bring Lawyers, guns and Money...
Posted on 01/02/2006 12:05:49 AM PST by Will_Zurmacht
A quick question for legal minded fellow freepers.
It seems I'm being sued in small claims court. It stems from an incident 6 months ago, I was looking to move and spoke with a realtor. I never signed a contract. I did fill out a "credit application". He advised me that the apt wouldn't be available for at least a month.
The real estate guy told me he needed to "hold" a check for the first months rent. He advised he would not cash it until he received the contents of my credit check and a signed contract. He advised he would mail the contract out Monday (we met and did this on a Friday after 5:00) and I should read it and sign it and return it to him. Then, and only then, would the apartment be mine. But I'd have to wait a month.
Two hours after this conversation I called him and told him that I wasn't interested, A friend had actually found me another apartment that I could get into immediately.
When we spoke he became agitated and told me that was fine, but now he was just going to deposit my check now for "wasting an hour of his time". I told him not to, just tear it up, there was no contract, and he had originally promised not to deposit the check until I had passed a credit ap and returned a signed contract.
I called him back and he was even more hostile, basically unreasonable. I then told him that I was going to put a stop payment on the check and that he should not mail me a contract, I wasn't going to do business with him.
A week before Christmas I rec'd a summons to small claims court from this guy. He's suing me for the $375 check I put a stop payment on.
I'm just a grad student in Kansas, and have no idea about the law. Advice from friends has ran the gamut of "raise hell in court" to simply telling the judge what happened and if I have to pay consider it a lesson well learned.
Any legal experts have any wisdom on this matter?
bring Lawyers, guns and Money...
I must remember that!!
You're young - there's still time to fix that...;-)
Awesome. (^_^)
Valid or enforcable?
I was under the impression the Statute of Frauds applies to real estate to require a written contract in order for the contract to be enforcable. An unwritten contract or verbal contract in real estate might still exist, be valid, but voidable if one party decides to void its promise.
Who knew?!
:-)
Anyway, this is a perfect illustration of how effective FR is in terms of rendering good advice.
I knew that there would be a few experts in contract law who would reply to this vanity thread.
LOL
ah, for the good old days of low tech
My advice is worth what people pay for it.... zip nada =o)
An update for all...
I took everyone's advice and checked with my free legal options. Both were excellent and advised I should win hands down!
So my fellow freepers do know what they are talking about!
The campus attorney even helped me subpoena the gentleman I spoke with, as he had his partner fill out the small claims form. She wants to be sure that I can establish the timeline demonstrating that only two hours passed.
She advised that the plaintiffs will have major problems winning this case, and she advised me to hammer home to the judge that the plaintiff can prove no damages, thus they cannot claim the security deposit, which is used to mitigate damages.
She also found their entire operation "slap-dash and amateurish" and advised me to only deal with established property rental companies in the future.
She advised that even if they sustained damages during this two hour period between offer and and rescind of offer, they must provide me with a itemized list of damages within a specefic timeframe to withold even 1 penny of the security deposit. Which would be hard to do considering they did not take the property off of the market, I never took possession of property, signed a contract.
And better yet, since no contract had been done, and I hadn't even rec'd results of the credit check, I can easily argue that They very well may not have offered me possession of the property due to my credit score. If this were the case they would have been required to surrender the security deposit immediately.
No Possession.
No Contract.
No Damages.
I have been trying to teach myself property law in the last two days, and the language sounded like someone trying to nail jelly to the wall, but when you step back it's actually pretty simple.
We made a list of 5 reasons I needed to hammer home to the judge on why the plaintiffs should not prevail. I have probably ~10-15 minutes, and she knows the judge. He's not actually a lawyer, but she said he is usually reasonable provided I make it very clear and concise, and hammer my few points. On the off chance he rules against me, (she didn't see this happening, but he occasionally does blow one) she advised theat I could appeal and win hands down in front of a lawyer.
My date is Jan. 20th.
