UNLAWFUL DET. IN A DIVORCE OF LANDLORDS

[Wieluvver]

For starters, I reside in California. I rented a house from a man who apparently is getting divorced and he and his wife own the house that I rent from the husband. Come to find out, the wife wants the house for her family and she has called and told me that she is serving me an Unlawful Detainer suit. I have only met this woman when she has come to our house to serve her husband court papers. I signed a 1 year lease with the husband and would like to know if she can legally do this to us?

 

[djdj]

NO you have a vaild legal lease, and if the wife wants you out then she has to PAY YOU to move.

I would stand firm on this one......

and yes she can serve you with papers anyone can sue anyone, thats what courts are for, to have a judge decide who is right and who is wrong.

So with a valid legal lease no judge is going to evict you, before the lease expires.

thats it....offer her IN WRITING that you will move if she pays the movers, you are not going to rent a UHAUL!..PLUS all your security back, and of course at least February as free rent, and you will be out by Feb 28th.

Then start lookin.....if she refuses then go to court with your lease, and your offer to move, and ask the judge if she wants the place back why should it cost me to move?

 

[Wieluvver]

UNLAWFUL DET. IN DIVORCE OF LANDLORDS

I have paid this man rent in advance up to and including March 2001. Of which I have all receipts for and have not been late, of course. I received in the mail after I wrote my original question, a piece of paper titled the municipal court, such and such, giving "Notice of Unlawful detainer filing" in a case of Him vs. her cs#XXXXXXXX with my name on it and his and any and all occupants. There is no date of a court hearing only "to take notice that on 1/24/01 an unlawful detainer complaint(eviction action) has been filed naming me as the defendant". Why would they give me notice of a filing and not just serve me with the filing itself? And doesnt some kind of notice prior to an unlawful detainer action need to be served to me, like a 30 day notice or something along those lines? This is only one sheet of typed out paper in my mail.
appreciate your time and reply.

 

[djdj]

I agree it sounds like a scare tactic to me...

The case # is probably for their divorce, but just to be safe goto the court house and start asking questions...

You must be legally served with eviction papers by someone who is NOT a party to the action.... such as a process server

So maybe they are saying that they filed the papers in court and you will be served with them soon..and that will tel you all the information...but since this is a divore i would NOT trust either side.

There really is NOTHING they can do, except aggrivate you into moving, because really you have a signed valid legal lease. They cannot get around that, so someone will have to pay you to move wether they like it or not.

so start drafting a letter stating your demands, free rent security back, and moving expenses, for breaking the lease. Remember a lease works BOTH ways. neither a lanlord or a tenant can break a lease without penalties.

 

[Wieluvver]

Thanks for your advice. While I was out this morning, my babysitter rec'd "Unlawful Detainer Summons" from a process server naming my landlord (an owner) and myself and any and all other occupants as defendants. The declarations attached are complete out and out lies. There is a copy of a 30 day notice which was supposedly served me and mailed. Never happened. How do I prove this to the courts? This lady can actually lie and put me and my 5 yr old in the street? I am so very worried about this turning on me, I am a wreck. please help...

 

[djdj]

Well for one, where is the proof of her mailing it to you?

The wife has to prove she mailed a 30 day notice to you, so she had to send it certified mail, return reciept, OR she must have a stamped certificate of mailing from the US post office, if she has neither to show a judge, then you were not served a 30 day notice, period!

A copy of one of them should be included in the summons...is it?

You have plenty of time, to figure this out.....so what does the summons say? by what date do you have to provide an answer?

That is what court and a judge is for to sort out the lies from the truth...Just sit down and calmly state your case, write out all the details of your rental, First how did you find the place? ad in the newspaper..well go to the library and search the newspaper and make copies of the ad...

When you came to see it what did the landlord say? You asked for a lease and he gave you one..right? You didnot pay in cash, for your rent... right?

