Overview of Eviction Process

There are two basic parts to most eviction cases:

1. The first part (referred to as the “first cause”) is the actual eviction suit. In this suit, your landlord claims you no longer have the right to stay in the rented home and requests a court order to force you to leave.

2. The second part (referred to as the “second cause”) is your landlord’s attempt to sue you for money. In this suit, your landlord claims you owe money - usually for things such as: back rent (rent you failed to pay in the past), back utilities (utilities bills you failed to pay), or damage you caused to the home. Your landlord requests a court order giving him/her the right to collect money from you.

• To find the amount of money your landlord is asking for, look in the Complaint he/she filed against you.

Although both the first and second causes are filed together (in one complaint) and have the same case number, they are treated as separate cases. Two different hearings will be held, one to determine whether or not you should be evicted and another to determine if you owe money to your landlord and if so, how much.

WHAT DO I DO WHEN I RECEIVE A COMPLAINT FOR EVICTION AND MONEY DAMAGES?

If you do not think you owe your landlord money or you disagree with the amount of money he/she claims you owe, you MUST file what is called an “Answer”. An answer is your written response to your landlord’s claim that you owe money. If you do not file an answer, you will automatically lose (your landlord will get a default judgement).  There will be no hearing if you do not file an answer.

If you feel your landlord actually owes you money, you should file an “Answer and Counterclaim”. A counterclaim states your claims against your landlord and explains why your landlord owes you money. In a counterclaim you are actually suing your landlord.  There is a filing fee due to the court when you file a counterclaim.

TIMING IS IMPORTANT:

Your “Answer” or “Answer and Counterclaim” must be filed with the court within 28 days of the date you received the eviction summons and complaint.  If you don’t file within this time period, your landlord will get a judgment against you for the amount of rent he/she claims you owe and court costs.  You will also lose the opportunity to sue for the money you think your landlord owes you.

Your landlord has 14 days to reply (answer) to your counterclaims. If the landlord does not reply, then you can ask for a default judgement (order in your favor because the other side did not respond as required or failed to show up in court) against your landlord.

STEPS TO FILING ANSWER OR ANSWER & COUNTERCLAIM:

1. Decide which you will file, the Answer or Answer and Counterclaim.

ANSWER: If you only wish to dispute the fact that you owe money to your landlord or the amount of money he/she claims you owe, you want to file an answer.

The answer states:

• A denial that you owe part or all of the money your landlord claims you owe;

• A request that your landlord return your security deposit, plus interest;

• A general denial that you owe the money is sufficient

ANSWER & COUNTERCLAIM:

If there are reasons why your landlord actually owes you money then you want to file an Answer and Counterclaim.

Possible reasons why your landlord could owe you money include:

• You overpaid on rent,

• Your landlord will not return your security deposit,

• You made improvements/repairs to the apartment,

• You or a family member suffered an injury because of something that is the landlord’s fault

2. Calculate when you must file your Answer or Answer & Counterclaim. You have 28 days from the date you received the court papers (summons & complaint) to file your papers. If the last day of the 28 day period falls on a Saturday, Sunday, or national holiday, you have until the next business day to file. If you do not remember when you received your papers, call the Clerk of Courts office at the court where your case was filed - give them your case number and tell them you need the date you were “served”.

3. Complete the necessary paperwork.

What do I say in the answer?

Deny any part of the complaint you believe to be untrue. (If you do not deny something, the court will assume it is true and you will not be given a chance to deny it at the hearing.)  State your counterclaims (if any). To do this, simply describe why your landlord owes you money and how much you believe you are owed.

At the end, tell the Court what you want it to do.

• If you have no counterclaims, you want the court to dismiss the case and require your landlord to pay court costs.

• If you have counterclaims, write the amount you want the court to award you.

TIPS:

• You (the tenant) are the Defendant and your landlord is the Plaintiff.

• The Case No. is listed on the top, right-hand side of the Complaint you received.

4. Make three copies of the completed paperwork and take the original and copies to the Clerk of Court’s office to file. The clerk will time-stamp all of the copies, take the original and return the copies to you.

