Should I file my own (counter)suit or just respond to eviction suit?

Status
Not open for further replies.

tremmor

New Member
Thanks for looking I'll try to make this as brief as I can...

I'm afraid that if I just respond to an eviction suit my landlord is about to pursue I may not really be heard by the judge on the merits of my side and instead he may just grant them their eviction and tell me I have to bring my issues about how I have actually paid the rent before another court/judge. This would leave me having to scramble to pack and move when really I'm in the right and shouldn't have to move (at least not without 2 months notice). Also I'm wondering... if this (the worst) did happen how long would I have to pack and get out if the judge granted the landlord the eviction? This is in Dallas, TX.

That's the jist of my problem and what I need advice on... here are the other salient details:

I've been in my current apartment since 10/2005 when I moved under a deal with the landlord because they wanted to tear down my old building while I was still under lease. I negotiated moving to another of their properties at the same rate I had at the old place (there were other non-relevant concessions). I then signed a new 1yr lease 01/2006 codifying the rent at $495/mo (they told me this place went for $100 more a month normally).

When the lease term ended in 01/2007 I was told orally (I think over the phone) that I could sign a new lease or go month to month but the rate would be the same whichever I chose. The lease automatically renews month-to-month unless either party gives 60 days notice.

I was unsure if I wanted to stay anyway because the location wasn't ideal for me, but ended up staying because moving is such a chore... but I started paying $100 more/month then for a few reasons: I knew I didn't have a guarantee that rent wouldn't go up with more than 2 month notice; I was thinking of moving and wanted to know if I could handle that much more of a payment; and I had tried saving money in a savings account before and because the money was too easy to get to I never ended up saving any significant amount. I wanted to build up a buffer so in case I had money difficulties later I would be covered on rent for a while. I did this for 16 months and should have had $1600 pre-paid built up when...

This time came last month when I had to use some of my buffer because I'm unemployed and looking for new work. But I got a Notice to vacate for non-payment of rent and so went to clear things up with the manager (who is the 3rd or 4th since I moved in and she wasn't there when my lease was signed). She tried to tell me that I had no buffer that instead I had been paying $100 extra every month all this time as a "month-to-month" fee. I had never heard anything about this until then and I went home and re-read the lease carefully and nowhere in the lease does it say anything about any $100 month-to-month fee.

Then they sent a letter telling me that effective 08/2008 my rent would be going up to "$660.00 (market rate on this unit) plus our standard $100 month to month fee ..." or I could renew a lease at a rate of $610/mo.

After several talks with her I got nowhere and she informed me that she'd be filing for eviction early this month. She also said I should have got a letter like the one they just sent about increasing my rent, back when my lease term ended, but I never got any such letter. She even showed me a large binder full of such letters sent to residents but could not show me one such letter that was sent to me. It was a different manager but I never got any such letter. I also found one clause in the lease when I re-read it buried deep in the lease under 33. Miscellaneous:

"Written notice to or from our managers constitutes notice to or from us. Any person giving a notice under this Lease Contract should retain a copy of the memo, letter, or fax that was given, as well as any fax transmittal verification. Fax signatures are binding. All notices must be signed. Notices man not be given by email."

I'm not sure but I think this means they would have to have kept such a notice that supposedly should have been sent to me informing me of any extra $100 month-to-month fee like they have with that binder full of notices... but they couldn't find one sent to me because there was never one sent to me.

Hope that wasn't too long, but I think it describes the situation thouroughly and accurately. I can't afford the rent right now so I can't afford to hire an attorney to help me, but I'm a pretty bright guy so I hope I can represent myself competently. Any advice would be GREATLY appreciated!

Thanks,

tremmor
 
Eviction is legit since you have not paid your rent as stated on your lease agreement. The only thing you can try to buy is time if you fight them in court due to negligence on their part when it came to the notices. Good Luck!
 
Eviction is legit since you have not paid your rent as stated on your lease agreement. The only thing you can try to buy is time if you fight them in court due to negligence on their part when it came to the notices. Good Luck!

But that's just it... I have paid my rent, I just paid it in advance. I don't think they can just essentially raise my rent by $100/month without notifying me. I had been paying $100 more than my lease stated I needed to for 16 months so I had indeed paid for almost 3 months in advance!

But is it best to just respond to their suit or to file my own suit separately?
 
Respond to their suit and file a countersuit stating that due to the arrangement you had with them, when adding up the additional $100, it adds up to the equivalent amount of three months rent. Make sure you have the receipts to show the courts as supporting evidence. Good Luck!
 
Respond to their suit and file a countersuit stating that due to the arrangement you had with them, when adding up the additional $100, it adds up to the equivalent amount of three months rent. Make sure you have the receipts to show the courts as supporting evidence. Good Luck!

Thanks presutin for the advice, I really appreciate it. I've got all my cancelled checks and my lease which spells out what I should owe per month. I guess I just have some process questions left like:

Do I wait until I am served with the eviction suit by the landlord and then in responding to that assert my countersuit (or is that even possible)? or
Do I not wait and just go to file my suit directly and independent of theirs?

and how would I do that? Which court would I need to go to? Small claims court? I assume I just ask the court clerk for something to fill out with the info of my case then file it with the court and give a copy to the landlord but I 'm not sure as I've never done this before.

