Eviction Chronicles - Judgment Rendered

After a brutal day in court with my landlord (er, his attorney) we have some clarity.

Recall last Tuesday I was served with an order to appear in court today, less than 7 days later, for a motion to evict me for non-payment of rent, alleged malicious destruction of property, and the alleged interference with the sale of the property.

First of all, it became clear to me last week that my wife and I messed up royally during the course of our March *mediation* with him. Back then, my landlord took me to court because I wanted to use my pre-paid last month rent for March because the house was scheduled for bank auction. After filing to evict me and demand rent, my landlord, er his attorney, actually PAID us the money he owed us (water bill + interest on last month rent = $1,200) AND he said we could stay through April and May provided we pay $2,500 for each month.

What my wife and I didn't realize, was that the opposing attorney snuck in a judgment for *possession* into the agreement. What the bleep did that mean? It was literally a tiny box checked on the form. I thought he already had possession as the landlord. Furthermore, in the course of our mediation, the opposing counsel didn't utter the word a single time. As I said, it was literally snuck into the agreement.

So what exactly is *possession*? Well, apparently when a landlord has it the tenant has basically no rights. The landlord doesn't have to fix anything AND he can pretty much throw you out on a whim.

Hence I wasn't going to the tenant-sympathizing *Housing* Court today; I had to go to District Court where a judge was most likely just going to rule on the legality of the motion - i.e. I didn't pay the April and May rent, ergo the landlord could legally evict me.

I realized all this on Thursday and was downright pissed. All that work, research, and self-defensive legal maneuvering (Board of Health citations, etc.) on my part would be for naught on account of a technicality - *possession*.

So essentially, my landlord barely has to even provide hot water AND he can show the property to buyers at his leisure - the crux of my case was suddenly irrelevant.

And the news got even worse...

I was told by a local attorney back in January that it would cost my landlord $4,000 to hire the sheriff and a moving company to physically evict me. There's no way my bankrupt scumbag landlord would ever put that kind of money up. So my fallback move would have just been to force him to go into his pocket and dare him to physically evict me.

But late last week another attorney, a buddy of mine, told me that the cost for physical eviction was *only $300* and that the tenant (i.e. me) would have to pay to retrieve their stuff.

Crap!

So now my worst case scenario was losing on Monday, getting notified by a sheriff, and having strangers pack up my house in 48 hours on Wednesday.

Double crap!

Could you imagine the injustice of ME GETTING BOOTED OUT OF HERE???

So I scrambled. First of all, we had been planning to move out roughly around May 24th anyway. The movers from my wife's company had already contacted us about a date. But could they move it up to Tuesday or Wednesday of this week? On 5 days notice? They hadn't yet returned my wife's phone calls.

Option 2 - Swallow my pride?

I tried to approach my landlord about a possible compromise. He wouldn't even talk to me. I emailed him my proposal, "$2,500 (half of what he thinks I owe) and I'd move out in two weeks, May 21st." He essentially told me to get lost.

Recall the guy is a lunatic. It'd be highly unlikely that he do better than that in court. A judge would probably give him a judgment for execution (i.e. eviction) OR some money....he wasn't going to get both - I don't think.

My wife calls me later in the day, Friday, and informs me that the movers can come pack on Thursday and load the truck on Friday. So that was comforting. Even in the event of a courtroom loss, I'd inform my landlord that I'd be out on Friday. STILL, he might, out of his palpable spite, decide to sick the sheriff on me right away, Wednesday, before my movers got here. I know I certainly would if I were him! I was definitely worried about this and resolved that in the worst, worst case scenario, upon receiving 48 hours notice from a sheriff, I'd simply run down to UHaul, rent a truck, and conscript my friends to help me load it. But again, that's the worse of the worst possible outcomes. I figured that I had to be totally prepared no matter what happened.

