Archive for September, 2008

The Arrogance of Confidence

Friday, September 19th, 2008

It is frustrating when renters ignore advice about their precarious positions, and then waltz into court thinking that the facts and their righteousness will carry the day. Let me tell you, dumb ass, I told you so.

When he said he had tendered the rent, but the landlord just sat on it instead of depositing it, I asked: Do you have a receipt? No, he did not.

When he said he mailed it, I asked: Did you use a cover letter? No, he replied. I asked: Did you mail it certified, or even with a certificate of mailing? No, he said, just regular mail. But, he insisted, he had a history of always mailing rents by regular mail on the first of the month, so no doubt the court would accept his version.

The court hearing was set right in the midst of his imminent, pre-planned, overseas vacation. I suggested that he retain an attorney to pay to the landlord’s attorney the base rent, late fees, court costs and attorney fees in accordance with A.R.S. § 33-1368(B). That way, the whole situation would go bye-bye, and he could do the holiday. He called the referral attorney, but opted to proceed on his own. Mr. Tenant cancelled his vacation, showed up in court wearing a suit and tie and carrying a huge swath of documentation, at which point the opposing attorney was supposedly blind sided and sought a continuance, which was granted. Great, I said, you got lucky. Go pay the rent and/or hire the attorney to represent you.

But now the guy was breathing fire and brimstone. He was irate that the other side was adding to its claims, seeking back rent that was not due. HE HAD THE EVIDENCE, he declared, and so his case was invincible. He thought the landlord’s attorney was a dope. No, I told him, this guy is a bulldog. The courts are biased.

He did not call my attorney referral back. Last time we spoke, he had his hearing without attorney representation, and the court had just granted the landlord judgment for over $7,000. The tenant was determined to appeal by posting a bond of over $9,000. He had the money, believed his case had merit, and he was sure he would ultimately prevail.

Yeah, likes pigs wear lipstick.

If this guy had just paid the $2,000 or so rent he legitimately owed, plus swallowed the late fees and, later, court costs and attorney fees, that would have been the end of it. But some people are determined to fight, when instead they should take their lumps and fold, awaiting a more propitious battle.

Listen, people, stop cruising for a bruising. There are no brownie points gained by proclaiming your case to someone, i.e. a justice of the peace, who doesn’t give a damn. The system has power and authority over you, so you need to finesse it, using a professional. Let your ego go. You, Mr. Tenant, may have won a court battle in the past, and may be a very capable businessman or whatever, and you may even have nice clothes and cologne, but you need to realize the deck is stacked on this one. Your performance will fall on deaf ears.

Sheriff Joe has 24 square inches of space where you can sit your dumb ass, just like everyone else he chooses to target.

- Ken Volk -

Small Claims: for Small Minds with Slim Pickin’s

Wednesday, September 17th, 2008

Don’t. Just don’t.

If you think you’re going to get a fair trial in Small Claims, think again. There is no appeal from a Small Claims case. So, this leaves the justice of the peace (JP) or hearing officer free to act out his/her inclination.

Now, what do you think a typical JP or hearing officer, left unaccountable for his or her actions, is going to do? Answer: screw the tenant, big time.

This is not hyperbole. Even in the civil division of justice court, where at least the JPs are subject to the accountability of the appeals process, tenants are still treated horribly.

In 2005, the William E. Morris Institute for Justice published “Injustice In No Time,” a study of how tenants fare in the civil division (not Small Claims) of Maricopa County justice courts. A few of the findings:

*When evictions cases are before the courts, in a single hour between 30 and 60 cases are heard.

* Approximately 40% of the cases lack crucial documentation on how tenants are served the summons and complaint.

* Most court files do not contain copies of the leases, yet judgments are given for lease terms regarding payments in amounts more than originally sought by landlords in their notices, and often even more than is requested in the complaint – far in excess of rent owed.

* Factual disputes between landlords and tenants invariably are ruled in the landlord’s favor.

* Many times, immediate (also known as, material and irreparable) evictions are granted without any evidence presented.

*Of 626 court cases observed, only three tenants who appeared before the court were successful and had their evictions dismissed. Not one tenant was awarded a monetary judgment.

In my opinion, the only way that a renter has any chance of succeeding in court is by having attorney representation. But attorneys are prohibited in Small Claims.

