Landlord arrested for seizing soldier's property

[rainbow4321]

http://www.mysanantonio.com/sharedcontent/APStories/stories/D87683N80.html



An apartment manager was arrested this week on theft charges for allegedly seizing electronics from a deploying soldier behind in his rent.

Brenda Austin, assistant manager at the Summer's Bend Apartments, was arrested Wednesday on the misdemeanor charge. She was later released on bond, and her company's attorney says her action was perfectly legal.

Austin is accused of taking a computer, a television and a stereo from the apartment of Spc. Carlos Hernandez, a member of the Texas Army National Guard scheduled to ship out to Iraq in January.

Hernandez and his wife, Vicki, acknowledge being behind in their rent by more than a month, but they blame it on an Army payroll snafu they have been trying to clear up since the soldier was called to active duty in August. The family can assert legal protections under federal law due to his military status, but the lawyer representing Summer's Bend says that law doesn't cover Hernandez because he did not give proper notice to the apartment management.

[Vidar]

1. Tis the season for repuclican seizure and foreclosure.

[Itchinjim]

2. Betcha the manager is a republican

Gotta support the troops! (Unless it gonna cost money)

[Pithlet]

3. Military or not

You can't just help yourself to the Tennant's belongings when they're behind on the rent. There are proper legal eviction procedures, and they wouldn't have been able to do that because of the military protections.

[NYC Liberal]

4. Didn't you get the memo?

The fourth amendment's been repealed!

[jmowreader]

5. And so has the Soldiers and Sailors Civil Relief Act

[qazplm]

8. actually

It's now the Servicemembers Civil Relief Act. They changed it to increase some benefits for soldiers.

Clearly that lawyer (and that leasor) are idiots.

[jmowreader]

12. But they really defanged it in other areas

In the old days, servicemembers had a lot of protection against creditors. The theory was, soldiers are generally unsophisticated creatures who come from small towns and who haven't previously been exposed to loansharks of the kind who shoal around army bases. Therefore, to prevent the troops from signing over their paychecks to people who sell them cars with cracked blocks at usury rates, there were protections that made it kinda unprofitable to sell stuff to army guys on credit.

The credit industry finally got the political muscle to push through a lot of relaxations of the restrictions. Now you can go up on Bragg Boulevard, or the road outside any base, and find "Buy Here Pay Here Everybody Rides No Credit Check" car lots, "Easy Credit Car Stereo," and a host of other companies who don't accept cash.

And now half the 82nd Airborne signs their paychecks over to people who sell them cars...but the provost marshal is now very conscientious about putting the ones who furnish cars with cracked blocks on the off-limits list.

[proud2BlibKansan]

6. That depends on where you are

Hubby has worked in real estate for years. Laws here say all abandoned property becomes the landlord's after 30 days. If the tenant is behind on the rent, the landlord can seize any property he wants as soon as the tenant has vacated.

And you all would be amazed at the stuff people leave behind when they move.

While I find this landlord pretty heartless, he may have had a legal right to seize this property.

[Pithlet]

16. That's not what happened.

The tennant did not vacate. The tennant was called to duty. The landlord had no legal right to do this.

Edit: Also, I've moved around a lot, and rented in many states. In no state I've lived in (Tennesse, Michigan, Maryland, for starters)has it ever been legal for the landlord to take things into his/her own hands, and personally evict a tenant without going to court first. I can't speak to all laws in all jurasdictions, but I can't recall a single state that would allow such a thing anymore.

[ariesgem]

21. I'm manage apartments in California

The law here is after an eviction, the tenant has 15 days to retrive their pocessions or the landlord can put them up for public auction. At the auction, the landlord can only retrieve the money he's lost from back rent, court fees, etc.. Any additional funds made from the auction must go back to the former tenant. I just had an eviction where the tenant left EVERYTHING he owned behind and didn't pick his items up until the 15th day. If the landlord removed anything from the tenant's inventory he's liable.

[Pithlet]

24. But he didn't abandon the apartment

I'm sure there are laws - that probably differ somewhat depending on what state - that makes provisions when a person up and leaves the apartment and never comes back for their stuff. But, that isn't what happened in the case this thread is about. He was called for duty.

