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  1. #1
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    Oct 2014
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    Default No Notice Before Eviction Case Was Filed

    My question involves an eviction in the state of: NC

    I am renting a lot in a mobile home community. I signed a two year lease that does not end until May of 2015.

    In September, our landlord made us aware of a website where we could go to make rent payments. I signed up for the website, and made my October and November payments there. Now today, I come home to find an eviction notice on my door. This is not a pay or quit notice, but a notice that a court case has been filed. Now, I will say that I am guilty at times of not keeping up with my bank balance very well. When I go back and review my bank account, I do not see where these payments came out. However, the payment did initially show up after I paid? I also have emails that I received back as payment confirmation. It is like the charges dropped off my account, and I should have noticed this before now, but I did not, as the lot rent is a fairly small amount.

    My questions are:

    I spoke to the landlord and he is refusing to accept the two late payments from me now, in addition to the late fees because he wants court costs which are more than double what I actually pay for lot rent.

    My lease specifies a 7 day notice before filing in court. I have not received any such notice, and I do have the money to cover rent today, just not the excessive amount of court costs. Can he charge me these fees when he did not follow the correct procedure before filing? His defense to this is that the rules of the mobile home community (not our lease which is a separate document) say that the rules can be changed at any time.

    I did receive a notice in the mail from landlord a few weeks ago that they would be increasing lot rent on the 1st of January by $25 a month. Can they do that if we have a lease? I actually sent him an email about this and again, he cited the rules of the park which state that rules can be changed with notice. In that correspondence it was never mentioned that the rent was late, but I was pretty resistant to the increase at that time, because I think it is illegal.

  2. #2
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    Default Re: No Notice Before Eviction Case Was Filed

    I am unable to see the complaint from where I'm sitting, so it's important that you share the relevant details. Under Section 3, the complaint recites the basis for the eviction. If it is based on nonpayment of rent and there is no written lease or modification of the requirement by your lease, it will have a box checked indicating that you were given ten days notice to pay and failed to do so; if it is based on a violation of lease, a different box will be checked, and there will be a subsequent description of how you allegedly broke the lease. For example, if your lease provides for automatic forfeiture for failure to pay your rent, the landlord can check box 3 and explain the forfeiture provision below.

    Whatever may have happened with your bank, it's not relevant that you were confused by debits that may have appeared before they were cancelled due to your failure to hold sufficient funds in your account to cover your rent payments. It's up to you to pay your rent on time, and that means paying better attention to your bank balance and to whether the rent payment in fact clears.

    I am similarly unable to see your lease, and thus cannot comment on the rent issue. Normally a lease would preclude a rent increase during its term.

  3. #3
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    Oct 2014
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    Default Re: No Notice Before Eviction Case Was Filed

    The landlord has checked box 3, yes, which says "The defendant failed to pay the rent due on the above date and the plaintiff made demand for the rent and waited the 10-day grace period before filing the complaint."

    Below that box there is a box that says "Failure to pay November's rent"

    Interestingly enough, per our lease, rent is not actually due, per our lease until the 10th of the month, and this action was filed the 14th.

    Below the box that says November's rent there is another box that says description of any property damage. In this box it says "Rent $318 Late charge $50 Court cost $857."

    Beneath this box is the manager's signature. No attorney is listed.

    In my lease it says "Lessee agrees to vacate home within 7 days after being notified in writing due to nonpayment of rent or any breach of this agreement. Failure to do so will result in court action"

    Yes, as I said I need to do a better job of keeping track of my balance. At no time was my balance low enough in October that the $159 lot rent would not have cleared the account. I tend to just keep a running balance in my mind of what we spend, but during October we went on vacation and I didn't keep as close an eye on it, and just relied on the balance being correct in the online banking when I got home without ever going back to see if the amount for the rent was gone. As it has shown as processing before, and I had heard nothing from the landlord, and I had actually gotten an email confirmation of payment, I really did not think of it as a problem. When the notice was on my door when I went home I immediately check the balance and did find that I had more money there than I should for November. A call to the bank tells me that there was a hold placed on my account both times for the money, but the company failed to process it in the given amount of time? The lady from the bank also confirmed that at no time did I have insufficient funds for the transaction. It appears that this payment service is not actually functional, and as of today when I went by the office to get my mail there is a notice on the bulletin board to bring payment to office instead of paying through the portal until further notice.

    My feeling is, the guy did not like that I refused the rent increase, and this is retaliation for my not agreeing to pay it. Technically, at the time of filing, I was not even seven days late on the November rent at all, and if I had been notified of the discrepancy, it could have been easily solved.

  4. #4
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    Default Re: No Notice Before Eviction Case Was Filed

    Quote Quoting rnmomnc
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    Interestingly enough, per our lease, rent is not actually due, per our lease until the 10th of the month, and this action was filed the 14th.
    You told us that you owe two months rent.

