I am in the process of filing a small claims court suit against my previous landlord who did not return my deposit. Texas law allow for triple damages so the total claim with expenses added in will be about $8000.
Can anyone weigh in with any small claims court experience or advice? Would hiring an attorney help or hinder?
Check your state courts website. In Colorado, attorneys cannot represent the plaintiff in small claims unless the defendant has retained an attorney and given notice that he/she will be represented.
I’ve had a couple of clients in small claims and it’s barely court. It’s more like both parties state their respective cases, and the judge makes a decision. Bigger courts, you file a complaint, they file an answer, and the matter gets set for trial. Small claims, it’s wham bam thank you ma’am - the matter gets decided the day the parties show up (most of the time).
[quote]pushmepullme wrote:
Check your state courts website. In Colorado, attorneys cannot represent the plaintiff in small claims unless the defendant has retained an attorney and given notice that he/she will be represented.
I’ve had a couple of clients in small claims and it’s barely court. It’s more like both parties state their respective cases, and the judge makes a decision. Bigger courts, you file a complaint, they file an answer, and the matter gets set for trial. Small claims, it’s wham bam thank you ma’am - the matter gets decided the day the parties show up (most of the time). [/quote]
So you are saying it is something like Judge Judy?
[quote]strungoutboy21 wrote:
[quote]pushmepullme wrote:
Check your state courts website. In Colorado, attorneys cannot represent the plaintiff in small claims unless the defendant has retained an attorney and given notice that he/she will be represented.
I’ve had a couple of clients in small claims and it’s barely court. It’s more like both parties state their respective cases, and the judge makes a decision. Bigger courts, you file a complaint, they file an answer, and the matter gets set for trial. Small claims, it’s wham bam thank you ma’am - the matter gets decided the day the parties show up (most of the time). [/quote]
So you are saying it is something like Judge Judy?[/quote]
Seriously. Small claims in Colorado is just hilarious.
[quote]Razorslim wrote:
Can anyone weigh in with any small claims court experience or advice? [/quote]
I went once for a mountain bike that was locked in the shop when it went out of business. The building owner wouldn’t let the shop owner into the place of business. I filed a claim against both of them, presented evidence of ownership and that it was locked in the shop. Building owner was ordered to open the shop and return my bike, as she had no grounds to prevent me from having it.
Second one was when my brother sued me for 10K over a real estate deal gone bad. He hired an attorney to represent him, as he lives out of state. I pulled together all pertinent paperwork and payment information and presented my argument, the crux of which was that we did not have a rental agreement, we had a purchase agreement, and he changed the terms, therefore the deal was null and void. His atty. almost lost him his house, as I actually had grounds to have all that I had paid into it returned.
What seems to have worked best for me was to present a clear timeline of events with evidence (paperwork, pictures, etc.), and stick directly to the facts. If you don’t have those, you don’t have a claim. Since it is you who is suing, you need to prove your claim.
I dunno about the triple damages thing though. It might be hard to prove that beyond being made whole, you deserve more. You will probably have to prove that there was some intentional malfeasance in their part to get that, but it can’t hurt to ask.
[quote]SkyzykS wrote:
I dunno about the triple damages thing though. It might be hard to prove that beyond being made whole, you deserve more. You will probably have to prove that there was some intentional malfeasance in their part to get that, but it can’t hurt to ask.
[/quote]
It’s pretty common in landlord-tenant law that if the landlord wrongfully withholds a security deposit, the tenant can get additional damages. They are statutory, rather than some random amount decided by the judge. The idea is that the landlord is the dude with the power, and needs to have some motivation to treat tenants fairly.
That is pretty interesting. So you don’t have to prove intention, you just have to prove wrongdoing?
I can see how that would motivate a landlord to either get that deposit back in a timely manner or gather evidence as to why it wasn’t.
[quote]SkyzykS wrote:
That is pretty interesting. So you don’t have to prove intention, you just have to prove wrongdoing?
I can see how that would motivate a landlord to either get that deposit back in a timely manner or gather evidence as to why it wasn’t.
[/quote]
Yeah, in CO anyway. If the landlord doesn’t give a proper accounting of the reasons he’s withholding the deposit, he loses his right to any of the deposit, and if he doesn’t return the portion of the deposit that is not disputed (e.g., he can hold $500 of a $2000 deposit for damage or whatever), he can be liable for 3x the wrongfully withheld amount.
[quote]pushmepullme wrote:
[quote]SkyzykS wrote:
That is pretty interesting. So you don’t have to prove intention, you just have to prove wrongdoing?
