Appeal of Judgment for Return of Security Deposit

[spinka]

My question involves small claims court in the state of: IL

So I have been trying to get my security deposit back on my apartment that was vacated on January 31st 2012. We did a walk through with the management company and they told us to give them a couple weeks to get the money from the owner of the building (as they are just a management company). They even sent me a text message saying all this which I still have and asking me for my new address so they could send a check which I gave again through text messages which I still have. Well of course the check never came and they kept giving us the runaround as to when we would be reciving it so being fed up I filed a case against them. The court date came and of course they did not show. For them not showing we got our EX-PARTE JUDGMENT. Wouldn't you know the same day as the trial I get a phone call from the office (which I put on speaker phone to have witnesses with family around). They said magically my check was there. When I tried to explain that we sued for double (as my understanding is the penalty in my state) he went crazy saying he doesn't owe us double and that I am just trying to capitalize. When I asked why he didnt show up for court 2 hours earlier to plea his case to the judge he said he had better things to do. So he told me we would not get anything and he would just have his lawyer appeal. Which he did. He filed for ALLOWED MOTION TO VACATE EX-PARTE JUDGMENT. He claims he was never holding a security deposit. Which I have a cancelled check of the security made out to the previous management company that was in charge of our building. We have a letter from back in 2011 when they took over the management of our building from a previous company and it is to my understanding that they also take over the security deposits. I am sure it is true because why else would they offer me back my security deposit? Anyways my question is do I have a strong case and also for the court date for the motion vacate the judgement will there be a trial or will they just grant him a trial? Can I speak up and show my proof that he indeed was holding a security deposit or will we get yet another court date. This is ridiculous the hoops I have had to go through to get my money back and I want them to be penelized. After all isnt that why that law is there? To prevent landlords like him from doing this to people. For all I know he tried to pocket the money in thinking I wouldn't sue. Well he messed with the wrong person. Thanks for listening!

[cmre3456]

It doesn't really matter "who" was holding the security deposit. Either the management company had it in which case they must hold the deposit monies separate from other monies in trust, in a way.

I'm a bit lost as to why the management co. didn't have the money in a trust account. It sounds as if they were still managing because they did the walk through? Trust account money can't be commingled with operating money because lacking other later actions, it's actually always your money. The landlord can't get it prematurely either. It kind of goes into a "no man's land" for the duration until its final disposition is settled.

Find out what your landlord tenant laws say about maintaining deposit money. They may also have broken that law. If the owner was managing the units, he too would have to hold the money separately. If he took the deposit and later turned the management over to a management company, he would have to give them the deposits he was holding.

I don't think the landlord has a chance at all if he or the management company or both violated either the time allowed and you won on that, or if they didn't hold the money separately as required. I'm still confused as to why the party which did the walk through wasn't also the party holding the money in trust for you. Again, that in itself might be a violation and just give you more ammo. If the money hadn't been set aside and the landlord had to produce it from his own pocket, that would help convince the judge that not only were laws broken but it's a reason why the landlord or mangt. co. didn't just have the money to give you immediately.

[spinka]

Maybe my story was a bit confusing but bottom line is the management company changed during our lease so the company we have the deposit to is not the same one that we ended with to do the walk through. So the one that did the walk through with us is "claiming" as their defense that they were not the ones holding a deposit for us. (Complete rubbish I know because they said when we did the walk through we would be getting it back and even called us after court to try and give it to us). The part about the owner is just the "story" we were given when we asked about the deposit. They kept telling us they "had to get it from the owner" who lives in California. Maybe this clears it up?

My main question though is how will it go the day in court when they try to vacate ex parte judgement? Will I be given an opportuinty to speak up to try to refute their appeal?

[cmre3456]

It doesn't matter how many times the management company changes or if the landlord takes the management back himself. There must always be a transfer of and an accounting of your deposit to and by whoever is managing it.

Your day in court should be you asking the judge for your deposit and penalty much like small claims court. Read up on your landlord tenant laws regarding deposits. It's not just about how long they have to give you your refund. It's also about where the money is domiciled. There are laws for both. If they broke the law about who had the money and how it was maintained separately, then that just makes them look worse.

I used to own 109 apartment units. If we hadn't kept a separate "trust" account for the deposits, we might have been more reluctant to refund the money. However, because we kept the money separate and never considered it ours unless the tenant forfeited it, it was no problem to give refunds. In EVERY event we had to withdraw from that special account and either refund all or part of the money, and pay the rest to ourselves if there was, say damage or rent due.

Every renter's money was accounted for separately. Management companies were required to reconcile those accounts monthly, not just to be sure they balanced as we all do with accounts, but to be sure that there was the correct amount there to cover each renter's deposit.

I wish I knew what type of court you are going to. Small claims or state court? I'd subpoena the records on how the deposits were kept and most particularly, where your deposit was kept and who has it. You could make them look bad if they commingled the money or just as bad, failed to have an account for you within the trust account.

In other words, when you paid the deposit, if they just tossed that money in with the rest of their own money and it got "lost," you already have them cold. You money, which is your money, is supposed to be somewhere special with your name on it. This is where you might really hurt them.

Don't you have a tenants' rights group in your area which can help you? They are common.

[Mr. Knowitall]

When I tried to explain that we sued for double (as my understanding is the penalty in my state) he went crazy saying he doesn't owe us double and that I am just trying to capitalize.

Are you stating here that you asked the court to award statutory damages for the landlord's bad faith, and the court doubled the award, or are you stating that you falsely claimed to the court that the amount of the security deposit was twice what you had actually paid? If it's the latter, your former landlord has a pretty good chance of getting relief.

[spinka]

So I won my case....double the security after a lengthy few trials. However, my landlord still will not pay. Court was July 9th. How long do I wait to take further action, and what should that action be? Also, if I end up having to hire a lawyer can I sue for those costs?

Thanks

[cmre3456]

I could swear I answered this. I must have forgotten to click on "submit."

You have a lot of options. First, that landlord has really hurt himself by allowing a judgment to appear on his credit report. He needs to pay and get you to sign a satisfaction of judgment. Even then his credit is damaged but at least it would show as paid. I'll bet he couldn't finance a new car right now, and if that gives you any satisfaction, there you are. People don't like to lend money to borrowers who have to be taken to court to collect.

You can get writs of attachments and garnishments from the court clerk, or the clerk will know where you get them. This guy is not the proverbial stone you can't get blood from. He has assets and he isn't going anywhere.

If you know where he banks, you can get a writ requiring the bank to pay you from his account(s). You can get a writ so you can take his car(s). You can put a lien on his apartments and even start foreclosure. You can put a lien on the rents and royalties from his rentals.

Right now that judgment is actually a lien on all of his real property because it's of record and any title company would see it. He'd have to pay you to clear the title before he could sell anything. Title companies won't write such judgments as exceptions to a title policy because they don't know all of the ramifications and they want it cleared.

You can force him to a debtor's hearing where he has to disclose all of his assets and where they are and how much if any is owed on them. Before he went through that humiliation and loss of privacy, he'd probably pay you.

Figure out what you'd most like to do and then just do it. If it were me and I knew where he banked, I'd start there. If not my next move would be the debtor's hearing. You can get the writs or subpoenas from the clerk.

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Oops, I did answer it above. I've lost all of my marbles, LOL. You have your answer unless someone else has something to correct or add to it.