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So I've tried twice to go to court and represent myself in a small claims case against my former tenants who owe me one months rent, their security deposit and an additional week that they stayed in the home, promising to pay and never did. The first day, their attorney asked for a postponement, the second day after sitting for 6 hours, they said their subpoenaed witness had to catch a school bus so it was delayed again.
I am 99.999% sure I have a great case here as I did a walk through 2 weeks before they were supposed to move out and sent them a certified letter outlining the "issues" I saw during that walk through. They did not show up for the final walk through and refused the certified letter outlining damages with pictures 15 days after they moved out.
They are counter suing me for Fraud and breech of habitability for 20,000. Claiming the dishwasher didn't work, the water softener didn't work, the ovens didn't work. Mid you I don't have a single written complaint about any of these appliances or to be honest even a verbal complaint.
So my lease says that if we have to go to court they are responsible for attorney fees. Has anyone been successful in getting their legal fees paid? I don't get a good feeling about this Judge. He dismissed our objection to allowing the second delay telling us simply "goodbye". Consulted with an attorney who says they have no case but wants 3500.00 retainer. Their attorney has also not responded to our Discovery Request and is suing me in the wrong court as this courts max is 15,000. I can't figure out how to handle this in court!
Do I pay out 3500. and hope we get awarded them back then even if we do how do we collect? Or try to represent my self hoping that the Judge understands he has an obligation to insure my rights are not violated. Frankly I believe it is my Constitutional right to represent my self in Civil court and believe I have a great case. Again not ONE SINGLE WRITTEN complaint about none working appliances or any issues with the house. They on the other hand neglected things (screws on the toilet came loose, they used the toilet like that rather then tightening the screws, ruined the under flooring and tile), the dishwasher racked were destroyed by the hard water, the boiler was growing mineral formations a half inch long, they left tons of personal belongings and we had to have the entire home painted and Spackled due to her HUNDREDS of nail holes and big screen TV mounts. I can't even get the painting included as the painter, a friend, doesn't want to get involved and did it for barter. So reality is I want 4500.00 , one month rent, their security deposit (which was eaten away by late fees which they were notified in writing about at the start of the second lease term) and the extra week that she promised on her kids lives she would pay.
one months rent, their security deposit and an additional week...
how much does that all add up to?
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So I've tried twice to go to court
The first day, their attorney asked for a postponement,
the second day after sitting for 6 hours...
They are counter suing me...
I don't get a good feeling about this Judge.
Thanks, LOVE it! Yea I know it is a gamble but I also know I have a lease that states that if we go to court that they are responsible for the fees, then again I've read here a number of times that even though late fees are in the lease, they are impossible to collect on..........
It seems in landlord tenent court contracts/leases are not binding even though written by a lawyer!
The OP said he's looking for $4,500 which to me is daft because rule of thumb when going to court is to ask for way more than you expect to receive - and which his slum tenants are doing by filing a counterclaim of $20K for alleged violations by the LL for which they have absolutely NO evidence whatsoever.
Casper, it sounds as though you legally have all your ducks in a row. Keep them in a row by maintaining every single receipt of every move you make trying to bring this case to resolution.
Honestly, I would seriously consider contacting your local Bar Association or Legal Aid to see if you can locate an enterprising upcoming attorney who knows his or her way around the courtroom and will take you on either pro bono or at a considerably lower retainer. Since the case has been delayed/postponed twice already, I believe you have wiggle room to amend your case for higher damages and particularly since your Discovery request was ignored. Been there, experienced that, done that and finally won pro se but at huge emotional expense even though I was the talk of the local legal community for quite a while for having beaten the SOB!!!. And yes, attorney's fees along with court fees are indeed awarded at the judge's discretion if you prevail.
I missed that. But he still can't sue for the SD to be replenished.
So Casper, that leaves what... $2000? maybe 2500?
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Casper, it sounds as though you legally have all your ducks in a row.
Really? All I see is a flood of "he said vs she said" and some ambiguous accounting.
Worse though is an opponent who seems willing and able to afford paid attorneys.
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Originally Posted by STT
...but at huge emotional expense even though I was the talk of the local legal community for quite a while for having beaten the SOB!!!.
Uh huh.
Percentages... again, I just don't see them here.
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Originally Posted by Casper
...their security deposit (which was eaten away by late fees...)
For future reference... any back rent, late fees, repairs and similar unpaid balances due from the tenant should get settled first out of any money received from them before applying the balance of such payment against the current period rent due.
iow... Never touch the SD for these things. (If your lease doesn't describe this approach change it)
Thus, when the 10th rolls around and they are still short that months rent (because of the $100 or so applied to the old business first) you file a pay or quit notice along with yet another late fee attached...
and pursue any Court action for the unpaid rents alone (which even tenant friendly Courts don't tolerate lightly).
Eventually the tenant will either "get it" and catch up or they'll move out or they'll keep playing the suckers game with you. But whichever way it turns out you still have the SD to protect you against damages until they do leave and you then settle up after you've had time to assess.
hth
Last edited by MrRational; 10-11-2011 at 08:54 AM..
I missed that. X
Really? All I see is a flood of "he said vs she said" and some ambiguous accounting.
Worse though is an opponent who seems willing and able to afford paid attorneys.
