Iowa-Landlord with-holding deposit

[firemanup]

What is the name of your state? Iowa

I have filed a case for return of a security deposit. The landlord inspected the house on two occassions and verbally ok'd it both times, (he wanted to do a second "more thorough" inspection)

2 weeks later we received a certified letter saying he's refusing to return our deposit because it was dirty and a couple latches were worn out, (normal wear and tear)

We confronted him with this as he'd ok'd it twice before and we would not have vacated nor returned the keys had he not ok'd it we would have rectified any problems. He threatened us with his "lawyer" so we filed small claims case against him.

The paperwork from the court stated he had 20 days to respond or it would be a default judgement, he did not respond until 22 days later. The clerk of court is refusing to file the judgement and saying we have to go to trial.

Does anyone know if there is a statute that says he has only 20 days and if so the statute number?

Also he verbally told us all was ok twice, then in a written signed by him letter stated that it was dirty so he was going to keep the deposit, then when answering our claim, he has now filed a counter claim for $4,000 (now the property is damaged by us even though it wasn't before as stated in his own letter)...... completely frivolous, is there any recourse for this??

We have complete video of the outside and inside of the house upon our vacating, it is imaculate. As well as him admitting on audio tape that he ok'd it and all was well initially. (this is legal in iowa as long as one side of the conversation knows the conversation is being recorded).

The two main questions here are is there a statute stating the defendant only has 20 days to respond, and is there any action to be taken against his inflated frivolous response? Punitive damages allowed??

Thank you for any help, any further information you need to know please ask and i'll provide short of names/location

Jason

 

[gooberitiz]

You will need something to pay the video on for the judge...

Contact you A/V rental store in the yellow pages , and rent a 13" tv with a vcr built in.

Look ...the landlord Spent YOUR money long ago, thats why they act this way!

 

[FarmerJ]

look in your other post for replys then close one of them so there is only one posting about this so it isnt a hassle for you or any one else reading them to have it all in one place .

 

[firemanup]

Farmer,

Thank you I will, I posted under the other forum after i found it in a web search then found this one that i thought was more appropriate for the situation.

Jason

 

[abezon]

You won't get a default simply because LL responded late, but before you requested a default judgment. If you'd filed for a default judgment on day 21 & gotten it signed that day, LL would have been screwed when he answered on day 22. Unfortunately, you now have to go to trial.

Be sure to prepare carefully for the case. LL has the burden of proving every deduction from the deposit. This means LL has to prove what condition the place was in when you moved in and what condition it was in when you left. If LL doesn't have a move-in sheet or pictures, argue that LL cannot as a matter of law meet this burden of proof.

You should probably check out a couple books from the library on small claims court. Be sure to take in a copy of the Iowa Code 562A.12, a copy of your lease & move-in report, the tape, and all the letters LL sent you. If you have access to a law library or tenant's association, try to find a published case where the LL withheld money after verbally saying everything was OK & the court awarded maximum damages + the $200 punitive damages + attorney fees. Hand a copy of the case up to the judge as precedent.

Also take a copy of Iowa Civil Procedure Rule 11 (most states have a Rule 11). Ask for sanctions under Rule 11 for bringing a frivilous counterclaim for the sole purpose of intimidating or vexing the plaintiff. Rule 11 requires any person (party or lawyer) who signs a pleading to certify that they have made a reasonable inquiry into the facts & law & that their claim/counterclaim is reasonably based in law and fact. You don't have to prove damages under Rule 11, only that LL had no reasonable basis for claiming $4,000 in damages.



562A.12 Rental deposits.
1. A landlord shall not demand or receive as a security deposit an amount or value in excess of two months' rent.

2. All rental deposits shall be held by the landlord for the tenant, who is a party to the agreement, in a bank or savings and loan association or credit union which is insured by an agency of the federal government. Rental deposits shall not be commingled with the personal funds of the landlord. Notwithstanding the provisions of chapter 543B, all rental deposits may be held in a trust account, which may be a common trust account and which may be an interest bearing account. Any interest earned on a rental deposit during the first five years of a tenancy shall be the property of the landlord.

