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  1. #21
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    Default Re: Filing a Surety Bond Instead of a Security Deposit

    Quote Quoting Mr. Knowitall
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    I have not been able to find a copy of the agreement online, sample or otherwise. Did you find one?

    I think that a big problem in trying to characterize a surety bond as a security deposit is that a surety bond does not appear to fall under the statutory definition, MCL 554.601(e). Other consumer protection laws could potentially come into play, particularly if the tenant was misled about the nature of the insurance.
    I'm not trying to characterize the security deposit as anything. I am saying the deposit is irrelevant to the laws in play. The landlord cannot make a claim for damages if he doesn't comply with the law. If he does make a claim for damages and he is holding s security deposit he can withhold the deposit

    using your argument if be did not hold a deposit or this bond he simply couldn't make a claim for any damages. Obviously they is not correct. Holding the deposit or not has no effect on the requirements of the landlord to give notice to the tenant as the statue requires.

  2. #22
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    Default Re: Filing a Surety Bond Instead of a Security Deposit

    Quote Quoting jk
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    I'm not trying to characterize the security deposit as anything. I am saying the deposit is irrelevant to the laws in play. The landlord cannot make a claim for damages if he doesn't comply with the law. If he does make a claim for damages and he is holding s security deposit he can withhold the deposit

    using your argument if be did not hold a deposit or this bond he simply couldn't make a claim for any damages. Obviously they is not correct. Holding the deposit or not has no effect on the requirements of the landlord to give notice to the tenant as the statue requires.

    The statute, as a whole, only applies if a security deposit is held.

  3. #23
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    Default Re: Filing a Surety Bond Instead of a Security Deposit

    Quote Quoting lill
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    It is in the agreement that the tenant and bond company sign. .
    It is? Ya got that handy to actually support your claim? Have you even read such an agreement? Obviously we have 50 states with 50 different sets of laws and who knows how many bond companies any given state has and you are saying every bond agent in every state has this identical agreement?

    Also, it would be very difficult to enforce Michigan state security deposit laws when there is no security deposit
    actually no it would not. In fact it makes no difference. All the security deposit is is ready cash if the landlord makes a claim of damages. If there is no deposit the landlord gives notice of a claim for damages as the law requires and includes a bill rather than an accounting of money withheld from the deposit. It is easier for the landlord only because he already has the security deposit in hand.

    Using your argument, what happens if the damages exceed the deposit? are you suggesting the landlord cannot make a claim for those damages? Sure he can and guess how he does it; he issues a statement of damages to the tenant along with an accounting of what the deposit was withheld for and then he includes a bill for the balance owed.

  4. #24
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    Default Re: Filing a Surety Bond Instead of a Security Deposit

    Quote Quoting jk
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    The landlord cannot make a claim for damages if he doesn't comply with the law.
    If you are arguing that a landlord's failure to abide by the security deposit law prevents a landlord for suing for damages and unpaid rent, you are not correct.
    Quote Quoting jk
    using your argument if be did not hold a deposit or this bond he simply couldn't make a claim for any damages.
    A landlord who does not take a security deposit, like any other landlord, has the right to sue a tenant for damages and unpaid rent. A landlord who takes a security deposit may only withhold money from the deposit if he complies with the statute. If he does not comply with the statute, like any other landlord, he still has the right to sue a tenant for damages and unpaid rent.

  5. #25
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    Default Re: Filing a Surety Bond Instead of a Security Deposit

    aaron;933075]If you are continuing to claim that the failure to abide by the security deposit law prevents a landlord for suing for damages and unpaid rent, you are not correct.
    K stated the same previously I showed the law that says if the landlord does not make the demand as the law stated it is agreed there are no damages. Can you tell me where I am misinterpreting that simple statement.
    No, that is not my argument.
    Your argument? Where did you post in this thread before here?

