Burden of Proof (by Roy [AL]) Feb 21, 2018 6:09 AM|
Burden of Proof (by RB [MI]) Feb 21, 2018 6:29 AM
Burden of Proof (by Robert J [CA]) Feb 21, 2018 6:29 AM
Burden of Proof (by S i d [MO]) Feb 21, 2018 6:33 AM
Burden of Proof (by LisaFL [FL]) Feb 21, 2018 6:33 AM
Burden of Proof (by NC INVESTOR [NC]) Feb 21, 2018 6:36 AM
Burden of Proof (by AllyM [NJ]) Feb 21, 2018 6:37 AM
Burden of Proof (by LindaJ [NY]) Feb 21, 2018 6:49 AM
Burden of Proof (by Roy [AL]) Feb 21, 2018 7:12 AM
Burden of Proof (by S i d [MO]) Feb 21, 2018 7:28 AM
Burden of Proof (by S i d [MO]) Feb 21, 2018 7:30 AM
Burden of Proof (by Roy [AL]) Feb 21, 2018 8:04 AM
Burden of Proof (by RB [MI]) Feb 21, 2018 8:05 AM
Burden of Proof (by S i d [MO]) Feb 21, 2018 8:45 AM
Burden of Proof (by Moshe [CA]) Feb 21, 2018 9:14 AM
Burden of Proof (by Sisco [MO]) Feb 21, 2018 9:29 AM
Burden of Proof (by Dave [MO]) Feb 21, 2018 9:46 AM
Burden of Proof (by Deanna [TX]) Feb 21, 2018 10:28 AM
Burden of Proof (by Vee [OH]) Feb 21, 2018 10:58 AM
Burden of Proof (by Vee [OH]) Feb 21, 2018 11:03 AM
Burden of Proof (by Susan [OH]) Feb 21, 2018 11:32 AM
Burden of Proof (by Mike45 [NV]) Feb 21, 2018 12:43 PM
Burden of Proof (by NC INVESTOR [NC]) Feb 21, 2018 2:29 PM
Burden of Proof (by Pmh [TX]) Feb 21, 2018 2:40 PM
Burden of Proof (by LeePookie [IN]) Feb 21, 2018 2:57 PM
Burden of Proof (by pmh [TX]) Feb 21, 2018 3:23 PM
Burden of Proof (by RentsDue [MA]) Feb 21, 2018 4:41 PM
Burden of Proof (by David [KY]) Feb 22, 2018 4:35 AM
Burden of Proof (by WMH [NC]) Feb 22, 2018 6:37 AM
Burden of Proof (by Roy [AL]) Feb 22, 2018 7:17 AM
Burden of Proof (by WMH [NC]) Feb 22, 2018 10:25 AM
Burden of Proof (by TA [CA]) Feb 22, 2018 10:55 AM
Burden of Proof (by Brian [CA]) Feb 22, 2018 11:45 AM
Burden of Proof (by Jean [OK]) Feb 22, 2018 1:49 PM
Burden of Proof (by BRAD 20,000 [IN]) Feb 23, 2018 9:36 PM
Burden of Proof (by Elliot [RI]) Feb 27, 2018 4:11 AM
Burden of Proof (by Annie [IN]) Mar 2, 2018 10:32 AM
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Burden of Proof (by Roy [AL]) Posted on: Feb 21, 2018 6:09 AM
If I am not mistaken, the 'burden of proof' is on the Plaintiff in most legal cases that end up in front of a judge or jury.
With that assumption in mind, if a judge in an eviction case asked you (the plaintiff) to PROVE that your tenant did not pay rent this month,...how would you do this? Your tenant (defendant) is standing there claiming they did pay rent and you are claiming they did not pay rent. Again, the judge is asking you for PROOF (not hearsay) that your tenant did not pay rent this month.
How would you do this?
Burden of Proof (by RB [MI]) Posted on: Feb 21, 2018 6:29 AM
Once Landlord makes the (CLAIM) of Non-Payment,
the Burden of Proof, Shifts to the Tenant(s)
Burden of Proof (by Robert J [CA]) Posted on: Feb 21, 2018 6:29 AM
I receive rent from my tenants via these methods:
a) A check in the mail
b) Direct Deposit
c) Pick up checks at apartment buildings on the first
I make copy's of each check and envelope received by mail.
