FAQs

What’s the first step in a police misconduct/civil rights case?

By mttvns on February 19, 2012

As with any important matter, it is critical that you document everything: names of individuals involved, names of the public entity or agency involved (such as City of Los Angeles, or City of Los Angeles Police Department), names and contact information of as many witnesses as you know, dates, times, location of the incident, what was said and done, and your injuries and/or economic/property losses. If possible, take pictures, audio recordings, or video recordings of events in public places.

The next step is to seek immediate medical care if you really need it. Don’t wait for a lawyer referral. People who wait days, weeks or months to get medical care only after they see a lawyer lack credibility with judges and juries.

Within 6 months of the date of the incident, you must file a claim for damages with the applicable public entity in order to be able to file a lawsuit against a public entity in state court. If your incident involves a police department, filing a complaint against the individual officer does not satisfy this requirement — it’s a good idea, but you must also file a separate claim directly with the public entity that controls the agency. For example, claims for damages against LAPD are filed with the City of Los Angeles.

Claims for damages can be filed on your behalf by a lawyer. It’s best to hire a lawyer to do this for you to make sure the claim is filled out correctly on the right form and filed at the right place on time.

Posted in Police Misconduct/Civil Rights

Will a chapter 7 bankruptcy save my home from foreclosure?

By mttvns on January 24, 2012

If you are current on your mortgage payments and can stay current on your mortgage payments, then yes. Or, if you’re in default but can pay the past due mortgage payments not later than 5 days before the foreclosure, then yes. But if that’s the case, a chapter 7 shouldn’t be necessary to save your home from foreclosure.

If you’re past due on your mortgage and can’t afford to pay the arrears all at once, then you may need to look at a chapter 13. In a chapter 13, you can pay the past due amounts over time in the chapter 13 plan.

The problem with a chapter 13 case is that it’s often difficult to come up with a chapter 13 plan that’s feasible, i.e., one that pays enough to creditors while still leaving you enough to live on for 3-5 years. Also, you should be aware that most chapter 13 cases fail for one reason or another, such as the debtor’s default on plan payments, claims filed by creditors that the debtor didn’t tell his or her lawyer about and therefore weren’t taken into consideration, which render the plan infeasible, or a change in the debtor’s income (usually a drastic, sudden decrease).

Posted in Bankruptcy

What is the chapter 7 bankruptcy process and how long does it take?

By mttvns on January 23, 2012

The first step is to contact me for a free consultation to see if you need to file bankruptcy and, if so, if you’re eligible for chapter 7. Eligibility for chapter 7 is determined by the means test, which compares your total average gross household income for the last 6 months. To do that, I will need pay stubs or, if they’re not available, accounting records and/or bank statements. If your income is higher than the state median, then I look for certain allowable deductions from income to see if your adjusted income is lower than the state median. If it is, then you can file chapter 7. If not, I will evaluate your eligibility for chapter 13 or 11. However, if your debts are primarily business debts (or, more accurately, they are not primarily consumer debts), then you don’t need to worry about the means test regardless of how high your income is.

Once/if I’ve determined you can file chapter 7, I will give you the logon information and password for a secure website that will ask you to enter detailed information about your financial situation, such as what your assets and liabilities are, property transfers, gifts, etc. When that’s been completed I will download your information into my bankruptcy software and begin preparing and reviewing your bankruptcy petition and schedules.

While I’m doing that, you need to take an online debt counseling course from a list of approved agencies. When you’re done with that course, you will be issued a certificate of completion from the agency that you need to forward to me because it has to be included with the paperwork you file in your bankruptcy case.

Once I have created your petition and schedules you will review them carefully and initial the bottom of each page that you believe is correct. You will let me know of any pages that need corrections of any kind, after which I will correct them and resubmit them to you for your approval and initials. Once all the pages have been initialed by you, I will file them with the bankruptcy court online.

Within 7 days after filing the case I must send your tax returns for the last 2 years to the trustee.

At the time the case is filed, we will find out two important things: 1, who the trustee is; and 2, when the meeting of creditors will be.

The trustee is a randomly appointed official who will review your eligibility to file chapter 7, and check your petition and schedules for completeness. The trustee’s job is to look for assets to sell for profit and then distribute the profit on a pro rata basis to your creditors. The trustee’s power to do so is limited by the exemption system, which permits you to claim certain cash values for each asset. If the trustee sells an asset, you must be paid that cash value and the remainder goes to the creditors. However, a liquidation of assets rarely, rarely happens either because the exemptions usually claim the majority of the value of the asset, or the cash that would go to creditors would be so minimal that it wouldn’t be worth the time, effort and expense for the trustee to liquidate it.

