How to handle a landlord forging evidence in small claims court (VT)?

February 13, 2008 7:11 PM

How to handle a landlord forging evidence in small claims court (VT)?

I may be filing suit in small claims court in Vermont against my previous landlord. He has withheld my entire security deposit and not given me any written statement of deductions as required by law.

Vermont Statutes Title 9, Chapter 137, § 4461 (e) states "If a landlord fails to return the security deposit with a statement within 14 days, the landlord forfeits the right to withhold any portion of the security deposit. If the failure is wilful, the landlord shall be liable for double the amount wrongfully withheld, plus reasonable attorney's fees and costs."

I have asked him to return my security deposit in full. He has offered to pay me a bit less than half of the whole deposit ($400) which I have refused and advised him to send me the full amount or I will be suing.

Assuming he does not pay, I will be suing. The one thing I am concerned about is because my claim is based on his failing to deliver me a written statement of deductions within the 14 days, how do I handle it if he forges a letter dated within the 14 days with the deductions statement and claims that he sent it?

I know that you are not my lawyer, etc. but any advice on this point is appreciated. Thanks!!

posted by doomtop to law & government (15 comments total)

I have sued people in small claims in Vermont and won. That said, you probably know what you need to be doing right this instant DOCUMENTING EVERYTHING.

From my understanding your situation went like this

- you moved out
- you waited 14 days
- nothing happened on the landlord's end
- you asked for your full deposit per the law
- your landlord gave you this "eh I'll give you half" talk
- you refused
- and here we are

Delivery in a legal sense really should except in extreme circumstances be via registered mail or at the very least regular mail. If he just dates a letter and says he left it on your porch, tough luck for him that's not really sufficient.

So at this point you should be reading the Small Claims Court in Vermont website, and I'll tell you what I know about it. There's a small fee to file. You'll get some random date in the future which will definitely be during normal work hours and is in Newfane. You can postpone once pretty easily if you need to. Your landlord may countersue [like my roofers did, haha]. You both go to court and present your claims. You say why he didn't do what he said, he'll claim mitigating circumstances. Keep in mind that even if you get a judgment in small claims court, your landlord still may not pay and then you have to decide if you want to sic the sherriff on him. My roofer never paid.

So, for $400 and potentially double that, I think it's worthwhile to go through it for the $50 filing fee and some time and annoyance. Bring handouts with copies for the judge (times and dates of major events, times you've conacted each other and how, print emails if you have them), look smart, dress well and no one is going to expect you to be a lawyer. If you're a broke type you may want to contact your local Legal Aid office to bounce a few ideas off of but this seems like a fairly cut and dried situation and I wish you luck dealing with it.
posted by jessamyn at 7:25 PM on February 13, 2008

Not that it really matters but did he say why he only offered <>
Do you know if your state is more landlord or tenant friendly? By the looks of the law you quoted, it seems tenant friendly. This could help you in small claims court where it's just going to be a he said/he said war of words. A forged letter would be hard to battle but not impossible, you just have to present your case. For reference, if you win, you won't immediately get your $400 + damages/fees. You'll have to turn into a collector and follow-up with the landlord and possibly get the court to file liens if he doesn't pay. It won't be fun and might not be worth $400 in the long run.

What was the guys response when you threatened the suit? I think I'd give him a week or something and then just file the suit and have him served by the constable. You will probably get your money the next day.
posted by toomuch at 7:32 PM on February 13, 2008

Thanks jessamyn!!

He has offered to pay me $400. My total security deposit (including deposits for a cat and a dog) was $950. If I sue him I will be suing for $1900.

I am confident that I will win this case as the statute is very clear on his responsibility and he has not fulfilled that. My only concern is that he may forge such a document and say that he mailed it. He and I will both know that is not true, but the judge might believe him and I'm not sure what to do if something like starts happening.

How can you prove that someone did not do something?
posted by doomtop at 7:35 PM on February 13, 2008

sorry about that I cut off the first sentence. Just wondering why he only offered half, did he have any valid reasons?

Also, as per the law you cited:

The landlord shall comply with this section by hand-delivering or mailing the statement and any payment required to the last known address of the tenant.

So regular mail is in scope and it's very easy for him to say "I mailed the statement, I have no idea why he didn't receive it"
posted by toomuch at 7:36 PM on February 13, 2008

Thanks toomuch. At first he claimed he didn't know about the statute and that he had other tenants who cleaned in the apartment who would testify on his behalf regarding damages. I told him bullshit and that he needs to pay me and he told me "I'll see you in fucking court, you asshole".

Then he called back a few minutes later and left a message saying he saw the statute but that the judge would not hold him to that and that he "knows the guy". Then he offered me $400 at most but that if I wanted more I would have to sue and he would fight it as far as he could.

I called him back and told him he needed to pay me or I would sue him and that's where I'm at right now.

Also, FWIW I moved out of this apartment six months ago.
posted by doomtop at 7:39 PM on February 13, 2008

Also triple check that the pet deposit is in fact refundable. In many cases, it's not, and the fact that they call it a deposit is just a total misnomer. If you have a lease, now would be the time to check it out in addition to the VT laws concerning this. Really if the landlord mailed it and you never got it, it is going to be he said/he said but a decent follow-up question would be why he didn't send it registered, etc.
posted by jessamyn at 7:45 PM on February 13, 2008

sounds like a pretty bad situation. I'm sure the "I know the guy" is a bluff. I still say have the guy served and see where it goes. If it does make it to court, my guess is you are absolutely right about the letter. How likely is it he will really have the other tenants there? If likely, you'll be in a tough spot. You will definitely need to play it just as jessamyn says: professionally present the facts. Have all the documentation you possibly can including time/dates of conversations/correspondence. I have a hunch that the $400 offer will come out and the judge will wonder if that is good enough. Be prepared for some sort of compromise. The likelihood of the full $1900 is slim to none. *IANAL*
posted by toomuch at 7:50 PM on February 13, 2008

The cat deposit is written in hand on the lease and the dog deposit was agreed to verbally. Both were written as separate checks.

