Is this harassment and defamation of character?

[lawful tenant]

Landlord taped a letter onto my door saying that since I repeatedly fail to pay my rent on time they are terminating my tenancy in 20 days.

The letter states that landlord filed multiple non-payment proceedings against me to make me pay and lists those index numbers.

However, all 4 index numbers listed resulted in orders that contained abatements ranging from 2 to 4 months and found breaches of the warranty of habitability!

A few days later I received same letter by registered mail.

Now all my neighbors saw this letter being put on my door and think of me as someone who regularly doesn't pay rent, which is not the case as I have paid regularly for 16 years.

Does this constitute harassment?
Does this constitute defamation or character?
Does this constitute slander and libel?

Can I file suit for any of the above? Can I use any of the above as my counter claim in housing court once they bring another non-payment proceeding against me?

What was the purpose of taping this letter to my door, if they were going to mail it to me anyway?

The letter is not from the court. It is not court approved or endorsed in any way.

What is my recourse?

The reason for me not paying this time is because after the last order issuing an abatement and directing me to pay, I did, but the LL refused to adjust the invoice accordingly and continues to bill me for the amounts that were eliminated by the judge. When I called LL about this, he said that just because the judge issued the order for me to pay a certain amount, it does not mean they have to adjust their ledger and start billing me accordingly. Is this true? How can they continue to send me monthly invoices that contain their lawyer fees and late fees, all of which were eliminated by the last order?

I would greatly appreciate any and all responses I can get.

Thank you

[TenantNet]

Assuming you are RS as you posted in RS forum.

This appears to be a "Chronic Non-Pay Holdover" where they claim the frequency of your nonpayments are such that it becomes a lease violation in itself and/or a nuisance. Suits like this can succeed, but it depends.

It depends on how many non-pays they filed, but also depends on the span of time. For example, ten nonpays in two years are probably chronic, but in seven years might not be.

First, get familiar with what is happening. See the section on this in the forum's Reference Section. http://tenant.net/phpBB3/viewtopic.php?f=15&t=10429

We advise you get a consultation with a good tenant lawyer (not the guy down the block above the deli who also does immigration or ambulance chasing).

What you got was probably a Notice to Cure or a Notice of Termination. These documents are usually required before any court case is started, so NOW is the time for you to deal with this.

For any case in court, the LL must serve the documents properly, and that can involve posting on your door. If they can't serve you personally, they must then do "nail & mail" where it's taped to your door. It's not libel or harassment, so get over that. Deal with the issue at hand.

As for your recourse if the LL refuses to follow a court order, you can go back to court seeking contempt, but your withholding rent usually is not proper cause in what you describe. Again, it all depends. A judge might excuse that for you're being a pro se tenant.

You CAN however, claim harassment for the LL refusing to adjust the records.

I would try to get it all sorted out - speak to an attorney.

[lawful tenant]

I read and thought about the cases and situation addressed in the link you provided. Thank you. Very informative.

The LL has filed a Holdover Proceeding against me and I have to be in court tomorrow morning.

The Petition seeks to recover my apartment since I didn't vacate it pursuant to the Notice of Termination that they served me in June (that I referred to in opening post).

Now in the Notice of Termination they are not referring to a nuisance to the landlord but state:

..."Your tenancy is terminated effective ...., pursuant to 2524.3(a) , 2524.2(b), 2524.2 (c) .... on the grounds that you are violating a substantial obligation of your tenancy, in that you or occupants of the aforesaid apartment have:

Violated a substantial obligation of your tenancy by failing to pay your rent in a timely manner in violation of your lease which requires payment, in advance, on the first day of each month. . As a result of your continued failure to comply with your lease obligations has commenced numerous proceedings against to compel your compliance."

PLEASE TAKE FURTHER NOTICE that pursuant to RSC 2524.2(b) the facts necessary to establishing these grounds are, inter alia:

1) You continually fail to pay your rent , in advance on the first day of each month, as required by your lease.

