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Staving off a potential eviction

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Staving off a potential eviction

Postby Longtimer » Tue Nov 21, 2017 2:57 am

Hello,
I'm not sure if my post should be in this forum or another, but I'll post here.

I've been a tenant in a rent-stabilized apartment for 20+ years. Currently, I am experiencing some financial difficulty and am behind on my rent. Right now, I owe the current rent plus 1-1/2 months of arrears.

The landlord and I agreed upon a payment plan via emails with their A/R person. I want to avoid Housing Court if at all possible. I was a little short on the day my first installment was due, so I asked for more time and was granted a few more days. I had a hard time accumulating the funds I needed but did drop off the agreed-upon amount in full, two days after the extended date. I then emailed my contact at the office to confirm that I had done so. I paid by money order.

I logged in later that day onto our resident website to check my account, and saw that the payment had not been entered - this didn't concern me too much because sometimes payments don't show up until a day or two later. HOWEVER, they DID add legal fees to my account, which tells me they started the process!

So, I have a few questions:
1.) Does the fact that Landlord's A/R person asked for the rent and we discussed a payment plan mean that a 3-day notice is not necessary and they can legally start with a petition?

2.) If I receive a 3-day notice or a petition, can I still negotiate with my landlord directly or is that not a good idea?

3.) Which is more advisable: to keep making payments or just buy the money orders and hold onto them to bring them with me to court?

4.) Won't the 1st installment payment I made show good faith, even though it was a few days late?

5.) I read somewhere on a lawyer's blog that I can go to Housing Court and ask for an adjournment/postponement in order to find and retain an attorney. They said this could buy me another month and a half to two months, to find an attorney and familiarize them with my situation, etc. - would you know if this is true? With the holidays coming, I imagine asking to postpone things might be a good idea right now, as there will surely be days the courts will need to be closed which would add even more time.

Really, all I need is more time -- I am owed some money which I know for certain is coming, and I will be able to pay off all arrears if given more time. Are there any other reasons I could ask for a delay, in case I cannot find a lawyer after all (I would need someone willing to work pro bono)?

Other issues with my landlord:
I never received my signed copy of my lease renewal this year, despite my having asked for it numerous times. This has never happened before.

The rest of my complaints have to do with the maintenance and cleanliness of the building, such as the appearance of rodents and roaches after never having that kind of problem for years. Conditions have deteriorated since the former super left and the new one is terrible.

Could I cite any of the above issues to delay eviction proceedings?

**To be honest, I am feeling like I am DONE, not only with this place but NYC. Would a situation like mine warrant asking my landlord to buy me out? Or is that rare when it comes to tenants in arrears? I don't know if my landlord does that or if he just waits for old-timers to keel over and die.

Any suggestions and advice are welcome. Thanks in advance!
Last edited by Longtimer on Tue Nov 21, 2017 5:38 pm, edited 2 times in total.
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Re: Staving off a potential eviction

Postby TenantNet » Tue Nov 21, 2017 8:22 am

In the future please make your posts much shorter. Tenants often throw in a lot of irrelevant stuff, and write books on speculation. Don't do that, please.

We can sympathize, but can't offer solutions for being short of funds. But anytime you deal with the LL, make sure you document everything, make copies of everything, including envelopes with postmarks. M.O.s must have written the month for which the rent is intended, i.e., "Rent for November 2017 only" and make a copy before sending it to the LL. For mailing, send certified or use a Certificate of Mailing (cheaper) and get a receipt from the USPS. Make copies of all that.

I find it better to send by mail so you have documentation, but that's your call. If you do drop it off with the LL's office, get a written receipt.

As for legal fees, they can only be assessed by a court order after a trial, and only if your original lease allows for that. They cannot add the provision to lease renewals. DO NOT ever pay any legal fees unless a judge has specifically ordered them.

A 3-day notice is always required as far as we know. Yes, you can always negotiate. If the case has already started (petition), it can always be dismissed or discontinued. Once the case has started, hold onto the M.O.s until the case is resolved, or the court orders rent to be paid. Make sure the court is aware that you have the money and are willing to make payments, but also - if you have any - that there are defenses to the claim for rent.

