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Dwayne B.
Dwayne B., Attorney
Category: Landlord-Tenant
Satisfied Customers: 32340
Experience:  Began practicing law in 1992
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It's a story , but will make it as short as possible...I

Customer Question

It's a long story , but will make it as short as possible...I have a tenant that was a problem and decided not to renew their lease. I gave them a 90 day notice, with the stipulation that they could leave as soon as they found a new place. They found a new place, and signed a lease with a new landlord.. I in turn found a new tenant to move in. The existing tenant suddenly decided that they were not going to take the new place (after signing a fully executed lease with new landlord) and informed me that they would be staying for the remainder of their lease (until end of April 2016)...I told them that they could not do that, that a new tenant would be moving in and they refused to leave...I filed an eviction Tenant/ Landlord complaint and won in court....by the time all transpired, they ended up not having to leave until end of April....They did pay Aprils rent plus court fees..So Judgement was found against them
.Following the court hearing, the tenant came home to his apartment and turned on all of the faucets in his apartment, making it impossible for the other tenants to shower or have hot water...This went on for a few hours..He also would scream out obscenitys and annoying comments as loud as he could...(Violating the other tenants rights and comforts in the building)....I sent them a letter within 30 days of move out explaining that they had forfeited their one months security deposit due to violations of their lease....
1)Not allowing access to apartment for new carpet measurements after I gave them a 48 hour notice...I have video of this
2) Breaching lease due to not leaving following their notice
) Violating other tenants rights and comforts..I have written statements from 2 tenants
I also sent an invoice for WALL REPAIRS, and cleaning as they left it a pig sty ( refrig, bathroom were all left filthy)
My lease state that they may lose their deposit of any portions of the lease are violated.My lease clearly states the above rules. I am also listed as an LLC
I just received notice that they are suing me, personally, not the LLC for their security deposit...
I will be counter suing for the damages, cleaning and loss of income of about 21 days.
Can they sue me personally if all correspondence were specific to my LLC since this is an LLC issue ?
Will my lease and violation of lease hold up in small claims court?
Submitted: 6 months ago.
Category: Landlord-Tenant
Customer: replied 6 months ago.
Just to Clarify....Will this be thrown out in court since they did not file correctly by filing against me instead of my LLC?
Expert:  Dwayne B. replied 6 months ago.

Hello and thank you for contacting us. This is Dwayne B. and I’m an expert here and looking forward to assisting you today. If at any point any of my answers aren’t clear please don’t hesitate to ask for clarification. Also, I can only answer the questions you specifically ask and based on the facts that you give so please be sure that you ask the questions you want to ask and provide all necessary facts. Please note: This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

Can they sue me personally if all correspondence were specific to my LLC since this is an LLC issue ?

They can sue you personally but if you file a Motion to Dismiss they have to come up with some reason that you are personally liable instead of the corporation. You would support your Motion to Dismiss with an affidavit explaining that your company is the one doing this and that you were taking all actions as an employee of the LLC (or whatever role you were acting in).

Will my lease and violation of lease hold up in small claims court?

It sounds like it will but a lot depends on the lease language (and we're not allowed to interpret your documents) as well as what witnesses you bring. BE sure that if one of your complaints is that he was "disturbing the neighbors" then you need to bring at least one of them with you to testify as to that since any testimony of yours on that issue would, automatically, be hearsay.

Customer: replied 6 months ago.
Would a signed affidavit from the tenant with the details suffice instead of appearance ?If I motion to dismiss , will
Plaintiff have to refile if granted? Does it matter that I am the owner of the LLC amd what was the advantage of them filing against me vs LLC ?
Customer: replied 6 months ago.
Would a signed affidavit from the tenant with the details suffice instead of appearance ?If I motion to dismiss , will
Plaintiff have to refile if granted? Does it matter that I am the owner rof the LLC amd what was the advantage of them filing against me vs LLC ?
Expert:  Dwayne B. replied 6 months ago.

Would a signed affidavit from the tenant with the details suffice instead of appearance ?

No, contrary to popular belief An affidavit is not admissible in a hearing. IN some cases they can be used in motions, but for the purpose we are discussing.

Yes, the defendant will likely have to refile although occasionally the court will just allow substitution of the names.

The only issue with the LLC is protection of your personal assets. If he gets a judgment against your LLC then he has to go through a lot of extra steps to try and pierce the corporate shield and get to your personal assets.

Customer: replied 6 months ago.
Well, I went to the magistrates office to file the Motion to Dismiss and they said they did not do that, that they think this needs to be brought up at the hearing? Is this the case or should I be able to file this motion prior to hearing date?
Expert:  Dwayne B. replied 6 months ago.

You can bring it up at a hearing but a Motion to Dismiss is supposed to be written. Most clerks don't understand the law at all and really don't know what you can and can't file but every court allows Motions to Dismiss. It's what is filed, as an example, if you reach a settlement and want to drop a case.

If your question has been answered then I'd offer my best wishes to you and ask that you please not forget to leave a Positive Rating so I receive credit for my work.

Of course, please feel free to ask any follow up questions in this thread. I want to be sure that all of your questions are answered. In addition, once you issue your Positive Rating the question will lock open and you can come back to it anytime in the future if you think of something else.

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