2) As a result of your failure to comply with your lease, the landlord has commenced numerous nonpayment proceedings against youto compel your compliance under the following index numbers:

4 index numbers listed.

My questions are:

How important for them to prove their case is the ability to actually produce my lease in court, which they were not able to produce in any of the previous proceedings. Original lease I'm referring to.

Two of the proceedings they are referring to ended up with a judge issuing abatements. However I had to resort to HRA One Shot deal to pay what was owed after the abatements.
Two others concluded that although there were serious problems in the apartment that I fixed myself, no abatement was warranted since I apparently did not properly inform the LL of these conditions, even though they stemmed from the work not done under the other two proceedings. Both of these also directed the LL to give me a set of keys to the side entrance and back entrance respectively.

So there was some sort of concession (for lack of a better word) in all 4 proceedings which spanned 3 years.

I lived in the apartment for 15 years.

This time I owe them 10 months rent, I couldn't work due to the medical condition. I went to HRA, and they started the paperwork, but then realizing its a Holdover Proceeding said that in order for them to help me I need to ask the judge to change it to the Non-Payment Proceeding. How do I do that?
Does it mean they will have to start a new proceeding and send me new papers?

Do I ask for extra time to respond or this will hurt me as I wouldn't provide necessary paperwork to HRA to help me?

I have one month rent. Should I offer to pay it in court?

They never served me with a notice to cure. Is one required in this situation?

What is the most important thing I should tell the judge tomorrow?

Do I tell him that the reason I didn't pay is because they refuse to adjust the bill after the last proceeding and kept billing me some amounts that were disposed of in the previous order?

And/or do I tell them that its unfair that I have to pay them the entire amount as we had excessive heat all winter, making it very difficult to to be in the apartment, although there were very few (if any) complaints made to 311 for that, unlike when there was no heat during the two other proceedings I had with them.

Will I prevail?

I cannot afford a lawyer.

Thank you so much ...



T

[TenantNet]

First, try to be more succinct. I normally would not even read something so long.

Second, why did you wait until now to contact us--the morning before the court appearance? Have you contacted an attorney?

This appears to be a Chronic Non-Payment Holdover as discussed above. Even though it's a holdover, they can still seek any outstanding rent.

I would say producing the original lease is important, but it depends on all factors and a judge who requires it. Some might not.

We can't answer all your questions as things like this are always complicated and each case can differ. An internet forum can give some guidance, but can't give you blow-by-blow of your court proceeding.

There are some exceptions to the general rule that a Notice to Cure is required. Look closely at those exceptions in the Rent Stab. Code.

You'll need to put in an Answer to the case if you haven't done so already.

Above all consult with a lawyer, or get one to represent you. If you can't afford one, go to Legal Aid or Legal Services.

And start doing whatever you can to get the rent. I doubt any abatement will cover a full 10 months of rent.

[Sky]

Forget defamation.

You have a court date on allegations the landlord has made against you and you will need to defend yourself. Buckle down and focus.

I’m not an attorney so this is not offered as advice, but rather as observations off the top of my head to survive the court appearance:

a.) Deny everything!
To the best of your knowledge you owe no rent to the LL and his claims are false. (Judge: have you paid the rent? You: to the best of my knowledge I owe no rent your honor. )
b.) RIGHT OUT OF THE GATE when you first open your mouth and state your name: ask the judge politely for an adjournment to consult with an attorney Make sure you get it. You need to buy some time so you can construct a defense and a means of attack. Otherwise you will be forced to make it all up on the spot with no preparation or knowledge aforethought (which is what the remainder of this post addresses ... dealing with a trial when your back is up against the wall. This is not ideal and you have asked many questions which most likely only an attorney will be able to address. If you have no defense and no offense, you'll need to throw yourself on the mercy of the court, and depending on the judge you pull could be as bad as walking into court with your pants down around your ankles and bent over, while on the other hand a compassionate judge may put in some effort to prompt you and thus get your position and the facts clearly stated. Again, you have complex questions and face a potentially serious outcome of eviction and arrears so whatever it takes my advice is to speak with an attorney).
If you do get an adjournment get your butt over to Legal Aid and other legal services ASAP (!) and request legal representation and/or some advice how to proceed. Also go to court early: is there a Legal Aid representative at the courthouse that you can get an emergency quick and dirty conference with? Ask around. Your lawsuit is your responsibility: do not stick your head in the sand.