Recently, I was exposed to a Small Claims case where the landlord did not appear, but instead just used his manager, who had no ownership interest in the business. This was contrary to court rules. The tenant raised this issue to the hearing officer, who disregarded that essential fact. In fact, the property was illegal to occupy as a rental, but that, too, was rebuffed.

JPs are not attorneys, but depend on landlord attorneys for their on-the-spot legal education. So the JP or hearing officer has an inherent bias, taught by landlords. From a JP’s molded perspective, renters are less than human. Think of it as akin to racism. But, like any competent con-artist, it will be cloaked in all sorts of pomposity, highfalutin self-serving mumbo jumbo and, at times, hints of deference or compassion.

Conversely, tenants are generally clueless about the law and court procedure. Even the rare tenant who raises an intelligible defense will be given short shrift.

Then the ax falls. The justice court system is a slaughterhouse of tenants, institutionalized under the imprimatur of law and government. Its purpose is to maintain the power of, and enrich, the ruling elite landlords and their proxy attorney guardians. Small Claims is the worst of it.

Court is always an uphill battle for any tenant. Why make the odds even more overwhelming? Whether you have a Small Claims case filed against you, or if you are the plaintiff who initiated the action, immediately remove it to the civil division of the justice court. Then, retain an attorney or you will regret it.

- Ken Volk -

Signing Your Life Away

Friday, September 5th, 2008

On the telephone, Shawna (not her real name) was sure she had a case. She had appeared in court, patiently awaiting her turn to plead her case. The landlord’s attorney did not show up, which should have meant a default judgment in Shawna’s favor. Yet, as she explained, the JP evicted her anyway.

On top of that, she had paid $5,000 to the landlady as a refundable deposit to prospectively purchase the property, but now was being told she would get none of it back. Shawna was breathing fire and brimstone, and was prepared to pursue legal options.

Although the court judgment was beyond the appeal time frame, I thought the egregious nature of the illegalities might provide a basis for a Special Action. As the prospects sounded intriguing for an attorney referral, we set an appointment.

Turns out, Shawna’s case was without merit, because whatever legal rights she might have had, she waived.

On the subject of the deposit, the paperwork contradicted what the landlady verbally stated. The lease clearly designated the payment as non-refundable. Shawna told me she would not have handed over the funds if she had known the money was non-refundable. But she trusted the landlady, and failed to read what was presented to her.

As to the court case, yes the landlady’s attorney did not appear. What happened next, however, was truly unethical. Shawna explained that a court clerk pulled her out of the courtroom where she had been awaiting her hearing, and presented her with a stipulation agreement prepared by the landlady’s attorney. The court clerk merely instructed her to sign it; Shawna complied, again failing to read through and understand what she was signing: it was an acknowledgment of her breach of contract and law, waiving any right to seek a new hearing or appeal, and that she would vacate.

The only remaining issue was that the landlady did not store Shawna’s personal property for the requisite 21 days following lock out, but instead promptly put it out on the street. I asked Shawna if, despite this, she had recovered most or all of her property. She replied that she had. I asked her if she had any significant monetary damages related to her personal property. She replied that she did not. So, she had nothing to claim as actual damages suffered relative to her personal property. Not much of a case to pursue.

Shawna expressed that the landlady and court clerk had seemed so nice. They were out to work with her, to help her — or so it seemed. Instead, she was conned. The landlady, who apparently owns many properties, has her scam down to a science. . . reel them in, verbally deceive them, get huge non-refundable down payments, then claim breach of contract/law and evict them so as to keep every penny.

People like Shawna are ready marks for unscrupulous landlords. Tenants should always be represented by counsel in court. Tenants should never sign documents prepared by the landlord’s attorney. In fact, I would never even privately meet with the landlord’s attorney, because the attorney is professionally astute at manipulating tenants, who generally are naive and readily manipulated. Remember, the landlord’s attorney, no matter how reasonable, calm and collected he or she appears, is there to represent the opposition’s interest at the expense of the tenant – you! The same generally goes with the judge or justice of the peace, who is prone to be favorably inclined for landlords. Obviously, as evidenced in Shawna’s situation, the same applies with the court clerks. Definitely a stacked deck.

So, always, always, read and understand what you are signing. Do not accept the interpretation of someone whose interest is likely to run counter to yours.

If you are reckless with your signature, then you, yourself, are primarily to blame.

As John McCain is reported to have said, it’s all a fucking scam. Watch your backside.

- Ken Volk -