion of Gomes, see  2011 Comm. Fin. News. 18,  Borrower Cannot File Suit to Determine Whether MERS Has Authority to Commence  Foreclosure, and Trust Deed Expressly Authorized MERS to Do So.)  After  all, if the recorded assignment can no longer be taken at face value under Herrera, how can we simply assume that  the nominal assignee is really the proper party to pursue the foreclosure?

FINALLY! BOA FACES CLAIMS FOR BOGUS MODIFICATION ACTIONS (via Livinglies's Weblog)

FINALLY! BOA FACES CLAIMS FOR BOGUS MODIFICATION ACTIONS MOST POPULAR ARTICLES GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE EDITOR'S NOTE: Anyone who has entered into mortgage modification process with BOA or any other bank acting as servicer or otherwise knows the story. The Bank does everything it can to delay the process until the borrower gets into serious trouble and then the bank claims that the home should be foreclosed. There are thousands of stories of homeowners who honestly and j … Read More

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AZ: TRUSTEE CAN BE SUED IF SUBSTITUTION WAS INVALID (via Livinglies's Weblog)

AZ: TRUSTEE CAN BE SUED IF SUBSTITUTION WAS INVALID MOST POPULAR ARTICLES GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE JUDGES ARE STARTING TO EXAMINE DOCUMENTS AND THEY DON'T LIKE WHAT THEY ARE SEEING "Thus, while A.R.S. §33-807(E) may operate to dismiss a trustee in certain instances, if one of the allegations of a complaint is that the entity purporting to act as trustee has not been legally appointed as trustee, this statute would not come into play." BOTTOM LINE: IF THE SUBSTITUTIO … Read More

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WEIDNER: IT'S THE ALLONGE!!! (via Livinglies's Weblog)

WEIDNER: IT'S THE ALLONGE!!! MOST POPULAR ARTICLES GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE The Allonge- Billions of Dollars in Commerce Hangs on A Single Scrap of Paper EDITOR'S NOTE: If you wrote a check to your next door neighbor, you would expect that he would either cash it or deposit it. But what if your neighbor did business with another neighbor and gave them a copy of your check along with a piece of paper they called an allonge or assignment. So now … Read More

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Principal reduction success !!!

Filipino Homeowners Get Principal Reduction Relief

Written by admin Featured News, News Highlights, Top StoriesJun 8, 2011

By Henni Espinosa, ABS-CBN North America Bureau

June 8, 2011

UNION CITY, Calif. – Amy and Peter Asi, who lost both their jobs in 2009, almost gave up on their home.  For two years, they had asked their lender, Wachovia, to modify their loan and lower their home’s principal.

They hired the help of Attorney Timothy McCandless.  Eventually, the amount of the Asi’s principal loan was reduced by 29%.  Their lender cut more than $117,000 off their debt.

Peter said they can now breathe a huge sigh of relief.  He said, “We’re already struggling to pay for this house, which is underwater.  This is a big help.”

Atty. McCandless said since the Obama administration has put pressure on lenders to reduce the principals of struggling homeowners, lenders have been receptive…because they see how it will benefit them, as opposed to foreclosing on homes.

McCandless said, “If they put all these hours on the market all at once — values are going to go down faster and further.  It’s in their best interest to work with the homeowners rather than foreclosing, evicting.  It’s very destrucive to the community.”

McCandless said a third of the the homes in America are now underwater in value.  He said lenders now see principal reduction as a win-win situation.

He said, “They look at the appraised value and the cost it’s going to take to liquidate the home — versus working with the homeowner.  Values continue to drop and it’s making more and more sense for banks to work with the homeowners.”

McCandless said principal reduction is a more viable option for struggling homeowners than loan modification…because homeowners are encouraged to pay on time when they know their homes have value.

At its peak, the Asi’s home was valued at $600,000.  It is now down to $400,000.

Now that the bank reduced the amount of their loan to reflect current values, they said they’re more encouraged to pay…especially now that they have full-time jobs.

Amy said, “Without principal reduction, you feel like there’s no sense in paying.  But with it, homeowners feel motivated to pay.”

Not only was their principal reduced, the Asi’s loan was permanently modified from $4,000 a month to $2,800 a month.

The Asi’s principal reduction has a condition.  They have to pay monthly payments on time for the next three years — before the $177,000 can be fully taken out of their loan — not a problem for these homeowners who are now confident in the value of their home.

