Whatddya all think bout this

[leonbt]

Scenario:

Elderly man lives at Senior's Apartment Complex for 6 yrs(not nursing home-but not just anyone can live there either). Senior has son Junior. Senior lives at Apt for 6 yrs. Beginning of July 0f 2010 comes along and unfortunately Sr. passes away. Jr. never signed the lease even though there is a "Guarantor" portion if Owner wanted someone to sign. Lease has provision that, in essence, states the heirs, successors, etc are beholden to said lease in case Sr. cannot fulfill it.

Apartment sends Jr. a bill for July's rent. Further, they want August rent too b/c Sr. didn't have the courtesy to give 30 days notice prior to his death. Apt also wants money for painting of apartment insides and repair of mini-blinds. Jr. says to Apt-go to hell. Apt responds w/ a collection agency demand letter. Jr. asks my advice.

I don't generally practice this sort of law, but those of you on the board who may have run into this situation or do practice in this area what say ye? (I will keep my opinion out of it for now so as not to bias anything).

[thunderhawk]

Junior hasn't signed anything?

Has he ever paid the rent before? Has he lived at the premises? Made any representations to the landlord?

Just on the surface I don't see how you can be held liable for payment if you're not party to a contract unless there is some quirk in the landlord tenant law of which I'm unaware.

[NOTTHOR]

Hey Leon - where the hell ya been? Standard not legal advice caveats apply:

Can you represent this person or is the County still preventing you from taking on your own cases? Either way, the collection agency possibly made a big boo boo when they sent the notice to Junior, depending on how they titled the letter:

www.ftc.gov/bcp/edu/pubs/consumer/credit/cre27.pdf

See Section 807 of this thing - give it a quick glance. They have a claim against Senior's estate, not against Junior. I'd send the collection agency back a nasty gram ASAP referencing that and explaining that the debt is against Senior's estate and they can get in line with the rest of the creditors - seems to me like they are misrepresenting the legal status of Junior's debt (which is probably none). My guess is that this wasn't the first time that this complex has had someone kick the bucket - send them a nasty gram, too, explaining that the language in their contract simply means they have a claim against Senior's estate, unless they can produce something that Junior executed. Parents cannot bind their adult children to private debts. In corresponding with the collection agency, I would refence the FDCPA and in corresponding with the apartment I would reference buzz words such as "privity of contract," "bad faith" and "filus nilius." You can get statutory damages from the collection agency, but double check the letter they sent - if they are smart, they sent it to the kid as executor, if they are dumb, they sent it to the kid in his individual capacity. Any money in the estate? Going to probate? You should call Shelly Kurtz for a 3 minute chat - he'll set you straight.

[leonbt]

I cannot take any case for $, but pro bono still is kosher. The collection letter lists Jrs name and address. The letter does not indicate they are attempting to collect from the estate.

I have drafted a letter to the collection agency and am in the process of writing one to the apartment complex. There is no money in the estate (or other assets for that matter from what I am told) and it won't go through probate either.

I appreciate the link BTR I will incorporate the language when necessary too.

Thanks for the info.

[thunderhawk]

Aug 30, 2010 7:19:42 GMT -6 NOTTHOR said:

Hey Leon - where the hell ya been? Standard not legal advice caveats apply:

Can you represent this person or is the County still preventing you from taking on your own cases? Either way, the collection agency possibly made a big boo boo when they sent the notice to Junior, depending on how they titled the letter:

www.ftc.gov/bcp/edu/pubs/consumer/credit/cre27.pdf

See Section 807 of this thing - give it a quick glance. They have a claim against Senior's estate, not against Junior. I'd send the collection agency back a nasty gram ASAP referencing that and explaining that the debt is against Senior's estate and they can get in line with the rest of the creditors - seems to me like they are misrepresenting the legal status of Junior's debt (which is probably none). My guess is that this wasn't the first time that this complex has had someone kick the bucket - send them a nasty gram, too, explaining that the language in their contract simply means they have a claim against Senior's estate, unless they can produce something that Junior executed. Parents cannot bind their adult children to private debts. In corresponding with the collection agency, I would refence the FDCPA and in corresponding with the apartment I would reference buzz words such as "privity of contract," "bad faith" and "filus nilius." You can get statutory damages from the collection agency, but double check the letter they sent - if they are smart, they sent it to the kid as executor, if they are dumb, they sent it to the kid in his individual capacity. Any money in the estate? Going to probate? You should call Shelly Kurtz for a 3 minute chat - he'll set you straight.

That is a fine idea. When Kurtz goes to sleep at night, he dreams about shit like this.

[Saggitariutt Jefferspin (ith)]

I'm certainly not in the position to give legal advice, but from a moral standpoint that's pretty fucking shady of the apartment.

[NotMyKid]

Aug 30, 2010 9:00:27 GMT -6 leonbt said:

I cannot take any case for $, but pro bono still is kosher. The collection letter lists Jrs name and address. The letter does not indicate they are attempting to collect from the estate.

I have drafted a letter to the collection agency and am in the process of writing one to the apartment complex. There is no money in the estate (or other assets for that matter from what I am told) and it won't go through probate either.

I appreciate the link BTR I will incorporate the language when necessary too.

Thanks for the info.

Keep us posted I would love to hear how this turns out.

[leonbt]

I will for sure keep you all posted as to any developments. The letters are set to go out tomorrow so we'll see . ..