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Apartment Debt Collections


TXlaw
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Hello,

CA (Hunter Warfield out of FL) has posted apartment debt on my CR. I sent them a DV while at the same time disputed with CRA's. (I am in Georgia).

The debt was reported on my CR without notifying me about it.

There is no Security Deposit (I didn't have to pay one when I moved in). Apartment complex has NOT notified me timely about any move-out problems/charges.

Today I received a copy of my lease with an itemized list of charges from the CA.

I am planning on disputing the charges and my strategy was to 1) request copies of pictures and receipts.

However, I think a better strategy is available to me and I want to hear your thoughts on it.

It looks like if they don't give you a detailed written statement (or at least

mail one to your last known address) within 30 days, they forfeit their right to your deposit OR bring an action against the tenant for damages to the premises.

Am I correctly reading into it that if they don't notify me within 30 days of any problems, then they can't bring an action against me?

44-7-35 G

*** CODE SECTION *** 12/03/01

44-7-35.

(a) A landlord shall not be entitled to retain any portion of a

security deposit if the security deposit was not deposited in an

escrow account in accordance with Code Section 44-7-31 or a surety

bond was not posted in accordance with Code Section 44-7-32 and if

the initial and final damage lists required by Code Section 44-7-33

are not made and provided to the tenant.

( The failure of a landlord to provide each of the written

statements within the time periods specified in Code Sections

44-7-33 and 44-7-34 shall work a forfeiture of all his rights to

withhold any portion of the security deposit or to bring an action

against the tenant for damages to the premises.

© Any landlord who fails to return any part of a security deposit

which is required to be returned to a tenant pursuant to this

article shall be liable to the tenant in the amount of three times

the sum improperly withheld plus reasonable attorney's fees;

provided, however, that the landlord shall be liable only for the

sum erroneously withheld if the landlord shows by the preponderance

of the evidence that the withholding was not intentional and

resulted from a bona fide error which occurred in spite of the

existence of procedures reasonably designed to avoid such errors.

Thanks!

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Realize that what they have to send to comply with DV and what they have to prove in court are 2 different things. Just about any CA can qualify DV if they want to. What you probably want to do therefore is goad them to sue you where they would need more than the lease to prove their case.

Now realize all the landlord has to do is prove that they sent out the statements. A certified mailing receipt along with an affidavit showing what was in the mailing is enough for most courts as long as they can show that it was indeed sent to your last known address. They do not have to prove that you received the statements under law.

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The landlord has never sent me any certified letter. I always have address forwarding with USPS, so there is no way I can miss my mail.

Further, I have not received any communication from the apartment complex within the 30 days as required by law. Though i didn't have a deposit, they should still comply with the 30 days rule, at least that's my understanding.

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They do not have to prove that you received it. They just have to prove that they sent it to your last known address. If you read the statute, that is what it says. However, if the landlord just tossed it in the mail, that would not be good enough for the court.

The fact that you may not have received the letter may not absolve you of responsibility. That is what would be fleshed out in court if the issue comes to that.

Your choices now are to pay the debt, ignore it, or say "I am not paying". If you do 2 or 3, you will probably end up in court where there you can demand proof that the landlord sent out the letter. In the meantime, the CA can call you absent of a C&D letter because they have met the requirements for debt validation.

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Let me give you this situation:

Say you are a landlord and I am your tenant. I trash your apartment and then move out in the middle of the night after not paying rent for 2 months leaving you holding the bag. I also leave no forwarding address for you to sent the notice of deficiency to and do not have my mail forwarded. You however send the notice to the apartment anyways (certified mail) and of course, it gets returned.

A year later, you find me and now want to sue me. I however swagger into court and state I owe nothing because I was not notified in 30 days. Do you think the law would allow for such a situation for long once the issue came up in court once (and I am sure it has).

That is why I say that the landlord has to prove that he mailed it to your last known address, not prove that you received it.

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Guys, thanks for your opinion, but the scenario you described is NOT analogous to mine:

I always had a mail forwarding address. I was not hiding. Yet now, almost 2 yrs later, I see this on my CR. I rec'd no mail from them within 30 days, as required by law. Also, they had my phone number and email address on file- yet I was not notified via those options either.

So, for one, I can allege that charges are not legit.

However, my main and better defense is that I was not notified within 30 days. I then cite the law that supports my position that since the landlord did not send me a bill within 30 days, I don't owe it

Even if they would have proved that I owe them something- I WOULD have owed them...IF they had followed the law and sent me the itemized charges as required by them...

