An eventful few months

I haven't written here in a while. Enough has happened in the past several months to fill up an entire year.

Amongst other things, I moved this May. After a dispute with my ex-landlord heated up around the beginning of April, he ended up filing in court to evict me. The main issue was the fact that he is a slumlord who takes his tenants' money and refuses to do even basic upkeep on the buildings, let alone provide the air conditioning that tenants like myself paid him for. At the end of March, he called me up early in the morning, as was his custom (other customs of his included excessive familiarity and and general assholery). At one point in the conversation, he asked:

"Can you give me one reason why I shouldn't take you to court?"

This, as my mother pointed out after everything was resolved, was something of a tactical error.

"A reason not to take me to court? I can think of a few. First off, you know you're going to get paid in the next couple of weeks, so it's just a waste of time, and will at the very best substantially delay your getting money that you would already get. For another thing, I'll be obligated under Civil Rule 13 to file any counterclaims I have, and I have quite a few..."

He began to interject here with his patronising inflection of my first name. I was about sick of being addressed by my first name by a man with whom I have no other relationship than sending him a check every month for things he doesn't provide, so I cut him off.

"...look, JIM [name changed to protect the guilty], as I was saying, I'll be forced to file my counterclaims or waive them forever, and I'd point out that those include failure to keep the premises in a safe and sanitary condition, about ten discrete counts of breach of contract, repeated illegal entry by your employees, possible toxic mould, unsafe wiring," I took a breath, long enough for him to try to interject.

"So," I continued, shutting him up again (damn, that felt good), "if you want to know why you shouldn't take me to court, it's pretty simple. The best-case scenario is that you wait months to get money you were going to get in a matter of weeks. The more likely scenario is that you end up losing a substantial amount of money, because the counterclaims are amply documented and there is no way you can plausibly claim you didn't know about them, we'll be in court for months, it will be costly and highly unpleasant. I'll bury you in discovery requests that you'll have to comply with, and spend quite a while going through all of your business records and any other dirty laundry I can compel you to reveal. And you'll walk away with nothing to show for all of that."

"So, I concluded, "you basically have two options, JIM: (1) you can be smart, sit tight, and wait for the money that you know perfectly well is coming, OR (2) you can file against me in court, and deal with inevitable defeat, substantial costs, and the housing inspectors I'll set upon you. Your choice."

That was the end of that conversation. A few weeks passed by, and I didn't hear anything more from him. I gradually became more and more confident that he had thought the better of litigation. A few weeks into April, however, I received two things in the mail. The first was the check that I had been expecting. The second was a complaint filed by dear old "Jim" demanding eviction based on nonpayment of rent.

Now, according to the standard script in these cases, this was the part where I was supposed to cower before the overwhelming might of the word processor of my landlord's bargain-basement collections lawyer (who was apparently so excited to actually have something to do that she forgot to proofread and spell check the complaint).

The thing is, I'm into improvising. Scripts get to be so confining. So I took a different approach. Rather than begging for forgiveness for my insolence, I pulled out all the research I'd done in the intervening few weeks, and drafted a response, an Answer with Counterclaims, in which I explained that while I had not by that time paid the rent, (1) he wasn't legally entitled to pay because he didn't meet even the most basic obligations imposed on him by the law and his own lease, and (2) he owed me several thousand dollars more than the amount of the unpaid rent because of his own unlawful conduct.

After editing this ten-page response to his misspelled one-page complaint, I took it down to the court clerk's office and filed it. My knees were about to buckle walking up the courthouse steps. I'd never done this before. Certainly, I'd been training for this my entire adult life, but actually doing it is a different matter, and actually doing it when it's your own home that's on the line is a COMPLETELY different matter.

Once I filed and served the Answer, I worked on keeping my other promise: I drafted over twenty pages of discovery requests - requests for sworn testimony and documents on any matter even tangentially relevant to the case. These serve two separate, but equally important functions. For one thing, they can often serve to resolve the matter before trial by narrowing down the issues and helping the parties decide whether settling might not be a bad idea. For another, a set of detailed, long, burdensome, well-thought-out discovery requests is a good way to let your opponent know that you mean business and know what you're doing.

The first court date came. I took a cab down to the courthouse in my new, and very nice (if incredibly hot) suit, which had been an early birthday present from my mother. It was a black, tailored three-button affair with a somewhat fitted knee-length skirt and a red shell underneath the jacket, which I had paired with a pair of brand new black pumps that began disintegrating within five minutes of the first time I put them on.

I was pretty terrified walking up the courthouse steps and passing through security. I had no real idea what was going to happen during this hearing, and the idea of going before an actual judge and having to actually speak was enough to keep my blood pressure pretty high. On the other hand, I felt pretty professional in my suit, with my briefcase and meticulously organised file under my arm. I looked a lot more like the lawyers in the hallway than the tenants, which was exactly what I was going for.