[ariesgem]

29. He didn't abandon the apt, the guy was evicted for non-payment of rent.

He didn't prepare to move his things out when the sheriff posted the 5-day notice to vacate and they had to escort him off the property with just the clothes on his back on the 6th day. In any case, it's very sad to see anyone go thru that. Here in Cali, after that happens, the landlord has to hold their property for 15 days.

[Pithlet]

32. It doesn't say that in the article

It says nothing about eviction notices from any sherrifs dept. Is there another story about this, or are you privy to information? Or, are you talking about another case? I'm confused.

[proud2BlibKansan]

31. I guess I had the impression

the tenant had not paid his rent since he was in Iraq.

Yes, we have to go to court here too but if you move out and don't pay your rent, the landlord can confiscate your belongings and hold them until a court says he can keep them. Otherwise, he wouldn't be able to re-rent the property.

[happyslug]

13. Don't Bet on it

I have seen many a landlord use "Self-help" eviction and "distress for Non-payment of rent". In Pennsylvania our Courts have NEVER Struck down the right of a Landlord to evict a Tenant by locking the Tenant out (Though the Courts have held the landlord liable when the Landlord has done so). As to "Distress" that is still on the Statute Books even through our courts have ruled it Un-constitutional. The landlord locking a Tenant out and taking his or her property has NEVER been criminal in Pennsylvania (and most other States).

This was a problem during WWII, the States had permitted such self help actions for decades and were leaving Landlords do it to serviceman's wives (causing all types of problems for the Military). Thus the Solders and Sailors Relief act contained a provision making it a Federal CRIME for a landlord to evict a tenant other than through Court Action.

[Pithlet]

17. That is not true.

http://www.palegalservices.org/Community_Education/HTML_Brochures/eviction.htm

From that link:

Can my landlord just lock me out without going to court?
No. Many Pennsylvania courts have said your landlord cannot evict you by self-help—meaning such things as padlocking your door, shutting off your utilities, using force to evict you, or using any eviction method other than going to court.

[happyslug]

22. Do you practice Landlord Tenant law???

While I do in Pennsylvania. The Courts have NOT held Self-Help evictions as being illegal. The main reason for this is by the time most cases get to court the issue is moot, either the Tenant had broke back into the home or the tenant had found another place to live and no longer want the rental unit. Furthermore since it is NOT criminal to do a self-help evictions, Landlord know they can do it with impunity for all the Tenant can do is sue them for any loss caused by the Wrongful Eviction (Minus any rent that is due).

Thus if you talked to most Judges in Pa you will see they will tell you self-help eviction is illegal, but no Appellant Court case has so held AND IT IS DONE ALL THE TIME. I get a call about 2-3 times a month about a tenant being locked out of their home by their landlord. I advise them to break back in. I have asked the local Courts to Order the the Landlord to leave the Tenant back in (and turn the Utility services back on) and those request generally has been granted. But none of this is the same as a Clear rule that self-help evictions are illegal in Pennsylvania. Nor is any of this the CRIMINAL action it becomes if the Landlord violates the Servicemembers Civil Relief Act.

As to the PLS pamphlet, it is accurate as far as it goes. If a case ever goes to an appellant court I can see the Appellant court ruling Self-Help Evictions are illegal in Pa, but that HAS NOT HAPPENED. The only cases on the books go back to the 1880s and those cases permit Self-help evictions (I Know I have to look them up every so often). Furthermore none of this really helps most Tenants, for all they can do is sue their landlord under Pennsylvania law.

My point was Self-Help Evictions are done every day in Pennsylvania. Do to the failure of States like Pennsylvania to truly protect low income Tenants is why the Servicemembers Civil Relief Act makes it criminal for a landlord to Exercise self-help evictions.

[Pithlet]

23. Everything I have looked up (! ! !)

Says it is illegal in Pennsylvania. I only posted one link. Self help evictions may be done every day in PA. I don't doubt that. That doesn't make them legal, though. Often, people do not know they have the law on their side, and don't fight it. I highly doubt that the law has NEVER been exercised, however. I do find that hard to believe. But, even if that is the case, it still doesn't make it legal.

