Tenant that moved out won't pay back rent

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swimirvine
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Tenant that moved out won't pay back rent

Post by swimirvine » Wed Sep 25, 2013 12:27 pm

I sold my rental property in California (I live on the east coast). My tenant was constantly late on rent but over 4 years always paid the rent eventually. The last 2 and 1/2 months (May, June and 1/2 of July) she did not pay. She assured me that the rent was coming over and over.

I sent multiple e-mails reminding her and asking for the rent. On Sept 1st I sent her an e-mail giving her a final date of Sept 30th and told her i would file paperwork with Small Claims Court in San Bernardino County on 10/1/13 if she didn't have the rent to me by then.

She was a resident physician and is now a private practice OB/GYN so I know she has the money. She started her new job on 8/1 so she will have had 2 months of pay checks by 10/1.

I hate to take her to small claims court but I read somewhere online that there is a time limit to file in small claims court of 6 months for written contract disputes. I'm going to ask for rent, late fees, court fees and the cost of me flying to California to appear in court.

Am I doing everything right? Am I missing anything?
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smpatel
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Re: Tennant that moved out won't pay back rent

Post by smpatel » Wed Sep 25, 2013 12:32 pm

What is going on? A doctor not paying a rent :confused

Do you have an email acknowledgement from her promising to pay the rent hence recognizing the debt? That would help.

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swimirvine
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Re: Tennant that moved out won't pay back rent

Post by swimirvine » Wed Sep 25, 2013 12:33 pm

yes, her e-mails made it sound like she had several debts to pay off but that I was "high priority"

she has not responded to any of the e-mails regarding the small claims court.

I don't have her new home address but I have her work address where I will have the paperwork served.
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Re: Tennant that moved out won't pay back rent

Post by smpatel » Wed Sep 25, 2013 12:39 pm

Since you have already divulged your plans to file a claim, it could be helpful if she knows the estimate of the claim with the breakdown you suggested. She would realize that she could end up paying much more.
Do you think there was a deposit or any other disputes you had with her which prompted her actions?

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swimirvine
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Re: Tennant that moved out won't pay back rent

Post by swimirvine » Wed Sep 25, 2013 12:53 pm

no, she didn't even as for her deposit back. There was a lot of work that needed to be done before selling the house. Most of it was because of her kids. I know she was struggling during residency making 50k with 2 kids but now she should be making >150k so I don't know why she hasn't sent the money.
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Clearly_Irrational
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Re: Tennant that moved out won't pay back rent

Post by Clearly_Irrational » Wed Sep 25, 2013 1:15 pm

Don't mess around, hire a lawyer that specializes in evictions. Follow his advice on proper procedure and get her out of your unit ASAP.

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Re: Tennant that moved out won't pay back rent

Post by smpatel » Wed Sep 25, 2013 1:17 pm

OP has suggested that she is already out and house is sold, deposit spent on fixing things etc. She has not paid the back rent, my assumption is that she thinks her deposit was enough to cover that.

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Re: Tennant that moved out won't pay back rent

Post by Clearly_Irrational » Wed Sep 25, 2013 1:23 pm

smpatel wrote:OP has suggested that she is already out and house is sold, deposit spent on fixing things etc. She has not paid the back rent, my assumption is that she thinks her deposit was enough to cover that.
Oh yeah, guess I fail on the reading comprehension test for today.

In that case he has two options, small claims or just write it off and move on. Well, I suppose you could turn it over to a debt collector but it's so small most of them wouldn't be interested. For me, I'm pretty busy so I'd probably just take the write off on my taxes and file a negative credit report.

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swimirvine
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Re: Tennant that moved out won't pay back rent

Post by swimirvine » Wed Sep 25, 2013 1:30 pm

The past due rent total is $4,040.

The amount I'm asking for in small claims court with late fees, court fees and travel costs is $5040

The deposit she didn't ask for was $500

She finished her residency on 6/30, moved out on 7/10 and started her new job on 8/1
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Abe
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Re: Tennant that moved out won't pay back rent

Post by Abe » Wed Sep 25, 2013 2:00 pm

swimirvine wrote:The past due rent total is $4,040.

The amount I'm asking for in small claims court with late fees, court fees and travel costs is $5040

The deposit she didn't ask for was $500

She finished her residency on 6/30, moved out on 7/10 and started her new job on 8/1
The way it works where I live, if you sue her in small claims court and you get a judgement against her, you can garnishee her wages or attach her bank account among other things. Since she is a doctor, I would think she will go on and pay you as soon as she is notified that legal proceedings have started. If she doesn't you can proceed with the small claims court and get the judgement.