3. A landlord shall, within thirty days from the date of termination of the tenancy and receipt of the tenant's mailing address or delivery instructions, return the rental deposit to the tenant or furnish to the tenant a written statement showing the specific reason for withholding of the rental deposit or any portion thereof. If the rental deposit or any portion of the rental deposit is withheld for the restoration of the dwelling unit, the statement shall specify the nature of the damages. The landlord may withhold from the rental deposit only such amounts as are reasonably necessary for the following reasons:

a. To remedy a tenant's default in the payment of rent or of other funds due to the landlord pursuant to the rental agreement.

b. To restore the dwelling unit to its condition at the commencement of the tenancy, ordinary wear and tear excepted.

c. To recover expenses incurred in acquiring possession of the premises from a tenant who does not act in good faith in failing to surrender and vacate the premises upon noncompliance with the rental agreement and notification of such noncompliance pursuant to this chapter.

In an action concerning the rental deposit, the burden of proving, by a preponderance of the evidence, the reason for withholding all or any portion of the rental deposit shall be on the landlord.

4. A landlord who fails to provide a written statement within thirty days of termination of the tenancy and receipt of the tenant's mailing address or delivery instructions shall forfeit all rights to withhold any portion of the rental deposit. If no mailing address or instructions are provided to the landlord within one year from the termination of the tenancy the rental deposit shall revert to the landlord and the tenant will be deemed to have forfeited all rights to the rental deposit.

5. Upon termination of a landlord's interest in the dwelling unit, the landlord or an agent of the landlord shall, within a reasonable time, transfer the rental deposit, or any remainder after any lawful deductions to the landlord's successor in interest and notify the tenant of the transfer and of the transferee's name and address or return the deposit, or any remainder after any lawful deductions to the tenant.

Upon the termination of the landlord's interest in the dwelling unit and compliance with the provisions of this subsection, the landlord shall be relieved of any further liability with respect to the rental deposit.

6. Upon termination of the landlord's interest in the dwelling unit, the landlord's successor in interest shall have all the rights and obligations of the landlord with respect to the rental deposits, except that if the tenant does not object to the stated amount within twenty days after written notice to the tenant of the amount of rental deposit being transferred or assumed, the obligations of the landlord's successor to return the deposit shall be limited to the amount contained in the notice. The notice shall contain a stamped envelope addressed to landlord's successor and may be given by mail or by personal service.

7. The bad faith retention of a deposit by a landlord, or any portion of the rental deposit, in violation of this section shall subject the landlord to punitive damages not to exceed two hundred dollars in addition to actual damages.

8. The court may, in any action on a rental agreement, award reasonable attorney fees to the prevailing party.

 

[firemanup]

Abezon,

Thank you very much for the information.

Two follow up questions, I cannot find anywhere via several searches for a rule 11 in Iowa, I do find a reference saying that Iowa's version is Rule 80, but I'm still unable to find the statute. Any suggestions as to where I can find it on the net?

2nd...

I have a copy of the same statute you copied here, and thank you very much in that statute 562A.12 paragraph 3, it states that the landlord must state in writing within 30 days why deposit is being withheld, which he did with his original letter, basically saying that cleaning and minor repairs would eat up our $500 deposit, now in his counter claim which is well after the 30 days he's claiming the actual damages are $4,000.

This appears to me to be obvious, initially he was doing as required and made up just enough to eat up our deposit, now he's claiming after our suit is filed that "damages" total $4,000 and he claims this after the 30 days the statute gives him to make the claim, to me this makes it obvious what he is doing,(intimidation and lieing) the new list being after the 30 days would be an argueable point?

3rd,

sorry one more, feeling very confident that he didn't do as this statute requires and setup the deposit in a seperate savings account can i request proof that he did do that during the hearing? i guess it doesn't pertain to our case but shows the judge the LL isn't following the rules?

Thanks again

Jason

 

[abezon]

1. Rule 11 is not a statute; it's a court rule. You'll need to find a copy of the Iowa (and your local) court rules and look in the civil procedure section. Don't expect much. Courts are unlikely to issue sanctions under Rule 11.

2. He may not have to claim the $4000 in the letter to be able to claim it now. However, the fact that he didn't is a "prior inconsistant statement" you can use to argue that he made up the $4000 figure to try to intimidate you. If there had really been $4000 of damage, he'd have sent you a bill within 30 days, not the $500 letter.

3. You can try. You'll need to give him notice beforehand that you will be raising the issue. Draft some sort of notice alleging that he did not segregate the deposit funds as required by law and therefore can't keep any of the deposit. Have a friend deliver him a copy by hand, and have the friend sign an affidavit of service. You can probably find sample forms in the county law library. If possible, use a friend who will already be testifying about the condition of the house when you moved in or out.