Expert: Terry Leeders - 1/10/2009

Question
hi,



it seems i am in the minority.. good tenant getting hosed by the landlord!



here is what happened..



we rented a home from a couple, about 2 months before the end of the lease, they notified us they are going under forclosure.



since our year was almost up anyway, we finish our lease (paid in full, no money due), left the house in "better than when we got it" condition.



after we move out, landlord refuses to answer phone, take calls etc...



never notified us of any claim on the deposit, so after 30 days I file suit in small claims.



we get the court date scheduled, 5 weeks before trial, i get a "motion to dismiss" from them saying they have a BK attorney (and lists their number etc)..  i dont believe they have actually filed yet, but i think they will.  looks like they sent the letter, not their attorney (and there is no attorney of record on the small claims case, and this motion hasnt been filed with the court as of yet)



can they include a security deposit and claim im a creditor?  its suppose to be held in an account, its not their money to begin with!  (now of course i assume they spent the money elsewhere, and never really had it in a seperate account like they were suppose to (fl statute 83.49)).. also a note on this, the landlords are both real estate brokers, so they know the laws.



wouldnt that be like me robbing a bank, and naming the bank as a creditor in a bk proceeding?  I didnt think you can claim illegally obtained funds as a creditor.



can i object to this motion to dismiss in small claims based that i am not a creditor and the security is not dischargable under bankruptcy?



or do i have to go to the meeting of creditors, and try to get it out that way, then re-sue them?



should i file a criminal complaint?



thanks  

Answer
You may have a claim against the client.  You have the right to file an adversary objection in the bankruptcy case.  You may have to show, that the debtor fraudulently converted the security deposit in violation of a state law. (talk to a local attorney, as I am not familiar with your state laws.)  You would then need the judge to rule that the debtor improperly converted and spent the deposit, ruling you have the right to collect on the debt. Only then can you pursue the debtor for those funds.  If there is a bankruptcy number, your state action would be dismissed.  You could then refile the case if you win your adversary proceeding in the bankruptcy case.  You should speak to a local attorney to discuss the case you may have and your likelihood of success in the adversary. There is a limited time that you have to bring an adversary, so time is of the essence.  Good luck.