My husband and I recently took our x landlord to court for not paying us our security deposit. She counterclaimed that we had ruined her floors and should pay for it. The magistrate ruled in our favor, dismissed her counterclaim and ordered her to pay us $2.040 by Dec 3. We got a letter from her to vacate the judgement on the ground that the court did not allow her to present any testimony in support of her counterclaims (she brought pictures of the floor, but neglected to bring statements from the bank which held our security deposit, (which we never received a copy of)) The case was already heard, I assumed that vacating judgements was for those who failed to show up in court to begin with. The magistrate has already heard our case. What is the likelihood that they will let her plead it again?! UGH

What she is doing is filing an appeal. She is filing the appeal on the grounds that she was not allowed to properly present evidence. If the appeals court rules that she was not, they will vacate the judgement and order a new hearing.

So it all boils down to why the magistrate dismissed her counterclaim. Now many states have a time frame by which the landlord has to either return the deposit or an itemized statement of what the deposit was used for. If the landlord fails to do so within the allotted time, they forfeit the right to use the deposit for repairs. So, if that's why the magistrate refused to view her evidence, the appeal will be turned down. Otherwise, I can't tell for sure.

Basically the magistrate dismissed because she didn't come to the court prepared. When he asked her if she had the statements holding our security deposit, she said she didn't, because "she didn't realize she had to bring them". Just like she "didn't realize she had to give us a copy of them" Being that the landlord/tenant laws are pretty strict in MA, I think he found it pretty hard to believe that she didn't know she had to provide us with copies of those statements. Also, I think that decided the case. She never gave us copies, period. So whether she has them or not is a moot point, we never got them, nor did we get our security deposit back within the 30 day allotted time. She basically tried to screw us from the beginning anyhow. We were only there for 2 months when she told us she was going to sell and we'd have to move...

Hello robyngar:

There's also a time frame in which she has to file her motion to vacate and/or appeal whatever it is. Plus, it has to be based on a ruling made by the magistrate that was contrary to law - not just because she doesn't agree with his decision.

Her case was dismissed because she couldn't prove it. Yes, she couldn't prove it because she didn't bring evidence. The dismissal sounds perfectly within the judge's discretion to do. Based upon what you've told us, she'll lose.

However, be forewarned. This lady ISN'T about to pay you willingly. Unless she's been given a STAY of execution, which she would have to move the court to grant, I would EXECUTE your judgment as quickly as possible.

Take your judgment to the sheriff or the bailiff or the constable of the court (whatever they call them in your jurisdiction), and hire him to get your money. It would help if he knew where her bank accounts and other liquid assets were.

excon

Thank you! How long does it usually take to do this, and is it costly? I knew she was going to pull some bs with us, she's a coy one...

Hello again, robyngar:

Nahhh. They're public servants. They'll charge milage and an hourly fee. But, when they show up in their uniforms with a gun strapped on, they're HARD to refuse. If she has cash at home, send 'em there.

How long? If you go today, and they go today, her bank account will be frozen tomorrow.

excon

One more question, we got notice today that we have to go back to court because well, in reality like I said, she didn't like the outcome and she didn't bring proper paperwork with her the first time so she wants a re-trial... I want to go just to laugh her out of the courthouse... but will sending a constable now do any good? Or should I wait until after the court date?

but will sending a constable now do any good? Or should i wait until after the court date?Hello again:

If you have a judgment, and it has not been stayed, then it's valid TODAY. If you want to wait, that's on you. I wouldn't.

excon

You need to determine, as excon, noted whether there has been a stay issued on the judgement. The court clerk can tell you. If one has not be issued, then you can execute the judgement and attach her assets. (if you paid her by check, your cancelled checks should show the account they were deposited to). You should not wait if you can execute the judgement.

You need to determine, as excon, noted whether there has been a stay issued on the judgement. The court clerk can tell you. If one has not be issued, then you can execute the judgement and attach her assets. (if you paid her by check, your cancelled checks should show the account they were deposited to). You should not wait if you can execute the judgement.

Thank you, you've both been extremely helpful. I will go to the courthouse tomorrow and ask if there has been a stay issued. I'm just curious as to why I need an acct number? She has been ordered to pay us treble damages (which when all added up is $2,040 by December 3rd. My guess is she's jerking us around by filing this motion. She's a tool... (sorry) I'm just so angry about this whole thing...

