(Bankruptcy & Your Property) Unlawful Detainer

An unlawful detainer is a court proceeding brought about by a landlord when a tenant has not complied with the rental rules. It is a procedure meant to evict a tenant from the landlord's rental property. The landlord's reasons for ejecting a tenant might be non-payment of rent, expiry of a lease, failure to leave after a notice, etc.

California law provides that when a tenant continues staying in a rental property when the lease or the notice to quit has concluded, then they can be found to be culpable of unlawful detainer and are unlawfully detaining the landlord’s property.

The Unlawful Detainer Statues in California was enacted in 1872 to prevent violence, chaos, and unnecessary disagreements that would likely result from possession of other people's property.

A landlord must first legally terminate the tenancy before evicting a tenant according to the California law. A landlord should give the tenant a written notice according to the law, and if the tenant does not follow, the landlord can then go ahead and petition an eviction lawsuit against the tenant.

Filing for bankruptcy can help you stop an eviction proceeding temporarily. It might even help you save up your past due rent and give you time to discuss an agreement with your landlord to stay. At San Diego Bankruptcy Attorney, we will help you make informed decisions for your case.

What Chapter 7 and 13 Say About Bankruptcy

Chapter 7 is known as liquidation bankruptcy. Chapter 7 of the bankruptcy code is meant for people who have limited income who cannot pay off debts. Chapter 7 states that your property will be sold to pay off some of your debts.

Chapter 13, also known as Reorganization Bankruptcy, helps individuals to have a plan to repay off all their debt. Debtors will propose a repayment plan to the creditors to make installments over five years. During this time, the creditors are not permitted to start or continue making the collection.

Does Bankruptcy Stop an Eviction?

In California, filing for bankruptcy can stop a landlord from evicting a tenant. If a tenant files for bankruptcy when an eviction suit is in court, the tenant is entitled to an automatic stay. An eviction proceeding begins when a landlord files for an eviction suit against a tenant. An automatic stay is imposed against the landlord to stop the landlord from evicting the tenant.

If the tenant files for bankruptcy before the landlord files for an eviction suit, the automatic stay will prevent the landlord from filing the action altogether.

The Process of Filing for Bankruptcy?

The following steps are necessary for an efficient bankruptcy filing process:

  1. Gather the necessary documents. The documents include:
  2. Six months of income verification
  3. Creditor information, you will need to know all the creditors you owe money
  4. Assets information - provide all the information of all the assets that you have, including insurance, bank accounts, etc.
  5. Filed tax returns for the last two years.
  6. Complete a credit counseling class- Before filing a bankruptcy case, you must first complete 1.5 hours of a credit counseling class
  7. Complete petition and schedules- you have to complete a request and schedules and file them with the court. This should be in the area where you have lived for the last 180 days
  8. Provide the trustee with tax returns- Give the trustee your tax returns of the past two years
  9. Attend 341 hearing and bring proof of social security and identification- The trustee will ask questions with yes and no answers that you are obligated to answer
  10. Complete a debtor education class- Finally, you need to complete a debtor class and then file a B23 form with the court. The form shows that you completed the debtor class

Can a Landlord Evict Me Before Filing a Lawsuit?

The California law warns landlords against evicting tenants before filing a lawsuit in court. The law states that a landlord has no authority to evict a tenant without first filing a lawsuit.

Under the law, a landlord should not:

  • Remove a tenant from a rental property
  • Lock the tenant out
  • shut off electricity or other utilities
  • Change locks
  • Get rid of the tenant’s personal belongings

What Happens in Court During the Hearing?

During the hearing of the unlawful detainer case, both the defendant and plaintiff will argue their case before the judge. Depending on the evidence, the court may rule in favor of the landlord, and the tenant would have to vacate the premises. If the judge finds the tenant to have a good defense, he or she will rule against the landlord, and the tenant would not have to vacate the premises.

An Automatic Stay?

