eviction! 

Sun 9.27.20

      It is now eviction season in the USA, the virus hold on evictions has been lifted and there is a free for all occurring in civil courts across the nation.  Those who are unable to make their rent payments because of the present economic chaos are spared and cannot be evicted for a while, but their turn will surely come.  I myself have received a Forcible Entry and Detainer (FED) complaint.  That’s to be expected when you bring your landlord or his agent to court, as I have done. 

      Tenants are given short shrift in the legal system.  Whereas one may file other complaints and it will take a very long time for the trial to ensue, for instance, my civil case against landlord’s agent commenced in July 2019 has yet to reach trial, evictions are set up to get a person in and out of court in short time.  The trial for my FED case is scheduled for trial in 25 days. 

      But in the last few decades the balance of power between landlords and tenants has improved somewhat because legislatures have enacted laws to protect tenants.  If you have been given eviction papers do not panic.  Your opponent can smell that and so can the court if you act subserviently.  You are a citizen with rights and you will claim those rights, in court.

      Let me walk you through my case to date: The sheriff came to my door and I was served a Forcible Entry and Detainer complaint telling me I should have quit the apartment on the previous month.  Landlord was supposed to serve me a 30-day notice of termination.  He did not.  That leaves me with little time to prepare my case.  One has to answer the complaint or you lose.  In my case against Landlord’s agent, I took the agent to court because I was given written permission to place a gazebo in the yard, which was, 2 weeks later, rescinded.

      The eviction complaint states my placing the gazebo in the yard as one of their complaints.  So I immediately, along with my response to the FED action, file a motion seeking a continuance of the eviction till my own case will be heard and I also submit an affidavit with all the evidence I can assemble that can be of assistance; harassment, dated complaints whose existence were denied in my own case, the problem of mold spores in my home.  A telephonic hearing is scheduled.

      Reader, for a pro se litigant, entering court in person, or over the phone, is like being hit in the face with a brick.  At my hearing on the eviction complaint, it starts with quick intros and judge immediately turns to Landlord attorney, Where’s the case at?

It’s gonna be going to trial, he says vaguely.  I have about 5 or 6 witnesses lined up, and it will take about 2 hours court time.  They then decide on a convenient date for trial.

WHOA!  What is this?  I start to explain that I was not served a Notice of Termination that I’ve brought up in my response to the FED complaint.  Judge indulges pro se litigant for about 2 minutes and she cuts me off stating, You’re testifying --  no.  End of telephonic hearing: Trial date, October 22 at 2pm.  Ten minutes later, I call back and speak to the clerk, What about my motion to stay the trial till my case may be heard?  Oh, he says, I have it in front of me.  It’s been denied. Welcome to your eviction where 5 to 6 people will be testifying against you! 

      I now have work to do to catch up because of the missing 30-day notice.  I file a Motion to Quash for Lack of Subject Matter Jurisdiction, Insufficiency of Process, i.e., Landlord did not serve me a Notice of Termination, I file a Partial Summary Judgment Motion, Judicial Estoppel which goes to their denying evidence in my case and then bringing it up in the eviction notice, and also a 2nd affidavit with evidence to support these claims. 

      And then I stumble across the Anti-Slapp statute which has to be filed within 60 days, but one can apply for an extension of time.  I do so and below is my motion.  It’s a bit long but it’s worth reading, especially if eviction is at your doorstep:

SPECIAL MOTION TO DISMISS

14, MRSA §556

      COMES NOW Respondent, Lorraine Saint Pierre and files this Special Motion to Dismiss and, in support thereof, states as follows:

PRELIMINARY STATEMENT

On July 10, 2019 Lorraine Saint Pierre (Tenant) filed an Order to Show Cause seeking an injunction against management company (Agent) to Landlord, to prevent it from dismantling a gazebo, which she had been given written permission to install in the yard facing her apartment.  Two weeks later Agent rescinded the permission and she was given the next day to remove it or they would do so on the following day.  The case, Lorraine Saint Pierre v. management company, docket # CD 19-386 is ongoing.  On July 9, 2020 she was served a Forcible Entry and Detainer Complaint instigated by Landlord. 

