This information was prepared by Michael T. Chulak & Associates for those seeking general information about the eviction and collection process.



The process is started by serving your tenants with the appropriate written notice. It is critical that you use the proper form. The notice must be filled out completely and must then be served correctly. There are several possible notices which may be served upon your tenants. Following are the most common types:

  1. Three day notice to pay rent or quit
  2. Sixty day notice to vacate
  3. Three day notice to cure breach or quit


This notice is used when the tenants are in violation of the rental agreement or lease by failing to pay the full rent when due. All adults living on the premises must be named on the notice. The address must be complete and accurate, and the rent demanded must be precise. Any overstatement in the amount due will make the notice invalid. Do not include late charges or NSF charges. Only rent due is to be included on the notice.



A sixty day notice is used to terminate a month to month tenancy. No reason must be given to the tenant when serving this notice. It may be served at any time during the month and expires sixty days after service. Do not accept rent from the tenants for any time period beyond the expiration date unless you intend to rescind the notice.



This notice is used when you have a material violation of the rental agreement or lease other than nonpayment of rent. The most common uses are when tenants violate a no pet clause or when tenants sublet or assign to another person without your consent. Use this notice very carefully. You may be required to prove violations in court. If you lack adequate proof of the violation and it's a month-to-month rental, we recommend that you use the thirty day notice to vacate instead of the three day notice to cure breach or quit.



Once you have determined which notice is appropriate, you must serve the tenants with the completed notice. Service of the notice may be accomplished by one of three methods:
  1. Personally. Each tenant is handed one copy of the notice. Keep the original and serve copies of the notice.
  2. Substitute Service. Service by substitution is complete when a person of suitable age is given a copy of the notice at the residence and an additional copy is sent to the tenant’s home address by means of regular first class mail.
  3. Post and Mail. This method is the least desirable but the most common type of service. A copy of the notice is posted on the door and a copy is mailed the same day by means of regular first class mail.

Computing the time period set forth in the notice is critical. For example, if a three day notice is served on Monday, the three days counted would be Tuesday, Wednesday and Thursday. The tenants have through Thursday to pay the full amount or vacate the premises. Note that the day the notice is served is excluded when counting the days. When the notice period ends on a weekend or holiday, the tenants have through the next business day to pay.



Sometimes it is difficult to determine whether the tenants have abandoned the premises, which makes it difficult for the landlord to know whether or not he can lawfully take possession of the premises. In these situations, the notice of belief of abandonment should be utilized. Before it can be used, two requirements must be met: 1) the rent must be at least fourteen days overdue, and 2) you must believe that the property has been abandoned. If these two requirements are met, you must complete and serve a notice of belief of abandonment. If a response is not received by the 18th day after mailing the notice, you may retake possession.

If the tenants want to remain in the property, they must reply by the eighteenth day, by indicating that they have not abandoned the property, and must provide an address where they can be served with a summons and complaint for unlawful detainer. The abandonment notice can sometimes be used as an alternative, or in addition to, the eviction procedure. It does not affect the three day notice to pay rent or quit. In certain situations, we will prepare and serve both an abandonment notice and an unlawful detainer, having the two run simultaneously. Possession is restored on the first one to terminate.



We now file suit. After the notice expires and the tenants fail to comply, an unlawful detainer action is brought against the tenants. The summons is a document informing the tenants/defendants that they have been sued. The complaint contains the allegations that the law requires to entitle the landlord to regain legal possession of the premises. The prejudgment claim of right to possession protects you against tenants who are not named in the lease. After the documents are prepared in our office, we messenger them to the court the same or next day. After the documents are filed with the court, the tenants/defendants must then be served with the lawsuit.



California law requires that a sheriff, process server or other disinterested third party serve the summons, complaint and prejudgment claim of right to possession on the tenants. Tenants, aware that the rent is unpaid, will often try to evade the process server to delay the eviction. Our process servers do everything the law allows to serve the tenants on the first day possible.

The vast majority of tenants are served within a few days. Sometimes, a tenant may seem to disappear. In those rare cases, we are required by law to petition the court for an "order to post" the summons and complaint. Before the court allows us to "post and mail" the summons and complaint, it must be satisfied that our process server has been diligent in attempting to serve the tenants both at home and work. When the judge is satisfied, he or she will permit us to "post and mail" the summons and complaint. Your tenants will have a total of fifteen days (instead of the regular five) to respond to the unlawful detainer suit. Similarly, the tenant who has been served by substitute service has ten additional days to respond to the summons. Thus in both order to post and substitute service cases, the time period is extended by ten days. Obviously, this procedure leads to considerable delay. Unfortunately, in some instances, it is the only method available to serve some tenants.



In the great majority of cases, the tenants do not respond to the complaint. After the time period for the response has expired, we apply to the court for a default judgment. In a default case, no court appearance by you or your property manager is required. Our office will handle the entire matter for you.



Sometimes tenants will file a response to the unlawful detainer within the time period allowed by law. This gives the tenants the right to have their day in court. Filing such a response does not mean the tenant wins, however, it does mean a delay in regaining possession.