But still, I had one heck of a case and my landlord, with his $5 million, 88 page bankruptcy filing, is not exactly a sympathetic fellow. There was a solid chance that a judge would scoff at my landlord and his refusal to supply hot water during the first week of April, at his Board of Health citations, and at his portfolio of harassment and tell him and his attorney to take a hike. In fact, my landlord's attorney had already prepared for this event - he had already filed (and served me) with a Summary Eviction Notice for May 27th. I would, if I could, argue that is where my case belonged in the first place. That would be a much better venue for a tenant to defend himself AND I could file a response by May 24th and get the case punted for two additional weeks automatically. It'd be mid-June before I ever saw a courtroom - and the bank might well have taken *possession* for itself! (And the bank might well have been offering me $3,000 to vacate the place in good shape.)

I show up in court today at 9am. There's no sign of my landlord or his attorney. The judge comes in fashionably late and starts whizzing through the motions. My stomach is turning with anxiety and the hope that a no-show will default in my favor.

My case is called and I rise up...

Some lawyer dude runs out and gets word to someone...

My landlord comes running in looking like a basket-case....he says his attorney is *coming*.

The judge says he can wait and calls for a 10 minute recess.

Now my nerves are totally frayed watching the clock and watching people come in and out of the courtroom THAT AREN'T MY LANDLORD'S ATTORNEY.

The judge comes back in and starts rifling through the cases again...

My stomach feels like it just did every ride in an amusement park....and I notice on the carpeted floor of the courtroom about 56 disgusting fingernails (none of which were even mine)!

Still, no attorney. My illiterate scumbag landlord is now sitting in front of me poring over the paperwork in front of him. He's going to have to present this case himself - if at all...

Now it's just us left in the courtroom and the judge asks my landlord where his attorney is.

Scumbag - [shaking] He's coming....He's on his way from the airport, getting back from Florida.

Say what? He filed a motion less than a week ago to drag me into court....with a flight that would be cutting it close?

The judge said "OK....I'll hear this one in First Session when he gets here."

I protested. Like a Moron, I stood up and called BS on the judge.

CaptiousNut - Your Honor, if I showed up late you'd rule against me. I couldn't even get an attorney on such short notice.

Now at that, he could have easily jammed his gavel right up my hiney....but he didn't. He calmly asserted that if I had an attorney running late, he'd give me more time.

So out of civil and into a criminal courtroom I went. How fitting for my landlord - only I was the defendant!

There the agonizing wait continued. In the meantime, I got my first experience ever in a criminal courtroom. Some young chick next to me was furiously typing away on her iPhone throughout - though furious in the sense of how a normal broad would do it. Her calmness became a mystery to me when the judge called her before him. This girl had been arrested for her third possession of heroin charge within a couple of months. She was going to jail and didn't show any concern whatsoever.

And then there was a serial alcoholic send to *a bed*; a grocery store shoplifter; someone (else) accused of malicious destruction of property and intimidating a witness; a dude charged with robbing at knifepoint an alleged drug dealer of his cash and needles; and best of all were two drug addict clowns accused of masked armed robbery - one of whom couldn't stop laughing throughout the deliberation.

While I appreciated the distraction, I was still exasperated that the judge had given opposing counsel now 2 hours extra time to show up. And show up he did just then.

About 15 minutes later the judge espies the lawyer, whom he knew well apparently, in the courtroom and tells him to meet with me outside. One thing I learned from this day in court is how common this directive was. I guess, in contradistinction to color TV drama, this is how the creaky wheels of justice mostly turn - out in the hall from ordered mediation.

And during this first courtroom experience of mine, I realized that the judge wasn't really going to be very interested in the details of my case - my pics of dead mice, a flooded basement, and whatnot. He wasn't going to care how slimy my landlord was - or about any of the small (compared to heroin) issues I was all fired up to present.

So out into the hall I went with this lawyer...

Lawyer - What are you offering?

CaptiousNut - Well I offered (dirtbag) $2,500 and to move out on May 21st (11 days later) last week but he wouldn't even talk to me.

