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Don’t Evict Me! I Am Not Responsible for The Frozen Pipes Because Water Freezes At 42F!

Most of my tenants are great people and I rarely go to court but occasionally I get a tenant from hell who is so retaliatory and so ballsy and brazen that they really get my cage rattled.

Meet Shannon Michelle Lamothe from Gardner.

I was sued by her at Worcester Housing Court for having the nerve (imagine that!) to try to enforce the Lease by asking to get paid to repair something she broke. She called the Police on me and filed a false police report against me, called the Health Board in retaliation against me after I served her the Eviction Notice when she refused to pay for what she broke and she also found a Lawyer to file a real lawsuit against me.

Usually people don’t believe landlords who say: “One time one of my tenants left the apartment unheated, all the pipes froze and then she called the Health Board because she had no heat and found a lawyer to sue me.” People say: “Nah, there’s got to be more to that story.”

Actually there isn’t and that’s why I am publishing the full public record. I am also publishing it to help you see one full lawsuit and to learn from my mistakes and from everything I did right. All that I am publishing is already public (except my emails to the Health Board which I am making public now) and is part of the record on this lawsuit and anyone can go to the Court and pull the folder and see all the pictures and motions, etc (http://www.masscourts.org). When tenants file lawsuits they shouldn’t forget that all the Motions and Counter-motions filed by both parties and pictures and texts and anything else you file as part of this case becomes a public record.

On 02-16-15 I received a text from this tenant telling me that her heat was working fine until that day and in fact it was ok at 2am when she was going to bed. According to her she looked at the thermostat and the temperature inside was 60F. She increased it with with 2 more degrees and went to bed. In the morning at 9:30am she looked at the thermostat again and it was 42F and tried to persuade me that the inside pipes froze and burst from 2am to 9:30am.

Here are some of the texts:

Elmir to Shannon
“when was the last time ( and I need a date and an hour) when the gas baseboards heaters were
hot?”

17-1 Shannon to Elmir 2015-02-16 16:34:56
“Today this morning when my brother left??? He didn’t notice anything was wrong and when my
friend called my phone at 930 and I was like damn it’s cold in here looked at the thermostat and it
was 42 when I layed down at 2 am it was 60 so I turned it up alittle bit then when to bed. That’s it I
don’t know what else you want me to say”

17-1 Shannon to Elmir 2015-02-16 16:36:52 “So at 2am it was still on on the 15th of February”

17-1 Shannon to Elmir 2015-02-16 16:41:10 “You can also ask every single neighbor and tenant in the building if I’ve been here”

17-1 Shannon to Elmir 2015-02-16 16:41:20 “We’ve all been shoveling together”

Elmir to Shannon
“So you are trying to convince me that between 2 AM when the temperature was 60 and 9:30 am
when the temperature was 42 the pipes somehow managed to freeze AND burst?”

17-1 Shannon to Elmir 2015-02-16 16:43:28
“I don’t know what you want me to tell you! Like I said I have multiple freinds and family including
my 87 year old grandma that was here for 3 hours on Saturday that knew the heat was working!”

Elmir to Shannon: “Ok, I am all set for now. I have heard enough”.

So a little later I told her over text : “it is scientifically and mathematically
impossible for the pipes to freeze let alone burst under the scenario that you have given me. You
are paying for this whole repair.”

Right after that message I get a phone call from the Gardner Police after this tenant called to file a false police report against me. The officer attacked me over the phone. (Complaint Against Officer Wolski from Gardner Police Department).

Fully expecting this tenant to further retaliate against me for daring to send her a Notice to Quit for causing damages and refusing to admit and pay for them I emailed the Health Board immediately sending them all the text messages and pictures of the frozen pipes and the state of the apartment and asking them to cite her not me for the no heat situation and the poor sanitary conditions in her apartment. Do you know what they told me? They told me that they only cite landlords, never tenants… except if they catch them in the act of breaking the Sanitary Code or if they admit that they broke the Sanitary Code and this anti-landlord Health Board cited me (the Health Board Citation). In my emails I ask them who would they cite if they go into an apartment, the floor is full with dog poop (clearly that’s a violation of the Sanitary code that they did not observe happening in the act of the dog pooping) and the tenant denies that it’s her dog (no admission from the tenant about breaking the code). Who would they cite? The landlord or the tenant? They refused to answer.

