May have sued the wrong party- Please Help

[Mark2041]

This is in Arizona:

My wife and I rented a house managed by a property management company and they deducted $800 from a $1325 security deposit despite us leaving the house in great condition. We took a lot of pride in that house and paid the rent on time for 24 straight months which is what makes this so frustrating.

They refused to speak to us about the charges or respond to our letter so we didn't feel like we had any other recourse but to sue them.

Today the property management company sent us a letter from their attorney which is a copy of a motion to dismiss our suit and move the matter from small claims court to the civil division of the justice court and asked for attorneys fees for us suing the wrong party.

The motion says that A.R.S.33-1321 and 1322 says that they can't be sued. They say we have to sue the owner himself.

I don't see anything about not being able to sue them in the lease and the owner's name is mentioned only one time and simply states that he is the owner under the lease.

We paid the security deposit and rent to the management company and this is who sent us the deposit check back.

Are we really going to have to pay attorney's fees? Do we actually need to sue the owner himself and how will I even know where to serve him, there is no address listed in the lease for him?

Thanks so much for any help. I can't tell you how upset we are about this.


Edit: I called the county assessor and found out that the owner has his tax bills sent to an address out of state. So I could try to have him served there, although the management company previously told me he was moving back into the property so he may have moved back into the house.

 

[Mark2041]

No one has any thoughts on this?

I think through going online and doing research that I've figured out that I wasn't supposed to sue the property management company and should have sued the owner.

Now I am wondering, do I need to reply to the law firm's motion to dismiss or should I just re-file the suit against just the owner?

And am I really going to be on the hook for attorney fees for accidentally suing the property management company?

 

[tranquility]

It is a complex issue and why one carefully considers who one sues. We don't know all the paperwork and facts involved with your issue. I am uncertain about their precise argument as 1322 specifically contemplates agent liability while 1321 speaks solely of the landlord. I would have looked up case law beforehand to be sure.

But, if you are wrong, you can be sued for malicious prosecution and the other side can get attorney fees. (I suspect there will be something in the lease on this as well.)

If you feel you did make a mistake, better to cut your losses and to refile while dismissing this lawsuit.

 

[single317dad]

Who were the parties to the contract (lease agreement) you signed?

Generally, you should sue whomever you believe was unjustly enriched by the failure to return your money. So who has the money you claim is yours?

From the information you've provided, it appears that if you fail to oppose the motion, and it is granted, you'll already be on the hook for attorney's fees. Simply dismissing your case may not be an option at this point. Letting it go stale until the court dismisses it is certainly not a wise course of action. You've stirred a bit of a hornet's nest here, and probably need a professional before you get stung.

For what it's worth, I also do not see any wording in the referenced statutes that implies you can't sue anyone, but they do reference the Arizona Residential Landlord and Tenant Act, which may contain that language.

 

[Mark2041]

First off, thanks to the both of you for your replies.

Tranquility:

There is no mention of attorney fees in the lease except with regard to enforcing the lease itself.

There is also no language whatsoever regarding disputes over the security deposit. Again, their letter to us outlining the charges said if we took exception that we would need to contact them in writing within 14 days and that is exactly what we did via certified mail and we received no reply from them either by mail or phone.

We called them and the agent would not speak to us or return our messages. This whole situation could have easily been avoided if they simply would have talked to us or at least made us aware they were not the ones to sue in a dispute. The lease is 15 pages long, by the way, with no mention of this.

single317dad:

The lease was from the management company but they mention that they are the manager and agent of the owner and renting to us, the tenants. They even refer to themselves hereinafter as "landlord" and almost all verbage I have seen of the statutes and landlord/tenant law handbooks references suing the landlord in a dispute. So I can't help but think this is a common mistake people make if indeed they are the wrong party to sue, especially since all dealings have been with the management company.

Also, the Maricopa County Justice Court website says that attorneys are not allowed in small claims courts. Why is the property management company even allowed to use an attorney let alone ask for attorney fees? That seems completely absurd and I have a hard time believing any judge would require me to pay any significant amount of fees considering we did everything possible to avoid suing and are currently out our entire security deposit because they wrote on the check if we cash the reduced check they sent that we agree we have no claims against anyone.

We also may have no way to even sue the property owner since he apparently lives in an eastern state according to property tax records.

So I think we are going to write a letter to the judge in response to the motion explaining the situation and asking forgiveness if we did sue the wrong party but also will ask that the case simply be dismissed and not referred to the other court for any fees.

Thanks again and please let me know if anyone has any additional thoughts.

 

[tranquility]

There is no mention of attorney fees in the lease except with regard to enforcing the lease itself.

While I am not going to disagree with what you are saying, a fairly standard lease might have language like:

Attorney Fees and Costs: The prevailing party in any dispute or claim between Tenant and Landlord arising out of or relating
to this Agreement shall be awarded all their reasonable attorney fees and costs. Costs shall include, without limitation, expert
witness fees, fees paid to investigators, and arbitration costs.

Your dispute would arise out and relate to the lease agreement. They can still get damages, including attorney fees, if there is a malicious prosecution. It just would be easier if there were such a clause.

Also, the Maricopa County Justice Court website says that attorneys are not allowed in small claims courts. Why is the property management company even allowed to use an attorney let alone ask for attorney fees? That seems completely absurd and I have a hard time believing any judge would require me to pay any significant amount of fees considering we did everything possible to avoid suing and are currently out our entire security deposit because they wrote on the check if we cash the reduced check they sent that we agree we have no claims against anyone.

They are seeking to remove the case--they will be successful.

We also may have no way to even sue the property owner since he apparently lives in an eastern state according to property tax records.

Your deal was made in the place the property was. At the very least, you could get in rem jurisdiction against the property. Don't worry about this.

So I think we are going to write a letter to the judge in response to the motion explaining the situation and asking forgiveness if we did sue the wrong party but also will ask that the case simply be dismissed and not referred to the other court for any fees.

I'd get an attorney to write things. You may not be in the wrong and such a letter may doom you to paying for the other party's attorney fees.