Lawyer - Why didn't you send that to us?

CaptiousNut - He didn't tell you about that?

Lawyer - He did, but....you should have contacted us.

CaptiousNut - I'm not offering that anymore.

Lawyer - Why not?

CaptiousNut - Because I had to spend all weekend getting ready for this trial. And because I had to scramble to line up movers in the event that I lost.

Lawyer - What are you proposing?

CaptiousNut - Nothing. I can be out by Friday.

Lawyer - Well, we can evict you immediately...

CaptiousNut - Yeah, you can have a sheriff there by Wednesday and if I'm notified I'll rent a truck and move myself.

Lawyer - Look, you don't want to go down that road. You are opening up yourself to be sued for damages. You still owe (dirtbag) money - one month plus a third of this month's rent.

CaptiousNut - What about all the Board of Health citations? What about him entering my house without authorization? Look, I'm prepared to lose; I realize that I messed up granting him *possession* back in March.

And this went back and forth several times. Really, it was a discovery process for the attorney. He tried to act all calm and friendly but I knew he was just trying to get the gist of my argument so he wouldn't embarrass himself in court. But I was doing the same, to an extent anyway, or so I thought.

For example, in this motion filed against me, where dirtbag accused me of *trying to frustrate the sale of this property* his attorney wrote:

....Tenant has refused to allow access for the showing of the property and has continued to actively interfere in all efforts to sell by making false and defamatory statements to potential buyers. These actions have been done with the express intent to frustrate the sale of the property. Tenant has even gone so far as to advertise the property on Craigslist with the express intent to interfere with any potential sale of the property.

And during the course of our hallway *mediation*, the attorney brought it up.

Lawyer - What was that Craigslist ad all about? You know, advertising someone else's property for sale on the internet like that is a big deal. It's a serious offense...

CaptiousNut - Hah! That ad just proved that IT WAS THE BANK WHO WAS SELLING THE PROPERTY AND NOT YOUR CLIENT. AND WITH THE MIDNIGHT BANKRUPTCY FILING IT PROVES THAT THE ONLY ONE TRYING TO FRUSTRATE A SALE WAS YOUR CLIENT.

Lawyer - Well then what was the ad for?

CaptiousNut - I was going to grant access to my house for any auction bidders....I was going to charge them $100 apiece - a number they'd surely cough up before bidding several hundred thousand dollars on a property without otherwise seeing the inside of the house.

Now I realize that I messed up here, again. I should have not given my counterargument to opposing counsel here for free. Obviously, in hindsight, he didn't fully understand the issue and had he brought it up in court I would have embarrassed him for his ignorance.

But I also learned a thing or two from this conversation. I learned that one of my claims - the harassment from my landlord running his unauthorized businesses on the property - had already gone to court three years before. And the court ruled in favor my landlord. So that was an issue I now knew not to push in front of a judge.

Lawyer - So it looks like you want to continue fighting...

CaptiousNut - I absolutely do not. I want to move on.

Lawyer - Well then pay the man what you owe him. You've inflicted serious harm on him with all this. He's really hurting.

CaptiousNut - I can't pay him, not when he's made my life a living hell for the past 5 months. How much do you think I should deduct for all the deferred maintenance and the loss of hot water?

Lawyer - Deduct $200 from April rent and pay for 10 days of May. (about $3,300)

CaptiousNut - Only $200?

Lawyer - Yeah.

CaptiousNut - I already had to pay the plumber $100. You think no hot water for nearly a week, for the fourth time is only worth $100.

Lawyer - No. I'm giving you $200.

Obviously, the guy didn't understand the math. This went back and forth a bit more. The attorney told me I should pay up because it was the right thing to do. And he even threatened me with a defamation suit. He said that dirtbag's new employer (whom I called a little while ago) was willing to sign an affidavit testifying to the fact that I *defamed* my landlord.

CaptiousNut - Well I could pay all the rent money you are demanding and (dirtbag) could still bring a defamation suit against me. So I'm not afraid of that threat.

