Summary Ejectment

goldphoenix · #1 03-25-2006, 11:27 AM

Dear members,

I am writing to ask for any one who knows anything about Summary Ejectment in North Carolina to please private message me or respond to this post here or in private.

My landlord is violating NCGS 75.1-1 Unfair and Deceptive Practices Act. He is evicting me in a retaliatory fashion because I suggested to him that I was thinking of putting rent in Escrow. I believe he wants to raise the rent and have a new tenant move in and pay water. I need someone to email that I can go over what I have on my side of the counterclaim, and someone who might be able to tell me how to proceed. I'm unfamiliar with civil law, and am bound to this contract (residential lease) apparently. I am unfamiliar with maritime equity? (thinking this might be maritime equity, anyone know for sure?)

I was given a note on my door on the 13th, with lessor demanding that I pay the rent by the next day or he would take out papers on the 15th. On the 19th I went to collect compensation for a couple hours of my services cleaning up around his property. I was going to use that compensation (around $15) to complete my payment of the rent to him. He refused to pay me and said that I owed him rent. I told him I was going to use that to pay him his rent. Then he told me he had filed the eviction papers and it didn't matter. When I was served a MAGISTRATE'S SUMMONS for SUMMARY EJECTMENT I noticed that the landlord had filed the papers on the 21st (I received them on the 22nd, served by someone in a county sheriff looking car). Now the lease he is referring to (when on the Summons he says that our agreement was written) says I must pay on the 12th or within 5 days of his notice to cure default. On the court summons he says he gave me ten days to cure default, when in fact he gave me notice on the 13th and filed on the 21st. Is that ten days? He also has told me the old lease doesn't apply. He's using a few different excuses to try and eject me from the premises. None of them are True. What can I do about this? Time is short and my knowledge of moving in civil court is limited. Any suggestions are greatly appreciated! It seems to me that he deceived me (by telling me he had already filed the eviction papers when in fact he hadn't) in order to disable my curing of the default. Know what I mean?

The court date is in less than a week. I need all the help I can get! I have a family to look out for. I'm studying what I can, but I'm unsure of some things. How I should proceed (in propria persona, pro per, pro se)? how to counterclaim? etc., etc.

Any responses are greatly appreciated! I'm sorry but my answers to any responses may not be until Monday because my only access to internet is via library at this point.

There is more to this than the above, but I will give you the readers digest version as above first.

Much thanks!

goldphoenix

Satori · #2 03-25-2006, 03:52 PM

Yipes!

I'm newly arrived to Sui Juris, but I wanted to at least share what I have.

Yes, fraud voids all. Fraud in whether he'd served it, and fraud to the court as well as libel against you in reporting your behaviors.

So what to do?

I am not an attorney (I study actual law), nor am I as steeped in it as some here. My guess would be, get some of the basic Affidavits from the Downloads section, when you go to court establish your identity as a sovereign, and then enter the fraud and slander directly into the record from an Affidavit to that extent you've already prepared (and emitted a copy of to thje court).

You could also conditionally accept his claim... on the requirement that he prove his fraudulent statements first. If you do this by giving him an Affidavit, and Notice & Demand, stating as much and requiring that he do so, then by my understanding proceeding with arbitration dishonors your offer, but in all liklihood he won't heed your writs, proceed anyway, and sham his own premise. That's what comes to me off the top of my head, but I'd feel more comfortable you waited for the rest of Sui Juris to chime in and correct my suggestions if they're wrong in some fundamental way.

All I can offer for the moment is what I have. I also suggest checking out the Honor - Dishonor process in the Downloads section. It's a huge read, so perhaps this link will serve instead...

http://www.gamblin.net/webbackups/no...mercialLaw.htm

I wish you well.

- Satori

idknow · #3 03-25-2006, 06:39 PM

Hi Phoenix. I got your PM's, i'll do my best to answer here.

as Satori mentioned above, fraud.

and it's been mentioned lately in the posts here that "fraud vitiates contract"
meaning that fraud "cancels" contracts because of a lack of full-disclosure of terms,
suitability, what-ever.

no party to a contract can unilaterally change the contract; all parties must agree to
all amendments;

incorporate what Satori wrote above.

when you go to court you want to mention that you know that the court
can only enforce the agreed-to clauses of the contract and that at that
point in time, the landlord is unilaterally changing and changed the clauses
and lied to the court in his complaint.

then name *ALL* the lies that the landlord spoke/wrote;
show your original contract to the judge;

if the judge decides against you, appeal to the county court immediately
and deliver the Supercedas to the landlord, their attorney and the lower-court judge.
a Supercedas (sp?) is a type of "stay of execution" preventing the lower court from
executing its judgement; in this case the Supercedas would prevent the lower court from
sending the constable or police to toss you out of the property you lease.

After filing and delivering, immediately begin studying the whole of the landlord-tenant
act of your state; you'll have more time, 30 days if i'm not mistaken to file a brief.
and then it might be a bit of time before a hearing is scheduled with a judge.

if your original lease stipulated a certain amount of time and the landlord has violated that
clause to recover the property before then, then his act is void for lack of timeliness.

if you had a separate agreement to do work for him and he didnt pay you then that would
be a cause for a separate action but perhaps you should mention it to show the judge
that you had an overall plan to pay the rent.

if he filed for papers before the time had expired and admitted it to you, then mention that too.

See, you already know what to tell the judge; you just need to sharpen up on your order or events.

small-claims court is not "the big league" but accuracy is still required.

13 + 10 == 23, not 21.

that would make his filing pre-mature.

Judge Roy Bean · #4 03-25-2006, 07:40 PM

Landlord tenant law often falls to states, counties and municipalities. What may work in one might not work in another. You may have rights under various ordinances.

