Former Owners Increasingly Refuse to Vacate Following Foreclosure Sale -- New Owners Forced to Evict

San Antonio Eviction Lawyer - Bexar County Eviction Attorney Trey Wilson wrote:

Sadly, my San Antonio evictions practice frequently involves the filing of FE&D suits to remove former owners from homes they lost through a foreclosure and the attendant sale on the Courthouse steps. My client is almost always an innocent third party who purchased the property at the foreclosure /Substitute Trustee's Sale, but cannot take possession because the former owner refuses to vacate.

Theses cases are never fun, and I feel bad for the former owner.  However, I find a little solace in the fact that the former owners have a set of remedies available to them. Further, those remedies are not against the new owner, but rather, against the bank or other lender who posted the home for foreclosure, and ultimately sold it to the new owner (my client).

It seems like lately, more often than ever, the former owners are fighting the evictions -- which the new owner rarely loses based upon the Substitute Trustee's Deed evidencing the change in ownership.  When the former owner is unsuccessful in stopping or defeating the eviction, he or she frequently "lawyers-up" and runs to District Court to file a new lawsuit and obtain a Temporary Restraining Order that prevents the Eviction Judgment from being carried out.  

Invariably, the new suits allege all sorts of misdeeds on the part of the lender who foreclosed, allege that the foreclosure was invalid, and seek a court declaration that the sale to the new owner is invalid and should be reversed. 

When neither the new owner nor the lender who foreclosed are Texas residents, these suits usually end-up in federal court.  Yes -- eviction suits wind up becoming "federal cases."

Increasingly, it seems that the Judges -- both state and federal -- are now recognizing that the new owner had nothing to do with the mortgage loan, how it was serviced, or whether the lender violated some law in conducting the sale. Instead, the new owner is just somebody who spent their money and received nothing in return but a lawsuit. In light of this recognition, we are achieving a large degree of success in obtaining possession of the property for the new owner, notwithstanding the fact that the "wrongful foreclosure" lawsuit against the lender remains pending.

Purchasers of real properties on the Bexar County courthouse steps who find themselves wrapped-up in a wrongful foreclosure suit against a foreclosing lender are well advised to hire an experienced eviction lawyer.

Fire Marshal Faces Federal Suit for Role in Evicting Woman on Son's behalf

San Antonio Texas Eviction Attorney Trey Wilson wrote:

(CN) - A Pennsylvania fire marshal must face claims that he helped a man evict his mother with 24 hours' notice, seal her locks and put her in a nursing home, a federal judge ruled.

Camilla Evans had resided and rented a property in Emsworth, Pa., for 50 years when the local fire marshal gave her 24 hours to vacate the premises, according to the complaint.

The eviction allegedly sprang from a family dispute over the distribution of an estate.

Evans said her son and daughter-in-law, David and Judith Evans, the lawful owners of the property at the time, had tapped the marshal to evict her. Though the trio tried to commit Evans to a nursing home on the basis of incompetence, their efforts proved unsuccessful, the complaint states.

David and Judith ultimately drilled in the locks to the home, leaving Camilla Evans and her daughter, Camilla Conners, unable to retrieve their possessions, and forcing them to live in a hotel since November 2012, according to the complaint.

 The mother and daughter later sued David, Judith, the borough and the marshal in federal court, claiming that they unlawfully seized and condemned Evans' property pursuant to an alleged custom or policy.

The complaint asserts claims for constitutional violations and due process deprivations under the Fourth, Fifth and 14th Amendments, as well as numerous state-law claims for conspiracy, breach of contract, unjust enrichment, conversion, trespass and invasion of privacy against the individual defendants.

U.S. District Judge Arthur Schwab refused to dismiss any part of the complaint last week for failure to state a claim.

Though the ruling gives only the last name of the fire marshal, a borough website states his full name as Michael Adams.

Schwab held that the complaint does "raise a reasonable expectation that discovery will reveal evidence of the necessary elements" and "provides adequate facts to establish 'how, when, and where,'" as set forth by the Supreme Court in Bell Atlantic Corp. v. Twombly in 2007.