Umm, Small Claims court does not work like The People's Court. After the judge rules you don't go sign some paperwork and get a check. When you are awarded a judgement and she is ordered to pay, but nothing is keeping her from walking out of the court and stiffing you. In most small claims cases, the winner still has go and collect. Usually this means attaching a bank account or garnishing a salary.

You need to determine, as excon, noted whether there has been a stay issued on the judgement. The court clerk can tell you. If one has not be issued, then you can execute the judgement and attach her assets. (if you paid her by check, your cancelled checks should show the account they were deposited to). You should not wait if you can execute the judgement.

The clerk at the courthouse is saying she's not sure she can even answer that question? YIKES

Hello again, robyn:

Your question should have been, "has there been a stay issued?". You should NOT have asked anything about executing your judgment. The clerk should NOT be your sounding board for LEGAL advice. I guess that's Scotts and my job.

The answer to your question can be ascertained by LOOKING at the file. You don't even need the clerk to do that. If there's a STAY in there, then there is. If there's a MOTION for a stay, and no ORDER, then there ISN'T a stay. However, I highly doubt there's even a motion.

I would NOT call, but instead I would personally GO to the courthouse. Physically LOOK at the file. Then WALK up to the bailiff's office and hire him. I would do that right now. Don't talk to the dufus clerk anymore.

excon

Hello again, robyn:

Your question should have been, "has there been a stay issued?". You should NOT have asked anything about executing your judgment. The clerk should NOT be your sounding board for LEGAL advice. I guess that's Scotts and my job.

The answer to your question can be ascertained by LOOKING at the file. You don't even need the clerk to do that. If there's a STAY in there, then there is. If there's a MOTION for a stay, and no ORDER, then there ISN'T a stay. However, I highly doubt there's even a motion.

I would NOT call, but instead I would personally GO to the courthouse. Physically LOOK at the file. Then WALK up to the bailiff's office and hire him. I would do that right now. Don't talk to the dufus clerk anymore.

excon

I did ask if there was a stay issued, she said "what do you mean"? I said, has there been a stay issued on our judgement... she said she had to ask the clerk that and she was in court, to call back... but I will go to the courthouse myself. Although I'm not sure what good that will do me if the clerk is in court?

I will go to the courthouse myself. Although i'm not sure what good that will do me if the clerk is in court?Hello again, robyn:

Like I said, you don't NEED the clerk to SEE your file. It's public record. BYPASS the clerk. Oh, I suppose you need to request the file at the clerk's window, but there's got to be somebody manning the window even though the official court clerk is in court.

Maybe that's the problem. There's an "official" court clerk. There's only one. HE, however, isn't the guy who mans the window or windows (depending on the size of the courthouse). And, it really doesn't matter anyway. Just ask to see the file. DON'T ask questions.

I can't believe the window is closed during normal business hours. Isn't the clerk in court every day?

excon

Hello again, robyn:

Like I said, you don't NEED the clerk to SEE your file. It's public record. BYPASS the clerk. Oh, I suppose you need to request the file at the clerk’s window, but there's got to be somebody manning the window even though the official court clerk is in court.

Maybe that's the problem. There's an "official" court clerk. There's only one. HE, however, isn't the guy who mans the window or windows (depending on the size of the courthouse). And, it really doesn't matter anyway. Just ask to see the file. DON'T ask questions.

I can't believe the window is closed during normal business hours. Isn't the clerk in court every day?

excon

Done deal, thanks, I'm on my way to the courthouse.

done deal, thanks, i'm on my way to the courthouse.

Mr. Ex... I was just looking at my judgement, and it says the court has issued a PAYMENT ORDER ordering the defendant to paya the total amount by 12/3/07.

I'm assuming that order is still in effect even though she wants to vacate the judgement?

Just asking because I'm also assuming the courthouse has the same documents as I do?

Also, the judgement was entered on November 2nd and she had 10 days to appeal. She didn't ask the court to vacate the judgement until November 21st. Wouldn't that make all of this null and void?

Mr. Ex...ordering the defendant to paya the total amount by 12/3/07..... I'm assuming that order is still in effect even though she wants to vacate the judgment? Just asking because I'm also assuming the courthouse has the same documents as I do?Hello again robyn:

I thought you were on the way... By the way, Mr. Excon was my dad. I'm just plain ol excon.

