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R. Russell O'Rourke

R. O'Rourke’s Answers

355 total


  • My boyfriend and I received a 3day notice to move on our door. Is this the beginning of an eviction and how long b4 have to mov

    My boyfriend and I are renters in a house that's been forclosed upon. An investor bought the house and immediately issued us a 3day notice even tho we have a lease with the previous owner. He does not intend to live in the home. Is this the begi...

    R.’s Answer

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    Assuming that you are not in default for non-payment or rent or something else, like having a dog or cat when pets are prohibited in your lease, the new owner can't just cancel your lease and throw you out. When he bought the property, he bought it subject to your lease. If you are not in default, you have the right to stay in the property through the end of your lease. If your lease expires and you don't move out, then he can evict you, even if you are paying on time--assuming that he isn't accepting the payments. The question is, if you are not in default and the new owner doesn't intend to live there, why does he want you to leave? is the rent lower than the going rate in the area? If might be easier for you to contact him and see what you can do to work it out, perhaps, if you think that you want to stay in the house after the end of the original lease period you could offer to "blend and extend" the lease--raise the rate a little now and extend the lease for a longer period of time. Both parties win, you get to stay and likely have a little lower rate than you would have had you renegotiated a lease at the end of the term, he gets a paying tenant at a little higher rate now. Alternatively, if you don't care about leaving, you may negotiate a move out date, say a month or two while you still pay rent. This will give you a chance to find a new place in an orderly fashion. Good communication with the new owner is the key to not having a bad experience, even if it means that you are moving out before you had planned. Remember, if he sues you, it will show up on your credit. That alone might be worth moving. In any event, contact him now. If you are uncomfortable contacting him for any reason, contact a local attorney to help you. If you can't reach him by telephone, be persistent, try to leave him a letter in an envelope on his door. I don't recommend this as the starting point as verbal communications are much better than written ones, and if you aren't afraid of him, do it in person if you can.

    The residential eviction process in Ohio starts with the 3-day notice. If you haven't vacated the property by the end of the third day, not counting the day the notice was posted he can file a lawsuit to evict you. You have to defend or you will be thrown out. There are two parts to the process, the eviction part first and the damages (unpaid rent and property damages part) later. The eviction part is quick. If they serve you with the complaint there will be a hearing notice attached. They can't evict you without the hearing and they can't hold the hearing with out the service of process (you receiving the Complaint and summons). Most courts give you a very short period to move out if you lose at the hearing. You will need to be prepared at the hearing to show that you have the right to stay there, including a copy of the lease and some proof of payment. If you didn't pay by check or get receipts, you may be able to do that with the old owner, call him or her and ask if they will support you and/or testify for you (you might not want to mention that part, no one wants to go to court, even if it is just to testify for someone else.

    My answer is to call the new owner and see what the problem is and if there is anything that you can do to work it out. If you can't work it out you may need a lawyer on this. I recommend checking on Avvo for a landlord/tenant attorney in the Akron area. Just the consultation will be helpful and worth the cost, if there is any fee for the first consultation. If nothing else, you will understand your rights, perhaps get a better, non-judicial resolution and sleep better knowing that someone who knows what they are doing is helping you.

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  • What do i need to do next to resolve this issue.

    I had a judgment placed on my credit report in 2009 and now an updated report is saying satisfied judgment its now removed. The first mortgage has rels released satisfied saying 00.00 owed. I'm assuming they paid judgment along with releasing loa...

    R.’s Answer

    I agree with Sheldon and Christian, but I wonder why you think that the debt is satisfied. You mention that there is a judgment on your credit report. You don't say whether it is as a result of a default on your first mortgage or something else. You also say that you are ASSUMING that they paid the judgment when the loan was released. How was the loan released? Did you pay it off or refinance it? Is it possible that the loan/judgment isn't paid off, that someone at the lender mistakenly sent a release to the credit bureau, but that the debt and the judgment lien are still unsatisfied?

    If you are assuming that someone else paid off your judgment, you probably can't prove that the judgment itself is satisfied. You will have to go to whomever paid the debt, such as the new lender. If the reason that the first mortgage is satisfied is because you refinanced it, you should start with your new lender. If you are unsuccessful there, you need to hire an attorney. Not only is an attorney inexpensive as Sheldon said, compared to the loss of the sale of your house, the few hundred dollars that you are likely to spend if this really is a mistake is very cheap when you compare it to your peace of mind and sleepless nights.

    This sounds like a consumer transaction. There are plenty of good attorneys here on Avvo who do this kind of work.

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  • At this point we need to know if we can challenge RITA in court if the issue gets pushed any further.

    I'm a small business owner and are being extorted by RITA (Regional Income Tax Agency) for 2009 income tax net profit return. RITA claims we have never filed and paid our 2009 estimates. We have copies of the filed documents and cancelled checks f...