And, no, I don't study any form of law, but my husband does. Also, I've rented in many different places, including PA, and always made myself familiar with their laws regarding rental. Nowhere was it ever legal for a land lord to just decide to lock you out and take your stuff without going through proper legal eviction through the courts.

[Occulus]

27. before you shout "do you practice"

I think you ought to know (as I believe you already may) that the landlord/tenant laws in the various states are really not too terribly difficult to understand. PA 348 of 1972 (the Michigan Landlord Tenant Act) has a well-worn place in my heart. Having lived in a college town, it was necessary to learn its ins and outs.

Crappy landlords play intimidation games all the time. Dealing with them effectively requires researching your state's landlord/tenant law, if you have one. Once you learn what the law as written means (in our case here it is blessedly clear) you can intimidate them into silence. I've done it myself a time or two, to my advantage.

Ignorance of the law is no excuse. ;)

[happyslug]

33. I agree

I have clients call me 3-4 times a month that their landlord had locked them out or will lock them out. I tell them the Landlord can NOT do so, but if the landlord does the Tenant has to break back into the Leasehold. My point was NOT that it was illegal, but the punishment for the landlord to break the law was so low as to encourage them to do so. The Service member Relief Act realized that many states did NOT punish landlord who did self-help evictions (Leaving the tenant with Civil actions only, actions that the Tenant will NOT get lawyer's fees for and any award the Tenant will get will be reduced by any rent the Tenant was behind, all told Civil Litigation is NOT a god option for most Tenants).

Given that Civil Litigation is NOT a good option for Tenants the Service member Relief Act makes it a FEDERAL CRIME for a landlord to do self-help eviction, if the Tenant is in the Military. The landlord CAN use the Court System, but can NOT do self-help eviction. In my experience the fear of being brought up on Criminal Charges will stop landlord much more than the fear of being sued. I wish Pennsylvania and other states made it clear that it is Criminal for a landlord to use self-help eviction, but our state legislature has not done so.

[mbperrin]

7. Sorry, this ain't legal in Texas, even for non-soldiers:

"It's almost like entrapment," said attorney David Fritsche. "I've never seen a leasing agent arrested, handcuffed and thrown in jail for doing an action that is perfectly legal under the Texas Property Code."

Here's what you gotta do in order to remove anything from an apartment:
Go the JP and swear out a complaint that the tenant is behind in their rent as written in their lease (usually 3 days, cannot be less.)

The JP will produce a warrant for a hearing, which is usually served within the week, the hearing 10 days after that; if the tenant files a $70 reply at that time, a new hearing will be set for 7-10 days after that.

Then, at that hearing, assuming the tenant loses (it IS Texas, after all!), they have 5 days to clear our their own stuff. If they fail to do so at the end of that five days, their stuff can be cleared out and put in storage, where it must remain in reasonable security for them to reclaim within 30 days.

How do I know? We OWN an apartment complex and actually do follow the law! Novel concept, I know. This f**kwad attorney is probably the same sort that recently sent me a letter trying to collect an old debt (paid many years ago) with a Xerox of my property appraisal attached, AS IF he could seize property!

Screw him, screw this lawyer, screw his apartment management, and I hope that the young thief goes to jail for a year and has to make restitution.

[OneBlueSky]

9. to my knowledge, it's not legal anywhere . . .

I ran into a similar problem years ago when I was renting shop space to a craftsman who fell badly behind in his rent, and refused to even talk to me about it . . . I eventually just padlocked the shop, and took him to small claims court for the back rent . . .

I won the case, but in the process got a lecture from the judge that padlocking the shop was not legally among my prerogatives . . . it's a lesson I've never forgotten . . .

[Maat]

10. Shame on these people! I remember in my grandpa's day...

people showed respect and bent the rules in favor of those deploying for war (WWII).

Probably Rethuglicans. Support the troops with asinine little decals on the car .... but don't give an individual soldier a break. Merry Christmas, Rethuglican! Thanks for showing me the meaning! (Not addressed to those on DU ... but the ever-so-considerate landlord.)