Yes, I'm assuming your documents are the same as those in the courthouse. Of course, something could be in the mail. That's why you need to LOOK. The courthouse file is the "official file". What's in there, is what's happened.

By the way, the 3rd was 3 days ago. Did you get paid?

As an interesting aside. I have never seen a judgment that gave a PAY BY date. The only judgments I've seen are those that award PAYMENT - period. Soooo, I'm wondering if you even HAVE a real judgment...

excon

Also, the judgement was entered on November 2nd and she had 10 days to appeal. She didn't ask the court to vacate the judgement until November 21st. Wouldn't that make all of this null and void?Hello again, robyn:

Yes. GO GET YOUR MONEY!!

excon

Hello again robyn:

I thought you were on the way.... By the way, Mr. Excon was my dad. I'm just plain ol excon.

Yes, I'm assuming your documents are the same as those in the courthouse. Of course, something could be in the mail. That's why you need to LOOK. The courthouse file is the "official file". What's in there, is what's happened.

By the way, the 3rd was 3 days ago. Did you get paid?

As an interesting aside. I have never seen a judgment that gave a PAY BY date. The only judgments I've seen are those that award PAYMENT - period. Soooo, I'm wondering if you even HAVE a real judgment....

excon

Well, I went to the courthouse and the only thing different was the motion scheduled for hearing on 12/20.

I will write verbatum what we received from the court, I'm pretty sure it is a real judgement:

On the above claim, after trial by a magistrate, the Court has entered JUDGEMENT IN FAVOR OF THE PLAINTIFF(s) listed above (that's us)

The defendant(s) must pay the plaintiff(s) the "judgement total" shown below, plus additional postjudgement interest under General Laws c. 235 ss 8 at the "Annual Interest Rate shown below from the "Date Judgement Entered" shwon below until the date of payment. The defendant(s) is required by law to pay the plaintiff(s) that total amount. Unless the defendant(s) failed to appear, the defendant(s) has a right to appeal within 10 days after receiving notice of this judgement. See the enclosed instructions for additional information.
The Court also issued a PAYMENT ORDER ordering the defendant(s) to pay the total amount by 12/03/07.

The Court also scheduled this matter for a next event on the date shown above, at which both parties must appear unless excused. the defendant(s) is subject to arrest for failing to appear See enclosed instructions.

I'm assuming that is a judgement. At least I hope so.

I'm assuming that is a judgement. At least i hope so.Hello agan, robyn:

Sounds like one. Did you visit the bailiff?

excon

Hello agan, robyn:

Sounds like one. Did you visit the bailiff?

excon

I was told by a lawyer to file an application for supplimental process. She will be served

How does that work, do you know?

I was told by a lawyer to file an application for supplimental process. She will be servedHello again, robyngar:

She'll be served WHAT, and by WHO, ordering her to do exactly WHAT??

I thought you were headed to the courthouse... Where did you run into a lawyer? Look, if you don't go get your money, you're not EVER going to get it...

The term "supplemental process" is just lawyer speak designed to separate you from your money...

Did you take your judgment to the constable?? Did HE tell you that HE needs some supplemental process before he can be hired??

The ONLY supplemental process that MIGHT be required in your jurisdiction would be an "execution of judgment". That's not something she needs to be served with, though. Ask your newfound fancy schmancy lawyer if THAT'S what he means. If not, ask him what the hell he's talking about. AND, why don't you hire him to do it for you? You can afford it, treble damages and all.

excon

PS> No, I'm not mad at you. I'm just cranky...

I gather she didn't make the 12/3 deadline. When is the next scheduled event mentioned? What was the purpose for that?

Hello again, robyngar:

She'll be served WHAT, and by WHO, ordering her to do exactly WHAT?????

I thought you were headed to the courthouse...... Where did you run into a lawyer? Look, if you don't go get your money, you're not EVER going to get it......

The term "supplemental process" is just lawyer speak designed to separate you from your money....

Did you take your judgment to the constable???? Did HE tell you that HE needs some supplemental process before he can be hired??????

