Tenant won't move out and requesting a Jury trial...

127 Replies

Originally posted by @Alex Chin :
Originally posted by @Chris Reynolds:
"...How many of you can keep a rental for a year with no income while still paying insurance, taxes, water, sewer, and oh yeah lawyers fees above and beyond that all while taking time out of your day to go to court on and off again for months..."

 So let me introduce you to @Will Barnard and his 4 YEAR battle with squatters...

The Occupants from Hell!

 Yes, and 4 years, five months and counting is correct!!!!!

Originally posted by @Chris Reynolds :

To the people saying to plan for this... Again, I ask the question who here can support a house with a 15 year mortgage when you won't receive any rental income (was cash positive when tenant was paying) for 9 to 12 months, coupled with the fact that you have to come out of pocket for legal expenses? I've been around and evicted people and to eat 2 or 3 months is usually worst case senerio (considering you have good insurance and an umbrella policy for injury, or vandalism) this a month ago was unthinkable that this was even a possibility. 

I have a full time job and I don't pull any cash flow out of my business at this point, so I have a different situation. But I do have 15 year mortgages on my properties that are mortgaged plus a small HELOC, and I can have 1/3 of my property vacant and still make my minimum payments and basic repairs. So I could withstand a 12 month period with no income on one property plus legal fees. I'm not saying it would be easy, my profits for the year would be basically zero. I'd be working for free, and it would delay our business growth plans by a year. That would suck and it would make me rethink the whole landlording thing. But we did plan for a disaster, and again I'm not relying on the income anyway at this point. If I was doing real estate full time, then I would probably go back to work part time to offset the lose rather than lose the house. That would suck too. It comes down to how much you're leveraged. I'm not fully leveraged at this point, which many investors would say is a mistake. But less leverage allows for you to weather a storm.

      

@Chris Reynolds , I am thinking out loud here.  One, if you have equity perhaps you could find a lawyer who would be willing to buy your house for what you owe on it.  He will have the money and incentive to do this the right way.  You might just consider filing and going through with the eviction with a lawyer.  You will eventually win.  When you do you will get a judgement.  You can garnish his wages.  The state Bars hate attorney's who get judgements against them.  They are high risk for stealing clients money.  If this guy has lost his license once he will be under higher scrutiny, and pulling a stunt like this and getting evicted and getting a judgement against him could very well cost him his license again.  Right now he has you bluffed.  He wins without you even fighting.  You have nothing to gain by rolling over and playing dead, go after him.  Make sure the judge knows what he is doing and that he is a lawyer , that he has been disbarred once and that you will lose the property.  Judges do not like guys who make their profession look bad.  If you have to go to the local paper maybe they will run a story.  Be sure to file a complaint with the ethics committee for him being a deadbeat and not paying his bills and for not being fair in his dealings with you.

    What ever you do, never threaten him even if its financial, or do any act that he can counter sue on.  I wish the house were close enough for me to buy it.  I would suggest looking up his disbarment case, it will be public record.  There may be information you can use to impeach him.  Maybe call the exwife and see if she can give you any useful information about him.  If some guy is just beating on you there are only 3 choices, take it and do nothing, run, or fight back.  Attorney's can be the master of bluffing, but even if it is not a bluff at least go down fighting.

    I have gotten spoiled in Wyoming, there is not a right to a jury trial for an eviction and the hearing must be set within 12 days of service of the defendant.  I have gotten eviction orders within 5 days of service in some cases.  Good luck.

Be well researched and prepared for the request for jury trial!

If done right in some jurisdictions, I bet you could get a judge to order him to put rent money into an escrow account for every month you are waiting on the jury trial. And possibly sanction him or revisit the request for jury trial if he stops paying into the escrow account.

Originally posted by @Jassem A. :

I have this clause in my lease which might protect from this scenario:

WAIVER OF RIGHT TO TRIAL BY JURY. Both Landlord and Tenant hereby waive the right to trial by jury in any action, proceeding or counterclaim brought by either party against the other arising out of or in any way related to this Lease.