Most fairly large cities have tenants' rights organizations who can provide realistic advice in these cir***stances.

The Internet is your friend in this instance. Try "landlord tenant dispute ___________" (your city).

Satori · #5 03-25-2006, 08:04 PM

Quote:

Originally Posted by idknow

if you had a separate agreement to do work for him and he didnt pay you then that would be a cause for a separate action but perhaps you should mention it to show the judge that you had an overall plan to pay the rent.

Indeed. Which he thwarted, from what I read from you goldphoenix, by nonpayment. You went to pay him, he would not release the money to you so you could release it to him, therefore you could not pay the rent. While I wonder that you did not simply pay him the rest of it and let it be done, there is an argument that he caused estoppel, not you.

You had an obligation with him to which you had argreed.
He had an obligation with you to which he had agreed.
He did not meet his obligation to you.
Resultantly, you were unable to meet yours to him.

He then dishonored the original contract, preventing you from discharging your debt with him.

The estoppel, the more I consider it, was his.

What say you, Sui Juris?

(Wow, Sui Juris would make a great online jural society... we'd just be doing this sort of thing as an online common law court. Federal authority over interstate disputes to the contrary easily remedied by their estoppel]

- Satori

charlesa6 · #6 03-25-2006, 10:26 PM

Quote:

Originally Posted by Judge Roy Bean

Landlord tenant law often falls to states, counties and municipalities. What may work in one might not work in another. You may have rights under various ordinance

Absolutely right, JRB.
Check your local Ordinance and Municipal code very essential under Landlord and Tenant Law.

masterduke · #7 03-25-2006, 11:00 PM

Also is there any special cir***stances in your life? Are you disabled? A minority? Any particular religion? I would say go after him if for nothin' else because he is being a weasel.
Fraud vitiates all contracts ab intitio(sp?)
Fraud on the Contract
Fraud in the Factum
Fraudulent Concealment and Execution
These titles may be useful when outlining your counterclaim

goldphoenix · #8 03-27-2006, 12:32 PM

These are all fantastic answers, thank you all very much!

I wonder if a jury would rule favorably in my case if I demanded a jury trial? or if I would be better off leaving it to a judge to decide?

Jury trial would buy time anyway.

I looked back over my records of tender of rent and have found that I have been up to date on tendering rent. I have tendered rent late, but all this time I've been thinking I've been behind a month or two weeks, and I haven't been, which upsets me more because all this time I've been thinking I was behind when at times I was paying ahead.

The lease listed the apartment I lived in for the first year of my stay here, a "residential lease". I looked it over, no terms. I signed unconditionally until I learned of reserving rights, and then I amended my own copy with my rights reserved. That may likely not even matter. When I moved from the property listed in the lease, the landlord told me the lease was old and he would have to write up a new one. He never did though.

He's also complaining about animals, saying "too many around". I paid him a nonrefundable deposit for the animals I have of $150 and had more then than I do now. And he's never complained about them before.

Same with his other complaint of my broken down car in my driveway. Since the lease says no unworkable vehicles allowed. He never complained to me of it though, and even told me the lease was old and a new one was required.

There are a number of things he promised me and didn't provide (recarpeting, repainting, fixing the bathroom floor and tiling it), the heating/cooling has always been poor here with large (for me) electricity bills. Appliances constantly breaking down, etc., etc.

My wife injured her leg (big old bruise, fortunately nothing worse) from the stairs to the first property we rented from him rotting and collapsing under her, which could have been prevented. Same thing with the bathroom floor caving in and her injuring her ankle which was caused by a leak from the bathtub pipes.

Of course all exchanges I've had with him in regards to late payment, etc., have been verbal and not written. I have not written any of my concerns out to him. I trusted him to do the right thing so I only spoke to him verbally with my concerns. Bad mistake perhaps.

Since there is a lease with my signature on it, I'm not sure whether to argue jurisdictional issues at all, or whether to try and establish whether a contract exists or not.

The Unfair and Deceptive Practices Act says what the landlord says he will do he must do.

I'm just not sure what other angles were possible. And you all confirmed some things I was thinking and enlightened me on others I hadn't! Thank you so much!

Time is short and I have to go! Thank you all again, and if you find or come across anything else please share here!!

I'm sure I"ll think of more and post again.

Oh, and does anyone know if I file paperwork if I should be in propria person, pro per, or pro se?

Thankfully,

goldphoenix

idknow · #9 03-27-2006, 01:14 PM

wiw, this is a lot of update

Quote:

Originally Posted by goldphoenix

These are all fantastic answers, thank you all very much!

I wonder if a jury would rule favorably in my case if I demanded a jury trial?
or if I would be better off leaving it to a judge to decide?

Jury trial would buy time anyway.

you're gonna have to gauge this yourself based on your preparation.

Quote:

Originally Posted by goldphoenix

I looked back over my records of tender of rent and have found that I have been
up to date on tendering rent. I have tendered rent late, but all this time I've
been thinking I've been behind a month or two weeks, and I haven't been, which
upsets me more because all this time I've been thinking I was behind when at
times I was paying ahead.

if your cancelled checks and receipts given by LL show that you are absolute up
to date, then you can prove that his complaint to the court is bogus!

Quote:

Originally Posted by goldphoenix

The lease listed the apartment I lived in for the first year of my stay here, a
"residential lease". I looked it over, no terms. I signed unconditionally until
I learned of reserving rights, and then I amended my own copy with my rights
reserved.

any change in lease MUST be agreed upon by all signatories to the lease.
any changes you made without LL's agreement are void!

Quote: