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Overcharge

NYC Housing Court Practice/Procedures

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Overcharge

Postby vladkes » Sat Feb 14, 2015 12:27 pm

The judge denied my MSJ on overcharge claims because there was "no statement of fact that I paid or that petitioner collected more than monthly rent as per reduced DHCR order.

In my affidavit I attached as Exhibit certified DHCR copy of "Registration Apartment Information" which shows "Actual Rent Paid" going back 5 years (which is sufficient, as I am only allowed a remedy for 4 years prior to filing a claim).

I want to make a motion to renew, but I have about half of cancelled checks for each of those years to attach, and I even do not remember how, or which banks I used. Can I meanwhile make a motion with those attached available cancelled checks, and at the same time request by subpoena for LL's printout or other evidence of received monthly payments to be produced by the hearing on my motion to renew? Thank you for your opinion and input!
vladkes
 
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Re: Overcharge

Postby TenantNet » Sat Feb 14, 2015 12:52 pm

You don't say, but I'm assuming this is a non-payment proceeding in Housing Court. And that you had an order from DHRC reducing the rent for some reason, but here I'm assuming it's an order tied to a service reduction.

I'm also assuming there is no dispute as to what that reduced level of rent is. For example, if your legal rent is $1,000, the rent would be reduced to the level in effect prior to the most recent guidelines adjustment. For sake of argument, let's say that is $900.

You can claim an actual overcharge, if the LL was paid and collected amounts over that $900. If he billed for more than the $900, but if you stuck to your guns and paid only the $900, then that is not an overcharge (it should be considered harassment in our opinion).

To show actual payment over the $900, you should show canceled checks or money orders, or your bank statement showing the payment, or the LL's billing showing credit for that amount, or something else showing the actual payment.

You can make a motion to renew or reargue (there is a difference between the two), but the lack of documentation might hurt you.You can subpoena documents, but that is at the discretion of the judge who must order any subpoenas. You can also subpoena the bank.

But it sounds as if your own record-keeping is a mess. Best to get your own house in order first. Keep actual documents or copies of everything including envelopes with postmarks. Maintain a journal or diary. Put your finances on a program like Quicken where you will haqve records of every transaction. And use a bank where you can download statements. (many banks have this capability). If you use money orders, they all come with tear-off receipts.And on those receipts you can write something like "rent for apartment ___ for Feb 2015".
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Re: Overcharge

Postby vladkes » Sat Feb 14, 2015 1:44 pm

Thank you very much!
All your assumptions are correct! (In fact, based on that DHCR reduced order LL's Petition for rent underpayment was dismissed). In my Answer I checked c/claim on overcharge. You absolutely correct that my recordkeeping is a mess. My bank have download capability for only a year (for earlier years they charge for each statement and have no idea if it contains rent payment).
However, by surprise, I do saved each and every LL's rent bill! They do not show credit for paid amount, but each next bill show a regular rent to be paid, or increased rent with arrears, if previous month payment was "insufficient". Can that help me and how practically to justify those bills as evidence of payment? (Of course, I will also attach available cancelled checks, confirming amounts of those bills). Thanks again for your clarification!
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Re: Overcharge

Postby TenantNet » Sat Feb 14, 2015 2:06 pm

I've seen LL's do this, and in our opinion, that is harassment and intimidation. In rent reduction orders that apply to entire buildings - or large group of tenants - you will find some tenants, perhaps the elderly, who are intimidated and will pay the illegal amounts. LLs also target tenants and take them to court even where there are rent reduction orders in effect.

Of course DHCR will do nothing about this. You can try going to DHCR's Tenant Protection Unit, but many tenants see that as Cuomo's joke.

The LL's rent bill shows what you were being charged. It does not always show what you actually paid. But if the credit is correct on the rent bill, the courst should consisder that in a calculation of any overcharge.

If you paid the lower reduced amount, then you aren't actually paying an overcharge.
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Re: Overcharge

Postby vladkes » Sat Feb 14, 2015 2:35 pm

I agree with you 100%. I am a senior citizen myself and paid illegal (not reduced!) amounts for many years. Now, I've learned that all I am entitled is overcharge remedy for 4 years only.
But even though, I feel now that LL's bills w/out indication of credit for prior months and incomplete cancelled checks (say, about 6-8 from 12 for each year) may not help me, because I am not sure how to properly put two and two together.
Of course, LL has all records of my payments for these years and his printout would do the job.
Any practical suggestions?
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