I think if you pursue an eviction and explain to the judge what is going on then it might not take as long as you think

 Here in California, the Civil Code supercedes any clauses you may write into a lease. For example,I always put in a clause that allows me to give a tenant 30 days' notice, but the law here states that if a tenant has lived in a property for more than one year you must give 60 days' notice. That is now costing me valuable time in trying to evict a tenant of mine. Laws differ, of course, from State to State, so I'd be interested to hear if your Trial by Jury Waiver would hold up where you live.

Could you physically and legally shut off his utilities to the property after the eviction date?

Originally posted by @Brett Pedigo :

Just a thought... Do you have the utilities in your name? If not, can you switch into your name putting a lock on who has access and sit them off? Sorry to hear about your troubles.

 Brett: That falls under the heading of a "forced eviction" and is illegal all the way. If it were that simple, there wouldn't be a need for all the legal options being discussed in this forum.

Originally posted by @Conrad Metzenberg :

Could you physically and legally shut off his utilities to the property after the eviction date?

 The answer is NO. That is what's known as a "forced eviction" and can land you in more trouble than you have already. I wish it weren't so, however.... 

@Chris Reynolds

Have you gotten a second legal opinion? I don't know how your legal system works. But in NC, the case is heard in eviction courtcourt (small claims) and than appealed to district court (downtown). If the tenant appeals the case the tenant must (1) post a bond for the past due rent and (2) pay into the court the regular monthly rent as it comes due.

If you have similar laws, the tenant would have to pay rent while he fights the case. I would call his bluff. If he refuses to pay, you need to follow the eviction laws to the letter. Otherwise he will stay there as long as you let him.

Steve

 @Jerry W.

 I like your idea Jerry.  Maybe he is just bluffing.  After all, there is nothing but trouble coming for his career if he pursues this plan.  If he is currently a licensed and practicing lawyer, then he stands to lose far more income by losing his license, than he will make in free rent.  Maybe he thinks he can bully you into not filing or is looking for a substantial cash for keys number, like over 10K.  Or maybe he just like power trips.  I think I would call his bluff and proceed with the eviction as fast a possible with a lawyer experienced with evictions in your area. 

ok, here it goes. i am not a lawyer, but basically, my opinion of lawyers is about the same as anyone else. they are basically lowlife scum that have a use every once in a while. they are merely legalized criminals. that being said, they can have a use once  in a while. the previous responder here is right, they are held to a higher standard in court. there will be a record with the court of his loosing his license also, which should be frowned upon by the court. i have my suspicions about a few things. first, why would he attempt to move the jurisdiction of the jury trial to downtown? is there a corrupt judge that he knows down there? if so, find out who that judge is and if he does successfully move it downtown, ask for a change of venue, i. e., a change of judge based on passed records of this judge handling all the mans cases. maybe this judge is related to him, which gives him and unfair advantage and therefore should recuse him or herself from this case. you can check county records to see just what cases this lawyer has been involved in and what judge would have been used in all or many of these cases. second, check the records on this guy, he lost his license for something. find out what and show in court how his testimony should be discredited. when he makes his attempt to change the jurisdiction, interrupt him and show the judge how he has done this very thing several times before. show the judge where this guy is trying to take this case. if you want to beat an enemy at attacking you, you have to know which way he is going to attack you. find out every little thing you can about this guy and use it any way you can. you wanna beat a crook????? you have to be a bigger crook. dig up the dirt on this guy and use it anyway you can. as far as the dogs, call the cops, tell them that you believe he may be dealing drugs in the house because you smelled pot when you last talked to him and you need to access the house to verify. get in there anyway you can. 

Originally posted by @Mark Elliott :

... as far as the dogs, call the cops, tell them that you believe he may be dealing drugs in the house because you smelled pot when you last talked to him and you need to access the house to verify. get in there anyway you can. 

Wow, resorting to false police reports - I can see you believe that "the end justifies the means", but filing a false police report is considered a crime ...

@Maggie Tasseron , thanks for that! I figured desperate measures for desperate times. I appreciate the guidance here! 

