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Urgent help! petition of non-payment

NYC Housing Court Practice/Procedures

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Urgent help! petition of non-payment

Postby stillinnyc » Mon Jan 21, 2013 11:40 pm

Hi all, I am new to posting but I had found this forum very helpful in the past. Thank you!

I got a petition and notice of non-payment on Fri and the postcard on Sat, and also have a slip from the USPS about a certified letter. Neither my wife nor I got anything in person, no other adults live with us, and nothing was on our door.

The notice mentions that we owe 2 months (Dec and Jan) which is correct except I had happened to have mailed two checks for a month's rent each, Fri and Sat night. So I have paid, but they haven't been received. The petition also mentions legal fees and court costs but has no numbers.

Reading about this situation I did a few things that might not have been smart. (1) I emailed the landlord (the owner and the main guy in the leasing dept) that I don't contest the amount owed, and that I sent the check, and they should get back to me ASAP about an agreement which accepts that so that we can end this. I did not mention anything about court costs or legal fees. (2) then in a paranoid way I thought "I can't prove I sent checks!" So I stopped payment on the checks and issued a new check through my bank for the 2 months' rent which should arrive 1/29. Then (3) I emailed the same landlord telling them about the checks.

So my main questions. I am going to housing court tomorrow and my plan is to file an Answer with 2 defenses: I wasn't served the notice/petition properly and I already paid. Is that what I should do?

Also, how else do I notify the landlord about the stopped checks? I don't want to get in trouble if they try to deposit them and they are blocked. I intend to call them tomorrow to explain.
stillinnyc
 
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Postby stillinnyc » Tue Jan 22, 2013 12:10 am

One more question: my wife's name is on the lease and she signed the lease renewal. But her name isn't on the petition. Is that something to mention in my Answer too?
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Postby TenantNet » Tue Jan 22, 2013 3:27 am

Well first, calm your nerves. This happens about 500,000 times a year in NYC. And whatever the reason for the LLs claims, to the extent you can, start putting whatever money might be due aside.

Second, read all the articles in the site's court section.

You will need to go to court ASAP and put in an answer.

As for bad service, this is common, and one defense would be bad service, and you can ask for a "traverse hearing" where the LL must prove you were server properly.

Did you get a 3-day notice to pay? That is also required and must be served the same way.

Your second defense would be that the rent is paid, and explain it just like you did. I hope you mailed it certified RRR, but if not, check you bank for proof that the checks were cashed.

On attorney fees, that's if you go to trial, and only to the prevailing party. If this is settled out-of-court, there should be no atty fees liable.

Do not ... never ... agree to any stipulation of settlement of adjournment that has the words "judgment" in it. You can ask the judge or court attorney what the ramifications of the wording in any stip means.

You can also raise other defenses, i.e., the rent they seek is not the legal rent, or that you have repairs that need to be made, and so on. I wouldn't worry about the email to the LL.

If the LL has a lawyer, communicate with the lawyer on matters related to the case, not the LL. Tell the lawyer that the initial checks were stopped and they should expect new ones.

Yes, that your wife's name is not on the Petition should make it defective.
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Postby stillinnyc » Tue Jan 22, 2013 5:27 am

Thanks TenantNet. I am going to court this morning to give the answer. I'll do the three defenses - not served properly, spouse's name not on petition, and rent paid.

I don't have proof checked were cashed - I'm certain they weren't (not enough time) But I sent the new check through my bank so I have proof the funds left my account and the check was sent to the LL.

I will call the LL's lawyer today then, to let them know about the checks. I am hoping this will all be very quickly over since I have already taken the money out from my account to pay.
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Postby TenantNet » Tue Jan 22, 2013 5:50 am

So you start now getting proof from the bank ... depends on your bank and the type of account. Once you put in your answer, you will get a court date. That's not for a trial, just the first time on, and you can get an adjournment (although try to have the LL ask for the adjournment else it might count against you, and after two tenant-requested adjournments, they can require you to deposit the rent into court, so don't fall into that trap). The first time - and maybe more, teh LL might want to settle the case. The court will try to resolve the issues without going to trial. You can ask for mediation. Mention the rent was sent and you are trying to get proof it was cashed. Do you have bank withdrawal slips showing you withdrew the money? Did you make a copy of the check before sending it? (start doing that from now until forever).

Try to get time to see if the LL gets it in the mail.

Did you get the 3-day notice? I don't think you answered that. Without that, they should toss the case.

If the LL lawyer tells you to not worry, don't believe that. You have court papers. You must show up. You must put in your answer. Don't assume it will go away. You will need a stip discontinuing the case, and get the judge to "so-order" it.

As for evidence, you will need it at trial, but not now. And do not give the LL any personal information if you don't need to do so.
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Postby stillinnyc » Tue Jan 22, 2013 10:57 am

They didn't send the rent demand correctly either, so I'll put that in my answer. I'm at the court now waiting for my turn.

