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Non Payment Proceeding Question.

NYC Rent Regulation: Rent Control/Rent Stabilized, DHCR Practice/Procedures

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Non Payment Proceeding Question.

Postby lawful tenant » Sun May 22, 2022 6:55 pm

Landlord Filed Non Payment Proceeding in March 2022, seeking 7 months rent from September of 2021.

I answered the petition and the first court date is set for May 26,2022

Two days ago Landlord sent me a letter stating they got paid for the above months by ERAP.

On the upcoming court date next week, do they jurisdictionally have the right to ask for April and May rent, since neither of these months were in their original petition AND they got paid for all the months they were seeking in that petition?

Thank you
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Re: Non Payment Proceeding Question.

Postby TenantNet » Sun May 22, 2022 9:32 pm

So this is a NP, not a holdover. With ERAP, there is a one-year stay of court proceedings. It means (with a few exceptions) the LL can't bring a NP proceeding for one year from the date they receive the money. Get details on your ERAP web site account: https://otda.ny.gov/programs/emergency- ... ssistance/

Are you seeking, or have you gotten an attorney through Right to Council? Because of the pandemic, there is a huge demand for attorneys. But still I would look for one.

Just in case...

From now until you die, make sure you always Earmark rent payments on any check or money order you send. In the memo of the check, write, "Rent for month of May 2022 and for no other months." That means you earmark the payment for that particular month, and the LL should be prohibited from applying it to some other month in the past. It's also called Rent Jamming and LLs do this all the time.

I've had to deal with this myself, with my LL applying my rent payments to a period time from years ago when I withheld rent (for good cause). All of my payments had this earmark and the judge dismissed the case.

In your case on your first appearance, I would ask the judge to dismiss the proceeding WITH PREJUDICE (meaning they can't file it again for the same months). Should the letter to the court and your defense would be that the rent is already paid. Print out the pages on the ERAP account where it indicates the dates when the rent was sent to the LL.

In other words, they can't sue for rent that was already paid and accepted.
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Re: Non Payment Proceeding Question.

Postby lawful tenant » Sun May 22, 2022 10:02 pm

Thank you, that was very informative, but did not answer my question.

I read elsewhere that when a non-payment proceeding continues to a new month, LL can update it to include that month. From my understanding that was only when you still owed for months contained in the petition. In my case ALL the months contained in the petition got paid. However two months passed from the time LL filed the petition and the question is can he now ask for these two months on the first court date? Does the law allow this?

They will clearly not ask for payment for ALL 7 months that are in their petition, as they themselves sent me proof of getting paid for all those months.

I do however owe them for two new months (April and May), but can I make them file a new petition for these two months, so as to buy additional time to pay or will they be allowed to just add these two months to the existing petition?
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Re: Non Payment Proceeding Question.

Postby TenantNet » Sun May 22, 2022 11:19 pm

We did answer the question ... the one you asked. But we can't read your mind, and some of what you said was unclear.

The term "jurisdiction," in our view, is not the correct question.

You might use "rent paid" as a defense. Or you could claim the rent was paid and the petitioner has failed to state a cause of action, that is often seen in a Motion to Dismiss. As a pro se tenant, you should be able to just ask the court to dismiss without submitting paperwork. Or first, with the LL's letter, ask that the seven months be dismissed, and then address the remaining two months.

They should be able to seek only rent for months listed in the petition. However, courts routinely allow LLs to amend the petition to correct the months -- or, as here, any subsequent months to bring things up to the present. In our view, they should dismiss the case forcing the LL to start over again. That depends on the judge.

But your question does not make it entirely clear. It sounds as if the petition seeks rent for the months Sept 2021 through March 2022 (inclusive) and then adds on April and May 2022 to bring it to the present. Was this in the original petition or an amended petition?

Either way, they are seeking nine months, is this correct? Now the questions are:

- for what months did ERAP pay? Your ERAP account will have a pages showing that, or in the award letter. Note that ERAP in many ways is inaccurate or screwed up ... and the customer service people are ill-trained. It's a mess. There should be a paragraph in the award letter saying they have awarded XX months, but there should be a paragraph like this:

IMPORTANT NOTE: If a Landlord / Property Owner participates in the program and provides a cumulative record of arrears (back rent), the months that appear on this notice may not match the landlord’s monthly record. The ERAP payment shall be applied to reduce the total arrears due. The total ERAP payment is the maximum that you are eligible for, but would not be more than the total arrears due as documented by your Landlord / Property Owner (up to a maximum of 12 months).


This is ERAPs way of covering their ass.

So did the ERAP award cover all nine months? If not, then what's the deal? You might have to ask for a "zero sum ledger" from the LL showing all charges, all payments and to what months they were applied. The rent statements you get slipped under your door may be inaccurate or hard to follow.

As to your new question, can they add the two months ONLY IF the original petition months have not been paid, I've never seen it expressed that way before, so I can't say definitively, but chances are it really depends on the judge. A lawyer might be able to research this issue from case law, but we can't do that.

BTW, do you have any other defenses other than rent paid? Warranty of Habitability? Repairs, incorrect rent, etc."

If you can pay and if there are no other issues, then do so and get the case behind you. But again, it's most likely up to the judge and not something that's black letter law.

Did ERAP not give you all 15 months as part of the award? You can appeal the ERAP award if it's inaccurate or incomplete.

You didn't say, but if you have an attorney, chances are they will try to find a way to make the case go away and in the easiest way. Keep things simple and don't get your head wrapped up in questions that complicate things.

