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Question of the Week: Can I Use Online Services for a Lawsuit?

You can file and monitor lawsuits online, and you can see the details of other people’s lawsuits online, if you want. Click on a service title below to go to its website.

  • AlaFile lets you file lawsuit papers online, just like the lawyers. You will also receive email notice of any documents file by the other side, the process server, or the Court, and can view those online. It is designed to work on Internet Explorer 11.0 or Microsoft Edge, and does not work well with Chrome, FireFox, Safari, or other browsers.

  • Just One Look lets you see all of the documents and Court orders in any case at all, whether it is yours or not. If you have a lawyer and want to follow the case progress, Just One Look is for you. This is also good if you want to see someone else’s forms so you can use them as a guide, or if you are just nosy about your neighbor’s auto accident lawsuit. Nobody gets tipped off when you “look.”
    • Currently, it is $9.99 per case you want to look up, with a free copy of the docket sheet showing everything that has happened. If you want copies of documents, it is $5 for the first 20 pages, and 50 cents per page after that. You pay the $9.99 each time you look up a case, even if it is the same one as the day before. This is the service you use to get forms or satisfy your curiosity.
    • For lifetime monitoring of a particular case, you can see everything filed and receive notices whenever something new happens. This is the service you use if you have a lawyer, but want to keep track of lawsuit progress. The fee is $19.99 for District Court (where evictions are filed) and $29.99 for Circuit Court (regular lawsuits like ejectments, auto accidents, divorce, etc.)

  • AlaCourt is a monthly subscription service for higher volume research. It is currently $84.00 per month.

A warning, though: You can file your own eviction lawsuits if (1) you own the property in your own personal name, and not an LLC or corporation or trust OR (2) you are a lawyer. Unfortunately, even if you own 100% of the company that owns the real estate, that is still one person (you) representing another person (the company) in court, and for that you need a law license. The danger of doing this wrong is not some judge speaking sternly to you if you get caught. The danger is that any turnout order will be void and your tenant can sue you for illegally throwing them and their stuff out on the street.

I hope this helps you out. Many lawyers are reluctant to send copies of court documents to clients because it usually results in phone calls and requests for explanation about everything. That’s education, not practicing law. I LOVE education, but most lawyers prefer practicing law, and most clients resist pay $300 to $400 an hour for education. So, monitor your cases (or file your own) and turn to www.AlabamaLandlords.com and/or www.TaxSales-Alabama.com for your educational needs!

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Proposed Change Re: Evictions

Representative Pringle has introduced HB65 in the 2020 legislative session, to clarify the procedure necessary to serve lawsuit papers in a residential eviction.

Currently, the law says “A copy of the notice shall be personally served upon the defendant. If the sheriff or constable is unable to serve the defendant personally, service may be had by delivering the notice to any person who is sui juris residing on the premises, or if after reasonable effort no person is found residing on the premises, by posting a copy of the notice on the door of the premises….” The posting on the door is called “nail and mail service” or “post and mail service” and eliminates the need to actually find the tenant and hand them the lawsuit papers.

The new law adds the words “at the premises” so it would say “shall be personally served upon the defendant at the premises.” It also deletes the words “after reasonable effort” so the new version would say, “if no person is found residing…” That avoids all the issues of people being able to argue in court about whether the process server made reasonable effort or not. In other words, one stop does it all. If nobody is home, then straight to nail and mail service instead of multiple trips to make “reasonable effort” that “no person is found residing on the premises…”

I think this is a good change. If you agree, contact Representative Pringle at chris.pringle@alhouse.gov and tell him about your support. Be sure to mention where you live, so he can share your comments with your own elected official. (Sorry, I don’t seem to be able to create a clickable email link. Just copy and paste his address into your email message.)

Sarah Taggart

Sarah Taggart, an evictions lawyer (website HERE) disagrees, and thinks the bill is a bad idea. She says that lawyers and judges understand the rules without the change. In her opinion, the change is not necessary. As a result, it might only focus attention and cause tenant lawyers to argue there IS a problem with the current law. Then it’s bad news if the bill does not pass. She thinks the bill might also encourage amendments that make things worse, not better. Sarah reminded me about the mobile home industry introducing a bill several years ago to shorten the default notice time period from 7 calendar days to only 3 calendar days. Consumer protection groups latched on to that and got an amendment passed that increased the time to 7 business days. If I can paraphrase Sarah’s opinion, “If it ain’t broke, don’t fix it.”

What do you think?

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Garnishment of Tenant’s Wages

The Alabama Court of Civil Appeals ruled today (January 10, 2020) that an employee’s wages CAN be claimed as exempt personal property if there is a garnishment.

In the case, Renter’s Realty sued Ieisha Smith for eviction and for damages. Renter’s obtained an order of possession and a judgment for $5,145. They garnished her wages. Ms. Smith filed a motion to stop the garnishment, under a claim of exemption. She said her bi-weekly wages were $900 or less and all of the money was used for current living expenses.

Renter’s argued she could not claim wages as exempt because Alabama Code Section 6-10-6.1 (which became law on June 11, 2015) specifically said that was not allowed.

The Court ruled the law was unconstitutional. It said Section 204 of the Alabama Constitution provided that personal property up to the value of $1,000 was exempt, and the courts had always interpreted “personal property” to include wages due from an employer. Because the Constitution gave debtors a specific protection, the Legislature was not allowed to take it way with just a statute. There would have to be a Constitutional Amendment, which had not happened.

More than likely, Renter’s will try to get a different opinion from the Alabama Supreme Court. Unless and until that happens, the Court of Civil Appeals decision is the law. Wages can be claimed as exempt from garnishment.

