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Tenants countered my eviction. What is my next step? Should I hire a lawyer?

San Jose, CA |

Tenants countered my summon/complaint with a UD-105/Answer Unlawful Detainer. Tenants claim that they did not received the 3 day notice to pay or quit before they were served the summon. I personally taped it on the front door and sent a first class mail. They also claim that they are protected under the Civil Relief Act because their son who is one of the named defendant is in the military. Tenants have not paid for four months. Will the court of law protect them from being evicted because the son is in the military?

Attorney Answers 2

Posted

Is the son a tenant on the lease? If you don't feel confident to argue for yourselves, you should hire an attorney.

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4 comments

Asker

Posted

Yes, the son is one of the tenants. But the primary who signed the lease are the parents. I just don't see how the law about military protects tenants who have not paid their rent.

Asker

Posted

If I go to court and lose can I go from step one to evict them with an attorney? By the way, the son in the military does not live with them.

Cheryl Rivera Smith

Cheryl Rivera Smith

Posted

It isn't right and the law doesn't protect deadbeats. It allows the member of the military the right to terminate early. Here is the law. CW 59.18.220 Termination of tenancy for a specified time — Armed forces exception. (1) In all cases where premises are rented for a specified time, by express or implied contract, the tenancy shall be deemed terminated at the end of such specified time. (2) Any tenant who is a member of the armed forces, including the national guard and armed forces reserves, or that tenant's spouse or dependent, may terminate a tenancy for a specified time if the tenant receives reassignment or deployment orders. The tenant shall provide notice of the reassignment or deployment order to the landlord no later than seven days after receipt.

Asker

Posted

Tenants attached as Exhibit 1 a print out regarding Servicemembers Civil Relief Act (50 USC App. s501 et seq). It talks about the 90 day period that they can stay in the premises and covered from eviction. If I ask for a hearing and loss, can I resubmit an eviction and this time with a lawyer? I am just trying to avoid anymore expenses as the money is really tight.

Posted

This is a tougher case than usual. If the son was on the lease, and is now in the military, I am not sure how he was served. Sub-service should be ok, but courts are kind of leary to evict military.

But that does not give these people the right to not pay rent. The law is intended to help in most other cases, but not rent. There are 2 capable people that could pay rent. I would want to know why they can't pay the rent. I guess now that they filed an answer, you will be going to court.

I would hire an attorney if I were you, but the judges in these courts are somewhat lenient on formal discovery and rules of evidence. Bring all your documents and show proof of non-payment of rent. The court should rule in your favor. Not paying rent is not an excuse ever, even in most cases if you don't fix things. There are other remedies for that.

Good luck.

This is general legal advice intended for informational purposes only and does not create and attorney/client relationship. If you wish further advice, please contact an attorney of your own choosing or you may contact me for further advice and make other arrangements including retaining my services.

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5 comments

Asker

Posted

When they stopped making payments in February 2013. They said that they will not pay because I dont pay my mortgage anyway. They are aware that my mortgage is behind because I was trying to do a loan modification. That was my concern too is that when the summon and complaint was served, my sister said that she handed it to the mom because she said that everybody was home. Did that cause me the case to be dismissed in their favor? Should I have it done again from serving the 3 day notice since they claim that they did not receive it? Or can I go to the hearing and if I do not win the case, I will just start all over and this time with an attorney?

Douglas Whitney Weitzman

Douglas Whitney Weitzman

Posted

They answered the lawsuit. So now I would hire an attorney and argue before the court everything you have said. Non-payment of rent is never an excuse not to pay you. As long as you still own the house, they owe you rent.

Asker

Posted

Do you know of a lawyer here in San Jose that you can recommend sir? Thank you for your help.

Douglas Whitney Weitzman

Douglas Whitney Weitzman

Posted

Sometimes I use Craigslist for the area that I need something. Check out the legal services section. Or you can ask friends or call the local bar and ask for a referral. Good luck.

Asker

Posted

Thank you

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