    A landlord who does not take a security deposit, like any other landlord, has the right to sue a tenant for damages and unpaid rent. A landlord who takes a security deposit may only withhold money from the deposit if he complies with the statute. If he does not comply with the statute, like any other landlord, he still has the right to sue a tenant for damages and unpaid rent
    but the statute I posted and the case law K posted both stated that if the landlord did not make a claim under the original period allowed he is precluded from any claim.

    the verbiage of the statute:

    Failure by the landlord to comply with the notice of damages requirement within the 30 days after the termination of occupancy, constitutes agreement by the landlord that no damages are due and he shall remit to the tenant immediately the full security deposit.
    does that not say that if the landlord does not provide a notice of damages with the 30 day period it constitutes an agreement by the landlord there are no damages. Am I reading the correctly or not?

    then in the case that K provided:

    A landlord must satisfy certain requirements in order to retain a security deposit. If the tenant leaves a forwarding address within four days of terminating occupancy, the landlord must notify the tenant in writing of his intent to retain the deposit. He must provide an itemized list of damages or other obligations. MCL 554.609; MSA 26.1138(9). The landlord who fails to comply with the notice requirement waives his right to retain the deposit. MCL 554.610; MSA 26.1138(10).


    Furthermore, the provisions in § 13 which permit the landlord to sue in certain circumstances are inapplicable here, because the landlord waived his right to the security deposit under § 10. MCL 554.613; MSA 26.1138(13).

    does not the second quote state that if the landlord did not make a claim as in the statute I cited above they lose the right to sue for damages because the in fact have agreed there are no damages.

    I'm seriously not trying to be difficult on this. As a very smart man once told me; the plain language of the statute is clear. What am I missing. To me it clearly supports what I am saying.

    that is what precludes this, as I read it:

    A landlord who does not take a security deposit, like any other landlord, has the right to sue a tenant for damages and unpaid rent. A landlord who takes a security deposit may only withhold money from the deposit if he complies with the statute. If he does not comply with the statute, like any other landlord, hestill has the right to sue a tenant for damages and unpaid rent.
    I just don't see what I am missing in this:

    because the landlord waived his right to the security deposit under § 10. MCL 554.613; MSA 26.

  6. #26
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    Default Re: Filing a Surety Bond Instead of a Security Deposit

    Quote Quoting jk
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    Your argument? Where did you post in this thread before here?
    I'm having flashbacks. I recall that we've had this discussion before. I'll try to find the thread.

    The case law says the opposite of what you're arguing. The landlord must return the deposit, but retains the right to sue for damages.

  7. #27
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    Default Re: Filing a Surety Bond Instead of a Security Deposit

    Quote Quoting aaron
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    I=

    The case law says the opposite of what you're arguing. The landlord must return the deposit, but retains the right to sue for damages.
    now that is a bit different than what I have read it as and gives me reason pause. I'll re-read a few things as well.

    but in doing so, does not section 10 say the landord has agreed there are not damages (if a claim is not made within 30 days) and if so, how does 13 allow a suit if the landlord has already agreed there are no damages?

  8. #28
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    Default Re: Filing a Surety Bond Instead of a Security Deposit

    You've obviously never used a surety deposit with a tenant. The landlord is paid, by the bond company, for the full amount of his damages submitted to the bond company. If the amount exceeds the bond amount, the bond company goes after the tenant. The landlord does not go after the tenant since the landlord has already been paid in full.

  9. #29
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    Default Re: Filing a Surety Bond Instead of a Security Deposit

    The common law remedy is separate and apart from any statutory remedy. The statute does not eliminate the common law remedy, and that remedy therefore remains available even if you don't comply with the statute in order to avail yourself of a statutory remedy.