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Security Deposit From Guarantor

If you think it is necessary, you can collect a SEPARATE security deposit from a lease guarantor. By law, you are limited to one month’s deposit from the tenant, but guarantors are not covered by the residential landlord/tenant act. They can agree to be liable for legal fees (which tenants cannot agree to) and they can be required to pay any amount of security deposit IN ADDITION TO the one month you get from your tenant.

Why would you require that? Suppose tenant is not financially strong. Maybe guarantor is, maybe they aren’t. But, you don’t want to chase down the guarantor and sue them and try to collect if the tenant defaults or damages the property. The additional security deposit gives you added protection.

Interested in more legal tools and ideas for Alabama residential tenants? Click “Resources” tab above to see when the 6-hour Landlord Tenant Law or the 3-hour FAQ Landlord Law classes will be in a city near you. Both earn CE credit and also open to public. If you cannot attend in person, both classes can be taken live but over the Internet and are also available by streaming video. There is no CE credit for classes you do not physically attend in person.

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“Nail and Mail” Eviction Lawsuit Notices

Service of eviction lawsuit papers on tenants can be accomplished by attempting personal service at the residence and, if nobody is home, leaving a copy posted on the door and also mailing a copy within 24 hours. This is called “post and mail service” or, more colorfully, “nail and mail service.”

The mailed copy can be regular mail. A recent Alabama Court of Civil Appeals Decision threw the process into doubt, and seemed to require evidence regarding the exact efforts the process server took to serve the papers. The court included factors such as time of day, time waited after knocking, and others. That decision has now been overturned by the Alabama Supreme Court.

In a ruling on Friday, August 30, 2019, the Alabama Supreme Court said that such detailed testimony was not required. It reinstated the default judgment against the tenant in the eviction lawsuit, ruling that service was properly made on her. The court noted that the statute’s additional requirement of mailing the lawsuit papers within 24 hours satisfied United States Supreme Court concerns in similar cases that did not include a second method of service. If you want to read the entire decision, the case is Ex parte Trinity Property Consultants, LLC. You can read the decision HERE.

Bottom line: Back to the way you were doing things before the Alabama Civil Appeals decision of Mays v. Trinity Property Consultants, LLC. It’s not that there’s a new sheriff in town. It’s that the old sheriff is back!

Interested? Click for info on L/T Law Class
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Tenant “Paid in Full” Check

What happens if a tenant writes a check for less than full amount due, such as not paying late fees, but writes “paid in full” on the check? Can the landlord deposit the check, or must it be returned?

Naturally, landlords want to get what money they can as soon as possible, and so do not want to return the check. But, does that mean they are giving up the right to collect the unpaid sums?

The short answer is, “No, the landlord is not giving up its rights to additional sums due if it deposits the check.”

In the Alabama Supreme Court decision in Madden v. Deere Credit Services, Inc., 598 So.2d 860 (Ala. 1992) Madden signed a promissory note for a cable skidder purchased from John Deere, and then made payments on an irregular basis. At some point, he wrote a check for approximately $2,400 and wrote “paid in full” on it. Deere Credit deposited the check. They then claimed additional money due, Madden refused to pay it, and Deere repossessed the equipment. The court held that the amount due on Madden’s note was “readily susceptible of precise, mathematical calculation. Madden, therefore, …had no grounds on which to base a good faith argument that he owed” a smaller amount than claimed by Deere Credit.  “We conclude that the debt was liquidated; therefore, Deere’s unqualified endorsement of Madden’s check, which was marked ‘paid in full’ … did not extinguish Madden’s liability.”

In other words, there was no real dispute about the calculations for the amount due, so accepting the check was not a settlement of a dispute. Because it was not a settlement of a dispute, it didn’t matter what Madden wrote on it, the check was not legally a payment in full.

I think that makes it fairly clear that accepting a “paid in full” rent check when there are still outstanding rent charges, late fees, or other fees, does not hurt you. Check with an attorney to be sure, but don’t have a heart attack if you accidentally deposit a check with such a notation. If, on the other hand, a tenant disputes some charges and then marks a check “paid in full,” you should not deposit it. If it is accidentally deposited, then refund the money as soon as you are sure their check will not be returned NSF or some other reason.

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Default After Renewal

College StudentsThis is a problem in college areas because leases are often signed 9-10 months in advance. Is the renewal lease enforceable if the tenant defaults on his or her current lease?

In other words, what happens if a tenant is a good tenant from August through November of 2018 and then signs a renewal lease for August 2019 through July 2020. Then, in May or June of 2019, the tenant defaults on his first lease.  Can the landlord cancel the renewal lease, assuming it wants to do that?

We don’t know. It seems like the landlord SHOULD be able to cancel the renewal lease. On the other hand, I cannot find anything that authorizes that.  My advice: Talk to your lawyers. If recommended, maybe write a new clause into your forms so if a current lease is terminated for any reason, then the landlord will also have the right to terminate a renewal lease.

By the way, don’t forget about purchase options. I recommend that landlords who give purchase options in their leases have a clause saying it is null and void if the tenant defaults.  Some landlords say any default, even if cured. Some say only uncured defaults. Some don’t even think about this issue. At least think about it!

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Default Notices

Effective June 1, 2018, the law changed regarding default notices. Previously, you had to give tenants notice of default and seven calendar days to cure.  After, you have to give them seven business days to cure.

Judges around the state have been throwing out eviction lawsuits unless the default notice specifically says seven BUSINESS days. They are saying it is not enough to say “seven days” in the notice and then wait seven business days before filing the eviction. The statute does not say how the notice must be worded, but the judges are in control when it comes to evictions.  There is no point in arguing with the judge. Just do things their way, and avoid problems.