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Any advice for small claims court? This is very long.

Discussion in 'TUG Lounge' started by Karen G, Apr 26, 2007.

  1. Karen G

    Karen G Moderator

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    A former tenant is suing us in small claims court for the return of his security deposit on our house which he rented for two years while his multi-million dollar house was being built in the same country club development where our house is located. This guy is an attorney, by the way, and he moved out of our house about two years ago.

    Our house was pretty much trashed by this guy and his family and it cost us about $1200 over and above the security deposit to restore it. He didn’t even show up for the walk-through at the end of the lease nor did he return the house keys or garage door openers and the house was not even cleaned. He claimed that the reason he didn't have the carpets shampooed was that the power was off and he had it turned off, which was against the terms of the lease. We have pictures of all the damages and a detailed description of all the provisions of the lease he violated.

    He demanded the return of the security deposit soon after he moved, and claimed the damages were normal wear-and-tear. Some examples of what he considers “normal wear-and-tear” are breaking the handle off the microwave, nailing several holes across the front of the stucco fireplace, knocking a big chunk off the stucco hearth, removing the dining room light fixture & leaving it on the garage floor with globes missing, breaking drawer fronts and cabinet doors, leaving big gouges in one of the walls, leaving stains all over the carpets, drilling a big hole down through a shelf in the great room (without permission), leaving large objects on the front lawn long enough to kill the grass, leaving trash for us to clean up, leaving the refrigerator in a disgusting condition with rotting food and chocolate syrup dripping down the inside, and leaving the oven extremely dirty & it’s a self-cleaning oven!

    First he brought a small claims action against our property manager and did not name us in the case, but he filed it in the wrong jurisdiction. The property manager hired an attorney and we think that case was dismissed. The property manager now expects us to pay her attorney fees that amount to over $1200. When she first notified us of the lawsuit she said we’d probably be served and she’d let us know what was going on. Despite our request to be informed along the way, she never told us anything more or let us be involved in any way. She just called to say the matter was settled, the former tenant lost, and here’s the bill for representing us in the case. We’ve asked her for copies of all court documents, correspondence, etc., and she hasn't sent us anything other than her notes for the attorney.

    Monday we were served with papers saying that the guy is now suing us—this time he got the jurisdiction right. We called the attorney our property manager used, thinking he must be spooled up on the details and it wouldn’t take much of his time to advise us what to do. His assistant says he can’t represent us as it would be a “conflict of interest.” That makes us question the property manager’s assertion that she and the attorney were representing us.

    We’ll find an attorney and present our case in small claims court. But, I’m wondering if any Tugger has had any similar experiences and if anyone has any other advice for us.
     
  2. Bill4728

    Bill4728 Moderator

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    It looks like you have a slam dunk case. I'd consider counter-sueing for the additional costs.
     
  3. JanT

    JanT TUG Member

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    JMO but I think you are in great shape to have the case dismissed. This guy must be a complete idiot!! He's obviously a complete jackass. If you have pictures of all the damage, etc. and copies of all the receipts from repairs and clean up, make sure you have those for court. I would definitely countersue for the above and beyond funds you spent in making the repairs and clean up. Small claims court limit is $5,000.00. I don't think you can recover any cost for consulting an attorney but I'm not sure. It doesn't hurt to ask anyway. The most the court can say is no. And to my knowledge an attorney can't represent you in small claims court. You have to do that yourself.

    Your property manager sounds like a dandy. People are such twits sometimes. If you can find out the case number for the suit against the property manager you should be able to go to the court and ask to see the file on the case. That is public record in most states. So, there should be copies of paperwork in the file that will give you information on his case against them.
     
  4. johnmfaeth

    johnmfaeth TUG Member

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    Because the property manager now has a claim against you (even though no collection activities have yet to take place) for $1,200, her attorney has the conflict of interest.

    Shopping for a good lawyer is important. Talk to other neighbors as to who they may have used, even when buying their house and what they experienced.