 The complaint also shows a "plausible claim for relief," as required by the Supreme Court's decision in Ashcroft v. Iqbal in 2009, Schwab ruled. "Viewed in light of the foregoing pleading standards, this court finds that the allegations of the complaint, when taken as true, allow the court to draw a reasonable inference that the defendants are liable for the conduct and misconduct alleged, and that the complaint meets the standards as enunciated in Twombly and Iqbal," Schwab wrote.

After discovery, the defendants may raise the issues set forth in their motions to dismiss in a motion for summary judgment, the ruling states.

Explosives found in home of Columbus, Ohio man facing eviction

Trey Wilson, San Antonio, Texas Eviction Attorney wrote: From the Columbus Dispatch:

Explosives found in North Side home of man facing eviction, deputies say

Franklin County [Ohio]  deputies seeking to evict a man from his North Side [Columbus] home yesterday say they found five explosive devices inside the house.

In rambling writings on the walls and ceilings of his house at 917 Carolyn Ave., Mark A. Kulis claimed to be a “sovereign citizen,” believing he isn’t obligated to pay taxes or follow most laws, said Sheriff Zach Scott.

Also scribbled on his walls were names of politicians, including President Barack Obama and [Ohio] Gov. John Kasich.

Deputies waited until Kulis left his home yesterday morning to deliver eviction papers, Scott said. They decided not to confront Kulis at his home because they had received word that he could be dangerous, Scott said.

When deputies went to the home, there also was a probate warrant pending for Kulis, ordering him to be taken to NetCare for mental-health treatment.

When deputies got inside Kulis’ home, they found four explosive devices in a bedroom closet. The oven also was booby-trapped with an explosive, Scott said.

The Franklin County bomb squad was called to detonate the devices, which was completed safely. Several houses around the property were evacuated during the process.

Kulis, 55, was found with a loaded Colt .38-caliber revolver when he was arrested around 8 a.m. about a half-mile from his house at a car wash at Oakland Park Avenue and Maize Road, according to a complaint filed in Franklin County Municipal Court. He is charged with carrying a concealed weapon and manufacturing dangerous ordnance, both felonies, Scott said.

He was in the Franklin County jail last night and is scheduled to make his first appearance in court this morning.

We've moved our office -- Drop By and Say Hello

San Antonio Eviction Lawyer - Bexar County Eviction Attorney Trey Wilson wrote:

Trey Wilson has moved his law practice to 111 W. Olmos Dr., San Antonio, Texas 78212. Phone, fax and email will remain the same.

Bad Tenants Have Been Around Since Biblical Times -- Jesus Spoke of Them

San Antonio Eviction Lawyer - Bexar County Eviction Attorney Trey Wilson wrote:

Think your tenants are bad? You are not alone, and your experiences are nothing new.

Bad tenants who abuse owners' trust have been around since ancient times. So prevalent and historical is the problem, that Jesus Christ even told a parable about evil tenant farmers. 

The Parable of the Evil Farmers is found in Chapter 12 of the Book of Mark, Chapter 21 of the Book of Matthew, and Chapter 20 of the Book of Luke, and goes like this:

^{33 “Listen to another parable: There was a landowner who planted a vineyard. He put a wall around it, dug a winepress in it and built a watchtower. Then he rented the vineyard to some farmers and moved to another place.34 When the harvest time approached, he sent his servants to the tenants to collect his fruit.}

^{35  “The tenants seized his servants; they beat one, killed another, and stoned a third. 36 Then he sent other servants to them, more than the first time, and the tenants treated them the same way. 37 Last of all, he sent his son to them. ‘They will respect my son,’ he said.}

^{38 “But when the tenants saw the son, they said to each other, ‘This is the heir.Come, let’s kill him and take his inheritance.’ 39 So they took him and threw him out of the vineyard and killed him.}

-Matt 21: 33-39

However destructive, abusive and financially irresponsible your tenants are, there's a pretty good chance that they aren't killing your family members.  Fortunately, you also shouldn't have to kill them to get them out of your property, and rent it to another tenant who "shares their fruit."

