Complicated question for an attorney re: civil suit against former landlord who filed for bankruptcy?
March 15th, 2011 | 
Author: I had a 3 year lease, my landlord lived out-of-state, he stopped paying the mortgage on the house I rented, used my rent money to pay on his home in TX and filed for bankruptcy when the IL house I was renting went into foreclosure.
I sent him notice that I was moving out in 45 days when I found out he was losing the house. I was current with rent, left the house immaculate (took pics, videos, and a statement from this real estate agent that I left the home in beautiful condition).
He agreed in writing to my move-out date, and also put in writing that HE broke our lease. I did not pay him the last month’s rent ($2000) because he owed me the $1800 security deposit and another $475 in lawncare expenses and some smaller maintenance expenses (I have that in writing from him, too). As he had filed BK I did not feel he would pay me those monies which I why I did not pay the last month’s rent.
LOOOONG story short, he sued me for the last month’s rent, added on another $1000 for the 5 days extra I took to finish moving out (he was not offering the home to rent to anyone else, no one was viewing the home – he lost no money as a result of those 5 days).
The day of court, I showed up with my attorney, all my paperwork, receipts, etc and my landlord did not show up but his attorney did. 11 months later I missed a follow-up court date as I was NEVER served or sent notice of the appearance and of course, a default judgment was made, plus fees for his attorney and court costs.
Sorry, long-winded – but here is my question: Can I sue the landlord for return of my security deposit, the lawncare service fees, etc – all the things I have in writing that he owes me? The attorney I had initially hired cost me $650 to show up in court the day my landlord did not. As he already filed for bankruptcy, if I won, he would have to pay me, correct? He is working – I know what company he is now at.
I am in IL and he is in TX which I understand has some kind of homestead rule where creditors cannot put liens on property or garnishee paychecks.
Thank you for advice!
Thank you both very much for replying.
The ex landlord filed his BK over a year ago, so I would think it would be completed by now. I figured anything he gets sued for after it is discharged, he would need to pay? I am certain the money he owed me was not included in his filing – I was never contacted by the court as a creditor.
I do not have funds right now to pay my attorney additional money (got laid off a few months back). So…no money for him – no help from him.
Regarding my getting served about the second court date – no I did not move. When I called the landlord’s attorney, he stated he sent me a notice via regular mail to my correct address. Did not get it. I am working on getting the judgment set aside, but as I found out about the default judgment more than 30 days after the fact, this is a bit difficult.
You are good folks for helping me out – thanks!
Posted in Landlord Tenant Law
I do believe it is against the law in Texas to garnish wages for any debt, sucks but true. Texas seems to be the greatest state to live in when it comes to debt collections, as it can’t be touched. But, I think bank levies can be done, since income is from work, but once it goes into a bank account it is fair game. Check with an attorney about this. He should not have been able to get away without serving you notice of a court date, and for this reason alone, you should make a motion to the court to set aside the judgment due to improper service or no service at all in your case.
Well, you already hired a lawyer to deal with this. Talk to him.
I know in Massachusetts you could file a motion to set aside the default judgement. You might win if you bat your eyelashes and look helpless, and will definitelty win if the other side can’t provide some sort of proof that you were served notice. Depending on the state and stage of the proceedings, this may be a signed document from a constable, a certified mail receipt, or a signed note in which he swears under oath he mailed it to a certain address. He would have filed this with the court when he filed his motion for a default judgement. (Did you move? Could he have mailed it to your attorney?) Ask the attorney if he received mail for you, go to the court and get a copy of the documents he filed there.
You want to remove the default judgement, so it won’t mess up your credit
Collecting on a judgement against the landlord is tricky. When you declare bankruptcy, federal law puts a hold on all efforts to collect debts. This includes some legal proceedings. There can be harsh penalties for breaking this law. Is the bankruptcy proceeding still going on? You don’t want to try to collect this debt without the help of an attorney unless you are sure the bankruptcy was over and done with before you filed suit.