Lease + Cash = Face Palm
February 12, 2010 9:08 AM Subscribe
Bad legal decisions, a shady lawyer and bears, oh my!
A relative made a poor decision and agreed to be the lease-holder for a friend's apartment. The friend moved out after a year, the length of the lease. All rent payments were made in cash directly to the renter, without involving my relative.
Over a year has elapsed since this took place. No attempts were made to contact my relative in the interim. Out of the blue, I received a call from a lawyer looking for my relative with regard to a legal matter pending on his desk.
Passing the information along, my relative struggled to get a hold of the lawyer, but eventually succeeded a few days later; the lawyer claims that the last two months of rent were not paid. Upon insistence that the rent was paid, the lawyer asks for proof and states that if none is available and this goes to trial, my relative will wind up paying the rent as well as both sides' legal fees.
Does this smell fishy to anyone? Why wait a year without any contact? Why did they contact me rather than her? Is is true that she would be responsible for his legal fees if this goes to court and she's found liable?
Other than "lawyer up," any advice. We're in New York, since I imagine that's relevant.
A relative made a poor decision and agreed to be the lease-holder for a friend's apartment. The friend moved out after a year, the length of the lease. All rent payments were made in cash directly to the renter, without involving my relative.
Over a year has elapsed since this took place. No attempts were made to contact my relative in the interim. Out of the blue, I received a call from a lawyer looking for my relative with regard to a legal matter pending on his desk.
Passing the information along, my relative struggled to get a hold of the lawyer, but eventually succeeded a few days later; the lawyer claims that the last two months of rent were not paid. Upon insistence that the rent was paid, the lawyer asks for proof and states that if none is available and this goes to trial, my relative will wind up paying the rent as well as both sides' legal fees.
Does this smell fishy to anyone? Why wait a year without any contact? Why did they contact me rather than her? Is is true that she would be responsible for his legal fees if this goes to court and she's found liable?
Other than "lawyer up," any advice. We're in New York, since I imagine that's relevant.
Best answer: I can give you no advice, since you don't want the advice of lawyer up. If I was able to give the advice of lawyer up, I would. Especially because they have one. Its a common situation to be intimidated and do the wrong thing. I've done it to unrepesenteds on behalf of my clients before. If I could advise you to lawyer up, I would advise you to contact a local tenant's rights organization.
posted by Ironmouth at 9:18 AM on February 12, 2010 [2 favorites]
posted by Ironmouth at 9:18 AM on February 12, 2010 [2 favorites]
Best answer: Much will depend on how much the rent was. It's extremely unlikely that the landlord can prove that the rent was NOT paid -- especially since payments were always in cash. I suspect (though IANAL) that a judge might dismiss the whole thing as a case of one person's word against another -- especially since so much time has passed.
Just to be on the safe side, though: Has your relative contacted the friend to see if, by any chance, they got and kept receipts for the cash payments? At any rate, your relative should let the friend know what's going on.
I don't think there's anything fishy about it. If it were me, I'd probably send the lawyer a polite and carefully worded letter explaining that all rent due was paid -- in cash -- by the person who was living in the apartment and that, if the landlord has some actual proof that this is NOT the case, you'd be delighted to review it. And also that, barring the existence of any such proof, your relative has no further interest in discussing the matter with the lawyer.
posted by rhartong at 9:30 AM on February 12, 2010
Just to be on the safe side, though: Has your relative contacted the friend to see if, by any chance, they got and kept receipts for the cash payments? At any rate, your relative should let the friend know what's going on.
