notice of petition - please help

[ilostmytruelove]

i received on nov. 8 a debt collection letter from an attorney stating I owed rent and had 30 days to dispute it. on nov. 12, i received a 5 day notice to pay my back rent by the same attorney. on nov. 16, i received the notice of petition. because they sent a debt collection letter first, don't i have the 30 days to dispute the debt? they are also not licensed by Consumer Affairs to be a debt collector. also, they mailed the notice of petition on nov. 10th. nov. 11th was a federal holiday. so, doesn't that mean i didn't have the 5 days to pay the rent? this attorney and the landlord's office was closed on nov. 11. the date stamp on the envelope was nov. 10, so, nov. 10, 12, 15, 16 means they can't start the notice of petition until the 17th. they never served me personally and the judge said it didn't matter because i received something in the mail and it was good enough. he didnt want to hear about the debt collection letter and said it was irrelevant. please advise as I go back to court on jan. 31st and i dont qualify for legal aid, nor do i have the funds to hire an attorney. I did speak with consumer affairs and they said that since it is in court already, they can't do anything yet unless i file an appeal if i lose. although i do owe the rent, the landloard had agreed to take it off the sale of this co-op. now, they won't close with the buyer until i catch up with my rent and agree to pay 1500 in legal fees. please advise. if i can win on the debt collection 30 day notice. oh and the Judge called me on january 19 and told me with the landlord's attorney present in his office that the landlord didn't have to serve me personally and even if he did, then probably someone took it from my door. he also said that nov. 11 although it was a legal holiday, and the landlord and the attorney's office was closed, it counted as part of the 5 days. thanks

editing to add: can this be an FDCPA case Romea v. Heiberger & Associates since they did send me a 30 day debt collection letter before the 5 day notice?

<small>[ January 23, 2005, 09:40 PM: Message edited by: carol ]</small>

[Rodneystri]

You owe the monies, stop looking for loop holes after the Judge told you there are any.

[ilostmytruelove]

i'm not looking to get out of paying the rent. i said i owed the rent. however, they had agreed to use the money from the sale of this apartment to pay the rent in arrears. they waited 6 months before they decided that they wouldnt close the sale until i paid the rents owed for the 6 months plus 1500 extra in legal fees. if i win on the debt collection letter and/or the traverse hearing, then the attorney fees are wiped out which is really what i'm fighting. i sold this co-op back in sept. in dec. they approved the buyer. but now they want 1500 in legal fees for the housing part. if my apt is sold, why did they wait 6 months before starting a suit. why did they agree to wait until the buyer was approved and the rent would be deducted. to send me a debt collection letter, then a 5 day notice within 2 days of each other, is this a winning case?

editing to add: I still have rights as a tenant under NY Law.

<small>[ January 23, 2005, 11:25 PM: Message edited by: carol ]</small>

[Downtown]

Is this rent or maintenance fees that are owed.
Where is the atty. that is handling the closing for you.
Can see that the building is trying to create a legal means to collect...probably been advised that they would still have to sue you (for monies owed) after the sale.
Talk to an atty. maybe he/she can work out an agreement to pay after sale.

[ilostmytruelove]

sorry. it's maintenance because it's a co-op.

my atty said it wasn't right. he did counteroffer 750 which they refused. he also said the Judge had no right to call me to say i lost on traverse when that hearing isn't even scheculed until Jan. 31. trial is set for jan. 31 also. so this is why i'm fighting it. they want all of the legal fees and don't want to negotiate. and if they were told by their attorney that they would have to sue, why didn't they send me a letter that they wanted the back rent. they didn't even mention back rent until Nov. 8th when i received the debt collection letter.

[Downtown]

Hopefully you have an atty for the hearing.
That board sent this to collection agency within their rights to try and collect what they are owed.
Even if you signed a promisary note for the amount, the board would still have to sue you for payment (if they could find you and/or your assests).
Is there no way to borrow the other $750, so this sale could go through.

[ilostmytruelove]

Originally posted by Downtown:
Hopefully you have an atty for the hearing.
That board sent this to collection agency within their rights to try and collect what they are owed.
Even if you signed a promisary note for the amount, the board would still have to sue you for payment (if they could find you and/or your assests).
Is there no way to borrow the other $750, so this sale could go through.

ok i figured out what to do. Romea v. Heiberger says if a debt collection letter is received before the payment demand then i have the 30 days to dispute the rent. rather then dispute it, i'll just pay the back rent, even though they did say they would minus it from the sale. i checked and you're right. they couldn't just subtract the rent from the sale unless they bought an action. the Board's and attorney's mistake was to send me the debt collection letter first before the 5 day rent demand. so now that i win based on the Romea case, (i think i have to type a motion to dismiss which i'll hunt the internet for that form); as long as I pay the back rent before they re-serve me with just the 5 day rent demand letter, the 1500 legal fees is gone. i know i'll have the 5k definitely by feb 8th with my income tax refund. so even if they serve me the 5 day notice, i won't be served on the 31st, since for sure i'll make sure nobody is home. so then they'll serve on Tuesday, the 1st, giving me Wed, Thur, Fri, Mon, Tues to pay the back rent which is feb 8th.

thanks for all your help. it took me over 10x to read Romea before I understood it. Thank God, the Board thought they were "smart" with that debt collection letter before the 5 day rent demand letter.

