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  1. #1

    Default Is a Landlord Required to Send an Itemization if They Don't Claim Property Damage

    My question involves landlord-tenant law in the State of: Indiana
    I terminated my lease on Oct. 17th. It was a year lease. When I first rented from Property Management Company, I was in another unit. I had a totally different lease. A month later I was moved into another unit and was required to sign a new lease. My security deposit was transferred to new unit. In the valid, current lease, there were major clerical errors such as lease terms (in lease stated 10/19/2013 to 10/19/2014 and rent in the amount of $240) all of which is incorrect. 1. In Indiana, the landlord is required to send an itemization/security deposit within 45 days after providing forwarding address which I did. It is now Jan. 14th and I never received anything. 2. They have sue me in small claims court, and the first page of the lease they attached has been forged. They went in and corrected lease dates, rent amount, and wrote my son's name in the occupancy space, and my initials and the property managers initials at the bottom of the page is now missing!!!! They also modified the second page of the lease. I have a copy of the lease.
    I hired an attorney and we filed a counterclaim 1. for return of security deposit per Indiana Code 32-31-3-12and 2. for counterfeiting and fraud IC-35-43-5-2. We met with the Plaintiff's attorney today for a "pre-trial" conference. We attempted to mitigate damages and walk away with a wash for both sides; however, the Landlord's attorney stated the Indiana Code regarding 45-day notice for security deposit only applies to damages and since there were no damages to the property, they were no obligated to send a 45-day letter and he stated there is "plenty of case law" to support it. I have found law reviews and other case law stating the Landlord was still obligated to provide a 45-day notice to the tenant for how the deposit was applied (written itemization) even for unpaid rent. Additionally, the valid lease it states, "The determination of expenses or other charges, such as damages, missing property, cleaning costs, unpaid rent, and unreturned keys shall be itemized in a written notice delivered to Tenant within 45-day period. Said 45-day period shall not begin, however, until Tenant supplies to Landlord in writing a forwarding mailing address.". My attorney works in the area of law (from the Landlord's end) and he said he never heard of this before. He said he was going to search case law. Anyone hear of this?

  2. #2
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    Default Re: Is a Landlord Required to Send an Itemization if They Don't Claim Property Damage

    We attempted to mitigate damages and walk away with a wash for both sides; however, the Landlord's attorney stated the Indiana Code regarding 45-day notice for security deposit only applies to damages and since there were no damages to the property, they were no obligated to send a 45-day letter and he stated there is "plenty of case law" to support it.
    1 - Never take legal advice from your enemy.

    2 - When anybody says there's case law, insist on citations of the decisions.

    I have found law reviews and other case law stating the Landlord was still obligated to provide a 45-day notice to the tenant for how the deposit was applied (written itemization) even for unpaid rent.
    So, if you have already found case law to support your position, why don't you post your citations here and save me the trouble of hunting them up.

    Anyone hear of this?
    Well, I've read the security deposit statute.

    http://statecodesfiles.justia.com/in.../chapter-3.pdf

    It's worded oddly, but I don't believe for a minute that it allows a landlord to keep a deposit by not claiming damages.

    What's the basis of the landlord's lawsuit against you?

  3. #3
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    Default Re: Is a Landlord Required to Send an Itemization if They Don't Claim Property Damage

    Does the landlord's firm also practice in Illinois, which has a rule along the lines of what you mention under its analogous statute?

    Or perhaps they were bringing up a different rule -- the question of what claims are precluded by the failure to give proper notice?
    Quote Quoting Klotz v. Hoyt, 900 N.E.2d 1, 5 (Ind.2009)
    This landlord-tenant dispute centers on Indiana's rental agreement deposit statute. We hold that a landlord's untimely or inadequate statutory damage notice to a tenant precludes only the landlord's claims for physical damage to the premises and does not bar the landlord from recovery of unpaid rent and other losses.

  4. #4

    Default Re: Is a Landlord Required to Send an Itemization if They Don't Claim Property Damage

    Mr. Knowitall-

    Here is a copy of the settlement letter my Attorney filed. He quoted the same case I found. The basis of the landlord's claim is that I broke the lease early (which I did) I vacated October 12th. Rent was paid through October. They are suing for all of November, December, and January (they filed suit January 7th so they can only capture 7 days in January). Part of my counterclaim is for fraud as their were clerical issues with the original lease (showed rent for 240 monthly and lease dates may 2013-2014) when the suit was filed the plaintiff submitted a corrected copy minus my intials and the plaintiffs initials at the bottom. My attorney submitted the 2nd settlement letter after our pretrial conference. The attorney ignored the settlement letter and scheduled trial for June.

    As you are aware, my client has filed a counterclaim for her $635.00 security deposit and my attorney fees. You had suggested that my client is not entitled to any such award. I have reviewed the case law a second time and have determined as follows:

    •Klotz v. Hoyt, 900 N.E.2d l, 4 (Ind. 2009) is the controlling case law.

    The holding clearly states that a landlord's failure to send timely notice precludes the landlord from recovering money for physical damages.

    The holding also states that the tenant is entitled to the refund of the security deposit plus reasonable attorney's fees incurred in seeking the return of the deposit.

    The landlord is not precluded from seeking additional damages for back rent.

    Your client's claims damages for back rent in the amount of $2,062.50 plus fees and court costs. My client has a statutory claim for the return of her $635.00 security deposit. Even if the Court were to award your client the $635.00, my client would only owe back rent in the amount of $1,427.50. My client is entitled to recover my fees which already exceed that amount and continue to grow. It seems unlikely that your client will have any net recovery after paying my fees.

    I propose that your client dismiss this case in exchange for my client doing the same with her counterclaim. I feel that allowing both parties to avoid the continued cost of litigation is a fair offer. I ask you to please review this offer with your client in good faith.

    If you believe I am incorrect on the law or you have some other case that you believe is controlling on this issue, please provide the case so I can review it. If you client has a counteroffer, I will walk my client through it in good faith. If no agreement can be reached, my client intends to go to trial.

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