Unlawful Detainer Defense input needed

[Almighty1]

What is the name of your state?
California

I'm located in San Francisco, CA and the landlord being referenced is the San Francisco Housing Authority aka Housing Authority of the City and County of San Francisco (SFHA).

This will be a bit long so I'll do it in chronological order.

On August 22, 2006 - the SFHA Property Manager called and met with my mother and myself saying there was unreported inome from April 2001-August 2005 and basically only included the retroactive rent amounts but without any supporting documentation so he said for us tocompare our records and then get back to him to let him know if his record is correct or not. My mother is illiterate in both english and her native language other than being able to speak her native lanuage but cannot read/write/speak english at all.

On September 7, 2006 - I faxed the Property Manager a letter saying that the unreported earned income was due to their error since we asked each year during the annual recertification about the said income as it was for In-Home Supportive Services and the former property manager always said it wasn't needed to be reported. The other thing was that the current lease is effective May 18, 2005 as all prior leases had my father as head of household but due to his death on April 20, 2005 - a new lease was entered on May 18, 2005 since there is a clause in the lease that says "If, through any cause, any Tenant who has signed the Lease ceases to reside at the Residence, this lease shall terminate. Remaining Household Members may continue to occupy the Residence provided that a qualified and responsible reminaing adult Household Member enters a new lease agreement with the SFHA." So with that in mind, I asked the property manager in the letter if I am responsible for any amounts prior to May 18, 2005 and also as that was my mothers first time job, she would be eligible for the Earned Income Disregard which means the first year would be completely disregarded while the second year would be 50% of the income as rent is based on 30% of income. He didn't respond to that letter as of today which means that he waived his right to object.

Now comes September 14, 2006 - the property manager sends a letter with the same claims as the August 22, 2006 except he said that due to SFHA standard operating procedres and HUD regulations, he is required to take action except he never acknowledges receving my letter except saying that they will proceed with eviction legal proceedings unless he hears back from me within 10 business days from receiving the letter. The only thing is that the amounts have now changed as the April 2001-April 2002 is now $0.00 while the April 2002-April 2003 is now 50% of the original amount. So I basically wrote him again on September 15, 2006 by fax with the same contents as the September 7, 2006 letter and said that if he does not respond within 10 days, he basically agrees with what I said and waived his right to object. And ofcourse in both letters, I said I would be willing to pay what is rightfully due but I won't be paying anything until I hear back from him on a agreeable amount.

So time passes and near the end of October 2006, the November 2006 Rent Statement arrives and it shows the retroactive rent added to the statement and then on October 31, 2006 - a letter is sent from the SFHA Office of General Counsel from a litigation secretary saying that the retroactive rent for the unreported earned income is due and that the property manager offered a repayment plan to us so we can pay over time with 0% interest and that we need to sign a repayment plan by November 15, 2006 or else they will file a eviction lawsuit for violation of the lease.

At this point, I wrote to both the SFHA Office of General Counsel's Attorney, SFHA Executive Director, SFHA Board of Commissioners as well as every local, state and
federal legislative officials for assistance. The local, state, and federal legislative officials had all made inquiries with the SFHA but as of today, they have not responded. A inquiry was made to the HUD (US Dept of Housing and Urban Development) and HUD responded on December 12, 2006 saying that they have no jurisdiction over the SFHA's policies even though they do fund the SFHA. However, the retroactive rent amount the HUD shows which both the SFHA and HUD used from the HUD Enterprise Income Verification System is 50% of the amount the SFHA claims. The HUD also contacted the SFHA so the SFHA had a meeting with my mother and myself on December 19, 2006 with the property manager and the District Manager/Director of Public Housing Operations who said they would eliminate the debt 100% with the use of title V, a federal program. So the SFHA and all it's officials have ignored all inquiries except the one from the HUD as of this date.

So on March 21, 2007 - I receive in the mail a copy of the 14 Day Notice to Pay Rent or Quit dated March 13, 2007 at 2:45PM but the postal meter date on the envelope is March 15, 2007. There was no copy posted. The Notice also claims that no rent was paid for each month from April 1, 2006 to March 31, 2007. I responded by writing by fax to the SFHA Executive Director on March 22, 2007 saying that all the rent for each month and each specific amount has been paid in full and supplied the date the check was paid to their U.S. Bank account by mail. Ofcourse there was no response to that letter from the SFHA.

So even though we got rent statements, the retroactive rent amount never disappeared. So after April 2007, we never received any rent statements but we continued to pay the rent each month.

