4 Practical Ways to Help Resolve a Nonpayment Proceeding

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If your landlord started a Nonpayment Eviction proceeding against you, you may find below some tips that could potentially help resolve your case. If your landlord is suing you in housing court, but you are unsure of the specifics, you should first refer to the article Understand the types of eviction you are being sued for: Nonpayment vs. Holdover, and come back here afterwards.

Dismissing your nonpayment case based on technicalities

As we mentioned in the article Illegal Lockout: My landlord changed my lock, what should I do?, a landlord cannot throw you out of your home without going through a formal judicial proceeding. In New York, the laws governing the commencement of an eviction proceeding are the Civil Practice Laws and Rules (CPLR) and the Real Property Actions and Proceedings Law (RPAPL).

Those laws specifically dictate the rules attached to the civil practice, and that includes indication on how a Petitioner (the landlord) can sue Respondents (their tenants):

• What documents need to be filed with the court and served on the Respondent to commence an eviction proceeding?

• What should a petition contain?

• How to properly serve a Respondent?

• What is the timeline to do so?

• How to provide proof of proper service with the court?

• Whether a Notice or a Rent Demand has to be served on the Respondent before filing the Petition with the Court?

• How long after the Notice or Rent demand can they file the Petition?

• What information should be included in the Notice?

• etc…

RULES MUST BE FOLLOWED…

If the Petitioner failed to properly address any of the rules stipulated by the CPLR or RPAPL, you may want to look deeper, because it may be grounds to request the judge to dismiss the eviction case, and you may be able to get rid of the case this way. Be aware that a landlord may, a few months, weeks or even days later, file a new Petition against you. That being said, noticing any defect in the Petitioner’s papers that could get your case dismissed, might still give you a significant advantage, in giving you leverage for settling the case in a way that works for you. Indeed, finding an issue with the pleadings will most likely make the landlord’s attorney be more willing to negotiate a deal with you because they basically messed up their client’s case. Having to re-file a case all over again would cost time and money. They may want to avoid that, and you can use this to your advantage.

Contesting the amount the Landlord is demanding: What if you owe less than what the landlord is suing you for?

Landlords make mistakes. Do not trust the number they give you! If your landlord tells you that you owe a certain amount, you should not believe it blindly. You may want to request a rent ledger, from the day the landlord alleges that the rental arrears started to accrue, and redo the calculation yourself. You may want to retrieve all your past receipts, copy of money orders, proof of wire transfers.

• If you have a Public Assistance case, you can request an history of shelter payments from the Human Resources Administration (HRA), to make sure that the ledger reflects all payments that were sent to the landlord.

• If you find mistakes in the ledger because the landlord failed to deduct some of the payments they receive, you should provide proof of those payments to the court.

• If you do not have any proof of payment, it may be difficult to prove that you did in fact, pay your rent. This is most likely going to be a case of “he-said-she-said”, which is not ideal. We all learn from our mistakes, next time remember to ALWAYS KEEP PROOF OF RENT PAYMENT.

What if you don’t owe the Landlord any money?

In some cases, landlords erroneously allege that you owe them money, when in fact you don’t. If this is the case, once again, you should make sure to retrieve the proof of payments and submit them to the court.

As outrageous as it sounds, many nonpayment cases are brought against tenants because of government agencies’ failure to issue checks to the landlord. Those would be case scenarios where a portion or the totality of the rent is supposed to be covered by an agency such as Section 8 or HRA, but the landlords do not receive the checks.

Those cases are no fault of the tenants, but they are still brought against them, despite the fact that they properly paid their share of the rent, or may have no share to pay.

If you are facing such a case, you can provide the court with your Section 8 lease, a notice from HRA indicating monthly shelter payments, or the agency’s award letter showing how much rental subsidies are supposed to be paid directly to your landlord, and how much is your share, if any.

You should also contact the agency directly and demand that they promptly fix their mistake by issuing appropriate retroactive payments. Those cases are aggravating and much more frequent than they should be.

Why are you at threat of eviction because of the agency’s failure to properly issue the checks they guaranteed they would pay on your behalf?

When landlords are well aware that they are missing checks from the agency, why wouldn’t them sue the agency instead?

Having said that, before screaming that the agency is to blame, make sure that the missing payments are not a result of your failure to timely re-certify! If you missed the recertification deadline, you need to act fast! You should provide the documents requested to the agency as soon as possible, and ask that they promptly issue all missing retroactive payments.

Agreeing on a budget plan: settling the case with enough time to come up with the money

If you do not contest the amount of rental arrears owed and if you believe that you can come up with the money without much hassle, you may want to try and settle the case with the landlord.

Both parties can agree on monthly installments, or a deadline by which the tenant would pay all rental arrears, and upon receipt of said payment, the landlord would discontinue the case and award the tenant with a new lease.

When trying to settle a case, do not automatically agree with what the landlord is offering you. You can and should try to negotiate. You could, for example, attempt to waive some fees, or decrease the balance, if you are able to pay faster than initially agreed.

Be aware that most landlord’s attorneys would force an eviction warrant clause in the stipulation of settlement. You should try, to the extent possible, not to agree to such terms. Agreeing to an eviction warrant clause would give the Petitioner the right to a possessory judgment, when the deadline is passed. The judge will then issue a warrant for your eviction that indicates the earliest date you can be evicted. In other terms, when signing a stipulation that includes an eviction warrant clause, you put yourself at risk of being evicted soon after the deadline you agreed on, if you fail to pay timely.

Getting financial help from HRA

If you are reading this article carefully, you may be confused right now. Allow me to clarify: Yes, I did previously “blame” HRA for being at fault for some eviction cases being brought against tenants because of delayed shelter payments, or wrongful discontinuance of Public Assistance cases…

Well the opposite is true as well. HRA’s mistakes can bring you to Court, but HRA can, and has, in fact, helped resolve MANY eviction cases.

Depending on your family situation, your income, and how much you owe, HRA might help by lending or giving you money to cover the full rental arrears, and they might even approve you for ongoing payments covering full or part of your rent going forward. Check out the article Am I eligible for NY rental assistance? Insights on One Shot Deals, FHEPS, CityFHEPS to find how to apply if you are eligible for these programs.

Remember, those 4 practical ways to help resolve a Nonpayment case are examples and tips but this is not an exhaustive list. Remind yourself that you have options and understanding what each means for you is an important part of the process.

I hope it helps, don’t give up on yourself. You have rights, claim them!