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Old 09-17-2014, 11:24 PM
 
64 posts, read 174,711 times
Reputation: 33

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Im evicting a tenant starting Monday morning. He has been a great tenant for 4 years and just the last 5 months he has been late on paying rent. Sometimes paying partial rent then paying the balance at the very end of the month. Ive worked with this tenant for a few month just to see if he can get back on track but its always the same excuses. So today, we had a text messaging conversation with him saying:

" i had to put a stop payment on the rent check because i had to send money to my brother who is very sick in Texas"," use my security deposit to pay for this months rent and ill move out at the end of the month".

This made me furious and i replied:

"First thing Monday morning i will put you under eviction and I WILL NOT retract the unlawful retainer until your credit is destroyed. Good luck".

His final response was:

"The copy of your threat via text will be used against you if you attempt anything unlawful".

My question is, can he contest the eviction or counter sue me for what was written on my text messages?

This is the first time ive felt so angry with this tenant. He tells me what he is going to do and that final.

Does he have a case??

Thanks
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Old 09-18-2014, 03:02 AM
 
9,650 posts, read 21,348,703 times
Reputation: 13299
You can't put someone 'under' an eviction..you can however give them a three notice to pay or quit and if they fail to comply, you then head down to the courthouse and file for a formal eviction.

He can contest whatever he wants and he can sue you for whatever he wants....will we win in court? Doubt it. Call his bluff...issue the three day notice and then file for eviction if he doesn't comply.

You also want to read up on your state's landlord/tenants laws to make sure you're following due process.
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Old 09-18-2014, 06:32 AM
 
Location: Ridley Park, PA
701 posts, read 1,455,845 times
Reputation: 922
I agree - I doubt he would win if you follow all the rules of notices and eviction. However, it's not a good idea to get vindictive with business, is it? I succeeded in suing my ex-landlord over vindictive charges to my security deposit (settled, that is), and let me tell you, the nasty, threatening text messages the woman sent me did not help her case. Stick to the basics. Be the professional.

While it may have felt cathartic to talk like Joe Biden ("I'll follow you to the gates of hell to destroy your credit" is how your text sounds), it was totally unnecessary I think.
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Old 09-18-2014, 06:33 AM
 
639 posts, read 1,698,165 times
Reputation: 1313
Threatening legal action is not a crime. That text won't exactly reflect well on you in court, but you aren't going to be prosecuted for harassment or anything.

Btw, an unlawful retainer does nothing to your credit score as far as I know.
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Old 09-18-2014, 07:07 AM
 
7,208 posts, read 6,647,908 times
Reputation: 6585
Quote:
Originally Posted by watnow78 View Post
Im evicting a tenant starting Monday morning. He has been a great tenant for 4 years and just the last 5 months he has been late on paying rent. Sometimes paying partial rent then paying the balance at the very end of the month. Ive worked with this tenant for a few month just to see if he can get back on track but its always the same excuses. So today, we had a text messaging conversation with him saying:

" i had to put a stop payment on the rent check because i had to send money to my brother who is very sick in Texas"," use my security deposit to pay for this months rent and ill move out at the end of the month".

This made me furious and i replied:

"First thing Monday morning i will put you under eviction and I WILL NOT retract the unlawful retainer until your credit is destroyed. Good luck".

His final response was:

"The copy of your threat via text will be used against you if you attempt anything unlawful".

My question is, can he contest the eviction or counter sue me for what was written on my text messages?

This is the first time ive felt so angry with this tenant. He tells me what he is going to do and that final.

Does he have a case??

Thanks
I'm no lawyer, however, I know something about collections and there are laws about what you can or cannot say in collecting money owed. Rent would be a collectable. OK so you cannot threaten people. I would not have said "until your credit is destroyed" that is a threat and I believe that is UNLAWFUL and he may be right about that.

However, he IS wrong about putting a stop payment on the rent and telling you to use the security deposit for the last months rent. People try to pull this, but it is not appropriate.

Does he have a case? I don't know. anyone sues anyone for anything these days.

What you should have said is "Dear Mr Jones - This is to inform you that your rent for October is due no later than Monday, October 6, 2014. When rent payment is not received by that date, on Monday, October 7, 2014, I will begin eviction proceedings and this includes not retracting the unlawful retainer. You may not use your security deposit for last months rent. there will be no exceptions to this deadline date."
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Old 09-18-2014, 10:05 AM
 
Location: Boise, ID
8,047 posts, read 25,373,862 times
Reputation: 9372
Your text was very unprofessional, and will definitely make you look bad in court. But it probably wasn't illegal, in and of itself. You need to do everything else by the book from this point on.