On June 1, 2007 - the SFHA filed a unlawful detainer lawsuit against us for the amount of rent from June 1, 2006 to May 31, 2007 and here are items of interest.

The prejudgment claim of right to possession is dated May 3, 2007 while the complaint is dated May 31, 2007. The complaint claims that a 3 day notice was served which is false. But the unlawful detainer is based on a 14 Day Notice to Pay Rent or Quit which is dated May 8, 2007 but lacks a signature. However, the Declaration of Proof of Service for the Notice claims the May 8, 2007 notice was posted on March 8, 2007 at 2:45PM and mailed on the same day which obviously would be false since you can't serve something 2 months before it exists. The other thing is they attached a attachment 15 which is common for all SFHA Unlawful Detainers that goes:

"Plaintiff alleges that it is a public agency and therefore exempt from the requirement that the complaint be verified. Code of Civil Procedure 446(a). Plaintiff further alleges that as a public agency, it is exempt from the Court filing requirements."

I don't know about the later but when I look up CCP 446(a), it says that the complaint needs to b verified unless an admission of the truth of the complaint might subject the
party to a criminal prosecution.

So basically on June 7, 2007 - a demurrer was filed and served since there is uncertainty as the May 8, 2007 notice was served 2 months prior based on the declaration of the proof of service. That demurrer was scheduled for a hearing on June 29, 2007.

A Form Interrogatories was also served on June 7, 2007 to the SFHA which has not received a response as of this date. Am I correct that this doesn't need to be filed?
So I think a Motion to Compel is needed but are they required to answer it before the trial which is still not yet set.

On June 12, 2007 - a First Amended Complaint was filed and basically all that was changed was the May 8, 2007 14 Day Notice to Pay Rent or Quit as it now has a Signature and the Declaration of the Proof of Service is now for May 8, 2007 at 2:45PM and mailed at 4:00PM on the same day. One of the other things with that notice is that the one in the original complaint had the hole punch in a different location while the one in the First Amende Complaint had the hole punches in another location and according to the court copy filed, it shows that it was faxed on June 11, 2007 at 1:21PM from a HP LaserJet Fax from the SFHA Property Manager. The SFHA keeps all the documents with holes punched in a folder so the holes in the original complaint should have been at the same location. The First Amended Complaint also included a Proof of Service for the serving of the First Amended Complaint attached except while all the other information is correct, it is for a different case number so we filed another demurrer because of that. The demurrer hearing was scheduled for July 16, 2007.

The original June 29, 2007 demurrer hearing was moved off-calendar per moving party which I assume would be us as we filed the demurrer.

So on July 3, 2007 - the SFHA's attorney files a opposition to the demurrer as well as CCP 473 Declaration for Relief saying that she did not realize that July 4, 2007 is a court holiday which doesn't make sense since this was before July 4, 2007.

So while there was a July 16, 2007 demurrer hearing, it seems that on or before July 13, 2007 - the judge has already decided to overrule it provided that the SFHA's Property Manager provides a Declaration under oath for serving the May 8, 2007 14 Day Notice. The motion was overruled on July 16, 2007 as the SFHA Property Manager did provide a declaration on July 16, 2007. I noticed that only the SFHA's attorney was present, was our attorney supposed to be there or not since they already knew what would happen?

*** Continuted in next message ***

[Almighty1]

So I read the declaration from the SFHA Property Manager and basically he claims that there was a notice served and mailed on March 8, 2007 and also May 8, 2007 both served at 2:45PM and mailed on 4:00PM on those dates but there is no mention of the existence of the March 13, 2007 dated one which was the only one I received. The Property Manager attached the March 8, 2007 dated 14 Day Notice which was originally typed but then he change the date by hand to read May 8, 2007 and then change all the dollar amounts and the dates by hand so that notice can be used on two dates, not to mention that we never received any of the notices he claims.

So the thing is that we have checks for each date and amount in the notices that were paid to the SFHA that was accepted by their payment processor, U.S. Bank so the claims would all be false as they are basically claiming money is owed for money they have already collected or they just want to collect each amount twice for the last 12 months up to the date of the notice.

I noticed that for other people in their answers, they usually use habitability as a defense and also violation of Federal Title VI and Title VIIII since those people really do owe rent. But in our case, for our answer just filed by our attorneys on July 23, 2007 - it states that Plaintiff's attempt to recover possession is fraud. Now, I have a question, what type of fraud did the SFHA commit? Or does creating false evidence like the 14 day Notices and the Declaration of Proof of Service for the Notices count?