Lawyer - IT'S NOT A THREAT. I'm not threatening you in any way....

Lawyer - You need to pay the man his money.

CaptiousNut - I'll tell you what, I'll pay $1,200 and be out by Friday.

Lawyer - No. Let's go see the judge.

CaptiousNut - You're not even going to take that offer to your client?

Lawyer - Nope. Young man, you're taking a big risk.

CaptiousNut - Let's go see the judge. I'm totally prepared to move out.

Ten minutes later, the judge calls us.

Judge - Why didn't you pay your rent?

CaptiousNut - I had no hot water. I lost hot water on March 30th and the landlord was completely non-responsive. I had no hot water for a week; this was the fourth time I had lost hot water; and it was a problem that the landlord was cited for by the Board of Health.

Judge - Let me see the citation. (he read it)

Judge - But all these (Board of Health) issues were there before you entered an agreement for judgment.

CaptiousNut - But there's been a whole lot more. We have a gas leak on our stove; we have rodents in the house; the landlord is entering my house without notice and without permission; the house in the late stages of foreclosure; he's trying to harass us out of there so he can homestead it to delay another auction....

I tried to cram as much stuff in there as I could. Again, from my earlier experience in the courtroom I could tell that these details were not going to interest the judge much. After all every landlord/tenant relationship has a contentious history. I did my best, in my 30 second opportunity to convey the worst about my personal situation.

CaptiousNut - The living conditions are so bad, I want relief from that judgment. I'm prepared to move out May 21st. I have kids in school that they need to finish up.

Judge - (to opposing counsel) What's the problem with that? It's only 10 days away?

Lawyer - That's not acceptable to us. Money is owed.

Judge - Has there been any deal offered?

CaptiousNut - I offered him $2,500 and a May 21st move out date last week (turning around toward landlord indignantly) AND HE WOULDN'T EVEN TALK TO ME.

Judge - Are you offering that now?

CaptiousNut - No. I'm not because he dragged me into court. I offered only $1200 now and to move out this Friday.

Lawyer - That's not acceptable to us.

Judge - What is this about *malicious destruction of property*?

Lawyer - (slowly, stammering) Things were functioning properly before we signed the agreement....so we assume that he damaged them since then.

CaptiousNut - WHY WOULD I DAMAGE MY STOVE? I have a burner on my stove that shoots flames out and is a fire hazard....I have children in the house that can reach it...

Here I should have gone ballistic and accused THEM of making false and defamatory statements. That lawyer included an accusation in the complaint that had ZERO BASIS in fact. In hindsight, I should have expressed every ounce of the indignation I felt. I should have yelled, "Your Honor, this is exactly the type of harrassment I've been subject to. They make completely bogus accusations and then I have to answer them in court! It's legal harrassment!"

Judge - If he pays $1,200 execution is stayed until Friday.



Out in the hall, I wrote a check for the dirtbag and handed it to his attorney who said, "We'll deal with the balance of what you owe later on."

In other words, he was threatening/promising to sue me for probably $2,500 plus, I would assume, damages. This would really suck as I'd have to come back up from New York to fight it. He knows that and even said in the course of our prior talk, "Pay the man what you owe him. You don't want to have to come all the way back up here from New York for court again..."

While I do very much want and need this thing to be over, it looks like there's more to come. At some point, and we may already be there or past it, I have to do a calculation of how much time and effort I'm expending over a couple of grand. I know full well that's what he (and his attorney) are banking on; and that's precisely how he stole so much money from plumbers, contractors, former tenants,....by wearing them out to the point where they figure it's not worth it to fight over $500 here or $3,000 there. While it was never about the money for me, it was about the moral obligation of standing up to a bully crook, still I have other stuff to do - I have to get on about building a new life for my family, and maybe a new career in New York.

