How many days is ten days?
If you’ve been arrested for driving under the influence, the arresting officer will typically confiscate your license and issue you a temporary driving license that is valid for thirty days. Your temporary license must be kept with you whenever you drive. Just as importantly, the temporary license provides information about scheduling a DMV hearing to review whether or not your license was properly revoked. This proceeding is different from the court proceedings that have been instigated against you. First of all, it is an administrative proceeding not subject to the strict rules applicable in court.
If you do not immediately hire a lawyer, or if you just can’t make up your mind whether your case warrants legal representation, you must nonetheless act regarding your DMV hearing. The temporary license says that you must schedule a hearing with the DMV within ten days of the issue date of the order, which will be the detention/arrest date written on the top of the form. If you miss the deadline to schedule a hearing to contest the suspension of your license, then you lose and the DMV will suspend your license for the statutory period of time.
It’s crucial to get this taken care of immediately, preferably through your attorney. If you’re handling your own case, or if you’ve waited until the last minute, schedule the hearing yourself. If you’ve really waited until the last minute, it can crucial to figure out how many days are ten days? Does it include the day the order was issued? or does the clock start ticking on the day following the issue of the order? The language on the form isn’t clear; it just says “within ten days from the issue date of this order.”
Although I’ve spoken with DMV staff who have told me that the ten days don’t begin counting until the day after the issue date, your best bet is not to wait that long, and for purposes of calculation to include the date that the order was issued. Better safe than sorry.
Setting aside a default judgment
Landlords will often file a lawsuit against a tenant and then fail to properly serve the tenant with the lawsuit. Some eviction mills either intentionally fail to serve the tenant, or they use dishonest process servers who lie about having properly completed service of process. Serving the tenant with the lawsuit is of course a key step in the legal justice system, because a defendant cannot defend against a lawsuit of which he is unaware. By not serving the tenant and filing a false declaration of service, the landlord can speed up the eviction process, reduce his costs, and get a judgment for possession and for costs.
In California, the laws governing how a defendant must be served are quite detailed. The failure of a landlord to properly serve a tenant with the eviction lawsuit can be grounds for getting the judgment set aside. Although it’s a common practice, simply leaving a copy of the summons and complaint on your doorstep does not meet the requirements for proper service unless a judicial order to post has been applied for and granted by the court.
Many tenants find out they have had a judgment rendered against them without having ever been served a copy of the lawsuit. It is possible to have the judgment set aside in certain situations. This process is called filing a motion to set aside default, and is usually done in an ex parte proceeding. Ex parte means that you are requesting that the court immediately consider your request without providing the other side the statutorily required time period for preparing a response to your motion. There are detailed requirements for how you prepare and file an ex parte motion, and such motions generally require a filing fee in the neighborhood of $40.00. You must fax or have delivered a copy of the ex parte notice and the moving papers to the your landlord’s attorney at least 24 hours before the hearing. You must prepare your motion to set aside the default on 28-line pleading paper with the appropriate caption showing who is representing you, the name of the court, the name of the case, the case number, and the other information required by the court.
The key difficulty with a motion to set aside a default, and the reason that landlords so willingly break the law regarding proper service of process, is that in order to get a default set aside you must allege that you were improperly served–easy enough to do–but you must also show that you have a meritorious defense that has a possibility of prevailing. Tenants who simply want to set aside the default so they can restart the the legal process to buy a few more days or weeks will not be able to meet this burden, as the judge in the ex parte hearing will closely examine you regarding your defenses. If they do not fall into one of the legal defenses to an unlawful detainer action, the court will reason that there’s no sense in restarting the process and wasting judicial time and resources just to have you come to trial and propose a losing argument.
If you do have a legitimate defense, however, California courts are usually liberal when it comes to setting aside the default, as they strongly prefer that a defendant be given his day in court.
日本語が出来る弁護士に相談する利点
アメリカに住んでいる多くの日本人が、法律に直面した時困ってしまうことが多いのではないでしょうか？法という壁以外に、言葉の壁にもぶつかるからです。この言葉の壁が、弁護士を探す時、弁護士に相談をする時、または良い問題解決へのネックになってしまうのです。日本語を話す私は、コミュニケーションがいかに大切であることを良く分かっているカリフォルニア弁護士です。1987年からアメリカと日本を行き来してきました。長期では、約9年の日本滞在経験があり、日本人、日本文化というものを熟知しております。家族内での問題や、自己破産、飲酒運転、事故、不動産関係、またはその他の法的問題がありましたら、直接私に日本語でご相談下さい。 電話：310-371-2500（事務所）、 424-241-8118（携帯） 電子メールでも日本語で承ります。メールアドレス：seth@sethdavidsonlaw.com いつでもご遠慮なくご連絡下さい。年中無休、24時間体制で承っております。
Cash for keys
If you’re a tenant or former owner facing an unlawful detainer, and you’ve simultaneously been offered a cash for keys exchange, pay close attention to the deal you negotiate with the broker who’s offering the cash for keys. First, the cash for keys offer and agreement will not stop the unlawful detainer if it has already been filed against you, and will almost always specifically reserve the right to proceed with the unlawful detainer and judgment against you. This probably seems counter-intuitive, since if you’ve agreed to vacate for cash, it doesn’t make sense that the bank or new owner of the property would continue their lawsuit.
