affirmative defenses for an unlawful detainer

[bufbarnaby]

What is the name of your state (only U.S. law)? California
I have been server with a summons and printed out the forms for the Answer to the UD.
I have cancer and am going to start chemo soon. My income is low and I am on Medi-Cal due to this and my end-stage arthritis of both hips.
This is why I am behind on rent. I am also going to file for Chapter 7 but don't have time/money to get it done before the 5 day answer period is up.
Should I list a pending BK on the Answer only or also state my health problems ? The Answer also gets mailed to the landlord so isn't listing all these things going to give their lawyer a heads-up on what I plan to do ?
Isn't the first court date when I should ask for more time to get letters from my Doctors and tell the Judge I need time to file a BK ?
A friend of mine also had health issues and filed a Chapter 7 and stayed in her place for 6 months !
I need time to get things together...please help !

 

[Eekamouse]

How far behind are you on your rent payments?

 

[Proserpina]

What is the name of your state (only U.S. law)? California
I have been server with a summons and printed out the forms for the Answer to the UD.
I have cancer and am going to start chemo soon. My income is low and I am on Medi-Cal due to this and my end-stage arthritis of both hips.
This is why I am behind on rent. I am also going to file for Chapter 7 but don't have time/money to get it done before the 5 day answer period is up.
Should I list a pending BK on the Answer only or also state my health problems ? The Answer also gets mailed to the landlord so isn't listing all these things going to give their lawyer a heads-up on what I plan to do ?
Isn't the first court date when I should ask for more time to get letters from my Doctors and tell the Judge I need time to file a BK ?
A friend of mine also had health issues and filed a Chapter 7 and stayed in her place for 6 months !
I need time to get things together...please help !

That's likely because her landlord didn't push to have the automatic stay lifted.

There is another legitimate course of action. You can file now with the barest information, and then submit the rest of the petition within the time limits (2 weeks, generally).

What you need to do is be very, very careful. If the landlord believes you've filed for the sole reason of avoiding eviction proceedings, he can actually try to have the whole thing rejected.

If a Court determines that a bankruptcy has not been filed to reorganize, but instead used simply to gain a litigation advantage or frustrate a particular creditor, that case may be dismissed for bad faith and sanctions imposed against the debtor. Although a difficult burden for a creditor to satisfy, here are some possible situations that have:

solvent debtor filed for bankruptcy for the purpose of obtaining the limit on a landlord’s claim for breach of lease, See, In re Liberate Technologies, 314 BR 206 (Bkrtcy. ND Cal 2004);

tenant filed a petition in bankruptcy only to avoid a possible eviction, See, National Home Equity Corp. v. Villareal, 46 BR 284 (Bkrtcy. CD Cal 1984);

or
a bankruptcy petition was filed to frustrate an ongoing eviction, See, Norwest Mortgage, Inc. v Waters, 60 BR 339 (Bkrtcy. ED Wis 1986).

 

[bufbarnaby]

That's likely because her landlord didn't push to have the automatic stay lifted.

There is another legitimate course of action. You can file now with the barest information, and then submit the rest of the petition within the time limits (2 weeks, generally).

What you need to do is be very, very careful. If the landlord believes you've filed for the sole reason of avoiding eviction proceedings, he can actually try to have the whole thing rejected.

I am not solvent and was going to file a Chapter 7 anyways soon.
What do you mean file with the barest info. ? The Answer filing or the BK. I am under the assumption the Answer form must have a reason on it ?
Or do I just show up to court on specified day and tell judge I need time to get letters from Doctors , etc. The BK could be done later on from what I understand. I qualify as I have been living off donations from friends...can't meet even basic expenses. And have a LOT of unsecured debt.
Isn't the first court date just to ask judge for time ?
I need a simple clear answer...what reasons do I put on the ANSWER form that is sent to court and the plaintiff ?
Am I not entitled to a hearing to explain my situation...physical/financial hardship ?
FYI...the landlord accepted partial payments in the past after giving me a 3-day quit several times. Also when I had extra money in the past I kept them from losing the property by paying early. I have written proof of this.
Can't I use that against them ?
BTW I am 4 months behind counting this month. They were going to let me come up with the $3100 and avoid UD , but then changed mind. I said I could borrow it if I had a few weeks. Could I ask for arbitration to pay and stay in residence ?

 

[Eekamouse]

Has it occurred to you that you might want to move in with friends or family because it doesn't sound like your financial situation is going to change anytime soon?

 

[Proserpina]

I am not solvent and was going to file a Chapter 7 anyways soon.
What do you mean file with the barest info. ? The Answer filing or the BK.

I'm referring to the bankruptcy.