Yes, you can ask for time to get a lawyer, but generally that only works once, and some judges might order rent to be paid into court, a real hassle.

I can tell you that things slow to a crawl in Housing Court in December. First time cases get called, but are usually adjourned until after the holidays, and you don't even need to use the attorney excuse. (this is from my experience in Manhattan - other boroughs might be different). I've already heard that actual trials are now being postponed until January.

But unless you have real issues, try to work things out as best you can before getting to court. Getting more time can usually be done, but it depends on many factors. For a month or two should not be too difficult, but more than that, not so easy. There are other ways to slow things, i.e., make a motion that requires written submission by both parties. Unless you know how things work in court, get a lawyer to do that. But remember, making motions are not for gaming the system, but for asserting your rights.

For your other issues, that's the speculation I spoke about above, or they can be put in as defenses and counterclaims. Although the LLs failure to return a lease can impact the level of the legal rent he's demanding. Without the executed lease, the rent can't go up. If he's charged, and you've paid rent in excess of that, that can be an overcharge, or can be a defense against any rent claim. Some judges might say to take the overcharge claim to DHCR, but still, the LL must plead you have a valid lease; if you don't that can make a difference in the case.

For lawyers, you can always find them. Look at the tenant lawyers who advertise on the home page of this site (although yes, they do charge for their time). If you're that poor, go to Legal Aid/Services.

Unless you have a place you know you can go, then hold onto your RS apartment. They don't come along that easily anymore.
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Re: Staving off a potential eviction

Postby Longtimer » Tue Nov 21, 2017 2:51 pm

Hi and thank you for your prompt response. I apologize for having been so verbose - I thought some background might be helpful.

I wasn't asking for some kind of solution for being short of funds. I lost my job and am freelancing while looking for a new one. Freelancing means my pay comes from 30 to 60 days after doing the work, generally, and I am right now in that period of waiting for the money I am due while struggling with nothing in my pocket. There is also Con Ed to deal with.

I know that my being broke is not my LL's problem, but proposing a payment plan was the best way I thought I could deal with my arrears and I'm glad they accepted it, but disconcerted to see legal fees on my account. I am also expecting other monies I am owed to arrive around the new year or sometime in January, so I will be flush with funds by then and only need time.

This morning my online account still does not show the payment, but I received a "Thank you" email from the landlord's A/R person, so maybe that means they will accept it even though it was a few days late. I hope so! They did not say anything else.

As far as my rent, there have been no overcharges. I've not had an increase since the RS percentage has been zero for 1-yr. leases, and I've always only been charged the exact percentage for increases in the past. This LL does pretty much play by the book, and the only complaints I have is about the cleanliness and maintenance of the building.

Thanks again for your response - it was very helpful.
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Re: Staving off a potential eviction

Postby Longtimer » Wed Nov 22, 2017 4:03 pm

TenantNet wrote:A 3-day notice is always required as far as we know.

I always thought a 3-day Notice was required, too. The 3-Day Notice is essentially a demand for the rent - correct?

I've downloaded the NYC tenants Guide and read through a bit of it, but I do have questions. In the Guide, it states that the LL has to demand the rent, either verbally or in writing, before starting a non-payment case. It is worded in a way that sounds like a verbal request is equivalent to a 3-day Notice, and that they can go straight to filing a Petition if the demand for rent owed isn't met by the date in the demand.

It would also seem to me that my LL having agreed to a payment plan with designated dates for me to submit each installment would be the same as a rent demand.

Today my payment for the first installment of our agreement is showing in my account, so they accepted it and applied it to my arrears.

The legal fees were added to my account before they received my M.O. My thinking is that, whether it was a 3-Day notice OR a Petition that generated those legal fees, when I made a payment and they accepted it, that specific action would be null and void now - because I would simply go to Housing Court and give a defense that I'd made a payment, AND the amount they are due has changed.

