My landlord took me to court in November 2012 for eviction, they decided to work with me on payments, I have recently lost my job and because I havent fully paid off my debt my landlord is saying she can give me a 72 hour warrant to vacate still. Is this true or do they have to take me back to court again because they accepted money from me? I live in NY.
That depends on how the case was settled. Did you,enter into a stipulation of settlement that was entered into the record at the court ? Did the landlord get a judgment of eviction and a warrant of possession with a stay pending the terms of the stipulation? Or was the case discontinued? Depending on the answer to the above questions the landlord may be able to go straight to the sheriff or he may have to go back to court to get a warrant based upon breach of the stipulation of settlement, or he may have to start over again. Most comonly, the landlord would have to send an affidavit to the court stitng that you breached the terms of,the stipulation and requesting a warrant of eviction which would have to be issued and then forwarded to the sheriff for execution. You should bring your paperwork to an attorney for review to get the proper answer, or if you,don't have the paperwork it can be obtained at the courthouse, either way,consult with an attorney.
Depends what happened in court, whether the landlord got a judgment of possession and warrant but refused to act on it so you could have the chance to make payments, was it dismissed in court before judgment, or was it still open?
Hire a lawyer to protect your legal rights.
Jeffrey J. Estrella, Esq.
Licensed Attorney and Counsellor At Law/Abogado y Licensiado
Licensed in New York, New Jersey, and Connecticut
The Estrella Law Firm, P.C.
75-20 Astoria Boulevard, Suite 170
Inside The Bulova Corporate Center
Jackson Heights, NY 11370
T. (347) 628-2391
F. (718) 672-4728
Dear do they need to take me back to court?
That may depend on the court you went to when you resolved your landlord and tenant case. If you are in doubt about a deputy sheriff showing up to evict you, if you do not have an attorney and cannot figure out how to secure free legal assistance in your community, then you may need to stop the eviction with an order to show cause. But you must know the terms and conditions of your settlement as yours is yours and only you, your landlord and the court know what you decided in your agreement.
This is a link to Legal Aid in mid-New York.
There are several versions of the type of settlement you made with the landlord and the questions you raised depend on the terms of your settlement. And, your landlord may also not know what her rights are as well.
Among the versions of a settlement most favored by tenant attorneys, is an agreement where the tenant agrees to pay a "settled" amount of money, does not surrender or give up the defenses she has to the landlord's case-in-chief, does not consent to a judgment or to the issuance of the warrant of eviction, unless, in the instance of a default or failure by the tenant to abide by the schedule for making the payment or payments, the landlord or the landlord's attorney, must notify the tenant and or the tenant's attorney of the "default" in making a schedule payment, and then in the instance the tenant does not fix the problem within five days of notice, the landlord and its attorney are entitled to request that court enter a judgment, issue a warrant of eviction, and the tenant also gives up the defenses she held in reserve. Tenants retain the right to make the payment until the warrant of eviction is issued, and if the tenant makes the ultimate payment, the case is over. Likewise, had the tenant made the payments originally scheduled the case would be over.
A landlord written version of this type of settlement would provide for the tenant initially to consent to a final judgment of possession, a money judgment for the rent, the forthwith issuance of a warrant of eviction, and the execution of the warrant of eviction stayed until the day after the last payment is due to be paid to the landlord, the service of the eviction notice by the sheriff, a waiver by the tenant of her defenses to the petition, and with the entire case being disposed if the tenant pays off the money judgment within a set period of time. The more extreme version of this form of the settlement, would not provide for any period of time to "cure" the failure to pay on time or by the time provided in the schedule, and if the sheriff's notice had not become stale to evict without the need for another eviction notice, as the stay of the execution of the warrant of eviction would expire on the day after the day the last payment was due.
So read and review your settlement agreement. And if you do not want to be evicted and you can pay and you were served with an eviction notice, you have to stop the eviction by a court order made by a judge in an order to show cause you obtain to stop the eviction in order to pay whatever is left over to keep your home.
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