There are other options, including eviction through the Justice Courts.  Rather than sending servants, perhaps you should consider sending a Notice to Vacate, and starting the New Year with a resolution to turn your rental property into something other than a source of stress and financial problems.

Bexar County Soon to Get Two New JPs

San Antonio Eviction Lawyer Trey Wilson wrote:

Bexar County is on the verge of getting two new Justices of the Peace. By law, the Justice Court Judges, affectionately known as "JPs" have exclusive jurisdiction over eviction suits.  The two new JPs will serve in Precincts 2 and 3, respectively.

In Precinct 2, the incumbent Judge, Stephen Walker, didn't prevail in the Democratic primary, and will, therefore, not stand for re-election. His Precinct 2, Place 1 bench will go to a new Judge.

In Precinct 3, long-time JP Keith Baker will be retiring at the end of this year. Bexar County is  now accepting applications for his position, and a replacement will be appointed by the Bexar County Commissioners Court.

The individuals who fill these benches will largely change the evictions landscape in San Antonio.

Notice to Vacate is an Essential Component of a Successful Eviction

San Antonio & Bexar County Eviction Lawyer Trey Wilson wrote:

An essential element of any eviction proceeding is strict compliance with the statutorily-required notice to vacate before filing the forcible-detainer action. See Tex. Prop. Code  § 24.002(b); § 24.005. 

Issuance and delivery of a properly drafted notice to vacate is  required by statute, and, is  therefore  "mandatory and exclusive and must be complied with in all respects"  Employees Ret. Sys. of Tex. v. Blount, 709 S.W.2d 646, 647 (Tex. 1986).  In fact, delivery of a statutorily- sufficient written demand for possession is an essential element of forcible detainer, without which, a valid eviction Judgment cannot be issued. Murphy v. Countrywide Home Loans, Inc., 199 S.W.3d 441, 445 (Tex. App.-Houston [1st Dist.] 2006, pet. deniedThus, the very first step in any eviction proceeding is the ); Kennedy v. Andover Place Apartments, 203 S.W.3d 495, 497 (Tex. App.-Houston [14th Dist.] 2006, no pet.) (landlord must strictly comply with section 24.002 requirements which state that landlord must make written demand for possession in compliance with section 24.005 requirements for notice to vacate).

Thus, the very FIRST STEP in any eviction proceeding is delivery of a properly drafted NOTICE TO VACATE, which complies with all requirements of section 24.005 of the Texas Property Code. Failure to meet any of the requirements of the Notice -- or the manner of delivery -- can result in the dismissal of the eviction suit.

Collecting on Money Awards in Eviction Judgments

San Antonio & Bexar County Eviction Lawyer Trey Wilson wrote:

Frequently, the prevailing Landlord in an eviction suit is awarded a money Judgment in addition to possession of the premises.  Justice Courts routinely award a prevailing Landlord liquidated cash sums for past-due rent, court costs, and (where applicable), attorneys' fees.  See Tex. Prop. Code § 24.006.  But are these money Judgments worth the paper they're written on?

It is a reasonable assumption that a Tenant who has just been evicted for failing to pay rent usually isn't sitting on a pile of cash or other assets that can be used to satisfy a money Judgment.  For this reason, Landlords usually "give up" and ignore the cash portion of eviction Judgments.  After all, it makes little sense to pursue collection of a Judgment from somebody you couldn't even collect rent from. But will this always be the case?????

My experience and observation over the course of conducting countless evictions has been that Tenants facing eviction have an "exit strategy" well before their court date.  It's no secret that moving is expensive.  There are security deposits, application fees, utility deposits, and the costs of moving, itself (movers/U-Haul rental, etc.).  Often this is where the money that would have been a Landlord's rent is allocated once eviction becomes inevitable. 

The good news is that eviction Judgments become final -- and, thus, subject to collection -- quickly.  Unlike Judgments from "higher" courts, which usually aren't final for 30 days after they're signed, Justice Court Judgments in eviction cases become final after 5 days (unless appealed).  A diligent Landlord will attempt to collect upon an eviction Judgment promptly after it becomes final.

