Are You Renting a Property in Foreclosure?

Foreclosure is the legal process of a lender enforcing the mortgage against the property of a homeowner or landlord. If you are a tenant, you probably make routine payments to the landlord for the property you are renting.

New York City Proposing Bill to Provide Legal Aid to Victims of Foreclosure and Eviction

New York City Proposing Bill to Provide Legal Aid to Victims of Foreclosure and Eviction

In a move that would help even the playing field in eviction and foreclosure lawsuits, the New York City Council is proposing to provide a lawyer to lower-income residents in these cases. If it succeeds, New York City will become the first municipality in the United States to combat the power imbalance between landlord and tenant in these types of cases.

The Supreme Court has guaranteed a lawyer to those facing the possibility of incarceration since the landmark case of Gideon v. Wainwright in 1963. But outside of criminal courts, Americans are not afforded the promise of counsel in the legal system. The Sixth Amendment guarantees a right to counsel in criminal cases, but the Constitution does not provide a similar right in civil cases.

Since 2005, the number of evictions in New York City has risen almost every year, reaching 28,849 in 2013, according to Housing Court Answers, a research and advocacy group that runs the information tables in the NYC Housing Court. Those studying the issue argue that as many as half of those evictions could have been averted with legal representation.

The New York City Council currently has before it a bill that would provide free legal representation to anyone facing eviction or foreclosure who has an income of less than twice the federal poverty line. In New York City, that means an individual making below $44,000. Tenants in about 80 percent of all housing court cases each year would qualify, according to a report commissioned by the New York City Bar Association.

This type of legal assistance is almost always the difference between success and failure for tenants. Landlord/tenant law can be confusing and complicated, and all legal matters require a basic knowledge of filing and pleading rules. Legal studies show that between 70 and 90 percent of litigants appear in court without a lawyer (pro se). The vast majority of landlords, on the other hand, are represented by seasoned attorneys who know the law and understand very well how the court system works. When tenants represent themselves in court, the result is that they end up being evicted almost half the time.

Studies have shown that tenants represented by counsel default less often, receive better settlements, and win more often at trial. With a lawyer, tenants win 90 percent of the time. Even when an eviction does happen, experienced attorneys can help families improve the otherwise bleak situation by assisting them in locating assistance programs to cover arrears, or by having judgments vacated so that their credit scores do not suffer. In 2013, for example, New York legal assistance housing attorneys helped approximately 96% of their clients avoid entering the homeless shelter system – the tenants may not have always kept their residences, but attorneys were able to either help find other solutions or buy time needed to relocate.

This bill has the strong backing of housing advocates, community leaders and legal services providers, as well as the private bar. Part of the reason is very pragmatic – this type of program could save the city money. The benefit of adequate representation in housing court goes beyond stabilizing and improving the lives of families. The New York Times recently reported on a number of efforts underway across the country to track the economic impact of equal representation in civil cases. In one example, a Boston Bar Association study found that for every one dollar spent on legal services, two to three dollars were saved by reductions in municipal expenses associated with eviction, including the cost of shelter, health care, and increases in public benefits.

This is not the first step New York City has taken to combat homelessness resulting from evictions. In an effort to combat homelessness, New York City Mayor Bill de Blasio has spent nearly $20 million over two years to provide lawyers for low-income tenants fighting evictions in Housing Court.


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Can my old landlord hire a debt collector to sue me for moving out of my apartment early?

Can my old landlord hire a debt collector to sue me for moving out of my apartment early?

A debt collector is allowed to contact someone to collect on a valid debt.  Before determining whether a debt collector is allowed to contact someone in a particular situation, the underlying legal situation first needs to be evaluated.

When two people enter into a lease to rent an apartment, they usually sign a contract to be jointly liable to the landlord for payment of the rent.  If either party breaks the lease, then the landlord has the right to sue either party for recovery of all the lost rent.  That lawsuit can include late fees or other charges authorized by the lease.  The legal doctrine that allows a landlord to sue either tenant (or both tenants, at the choice of the landlord) is called “joint and several liability.”  Rather than suing, a landlord can appropriately place the account with a collection agency to collect on the unpaid rent.

A separate contractual relationship governs the relationship between tenants.  Usually, two people entering into a lease agree to split the cost, where each side agrees to pay a certain amount towards the total rent.  If one of the tenants stops making payments, then the other tenant has a claim for breach of contract against the non-paying tenant.  The paying tenant can even pay the entire rent due to the landlord themselves to prevent a breach of the lease, and then sue the non-payer for breaching their agreement to split the cost.

Assuming valid contracts exists, moving out of town is generally not a good enough reason to get out of a lease.  There is no requirement that the landlord agree to allow someone out of a lease early, and no requirement for the landlord to agree to shift all of the payment responsibility onto the other tenant.  There is also no requirement for the other tenant to agree to accept all the liability for the entire lease and allow the other tenant to move out early.  It would be pretty unfair to the roommate left behind to have to pay all of the money to the landlord each month when they entered into the lease thinking they would only have to pay half.  Thus, if one of the tenants moves out early, that person should not be surprised if they are sued by both the landlord and/or the other roommate for amounts not paid.

That all said, landlords have a duty to mitigate their damages by trying to rent out the property immediately after eviction.  They cannot wait around for months in order for their damages to compound and then sue for a much bigger number than if they took appropriate steps to lease the unit to someone else immediately.  In our Franklin County, Ohio, for example, landlords are generally only able to collect about two months of future rent as damages even if the lease had six months left on it.  The landlord can also sue for fees and costs allowed by the lease or allowed by the law.  That would require looking at local law, and raising failure to mitigate damages in the court case, probably through a lawyer.

One final note on the issue of whether a debt collector is acting appropriately.  A debt collector is only allowed to demand that amount of money which is actually owed and is bona fide and reasonable.  Thus, if the debt collector is adding fees or costs which are not allowed by the terms of the lease (or are prohibited by law), then the debt collector might still be liable under the FDCPA for collecting on an inflated debt.  That kind of lawsuit could wipe out the rent claimed as due and cover your attorneys’ fees, even if the balance of the underlying debt was otherwise valid.  An experienced consumer lawyer could help there, which is what we do.  Call (614) 944-5219 if you are in Ohio.


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