I can see how that would motivate a landlord to either get that deposit back in a timely manner or gather evidence as to why it wasn’t.
[/quote]
Yeah, in CO anyway. If the landlord doesn’t give a proper accounting of the reasons he’s withholding the deposit, he loses his right to any of the deposit, and if he doesn’t return the portion of the deposit that is not disputed (e.g., he can hold $500 of a $2000 deposit for damage or whatever), he can be liable for 3x the wrongfully withheld amount.[/quote]
Basically the law here in Texas is that the landlord has 30 days to provide a written description of damages and refund the balance of the deposit. after 30 days the landlord forfeits any right to withhold any of the deposit. “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.”
I am moving forward with this suit even though my landlord has threatened to counter sue. I did contact an attorney because of this though my original intent was to move forward without one. I think I have a good case and plenty of evidence and documentation, but I don’t want to be delusional.
Small claims court is a civil court so the burden of proof is still on the plaintiff but the is less than in a criminal court
[quote]Razorslim wrote:
[quote]pushmepullme wrote:
[quote]SkyzykS wrote:
That is pretty interesting. So you don’t have to prove intention, you just have to prove wrongdoing?
I can see how that would motivate a landlord to either get that deposit back in a timely manner or gather evidence as to why it wasn’t.
[/quote]
Yeah, in CO anyway. If the landlord doesn’t give a proper accounting of the reasons he’s withholding the deposit, he loses his right to any of the deposit, and if he doesn’t return the portion of the deposit that is not disputed (e.g., he can hold $500 of a $2000 deposit for damage or whatever), he can be liable for 3x the wrongfully withheld amount.[/quote]
Basically the law here in Texas is that the landlord has 30 days to provide a written description of damages and refund the balance of the deposit. after 30 days the landlord forfeits any right to withhold any of the deposit. “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.”
I am moving forward with this suit even though my landlord has threatened to counter sue. I did contact an attorney because of this though my original intent was to move forward without one. I think I have a good case and plenty of evidence and documentation, but I don’t want to be delusional.
Small claims court is a civil court so the burden of proof is still on the plaintiff but the is less than in a criminal court
[/quote]
As already has been stated, small claims court is pretty informal, as they are handling cases less than a certain threshold and the intent is expeditious disposition. Notwithstanding the informality, I’d recommend that you retain an attorney if the statute you quoted is correct. The Statute as you have quoted it allows for the recovery of attorney fees, and such implies that you can retain an attorney for this matter (and presumably small claims court, assuming that the same is the proper venue for a landlord/tenant dispute in TX). The bottom line is no loss to you (unless you lose, you could be on the hook for attorney fees if they don’t take the case on contingency), and you gain professional representation.
You should consider the nature of the alleged countersuit in your decision to proceed. What would be the basis of the countersuit?
[quote]pushmepullme wrote:
[quote]SkyzykS wrote:
That is pretty interesting. So you don’t have to prove intention, you just have to prove wrongdoing?
I can see how that would motivate a landlord to either get that deposit back in a timely manner or gather evidence as to why it wasn’t.
[/quote]
Yeah, in CO anyway. If the landlord doesn’t give a proper accounting of the reasons he’s withholding the deposit, he loses his right to any of the deposit, and if he doesn’t return the portion of the deposit that is not disputed (e.g., he can hold $500 of a $2000 deposit for damage or whatever), he can be liable for 3x the wrongfully withheld amount.[/quote]
I think most states have such laws. I have worked in property management for a long time. Any decent landlord will provide an itemized list of any deductions to the security deposit within thirty days. The penalty of not doing this is forfeiting any claim to the deposit plus damages (triple amount is common). Landlord/Tenant laws are there to protect the tenant. It really does not matter if the landlord thinks they have a legitimate claim to the deposit. They need to put it in writing and send it to the tenant.
If anyone wants to rent property, go over the laws in your state. Letters and documentation are no joke.
To the OP, just make sure that you moved out within the terms of the lease. Proof of providing forwarding address and a formal demand letter requesting the return of your deposit will help your case. Make sure that all correspondence is sent via certified mail.
[quote]TheBodyGuard wrote:
[quote]Razorslim wrote:
[quote]pushmepullme wrote:
[quote]SkyzykS wrote:
That is pretty interesting. So you don’t have to prove intention, you just have to prove wrongdoing?
I can see how that would motivate a landlord to either get that deposit back in a timely manner or gather evidence as to why it wasn’t.
