Lawyer say's tenant does not have to pay

[JETX]

"He said he would draw up the papers. He said that the papers would included that I give up any further right to claim damages to the apartment which included items which were broken by her during the month."
*** I would NEVER sign such a document releasing my rights to recover damages!! This guy is doing you NO favors (as expected since he is HER attorney). I would simply tell the twit to save his energy and that you will be dismissing the eviction process and will refile a civil suit after you have the opportunity to inspect the property for damages, plus the $750 in unpaid rent, plus the costs of the eviction suit. Then do it.

"Is there anything I should watch for when I read the papers?"
*** Yeah, don't.

"He wants me to sign them on Monday. He said there will be no need for me to go to court on Tuesday he would take care of everything with the judge."
*** Of course he will. After all, he is taking you to the cleaners. Simply go to the court and deliver a written notice to dismiss as the tenant has vacated the property (under the threat of the eviction). Then, as noted above, inspect the property and get your damage estimate together (there WILL be damages!) and file a new suit in small claims.

 

[hidden]

That sounds good to me. I will do that. Can I type the notice on my own paper or is there a special legal form to use?? The only reason her lawyer wants to settle the case is because she told him that she would not go to court for the trial. She told him if she had to be in court she would leave the state or check herself into the emergency room in the hospita. l( The wall in the apartment are thin and she talks loud.) I mentioned to him that she would have to go to court. His reply was no one can make her go to court.

 

[JETX]

"Can I type the notice on my own paper or is there a special legal form to use??"
*** Presumably, this is in a small eviction-type court, so it should be fairly informal. A simple 'written' statement that you are dismissing the lawsuit "WITHOUT PREJUDICE" should be sufficient. You might also ask the court clerk. Be sure to send or FAX a copy of the 'dismissal' to her 'attorney'.
The 'without prejudice' reserves your right to refile the suit later if needed.

"His reply was no one can make her go to court."
*** That is pretty laughable. Correct, no one can force her to go to court, but the court can certainly grant you a default judgment against her if she doesn't show!!!

One final thing.... since I don't know the court that this is in, you might talk this over with the court clerk BEFORE you file your dismissal. The court might allow you to just amend the petition/summons to change from an eviction to a 'breach of contract' suit. Also, since the tenant has now vacated the premises, you need to go over to the property and do an inspection and get WRITTEN estimates for any repairs. You will need them to prove your damages in the 'breach' lawsuit.

 

[hidden]

Thank you very much. I learned alot in the last 2 days.I think I have all I need for court. I'll let you know what happens. Have a great weekend.

 

[bubbly602]

Just a thought

would it maybe be a good idea to change the locks when he inspects the unit? This woman still has a key. If the eviction hearing is dismissed, she might try to move back in and make you file again. If the locks are changed, she won't be able to, then you can limit the damage to whatever is already done.

OP - Don't do this until someone else who knows the law on this forum can tell you if it's legal or not. Or maybe you could look it up yourself. I just posted because that is what I would want to do if I were in your situation...Good Luck!!!

JETX, Since the tenant has already vacated, would it be legal to change the locks?

 

[hidden]

When I filed the original petition the first thing the lawyer did was had the hearing date ajourned for a week. I became of aware of it when I received a phone call on my answering machine at 5:00 on Tuesday evening, court was cancelled for the following day Wednesday at 7:00. Wednesday morning I went to the clerk and I was told that she had a lawyer and court was ajourned until the following Wednesday. t
The following week, night of the hearing when she was still in the apartment the lawyer appeared in court she did not. He offered me less money I refused because she was still in the apartment. He handed me a notice of motion to dismiss, also one to the judge. The judge asked me if I had received a copy, I replied I did but have not had to to read it. The lawyer wanted to dismiss because he said his client would be out of the apartment in a few days. The judge asked me if what the lawyer offered was acceptable and I told him it was not. That's when the trial was set. The lawyer came back with an offer of the $750.00.
The locks were changed. I still have the fear that one day she'll be back. I though she moved out the first time. I never knew that it would be so hard to remove someone from an apartment. There was no agreement made with her and she never paid a penny of rent.The man she lived with paid all the bills.She didn't even have any furniture just clothes.

 

[JETX]

JETX, Since the tenant has already vacated, would it be legal to change the locks?

*** Yes. And required in some jurisdictions.

 

[hidden]

Thanks to all for all the help. I told the lawyer I would not sign the papers. We went to court, she would not come. The case was settled for the full amount plus court costs. I will be taking her to small claims court for the damages on the apartment also. I asked the judge to sign the Transcript of Judgment which he did. I filed them today with the County Clerk. They informed me that I could get a Letter of Execution and try to get my money since I knew that she had a savings account in a certain bank. So far it looks good. .

 

[JETX]

Sounds like it is going as it should..... well done!!

 

[HomeGuru]

Let us know when you actually get some money.

 

[hidden]

It' almost 90 days what's next.

I live in New York State. On May 20th I filed papers with the local sheriff dept to garnish her savings account. 90 days is almost up. I called the sheriff civil dept and asked if payment had been received from her bank. They replied not yet. I asked what happens if nothing is received by 90 days, I received no answer and was told they would get in touch with the bank. What happens if I do not receive the money in 90 days?

 

[JETX]

What happens if I do not receive the money in 90 days?(

Depends on the response you get. If the bank fails to respond to the garnishment order, you could get the court to make the bank liable for the debt. Or it is possible that the debtor doesn't have an account there, or has insufficient non-exempt funds (either case would still require at least a bank response).

Finally, if this 'avenue' of enforcement doesn't work, there are others (wage garnishment, etc.) that you can consider.

 

[hidden]

I know for a fact she had the money.

I know she had enough money in her bank account at the time I filed the papers. I also knew where she banked. When she moved out she left her bank statment behind. Do I have to rush and do anything before the 90 day time period expires??

 

[hidden]

New developement

I live in NY. 90 days has come and gone. I called the sheriffs dept civil division,who had server the papers to the bank. They had not heard back from the bank and would get right on it to find out what the problem was. Meantime I called the bank they said that the papers were never received and they had no record of the execution. I called the sheriff dept again and told them the bank said they never received the papers. Sheriffs dept told me they have proof papers were severed on the bank manager. Bank asked me to fax them a copy of papers. Week has gone by sheriff dept still has not heard from the bank. My fear now is that this woman has had over 90 days to take the money out of her account.

 

[hidden]

How can I make the bank liable for the debt???

I live in New York. It has been 4 months now bank has not yet paid. There is no phone number to call there legal dept. All communication has to be done by fax. I have faxed them letters several times. No reply. How do I approach the court, are there certain forms which I have to summit to the court?