So, I can probably rest a little easier now because they cannot start the eviction process unless and until I do not make the NEXT installment payment when that is due.

Do you think that sounds about right?
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Re: Staving off a potential eviction

Postby TenantNet » Wed Nov 22, 2017 4:09 pm

You've got to stop speculating - everything you just asked is speculation. As soon as I answer something, you'll come up with another wrinkle, just slightly different.

Wait, see what happens and take things one step at a time. Otherwise you will spend all your time thinking about all this, what if this? what if that?
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Re: Staving off a potential eviction

Postby Longtimer » Wed Nov 22, 2017 7:25 pm

TenantNet wrote:You've got to stop speculating - everything you just asked is speculation. As soon as I answer something, you'll come up with another wrinkle, just slightly different.

Wait, see what happens and take things one step at a time. Otherwise you will spend all your time thinking about all this, what if this? what if that?

Hmm, that's a little unfair, I think. I just want to be prepared. I'm terrified of being evicted. If I had asked questions without researching and trying to understand the procedure beforehand, I'd probably be scolded for not doing research, right? So, this is part of my research.

The fact is that legal fees appeared on my account after I made payment plan arrangements with my landlord's office, but before they received my first payment. Now, the payment has been acknowledged and applied to my arrears. I haven't been served any papers yet.

My assumption based on the above is that whatever process they started that caused legal fees added to my account is no longer applicable. I think that the only thing I need worry about right now is my next installment payment.

I just wanted some opinion on whether or not my thinking was on the right track, as far as understanding the process. Whoever wants to answer is welcome to speculate along with me! :wink:

I do have another question on procedure, not speculation. I am only trying to understand what can happen:
When a tenant is served with a 3-Day Notice, can they respond with a Motion to Dismiss? Or is a Motion to Dismiss only applicable if a Petition has been served, not a 3-Day Notice/rent demand?
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Re: Staving off a potential eviction

Postby TenantNet » Wed Nov 22, 2017 7:38 pm

You answered it - the only thing to worry about is the next payment. If an when anything else occurs, then you can deal with that. As we said before, legal fees can only be awarded by a court, and that is to the prevailing party in a court proceeding. You're not there yet. You can ignore the fees. Or you can tell the LL to suck it. They do this because they want to, and for no other reason.

A motion to dismiss is only applicable to court proceedings. A 3-day notice occurs before a proceeding is started.

With a 3 day notice, you can a) ignore it, b) pay it in full or partially - if it's a legal charge, or c) write the LL and argue with him/her.
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Re: Staving off a potential eviction

Postby Longtimer » Wed Nov 22, 2017 7:47 pm

Thank you for your very clear answer - it helps a lot.

BTW, I've always known that I don't have to pay legal fees. That wasn't a worry of mine at all. I only mentioned them because seeing them added to my account indicated to me that they had done something that they felt justified the fees. It signaled that some kind of procedure was afoot. Until I saw that my payment had been accepted, I was expecting a 3-Day Notice. Now, I'm not so worried.

Again, thank you.
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Re: Staving off a potential eviction

Postby TenantNet » Wed Nov 22, 2017 8:04 pm

You're reading all sorts of things into it. Don't do that. LLs are not rational.
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Rec'd 3-Day Notice & Petition w/ incorrect amounts. Options?

Postby Longtimer » Wed Jan 10, 2018 9:32 pm

Hello everyone at tenant.net and Happy New Year.

Being a few months behind on my rent, I was served a 3-day Notice back in December. I noticed that the amounts it demanded were incorrect. I did not respond.

I was served the Notice of Petition and Petition yesterday. These documents also have the same incorrect amounts. The monthly rent is close but not exactly what I pay, and I actually owe more than the total that is stated.

I need to buy as much time as possible in order to get caught up with my rent payments. What are my options?

1.) Do I go to the clerk and answer, saying I contest the amount? (BTW, are the clerks I'd need to see the people behind the little windows or are they in the courtroom?)

2.) Or is contesting the amount done at trial?