I down load the direct deposit receipts from my bank
Check's I pick up I also make a copy of those checks.
I make my tenants rents different amounts for each property/building/retail center. Each property has it's own account. I receive statements showing deposits into that account.
When a Judge asks me to prove I haven't received the rent from the tenant I can show him that that month there was not deposit in my account and i did not receive any payments from my tenant.
Once a tenant produced a color copy of a money order they purchased from a 7-Eleven market. The judge through that was proof enough that the tenant paid the rent. I told the judge let me call the store and ask them what happened to the check. The clerk told me the same day the money order was purchased, the buyer cashed it in saying they are moving and don't need to pay rent. The clerk sent via fax to the court the proof that the check was returned to 7-Eleven by the purchaser. I won my eviction case. --47.156.xx.xx
Burden of Proof (by S i d [MO]) Posted on: Feb 21, 2018 6:33 AM
Roy, you may be correct in most cases, but here it's really simple. If I sue someone to evict for unpaid rent, and they are properly severed, they have to show in court or they default and I win.
If they do show up in court (only 1 in 5 ever do), the judge lets them have their say, but then the final, be-all-end-all question is "Did you pay the rent?" If the answer is anything other than, "Yes," I win.
If they answer "No" then there would be more to say. But none of my evictees have ever lied to date. Most folks know judge's have good B.S. detectors installed between their ears. The get in heaps of trouble if they lie under oath.
So the answer to your question is, "I don't know what I'd have to do" but my guess is the judge would want them to lay out their evidence and for me to lay out my evidence, then the judge would determine based on that evidence which story was most likely true.
As you hinted, you can't really prove a negative (i.e. that someone DIDN'T pay), so what the judge would have to go on would be my reputation, procedures and practices vs. the tenant's reputations, procedures and practices.
For example, if I lay out a detailed ledger showing due dates, amounts due, payments received at our bank (for which the tenant gets a receipt), etc and all the tenant has to claim is "I paid...." and has no receipts or documents to prove they paid, then my totally unscientific guess is the judge would rule in my favor.
I think land lords who collect cash rents in person are really hurting themselves. Much harder to convince a judge you did not pocket the money, lose it, or mix it up with someone elses' rent. --173.17.xx.xx
Burden of Proof (by LisaFL [FL]) Posted on: Feb 21, 2018 6:33 AM
I would think you'd have copies of texts, emails or notices advising the tenant to pay the rent before you have to file for eviction.
A judge would look at how you do business v how they do business. They have to judge credibility.
I keep good records and only accept cash deposits made directly into my account so there is a record.of it.
But good question. --173.170.xxx.xxx
Burden of Proof (by NC INVESTOR [NC]) Posted on: Feb 21, 2018 6:36 AM
In the situation you are describing the real burden of proof rests with the defendant. I can prove I didn't receive it while (s)he has to prove they made it.
I can track every invoice and the payment made by specific invoice by date of payment and date of deposit through the paymaster I use. It isn't something I can fudge. Short of that there are always bank statements for the date in question. --71.75.xx.xx
Burden of Proof (by AllyM [NJ]) Posted on: Feb 21, 2018 6:37 AM
They don't have a receipt. You need to show the judge a rent book where everyone is listed and marked that their rent is paid and when. Then you show them the empty spot where there is no entry for this one. Swear to God I did that and it works. --73.33.xxx.xxx
Burden of Proof (by LindaJ [NY]) Posted on: Feb 21, 2018 6:49 AM
I think it depends on the judge. I just met an ex-tenant in court. She brought a lawyer. She admitted to owing a little bit, about a quarter of the amount. (thinking back, that was a pretty good strategy) They had a book where she kept track of her payments. I had a book where I kept track. The judge only awarded what she admitted she owed. HUH? She did not bother to show the part of the book where I signed that she paid, which would not have shown my signature. --96.236.xx.xx
Burden of Proof (by Roy [AL]) Posted on: Feb 21, 2018 7:12 AM
Remember, you all are standing in front of the eviction court judge here and the judge has asked YOU (not the tenant) to PROVE YOUR CLAIM against the tenant.