    If no luck, I would engage a large firm which specializes in Real Eatate. If they take the case, you will pay but there's a lot to be said when your attorney knows the judge from constantly appearing before him, which is one reason why those firms get the big bucks. Truth is success is best obtained with our court system by having a top notch pro, even in a seemingly simple situation. In a busy district with lots of lawyers, the small practice attorney has it tougher.

    Good luck and let your attorney orchestrate what you will say in court. Good cases are lost by defendents who say too much or annoy the judge.
     
  5. camachinist

    camachinist TUG Member

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    Excellent advice. Learned that the hard way.

    In California, one must represent themselves in court <at the original, first, hearing>, AFIAK and IME, but may engage the services of a lawyer for advice before and/or after the proceedings.


    An example of guidelines for small claims actions in California:

    http://www.courtinfo.ca.gov/selfhelp/smallclaims/scbasics.htm

    In CA, if property is damaged, the statute of limitations is 3 years beyond first recorded disclosure IIRC....

    As long as the OP documented the process/damage and sticks to the facts and requests quantifiable damages, I think a countersuit, if within the limit of the jurisdiction, will have an excellent chance, as will success as a defendent.

    Any chance that mediation and a consolidation of claims might be possible? It would be nice to settle out all the issues with all the parties at once, considering the dollar amounts here and the costs of court and representation, IMO.

    Disclaimer: Business owner without legal training. Use at your own risk :)

    Good luck!

    Pat
     
    Last edited: Apr 26, 2007
  6. Karen G

    Karen G Moderator

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    I doubt it as far as the former tenant is concerned. He seems to be quite an egotistical person and a hot head. We definitely want to put forth a counterclaim and ask for the additional costs. Those costs were turned over to a collection agency by the property manager, but he hasn't paid anything.

    As for the property manager, from reading the terms of our agreement with her, mediation or arbitration is the method given for settling disputes.

    Does anyone know if attorneys are allowed to represent you in Small Claims court in Nevada?
     
  7. camachinist

    camachinist TUG Member

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    http://www.co.clark.nv.us/justicecourt_lv/faqsmalclaim.htm#attorney represent

    You didn't say which county...

    BTW, what kind of money are we talking here, beyond the 1200.00 in additional repairs? How much was the security deposit? With the property manager claiming legal fees and the gist of this episode now 2 years+ old, I'm wondering how efficacious the results will be.

    Since Nevada doesn't allow substantial reimbursement of legal fees, even if you were to win, I think now would be a good time to crunch the numbers.

    You're out deposit plus 1200.00 for additional repairs. If you win, defendent doesn't appeal, and can collect, you'll get deposit <which you already have and have spent> and 1200.00. You'll likely pay legal fees similar to property manager, so there goes 1200.00. You'll then remain with the original security deposit <already spent>, subject to perhaps a future claim/judgement by the property manager.

    I'd settle out for half the deposit (if 2500.00 or less), half the legal fees, keep the lawyers out of it and say goodnight :)

    <That would mean writing a check for 1850.00, in my scenario>

    Easy to say when it isn't me, eh? :D

    Pat
     
    Last edited: Apr 26, 2007
  8. Karen G

    Karen G Moderator

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    We are the defendant in this case and the former tenant is the plaintiff. Are you saying we should settle out of court and pay him $1250 (half the security deposit of $2500) and pay the property manager half her attorney fees $600? I can kind of understand the money amount compared to what we may have to pay in legal fees.

    But, it seems so unjust. Not only did the guy trash our house, cause us to have to spend that extra money and time to get the house back into shape, and now cause us to have to spend more money in lawyers' fees! We feel like we're being slammed not only by him, but by the property manager, too.

    The county in Nevada is Clark and the city is Henderson. Thanks for the links you provided. That was helpful.
     
  9. camachinist

    camachinist TUG Member

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    Well, you won't be able to claim legal costs for sure, based on my read of the link I posted, beyond 15.00. So, you'll just have to decide what you're willing to spend to be right.

    Another way to look at it is the money you spent probably made the house more rentable/saleable, beyond wear and tear and the damage that occured, so you recovered some value, though intangible, there.

    Though perhaps in the minority, I look to the courts as a last resort, and only when the potential benefits outweigh the costs. "Sending a message" is something I'll happily leave to those who enjoy such pursuits. For me, life is too short.

