We had a dispute with our landlord on security deposit. Two weeks after we moved out, he asked for $1500 for damage. We replied that we only agree to pay $165 and if he does not agree, we will file a small claim. We did file it. Later we received a letter of summon from his lawyer.

After consulting around, it appears that most likely he just threatened us. And we amended our claim a few times. We decided to send him and his lawyer the response from the court after a trial date has been set. During waiting, we received the letter from his lawyer notifying us of entry into order of default judgment.

We now have the trial date set by the small claim court. We will serve it first thing tomorrow morning. Besides that, what shall we do? Are we in serious trouble of not replying to his summon not in time?

Appreciate your input.

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Originally Posted by minnesotalu

We had a dispute with our landlord on security deposit. Two weeks after we moved out, he asked for $1500 for damage. We replied that we only agree to pay $165 and if he does not agree, we will file a small claim. We did file it. Later we received a letter of summon from his lawyer.

After consulting around, it appears that most likely he just threatened us. And we amended our claim a few times. We decided to send him and his lawyer the response from the court after a trial date has been set. During waiting, we received the letter from his lawyer notifying us of entry into order of default judgment.

We now have the trial date set by the small claim court. We will serve it first thing tomorrow morning. Besides that, what shall we do? Are we in serious trouble of not replying to his summon not in time?

Appreciate your input.

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What I'm reading from your post is that you sued your former landlord while he was suing you; you ignored a court summons and a default judgment was entered against you as a result.

I don't know who you "consulted around" with but the only person who could tell you if it was legit would be the court clerk - you should have called him/her to verify that a suit had actually been filed.

I don't understand what you sued your landlord for. You said he wanted $1,500 and you offered $165. What is your grounds for suing him? Are you trying to get your security deposit returned?

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Originally Posted by this8384

What I'm reading from your post is that you sued your former landlord while he was suing you; you ignored a court summons and a default judgment was entered against you as a result.

I don't know who you "consulted around" with but the only person who could tell you if it was legit would be the court clerk - you should have called him/her to verify that a suit had actually been filed.

I don't understand what you sued your landlord for. You said he wanted $1,500 and you offered $165. What is your grounds for suing him? Are you trying to get your security deposit returned?

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Yes. I am trying to get deposit back. He charged me for items such as lawn work which according to the lease is landlord's obligation. Lower units need sewage service about every 3-4 months (water backs into kitchen sink whenever upstairs using a lot of water - this was due to the house was a single family house but he rented it to two families), and he charged for last month's service... Things as such.

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Originally Posted by minnesotalu

Yes. I am trying to get deposit back. He charged me for items such as lawn work which according to the lease is landlord's obligation. Lower units need sewage service about every 3-4 months (water backs into kitchen sink whenever upstairs using a lot of water - this was due to the house was a single family house but he rented it to two families), and he charged for last month's service....Things as such.

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So what did he sue you for? I assume he provided an outline of damages that he was seeking reimbursement for.

The problem is that you've further complicated the issue because rather than countersuing when he filed the suit, you have another suit for the same issue.

If you want to have the default judgment vacated, then you need to contact the judge who made the ruling. You're going to need better grounds than "I didn't think it was a real lawsuit" in order to have it dismissed.

Ok, So he refused to return your deposit giving a list of charges that you disputed. Was the $1500 over and above the deposit or just a total amount? How much was the deposit.

When he didn't accept your offer, you filed suit for the return of deposit and a hearing for that has been scheduled.

In the mean time the landlord sued you. Was it also in small claims? Was the notice you received a notice of the suit or a notice that they were awarded a default judgment? This is key.

If they did get a default judgment, you file an motion to vacate with the court that issued the judgement, showing that you filed A prior suit that is pending and that you never received a summons for this case.

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Originally Posted by ScottGem

Ok, So he refused to return your deposit giving a list of charges that you disputed. Was the $1500 over and above the deposit or just a total amount? How much was the deposit.
The $1500 is total, the deposit is $1025, so he asked for $475 more. I gave hime an offer and said if he did not accept, we will sue him in small claim

When he didn't accept your offer, you filed suit for the return of deposit and a hearing for that has been scheduled.
He did not answer on time (so he was aware that we sued him in small claim court), the summons is the "answer" we received. He sued us in superior court. Probably we shouldn't have warned him

In the mean time the landlord sued you. Was it also in small claims? Was the notice you received a notice of the suit or a notice that they were awarded a default judgment? This is key.
It is clear that this is default judgment for the suit he sued us in superior court b/c we did not answer the summons by his lawyer.

If they did get a default judgment, you file an motion to vacate with the court that issued the judgement, showing that you filed A prior suit that is pending and that you never received a summons for this case.