You all are trying to shift the 'burden of proof' onto the tenant and the judge is not going to allow this. According to the judge here,...'LL, you filed the claim and the 'burden of proof' rest solely on you'. How do I (judge) know if you accepted the rent in cash and one of your other tenants is the real non-payer here?
Burden of Proof (by S i d [MO]) Posted on: Feb 21, 2018 7:28 AM
Roy...my friend...the scenario you're describing simply isn't how it works in any land lord / tenant courtroom I have ever been in or heard of. Is this a real situation you have encountered or hypothetical? --173.17.xx.xx
Burden of Proof (by S i d [MO]) Posted on: Feb 21, 2018 7:30 AM
The reason I ask if this situation is hypothetical is that, in the situation you propose, theoretically unless a tenant admits to not paying, you could never evict someone and they could live in your property forever for free. Once word got out that all you had to do is show up and lie, every land lord would go broke with deadbeats.
If that is really the true way it works in your town, sell immediately and move to Missouri where our judges exercise a little more common sense. P.S. We have great microbreweries here too! ;-) --173.17.xx.xx
Burden of Proof (by Roy [AL]) Posted on: Feb 21, 2018 8:04 AM
This situation 'almost happened' to me earlier this month when one of my tenants did not pay rent. I (accidentally) filed for Eviction against a tenant that I thought did not pay rent,...but when the tenant produced a bank receipt clearly showing she did pay rent,...I had to 'eat crow' and file for a Motion to Dismiss the case, plus eat the large filing cost. It was quite embarrassing to say the least. It turned out to be one of my other tenants (with the same rent amount) that did not pay. I screwed up,...I made an honest mistake in good faith and it backfired on me.
Now, if my tenant had not produced the bank deposit receipt, this case would have gone to court and the tenant and I would have faced the judge. This is the reason I made this post. --68.63.xxx.xxx
Burden of Proof (by RB [MI]) Posted on: Feb 21, 2018 8:05 AM
Something is Amiss, here.
Burden of Proof (by S i d [MO]) Posted on: Feb 21, 2018 8:45 AM
Good deal....glad to hear things aren't crazy down there.
Interesting article I read on this topic, from thelawdictionary.org Pay close attention to the last few lines...
"The burden of proof
The party initiating the court proceedings, frequently referred to as either the plaintiff or the petitioner, has the burden of proving the facts in dispute. The landlord suing a tenant for nonpayment of rent would have the burden of proving each of the following elements of the case through the use of a combination of witnesses and documentary evidence:
* The existence of a written or oral lease
* The occupancy of the leased premises by the tenant
* The amount of the agreed upon rent
* The failure of the tenant to pay the rent
Proving that the tenant did not pay the rent can be accomplished merely through the testimony of the landlord stating that the rent was not paid. Once the landlord claims nonpayment, the burden of proof shifts to the tenant." --173.17.xx.xx
Burden of Proof (by Moshe [CA]) Posted on: Feb 21, 2018 9:14 AM
As plaintiff, the burden of proof is on you to prove the allegations that you made in your complaint. If you stated in your complaint that the defendant owed rent of a certain amount on a certain date, and did not pay on the appointed day, and you notified him that he has so many days to pay or he must quit, and that he neither paid nor quit, and that he continues to occupy your property, then it us up to you to prove that case to the judge, regardless of whether or not the defendant shows up.
Your proof needs to be your testimony about each and every one of those allegations. If the defendant shows up, then he can respond. If there is no one to challenge your testimony then the judge will accept it and you win.
I would respond by saying to the judge that it is your sworn testimony that you are offering as proof. If the defendant is there and says that it is false, then you ask for an opportunity to ask him in front of the judge if he has something like a cancelled check. Then the judge will make up his mind who he believes.
There is a process called "discovery" where you had an opportunity to ask the defendant about whatever claims he made in his response to your complaint. You should have used it. You can summon the defendant to meet with you and answer questions, you can ask him for documents, all before appearing in court. You could have subpoenaed records (like cancelled checks) from him to bring to court. If he fails to bring subpoenaed documents as ordered, the judge will likely take this into account.
