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| Updates: | 7/27/2010 | 8/4/2010 | 8/5/2010 | 8/6/2010 | 9/10/2010 | 9/17/2010 |
If your a renter, THIS COULD HAPPEN TO YOU! If your not a renter, why should you care? If not you, it could be your son, daughter, parent or friend.
You leave Friday to go for a long weekend vacation. When you get back on Monday there is a eviction notice on you door and you are locked out. You don't get it. Your rent was paid. Your lease is good for 2 more months. What happened? Well your landlord was foreclosed on. The eviction was put on you door on Saturday while you were gone, even though it says it was placed on Wednesday. The constable/sheriff came out Monday and changed the locks and sealed the house. You are locked out and your possessions are locked inside. What about the new Federal Law that gives renters 90 days after the foreclosure sale? Well, the lawyer for the new owner railroaded the eviction through, skipping a few steps and the person that placed the notice fudged the date or didn't put it up the day he was supposed to. Can this really happen? YES. This is not an actual example, but it is close to what happened to someone I know. The Wednesday date of placement, the actual placement on Saturday and the constable/sheriff showing up on Monday are factual!
The above example is not an actual event (or at least as far as I know). I have taken a real event and made it even a worse. It could happen this way and maybe it has. In the case I know of, at least the people were home during the weekend it happened.
On Saturday July 24th 2010 at 11:30 AM I was talking to someone I know on the phone when their doorbell rang. She said it was their neighbor and she would call me back. A short time later she called backed. She said her neighbor told her that he saw someone post a notice on her garage door and handed it to her. It was an eviction notice. The notice said it was placed on Wednesday July 21st. It further went on to say that a constable or sheriff will arrive some time Monday to evict her and change the locks on the house. This was the first notice she had received having anything to do with her having to leave the premises.
Now to back up just a little to give some background. She has been living in this house for nearly 4 years. She is a RENTER and her lease does not end until October. A few months ago she found out that her landlady was in default on the mortgage. He landlady continually assured her that she was getting the loan redone and there would be no problems. The landlady further stated the the house would not go into foreclosure and she (the landlady) would be keeping the house. Then in May a foreclosure notice arrived and an auction date was sent. The auction date was postponed and the house went on May 25th. On July 2nd a notice arrived stating the house had been sold and listed an attorney for the new owner.
On July 6th the renters called Ms. Regina M. Mcconnell, Esq., the lawyer listed on the papers. They told Ms. Regina M. Mcconnell, Esq. that they were renters and that they had lived in the house and for how long. The first discrepancy came up here. The foreclosure information listed the owner of the rental house as being the tenant (which is why the foreclosure papers kept coming there), NOT the renter. The renter told Ms. Regina M. Mcconnell, Esq. that they were the rental tenants, have been for nearly 4 years and the owner HAD NOT lived in the house during that time. Ms. Regina M. Mcconnell, Esq. told the renter to send a copy of the lease and they would decide whether the new owner would ?? continue it / accept it ?? . That was the last thing that the renter heard from Ms. Regina M. Mcconnell, Esq., at least DIRECTLY.
According to Nevada law a "Notice to Vacate" is to be delivered to a renter BEFORE a court ordered eviction is requested. None was received by the renter.
The court application to obtain an eviction notice, at least in California, the are boxes to check whether the eviction is for the "OWNER" or "RENTER". I assume that would also be true in Nevada.
Based upon the research I have done, everything points that this eviction was for an "Owner Occupied" foreclosed house.
Obvious violation of 90 day notice required by the Federal Law Helping Families Save Their Homes Act of 2009, S. 896, P.L. 111-22 (see below).
Violation of Nevada State Law Relating to:
The new owners lawyer, Ms. Regina M. Mcconnell, Esq., left a message yesterday. She was described as a witch (not the word used, but close). Today she call again. This time she was really polite and friendly. Asked the renters about why they went to the court yesterday and were they going after the new owner. They said they weren't and were just trying to stop the eviction. More conversation, bla, bla, bla..... Ms. Regina M. Mcconnell, Esq. then got them in touch with the property manager for the new owner, George of Blackbird Realty Management. He said they wanted them to continue renting the house. That this was just a mistake. That Ms. Regina M. Mcconnell, Esq. had admitted the renters had contacted her and told her that they were renters and not the owners. I'm not sure what prompted the total change in attitude. Maybe they actually found the mistake themselves. Maybe Ms. Regina M. Mcconnell, Esq. talked to the court and found out the renters were prepared with lots of documentation (the Federal Law and Nevada Laws about this). Or maybe one of the news stations contacted the property manager or Ms. Regina M. Mcconnell, Esq. for general background information and stumbled on the one involved. I don't know, but I know a shark doesn't normally release a victim intentionally once they grab hold and most lawyers are sharks. But the end result is the renters will be able to stay in the house for a least next month (while the move, they have a bad taste out of this and don't want to stay there) and at a reduced rent. They also said that the new owner will honor the deposit and return (like this was just generosity, even though Nevada Law requires it). IF the new owners representatives keep to the bargain (I told the renters to make sure and get everything in writing), then this will end OK.
