Preparing the Evidence

I previously mentioned a lawsuit against my old landlord that started in September 2011. Here’s what it boils down to: He ripped my two roommates and I out of our security deposit with bogus claims and deductions, and we’re pretty mad about it. This was compounded with our suspicion that he doesn’t actually do the things he claims, because whenever we first moved into the house it was not in good shape. I shouldn’t have to deep-scrub the bathtub before I use if for the FIRST time. My guess is that with a property less than half a mile from the UNT campus, he’s gotten comfortable ripping off college kids that didn’t know any better for years…. until now.

As all legal battles are, this one has been a long process:

June 30th, 2011 – My roommates and I move out of the house.

August 13th, 2011 – We receive a $360 security deposit check and a form accounting for the deductions taken out of the original $1,200.

August 25th, 2011 – I mail my landlord a settlement offer for $840 (the remainder of the security deposit), with a warning that he had two weeks until I filed suit. USPS needed a signature confirmation, but he wasn’t home, so they kept it at the post office for two weeks. Unfortunately, he never picked it up, and the letter was returned to sender.

September 27th, 2011 – Not wanting to sue him without him receiving a settlement offer first, I sent him the same offer again. Same story, and letter was returned to sender.

October 12th, 2011 – I no longer felt sorry for someone who couldn’t check the mail, so I filed suit through the Denton County Justice of the Peace court.

October 20th, 2011 – My landlord was formally served his notice in person by the constable. He legally had 10 days to communicate to the court his reply.

November 11th, 2011 – Three weeks later, he still had not replied, so I filed for a default judgement in my favor. Let me state that there are ZERO good resources online that spell out how to go about doing this. It took me a couple of hours of research just to find out HOW to file for a default judgement. And no, the court is no help, they dismissively told me to go to my local library. You mean that in the current Information Age I have to go scour through old legal publications to find out common procedure? Give me a break. Unfortunately, there was one form that I overlooked: the official judgement form for the judge to sign. Had I included this, the whole case might have been wrapped up in November via correspondence.

January 26th, 2012 – After hearing nothing for two months, I receive in the mail a “Notice of Default Hearing”. This hearing was scheduled for March 8th. From what I could decipher from the internet, a default hearing would be me explaining my case to the judge, without the defendant present. If I had plausible evidence, I won. At this point I thought I was made in the shade.

March 2nd, 2012 – It was less than a week before my scheduled hearing and I received a “Notice of Court Cancellation”. Another hearing had been set for April 3rd instead. There was no reason given, but my only guess was that I was wrong about my original assumption. I guess the defendant  was indeed going to be at the hearing, and he must have filed a continuance. Bullocks.

March 27th, 2012 – As the court date approaches I realize that it was scheduled on the day of my band’s Pre-UIL concert. There was no way I could miss work on the day of a concert, so it was my turn to file a continuance. I prayed that the judge would grant the continuance, as I had put too much work into this case for it end in a default in my landlord’s favor.

March 29th, 2012 – I get a letter stating that my continuance was granted! It was a relief to know that the date was rescheduled to May 3rd, almost a year after this whole business got started.

April 25th, 2012 – Today, I sit in my living room sorting through piles of evidence and work to make a concise, coherent case for myself.

My work space as I try to make sense of my case.

My case

In Texas, there are way more protections for landlords than there are tenants. From what I’ve read, judges tend to rule in favor of landlords more often as well. Knowing this back in August, I knew that arguing for the return of security deposit would be pretty weak. I didn’t take any pictures before we left, so it would have been my word against his. After pouring over Texas Property Code looking for a way to nail him despite this, I discovered section 92.109.

“§ 92.109. LIABILITY OF LANDLORD. (a) A landlord who in bad faith retains a security deposit in violation of this subchapter is liable for an amount equal to the sum of $100, three times the portion of the deposit wrongfully withheld, and the tenant’s reasonable attorney’s fees in a suit to recover the deposit. (b) A landlord who in bad faith does not provide a written description and itemized list of damages and charges in violation of this subchapter: (1) forfeits the right to withhold any portion of the security deposit or to bring suit against the tenant for damages to the premises; and (2) is liable for the tenant’s reasonable attorney’s fees in a suit to recover the deposit. (c) In an action brought by a tenant under this subchapter, the landlord has the burden of proving that the retention of any portion of the security deposit was reasonable. (d) A landlord who fails either to return a security deposit or to provide a written description and itemization of deductions on or before the 30th day after the date the tenant surrenders possession is presumed to have acted in bad faith.”

Bingo! We should have received our check 30 days after move out on July 30th. We didn’t get it until August 13th. He was two weeks late mailing our security deposit check. By law, we were entitled $3,700! Suddenly my case was made clear, and I had only to gather the supporting evidence.

I quickly drew up this “Plaintiff’s Petition” and immediately mailed it to the court:

Mr. ______, my ex-landlord, failed to return my $1,200 security deposit or provide a written description and itemization of deductions on or before July 30th, 2011, the date that was 30 days past when I surrendered possession of the property at __________ st. According to Texas Property Code 92.109, the landlord, having retained a security deposit in bad faith, is liable to an amount equal to the sum of $100, three times the portion of the deposit wrongfully withheld, and the plaintiff’s reasonable attorney’s fees in a suit to recover the deposit. I did receive a check for $360 from Mr. _________ on August 13th, and I deposited it under protest, and reserve the right to seek a claim of an amount of $3,700 less the $360.