FIRST CASE:

Lorraine Saint Pierre v. Management Company docket # CD 19-386

A first hearing was held on January 28, 2020 to rule on a Preliminary Injunction motion for which Tenant was not prepared and the motion was denied. Shortly after filing her case Tenant became subject to a barrage of complaints of a harassing nature, which she reported to Agent and to Landlord as not appropriate because of her suit, (see 2nd affidavit of instant case, ex. D.) 

Tenant, through the discovery process, requested her Tenant’s File from Agent and later sought Agent’s admission that they keep secret files.  None of the complaints listed in Landlord’s FED case were listed in her tenant file, and they denied keeping secret files.  Since Landlord is not involved in day-to-day operation at her site these complaints necessarily came from its Agent.  (see Tenant’s Partial Summary Judgment, Judicial Estoppel, statement of undisputed facts and its exhibits in 2nd affidavit.)  

      Researching HUD rules, the major obligor to her lease, she subpoenaed their HUD Occupancy Handbook, Multifamily Housing Programs.  In it she discovered that only Landlord may create and attach House Rules to its lease, and it has not done so.  (ex. C, 2nd affidavit.)  With this evidence in hand, she then sent a letter dated May 1, 2020 informing Agent vice president, regional manager, the official who informed Tenant that she had to take down her gazebo, and Tenant’s manager of the HUD rules.  Agent does not have the authority to act unitarily, to police tenants, as it did and does. 

      To Agent’s assertion that the yard on which the gazebo had been placed was a common area, Tenant produced a document indicating that tenant in unit 6 facing the yard was given written permission to establish a patio in the yard facing her unit, Tenant also supplied a multitude of photos in which tenants have established extensive gardens and patios in front of their units thus belieing Agent’s “common area” assertion.   There was a case to be made for the yard facing Tenant’s unit that it was the curtilage of her home and she was entitled to privacy in it.  As the case now stands Tenant has attached its Pretrial Memorandum filed in May 2020 to instant motion as exhibit 1.  She sought to subpoena Landlord, and the court approved the in forma pauperis she requested to mitigate its cost.  The trial will undoubtedly be scheduled after the restart of Court hearings of civil cases on October 19, 2020 after its closure due to the corona virus.

INSTANT CASE

Landlord  v. Lorraine Saint Pierre, DC SA 2020-301

In its complaint, Landlord claims:

March 4 2019, noise

May 30, 2019  erecting canopy, and installing garden

June 15, 2019, noise

July 29, 2019 photographing gardens

September 19, 2019, climbing out of window

September 19, 2019, cat climbs out of window

November 5, 2019, cat climbs out of window

April 30, 2020, possible preparation for reinstalling gazebo

May 8, 2020, Tenant objects to management’s bullying.  Her boards and bricks are displaced.  The only item removed is a plastic chair Tenant found by the dumpster.

Although Tenant responded to Landlord’s FED action it bears repeating that a person who is hard of hearing cannot possibly know what is too loud for another person and surely one may not be evicted because of its disability or for taking pictures of gardens. 

      Tenant’s cat Chloë succumbed to her poisoning on March 17, 2020, well before Tenant was served her FED notice.  Complaints about it should not have been included on Landlord’s list of complaints as it was now moot.  The only serious complaints in Landlord’s case are Tenant’s placing of the gazebo and a garden in the yard.

      Save for the gazebo and garden complaints, the rest are not legitimate as they are based on Agent’s House Rules which HUD does not allow (ex. C, 2nd affidavit.)

NUMEROUS PROBLEMS WITH LANDLORD’S EVICTION ACTION

      As stated above, a response to Landlord’s FED action was filed on July 28, 2020 along with a continuance motion seeking to stay the eviction till Tenant’s own case could be heard.  The motion was denied.  An affidavit was filed on August 18, 2020 outlining the problems with Landlord’s case that she planned to present to the court; the judicial estoppel action wherein most of the very complaints listed above, were denied existence in Tenant’s own CD 19-386 case by Landlord’s agent.  The affidavit also presents the ongoing harassment and the issue of Tenant’s mold complaints, both will be elucidated below.  Tenant then filed a motion to quash the FED action on September 9, 2020 because Tenant was never served a 30-day notice of termination.  On this same date, Tenant filed the motion seeking partial summary judgment to eliminate the complaints denied (neither motion has yet to be ruled on,) and the second affidavit. 