Ofcourse the SFHA did serve the notice to quit and filed the complaint to retaliate against us in addition to accepting rent after the date of the notice expire as we're still paying rent monthly. And the SFHA did change, waived or cancelled the notice to quit as there are a total of three 14 day notices even though 2 of them were never served as they claim while they don't acknowledge the one that was served.

Also, are there any other things as far as motions or discovery I should be doing?

Sorry for the long posting, thank you for any input in advance!

[OHlandlord]

Way too long for me to comprehend. Sorry. My only suggestion or advice is to get yourself a very, very good lawyer, if there is still time. If for no other reason but to appeal. You are trying to fight the Housing Authority, a huge government entity with lots of well paid government attorneys. It sounds as if the property manager was forced to take this action by the HA. Somewhere in their books of regulations, your assistance wasn't calculated correctly because of the In Home Services you received. Now they have straightened it out, or believe they have, and they want you to pay up. You haven't and they are evicting. I know this started a very long time ago and it has taken them forever to even get his far, but that is not unusual for the government. Find an attorney that is knowledgeable about HA procedures and regulations. I'm afraid that is your only hope.

[Almighty1]

The Housing Authority has a total of two lawyers all working for the same firm, $450 uncontested and $900 contested per case flat rate so they can't be very well paid as the SFHA is trying to file for bankruptcy to escape paying $16 million in lawsuit defaults. The In-Home Support Services were provided by my mother for my grandmother so it's nothing received. As I have mentioned, I already have a attorney and if you haven't noticed yet, their eviction is non-payment of rent that they received, not the retroactive rent since they have supposedly agreed to resolve that problem back on December 19, 2006. Getting a very good lawyer to solve a $0 problem isn't very cost effective. Not to mention that their lawsuit is not even for the other amount. And it's obvious the property manager is being biased just to keep his job and not being fair. So I don't see how you think that the Housing Authority would have any grounds if 100% of their evidence is falsified and not according to their claims, this is the same as planting evidence.
And why are we talking about appealing when we haven't even made it to the settlement conference or trial yet? The other thing is that the SFHA is evicting like 20-30 tenants per month and so far, they have not won any of the cases as all the cases are that are Pro Per get settled at the settlement conference while those with attorney's usually get settled before it even reaches the settlement conference. The only cases that the SFHA has won is those who don't respond to the summons & complaint so they are in default and those who failed to appear at both the settlement conference and trial. The SFHA might be the 17th largest public housing authority in the U.S. but they are also in troubled status and have a big management problem which is widely known. They don't even have money to provide maintenence. The 2004 lawyers that provided eviction services for them actually ended up suing the SFHA for breach of payment but their 2005 lawyers filed a cross-complaint saying that the 2004 lawyers failed to provide satisfactory services so they had to have someone else handle it, it's just a way to get them out of paying legal bills. And the current eviction lawyers basically have offices that is a house without any secretaries and they claim in this article that they are friends with the courts and they are demurrer proof. They might as well say that they are paying the courts to rule in their favor.

[url]http://www.sfaa.org/0707landes.html[/url]

[CA LL]

Perhaps they applied the recent rents to the past due negotiated amounts owed.

I know you have done a lot of research and work on this but I have one piece of advice for you..

In court..be brief, to the point and effective.

One thing stood out re: the July 16th hearing..you asked should OUR attorney have been there. Yet you seem to imply you don't have one?

You have already filed your answer..the time to ask how to proceed was before that really.

You chose to file that answer by claiming fraud which in effect is another charge and you cannot file a counter claim during a UD suit only valid allowable defenses.

No one here can see the paperwork you are referring to so we can't review the detailed summons/complaint and your answer and filings so obviously we cannot "advise" specifically.

But I think your answer would have been better served to be brief factual and simple to the point of the rent claimed in the complaint for each month has been paid and provide the court all the proof they need for that.

Again not seeing any numbers, they might also have adjusted UP your rent based on income your mom received for grandma care during the more recent months.

I am sure you will have a very long respons to these guesses..but again..you need to realize that you cannot "try" your case on an online message board, nor can we provide specific direction/advice as we are unable to review the case directly.

Good luck. Be sure to show up, be on time, be professional, speak only when asked to and BE BRIEF with your responses.

[Almighty1]

They couldn't apply the past due negotiated amounts owed because one thing I forgot to mention is that on December 19, 2006 - they signed a release waiver for any unreported earned income claims prior to December 19, 2006.

