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?
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.
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?
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.")
Commercial Real Estate Attorney
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.
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