[TheCentepedeShoes]

15. I am enrolled in paralegal studies

and doing the real estate specialtiy. Housing is crucial to any individual or family. I want to put myself in a position to help people.

[harpboy_ak]

18. and then the soldier has to follow the law, too

> Then, at that hearing, assuming the tenant loses (it IS Texas,
> after all!), they have 5 days to clear our their own stuff. If
> they fail to do so at the end of that five days, their stuff can
> be cleared out and put in storage, where it must remain in
> reasonable security for them to reclaim within 30 days.

yep, as the manager of 500 units, i can tell you that we *never* enter a tenant's unit without either permission or a court order, and we can only seize property with a court order and a writ of assistance and a process server or police officer here in alaska.

we allow service members to break leases in accordance with the law, which requires that we do so if it is due to a call to active duty or a deployment.

on the other hand, the military tenant needs to go through certain hoops to gain eviction relief for non-payment of rent.

The Army's JAG Corps office on their official website http://www.jagcnet.army.mil/JAGCNETInternet/Homepages/AC/Legal%20Assistance%20Home%20Page.nsf/0/0806a532899687ce852568a800531506?OpenDocument

sez:

"Eviction for Nonpayment of Rent

Although the SCRA does not excuse soldiers from paying rent, it does afford some relief if military service makes payment difficult. Military members and their dependents (in their own right) have some protection from eviction under the Servicemembers Civil Relief Act (SCRA), Section 301.

The landlord must obtain a court order to evict a military member or his/her dependents. The court must find the member’s failure to pay is not materially affected by his/her military service. Material effect is present where the service member does not earn sufficient income to pay the rent. Where the member is materially affected by military service, the court may stay the eviction ( three months unless the court decides on a shorter or longer period in the interest of justice) when the military member or dependents request it. There is no requirement that the lease be entered into before entry on active duty, and the court could make any other “just” order under § 301 of the SCRA. The requirements of this section are:
(1) The landlord is attempting eviction during a period in which the service member is in military service or after receipt of orders to report to duty;
(2) The rented premises is used for housing by the spouse, children, or other dependents of the service member; and
(3) The agreed rent does not exceed $2,400 per month. Soldiers threatened with eviction for failure to pay rent should see a legal assistance attorney. (The amount is subject ot change in future years and as of 2004 the ceiling is $2465.00)."

[zann725]

26. I think there's a step in here we missed. Once they serve the tenant with

Unlawful Detainer papers, the tenant has 5 days IN WHICH TO FILE AN ANSWER to the Complaint. Most tenants are not aware of their rights, and either ignore the UT papers...and so lose their rights. By failing to file the Answer (in which there are many causes for delaying eviction), the Tenant loses their rights...and the eviction is expedited. There are very helpful Tenant Rights' groups here...that give detailed information and help with filling out the Answer, in exchange for a small donation (whatever you have). Although a lot of it can now be found on "landlord tenant law" websites for each State.

At least in California, if there a justifiable cause for a delay in the rent (i.e., loss of job or illness), the judge often postpones the eviction for up to 6 months...while payments are worked out, or the condition causing the delay in rent is corrected. Which is why most landlords here would rather not take it to court.

My guess is the soldier in question also ignored the notices, and did NOT file an Answer, or tried to work out payments. My guess is he could have used an Army legal service for little or no fee. Particularly since the Army is delinquent in his pay...it is THEIR liability, and they should be held liable for a SIX MONTH DELAY in pay...particularly when they're sending him to a war zone. This is appalling. I had heard that soldiers had trouble being paid since last summer. And they're risking life and limb, literally.

[happyslug]

11. I like the Defense, the landlord had not been told.

Under the SERVICEMEMBERS CIVIL RELIEF ACT (Formerly called the Soldiers and Sailors's Relief Act) the landlord does NOT have to be told, it is a Strict liability statute. Furthermore this is what is referred to a a "Self-Help" eviction by the landlord and the Soldiers and Sailor's Relief act requires COURT action to evict a Soldier or Sailor (or their family). The Landlord violated this act and a Violation is a Misdemeanor and she can be fined AND jailed for her actions.

I am sorry, I can not feel for the Landlord. The Law is clear, she should have obeyed it.


