Small claims suit pending over lease violation

[shark41]

I reside in Wilson County, Tennessee and am the defendant in a lawsuit against an apartment complex. This is the first time I've had any trouble like this and have no idea what to do and no time to do it. I really need advice on this and would appreciate any insight. The plaintiff's complaint if for 'breach of lease agreement' resulting in damages of $1527.50 plus interest and costs. The total per the plaintiff's attorney is $2500 in unpaid rent, late fees, damage to the apartment, and of course their legal costs. We originally signed a one year lease effective 11/01/07 ending 11/30/08. The landlord taped an Intent To Vacate to our door on 10/03/08 advising that we had to be out by 10/20. We had to scramble but we were out on the 19th.

Fast-forward two years and four months. The warrant is dated 02/09/11 and was to be served that day, but due to weather and other reasons unknown to me, the warrant did not arrive until 02/15. The court date is 03/03, effectively leaving 12 business days to figure out what to do. I have contacted the plaintiff's attorney and am appaled to find out that the total they want us to pay is $2500 including the process server's fees and the attorney's fees. We went over the breakdown verbally, apparently they want the full October '08 and November '08 rent, including two late fees, and a $350 charge for breaking the lease early. Additionally, they have included $650 woth of damage to the apartment. The legal fees add up to another $600 or so.

The 'lawyer' that I spoke with (surprisingly, their specailty is collections...) then cheerfully told me that we could settle this with $150 monthly installments, with each made payment postponing the court date to the next month. At that point, I decided that speaking with their attorney was probably not in my best intrest. I told them that while we are completely willing to cooperate with this, I am not going to cut a check for $2500 without checking my rights first. The whole thing reeks of harassment to me, but the warrant is valid and this is a serious matter for us.

There is much more to this and if anyone thinks that they can help I will post it. But, to sum up, this is my uneducated take on this...

I have done some homework and found that due to the change in our income status, they were within their rights to evict us, and (according to the court) are only required to give 5 days notice in this event. However, not only were we encouraged to provide false information at the lease signing, despite our concers, the landlord knowingly put this on the lease. Not 100% sure, but I would think this is fraud on their part, especially as it is a subsidised property with rent based on income and (I believe) they receive government funding, and may be grounds to renter the lease invalid.

We will also state, while not directly related to this matter, that the landlord entered our apartment several times without giving proper 24-hour notice as required by the lease. We have no documentation to back this up, but we would be able to contact several other residents from the time that had similar issues with unauthorized entry.

As far as damage to the apartment, we would agree that some of the landlord's claims are valid and are willing to pay for what we did. We had a toddler and a dog at the time, and I'm sure there are things that were damaged. Given the plaintiff's description, though, we will not take full responsibility. We cleaned the apartment before we left as best we could with the time available. We are not malicious people; although we were upset by the landlord's handling of this, we left the apartment in better shape than it was when we moved in. We had repeated issues with roaches and fruit flies during the time we lived there, and the landlord failed to rectify the situation, another violation of the lease. We have rented from our current landlord for over two years, and I'm pretty sure they would vouch for us as good tenants if I asked them to.

Finally, this is the main point. We did not break the lease early, they forced us to move two months before the end of the lease. They are claiming that we notified them of intent to vacate; the opposite is true. We were preparing to sign on for another year, informed them verbally of our intentions, and completed the documents they required. We were completely surprised when we got the notice that we had to leave, and not happy that we were given 17 days to find new housing and make the move. Also, why now, over two years later, are they coming after us? And, can they even do this after that amount of time? The case number starts with 2010, so I'm guessing that they didn't even file a complaint until sometime last year.

I contacted the court; I can file for a continuence but all parties have to agree to it, and somehow I doubt that the plaintiff would. The warrant also states that I can file an Intent To Dispute with the plaintiff's attorney, but I have no idea what the ramifications are. We are planning our vacation between 03/18 and 03/28 and with my luck they would reschedule during that time. I'm not sure if I should retain legal council for this or where to turn if I decide to do so.

With that, I will leave it for the forum to analyze...

 

[army judge]

I reside in Wilson County, Tennessee and am the defendant in a lawsuit against an apartment complex. This is the first time I've had any trouble like this and have no idea what to do and no time to do it. I really need advice on this and would appreciate any insight. The plaintiff's complaint if for 'breach of lease agreement' resulting in damages of $1527.50 plus interest and costs. The total per the plaintiff's attorney is $2500 in unpaid rent, late fees, damage to the apartment, and of course their legal costs. We originally signed a one year lease effective 11/01/07 ending 11/30/08. The landlord taped an Intent To Vacate to our door on 10/03/08 advising that we had to be out by 10/20. We had to scramble but we were out on the 19th.

