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Can I sue for damages without 45 day letter?

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jasonmurrayus

Junior Member
Indiana.
I was sued by previous tenant for security deposit. I have pics, written statement from witness that notarized and receipts showing that the apartment was trashed.

I didn't get 45 day letter to them thru the mail so case closed that's it. Judge stopped it there.

Damages far exceed the $700 security deposit. Can I now sue for damages to get the rest of what is owed? $1477 was total amount of damage done.
 
Last edited:


Gail in Georgia

Senior Member
The statute in your state covering this area:


IC 32-31-3-12
Return of deposits; deductions; liability
Sec. 12. (a) Upon termination of a rental agreement, a landlord shall return to the tenant the security deposit minus any amount applied to:
(1) the payment of accrued rent;
(2) the amount of damages that the landlord has suffered or will reasonably suffer by reason of the tenant's noncompliance with law or the rental agreement; and
(3) unpaid utility or sewer charges that the tenant is obligated to pay under the rental agreement;
all as itemized by the landlord with the amount due in a written notice that is delivered to the tenant not more than forty-five (45) days after termination of the rental agreement and delivery of possession. The landlord is not liable under this chapter until the tenant supplies the landlord in writing with a mailing address to which to deliver the notice and amount prescribed by this subsection. Unless otherwise agreed, a tenant is not entitled to apply a security

deposit to rent.
(b) If a landlord fails to comply with subsection (a), a tenant may recover all of the security deposit due the tenant and reasonable attorney's fees.
(c) This section does not preclude the landlord or tenant from recovering other damages to which either is entitled.
(d) The owner of the dwelling unit at the time of the termination of the rental agreement is bound by this section.
As added by P.L.2-2002, SEC.16.


IC 32-31-3-13


Gail
 

latigo

Senior Member
Indiana.
I was sued by previous tenant for security deposit. I have pics, written statement from witness that notarized and receipts showing that the apartment was trashed.

I didn't get 45 day letter to them thru the mail so case closed that's it. Judge stopped it there.

Damages far exceed the $700 security deposit. Can I now sue for damages to get the rest of what is owed? $1477 was total amount of damage done.
No, you cannot "now sue for damages to get the rest of what is owed".

Not if a final judgment was entered in the suit brought by the tenant to recover the security deposit. Which seems to be so - "case closed".

If you wish to know why you are now barred from filing such a claim, ask and I will explain the consequences of Indiana Trial Rule 13(A) "Compulsory Counterclaims".
 

jasonmurrayus

Junior Member
No, you cannot "now sue for damages to get the rest of what is owed".

Not if a final judgment was entered in the suit brought by the tenant to recover the security deposit. Which seems to be so - "case closed".

If you wish to know why you are now barred from filing such a claim, ask and I will explain the consequences of Indiana Trial Rule 13(A) "Compulsory Counterclaims".

So if evidence was left out or misunderstood could I appeal? I never received a letter from the tenants with forwarding address. They had sent a text. The tenants received scanned copy of the letter with damages within the 45 days but the scanned copy was sent by text. Both tenant and I acknowledge receipt of document thru text.
 

justalayman

Senior Member
So if evidence was left out or misunderstood could I appeal? I never received a letter from the tenants with forwarding address. They had sent a text. The tenants received scanned copy of the letter with damages within the 45 days but the scanned copy was sent by text. Both tenant and I acknowledge receipt of document thru text.
your time to sue was as a counterclaim of their action. If you failed to do so, you are now barred from suing as that was your time to act. The judge ruled on the case and both parties walked away with all they are going to get.

You can ask latigo to explain it if you care to but that is the basis of that rule he mentioned.
 

jasonmurrayus

Junior Member
your time to sue was as a counterclaim of their action. If you failed to do so, you are now barred from suing as that was your time to act. The judge ruled on the case and both parties walked away with all they are going to get.

You can ask latigo to explain it if you care to but that is the basis of that rule he mentioned.
So I'm left with the option to appeal the decision? They did not provide a letter with forwarding address.
 

jasonmurrayus

Junior Member
So I'm left with the option to appeal the decision? They did not provide a letter with forwarding address.
When I asked if texting was a legal form of communication he said no and I was stunned at how quick it went that I didn't explain that I didn't have forwarding address. I had text with tenant and that was all.
 

latigo

Senior Member
So if evidence was left out or misunderstood could I appeal? I never received a letter from the tenants with forwarding address. They had sent a text. The tenants received scanned copy of the letter with damages within the 45 days but the scanned copy was sent by text. Both tenant and I acknowledge receipt of document thru text.
No you cannot appeal. But why would you expect to be able to appeal a court decision that was favorable to you?
________________

The following might help to explain why you are not permitted to file an independent lawsuit against the former tenant for losses you suffered over and above the security deposit.

"Indiana Trial Rule 13(A) (Compulsory counterclaims)

A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject-matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.

When a party fails to file a compulsory counterclaim in the initial action, that claim is forever barred if the initial action has proceeded to judgment. Ratcliff vs. Citizens Bank Court of Appeals of Indiana, Case O. 79-A05-0190 -CV (May 2002)  Crider v. State Exch. Bank of Culver, 487 N.E.2d 1345, 1349 (Ind.Ct.App.1986). "


______________________

All state courts and the federal courts operate under the same restrictive rule. Its purpose is to prevent multiple lawsuit between the same people involving the same subject matter.
 

jasonmurrayus

Junior Member
No you cannot appeal. But why would you expect to be able to appeal a court decision that was favorable to you?
________________

The following might help to explain why you are not permitted to file an independent lawsuit against the former tenant for losses you suffered over and above the security deposit.