An automatic stay goes into effect when a tenant files for chapter 7 and 13 bankruptcies. The automatic stay is meant to prevent the landlord from evicting a tenant from a rental property. Before filing for bankruptcy, you should know that there are exceptions to the automatic stay.

The automatic stay law also says that the filing of a bankruptcy case halts "the commencement or continuation . . . of a judicial, administrative, or any other action or proceeding against the debtor." A landlord must file an unlawful detainer before evicting a tenant.

According to residential eviction in California, a landlord must file an "unlawful detainer" in Superior Court.

Limitation to the Automatic Stay

A landlord may ignore the automatic stay and continue the eviction proceedings by taking a few options. For instance, a landlord may ask for relief from the automatic stay by proving to the court that they deserve such a relief.

If a landlord had obtained a judgment before the tenant filed for bankruptcy, the automatic stay would not prevent them from enforcing the judgment.

If the tenant destroyed the rental property or used illegal substances on the premise, then an automatic stay would not protect him/her.

If a tenant filed for bankruptcy in bad faith, the case would be thrown out.

Filing for bankruptcy may not always have the desired outcome, and even if the court does not dismiss the bankruptcy filing, an automatic stay would eventually end, and the eviction will still go on.

Laws Regarding Evicting a Tenant

Termination with a Cause

The law requires a landlord to give written notice to the tenant when he/she does not follow the rules of the rental property. The warning given depends on the cause of eviction, and include:

  • Three-Day Notice to Clear all the Rent Owed

             (Cal. Code of Civ. Proc. § 1161(2)). The landlord should give a tenant a three-day notice if he/she fails to pay rent when it's due and if not, then the landlord will file an unlawful detainer suit against the tenant.

  • Three-Day Unconditional Notice to Quit

If the unit’s occupant commits serious violations, the landlord should give the tenant a three-day unconditional quit notice. The notice will inform the tenant to move out of the property before the notice expires. If the tenant fails to comply with the notice, the landlord can then file an eviction lawsuit. 

The three-day unconditional notice is given when:

  1. The tenant has damaged the property
  2. The tenant has commissioned any trouble at the rental property
  3. The tenant infringes on the rental agreement by renting out a rental unit
  4. He/she has been involved in any criminal activity on the premises
  • Three-Day Notice to Cure

A tenant is given a three-day notice to cure when he/she violates a rental agreement. The three-day notice is meant to inform the tenant that he/she has three days to correct the violations made or face an eviction lawsuit.

Notice for Termination Without Cause

A landlord can also terminate the tenancy of a tenant without giving a cause. This happens in the following situations:

  • Month-to-Month Tenancy

In this agreement, the landlord must give the tenant a 30-day notice if he/she has lived in the property for less than a year and a 60-day notice for over a year of living. These notices are meant to inform the tenant that the tenancy will expire after the deadline of the stay.

  • Fixed Term Notice

In a fixed-term notice, a landlord cannot end the tenancy before the tenant completes his/her stay. If the lease requires a warning to be given, they can go ahead and give out notice. Otherwise, no notice is given.

When a tenant does not renew his/her yearlong tenancy after the end of the year, the landlord can give out a notice to move out.

What Happens After the Deadline of the Notice?

Once the notice period has expired, the landlord will file an unlawful detainer suit in a California Superior Court against the tenant. The court will then file a summons and complaint and serve it (physically given) to the tenant.

After being served with the summons and complaints, you must respond within five days from the day you were served, excluding court holidays.

If you fail to respond on time and in a legally recognized way, the court will grant the landlord a judgment of unlawful detainer, which is a determination by the judge of the landlord’s rights to the possession of the rental property.

You will then be asked to leave the premises by a sheriff who would have been given the right to remove you from the property.

Judgment of Possession

A judgment of possession means that a landlord has won the case against the tenant, and the eviction process that must be overseen by a sheriff can begin.

When a landlord gets a judgment of possession, the tenant will be asked to vacate the premises, and if he/she does not comply, the court will give the order to evict the tenant from the property. A court-appointed Sheriff will be the one to evict the tenant.