I don't think there's anything fishy about it. If it were me, I'd probably send the lawyer a polite and carefully worded letter explaining that all rent due was paid -- in cash -- by the person who was living in the apartment and that, if the landlord has some actual proof that this is NOT the case, you'd be delighted to review it. And also that, barring the existence of any such proof, your relative has no further interest in discussing the matter with the lawyer.
posted by rhartong at 9:30 AM on February 12, 2010
Oops. I left out part of what I was going to say. It will depend on how much the rent was because if the cost of having a lawyer pursue the thing all the way to court is MORE than what is owed, it may be that the lawyer isn't going to do anything more than just send out a few threatening letters.
posted by rhartong at 9:33 AM on February 12, 2010
posted by rhartong at 9:33 AM on February 12, 2010
Ironmouth's advice is the correct advice, both as to the advice you don't want ("lawyer up") and as to the mechanism by which to do that ("call a tenant's rights organization").
posted by devinemissk at 9:42 AM on February 12, 2010
posted by devinemissk at 9:42 AM on February 12, 2010
Best answer: "Upon insistence that the rent was paid, the lawyer asks for proof and states that if none is available and this goes to trial, my relative will wind up paying the rent as well as both sides' legal fees."
Really, the lawyer should be saying that the relative *could* wind up paying that. Absent a settlement, judges decide the outcome of cases, and not lawyers.
If someone sues you and it is not in small claims court, get a lawyer.
posted by soelo at 9:47 AM on February 12, 2010
Really, the lawyer should be saying that the relative *could* wind up paying that. Absent a settlement, judges decide the outcome of cases, and not lawyers.
If someone sues you and it is not in small claims court, get a lawyer.
posted by soelo at 9:47 AM on February 12, 2010
Best answer: Don't worry about it until something's put down on paper, it's just intimidation right now.
If it goes to court, I would take the opportunity to a) subpoena the landlord's deposit records to see if the money showed up there; and b) assuming that receipts were not given for previous months, point out that a landlord who takes cash for rent without supplying a receipt may just be planning to do just what he's doing now. If there is a fact that the landlord can't prove that *any* months were paid, that would raise a question as to how he knows these months weren't paid, especially after a long delay.
posted by rhizome at 10:42 AM on February 12, 2010 [2 favorites]
If it goes to court, I would take the opportunity to a) subpoena the landlord's deposit records to see if the money showed up there; and b) assuming that receipts were not given for previous months, point out that a landlord who takes cash for rent without supplying a receipt may just be planning to do just what he's doing now. If there is a fact that the landlord can't prove that *any* months were paid, that would raise a question as to how he knows these months weren't paid, especially after a long delay.
posted by rhizome at 10:42 AM on February 12, 2010 [2 favorites]
This is not necessarily shady. Your relative doesn't have any options that I can see other than the ones you present in your second question. She should have a consultation with a tenant attorney to see what her legal options are and how much an attorney would cost. I can memail you a list of good tenant attys in NYC when I get back to work on Tues if you want. (I am a tenant atty in NYC but IANYL and I am not in private practice.)
posted by Mavri at 11:14 AM on February 12, 2010 [1 favorite]
posted by Mavri at 11:14 AM on February 12, 2010 [1 favorite]
The only thing that strikes me as shady is the time delay and the seeking nature of the call (where they stated they wanted proof, and absent the proof being provided the rent would be do.) It makes me wonder if this is a standard beginning-of-new-year process for the rental company in question, where they contact everyone whose leases ended a year prior to see if there's a way to get money out of them through intimidation (which they can cover ethically with "our records show it wasn't paid" statements.)
So, I agree with you that it feels a bit shady. However, this does not at all make the issue less serious, or one that you can handle without lawyering up, and the feeling that it's a bit shady doesn't actually mean it is so.
posted by davejay at 11:58 AM on February 12, 2010
So, I agree with you that it feels a bit shady. However, this does not at all make the issue less serious, or one that you can handle without lawyering up, and the feeling that it's a bit shady doesn't actually mean it is so.
posted by davejay at 11:58 AM on February 12, 2010
Why wait a whole year?
Was the tenant contacted for payment but not your relative?
If contact was made let's see copies of the letters etc.
Were receipts kept by the tenant? (Why were they not sent to the relative?)
