I vacated a Memphis apt complex in July 7, 2008 was on a month to month lease. Apt mgr told me she had apt rented and I would only owe for the 7 days I was there in July, she didn't know actual amt but would let me know. In Sept 2008, received notice from Makowsky Ringel Greenberg that I owed for full month. Spoke to apt mgr, she assured me the security deposit they withheld, plus $30 additional that I paid then would settle it and she would ensure nothing else was owed by me. I have never heard another word about it since then, so assumed all settled. Tuesday, this week 6/19/2012, I'm told if amount not paid by noon tomorrow, civil suit will be filed against me. Can they do that? Especially when I have received nothing in all these years to indicate I have ever owed anything other then the additional $30.
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How much are they seeking? What was the amount of the security deposit withheld?
And do you have any proof that you were told not to worry about it? (emails, texts, etc...)?
They are wanting $542, but say if paid by noon tomorrow they will take $400. Security deposit was $150. No, I have nothing now because I finally got rid of everything since I never heard another word about it. I am sure that I wrote final payment on the $30 ck along with a letter, but have nothing now.
How much was the monthly rent? Was this a contract in writing or an Oral Contract?
It was a written contract when I lived there from Sept 2005 until May 2008. June 1, 2008, it was month to month & I gave notice and moved out July 7, 2008. The apt mgr told me she had the apt rented and I would only owe for those 7 days in July, however, now, I have nothing to prove that other than my memory and never receiving anything other than the one notice which I paid $30 as she requested & she told me she would take care of it. Don't remember the exact monthly rent but was appx $780 or so.
Do you still live in the same county / city / area of the apartment?
yes, about 10 miles away
Thank you. One moment please while I research this, and will get back to you shortly...
ok, thanks - suppose to let them know within 1 hr today what I'm going to do.
Understood. I was checking out the Statute of Limitations in TN (6 years), so that's not going to be a good defense. Now the possibility is that they don't have the records either, and they have to prove that you breached the contract, not that they didn't (they have the Burden of Proof).
So you can still say what the manager said, that this would be enough, and that they've always had your forwarding information and this is the first thing that you've heard about it.
This might fall under "latches" (which is like the statute of limitations but more "equitable", in that they have to bring an action within a reasonable period of time).
Another thing to consider is the cost of suing you. They would have to bring an action in court, and you could counter-claim for the failure of them to return to you the security deposit. The idea is that they could have either kept the security deposit, or sued you for the rent.
(this is a bit more difficult of a claim, but it might make them think twice about suing).
Another thing is that there's a good chance they're bluffing.
A phone call or email is easy and cheap. A lawsuit is expensive.
So they could be threatening to sue, without any intent to actually follow through.
Yes, I have put in writing twice, Tuesday afternoon and again yesterday, what the manager stated, etc, that's when they came back with $400 offer. They tell me notices were sent here, however, they say they can't tell me dates (I don't think they have anything) because a document they did send me stops after my $30 payment.
Personally if it were me, I would tell them to go ahead and file suit, and I will counter sue for a frivolous suit, as well as violations of the Tennessee Security Deposit Act, and will be asking for treble damages as well as attorney fees and costs.
As far as these "notices", if they can't prove that they sent them, and you allege that you never received them, they might have as well have never been sent.
I doubt a justice would give them a judgment, given the almost 4 years that they did nothing, and your Testimony as to what the manager said.
They also can't "double dip". If they actually had a tenant come in on the 7th, they are precluded from having a "double recovery" from you.
I agree, I just hate I have nothing to prove it. I don't think one thing has ever been sent to me since that one notice. I've lived at the same address the whole time
There's no clear cut thing to make certain they won't sue you, but you have to consider the costs to them and the likelihood of recovery. They have the burden of proof, not you, and so if it's still 50/50 after all the evidence has been put in, you will win. They would have to prove that you breached and they didn't release you from that breach. Again, "latches" can be used to argue that you used to have evidence that would prove your defense, but the time passage and their actions reasonably would lead to it being destroyed.
Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, and again, good luck to you!
oh, one thing - what they say is that the tenent ended up not taking over until around the 22nd of that month and that's why I owe it. However, the mgr told me I only owed for the 7 days - the deposit plus the $30, so how can they wait all this time to contact me?
Technically they can wait 6 years (the statute of limitations), but that's where you can use "latches". Latches is where you say that even though the statute of limitations has not yet run, it's not fair to hold you to liability on this matter because a reasonable person would have taken action much earlier, and you could have proven your case had they done this.
But a simple statement that you didn't owe anything more, and they told you that you didn't owe anything more would be a good defense. They would have to prove that you did and they tried to recover it.
Is there a law code # XX something I can look up regarding "latches"?
Again, if it were me, I would fight it, and tell them if they sue, I will countersue.
No, latches is an equitable common law doctrine, not statutory.
Here are cases: This equitable defense involves an inexcusably long delay coupled with injury to the rights of another resulting from the delay. Jansen v. Clayton, 816 S.W.2d 49 (Tenn. App. 1991), citing State ex rel Elvis Presley v. Crowell, 733 S.W.2d 89 (Tenn. 1987); In Re: Estate of Darwin, 503 S.W.2d 511 (Tenn. 1973).
Common law is based on case law, not statutes.
ok, thank you so much. I really appreciate it. I now have 40 minutes to make my decision.
So you claim the long delay and the injury that you have as a result of the delay.
My pleasure, and I hope that you win, however it may happen. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, and again, good luck to you!
thanks, no problem. I will give you an excellent rating. thanks so much
Thank you, and again, good luck to you!
Licensed Texas General Practice Attorney
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