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insearchoftheanswer, Lawyer
Category: Landlord-Tenant
Satisfied Customers: 55715
Experience:  Lawyer; developer/owner of RE developments.
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This is a landlord / tenant small claims question. I am a

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This is a landlord / tenant small claims question. I am a landlord and returned the security deposit the day they moved out. The tenancy was Oct 2015 to Dec 2016. They were on month to month at their request and it took them 4 months to leave after notice in August (they had a baby in November). There was a pet urine smell at that time, but I was confident that carpet cleaning would remove it as I typically rent to people with pets and odors have historically been removed with cleaning. The odors did not go away. I notified them 19 days later and then spent 90 days trying to get rid of the odors with Nature's Miracle. When that didn't work, I replaced the carpet in half the house. The carpet was new when they moved in. They sent a snarky response refusing to pay. I filed a small claim, albeit 9 months later (I really did not want to go this route) and now, 3 days before the court date, I received an email from the tenant saying they would countersue me for the time and travel to get to the court as they have moved out of state.
In addition, they have a notarized document from the person who supposedly adopted the cat in Oct 2015 but I have an email from June 2016 saying that they were looking for a new home for the cat. I know the person who signed the document and without knowing details, know that she would purger herself.
I realize this is very convoluted. Question is - given that it's never a done deal when you go to small claims, is it worth continuing? The amount is $789 and the costs they would incur to get here would probably be in excess of $2k.
thanks, Amanda

Hi! My name is Richard & I will be helping you today! It will take me a few minutes to type a response to your question. Thanks for your patience!

Good morning Amanda. First, they're not going to be successful with this countersuit. Courts simply don't award damages for time and travel expenses in showing up to defend a suit. So, you need not worry about that. Second, although you have a valid cause of action, due to the concept of "remaining useful life", if $789 was the cost of replacing the carpet, it will get reduced a bit because you would only be entitled to recover the cost of replacement times the remaining useful life. Since the carpet was new when they moved in, they were there about 14 months, and the useful life of rental carpet is usually about 7 years, you would only be able to recover the cost times the percentage of useful life remaining.

Thank you so much for allowing me to help you with your question. I have done my best to provide information which fully addresses your question. If you have any follow up questions, please ask! If I have fully answered your question(s) to your satisfaction, I would appreciate you rating my service as Good or Excellent (i.e., 4 or 5 stars)(hopefully Excellent/5 stars!). Otherwise, I receive no credit for assisting you today. I thank you in advance for taking the time to provide me a positive rating!

Customer: replied 1 month ago.
OK thanks - strategically, do I tell them that courts don't award damages for time and travel? And do I tell them I have the email regarding the cat's new home? They called this "frivolous". Also I verbally mentioned the smell at the time the left- did not write it down on the condition checklist. Does that make any difference? Oh - one more thing - as you can imagine, after 4 months I was anxious to get rid of them and I wrote a letter PRIOR to their move out saying what good tenants they were. They claim I sent it after they moved but I wouldn't have done that and have no email record.

You're very welcome. I would tell them "good luck" on getting an award for damages for their time and travel. But, I wouldn't tell them anything other than unless they resolve this to your satisfaction, you will see them in court. The things you reference should not preclude you from prevailing. But, I would not reply to any of their other contentions until court because there's not reason to alert them of your defenses to their claims that you had no damages.

Customer: replied 1 month ago.
there is no way they can come back and sue me for the $2k? Even if it went against me / for them? - which I doubt, but you never know - based on watching Law and Order :)
Should I suggest that they save time and money and just pay the amount?
Customer: replied 1 month ago.
also they literally just moved - I think they were served right before they left the state. does that make a difference?
Customer: replied 1 month ago.
The certified letter to the husband was signed for at his place of work. The certified letter to the wife was returned saying she no longer worked there (school district). They told me that they used my letter to get their current rental - what nerve!

You can never prevent them from filing such a counter suit, but they would not prevail. You can let them know if they want to make a reasonable settlement offer, you'll consider it, but only with regard to the damages, not their empty threats of their countersuit because they have no chance of prevailing in that. As long as they were properly served, they are going to have to show up or you will awarded a default judgment.

