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Barrister
Barrister, Lawyer
Category: Real Estate Law
Satisfied Customers: 21282
Experience:  13 years real estate, Realtor. Landlord 24+ years
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i live in a house that my brother abandoned 2 yrs ago , i just

Customer Question

i live in a house that my brother abandoned 2 yrs ago , i just found out the house is in my fathers name and the loan is in brothers name, which is in default , today i was served with an unlawful detainer from him , i know you 5 days to respond the court stamp is 6 14 13 today is the 19th , so he serves me on my 5th day , he thinks he's slick, now what i go to the court tomorrow and try to tell them how he trying to screw me over on these dates,
Submitted: 10 months ago.
Category: Real Estate Law
Expert:  Barrister replied 10 months ago.
Hello and thank you for using JA! My goal is to provide you with excellent service and help with your legal problem.
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How were you served with the unlawful detainer complaint? By the sheriff or constable?
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Does the UD complaint state that you have court tomorrow?
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Is the deed actually in father's name?
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Why is he trying to evict you if the house is moving towards foreclosure?
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Thanks
Barrister
Customer: replied 10 months ago.

brother trying to pull a fast one on me. he served me today late on my 5th day. my brother is being indicted at another court 7 felonys for crooked business dealing

Expert:  Barrister replied 10 months ago.
Ok, first off, he can't serve you personally. He would have to have a sheriff, constable, or process server serve you with the UD action.
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Second, he can't even maintain an action to evict you if he doesn't have any legal ownership of the house or a POA from father to act to evict you.
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Third, you are correct, you are allowed 5 days from the date you are legally served with the UD action to respond to it. So even if it was a legal service and brother was an owner, they still can't proceed because you didn't get your 5 days to respond.
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So whatever the court date is on the UD complaint, you would need to show up and point out these three things and the judge will throw out the case.
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Thanks.

Barrister

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If you need further help, just reply to me via the “REPLY” button and I will be happy to continue.

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I cannot enter into an attorney client relationship, this is a public forum, and all posts are available for public viewing. There is no duty of confidentiality that attaches to any posts. The information provided is not a substitute for a local attorney’s legal advice.

Customer: replied 10 months ago.

im sorry he didnt serve me personally , a server did it, why wouldnt he beware on the late date, he's trying to default me , were do i go now down to the court, and tell someone

Expert:  Barrister replied 10 months ago.
Ok, if a process server served you, then you still have 5 days to respond. The process server has to fill out an "affidavit of service" swearing as to the day you were served.
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At this point, if the court date is less than 5 days away, you can take a copy of the complaint down to the clerks and tell them you never got your 5 days to respond.
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But don't confuse the date the UD complaint was issued and stamped by the clerks as starting your clock to respond. Your 5 days to respond doesn't start until the day after you are served. So the date the clerk stamps it is not relevant. It could be stamped a week or two weeks before if they were having trouble serving you. It only matters if the court date is less than 5 days after you were served.
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Thanks.

Barrister

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If you need further help, just reply to me via the “REPLY” button and I will be happy to continue.

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I cannot enter into an attorney client relationship, this is a public forum, and all posts are available for public viewing. There is no duty of confidentiality that attaches to any posts. The information provided is not a substitute for a local attorney’s legal advice.

Customer: replied 10 months ago.

there is no date of service date , just the stamp jun 14, my brothers girl friend works at the paralegal office , and shes a loud mouth liar, im concerned about being really screwed over , there are lies going on here, on the papers it they substituted service on apr 11 to my wife but that never happened , this is the date i was given a 60 notice from brother, there trying to say here thats the date of service, nothing about today being served.

Customer: replied 10 months ago.

soif i go to the clerks office , will they straighten out any wrong doing??

Expert:  Barrister replied 10 months ago.
There won't be a date of service on the UD complaint. The affidavit of service is filled out by the process server later and submitted to the court.
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The way an eviction is pursued in CA if a person has lived somewhere over a year is the landlord/owner has to first give the tenant a 60 day written notice to terminate their tenancy. Then after that 60 days is up, the owner can file to evict with a UD complaint.
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The 60 day can be served by anyone over 18, even the owner. The UD complaint can only be served by someone not involved in the case over 18.
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So at this point, if brother doesn't own the property, and doesn't have a POA from father, he has no legal authority to pursue any eviction at all.
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If you go to the clerk's office, you can make sure any court date is at least 5 days after today. Then on the court date you can show up and tell the judge that brother doesn't own the house or have a POA for father, so he can't evict you.
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Thanks
Barrister
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Customer: replied 10 months ago.

im sorry for keeping you on here so long,, last question , property profile reads sole owner joseph baron loan is in brothers name, he quick claimed it to my dad in 2010 to hide info from govt,,thanks

Expert:  Barrister replied 10 months ago.
No problem, that is what I am here for.
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It doesn't matter whose name the loan is in. It only matters who is on the deed. He shot himself in the foot by deeding it to father because now he doesn't legally own it and has no legal rights to evict you at all. Only father could do that now, or brother if he had a power of attorney for father.
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Thanks
Barrister
Customer: replied 10 months ago.

father died in 2010, brother will try to say he's the executor ,but no official will , thats why he was able to steal my part of the money my dad left,

Expert:  Barrister replied 10 months ago.
Ok, if he hasn't been officially appointed as executor by the probate court judge, then he wouldn't have legal authority to act. If he has been appointed as executor, then you may have some problems fighting the eviction if he has a copy of a 60 day notice and the UD complaint and all were issued after he was appointed executor.
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Thanks
Barrister
Customer: replied 10 months ago.

it never went to probate , he was the one who signed all his death , burial , papers ,etc. he doesnt know i know this about the house . that's all

Expert:  Barrister replied 10 months ago.
Ok, then if he was never formally appointed as executor (actually Administrator if there was no will) the he has no legal authority to act on behalf of father's estate which owns the house now.
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Thanks
Barrister
Customer: replied 10 months ago.

brother will probably not go to court himself , he will send his attorney , so if i present all info to judge , what do you believe will happen. brother goes to another court on 6 24 for perjury 6 counts , taxes , etc , theres a good chance he will do time , we may not be around , oh to bad!

Expert:  Barrister replied 10 months ago.
If he is not the legal executor of father's estate, the judge should throw out the case.
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Thanks
Barrister
Barrister, Lawyer
Category: Real Estate Law
Satisfied Customers: 21282
Experience: 13 years real estate, Realtor. Landlord 24+ years
Barrister and 7 other Real Estate Law Specialists are ready to help you
Customer: replied 10 months ago.

Thank you!! im on a pension ,wish i had more to give , you are great

Expert:  Barrister replied 10 months ago.
You are very welcome. Glad I could help..
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Thanks
Barrister
Expert:  Barrister replied 10 months ago.

Thanks so much for the positive rating and generous bonus, it is very much appreciated!

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It was my pleasure to work with you and help with your question. Please feel free to ask for me if you need help with anything in the future and I will do my level best to help or get you to someone who can.

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Barrister

Customer: replied 10 months ago.

Thanks for being so understanding , most attorneys aren't that way, Chris

Expert:  Barrister replied 10 months ago.
You are welcome..I don't care for most other attorneys either...
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Barrister

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