[/quote]
Yeah, in CO anyway. If the landlord doesn’t give a proper accounting of the reasons he’s withholding the deposit, he loses his right to any of the deposit, and if he doesn’t return the portion of the deposit that is not disputed (e.g., he can hold $500 of a $2000 deposit for damage or whatever), he can be liable for 3x the wrongfully withheld amount.[/quote]
Basically the law here in Texas is that the landlord has 30 days to provide a written description of damages and refund the balance of the deposit. after 30 days the landlord forfeits any right to withhold any of the deposit. “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.”
I am moving forward with this suit even though my landlord has threatened to counter sue. I did contact an attorney because of this though my original intent was to move forward without one. I think I have a good case and plenty of evidence and documentation, but I don’t want to be delusional.
Small claims court is a civil court so the burden of proof is still on the plaintiff but the is less than in a criminal court
[/quote]
As already has been stated, small claims court is pretty informal, as they are handling cases less than a certain threshold and the intent is expeditious disposition. Notwithstanding the informality, I’d recommend that you retain an attorney if the statute you quoted is correct. The Statute as you have quoted it allows for the recovery of attorney fees, and such implies that you can retain an attorney for this matter (and presumably small claims court, assuming that the same is the proper venue for a landlord/tenant dispute in TX). The bottom line is no loss to you (unless you lose, you could be on the hook for attorney fees if they don’t take the case on contingency), and you gain professional representation.
You should consider the nature of the alleged countersuit in your decision to proceed. What would be the basis of the countersuit?[/quote]
I did talk to an attorney today and she advised me to proceed without representation and she would help me if things got out of control. I really have nothing to lose by proceeding except a $55 filing fee.
My concern over the countersuit is the time and expense it would take to defend myself. I have sufficient documentation and pictures to show I was in compliance with the lease and left the house in as good or better condition as when we moved in. We only lived there 4 months.
[quote]Christine wrote:
[quote]pushmepullme wrote:
[quote]SkyzykS wrote:
That is pretty interesting. So you don’t have to prove intention, you just have to prove wrongdoing?
I can see how that would motivate a landlord to either get that deposit back in a timely manner or gather evidence as to why it wasn’t.
[/quote]
Yeah, in CO anyway. If the landlord doesn’t give a proper accounting of the reasons he’s withholding the deposit, he loses his right to any of the deposit, and if he doesn’t return the portion of the deposit that is not disputed (e.g., he can hold $500 of a $2000 deposit for damage or whatever), he can be liable for 3x the wrongfully withheld amount.[/quote]
I think most states have such laws. I have worked in property management for a long time. Any decent landlord will provide an itemized list of any deductions to the security deposit within thirty days. The penalty of not doing this is forfeiting any claim to the deposit plus damages (triple amount is common). Landlord/Tenant laws are there to protect the tenant. It really does not matter if the landlord thinks they have a legitimate claim to the deposit. They need to put it in writing and send it to the tenant.
If anyone wants to rent property, go over the laws in your state. Letters and documentation are no joke.
To the OP, just make sure that you moved out within the terms of the lease. Proof of providing forwarding address and a formal demand letter requesting the return of your deposit will help your case. Make sure that all correspondence is sent via certified mail.[/quote]
Yes - I have done all that and did thorough CYA. I did leave the rental early to which I paid a cancellation fee in exchange for a signed addendum to the lease allowing for early cancellation. Also provided forwarding address > 30 days before moveout and a request for deposit. All correspondence has been by certified.
I am looking forward to this, but I know it may be difficult to collect. Since an investment home is not considered exempt property, I can put a lien on it and force a sale through a writ of execution.
[quote]Razorslim wrote:
I really have nothing to lose by proceeding except a $55 filing fee.
[/quote]
Just remember, you could lose more than the filing fee. If the landlord prevails against you (doesn’t sound likely, but it could happen) you’d be on the hook for, perhaps, additional rent that would be due before they are able to re-let the premises, atty fees, costs, etc.
Not trying to scare you off, since these really are pretty cut and dry and skewed in your favor, but just remember that you could be exposed to some liability.
Also, make sure you’ve looked over your lease carefully. In CO, if the lease doesn’t speak to the deposit return/accounting date, it’s 30 days. However, the lease can extend this to up to 60 days.
[quote]Razorslim wrote:
I am looking forward to this, but I know it may be difficult to collect. Since an investment home is not considered exempt property, I can put a lien on it and force a sale through a writ of execution.
[/quote]
Do you know how they hold title? Corporate or personally? I’d garnish the hell out of em. That is the fun stuff.