Posted on 01/02/2006 12:05:49 AM PST by Will_Zurmacht
ANother thing----what would of happened if your credit check came out rotten? Would he of still cashed your check??
I wouldn't think so. The whole point was to see if my credit was up to snuff before he even bothered with a contract.
But I wouldn't think he'd sue me for this to begin with! So what do I know? hehe
Go to google and look up 'verbal contracts for (your state)' and read up on a little to be prepared before you go to court.
Hey all, I'm going to bed soon, but before I go, I just want to express my appreciation for all of the wondeful advice and support.
Freerepublic is such a wonderful experiment in community.
I'll check back later, just wanted to tell you all thanks for listening and giving sage advice.
Good to have you here in the heartland. Where are you from?
Don't listen to Boster... He hasn't a clue. Stopping payment on a check will not send you to jail.
I understand that the "deposit" was for the property owner. If so, he has misappropriated funds that weren't his. Tell them in the demand leter that they have one business day to mail the check to you by certified mail or you will file a complaint with the KS board on my link above for misappropriation of funds where no contract was executed. Copy the demand letter to the KS Realtor Commission and also send a copy certified mail as well as delivering one by hand.
Otherwise you are getting some very good advise here.
File a complaint with the state real estate commission. Let us see how quickly he removes the legal action. The commission has an 800 number. I believe all states have them. He does not want to mess with license loss. Ethics
are of huge importance to the NAR. One bad agent tarnishes many.
Wow, you certainly received a lot of great information. I'm sure you have a game plan by now but I'll add my two cents. If for no other reason, the experience of going to small claims court will be something for you to remember and draw from in the future. It's a heck of a good learning experience.
The written time line information is good, for you and the judge. Counter suing is not a great idea as you already realize. Checking with the school to see if there are legal resources is a good idea. If this happened to you now it's probably happened to others before and they would be aware of what to do or how past suits turned out as well as the law.
Filing a complaint once it's over is a good idea if you've won. If nothing else, it may help others in the future.
For that matter, you might consider taking notes about everything and writing a short story on your experience to Readers Digest. If you check, I think they pay for them and you might make a few bucks from it if they use it. If they don't want it, send it into the school paper for them to use.
Here's a convenient link.
http://www.kscourts.org/dstcts/4claims.htm
In Kansas, attorneys are not allowed in small claims court unless being personally sued or their practice is filing the claim.
If only less than $400 is involved, then legal counsel could cost more than the risk, hence the reason for small claims court. He'll represent himself. For this reason it's prudent to read up on some basics of contract law so when pertinent elements of a type of verbal or written contract arise, he is cognizant of his position.
If attending grad school near a law school, a good source is to swing by a law school book seller, and pick up a set of 'bluenotes' or a 'blue book' in Contract Law. They are generally legal paper sized bound in a blue cardboard/heavy paper cover and written as an outline or notes for particular courses at the respective law school. Most of the courses are similarly named from school to school.
Carolyn
Carolyn
Way to go.
This is important. Is this guy an actual liscensed realtor? Meaning that he actually sells houses along with his rental business. If so file a complaint with the kansas real estate commission. It may not be within their jurisdiction but there is no way this guy wants to be on their bad side. If it is at all within their realm, they will not take kindly to a realtor acting like this and will take much more than 375$ from him.
https://www.accesskansas.org/krec/verification/contact.html
I'll play the owner's role for you.
The owner of an apartment wants to rent his property. He could offer that property as a rental property with terms and conditions, affording any potential renter an opportunity to accept the offer and form a bilateral contract.
Before the owner enters into a rental agreement/contract, he wants to reduce his chance of renting to a poor financial risk, so he wants to run a credit check on the applicant prior to entering into an agreement, to discern if the applicant is trustworthy.
From the marketable renter's perspective, once he finds a rental, he wants to obligate his limited financial resources to secure a rental contract. (Element of materiality in the contract). From the owner's perspective, he doesn't want to lose a good renter, but he also doesn't want to incur a troublesome tenant who might cost him far more than the monthly rent simply to defend his property interests.
This acceptance or request of a credit application allows the agreement to become bilateral where essentially the final decision is left to the owner instead of the renter to complete the transaction. The details in the credit application and how it is conducted are pertinent to this contractual dispute.