    R.’s Answer

    This sounds very odd. RITA should refuse to credit your account until it is straightened out--yes, even if it is their fault--but they shouldn't be hindering the process. What has your CPA advised? Rather than you sending in the requested proof of payment, perhaps it would get more attention if it were sent in by your CPA. Does your CPA even know? I would be horrified if I prepared papers for one of my clients and somehow they weren't properly processed.

    You could also send the proof to RITA via Certified mail. I usually don't recommend using certified mail if the other party is being difficult as people will often try to dodge the mail or not go to the post office to retrieve it. It is my theory that everyone knows that nothing good comes by certified mail. Conversely, good things come by FedEx all the time. People will kill themselves to retrieve a FedEx package (don't waive signature) if it was delivered when they weren't there. That wouldn't be the case with RITA, they will be there to sign for the mail and you will have your proof that it was delivered to them,

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  • Can a lawyer garnish my wages as a cosigner, and not garnish the signer's wages also?

    I am the cosigner for a car. Apparently, the car was repossessed, and now my wages are being garnished. Would the signer for the car also be garnished? How can I find out if the lawyer has contacted him also? His name is NOT on the court garni...

    R.’s Answer

    The garnishment papers are against you and your account. Obviously, there is a judgment against you already or the court wouldn't let them garnish you. You don't necessarily know, the other party may have already been garnished with little or no result. Your best effort at this time is first to try to get the real debtor to pay, although this is likely fruitless or second to contact the creditor to see if you can settle the case, at least as to you. Perhaps the promise of payment now is more enticing to them than payment over months or years.

    You have a claim against the other debtor for the money that you have paid either directly or through garnishment, however, I assume that that will also be fruitless.

    Good luck with your efforts to resolve this. It is never a good thing when you try to help a person like this and it turns out the creditor was right--they added you on to the account to leverage your creditworthiness because your (former?) friend was a bad credit risk.

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  • What happens to a lien once payment has been made and final release received? How do you remove the lien if it'sno longer valid?

    I had a mechanics lien placed on my property from a subcontractor. I paid him. He sent me a final waiver/release but I see that the lien is still existing in the county records. How do I remove this? Aren't they supposed to send a satisfaction of ...

    R.’s Answer

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    Sometimes contractors "forget" to release their mechanic's liens. This may be as easy as a telephone call to the contractor. It is not your obligation to file a satisfaction of lien, it is theirs.

    Check the form that they gave you. Generally a "Final Waiver and Release" isn't the right document to satisfy a recorded mechanic's lien. It should reference the lien, specify the lien's recording information and say that it is authorizing the recorder to release the lien. If it actually says that, you may, for the price of a filing fee, make this go away.

    If none of this works, check Avvo for a local construction law attorney. It may just take a letter from him or her to resolve this.

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  • I lend money ($ 3000) to a contractor and now he is not returning my money.

    I hired a contractor to do some house repair in 2013. I paid everything for related to house repair in December 2013; however, while he was working on my house, i led him $3000 after signing Promissory note and he gave me a check for $3000 with fu...

    R.’s Answer

    You may have more issues than the $3,000. If you are now having construction issues and you fail to raise them in your complaint, you may lose the right to go after him on warranty issues later. Because I am not a Georgia lawyer, I am not sure about the law in your state, but you may want to check with a construction lawyer in your area. Check Avvo for an experienced construction lawyer who does residential work, you may also have some consumer claims. A demand letter from the lawyer to the contractor may be enough.

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  • Will the new construction next to my empty lot have the right to remove my fence in order to build?

    There will be new construction (3 new homes) to be going up next to my empty lot next to my home that I own & park in. When I bought the home there was a fence that divides my property from the larger lot due for construction. The fence is mine an...

    R.’s Answer

    They will have no absolute "right" to enter your land or remove your fence, assuming that it really is on your property. You may want to consider talking with them first and offering them the right to remove your fence provided they replace it with a better one of your choice, pay you some money or both. You could even have them put up a temporary construction fence while your fence is gone and possibly add some landscaping to buffer you from the new homes. If you are going to go this route, be careful, they could promise to do that, then never get around to making good on their promise.

    My recommendation is that you hire a local real estate lawyer to help you with the paperwork--yes, you want a written agreement.

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  • Independent Contractor for Construction

    My business is 2 months old, I am a general contractor in CA, I had a proposal of getting a crew of 3 to classify them as 1099, the work is a short burst (about 2 weeks) single family remodel, the job will cost about 3-5k in materials and labor, i...