I could not find a plumber at that time, they were all extremely busy with frozen pipes so my father who is 69 years old and I both worked in terrible conditions to restore the heat. It took us 6 days to fix her heat. We had to replace heaters, copper pipes, vents, etc.

Here are several pictures from the court record:

IMG_1294 IMG_1296 IMG_1297 IMG_1300 IMG_1303

IMG_1364 IMG_1317 IMG_1320 IMG_1321 IMG_1329 IMG_1334 IMG_1355 IMG_1365 IMG_1602

After we fixed the heat, I get a phone call at 7:30am from someone who introduced himself as her lawyer, woke me up and demanded that I go out there and fix her heat immediately. I told him the heat has been fixed. He demanded that I email him everything I have regarding this tenant and I emailed him the Texts from Dec 2014 to 2-21-15, all the tenant paperwork (lease, receipts, statement of condition, etc) and the pictures of the frozen pipes and the way we found the apartment.

Knowing all of that, who said what and when, and knowing the fact that it’s impossible for water to freeze at 42F, he still chose to file a 2015-03-16 Lawsuit Against Me with the Answer. Knowing that Jury Trials take longer to reach this lawyer also opted for a jury trial.

The name of the lawyer was Michael Franzoi from Wehrung Law Firm in Watertown, MA.

The problem is once a lawsuit is filed, then it becomes about the landlord : “We understand that you are trying to evict our client for having a pit-bull or causing fire or frozen pipes, or whatever, but now you show us that you have complied with the letter of the law with ALL landlord-tenant laws in MA“. Not many landlords can withstand such a scrutiny.

Lawyers should not be allowed to do that. What does the fact that, let’s say, I did not give this or that receipt in the proper format, have to do with her leaving the apartment unheated? But that’s what they do. They try to muddy-up the water. And so you have 10 days to answer 30 questions, produce 30 documents and make 30 admissions or something like that. In any case – a big waste of time.

So I answered all his questions and sent him all the paperwork I had.

This lawyer also filed Motions with the Court to Dismiss my eviction case, to transfer this case to the Civil Docket and he was so cocky and so sure he would win that he asked the judge to put a lien on my building for $10,000.

I am all about creating a written record so I filed a written motion to oppose all that (2015-03-18 My Motions to Oppose Dismissal, Transfer to Civil Docket and Attachment.)

We went to mediation. I offered several ways out but they would not settle for anything.

At the hearing Judge Horan denied all his motions. The lawyer was also unhappy with the way I answered the questions and the paperwork I provided so he made an oral Motion to Compel. The judge denied that as well.

Several words about Judge Horan: Unlike Judge Dina Fein and Robert Fields from Western Housing court who are basically lawyers for the tenant dressed in judge’s clothing, at least that has been my consistent experience with them, Judge Horan is a moderate, no-nonsense judge who seems to honestly try to be a fair arbiter between tenants and landlords. Judge Sullivan who moved to another court was also like her. I don’t go to court much so I have only been in front of her once before but I could tell that this judge was not in the mood for tolerating games by this lawyer.

Initially this case was scheduled for 3-20-15, then it was moved to 4-3-15 and then for trial to 4-24-15.

Since they had their usual Counterclaims against me I was not sure how to add my claim against the tenant. All I wanted is to get paid for my labor and materials to fix the pipes that she caused to freeze. 2015-03-29 My Motions to Resolve the Issue of Possession and to File my Claim for Damages. I asked for $2,642 in damages. (Here is the accounting)

So the lawyer, in response to my Motion and upset that I did not answer all his questions to give him exactly what he wanted to hear and upset that after all this Discovery he could not find any violation of the landlord-tenant laws in MA to hang his case on, filed a very lengthy 56-page Motion to Compel, this time in writing.

I, of course, immediately opposed it in writing as well – just for the record – click here.

So we went to court on 4-3-15 and met with a Mediator before the judge was to hear all of these motions and there we settled this case – the case will be dismissed against the tenant if she cleans the apartment and “voluntarily” leaves by 5-1-15, the rent is paid until 5-1-15, she loses her Security Deposit of $675 and I pay a big, fat ZERO to her attorney. (By the way, the Security Deposit will cover the Court Costs, the Materials Costs for the pipes and some Water Bills that she owes me and about $100-150 remain for my and my father’s labor for a week.)