Before doing the above, you might send her a certified return receipt letter, telling her that you intend to sue her but that you'll give her 10 days to pay before you sue. And tell her if you have to sue, it will cost her a lot more money because you will be asking for what she owes plus expenses including your cost to fly back from the east coast. I doesn't hurt to try. You can still sue if she doesn't.

Another option is you can hire a lawyer for a percentage of the amount owed. In this case you probably would not have to go to California because the lawyer would be representing you. I have done this before where I live. There are lawyers who specialize in bill collecting. I doesn't cost as much as you might think.
Last edited by Abe on Wed Sep 25, 2013 2:12 pm, edited 2 times in total.
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Re: Tennant that moved out won't pay back rent

Post by TSR » Wed Sep 25, 2013 2:05 pm

You might also email her a copy of the drafted complaint with a demand that she pay the entire amount. Once she sees that you're serious about filing something, that might jar her into action. I have to believe that in job applications, insurance stuff, and licensing applications, people will generally ask doctors whether they have been sued in civil court before.

(FWIW, I would probably just take this as a loss too, given that collection will probably cost you as much in time and energy as the judgment will gain you.)

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Re: Tennant that moved out won't pay back rent

Post by manwithnoname » Wed Sep 25, 2013 2:46 pm

If you want to get the money back send her a certified letter informing her that if she doesn't pay the back rent you will notify her employer that she is a dead beat and that you are going to sue her in small claims court to recover the debt. As a new doctor she will not want her employer to know that she is being pursued by creditors. You should also mention that if you get a judgment against her it will go on her credit reports.

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Re: Tennant that moved out won't pay back rent

Post by Spirit Rider » Wed Sep 25, 2013 3:01 pm

manwithnoname wrote:If you want to get the money back send her a certified letter informing her that if she doesn't pay the back rent you will notify her employer that she is a dead beat and that you are going to sue her in small claims court to recover the debt. As a new doctor she will not want her employer to know that she is being pursued by creditors. You should also mention that if you get a judgment against her it will go on her credit reports.
This is horrible advice. Threatening to notify her employer and putting it in writing now puts the landlord in serious legal jeopardy. This would be prohibited communication and harassment or abuse under the Fair Debt Collection Practices Act (FDCPA). You would have a taken a strong moral and legal position and turned it upsides down with multiple violations of the FDCPA and subject to thousands of dollars of sanctions payable to the deadbeat tenant. Not to mention making the debt now uncollectable.

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swimirvine
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Re: Tennant that moved out won't pay back rent

Post by swimirvine » Wed Sep 25, 2013 3:06 pm

since I don't know where she lives, is it okay that I have the legal paperwork delivered by certified mail to her place of work?
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Re: Tennant that moved out won't pay back rent

Post by rogermexico » Wed Sep 25, 2013 3:34 pm

Since you are out of state, in this case hiring a lawyer makes more sense than usual. If you fly out especially for your court date but make a mistake on the filing papers, judge could dismiss that case and force you to file again or delay the case (costing you another trip). Also judge has discretion as to what to allow (might not allow for your costs for flying in, for example). Small claims court is usually not that complicated in my experience, but since you are out of town here it makes more sense to have a lawyer do it. At least in my area lawyers that handle evictions and landlord/tenant stuff are not terribly expensive, especially since they often handle such cases by the bunch.

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Re: Tennant that moved out won't pay back rent

Post by manwithnoname » Wed Sep 25, 2013 3:37 pm

swimirvine wrote:since I don't know where she lives, is it okay that I have the legal paperwork delivered by certified mail to her place of work?
Definitely. It will certainly get her attention that you know where she works.

I am assuming that you are asking about sending a demand letter that I discussed above.

If you are asking about serving her with the complaint in small claims court action you need to check the court rules for how the defendant is to be served.

One new question: Can you sue in small claims court if you do not reside in CA?
Last edited by manwithnoname on Wed Sep 25, 2013 3:51 pm, edited 1 time in total.

