A nonpayment case is brought by a landlord to collect unpaid rent. A tenant may be evicted for non-payment of rent. Before you can be sued, the landlord or someone working for the landlord must demand the overdue rent from you and warn you that, if you do not pay, you can be evicted. You can be told this orally or in writing. If your lease requires that this kind of demand be given in writing, then it must be in writing. If it is in writing, the rent demand must be delivered to you at least three days before the day that the court papers are served, unless your lease requires more days. (For more information, see p. 7, Chapter 3, “How Legal Papers are Served“)
If you do not pay the rent after the demand for rent is made, the landlord can file a nonpayment petition against you in Housing Court. The petition and notice of petition, usually the front and back of the same page, must be “served” on you. The Court Clerk will mail you a postcard after the landlord’s petition is served telling you to promptly come to court. If you do not receive the papers but have reason to believe that a case has begun against you then you should go to your local Housing Court and check with the Clerk’s office to find out the status of your case. Failure to respond to papers could result in a “default judgment” being entered against you, and your eviction. (For more information, see p. 7, Chapter 3, “How Legal Papers are Served“)
When you receive the nonpayment petition, go to the Landlord-Tenant Clerk’s Office in the Housing Court right away to answer the petition. You must do this within five days of receiving the papers from your landlord. If you are late, you still should go to the Landlord-Tenant Clerk’s Office. You can simply tell the Landlord-Tenant Clerk your answer OR you can give the Clerk a written answer. If you need help in answering the petition, there are posters on the wall in every Landlord-Tenant Clerk’s Office which will give you information on how to answer a nonpayment petition. The Clerk will have a list of possible reasons the tenant’s have not paid their rent. (see below). You may also go to the “Resource Center” located in each Housing Court for information on how to answer and about what happens in a nonpayment case.
If you decide to answer in writing, a copy of your answer must first be “served” on the landlord by giving it or mailing it to the landlord’s lawyer or to the landlord if there is no lawyer’s name on the court papers. If your landlord has an attorney, all papers must be served upon the attorney and not the landlord. You should then bring a copy of the written answer with an affidavit swearing how you “served” the landlord to the Landlord-Tenant Clerk in your local Housing Court.
If you choose to answer orally, you must tell your answer to a Clerk in the Landlord-Tenant Clerk’s Office in your local Housing Court. After you tell the Clerk your answer, the Clerk will give you a copy of that form. You should check to see that the Clerk has checked or written down all of the defenses you told the Clerk. A copy of your answer will also be sent to the landlord or the landlord’s attorney, and the original will be kept in the court file for your case.
What to Say in Your Answer to a Nonpayment Petition:
Below is a list of possible defenses. You may have a defense that is not listed below. Failure to raise a defense in your answer at this time may prevent you from raising it later in your case.
1. The Respondent did not receive a copy of the Petition and Notice of Petition.
2. The Respondent received the Petition and Notice of Petition, but service was not correct as required by law.
3. The Respondent is indicated improperly, by the wrong name, or is not indicated on the Petition and Notice of Petition.
4. The Petitioner is not the Landlord or Owner of the building.
5. The Respondent was not asked, either orally or in writing, to pay the rent before the Petitioner and Notice of Petition.
6. The Respondent tried to pay the rent, but the Petitioner refused to accept it.
7. The monthly rent being requested is not the legal rent of the amount on the current lease.
8. The Petitioner owes money to the Respondent because of a rent overcharge.
9. The rent, or a portion of the rent, has already been paid to the Petitioner.
10. There are conditions in the apartment which need to be repaired and/or services which the Petitioner has not provided.
11. The Respondent receives Public Assistance and there are Housing Code violations in the apartment or the building.
12. The apartment is an illegal apartment.
You may also add counterclaims, if relevant, as part of your answer. A counterclaim is a claim that you may have against your landlord. In a counterclaim you are asking the landlord to pay you money.
Failure to raise a defense or claim in your answer at this time may prevent you from raising it later in your case.
You can also ask for a jury trial in your answer. If you want a jury trial, you must file a “jury demand” and pay the jury fee at the time that you file your answer. Be sure to read your lease, as most leases have a jury waiver clause. If you do not file the jury demand at the time that you file your answer, you may also ask the judge presiding over your case to allow you to file a jury demand at a later time. However, it will be up to the judge to grant or deny that request. If you cannot pay the jury fee because you do not have enough money, you can ask that the fee be waived. See the Landlord and Tenant Clerk for more information on this.
When you give the Clerk your answer, the Clerk will issue a date for you and the landlord to come to court. This is called your “court date.” The Clerk will write or stamp the court date, time, and the courtroom (also referred to as “Part” with a letter of the alphabet after it) on your copy of the answer. The courtrooms or “Parts” are also called “Resolution Parts.” The court date is usually a week after you give your answer to the Clerk. You must be in court on your court date and be on time. Failure to appear in court or to be present when the case is called could result in a “default judgment” against you. (See p. , Section 4B, “What to Do When Going to Court“)
What to do if You Receive a Notice of Eviction:
If you do not answer the petition, whether or not you received it, or do not go to court on your court date, you can be evicted.
1. If you receive a notice of eviction, go to the Landlord-Tenant Clerk’s office right away and ask for an “Order to Show Cause.” (See p. 16, Section 5B, “Order to Show Cause“)
2. Bring any papers or postcards you received from the court or from the landlord, as well as the notice of eviction with you. Tell the Clerk if the papers were not delivered to you or were not delivered properly. Also tell the clerk why you did not go to court on your court date or answer the notice of petition. (See p. 7, Chapter 3, “How Legal Papers are Served“)
3. If a Judge signs the Order to Show Cause with a “stay” of the eviction, this will stop the eviction at least until you can come back to court and tell a Judge what happened.