Court (Evict or Small)? (by Dave [NY]) Jan 10, 2018 12:01 PM|
Court (Evict or Small)? (by Dave [NY]) Jan 10, 2018 12:02 PM
Court (Evict or Small)? (by Ken [NY]) Jan 10, 2018 12:22 PM
Court (Evict or Small)? (by Vee [OH]) Jan 10, 2018 1:58 PM
Court (Evict or Small)? (by Jeff [CO]) Jan 10, 2018 2:09 PM
Court (Evict or Small)? (by NC INVESTOR [NC]) Jan 10, 2018 2:11 PM
Court (Evict or Small)? (by Moshe [CA]) Jan 10, 2018 4:30 PM
Court (Evict or Small)? (by Ken [NY]) Jan 10, 2018 5:17 PM
Court (Evict or Small)? (by Moshe [CA]) Jan 10, 2018 8:39 PM
Court (Evict or Small)? (by Ken [NY]) Jan 11, 2018 3:40 AM
Court (Evict or Small)? (by Moshe [CA]) Jan 11, 2018 9:18 AM
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Court (Evict or Small)? (by Dave [NY]) Posted on: Jan 10, 2018 12:01 PM
State Specific Question About: NEW YORK (NY)
Question if you had a tenant owe you rent for January, they left town and damaged the place, would you take to small claims first or Eviction court first?
I know I can can get a wit to possession easily since they left but NY state I won't get a judgement since they wont be signing for the eviction court. so since I have no way of tracking them down since they left does it make sense to get a small claim filed first?
Wondering what others would do on this form? --66.251.xx.xxx
Court (Evict or Small)? (by Dave [NY]) Posted on: Jan 10, 2018 12:02 PM
Sorry... meant to say "
Court (Evict or Small)? (by Ken [NY]) Posted on: Jan 10, 2018 12:22 PM
If they aren't served personally and they don't show up you shouldn't get a judgment but there are many judges I stand in front of who don't know that so you may get it,if the judge is a lawyer he will probably know it and not award you the judgment but a non lawyer judge in a small town court you may very well get the judgment.Small claims court would be the best if they have left and you took possession but the problem with that is you need there current address so if you have the current address I would take it to small claims court --72.231.xxx.xxx
Court (Evict or Small)? (by Vee [OH]) Posted on: Jan 10, 2018 1:58 PM
Have to know your court/judge, here the court sends fedex photo delivery, and court is held at a later date, I win many of these tenant no show cases, and wait 2 times the appeal period before letting the court begin the garnishment. --76.188.xxx.xx
Court (Evict or Small)? (by Jeff [CO]) Posted on: Jan 10, 2018 2:09 PM
Evict first. Today is the 10th - way late! --76.120.xx.xxx
Court (Evict or Small)? (by NC INVESTOR [NC]) Posted on: Jan 10, 2018 2:11 PM
In NC most tenants do not provide a forwarding address and some do not bother to register one with the post office.
Here we just have to send it to their last known address.
Can't you do that in NY?
Court (Evict or Small)? (by Moshe [CA]) Posted on: Jan 10, 2018 4:30 PM
" they left town and damaged the place, would you take to small claims first or Eviction court first? "
If they have left town, how do you expect an eviction to help you? Eviction is a process to get a tenant out, i.e., to recover possession. If they are gone, you don't need an order of possession, and actually, if you tell the truth that they are gone, you won't be able to get one.
Before you get your hopes up about taking them to Small Claims court, better check your state's law on jurisdiction. CA, for example, requires that a summons to Small Claims court be served within the state. While California has a long-arm statue extending its jurisdiction everywhere beyond its borders, that privilege is restricted to the Superior Court.