The notice to vacate isn't relevant.
You did not have to leave.
You were asked to leave.
You acquiesced to his request.
You could have stayed, and he would have had to evict you.

Fast-forward two years and four months. The warrant is dated 02/09/11 and was to be served that day, but due to weather and other reasons unknown to me, the warrant did not arrive until 02/15. The court date is 03/03, effectively leaving 12 business days to figure out what to do. I have contacted the plaintiff's attorney and am appaled to find out that the total they want us to pay is $2500 including the process server's fees and the attorney's fees. We went over the breakdown verbally, apparently they want the full October '08 and November '08 rent, including two late fees, and a $350 charge for breaking the lease early. Additionally, they have included $650 woth of damage to the apartment. The legal fees add up to another $600 or so.

You were served prior to the court date.
You have been properly served.

You could retain an attorney and a continuance would be granted to allow the attorney time to familiarize himself/herself with your case.

Don't worry about the amounts they want.
Most plaintiffs overreach.
You can make them prove up their damages.

The 'lawyer' that I spoke with (surprisingly, their specailty is collections...) then cheerfully told me that we could settle this with $150 monthly installments, with each made payment postponing the court date to the next month. At that point, I decided that speaking with their attorney was probably not in my best intrest. I told them that while we are completely willing to cooperate with this, I am not going to cut a check for $2500 without checking my rights first. The whole thing reeks of harassment to me, but the warrant is valid and this is a serious matter for us.


I have done some homework and found that due to the change in our income status, they were within their rights to evict us, and (according to the court) are only required to give 5 days notice in this event. However, not only were we encouraged to provide false information at the lease signing, despite our concers, the landlord knowingly put this on the lease. Not 100% sure, but I would think this is fraud on their part, especially as it is a subsidised property with rent based on income and (I believe) they receive government funding, and may be grounds to renter the lease invalid.

The lawsuit has nothing to do with your income status.
They rented to you, and they claim you didn't pay.
The lawsuit isn't about whether you can pay.
Stay focused. if you want to have a chance at beating (or lessening the damage) this lawsuit.

You PROBABLY didn't speak to an attorney.
You spoke with a piece of garbage debt collector masquerading as an attorney.

You keep referencing a warrant.
Do you mean "summons to appear"?

They didn't evict you.
Only a judge can evict you.
They asked you to leave, and you complied.
You do know that you could have ignored their request.
They still haven't evicted you.
They are now trying to collect unpaid rent and alleged damages to the apartment.

They asked you to leave, and you left.
They can't have it both ways.
You could have been allowed to cure the back rent, if you had gone to court..
The only thing at dispute would then be damages.

Don't complicate this.
This is lawsuit alleging that you owe them money.
They already have the premises back.
Stick to the facts.

We will also state, while not directly related to this matter, that the landlord entered our apartment several times without giving proper 24-hour notice as required by the lease. We have no documentation to back this up, but we would be able to contact several other residents from the time that had similar issues with unauthorized entry.

IRRELEVANT.
Stay on point.

As far as damage to the apartment, we would agree that some of the landlord's claims are valid and are willing to pay for what we did. We had a toddler and a dog at the time, and I'm sure there are things that were damaged. Given the plaintiff's description, though, we will not take full responsibility. We cleaned the apartment before we left as best we could with the time available. We are not malicious people; although we were upset by the landlord's handling of this, we left the apartment in better shape than it was when we moved in. We had repeated issues with roaches and fruit flies during the time we lived there, and the landlord failed to rectify the situation, another violation of the lease. We have rented from our current landlord for over two years, and I'm pretty sure they would vouch for us as good tenants if I asked them to.

Never admit to anything.
Make the plaintiff PROVE his case.
If he can't prove damages, he can't win!
Never admit to anything.

Finally, this is the main point. We did not break the lease early, they forced us to move two months before the end of the lease. They are claiming that we notified them of intent to vacate; the opposite is true. We were preparing to sign on for another year, informed them verbally of our intentions, and completed the documents they required. We were completely surprised when we got the notice that we had to leave, and not happy that we were given 17 days to find new housing and make the move. Also, why now, over two years later, are they coming after us? And, can they even do this after that amount of time? The case number starts with 2010, so I'm guessing that they didn't even file a complaint until sometime last year.