You see what they would be looking for is.... if you and the hubby are cahoots to deprive the wife a living place.

thats why a lease and paying by check is a great defense, you could argue he said he is divorced and this is the first time you found out differently.

she really cant evict you, no matter what her assshole lawyer says...unless YOU DONT SHOW UP on time...no excuses, repeat NO EXCUSES, when you are given a time and place to be.

start thinking of presenting her with your demands to end the lease. as abouve free rent, moving expenses, secrity back....

If she wants the place bad enough they will pay you to move and you will have to move .. you dont have to agree to move, but the next time they try and evict you, you wont get any money.



[Edited by djdj on 01-28-2001 at 09:28 PM]

 

[Wieluvver]

UNLAWFUL DET. IN DIVORCE OF LANDLORDS

Thanks again.. And attached with the summons is a 30 day notice addressed to my landlord (her husband) and all occupants thereof signed by her and proof of service by mail declaration by an unknown person. I have never seen any of these documents before this summons. also attached is a restraining order from her to her husband and one from him to her. What would their restraining orders against each other have to do with my family? This is crazy.. I am starting to believe I need to hire an attorney to protect me. Think?

 

[LL]

Adding the perspective of California law is helpful here.

The notice you got was not a trick. The CA court will send you a notice immediatly (48 hours) after the filing, and it tells you that 1) a suit has been filed, (2) the file will be closed to strangers for 60 days, after that it is open public record, and (3) gives you the telephone number of the local bar association referral.

You were then served by substitution on the baby sitter, and there is no court date on the summons, BUT: it also says that you have 5 days to file an answer with the court or the LL wins the case by default. Its probably not a coincidence that it was served in connection with a weekend.

You need help, fast. Get an attorney and without delay, like tomorrow morning.

 

[Wieluvver]

Thank you youngslm. May I ask what your opinion of my situation is? And what you believe the wife can legally do to me? I live alone with my 5 yr old son and am an absolute wreck. I really cannot afford an attorney since I was asked to pay my rent in advance (thru Mar 2001). Your reply is greatly appreciated.

 

[LL]

Well, I have given you advice, but you haven't taken it. I told you to go and look at the Court orders. I also said, IF THE LEASE PRE-DATES THE COURT ORDERS. DID YOU EVER GO AND LOOK???

You say the 30-day notice was addressed to the Husband, not to you. So was he renting the house from her? Maybe he didn't have the right to sign a lease with you, and he is no longer in CA but enjoying himself on the beach in Hawaii with his new girlfriend and your rent-in-advance. It suits the situation that you describe.

Next, I told you that she (the wife who wants the house back) will cause you enough trouble that you will need a lawyer of your own. I also told you to think about the stress and aggravation to you in making decisions to stay or go, and now you are a nervous wreck.

I told you that with good legal advicse you may be able to get paid for leaving, but now you have squandered that opportunity and you are on the defensive.

Again, I will suggest your taking the longer-term viewpoint of this whole affair, and ask yourself, where will it end? The wife may have a genuine case here, and she is pursuing it. Even if she down't have a case, you now have an unlawful detainer filing on your record and you will need to pay a lawyer for more than just a consultation. You may need to negotiate for the wife to just drop the unlawful detainer action in return for your leaving, instead of getting some money in addition.

My friend djdj can find words to tell you about your standing still and not taking any action when you needed to. I read in your other postings about your inability to act to take care of yourself, and I have to tell you that you are always setting up your life for a disaster.

 

[Wieluvver]

UNLAWFUL DET, IN A DIVORCE OF LANDLORDS

Hello younglsm, Let me start by saying that I did listen to your advice and yes my lease pre-dates the court orders. No the husband does not rent from his wife. And no, he is not off with my money anywhere else. He lives down the street at his parents house 1 block over and I see him in the neighborhood. My understanding as told to me by his mother is, they lived here together (married owners) she left with her kids, abandoned the mortgage pmts and he could not afford the pmts alone, so he then rented the house to me and my son to supplement the mortgage pmts she refused to pay. Then when she realized he was keeping the home without her help, she wanted it back and this is where I am now. In the middle. You can be a bit on the harsh side, do I need that also, or not? Your input is greatly appreciated..