You may contact Henni Espinosa at henni_espinosa@abs-cbn.com for more information.

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Foreclosure-Gate Screw Tightens: Banks Face $17 Billion in Suits Over Foreclosures

Posted on May 26, 2011 by Neil Garfield

COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE

EDITOR’S COMMENT: Here is our problem writ large. The commentary written by Shedlock (see below) is basically on the side of punishing the banks for their wrongdoing, but not giving any relief to borrowers. The logic behind the position is that anyone who does not pay their mortgage should expect to lose their home. On its face, it would seem that nobody could reasonably argue to the contrary. The problem we face is the assumption behind that sentiment. The presumption is that the payments were due, that the creditor was not getting paid, and that the homeowner should lose the house for which they paid a “stupid price” — a slam at homeowners who accepted the lender’s appraisal of the property.

My premise goes deeper than the shallow waters of Shedlock’s position, who clearly represents the feeling of a majority of people who just take a quick glance at the problem. My premise is that anyone who has a debt that is due has the responsibility to pay it to the party to whom it is due, less any legally meritorious defenses for bad behavior on the part of those who induced him into the transaction.

So if you enter into a transaction where you get funded for $100,000, you have agreed to repay that $100,000. If you have a claim against the party who wants to enforce the obligation, then you should repay the net amount due after computation of damages for both sides. And if the amount due from the “enforcer” (pretender) is more than the amount claimed by the enforcer, there is no debt to pay from the borrower’s perspective. The borrower in that scenario is owed money which is an unsecured debt. I don’t think anyone could reasonably argue with that position either.

The first issue, though is whether the debt is due, and to whom. The debt might not be due at all if the creditor has received, directly or indirectly, payment or settlement from bailouts, insurance, credit default swaps, guarantees, etc. Shedlock’s mistake is the same as most people — assuming that because the homeowner stopped paying, there must be a default. In ordinary times with ordinary mortgage lending practices that would be true. In the context of the illusion of securitization and following the actual money trail, it is not true.

At the time of the declaration of default, the servicer is probably continuing to make the payments to the creditor, which means that from the creditor’s perspective, the obligation is NOT in default. Because the securitization scheme involves multiple obligors on the obligation, only one of which is the homeowner, it is not possible to determine a default unless one gets an accounting from all levels of the securitization chain. If the servicer is making the payments, then the original obligation to the creditor is NOT in default, but the servicer MIGHT have a claim for restitution against the homeowner for making his payment — but that claim is not secured and not  liquidated unless and until the servicer proves the actual money trial. So my premise is based upon making decisions based upon the actual facts rather than a set of incorrect presumptions.

The most serious defect in Shedlock’s position is that taken at face value, it would allow anyone to take the house away regardless of whether or not they are the creditor. Assuming the creditor is the investor-lender. Just because the actual lender refuses to enforce the obligation, and the obligation is “perceived” as due, does not give a license to ANYONE with some knowledge to make the claim in lieu of the real creditor. That is insane. If that were the law, then our marketplace would be filled with uncertainty inasmuch as it would virtually guarantee multiple claims on the same debt by multiple parties. In a race to the courthouse the first one to initiate proceedings to enforce the obligation would arguably be the winner — even though they never loaned any money and never purchased the obligation — and even though the obligation has potentially been paid in full or is being paid current by the servicer. Nobody can reasonably argue with this point either.

The last major point I would make is that Shedlock presumes the original transaction was properly documented and recorded in the form and content required by law. This is not the case in virtually all securitized loans. The documentation shows that homeowner-borrower (HB) was funded by originating lender (OL). In truth OL was merely acting as stand-in for undisclosed parties contrary to federal and state laws. The money trail clearly shows that the investor-lender (IL) was the source of the funds and was the intended beneficiary of the transaction.

So the documentation shows a transaction (HB-OL) that never existed since OL did not lend or otherwise even handle the money involved in the funding of the loan, most of which work was done by the closing or escrow agent. The documentation should have identified IL as the lender but didn’t. In fact, there is no documentation in which both IL and HB appear as parties, neither one actually knowing about the other nor the terms of the transaction by which IL advanced money and HB received the benefit of money.