WRONG, again!
They asked you to leave.
You left.
Only a judge could have evicted you.
A landlord can't evict you.
What you received wasn't a court order.
It was a only "notice to quit".

The SOL for written contracts in TN (a lease is a written contract) is six years.
You can't use the SOL in your case.
This happened in 2008.
So, they still have three years before the SOL closes.
That's an argument you don't want to make.

I contacted the court; I can file for a continuence but all parties have to agree to it, and somehow I doubt that the plaintiff would. The warrant also states that I can file an Intent To Dispute with the plaintiff's attorney, but I have no idea what the ramifications are. We are planning our vacation between 03/18 and 03/28 and with my luck they would reschedule during that time. I'm not sure if I should retain legal council for this or where to turn if I decide to do so.

I suggest you do the following:
STOP communicating with that FAKE attorney and those collection scavengers;
Show up in court at the appointed hour, ready to deny, deny, deny;
Chances are these scumbags won't even appear:
They want EASY money, such as $150/month for LIFE;
If you show and they don't, the case will be dismissed!

Before the court date, consult a couple local attorneys.
The initial consult is usually free.
You can ask these and other questions.
If you can afford it, hire an attorney.
If you don't, DO show up.

 

[mightymoose]

We originally signed a one year lease effective 11/01/07 ending 11/30/08. The landlord taped an Intent To Vacate to our door on 10/03/08 advising that we had to be out by 10/20. We had to scramble but we were out on the 19th.

Your landlord likely did not comply with state law. You were not allowed the time to move that is required by law. Generally 30 days notice is required, but in some circumstances 60 days is required.

The warrant is dated 02/09/11 and was to be served that day, but due to weather and other reasons unknown to me, the warrant did not arrive until 02/15. The court date is 03/03, effectively leaving 12 business days to figure out what to do.

This sounds like a summons, not a warrant. From what I can tell 12 days is the minimum time allowed and may be considered a timely service. However, when you get to court you could ask for a continuance. You could even ask for a continuance prior to court if you follow the correct procedure.

We went over the breakdown verbally, apparently they want the full October '08 and November '08 rent, including two late fees, and a $350 charge for breaking the lease early. Additionally, they have included $650 woth of damage to the apartment. The legal fees add up to another $600 or so.

If you were asked to move out then they don't have much of a claim to the rent for November. You do owe a prorated amount for October for the time you were actually there. The fee for breaking the lease is also bogus if the landlord gave you notice to get out- the landlord broke the lease! Did you get your security deposit back at the time? Did the landlord ever give you any itemized list of damages? If the landlord didn't follow proper procedure then then landlord may not be able to recover anything for damages at this point. Who is to say that the damages didn't occur sometime in the last couple years since you moved out?

The 'lawyer' that I spoke with (surprisingly, their specailty is collections...) then cheerfully told me that we could settle this with $150 monthly installments, with each made payment postponing the court date to the next month. At that point, I decided that speaking with their attorney was probably not in my best intrest. I told them that while we are completely willing to cooperate with this, I am not going to cut a check for $2500 without checking my rights first. The whole thing reeks of harassment to me, but the warrant is valid and this is a serious matter for us.

Good for you! Don't pay them a dime! They want you to be afraid of court and start paying them. That makes it easier, and they have more profit. They are likely hoping that you won't show up to court so they can get a default judgment against you. Make sure you show up. Learn landlord/tenant responsibilities for your state and be prepared when you go to court. Present anything that you can to show the landlord booted you out on short notice. You might even be able to countersue for illegal eviction!

I have done some homework and found that due to the change in our income status, they were within their rights to evict us, and (according to the court) are only required to give 5 days notice in this event.

VERY WRONG! The landlord can not evict you! Only a judge can do that! You were not legally required to move when you did, even though the landlord gave you that notice to get out!

As far as damage to the apartment, we would agree that some of the landlord's claims are valid and are willing to pay for what we did.

That is very honest of you. However, at this point you are best to not freely admit that. Let them provide their evidence in court. You don't need to help them.

We did not break the lease early, they forced us to move two months before the end of the lease.

That is the heart of your defense. If you go to court and adequately explain this (hopefully you still have the notice you were given even though it has been awhile) you can likely get a quick dismissal.

