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Withdraw my counterclaim and sue as a Plaintiff when I can afford a Lawyer?

Fort Collins, CO |

What if I withdraw my counterclaims for Warranty of Habitability for significant mold found in our home and unpaid wages then sue this slumlord as a Plaintiff when I can afford an Attorney?

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Attorney answers 4

Posted

You have already been sued by the landlord as a Defendant. You are in this now. Why would you want to withdraw your counterclaims now? As a former judge, I can tell you that all judges want all potential claims brought to the table in one litigation. If you withdraw your counterclaims now and try to sue as a Plaintiff later, you might be estopped from bring your complaint. Talk to an attorney before you make this major decision.

The information provided in this answer does not create an attorney-client relationship and is not considered to be legal advice. Mr. Leroi answers questions on Avvo because he strongly believes in public service from his years as a judge, magistrate, and prosecutor. If you need to ask any follow up questions because my answer did not fully address your question, feel free to call Chris or post an additional question. Thank you.

Asker

Posted

I will have to represent myself then Mr.Leroi because I can not even afford to wash my kids clothes for school right now let alone pay an Attorney:( I feel like if I could get the judge to admit my evidence and hear my testimony, I would most likely prevail as Colorado laws are pretty simple as compared to the laws of California which I am familiar. Guess I will have to go this one alone. But I could really use some advice.

Asker

Posted

Would love to hear ur answer to my itomized statement for security deposit question I posted earlier.

Posted

In most cases, your counterclaims are compulsory. Meaning that if you don't bring them, you'll lose your rights to assert them. A claim is compulsory if it arises out of the same transaction as do the Plaintiff's claims. Personally, I think your claims are compulsory because they arise from the lease (although I'm confused with regard to the wage claim- maybe you were the manager of the property?). Regardless, you need counsel to make that decision. The warranty claim is probably correct, if this is a residential lease. But be aware that you must prove hazard to your life, health or safety. Also, you must show that the landlord failed to correct the issue after written notice. Also- if you assert a violation of the covenant of habitability as a defense in an eviction suit, based on a failure to pay rent, the court must order you to pay into the registry of the court all or part of the claimed rent, after giving due consideration to expenses based on the breach of the warranty of habitability. Separately, did you also bring a constructive eviction claim?

Asker

Posted

Plaintiff was my employer as well and refused to pay us and/or refund our rent money paid in advance. We were unable to abandon the property as we had no money and did not know anyone in CO. Was not a manager, just a maintenance guy and my Wife was housekeeping. There was no deal for deduction of wages for rent.

Asker

Posted

Several have died from exposure to mold and more have been sick from it so We absolutely confider it a threat to our lives although life and death is not quite how the law was written.

Asker

Posted

In Colorado and most other states, implied warranty of habitability applies to EVERY rental agreement so not sure how that would be compulsory?

Matthew James Casebolt

Matthew James Casebolt

Posted

See Colorado Rule of Civil Procedure 13, or if you're in County Court, see the equivalent: Rule 313. Doesn't really matter what the claim is... if you don't bring it in the same suit, you lose it. Whether the warranty of habitability is in every rental agreement is probably not germane. If there are wages owing to you, you also have a contract claim... perhaps even a Colorado Wage Claim Act claim, if you were an employee. That'd be a good one, if you have it, because there are penalties and attorneys' fee awards for that. Good luck!

Asker

Posted

Not sure if I was private contractor or employee. I am CERTAIN my former employers intention was that I was an employee as he presented me with a i9 and w4 two and a half weeks after I started working for him and his defense in court for not paying was that I refused to sign his "government mandatory" papers though I had no knowledge of his company up until hours before payday. He had no posters pursuant to Colorado law and my agreement to work was with him and not his company. Wish my kick ass Attorney here in California was licensed to practice in Colorado.

Posted

I agree with my colleagues. Your counterclaims really should be litigated in the same case or else you may loose them forever as a result of the legal doctrine of Claim Preclusion (aka Res Judicata) and Colorado Rule of Civil Procedure 12(b) ("Every defense, in law or in fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required.")

Posted

Typically, court rules require you to bring claims in a litigation matter that are related to the claims brought by the other side. If you do not, you might be barred from bringing them later. There is not enough detail in your question to fully understand the issue fully. You should consult with a competent lawyer before making important litigation decisions.

This response is NOT legal advice. The content in this response is provided for general informational purposes only and should not be construed as legal advice or legal opinion on any matter. No two legal issues are identical, and each issue requires detailed analysis. You should not take or refrain from taking any action based upon information provided in this website without seeking legal counsel from a competent attorney familiar with your particular facts and circumstances.

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