[Anna]

Go to the Housing Court Decisions section on this website and read the two booklets on how it works (or read the little blue book they gave you when you answered in person). Learn what proper service is and when legal fees might be due. Forget about the FDCPA defense: Romea was overruled years ago; tenants only get 3 or 5 days to pay after the rent demand (not the petition) was allegedly served, not 30.

RE: your main defense: that unpaid maintenance would be subtracted from your profit from the sale of your co-op at closing: did you get this in writing as part of the sales agreement? or in writing anywhere?

[ilostmytruelove]

Originally posted by Anna:
Go to the Housing Court Decisions section on this website and read the two booklets on how it works (or read the little blue book they gave you when you answered in person). Learn what proper service is and when legal fees might be due. Forget about the FDCPA defense: Romea was overruled years ago; tenants only get 3 or 5 days to pay after the rent demand (not the petition) was allegedly served, not 30.

RE: your main defense: that unpaid maintenance would be subtracted from your profit from the sale of your co-op at closing: did you get this in writing as part of the sales agreement? or in writing anywhere?

oh lol after all that reading about that case. hunted all over for rulings regarding that case.

anyways...

no, i never got it in writing about this issue, but, it was said verbally by the Board of Directors and my closing lawyer knew about it also, along with the broker (these 2 are hearsay witnesses). However, my 6 year old was an actual witness to the Board of Directors saying this, not sure if she counts though as a witness?

editing to add:

traverse i asked for because on nov. 12th I received a regular mail from the landlord's atty with the 5 day notice. It was postmarked Nov. 10. I never received the certified letter nor the one that's supposed to either be handed to me personally, put under the door and/or taped to the door. On Nov. 17th a note by the Management Co. was placed under my door at 7 PM stating "that my buyer was missing some documents and they were sitting on the papers since Oct. 8th because of this. Please call my lawyer to have them fix this problem". (I saved this letter of course). On Nov. 26, I received a regular mail stamped Nov. 24. I never received the certified mail nor the personal one which is supposed to be served on me, just like the 5 day notice. This notice of Petition was dated Nov. 16. The 5 day notice was supposedly served Nov. 10. Nov. 11 was a federal holiday. so, Nov. 12, 15, 16, 17, 18 are my 5 days. I didn't count Sat. or Sun since the Mgmt co is closed plus their attys offices are closed and I did call to verify this. So I know that not only wasn't I served properly, I wasn't given the 5 days. plus I only received the regular mails for both of these documents.

so, even though the Judge said I would "lose" on traverse because 99% of all tenants lose on this issue, I know that I will win.

so, Romeo was overruled? So, where does my debt collection fit in all this that I received from them. First they give me 30 days, then 2 days later they give me 5 days?

thanks

<small>[ January 26, 2005, 11:36 PM: Message edited by: carol ]</small>

[Downtown]

By now you understand that atty fees only collectable if court ordered. Is it included in the petition.
If possible would go to court and read your file...specifically the affidavit of service. dates and times of attempted service (were you home). Did you receive a postal slip for certified but ignored. Far too many atty's. provide a false affidavit of attempted service
Mgt atty. is going to argue that even if they jumped the date for petition it was an honest mistake.
If you can't bring the atty who knew of verbal deal to deduct arrears from sale...at least bring a notarized affidavit. If you are still willing to use that option then state so.
You need to impress upon the judge that this is harrassment and hoop jumping...as you in good faith have arranged for a buyer and for payment through this.

[ilostmytruelove]

okay, we went to court yesterday and that judge was totally biased against me. tenants actually clapped when i stood up for my rights. that's how bad it was!

this Judge without even the traverse trial starting said that unless i pay $350.00 upfront for the process servers, he was granting an oral motion to squash the traverse hearing.

i said "how dare you take away my due process because I didn't come to court with a check for $350. i'm going to appeal and i'm out of here"

he then set traverse for march 8th as long as i pay the $350.00 by today (2/1). if the petitioner doesnt receive my 350, then he's granting their motion to squash and on march 8th, it goes straight to trial. he put this on my file.