I am under the assumption the Answer form must have a reason on it ?
Or do I just show up to court on specified day and tell judge I need time to get letters from Doctors , etc. The BK could be done later on from what I understand. I qualify as I have been living off donations from friends...can't meet even basic expenses. And have a LOT of unsecured debt.
Isn't the first court date just to ask judge for time ?

You can ask for a continuance, sure - but it's only prolonging the inevitable. You don't actually have a defense.

I need a simple clear answer...what reasons do I put on the ANSWER form that is sent to court and the plaintiff ?
Am I not entitled to a hearing to explain my situation...physical/financial hardship ?

Your disability and financial hardship aren't going to change anything. They're not the landlord's fault, and he's entitled to be made whole.

FYI...the landlord accepted partial payments in the past after giving me a 3-day quit several times. Also when I had extra money in the past I kept them from losing the property by paying early. I have written proof of this.
Can't I use that against them ?
BTW I am 4 months behind counting this month. They were going to let me come up with the $3100 and avoid UD , but then changed mind. I said I could borrow it if I had a few weeks. Could I ask for arbitration to pay and stay in residence ?

You're going to be moving - sooner rather than later.

 

[justalayman]

They were going to let me come up with the $3100 and avoid UD , but then changed mind. I said I could borrow it if I had a few weeks. Could I ask for arbitration to pay and stay in residence ?

If you tender the full amount owed the landlord has no choice but to accept it. He does not have to wait any longer than what takes to get the case into court.


arbitration? For what? You have to pay rent to remain in the residence. You have no basis to refute the UD.

 

[bufbarnaby]

If you tender the full amount owed the landlord has no choice but to accept it. He does not have to wait any longer than what takes to get the case into court.


arbitration? For what? You have to pay rent to remain in the residence. You have no basis to refute the UD.

A continuance is what I need to find a place.
To all the "experts" on here , a friend was in the same situation in the same county recently and the Judge gave her a continuance TWICE for health reasons and then she filed Chap 7 and did't have to repay the dept. She was in her place 6 MONTHS. So don't tell me it can't be done.
It is UNSECURED debt.
A person files Chap 7 because of sudden loss of income and lists all unsecured debt. Yes I am looking for a place.
I am going to talk to a BK lawyer Monday to ask about timing.
So if I have the full amt. in court day one they HAVE to accept it and rescind the UD ? Will I still get to live there ?

 

[justalayman]

bufbarnaby;3290869]A continuance is what I need to find a place.

ok

To all the "experts" on here , a friend was in the same situation in the same county recently and the Judge gave her a continuance TWICE for health reasons

but they don't have to so do not depend on it. There is no obligation to allow the additional time.

and then she filed Chap 7 and did't have to repay the dept. She was in her place 6 MONTHS. So don't tell me it can't be done.
It is UNSECURED debt.

of course a landlord can file to remove the automatic stay and proceed with an eviction as well. A court can approve that.

A person files Chap 7 because of sudden loss of income and lists all unsecured debt.

the point is? You list ALL debt, both secured and unsecured.

So if I have the full amt. in court day one they HAVE to accept it and rescind the UD ? Will I still get to live there ?

pay before you go to court. A judge can do a lot of things and should deny the UD if you pay it in the court but judges are people too.


and this is presuming the only reason for the UD is the failure to pay rent.


of course that doesn't mean the LL cannot immediately server you with a notice of termination effective 30 or 60 days from the date of service.

 

[Proserpina]

A continuance is what I need to find a place.
To all the "experts" on here , a friend was in the same situation in the same county recently and the Judge gave her a continuance TWICE for health reasons and then she filed Chap 7 and did't have to repay the dept. She was in her place 6 MONTHS. So don't tell me it can't be done.

It is UNSECURED debt.
A person files Chap 7 because of sudden loss of income and lists all unsecured debt. Yes I am looking for a place.
I am going to talk to a BK lawyer Monday to ask about timing.
So if I have the full amt. in court day one they HAVE to accept it and rescind the UD ? Will I still get to live there ?

You want to rip off your landlord?

Have fun with that.

 

[Eekamouse]

A continuance is what I need to find a place.
To all the "experts" on here , a friend was in the same situation in the same county recently and the Judge gave her a continuance TWICE for health reasons and then she filed Chap 7 and did't have to repay the dept. She was in her place 6 MONTHS. So don't tell me it can't be done.


You want to rip off your landlord?

Have fun with that.

Yeah, that's the impression I got from her posts, also. SMH.

 

[Nellibelle]

A continuance is what I need to find a place.
To all the "experts" on here , a friend was in the same situation in the same county recently and the Judge gave her a continuance TWICE for health reasons and then she filed Chap 7 and did't have to repay the dept. She was in her place 6 MONTHS. So don't tell me it can't be done.
It is UNSECURED debt.
A person files Chap 7 because of sudden loss of income and lists all unsecured debt. Yes I am looking for a place.
I am going to talk to a BK lawyer Monday to ask about timing.
So if I have the full amt. in court day one they HAVE to accept it and rescind the UD ? Will I still get to live there ?