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My top priority is to make it to the small claim court while they got the default judgment - make sure no suspension on my small claim.

Ok, First you ignored a summons?

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Originally Posted by minnesotalu

b/c we did not answer the summons by his lawyer.

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That was not very smart of you. But that raises the question of who filed first. If they filed first, then you may get the judgment overturned by small claims, but not likely. More likely, the small claims court will tell you to counter sue in the Court that issued the judgment.

In the mean time they can and probably will attach your bank account or garnish your salary for the $475 plus court costs.

However, if you filed first, then you may be able to get the judgment vacated as I said. On the grounds that there was prior litigation and that the landlord should have counter sued in small claims rather than initiate a suit in another court.

I'm also curious as to what you mean by "He did not answer on time". What time limit to answer was he under? Did you serve him a summons after filing or did you just send a letter stating if he doesn't accept your offer by x date you will file.

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Originally Posted by minnesotalu

My top priority is to make it to the small claim court while they got the default judgment - make sure no suspension on my small claim.

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Again, it may be too late. It all depends on who filed first. Whoever files first get the choice of venue. If they filed first, then your small claims action will be dismissed in favor of their suit.

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Originally Posted by ScottGem

Ok, First you ignored a summons?



That was not very smart of you. But that raises the question of who filed first. If they filed first, then you may get the judgment overturned by small claims, but not likely. More likely, the small claims court will tell you to counter sue in the Court that issued the judgment.

In the mean time they can and probably will attach your bank account or garnish your salary for the $475 plus court costs.

However, if you filed first, then you may be able to get the judgment vacated as I said. On the grounds that there was prior litigation and that the landlord should have counter sued in small claims rather than initiate a suit in another court.

I'm also curious as to what you mean by "He did not answer on time". What time limit to answer was he under? Did you serve him a summons after filing or did you just send a letter stating if he doesn't accept your offer by x date you will file.




Again, it may be too late. It all depends on who filed first. Whoever files first get the choice of venue. If they filed first, then your small claims action will be dismissed in favor of their suit.

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The latter. I just sent a letter stating if he doesn't accept my offer by x date I will file.

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Originally Posted by minnesotalu

The latter. I just sent a letter stating if he doesn't accept my offer by x date I will file.

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So that means he filed first?

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Originally Posted by this8384

So that means he filed first?

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I do not know. I filed on 10/1. I received summons from his lawyer on 10/6 (required answer within 20 days). My colleague's wife check record in the court and didn't find any suit against me. So she thought it was just a threat from him and said it's OK if I just wait until I heard back from small claim court. That's why I did not answer the summons. On 10/28, they filed the default judgment. The judgment was made on 10/29.


I am still confused as why no record can be found when he started the law suit against me.

When (in law) is considered he sued me?

A summons has a docket number and a court listing. I don't know what was checked by whom. But courts are often backlogged, it may not have reached the desk of the person that was asked about it.

You NEED to find when the suit against you was filed. Get the docket number and go to the court and find out.

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Originally Posted by ScottGem

A summons has a docket number and a court listing. I don't know what was checked by whom. But courts are often backlogged, it may not have reached the desk of the person that was asked about it.

You NEED to find when the suit against you was filed. Get the docket number and go to the court and find out.

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OK. The Summons have a date of 10/2. And according to the turned document from the small claims court, they received my filing on 10/6. I was behind. I now see how I was trapped.
9/15 landlord charged me;
9/15 I made an offer and said will consider sueing him if he did not return within 14 days.
9/20 Received email from his property manager that :"*** will respond soon." (to hoax me into waiting)
10/1 He filed it as soon as he can to superior court
10/5 (?) I filed to small claim court.
10/6 Summons was served
10/28 Entry of default judgment (almost as soon as he can)
10/29 default judgment.
10/7 I received the default judgment via regular mail.
10/9 I sent them the trial date (12/4) for small claim court.

Now. Question:
1> Will the small claim get suspended before 12/4?
2> If not, will it be dismissed in court? Will I be able to get any chance to present the case?

I would go first to the Superior Court and file a motion to vacate the judgment. Use the grounds that you had informed the plaintiff of your intent to sue prior to their filing. You should, at least, get a hearing on your motion to vacate. If you don't get a hearing scheduled before your Small Claims hearing, go ahead with that hearing. Make sure you properly serve the landlord.

What I suspect will happen is they will show at the hearing the Superior Court action and ask that the Small Claims action be dismissed. I am pretty sure it will be, but Small Claims judges have some latitude.