The Evidence

Exhibit A: The postmarked envelope that the check and Security Deposit Disposition Form were mailed in.

  • Proves that my landlord mailed the Check on August 12th, 2011

Exhibit B: Security Deposit Disposition Form

  • States that our 60-day notice was received May 1st, 2011
  • States that we moved out June 30th, 2011
  • States that we had no outstanding balance to the landlord
  • States that our forwarding address had been received
  • Signed and dated by the landlord on July 5th, 2011, which proves that he knew all of this information 25 days before our check was due, and 38 days before he actually mailed it.

Exhibit C: Official copy of the deposited Check from Wells Fargo

  • Proves that the check said nothing about the deposit of said check being a binding agreement to the amount received.

Exhibit D: Copy of email correspondence

  • Proves that we had requested information about the whereabouts of the security deposit on July 18th and July 27th.

Exhibit E: Cell phone bill

  • Proves that my roommate called the landlord on August 4th, 9th, and 10th. Proves that there was an incoming call from him on the 9th.
Exhibit F: List of my landlord’s properties from the Tax Assessors website
  • Proves that he owns six homes in the area
  • Proves that the address I mailed settlement offers to is a valid address of his.
  • Infers that he is an experienced landlord and that there is no reason for him to not be well aware of security deposit law.
Exhibit G: List of Property Tax Payment Status from the Tax Assessors website
  • Proves that he is two months late on paying this year’s property taxes for 4 out of 6 properties
  • Proves that he was months late on payments for several properties last year as well.
  • Infers that he is disorganized and does not follow deadlines.
Exhibit H: Original sealed envelope containing 2nd settlement offer
  • Proves that I offered settlement and gave the landlord more than a reasonable amount of time to accept that offer before going to court.
  • Shows that I tried to resolve the matter myself.
Exhibit J: Post Office receipt of the original settlement mailing.
  • Proves that I offered settlement and gave the landlord more than a reasonable amount of time to accept that offer before going to court.
  • Shows that I tried to resolve the matter myself.

Roommate’s Testimony:

  • I made a record of what each phone conversation was about, although this is information that boils down to “he said, she said”. Still, my roommate will be at the hearing to confirm what they talked about.
  • August 4th – Roommate left a voicemail wondering if the check had been sent.
  • August 4th – Landlord calls back saying “you should have received it, I’ll look into it”. He also acknowledged the receipt of the emails.
  • August 9th – Roommate called wondering where the check was. Landlord stated something along the lines of “the guy who does the checks was not in the office and that he would ask him tomorrow.”
  • August 10th – Roommate left voicemail about wanting clarification of the previous day’s conversation, and to know if the check situation had been worked out.
  • Did not receive a call back.

So that’s what I have to work with so far. Now I need to work on putting together a script and condensing this information down to an easy to understand speech. 8 days until court, and I’m feeling pretty good about my chances. It’s been a headache and a lot of work, but I could really use that $2,000 so I need to give my full effort. Also, I’m not ashamed to admit that I’m pretty excited for this upcoming “battle of wits”. Let’s see who can reason and argue the best, the landlord or myself. I’ve got nothing to lose except the cost of driving to Denton.

What do you think, do I have a solid case? Is there anything I’ve overlooked?

Advertisements

2 thoughts on “Preparing the Evidence

  1. Your case looks solid. Good for you for not being passive about it!

    I was recently recently ripped off by my landlord when I moved out. She is holding my last months rent and will not return it ($450) on the basis that I had left damage [At worst, it is normal wear and tear like nail holes in walls, a carpet stain, and damage in shared areas being unfairly attributed to me] and she had to repair it. I have found legal documents that state it is illegal to even use a rent deposit as a security deposit, and she has not even given me an itemized list of her supposed repair costs. I made an offer to discuss the costs she incurred for damages, and come to a mutual agreement [said we could use a mediator for this if necessary] or I will take the steps to get legal aid, as not returning my deposit is theft. She has ignored me for more than 2 weeks and this post made me send her an email telling her she has a week to respond before I assume that she has chosen to ignore me and take legal action against her. I’m hoping for an easy resolution.

    I feel like she is in the wrong here and that legally I can get my money back…but I’m not sure if it is worth the time and effort. She will lie in court [she has already started lying and threatening to scare me off] and cause unnecessary distress to me. Do you think it’s worth it? I’m kind of ready to look past the issue and move on but I hate the idea of her ending up with $450 of my money because of that, y’know?

    • I wouldn’t trade the experience of preparing a successful lawsuit for anything. It was difficult, as there is no concise, readily available information about how to do anything within the legal system that I could find. Many hours were put into research and making a case and all of the subsequent paperwork and filings that had to be done.

      In my case, my roommates and I were missing $840, and as Texas law entitled us to three times the amount of the security deposit, it became worth it financially. Also, I had the necessary evidence to back up my case. You should only pursue this if you have any hard evidence that she is acting outside of the law, and if you think that she does not have evidence that will show that will show her innocence. You also need to read through all relevant paragraphs and sections in your state/territory’s property law and know it inside and out.

      It’s been 10 months since I won the lawsuit and placed liens on six of my ex-landlord’s properties, and there has been no financial payback so far. Legal proceedings are a long and arduous process, but what do you have to lose?

Leave a Comment

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s