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Landlord file motion to dismiss case

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Landlord file motion to dismiss case

Postby martingale2000 » Wed Feb 19, 2020 10:52 am

i rented a condo with previous landlord and moved out in Nov 2016. during move out inspection, landlord claimed everywhere is dirty, even we hired a professional lady for a move out cleaning and carpet cleaning.
the landlord withhold $300 of my security deposit without given anything, no receipt or explanation. He knew i flew out of the country after moved out.
I contacted Maryland attorney general for help and landlord replied AG that he even want to send me bills for the repainting of the walls. that's ridiculous.

Now i'm back and last year , Oct 2019, just before the three years after i moved out, i filed a case against my previous landlord for the deposit withhold, i filed it a bit late because I was trying to find out where landlord now lives now to send the court notice to. and eventually decided to put property management address when initially filed the case. I had a hearing date in Dec 2019 for sometime in Feb .
later i received a letter from court saying the hearing date was cancelled due to unable to serve the notice. then I decide to use the address on the public search. this time i used a sheriff to service the notice. and this time it was properly served.

yesterday i received a letter saying landlord file a motion to dismiss the case due to the fact that it's beyond 3 years. but I filed the case in Oct 2019, within 3 year period. and if he want to send the bill of wall repainting, why he want to dismiss it.

my question is, the website shows landlord already filed a motion to dismiss. must I do anything to stop it from being dismissed? we already have a hearing date in March. what form shall i use to prevent it from being dismissed at this stage.

thanks
martingale2000
 
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Re: Landlord file motion to dismiss case

Postby TenantNet » Wed Feb 19, 2020 12:56 pm

As for any situation that is not in NYC or NYS, we have to say that local laws always supersede anything we might say as they differ depending where you are. It's always best to consult with a legal professional in the area where the unit is located.

In most areas, security deposits are for actual damages for are beyond the normal use of the item in question. Deposits are not meant to cover things like dirty carpets or dirty walls. Painting between tenants is common and that is what rent is for, not deposits. Most leases require tenants to leave units as "broom clean," which means exactly that.

That's why tenants should take photos when they move in, and when they move out.

We can't comment on court and service procedures that pertain to your area (which I'm assuming is in Maryland). For any case one must watch the local statute of limitations. It differs depending where you are and they type of case you have. For example, in NYS it's generally 6 years. But in other areas it could be longer or shorter.

You also need to find out how they determine when a case is filed. That too can differ. Most cases involve getting a docket number and paying the local court fee, then serving the papers and then filing the case in court along with an affidavit of service. In NY the act of commencing a case usually is after service and when the papers are filed in court. See what the rules are in Maryland.

If the landlord has filed a motion to dismiss, then come up with reasons why the motion should be denied and put that in your reply to the motion. Chances are your reply has to be served on the LL and filed in court. You need to research the local court rules, or consult with an attorney.

As for billing you for painting, don't even argue about that.
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Re: Landlord file motion to dismiss case

Postby martingale2000 » Wed Mar 04, 2020 1:09 pm

TenantNet wrote:As for any situation that is not in NYC or NYS, we have to say that local laws always supersede anything we might say as they differ depending where you are. It's always best to consult with a legal professional in the area where the unit is located.

In most areas, security deposits are for actual damages for are beyond the normal use of the item in question. Deposits are not meant to cover things like dirty carpets or dirty walls. Painting between tenants is common and that is what rent is for, not deposits. Most leases require tenants to leave units as "broom clean," which means exactly that.

That's why tenants should take photos when they move in, and when they move out.

We can't comment on court and service procedures that pertain to your area (which I'm assuming is in Maryland). For any case one must watch the local statute of limitations. It differs depending where you are and they type of case you have. For example, in NYS it's generally 6 years. But in other areas it could be longer or shorter.

You also need to find out how they determine when a case is filed. That too can differ. Most cases involve getting a docket number and paying the local court fee, then serving the papers and then filing the case in court along with an affidavit of service. In NY the act of commencing a case usually is after service and when the papers are filed in court. See what the rules are in Maryland.

If the landlord has filed a motion to dismiss, then come up with reasons why the motion should be denied and put that in your reply to the motion. Chances are your reply has to be served on the LL and filed in court. You need to research the local court rules, or consult with an attorney.