These are all questions that should be answered by the lawyer and the tenant before anything happens. It is most odd that this occurs over a phone call. Most lawyers would initiate things with a letter.
Someone mentioned getting the financial records in discovery. Most people who provide receipts have a book with copies. You would want to look at that. Absence of a receipt though could just be sloppiness on the part of the tenant and an intent to defraud the tax authorities on the part of the landlord. Taking rent payments in cash without giving a receipt most likely means tax evasion. If that is the case and this goes to court make sure you get sufficient discovery on all the business records and try to get the tax returns so you can turn in the landlord for tax evasion and get back your rent as reward.
As for the lawyer's assertion that your relative will owe the landlord's legal costs, check the lease and if it is silent check with the tenant's right group for a statutory provision. The general rule in the US is that everyone pays their own lawyers, but you can contract that away or there could be a specific statutory exception in that jurisdiction. If it goes to court you will of course be hiring a lawyer who will get you a definitive answer.
I generally recommend that people lawyer up but I think you want to collect some more information to assess the seriousness of this charge first. It does smell a bit like a scam. You might look up the so called lawyer on the state bar website to see if in fact he really is a lawyer. Definitely start looking for a lawyer right now though so that you are prepared if and when you need one.
posted by caddis at 1:44 PM on February 12, 2010
Was the tenant contacted for payment but not your relative?
If contact was made let's see copies of the letters etc.
Were receipts kept by the tenant? (Why were they not sent to the relative?)
These are all questions that should be answered by the lawyer and the tenant before anything happens. It is most odd that this occurs over a phone call. Most lawyers would initiate things with a letter.
Someone mentioned getting the financial records in discovery. Most people who provide receipts have a book with copies. You would want to look at that. Absence of a receipt though could just be sloppiness on the part of the tenant and an intent to defraud the tax authorities on the part of the landlord. Taking rent payments in cash without giving a receipt most likely means tax evasion. If that is the case and this goes to court make sure you get sufficient discovery on all the business records and try to get the tax returns so you can turn in the landlord for tax evasion and get back your rent as reward.
As for the lawyer's assertion that your relative will owe the landlord's legal costs, check the lease and if it is silent check with the tenant's right group for a statutory provision. The general rule in the US is that everyone pays their own lawyers, but you can contract that away or there could be a specific statutory exception in that jurisdiction. If it goes to court you will of course be hiring a lawyer who will get you a definitive answer.
I generally recommend that people lawyer up but I think you want to collect some more information to assess the seriousness of this charge first. It does smell a bit like a scam. You might look up the so called lawyer on the state bar website to see if in fact he really is a lawyer. Definitely start looking for a lawyer right now though so that you are prepared if and when you need one.
posted by caddis at 1:44 PM on February 12, 2010
I was led to believe that this story involved bears.
posted by troybob at 2:29 PM on February 12, 2010 [4 favorites]
posted by troybob at 2:29 PM on February 12, 2010 [4 favorites]
I'll bet the landlord who insisted the rent be paid in cash did so because he or she did not want to pay taxes on that income! Mention that the next time they try to threaten you and they'll probably stop calling. You don't even have to mention IRS. Just be firm that you have no intention of paying.
posted by mareli at 2:59 PM on February 12, 2010
posted by mareli at 2:59 PM on February 12, 2010
Someone mentioned getting the financial records in discovery. Most people who provide receipts have a book with copies. You would want to look at that. Absence of a receipt though could just be sloppiness on the part of the tenant and an intent to defraud the tax authorities on the part of the landlord. Taking rent payments in cash without giving a receipt most likely means tax evasion. If that is the case and this goes to court make sure you get sufficient discovery on all the business records and try to get the tax returns so you can turn in the landlord for tax evasion and get back your rent as reward.
I doubt it would get that far. If they have something to hide they'll drop the case as soon as anybody starts sniffing around in the right places. When that happens, you crank-call both the landlord and the lawyer the next morning and say "THAT'S RIGHT, M---F---."