What matters is that they failed in their legal duty to notify me of the alleged damages, etc and itemize it within 30 days. If they had notified me within those 30 days, I would be alleging the 1st defense (challenging the charges and requiring receipts).

Edited by flashback
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I respectfully disagree with WhoCares1000. I suspect it's just that he's a little stuck in the typical mindset of DV interaction with a Collection Agency. It sounds to me like he's thinking about the usual argument of whether or not a CA sent out a dunning notice including the FDCPA required verification notice, and what they had to do to "prove" it if you didn't get their first notice, but then received subsequent notice.

My take is this: you don't want to play in the arena of DV'ing and whether or not what they sent satisifies the FDCPA required verification.

This is an issue governed by landlord-tennant law. I'm no expert in legalese, but I intepret the code you posted the same as you, partly because I know the law in California is very similar: the landlord is supposed to provide (in California within 20 days) an itemized statement of what you're being charged for, complete with receipts and invoices for the costs he incurred for cleanup and repairs. Failure to comply within the time required results in forfeiture of the landlord's claims, and penalty of up to 2x the deposit.

Recently a California renter posted about a similar issue, and I was able to provide a link to a document on California landlord-tennant law that explained all this and more. Do a Google search for information like this for your state, and maybe you can find something similar.

Now, since you didn't put up a deposit, you won't be able to sue for its return. So my suggestion is you write to the Collection Agency and tell them you dispute the debt, and they are not to contact you anymore as you will resolve this with the landlord. (Note this in not a DV letter, but a Cease Communication letter.) Then you write the landlord that you deny owing him any money due to his failure to comply with the code you posted.

Good luck.

DH

Edited by debtorshusband
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Thank you, Debtorshusband.

So far I have sent a DV request to both OC and CA at the same time, while disputing it with CRA.

CA responded with a copy of the lease and "itemized charges". I think I will still send a 2nd DV letter to CA saying the information is not sufficient, followed by a letter requesting investigation and citing the above referenced law.

After OC's 30 days of receiving my DV letter, I will send a follow-up letter informing them they have no legal basis to claim any charges and cite the law as well.

Would love to hear what others think of this approach.

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First I just want to note that the three posts before my last post were made while I was typing my post.

I don't think I would mess around with the CA, since their only focus is to collect the amount their client asked them to. They don't care what the law says, and have no power to make decisions taking that law into account. I'm not sure why you would want more information, unless you are actually willing to pay an amount that you feel is reasonable, in order to keep your conscience clear. But, you need to do whatever you personally are comfortable with.

I do agree with WhoCares1000 that if this goes to court it will come down to whether or not the landlord complied with the law. I just don't think his burden of proof is as low as it is for the first dunning letter issue. Plus, you will be testifying to all the steps you took it ensure that you were reachable.

Good luck.

DH

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Guest usctrojanalum

I still think they have every right to put it on your CR though, even if they did not send you the statement within 30 days. The statute just says they forfeit a security deposit and the right to bring action (a lawsuit). Says nothing about sending a collection agency after you or putting it on your CR.

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Guest usctrojanalum
I think I will still send a 2nd DV letter to CA saying the information is not sufficient, followed by a letter requesting investigation and citing the above referenced law.

After OC's 30 days of receiving my DV letter, I will send a follow-up letter informing them they have no legal basis to claim any charges and cite the law as well.

Would love to hear what others think of this approach.

This is all well in good, but they do not have to comply with anything after your initial DV and their response.

From you have stated, they have appropriately responded to the DV and may continue with collection activities.

The law you cite, does not state that the debt is extinguished after 30 days. It just says you can't be sued.

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First, the threshold of DV is so low that what the CA sent probably constitutes proper validation of the debt as far as the FDCPA is concerned. If you do not want to deal with them, send a C&D letter. After that, the can only contact you once more and that is to tell you if they plan on closing the file or taking you to court.

Second, what I am trying to explain is that the question that is going to be asked in court regarding the statement is not whether your received it or not but whether the landlord mailed it out. It will be up to the landlord to prove that they mailed it to your last known address. If the landlord cannot prove that, he is up ****s creek without a paddle when it comes to court. If he can prove that he mailed it properly, then whether you received it or not is immaterial. The landlord followed the law which gives him a cause of action.

Finally, USC is correct. There is nothing stopping anyone from saying you owe me a debt and can you pay it please (short of BK court that is). However, if you know the other side cannot collect in court, then you can tell them where the can shove that debt.

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