How to File an Answer and Counterclaim

How to File an Answer and Counterclaim if Your Landlord Sues You

Your landlord may try to sue you for money for back rent or damage done to the rental unit as well as to evict you.  Read the complaint carefully.  If you disagree with any of the landlord’s claims, you must file an Answer.  It is your written response to the landlord’s complaint.  If the landlord owes you money, you must file a Counterclaim.  It is your written statement that the landlord owes you money.  You can write your Answer and Counterclaim on the same paper.

When and Where to File an Answer and Counterclaim

You have 28 days from the date you received the court papers (the summons and complaint) to file your Answer and Counterclaim.  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.  File your completed Answer and Counterclaim at the Clerk of Court’s office for court where the complaint was filed.  There is no fee to file an answer.  There is a fee to file a counterclaim.  Check with the clerk in advance.

Make three photocopies of your answer and counterclaim.  Take the original and copies to the Clerk of Courts to file.  The clerk will time-stamp all copies and keep the original. You will be given two copies.  Keep a copy.  You must send the other copy to the lawyer representing the landlord, or if the landlord does not have a lawyer, to the person who signed the complaint.  You must mail this copy on the same day that you listed in your certificate of service.

If you cannot file your Answer and Counterclaim within the 28 days, ask for an extension, called a Leave to Plead, for more time to file your answer.  The Leave must be filed within the 28-day period.  Your Answer and Counterclaim must be filed by the end of the extension.

If you do not file your Answer and Counterclaim on time, the landlord or his attorney will seek a default judgment against you.  A default judgment is a decision by the court in favor of the landlord, usually whatever the landlord requested.  The landlord will then seek to collect from you.

The Answer and/or Counterclaim

The landlord’s claim will state that you owe money for back rent, back utilities or damages to his property.  These ‘money damages’ will be listed in the Complaint he filed against you.  This is called a Second Cause of Action.

In your answer, tell the court why you don’t owe all the money.  If there are reasons why the landlord owes you money, that is what you state in your Counterclaim.

Your ANSWER will generally contain the following information:

  • A statement that you admit or deny that you owe money the landlord claims.
  • A request for return of any security deposit plus interest that the landlord still has.  (State the amount of the security deposit then write, “plus interest”).
  • If the landlord demands late charges which are unjustified (the charge is more than any damage the landlord has suffered by your late payment), then state that the late charges are unconscionable.
  • If the landlord demands attorney fees, state that the law does not allow for attorney fees in an eviction case.

Your COUNTERCLAIM may include things such as:

  • The landlord’s failure to do those things he is required to do as a landlord.
  • Any Improvements or repairs that you made.
  • Any personal injury to you or a family member due to the landlord’s fault. NOTE: Any claim you have involving a personal injury to you or a family member should first be looked at by a lawyer.
  • The amount of your security deposit plus interest.
  • How much less in rent the apartment was worth because the landlord failed to keep any oral or written promises to make repairs or improvements.
  • The amount of damage you suffered because the landlord failed to do what he said he would in your written lease.
  • Any other reason you should receive money from the landlord.

For each of the above claims in your counterclaim, you must state the amount of money your claim is worth.  When deciding upon an amount, be reasonable, but try not to state an amount that is too small when considering the damage you suffered.

Preparing For the Trial

After you have filed your Answer and Counterclaim, the court will send you a notice of the time and place of your trial.  You must appear on time for the trial or the court will dismiss your case against the landlord and give the landlord a default judgment.  If the landlord does not show up at the trial, ask the court to dismiss his case against you.  Then proceed with your case against the landlord.

Subpoenaing witnesses:

  A subpoena is a court order that the person has come to court.  Don’t subpoena anyone who will hurt your case.  To have them bring documents in their possession, describe in your subpoena what you want them to bring to court.  Ask the clerk to give you a subpoena duces tecum for this.  Obtain subpoenas at the Clerk of Courts in the court where your case was filed.

If the Health Department has been out to the unit, call and ask the investigator what the problems were and whether repairs have been completed.  Get his/her name and subpoena him/her for the trial.  In your subpoena, tell them to bring the Health Department file for that unit—state the exact address.  If you know the approximate date of their investigation, list that on the subpoena.

You should take the original documents with you to court, along with some extra photocopies.  The court will keep a copy for its file.

Getting a Lawyer to Represent You

It is always best to be represented by a lawyer.  There are ways to prepare for trial or negotiate a settlement that are not discussed here.  For some types of claims against a landlord, the law may allow for your attorney fees to be paid by the landlord.

This article is meant to give you general information and not to give you specific legal advice.Prepared by Community Legal Aid Services, Inc. Updated June 2012. CE-63-BR198-CLAS