Upon insistence that the rent was paid, the lawyer asks for proof and states that if none is available and this goes to trial, my relative will wind up paying the rent as well as both sides' legal fees.
Thing is though, legal threats mean nothing without paper to back them up. If he calls back, throw his game back at him. Tell him you're recording the calls. If he asks why, say it's for evidence in a pending ethics complaint to the Bar. By this, I mean his assertion that your relative will lose if the case merely goes to court. For extra fun, tell him you're recording, then ask him to confirm that he said it.
Furthermore, civil cases are decided on a preponderance of evidence. It's not up to the defendant here to prove they paid (yet), because the plaintiff (landlord) first has to prove their case with actual evidence that the rent wasn't paid. If they don't have any evidence, then they have no case. I'm guessing in an all-cash situation like this, which you can see cuts both ways, the landlord might have to do something like produce a reciept book with all of his tenants' receipts and no skipped numbers if they want to force proof on your side.
posted by rhizome at 4:40 PM on February 12, 2010
I doubt it would get that far. If they have something to hide they'll drop the case as soon as anybody starts sniffing around in the right places. When that happens, you crank-call both the landlord and the lawyer the next morning and say "THAT'S RIGHT, M---F---."
Upon insistence that the rent was paid, the lawyer asks for proof and states that if none is available and this goes to trial, my relative will wind up paying the rent as well as both sides' legal fees.
Thing is though, legal threats mean nothing without paper to back them up. If he calls back, throw his game back at him. Tell him you're recording the calls. If he asks why, say it's for evidence in a pending ethics complaint to the Bar. By this, I mean his assertion that your relative will lose if the case merely goes to court. For extra fun, tell him you're recording, then ask him to confirm that he said it.
Furthermore, civil cases are decided on a preponderance of evidence. It's not up to the defendant here to prove they paid (yet), because the plaintiff (landlord) first has to prove their case with actual evidence that the rent wasn't paid. If they don't have any evidence, then they have no case. I'm guessing in an all-cash situation like this, which you can see cuts both ways, the landlord might have to do something like produce a reciept book with all of his tenants' receipts and no skipped numbers if they want to force proof on your side.
posted by rhizome at 4:40 PM on February 12, 2010
Best answer: Dispute the claim in writing via rhartong's advice.
SEND VIA RETURN RECEIPT MAIL.
Keep a copy of letter and receipt for your records.
Two months rent can't be enough money owed to warrant a trip to court for the landlord, btw.
I'd be more concerned that they'll sell this to a debt collector.
posted by jbenben at 6:59 PM on February 12, 2010
SEND VIA RETURN RECEIPT MAIL.
Keep a copy of letter and receipt for your records.
Two months rent can't be enough money owed to warrant a trip to court for the landlord, btw.
I'd be more concerned that they'll sell this to a debt collector.
posted by jbenben at 6:59 PM on February 12, 2010
Best answer: Two months rent can't be enough money owed to warrant a trip to court for the landlord, btw.
I'd be more concerned that they'll sell this to a debt collector.
If this is not a scam then that is the best assessment in the thread.
posted by caddis at 4:26 AM on February 13, 2010
I'd be more concerned that they'll sell this to a debt collector.
If this is not a scam then that is the best assessment in the thread.
posted by caddis at 4:26 AM on February 13, 2010
Debt collector? That's even easier. The point of all my answers is to force the landlord to prove the money is owed. None of this chit-chat business, quit farting around and put your cards on the table. Also, keep records of how difficult it is to contact the lawyer/landlord. Bad faith, dontchaknow.
posted by rhizome at 11:07 AM on February 13, 2010
posted by rhizome at 11:07 AM on February 13, 2010
This thread is closed to new comments.
My question falls more along the lines of:
- Does any of the above seem shady?
- Does my relative have any options other than getting a lawyer or paying the amount the lawyer says she owes?
posted by Raze2k at 9:11 AM on February 12, 2010