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Answering a non payment petition.

NYC Housing Court Practice/Procedures

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Answering a non payment petition.

Postby thinkdo » Tue Sep 30, 2014 2:08 pm

Hello,

I received a non payment petition on Monday 22nd, on Tuesday I hired a lawyer to answer the petition, but I called the lawyer today to check if he has filed the answer and I was told that he is still working on it, I expressed my concern that the petition says we must answer within 5 Days but he assured me that he knows what he is doing and in reality we have up to 10 days to answer, he added that the answer will be made today or tomorrow. I am still worried and need to get another opinion, can the LL's lawyer ask for a default judgement once 5 days has passed?
should I go to the court tomorrow and file the answer myself if my lawyer dons't do it today? I could have filled the answer myself but though it would be better to hire a lawyer. Thank you
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Re: Answering a non payment petition.

Postby TenantNet » Tue Sep 30, 2014 4:26 pm

Who is the attorney? Why not let us know by Private Mail (see the PM icon to the left of your post).

I have - for my own cases which I am usually pro se - filed answers beyond the five days and nothing horrible happened. I can't give you a 100% guarantee that will be the case, but there is usually some flexibility in these things.

For pro se tenants, you can usually go to the clerk's office (second floor if in Manhattan) and the clerk will write up a check-off answer for you, and then the court will serve it on the LL.

Tenants have the option - and tenant attorneys usually do this - to file and answer by writing up papers and serving directly on the LL, then filing with the court.

Depending on the complexity of your case, and on possible procedural issues, your attorney might suggest a pre-answer Motion to Dismiss based on one or more grounds.
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Re: Answering a non payment petition.

Postby thinkdo » Tue Sep 30, 2014 7:19 pm

Thank you, I prefer not to share the name of the attorney for privacy concerns. I just need to know what is the possible legal course of actions that could be taken against us after the 5 days has passed. We have a strong case as we have been sending the checks via certified mail every month but LL not cashing them because he wanted us to move out from our RS Apt, now he is lying and saying that we have not paid for 2 months. I am only worried because the lawyer hasn't submitted the answer yet.
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Re: Answering a non payment petition.

Postby TenantNet » Tue Sep 30, 2014 8:06 pm

If you want the actual law, see RPAPL at http://tenant.net/Other_Laws/RPAPL/rpapltoc.html
and look at Article 7. As I said, in my experience I generally see some flexibility in these things by the courts. (you didn't indicate what county you are in)

On your first appearance, it is common for the case to be adjourned for several weeks.

It did occur to me that in many instances DHCR and the courts add 5 days to a deadline for purposes of mailing. I know this is so for service of motions, but I do not know if it's the case for Answers.

Why not just ask your attorney. If the paper you got says 5 days, why is he saying it's 10 days?
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Re: Answering a non payment petition.

Postby thinkdo » Wed Oct 08, 2014 7:02 pm

Thank you,

I had my first court appearance yesterday, the LL attorney asked for adjournment. I have already sent August and September rent via certified mail, but LL never cashed the checks and started a non payment case, I don't know what he is trying to achieve by doing this. I need your advice; should I send October and November rent or not? My lawyer told me not to send any more checks until the next court date, but I am trying to get a second opinion. I lived there for 5 years and never missed a payment, but for some reason the LL wants me to move out.
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Re: Answering a non payment petition.

Postby TenantNet » Wed Oct 08, 2014 7:59 pm

Is there anything else going on besides a simple non-payment? Had yhou withheld rent for one reason or another, such as Warranty of Habitability issues? Is he charging the incorrect rent? The LL's lawyer should know that a NP case will accomplish nothing as long as you're willing to pay the rent. Even if you lost, you still get time after the case to pay the back rent.

Unless there's some reason not to, you should follow your attorney's advice.
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Re: Answering a non payment petition.

Postby thinkdo » Wed Oct 08, 2014 8:40 pm

I didn't withhold rent, but my attorney raised the Warranty of Habitability issue on the answer. He is charging a preferential rent. If I follow my attorney's advice and withhold October and November, will the Judge ask me about those 2 months or the Judge will only ask me about the 2 months the LL is suing for ( August, September), can the LL amend the petition and add Oct and Nov? I have copies of the checks I sent for August and September, I also have the certified mail record that LL received them. My attorney also told me that the case will be dismissed because the petition is defective since it did not state the fact that the Apt is Rent Stabilized.
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Re: Answering a non payment petition.

Postby TenantNet » Wed Oct 08, 2014 11:29 pm

WH defenses are normal. You should put in all defenses available to you.

Preferential rent issues can get complicated and depend on what was stated in the original lease, and if the alleged legal (higher) rent is in fact, legal. The entire history of the unit, including events that occurred more than four years ago in some cases, might be material.

Is there a dispute over the preferential rent? I have a feeling there's more to the story here.

