Best Practices for Breach of Lease Collection Cases A roadmap for understanding and litigating these hybrid cases. By: Evan Denerstein, MFY Legal Services;

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Presentation transcript:

Best Practices for Breach of Lease Collection Cases A roadmap for understanding and litigating these hybrid cases. By: Evan Denerstein, MFY Legal Services; Lauren Elfant, Urban Justice Center; Lynn Horowitz, Housing Conservation Coordinators, Deborah Stern, MFY Legal Services

What do we hope to accomplish in this training? Introduce and familiarize you with breach of lease cases. Provide a litigation roadmap. Strategize about who should be taking these cases and how we are best equipped to handle them as a community of advocates. Provide practice tips to consumer and housing advocates on how to advise clients and tenants so that they can avoid these collateral attacks.

Consumer Law Cases Credit Card Debt Medical Debt Car loans Student Loans Housing Law Cases Non-payment Holdover

Breach of lease (“BOL”) cases are exclusively about money tenants owe landlords after vacating or being evicted from a rental apartment, or when arrears are severed in a nonpayment cases.

Common Breach of Lease Situations Tenant leaves apartment without being sued in housing court. Tenant is sued in housing court. Housing court case is resolved by court order, stipulation, or trial. Former tenant moves to vacate an old housing court judgment. Common Breach of Lease Situations Tenant leaves apartment without being sued in housing court. Tenant is sued in housing court. Housing court case is resolved by court order, stipulation, or trial. Former tenant moves to vacate an old housing court judgment.

Why do non-housing attorneys need to understand housing law in order to represent clients in breach of lease cases? 1.These cases often begin in housing court. 2.Many of the substantive defenses are rooted in housing law. 1.These cases often begin in housing court. 2.Many of the substantive defenses are rooted in housing law.

Common Housing Court Scenarios

1. A tenant leaves before the end of the lease with no formal agreement. 2. Tenant and Landlord enter into a court stipulation, agreeing for example to move out by a certain time or to pay a certain amount of money in order to stay. 3. Landlord sues tenant in housing court and tenant does not appear. Landlord obtains a default judgment in housing court.

What happens after a possessory judgment is entered in housing court?  Marshal requisitions a warrant.  Court sign off on the warrant.  Eviction takes place unless tenant successfully files an Order to Show Cause staying the eviction.

How to understand your housing court file

How to Interpret a Settlement Agreement Types of agreements Agreement to pay and not move out. Agreement to pay less than what is alleged and move out. Agreement to move out if arrears waived. What to look out for Does the LL have to file anything if stipulation violated? Does the LL have to file a satisfaction of debt? Does the LL agree to waive arrears? Is the settlement conditioned on anything? Types of agreements Agreement to pay and not move out. Agreement to pay less than what is alleged and move out. Agreement to move out if arrears waived. What to look out for Does the LL have to file anything if stipulation violated? Does the LL have to file a satisfaction of debt? Does the LL agree to waive arrears? Is the settlement conditioned on anything?

Possible Discovery from Housing Court Case DHCR rent history All leases Any DHCR rent reduction orders Proof of payments HPD building information Possible Discovery from Housing Court Case DHCR rent history All leases Any DHCR rent reduction orders Proof of payments HPD building information

Common Housing Court Defenses  Rent Abatements  Illegal Rent/Overcharges  Jurisdictional Defenses  Satisfactions of Debt Common Housing Court Defenses  Rent Abatements  Illegal Rent/Overcharges  Jurisdictional Defenses  Satisfactions of Debt

What happens when old housing court cases are revived as breach of lease cases?

Who are the Players  Landlord  Attorney for the landlord OR debt buyer attorney  Former tenant How do we know about the players?  Client gets served  Wages are garnished  Bank account frozen

How do we defend these cases?

 Personal jurisdiction  Statute of limitations  Mistaken identity theft  Failure to mitigate damage/did mitigate  Debt not owed  Debt paid  Personal jurisdiction  Statute of limitations  Mistaken identity theft  Failure to mitigate damage/did mitigate  Debt not owed  Debt paid  Warrant of habitability  Rent overcharge  Prior stipulation  Security deposit  Constructive eviction  Paid by HRA and/or Section 8  Warrant of habitability  Rent overcharge  Prior stipulation  Security deposit  Constructive eviction  Paid by HRA and/or Section 8 POSSIBLE DEFENSES

Housing or Consumer hat?

 Statute of Limitations: 6 years  Laches: any stale claims?  Discovery: “Material and Necessary”  Service Issues: RPAPL § 735 v. CPLR § 308  Vacating Judgments: CPLR § 5015(a)(4) and CPLR § 5015(a)(1)  Third-Party Discovery: No need for special circumstances  Subpoena Practice: CPLR § 2307 v. CPLR § 2305 (do we even need a subpoena)

What should we be looking out for in these cases?  Trial ready notices saying “no discovery necessary”  HRA/Section 8 was supposed to pay  Rent overcharges and interest from first day of missed rent  Attorney fees – did they assert them, if so what does that mean for us?  FDCPA/GBL Claims

Opportunities for Advocacy

EDUCATING JUDGES Housing court judges need to be aware of the consequences. Consumer Judges need to understand housing law. EDUCATING FUNDERS This is a hybrid area of law and we need more funding and trainings. EDUCATING TENANTS AND THE PUBLIC Tenants need to understand the collateral consequences of housing court cases. Advise tenants about the risk of moving out without “formal agreements.” Keep documents related to housing court case and related defenses. Who is judgment proof? EDUCATING JUDGES Housing court judges need to be aware of the consequences. Consumer Judges need to understand housing law. EDUCATING FUNDERS This is a hybrid area of law and we need more funding and trainings. EDUCATING TENANTS AND THE PUBLIC Tenants need to understand the collateral consequences of housing court cases. Advise tenants about the risk of moving out without “formal agreements.” Keep documents related to housing court case and related defenses. Who is judgment proof?