Paying a judgement with a judgement

[jacarand]

The second trial should have never have happened. The judge in the op’s trial (him as plaintiff), should have applied the deposit as an offset to the award.


Additionally, given the op was awarded a judgment, it only makes sense he had a right to retain the deposit so the second suit should have been tossed.

That's normally true, but because I failed to provide an itemized statement accounting for the security deposit, I gave the tenant a case in small claims court. The judge agreed with the tenant and the appeals court affirmed it.

 

[Zigner]

The second trial should have never have happened. The judge in the op’s trial (him as plaintiff), should have applied the deposit as an offset to the award.

Then what happens when the security deposit is needed to repair damages discovered after the tenant vacates?

Additionally, given the op was awarded a judgment, it only makes sense he had a right to retain the deposit so the second suit should have been tossed.

The SD is designed to cover damages to the unit and also to recover unpaid rent. HOWEVER, having a judgment doesn't remove the requirement that a proper accounting be given in the proper time-frame after the tenant vacates the unit. The OP failed to do that, which is why he lost in court.

 

[quincy]

No, you've got it wrong here. There is no counterclaim to be had. These are two entirely separate causes of action.

ETA: At the time of the eviction suit, there was nothing to counterclaim by the tenant, as the failure to properly account for and/or return the security deposit had not occurred yet. At the time of the small claims suit, there was nothing to be counterclaimed by the OP since the OP already had a judgment.

Okay.

The recourse appears to be as already stated, though. Jacarand needs the satisfaction of judgment filed by the tenant. He can either pay the $1000 to satisfy the tenant's judgment or he can get the tenant to file the satisfaction of judgment in exchange for the reduction in amount owed on the $4000 judgment.

If the tenant is being less than cooperative, the landlord will just have to pursue collection efforts on the full $4000, with these efforts including seeking a bank account freeze and wage garnishment.

 

[justalayman]

Then what happens when the security deposit is needed to repair damages discovered after the tenant vacates?

if the first suit didn’t prohibit a second suit from being undertaken, landlord would have to do like any landlord does when the deposit doesn’t cover indebtedness: dun them and if not paid, sue them.

The SD is designed to cover damages to the unit and also to recover unpaid rent. HOWEVER, having a judgment doesn't remove the requirement that a proper accounting be given in the proper time-frame after the tenant vacates the unit. The OP failed to do that, which is why he lost in court.

the SD is to cover indebtedness of the tenant to the landlord for issues of the leasehold.

Op sued to evict. Court awarded $4k. The first $1k should have been the deposit. As long as the deposit is consumed (and this would be by the order of the court) and unless the landlord sought additonal damages, there needs be no accounting of the deposit. It’s already applied to damages at the court’s order. There needs be no additional accounting since the “itemization” was in the judgment landlord was awarded.

 

[Zigner]

if the first suit didn’t prohibit a second suit from being undertaken, landlord would have to do like any landlord does when the deposit doesn’t cover indebtedness: dun them and if not paid, sue them.


the SD is to cover indebtedness of the tenant to the landlord for issues of the leasehold.

Op sued to evict. Court awarded $4k. The first $1k should have been the deposit. As long as the deposit is consumed (and this would be by the order of the court) and unless the landlord sought additonal damages, there needs be no accounting of the deposit. It’s already applied to damages at the court’s order. There needs be no additional accounting since the “itemization” was in the judgment landlord was awarded.

A couple of courts disagree with you...as does California law.

 

[justalayman]

A couple of courts disagree with you...

only due to op’s failure to respond properly to tenants suit.

 

[latigo]

. . . He does not seem to understand that I have a larger judgement against him and keeps demanding that I pay his judgment. . . . I will keep calling the court to find out what to do (?) . . .

Hold the horses. No one in the courthouse is going to offer any help! People around here get the mitten for trying.

If the knucklehead won't agree to crediting and foregoing his lesser judgment against yours, and you won't back off from yours, then you may have to seek assistance from a court. And the only way I can think of how to get a court involved is in the use of a declaratory judgment. Not in small claims, but at the next level. And not simple and not cheap.

But let me ask you something. You say you wish you had known about "compulsory counterclaims". Yet you must have known at the time you filed your claim that he had a claim against you and one that was apparently legitimate - ergo his judgment.

So what was your thinking when you filed knowing that he had such a claim and why did you not treat with it properly in your action?

Also do you know whether or not the guy is judgment proof? How do you rate the prospects of getting any money out of him? That could be very difficult, time consuming, troublesome, plus fruitless.

On the other hand he could garnish one of your tenants or a bank account, ending up with money in his hands while you have nothing but piece of paper. Seemingly he knows that and is the reason for the obstinacy. If it were me, I would consider discounting mine to a figure attractive enough for him to write his off.

 

[Zigner]

only due to op’s failure to respond properly to tenants suit.

You're wrong on this one. The prior judgment does NOT satisfy the requirement that an accounting be sent.

 

[jacarand]

Hold the horses. No one in the courthouse is going to offer any help! People around here get the mitten for trying.

If the knucklehead won't agree to crediting and foregoing his lesser judgment against yours, and you won't back off from yours, then you may have to seek assistance from a court. And the only way I can think of how to get a court involved is in the use of a declaratory judgment. Not in small claims, but at the next level. And not simple and not cheap.

But let me ask you something. You say you wish you had known about "compulsory counterclaims". Yet you must have known at the time you filed your claim that he had a claim against you and one that was apparently legitimate - ergo his judgment.