MOTION TO DISMISS, RETALIATORY EVICTION

14, MRSA §6001, Availability of Remedy

3.  Presumption of retaliation.  In any action of forcible entry and detainer there is a rebuttable presumption that the action was commenced in retaliation against the tenant if, within 6 months prior to the commencement of the action, the tenant has: 

B. Complained as an individual,

C. Complained in writing or made a written request, in good faith, to the landlord or the landlord's agent to make repairs on the premises as required by any applicable building, housing or sanitary code[.]

      The issue of mold at Tenant’s home is part of Tenant’s complaint in its case, CD 19-386, (see attached Pretrial Memorandum’s list of exhibits, exhibit 10.) 

In its first affidavit to instant case, submitted on August 18, 2020, with attached exhibits Tenant has described the problem with mold at her home and especially her apartment.  Listed below are the dated exhibits to be found in Tenant’s first affidavit: 

Exhibit F, 1.7.2020 Emergency Room, Maine Medical Center report in which ER physician states in its diagnosis, “Symptoms consistent with mold exposure at home.”

Exhibit G, 5.2.2020 Tenant contacts general contractor Adam Routhier who performed work at Tenant’s building aimed at eliminating the mold in it, and his response he states, “Part of this project was upgrading the ventilation system to improve air flow, which in turn minimizes mold and stale (bad smelling) air.  Unfortunately this isn’t a cure-all.” -- Landlord had previous knowledge of the mold problem.

There are also in this exhibit, two emails from mold inspectors; Randy Geoffroy, president at Air Quality Management Services, 2.4.2020, states, “Windows should be kept closed for a few days” to get an accurate reading.  Matt LaForge, Square One Home Inspections, LLC 2.4.2020 advises, “I would not use the air purifier for about 24 hours, more if you want a really accurate reading.”  Were Tenant to do as advised by the inspectors to get an accurate reading she would be back at the emergency room with a mold reaction.

     And lastly there is the letter to Landlord dated April 8, 2020, which is less than six months after it files its FED complaint of July 6, 2020.  In it she goes on at length about her efforts to minimize the mold spores in her unit, evidence of its agent’s disinclination to resolve the mold problem, her expenses in purchases of 3 air purifiers.

Exhibit H, June 2, 3 & 4, 2020 contain emails exchanged between Tenant and Agent in which it becomes evident that Tenant’s complaint will not be addressed, but the intention is to get a false reading thus “proving” there is no problem.  Manager mistakenly cc’s  Tenant an email she sends to her superior requesting his advice on how to respond to Tenant’s rejection of the air quality test because it will not be accurate.  Manager, ignorant of the myriad reactions to mold, has concluded that Tenant is faking.  In spite of Tenant’s rejection Manager nevertheless sends two menacing men to her apartment who attempt to present themselves as quasi-official inspectors. She will not let them enter and they chase her to the backyard where she has escaped them. They carry no identification.  Maine legal aid sends the police after them for threatening her.

Exhibit I holds copies of Tenant purchases through Amazon.com on February 3, 2020 Levoit Air Purifier, $142.49, February 10, 2020 Levoit Air Purifier, $142.49, March 3, 2020 another Levoit Air Purifier $159.99 and August 3, 2020 an AmazonBasics Dehumidifier $171.95.  Amazon adds Maine sales tax at 5.5% of $18.26 to purchases amounting to $635.18 that Tenant has expended to eradicate mold spores.  She has also washed down the side of the building to eliminate visible mold which Agent would not do and has shoveled snow piled against the face of her unit to mitigate the seepage of water under her unit.