The meeting of creditors is a public meeting at creditors can, but rarely, if ever, show up. It takes about 5-10 minutes and consists of a recorded oral interview of you by the trustee. The trustee will ask you all of the same questions that I will have asked you by that time: are your schedules complete, are there any mistakes of which you are aware, did you list all of your assets, liabilities, and income, have you sold, bought or otherwise transferred any significant assets in the last 2 years, do you expect a large tax refund this year, do you expect a significant change in your income in the near future, etc.? Your answers will be under oath and subject to the penalty of perjury under federal law. I will be present with you at the interview. Most meetings of creditors are completed painlessly and without a hitch. There are no trick questions and, unless you’ve lied to me or the trustee, there won’t be any problems. You must take your social security card or passport and driver’s license to the meeting of creditors.

After the meeting of creditors, you must take another financial counseling course, which you will most likely be able to take from the same agency from which you took your pre-filing course. The agency will issue you another certificate of completion which you must forward to me.

The next step is to simply wait….and wait, and wait. After the meeting of creditors, the court will enter an order discharging your debts. A discharge of debts means your creditors of unsecured debts cannot ever attempt to collect, in or out of court, those debts again. About a month or so later, the court will enter an order closing your case.

The entire process takes about 9-12 months once your case has been filed. How soon I can file the case to begin with depends on how quickly you complete the online questionnaire and provide any documents that I request. Slow or incomplete responses by you will make the pre-filing planning stage take longer.

Posted in Bankruptcy

Will filing bankruptcy delay my eviction?

By mttvns on January 21, 2012

Maybe, but it depends on when the bankruptcy is filed in relation to the progress of the eviction case.

When a bankruptcy is filed, an automatic court ordered prohibition against many types of debt collection activities. That prohibition is called the automatic stay. The automatic stay comes into effect regardless of the chapter of bankruptcy you file (for example, chapter 7, chapter 11, or chapter 13), subject to the following exceptions (among others).

A bankruptcy will delay an eviction of a tenant with a lease if the bankruptcy is filed before the eviction/unlawful detainer court/judge files an order granting possession in favor of the landlord. In residential lease evictions, the automatic stay does not apply if the bankruptcy case is filed after the eviction court enters judgment for the landlord.

There is no exception to the automatic stay for post foreclosure evictions. This means if you’re being evicted after a foreclosure and you file bankruptcy, the automatic will delay your eviction regardless of whether the eviction judge has entered judgment for possession in favor of the eviction plaintiff (property owner).

Posted in Bankruptcy, Information for Tenants

Where can I learn about tenants’ rights?

By mttvns on January 21, 2012

Besides the information on this blog, a good source is the California Tenants’ Handbook, a free publication by the California Department of Consumer Affairs. You can get a copy of the handbook from the DCA’s website here.

However, there is no substitute for a consultation with a tenants’ rights lawyer who can review your particular situation and give you customized advice. Feel free to contact me for a consultation through the contact form, email me at matthew@matthewgaryevanslaw.com, or call me at 1-800-417-0938.

Posted in Information for Tenants

What happens when a tenant files bankruptcy?

By mttvns on January 16, 2012

When a tenant files bankruptcy, a court imposed prohibition against all debt collection activities, including for rent, comes into effect automatically. That court injunction is called the bankruptcy automatic stay, or more commonly the automatic stay.

If the tenant is current on the rent, then he must keep paying the rent during bankruptcy. Filing a bankruptcy cannot ever be deemed a reason for the landlord to terminate the lease. It can however be used as a reason to decline to renew the lease or to offer a lease to a prospective tenant in the first place.

If he defaults on his rent during bankruptcy, then the landlord must file a motion for relief from stay in the bankruptcy court. If (when) the motion is granted, the landlord can then begin the collection process (contacting the borrower to ask for the rent, issuing a 3 day notice to pay or quit, filing an unlawful detainer (eviction) suit). However, the landlord can only collect on rent that comes due after the bankruptcy was filed, because all the rent that was past due before the tenant filed bankruptcy is discharged, i.e., wiped out, and cannot ever be collected unless the tenant voluntarily agrees to pay it.

If the landlord has already begun the eviction process and the tenant files bankruptcy, then all proceedings in the unlawful detainer case must cease and cannot resume until the landlord obtains an order in the bankruptcy court granting relief from stay.