However, since there is a risk that you will remain in the residence beyond the agreed-upon move out date, the lawsuit is maintained as insurance in the event of failure to vacate. If you fail to move out, rather than starting the unlawful detainer over from scratch, the bank can just move ahead with the existing lawsuit and avoid having to pay its attorneys to get another unlawful detainer filed and served.
To adequately protect yourself, make sure that you also execute an agreement that is signed by the law firm suing you in the unlawful detainer action. That agreement, separate from the cash for keys agreement, should explicitly agree to either dismiss the unlawful detainer in the event you move out as promised, or agree to vacate the judgment against you if you move out on time. Dismissal is preferable, but is usually harder to get the evicting law firm to agree to. In any event, an agreement to have the judgment vacated will make sure that you don’t have an unlawful detainer judgment on your record, which could affect you the next time you try to rent a place to live.
Eviction law firms are notorious for refusing to respond to phone calls from defendant tenants, although even the worst ones will quickly discuss your case if an attorney is calling on your behalf. If you can’t get the other side to talk with you, and you can’t afford to hire an attorney to take on your entire case, consider calling around to find a lawyer who, for a modest fee, will at least call the other side and get the paperwork moving.
カリフォルニア在住日本人のための法律マメ知識
セス デイヴィッドソン法律事務所
電話でも電子メールでも、日本で直接私がご相談を承りますので、安心してご相談下さい。幅広いご相談を承っております。緊急時には、深夜、週末でも携帯にご連絡頂いてOKです。
電話：３１０－３７１－２５００
携帯：４２４－２４１－８１１８
ファックス：２１３－４０２－３０４９
自己破産、飲酒運転、交通事故、大家さんとのトラブル、離婚でお困りの方、是非お気軽にご相談下さい。
カリフォルニアで快適な生活を送るための法律マメ知識
１．飲酒運転は基本的にダメ。眠くなったからといって、たとえ飲酒していなくても、路上駐車をして仮眠をとるのは警察に疑われる格好の理由。必ずしも正直 な警察官ばかりじゃないことを常に念頭において下さいね。英語が苦手なことを理由に、虚実を書かれて逮捕なんてこともありますよ。
２．大切な書類を送る時は、必ずCertified Mailにして下さい。相手が必ず受領したという証拠がないと、泣き寝入りになることもありますよ。
３．治安の悪い所を夜間運転していると、その地域に住んでる様でない人は、警察官に職務質問されることがありますので、なるべく避けるべし。ドラッグや売春婦を求めてると疑われるからです。
４．警察に連れて行かれたら、まず弁護士をリクエストすること。
５．分からない書類には、絶対サインをしないこと。
６．大家さんとトラブっても、必ず家賃は契約通り納めること。収めないことが、裁判の時痛手となります。
Tenants are protected from eviction due to foreclosure
California protects tenants in two important ways from summary evictions when their landlord loses title to the property through a foreclosure sale. The first protection requires the new owner to give you 60 days’ notice. You cannot be evicted based on a simple 3-day notice to quit. The requirements of the notice are outlined here. The relevant state statutes are CCP § 1161a, CCP § 1161b, and CCP § 1162.
Effective May 20, 2009, the California law has been superseded by Title VII of President Obama’s Helping Families Save Their Homes Act of 2009, “Protecting Tenants at Foreclosure Act.” This new law requires a new owner to give bona fide tenants 90 days’ notice to quit the premises prior to suing to evict. The law applies to foreclosure proceedings that began prior to May 20, 2009, but you should consult an attorney if the foreclosure occurred before that date and you are being evicted.
Prejudgment claim of right to possession
The wave of residential home foreclosures has impacted tenants as well as borrowers. In many cases, the borrower has rented out his home to try and bring in sufficient income to stay abreast of the note. When the borrower is no longer able to keep afloat, the lender forecloses and sells the home at a trustee sale. The new owner then sues the borrower in unlawful detainer, seeking to evict him from the property. In such a case, the borrower is entitled to only three days’ stay after being notified by the new owner of intent to evict. The borrower often stays in the home past the three days, and then becomes the defendant in an eviction lawsuit.
However, if the home is occupied by a renter, the tenant is entitled to stay in the home for ninety days after being informed by the new owner of intent to evict. During that time, the tenant must of course continue to pay rent to the new owner. Aware that many tenants don’t know about this 90-day reprieve, many landlords simply serve the tenant with a 3-day notice and proceed with an eviction. The tenant, if named in the unlawful detainer lawsuit, can and should respond within the 5-day period and assert his right to remain for 90 days.