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Re: Tennant that moved out won't pay back rent

Post by manwithnoname » Wed Sep 25, 2013 3:44 pm

Spirit Rider wrote:
manwithnoname wrote:If you want to get the money back send her a certified letter informing her that if she doesn't pay the back rent you will notify her employer that she is a dead beat and that you are going to sue her in small claims court to recover the debt. As a new doctor she will not want her employer to know that she is being pursued by creditors. You should also mention that if you get a judgment against her it will go on her credit reports.
This is horrible advice. Threatening to notify her employer and putting it in writing now puts the landlord in serious legal jeopardy. This would be prohibited communication and harassment or abuse under the Fair Debt Collection Practices Act (FDCPA). You would have a taken a strong moral and legal position and turned it upsides down with multiple violations of the FDCPA and subject to thousands of dollars of sanctions payable to the deadbeat tenant. Not to mention making the debt now uncollectable.
How does FDCPA apply to a landlord trying to collect a debt from the tenant? FDCPA only applies to debt collection agencies, not to parties who are trying to collect a debt owed to them under a legally enforceable contract.

http://oag.ca.gov/consumers/general/col ... agencies10

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Re: Tennant that moved out won't pay back rent

Post by smackboy1 » Wed Sep 25, 2013 3:51 pm

swimirvine wrote:I sold my rental property in California (I live on the east coast). My tenant was constantly late on rent but over 4 years always paid the rent eventually. The last 2 and 1/2 months (May, June and 1/2 of July) she did not pay. She assured me that the rent was coming over and over.

I sent multiple e-mails reminding her and asking for the rent. On Sept 1st I sent her an e-mail giving her a final date of Sept 30th and told her i would file paperwork with Small Claims Court in San Bernardino County on 10/1/13 if she didn't have the rent to me by then.

She was a resident physician and is now a private practice OB/GYN so I know she has the money. She started her new job on 8/1 so she will have had 2 months of pay checks by 10/1.

I hate to take her to small claims court but I read somewhere online that there is a time limit to file in small claims court of 6 months for written contract disputes. I'm going to ask for rent, late fees, court fees and the cost of me flying to California to appear in court.

Am I doing everything right? Am I missing anything?
I know nothing about CA law but have been involved with landlord-tenant and collections cases. If the tenant digs her heels in, here are 2 hurdles here: 1) obtaining a judgement for non-payment of rent; 2) collecting the judgement.

That being said, before you do anything, take a deep breath and ask yourself how much is your time worth? Do you have any experience in L-T or collections cases? You live 3,000 miles away from the court. Court cases can involve multiple appearances, postponements, delays etc.. Are you prepared to make multiple trips. Also, even if you get a judgement against the defendant, does your lease or CA law specifically permit consequential damages for non-payment of rent which would allow reimbursement of your travel expenses?

Also, carefully gather all your evidence and review it. L-T law can be very technical and is often biased in favor of residential tenants. What this means is that if the landlord does not follow the exact letter of the lease or the law, they will lose the case. E.g. if CA law requires notice to be given via certified mail, e-mail or regular mail notice may be insufficient. As the landlord, all the i's have to be dotted and the t's crossed.

You may want to consider seeking out an L-T lawyer.
Disclaimer: nothing written here should be taken as legal advice, but I did stay at a Holiday Inn Express last night.

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Re: Tennant that moved out won't pay back rent

Post by Spirit Rider » Wed Sep 25, 2013 4:05 pm

manwithnoname wrote:How does FDCPA apply to a landlord trying to collect a debt from the tenant? FDCPA only applies to debt collection agencies, not to parties who are trying to collect a debt owed to them under a legally enforceable contract.

http://oag.ca.gov/consumers/general/col ... agencies10
OK, so the FDCPA only applies to collection agencies. I still think it is horrible advice to threaten the tenant's employment.

How does it look to be taking an action that a collection agency is prohibited from taking. If this ends up in small claims court, you don't want to look like the bad guy.

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Re: Tennant that moved out won't pay back rent

Post by manwithnoname » Wed Sep 25, 2013 4:13 pm

Spirit Rider wrote:
manwithnoname wrote:How does FDCPA apply to a landlord trying to collect a debt from the tenant? FDCPA only applies to debt collection agencies, not to parties who are trying to collect a debt owed to them under a legally enforceable contract.

http://oag.ca.gov/consumers/general/col ... agencies10
OK, so the FDCPA only applies to collection agencies. I still think it is horrible advice to threaten the tenant's employment.

How does it look to be taking an action that a collection agency is prohibited from taking. If this ends up in small claims court, you don't want to look like the bad guy.
Judge wont have any problem figuring out that the bad actor is doc making 150k who skipped out on paying $4000 in rent and ignored requests to pay it.