§ 531. Evictions and distress

(a) Court-ordered eviction.
(1) In general. Except by court order, a landlord (or another person with paramount title) may not--
(A) evict a servicemember, or the dependents of a servicemember, during a period of military service of the servicemember, from premises--
(i) that are occupied or intended to be occupied primarily as a residence; and
(ii) for which the monthly rent does not exceed $ 2,400, as adjusted under paragraph (2) for years after 2003; or
(B) subject such premises to a distress during the period of military service.
(2) Housing price inflation adjustment.
(A) For calendar years beginning with 2004, the amount in effect under paragraph (1)(A)(ii) shall be increased by the housing price inflation adjustment for the calendar year involved.
(B) For purposes of this paragraph--
(i) The housing price inflation adjustment for any calendar year is the percentage change (if any) by which--
(I) the CPI housing component for November of the preceding calendar year, exceeds
(II) the CPI housing component for November of 1984.
(ii) The term "CPI housing component" means the index published by the Bureau of Labor Statistics of the Department of Labor known as the Consumer Price Index, All Urban Consumers, Rent of Primary Residence, U.S. City Average.
(3) Publication of housing price inflation adjustment. The Secretary of Defense shall cause to be published in the Federal Register each year the amount in effect under paragraph (1)(A)(ii) for that year following the housing price inflation adjustment for that year pursuant to paragraph (2). Such publication shall be made for a year not later than 60 days after such adjustment is made for that year.

(b) Stay of execution.
(1) Court authority. Upon an application for eviction or distress with respect to premises covered by this section, the court may on its own motion and shall, if a request is made by or on behalf of a servicemember whose ability to pay the agreed rent is materially affected by military service--
(A) stay the proceedings for a period of 90 days, unless in the opinion of the court, justice and equity require a longer or shorter period of time; or
(B) adjust the obligation under the lease to preserve the interests of all parties.
(2) Relief to landlord. If a stay is granted under paragraph (1), the court may grant to the landlord (or other person with paramount title) such relief as equity may require.

(c) Penalties.
(1) Misdemeanor. Except as provided in subsection (a), a person who knowingly takes part in an eviction or distress described in subsection (a), or who knowingly attempts to do so, shall be fined as provided in title 18, United States Code, or imprisoned for not more than one year, or both.
(2) Preservation of other remedies and rights. The remedies and rights provided under this section are in addition to and do not preclude any remedy for wrongful conversion (or wrongful eviction) otherwise available under the law to the person claiming relief under this section, including any award for consequential and punitive damages.

(d) Rent allotment from pay of servicemember. To the extent required by a court order related to property which is the subject of a court action under this section, the Secretary concerned shall make an allotment from the pay of a servicemember to satisfy the terms of such order, except that any such allotment shall be subject to regulations prescribed by the Secretary concerned establishing the maximum amount of pay of servicemembers that may be allotted under this subsection.

(e) Limitation of applicability. Section 202 <50 USCS Appx § 522> is not applicable to this section.


http://uscode.house.gov/download/pls/50A.txt

[jody]

14. Go to war with the money you have, not the money you would like to have.

:mad:

[pfitz59]

19. ROFLMAO!

Soldier mustn't got Rummy's memo!

[0007]

20. Are people ruthless or what? I'm sure the G.I. told this scum sucking

pig that the Army had problems getting his pay straight.

[Dem2theMax]

25. Such a lovely woman. Maybe we should give her a call?

Let her know what we think of this? :evilgrin:

www.summersbend.com

Summer's Bend Apartments
1230 East Walnut
Seguin, TX 78155

phone: [phone]
fax: [phone]
send us a message:

http://www.summersbend.com/s/feedback?p_usid=&p_poid=KGPFK5749F&p_pgid=21&defsk=&p_searchId=&command=po

[Jack_DeLeon]

28. Its good to see that the law works sometimes....

thieves deserve to get arrested and charged for thier crimes.

She is lucky she is a women, men who break into homes in Texas to steal someone's property usually end up shot.

[wryter2000]

30. For once I agree with the law-and-order types

People like this should be put in jail and have the key thrown away. Scum.