Duped by landlord out of rent deposit
Dear Mrs Macaulay,I am suing someone to get back $150,000 in deposits to rent an apartment. On four occasions, the individual stated that the apartment would be available on another date. On the fourth occasion, I concluded that he was misleading me and legal proceedings were initiated.
The individual did not appear in court, and a default judgement was granted. He was served a judgement summons, and ignored this also. He was then served a formal order. My questions are, what should I expect at the formal order hearing, and what are my rights as the plaintiff?
It seems that the individual was engaged in fraudulently obtaining money from you. If it wasn’t his criminal intention to do so, and if it was an above-board business venture, all monies received as deposits would have been kept safe and intact in a business account. You see, sometimes the steps towards completion of a contract can, and often, do break down, and such deposits would have to be returned, especially if the fault of the breakdown is the landlord’s and not the tenant’s. It seems that you did not have a written contract which would (or rather I ought to say should have) spelt out what would happen to your deposits upon a breakdown caused by the landlord.
The actual circumstances are that the individual kept receiving deposits from you towards your deposit and rental. The fact that you eventually realised that it was becoming an unending course of action and requested your money back but did not receive it, means it was clearly not safe in a bank account, but non-existent. The fact that you filed your claim against the individual in court, service was effected on the individual, and he did not attend court, is clear proof that the individual had no defence to your claim and decided to just stay away, hoping you would not pursue him to the end. As I am sure you know, since this was obviously fraudulent obtaining of money, you could also make a criminal report for charges to be laid.
Anyway, you decided quite rightly to sue for the refund of your monies, and I hope, with interest. You obtained a default judgement and he was consequently served with a judgement debtor summons which he also ignored. You state that he was then served with a formal order and summons to attend a hearing before the judge.
This hearing is to give the defendant the opportunity to put forward an offer or offers on how he shall pay up his judgement debt. This means the default judgement of your $150,000, plus interest awarded on it, if any; and your costs for having had to file and prosecute your claim; then added to that must be the legal judgement interest for the period he failed to pay the judgement; plus your subsequent costs for the preparation of the default judgement, the judgement summons, the formal order and the summons for attendance at the formal hearing; and for your attendance at this hearing, plus all court costs and the bailiff’s fees.
You ask what you can expect at the formal hearing. Well, you can request full payment of the entire sums due to you, but you will find that the defendant, if he attends, will ask to make payment to his judgement debt in instalments. These are generally at a very low rate, which the judge may jump in and reject, but in any event you have the right to state your rejection of it.
Then he would be asked by the judge to be serious about what he’s offering, and he may make another offer, or you can be asked what level of instalment you would accept.
I do trust that he is the owner of the premises you were trying to rent, because this would be a safety net for you to ultimately obtain your money. Your right as a plaintiff is to ensure with the aid of the judge that you get all the money due to you following your judgement, either by an agreed order arrived at during the formal hearing, or following no intention of his to pay, action by the bailiff to collect from the sale of his personal property. As a last resort, you can apply for and obtain an order for the sale of his premises, and you would be paid from the proceeds of sale. This last resort is not readily done and all other means are tried first.
If you see that this latter one will be what you may have to proceed with, I suggest that you get a certified copy of a final order of the total of all that is due to you, which you can use to place a caveat on the registered title of his premises, so that he cannot dispose of it until the entire judgement debt for all the sums due to you is paid.
I hope I have clarified your queries for you and that you are successful in collecting all the money due to you.
Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women’s and children’s rights advocate. Send questions via e-mail to allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.
DISCLAIMER:
The contents of this article are for informational purposes only, and must not be relied upon as an alternative to legal advice from your own attorney.