There are cheap and easy steps by which to pursue collection. Here are just a few suggestions:

• Abstract the Judgment with the County Clerk.  An Abstract is the first step in the collection process, and is a mechanism by which to record the Judgment in the Official Public Records of the County -- right where deeds, liens and other real property records are recorded.  The filing fees for Abstracts are nominal, and you might be surprised when the Abstract shows-up in the Tenant's unrelated efforts to obtain credit (such as when attempting to buy a house or obtain a job).
• Report the Judgment to a credit reporting agency.  Dealing with the "Big 3" is tough, but many communities have local credit reporting agencies. In San Antonio,  SARMA maintains a database of eviction Judgments. Filing the Judgment with them could result in your former Tenant being denied in his efforts to locate a new residence.
• Hire an attorney to perform limited collection activity, such as writing a demand letter, issuing post-judgment discovery, and possibly performing an asset-check or deposition in aid of collection.

You might be surprised at how a former Tenant reacts (and steps-up) when he learns that he can't just walk-away from your eviction suit.

Failure to Install Door Security Devices Not Always a Valid Defense in Eviction Suits

San Antonio & Bexar County Eviction Lawyer Trey Wilson wrote:

Tenants facing eviction for non-payment of rent frequently assert defenses based upon a Landlord’s failure to install security devices.  These defenses, even when factually-true, are effective only in limited circumstances, and should not automatically cause a Landlord to retreat from the position that rent is due.

Texas law does require landlords to install keyless bolting devices on the exterior doors of rental premises. See Tex. Prop. Code § 92.157. When demanded by Tenants in writing, a Landlord’s failure to install keyless bolting devices can also result in Landlord liability. See Tex. Prop. §§ 92.153, 92.164. However, Tenants facing eviction for non-payment must have “clean hands,” and cannot manufacture a “failure to install-defense” after the time that they are in default of their own obligations under a Lease. 

Stated differently, a Tenant who has breached the lease by failing to fully pay their rent before the date they request the installation of keyless bolting devices generally has no claim for the Landlord’s failure to install the device. This is because the Texas Property Code allows the antecedent breach of the lease to serve as a defense to the demand for the installation of security devices. See Tex. Prop. Code Ann. § 92.1641.

Thus, when a Tenant makes their request to install a keyless bolting device at a time when they have not paid all then-due rent, a Landlord may deem the Tenant in default and escape liability for failure to install.

Of course, prudence dictates that a conscientious Landlord honors all requests for installation of keyless bolting devices. Nevertheless, a non-paying tenant’s untimely assertion of the “failure to install defense” is rarely successful in an eviction proceeding before the Justice Courts.

Houston Residents get eviction notices after rent payments stolen

San Antonio Eviction Lawyer Trey Wilson wrote: Here's a disturbing story from Houston's Click 2 News:

Rent Checks mysteriously disappear from apartment complex drop box. Complex demands that rent be paid again -- even though some tenants paid by money order, and have receipts!

Read the full story and watch the video here.

Mansfield squatter suspects keep it all in the family

Here's a fascinating story from the Ft. Worth Star-Telegram about a family of squatters in Mansfield, Texas trying to claim home ownership through Texas adverse possession laws. A risky venture in any circumstance, but particularly when your claims are supported by fraudulent documents. My guess is that neither the eviction courts, nor the Tarrant County DA will have any mercy for these folks.

Mansfield squatter suspects keep it all in the family | Arlington | News from Fort Worth...

Eviction Leads to Fugitive's Arrest

San Antonio Eviction Lawyer Trey Wilson wrote:

Deputies with the Cecil County, MD Sheriff's Office stumbled upon a fugitive while providing security during a landlord's eviction of a tenant. Apparently, the tenant had allowed the fugitive to live there.

After receiving a tip from federal agents, investigators with the Cecil County Sheriff's Office captured Henry Joseph Harper Holder, 34. Holder is an alleged drug dealer wanted by the U.S. Marshals Office. Holder is wanted in Newport News, Va., where he is facing numerous drug charges, including manufacturing controlled dangerous substances and possession of morphine.