    Where do I send the bill? :D

    Pat
     
  10. Karen G

    Karen G Moderator

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    You're going to have to get in line behind all the others who want our money!:doh:
     
  11. camachinist

    camachinist TUG Member

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    I got relatives in Redmond ;) :D

    Seriously, good luck whatever your decision is. Have a drink of your favorite beverage and laugh at the absurdity of it all. It gets me through the day ...

    Pat
     
  12. Karen G

    Karen G Moderator

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    You're right! A Lemon Drop would be good right now!:)
     
  13. IngridN

    IngridN TUG Member

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    No advice here, but I do recall a number years ago when we were debating on whether to sell our old house or keep it as a rental, I did a lot of research...one of the recommendations was never rent to an attorney :D ...I kid you not!

    We decided we didn't want the headaches of being a landlord, so sold the house.

    The injustice of this just galls...the best of luck to you.
     
  14. camachinist

    camachinist TUG Member

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    When I had purchased a new house and didn't wish to sell my old one right away, but wanted less hassles as a landlord, I did a lease option. Best tenents I ever got a rent check from :)

    No they weren't lawyers :D

    Pat
     
  15. drmarna

    drmarna Guest

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    Settle?

    Karen is the Defendant! She is being sued (and contemplating a counter-claim). She can make all the settlement offers she wants, but if the Plaintiff is the jerk she claims he is, she may have no choice but to go to Court. As long as she is going, she may as well bring her counter-claim, which at best gives her some leverage, so maybe they will both just walk away.
     
  16. mepiccolo

    mepiccolo TUG Member

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    I'll begin by apologizing to the honest attorney's reading this post, because I know you are out there and I work for one of them. That said, I have found quite too often that attorneys or those having some knowledge of the law often times use it to cheat and steal from others, knowing the other person may be frightened to fight out the truth in the court where they feel the thief has the upper hand. It sounds like the facts support you and I would definitely counter sue against the schmuck. Have your day in court, take all your receipts and photos and your contract and justice should be served.

    I don't think an attorney can represent you in small claims court anywhere in the U.S. (someone correct me if I'm wrong). I don't even think it sounds like you need to consult with one. My brother won his small claims court for $5,000 against someone who owed him money and he did it all by himself and let me tell you normally my brother doesn't handle anything with legalese or contract stuff at all. He won because he had the contract and he was telling the truth.

    The jerkoff attorney probably thinks (a) you're going to be too scared to face off with him in court (but he's an atty and he filed in the wrong jurisdiction! he can't be all that bright), (b) you'll just hand over some money to not have to deal with it, and (c) he may have sued because he was worried you were going to come after him for more than his security deposit-which you should.

    Small claims paperwork in California is super easy to fill out and file and the clerks at the court tend to really "hold your hand" in small claims court (not in the other venues, unfortunately :) You sound like an intelligent enough person to handle this-just read the directions well, follow the instructions to the letter and ask any questions before your court appearance. Be prepared, bring all your documentation, your contract, your photographs and receipts for ALL the repairs you made. Make sure you follow the procedure correctly for countersuing. This isn't brain surgery. You're right and he's wrong (and a twit)-I don't think you should have to spend any more money fighting this, it sounds slam dunk to me. (I'm assuming you have photographs of your home before he rented showing it was in good condition before twit damaged it-you'll need this. Otherwise he'll just say it was wrecked when he moved in). Good luck.
     
  17. Karen G

    Karen G Moderator

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    I'm certain we could bring the realtor who sold us the home to testify that it was in new condition. The lawyer and his family were the first people to live in the house. We've had two other tenants in the house since our bad experience with the lawyer, as well as many other rental experiences with three other rental properties we've owned over the last several years. And this is by far the worst of them all!

    The advice in an earlier post to never rent to a lawyer sounds right to me.
     
