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Real Estate Investing Forums | Real Estate Investing | Asset Protection, Legal and Contract Issues, Income Taxes, 1031 Exchanges (Moderators: $Cash$, Bluemoon06, kdhastedt, Mdhaas, motivatedceo) | Topic: Tenant filed eviction Appeal using Pauper Affidavit « previous next »
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fadi
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« on: January 13, 2009, 07:33:11 PM »

I was in the process of evicting a tenant from hell. I have won the eviction and given the judgement, however I learned today that they have appealed the eviction and filed pauper affidavit. They have appealed within the allowed period.

Now, they are refusing to pay, and refusing to leave of course. They have no intention of making back rent and they made that clear. They also do not want to leave the house.

Is there a way to contest the pauper/appeal? how do you deal with such tenants?
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Dave T
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« Reply #1 on: January 13, 2009, 08:30:50 PM »

I understand that your case will be determined in accordance with the state laws of Texas.  Understand that I am not a Texas resident, have not owned any rental property in Texas since 1989, and may have an imperfect understanding of the process and procedures.

Therefore let me make some general comments which you may use to facilitate discussions with your attorney.

Currently, a tenant may be evicted for nonpayment of rent or other lease violations in an eviction suit.  Under the rules of civil procedure, if a tenant does not prevail in the suit, the tenant may appeal the judgment, which requires the payment of an appeal bond or a pauper's affidavit in lieu of an appeal bond. 

I suspect the pauper's affidavit has been abused in the past by non-paupers who falsely claim to be a pauper simply to slow down the eviction process and make it more costly for the landlord.

The landlord can contest a pauper's affidavit.  The window is very short, you have to file your notice to contest within something like five days after the date the affidavit is filed.  If the landlord contests the affidavit, the court will hold a hearing within the next five days to determine whether the tenant is unable to pay the costs of appeal or file an appeal bond.   The tenant has the burden to prove that he/she is unable to pay the costs of appeal or file an appeal bond.

However, the appeal does not give the tenant any dispensation from paying rent.  Provided the eviction case under appeal is based on nonpayment of rent and the tenant appeals by filing a pauper's affidavit, the tenant is required to pay the rent, as it becomes due, to the court pending the outcome of the appeal. 

If the tenant fails to pay the rent to the court as required, the landlord can petition the court for an immediate writ of possession to be executed six days later.


« Last Edit: January 13, 2009, 08:32:52 PM by Dave T » Report to moderator   Logged
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« Reply #2 on: January 13, 2009, 08:34:00 PM »

They are just milking the system for more time and there is really nothing you can do about it. Just make sure you show up for the appeal per Dave. Once it is denied, you can toss them and begin collection. If I remember correctly, Texas has a lock out law. Can't you lock them out of the property?
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« Reply #3 on: January 13, 2009, 10:47:11 PM »

Thanks guys, I am looking for a good lawyer in San Antonio right now, and I do plan on contesting it, but if i find a lawyer tomorrow I will see if he wants to do it.

The eviction is for none-payment. How can I find out if the tenant failed to pay the rent to the court? will I be notified of the process by the court?

If they pay the rent during the appeal, I don't mind them appealing, at least I start collecting rent till they are out Smiley
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Real Estate Investing Forums | Real Estate Investing | Asset Protection, Legal and Contract Issues, Income Taxes, 1031 Exchanges (Moderators: $Cash$, Bluemoon06, kdhastedt, Mdhaas, motivatedceo) | Topic: Tenant filed eviction Appeal using Pauper Affidavit « previous next »
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