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  1. #1
    Join Date
    Sep 2010
    Posts
    22

    Default How do Dispossessory Proceedings Work

    Jurisdiction/Place: USA - Georgia

    Gwinnet GA -

    So, let me get some opinions from you guys as to the eviction for this tennant, what will happen when I got to court with the terms of the lease, the promissory notes, and what the tenant and I have done do far.

    Little background about the people. They were living in a Hotel and didn't have much money , so I decieded to lease my place to them under some unique circumstances.

    Since they didn't have a lot of cash, I let them move in July 12th, the terms of the lease are July 12-July 31st, but since they didn't have the security deposit or the cash for rent immediately for July 12-July 31st, I put on the "monthly rental" line of the lease:

    "$1150.00 Due starting Aug 1st, prorated rent from July 12th to July 31st in the amount of $600 due in $100 increments monthly starting Sept 1st, 2010 (promissory note included for $600 prorated rent)." The intent for the quoted sentence above in the lease was to make them pay regular rent starting Aug 1st, but allow them to pay me the rent they acrewed in July over 6 months time, giving them a month to get settled in to the house before they had to start paying.

    On the Security deposit line I put:

    "$500 Due starting Aug 1st, $500 due in $100 increments monthly starting Sept 1st (promissory note included for $500 remaining deposit)." The intent for the quoted sentence above was to allow them to move in the house July, without paying security deposit, then pay me $500 with the first month's rent, and defer the rest across 5 months starting Sept 1st.

    They signed the lease and both promissory notes.

    This was probably a bad idea to lease to someone who had 0 cash, I know but that's the lease I signed. I'm a new landlord and I understand what a stupid thing it was to do now, but hindsight is 20/20 and I'll not make this mistake again. Moving forward to what has happened after we all agreed to the lease and promissory notes:

    So Aug 1st comes around you can guess that they had nothing for me. The lease had a 5day 50$ penalty with $10 daily after that. 5th of the month came, nothing, gave them a quit notice/demand for possession on Aug 5th to be out by the 8th, I also sent it certified, they paid me Monday Aug 9th, the full rent and the first $500 of security deposit. I waved the late fees and "wrote them a reciept for 0/$80 paid late fee, rest waived".


    Sept 1st comes around, and if you guessed they didn't have the rent, your right, on the 5th, he gave me $500, said the rest he could do the next friday. Next friday came, he gave me $250. Said the rest he could do next friday. Next friday came he said he had other bills and couldn't pay, so I went over there and had a talk with him, told him I expected to be paid in full each month at the due date, and that I understand they are broke but I need to get paid to in order to pay the mortgage on time. I also told him that I'd give him until November 1st to stop this partial payment business, on November 1st I'd no longer accept anything but the full payment amount at a time and that I expect late fees this time. I showed back up the next day and put another quit/demand for possession letter with the quit date to be the next friday (9/24) at 9am on the garage or else get out, I also sent him this Certified mail. I also sent him certifed a few days later about the partial payment business that we discussed.

    Next friday at 9am I went down to the gwinnett county magistrate's office and filed disspossessory paperwork and paid to have them served. I put on the form what I wanted: rent and that they defaulted on the $500 and $600 promissory notes. Later on that night, he calls around 10pm (last night) and says I got the money come get it. I show up, he has the rest of the cash to pay for the rent only to make up a total of $1150 (which I took home with me and made a copy of the money order showing it was printed at 9/24 21:50 hours), but doesn't have the cash for the late fees or the promissory notes. I told them it was unacceptable and asked him when he could get out, he said he didn't know. I told him I'd cap the late fees to $150 and needed the promissory money right ASAP. He said that he could pay next week and also rent for Oct 1st is due next week.

    I think at this point it's highly unlikely that he'll be able to come up with all the cash next friday. So I still want to continue the dispossessory proceedings. So assuming that they answer to the summons. I have already written them a letter (although not mailed until after I know they have been served), that I'd cancel the proceedings if they pay the court costs, what is owed for the promissory notes, late fees, which I have now agreed to reduce to %10 (mostly because I belive in GA most judges won't allow more than %10 in late fees). And of course they paid me the 400 that they owe'd on the rent the night after I filed..


    So now to the point, I have some questions.


    1) As far as the paperwork goes I submitted to the court, once the court date comes around will the judge expect them to pay the late fees, the promissory notes $100+$100, also what may be due for the promissory note in October (another $100 + $100), and what they will owe for October's rent (which I have not doubt they'll pay partially up until the court date should they respond). If not will he order them out.

    2) More specifically about the promissory notes, will the judge enforce them as part of the lease or are they are sepearate issue? Is defaulting on them a breach of lease since they are on the lease?

    3) Since I accepted the partial payments in August and eventually the full amount for rent what right to I have for late fees, can I get full amount for late fees since they paid partially or not?

    4) What about Octobers rent/latefees/promissory note payment. They are not specifically mensioned in the dispossessory filings because they are currently in the future and unknown at this point, but if they don't pay like their track history dictates then will the Judge lump this in with the general case I have against them?

    5) Lets say that they pay the late fees and promissory notes that they owed for September, but then stiff me on October's rent, promissory notes or latefees occured in October, can I still go to court even though they settled up for September and expect the Judge to make them pay October's debts or get out (assuming court date is in later october or early november)?

  2. #2
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    98,846

    Default Re: How do Dispossessory Proceedings Work

    If you've created promissory notes by which the tenant is to pay back rent, you've effectively loaned the tenant the money and your attempt to recover on your loan would be separate from an action to collect rent owed. Although you explained the payment schedule, you left things a bit murky in regard to the promissory notes and how they relate to the lease. Obviously I have had no opportunity to review the document(s) at issue, so I'm not going to speculate on how a judge might rule.

    You can ask the court to award late fees. You seem to be making up the amount you're demanding as you go along, and aren't trying to enforce the actual contractual language (assuming it's even enforceable), which could complicate your effort to collect late fees.

    If they fully pay off the amount demanded in your dispossessory affidavit - rent owed plus court costs - within seven (7) days of receiving the summons, you are to dismiss your case. If they do not subsequently pay their rent, you serve a new notice.

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