Now you're thinking straighter! Have the bk filing ready, just in case, and stash the money to file in the mattress, and go to court and stand up to these parasites!! You can do it. If by some fluke the judge rules against you, you can file then. But look into ch 7 instead of 13, and see if you qualify. It sounds like the lawyers you spoke with were not sympathetic with your situation.
You will need to be objective and look at this as a simple business matter. That will be the hard part, try not to be emotional about it because that is what THEY want.
I can't remember if this was a commerical or residential lease, not sure if it even makes a difference. Seems to me that the key to your defending this is the lease agreement itself. What were the provisions and remedies for repairs? What were the provisions and remedies for non-payment of the lease? You have a 5-day notice to pay or quit. Is that covered in the lease? Does the notice or the provisions in the lease state that you will still be obligated under the lease even if you choose to quit? If the 5-day notice to pay or quit is not provisioned in your lease then maybe you can convince the judge that inaddition to breaching the lease for refusing to make the repairs they also advised you they were terminating the lease with the July 1998 pay or quit notice. Again just my thoughts, but I feel the lease will be the deciding factor in the judges decision, so I would go through it with a fine tooth comb and build my defense based on their breach and the paperwork you have showing you have tried to settle the matter. Tuit
Hi, This was a store. It says in the lease that they agree to have the HVAC in good and working order. But when the gas company came out to hook it there was no place for him to do that. We contacted them and they kept saying they would take care of it. Months passed, The summer and no air conditioning was the last straw. So we left. I will go over the lease again, and I thank you very much for the suggestion. I really appreciate everyone's input. I was in such deep dipare yesterday, I couldn't stop crying. I realize that if I roll over and take it instead of fighting, that they have won. I am going to fight. And I will post back here with the outcome. I have until December 17 to answer. What a bunch of jerks, they probably planned this right before the holidays to ruin them for us. In spite of everything I intend to have a very Merry Christmas! Thanks again! Irelize
That's the spirit! File your answer and then sit back and enjoy this most special and wondrous time of the year with your family and special friends! Who knows, this could work out totally different than you first imagined! You could be posting to tell me that there really is a Santa Claus! HO! Ho! I am keeping my fingers crossed for you! Wishing you and yours a Very Merry Chirstmas! Tuit
Another thing to understand is: Their lawyer may have tried to play the "we tried to contact you on multiple occasions..." game, but a judge is not impressed with that. He will ask them for PROOF of their attempts. It appears that they have none. Judges are not ruled by emotions. JUST FACTS. If you re-read your own posts, you will see that you have all the facts, docs that you need to win. There is a special segment of the CA world that is exclusive to collecting on past-SOL debts. They have to be more intimidating to make an headway. Most citizens are not knowledgable of SOL laws. Remember, SOL is an affirmative defense and MUST be raised in your answer to the suit. Your answer need not be fancy. Simply state that the OC was in violation of the lease which cancels that obligation. State that any debt whose last payment occurred on XYZ date is past the SOL. State that this lawsuit is frivolous and has no merit and has caused you undue anguish. State that due to THEIR failure to fulfill their obligations under the lease caused you to vacate early and cost you $$$. This lawsuit has cost you $$$. State that since this lawsuit is groundless and filed in bad faith you wish the court to award punitive damages. That is all you need. Then let the judge do his/her job. The hearing will take about 30 min. Just think of how awesome it will feel to have the judge rule in your favor! Forget losing your house. They would (1) have to win. (2) File a lien on your house to satisfy the judgment. They cannot foreclose on you. They cannot force you to sell the house. They cannot force you to get a 2nd to pay the debt! Their intent was to scare you. They did. They scared the hell out of you and had you running scared. What they didn't count on was creditnet to help you calm down and see what you were really facing! Once you calm down and look at the REAL situation, then you can get pissed off instead! How dare they do this to you! As it has been said, get a litigous mindset!
SOL should be an absolute defense for this. Also, if your landlord was not maintaining the property in tenable condition, you should be able to claim you were subject to Constructive Eviction. This means that you were effectively evicted by your landlord because they didn't maintain the property in livable condition. If you have any proof of your complaints about the condition of the HVAC system, I'd gather them. The specifics of the law will vary by state. You may not be liable for any rent at all after the constructive eviction. I might also add, many states have mandated that the landlord has a legal responsibility to attempt to mitigate a damage-incurring situation. If the landlord knew when you moved out, but didn't rent it out again for a year, he may have willfully or negligently failed to mitigate the circumstances. I'd consider consulting a Legal Aid organization before hurrying to the BK lawyer. -ingenue
Hi, I am going to be forever in your debt! ( donâ??t send the CAâ??s after me ; ) ) You and the others that have posted here to my situation have really helped me; I hope that someday I can provide the same support and common sense that you all have given me, to another soul. Here is what has happened since I posted. I spent a day in anguish, and then remembered an ATTY that had helped us on another matter for our former business. He was actually representing a vender for our store, but when he heard our side of the story, he quit working from them and helped us, almost pro bono, but he let us make payments over time. I had all but forgotten about him, until yesterday, when surfing the net looking for answers, his name popped into my head. I called directory assistance, got his number, and then called expecting to get an answering machine since it was Sunday. He answered!! I told him everything, I told him that we were cash poor, and only could gather 2K for a retainer, but we could make payments if we had too. He said the SOL is our defense, and that the CA have violated fair collections act. In addition, he is going to look at the first Atty that we paid $1,500K to and basically got nothing, but at least he documented out situation. Our new Atty said that the former Atty may have misrepresented us, and actually invited the suit. He is going to look into that as well. But he said what all of you have said, The SOL is out absolute defense, and to "momof5", you are so wise, our Atty said he is going to file a countersuit for damages. I was under so much stress the year that this happened, 1998 I had a hospitalized breakdown. Our Atty said that if the OC had a strong case they would have sued us years ago. The fact that the play the game of saying they have written letters they never wrote, and the refer it to a collections agency is a sign they have a shaky case. And you are right; they didnâ??t count on the people here at creditnet to be as informed and supportive as you all are. Thank You! I will keep you abreast of our situation!
This is GREAT news! Good luck on your new lawsuit. Your new attorney sounds like a winnner. always keep in your head that they screwed you and now you are going to get your just deserts!
