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Lucy, Esq.
Lucy, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 21090
Experience:  Criminal Justice Degree, JD with Criminal Law Concentration. Worked for the DA and U.S. Attorney.
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I was the defendant in a small claims case (therefore not eligible

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I was the defendant in a small claims case (therefore not eligible for appeal). The plaintiff claimed to never receive an itemized list of damages when he was evicted (constant violation of rental agreement regarding animals on the premises, plus consistently late or underpaid on rent), so he sued for twice the deposit. His damages to the property and with rental agreement violations totalled four times the deposit, which I countersued for. He failed to provide a forwarding mailing address and declined to be present for the move out inspection, so I emailed to him at the email address he previously provided photographic evidence of damages approximately five days after he moved out with the opportunity to correct the damages within two weeks. He never responded and never returned any calls.

During the hearing, he claimed the email address I used was incorrect. Judge ruled in favor of plaintiff for twice deposit since he "never received a list" AND in favor of defendant for damages to be determined. End result: judgement for plaintiff in amount of approximately $37.

I have discovered he lied during the hearing; upon conducting an email address search via facebook, the email address he previously provided does in fact bring up his current facebook account (same email address is required for him to log into facebook, and his posts are current all the way up to today, which means the email address I sent the list of damages to WAS VALID the entire time).

What are my options? What is the penalty for his perjury?

Thank you!
Submitted: 1 year ago.
Category: Criminal Law
Expert:  Lucy, Esq. replied 1 year ago.
Hi,

My name is XXXXX XXXXX I'd be happy to answer your questions today. I'm sorry to hear that this happened.

First, Arizona law requires that a landlord send the itemization of the security deposit damages to the tenant via first-class mail, to the last known address. Ariz. Rev. Stat., Section 33-1321(D). When the tenant does not leave a forwarding address, the notice goes to the rental premises, to see if it is forwarded - and if it's returned, the landlord has proof. If the damages list was only sent via email, unfortunately, the fact that he lied is not relevant to the outcome. The deposit notice can only be emailed if the tenant agrees, in writing, to receive it that way. You do have the option of filing a Motion to Vacate Judgment based on newly discovered evidence or fraud on the court, but I want you to understand why that may not ultimately mean that you'll win the case. Here is the form:
http://justicecourts.maricopa.gov/Forms/MotiontoVacateJudgment.pdf


With that said, perjury is a Class 4 felony. Ariz. Rev. Stat., Section 13-2702. Your option here is to report him to the D.A. in the county where the case was heard. They have discretion to decide whether to proceed with a case against him. The penalties depend in large part on a person's criminal record and the facts surrounding the case, but the maximum penalty is 15 years. If he has no criminal record, then the maximum is 3.75 years. The minimum sentence is a year and a half.

If you have any questions or concerns about what I've written, please reply so that I may address them. It's important to me that you are 100% satisfied with the service I provide. Otherwise, please rate my service positively so that I get credit for answering your question. Thank you.
Customer: replied 1 year ago.


Thank you! I do have a bit more to clarify.


 


This was my first time to deal with a tenant; originally the lease agreement was between him and a property management company. I requested the company evict him while our agreement was still in effect, but it took a few months to get him out of the property and while they said they would honor the 'eviction protection policy' I purchased, the agreement expired (I chose to not renew) yet they continued to handle tenant issues (rather poorly) until he left the premises. I do not know if he explicitly agreed to receive information via email, HOWEVER his entire lease agreement was handled via email by the property management company (review, sign, etc via docusign, at the email address I then used to send his the photographs and advice that his security deposit would likely not cover the damages, etc). That set a precedent about how matters regarding his contract and obligations would be handled, didn't it?


 


Additionally, if I file the motion am I asking that the $37 against the Defendant be tossed out or am I asking that the entire judgement for Plaintiff be reversed (which would in effect be asking for a judgement of $1953 against Plaintiff)? Will the case be re-heard? The monetary judgement is not significant in my opinion, but the principal behind this entire transaction with the tenant IS significant. The interactions I have had with him cause me to believe he does this on a fairly regular basis and I would like to send the message that his fraud is not going to work any longer.


 


Thank you!

Expert:  Lucy, Esq. replied 1 year ago.
Unfortunately, the language of the statute is explicit. The tenant cannot impliedly waive the protections, because the statute says that it has to be in writing. He could have sent an email agreeing to allow the notice to be sent via email, but the fact that previous communications were done via email won't allow this one to be, without his express consent.

If you file the motion, you're asking to vacate the entire judgment. If you succeed, the judge throws it all out, you present your additional evidence that the tenant was lying, and then the judge enters a new judgment, which could be for either of you.

It does sound like he's abusing the system, so I hope the judge agrees.
Customer: replied 1 year ago.


Hopefully this is the last bit of clarification I need :)


 


Does any one action take precedence over the other? I would like to report him to the DA to take care of the perjury instance, and I would also like to file the Motion to Vacate Judgement. However, if I file the Motion to Vacate and it is for whatever reason denied, would that affect the ability to report the perjury to the DA? I feel the Motion to Vacate is the most urgent thing timewise, but I'm not sure. If I fail to file the Motion, but instead proceed with the DA, I have to pay the judgement against my company which almost seems like an admission of guilt. So does the perjury even matter at that point? Would the DA see I paid the $37 and not pursue the case?


 


Sorry for all the questions, but I get one shot at this and I want to stop this guy from continuing the fraudulent behaviour. He told several carefully constructed lies on multiple occasions during his tenancy. One of the most infuriating was his inability to pay rent or move out on the originally agreed date because his girlfriend was pregnant and they were in a financial bind, so I chose to not pursue him for the damages above his security deposit. I indicated this on my countersuit. During the hearing, he HEAVILY played the race card and insinuated that I was making judgements against them based on ethnicity, he has no idea why I would think they were unable to pay damages, etc etc. Complete parasite!!!

Expert:  Lucy, Esq. replied 1 year ago.
The civil case and the criminal case are entirely separate. The DA has total discretion to decide whether to proceed, based on the evidence in front of them. They won't automatically see your payment of the judgment as an admission that he was being honest, but if you don't try to vacate the judgment, that could possibly be used against you if the DA takes it to trial.
Lucy, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 21090
Experience: Criminal Justice Degree, JD with Criminal Law Concentration. Worked for the DA and U.S. Attorney.
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Lucy, Esq.
Lucy, Esq.
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Criminal Justice Degree, JD with Criminal Law Concentration. Worked for the DA and U.S. Attorney.