BUT, it doesn't stop the same thing from happening to others. This MAY be over for them, but there have been other before them and there will probably more in the future. Information is there best defense, so pass this information on, especially if you know people that may be or could get into this Problem.
The renter paid the August rent, per the agreement, and the check has been cashed. Yet, today the renters received a "Notice to Appear" before the Clark County Justice Court regarding the eviction. I thought this had been taken care of by the new owners attorney. I am hoping that this is just a formality and not another thing that fell through the "Cracks" (a large enough crack to swallow a house.)
A change regarding the deposit. Now they have been told that the statement about returning the deposit was "pending the (new) owners approval" and he did not approve. Therefore they will not be getting the approximately $1,600.00 deposit back. So much for the Nevada law (NRS 118A.242) that requires the new owner to return the deposit, less any itemized deductions for claimed damages?
Ms. Regina M. Mcconnell, Esq., the lawyer for the new owner, said they had filed for the eviction because they did not have a deposit and didn't know who they (the tenants) were and thought they were the old owner (remember the tenants notified Ms. Regina M. Mcconnell, Esq. on July 6th). Ms. Regina M. Mcconnell, Esq. said they had followed all the steps, including the intermediate ones. At this point Judge Ann Zimmerman stated that not all the steps were properly followed. Ms. Regina M. Mcconnell, Esq. then said that they had finally reached an agreement with the tenants (making it sound like it was the tenants fault for all this) and that it was all just a misunderstanding. Judge Zimmerman then asked Ms. Regina M. Mcconnell, Esq. if she wanted the eviction dismissed and Ms. Regina M. Mcconnell, Esq. said yes. At this point Judge Zimmerman dismissed the eviction notice on the grounds that all the procedures had not been properly followed (remember that the tenants never received the "Notice to Vacate" that was required before the eviction notice was requested from the court) and because an agreement had been reached between the new owner and the tenants. Ms. Regina M. Mcconnell, Esq. said that they had given the tenants 30 days, sound like they were being generous (remember the Federal law allows 90 days). The tenants stated at this point that they had paid the rent and Judge Zimmerman stated that was good, because they needed to. Judge Zimmerman the asked why the tenants complains said they only had 3 days, that they had received it on Wednesday. The tenant said that they had only received it on Saturday and that they had letters from 2 neighbors attesting to that fact. They Judge wouldn't accept them and stated that neighbors will always lie about such things. At this point the tenant tried to point the discrepancies in Ms. Regina M. Mcconnell, Esq. statements and ask a question, but Judge Zimmerman cut her off and told her to go to the law library downstairs.
This appears to be the end of this for now. All it took was two trips to the court, several days of research and a lot of stress and anxiety. And unfortunately the manipulation of the court system, whether accidental or intentional, was not documented. Therefore this type of situation WILL CONTINUE.
Mostly I am, of course, pleased that the eviction was cancelled, but there are some aspects of the proceedings that are troubling to me.
It seems that Judge Zimmerman showed more than a little bias during the proceedings. Her comment of "because they needed to" regarding the fact that the tenants had paid the August rent, seems both prejudicial and biased. Judge Zimmerman's comment about the letters from 2 neighbors and not accepting them saying "that neighbors will always lie about such things" again shows bias. What if the neighbors has been off duty police officers or judges or district attorneys would they also lie for their neighbors or is it just ordinary people that lie? The fact that Judge Zimmerman prevent the tenant from pointing out discrepancies in what had been entered into the court record of the proceedings by Ms. Regina M. Mcconnell, Esq. at least gives the appearance that the lawyers word counts and the tenants word doesn't. Perhaps this is another bias on Judge Zimmerman's part, similar to the "always lie about such things" comment. Perhaps she thinks that anything that the tenant would say is not relevant.
Bias on the part of a judge CAN affect the outcome of a case, even if it didn't change the outcome of this one.