A lawyer friend of mine told me, given that expressed threat, to expect a regular *breach of contract* lawsuit from my landlord - if he in fact pursues the matter. I would think they try to serve me with a notice in the next couple of days before I disappear to *somewhere in New York*.

So....did I win or lose? Or should I be judged on *how I played the game*?

I felt like I lost. I was sick to my stomach afterwards and I don't understand why. Maybe I've worn myself out fighting this matter; maybe I was hungry; maybe it was the stock market bouncing 400 points yesterday?

The inherent problem with my case, aside from not being a tenant under the protection of a lease, was that by arguing strenously that my house was *unlivable*, in order to forcefully make that arugment, I have to planning to move out soon. In the end, my landlord, via his negligence and harrassment, did in fact force me out. And that'll be my defense later on should I be sued for monetary damages.

On one level I did win. I offered my landlord $2,500 last week and he turned it down - probably, along with his lawyer, assuming I would still be willing to pay that much, if not more, in a court. Since he only got $1,200 from me, I won that little game-within-a-game. Recall my pedigree as an option pit trader. I know value and I know that when a good offer is made and rejected you have to make penalize the pigs who held out for more; you have to reduce your terms. Only amateurs bid-and-offer less than they are willing to commit to with a hope of splitting the difference later on. In my email to my landlord last week I told him point blank that I would offer this deal if I had to waste my weekend preparing for court.

And I also won in the sense that the opposing counsel turned down my offer in the hallway only to be forced by the judge to accept it. I could have done worse, and I could have done better. The judge sliced the baby in half and moved on to the next case. Later on I'll do a post on *how I should have argued*.

But still, I didn't feel good about the outcome at all. Usually after these things there would be implicit relief in their closure. But there was no closure here with his attorney promising to keep coming after me.

I'm mildly upset at myself too - for granting *possession* to my landlord back in March. Ask almost anybody and they have no idea what that legal term means. Perhaps I read the agreement too quickly before signing. I'd have never given up any more of my rights as a tenant had I known what it meant - especially given the situation with my negligent landlord. Would having a lawyer have helped me? Sure. But it would have cost money too. I dealt with a Summary Evictions Notice and two Motions all on my own. An attorney would have cost at least $1,000 for all that. And what would it have accomplished? We were voluntarily planning on moving before the end of May anyway. So we moved a couple of weeks earlier. So what?

But I don't beat myself up over my mistakes - recall I've been a trader for 15+ years and hence demonstrably wrong at least 70% of the time.

Back in April, when this nonsense started up again with a loss of hot water and the scumbag demanding access to *show* a house he could never in a million years sell....my wife and I promised that we would fight him but not to the point where it spoiled out time here. On that mission we failed miserably. It was simply too hard to keep this last battle unemotional. It'd be one thing if the house was simply falling apart. But the killer was the physical presence of my landlord on the property, right outside my window, at all hours, every single day. It's tough to ignore a jerk of this magnitude who's on your doorstep all the time. Heck, not only are his victims customers rolling in and out of my driveway all the time, and not only he is lingering in his *office* past midnight dreaming up new theivin' schemes, but his teenage kids drop in whenever they feel like it (with their punk friends) and even his dog is here all the time.

As I've said before - the past 2.75 years here on Boston's South Shore, a place, despite being a native Ma$$hole I knew nothing about 3 years ago, my time here has been the most joyful of my entire life. Ideally I would have been able to spend my final days here saying goodbye to our friends, having one last huge barbecue at the house, and hitting, one last time, all the local places around here that had become special to us - instead of fighting with a dirtbag over a couple of grand.

Here's what I wrote most presciently about the scumbag over 2.5 years ago, after I had just got to know him a bit:

Now before I even signed my lease with this guy I knew he was in financial straits. He was trying to sell this particular house we rented for over $1 million but I knew from researching the area that it wasn't worth a nickel over 700k. Furthermore, he candidly told me that he owed $1.2 million in mortgage debt on the property AND that he owed $1.8 million on his abode. I Zillow-stalked him a bit - meaning I researched the size and value of his other house and learned that it also was worth much less than its debt load. And it suffices to say that every other bit of info I discovered about this guy literally screamed that he was tapped out and broke. So I knew what I was getting into from the get-go.

