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One comment about a statute of limitations. It only governs how long a creditor has to sue a debtor in court. After it expires, if the creditor files suit the debtor can answer the suit with a motion to dismiss as untimely and the court will dismiss if the debtor is correct.
However...the expiration of the SOL does not "erase" the debt. It still exists, it just can't be pursued in court. The creditor (landlord) can hound you forever if they want to. And that can be fraught with peril, because in some states under some conditions if the debtor isn't careful they can "reset the clock" allowing the creditor to sue after all.
Just pay it or work out a settlement.
Disclaimer: I am not an attorney and this is not to be considered legal advice.
I've had some crappy exchanges with an NYC landlord so I know how the OP feels. If I got this letter from a former NYC landlord who I hated, here is what I would do:
First, acknowledge to yourself that you do owe this money. You wrote the check and it was never cashed (double check with your bank just to be sure). You've essentially been holding this money for the landlord.
Second, ignore the letter. You've made good on your obligation to pay the rent and have a copy of the check to prove it. Make them actually sue you for it- it will likely cost more than the amount of the rent that they are seeking just to have a lawyer file the paperwork, assuming they don't use small claims. Ignore any letters from law firms. If they try to use a collection agency, just mail them the check copy that the landlord so graciously just mailed to you.
Third, if you're ever served with court docs, settle the case by paying the amount due.
As you'll note from this strategy, you are no worse off at the end than you would be if you just paid immediately. The landlord will have to pay the price for their negligence and poor business practices. You also have a decent chance of never having to pay the rent. Some may say that this is the unethical way to go, but in my opinion, you've already done your job and the landlord clearly hasn't done theirs. Make them pay for their mistake as I'm sure they made you pay for things that probably weren't your mistake while you were a tenant (if they are anything like many of the bad landlords in NYC).
I've had some crappy exchanges with an NYC landlord so I know how the OP feels. If I got this letter from a former NYC landlord who I hated, here is what I would do:
First, acknowledge to yourself that you do owe this money. You wrote the check and it was never cashed (double check with your bank just to be sure). You've essentially been holding this money for the landlord.
Second, ignore the letter. You've made good on your obligation to pay the rent and have a copy of the check to prove it. Make them actually sue you for it- it will likely cost more than the amount of the rent that they are seeking just to have a lawyer file the paperwork, assuming they don't use small claims. Ignore any letters from law firms. If they try to use a collection agency, just mail them the check copy that the landlord so graciously just mailed to you.
Third, if you're ever served with court docs, settle the case by paying the amount due.
As you'll note from this strategy, you are no worse off at the end than you would be if you just paid immediately. The landlord will have to pay the price for their negligence and poor business practices. You also have a decent chance of never having to pay the rent. Some may say that this is the unethical way to go, but in my opinion, you've already done your job and the landlord clearly hasn't done theirs. Make them pay for their mistake as I'm sure they made you pay for things that probably weren't your mistake while you were a tenant (if they are anything like many of the bad landlords in NYC).
Morality aside, the flaw I see in that plan is that if the landlord sues there is no guarantee they will settle. I've never been a landlord but if I was and you forced me to sue you in such a slam dunk win I'd certainly not settle unless you also coughed up my attorney's fees and court costs, which I'd probably get awarded in court. So you would very likely be worse off in the end.
Morality aside, the flaw I see in that plan is that if the landlord sues there is no guarantee they will settle. I've never been a landlord but if I was and you forced me to sue you in such a slam dunk win I'd certainly not settle unless you also coughed up my attorney's fees and court costs, which I'd probably get awarded in court. So you would very likely be worse off in the end.
I guess this is where you and I have to agree to disagree. In my opinion, the judge will see the check as proof that the tenant thought he had a colorable claim that he no longer owed the amount due, such that attorney's fees and court costs would not be awarded to the landlord. I'd even be willing to stake attorney's fees and court costs on it, if it were me in the situation.
You have to have a real slam dunk case to get those kinds of reimbursements with no bad acts by the plaintiff, and having a tenant who already tendered a valid check for the full amount due does not paint a picture of a bad defendant. I'd imagine that the judge will find fault in the landlord for not cashing the check or noticing for 2 whole years in weighing whether to award costs.
This is the USA- it is not a "loser pays costs" system. That only happens in egregious cases, unlike this one. Or where it is statutorily required (typically civil rights, discrimination, etc.). Interestingly, many states have statutes requiring landlords to pay court costs when tenants are successful in court, but do not require the reverse.
Last edited by NYCresident2014; 09-01-2015 at 02:28 PM..
I guess this is where you and I have to agree to disagree. In my opinion, the judge will see the check as proof that the tenant thought he had a colorable claim that he no longer owed the amount due, such that attorney's fees and court costs would not be awarded to the landlord. I'd even be willing to stake attorney's fees and court costs on it, if it were me in the situation.
You have to have a real slam dunk case to get those kinds of reimbursements with no bad acts by the plaintiff, and having a tenant who already tendered a valid check for the full amount due does not paint a picture of a bad defendant. I'd imagine that the judge will find fault in the landlord for not cashing the check or noticing for 2 whole years in weighing whether to award costs.
This is the USA- it is not a "loser pays costs" system. That only happens in egregious cases, unlike this one. Or where it is statutorily required (typically civil rights, discrimination, etc.). Interestingly, many states have statutes requiring landlords to pay court costs when tenants are successful in court, but do not require the reverse.
Well, even if I agreed about the fees and costs (it could be as you say in NY but certainly not everywhere), imho not taking any action on the uncashed check for all that time is fairly egregious, especially so if trying to use that as justification for not paying at all. I'd be calling my LL up around the middle of the month if my check hadn't cleared.
I suspect that this is no longer a rent due case. I think it is a bad check case and OP is going to have to make the check good.
Although, rent is still due. The rent is not paid when the check is handed over. The rent is paid when the check clears the bank and this check never cleared the bank.
I don't think a judge would grant late fees or a bounced check fee, but he will, for sure, order OP to make the check good.
What if the landlord thought the check was lost permanently and asked for a replacement check, years ago, and the tenant sent one and then forgot about it, and isn't aware that the rent is already paid?
That's the exact reason why the SOL exists. You can't even claim lottery winnings if you wait too long. Because, the more time passes, the more likely the claim is in error, and the harder to verify.
How would the OP Not notice they have XXX left in the bank Month after month? What you don't Check your spending against your balance? That's dangerous as you could have went in the red & not know it. And at $35 where I live for Bouncing checks ALL over Plus Collection fees & Possible Jail Time... YES You Can end up in Jail for Bouncing Checks! Even IF you earn enough Not to worry about the Bounced checks .... Wouldn't you Want to know IF some one Wrote & Cashed checks You didn't authorize?? One way or another YOU had to know IMO So write the LL a New check & do an in-person Exchange! Write VOID All over the old check. Cause not all cashiers pay attention to dates!
If sued, feign ignorance or claim you paid in cash after a bank problem or something - and it's been so long you no longer have the receipt. Be creative.
It's not a good idea to commit perjury, nor to advocate it, as you have done.
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