Maybe I made a mistake of settling (here is the actual agreement 2015-04-03 Agreement 17-1). Maybe I should have at least gone in front of the judge to hear what she had to say about these motions and maybe I should have gone all the way to the jury. In MA the system is set up in such a way that even when a landlord wins in court, he or she actually loses because they can’t collect anything because there is no Mandatory Rent Escrow in MA. It is legal in MA for a tenant to engage in Retaliation against the landlord and their lawyers are free so tenants have nothing to lose in MA.

But then again a jury is unpredictable plus even if I win another $1,900 with them, can I collect from this tenant? Also winning does not necessarily mean the apartment will be left clean or that will be vacated at all, costs for movers involved, etc.

In the end, my losses are a week of labor wasted (basically unpaid) to fix the pipes and a week wasted to go to court, write these motions and defend myself (also unpaid) plus $50 in mailing costs. On the other hand, it warms my heart that her lawyer had to drive from Watertown 2 or 3 times to a 9am session of the Leominster District Court and back.

What’s the moral of the story?

1. If this tenant had simply assumed personal responsibility instead of blaming the rest of the world for her situation in life, she would have not lost her apartment. All she had to say is: “I am sorry, I messed up. I went to my cousin’s for a couple of days and I did not expect the water to freeze. I can’t pay the full $2,642 that you are asking, can we talk about a lower rate maybe or can we break it up over 6 months or something”? I would have gladly given her the 6 months and lowered the amount and she would have had no public record (the thing that she was most afraid and the thing that has actually happened now that all these Motions and Counter-motions, Claims and Counterclaims are all out there for anyone to read) and she would have kept her apartment. But, no…

2. If I see that a prospective tenant has ever had a lawyer in any proceeding at http://www.masscourts.org as of this case forward I no longer take them as a tenant. This is a free country. They certainly have a right to hire a lawyer and I have a right to not take them as tenants because of that. Too bad, because maybe there are some real, legitimate cases out there that deserve to have a lawyer involved. Unfortunately in my 17 years as a landlord, I have been sued 4 times and it’s all been completely frivolous like this one, very costly to me especially the first several times and a big waste of time. Why take chances?

3. Just because you see online that a case was dismissed or a tenant shows you that the case was “Dismissed” and she or he technically has no eviction on their record, doesn’t mean she or he is not a bad apple. Sometimes we as landlords have to settle. There is usually a lot more behind that “Dismissed” end result.

4. Diamonds may be a girl’s best friend but, if used correctly, I say texts are the landlord’s best friend. In the olden days (not that long ago) when texts were not prevalent, some tenants can go on the stand and simply lie: “I left him messages and he would not come and fix my heat, would not pick up his phone. Your Honor, he refused to fix my heat. I was forced to live for two weeks in subzero temperatures. I have a baby (insert quiet, desperate crying here)”. I am not saying they won’t lie on the stand now. It’s just makes it harder, much harder.

UPDATE:

On 4-10-15 I was tipped that this tenant was arrested for possession of Class B drugs with intent to distribute by the Gardner Police. I went to the Police and they gave me the public record of her arrest. 2015-04-10 arrest police log.

The next day I sent an email to her lawyer informing him of her arrest for drugs and I added that while this arrest may explain her insisting that water freezes at 42F, what explains his stupidity?

Well, the shit must have hit the fan in his office when he got my email because I received, like, a million phone calls from him right after, which I, of course, ignored.

On 4-28-30 I sent him a reminder: “Your client is supposed to surrender the key the day after tomorrow (the 30th) and leave the apartment in broom-clean condition. Otherwise I get Judgment for Possession by just filing with the Court.”

I never heard from anybody on the 30th as the Agreement required and so on the 1st I filed for Possession and the record was created for Possession in my favor.

She left on the 1st, one day late.

As you can imagine, the attorney was not happy that I enforced the letter of the Agreement but what is he going to do – file more motions and make more unpaid trips from Watertown to Leominster? He should have never filed this frivolous case against me trying to argue that water can freeze at 42F.

I appealed the Health Board decision and I filed a 2015-06-12 Health Board Complaint.

This is the non-sense that we have to deal with as Massachusetts Landlords.

I am a nice guy but please don’t sue me because I can and will fight back.

I have written a book on the 6 most common claims used against Massachusetts Landlords. It’s a little pricy ($47) but it’s worth it. Also I have written a guide of how to survive and make money in this anti-landlord climate in MA where I share all my secrets. It costs less than 1 month rent and it will give you an education that Harvard won’t. Guide on How to Make Money as a Landlord.