Other times, the new owner has no idea that the home is occupied by a tenant, so he serves the 3-day notice thinking the house is occupied by the borrower, and then follows it up with an unlawful detainer after the 3-day period expires. The tenant usually gets served with the lawsuit and the 3-day notice, not the former owner of the house. If you’re in this situation, check the summons and complaint carefully to see if it specifically names you in the complaint. If it does not, check to see if the lawsuit names “DOES 1-5″ or “DOES 1-10.”
These “John Does” are fictitious names that allow the new owner to evict both the former owner and any tenant or unnamed occupant who resides in the home. A tenant not named specifically in the complaint, who is in fact a “DOE,” should immediately file a prejudgment claim of right to possession. This document is required by law to be served with the lawsuit, and it allows you to substitute your true name into the complaint and then formally respond to the eviction. This requires you to pay the filing fee, about $340, but it also protects you from early eviction and allows you to assert your 90-day tenant defense. You only have ten days from the time you are served with the lawsuit as a “DOE” to file the prejudgment claim. Each person over the age of 18 not named in the complaint must file a separate prejudgment claim and pay a separate filing fee. The answer to the complaint should be filed concurrently with the prejudgment claim, although legally you have five days from the date of filing the prejudgment claim to file your answer to the complaint.
Once the opposing counsel receives your answer he may ask you to fax him a copy of your lease agreement and a copy of your last one or two canceled rent checks to prove that you are in fact a tenant. Even if you have simply an oral agreement with the previous owner, you can still assert your 90-day tenant defense, although opposing counsel may be harder to deal with. In any event, when you get the summons and complaint, take action immediately, either by consulting a lawyer, going to a self help center at the courthouse, or calling a tenant defense/legal aid organization.
Community Lawyers, Inc.
This article by my colleague and friend Luz Herrera is a great snapshop of providing legal services for people in underserved communities.
Can I file and handle my own bankruptcy case?
In many cases, absolutely. Bankruptcy is not magical, mystical, or necessarily any more complicated than any other area of law. Thousands of people file their own consumer bankruptcies every year under Chapter 7 and Chapter 13, and successfully complete the process all the way to discharge. The U.S. Department of Justice provides extensive information about how to proceed with your own filing at their web site.
I’ve listed some of the qualities that are a factor in successfully filing your own bankruptcy petition:
–You have a fair amount of free time
–You enjoy reading and learning new things
–You are detail oriented
–You stick to deadlines
–You’re good at following instructions
–You have regular access to the Internet
–You have access to a community legal center, legal aid, or self-help legal services
–You’re good with numbers
–You’re patient
–You don’t mind standing in lines or waiting until your name is called
–You don’t mind having to do things over until they’re done correctly
–You live fairly close to the bankruptcy court
Of course you needn’t have all of these qualities. In fact, I’ve watched people muddle their way through the bankruptcy process, making a mess of things in general but ultimately getting their discharge. It can take a lot of time if you make mistakes, but it can save you a lot of money if you do it yourself and do it properly.
The more complex your financial situation, the more difficulty you’ll have doing it yourself, but with sufficient time, research, and practice, many people have achieved all of their bankruptcy goals, and learned about a very specialized subset of law in the process. The bankruptcy court covering much of Southern California, the “Central District,” has a section on its website dedicated to the Debtor Assistance Project. In addition to resources and information, it provides a sound starting point for handling your own bankruptcy case.
A number of companies publish excellent, low cost manuals on the bankruptcy process. Nolo publishes an excellent DIY bankruptcy manual, and they also publish a bankruptcy blog that covers numerous timely and important issues that are helpful to people doing it on their own. Even if you ultimately decide to hire a lawyer to help you with your bankruptcy, reading these materials will greatly expedite the process and will help you select a good attorney. In short, knowledge is power.
How much does bankruptcy cost?
Chapter 7: Estimated total fees $2,054.00
$299.00–mandatory fee for filing the petition with the bankruptcy court
$30.00–mandatory fee for the credit counseling course you are required to take before filing your petition. The U.S. Department of Justice maintains a list of approved credit counseling services for California debtors here.
$1,700.00–legal fee for my office to conduct the interview, review your financial documents, analyze your financial status, prepare your petition and bankruptcy schedules, file all of your documents with the court, provide counseling prior to your 341 meeting of creditors, and attend the meeting of creditors with you.
$25.00–mandatory fee for financial management course that the court requires you to take prior to granting a discharge.
Chapter 7 legal fees must be paid prior to filing.
Chapter 13: Estimated total fees $3604.00
$274.00–mandatory fee for filing the petition with the bankruptcy court
$30.00–mandatory fee for the credit counseling course you are required to take before filing your petition. The U.S. Department of Justice maintains a list of approved credit counseling services for California debtors here.
$3,300.00–legal fee for my office to conduct the interview, review your financial documents, analyze your financial status, prepare your petition and bankruptcy schedules, prepare and develop your repayment plan, file all of your documents with the court, provide counseling prior to your 341 meeting of creditors, attend the meeting of creditors with you, provide counseling prior to your confirmation hearing, attend the plan confirmation hearing with you.
$25.00–mandatory fee for financial management course that the court requires you to take prior to granting a discharge.
Chapter 13 legal fees may be paid in installments.
