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What to expect when you are sued for nonpayment of rents and how to deal with non payment cases

By Hana Kim, Esq.. Staff Attorney

Recently, there have been a growing numbers of cases where a tenant coming to MinKwon Center for Community Action with questions and concerns regarding court papers received as a result of being behind of their rent.  Generally, a landlord seemed to wait until the weather gets warmer then s/he brings a non-payment case to collect unpaid rents.  Although people are in the spirit of holidays, this type of waiting is no longer the case.  Even for a month or two months back rent, a landlord tries to bring her/his tenant to housing court asking the court to order the tenant to pay the back rent and even to order repossession of the apartment in favor of the landlord.  This means, Tenantmay be evicted for non-payment of rent. 

There are many procedural rules that Landlord has to follow to legally evict Tenant for nonpayment of rent, and paying a close attention to the procedural rules may help Tenant in terms of defending the nonpayment case brought against him/her. 

NEVER IGNORE ANY COURT PAPERS FROM HOUSING COURT.

First and foremost, if you receive any legal papers, notices or postcards from HOUSING COURT, never ignore them!  Once you receive any court papers, it means you are sued by your landlord, therefore, you should properly respond to the request written on the notice.  However, there are other notices you must legally receive from your landlord BEFORE you receive any papers from housing court. 

BACK RENT DEMAND AND PROPER SERVICE

Before you can be sued, your landlord or someone working for the landlord such as a landlord’s attorney must demand you the back rent you owed to the landlord, saying if you do not pay, you can be evicted.  If your lease states that such demand must be made in writing, it has to be made in writing, if the lease is silent on this demand issue, oral demand is sufficient. 

The way this notice is delivered to a tenant can be confusing and very intimidating due to multiple times delivery of the same document in different ways.  The proper way of notice delivery can be done in one of three ways.  First, it can be delivered to the tenant personally by a third party (not by the landlord himself nor by landlord’s attorney).  Second, it is also proper if it is delivered to a person of "suitable age and discretion" who lives or works at your home, not just someone who happens to be there. And then by the next day excluding holidays and weekends, a tenant should receive the two other copies, one copy via regular mail and the other via certified or registered mail, which may cause the tenant to go and pick it up himself at a post office.  This second method of service will result in the tenant having three copies of the same notice.  Lastly, any person serving this notice onto you should try to reach you personally at least twice at different times of day.  If the person fails to serve the notice upon the tenant personally, she/he can attach the notice on the door of the tenant or put it under the door, and by the next day excluding weekends and certain holidays, the two other copies should be mailed to the tenant via regular and registered/certified mail.  This will also result the three copies of the same notice to the tenant.  

If you do not pay the rent demanded after receiving the notice of rent demand and eviction the landlord can file a lawsuit against the tenant in Housing Court.  The paper a landlord files and a tenant receives are called “Nonpayment petition” and “notice of petition.”  These papers must also be served on the tenant in the same manner as in one of the three ways explained above.   Therefore, if it is not properly done, the tenant must address this issue of improper service as well. 

ANSWERING NONPAYMENT PETITION

Once you receive the nonpayment petition, you must go to the Landlord-Tenant Clerk’s office in the housing court of which address is indicated on the notice of petition.  There, you have to file an answer to the petition received.

Once you go and see the Landlord-Tenant Clerk to answer the petition, the clerk will fill out a form to prepare your answer.  You can see the actual form the clerk uses at http://www.nycourts.gov/courts/nyc/housing/pdfs/answerinperson.pdf

WHAT YOU MIGHT SAY IN YOUR ANSWER

Generally, you as a tenant can raise defenses by showing one or more of, but not limited to, the followings: 1) the service was improper, the manner of petitions delivered to the tenant was not properly done in one of the three ways explained above. 2) the name on the petition is wrong, or the person suing the tenant is not the tenant’s landlord. 3) There was no demand made for the back rent and no notice of eviction was given to the tenant, or the rent amount the landlord is suing for is wrong, or the tenant already paid all or part of the rent.  4) the tenant has a serious repair issues and the landlord failed to provide necessary services for the building or the apartment.

WHAT HAPPENS IF YOU FAIL TO ANSWER OR MISS THE COURT DATE

If you fail to file an answer to the petition on time or not show up on the court date, you can be evicted.  Regardless of defenses that you may have, your landlord may be awarded a default judgment and he/she can have a City Marshal serve you with a “notice of eviction” 

If you receive a “Notice of Eviction” then you must go to the Landlord-Tenant Clerk’s office and ask for an “Order to Show Cause (OSC).”  If the OSC is signed by a judge, this order will stay the eviction scheduled.  In most cases, the person who is filing for an OSC must show (1) a good excuse for missing the court date, such as “I never received the court papers,” or “I was sick," or “There was a family emergency” and (2) a reason Landlord should not win the case, such as “I paid some or all of my rent" or “the condition of the apartment needs serious repairs.”

Albeit the yearend holiday season, there are still many people inquiring what to do when they are sued for missing rent payments.  Hope knowing some procedural issues would help Tenants in dealing with their cases. 

The MinKwon Center for Community Action’s Housing Clinic provides free consultation to tenants (in English, Korean, and Chinese) regarding their housing problems every Wednesday from 11 am to 4 pm.  If you have any housing questions or problems, please contact 718-460-5600 and make an appointment.