The ONLY supplemental process that MIGHT be required in your jurisdiction would be an "execution of judgment". That's not something she needs to be served with, though. Ask your newfound fancy schmancy lawyer if THAT'S what he means. If not, ask him what the hell he's talking about. AND, why don't you hire him to do it for you? You can afford it, treble damages and all.

excon

PS> No, I'm not mad at you. I'm just cranky...

WOW!! You really are cranky... ugh... heck, I don't know the ins and outs of the law... went to the courthouse to get that application and they said it would be a waste of money and time being that we have to be in court on the 20th anyhow to see if they will hear the ex's "motion to vacate" bs... I hope they laugh her out of there... I really would like to put a beating on this woman... anyhow.. I will have husband call the "constable" or whatever they are tomorrow... I want my good money

I gather she didn't make the 12/3 deadline. When is the next scheduled event mentioned? What was the purpose for that?

i'm assuming that rather than have to come back on the 27th (which was when we were to come back for payment process) we will do that on the 20th. Honestly, i'd like to hire someone to get my money AND break her knees

so we went back to court, she was ordered to pay us by THURSDAY and hasn't. I did call a constable but he said i had to get a "reason so show cause" and file that before he could go and collect our money....????? I think the "justice" system is more for the crooks...it's amazing that this can just not pay us and get away with it....so i went to the courthouse to file a "reason to show cause"...now what???:mad:

Was she at the hearing? I don't understand this show cause order. What you need is a garnishment order attaching some asset, either salary or a bank acount or something else tangible. The court issues the order and the constable or a sheriff or similar then enforces it. This could be serving the job or bank or physically seizing the asset.

I don't think it is a re-trial. I think it will be a trial de novo - meaning a WHOLE NEW trial probably in front of a real judge where she will present her evidence and witnesses.

You need to be prepared and have an attorney if possible and if they are permitted.

An order to show cause is not a re-trial or a trial de novo. It is an order addressed to the ex-landlord to show why the constable should not seize her assets to satisfy the judgment. Basically it is one last chance for her to pay before the constable starts taking her assets. During the hearing she is not entitled to present any defense to the underlying claim. She has already lost the case and now the issue is how she will satisfy the judgment.

An order to show cause is not a re-trial or a trial de novo. It is an order addressed to the ex-landlord to show why the constable should not seize her assets to satisfy the judgment. Basically it is one last chance for her to pay before the constable starts taking her assets. During the hearing she is not entitled to present any defense to the underlying claim. She has already lost the case and now the issue is how she will satisfy the judgment.
What if I filed a writ of execution before she got notice to show cause? I can't even tell you how sick and tired I am of her jerking us around. It amazes me that after she's been ordered TWICE to pay she still hasn't. Maybe I should have just filed a writ in the first place?

I'm not familiar with the standard procedures for collection but it's definitely worth a try. Go for it!

Was she at the hearing? I don't understand this show cause order. What you need is a garnishment order attaching some asset, either salary or a bank acount or something else tangible. The court issues the order and the constable or a sheriff or similar then enforces it. This could be serving the job or bank or physically seizing the asset.yes, we had a second hearing because she wanted the first judgement vacated, that didn't happen, the magistrate basically told her that she lost and she had to pay. So of course, she cried poor and he set up a payment plan. She had to pay us $700 by last Thursday (which she didn't) and the $75 a month until the rest was paid off. Well since she didn't pay us the $700 by Thursday I called a constable but he said I had to first file a "notice to show cause" which I did. Now I assume it's just a waiting game? Do we have to go back to court AGAIN?? I should have filed a writ and gotten it over with. I'm SO frustrated

Since you already filed the "notice to show cause" you'll have to wait for that to be heard.

Why don't you try calling the court clerk and ask them what your options are for collection?

on a sidenote, she has $1,400 of our money (supposedly) in a seperate bank account (our security deposit, the one that she never sent copies of). When we moved in we paid her $700 up front and paid the rest off monthly until it was paid off. When we took her to court we sued her for only 3x's the $700 because i (idiot) totally forgot about paying the sec deposit off. So basically could we have gone to civil court and sued her for 3x's $1,400? I'm just wondering....

Yes, you could have.

I will do that, it's just aggrevating that i have to go through all of this when she was in the wrong. :mad:
Since you already filed the "notice to show cause" you'll have to wait for that to be heard.

Why don't you try calling the court clerk and ask them what your options are for collection?

is it too late to do that?
Yes, you could have.