Defending an Eviction
NOTE: AN EVICTION IS IN THE REGULAR OR GENERAL DIVISION OF THE COURT AND IS NOT A SMALL CLAIM PROCEEDING. IT IS UNWISE TO REPRESENT YOURSELF IN THE REGULAR OR GENERAL DIVISION OF THE COURT.
NOTE: THIS IS NOT SMALL CLAIM CASE. THIS IS THE REGULAR DIVISION OF THE COURT. YOU MAY REPRESENT YOURSELF BUT WILL BE REQUIRED TO FOLLOW THE SAME RULES AS AN ATTORNEY AND WILL BE REQUIRED TO FOLLOW THE PROCEDURAL AND EVIDENCE RULES INCLUDING THE OHIO RULES OF CIVIL PROCEDURE AND THE OHIO RULES OF EVIDENCE. A COPY OF THE RULES CAN BE ACCESSED BY VISITING THE OHIO SUPREME COURT’S WEBSITE AT http://www.sconet.state.oh.us/LegalResources/Rules
IF YOU HAVE ANY QUESTIONS YOU SHOULD CONTACT AN ATTORNEY.
NOTE: The law does not permit the court to appoint a lawyer to represent you in this type of case. If you cannot afford an attorney you should contact the Lorain County Legal Aid Society 440-324-1121 or the Lorain County Bar Association 323-8416. They may or may not represent you. Neither the court nor the clerk’s office is permitted to give you legal advice. You should consult with an attorney regarding your rights.
NOTE: If you change your address it is important to provide your new address with the Clerk of Court so that you can receive important information about your case. The Clerk of Court will use your last known address.
Usually there are two parts to an eviction case. Part one [sometimes called Count I or First Cause of Action] is the eviction case. Part two [sometimes called Count II and/or Count III or Second and/or Third Cause of Action] is the part of the case asking the tenant to pay money for back rent and damages to the property.
If you received a summons and complaint for an eviction please read it carefully. The complaint that is attached to the summons will show whether your case has one or two parts.
THE EVICTION CASE – PART ONE
The summons -The summons will have the date of the eviction hearing. If you do not believe that you should have to move from the property you should appear on that date to defend the case against you. If you fail to appear almost always the court will grant the landlord possession of the property.
The hearing – Whether you have an attorney or not a hearing will be held to decide if you can stay or if you have to leave the property. The landlord or the landlord’s attorney will present witnesses and exhibits to prove their case. After a witness testifies you or your attorney will be permitted to ask the witness or witnesses questions. After the landlord is done presenting witnesses you may, but do not have to, present witnesses or testify yourself. If you testify the landlord or landlord’s attorney will be permitted to ask you questions.
The decision – After the testimony the judge will decide if you can stay or have to leave the property. If the judge decides that you have to leave the property the law then sets the time frame for you to leave. The judge cannot change the time frame.
Once the judge rules in favor of the landlord a formal order called a Writ of Restitution is given to the bailiff. By law the bailiff has only 10 days to supervise the removal of the tenant from the property. THE JUDGE CANNOT EXTEND THE 10 DAY PERIOD. THIS PERIOD IS SET BY THE STATE LEGISLATURE. THE JUDGE TAKES AN OATH TO FOLLOW THE LAW AND THE JUDGE CANNOT CHANGE THE LAW.
THE MONEY CASE – PART TWO
If the complaint has a Count II or Second Cause of Action the landlord is not only asking that you be removed from the property but is also asking the court to decide how much money you owe for back rent and possibly damages to the property while you were in possession of the property.
The Summons – The summons will direct you to serve (send) a copy of an Answer to the complaint within 28 days after you are served (usually received) a copy of the complaint to the attorney for the Landlord or directly to the Landlord if the Landlord does not have an attorney. The Answer is a written response to the complaint for back rent and damages. The original Answer must be signed by you and filed with the Clerk of Court 3 days after you (timely) send a copy of the Answer to the attorney or the landlord. You must also file with your Answer a “Proof of Service” that must be signed by you to verify how and when you served (sent) the copy of the Answer. An example of the Proof of Service is:
PROOF OF SERVICE
A copy of the foregoing ANSWER has been sent to the [Attorney for the Plaintiff] [Plaintiff] by [ordinary U.S. Mail] at the following address this ___ day of ______________, 20____:
123 ANY STREET, P.O. BOX 000, ANY CITY, OH 00000
Note: You print your name, address and provide your telephone number and then sign on the line.
If you do not serve (send) and file an Answer a judgment may be taken against you without your further input.
The Hearing – If you do not serve (send) and file an Answer there may be no hearing in court to decide how much you owe. The landlord may choose to ask the court for a paper hearing called a Summary Judgment procedure.
Whether you serve (send) and file an Answer a hearing in court may still be scheduled. You will be notified at your last known address of any hearing. Since the case is filed in the Regular or General Division of the court you will be required to follow the same rules as an attorney. If you appear at the hearing you should be prepared to follow the rules of court including the rules of evidence and procedure.
The Decision – After the hearing in court or the paper hearing the judge will decide how much money, if any, you owe the landlord. If the judge determines that you owe money a judgment will be awarded to the landlord.
Payment of a Judgment –Do I have to pay a judgment right away? What happens if I can’t pay the judgment? Since we do not have debtor’s prisons in the United States of America a person cannot be put in jail for failure to pay a debt. If you cannot pay right away you may wish to contact the landlord to see if you can make an agreement to make payments. The court cannot order the landlord to accept payments. Any payment arrangement must be agreed upon between you and the landlord.
What if I can’t pay anything right now or the landlord will not accept my payments? If no agreement is made to pay then the landlord can collect the judgment by using the garnishment process. Please click here for information on the garnishment process.