As for billing you for painting, don't even argue about that.


so now i have filed opposition to motion to dismiss. and trial date is in two weeks.
over the weekend, i got a court letter saying now, the landlord want to sue me for over $800 of painting cost, he claimed that i made the wall dirty and he paid over $800 to repaint the wall. the trial date is in May.
he didn't provide any receipt.

my question is, shall i file a motion to dismiss since it's over 3 years since i moved out, and the landlord never provide any receipt although we have communicating with each other through state attorney general's office, i was trying to get the $300 deposit withhold by the landlord back.
or I shall attend the hearing for this in May and let the judge decide.

thanks
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Re: Landlord file motion to dismiss case

Postby TenantNet » Wed Mar 04, 2020 1:54 pm

A letter is not a court filing. He would have to assert the cost of painting the wall as a defense in his answer to your petition. If he initially failed to do that, then he would have to amend his answer and get the court's permission to do that.

Again, painting is not damages that deposits are meant to cover. Painting is covered by the rent you've paid, and usually done between tenants. It's a normal cost of doing business.

You say the "letter" says he "wants to sue you..." So what does that mean? Nothing, unless he actually sues you, or amends his answer.

If that issue does become part of his defense, then a) he would have to prove the wall was dirty (by photos), show why he didn't raise this way back when, prove the cost and show why it's not a normal repair.
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Re: Landlord file motion to dismiss case

Postby martingale2000 » Wed Mar 04, 2020 3:28 pm

TenantNet wrote:A letter is not a court filing. He would have to assert the cost of painting the wall as a defense in his answer to your petition. If he initially failed to do that, then he would have to amend his answer and get the court's permission to do that.

Again, painting is not damages that deposits are meant to cover. Painting is covered by the rent you've paid, and usually done between tenants. It's a normal cost of doing business.

You say the "letter" says he "wants to sue you..." So what does that mean? Nothing, unless he actually sues you, or amends his answer.

If that issue does become part of his defense, then a) he would have to prove the wall was dirty (by photos), show why he didn't raise this way back when, prove the cost and show why it's not a normal repair.


thanks for providing the legal knowledge, I'm quite positive that generally speaking, paint is carried out by landlord in between lease. and it shouldn't be a execuse to hold deposit. and some more, we didn't damage the wall, the stains were there before we moved in.

he sue me, i mean i received a court paper saying i'm the defendant and he's the plaintiff.
so shall I file an motion to dismiss since this is already over 3 years and he didn't do anything, or provide receipt of painting, although I used address forwarding service so that any mail come to my rented condo will be forwarded to my friends. and I think he sue me is a clear retaliation after he learned that i'm suing him in end of last year, which is still within 3 years of move out.
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Re: Landlord file motion to dismiss case

Postby TenantNet » Wed Mar 04, 2020 4:52 pm

In most forums, you should not quote the entire previous message, just enough to establish context. But since the previous message is right above, really quoting should be done vary sparingly. (Also, please capitalize sentences ... respect the reader.)

If you took photos when you moved in, you can establish that the condition existed before moving in.

Look into the statute of limitations where you are. It may be that he's simply reacting to your suit.

Also look at laches (https://en.wikipedia.org/wiki/Laches_(equity)) and put that in your answer. But again, I would talk to an attorney, even though it may not be cost effective to spend money on a lawyer if the amount you're seeking is only $300.

He can provide proof later if it goes to trial. But I believe he must allege what he did in order to establish a claim for damages.

Put in your answer that this is a retaliation for your suit.
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Re: Landlord file motion to dismiss case

Postby martingale2000 » Wed Mar 04, 2020 5:10 pm

Thanks , and sorry for poor paragraph management.
No, I didn't take photo before we move in, I think it's quite unusual for tenant to take photos when they move in.
But shouldn't the landlord prove with pre and post photo to claim we made damages during stay?

I'm just thinking Presumption of innocence, one is considered innocent until proven guilty.
If landlord charge me deposit, he has to prove I breached the contract. Maybe this is not a criminal case, but I assume contract law should follow same principle as that's what the constitute is built upon.

Another support is, I did a criminal search in state court system and the landlord has quite some defendant cases closed in the past that he was sued by condo management company for back payment. He even had a criminal plea guilty case saying he urinate in public.
Shall I bring those criminal record in front the judge during hearing to make my statement more trustworthy than the landlord's statement.
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