3.) Does this situation qualify for a pre-answer Motion to Dismiss? If so, under which reason? Possibly "documentary evidence" or "jurisdiction?" Do I fill out a form and see the clerk with that?

4.) Should I ask for an adjournment to find an attorney, just to get more time? (I have read that needing time to find a lawyer does not count against the two adjournments allowed to tenants)

ALSO: I've looked high and low on the nyc.gov webpage and others, for info on DeBlasio's "Arrears Assistance" grants but have only found references to it without any info on how to apply. If anyone knows how I can do that, please let me know.

THANKS!
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Re: Staving off a potential eviction

Postby TenantNet » Wed Jan 10, 2018 10:28 pm

First, you really need to put in an answer whether you do a pre-Answer motion or a motion afterwards. you run the risk of not having any defense.

Incorrect amount sought is one possible defense, but the LL can correct it, or you can prove the LL incorrect with copies of your lease and any DHCR orders, plus copies of checks or money orders that you have paid.

This will not really stop the case. And since you say the amount sought is "close," it really isn't a big deal.

Some LLs will work out payment schedules with you (and the court will thank both of you). But don't agree to something you can't deliver on. While there are defenses to non-pays, if your main defense is the lack of funds, that might get you so far, but eventually that will catch up to you.

In most housing court cases, the first appearance usually gets adjourned. Try to pick a future date as far in the future as you can. You might get something like six weeks.

You should get familiar with how the courts work. There are documents on this site, but I would also look here to start: https://www.nycourts.gov/COURTS/nyc/hou ... nter.shtml

If in Manhattan, go to the clerk's office (2nd floor) and online to put in an answer. The clerk will fill it out for you, but be sure that he puts in all your defenses and counterclaims.

Try to avoid a trial, for many many reasons. But if you do, what you have in your answer is what you can raise at trial. Don't get caught up with legalisms like "pre-answer motion to dismiss." Chances are that's beyond your level of experience.

If you can't pay rent, chances are you can't afford an attorney. But ask about the city's new "Right to Counsel" program. If your income is sufficiently low, I'd go to Legal Aid or Legal Services. (also see the Pro Se attorney on the first floor).
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Re: Staving off a potential eviction

Postby Longtimer » Thu Jan 11, 2018 5:38 am

TenantNet wrote:First, you really need to put in an answer whether you do a pre-Answer motion or a motion afterwards. you run the risk of not having any defense.

My idea to do a pre-answer motion to dismiss came from reading one of NYHawk's posts here in an older thread: http://tenant.net/phpBB3/viewtopic.php?f=2&t=1995&p=10156#p10156

In it he wrote: "[The Tenant's Guide] states that when a tenant gets sued he or she is supposed to file an answer. That is not the only option available to a tenant (or any other litigant in any other lawsuit). The other available option is the statutory right to make a pre-answer motion to dismiss per CPLR 3211 instead of interposing an answer. (Basically, a motion per CPLR 3211 or 3212 is a written request to the court to have a case dismissed, 3211 is available before an answer and 3212 is available after an answer.)"

And he gave some good reasons for doing it later in in that post. So, that's why I thought I might want to, just as a delaying tactic. He said he does it for just about every case he takes on.

TenantNet wrote:Incorrect amount sought is one possible defense, but the LL can correct it, or you can prove the LL incorrect with copies of your lease and any DHCR orders, plus copies of checks or money orders that you have paid.

This will not really stop the case. And since you say the amount sought is "close," it really isn't a big deal.

No, the total they ask for is not close, just the monthly rent amount for some of my arrears is close. But one month is way off, and I have no idea how anyone arrived at that number. So the total they are demanding is off by A LOT, but everything is correct in the landlord's online system where I can look up my account. So, if these documents are not correct, wouldn't they have to dismiss the petition and start over again with a new 3-Day Notice stating the correct amount? I know it wouldn't stop the case, but I thought that is a way I could delay it, which is what I want.

TenantNet wrote:In most housing court cases, the first appearance usually gets adjourned.