Burden of Proof (by Sisco [MO]) Posted on: Feb 21, 2018 9:29 AM
Proper book keeping, diligently performed is what is missing in the scenario portrayed.
Good book keeping is essential because people do get mixed up and forget. --72.172.xxx.xx
Burden of Proof (by Dave [MO]) Posted on: Feb 21, 2018 9:46 AM
Sounds like the tenant showed the Judge, rent was paid and had proof rent was
paid, so then the Judge asked you to prove rent wasn't paid?
Agree, with Sisco. --72.24.xx.xx
Burden of Proof (by Deanna [TX]) Posted on: Feb 21, 2018 10:28 AM
It sounds embarrassing, but I hope everything turned out for the best.
Usually, when I have a tenant who hasn't paid, I'll text them "Rent? $xxx + $yy late fee = $zzz." And that gives them the opportunity to acknowledge their tardiness, ignore me, or correct me. I would expect a tenant who paid to be very quick to zap me a photo of their receipt or say "I paid on Tuesday at lunchtime"; and a tenant who is already halfway out the door to ignore me; and a tenant who is anxious to remain a tenant to communicate. :)
Occasionally, I've had tenants who have paid rent to LLC A, but the bank ladies accidentally deposit it into LLC B. And if everyone paying into LLC B is paid up, I didn't normally go logging into that bank account until the next time I know activity is due.
But once I saw the bank made mistakes, I now double-check all my bank accounts to make sure it didn't get mis-deposited before I send my text. I also take great care to encourage my tenants to use my deposit slips, which have their name and address printed on it. --96.46.xxx.xx
Burden of Proof (by Vee [OH]) Posted on: Feb 21, 2018 10:58 AM
Bookeeping needs something fixed, how about making the rent when the other place refills rent + 5bux to help you sort out who is who on the bank paperwork, this year I turned a new leaf, every single place has its own account and savings, but this too can be confusing - I thought I could track by way of the last 4 in the account number but I have 2 duplicates there prolly cause everything was done in the same day. --76.188.xxx.xx
Burden of Proof (by Vee [OH]) Posted on: Feb 21, 2018 11:03 AM
Anyway I forgot to answer your question about the burden of proof, I do something almost exactly like Ally described, I copy and submit the last 4 payments from the reciept book and submit with the fling - this would have prevented you from filing but the real reason I do this is so whoever magistrate I get has all the info there exhibit b, c, d and so on, having everything on the bench I can get my caseload cleared quicker, set a new record (for me anyway) last year, 24 days and 6 minutes in court - that included the -all rise- when court starts... --76.188.xxx.xx
Burden of Proof (by Susan [OH]) Posted on: Feb 21, 2018 11:32 AM
Most judges are not stupid and realize that landlords, for the most part, do not PAY to file etc unless it is the truth. And they also have seen plenty of tenants LIE! --76.189.xxx.xxx
Burden of Proof (by Mike45 [NV]) Posted on: Feb 21, 2018 12:43 PM
Sid said "Proving that the tenant did not pay the rent can be accomplished merely through the testimony of the landlord stating that the rent was not paid. Once the landlord claims nonpayment, the burden of proof shifts to the tenant."
That is almost correct. The LL's sworn testimony that the rent was not paid is generally accepted by the Court. If the Tenant claims that the T paid the rent, then it comes down to a question of credibility and inferences to be drawn by the judge.
For example, I can show the Court my receipt book, with no receipt slip for the tenant for the dates in question. I can show that there is a receipt slip for this tenant every month except the one in question, and that there are receipt slips for all my other tenants for the month in question. That supports my testimony that the rent was not paid.
I can also show my letters, texts, emails, reminding the T that the rent is overdue and that unless it is paid by 5:00 p.m., a __ Day Notice will be served tomorrow. If the T had really paid, wouldn't there be a response saying "what are you talking about, I paid already"? If the
T had paid, why did the T beg for more time, promise to pay tomorrow, ...? There usually is something like this to help us prove our case!
The Court does not have to believe my testimony. Even if the Tenant does not testify, the Court can for whatever reason find that my testimony and the supporting evidence is not sufficient for him/her, and that I have not met my burden of proof. Now, I have never seen that, but it could theoretically happen.
Because the burden of proof is on the Landlord, if the Court finds that my testimony and supporting evidence is not enough, the Tenant wins.
The burden of proof never shifts to the Tenant. If I don't meet my burden, I lose.
Now, there are other issues on which the burden of proof is on the defendant -- the Tenant has the burden of proof as to any "affirmative defenses" he has asserted. Such as habitability issues. It is the T's burden to establish by a preponderance of the evidence that the property was uninhabitable, that the T reported the problems to the LL, ... But as to non-payment of rent, the burden is on the LL.
Although the burden is on me, my judges normally start off in a trial by asking the T, "did you pay the rent?" And the T almost always tells the truth, no, and then tries to explain why he shouldn't be evicted anyway.
Burden of Proof (by NC INVESTOR [NC]) Posted on: Feb 21, 2018 2:29 PM
I've only had one tenant claim they paid when they hadn't. All the others - who show up - admit they missed a payment.
The one that lied told the judge I was cooking the books. He told her she needed to prove she'd paid otherwise he was granting me a money judgement. We ended up in appeals court and the next judge told her the same thing. So the burden of proof does fall back to the tenant - at least here it does. --71.75.xx.xx
Burden of Proof (by Pmh [TX]) Posted on: Feb 21, 2018 2:40 PM
claimant needs to show proof paid. courts know cannot prove a negative. even in MI. --104.218.xxx.xx
Burden of Proof (by LeePookie [IN]) Posted on: Feb 21, 2018 2:57 PM
Lease is a contract. Cut and dry. I show ledger.
Tenant must show receipts of payment. Which come from the bank. No where else.
They cannot (or too lazy to make fake ones. I win. Every. Time. --209.239.xxx.xxx
Burden of Proof (by pmh [TX]) Posted on: Feb 21, 2018 3:23 PM
on side note: here in TX I must give receipt if rent paid in cash. --104.218.xxx.xx
Burden of Proof (by RentsDue [MA]) Posted on: Feb 21, 2018 4:41 PM
I had a tenant who I was evicting show the judge a receipt for a money order she purchased supposedly to pay the rent. She insisted it was mailed to me. However, the judge did not accept that as proof. She did not have proof that I had cashed it. Therefore she failed on her lease obligation to pay rent. --66.189.xx.xxx
Burden of Proof (by David [KY]) Posted on: Feb 22, 2018 4:35 AM
Easy. I would show the judge my account where the rents come in and show that the rent was not deposited that month. We also have a different rent amount for every rental so they are very distinguishable. I would also show the judge my lease which goes over this as well.
We give tenants the account number and they deposit it into that account whether they do it by teller, bank to bank or send by mail to the bank. Besides a partial payment issue once in a blue moon it has worked out very well for us. --173.239.xxx.xx
Burden of Proof (by WMH [NC]) Posted on: Feb 22, 2018 6:37 AM
I guess I'm with Deanna. Before I file, I'm asking the tenant, "Rent?" If they have paid, or are about to pay, they respond immediately. Always.
So I don't think I would ever end up in court with a tenant who actually had paid rent, or the wrong tenant. I'd be communicating with them long before the court date. --50.82.xxx.xx
Burden of Proof (by Roy [AL]) Posted on: Feb 22, 2018 7:17 AM
In my case here, I had delivered a 7 day P/Q notice to the tenants when they were 4 days late. With my P/Q notice in hand, they told me they would pay the rent the following day (bank deposit). After the 7 days had elapsed and no rent, I filed for eviction. After the constable posted his notice (being served), my tenant is now ringing my phone off the hook screaming they did pay rent.
I met with the tenant and she handed me a bank deposit receipt that said she did pay rent the day after I handed her the P/Q notice.
I then double-checked my online banking deposits and sure enough, there it was,..paid on the 5th day. One of my other tenants who had the same rent amount ($700.00) and who normally pays on the 1st,...was the one who did not pay rent and should have received their own P/Q notice on the 4th also. I just got them mixed up and ended up filing on the wrong tenant.