The court record of the proceeding is a permanent official record. Even if no one ever looks at them in the future, they should reflect the facts as presented by BOTH sides. I one side is not allowed to state their side, then the court records become a one sided document. Should anything else go wrong in the future between this tenant and the new owner, this one sided document could taint future court proceedings. This record also did not allow information to be entered that could have brought up questions as to poor handling of this case by Ms. Regina M. Mcconnell, Esq. Questions regarding incompetence or even a possible unethical and illegal attempt to manipulate the courts into illegally evicting a tenant in violation of Nevada State and Federal Laws to gain access to the new owners property sooner. American Bar Association Model Rules of Professional Conduct provide that "a lawyer who commits fraud in the conduct of business is subject to discipline for engaging in conduct involving dishonesty, fraud, deceit or misrepresentation." Had Judge Zimmerman heard both sides of this case, she might have considered having the Bar Association look into Ms. Regina M. Mcconnell's conduct in this case.
IF the eviction notice WAS NOT served until Saturday July 24th and stated it had been served on Wednesday July 21st, then there was a severe breakdown in the process of serving a court notice. The COULD have had severe consequence to the tenants. With the statement of tenant and two witnesses, if should have been enough to look into it. This could have been as simple as just looking up vehicle or other logs for the person that served the eviction notice, or not.
I do not wish to imply or infer that Judge Zimmerman either intentionally or accidently did anything wrong. She had a full docket for the day and a packed court room. She did what she needed to make a ruling in this case, BUT she at least did not do as complete of a job as she could have. I will say that by Judge Zimmerman possibly showing bias in this case and not doing as complete of job as she could, she might not have allowed all the facts in this case to be documented. And in doing so, she may have inadvertently prevented alleged problems from being addressed and possibly resolved. If this is true, then she would be responsible for any future occurrences of these type of events (not served on the date stated, attempts to manipulation of the system to violate and circumvent laws.) After all, if you're not part of the solution, then you're are part of the problem.
From Monday August 30th through September the 2nd, 2010, the renter spent about 14 hours each of those day cleaning the house. She cleaned everything including the baseboards and the tracks of the windows. She then photographed and video taped the complete house. She then notified the property manager to arrange a walk through. The property manager came on Friday September 3th and spent 1 hour and four minutes. About 45 minutes was spent on the actual walk through, the rest was talking and filling out the form. At this time he commented on how clean the house was. He stated how clean the house was and that it was the cleanest house he had ever received back (he reiterated this many times) and he would not have to bring in a cleaning crew. He said it was ready to be rented. He said even the carpet looked good but would need to be cleaned. He then said the carpet would need to be replace (due to age). The renter asked if she was going to get the full deposit back and the property manager said definitely. He told her to call him the following Wednesday or Thursday (9/8 or 9/9) to arrange a date/time to "Pick Up the $1,400.00 Depsoit".
The renter called the property manager (George of Blackbird Realty Management) Thursday September 9th at 9:30 AM and was now told they were not going to get any deposit returned. He said the house was not acceptable. She reminded him about how he had raved about how clean it was. He then changed direction and said that they weren't responsible for the deposit, as they had not received it from the original owner. The renter then brought up NRS 118A.244(1) and that it states "(the new owner) must either pay the tenant an amount equal to the security deposit or send a itemized list of deductions for claimed damages". At this point the property managers says he has a good lawyer and she told him he did not have to return the deposit. The renter offered to send him a copy of NRS 118A.244(1) and he said "don't bother, it would be a waste of his time". Again stating he had a good lawyer and she has told him he doesn't have to return the deposit. He stated it would cost the renter way more than the $1,400.00 to hire a lawyer and try to pursue the deposit. He also said he "shitted" more than $1,400.00 per day, so it was no big deal to him. The renter email a copy of NRS 118A.244(1) to him anyway, including the portion "Caution: if you (the new owner) do neither the tenant may sue you for an amount equal to double the security deposit. See NRS 118A.242(3)."
"doesn't have to return the deposit": is this because of a "lack of legal obligation" or "because of a good lawyer" and having money at his disposal?
"a good lawyer": she advertises mostly DUI law. How trained and experienced is she on this aspect of law?
Blackbird Realty and Management, Inc.
George W. Trombley, Owner / Principal Broker
3690 South Eastern Ave. #216
Las Vegas, Nevada 89169
Phone: 702-792-8077
Fax: 702-792-0909
E-mail: broker@blackbirdrealty.com
Web Site: http://blackbirdrealty.com
Mcconnell Law Group, Ltd
also doing business as: Family Law Centers
Ms. Regina M. Mcconnell, Esq.