.. Never touch the SD for these things. (If your lease doesn't describe this approach change it)
I think you missed more than one thing. According to the OP, the items in his tenant's $20K countersuit were never addressed by the tenant to the LL either in writing or verbally so the onus is on the defendant to prove that proper procedure in accordance with state landlord tenant laws was followed. That's almost universally a return receipt certified mailing and if the tenant doesn't have that then his countersuit is groundless.
One shouldn't assume that the "opponent" has an attorney who is capable. The most inept attorney can be intimidating to a lay person and many of them who take on small claims cases rely on exactly that when their court protagonist isn't a "pro" but goes pro se. That's precisely why I suggested that the OP examine his options where hiring a qualified attorney is concerned.
Finally, there are many states where a LL can, upon final accounting, use the security deposit to cover not only actual documented damages but also defaulted rent payments and accrued late fees.
According to the OP, the items in his tenant's $20K countersuit...
I dismissed that entirely as the thinly veiled threat it is meant to be.
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One shouldn't assume that the "opponent" has an attorney who is capable.
Capable enough to have already wasted the OP's time twice ...
and put him up against paying $3500 to hire an attorney to defend himself...
and/or hire an attorney at all to get a judgment for maybe $2500 in rent court.
(and don't forget that a judgment still isn't the cash)
That's capable enough.
This doesn't mean that Casper doesn't have legitimate arguments to recover the $2500
and probably more. But based on what's been revealed? It's still back to the percentages.
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Originally Posted by Kenny
You've got to know when to hold 'em ... Know when to fold 'em
Know when to walk away ... Know when to run
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Originally Posted by STT
Finally, there are many states where a LL can, upon final accounting, use the security deposit...
Most states do. But as I mentioned... it's still a bad practice to allow (let alone offer!) for the tenant to use the SD for anything before the tenant has moved out and the LL knows that the meter on damages (that the SD is really about) has stopped running.
I get it Mr Rational, never forgive a tenent........it is all business. However I did give them a break down in writing regarding the late fees prior to the start of the month to month lease as the original lease was one year. I also didn't touch the SD or withdraw late fees from it during their rental term, just advised them it was owed and needed to be brought current.
The reality is after these folks moved out I bartered with a couple to do some painting, clean up, instead they sold heroin from the house and snorted/huffed all the spray paint that we bought to redo heaters etc! Based on what their attorney said in mediation, they are claiming that the damages done were done by the next tenants not them. Since I did a walk through with a Realtor 2 weeks before they moved out, documented everything and sent if certified mail which was refused. I really have no idea what their defense is.............
If anything attorny's are good at finding loopholes and although I am pretty good at initial procedures with courts, the second level is a bit confusing. The fact they didn't return discovery, does that mean they can't use evidence? I honestly don't believe they have any because I never got a single letter of complaint from them in the 2 years they lived there. What about them suing me for 20,000 in a court that hears cases up to 15,000? One issue that may bite me is that our town required a CO for a rental. The ordinance was published in the town news letter which was the only publication according to the Building Department, I probably tossed the news letter since we don't live there any more and had no need to know the soccer field schedule. We had registered the home as a rental home which was requried according to the towns web site. When we were informed by the town we needed a CO, we complied with in 2 days and passed. No fine from the town. HOWEVER I understand from case law, the lack of CO defense can't be used if they have left the property which is one of their "defenses".
I get it Mr Rational, never forgive a tenant... it is all business.
If anything attorney's are good at finding loopholes...
I am pretty good at initial procedures with courts, the second level is a bit confusing.
Do you belong to a Landlords association? If not, then join today.
Because a lot of your points depend on local law and process...
rather than an attorney I'll recommend that you find one of the gnarled but not too old experienced local landlords at the association to help you with the details. Buy him lunch and go over it all.
If it comes to it... he'll also know which local attorney to get help from.
This group will also help you write a new lease and some procedures that protect you better in the future.
Good luck.
I really have no idea what their defense is.............
If anything attorny's are good at finding loopholes and although I am pretty good at initial procedures with courts, the second level is a bit confusing. The fact they didn't return discovery, does that mean they can't use evidence? When we were informed by the town we needed a CO, we complied with in 2 days and passed. No fine from the town. HOWEVER I understand from case law, the lack of CO defense can't be used if they have left the property which is one of their "defenses".
1. Their defense is as laughable as their countersuit.
2. Yes, the second level IS confusing. In my "big" case I was pro se against three of the top litigation attorneys in the territory in a LL/Tenant issue. I meticulously filed discovery and right up to the court date they'd still responded only partially. I won the case but was a ragged heap by the time the ordeal was finally over and I only persevered because the person I was suing was a despicable creature who'd been sued many times over before and always prevailed because his team of attorneys simply and systematically wore everybody down. I was just plain and simply mad at his shenanigans ...
In a recent case involving a landlord/tenant dispute I had everything pretty much sewn up and would have prevailed but an attorney friend of mine said he had to be in court that day and would be happy to "stand up" for me. Of course I accepted his gracious offer and the whole affair was over in a heartbeat without my having to say one word as all my paperwork was in order with all the "t's" crossed and the "i's" dotted!
3. No way is the CO an issue if, as you said, you immediately complied with local statutes as soon as you were made aware of the default. Just another ploy on their part to bolster their ridiculous claims and all you have to do is maintain your records and keep everything in order so you're not fumbling around wasting the judge's time.
Do look into alternatives where attorney representation is concerned and let us know how things progress.
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Funny!
