Second cause of action for damages in an eviction case?
How do I proceed with the second cause of action for damages in an eviction case and how do I go about garnishing a tenant’s wages?
An eviction case is divided into two separate hearings if you choose to pursue both the eviction and the claim for damages. Until a tenant has been evicted and has vacated the rental premises, a landlord cannot know the complete extent of his/her damages. A landlord could choose to do an inspection before the tenant leaves the premises but would only be able to guess at the total damages as the landlord has no idea how the tenant will leave the premises upon move-out. The tenant may leave a mountain of trash for the landlord to clean up. The tenant may damage walls, doors, etc., during the move-out process. The tenant may leave the furnace set at 95 degrees and open all the windows in January. Because of this uncertainty, courts require a second, separate hearing for damages which occurs after the first hearing for the eviction or possession of the premises.
Once the landlord obtains possession of the rental unit, he/she should inspect the unit for damages. During the inspection process, the landlord should prepare a list of damages and keep any documentation supporting these damages. The landlord should also take pictures of how the tenant left the premises upon move-out. Typical damages assessed against a tenant include unpaid rent, late fees, unpaid utilities, clean up of trash, cleaning of the unit and damages to the premises beyond ordinary wear and tear.
Certain damages to the premises beyond ordinary wear and tear must be prorated. For example, if the landlord feels that replacing the carpet is necessary then the landlord cannot charge the tenant the entire cost of the new carpeting. Carpet is typically expected to last about eight years in the rental setting. If at the time of replacement, the carpet is six years old then the landlord can only charge the tenant for 25% of the cost of replacement. The landlord received the value of 75% of his investment in the old carpet (six of eight years). Other items that generally must be prorated include appliances and other types of flooring. Their life expectancy varies according to the item.
The landlord should prepare a one page listing of all the damages on one sheet of paper, subtract any security deposit and add up the total. On the listing of damages, the landlord should makes notes as to why each repair was necessary or why the charge was made. Any supporting documentation can be attached to this listing. I have uploaded a sample listing that you can use as a guide.
The list of damages, supporting documentation and supporting affidavit should be provided to the landlord’s attorney. The attorney will file a motion for default judgment if the tenant has failed to file a written answer to the eviction complaint within 28 days of service upon the tenant. Service must be obtained via ordinary mail, certified mail or in person.
Posting the summons and complaint (the summons and complaint are different from the three day notice to vacate) upon the tenant’s door is only sufficient service for the eviction action and not the damages action. If the tenant refused certified mail and ordinary mail was unsuccessful, the landlord cannot proceed with the damages action until service has been obtained. Many times the landlord will have to find out the tenant’s new address in order to complete service of process upon the tenant if the landlord wishes to pursue the tenant for damages and not just for the eviction.
A landlord has a limited amount of time to proceed with the second cause of action for damages. Some courts will dismiss eviction complaints that include a second cause for damages if no activity has occurred on the case in six months. Some courts wait a year. If the court dismisses the case, landlords generally can refile the case within a year of the dismissal but must pay another case filing fee with the court. It behooves the landlord to determine a new contact address for the tenant as soon as possible for service of process purposes if the landlord wants to pursue the claim for damages. A work address can be very helpful in this regard. Landlords should obtain and verify work addresses as well as addresses of the tenant’s relatives on his or her rental application.
After the attorney files the motion for default judgment, the court may rule on that motion with or without a hearing. If a hearing is required, the court will set a hearing date and the landlord will have an opportunity to present evidence supporting his or her damages. The tenant may or may not attend the hearing. If the tenant attends then the tenant will have the opportunity to counter the landlord’s evidence on damages.
After the hearing, the court may require the landlord to submit a proposed judgment entry to the court. An entry is a document which contains the court’s decision. The court may choose to write its own entry. Depending on how busy the judge is and how many cases he or she has, the judge may sign an entry and issue a decision immediately or it may take several weeks.
A landlord cannot proceed with garnishment of the tenant’s wages until the judge has issued and signed an entry awarding damages to the landlord. If the landlord is the prevailing party, the court will award the landlord court costs and interest upon that judgment. In 2012, the judgment interest rate is 3 percent. Once the entry has been signed and filed, the landlord may start the garnishment by issue a 15 day notice of court proceeding to collect debt letter to the tenant. Most courts have their own form for this notice and many may provide it on their court website. The landlord must obtain a certificate of mailing when he or she sends out this 15 day letter to demonstrate when the document was mailed. After 15 days have passed (but not more than 45 days), the landlord can proceed with a wage garnishment through the court system. If the landlord waits more than 45 days after the 15 day notice letter was sent out then he or she must send out a new 15 day notice letter and begin again.
The primary document in this process is the “affidavit, order and notice of garnishment and answer of garnishee“. The garnishee is the tenant’s employer. The court sends this document to the tenant’s employer to verify the tenant’s employment there and to start the wage garnishment process. The employer has five business days (generally) from the date of receiving the order and notice of garnishment to complete and return its answer to the court. The order requires the employer to withhold a specified amount, calculated each pay period at the statutory percentage, of the tenant’s personal disposable earnings during each pay period beginning with the first full pay period commencing after the employer receives the order until the judgment is paid off. The court also charges a fee for the garnishment process which usually amounts to around $100.
The tenant may request a hearing to contest the garnishment order. If so, the parties must return to court to determine if the tenant has a valid defense to the garnishment.
A landlord who obtains judgment against a husband and wife and knows where both work may proceed with two garnishments at the same time. Similarly, a landlord who obtains a judgment against all tenants in the same rental unit may garnish all tenants simultaneously.
The employer will start garnishing the wages of the tenant and sending the garnished amount to the court during each pay period. The court may wait a specified period of time after receiving the checks (in order to make sure they clear) before issuing a check to the landlord’s attorney or to the landlord (if the landlord is not represented by an attorney). The time period may be as long as 14 days to determine if the employer’s check has cleared. The employer will continue sending garnishment checks to the court until the judgment is paid or until the tenant no longer receives a paycheck from that employer because of termination, voluntary separation, etc.
If the tenant leaves the employ of that employer, the landlord must determine where the tenant has obtained new employment and start the garnishment process from the beginning.
A landlord can quickly understand the importance of knowing where the tenant is employed. Without this information, pursuing the second cause of action for damages is generally fruitless.