And here is the rub: the investors don’t want any part of the predatory lending practices and faulty underwriting that was custom and practice in the industry during this mortgage mess, so they seek no remedy from the homeowner. IL does not want to limit itself and collect from HB because IL knows that the investment banker who sold the mortgage bonds didn’t use all the money for funding mortgages. Instead they used the money to claim fees and profits part of which funded bets against the very loans that they said they were selling to the IL but in fact never transferred from OL.

If  Shedlock’s premise were accepted, then the pretender lenders score a great victory for themselves at the expense of the IL whose money they used to fund the scheme and the HB whose obligation has been partially or entirely extinguished by trillions of dollars in payments received by the securitized parties on behalf of the IL but which was neither reported nor paid to IL. IL therefore has chosen to sue not the homeowner, where the damages would be reduced to near zero, but rather to sue the investment bank, where the damages are 100% of the money they advanced. If they went for the HB, they would end up with at best a home worth a small fraction of fraudulent appraisal OL used to get HB’s signature. Both the loan amount and the security for the loan would already be substantially lower than the money advanced by IL. So given that they are looking at 20 cents on the dollar if they go after the HB, less offset for predatory lending claims, they have chosen to sue the investment banker for 100 cents on the dollar.

The void created by the choice of IL not to enforce against HB has been filled with pretender lenders who see an opportunity to gain a free house. It is the banks who have created the choice of a free house (or HB relief for the borrower) or a free house for the pretender lenders. Given the equities and the fact that all of the fees and profits of the securitizers and pretenders are ill-gotten based upon fraudulent statements it hardly seems right to say that the collateral benefit from all this should flow to the banks rather than homeowners who were duped into the transaction to begin with.

from Mish Shedlock, http://globaleconomicanalysis.blogspot.com

Foreclosure-Gate Screw Tightens: Banks Face $17 Billion in Suits Over Foreclosures; Common Sense Says $5 Billion is Very Generous

State attorneys general are not happy with a $5 billion offer by major banks to settle lawsuits regarding robo-foreclosures and other alleged grievances. Some officials want as much as $20 billion. The compromise threat is on the high end.

Please consider Banks Face $17 Billion in Suits Over Foreclosures

State attorneys general told five of the nation’s largest banks on Tuesday they face a potential liability of at least $17 billion in civil lawsuits if a settlement isn’t reached to address improper foreclosure practices, according to people familiar with the matter.

The figure doesn’t cover additional billions of dollars in potential claims from federal agencies such as the Department of Housing and Urban Development and the Justice Department. State and federal officials haven’t proposed a specific comprehensive settlement figure, but Tuesday’s discussions represented the first effort to formally quantify potential liability.

Banks have proposed a $5 billion settlement that would be used to compensate any borrowers previously wronged in the foreclosure process and provide transition assistance for borrowers who are ousted from their homes. Federal and state officials have dismissed that as insufficient. Some officials have pushed for a total price tag of more than $20 billion to resolve foreclosure-handling abuses that surfaced last fall.

The U.S. Trustee Program, a part of the Justice Department that oversees bankruptcy cases, has asked for an additional $500 million to $1 billion in penalties, according to people familiar with the matter. Officials of the unit have raised questions in several cases over the authenticity of foreclosure documents.

Banks have argued that their problems are largely technical and that few if any borrowers have faced wrongful foreclosures. State and federal officials have faulted mortgage companies for not hiring enough staff to provide assistance to millions of borrowers that have fallen behind on their mortgages.

The latest development comes as state and federal officials are intensifying their scrutiny of other parts of the mortgage machine. Attorneys general in California and New York have announced wide-ranging mortgage investigations.

What are the Damages?

This is what I want to know:

  1. How many people lost their home to foreclosure out of an error? By error I mean the wrong person, a home with no mortgage, or a major procedural error.
  2. How many people think they deserve a free house and clear or a principal reduction over “show me the note” nonsense or other problems including unemployment?
  3. How many people did banks string along for many months with promises of work-outs, where the person paid their mortgage for months, then lost their home.

Throw Category #2 in the Ash Can

I am sure category #2 is the largest. Throw those cases in the ash can where they belong.

No one want to admit they were stupid. Yet people paid stupid prices for homes. Others were unlucky. Some lost their jobs. Even then, one can ask “did you have a year’s worth of living expenses saved up in the bank, in case you lost your job?” Regardless of the answer, banks should not be on the hook for people losing their jobs or having medical problems.