Customer: replied 1 month ago.
only the husband was properly served but the wife would have known that she was on the suit too.

As long as the husband was properly served, he must show up and their marital assets are going to be at risk for payment of your award.

Customer: replied 1 month ago.
OK - haha well having consistently received their rent checks 2 weeks late, their marital assets aren't very beefy.
Can late rent be mentioned in court? My recommendation letter said "they paid their rent as agreed", not that they paid it on time. I was not going to lie on that one although clearly I overstated when I said the house was in excellent condition.
This is a case of "no good deed goes unpunished". I was so generous to them.

Given the history, I would not include the late rent. I don't see in what state you are located, but unless you're in TX, SC, NC or PA, in addition to going after any assets, you can also garnish their wages to collect your judgment. Plus, this judgment is going to be a noose around their neck in renting in the future and/or getting credit. :)

Customer: replied 1 month ago.
I am in CA and I believe they are now in WA or possibly OR. Their credit stinks already Can I still garnish out of state wages? I had no idea they were moving, although they'd been talking about it.

Yes. a judgment awarded, you become a judgment creditor, and if they don't then pay the judgment, you can have the sheriff serve a summons on them for a debtor examination. That forces them to meet you in court again and answer questions under oath about their income and assets. After that information is obtained, you have the power to garnish wages, attach bank accounts, have the sheriff seize other personal property, and/or place liens on any non-homestead property they own to satisfy the judgment.

Customer: replied 1 month ago.
OK - it makes sense for them to just pay me and save hassle - 2 more rooms will need to have carpet replaced as there are 'whiffs" of cat pee in certain places (particularity after vacuuming). There is no way I could rent it as is to pet owners or non pet owners. Am I crazy to think of trying to ask for the second installment at that time?

You are not crazy. Those are damages too even though you have yet to replace it.

Customer: replied 1 month ago.
but I don't think i can serve them if they have left the county though can I? I have to leave to drop off a key for a workman - back in a bit - thanks

If they are no longer in the county, you would not be able to serve them with a new suit in your county; you would have to sue them in your location. Although you could serve them when they come to court in your county.

Having said all the previous, if you could settle this for something close to what you're asking, you might want to settle just to avoid the toll on you and the value of your own time.

I just wanted to let you know that I will be away at a meeting for the next hour or so. Should you have a follow up while I’m away, I will address it immediately upon my return. Thank you in advance for your patience. I apologize for any inconvenience.

I have returned. Let me know if you have further questions. If I have fully answered your question(s) to your satisfaction, I would appreciate you rating my service as Good or Excellent (i.e., 4 or 5 stars)(hopefully Excellent/5 stars!). Otherwise, I receive no credit for assisting you today. I thank you in advance for taking the time to provide me a positive rating!

Customer: replied 1 month ago.
It turns out that they were mis-served. I just learned that at a place of employment, it must be a sheriff service. The small claims "window" told me that they could either be served by a sheriff or by certified mail at their employer. This was actually the same story that the sheriff's "window" told me. They think they have been served. The signature on the one certified letter was just illegible initials and the other was returned as she didn't work there any longer. So my understanding is that if they show up, we can proceed but if they don't the judge might throw it out. In any event, it doesn't look promising. I did email them and told them good luck on collecting and given the situation, did send the June 2016 emails discussing the cat's home, which are in direct conflict to the notarized document which I believe claims that the cat didn't live there. In any event, there was a cat there whether it was theirs or not. Thanks for your kind assistance. Some of this was procrastination on my part and the rest was bad information.

Thanks for following up. You are correct, if they show up, the case will be heard; if they don't, they will have to make the claim that they will not properly served; otherwise, the judge will award a default judgment.

Customer: replied 1 month ago.
Thanks. I am taking the email from them that discusses the suit so clearly they both "feel" served. I have not heard back from them. I can't imagine they have the resouces to pay for 2 same day flights. Can i leave this open until tomorrow? Since you have been such a great partner i would like to tell you the outcome. Thanks again

Sure. You're very welcome! It's been my honor and privilege to help you with this. If I can help you in any way in the future, I'll be happy to help. For easy access, my bookmark is: www.justanswer.com/law/expert-legalbeacon/ . Or, simply request “Richard only” in the first line of your question.

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