What you mention about that stood out about the July 16th hearing is that the San Francisco Superior Court has a website and you can look at each event and dates that it occured. When you click on Calendar, it shows detailed information about anything any hearings, trials at the court.

I never said I didn't have a attorney but it seems like according to the notes, only the plaintiff's attorney was there because it seems that the judge already told both side how it will rule the business day before the hearing. Besides, if I didn't have a attorney, how do you think the Motion to Demur papers were done since those require pleading paper and also there are no forms for that.

The answer was done by my attorney and it's actually something listed under the other section in affirmative defenses so I'm just wondering what that means exactly.

The paperwork can all be seen here including the latest up to the minute data from the court:

[url]http://www.sftc.org/Scripts/Magic94/mgrqispi94.dll?APPNAME=IJS&PRGNAME=caseinfoscreens&ARGUMENTS=-ACUD07622174,-AR,-A,-AN,-AGenerated\%3A%20Jul-22-2007%20%209\%3A12%20am%20PST,-A00695760,-AD,-AMay-18-2007,-AJul-22-2007,-AALL%20FILING%20TYPES,-AH,-ASort%20by%20Party%20Name,-ASort%20by%20Name,-AS,-AS,-AA,-AA,-A,-A,-A,-AA,-ADate%20-%20User%20-%20Screen%20-%20Location[/url]

That answer was like as brief as it can be if you compare it to everyone else's answer since they are all Pro Per while mines has a attorney.

They can't adjusted UP my rent based on income my mom received for grandma care during the more recent months either because my mom quit the job on August 31, 2005.
Not to mention that the May 8, 2007 notice basically killed the April 2006 and May 2006 rents that was in the March 13, 2007 14 Day Notice since it only goes back to the previous 12 months and nothing further and the total reflects the same.

I am not asking to try the case on an online message board but I am just wondering in a general scenario, if a landlord has received rent and it has been paid by the bank and then they sue the tenant for non-payment of the same rent, would that be considered fraud since it seems to be they are trying to get each rent payment paid twice. It's almost like if you made one purchase with a credit card and the merchant charges you for two transactions.

I'm not sure if I even have to be at the trial since am I correct that for Unlawful Detainer cases, only the attorneys needs to show up on for both sides?

Anyways, about discovery and the motion to compel, what types of discovery can be done and is there a time limit after the Form Interregatories were served and unanswered before a Motion to Compel can be filed and will the motion's hearing in anyway delay the process?

[CA LL]

Since you say you have one..I am a bit confused why you are asking these questions HERE on a message board when you DO have an attorney who can view ALL doucments/evidence thus far and is acting on your behalf accordingly.

As I said we can only "guess". We are not going to try and duplicate the efforts of your attorney who is privy to all related information.

Do you not trust your attorney? If you trust him, ask HIM these questions not here..

Just a suggestion...

[Almighty1]

Trust has nothing to do with it. It's called a second opinion since it's all about strategy. My attorney doesn't cost anything and I don't want to like bother them too much since I already provided enough documentation which is over 600 pages long that believe me, they would need time to go through all of it as UD cases has one drawback, there isn't much time and let's not forget that they have other clients too and I already know that any answer from the attorney will only be available like 1-2 weeks after I ask the question since they need time to review the information. I'm just asking general questions which if someone answers can be used by other people in the future if they run into the same sort of problem as believe me, I have not seen a UD case where the claim is for unpaid rent for rent that has been paid. And giving out too much information on the Answer like you suggested is not good either since you don't want the other side to know too much before the trial. What I'm more interested is that people who chose to respond to the thread is not really providing any useful information as the entire purpose of a forum is for discussions or atleast this one is not to make useless remarks.

[CA LL]

FYI when I try to open the available documents on two of my computers and three different browsers for some reason I only get red x's so sorry can't view any specifics.

Good luck. I guess you are using legal aide if no cost to you? I think you need to let your attorney do their job..and ask THEM specifics. Most on the questions on here are from folks who want general information and whether or not we think they SHOULD get an attorney as it should be. Once you HAVE one, that is who you should be working closely with.

Sorry you think those of us that actually TRIED to comment were useless. Again ... WE DO NOT HAVE the 600 pages of info obviously and cannot give specific advice obviously and I can't even view the few documents on the court site, only the docket listing. And it's not even clear with these very long posts exactly what question(s) you are trying to ask *vs what your attorney has told you?*.

[CA LL]

People have to download and install TiffSurf viewer software from an unverified site in order to view documents.