FAILING TO TELL YOUR ATTORNEY ALL THE FACTS
An unnecessary, self-inflicted injury is a client’s failure to disclose to his attorney all the facts. It is human nature that a person doesn’t want to disclose his mistakes or case weaknesses. Maybe they’ll magically disappear, won’t be discovered or won’t make any difference. They don’t disappear. The resident knows about them, and they do make a difference when the resident springs them on the manager’s lawyer in court.
Your attorney’s general advice to you is based upon the facts. Without knowledge of all the facts, his advice may at best be worthless and at worst harmful. It’s never a good idea for the client to prejudge what he thinks the attorney needs. Your attorney is in the best position to judge which facts and documents are important and which is not.
Seven Day Notice of Termination
Our office rigorously examines a client’s request for a Seven Day Notice of Noncompliance Without Opportunity to Cure (a Seven Day Notice of Termination). We require the client to provide proof of the noncompliance: police reports, witnesses’ names, addresses, and possibly statements, etc. Often we find that a client has omitted key facts. The reasons range from innocent omissions to intentional concealment to aid in obtaining the Seven Day Notice of Termination. Your attorney works to protect you, not the resident. Requiring a vigorous screening of a Seven Day Notice of Termination protects you. Slipping something past your attorney harms you by exposing you to a potentially invalid Seven Day termination case.
When negative facts are later discovered, at a minimum you may be withdrawing the Seven Day Notice of Termination. This will embolden the already difficult-to-deal-with resident. At worst it may result in a legal action against you by the resident.
Three Day Notice
Even a straightforward Three Day Notice nonpayment eviction can go awry when you fail to tell your attorney all the facts. Were there other notices regarding payment sent with or after the Three Day Notice was served? Did you enter into any other agreements as to payment of the balance? What about other correspondence regarding payment or nonpayment? Are there any emails or letters from the resident regarding rent withholding, maintenance complaints, retaliatory claims, or code enforcement notices? Is there any reason to think a Fair Housing claim may be made by the resident? Has the resident claimed protected class status?
Before the Hearing:
It is probable that the undisclosed fact or document will be supplied to the judge by the resident. The result can be an outright dismissal by the judge, an unnecessary delay while your attorney responds to the resident’s claim, or an unnecessary hearing, perhaps with no money deposited into the court registry. A resident’s “answer” may mislead the judge with untrue or unsupported claims that have slivers of truth from the undisclosed facts or documents. The point is that your attorney usually can deal with these issues, if disclosed, before filing the eviction, either by advising against filing or by explaining them in the complaint or a separate filing.
At the Hearing:
The stakes are higher when the non-disclosures are revealed at a hearing. You attorney’s ability to win your case can be seriously hampered. Documents needed to counter the unexpected development have not been obtained. Case law to support your position has not been researched. Cross examination of the defendant’s witnesses has not been prepared. Witnesses needed by the manager are not in court prepared to testify. The benefit of the eviction procedure providing for quicker hearings with less discovery becomes a disadvantage when confronted by surprise documents and testimony.
If the defendant has an attorney, an adverse court decision will likely result in a substantial defendant’s attorney fee award paid by the manager. This is in addition to any damages recoverable by the defendants. If the manager’s undisclosed actions have been statutorily prohibited practices, for instance locking the resident out or improperly disposing of his property, there are statutory damages tripling the monthly rent amount. Often the resident will file a counterclaim for defamation, harm to credit standing, or impairment of future ability to obtain housing caused by the filing of the eviction. A lost eviction case can lead to a fair housing complaint. Clients, who have not experienced the financial exposure or legal complications resulting from an unfavorable outcome, have difficulty understanding the seriousness of filing even the simple Three Day Notice nonpayment eviction. Non-disclosure by the client to his attorney can result in the attorney seeking to withdraw from the case or demanding additional attorney fees.
Ask Your Attorney:
I’m not implying that a client has to send his attorney the resident’s entire file. Someone with even a little experience in property management knows when a document or other fact should be disclosed. A good rule of thumb is that if you question whether it should be disclosed, it should be. Talk to your attorney. Allow your attorney to decide what is or is not relevant to your case.
- The Curable Noncompliance Examined PART 1
- THE CURABLE NONCOMPLIANCE EXAMINED PART 2
- THE WRIT OF POSSESSION – WHAT IT IS
- THE WRIT OF POSSESSION AND THE FULL UNIT
- WORK ORDER COMPANY POLICY AND THE LAW