Dispossession = stripping someone of possession of your property – not debt collection. Let that sink in. Dispossessory proceedings provide a judgment that allows both tenant removal and a money judgement against that tenant. Great. But removing the tenant should be the primary focus when deciding to begin the dispossessory process. I know that most landlords want to evict a tenant because the tenant has not paid rent. Of course, lease violations or new plans for the property bring about dispossessory actions, too, but most evictions are about money; renting out property is business, not charity. Nevertheless, getting the investment property back so that it can make money with a paying tenant should be the primary focus during a dispossessory. Collecting the debt from a tenant who has not paid you already – well, that should be a secondary focus after the dispossessory.
Every day I talk to property owners and landlords who want to discuss collection while also trying to talk to me about getting nonpaying tenants out of a rental property. I do everything I can to collect the unpaid rent before filing the dispossessory warrant, but when a tenant stops paying, the likelihood of collecting unpaid rent is very, very low. Moreover, when I initiate the dispossessory proceeding, I file to both dispossess and get a money judgment for unpaid rent and court costs, and most of the time, my clients get both items on the judgment. But I have many clients who ruin their own dispossessory process by taking money after I have filed the dispossessory warrant with the court. Unless that money is returned, the case is over and the fees for the process are lost. That’s it. Maybe collecting that money satisfies the client, but maybe accepting that money, sometimes much less than the tenant owes, keeps the client from proceeding with dispossessing the tenant, and the tenant knows that. The tenant is conning the owner by making direct deposits that are nowhere near the unpaid rent and late fees (and sometimes utilities.) If an owner accepts one penny during the same calendar month that I have filed the case, the judge will tell that owner the case is over because that was rent for the month – whether it was old debt or current rent or – like I said, one penny deposited by a con artist.
Tenants con landlords all the time. Partial payments are part of the con. Promising to pay here and there to catch up is also a con.
Landlords and owners con themselves all the time. Accepting partial payments stops the process. Dwelling on collecting rather than dispossessing wastes time and can cost thousands in lost rent.
After we have concluded the actual dispossessory process through the courts and have removed the tenants, if there is adequate information to find the evicted tenant, then it’s time to garnish that tenant; then maybe there will be collection. But, getting to collection after beginning the dispossessory is months away, and the debt needs to be large enough to warrant what it costs in both time and money to collect it. The fee to file a garnishment and the collection bounty runs about 40% of the debt total.
Dispossessory is not debt collection; they are entirely separate processes. Successful dispossessory does, however, set the course to collect debt. Sadly, debt collection not performed before dispossessory filing must come after the entire dispossessory process ends. Period. You cannot collect one penny of money during the same calendar month that I file a dispossessory proceeding; it does not matter what day the rent is due. You cannot collect on penny of money during the dispossessory process until after the tenant as been physically removed from the home by the marshal, or the case is over and must be refiled.
Dispossessory first. Debt collection second. Separate processes.
All posts coauthored by
Evict Them For Me and Southern Real Estate Services DO NOT provide any legal advice. We have lawyers to whom we can refer you, or you may seek your own legal counsel.
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