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Ask Barrister Your Own Question
Barrister
Barrister, Lawyer
Category: Real Estate Law
Satisfied Customers: 33769
Experience:  15 years real estate, Realtor. Landlord 26 years
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Where are you located? Fremont, CA, yes I've obtained a writ

Customer Question

where are you located?
JA: Where is the property located?
Customer: Fremont, CA
JA: Has any paperwork been filed?
Customer: yes I've obtained a writ of possession. The sheriff's office just contacted me the judge granted a stay i received no notice of the stay, the tenant owed me two months rent for 9000 but they paid only the court 1200 how can i life the stay
JA: Anything else you want the lawyer to know before I connect you?
Customer: that's it
Submitted: 1 month ago.
Category: Real Estate Law
Expert:  Barrister replied 1 month ago.

Hello and welcome! My name is ***** ***** I will try my level best to help with your situation.

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Has the tenant filed an appeal of the judgment against them?

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Thanks

Barrister

Customer: replied 1 month ago.
No. But I didn't get a chance to oppose the request to stay
Customer: replied 1 month ago.
Should I file a motion to life the stay? The tenant got a one week extension but the Sheriff's office won't schedule the eviction until two weeks after. Will the court grant another extension?
This doesn't seem fair. what can I do?
Customer: replied 1 month ago.
It is an uncontested default judgment.
Customer: replied 1 month ago.
Should I move to lift or modify the stay and ask for more deposit?
Expert:  Barrister replied 1 month ago.

You don't get a chance to oppose the initial stay as they are typically granted as an "ex parte" meaning only one side is heard in an emergency situation.

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You have to file the "motion for relief from stay" and then go in and explain how the tenant is causing you irreparable financial damage and hasn't paid any rent from the point the stay was issued.

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But yes, in the alternative, if they owe you $9,000, you can ask the judge to order them to at least pay half into the court escrow until the matter is resolved. $1200 on a $9K debt is a little ridiculous in my opinion while they get to continue to live there. I would also ask the judge to order them to pay the full rent from the date they filed for the stay until this is resolved and if they fail to do so, to dissolve the stay so you can proceed with the writ and eviction.

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thanks

Barrister

Customer: replied 1 month ago.
Thank you. Will the court allow them to respond or call a hearing? This would cause further delay. In addition, will yo be able to help me prepare the motion? I can provide you the facts. Since they signed the lease in Feb 2016, they have been late almost every month, significantly late. They also deliberately provided bad checks knowing there's no fund. twice.They lied so many times they will make the deposit, they never did. They asked me to pick up the rent or make the appointment then they would cancel the appointments one hour before the schedule, multiple times.They lied about the wiring, paypal payments made and said they would take several days and weeks to clear. I called the bank and those were never initiated. So I don't know what they said to court.
Customer: replied 1 month ago.
They also signed a contract agreed to cancel the lease and vacate from the premise if they didn't pay on Sep 30, 2016. But they didn't and continue to stay. They changed phone number and went radio silence.
Expert:  Barrister replied 1 month ago.

Will the court allow them to respond or call a hearing?

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yes, you file your motion to lift the stay, they get notified, then you all have a hearing where you argue your side, they argue why it should stay in place and the judge will make a final decision.

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In addition, will yo be able to help me prepare the motion?

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Unfortunately no, that would be legal representation and only an attorney representing you in an attorney/client relationship can draft legal documents for clients.. You would need a local attorney for that. But you are basically stating in your motion that they are imposing a severe financial hardship on you and have been completely deceptive and untruthful from the very beginning.

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They sound like professional squatters and it would be a very good idea to get a local attorney to assist in getting them out because they clearly know how the game is played and are taking advantage of you trusting them.

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As a landlord myself for over 26 years, I can tell you NEVER trust them initially and NEVER give them keys until you are positive you have cash in hand or have verified a deposit..

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thanks

Barrister

Customer: replied 1 month ago.
The court granted stay for one week. should I just let it run out and proceed with eviction or should I file the motion for relief? If the court allows them to respond and host a hearing, wouldn't that run the clock even more?
Thanks.
Customer: replied 1 month ago.
In the default judgment I sought, I didn't ask for payment, I just want to regain the possession.
Expert:  Barrister replied 1 month ago.

The court granted stay for one week. should I just let it run out and proceed with eviction or should I file the motion for relief?

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Ok, that makes a difference.. If it was just a temporary stay of a week, I wouldn't even bother trying to lift it as it likely wouldn't even be heard before it expires..

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So I would just wait for it to expire and then ask the clerk to issue a new writ and have the sheriff throw them out..

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thanks

Barrister

Customer: replied 1 month ago.
Thank you. But will the court continue granting them extension to the stay? What can I do to preemptively prevent that?
Expert:  Barrister replied 1 month ago.

No way to know... but if the judge granted another one, I would definitely file the motion to lift it.. It is probably pretty unlikely that they would grant another one because the judge does realize that you have a right to possession of your property back..

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And there is no way to take any preemptive action because you can't control what the tenant or the judge will do..

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thanks

Barrister

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