When I talked to him on the phone I read him the statute and told him why I would be suing him. He said that he left me phone messages, but did not make any claim of mailing a written statement. This is why I know he didn't send it and I never got it. Also, if he sent it I surely would have got it.

I am just worried he will lie and forge the document when in court and things are really on the line, not just a conversation with me.
posted by doomtop at 7:50 PM on February 13, 2008

Also, I'm sure he offered me the $400 in attempt to dissuade me from suing, of course.
posted by doomtop at 7:51 PM on February 13, 2008

Even if he falsifies something, the point is he also has to prove his deductions are within reason. He'll need to be able to produce receipts indicating what was replaced due to situations that are beyond normal wear and tear. He can't just make that stuff up, a judge will expect documentation on his end. Do you have any witnesses who saw the condition of your unit when you moved out or did you take pictures or ask for a move out inspection prior to leaving the unit? If stuff was due to be repainted or replaced anyway, he can't charge you for it. When I managed apts (not in Vermont), we would not charge for painting if the tenancy was over a year, however, if there were a bunch of holes in the wall we had to patch prior to repainting, the tenant would get charged for that.

The best way to protect yourself in the future is to do a move in inspection and write up a letter to the landlord indicating flaws you discovered in the unit. Do that in the first couple of weeks of a new tenancy and keep a copy. Things like missing or broken screens, chips in fixtures, dents in appliances, burn holes, wear and tear, etc. etc. etc.--document it all no matter how trite it may seem to you at the time. This protects you when you move out so you don't get charged for those pre-existing conditions.

Your landlord sounds like a scuzzball who most likely is well aware of the law but is banking on tenants not putting up a fight by bothering to pursue legal action. Good luck.
posted by 45moore45 at 8:01 PM on February 13, 2008

As far as I can tell, it won't matter if he brings tenants to testify to the damages. It wouldn't matter if you punched holes in all the sheet rock, and he had pictures to prove it! He's legally required to notify you within 14 days of why he's withholding your deposit. He didn't do that. If he tries to claim that he notified you, he'll also have to deny that the conversations you had did not take place. Otherwise, why didn't he tell you he'd sent an itemized bill, and why didn't he tell you what it said? I think that if you follow Jessamyn's advice - be professional, come with documents, respect the judge - it will be clear to everyone that your story is factual, and that the landlord is simply trying to weasel out of his jam. Just write down everything you've posted here, with even more details if possible - what dates & times you talked to him (but don't specify if you can't remember - be honest, "the second week of January" would be fine, or "on or about January 14th"), exactly what was said each time, &c. Come correct and it will be obvious that you're the party to be trusted.
posted by Banky_Edwards at 8:08 PM on February 13, 2008

how do I handle it if he forges a letter dated within the 14 days with the deductions statement and claims that he sent it?

You tell the judge that he's lying.

And if he persists, you go talk to the District Attorney and try to get him indicted for perjury.
posted by Steven C. Den Beste at 9:30 PM on February 13, 2008

Indicted for perjury in small claims court? Seems unlikely the DA would be particularly interested. It's rarely prosecuted even in criminal courts. Small claims judges generally don't see much of it, either, according to the Nolo article Lying in Court, which seems relevant.

Landlords come back to housing court again and again. They have a strong disincentive to stay out of contempt of court. Judges have a sixth sense for when someone is trying to weasel out of something and have the complete control of the courtroom to freely question the parties. There aren't many non-lawyers who can withstand a withering series of cutting inquiries.

Judges know that landlords get sloppy, especially shitty landlords. They know that somebody might try "the dog ate my homework", and they will likely ask whether it was sent registered/certified. (In some states this is required.) I really don't think this should be a particular concern of yours. Read Banky_Edwards a couple more times; it's on the money.

Your professionalism and presentation will be half the battle. If you can, check the court records to see if he has been sued before. It isn't relevant to your case, but if he has, you'll have an edge of confidence. Chances are you're not the first tenant he's tried to pull this on.
posted by dhartung at 2:13 AM on February 14, 2008

Do everything in writing. Letters by certified mail, emails, faxes. Do not use the phone to conduct business with this guy. You want something hard that you can take to court and you don;t want something that puts you in a he-said-you-said situation.
posted by Pollomacho at 5:47 AM on February 14, 2008

People might think, outside a court setting, that "it's just his word against mine" and then try to give a word, neglecting to consider that the judge has the ability to ask questions and make a judgment on who is lying. I had a similar situation to yours, my landlord did claim to have given me an itimized list of deductions to my deposit but was unable to provide it or bills proving the supposed itemization or proof of mailing or delivery, he showed up with pictures of damage to the apartment that supposedly I was responsible for but was unable to answer followup questions about the damage, etc. etc. As others have said, you may be over thinking this, I know I went through a million what-if scenarios as well in the months before my court date. Your best bet is to show up, be truthful, answer questions, and provide whatever documentation you have and you will be fine.
posted by pamccf at 7:25 AM on February 14, 2008