The guy wanted "first, last, and security" upfront - $7,500 ($2,500 in monthly rent). We signed the lease and Fedexed it to him with our check on July 3rd. On July 5th, the guy literally called me four separate times asking where the check was. I said, "Hey buddy, settle down. Yesterday was a holiday. If it's not there later today, it will be there tomorrow or the next day. We aren't moving in for a month. What's the big deal?"

Don't think for a moment this guy deposited the money in an escrow account as the more professional landlords would do. He obviously needed it to pay his personal bills forthwith.

Renting from this guy was making me more nervous by the second and we had a month yet before we moved in. Once we did, he effectively only had $5,000 of our money that we could lose. Since we would not be paying rent again for our "last" month, he would effectively only have $2,500 to hold over our heads. My wife remains very concerned about this clown we rented from - especially after I just relayed her the conversation I had with the previous tenant. I had to remind my wife that our monetary risk was a mere $2,500 and that I lose that kind of money in split-seconds trading. Everything one ever does has financial risks. The trick is to stay on top of their probabilities and magnitudes.

It also goes without saying that the landlord always takes on more risk than the renter who could just stop paying rent at any moment. In most states it will take many months for a landlord to get an eviction notice executed on a non-paying tenant. I could very well decide not to pay my penultimate month's rent - as well as the "last" month's - and leave the landlord with effectively no security deposit to withhold. I'll cross that bridge when I come to it.

Outside of the security deposit, tenants still bear other risks while renting from a bankrupt landlord. For one thing, he'll skimp on maintenance. I already noted that I have a fire hazard of a chimney that my landlord won't deal with. There's also the general issue of having a business relationship with anyone who is losing their shirt. They'll be understandably ornery. I once worked for a guy who was losing millions in his own trading accounts. The bastard took it out on me and that effectively ended our partnership. I don't know that most people have ever seen acquaintances, friends, or colleagues lose their entire livelihood via bankruptcy but I can assure them, it's nothing you want to be a party to. It doesn't matter whether the outcome is bad luck, tragic, or even due justice. I guess just as waiters and bartenders tend to over tip, as a trader well-accustomed to losing money, even when some people that I loathe have gone broke I feel for them.

My landlord is a phenomenally nice guy. He does just about everything he can for us but financial realities are tough to overcome with a smile. I'd be really surprised if our rental/business/personal relationship didn't deteriorate rapidly over the next few months. I've just seen this movie too many times.

Well, it lasted, thanks to banks *not foreclosing*, a whole lot longer than I ever expected it to.

In effect, despite the late innings disaster, I have to say that on some level, by being able to stay in this house for the reasonably cheap rent we paid, that I benefitted from the banks' foot-dragging.

Going forward, the packers will be here on Thursday and the truck will be loaded on Friday. The only loose end we have here is my daughter's dance recital on May 23rd. So I am going to squat a my parents house in Worcester for a week - hopefully getting in a few rounds of golf - and then come back out here next weekend for the recital (before heading down to NY). My wife is busy as $hit with her new job and she'll be in Miami all next week because of it. Much of her new staff is based there and, hopefully, she'll be able to work out of that office in the wintertime. Therefore my future snowbird plans are shifting across Florida from Naples to Miami. THAT I'm very much looking forward to. (I like to walk South Beach with my head swiveled landward.)

As I mentioned earlier in this post, with promised future suits, these Eviction Chronicles might not yet be over.

HOWEVER, realize that we are moving in the the MIL on Long Island. So I'm trading one monstrous landlord for another, i.e. there'll be NO decrease in abode blog material!

Note she's not only a veteran landlord in her own right, but also a meticulous reader of this blog. No doubt she's taking careful notes and will be fortifying *possession* claims before we move in!