The Sheriff will then schedule a date for the eviction and inform the occupant of the premises. A written notice will be given to the tenant notifying him/her of the planned eviction, which will take place after 21 days as per the law.

One eviction notice would be delivered through the mail, the other by electronic print, and the third one will be attached to the tenant’s unit.

In California, unlawful detainer cases move very fast, so it does not take long for a landlord to get a judgment of possession. A tenant's response time is short. It all depends on how aggressive the landlord is.

What if the Tenant Pays the Rent Owed?

A tenant can prevent the eviction from happening if he/she pays the money owed, which comprises of the court’s costs and the money from the rent owed. The tenant should also reimburse the stipend if the court had authorized an eviction. He/she must also pay any accrued rent from the day the unlawful detainer suit was filed.

A tenant cannot stop an eviction by merely paying off all the rent or the court’s fees. For example, if a landlord sues a tenant for breaking the terms of the lease, an eviction cannot be stopped by merely paying money.

The eviction would still go on if the court granted the landlord a judgment in which he/she cannot accept payment from the tenant.

This particular judgment is entered based upon an agreement the tenant consented to:

  • Paying the money owed before the eviction is completed
  • Renounce the right to reclaim the property
  • Vacating the premises

How Else Can Tenants Stop an Eviction?

A tenant can also stop an eviction by getting a stay of the restitution, which prevents the landlord from acquiring back the property. The restitution is meant to put an ongoing eviction on hold.

A tenant can get the restitution by making an application to the court.

This states why the tenant should not be evicted from the property. The reasons are:

  • The tenant files a proposal in court to vacate a default judgment
  • The tenant files an action of an appeal
  • The tenant clears all the money owed
  • The landlord failed to give an eviction notice according to the law
  • The landlord agreed not to go ahead with the eviction
  • Someone else agreed to pay the money owed by the tenant

When a tenant files for a writ of stay, the court will schedule another court date in which the landlord would state why he does not approve the writ of restitution.

What will the Sheriff do on the Scheduled Eviction?

During the eviction, the landlord will hire someone to remake the padlocks of the tenant’s house to prevent him/her from gaining entry into the house without permission. This process will be supervised by the court-appointed Sheriff. If there are any belongings left behind by the tenant, the landlord will leave them in the house for seven days for the tenant to come and collect them. The tenant will be given two days to collect his/her belongings. The law also requires the landlord to inform the tenant of his/her rights during the eviction.

If the tenant does not come for his/her property after a week, the belongings will be considered abandoned, and therefore, the landlord can throw away the belongings in a designated dumping site.

Relief from Penalization of the Occupancy

A relief from the penalization of the occupancy means, though rare, the occupant must provide evidence to be allowed to continue living in the landlord’s property. Here are two things that the occupant must prove to the court to get relief from the penalization of the tenancy:

  • The tenant will face severe hardship if they get evicted
  • The tenant can clear all the money owed in the form of rent or that he/she will follow the rules of the rental property

Can a Landlord Appeal After Losing an Unlawful Detainer Case?

California law states that if a landlord loses an eviction case; he can appeal to the court's verdict if he believes the judge had mistakenly decided legal issues in the suit. A tenant can also appeal the case, but he/she will be required to move out of the premises before the hearing is done.

Unless the court grants relief from the forfeiture, it will be tough for the tenant to be allowed to stay in the premise. If the tenant can prove that eviction would lead to severe suffering or destitution, and the landlord would not suffer irreversible harm, the court can grant the tenant a request to stay.

Contact a San Diego Bankruptcy Lawyer Near Me

Facing an eviction can be stressful for you as a tenant. Getting a notice to vacate a unit that you have been calling home and the possibility of being homeless can make you file for bankruptcy to avoid eviction. Filing for bankruptcy can buy you time to save up money to pay the rent owed or to get things right in your life. Call the San Diego Bankruptcy Attorney at 619-488-6168 to guide you through this process so that you can make informed decisions.

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