Disclaimer - not seeking any official legal advice here. Just wanted to share the story.
So I’ve lived in this apartment in Brooklyn for 8 years, as one of the primary tenants. Other roommates have come and gone, and all new people in off the street (craigslist) get month-to-month contracts, at least until my lease is up and I can renew with them. So one of my roommates moved out, and I’ve been showing his empty room. One of the people I showed it to got me back to me over the weekend and gave me a security deposit check, reserving him the room until the rest of the paperwork was taken care of. He came back again yesterday to sign the licensee sublease contract, and we agreed that he will pay me the rent by the 25th at which time I will give him the keys. Now that everything is settled, I cancel the rest of the appointments and tell the other pending roommates that the room has been taken.
So this morning I get an email from him saying that he is backing out and put a stop payment on that check. He hasn’t been answering any of my calls or emails asking to discuss this further. Since it sounds like he’s going to stonewall me, my next step is going to be to pay a visit to small claims court. Since he already signed the month-to-month contract, I believe he is liable for at least the August 1-31 rent, as well as any fees which may develop due to that stop payment.
This is the first time I’ve ever had to do this. I read through the NY small claim courts site. $15 sounds reasonable to recover my $850. I just have a couple of questions/concerns:
It says that they will send a summons to him via certified mail, and I must have his address to do so. I actually don’t have his CURRENT address (and he will be moving, one way or another, within the next couple of weeks) but I do know where he works. Can I send it there instead? Or is it impossible to take someone to small claims court if you don’t have their address?
How long does this process take? I mean, if I file the paperwork tomorrow, is there any chance of getting a date before August 1?
Do you think I stand a chance here of recovering at least 1 month of rent? I can elaborate more if you want. I just hope this guy isn’t a doper…
I learned this last year- this may be specific to California but here’s some general info-
Hire a process server. It is their job to make sure he gets the notice. They will attempt three times and if they aren’t able to serve him directly they can serve his employer (since his employer can be reasonably assumed to in contact with him and pass it along) if they aren’t able to give it to a proxy then the process server can testify that you in good faith tried.
No way in hell. You’ll be lucky if your court date is in the next two or three months.
How much is the month to month contract “legally binding?” Is it napkin? Is it a real form?
Serving the papers saying you are suing the guy is a Jurisdictional requirement. What this means in English is that the Court must have the power to rule against the defendant, and they don’t have that unless the guy KNOWS he’s being sued. This is a fundamental feature of Due Proces: Notice, and the opportunity to be heard. That’s why its also called “serving process.”
In New York, Service purely by mail is a feature of the small claims court and other types of simplified hearings (it isn’t allowed in “regular” court), but there are many other legal ways to serve. The most obvious is in person (called… wait for it… “personal sevice”) - you hand him the papers. It doesn’t matter at that point if he drops them on the floor, burns them, or hightails it to Paraguay - he’s been served and he is presumed to have knowledge of the contents of what you gave him.
However, long story short if you can’t serve him in some manner recognized by the court, you can’t sue him. Check with the court as to whether personal service is allowed and what you have do to prove it happened, or what other methods may be available.
It should also be observed that if you win the case, you will be awarded a judgment. A judgment is a piece of paper that says the other guy owes you money. It is not actually money. Turning your judgment into actual money is up to you. Maybe the guy will pay up voluntarily, but that seems…less than likely. If he doesn’t within the time allowed in your state, you may attempt to execute the judgment–ie, seize the money or some of his stuff to sell for the money–according to the law in your jurisdiction. Garnishing his wages or bank account may be an option if your state allows that. Then again, he may turn around and file bankruptcy, and you may be out of luck.
He just called me with his tail between his legs saying that he checked his bank account and he wasn’t able to get the stop payment in on time (should I start another thread - or does anyone here know if once the money is pulled from the givers account, which means it made it back from my bank to his, can it still be stopped?), so taking him to court on this probably won’t need to happen. I also explained to him the position he left me in, so he probably won’t retaliate back to still try to get his deposit back.
And yes, the contract is legally binding. It reads like a standard lease, with a couple of extra riders in it.
I see the situaton has changed. Not going to get too into it, but once you learn a party to a contract does not intend to comply, you may have some responsibility to attempt to mitigate your losses. I.e., you might want to look for a new tenant - even if they pay below market rate, rather than doing nothing and just assuming that you can collect a full month’s rent from the first guy.
Was his deposit for a full month’s rent? Are you still attempting to rent it to someone who wants to live there in Aug, or are you just planning on accepting his security deposit as that one month’s rent? Does he have the option of sub-subbing?
Yeah. :rolleyes: Real satisfying. May be months down the road before you ever see a dime, and like me, out the court fees, too.
If I ever have to collect from a scumbag again, I think I would do the “Small Claims of Louisville Slugger Court”. Thats what I learned from my small claims fun-time.
I told him that he’s still responsible for August’s rent, whether he moves in or not, but seeing how he wasn’t even able to properly pay his deposit to me (which is equal to 1 month rent and is normally returned, minus any expenses for damages etc, after the term ends) I was accepting his “notice to move out”. He already stated that he still has no intention to move in, and he CAN’T move in without paying me the actual first month’s rent (aka giving me a second payment), since the contract states that he doesn’t get the keys until I get the first month’s rent, and I doubt he’s going to even try to give me another check at this point.