 

[LL]

My input at this point is to tell you again to get a lwyer and fast, and then release you.

If you were served on Sunday, then you must file a response in the court before the court stops accepting papers on Friday. Otherwise you have lost. Your answer must be in proper form. I don't think that you can handle it by yourself.

The U.D. filing is probably in Superior Court sind the LA County courts all voted last year to merge the Municipal Court into the Superior Court. This means that the case is in the State's highest trial Court and they will go by much more formal rules than the Municipal Court, certainly much more formal than small claims court. Procedure will be important and so will the precise requirements of the law. djdj could probably handle this himself, but you can't.

Read the complaint and see if there is a claim that the husband didn't have a right to encumber the property to you. If so, and they can make it stick, you're out.

In any case, you have only what, two more months on your lease? Why have you bothered to force them to take such drastic action? You will have to leave anyway sooner or later, and you could have negotiated to leave when it is convenient for you, you could have found some place else, not needed a lawyer, and saved yourself all of this grief, and maybe even have gotten some relocation expense money.

Now you have a U.D. filing on your record, you will need a lawyer to get you out without being found guilty of U.D. and have an order to evict you on your record.

I'm not willing to answer any more questions for you.

Unless you like setting yourself up for trouble, go and spend the money and get a lawyer, and right away.

 

[djdj]

Well you heard it from someone in CALI.....and i'm in New York City.

Best bet is you have a real job, with real benefits, that include a couple of personal days, vaction days and sick days...i would suggest you dont go to work for AT LEAST the next 3 days untill you get this resolved.

because it will get worse......

I still say you have a valid lease, and even if the hubby did not have the authority to rent it to you, most normal judge's will at least give you some time to move, and since the rent is paid till march 31st, thats probably when a judge will order you to be out by.

But you still have a chance to get out of this and have them pay you to move, If the hubby had the right to rent it to you, then your lease is valid.. and since the wife abandon the property and hasnt paid HER share of the mortgage, the hubby did the only thing he can do to keep it from forclosure, and that is to rent it to you.

The only other option is if they force you to move is to sue the hubby for all the money you paid him in rent PLUS all the money you had to pay out to move,security depoit installation fees etc.. claiming he had no right to rent it to you in the first place...

You do have options.

[Edited by djdj on 01-30-2001 at 11:36 PM]

 

[Wieluvver]

Well now, here I sit reading these replies and younglsm, not to worry no more questions for you or better yet, dont read anymore of my postings. I am sure you did not register with freeadvice.com to voice your opinion on others inabilities (what you may think are) but to give good advice to those in need of what you consider knowledge. I think I am quite capable of handling the situation I have encountered now, thanks to you. I have always been a fighter for what I believe in, and I guess I forgot that until our estranged encounter. It has all come back to me and I can prapare my legal pleading in the proper court requirements. No there is no mention of the owner not having the right to rent the property. I think I have a great case and as long as I am on time and prepared w/facts in order as complained, I am in the right and hopefully to prevail. This is my home and my family as well and I have done nothing wrong. Only what every person in this world HAS to do. Have a home to live in and provide security for my child of which I am being robbed of. My lease is for ONE year, not 2 more months. My lease does not say it expires after my prepaid rent expires. My least says every month until Dec. 1, 2001. I aquired my rental property the same as everyone else does, by seeking, applying and being accepted by a property owner/manager, paying what is required, signing contracts and moving my happy little ass in. I bid you a good nite and maybe you should re-evaluate your position in this open forum. Tah Tah

 

[djdj]

HEY HO go for it .....

I still think now that i have re read all of this is that the wife abandoned the property, and OWES the hubby her share of the mortgage taxes maintenence for the time she has gone.

That you should not have a problem staying there......

I must also state, that every little deatail in any case is important....and IF you had told us this at the beginning everyones answers would not have been so hard on you....

SO you have to find the achillies heel and keep hitting on it till they give up..

And her abandoning the property, is just the angle you want to WIN. good luck.....

[Edited by djdj on 01-31-2001 at 08:16 AM]