The credit search costs the owner money and service to perform. Once a potential renter fills out that application, he probably has unilaterally authorized the owner to perform that service. Again, an element of materiality is involved. If you provided a check at the same time as the credit application, that check might serve as collatoral on the credit application as well as securing the rental property from being rented to another party prior to completion of the transaction.
The determination of how the cost of the credit search is paid might be a significant issue. (materiality) Some juridictions might interpret this as a cost of doing business by a landlord. Others treat this as an explicit contractual issue between two parties. The credit application might have been prewritten to overcome renter's laws and mold a bilateral agreement where the applicant essentially becomes the offeror and the owner becomes the acceptor and once signed, the applicant really doesn;t have any recourse.
For example, if the owner mentioned he wouldn't cash your check, until the credit application had cleared, this doesn't mean he might not still have an interest or even a right to use that check to fund the credit search.
The check also was tendered as security to hold the rental property from being offered to others. This also may imply that if the applicant fails to rent the property, he surrenders his deposit. If he cancels the check, then the potential renter has intentionally acted in bad faith upon the material he offered as collatoral for the rental property. Laws concerning fraud might come into effect.
'When' you called him back and 'canceled' the contract application, might be irrelevant. It might simply be the owner's decision and not yours at that stage of the transaction. Additionally, had he apllied any time or effort to the application, he could account for that time as a service to the application or possibly a part of the rental charge (state law may vary).
It isn't grossly uncommon for a professional business officer to charge $350/hr for services plus travel to conduct business.
It reads as though you may have entered into a verbal contract, where a written contract may have better expressed the conditions and transaction between both parties more accurately and defended your rights better.
I would recommend confirming who has any witnesses to the transaction to verify the 'verbal contract' and reading a copy of the credit application?
Time may be very critical here. I suspect you have a response period wherein you may countersue or resolve out of court. If it is a 30 day period, then you might only have two weeks left to file all the paparwork with the County Clerk and possibly to have it served on the other party.
You might want to offer to resolve out of court by paying a token credit search fee and cost of his filing, say $100. Document the time you spend and cost to your other work. If he accepts, then less risk of paying the full $300+ amount. If he doesn't accept, then countersue and provide as evidence of you good faith effort.
Might search to see if in Kansas and your municipality if a credit application cost is considered uniquely an owner's unreimbursed burden or not so implied, compare with a copy of the application and see where your position weighs compared to his.
BTW, another perspective on this is that the judge is going to be the final arbiter anyways if not resolved out of court. His authority also provides you some safety. In other words, if this guy is taking you to small claims over a credit application he might simply be an assh*le and the safest way at this point for you to conduct the transaction is with a verifiable witness. The County Court provides oustanding witness for such transactions and the courtroom might be your best sanctuary.
This might be the least risk tactic, if you are liable for canceling the check.
He's looking for advice, not to be declared an idiot.
"It ridiculious...but I think he's probably just one of those guys."
Yes, we had some very unpleasant dealings with a new landlord. We'll be going to small claims court against him later this month. Long story, and details are not important. Suffice it to say I wanted to sue him for intentional infliction of emotional distress, but my atty (I work for lawyers, so it is easy for me to get legal services) told me just what you said: Your landlord is just "one of those guys".
Good luck, stand up for your rights, I don't see how you owed him any money at all. Remember people fought and died to earn and keep our rights, even just our little rights to property in small claims court. Don't let him win by default, make sure you go and good luck with it. I hope you win. And I hope I win too. But, should we lose, as you say, it is no big loss.
Happy new year, hope it gets better for us all in 2006!
The basis of contracts is that there has be a detriment and benefit for both parties.
The agent had received a benefit with the original check and you a detriment. This is a far as it went without a signed contract that would have obligated you a benefit (apartment to live in). If you did not give him a signed contract, then it would have been prudent of you to stop payment of a check IF such were for a security deposit or as the last month's payment of a contract that was to be put in escrow.
Since you are required to participate in this case, your best defense is the law of contracts, which there was none.
Your lesson in Life is to never give someone a check to hold without a written contract or written agreement. There is no expectation that you will ever get it back. If you sign, you are obligated.
Make sure you counter sue for the "stopped payment fees". It's never good to go into small claims defenseless (without a counter-suit).
You will win because of the three-day contract law: You have three days to change your mind after making a contract.
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