Once you file an Answer with the Court, your Hearing date will be approximately 3 weeks later. That gives you time to come up with the rent you owe that can enable you to stay in your apartment. Or, if you cannot afford to continue to stay in the apartment, you can file for bankruptcy anytime before the marshall comes to evict you. You will recieve an automatic stay from the bankruptcy court, but you must give a copy showing proof of such filing to the marshal's office AND retain a copy to show the marshal if/when he comes to evict you.

You will get a court date for your bankruptcy approximately 1.5 to 2 months after filing, unless the LL tries to remove the automatic stay before hand.

I really hope you can find a way to pay your rent, because it could get very stressful on top of everything else you have to deal with. Good luck to you.

 

[bufbarnaby]

ok


but they don't have to so do not depend on it. There is no obligation to allow the additional time.


of course a landlord can file to remove the automatic stay and proceed with an eviction as well. A court can approve that.

the point is? You list ALL debt, both secured and unsecured.



pay before you go to court. A judge can do a lot of things and should deny the UD if you pay it in the court but judges are people too.


and this is presuming the only reason for the UD is the failure to pay rent.


of course that doesn't mean the LL cannot immediately server you with a notice of termination effective 30 or 60 days from the date of service.

I have been an excellent tenant for 6 of the seven years...yes the ONLY reason is back rent.
So if I pay outside the court before we go in or inside the court the UD won't show on my record ???
I am OK with that. I was told the same thing by a friend who owns many rentals. He said you have 60 days notice if I have been there over a year.
It has been seven for me. It's cleaner and nicer than when I moved in. I loaned them money (several times) in the past to prevent them from losing the property.
What are my chances of staying there if I pay in full ?
Will it not be recorded as an UD if I pay in full on the spot ?
If paying in full does not keep me from getting a UD on my record I don't want to go through with it.
Sixty days notice and NO UD on my record I could live with.
FYI...57 years old and NEVER had a rental blemish in the past. 3 weeks or lees I can get the money.
Someone please confirm paying the full amt. on the spot will stop the UD.
Having to move in 60 days I could live with. Was looking up the street where I lived 30 years ago for four years with a PERFECT track record. and they have security gates , pool , security lighting , video surveillance and assigned parking and a lot more this place doesn't have. Place is smaller but better built , more modern and rent is the same as here.

 

[Eekamouse]

I have been an excellent tenant for 6 of the seven years...yes the ONLY reason is back rent.
So if I pay outside the court before we go in or inside the court the UD won't show on my record ???
I am OK with that. I was told the same thing by a friend who owns many rentals. He said you have 60 days notice if I have been there over a year.
It has been seven for me. It's cleaner and nicer than when I moved in. I loaned them money (several times) in the past to prevent them from losing the property.
What are my chances of staying there if I pay in full ?
Will it not be recorded as an UD if I pay in full on the spot ?
If paying in full does not keep me from getting a UD on my record I don't want to go through with it.
Sixty days notice and NO UD on my record I could live with.
FYI...57 years old and NEVER had a rental blemish in the past. 3 weeks or lees I can get the money.
Someone please confirm paying the full amt. on the spot will stop the UD.
Having to move in 60 days I could live with. Was looking up the street where I lived 30 years ago for four years with a PERFECT track record. and they have security gates , pool , security lighting , video surveillance and assigned parking and a lot more this place doesn't have. Place is smaller but better built , more modern and rent is the same as here.

If you're having all these financial problems and are planning on filing for bancruptcy, how do you plan on passing the credit check a new place will run on you before approving your rental application? Are you working full time right now? You haven't begun cancer treatments yet? When did you learn you have cancer? Lending money to your landlord in the past has no bearing on your present situation and you won't be able "to use this against them". Not exactly sure what you mean by that comment.

 

[bufbarnaby]

If you're having all these financial problems and are planning on filing for bancruptcy, how do you plan on passing the credit check a new place will run on you before approving your rental application? Are you working full time right now? You haven't begun cancer treatments yet? When did you learn you have cancer? Lending money to your landlord in the past has no bearing on your present situation and you won't be able "to use this against them". Not exactly sure what you mean by that comment.

Actually a LL that let you make partial payments to catch up and I have in witting that I paid early to prevent them from a foreclosure DOES look good to the Judge who may be more lenient towards you. I was told that by several legal sites.
You are wasting my time not answering the question I asked about showing up to court with the full amt. owed.
Perhaps Nellibelle or justalayman can answer tomorrow as they are on point and you are not.
Question to Nellibelle...What do I put on my "answer" ? That I intend to have the full amt. owed on the day of court ?