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Re: Tennant that moved out won't pay back rent

Post by Spirit Rider » Wed Sep 25, 2013 4:31 pm

We are just going to have to agree to disagree.

OP, I think this is terrible advice. Take whatever legal action is appropriate, but I advise against anything that appears retaliatory in nature.

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Re: Tennant that moved out won't pay back rent

Post by Artsdoctor » Wed Sep 25, 2013 5:23 pm

Any professional fears a hit to his/her credit report. It will be easy to find out where she's working. Send a certified letter to her work address (already will raise her sphincter tone) and explain that you would like to receive the $5000 in back rent to close the chapter amicably. Explain that this is the final letter that she will get from you and that future correspondence will be from your lawyer. Explain that you would very much dislike having to take action that might negatively influence her ability to obtain credit for years to come. Unless she truly has an untreated mental illness or personality disorder, I would be surprised if you don't get a response. But if you don't, sue her.

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Re: Tennant that moved out won't pay back rent

Post by frugaltype » Wed Sep 25, 2013 5:41 pm

Artsdoctor wrote:Any professional fears a hit to his/her credit report. It will be easy to find out where she's working. Send a certified letter to her work address (already will raise her sphincter tone) and explain that you would like to receive the $5000 in back rent to close the chapter amicably. Explain that this is the final letter that she will get from you and that future correspondence will be from your lawyer. Explain that you would very much dislike having to take action that might negatively influence her ability to obtain credit for years to come. Unless she truly has an untreated mental illness or personality disorder, I would be surprised if you don't get a response. But if you don't, sue her.
+1. But I would not make the credit report sound like a threat, just sound informational. He doesn't want to raise the anger level.

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Re: Tennant that moved out won't pay back rent

Post by manwithnoname » Wed Sep 25, 2013 6:19 pm

Spirit Rider wrote:We are just going to have to agree to disagree.

OP, I think this is terrible advice. Take whatever legal action is appropriate, but I advise against anything that appears retaliatory in nature.
Isnt a law suit, by its nature, retaliation against a wrong doer for the wrong inflicted on the plaintiff?

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Re: Tennant that moved out won't pay back rent

Post by Clearly_Irrational » Wed Sep 25, 2013 6:25 pm

manwithnoname wrote:
Spirit Rider wrote:We are just going to have to agree to disagree.

OP, I think this is terrible advice. Take whatever legal action is appropriate, but I advise against anything that appears retaliatory in nature.
Isnt a law suit, by its nature, retaliation against a wrong doer for the wrong inflicted on the plaintiff?
It seems that way but theoretically you're seeking lawful redress of grievance not vengeance.

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Re: Tennant that moved out won't pay back rent

Post by Artsdoctor » Wed Sep 25, 2013 6:42 pm

Retaliation implies "an eye for an eye." Here, the landlord is seeking a legal remedy to be made whole.

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Re: Tennant that moved out won't pay back rent

Post by practice practice » Wed Sep 25, 2013 7:19 pm

Picket her new job :twisted:

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Re: Tennant that moved out won't pay back rent

Post by Watty » Wed Sep 25, 2013 8:23 pm

frugaltype wrote:
Artsdoctor wrote:Any professional fears a hit to his/her credit report. It will be easy to find out where she's working. Send a certified letter to her work address (already will raise her sphincter tone) and explain that you would like to receive the $5000 in back rent to close the chapter amicably. Explain that this is the final letter that she will get from you and that future correspondence will be from your lawyer. Explain that you would very much dislike having to take action that might negatively influence her ability to obtain credit for years to come. Unless she truly has an untreated mental illness or personality disorder, I would be surprised if you don't get a response. But if you don't, sue her.
+1. But I would not make the credit report sound like a threat, just sound informational. He doesn't want to raise the anger level.
Another +1

And she will likely want to buy a house soon or may even be in the process of buying one now.

I'm not sure how you would do it but if you could get the debt added to her credit reports that would get her attention real fast.

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Re: Tennant that moved out won't pay back rent

Post by abuss368 » Wed Sep 25, 2013 9:40 pm

See if you can report it to the credit agencies.

I feel bad about your unfortunate experience.
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Re: Tennant that moved out won't pay back rent

Post by dm200 » Wed Sep 25, 2013 9:48 pm

There may be a way to do it, but I do not believe an individual can just "report someone to a/the credit bureau". To accomplish a credit bureau record, you would need to, as far as I know, send the debt to a collection agency so it gets reported by them as "collection" or to an attorney who would need to get a judgment, which would be recorded.