The events leading to Holder's capture started on Thursday morning when deputies provided security in the 100 block of Willow Drive for a scheduled eviction. "This is something we do when there is a scheduled eviction. It's to prevent anyone from interfering while the landlord is removing (the tenant's) property."

After the eviction, an agent with the U.S. Marshals Office called sheriff's investigators and reported that Holder had been living at the home where the eviction had taken place, police said. The agent, who provided other tips, too, asked investigators to arrest Holder, police added.

No Writs Out of JP 2 During the Christmas Season!

San Antonio Eviction Lawyer Trey Wilson wrote:

This sign was posted at JP Precinct 2 today!

Spanish Cemetery Warns of Evictions for Nonpayment

MADRID – Pushed for space, a Spanish cemetery has begun placing stickers on thousands of burial sites whose leases are up as a warning to relatives or caretakers to pay up or face possible eviction.

Jose Abadia, deputy urban planning manager for northern Zaragoza city said Monday the city's Torrero municipal graveyard had removed remains from some 420 crypts in recent months and removed them to a common burial ground.

Torrero, like many Spanish cemeteries, no longer allows people to buy grave sites. It instead leases them out for periods of five or 49 years.

Abadia said the cases involved graves whose leases had not been renewed for 15 years or more.

He said Torrero currently had some 7,000 burial sites with lapsed leases out of a total of some 114,000.

Copied from Fox News

Eviction Appeals to County Court at Law Are Subject to Expedited Trial

San Antonio Eviction Lawyer Trey Wilson wrote:

Often, a tenant who loses possession of a rental property following an eviction trial in the Justice Court will perfect an appeal to the County Court at Law. Though often frustrating to the landlord, the right of appellate review is a fundamental component of our judicial system.

However, appeal of an eviction Judgment to the County Court at Law need not unreasonably delay the landlord's right to possession of the property, as awarded by the Justice Court. This is especially true where frivolous appeals are filed solely for the purpose of a tenant "buying time" to vacate the premises, which is inevitable. That's because Texas Rule of Civil Procedure 753 provides for a rapid trial of the appeal "at any time after the expiration of eight full days after the date the transcript is filed in the county court."

In most other types of cases, at least 45 days' notice of trial is required. However, in adopting Rule 753, our judicial system recognized the need to counter-balance a tenant's right of appeal with a landlord's right to receive rent (or at least obtain a quick resolution as to the right of possession).

Rule 753 is an important provision whose practical effect prevents unscrupulous tenants from abusing the right of appeal by providing for a quick trial. It shouldn't be overlooked by the landlord-appellee or her lawyer when strategizing the defense of a tenant's appeal.

Bexar County Offers JP Precinct Locator Tools

San Antonio Eviction Lawyer Trey Wilson wrote:

Frequently, homeowners have no reason to know (or even care) which precinct their property is located in. However, this is important for eviction suits, since only a justice court in the precinct in which the real property is located has jurisdiction in eviction suits. See Texas Property Code Section 24.004.

Fortunately, Bexar County offers two helpful tools for determining the precinct in which the property is located.

The first is the Justice of the Peace Mapping Application, which is a semi-interactive map that shows the precinct lines, and has a somewhat impressive zooming capacity to pinpoint your property's location.

The second tool is the Bexar County Elections Department's jurisdiction locator tool. This tool allows you to look up location-specific information by entering your address or zip code.

Both of these are useful public resources!

Trial of Texas Eviction Suits by Jury

San Antonio Eviction Lawyer Trey Wilson wrote:

Although somewhat rare, trial by jury is available in all Texas eviction suits.

Texas Rule of Civil Procedure 744 expressly grants either party to an eviction suit the right of trial by jury. To exercise this right, a jury demand must be timely made and a jury fee must be paid. The Rule prescribes the time for making the jury demand as "on or before five days from the date the defendant is served with citation." Once a request is timely made, and the fee paid, a jury is summoned, and eventually selected by the parties using an abbreviated voir dire process.