i then said how come he didnt even read my motion to dismiss and the judge said it's denied and he doesnt have to read it! I said that fdcpa has to be introduced so it doesnt become res judica (not sure of the spelling). and the judge said just bring it up in trial about fdcpa. thats good enough. i also said the notice was defective and he said "I'm not the trial judge but it's not defective in anyway". My hands still hurt from all the writing i was doing
i had to agree to pay the 350 to get traverse. but i wont pay it because i was strongholded (i think that's the word) a do or die situation.

the landlord's atty told me to just quit otherwise i'm going to lose my buyers. I told him not to threaten me. The judge makes me so mad!

the landlord's atty also showed me that the process server had a receipt for their certified mail. i pretended like I was dumb and said "oh"

but I know that they didnt send it certified or serve me because I was home at the times specified. They think that their receipt is proof enough but I want them to produce the actual letters because the P.O. said that it's returned within 2 weeks if not signed for. I know they are lying. I've been here for 20 years and the same mailman and Joe (the mailman) said he never received anything for me to sign within the past year. So, worse comes to worse, i get him to testify because Joe is on first name terms with everyone in our complex. and the process servers must produce the 2 letters. and I'll fight on this issue also.

This judge then sent it out so I know i'm getting a different judge for traverse and trial. the only thing is that when i go on March 8th because I'm not sending the 350, they are taking away my traverse which isn't right.

my motion was based on fdcpa plus the fact that I'm in a class action against the SAME attys who are involved. Sontag & Hyman are paying 4,809 tenants 31k for their scare tactics between 12/1/02 and 12/1/03 (I gave in last year and just paid on the 1st day of the initial court date, rather then going for traverse and trial, same Judge, couldn't deal with it). these attys did the same thing. I received the fdcpa 5 days before the rent demand. but this year is different. they approved the buyers and are withholding closing and told the Judge this yesterday until I agree to $2200 legal fees plus $300 an hour for yesterday's appearance which took over 3 hours.

oh and the Judge saw the date for the notice of petition and said 4 days is enough and service was correct. This judge wasn't even the trial judge. he said "99% of all traverse cases are thrown out and my advice is to just pay up". I swear, I got up and said I'm filing an appeal and I'm walking out and I will wait for the marshall and just file an order to show cause. the judge told me to sit down and then the attys said that they didnt want it in writing about the 350 because it was wrritten on my court folder. i kept quiet but i will appeal that.

anyways, this makes me so mad. I have an appt with Sokolski & Zekaria on 2/2.

my apt is sold, buyers were approved, landlord in court said they wouldnt close unless i paid legal fees and process server fees and this was wrong for the judge to say "of course, thats why tenants motion was dismissed and I don't have to read it. However, I'm granting your motion to squash traverse unless tenant pays by 2/1 $350. She'll lose on appeal because I wrote it on the case file".

there's tons more as it took over 3 hours before the Judge sent it out for traverse and trial. March 8th was chosen so that we would be the first ones before the Judge. Luck was on my side for this one as it gave me time to find a lawyer. maybe they can do something for me as i know my rights were violated by that Judge. forcing me to pay or else giving up my rights to traverse is wrong. even i know this.

sorry for writing so much i'm just so angry right now. I always thought Judges were supposed to be on nobody's side.

[HardKnocks]

Housing Court judges were once lawyers, often in the same firms as the landlord lawyers going against you. They're all buddies, and most of them, from all I've seen and heard, are biased against tenants. We're all deadbeats to them, even when the landlord has clearly broken every law imaginable for us to wind up in court to begin with. They're all in it together, just like most people with money and power.

I'm sorry you're going through this. Is this the same judge who actually called you and pretty much let it be known without hearing your case that he was going to rule against you?

[ilostmytruelove]

Originally posted by Bleary-eyed tenant:
Housing Court judges were once lawyers, often in the same firms as the landlord lawyers going against you. They're all buddies, and most of them, from all I've seen and heard, are biased against tenants. We're all deadbeats to them, even when the landlord has clearly broken every law imaginable for us to wind up in court to begin with. They're all in it together, just like most people with money and power.

I'm sorry you're going through this. Is this the same judge who actually called you and pretty much let it be known without hearing your case that he was going to rule against you?

yes. same judge. now that I'm getting a different judge in march, i'm wondering if i can make a complaint against this Judge because he can't do anything to me now??

[Downtown]

Did you ask Sokolski/Zacaria if you should pay (when you made the appt.) Would hate to see you lose this on a technicality....especially as you could counter motion for return.

[ilostmytruelove]

Originally posted by Downtown:
Did you ask Sokolski/Zacaria if you should pay (when you made the appt.) Would hate to see you lose this on a technicality....especially as you could counter motion for return.

no, but i'll listen to their advice on whatever they say. i'll post here tomorrow after I get back.

i'm typing everything that happened from day 1 til yesterday. it'll be easier for them to just read and then give their advice.

thanks