  18. camachinist

    camachinist TUG Member

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    Defendants and Plaintiffs settle all the time, sometimes in the hallway outside the courtroom. The OP asserts they must hire legal council if defending the case, and such legal council is allowed in court in Clark County. Legal council costs money, yet to be determined. Unless the OP has a counterclaim quantifiable right to the Clark County limit for small claims, legal fees are going to eat up most of any judgement awarded in addition to any future judgements/settlements with the property manager.

    Only the OP knows what they can stomach financially and emotionally. A good lawyer should advise them of all their options. Getting some advice is a lot cheaper than having a lawyer present the case.

    ------------------

    Yes, you should be allowed witnesses to support facts in evidence. As the proceedings are informal, I would suggest keeping their presence brief and to the point. A copy of the closing documents on the home, showing it was new when you took ownership (generally the developer is listed as grantor) and the date would also be helpful.

    Pat
     
  19. Karen G

    Karen G Moderator

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    After all the advice we've gotten, we most likely will not have a lawyer represent us in the small claims court. We will speak with one beforehand and show him all our evidence and be sure we've got all the bases covered. We've got pictures, receipts for all the work, copies of the lease and other documents pertinent to the case.

    We didn't buy the house from the developer. It was previously owned by someone, but they never moved in. So it was just like new and the lawyer & family were the first people to live in it. We bought it as our retirement home about four years before we planned to move into it. We will be moving into it this summer. Fortunately, all the damages from the lawyer were repaired, everything in the house since the last tenant moved out has been replaced with new stuff, and it is beautiful again.
     
  20. Karen G

    Karen G Moderator

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    As an interesting aside, we did ask one of our neighbors in the country club, a realtor who has lived there from the beginning, and she recommended someone. In talking with that guy he said his firm is currently representing a client in a case where the other party is being represented by the guy who is suing us. They didn't want to jeopardize any of their upcoming negotiations by taking on our case.

    We did get another recommendation and we'll be meeting with him.
     
    Last edited: Apr 27, 2007
  21. JeffW

    JeffW TUG Member

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    Do you have an idea how any of these costs would be handled on your tax return? Could the claim by the lawyer (if you pay it) be considered a business loss as part of the rental? Similarly, what about the damage caused by the tenant (either as a loss, or as a justifiable expense)? I'd try to determine the final, net cost of any of these claims (as best you can work the numbers), then decide if it will save you more or cost you more to hire a lawyer to help mitigate them.

    Jeff
     
  22. Karen G

    Karen G Moderator

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    Good point. That is something we certainly will pursue with our accountant. I believe in the year in which the damage repairs and replacement costs were incurred we included them in the rental house expenses. They were on the statement the property manager provided us at the end of the year.

    I hope any attorney's fees we incur this year will also be considered a business expense.
     
  23. Dave M

    Dave M TUG Lifetime Member

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    Assuming none of the repairs were in the nature of improvements, that would have been the correct treatment.
    They are deductible, especially since you are planning to file a counterclaim. Any amounts awarded to you will be taxable, assuming you are able to collect. Reasonable fees and other expenses incurred to generate (or to try to generate) taxable income are deductible. (Even without the counterclaim, the legal fees should be deductible. But it was easier for me to explain it the way I did! :) )
     
  24. Karen G

    Karen G Moderator

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    Thanks for that accounting advice, Dave. And thanks to everyone else for your input, too. My husband has an appointment with a lawyer Monday to go over everything. I'll let you all know what happens in mid-June when the case is scheduled.
     
  25. mapper

    mapper Tug Review Crew: Rookie TUG Member

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    Karen G:

    Have your dated receipts, dated photos, and any other evidence with you as well as a listed accounting of each of them with the total. Also, have the hours that you or anyone else that did the repairs listed separately not mixed in with the actual receipts for materials.

    Present your evidence, (WITHOUT EMOTION!), and the facts, (WITHOUT EXAGGERATION), and I believe justice will prevail. In the past I had to represent a property owner friend of mine on evictions, damage cases, etc. in small claims in California and having my ducks in order is what won the cases. The owner was out of state absent and I had dated photo evidence, dated receipts, and clear listings of exactly what was owed. The judge added more to the damages for the hours listed for labor at a fair hourly rate that was more than I would have thought of asking for at the time.

    Good Luck!

    Diana
     

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