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How to respond to Eviction notice.

Atlanta, GA |

My house was foreclosed on and I received an eviction notice that says I have 7 days to file an answer or I must be out by Oct, 10. How do I file an answer. I need about one more week to move out. I heard if you file an answer the Judge will give you a trial date which takes about two weeks.

I'm a little confused about the process because I've been seeing a lot of info on evicting renters. I've heard that if you are a renter you must pay rent in order to receive a trial date. I assume this does not apply to former owners. I just need a few more days to move out after the eviction deadline. How do I go about filing an answer? And what should I say?

Thanks

Attorney Answers 2


  1. If you fail to quit within the prescribed time, you'll get an additional notice for the hearing date for the Court to actually issue the eviction order.
    Of course I can't be sure without reviewing the file, but I'm guessing that your foreclosure was proper. If so, you don't really have much to say to contest the complaint, but you might say something like this in response to each allegation: "Defendant does not admit or deny, but leaves Plaintiff to his strict proofs." That'll (probably) get it onto the trial docket.
    BONUS PHILOSOPHY QUESTION: Is this approach more appropriately characterized as "gaming the system" or "making full exercise of your rights in our adversarial system?"


  2. There are defenses available in Georgia evictions. Part of my practice includes representing landlords and tenants in Georgia dispossessory proceedings, including after a foreclosure.
    Defenses include (but are not limited to)-
    --That the landlord (here the entity which purchased at the sale, most likely the lender) did not demand possession prior to instituting the dispossessory, in violation of OCGA 44-7-50.
    --That you tendered payment, which is a complete defense under OCGA 44-7-52.
    --That the affidavit filed with the dispossessory proceeding was not "under oath" as requierd by OCGA 44-7-50 (I have argued before that some of the electronic filing systems in use today cannot issue an 'oath').
    --That service was improper under OCGA 44-7-51 or other due process considerations under the circumstances.
    --That the summons was improper because it did not state "the last possible date to answer" as required by OCGA 44-7-51. (I have argued before that statement on summons that answer is due within 7 days is not a listing of a "date" but requires the recipient to CALCULATE the date).
    --Other defenses are also sometimes available. I urge all persons who are able to consult directly with an attorney regarding the specifics of their case.

    Note that it is a misdemeanor to knowingly and willingly make a false statement in an answer filed in a dispossessory action. OCGA 44-7-58.

    You are required to answer within seven days from service, under OCGA 44-7-51. You can go down to the clerk's office of the Court, and they generally have an Answer form for you to use.

    If you do not answer, OCGA 44-7-53(a) provides that the court "shall" issue a writ of possession immediately. So it is good for you to answer! THIS is your opportunity to be heard and tell your side of the story. Because if you DO answer (at all), OCGA 44-7-53(b) provides that a trial "shall" be had. It depends upon the particular court how long it takes before a trial is held, but hearings are typically set relatively quickly.

    That statute further provides: "The defendant shall be allowed to remain in possession of the premises pending the final outcome of the litigation; provided, however, that, at the time of his answer, the tenant must pay rent into the registry of the court pursuant to Code Section 44-7-54." But OCGA 44-7-54(a) provides "In any case where the issue of the right of possession cannot be finally determined within two weeks from the date of service of the copy of the summons and the copy of the affidavit, the tenant shall be required to pay into the registry of the trial court..." This requirement of paying rent is really emphasized when the matter cannot be decided within two weeks after you are served - the point is that a renter should not have an incentive to 'drag out' the proceedings, so they can live rent-free in the interim. It really depends upon the particular court, and how motivated the landlord is, whether or not they would try to evict you for failing to pay back-rent into the court before your hearing.

    If you go to trial, and lose (which is likely if you do not have a good defense) then OCGA 44-7-55 provides that the court "shall" issue a writ of possession "be effective at the expiration of seven days after the date such judgment was entered..." There is your 7 days right there.

    Essentially, if you do not answer, a writ will issue immediately. If you do answer, you may be given 7 days after the hearing date to get out.

    Practically, you might approach the lender's attorney and see if they would be willing to accommodate you if you give them a consent order. Some lenders are also offering a "cash for keys" program where they PAY you to voluntarily leave by a set date, and you give them the keys. You might look into that as well.

    - Jim Fletcher - http://www.JimFletcher.net