You know what. This just don't sound right. A lawyer doing this. Of course he's a convicted felon. And how he got his license back I don't know. But it just doesn't make sense for him to be that way. His creditibility would fall very short. No one would want to use him as a lawyer. What kind of lawyer is he. Of course he's a criminal. Maybe him and the judge working together I don't know. However I do know it look like he is winning a battle of wickeness. But I guarantee you, you will win the war to the good. If you can hold out. Never give up. I would love to know how this would turn out. Hopefully  in your favor Sir. Wow unbelievable how wicked some people can be. What's happen to treating people like you want to be treated?. Wow are the good and honesty of the majority of people losing ground to the wickeness of people?  I refuse to believe that.

Sorry to hear this.  Shmucks like this give lawyers a bad name and deserve to lose their license.  He shows absolutely no morals or ethics at all.  But don't stress too much about a trial.  I think the best thing to do is not be intimidated.  

Since this is a month to month tenancy, you have the right to end the tenancy without showing any breach of the lease.  You can't ask for a trial unless there is a controversy of material fact.  Any trial will be limited to whether he owes back rent.  Pursue the eviction as normal, and get the order for possession.  

The change of venue motion (which I can't imagine why your lawyer assumes he will get it, because it is an extraordinary measure rarely granted), is just a ploy to buy time.  One thing you can do is just not fight it.  Agree to the change.  What difference does it make?

AS for the jury trial, that is not as big of a deal as it sounds.  Whenever someone argues about back rent/damage/etc. they are entitled to have the case heard by a trier of fact.  Usually it is a judge.  But it can be a jury.  So instead of one deciding, the other will. When the facts are on your side, a jury is better.   They are not complicated in matters like this.  A friend of mine did one of these while a law student as part of a clinic.  It may slow things up a bit, but it won't be like what you see on TV.  Probably a panel of 6 people, who will quickly see that this guy is a prick, and will probably rule in your favor.  It just takes a few hours.  Again, if you are worried about lawyer fees, you  can just agree to waive the back rent.  That makes the controversy go away, and there is nothing for the jury to decide.  So if you agree that he doesn't owe you rent, and you have a right to possess the tenancy because there is no lease, then what is there to fight about.  

In my state at least ( Michigan), when a tenant tries to offset rent with habitability claims, the law requires that they put the rent in escrow.  This is to prevent these kind of stalling tactics from deadbeats.  They have to have money that is actually in dispute.  If he cant put up the cash for the rent, there is no trial.  Sounds like you may need a better lawyer.  Your guy sounds kind of defeatist.  Best of luck.  

Okay I have to admit I'm disappointed in those advising you to pay him off or give him cash for keys. We as landlords need to band together and stop this kind of crap from happening. Unfortunately the laws cater to the least likely scenario trying to protect those that may have lost their job and have kids that will starve or freeze if you kick them out and this allows a-holes like this dude to take complete advantage of you and the system. I say fight this and like Rob Beland said, why do you need a lawyer? So far he owes you under $5,000 so you could take him to small claims court. That's not the first item of business tho. Have you served him the 14 day (or maybe it's shorter since he's so far behind) to quit paperwork? If you haven't, do it ASAP. If he doesn't move out after the 14 days then you simply go to the courthouse and file the next step which leads to a Sheriff serving them with an eviction notice. Follow the process from there and you'll likely end up with a company that specializes in evictions taking his stuff out of your house. You can also ruin his credit by filing something (anyone help me out her) that will show his debt to you on his credit report. Anytime he tries to get a loan they will see that he owes you several thousand. It is scary that you could lose he place if he doesn't pay you have time. You have to not pay the mortgage for at least 3 months to get to the pre-foreclosure point. Then you have until the auction date to catch up on the mortgage. This is usually a few more months. That will give you time to get his *** out. Anyone please correct me if I'm wrong on any of this! I have a situation where my tenant hasn't paid rent this month...$3,000. I've started the process. It took me a phone call to a constable (google them) and a fee of $40 to have papers 'served'. This is the only for sure way that you can prove in court when the document was served. Now she's down to 5 days to get out and if she's not out I'll be ready with the next step where the Sheriff comes knocking . Please don't give in. Nothing will ever change if we don't fight these battles. We work hard for what we have no one should be able to take from us.
Originally posted by @Anthony Gayden :
Originally posted by @Chris Reynolds:

Yoochul,

He was upfront and honest about being a felon for a non violent white collar crime and he his law license had been reinstated, he was looking to move since he had just gotten a divorce, and the ex had taken the house. This house is in a very nice area with a great school system and that's why he wanted to move there. He is a great actor and seemed like a nice guy (don't they all) at the time.I figured if he had his license reinstated and was honest and upfront plus had cash and a good job why not give him a chance....

 White collar felon or not, he is still a felon. I refuse to rent to them. I could care less if it is Martha Stewart. Find somewhere else to live. 

 I wonder if the risk is greater with a white collar felon. It usually take some forethought to commit white collar crime, while a lot of other felonies are due to poor impulse control.

Originally posted by @Adam Anderson :

 I wonder if the risk is greater with a white collar felon. It usually take some forethought to commit white collar crime, while a lot of other felonies are due to poor impulse control.

Also think about the fact that white collar people are convicted of financial crimes. Essentially cheating people out of money. Do you want to rent to a person and have them sign a contract promising to pay you, who has been convicted of swindling people out of their money? HELL NO!!!

I didn't read through all of this, but this is exactly why I would NEVER rent to a lawyer. They know the legal system better than you, and you're bringing a knife to a gun fight. Lawyers are indoctrinated to solve their problems in the courtroom and to fight dirty.

Originally posted by @Rob K. :

I didn't read through all of this, but this is exactly why I would NEVER rent to a lawyer. They know the legal system better than you, and you're bringing a knife to a gun fight. Lawyers are indoctrinated to solve their problems in the courtroom and to fight dirty.

Well, I'm a lawyer and when I did rent, I was probably the best tenant you ever saw.  I make good money, pay on time, and am not home enough to wear anything out. 

The problem is

1) that he's a convicted felon, not that he's a lawyer.  If he was a mechanic that was convicted of fraud, you wouldn't have rent to him.

2) You live in a state that is very tenant friendly.  You can evict someone in a month in most parts of florida, it might take you more than a year in NYC.  Which is why I wouldn't want to be landlord in NYC.  My dad was a landlord in NYC and all his grey hairs are from that. I live in DC now, which is also super tenant friendly.  When I'm ready to move, I'm going to sell my house, not rent it out.  More money is nice, but you can't pay enough to take on more headaches.  

I really hope you weather the storm and get this guy out.  It is a sh1tty lesson to go through, but it will make you a better landlord forever because now you will have your checklist for tenants and you won't budge on anything.   Good luck.

There are many ways to get things done .  You want to make him want to leave on his own .  

I would try to find the person or law firm that pursued his disbarment and see if they could help. If it's a law firm they might do it as a community service.

Is there a local law school that could help you out.

Keep us posted.

Good Luck

Chris

I can truly feel your pain and you are doing everything within your scope as a landlord to keep things civil. Anyone who has been a landlord for any given time will have to deal with this type of a tenant. You are dealing with a professional deadbeat who knows the laws and will find every loophole to drag this out and then some. I have had personal experience with this and make it very quick to pay them some money and move out or serve them notice and proceed with the eviction process myself. If I know the tenant is able to drag out the process than I will hire an attorney to not only evict them but get a judgment as well and keep dragging them to court to pay.

Below is some information that wrote an article from an attorney that specializes in leasing matters. This may help in some insight from a legal perspective

Q--After one of my tenants failed to pay rent for several months, I filed an eviction suit. She immediately hired a lawyer and demanded that her case be heard by a jury.

In my mind there is nothing for a jury to decide. This is simply a matter of her not paying rent--there is nothing else involved. Now the case has been continued several times, and still no rent has been paid. The lawyer has sent merequiring me to provide information that is already in the hands of the tenant. Is the tenant entitled to a jury trial? In any case, what can I do to get this process moving? Time is going by, I need the rent to pay my bills and this tenant continues to live in the apartment free.