So what was your thinking when you filed knowing that he had such a claim and why did you not treat with it properly in your action?

Also do you know whether or not the guy is judgment proof? How do you rate the prospects of getting any money out of him? That could be very difficult, time consuming, troublesome, plus fruitless.

On the other hand he could garnish one of your tenants or a bank account, ending up with money in his hands while you have nothing but piece of paper. Seemingly he knows that and is the reason for the obstinacy. If it were me, I would consider discounting mine to a figure attractive enough for him to write his off.

So what was your thinking when you filed knowing that he had such a claim and why did you not treat with it properly in your action?

The former tenant sued ME in small claims court. I'm not sure if i'm answering your question correctly.

Also do you know whether or not the guy is judgment proof? How do you rate the prospects of getting any money out of him? That could be very difficult, time consuming, troublesome, plus fruitless.

As much as I'd love to pursue my judgement against him, I just don't have the time to take more work off for this douche bag. I don't know if he is judgement proof until I do an examination, but I think we all know here, deadbeat tenants are 9/10 times judgement proof.


On the other hand he could garnish one of your tenants or a bank account, ending up with money in his hands while you have nothing but piece of paper. Seemingly he knows that and is the reason for the obstinacy. If it were me, I would consider discounting mine to a figure attractive enough for him to write his off.

I literally offered to drop my judgement if he dropped his. He refused the offer. Yes I agree with you that his obstinacy is because he knows I can't collect from him, he can go ahead and levy me, I don't care. But this is an asymmetric situation when it comes to collecting money judgements that is in favor of deadbeats, there has to be a way to offset the judgements, the damn appellate judge told me so!

 

[justalayman]

You're wrong on this one. The prior judgment does NOT satisfy the requirement that an accounting be sent.

As it stands I agree. If the op had acted wisely it could have.

 

[justalayman]

So what was your thinking when you filed knowing that he had such a claim
.

the tenant didn’t have a claim until 21 days after he left/was removed from the premises. That was at least 21 days after op recieved his judgment.

and why did you not treat with it properly in your action?

Because he knew no better. Hopefully he has learned from this experience.

 

[jacarand]

I finally got a call back from the Judge's personal clerk. She told me I have to fill out a written declaration explaining the situation and the court will consider my request. I've finished filling out the declaration and will fax it tomorrow. I will keep everyone posted on the situation.

 

[quincy]

I finally got a call back from the Judge's personal clerk. She told me I have to fill out a written declaration explaining the situation and the court will consider my request. I've finished filling out the declaration and will fax it tomorrow. I will keep everyone posted on the situation.

Are you using Form MC-30?

I hadn't considered that but it does seem to be one way to resolve your problem.

It will be nice if you can post back with what happens.

Good luck.

 

[latigo]

Are you using Form MC-30?

I hadn't considered that but it does seem to be one way to resolve your problem.

It will be nice if you can post back with what happens.

Good luck.

Pardon me for asking, but why could you not have considered it when the OP's initial post explains that the judge told him to "file a declaration saying I am paying the tenant's judgment with the one I have against him"?

Form MC-30 is simply an unsworn statement that California allows to be filed in lieu of a sworn statement. And applies whenever any laws, rules, orders etc., of the state require or permit a matter to be supported or proved by a sworn statement. (Cal CCP 2015..5)

To what laws, rules, orders, etc., would such an unsworn declaration appertain? Does learning the title of the form solve anything?

The filing of it in this instance is not going to resolve a blessed thing. It is not going to affect the status of either judgment. To maintain otherwise is tantamount to saying that anyone can remove a judgment against them by the simple act of filing an unsworn declaration that it has been paid.

Without the ability to direct the OP to some law or rule or precedent whereby a clerk of the court upon the receipt of the OP's declaration can cross-off the tenant's judgment and reduce the OP's judgment by an equal amount, with all due reespect I fail to see any basis for your encouraging remarks.

 

[quincy]

Pardon me for asking, but why could you not have considered it when the OP's initial post explains that the judge told him to "file a declaration saying I am paying the tenant's judgment with the one I have against him"?

Form MC-30 is simply an unsworn statement that California allows to be filed in lieu of a sworn statement. And applies whenever any laws, rules, orders etc., of the state require or permit a matter to be supported or proved by a sworn statement. (Cal CCP 2015..5).

To what laws, rules, orders, etc., would such an unsworn declaration appertain? Does learning the title of the form solve anything?

The filing of it in this instance is not going to resolve a blessed thing. It is not going to affect the status of either judgment. To maintain otherwise is tantamount to saying that anyone can remove a judgment against them by the simple act of filing an unsworn declaration that it has been paid.

Without the ability to direct the OP to some law or rule or precedent whereby a clerk of the court upon the receipt of the OP's declaration can cross-off the tenant's judgment and reduce the OP's judgment by an equal amount, with all due reespect I fail to see any basis for your encouraging remarks.

First, thanks for the "due respect."

My early suggestions to jacarand did not include the declaration (or a link to M-30) because I did not see that as the best way to handle the matter. I thought my first suggestion to file a satisfaction of judgment was best. Unfortunately, it is apparently not a viable solution because jacarand is dealing with an uncooperative tenant.

The declaration, on the other hand, is certainly ONE way to address the issue, albeit a more difficult and costly way. I never said it would be a successful way to resolve the problem (although for jacarand's sake I hope it results in a satisfactory resolution).

So ... I am not sure what you see as "encouraging remarks." Are you confusing politeness with encouragement, perhaps?

(as a note: declarations are sworn statements signed under penalty of perjury)