THE TWO BASIC PARTS OF AN EVICTION

1. The first part (referred to as the “first cause”) is the actual eviction. In the first cause, your landlord claims you no longer have a right to stay in the rental unit and requests the court order to force you to leave.
2. In the second part (referred to as the “second cause”) your landlord is suing you for money. In the second cause, your landlord claims you owe money - usually for back rent , unpaid utilities, or damage you caused to the home. Your landlord requests a court order to collect money from you.

Although the first and second causes are filed together in one complaint, they are treated as separate cases. Two different hearings will be held. The first hearing will determine whether you should be evicted and the second is to determine if you owe money to your landlord and , if so, how much.

WHAT DO I DO WHEN I RECEIVE A COMPLAINT FOR EVICTION AND MONEY DAMAGES?

If you don’t think you owe your landlord money or you disagree with the amount of money claimed, you MUST file an “Answer.” An answer is your written response to your landlord’s claim that you owe money. If you don’t file an answer, you will automatically lose. Your landlord will get a default judgment. There will be no hearing if you don’t file an answer.

If you feel your landlord actually owes you money, you should file an “Answer and Counterclaim.” A counterclaim states your claims against your landlord and explains why your landlord owes you money. In a counterclaim you are actually suing your landlord. There is a filing fee owed to the court when you file a counterclaim.

TIMING IS IMPORTANT

Your “Answer” or “Answer and Counterclaim” must be filed with the court within 28 days of the date you received the eviction summons and complaint. If you don’t file within this time, your landlord will get a judgment against you for the amount your landlord claims you owe and court costs. You will also lose the opportunity to sue for the money you think your landlord owes you.

Your landlord has 14 days to reply (answer) to your counterclaims. If the landlord does not reply, then you can ask for a default judgment. This is an order in your favor because the landlord did not respond as required or failed to show up in court.

STEPS TO FILING ANSWER OR ANSWER & COUNTERCLAIM

ANSWER: If you only dispute your landlord’s claim for money or the amount of money he/she claims you owe, you want to file an answer.

The answer should state:

• You deny that you owe part or all of the money your landlord claims you owe;
• A request that your landlord return your security deposit, plus interest.

ANSWER & COUNTERCLAIM: If there are reasons why your landlord actually owes you money then you want to file an Answer and Counterclaim. Possible reasons why your landlord could owe you money include:

• You overpaid on rent,
• Your landlord will not return your security deposit,
• You made improvements/repairs to the apartment,
• You or a family member suffered an injury because of something that is the landlord’s fault

What do I say in the answer?

Deny any part of the complaint that is untrue. If you do not deny something, the court will assume it is true and you will not be given a chance to deny it at the hearing. State any counterclaims you have by describing why your landlord owes you money and how much you believe you are owed.

At the end, tell the Court what you want it to do:

• If you don’t have counterclaims, you want the court to dismiss the case and require your landlord to pay court costs.
• If you have counterclaims, write the amount you want the court to award you.

See CLAS’ article “How to File an Answer and Counterclaim”.

What to Bring With You to Court:

1. “Physical documents” to prove your counterclaims such as: rent receipts, security deposit receipt, utility receipts, lease or rental agreement, letters written between you and your landlord, and any receipts you may have for supplies you used to make repairs. Bring the originals and photocopies.
2. Photographs to prove to your counterclaims, such as photos of the condition of your apartment, repairs that need to be made or repairs you made.
3. Witnesses who have actually seen things or actually heard the conversations that you are testifying about at trial.

Be prepared to testify on your own behalf.

Be prepared to ask your landlord yes/no questions. (This is called cross-examination)

I FILED AN ANSWER OR ANSWER AND COUNTERCLAIM, NOW WHAT HAPPENS?

An eviction hearing will be held. At this hearing the judge/magistrate will only decide whether or not you should be evicted.

Your landlord will be given a chance to prove to the court that:

• your lease was up or you broke the lease,
• a 3 day notice to leave was served,
• no rent was accepted from you after the notice was served, and/or
• you are still living in the rental home.

When your landlord is finished, you will be given a chance to prove why you should not be evicted. To prove your case, you can show the judge or magistrate a copy of the lease or rent receipts, question the landlord or the landlord’s witnesses, and explain to the court what happened.

This article is meant to give you general information and not specific legal advice.

Prepared by Community Legal Aid Services, Inc. Updated April, 2012.