If you cannot get an adjournment and have to go to trial completely unprepared, here are some reflections but bear in mind that they do not constitute legal advice:

Another thing to consider: you never know how prepared/unprepared the LL will be, and if he has the means to prove his case. He may be disorganised, he may keep defective records, he may have a defective memory, he may be unable to meet the legal requirements to successfully prove his case. You mentioned he can't locate a lease. Deficiencies like this can work for you, they are weakness you can exploit to disprove the LL's case.

c.) Remember: you are right, the LL is wrong. You will prevail.
d.) Deny everything.
e.) Deny everything. General denial. Then LL's allegations are all false.
f.) Every claim the LL makes is false, do not agree to anything, do not waive a single argument or claim that he makes. Do not waive any of your rights. Take the slow boat to China. Challenge every single thing. He says his name is John Doe ands he’s the landlord, you disagree. Make him prove who he is, that he is indeed John Doe. Three forms of current, original, non-counterfeit ID. Make him prove he owns the building. Make him produce original verified documents (stamped and signed by issuing agencies) as copies can be forged. Does he have a lease? Does he have a deed? Are there more than 3 units in the building? If yes, can he produce a current original up to date HPD Multiple dwelling registration certificate? If any of these things are missing or defective request the case be dismissed because the LL failed to prove he has the legal right to collect rent. Refute every single document but without appearing to be nuisance to the courtroom and without getting on the judge's nerves. Who knows, maybe the judge is in a good mood and will have pity on you and pick up your cause.
g.) Do not waive a Traverse Hearing. At trial this will occur first, prior to the part of the trial that deals with any rent claims. He has to prove you were correctly served legal and court papers before he can proceed on to the meat of the case, i.e. the rent money and/or eviction he is seeking. Deny that you were correctly served court papers and other documents pertinent to the LL’s lawsuit. Make the LL prove you were served correctly, make him produce a witness(s) that personally performed the service, and make the witness prove whatever he alleges. Challenge everything. Demand that he produce his logbook. Examine it and all evidence and discover any falsehoods and inaccuracies in the process server's and the LL’s testimony and evidence.
h.) IMHO he’s going to need to provide a copy of the lease. How can you be late paying the LL rent if there is no contract between you and the LL stating terms of payment, what constitutes lease violations, what is late payment if there’s no date specified that rent must be paid? Maybe you have an agreement where you pay the rent bimonthly? Or annually … in the latter case you are not late as the rent is not yet due. Perhaps in the past as a courtesy you paid monthly because you didn’t want to hold on to the money. Who knows? I don't know. The judge doesn't know. Make the LL prove all the terms and conditions in which he seeks to characterize you as a late, non-paying, late paying, nuisance. If, however, in your previous court cases a judge's decision has established the legal rent and/or lease terms, it's possible that it may be used as a legally binding precedent in the absence of a lease. (This is why you'd benefit from an attorney, to better understand and argue these points of law).
i.) If as you claim the LL truly does not have a copy of the lease, and you do have a copy, if you happen not to have it with you when you appear in court and thus cannot produce it, and the judge asks you for it, you are not making a false statement if you state you do not have a copy of the lease. Further, if you cannot recall where you have your copy or/or cannot recall the terms of the lease and draw a blank, you are not making a false statement. If under oath you are required to tell the truth, but you are under no obligation to volunteer information that will help the LL make his case against you.
j.) Go on the offensive. Include counterclaims with your answer to the LL’s allegations. If you didn't do so already file a motion or tell the judge you wish to amend your answer to include your counterclaims (and also defences) . Claim ‘breech of warranty of habitability’. Request a court ordered HPD inspector to visit your apartment and inspect. Are tiles cracked? Roach droppings? Doors do not open/close/lock correctly? Paint dirty, peeling? Mice? Holes? Walls cracked? Hot water 118 degrees? Elevator defective (call Dept. of Buildings for the latter)? Walkway cracked? Bricks cracked or broken? Why should you pay any rent at all with the dismal conditions the building is in, a threat to your health, life, safety, and enjoyment of your home? Perhaps the monthly rate should be reduced to 1¢. In a crazy pinch, take some pics on your cell phone or something (but be careful, maybe the judge can keep the phone because it is now evidence???). Print them out if you can or go to an office store and have them print them out. Show it to the judge establishing it as evidence explaining you took the pic on such and such a date, that it is an accurate representation of xyz condition, how long the condition existed, how the condition negatively impacted your health, safety, life, and/or use of the apt., if/when you notified the LL and how (orally, in writing, court order, etc.), that the LL did not remedy the condition, and how much of an abatement you are entitled because of the LL's 'breech of the warranty of habitability' (that is to say if it can indeed be determined what the rent amount is and that you actually owe it).
k.) Was the LL ordered to repair stuff and he flagrantly disregarded the judge’s order because he feels that he is above the law and is attempting to harass you? Did the LL ever request you to provide access to do the repairs? Is it in writing? Did he attempt to make repairs? If he did attempt, was it an incompetent effort that did not remedy the problems(s)?
l.) Perhaps there’s good reason why you should not have paid any rent. Let the judge decide.
m.) If there’s no lease, how can the rental amount be proven? Were there renewal leases?

Finally, if you don’t pay rent in 10 months what do you expect is going to happen? Did you have a plan when you stopped paying? Did you expect the LL grow a heart of gold and float your scene for you while you’re sick?

To recap:
Get an adjournment!
See a free attorney.
If you get an adjournment but can’t get a free attorney, start researching how to defend yourself and pick everyone's brains ... and start getting some funds together if you do indeed owe back rent and/or start formulating a backup plan like where you will go if you get evicted.
If you can't get an adjournment and your case goes immediately to trial, you'll need all the help you can get, so any or all of the above, and then some, may need to be put into play. Present yourself as a composed and reasonable person.
Deny everything.

This is a science fiction so don't take it as legal advice: it's not.
Good luck!

[TenantNet]

I didn't read all of Sky's advice, but one thing caught my eye. In some boroughs a tenant seeking an adjournment might open the door for the court to order the tenant to pay rent into court. It depends on the borough (2nd Division, i.e., Queens, case law it appears allows for this quicker than the 1st Division, i.e., Manhattan), the judge, how quick the LL's attorney is and above all the tenant. The court might give the tenant a non-penalty adjournment in order to seek a lawyer, but I would be careful. In my experience in Manhattan, first-time on cases are routinely adjourned. Let the LL's lawyer ask for the adjournment and make sure the stipulation says that ... "at the LL's request."

Not a lawyer so I can't recite the case law on this. The tenant should seek legal council before the first time on in order to clarify what could happen.

[Sky]

^TenantNet raises good points.

I've never been denied an adjournment in Brooklyn on a first court appearance pro-se, and never had to pay/deposit funds with the housing court at such time, but that's only my personal experience and I too am not an attorney.

From reading the post, it looks like this morning is the court date and the OP posted for advice yesterday. I'm going under the assumption that the OP did not consult with an attorney yesterday based on his statement that he has no funds. The idea of adjourning is to buy some time in order to see an attorney, because it doesn't seem like the OP has prepared an effective legal strategy and he has a lot of questions that likely only an attorney will be able to help him with.

Courts/judges/trials can be unpredictable. which is part of the risk involved.

As always YMMV!

Good luck.