Landlord did not respond to the letter Tenant sent him and its agent refused to address the dishonesty of seeking an inaccurate air quality reading, even resorting to bullying when Tenant would not comply.  A simple solution to the problem, which was not offered, would have been to house Tenant in another unit for 3 or 4 days to get a faithful reading in her unit.  Landlord’s solution is to evict Tenant, the very behavior prohibited by 14 MRSA §6001(3).  In his dissent in Perrault v. Parker 490 A.2d (Me.1985) Judge Skolnik explains, “In barring retaliatory evictions the Legislature has given tenants a very important protection. Doubts and contradictory findings should be resolved in favor of the tenant to ensure that the legislative policy behind 14 M.R.S.A. § 6001(3) is carried out.  The defendant is entitled to a fair and legally correct hearing when her eviction is presumptively retaliatory.”

HUD OCCUPANCY HANDBOOK

CHAPTER 6, LEASE REQUIREMENTS AND LEASING ACTIVITIES

page 419, attached, exhibit 2 with HUD authentication

6.     Prohibited provisions. The following provisions must not be included in a

lease modification.

b.     Distraint for rent or other charges. An agreement by the tenant that the owner is authorized to take property of the tenant and hold it until the tenant performs an obligation the owner has determined the tenant has failed to perform.

d.     Waiver of legal notice by tenant before actions for eviction or money judgment. An agreement by the tenant that the landlord may institute suit without notifying the tenant that the suit has been filed.

e.     Waiver of legal proceedings. Authorization for the owner to evict the tenant or hold/sell the tenant’s possessions whenever the owner determines a breach or default has occurred, without notice to the tenant or determination by a court of the rights and liabilities of the parties.

Landlord may not seize Tenant’s property, may not institute a Forcible Entry and Detainer action without informing Tenant with a 30-day notice.

SPECIAL MOTION TO DISMISS

14, MRSA §556

ARGUMENT

A first step in the process necessary to secure a special motion to dismiss, 14, MRSA §556, requires that Respondent establish as a matter of law, that Petitioner’s Forcible Entry and Detainer is intended to harass and intimidate Tenant, to circumvent her 1st amendment Right to Petition the courts with a complaint in a civil suit against Petitioner, (see Gaudette v. Davis, 2017 ME 86,  also Nader v. The Maine Democratic Party 2012 ME 57.)  Landlord’s case lists the very complaints that Tenant has filed in her suit, the placing of a gazebo in the yard and creation of a garden as actions worthy of punishment.  Tenant’s mold complaints are also listed in the FED action, (7th graph, page 2)  as, “ . . . [Y]ou have a history of making false complaints to management and maintenance.[;]”  the fact of Landlord’s written notification about the mold problem less than 6 months before the issuance of the forcible entry and detainer, the fact that Tenant was not served a 30-day notice to quit, the fact that the very complaints listed in landlord’s suit are denied existence by its agent in Tenant’s case, the fact that most of the complaints are based on Agent’s known illegitimate House Rules, the listing of Tenant’s disability as a complaint and other baseless complaints are indicative of a frivolous suit.  No seasoned real estate attorney would bring such a suit to court unless it was meant harass, to intimidate and burden Tenant; the suit also serves as a warning to Landlord’s other tenants of what happens if one makes complaints, seeks redress in the courts.

      Respondent’s petition must show merit if she is to establish the validity of her quest for a special motion to dismiss.  The court’s approval, in CD 19-386 of her in forma pauperis request for funds to subpoena Landlord are the indication that the case has merit else the court would not subsidize a frivolous suit.

CONCLUSION

      Respondent has more than met the preponderance of evidence standard with the evidence produced establishing a greater than 50% chance that her claim is true.

 With this motion Tenant seeks compensatory damages of $635.18 for money expended to mitigate the mold problem in her apartment and to make her home reasonably livable.  Landlord has yet to rectify mold problem.

        WHEREFORE, in light of the issues raised, arguments advanced and authorities cited, it is humbly prayed before this court, that Respondent’s Special Motion to dismiss be granted, together with such other and further relief to which this Court deems just, proper and equitable.

 The favorite essay this month has again been,The Karpman Drama Triangle