Also, why now, over two years later, are they coming after us?

They are coming after you because they are probably broke. From what I can tell, it seems that this is still within the statute of limitations.

I contacted the court; I can file for a continuence but all parties have to agree to it, and somehow I doubt that the plaintiff would.

They might, if they know that their case is weak. If they refuse then you just make the motion when you get to court. You have to give good cause for it. You will first want to make a motion to dismiss and give the short notice/illegal eviction as your basis. If your dismissal is denied then ask for a continuance since you were only given 12 days notice. You aren't necessarily expected to be ready to go in 12 days- you are only expected to be able to make arrangements to appear in court.

We are planning our vacation between 03/18 and 03/28 and with my luck they would reschedule during that time. I'm not sure if I should retain legal council for this or where to turn if I decide to do so.

Don't agree to a court date during your vacation and it won't be a problem. You need to speak up! If you do get an attorney I bet this can all go away real fast... up to you though. If you are confident enough, make your first appearance on your own and ask for dismissal/continuance. If your dismissal is refused then you can get the continuance for the purpose of getting legal counsel.

As you describe it here, I don't think you have much to worry about. Read up and be prepared. You can probably get a free legal consult if you shop around a bit.

 

[mightymoose]

I am curious.... does this "warrant" that you received name a court date/time for you to appear?
Or is this a notice demanding payment before a certain date in order to avoid lawsuit?

If this isn't a state document, a summons to court, then you might be getting scammed. If you are unsure, take the document to your local court and ask them if it is legitimate and see if they have the case on calendar.

 

[shark41]

Thank you for the insight. In response to Moose, I was looking at the document after your first post. It is a Civil Warrant for Wilson County General Session Court. It was signed 12/21/10 by a Deputy Clerk and the hearing date, originally typed 02/03/11, has been crossed out and handwritten as 03/03/11. I have contacted the court and they do have a hearing scheduled on 03/03/11. There is more, I will finish that thought tomorrow...

 

[shark41]

General, thanks for the equivalent of a slap to the face. Stick to the facts. No truer words regarding the legal system, it doesn't matter what I think, it only matters what I can prove, or what they can in this case.

I have examined the document, it is a Civil Warrant signed by Wilson County deputy clerk. The suit was filed 12/21/10, the Warrant signed 02/09/11. The court date is 03/03, I have called the court to verify this. We did not receive this warrant until 02/15, due to weather and other unknown reasons by the process server / plaintiff's attorney. The phone numbers have different prefixes but the same xxx-1313 extention and go to the same office and the same girl answering the phone, which seems really shady to me. It does look authentic to me, and I have done quite a bit of research on scams. I average three 419 letters per month (these are my personal favorite), and dozens of junk e-mails to 'verify my bank account number' or 'claim my free vacation by ordering' something and so on. B.S. has a distinct odor, and this one is very ripe.

I have received a letter from the lawyer with an itemized breakdown of the alledged damages to the apartment. Thank you, Moose, I did not consider that the damages may have occoured after we left. I do have the Intent To Vacate that was taped to our door. It is unsigned, dated 10/03/08 with our move out date 10/20/10. It also notes the lease beginning 11/01/07 and ending 11/30/08. Also, we looked at our current lease and it was signed on 10/14/08, and notes a total of $1850 to move in. I think that would reinforce the argument that they broke the lease. Why would we have rented a house on 10/14 if they had not told us to leave by 10/20? We are still looking for proof that we paid the pro-rated October rent, if we can find the check that would sink them right there.

One question I do have is about the Intent To Dispute. According to the plaintiff's attorney, we can file a writted document within 30 days of being served. I would like to do this but I haven't found anything about the ramifications of doing this, if it means that I would be required to proceed with a trial at that point or anything like that. If I can't get it dismissed outright I will have to retain council at that point, we are also considering bankrupcy (unrelated to this issue) which would also kill this in its tracks.

 

[army judge]

If this is a small claims case, you don't have to file a written denial. You can simply deny everything when you appear.

 

[mightymoose]

I have received a letter from the lawyer with an itemized breakdown of the alledged damages to the apartment.

So what.... THE LANDLORD was required to notify you of the damages within a specific period of time after you moved out... likely 30 days or so. If the landlord did not do things correctly at the time, the landlord may have no claim now, regardless of what the attorney is asking for in his own list.