Burden of Proof (by WMH [NC]) Posted on: Feb 22, 2018 10:25 AM
Ah. I get it. That's why I use the "cents" identifier for rent amounts that are the same. $700.01, $700.02, $700.03, etc.
Each unit gets an identifier even if the rents are not the same, because someday they might be. --50.82.xxx.xx
Burden of Proof (by TA [CA]) Posted on: Feb 22, 2018 10:55 AM
The burden of proof is on you to prove what is alleged in your complaint. Your testimony is the evidence. In civil court the standard is usually a preponderance of evidence, 51% likely. So if you show up and say the tenant didn't pay rent and the tenant says they did, it is ultimately up to the judge to decide who is more believable. --73.158.xxx.xxx
Burden of Proof (by Brian [CA]) Posted on: Feb 22, 2018 11:45 AM
When I go to court on an eviction, my attorney has me give them a ledger of all charges (rent utilities late fee whatever) and all payments and dates.
This is my evidence establishing that they didnít pay at some point. --174.213.x.xx
Burden of Proof (by Jean [OK]) Posted on: Feb 22, 2018 1:49 PM
I understand now how this happened. Are you concerned that this tenant now has an eviction proceeding on her record that future landlords, employers, etc. will see? Even though I assume it will show up as a Dismissal, it could be construed that she owed the rent, showed up in court and paid and case was dismissed. I guess if your state publishes a record of the proceedings it would be clarified, if someone took the time to read that far. --66.87.xxx.xxx
Burden of Proof (by BRAD 20,000 [IN]) Posted on: Feb 23, 2018 9:36 PM
Reminds me of a case years ago with the old judge. Res complained I never fixed the ____ . I said she never called to tell us it was broken.
How do I prove she never called?? Judge suggested bringing the phone log and asking her the date and time she called.
My current judge goes by preponderance of evidence like TA said. My verbal testimony, my written ledger showing the rents collected by date, and my late letters/texts/emails serve as my evidence. If they did not owe why didnít they complain about incorrect late letters earlier.
Res needs a receipt of some kind to show the court. A money order stib means nothing. They could have written it to themselves and cashed it.
Autodraft eliminates receipt and mix up problems.
In real life they admit to owing. We also settle before or in the hall on most cases.
Burden of Proof (by Elliot [RI]) Posted on: Feb 27, 2018 4:11 AM
Roy, your tenant was either lazy or can't read. S/he would have received the court summons, 99% people would contact you right away. Mines contact me as soon as they receive the nonpayment notice.
The cases I heard quite often at the court is "landlord didn't fix this and that" inhabitability being brought up. That is harder to prove since you as LL didn't prepare for that while tenant shows up with pictures of leaky faucets black dots all over some bathroom ceiling.
Luckily, in our court, the judge has seen enough of that and would just deduct certain amount from the total and move on. Imagine the sneaky tenni took some pictures of some other people's disastrous apt and claimed that you didn't fix it, knowing very well that the apt is in tip-top shape. There are many ways for tenant to drag the cases on and get many months free rent. --216.208.xx.xxx
Burden of Proof (by Annie [IN]) Posted on: Mar 2, 2018 10:32 AM
We keep a ledger for each tenant that shows the day the rent is due, the day it is paid and if it was a check or money order (and keep note of the number of the check or money order) or cash. We also note any fees or late charges on the ledger.
When filing the eviction, we have to give the Court a copy of the signed Lease, and a copy of the Ledger. When we go to Court (usually several weeks later and sometimes more), we bring an updated ledger with us, and another copy of the lease and a copy of the updated ledger for the Court.
Our local judge asks two questions at the eviction hearing:
1) Are you late on your rent?
2) Have you used any part of the rent money to make a repair and do you have a receipt to prove it?
If the answer is "no", out they go!
A damage hearing is set, and both parties are given a card with the date and time right on the spot. Unfortunately, usually these damage hearings are at least two months or more down the road. By that time the defendant is long gone or has conveniently forgotten the whole thing.
The wheels of justice move slowly (if at all!)
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