If the judge does dismiss in favor of the Superior Court, then you go through with the vacate hearing and see what happens there. I'm pretty sure, you will get the judgment vacated and a new hearing scheduled where you can present your evidence.

I would suggest you try to get some local attorney help. Maybe from a local law school. If you go into court against an attorney, you start with two strikes against you.

I would also check the rules of Small Claims courts in your area. Some court systems require that actions involving less than the Small Claims limits be filed in Small Claims court so the Superior court may have overstepped by entertaining the suit.

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Originally Posted by ScottGem

I would go first to the Superior Court and file a motion to vacate the judgment. Use the grounds that you had informed the plaintiff of your intent to sue prior to their filing. You should, at least, get a hearing on your motion to vacate. If you don't get a hearing scheduled before your Small Claims hearing, go ahead with that hearing. Make sure you properly serve the landlord.

What I suspect will happen is they will show at the hearing the Superior Court action and ask that the Small Claims action be dismissed. I am pretty sure it will be, but Small Claims judges have some latitude.

If the judge does dismiss in favor of the Superior Court, then you go through with the vacate hearing and see what happens there. I'm pretty sure, you will get the judgment vacated and a new hearing scheduled where you can present your evidence.

I would suggest you try to get some local attorney help. Maybe from a local law school. If you go into court against an attorney, you start with two strikes against you.

I would also check the rules of Small Claims courts in your area. Some court systems require that actions involving less than the Small Claims limits be filed in Small Claims court so the Superior court may have overstepped by entertaining the suit.

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Thank you. I think your arguments make solid ground. I'd share bit more thuth here.
1> Why we didn't respond the Summons in time.
Mostly due to misleading by my consultant - my colleague's wife, who was a lawyer(!! ). I actually scanned the summons (along with a complaint) to her. She said she checked the court record and there was no suit against me. So she concluded that it was just a threat. When we talked about this at her home and asked if we should answer the summons now, she said "do not worry about the 20 day limit, many people ignore the deadline. Just go ahead and file your small claim and you can reply when you heard back from small claim court."

2> When we received the default judgment and scanned and email her. At first she said it was a "Entry of default judgment. Now it means your landlord is suing you and you need to move quickly before a judgment was made." One day later she said it was actually a default judgment. It was entered on 10/28 and judgment was made on 10/29.

3> When I received the document from small claim with trial date (12/4), I served (11/9) both my landlord and his lawyer with certified mail with return receipt. I received the returned receipt from the lawyer the day before yesterday(11/12). I haven't got it from the landloard. I wonder if they would play other trick. I am considering of having someone to serve him again if I didn't get the returned receipt in the next few days.

4> At the same time I express my concern of the default judgment on my small claim and asked her to have motion to vacate filed as first priority. She said I should set aside the default judgment and focus on getting document for small claim ready first because of some "merits" rule. Which I really don't like by instinct.

5> So we went to a law school and told our story. The professor we consulted was very angry about her and insisted we giving her information before helping us. We don't want to put her in trouble so we didn't. We ended up getting no advice.

1> What type lawyer is she? She may have little knowledge of litigation.
2> Same question!
3> If you got the return receipt from the attorney that should be enough. But you should make sure what is legal service for this situation.
4>??
5> In other words the law professor was as skeptical as I am.

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Originally Posted by ScottGem

1> What type lawyer is she? She may have little knowledge of litigation.
2> Same question!
3> If you got the return receipt from the attorney that should be enough. But you should make sure what is legal service for this situation.
4> ???
5> In other words the law professor was as skeptical as I am.

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What do you think of appealing? Pros and cons? Thank you very much!!

You aren't at that stage yet. Pursue the plan I suggested. See what happens. If you can't get the judgment vacated, then you can see about an appeal.

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Originally Posted by ScottGem

You aren't at that stage yet. Pursue the plan I suggested. See what happens. If you can't get the judgment vacated, then you can see about an appeal.

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But the appeal needs to be made within 30 days of judgment. On the contrast, I can seek for vacating within 1 year from the judgment. In my case, since the judgment was made on 10/29, I need to appeal by 11/29, which is prior to the small claim trial date of 12/4. So we have to make decision very soon.

So ile your motion to vacate.

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Originally Posted by ScottGem

So ile your motion to vacate.

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My concern is, I will be dealing with the court for "vacating". As court did not do anything wrong, whether it can be vacated is a stake. If I filed it too soon and vacate was denied, I will be in a worse position in small claim court. So I am thinking if file it before 12/4 (but not too soon) will be better.

I really appreciate your input. I never dealt such things before and to be frank, I do not dare to trust the lawyer friend very much, who now focuses on gathering info. For small claim court and asked me to do what she said. I appeared to be too panic to her.