A--Odd as it may seem from your perspective, the law entitles every defendant in an eviction action to request a jury trial. While you believe the only issue is payment or nonpayment of rent, this may or may not be the case.

As you are probably aware, if there is a problem with the condition of the apartment, of if repairs were requested but were never made, a question may be raised as to whether the rent is due, or how much is due. These questions could be decided by a jury.

Legal questions are determined by a judge, such as evidentiary and procedural issues.

If there are no issues of fact to be decided, you can file a "motion for summary judgment," which states that there are no such questions to be decided. If so, the judge can make a decision accordingly.

However, to defeat this motion, it is only necessary for the tenant's attorney to raise one issue of fact, at which time the jury would become involved.

Often the demand for a jury is simply a stalling tactic. Once such a request is made, it usually takes longer to conclude the case.

Quite frequently, discovery is involved. This might involve answering questions, known as interrogatories, and producing documents.

In some cases, the parties might take depositions of parties and witnesses, to gather information to advance their arguments. You apparently have entered this phase of the case.

The key is that the defendant knows that you are not receiving rent. That may well mean the unpaid rent is funding the tenant's legal case.

A way of countering this situation is to file a motion with the court asking for "use and occupation."

Such a motion says that while the case is pending, the defendant has the benefit of living in the apartment, and should be paying the fair market value of the apartment while the case is pending.

By such an action, the defendant loses the economic value of stalling. She has to pay her attorney while also paying for the apartment. This might speed the resolution of the dispute.

The defendant also knows that it will cost you something to try this case in front of a jury. The cost of such a trial might well exceed the amount you could ultimately win.

Even if you get a monetary judgment for the amount owed, the cost of the trial could prove excessive, and there is a question whether you can collect the money from the tenant.

Most jury trials end in settlements, because of these uncertainties for both parties. This result is more desirable than letting the case go to trial, where one side may win, and one will clearly lose.

You should understand that now is the time to hire a lawyer. A lawyer can position you to best present your case and respond to the other side. Keep in mind that a jury trial is a fairly technical process, and you will be held to legal standards even if you don't have a lawyer.

This will involve preparing jury instructions and motions before and after the trial. So a lawyer may be a necessity. The old adage, "you can't beat a man at his ownbusiness," definitely applies.

Good Luck.

Originally posted by @Chris Reynolds :

 The cops and animal control told me they would not help because they didn't want to open themselves up for any liability or lawsuits. (didn't tell them he was a lawyer)

if you cal the police to stand by while you enter the house they have to send a car.  They will be there to protect your welfare while you legally enter your house.

Chris

I will tell you why he wants a jury trial and move it from suburban to a downtown court. Because he is clever or has a clever attorney. Downtown (or inner city) juries are much more likely to be made up of like minded individuals similar to him.

Think about it. If half of the jurors in anyway think he has some right or is giving the good fight to the "greedy blood sucking landlord" anything is possible with the outcome.

Example...take your exact situation and a Jury trial in Beverly Hills. The defendant will most likely be thrown out on his *** and forced to pay back rent.

Have the same trial with Jury in south central LA its highly possible Jurors will empathize much more with him and his cause.

Think about it again. Would you want this trail with jurors like yourself..common sense people, money loving capitalists, property owners etc etc or the crap shoot of a jury you can get in downtown jurisdictions...half or whom might be tenants themselves and half of that half might hate their landlords as well ??

I believe its relatively common knowledge that suburban jurors tend to be much more conservative right from wrong type of people than the screwballs that can make up jurors in big cities.

I suspect THAT to be their primary motivation for a change of venue to downtown...followed by the buying for time theory.

APOLOGIES TO ANYBODY both city and suburban dwellers by my post and to the fine residents of both Beverly Hills and South Central Los Angeles who are all great people. Am just talking extremes to try to make a point. NO OFFENSE intended  

   

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