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Re: Tenant that moved out won't pay back rent

Post by hpryder » Thu Sep 26, 2013 12:42 pm

OK Swimirvine, I'm a So. Ca. landlord and have done a few eviction and many rental end situations. You haven't given enough information.
I'm going to assuming this rental was NOT rent controlled.
Several facts have direct bearing on what you want to do.

Did you sell with her still renting? If yes, she became the buyers renter and your back rent and her security deposit should have been accounted for in the sale escrow. If not, you'll need an attorney specializing in Ca. real estate law to go after the real estate agents, escrow company & buyer.
Probably cost prohibitive for you.

If you sold without the renter and the lease/rental agreement ended while you still owned the property, you had to have done several things.
1. You had to have offered her in writing a written pre-move out inspection within 2 weeks of her moving out and if she accepted you offer, done it.
2. Then 21 days after she moved out you had to have mailed her a security deposit accounting letter showing what was deducted and if more than $125 was deducted, bill copies.
3. And you had to have refunded any security deposit balance within that 21 days.

If you did neither of these, you probably will lose any small claims action and will have to return her deposit with penalties.

If you did both, can document it and can document that she owes you the money along with other damages that you have a good chance of winning the small claims action. Then you’ll have to wait out the appeal period.

Next you have to decide if the $4Kback rent, court costs, legal consultation fees and travel costs are within the $10K small claims limit and if you really want to take the time to force her into court, then turn any money judgment over to a collection agency and accept 50 cents on any $1 they collect.
As you know, small claims does not allow attorney representation, but I think you can be represented by a para-legal aid.
If you want to go for more that the $10K, then it’s superior court for you where you’ll need an attorney and it’ll take several years since landlord – tenant cases are not fast tracked. How long do you want to wait to get a decision?

If this occurred in a rent controlled area, you'll have to for sure contact an attorney specializing in that areas rent controlled landlord - tenant law. Often each rent controlled area has substantially different regulations & procedures you must follow. Only an attorney in that areas is familiar with them.

I hope this helps you make a decision.
If it were me, I'd forget about it as being too costly in money & my time to be worth it.

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Re: Tenant that moved out won't pay back rent

Post by dlprop » Thu Sep 26, 2013 1:48 pm

Picket her new job :twisted:
Perhaps I'm a bit of a softy, I'm just thinking about why she might not have paid. She has a new job, but perhaps she incurred unexpected costs in moving? Maybe her school loans kicked in? If a tenant has paid rent late but consistently, likely it's a case of living paycheck to paycheck? I agree that you send her a certified notice and then small claims court, but bear in mind that she might be going through a lot. She needs to pay you at the end of the day, but no need to be evil.

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Re: Tennant that moved out won't pay back rent

Post by StretchArmstrong » Thu Sep 26, 2013 2:41 pm

swimirvine wrote:since I don't know where she lives, is it okay that I have the legal paperwork delivered by certified mail to her place of work?
In general, the address of a licensed professional is public in California. If this is the appropriate CA board, click the link, scroll to the bottom to go to the search, and put in her name. You can see her home address. There are strict timelines about updating your address. If the license falls to some other board (or even another state for that matter) you have to go there. Not all boards and not all states allow you to find a home address.

http://www.mbc.ca.gov/lookup.html

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Re: Tenant that moved out won't pay back rent

Post by furwut » Thu Sep 26, 2013 3:10 pm

swimirvine wrote:
She was a resident physician and is now a private practice OB/GYN so I know she has the money.

Slightly off topic but I once took a professional development course offered by the American Bankers Association. During the class the instructor quizzed us on what occupations we thought were least likely to repay loans. After a round of guesses by the students she informed us physicians were the most troublesome. Something to do with having a "God complex".

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Re: Tenant that moved out won't pay back rent

Post by leonard » Thu Sep 26, 2013 3:59 pm

Via a lawyer - so as to appear non-threatening - you should make it absolutely clear that this is a lot of money and you will continue to pursue this debt through every means (legally) necessary and for absolutely as long as it takes - even if it takes years. btw - the implication should clearly be that you will continue to pursue this - even if it costs more than the debt is worth - and that you would do this on principle, regardless if the economic cost-benefit makes sense. Depending on your disposition - this may be a bluff; it may not.

If she is making a physician's salary - she may simply pay the debt to avoid years of legal troubles and expense.
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