Here’s the cold simple truth: If you do not pay your mortgage, it is reasonable to expect to lose your home. There is no other realistic way of looking at it. Robo-signing may not be right, but it is irrelevant.

Category #1 the Real Problem

I have deep sympathy for those in cases where banks foreclosed on the wrong home, the wrong address, or on homes with no mortgage at all. Those people deserve their home paid free and clear and some huge penalty on top of it.

I suspect the number of such cases is minuscule. They receive enormous publicity but is the number 10,000? 5,000? 500? or 50? I suspect the number is far closer to the lower end than the higher end. 50 might easily be on the high side.

Whatever the number is, banks should pay mightily and punitively for it. The money should go to those wronged, not to the states. Even with massive penalties I doubt the total would come close to $200 million.

Category 3 is Where the Uncertainty Is

I do not know how big the “strung along” category is, but the only ones in this category who were genuinely harmed to any significant degree are those who continued to make mortgage payments, strung along on a promise, when instead they could have and should have walked away.

How many is that? You tell me. However, the harm is easy to quantify. The harm is extra payments people made (if any), while the banks engaged in deceptive practices or were simply understaffed.

Assume banks engaged in deceptive practices and people made extra payments instead of walking away. Would those extra payments amount to as much as $1 billion? I rather doubt it.

$5 Billion is Very Generous

What is a valid penalty? $4 billion seems like a lot of money to me. That would be a 400% penalty if the total wrong-doing amounted to $1 billion which I doubt.

The sad truth of the matter is we have a full scale witch-hunt over robo-signing and other alleged grievances even though there was little actual damage caused by banks.

If you disagree then total up the damages. However, I insist you start from two essential points.

  1. If you do not pay your mortgage, it is reasonable to expect to lose your home.
  2. Robo-signing may not be right, but it is irrelevant as per point #1.

So total up the damages, add a huge penalty, and let me know what you come up with.

No doubt, many will accuse me of siding with banks. The reality is I am siding with common sense. No one fought against bank bailouts harder than I did. Banks should have been allowed to go under.

Unfortunately they were bailed out. However, two wrongs do not make a right.

I am all for punishing banks provided the punishment is based on damages rather than the widespread belief “we need to stick it to the banks”.

tila statute of limitations

Statutes of Limitations for TILA and RESPA Claims – For TILA
claims, the statute of limitations for actions for damages runs one
year after the loan origination.  15 U.S.C. § 1640(e).  For actions
seeking rescission, the statute of limitations is three years from
loan origination.  15 U.S.C. § 1635(f).  For RESPA, actions brought
for lack of notice of change of loan servicer have a statute of
limitation of three years from the date of the occurrence, and actions
brought for payment of kickbacks for real estate settlement services,
or the conditioning of the sale on selection of certain title services
have a statute of limitations of one year from the date of the
occurrence.  12 U.S.C. § 2614.

Ibanez does it apply in california

Applicability of US Bank v. Ibanez – The Ibanez case, 458
Mass. 637 (January 7, 2011), does not appear to assist Plaintiff in
this action.  First, the Court notes that this case was decided by the
Massachusetts Supreme Court, such that it is persuasive authority, and
not binding authority.  Second, the procedural posture in this case is
different than that found in a case challenging a non-judicial
foreclosure in California.  In Ibanez, the lender brought suit in the
trial court to quiet title to the property after the foreclosure sale,
with the intent of having its title recognized (essentially validating
the trustee’s sale).  As the plaintiff, the lender was required to
show it had the power and authority to foreclose, which is
established, in part, by showing that it was the holder of the
promissory note.  In this action, where the homeowner is in the role
of the plaintiff challenging the non-judicial foreclosure, the lender
need not establish that it holds the note.

res judicata effect of prior unlawful detainer action

Res Judicata Effect of Prior UD Action – Issues of title are
very rarely tried in an unlawful detainer action and moving party has
failed to meet the burden of demonstrating that the title issue was
fully and fairly adjudicated in the underlying unlawful detainer.
Vella v. Hudgins, 20 Cal. 3d 251, 257 (1977).  The burden of proving
the elements of res judicata is on the party asserting it.  Id. The
Malkoskie case is distinguishable because, there, the unlimited
jurisdiction judge was convinced that the title issue was somehow
fully resolved by the stipulated judgment entered in the unlawful
detainer court.  Malkoskie v. Option One Mortg. Corp., 188 Cal. App.
4th 968, 972 (2010).