My hands shook as I nervously jotted down random notes while I waited for my case to be called. I tried to observe the cases that preceded mine, just to get some kind of an idea how it worked, and to get a feel for the room. One of the cases involved a low-income, unmarried couple, only one of whose names was on the lease of the apartment in question. Eventually, the magistrate turned to question the tenant who was on the lease, a fortyish woman.

Judge: Now, you and he both occupy the premises in question?
Woman: No, Y'Honour. He occupies, I just live there.

If this was the rhetorical standard I'd be expected to meet, I didn't have too much to worry about. My main hope was to get a continuance so that I could have more time to prepare and put some pressure on to settle. Finally, my case was called.

I walked, with as measured a gait as I could manage, up to the defendant's podium before the bench, to the right of the aisle, two feet to the right of the plaintiff's podium. As I approached, I stumbled, and a packet of evidence photos fell out of my accordion file. The judge smiled sympathetically at me as I collected myself and my photos and arranged everything in front of me on the podium.

"Could you please state your appearance for the record, Miss?" the judge, a kind-looking woman who couldn't have been older than her late thirties, asked. I got a good vibe from her immediately.

I stated my name and that I was the defendant.

That formality having been taken care of, my opponent, who looked just as I had imagined (particularly the mismatched outfit that was clearly from the bottom of the bargain basket at TJ Maxx), asked for a continuance. I was ecstatic. I got the extra time I wanted without even having to ask for it. This last bit was particularly good news, since continuance motions are a bit like playing chicken. You may both want one, but you don't want to be the one who is on the record saying she's unprepared. She initially asked for the next hearing date to be on my birthday, but I managed to get it moved up a day, citing a "prior engagement". We both signed the continuance order, and it was over.

That was anticlimactic.

A week went by. I had a lovely birthday with my family, including my sister's boyfriend. We went out for a nice Italian dinner, followed by some of the most luscious chocolate cake I've ever had. I did pretty well giftwise, too, receiving the copper mixing bowls I'd been lusting after, a lovely rotating spice rack, and (from my sister's boyfriend) the Korean edition of the first novel of Sophie Kinsella's Shopaholic series.

Since my birthday fell on a Monday, we had the festivities over the weekend preceding it. On my actual birthday, I didn't do all that much. I mostly just relaxed, made a nice dinner, and went to my knitting circle.

I was quite happy with my decision not to have to be in court on my birthday, even more so, given the events of the hearing the next day.

Ohio law provides that in a case like mine, where eviction is sought based on nonpayment of rent and the tenant files a counterclaim, the court has to decide the counterclaim before deciding on the eviction. Whoever owes a net judgment at the conclusion of the case also loses on the eviction. This is a mandatory provision (Ohio Revised Code § 1923.061(B)) that courts must apply in all cases in which the eviction is based on nonpayment and a counterclaim is filed.

I took great comfort in this statute, which I read over and over again in the taxi on the way to the courthouse. Nothing could happen today except preliminaries. I couldn't lose my home today.

I walked through the now-familiar courthouse hallway to the courtroom in which evictions are heard, took my seat, pulled out my legal pad, and started jotting down the various points I wanted to make. At this time, as far as I could tell from watching the other cases the week before, my landlord would be asked to confirm under oath what he had alleged in his complaint, and I would be asked to respond under oath.

Finally, my case was called. It was a different judge this time, and I did not feel the same sympathetic vibe coming my way that I had the week before. We stated our names for the record, and she swore us in.

"Your name is Jim Slumstein?" the judge asked, brusquely.
"Yes," he mumbled.
"You're the owner of the premises in question?"
Another affirmative grunt.
"The defendant is a tenant of yours?"
"Uh huh"
"You served her with a three-day notice to leave the premises?"
"Yes"
"She hasn't left and you want her out?"
"Yes"

The judged turned to me.
"You're behind on your rent?" she asked, even more brusquely.
I hesitated, inhaled, and hoped my voice wouldn't catch, "Well, Your Honour, I'm asserting that the Plaintiff isn't legally entitled, either in whole or in part, to the rent he alleges is unpaid."
"What do you mean? Did you pay the rent or not?"
"I did not. For the reasons set forth in my statement of affirmative defences, namely that Plaintiff has failed to provide adequate air conditioning, for which I've been paying, and has also generally failed to maintain the premises in a safe and sanitary condition..."
"That all goes to the second cause," she cut me off, "anything else?"
"While there are significantly more than four rental units on Plaintiff's premises, he has provided only two dumpsters, which are regularly overfilled well before they are emptied. The receptacles provided are clearly inadequate. Similarly, he has failed..."
"This all goes to the second cause. This is the first cause."
I couldn't think of anything to say. I'd read the entire statute and every case I'd ever found interpreting it, and the words 'first cause' and 'second cause' were mentioned nowhere in any of it. I was caught completely off guard.

