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my previous and crooked landlords insurance company is coming…

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my previous and crooked landlord's...
my previous and crooked landlord's insurance company is coming after me for something i had nothing to do with. what is my best route to defend myself? send a letter to the lawyer that sent me a letter?

The landlord has obviously made a claim about a nearly 2 year old flood in the building caused by another tenent. The law firm representing the insurance company has stated that the landlord said we were at fault. funny, as we were the ones who alerted the landlord that there was a flood caused by the other tenet and that he should act quickly so to minimize damage. the fountain that flooded was broken and we had quit using it alltogether to avoid any liability a year before the incident. the other tentent kept using it at their own risk. the landlord has a grudge against us also. this matter is also nearly or over 2 years old and it is odd, but not surprising, that it comes up now after we left his building last month after a series of problems that he could not resolve. i have to say that it is unlikely that there was $3900 worth of damage and i smell fraud. anyway, what do you think is the way this will play out?
Submitted: 8 years ago.Category: Legal
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6/23/2010
Lawyer: Law Pro, Attorney replied 8 years ago
Law Pro
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Experience: 20 years legal practitioner: real estate, collections, estate, civil, business, and criminal law
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They can try to sue you for the damages - but you can defend such too.

In civil cases their burden of proof is just a preponderance of the evidence standard.

In a civil case, the plaintiff has the burden of proving the facts and claims asserted in the complaint. If the respondent, or defendant, files a counterclaim, the respondent will have the burden of proving that claim. When a party has the Burden of Proof, the party must present, through testimony and exhibits, enough evidence to support the claim. The amount of evidence required varies from claim to claim. For most civil claims, there are two different evidentiary standards: preponderance of the evidence, and clear and convincing evidence. A third standard, proof Beyond a Reasonable Doubt, is used in criminal cases and very few civil cases.

 

 

The quantum of evidence that constitutes a preponderance cannot be reduced to a simple formula. A preponderance of evidence has been described as just enough evidence to make it more likely than not that the fact the claimant seeks to prove is true. It is difficult to translate this definition and apply it to evidence in a case, but the definition serves as a helpful guide to judges and juries in determining whether a claimant has carried his or her burden of proof.

 

The majority of civil claims are subjected to a preponderance of evidence standard. If a court or legislature seeks to make a civil claim more difficult to prove, it may raise the evidentiary standard to one of clear and convincing evidence.


So, with that standard of proof - the LL has to present evidence that you in fact did the damage or they will lose. Your threat to the attorney would or should be that if the case is dismissed against you that you will file a malicious prosecution action against the LL.

An action for malicious prosecution is the remedy for baseless and malicious litigation. It is not limited to criminal prosecutions but may be brought in response to any baseless and malicious litigation or prosecution, whether criminal or civil. The criminal defendant or civil respondent in a baseless and malicious case may later file this claim in civil court against the parties who took an active role in initiating or encouraging the original case. The defendant in the initial case becomes the plaintiff in the malicious prosecution suit, and the plaintiff or prosecutor in the original case becomes the defendant. In most states the claim must be filed within a year after the end of the original case.

A claim of malicious prosecution is a tort action. A TORT action is filed in civil court to recover money damages for certain harm suffered. The plaintiff in a malicious prosecution suit seeks to win money from the respondent as recompense for the various costs associated with having to defend against the baseless and vexatious case.

 

The elements of a malicious prosecution case are (1) that the defendant filed and/or prosecuted the underlying civil action; (2) a favorable termination of the prior case, in which the innocence of the former defendant was established; (3) the absence of probable cause, meaning that no reasonable attorney would have considered it to be tenable; (4) malice, which can be implied from a conscious disregard for the consequences, from a lack of probable cause, and from inadequate investigation and research, and (5) damages.

I would inform the attorney and/or the LL that you will certainly pursue a malicious prosecution action when you prevail from their suit.




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Customer reply replied 8 years ago
thank you. so what is my next action? to send a letter to the LL's lawyer stating that we had nothing to do with this, that the claim is baseless and that we will pursue a malicious prosecution action when we prevail.

if they persist and we have to go to court, do we need a lawyer?

thanks
Lawyer: Law Pro, Attorney replied 8 years ago
Yes, that's what I would do. Too, I would mention that if a civil action is filed against you in the matter that you will vigorously defend such and upon dismissal or a finding for you that you will pursue all your available remedies.

That the LL in reality and actuality knows that you didn't damage such and therefore malicious intent will be easy to prove.

I think that will make them think twice before they pursue this further.

I would only retain an attorney if they file suit - then I would inform the attorney that you eventually want to pursue a malicious prosecution action against them.






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Customer reply replied 8 years ago
is there anything specific to living in wisconsin that i should be aware of with regards XXXXX XXXXX?

would it be more impacting if i paid a lawyer friend to send this first letter.

that might give the LL the illusion that I am being dragged through the mud - and that is what he wants.

what about the "insurance fraud" issue. would it be beneficial to suggest that to his insurance company at any point or to mention anything down those lines in my letter?

of course, i want this to be over as quickly as possible and not attack him unless needed.

thanks.
Lawyer: Law Pro, Attorney replied 8 years ago
No, nothing specific to Wisconsin. Certainly having an attorney write and send the letter would have more impact to the LL and their attorney.

Who knows when the LL made the insurance claim and what they stated on the insurance claim - that's as between the LL and their carrier.

Maybe they were fraudulent and maybe not - it's impossible to know without a review of the insurance claim. Too, I wouldn't indicate that the LL has been fraudulent - I would let that go at this point.






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