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    I agree with my colleagues, that if a person is working under your license, he or she should be your employee. However, there actually is a test that the IRS uses to determine whether the person is even eligible to be an independent contractor. Many states use a very similar form of questions for the determination of whether you should have classified the person as an employee for purposes of workers compensation (I am an Ohio lawyer, Ohio "taxes" for workers comp., rather than permitting private insurance) and other employment related taxes. Unfortunately, this isn't definitive. There are still lawsuits to determine what the correct answers to the questions should have been, because they aren't always clear. Even worse, the form that you will likely get them to sign saying that they are a 1099 person doesn't carry much weight and if they are hurt or the IRS comes after them for failing to pay taxes, including FICA, you are the one that they are going to look at for payment.

    Hiring an individual as an independent contractor is dangerous. If they really are a business, pay their own taxes, have their own workers comp account, etc., you are safer. Another issue is workers comp itself. If they are hurt on your job, they will file a workers comp claim against you. Now YOU have to prove that they weren't an employee. If it is determined that they SHOULD have been an employee, you will become a non-complying employer and be responsible for their awards. Alternatively, if they really aren't employees, you are not protected by the workers comp laws and they can sue you for negligence in their injuries.

    If you are going to hire them as independent contractors, be sure that you do it the way you would, hopefully, hire any subcontractor, with a contract, requiring them to act as a business, having workers comp coverage, liability insurance and everything else that a real business would.

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  • Does a Florida construction lien apply to the property in other state?

    A Florida based contractor threatens to intend a lien on my property in GA because I did not pay a full price. I did not pay the full price because of the poor workmanship and poor quality materials used that resulted in I have to hire the differe...

    R.’s Answer

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    The problem that you have is that while he may have been complying with Florida law in giving a Notice of Intent to Lien, Georgia apparently has no corresponding law. He did work on your property in Georgia. All that he has to do to perfect a mechanic's lien against your Georgia property is comply with Georgia law. The fact that he is a Florida contractor probably has no impact in whether he has the right to be paid on a project he did in Georgia (I say probably because I don't know whether the work he did required a license and whether the license is a prerequisite to payment--it is in some states).

    I am not a Georgia lawyer, however a quick review of the statute appears to say that he has 90 days from his last work on your project to file a mechanic's lien. That will have to follow Georgia law and be filed in your county. One route you can take is to wait and see. Many contractors send notices of intent with the hope that you will just pay under the threat. If you do decide to go that route, hire a local construction lawyer to help you. Check Avvo for an experienced lawyer that has a significant part of their practice in construction.

    Although if he decided to sue you he COULD sue you in Florida, that is really stretching it. He should have to file a suit in your county. If he sues you in Florida, you will have to find a Florida lawyer (again, I recommend construction in that location), to defend the suit and, move it to your town. If he sues you in Georgia, unless the amount is negligible, you should hire a local lawyer to handle the case. The same Georgia lawyer I recommended you find is the one you should consider for the case.

    It may be helpful to hire the Georgia construction lawyer now to have him or her review your case and send a "go away" letter to the contractor as preventative medicine.

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  • Do I file where I agreed to the contract or where the work was done?

    I agreed to a contract to have some work completed on an out of town rental I own. When I agreed and discussed the contract, exchanged money, etc in was always in Batavia (Clermont CTY, Ohio) the work was supposed to be completed in Wilmington, ...

    R.’s Answer

    While generally speaking the Ohio Civil Rules prescribe the venue (location) for a case to be filed, as one of 9 choices, including: where you signed the contract, where the contract work took place, where the defendant resides or has their principal place of business, Ohio has a specific statute relating to construction, ORC 4113.62(D)(2) which provides, “ Any litigation, arbitration, or other dispute resolution process provided for in the construction contract, subcontract, agreement, or understanding shall take place in the county or counties in which the improvement to real estate is located or at another location within this state mutually agreed upon by the parties.”
    The reality is that most people don’t know that this statute exists. If you file in the wrong location, but it is a location that is permitted in the Civil Rules, most people will overlook it. If they do, they waive the problem, and the case will proceed. If you are going to file in a location other than where their residence or principal place of business is, be sure that you state in the complaint your reason for venue selection, such as, “Plaintiff and Defendant entered into a contract in Clermont County, Ohio, a copy of which contract is attached hereto.”
    Unless this is a small claims case, under $3,000, I recommend that you hire a construction attorney to help you with this case. If you signed the contract personally, you are allowed to handle a case without an attorney, but small claims is designed to help individuals without attorneys, the other courts are not. Just because you may be allowed by Ohio law to handle a case without an attorney, doesn’t make it a good idea. Additionally, if you signed as a corporation, by Ohio law you need an attorney to handle the case, UNLESS you are in small claims. Most cases settle without trial. The reality is that in my own personal experience, if you have an attorney, you are most likely to settle the case without the risk of trial. If you need help finding a local attorney, feel free to call me. I’ll be glad to help.

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