Dos & Don'ts for Taking Resident to Small Claims Court
Most site managers have had to handle disputes on occasion with residents or former residents over past-due rents or damaged property. If the money damages that you're seeking are relatively small, typically less than $5,000 (although the amount varies by state), and your preference is for a speedy, inexpensive hearing in a less-formal venue, then small claims court may be a viable option.
Before you file a claim, however, be sure to check with your state housing agency to determine alternatives for collecting a debt. For instance, if the resident receives HUD assistance, you have 180 days from the date the vacated unit is available for occupancy to submit a claim to HUD for unpaid rent and damages. If your case involves a large debt, garnishment of wages, or a judgment lien, you may need to pursue your claim in your state court.
If you decide to move ahead with filing a small claims suit, it's important to ensure that you can present your case in an organized, credible manner. With the help of landlord/tenant attorney Thomas McGarry of McGarry Law Office in Spokane, Wash., we've put together a few dos and don'ts to prepare you for your hearing.
Evaluate Your Case: Is It Worth the Trouble?
The first consideration when preparing your case is whether you know how to locate the opposing party, says McGarry. If it's a former resident who has abandoned the unit, will you be able to serve him with notice of the claim (that is, a summons)? Notice of a proceeding to an opposing party is a basic concept of our notion of “due process.”
Next, can you prove your case, and is it worth it? “Many times, people are judgment-proof,” McGarry says. “Even if the site owner prevails in small claims court, there is no guarantee that the tenant is going to pay, and he may have no attachable asset that could be used to satisfy the judgment. Under those circumstances, the site manager might be well advised to turn the case over to a collection agency.”
On the other hand, even though the resident may not be able to satisfy a claim at the time, you may be able to collect on a judgment at a later date. For instance, “in Washington state, a judgment has a life of 10 years, and can be renewed for another 20 years,” he says.
When evaluating your claim, you should also examine your motives for bringing an action, adds McGarry. “If the motive is just to harass or trouble the other person, then there is no place for that in the judicial system,” he says.
Make Sure Claim Is Reasonable and Supported by Evidence
If your claim involves monetary damages for property that was harmed by the resident, you will need to establish what it cost and why the resident is liable for it.
Your claim must be reasonable—the cost of damaged property should be assessed at a depreciated value. For instance, let's say that the property damage includes a 15-year-old carpet that was in the unit. Can you charge the former resident for a brand-new carpet? “Probably not,” McGarry says. “It would be the depreciated value of the carpet. What was the life left of the carpet that was destroyed? That probably is the measure of damages. My observation is that judges do not rule favorably when it appears that the landlord is trying to refurbish an apartment on the backs of the tenants. Remember, you are seeking monetary damages and not unjust enrichment.”
Organize Documentation Chronologically
You will need to bring to court documents and records that will help you to prove your case. Those may include lease agreements and other documents required by your state to create a tenancy, canceled checks, receipts, notices sent to the resident, repair bills, and photos of property damage.
Keep in mind that the judge is like a blank page—the first chance a judge may have to look at your case is when he opens the file at your hearing.
Organizing your documents chronologically will help you to present your case in a logical, easy-to-follow timeline. And while starting at the beginning is important, “you don't necessarily have to start at the very beginning of the tenancy,” McGarry says. “Focus on what is relevant. You have to be able to communicate your claim to a judge as concisely as possible.”
Don't Mark Up Your Evidence
Don't mark the documentary evidence. If you find that making notes and comments on photos, contracts, or notices will help during your testimony, make a copy of the documents first.
“It's a good practice to make several copies of your documentary evidence—for yourself, for the opposing party, and for the judge to mark up,” says McGarry. However, keep in mind that the originals will be filed with the court, and “we want a piece of paper that shows what it shows, and is free from any comment.”
Don't Waste Time in Court
Time is very limited in small claims court. For instance, in Spokane, each case may be allotted only 20 minutes. You may have as little as 10 minutes to present your case.
Again, make sure that your documentary evidence is organized so that you can present it efficiently. The judge usually may listen for a minute or two, and then may start asking questions, so be prepared. Know your case inside and out. You should be flexible enough to answer the judge's question and still assert your claim.
PRACTICAL POINTER: Because of the time constraints associated with small claims court, it's helpful to begin your testimony with an opening statement that summarizes your case, says McGarry. For instance, “this is a claim for unpaid rents” instantly provides a framework for the judge.
Treat the Court with Respect
Being respectful in court adds to your credibility. He also offers the following basic tips:
Refer to the judge as “your honor” or “judge,” not “ma'am” or “sir.”
Wear appropriate clothes to court—no printed T-shirts, shorts, or hats.
Don't chew gum (let the opposing party look bad!).
Don't bring food or drink into the courtroom.
Turn off your cell phone.
Remember, regardless of the fact that this is a small claim, you should present yourself in a businesslike fashion. “These are the sorts of things that show respect or disrespect to the court,” he says. “And sometimes credibility is what is required to tip the scales in your favor.”
Don't Interrupt the Resident
One thing that is frustrating to the court and will quickly destroy your credibility is interrupting the opposing party.
“Everyone gets a chance to talk,” says McGarry. “If the opposing party says something that you don't agree with, make a note of it and then point it out when it's your turn to speak, but never interrupt someone.”
Do Your Homework: Sit Through a Docket
The best way to prepare for a small claims case is to sit through a couple of dockets, McGarry says. “Television shows with bombastic ‘judges’ and angry litigants are not an accurate portrayal of how most small claims courts work. These shows are entertainment, not formal legal proceedings.”
There is no better way to get a sense of how the proceedings work than sitting through a docket for yourself. Be sure to take note of how the judge behaves, what information he's looking for, and what he likes or doesn't like.
Also, in Washington state, every county publishes a small claims information brochure, McGarry says. Be sure to check with your local court system for similar publications. Sometimes the information is available online. You should at least obtain as much information from the court as possible so that you will know what to expect and how you must proceed.
Thomas McGarry: McGarry Law Office; http://www.mcgarrylawoffice.com.
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