Yes, LL's can amend the petition. But seriously, do not worry about that. Just make sure you have the money to cover the Oct/Nov rent. Do not spend it on something else. I would agree with your attorney. Hold onto it for now. Do not undercut yourself.

You attorney may be correct if the petition is defective. Stating that the unit is RS is a basic jurisdictional requirement. If dismissed, that will require the LL to start over again from the beginning. Whether or not you want that to happen depends on the strategy that you and your attorney should develop. In some cases it's good strategy.

Just make sure your attorney explains the advice he is giving to you.
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Re: Answering a non payment petition.

Postby thinkdo » Thu Oct 09, 2014 12:13 am

Thanks a lot for the very informative response.
The preferential rent issue is indeed complicated, but there is no dispute over it yet, as the LL has not asked me to pay the higher legal rent and he is suing for the preferential rent amount, although the lease has expired and he did not send us a renewal lease. Obviously the LL is in trouble because he has not been following DHCR rules. My main concern in the whole situation is not to have a judgement against me so I don't have a dent on my credit, that's why I was hesitant about withholding Oct/Nov, I will definitely have the money to pay the back rent. If the case is dismissed, can I ask the judge to have the file sealed so my name won't get blacklisted?
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Re: Answering a non payment petition.

Postby TenantNet » Thu Oct 09, 2014 4:14 am

I think you're worrying too much. Yes, blacklisting is a problem and it does happen, but if your name gets on the BL without a judgment, then the company should take it off. I've been taken to Housing Court by my landlord many times for various reasons. Never a judgment. And I'm not on the BL (just checked last week).

If he didn't send a renewal lease, then the rent can't go up. And it seems he's not trying. But one option open to you is for you to file with DHCR for not getting a renewal lease. I wouldn't do that unless the LL is making noise about paying a higher preferential rent without giving you a renewal.

Another option on the rent while the case is still active, is if the LL wants the rent, you can put it in escrow with your attorney or with the court. Talk to your attorney about this.

As far as I know they do not seal Housing Court records.
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Re: Answering a non payment petition.

Postby thinkdo » Sun Oct 19, 2014 5:24 pm

If the case is dismissed, can the judge order the LL to pay for my attorney's fees?
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Re: Answering a non payment petition.

Postby TenantNet » Sun Oct 19, 2014 5:35 pm

Your attorney would have to make a motion for that, and then there wouold likely be a hearing to determine the extent of the fees.

Attorney fees can go to the "prevailing party." If the case is dismissed before a trial, it's a good possibility that a judge will not consider giving fees to either party. Ask your lawyer.
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Re: Answering a non payment petition.

Postby thinkdo » Fri Nov 21, 2014 9:20 pm

So the LL refused to participate in the conference and case is adjourned for a trial, my lawyer is telling me that the case will be dismissed because the petition is defective, I am willing to pay the amount the LL is demanding, should I trust the lawyer and let him try to get the case dismissed then I will be in a better position to negotiate with the LL outside the court, or be on the safe side and tell the judge on the trial day that I am willing to pay the demanded amount and that I tried to pay before but the LL never cashed the checks? I just don't wanna risk having a judgement against me. The LL's attorney begged him to go to the conference room and settle the case but he stubbornly refused.
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Re: Answering a non payment petition.

Postby TenantNet » Fri Nov 21, 2014 10:08 pm

Usually raising questions such as a defective petition are raised before you go to trial in what's known as a pre-trial motion. These are often motion to dismiss based on various grounds, and often are due to defects in the LL's papers, or in bad service, etc.

I do not know if it can be raised at the trial phase, but maybe that's possible. Usually the party making the motion (you) would serve papers on the LL, then the LL would have some time to reply, followed by arguing the motion in court in front of the judge. That's been my experience, but there might be other ways.

If you raised bad conditions (warranty of hab.), then these are likely as a defense, or counterclaim, or both. If proven he court might give you an abatement.

If this is a non-pay, and if you have proof of payment, then this should have been raised pre-trial (documentary proof that would nullify the LL's claims). Yes, your willingness to pay the rent (that you claim you alreeady had been paying) would make the case moot IMO. This might work against the LL with the judge.

If the case gets dismissed for defective petition, then the LL can bring it again. There are times to do that, and times not to do that.
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Re: Answering a non payment petition.

Postby thinkdo » Fri Nov 21, 2014 11:00 pm

Thank you,
My lawyer asked for the case to be dismissed in the answer but he did not file a separate motion to dismiss. He raised many issues in the answer including warranty of habitability and improper service and that I offered the rent but it was refused. when it comes to paying the rent, I sent the checks for August and September but after the LL filed the NP petition, my lawyer told me not to send more checks, so I didn't send Oct and Nov. I don't know why the case is scheduled for a trial if I am willing to pay! so in the trial if the judge believes that I tried and I am willing to pay, will he dismiss the case? and if he believes the LL that I never tried to pay, there will be a judgement against me?
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