"Indiana Trial Rule 13(A) (Compulsory counterclaims)

A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject-matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.

When a party fails to file a compulsory counterclaim in the initial action, that claim is forever barred if the initial action has proceeded to judgment. Ratcliff vs. Citizens Bank Court of Appeals of Indiana, Case O. 79-A05-0190 -CV (May 2002)  Crider v. State Exch. Bank of Culver, 487 N.E.2d 1345, 1349 (Ind.Ct.App.1986). "


______________________

All state courts and the federal courts operate under the same restrictive rule. Its purpose is to prevent multiple lawsuit between the same people involving the same subject matter.


I have to pay $700... How's that in my favor? Tenant trashed the place, did $1400 in damage and I have to pay them
 

jasonmurrayus

Junior Member
I have to pay $700... How's that in my favor? Tenant trashed the place, did $1400 in damage and I have to pay them
There has to be a case similar that texting documents were legal forms of communicating. The tenant even acknowledges receipt of the text and scanned doc. The judge said "if you can show me a case when that is true I will listen."
 

jasonmurrayus

Junior Member
There has to be a case similar that texting documents were legal forms of communicating. The tenant even acknowledges receipt of the text and scanned doc. The judge said "if you can show me a case when that is true I will listen."

What about this case???

http://www.in.gov/judiciary/opinions/previous/wpd/03040301.nhv.doc
 

latigo

Senior Member
I have to pay $700... How's that in my favor? Tenant trashed the place, did $1400 in damage and I have to pay them
If the judge ruled against you, why would you be asking if you could "sue for damages for the REST of what is owed"?

The reasonable interpretation is that you got to keep the bloody deposit!

If you lost in the trial court and did so timely, you could appeal from that decision. But your claim for damages is kaput!

Also, next time you want a legal question addressed in these forums you might consider having someone with basic skills of communication explain it!
 

jasonmurrayus

Junior Member
If the judge ruled against you, why would you be asking if you could "sue for damages for the REST of what is owed"?

The reasonable interpretation is that you got to keep the bloody deposit!

If you lost in the trial court and did so timely, you could appeal from that decision. But your claim for damages is kaput!

Also, next time you want a legal question addressed in these forums you might consider having someone with basic skills of communication explain it!
Hey don't be so sensitive... Lol. Didn't mean to give you a melt down.

I really do appreciate you taking your time to post on here and give good advice and ask for nothing in return. Sometimes I out think my typing and it gets jumbled up. I'll try to slow down.

So I , the LL, Was sued by the tenant for security deposit approx 50 days after lease-end date. I scanned document showing cost of damages and sent via text message in approx 2 weeks. The tenant responds about the document and acknowledges receipt of the damages via text message but disagrees with the cost breakdown. The tenant sent me her forwarding address to her new residence thru text message as well. The tenant sent that text about one day after move out. The judge declared that texting would not work. It must be mailed and didn't look at the scanned document and case closed.


I'm ordered to pay $700 plus a bloody $94 in court cost.

Thanks for taking time to respond
 

LdiJ

Senior Member
Hey don't be so sensitive... Lol. Didn't mean to give you a melt down.

I really do appreciate you taking your time to post on here and give good advice and ask for nothing in return. Sometimes I out think my typing and it gets jumbled up. I'll try to slow down.

So I , the LL, Was sued by the tenant for security deposit approx 50 days after lease-end date. I scanned document showing cost of damages and sent via text message in approx 2 weeks. The tenant responds about the document and acknowledges receipt of the damages via text message but disagrees with the cost breakdown. The tenant sent me her forwarding address to her new residence thru text message as well. The tenant sent that text about one day after move out. The judge declared that texting would not work. It must be mailed and didn't look at the scanned document and case closed.


I'm ordered to pay $700 plus a bloody $94 in court cost.

Thanks for taking time to respond
You are SOL. You didn't follow the rules, got sued, and lost. Next time follow the rules. Also, while texting is not proper for a legal requirement, it is ok for information. So, while it was not proper for you to use text to give them the letter showing damages and cost, it was ok for them to use it to give you their forwarding address.
 

jasonmurrayus

Junior Member
You are SOL. You didn't follow the rules, got sued, and lost. Next time follow the rules. Also, while texting is not proper for a legal requirement, it is ok for information. So, while it was not proper for you to use text to give them the letter showing damages and cost, it was ok for them to use it to give you their forwarding address.
Am I missing something?? The law says both in writing.

IC 32-31-3-12
Return of deposits; deductions; liability
Sec. 12. (a) Upon termination of a rental agreement, a landlord shall return to the tenant the security deposit minus any amount applied to:
(1) the payment of accrued rent;
(2) the amount of damages that the landlord has suffered or will reasonably suffer by reason of the tenant's noncompliance with law or the rental agreement; and
(3) unpaid utility or sewer charges that the tenant is obligated to pay under the rental agreement;
all as itemized by the landlord with the amount due in a written notice that is delivered to the tenant not more than forty-five (45) days after termination of the rental agreement and delivery of possession. The landlord is not liable under this chapter until the tenant supplies the landlord in writing with a mailing address to which to deliver the notice and amount prescribed by this subsection. Unless otherwise agreed, a tenant is not entitled to apply a security

deposit to rent.
(b) If a landlord fails to comply with subsection (a), a tenant may recover all of the security deposit due the tenant and reasonable attorney's fees.
(c) This section does not preclude the landlord or tenant from recovering other damages to which either is entitled.
(d) The owner of the dwelling unit at the time of the termination of the rental agreement is bound by this section.
 

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