I actually think I'll enjoy setting these *&^% straight.
I'm almost tempted to drop out of my graduate program and enroll in Washburn Law....hehe. But then I'd have to deal with these types of people everyday.
Just wanted to thank all for their advice and I'll let you know how it turns out.
A few years ago I was being charged medical bills that I considered unfair due to a technicality. I threatened to go to the Consumer Reporter. The person billing called my bluff. Funny thing is, I did go to the TV station and the jerk backed down big time. It saved me $4000.
You did NOT have a contract (where you recieve something for your cash). Your check is only side of the equation. You gave him the check and basically recieved nothing in return. When you told him to fageddabouit, he had nothing to exchange TO you. Contract was, is, and will always be invalid. Go to court, teel your story and intimate that HE broke the agreement, NOT a contract.
You have no idea...I've been looking for that for ages - I got it in an email and thought it was the funniest thing ever...Thank you!
Well, my case is over, and believe it or not I lost!
predictable really...
While Kansas Law (58-2550) clearly states that Security Deposits are refundable upon completion of the lease, minus damages to the property....the renter's application that says "your security deposit is non-refundable" apparently trumps the law on security deposit as written by the Kansas Legislature....hehe.
The judge was a cranky old non-lawyer who pontificated on the sanctity of the contract in American law...I think I lost my case when I asked the judge:
"if there was a clause in the rental application that made my children the landlords personal slaves, or obligated me to commit a murder, would you consider that contract to be sacred too?"
"No, that contract would be against the law"
"Precisely"
We went round and round, but it was obvious he was going to stick it to "the young wipper snapper"
Oh, well, I should have listened to the students here. It's a University town and and we are just the cash cows.
I paid him the $375 and can't wait to get outta Mayberry.
It's good yoou put a stop payment on the check. They can't charge fees like they did. Just write down all the guy said and all of what you didn't do. Bring that to court.
This ain't a finders fee and the guy had no appt ready, so it wasn't a deposit. You have 3 business days anyway to cancel anything.
The better business bureau is a friggin scam. They post con artists, thieves and other sundry scumbags as having "satisfactorily settled claims" after they pull scams. The bbb never lists them as unscrupulous con artists, because they're in business and desire to make all their paying and nonpaying business customers happy. They could not care less about the customer. If the bbb lists them as having stisfactorily settled matters, take the hint that the business is a scam.
If you have the law that clearly states that the are refundable I would appeal. I would also find the contract law that states that contracts have to abide by the laws.
I am sorry to hear about your case. Have you considered appealing the decision and did you sign the rental agreement?
MCD
Only counts for sales made in your home.
I will probably not appeal, I really don't see the point anymore....
and no, I never signed a contract, the plaintiff admitted that he didn't have a contract, just an application for an apartment. However, in small type, pg. 3, there were several catch all phrases,"We cannot guarantee an apartment, We cannot guarantee the condition of an apartment, We are not responsible for...yada. In the middle of this it said "Your Security Deposit is Non-Refundable".
Now Security Deposits are indeed,refundable, in fact Kansas Statutes spell out in great detail how they are to be refunded. But given that Judge "Good Ole Boy Roy" views this as a "Security Deposit on an rental application" as opposed to a "Security Deposit on a Rental Property", he claimed Kansas Security Deposit Law didn't apply in "'dis here particular case".
I spoke with fellow grad students who advised me that this is just how things are done around here, and that I should just be very careful doing business in this town. Of the students I have spoke with re: this matter, (around 6) exactly 0 have ever rec'd a Security Deposit back in this town. And only one ever rec'd the itemized list of repairs(which miraculiously covered his entire deposit), per Kansas Law.
Whatta ridiculious mess!
While it is not exactly right, it's basically my own fault really for not paying closer attention to the language and trusting small businessmen.
You live and learn, I only have 18 total months in this town and hopefully I can get out without any more strangeness...
Thanks for all of the advice and help.
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