While I have handled numerous evictions on behalf of Texas landlords, I have never requested a jury trial in an eviction case. This is primarily because I believe that the Justice Court Judges / Justices of the Peace generally possess the wisdom, impartiality and command of the law to promptly and fairly decide FE & D suits. This is especially true in Bexar County, where most of our JPs are licensed attorneys.

Nevertheless, I have tried eviction suits to a jury in those instances where the tenant has demanded a jury trial. Although jurors are generally wise once they hear the facts of the case, my experience is that prospective jurors are frequently tainted by their negative landlord-tenant experiences. In addition, jury trials take significantly longer than bench trials (trial by Judge).

When strategizing for trial in an eviction suit, one should not overlook the right to trial by jury, and the implications of an exercise of that right.

Proper Notice to Vacate is Essential for Eviction Success

San Antonio Eviction Lawyer Trey Wilson wrote:

Most landlords are understandably reluctant to hire a lawyer to deal with a problem tenant. Many times, the tenant is already not paying rent, and the landlord is losing money by the day. Naturally, hiring a lawyer only adds to the Lessor's expense, and exacerbates the non-producing character of a rental property.

For this exact reason, many landlords come to me as a final straw, and only after they have done everything in their power to handle the tenant themselves. Frequently, Landlords have already sent or delivered to the Tenant a "homemade" Notice to Vacate or Notice to Quit. Unfortunately, in many instances, the Notice is defective, or was delivered in a manner that fails to comply with the strict requirements of the Texas Property Code. When this occurs, the process is delayed, so that I may provide proper notice to the tenant within the time required by law.

Failure to provide a tenant with a notice to vacate that contains the required warnings, or delivering the notice in a manner other than prescribed by law can be fatal to an eviction suit. Bexar County Judges frequently dismiss FE & D suits based upon improper Notices to Vacate. Dismissal results in the landlord having to restart the entire process, resulting in further delay, expense, and financial loss.

Because a landlord's success in an eviction suit is dependent upon the proper drafting, delivery and timing of a written Notice to Vacate, the importance of getting the Notice right should not be overlooked. If a landlord/lessor has doubts about the requisites of Notice, he should contact a lawyer experienced with evictions in the Justice Courts.

Issues in Texas Eviction Suits are Limited to Possession and Rent

San Antonio Eviction Lawyer Trey Wilson wrote:

Despite the frequent desire of both landlords and tenants to make eviction cases about "bigger and broader" disputes, Texas law limits the scope of issues that may be presented to the Court in Forcible Entry & Detainer ("FE & D")suits.

Specifically, two Rules contained in the Texas Rules of Civil Procedure provide express limits on what matters an eviction court may consider. Rule 746 states that in forcible entry cases and forcible detainer cases, the only issue "shall be as to the right of actual possession." However, Rule 738 provides that a "suit for rent" may be joined with an FE & D action "whenever the suit for rent is within the jurisdiction of the justice court."

Because of these specific limitations on the topics within the Justice Court's jurisdiction in an eviction lawsuit, Bexar County Judges will generally not permit testimony about collateral issues such as whether a landlord has failed to repair certain items, the condiction of the rental property, or the tenant's hygine and living conditions. While these matters may be relevant to the overall dispute between the landlord and tenant, they are required to be brought in a separate suit in a Court of appropriate jurisdiction.

Writ of Possession in the Bexar County Justice Courts

After the rendition of a Judgfment of Eviction, either party (landlord or tenant) has five (5) calendar days to appeal the judgment to the County Court at Law. Appeal of a Justice Court's eviction Judgment may be perfected by filing a Notice of Appeal and Appeal Bond with the Justice Court. Upon proper perfection of the appeal, the Clerk of the Justice Court will transfer the Court's file to the County Clerk, who will assign a new cause number to the suit.

If no appeal is filed, and the tenant has not vacated the premises within five (5) calendar days from the date of the judgment, the plaintiff/landlord may obtain a Writ of Possession to legally remove all of the tenant's personal property from the premises. A Writ of Possession is executed by the Constable’s Office. However, the Constable does not represent the landlord or the tenant, and will remain on the premises solely as a keeper of peace to see that the writ is executed according to law. The physical removal of all property will be made by the landlord or their designated personnel.