Serve the 3 day notice (or 5 day or 7 day, whichever your state uses). Make sure you serve it according to your state regulations. In my state, if I don't personally hand it to the tenant, I have to BOTH post it on the door and send a copy in the mail (I always send these both certified and regular). If you don't serve it properly, the tenant can have the eviction thrown out. Then when the 3 days is up and he has neither paid nor moved, you go to the courthouse and file for a hearing. In my area, they schedule them within 12 days. At this point, he will likely be moved out before the 12 days would be up, if he is planning on moving at the end of the month anyway. Plus, most states take longer for the hearing than the 12 days my state does. At that point, the judge will throw it out, because the house is then empty.

In the meantime, before he is moved, you could file a judgment against him, while you know where he lives to have the papers served. Include late fees, legal fees, and rent in the judgment. However, when you do go to court, if his deposit less damages and cleaning was enough to cover those things, the judge'll just throw it out again and it will show as dismissed without prejudice and not show up on the tenant's credit.

There is a point where it just isn't worth it. Personally, if the tenant was willing to move at the end of the month, I would have sent a response back that said "That is probably for the best at this point. Please leave the place as clean as possible, since you will need to write an additional check for any cleaning or repairs that have to be done."

Oh, and is it actually called an "unlawful retainer" in your area? Here it is an "unlawful detainer". Different areas, different lingo, but make sure you file for the right thing when you go to the courthouse.
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Old 09-18-2014, 11:23 AM
 
10,955 posts, read 14,695,943 times
Reputation: 16621
Quote:
Originally Posted by watnow78 View Post
"First thing Monday morning i will put you under eviction and I WILL NOT retract the unlawful retainer until your credit is destroyed. Good luck".

My question is, can he contest the eviction or counter sue me for what was written on my text messages?
NO, he can not contest or countersue you related to his tenanccy.

He CAN sue you for a violation of the Fair Credit Reporting Act. Finds are anywhere from a small $2,500 up to $10,000 or more depending on the judge. You threatened to "destroy" his credit, a clear violation of the law. Had yo just mentioned reporting him to a credit agency, and nothing else, you would have been fine. But now you crossed the line. On City Date there is a personal finance forum and there are many post on how to go about suing under FCRA when threatened along with people who have posted the monetary payments the court granted them.

Sorry, but you are on very thin ice if they happen to learn they can sue you over the threat to "destroy their credit". You need to speak with your attorney and give them the heads up so they can preempt any suit or at least start doing something to lessen your liability.

In the future, don;t let your emotions drag your butt into trouble.
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Old 09-18-2014, 11:26 AM
 
Location: Kailua Kona, HI
3,199 posts, read 12,083,735 times
Reputation: 3403
Hire someone who actually knows what they're doing to prepare your Pay or Quit Notice, serve it, and follow up with an eviction filing. Use that time to educate yourself on the law as it applies to you so that if there is a next time, you will know how to prepare. Do be aware that when served a Pay or Quit, if they pay in full, they are satisfying the Demand. You cannot refuse full payment but you can refuse partial payment. If you accept partial payment, the Notice is void.
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Old 09-18-2014, 12:54 PM
 
Location: Riverside Ca
21,701 posts, read 24,331,904 times
Reputation: 34072
You're being as hot headed as the tenant. If I would get such notice I would simply go ahead and do what I needed to do. I wouldn't even bother with a response. When you send such correspondence you need to be a little more calm and collect your thoughts before you respond. You can respond but need to think on how to respond.
As long as you do everything by the book there is nothing unlawful.
Best thing to do is to hire a service that does evictions if you don't know how. They will complete the whole process.
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Old 09-18-2014, 01:16 PM
 
Location: St Thomas, US Virgin Islands
24,671 posts, read 62,285,563 times
Reputation: 26588
Quote:
Originally Posted by Lacerta View Post

There is a point where it just isn't worth it. Personally, if the tenant was willing to move at the end of the month, I would have sent a response back that said "That is probably for the best at this point. Please leave the place as clean as possible, since you will need to write an additional check for any cleaning or repairs that have to be done."
I totally agree and my suggestion to the OP is that he communicate with his tenant in that vein (and I would also apologize for the hasty earlier words), patch things up and let him leave. The end of the month is less than two weeks away and being pig-headed is only going to end up with you taking all that time to go to court. If you haven't been that route before, trust me who has done it several times that it's not a quick walk down the lane and doesn't happen overnight.

You never had a problem with him for 4 years.
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