However, remember:

1. Always save the envelopes of letters from anyone having to do with your case or tenancy. It would likely have a postmark and you might need to prove when it was sent.

2. For things you send, use Certificate of Mailing (cheaper, only shows a letter was sent) or Certified Mail (not so cheap, but you can ask for return receipt to prove it was delivered).

3. If there is a court hearing ALWAYS show up even if the LLs attorney tells you by phone or email that they are dropping the matter. You need that in writing. Ask for the judge to order it dismissed IN WRITING or ask for a "So-Ordered Stipulation." You can also get a copy of the audio file.

4. If there is a stipulation (either signed by a judge or not), be very careful if it contains the word "judgment" in it. As the court attorney (not the landlord attorney) to explain exactly what that means and what it obligates you to do. There are many cases where tenants have unknowingly agreed to their own eviction. You might see a phrase like "judgment against the defendant or tenant or respondent." That means the court agrees with the LL position. You don't want that. The LL and the court might put pressure on you, but even if it means you have to sit around all day, then do it. Also be careful about the term "with prejudice." In some cases that's a good thing as it means (if the case is dismissed) the LL can't bring it again for the same months. But there are times it could adversely impact the tenant.

There are many tenants, now evicted, who didn't show up when the LLs attorney told them they don't have to show up, a familiar tactic. I'm not sure how this is handled on video appearances however. Get into the habit of always getting ironclad proof.
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Re: Non Payment Proceeding Question.

Postby Landlords Boy » Wed May 25, 2022 3:06 pm

lawful tenant: first, let me congratulate you on applying for ERAP. Too many of my tenants seem to have felt too embarrassed to apply for assistance. There's no reason for that. At all.

Second: you should be getting a notice via mail or email from OTDA about your ERAP payment being processed. In my experience tenants actually receive the email notice before the landlord does - sometimes by several days.

Third: an LL doesn't really know if ERAP will come through with payment until (1) the application is approved and (2) until ERAP is funded and sends the money. Sometimes the program has funding, sometimes it does not. So a non-payments case may remain open at least until the money is received.

Fourth: the one-year stay of court proceedings TN mentioned currently only applies to some landlord-tenant matters, not others. An example ERAP cites: if you owed your landlord rent from before March 2020, the landlord can bank the ERAP money it just received for you and then move to evict anyway: link
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Re: Non Payment Proceeding Question.

Postby lawful tenant » Thu Jun 16, 2022 4:47 am

"From now until you die, make sure you always Earmark rent payments on any check or money order you send. In the memo of the check, write, "Rent for month of May 2022 and for no other months." That means you earmark the payment for that particular month, and the LL should be prohibited from applying it to some other month in the past. It's also called Rent Jamming and LLs do this all the time."

I did file an appeal as ERAP initially only paid for only 3 months.
First of these months there was a balance due of only $60.
My appeal went through and they paid for 4 additional months, but subtracted that payment of 60.

Now on the current LL ledger it shows this balance of $60 for the month of March 2022.
Then shows rent due for April, May, June.

The petition was only asking for rent up to and including March. At the last hearing their lawyer appeared remotely and said if I pay the balance of $60 before the next court date he will discontinue the case.

If I make the payment of $60, do I write for March rent in the memo, even though
1. That balance was originally carried from October of 2021
and
2. Erap paid the total amount of March Rent

Or do I write For October 2021, which is the real month, for which this payment was due

Or do I write for arrears prior to March 2022?
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Re: Non Payment Proceeding Question.

Postby TenantNet » Thu Jun 16, 2022 5:54 am

Most LL bills (statements) I see are incomplete or intentionally incorrect. They do not show what rent has been received, when received, they do not show to which months the rent was applied. For example, If you paid all rent for January 2022, and if you earmarked it, the LL is required to apply that amount to the rent due for January 2022 and for no other months. Even if you owe rent from two years ago, they can only apply it to Jan. 2022. That's if you earmark it - and I believe some courts hold to that even if not earmarked.

You should be able to calculate what rent had been withheld (or not able to be paid at the time), and where ERAP should be applied. Some LLs will work with you on that, but many will not.

You should ask the LL for a complete ledger (some call it a Zero Sum Ledger) that shows tenants as they accrue and payments as they are applied and to what months they are applied. Only with that can a true picture be seen.

Here's an example, if your rent was $600 last year, but it legally went up to $700 this year starting Jan 1., and if you did not pay Oct and Nov last year, then the amount due should be $1200. But if you pay $1,400 on February 1, earmark it to January and February 2022, some LL's will apply $1,200 of that to Oct/Nov and then maybe $200 to some other month (and probably won't even tell you).

See where it gets confusing? Rent jamming is when they apply a current payment to past outstanding. Some leases allow for this, but earmarking trumps that. It gets ridiculous after a while. My LL is still billing for rents going back 8-9 years, but aside from earmarking, they can't claim rents that are older than six years (statute of limitations). With rent jamming they illegally pull amounts due back within the six year period.

ERAP does indicate what months their payments should be for, but it's often very incorrect and vague. They even have a paragraph in their award letter that says they don't know. So it's up to you to be on top of all this.

Hopefully this will give you some guidance, but I can't try to figure out the details you listed above. I would ask for the complete ledger as otherwise you will not know what rents are due and the LL could apply it to anything.

One possible way it to get the ledger to see what's been charged over a 3 year period, then deduct ERAP payment and you payments and see what's left. I don't know if this will work or not, but it might.

The more you try to figure out all this the more confusing it will all be. I would look for the simplest solution that gets the LL off your back and where you aren't having to over-pay.
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