You've said that before, but I'd be afraid to count on it. If they don't adjourn, I'd think I should ask to adjourn to find counsel. I'd need time to find someone willing to do pro bono. Just not sure if I should ask for that time before or after filing motion to dismiss (if I do go that route).

TenantNet wrote:Try to pick a future date as far in the future as you can. You might get something like six weeks.
You mean I get to pick the date??? At what point do I do that? When making my answer with the clerk or when asking for an adjournment in court?

TenantNet wrote:You should get familiar with how the courts work. There are documents on this site, but I would also look here to start: https://www.nycourts.gov/COURTS/nyc/hou ... nter.shtml

Thanks. I will look there and wherever else I can.

Any info on NYC's "arrears assistance?"
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Re: Staving off a potential eviction

Postby TenantNet » Thu Jan 11, 2018 5:59 am

Motion practice is something that can get a case knocked out. It can also be very complicated (especially with requirements for proper service on opposing party/counsel). It's best to do in conjunction with a well-thought out strategy of the litigation. And understand, that if a case is knocked out, most of the time the LL will bring it back again. So it doesn't save you necessarily.

From what I understand, you're short on funds, and you've known that for a while. You can raise technical issues with a court, but in many cases a judge doesn't want to deal with it.

Then it begs the question, what is the basis of the MTD? You can't just say the rent sought is wrong. It has to be framed in an allowable CPLR ground.

Of course, even if you do file a pr-answer MTD, you still would need to file an answer if your motion is denied.

As for the amount sought, well YOU said it was close. "The monthly rent is close but not exactly what I pay."

My understanding is that a LL can just correct the mistake and the case moves on. See "Nunc pro tunc."

If not, then that becomes an issue in dispute to be decided by the court. The LL puts in his evidence and you put in yours. This can be done in some cases by motion, but probably in a trial.

As for adjournment, well let me just say in 30 years I've not seen an instance where a first appearance goes right to trial. It's almost expected.

Some times the court will give you a date. Other times, often by stipulation, the parties get to pick a date. In the court room look for a large calendar on the wall. The dates crossed off are not available. The first one not crossed off is the first available. I often see adjournments of 4-6 weeks. More than that is less common. Depends on the LL, the judge and the attorney.

When you put in an answer, the clerk will give you a date. That's the first appearance. When you show up for that, if adjourned, most likely by stip, that's when you get to pick, unless the court decides to give you a date. You can speak with the court attorney and ask for a specific date, or agree with your adversary.

BTW, do NOT agree to any stip unless you fully understand what it means. You can have the judge explain it to you. NEVER agree to any stip that has the word "judgment" in it.

I think the so-called arrears assistance is what is called the one-shot deal where the city loans or gives (not sure which) the tenant funds to take care of the arrears. But it might come with strings attached, and like it says, you get it once in a lifetime.

To be honest, with not having other solid defenses, I'd work on finding a way to get your income stream back in operation.
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Negotiating time to move??

Postby Longtimer » Thu Jan 11, 2018 4:43 pm

In calling around to a few law firms, I spoke to someone today who told me something I'd never even thought of. He said that his firm has had cases of non-payment where they negotiated for the tenant to be granted 6 months to move out, rather than be evicted, and waive all arrears. The six months would be rent-free.

Unfortunately that firm does not do pro bono and I can't afford them. I wonder if I could negotiate that for myself. I'd be happy to move out of NYC and not have to pay rent while preparing to do that.

Has anyone here heard of this procedure or cases where this happened? Any attorneys ever check this board to weigh in?
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Re: Staving off a potential eviction

Postby TenantNet » Thu Jan 11, 2018 5:39 pm

Such deals can be negotiated and are not rare. Depends on many factors. So you pay a lawyer and you end up with no apartment. Is that what you really want? I do not know if pro bono attorneys (like Legal Aid) will negotiate for such a deal. Remember, when you leave, the apartment gets deregulated. So that's a loss for everyone. You can try to do it yourself, but as they say, you'll have a fool for a client.
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