Court (Evict or Small)? (by Ken [NY]) Posted on: Jan 10, 2018 5:17 PM
Moshe,in NY state when we do an eviction, possession and money judgment are handled all in one hearing so at least in theory if he did an eviction and won the eviction he would get the judgment at that time if either the tenant was served personally or if the judge didn't know not to give the judgment if he tenant wasn't served personally and didn't show up for the hearing which most of the non attorney judges don't know --72.231.xxx.xxx
Court (Evict or Small)? (by Moshe [CA]) Posted on: Jan 10, 2018 8:39 PM
What does NY state law say about the circumstances under which an eviction may be granted? Must the LL allege that some violation has been committed (rent unpaid, material breach of the lease, etc) plus that the tenant continues to occupy the premises? (in addition to notices, including notice of court hearing). Does it allow for an order to remove a tenant who has already vacated?
And, if the eviction suit fails, then what happens to the prayer for money? Possible failure of the eviction suit would argue that a Small Claims suit might be a better approach, since the arguments about money are the same as would take place in the eviction suit, but without having to prevail on the issue of possession.
I personally never accept an attorney-judge. I always prefer to exercise my right to demand a real judge, who is experienced and knowledgeable about such issues, including correct procedure, including service and jurisdiction.
Court (Evict or Small)? (by Ken [NY]) Posted on: Jan 11, 2018 3:40 AM
Moshe,if a tenant has moved but I am in the process already I complete the process,the tenants rarely call and say I moved where do you want me to leave the keys,they just leave so I finish the eviction and stand in front of the judge and because I have not received the keys I tell the judge they still have possession and I am granted the eviction.The paperwork shows that the tenant owes rent,which is the only item that can go on the eviction if I am there for unpaid rent,in order to alledge a breach of the lease I would have to give a 30 day notice to move then bring them court after that but I have never done one of them so have no idea how that would happen.If the eviction fails the suit for money is gone also,the only time I see evictions fail is mainly when legal aid gets involved and the landlord failed procedurally.I understand what you are saying about demanding a real judge but these are real judges,at least in my state a non lawyer can run for judge and in these small towns and villages of 2000-3000 people there may not be an attorney who wants the job,when they win the job they go to judge school for 1 week and that is it and the state is way more concerned with traffic tickets than they are evictions because that is where the money is,1 night a month they have 150 people packed in each little court paying traffic tickets and the majority of that money goes back to the state,they don't make enough on evictions to teach the judges how to do it right.In many cases the court clerk is the one running the whole place including telling the mayor what to do.I have literally had a judge ask me to come in his office and explain to him how an eviction is supposed to be done,one of the judges I deal with was a garbage man for the town when he won the job as judge,he went to judge school and sat on the bench a week later,fortunately for him his clerk knows what she is doing,since she can't give legal advice when people come to her and say I have to get rid of a tenant she tells them to call me and I do the paperwork and do the service and get them into court,this is a poor village and since I am half the price of an attorney they are happy to pay me to do it. --72.231.xxx.xxx
Court (Evict or Small)? (by Moshe [CA]) Posted on: Jan 11, 2018 9:18 AM
Sounds a little complex to me.
1. I am surprised that a judge anywhere in the US will still consider that, absent the return of keys, the tenant is still in possession if he is obviously gone.
2. If the tenant is gone, then you don't have to give any notice to move. Neither do you require any order of possession.
3. Evictions will fail if the eviction law is not satisfied. Legal aid or another attorney can only present a point of view, and if the landlord is right and is entitled to eviction, then he will prevail. But he has to be 100% right, and entitled to the eviction according to law.
4. Generally, eviction cases get some kind of expedited scheduling because the courts recognize that LL is losing money daily, and thus the eviction case is usually considered to be a summary hearing where the only issue is possession. A monetary judgement usually follows, but is not allowed to slow down the flow of eviction cases. Small Claims court here in CA actually will take a little longer to get a hearing, but the cost is lower, attorneys are not permitted, and the arguments are heard with a minimum of formality and procedure. Under Small Claims rules, the case is required to focus on the actual merits of the claim, including fairness rather than procedure and strict adherence to the law.
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