Within less than five minutes, and without even hearing any evidence on my counterclaims, she granted the writ, giving me seven days to find a new home or end up on the street (this was never mentioned during the hearing; I had to call the clerk's office twice to find out how long I had).

I felt nothing. The entire experience was so surreal and so completely unexpected that I couldn't even comprehend it. Did I really have to leave? Or was this some sort of preliminary thing ruling subject to final determination on my counterclaims? I had no idea. Nothing made any sense.

I sat down and pulled out my copy of §1923.061(B). Had I misread it somehow? I must have overlooked something. I sat, staring at the text of the statute, for fifteen minutes, reading every syllable twice, looking for something that was open to an interpretation that would justify the way my case had been handled. I came up empty. Nothing even suggested that things could be done this way.

But that didn't make sense. How could that be? I must be overlooking something, except that I'm not. I've looked this thing over a hundred times by now. If there were something here that would justify what just happened, I would have found it. Nothing made sense. Courts don't do things without some kind of basis, so it has to be in here. But this isn't the sort of thing I would overlook, I thought, frustration beginning to set in. I'm not one of these uneducated pro se litigants who whinges that any interpretation deviating from her own hyperliteral gloss is a gross miscarriage of justice. I am a bloody professional. I've been studying how to interpret just these sorts of statutes for nine years of my life, and experts have consistently told me I know what I'm doing. None of this makes sense! I can't have overlooked anything. I'm good at this, dammit!

One night, a few days into the frantic search for a new home, I sat down in front of my computer, and decided to take another look. I did a search for any case mentioning § 1923.061(B) on Lexis Nexis, and I got my answer in a case called Schwab v. Lattimore that had just been decided a little over a month prior. I was right. There was absolutely no basis for what the court did. The appeals court had basically acknowledged as much, and noted that the practice essentially meant that tenants who weren't subject to eviction would be evicted without any recourse, but refused to do anything about it.

According to the court, any challenge to a violation of § 1923.061(B) was "moot" because the tenant would inevitably have lost possession of her apartment by the time the case reached the appellate court. The court also denied that this issue was one that was "capable of repetition yet evading review" - even though it obviously is one - because the tenant in question hadn't proven that she was likely to be evicted again in the future.

She had apparently lacked the foresight to have her tea leaves read before filing the appeal. (of course, if a tenant contrived to arrange a future eviction prior to appealing on this issue just to prove that it was capable of repetition, the court would certainly reject this - and rightly so - as a "sham controversy")

Lovely.

It wasn't even noon when the hearing was adjourned, and I didn't have to be in class until 5 pm, but I decided to go to the university anyway. I had no place else to go, and at least there, I'd likely be amongst friends. I was exhausted. I'd slept all of two hours the night before, was walking around in my new shoes, which had now come unstitched and were completely falling apart. My feet were in intense pain, I was overheated, stress had pushed me just past the point of rational thought. I needed someone to talk to.

Upon arriving at university, I sat down on the steps in front of my building to do a bit of reading and try to get a handle on the situation. Suddenly, I started to feel something. Not just one thing, either; more things than I could even identify all at once. I'd lost my home. That was the upshot. That bastard had succeeded in taking my home from me. I was terrified, confused, and completely pissed off. I took off my suit jacket - it was high 80s, and I felt like I was going to pass out from the heat alone - and lit a cigarette.

I couldn't concentrate on anything. I was paralysed. I just sat there, staring at the tip of the cigarette, trying to focus. After a while, my friend Katja walked past.

"Mind if I join you for a smoke?" she asked in her sweet Austrian dialect.

I tried to smile up at her, "Na sicher" (sure).

I told her what had happened, and that proved to be what finally opened up the floodgates. Somehow it didn't entirely feel real until I said it out loud. She sat down next to me and put a reassuring arm on my shoulder, and let me cry for a while. She repeatedly apologised for not knowing quite what to say (Hallmark might want to consider developing customised greeting cards for such occasions.), but it didn't really matter. She'd given me what I needed to actually begin to let out some of what had been building up inside since I'd left the courthouse. A few times, the anger surfaced in full force ("Dieser WICHSER!"), and she just smiled kindly at me and held me tighter. She had to go after about ten minutes, but just being there for those few minutes was a major contribution to my sanity preservation efforts. She is truly a sweetheart.

To be continued...