  10. #30
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    Default Re: Filing a Surety Bond Instead of a Security Deposit

    Quote Quoting lill
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    f the amount exceeds the bond amount, the bond company goes after the tenant. The landlord does not go after the tenant.
    why would the bond company go after the tenant if the damages exceeds the bond amount? Since when can a bond company ever go after a purchaser of a bond for an amount greater than the bond payment to a third party?




    that's some creative construction there but I don['t think it is true. Go ahead and prove me wrong if yuo can.

    Quote Quoting aaron
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    The common law remedy is separate and apart from any statutory remedy. The statute does not eliminate the common law remedy, and that remedy therefore remains available even if you don't comply with the statute in order to avail yourself of a statutory remedy.
    ok, so how can you make these 2 things work together:


    *236 It is undisputed that defendant notified plaintiff by phone. But he did not send plaintiff written notice of his intention to retain the security deposit or provide the written itemized list of damages or other obligations required by MCL 554.609; MSA 26.1138(9).
    Furthermore, the provisions in § 13 which permit the landlord to sue in certain circumstances are inapplicable here, because the landlord waived his right to the security deposit under § 10. MCL 554.613; MSA 26.1138(13).
    Even if that were not the case, defendant neglected to commence an action for a money judgment on the amount in controversy within forty-five days after plaintiff terminated his occupancy. The act makes failure to comply with the requirement "a waiver of all claimed damages and makes [the landlord] liable to the tenant for double the amount of the security deposit retained." MCL 554.613(2); MSA 26.1138(13)(2).

    *236 It is undisputed that defendant notified plaintiff by phone. But he did not send plaintiff written notice of his intention to retain the security deposit or provide the written itemized list of damages or other obligations required by MCL 554.609; MSA 26.1138(9).
    Furthermore, the provisions in § 13 which permit the landlord to sue in certain circumstances are inapplicable here, because the landlord waived his right to the security deposit under § 10. MCL 554.613; MSA 26.1138(13).
    Even if that were not the case, defendant neglected to commence an action for a money judgment on the amount in controversy within forty-five days after plaintiff terminated his occupancy. The act makes failure to comply with the requirement "a waiver of all claimed damages and makes [the landlord] liable to the tenant for double the amount of the security deposit retained." MCL 554.613(2); MSA 26.1138(13)(2).
    that makes section 10 and section 13 both basically meaningless. So what if the landlord did not give notice as 10 requires, He gives back the deposit,. So what? So what if he did not file suit within 45 days? It doesn't matter because he can still sue the tenant.


    It makes those 2 laws basically worthless. I don't get it.

    Quote Quoting lill
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    The landlord does not go after the tenant since the landlord has already been paid in full.
    and how does the bond agency prove damages? This is not a simple debt contract. It is a disputed claim. That means the plaintiff, whomever they are, must prove their claim for damages. Does the bond agency know how old that carpet is so a proper depreciation can be applied? Does he have all the proofs of the damages; pictures, receipts for replacement of any particular item, the time spent repairing anything damaged? If nothing else, logistically is makes no sense to even consider operating in the manner you claim to be "the way it is". Expecting the boding agent to sue the tenant and then stand in place of the landlord (due to assignment it would be possible) and be able to prove the claims for damages? I'm not seeing it make any sense at all.


    In fact, why would the bond company pay the landlord a penny more than the bond amount? That is not a very good business model to start. Bond agencies pay out whatever the bond was valued at, max.

    OK, aaron & K, this case more clearly supports the common law right as aaron stated:

    https://scholar.google.com/scholar_case?case=11715163901019462588&hl=en&as_sd t=80000006


    I still don't agree with it as it simply makes the law requiring the landlord to make claims in a timely manner irrelevant. I find it difficult to accept that was what the laws were intended to do, especially given the LTRA was created to protect the tenant more so than the landlord. The ability to simply ignore those 2 sections of law do just the opposite.


    but I still find nothing even close to suggesting lills claims as correct. I guess it's in that never to be found single contract that all bonding agencies in all states use for issues such as this. It would seem given its extensive use it would be available somewhere in this seemingly infinite internet.

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