Once our office becomes aware of the answer, we immediately set the matter for trial. Unlawful detainers are entitled to preference on the court calendar and are usually set for trial within fourteen to twenty days after the answer is filed. Including the additional days it takes to get to trial, the total time it takes to complete a contested case is usually 35 to 45 days.

When the trial date is set, we will immediately notify you. We will also discuss the case with you shortly before the trial. Either you or your property manager will need to be present at the trial to testify. At trial, as soon as the judge rules in your favor, we will immediately submit a "judgment after trial by court" which the judge signs and the clerk enters into the record. Once the judgment is entered, either by default or after trial, the final step, the lock-out procedure commences.



The eviction process concludes with the writ of execution for possession of the premises. The writ is an order from the court to the county sheriff, giving him the power and duty to carry out the judgment. A sheriff drives to the premises and posts a five day notice to vacate. This is the final five days that the tenants have to move out. On the sixth day, the sheriff will meet you or your agent at the premises at a designated time. You will then receive a receipt for possession of the premises. The premises are now back in your possession. If the tenants are still inside when the sheriff arrives, the tenants will be physically removed from the premises.



If the tenants move and leave some personal property, you must mail a notice of abandonment of personal property to the tenants’ last known address and allow the tenants eighteen days to claim the property. The property must be kept in a reasonably safe place, but does not have to be stored in the leased premises. If the property left behind is worth less than $300 you may dispose of it after the 18 days. However, if the property exceeds $300 in fair market value, you must sell the property through a public sale, but only after publishing the date and time of sale in a newspaper of general circulation once a week for two consecutive weeks. If the tenants return to claim the property, you must return it to them, but you may charge reasonable storage fees. You may not hold the property as ransom for rent even if you have a judgment. It is always prudent to take photographs of the personal property and make an inventory.



If you have received a security deposit from the tenants, the law requires that you mail a statement of the disposition of the deposit to the last known address within twenty-one days after you receive possession of the premises. Even though the tenants owe you money, you still must account for the deposit. Deduct for any damages above ordinary wear and tear and cleaning expenses. The balance is applied toward any rent owed. You must provide the statement even if 100% of the deposit is applied to damages and unpaid rent.



After the tenants have been evicted and you have authorized us to obtain a money judgment for the unpaid rent, reimbursement for damages, attorney fees, and court costs, we can pursue the money rightfully owing. We maintain our own in-house collection department and aggressively pursue the judgment debtor until you are paid in full. There is no charge for collection if there is no recovery.



When the unlawful detainer process is complete and you have regained possession of your property, a money judgment can be obtained. In a "skip" situation, a judgment an be obtained through small claims or municipal court, depending on the case.

Obtaining a money judgment is a powerful tool for recovering any unpaid rent and costs. A judgment is enforceable for 10 years and can be renewed for 10 additional years.

As a law firm, we have resources that are not available to most collection agencies. For example, we can exercise the legal power to subpoena information from otherwise private sources. This is highly effective in collecting money judgments.



After we locate the debtors, we assess their ability to repay the debt. Since many debtors refuse to cooperate in any way, often it becomes necessary to determine their assets and income by other means. In addition to the skip tracing resources at our disposal, we can use additional methods to uncover their assets and income. One of these methods is a legal process known as the Order for Debtor Examination. We obtain a court order that requires the debtor to appear before a judge with all of their financial information for examination. We also subpoena pertinent information from parties with whom the debtor does business, if necessary. It is common for us to receive a cash payment at the examination and to negotiate a payment plan. If the debtors fail to appear, the judge may issue a warrant for their arrest.



For debtors who refuse to pay their debt, we can effect legal seizure of their bank accounts, real and personal property, wages and / or business income. Since there are many exempt sources of income and exempt assets, it is crucial to know exactly what they have and what legal process to use to attach it. When this is certain, we obtain a court order to effect collection of the debt.

If the debtors are employed, up to 25% of their wages can be garnished. If they have a business, a sheriff can enforce a "till tap" and remove all cash receipts from their place of business. Their non-exempt bank accounts can be levied for the full amount of the judgment. In some cases, personal property such as automobiles, jewelry and luxury items can be identified and attached by the sheriff’s office for judicial sale.

Another effective tool that our firm uses is the filing of an Abstract of Judgment in the county or counties where the debtor has, is likely to have, or is likely to acquire, real property. The abstract will create a lien on the property which must be satisfied before a sale or refinancing of the property can be accomplished.

Even if the debtor has assets or income in another state, we can collect in most states through what is known as a "sister state judgment". Although a somewhat lengthy process, our firm can domesticate judgments in the state and county of the debtor’s residence or business and enforce the judgment as though it were in California.



We maintain all collection files through our debt collection system. This system allows us to successfully oversee, track, review, update, and handle all files in our collection department. Our system accurately maintains the amount owed, calculates interest on the unpaid principal balance, adds any additional costs incurred and credits any and all payments received. Upon receipt of the final moneys owed, our office will promptly file a satisfaction of judgment with the appropriate court. We handle all your collection needs, from start, to completion.

 

For additional information on evictions and other legal services please contact us.


This information is intended to provide general information only. If legal advice is required, the services of an attorney should be obtained. Not every situation is the same.