There is one big exception to the automatic stay: if the landlord had already begun the eviction case against a tenant for nonpayment of rent and the eviction court had already entered judgment for possession in the landlord’s favor and then the tenant files bankruptcy, then the automatic stay doesn’t apply and the landlord can proceed with getting the writ of possession, delivering it to the Sheriff, and the Sheriff can do the lockout (enforce the writ of possession).

Posted in Bankruptcy, Information for Foreclosure Purchasers, Information for Landlords and Property Managers

Is a notice to quit required under all circumstances before an unlawful detainer action is initiated?

By mttvns on January 15, 2012

No, there are exceptions to the notice to quit requirement. No notice is required if the tenant remains after the expiration of a fixed term lease, or if the housing was provided to an employee as part of his compensation.

For example, no notice is required if the lease specified it was for a definite period of time that would not be renewed. Another example is if the tenant was the property owner’s caretaker and the owner let the caretaker live at the property as part of the caretaker’s compensation. The employee doesn’t have to be a caretaker, he can also be a babysitter, cook, property manager, clerical worker, etc.

Posted in Information for Landlords and Property Managers, Notices to Quit

What’s the fastest way of getting possession of my property once the occupant defaults in the unlawful detainer case?

By mttvns on January 14, 2012

To expedite possession in the event of default, file proofs of service for all named occupants, and another proof of service for “unknown occupants,” a request for entry of default and clerk’s judgment for possession only, unlawful detainer judgment, and writ of possession at the same time. Los Angeles County also requires an application for writ of possession. Include the fee for the writ of possession ($25) and a self-addressed, stamped envelope for the clerk to return the entry of default, judgment, and writ of possession to you.

Once possession has been restored, you can then request a court judgment for money damages including holdover damages (daily fair market rental value) through the date the Sheriff actually did the lockout, then get a writ of execution for the money judgment, and begin the process of enforcing the money judgment…..assuming, of course, you know where to find the debtor and his/her assets, if there are any, and he/she hasn’t filed bankruptcy at that point.

Posted in Information for Foreclosure Purchasers, Information for Landlords and Property Managers, Unlawful detainer default procedures

Should I rent to a tenant who has filed bankruptcy in the past?

By mttvns on January 12, 2012

That depends on when and under what chapter the bankruptcy was filed.

A debtor who has obtained a chapter 7 discharge of debts within the last 8 years may not obtain another discharge of debts in a chapter 7 or 11 case, or a chapter 13 case if he filed the previous chapter 7 case 6 years in the past in most circumstances. A discharge of debts means the unsecured debts are wiped out. That doesn’t mean a debtor can’t file a chapter 7 case until the end of 8 years, it means he can’t get a discharge of debts, which is the whole point of filing a chapter 7 case, so he probably won’t want to file before the end of the 8 years.

So if the prospective tenant filed a chapter 7 case in the last 8 or 6 years and the 8 year or 6 year period won’t end before the end of the lease term, then it doesn’t make sense to decline to rent to him, because he won’t have any incentive to file a new case before the end of the 8 or 6 year period (because he can’t get a discharge of debts, which is the whole point of filing bankruptcy).

If the prospective tenant filed a chapter 7 case in the last 8 or 6 years, and the end of the 8 or 6 year period will end before the end of the lease, then look at his credit report (which you should be doing in any event) to see how much unsecured debt he has, how close his credit balances are to the credit limits, and what his overall credit score is. If he has accrued a lot of unsecured debt since he filed his last case, his balances are almost to the limits, and his credit score is below 600, then don’t rent to him. On the other hand, if his balances are low and his credit score is decent, chances are it’s safe to rent to him.

A blind policy of refusing to rent to anyone who has ever filed bankruptcy needlessly creates a tight housing market for the community and denies you income from perfectly good tenants.

Posted in Information for Landlords and Property Managers, Tenant screening

Can I serve a 3 day notice to quit for incurable breach on a tenant who threw a loud party?

By mttvns on January 11, 2012

You can evict a tenant after serving a 3 day notice to quit incurable breach after any type of conduct amounting to a nuisance. A nuisance is any conduct that is offensive to the senses or that interferes with another tenant’s enjoyment of his unit.

However, most nuisance activity is actually curable, particularly if the conduct you’re basing the 3 day notice to quit for incurable breach/nuisance was an isolated event.

Basing a 3 day notice to quit for incurable breach based nuisance conduct that only happened once without first giving the tenant a written warning is risky because the judge might not think that a one-time nuisance is worth forfeiting the lease.

The better approach is to give a written warning to the tenant, and to keep a copy or other log of the notice. Then if the nuisance conduct happens again you have a better chance of convincing the judge that the nuisance really is incurable.