It will not cost you any money to file an Answer, but the court may have a charge for filing an Answer & Counterclaim. You should call the clerk’s office to check on the cost of filing a Counterclaim. You must bring the money with you or the Clerk will not let you file your documents.

Keep one copy of the time-stamped documents for yourself and give the other to the person who signed the complaint (your landlord or your landlord’s lawyer). If your landlord has an attorney, it MUST go to the attorney.  If no attorney, then to the landlord.  You can send this copy by regular U.S. mail or hand deliver it to your landlord/landlord’s attorney.

5. After filing you Answer or Answer & Counterclaim, the court will send you a notice of the time and place of your trial. The trial will usually be held 2 to 3 weeks after the case is filed. You must appear on time for the trial or the court will dismiss your case and the landlord will get everything he/she asked for in the complaint.

What to Bring With You to Court:

1. “Physical documents” relevant to your counterclaims such as: rent receipts, security deposit receipts, utility receipts, lease or rental agreement, letters written between you and your landlord, and any receipts you may have for supplies you used to make repairs. Bring the originals and photocopies.

2. Photographs relevant to your counterclaims, such as photos of the conditions of your apartment or repairs that need to be made.

3. Witnesses who have actually seen the things or actually heard the conversations that you are testifying about at trial.

a. Be prepared to testify on your own behalf.

b. Be prepared to ask your landlord yes/no questions.  (This is called cross-examination)

I FILED AN ANSWER OR ANSWER AND COUNTERCLAIM, NOW WHAT HAPPENS?

1. An eviction hearing will be held. At this hearing the judge/magistrate will only decide whether or not you should be evicted.

First, your landlord will be given a chance to argue his/her side. He or she will try to prove to the court that:

• Your lease was up or you broke the lease.

• A 3 day notice to leave was served.

• No rent was accepted from you after the notice was served.

• You are still living in the rental home.  When your landlord is finished, you will be given a change to argue your side.  Explain to the court why you should not be evicted. To prove your case, you can show the judge or magistrate a copy of the lease or rent receipts, question the landlord or the landlord’s witnesses, and explain to the court what happened.

CAUTION:

It is hard to stop an eviction when you have not paid rent, even if you think you have a good excuse for failing to pay.

Proving the following facts might help your case:

  • your landlord did not give you Notice to Leave the Premises,
  • you have a rent receipt to prove that you did pay rent,
  • your landlord accepted rent after serving the Notice to Leave the Premises,
  • The 3 day notice did not have the required language in it
  • your landlord has always accepted your rent late and surprised you by refusing it this time,
  • you offered rent on time, but your landlord refused to take it,
  • you paid you rent in escrow to the Clerk of Courts because of bad conditions in your apartment.

Last, the magistrate will make a decision regarding the eviction.

• If your landlord wins:

The court will grant the landlord a “writ of restitution.”  By executing the writ, the court will schedule a “set-out date” with the bailiff’s office.  The “set-out date” will be anywhere between 3-10 days, on average, you will have about a week to vacate the unit, or your belongings will be set-out by the Bailiff.

• If you win

The first cause will be thrown out and you will have the right to continue living at the rental space as a tenant.

2. No matter who won the first cause (eviction), if your landlord requested money damages AND you filed an Answer or Answer and Counterclaim, a hearing will be scheduled on the second cause. You will be informed of the date.

However, if you did not file an Answer, there will not be a second hearing and you will automatically lose.  This is called a default judgment. The Court will issue an order requiring you to pay money damages your landlord requested and you will not be given an opportunity to argue that this amount is incorrect, plus court costs and interest.

If a hearing is scheduled, bring evidence and witnesses with you to this hearing to prove that your landlord owes you money, and you do not owe him/her money.

For example:

If you are arguing that bad conditions in the home made it worth less than your rent, bring photos or these bad conditions or witnesses who have seen these conditions and can explain them to the Court.

If you are arguing that you paid too much rent for one month and your landlord owes you a refund of the amount overpaid, show the court the cancelled check for this overpaid amount or a copy of a rent receipt for that month.

This article is meant to give you general information and not specific legal advice.Prepared by Community Legal Aid Services, Inc.CE-63-BR200-CLAS