Also I'd like to prepare as much as possible for the worst... so in the event that an eviction is granted, is there some set or standard time I would then have to move out or can they simply go right back to the unit after leaving court and start moving my stuff out themselves? I need to know how much time I would have in that situation. Also, how long does the case usually take to come to court?
 
Thanks presutin for the advice, I really appreciate it. I've got all my cancelled checks and my lease which spells out what I should owe per month. I guess I just have some process questions left like:

Do I wait until I am served with the eviction suit by the landlord and then in responding to that assert my countersuit (or is that even possible)? or
Do I not wait and just go to file my suit directly and independent of theirs? You can file your suit directly independent of theirs.

and how would I do that? Which court would I need to go to? Small claims court? That is correct I assume I just ask the court clerk for something to fill out with the info of my case then file it with the court and give a copy to the landlord but I 'm not sure as I've never done this before. Contact the SCC clerk in your town to get all the forms you need to file your claim.

Also I'd like to prepare as much as possible for the worst... so in the event that an eviction is granted, is there some set or standard time I would then have to move out or can they simply go right back to the unit after leaving court and start moving my stuff out themselves? I need to know how much time I would have in that situation. It depends on your state's landlord/tenant laws - ask the town clerk what are the timeframes in your city for that process to take place. Also, how long does the case usually take to come to court?
 
Last edited:
You need to file your answer and counterclaim in one suit.

Ok now I'm a little confused because this answer contradicts presutin's answer and you both have a lot of experience (at least on this forum).

If I can both answer and file a counterclaim in one suit that would probably be easiest for me, but that would mean I would have to wait until I am served with their suit before I can do anything. Does anyone know if it does work that way in Dallas?

Or if both are possibilities (so I can either file independently or in response to theirs with my counterclaim) which would be more advantageous for me? BTW, thanks so much for your time and kind advice! :)
 
Check your landlord/tenant laws in Dallas. Again, you have the option of filing your suit separately or countersuing when you receive the eviction notice. However, with courts being so slow to accomodate everyone, you may get evicted before you have a chance to get your landlord to court to state your suit regarding the overpayment of your rent. Do what you deem is in your best interest. Good Luck!
 
However, with courts being so slow to accomodate everyone, you may get evicted before you have a chance to get your landlord to court to state your suit regarding the overpayment of your rent.

Yeah it's sounding to me like the best option is just to wait for the eviction notice and then answer/countersue so both cases will be heard at the same time and I don't risk getting evicted before my side is heard. Are eviction hearings also held in small claims court?

Also, yesterday I got a "Notice to vacate for non-payment of rent, utilities or other sums" from the landlord telling me to get out by July 6th, which I'm not planning on doing. However it says "Your failure to move out then will result in appropriate legal action by us before the Justice of the Peace."

So I'm thinking this is not what I need to answer right? I need to wait for something telling me I have to appear in court and how to respond--which probably won't come until sometime after the 6th... correct?

Thanks again to presutin and lwpat for your valuable advice. Hope ya'll have a happy 4th of July!
 
I would respond to their letter outlining why you do not owe the rent and making any of your other claims. Send it CRRR. Do not just ignore it.
 
I would respond to their letter outlining why you do not owe the rent and making any of your other claims. Send it CRRR. Do not just ignore it.

Thanks, that's a good idea I'll do that. I also secretly recorded the conversations I had with the manager with my digital voice recorder, though I'm not sure I should bring that up at trial except maybe to refute any claims that they didn't know my side of it... which this letter sent CRRR will do. Although I won't be able to send the letter until Monday which is a day after the day I'm supposed to move according to their notice to vacate. Still it's better than not responding at all I guess.
 
So yesterday I sent a response to their Notice to Vacate CRRR and so far I still haven't been served with eviction papers.

I went to try and read up on the procedure to figure out how I would file my counterclaim at the Dallas County SCC website... I did notice it said somewhere that if either party paid $5 and requested a jury trial they could get one... does anyone think it would be a good idea for me to request a jury vs. the judge?

I'm a little concerned however also because their fees listed did not include one for filing a countersuit (though it was like $27 I think to file an initial claim plus $70 for service) so I called them and was told it would cost $1000 to file a counterclaim!!! When I expressed great surprise given it's $27 to file an initial claim she told me I was looking at the SCC fees and that this was different because it's an eviciton suit. Could she be mistaken (hopefully)? If she's right I won't be able to afford to file a counterclaim.

In other answers I found out from the SCC it takes 10 days from service for the case to come to trial and if the worst were to happen and an eviction was granted I'd have 5 days to file an appeal after which they could go to the constable to have me forcibly removed and they have to post 24 hours notice before doing so... I'm really hoping it doesn't come to that.

I'm also wondering, if it really is that expensive to file a counterclaim, would it be just as good for me to simply answer their suit with all the claims I would make in a countersuit anyway and not actually file a counterclaim... because by the time it gets to trial almost 2 out of the 3 months worth of buffer I built up would be essentially used up since I haven't paid them anything since June, leaving probably around $550 left for me to recoup if I won my case completely and they lost completely... that isn't worth it if it costs me almost twice that just to file.

Any thoughts/ideas would be highly valued by myself... and thanks so much to the good guys keeping this forum a great place for people like myself to help themselves. :)
 
Last edited:
Status
Not open for further replies.
Back
Top