2850 Horizon Ridge Parkway, Suite 200
Henderson, Nevada 89052
Phone: 702-897-2829
Fax: 702-
Web Site: http://www.mlglitigation.com
Addition contact information found (old?):
1540 W Warm Springs Road # 110
Henderson, NV 89014-4335
Phone: (702) 385-7411
Fax: 702-
Web Site: http://www.familylawcenters.com
Renter's Contact Info
available upon valid request
E-mail me at azrahist@ushist.com
or call us at (530) 474-3820
The case I know about happened in Nevada (it's not us) and so I have done research on the Nevada rules, as well as the Federal law about this. Laws in your state may be different, but the Federal law would still cover this.
According to the Helping Families Save Their Homes Act of 2009, S. 896, P.L. 111-22 Federal law effective 5/20/2009; "This bill includes a nationwide 90 day pre-eviction notice requirement for tenants in foreclosed properties". Also according the Nevada courts web site, Nevada law AB 140 (2009) which took effect on 10-1-09, "gives you additional important protections". At least according to my calendar, there aren't 90 days between July 2nd and July 24th, much less July 21st or before.
Are You Renting a Residence Which Is Being Foreclosed Upon?
Under previous Nevada state law, if you were renting a dwelling unit which is foreclosed upon, you could be served with a notice requiring you to leave within 3 days. If you did not leave the new owner could file an eviction action against you.
Effective 5/20/09, a new federal law grants you important new rights. The Helping Families Save Their Homes Act of 2009, S. 896, P.L. 111-22 includes a nationwide 90 day pre-eviction notice requirement for tenants in foreclosed properties.
What can I do if the new owner says I have to leave in less than 90 days?
You can send a letter telling the new owner about the law. See the sample letters at the end of this section.
You must also offer to pay the new owner your rent and live up to the other terms of your lease.
What can I do if the new owner serves me with a notice to leave within 3 days?
You should contact a lawyer immediately. See legal resources.
If you unable to contact a lawyer, call the new owner immediately. Tell the new owner about the law and say that you are entitled to at least a 90 day notice. State that if the new owner tries to evict you that you will defend based on the new law.
Can the person, bank or other institution who buys the building at foreclosure make me leave right away?
No. The new owner needs to end your tenancy by giving you a notice to leave of at least 90-days. If you have an unexpired lease, you may be able to stay until the end of the lease.
What happens to the tenant's security deposit?
The former owner is required by NRS 118A.244(1) to either (a) return the tenant's security deposit or (b) transfer it to the new owner (you). Frequently, however, that return or transfer does not take place. In any case you (the new owner) have the same the rights, obligations and liabilities of the former landlord as to any securities which are owed at the time of transfer. See NRS 118A.244 (1)(b). Therefore you (the new owner) must either pay the tenant an amount equal to the security deposit or send a itemized list of deductions for claimed damages to the tenant within 30 days under NRS 118A.242(2). Caution: if you (the new owner) do neither the tenant may sue you for an amount equal to double the security deposit. See NRS 118A.242(3).
What must the 90 day notice say?
The new federal law applies to both single family homes and large apartment complexes. It also applies to weekly as well as monthly rentals. It does not specify what the notice should say.
Effective 10/1/09, NRS 40.255 creates additional notice requirements for residential (4 units or less) foreclosure of dwellings rented by the month or longer. The 90 day period should be contained in a notice of change of ownership which must include a statement:
(a) Giving the contact information for the person to whom rent should be paid;
(b) Notifying you that the rental agreement with the previous owner or landlord continues in effect through the notice period, and
(c) Notifying you that failure to pay rent or comply with any other term of the agreement or applicable law constitutes a breach of the rental agreement and may result in eviction proceedings.
For larger complexes and dwellings of all sizes rented for periods shorter than 30 days no specific form of notice is required. For both residential foreclosure and large complexes the notice must allow you the time required to move under the new federal law. If the new federal law is not extended by Congress, state law notice periods will govern.
What if I do not want to stay 90 days or for the remainder of my lease?
Effective 10/1/09, NRS 40.255 following residential (4 units or less) foreclosure of dwellings rented by the month or longer, tenants may vacate at any time during the notice period without penalty. No record of eviction may be entered if you vacate within the notice period.
In any case, you may be able to negotiate to see what the new owner might offer if you agree to move early. Many banks which foreclose may offer you a cash for keys option.
How do I serve the notice on the tenant?
The notice must be served under NRS 40.280 in one of the three following ways:
Please note, that if you later must seek a court order evicting the tenant, you must file a proof of service with the court. If you do not have the required documentation, the court may require you to start over again with a new notice. The proof of service must include either:
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