Just spoke to person from my LL's legal dept who said there is no need to go to court. If I have sent a check, they will accept, and they don't want to pay for a court date or make me go.

I like that but it's risky, isn't it? Don't I have to file an answer since they already put the ball in court, so to speak? They may sound nice now about just accepting the check and forgetting everything, but if I go home without filing an answer isn't that grounds for them to ask for eviction if they want?
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Postby TenantNet » Tue Jan 22, 2013 11:31 am

Do not ignore what I said. Tenants get evicted by not going to court. You MUST show up and get a discontinuance approved by the court. It's a common trick to get tenants to default.

And if you need repairs, put those in as well (make them both defenses and counterclaims). It's a good way to have the court order the LL to make repairs.
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Postby stillinnyc » Tue Jan 22, 2013 11:55 am

Thank you so much. I am staying waiting to file an answer. The clerk told me my case is too new and I should wait for it to be registered and he'll call me back to the window -- wasn't expecting that.

The discontinuance you mention - I ask for that now? Or when I return for the court date? Also if I paid, and want this to end fast, and don't want to miss work for more court appearances, should I really ask for traverse? Will I have to show up sooner or more times?

There are no repairs issues (thankfully I suppose).

ETA: just filed, got a date. Now to gather evidence. BTW the clerk was polite and seemed impressed that I could tell him I wanted to use four defenses and I knew the numbers.
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Postby TenantNet » Tue Jan 22, 2013 12:16 pm

You ask for it when you go to court (not the clerk's office). The LL's atty will either agree to it, or not.

Yes, ask for the traverse. You may not need it, but ask for it.
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Postby TenantNet » Tue Jan 22, 2013 12:22 pm

OK, so now you have a date, a room and a "Part" number. Show up at 9:30 AM on the date specified. The LL attorney might not show up right away. That's common. They will likely ask you to come out to the hall to discuss the matter. That's OK, but don't agree to anything other than an adjournment or discontinuance. Never sign any stip that uses words like "consent to judgment" or similar language. That's the road to eviction. That's like pleading guilty to murder. Have the court attorney or judge explain to you what any stip means, even if you think you understand it.

It's likely the LL won't agree to outright discontinuance until they get the checks, so you might have to ask for an adjournment for a month or more. (and as I said before, do not allow the stip to state or imply that you asked for the adjournment). It is OK to have it say "the proceeding is adjourned on consent..."
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Postby stillinnyc » Tue Jan 22, 2013 12:52 pm

Thanks for everything. Very helpful. I'll update you next week
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Postby stillinnyc » Thu Jan 24, 2013 9:19 pm

I'm preparing for the court date, thinking about the defenses I used.

1. Rent paid. This is easy, I went to my online banking and printed every check I ever sent them, covering up to Nov 2012. Then for Dec and Jan, I printed the confirmation from my bank that the money was drawn from my account and sent as a check to the landlord - they just haven't received it yet.

2. Not served right. How do I prove this? I am thinking of having my wife sign a letter to the effect of "I am the only other adult living in this house, no one else lives or works here. I am home almost all the time taking care of our daughter (in the last month during day time hours was away once for a doctor's appt, and during evening hours away twice only). No one has given me any remand demand or any legal notice directly, and I have never seen anything taped to our door." And then having this notarized. Since she can't be in court. I can just testify that I didn't get the demand or notice properly.

3. Wife's name not on Notice. Easy, I have the notice without her name, and I have the lease (and lease renewal) with her name and signature on both.
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Postby TenantNet » Fri Jan 25, 2013 5:37 am

The LL has to prove you were served properly. During a traverse hearing they will bring in the process server who will testify.

Look carefully at the Affidavit of Service(s). There should be one for the Petition/Notice of Petition, and another for the 3-Day Demand letter. The latter should be attached to the Petition. But the Affidavit of Service won't be in the Petition you received (but it will be on file with the court).

She what they claim as to method of service and compare that to what is required. Did they claim they served you personally? If not, did they claim they taped it to your door and also sent it by both regular and certified mail?

Not only do they have to actually do it properly, they have to state what they did.

A letter from the wife won't do much good. When it's time for the traverse, if it gets that far, better have her in court.

But it's doubtful you will get that far. Nevertheless, you have to put in for your defenses and counterclaims or waive the opportunity.

Whatever happens, even if the LL's lawyer seems "nice," do not trust him or her. Make sure you have the judge or court attorney look over all stips and explain it to you. Do not allow the word "judgment" in any stip, and don't agree to pay their attorney fees, no matter what.

If you really feel under water, there are tenant info tables in each borough, as well as "pro se attorneys" that can also be of help.
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