    Your state doesn't appear to have any significant restrictions on what can constitute a ten-day notice. You can go to court and defend against the eviction case by stating that you didn't get any notice, either ten days under the statute or seven days under the lease, and see whether your landlord admits to the failure. If your landlord admits that he did not give you proper notice, the court should dismiss the action. If he claims to have given written notice you can challenge him to produce a copy of the notice, but so far I see only requirements that the notice be clear and unequivocal, not that it be in writing.

    You can also get the case dismissed by paying, in advance of the judgment, the rent you owe plus the costs of the action. NCGS Sec. 42-33.

    On its face, the idea that the recipient of a transfer of rent has to act in order to receive the money is not credible. If you believe you can document some sort of technical problem that was caused by the landlord, and are going to try to argue that it is somehow his fault that your payments did not go through, you had best gather your documentation and evidence of that problem, and why you didn't notice that your bank balance was significantly higher than it should have been.

  5. #5
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    Default Re: No Notice Before Eviction Case Was Filed

    Quote Quoting rnmomnc
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    Interestingly enough, per our lease, rent is not actually due, per our lease until the 10th of the month, and this action was filed the 14th.
    Is it "due" on the 10th or will late fees be added after the 10th?

  6. #6
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    Oct 2014
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    Default Re: No Notice Before Eviction Case Was Filed

    Also, it makes me uncomfortable that this notice makes no mention of the fact that it is a lot that I am being evicted from and not the home itself. I own the home separately from this company, I have a mortgage on it that has nothing to do with them. The wording in the lease is actually rather ambiguous regarding it being a lot lease also, and mentions the "home" several times. I am one of the only 3-4 people in the park that owns their home, most of the other homes are rentals managed by them. In fact when this new management came in he made reference to the fact that the rent was way to low for such a large home. He was not even aware that it was only a lot lease.

    My thoughts are that I need to file an answer, which I have to do before the court date listed (December 1st) I am somewhat uncomfortable doing this on my own. If I hire an attorney, and the judge finds that this eviction notice was filed improperly, could the management company be made to pay my attorney fees? If this is not a possibility, I may just try to research and do it on my own, because I hate to spend that kind of money so close to Christmas, but at the same time I do not want to mess something up and lose my home. I actually own a piece of land now and it is in preparation for my home to be moved there but I was not planning to do so until the end of my lease. In other words, I don't really care about burning any bridges with this guy. I just want to be treated fairly.

    If I file the answer on my own do I need to use a specific form, or can I just type something up where I list the allegations in his claim, and my response to them? For example, I would disagree with the spot where he checked box 3 because he did not actually provide me a 10 day notice. I have proof of this because when I spoke to him in the office, I asked about the notice and he claimed he did not have to provide one. I have this conversation recorded.

    - - - Updated - - -

    It states due on the 10th. The previous manager said that was the corporate offices policy, and she did not like it, but had to abide by their policy. This mobile home park is actually owned by a large corporate office that owns properties in several states, but managed by local people.

  7. #7
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    Default Re: No Notice Before Eviction Case Was Filed

    If the only box checked is "The defendant failed to pay the rent due...", your choices are to tender the rent you owe, along with the landlord's recoverable costs (probably the filing fee and service fee), to get the case dismissed, or to take the matter to trial. Given the cost of having to move a manufactured home from a lot, going to trial presents a large potential downside if you lose. No matter what else happens now, you also need to consider what your landlord might do when your lease term ends.

  8. #8
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    Oct 2014
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    Default Re: No Notice Before Eviction Case Was Filed

    I have no problem with paying the rent and even the late fees. I feel that the amount he is asking for "court costs" (over $800) is ridiculous. I called the court to find out what filing this action would have cost and found that total cost to him even with service should have been $150 or less. He is refusing to accept anything less than the full $1225. As his name is on the paperwork, and no attorney is listed, I feel like these costs have been extremely exaggerated. Is it legal for him to demand a sum greater than his actual costs?

    Would the recorded conversation where he admits to not giving notice be sufficient to prove that he did not provide it? In the recording he just tells me. "You knew the rent was due. I don't have to remind you that it is due." I told him that his paperwork states that he gave a 10 day written notice and I would like a copy. He then said "I didn't leave any notice, you knew the rent was due."

  9. #9
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    Default Re: No Notice Before Eviction Case Was Filed

    Inquire with the court as to whether you can tender the money through the court based upon their records of the costs and the amount of rent claimed.

    You can also go to court on the trial date, fully prepared to tender the money right then and there, and explain to the court that the only reason you're present in court is the dispute over the costs. You need to offer to all pay rent and costs before the magistrate renders judgment. You should be prepared to pay by cash or money order (with the latter being more difficult if you don't know how much you will have to pay -- although you could obtain a money order for the rent and be prepared to pay the costs in cash).

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