A thought later occured to me that he may have been trying to scam me - lets say the stop payment was the truth, but the call where he said his funds were pulled from his account was a lie. If was naive enough to write him a check on the spot, and then that deposit check bounce he originally gave me bounced, he would end up with twice what he gave me, and I would be out twice. Could someone possibly get away with that (yeah, I know this happens with work-from-home western union schemes all the time, but I’ve met this guy face to face and know where he presumably works and his phone #).
When I sued someone, I kept hearing that over and over, it was even in the small claims handbook. Just because you win, doesn’t mean you’ll actually collect. Well, I did collect. I got a check then next day and I thought that was the end of it. Fast forward about 10 years and I get a call from this guy out of the blue. It turns out I never filed a satisfaction of judgment (IOW, I never let the court know that he paid me) and he couldn’t close on a house that him and his wife were trying to buy.
I printed out the paper work, signed it, had it notarized and got it to him the next day and as far as I know everything went fine from there. It’s nice to know that even if you don’t go through the hassle of putting liens against the other person or trying to garnish their wages, if they don’t pay you, at some point it’s likely to catch up with them. In my case (and in yours) it worked out nice since we were living in an apartment at the time so there’s a good chance that someday he’ll buy a house and it could cause a problem then.
Also, WRT to serving him, in Wisconsin I had the option of using a sheriff’s deputy in his county. I think it cost me about $20. You should be able to get a handbook from the courthouse that details what you have to do to serve him. It’ll probably involve sending something to his last known address, might have to be done by someone ‘official’ and if you can’t get a hold of him there (or someone else said at work) you can usually publish it in the newspaper. There’s a section mixed in with the classifieds for this purpose. It’s my understanding that after you do all this, and have proof, you can present it to the judge and get a default judgment against him if he doesn’t show up.
BTW I just saw the thing about the stop payment. I would leave that money untouched for a few weeks just in case the other bank manages to pull it back.
Also, someone else touched upon it, but I think you might also have to be able to show that you made a good faith effort to get a new roommate for next month. You might actually help your case (but IANAL, so I could be wrong) if you can manage to rent it out to someone, even if the first month is cheaper and then sue him for the remainder.
Saturday 7/10 - sees the room, puts down a deposit. I cancel all other appointments (and I let him know this), and deposit the check,
Sunday 7/11 - meets with my and my landlord, signs the contract
Monday 7/12 - early AM I get an email stating that he is backing out of taking the room and put a stop payment on his check. I try calling him and he finally gets back to me in the evening and says that the funds got withdrawn from his account, and I tell him that because of the steps taking over the weekend, he’s legally liable for August rent, and I would not be returning his money.
Wednesday 7/14 - I log into my Bank Account and see that there’s a “DEBIT/HOLD” on the funds. Looks like this case may be back on afterall… =/
Okay, well, maybe I’m the outlier here but I think this is a lot of effort to chase after someone who caused you to loose 2 days of roommate searching. If you had called the canceled appointments on Monday then I would bet that some of them would still be interested and willing to come by. Actually its only Wednesday so some of them still might be around. JMHO.
The work address should be okay, but I’d make every effort to get the home address. If you can’t be sure he got the notice then whatever judgment you get would probably be overturned.
No. They want litigants to have an opportunity to respond and maybe settle before their case comes to court. I went through this last year. I filed a claim in early August and the court date was in mid-September.
If it can be proven that he could have turned around and rented it to someone else, the OP could very well lose in court. Besides, he is going to need someone in there for September, so why not see if he can get someone in there for August as well?
So contracts aren’t valid (or won’t hold up in court) if one of the parties thinks that the other party can just make other plans to accommodate around him?
Since he gave me a deposit + signed the contract, I have spent a couple hours on the phone with him, my landlord, my other roommate, my parents/friends (for advisement) and other prospective roommates, as well as made two trips to the bank to discuss this check. There’s a good chance that one of the people who saw the place on Saturday is still interested, but these things move fast and I doubt I will ever hear back from the other 4 appointments I had scheduled for Sunday. And I can’t even start showing again until Sunday 7/18 due to my work schedule the next couple days. So aside from money, this situation is costing me a bunch of my own personal time. And now that it looks like he might have succeeded with his stop payment, I’m probably going to be getting a series of bank fees myself (which means I’m LESS than even).
I do intend to try to get someone else in for August, and will be able to show in court that I didn’t stop trying (even though I really don’t see why I should HAVE to do this, since I still have a contract with him which would be valid until August 31). What’s the worst that could happen if I lose in court? Aside from being out the court fee, would I end up owing HIM anything else?
Well, if you think that 2 days is worth $850, then the time it takes for you to go through with the small claims suit will cost you a multiple of that.
Seriously, I can understand that you’re pissed, but you really think this is the best course of action over a 2-day delay?
I have no idea what the court might decide. You’ve been inconvenienced for sure but people are saying that you might not have been inconvenienced to the tune of a month’s rent, especially if you still have a chance to get a tenant.
I can’t see how you could owe him any money unless he makes a claim against you.
