California Eviction Process - Part 3: Property Is Occupied by a Borrower

Evicting Borrowers in CaliforniaThis is part 3 of our four part series entitled “California Eviction Process”. I will discuss the eviction process when the home is occupied by the homeowner, or borrower. These are the second and third of 5 possible outcomes when evicting a tenant in California.

Outcomes #2 and #3 – Property is Occupied by a Borrower (the previous owner of the home, AFTER the foreclosure is complete)

There are 2 possible outcomes for evicting the previous owner of a home after a foreclosure. The first approximately 25 days are the same, then they can differ, based upon if the occupant files an answer to your legal complaint or not.

Here is the process up until the answer, this is the same for both.

Day 1: Referral is received from client.

 Day 1 or Day 2:  Email is sent to the client requesting a copy of the Trustee’s Deed Upon Sale (“TDUS”).  It usually takes 3-4 days to receive a copy of TDUS from client.  A copy of the TDUS is required prior to preparation of the appropriate notice to ensure that the parties’ names are spelled correctly.  If a notice contains the wrong name of either party, then the notice and any subsequent document filed with the wrong name is defective and the case must be restarted.

 Day 5: For borrower occupied property, a 3 Day Notice to Quit as required by Code of Civil Procedure (“CCP”) § 1161a(b)(3) is prepared for the attorney’s review.

 Day 5 or Day 6:  The Notice is reviewed by the attorney and the notice is sent to the Process Server to be served.

 Days 7-9:  Depending on the location of the property and its proximity to the process server’s office, the 3 day notice is served.  If the Notice is personally served, the occupants are given 3 days.  However, if the notice is served by posting and mailing, the occupants are given an additional 5 days, for a total of 8 days.  Most 3day notices are served by posting and mailing because the occupants are either not home or evading service.

Day 17:  If the property continues to be occupied, a complaint is prepared for the attorney’s review.

Day 17 or Day 18:  The complaint is reviewed by the attorney and sent to the process server.

 Days 19-24:  Depending on the location of the property and its proximity to the process server’s office, the Summons and Complaint are served.  If the complaint is personally served, the occupant is given 5 days to answer  (CCP 415.10) and the “All Unnamed Occupants” have 10 days to file a prejudment claim (CCP 415.46).  If the complaint is sub-served, the occupant has 15 days to answer (CCP 415.20).

 

Here is where the occupant can file an answer or not.  Here is what happens if they DO NOT file an answer:

Days 32-35:  Depending on the manner of service, if no answer has been filed, then a Default package is prepared for the attorney’s review.

Days 35-36:  The Default package is reviewed by the attorney and sent to the process server.

 Days 36-37:  The Default package is submitted to the court.  Depending on the court, it will take about 7-10 days to get the Default entered and the Writ issued.

Days 43-47:  The Writ is sent to the Sheriff.  Depending on the Sheriff it will take between 7-10 days to have the Writ posted.

Days 50-55:  A 5 day notice to vacate is posted by the Sheriff.  The Sheriff will typically conduct the lockout of the property on the 6th or 7th day following the posting of the notice to vacate.

Days 56-61:  A lockout of the property will be conducted by the Sheriff and the property is vacant and secured by the client.

It takes approximately 60 days to evict a former borrower who DOES NOT file an answer to your legal complaint.

In this scenario, these time frames are approximate.  Times can vary dramatically in different locations and if the exact legal process is not followed.  Consult an attorney before doing anything to evict a tenant.

 

Here is what happens if they DO file an answer:

Days 25-30:  A copy of the Answer is received or a call is made to the court to inquire as to whether an Answer has been filed.  Upon determination that an answer is filed, a Memo to Set Trial is prepared for the attorney’s review.

 Days 30-31:  The attorney reviews the Memo to Set Trial and it is sent to the process server.

 Days 32-35:  The Memo to Set Trial is filed at the court.  The court is required to set a trial date within 21 days of the filing.

Days 53-56:  A trial is conducted and judgment for possession in favor of client is entered.

Days 54-55:  A Writ package is prepared for the attorney’s review.

Day 56 or 57:  The Writ package is reviewed by the attorney and sent to the process server.

 Days 58-59:  The writ is submitted to the court.  Depending on the court, it will take about 7-10 days to get the Writ issued.

Days 66-69:  The Writ is sent to the Sheriff.  Depending on the Sheriff it will take between 7-10 days to have the Writ posted.

Days 63-66:  A 5 day notice to vacate is posted by the Sheriff.  The Sheriff will typically conduct the lockout of the property on the 6th or 7th day following the posting of the notice to vacate.

Days 70-73:  A lockout of the property will be conducted by the Sheriff and the property is vacant and secured by the client.

It takes approximately 70 days to evict a former borrower who DOES file an answer to your legal complaint.

In this scenario, these time frames are approximate.  Times can vary dramatically in different locations and if the exact legal process is not followed.  Consult an attorney before doing anything to evict a tenant.

Read the whole series on eviction:

***CAPropertyFinder.com is not affiliated with any law firms, we are not lawyers. Always consult an attorney prior to attempting to evict an occupant. Landlords and Occupants have rights, consult an attorney to ensure proper protocol is followed, laws are observed and no rights are infringed upon.***
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