Facing an Attorney in a Forcible Detainer Hearing

As a small landlord facing an attorney in an eviction hearing (in Kentucky known as forcible detainer) is unusual; if the tenant doesn’t have money for the rent, it’s unlikely they have money for an attorney. When it does happen, it can seem very intimidating – hopefully this article will help you get past that. I’ve been conducting forcible detainer hearings for many years, and while I’ve faced numerous attorneys in civil cases (I’m typically suing for rent owed) I had never had the experience of facing one in a forcible detainer hearing – until recently.

Forcible detainer cases are usually done like an assembly line; judge asks if the breach (non-payment, whatever) still exists and I say yes. Then the judge asks the tenant if this is true. The tenant usually then either admits yes and asks for time, or goes into a string of rationalizations and fibs (the landlord wouldn’t fix this or that, my hours got cut back at work, etc.) which the judge will only allow to go on for a short while, and then judgment is granted against the tenant. Typically this is two minutes or less. The only typical things which will stop this are a question concerning notice, proof payment was made, or whether the contract is a lease or actually a contract for deed (a land contract – which requires foreclosure before eviction in Kentucky).

If the tenant gets an attorney, though, this will become a much more involved affair. It still won’t change the ultimate outcome very often (if at all), but knowing what is likely to happen can help you deal with the tricks an attorney is likely to try.

One thing I’ve seen with facing attorneys in other types of cases is that the tenants who give you the most grief, complaints, lies and arguments also tend to also be the ones who get an attorney when they know good and well they owe you. So instead of paying you, they take that money and get an attorney with it. That was how it was in the forcible case I had; one of the most difficult, belligerent tenants in all my experience turned out to be the first one who got an attorney over a forcible complaint – where there was no question the rent had not been paid.

Attorneys, of course, are in business to make money, and they want to appear to perform well for their client. They don’t care that their client is a deadbeat who hasn’t lived up to their obligations (as long as the attorney has gotten a retainer in advance!), nor should they. Even though the outcome is likely pre-determined and the attorney knows it, their job is to put up a good fight.

One thing which will normally happen when an attorney shows up for the forcible hearing is that there will be a pre-trial conference. The judge will likely have you and the attorney step outside, probably go to a witness room to discuss the possibility of settlement. The attorney may try to draw you into a conversation; likely they are looking for any traps or arguments they can throw at you in the hearing. They are not your friend, so I wouldn’t talk with them much. They will ask if there is any way to settle the issue. My answer is no; this is a forcible detainer hearing not a civil trial and I’m not interested in partial payments if it’s gotten this far along. Pay what is owed in full is how to “settle” the case.

In the hearing, the attorney is likely to take what is normally a 2-minute process and make it a 30-minute federal case, and will do everything they can get away with to intimidate you, fluster you and make you lose your cool. To a certain point, the judge will likely let them do this. If the attorney actually has something solid – like you didn’t give notice, they’ll bring that up first and get the case dismissed quickly. If they go on and on about every crazy thing, you know they’ve got nothing. They may challenge whether the amount in the notice is correct (in Kentucky that’s not relevant), or attack issues in the lease which aren’t relevant. In my case the attorney went on and on that I hadn’t followed federal truth in lending laws because past due amounts accrued fees under the lease. He kept asking questions phrased as “did you observe all truth in lending laws” which seems like a yes or no question but that’s a fake out – the answer is “it doesn’t apply to a lease” (which is actually an objection that the question isn’t relevant). Lawyers will try to steer you to these red herrings; instead of falling for them, you can just object, say you don’t know, or say you don’t understand the question. It will usually be pretty obvious what the lawyer is trying to get you to say – just find a legitimate way to not say it because it’s a trap.

There is only one issue in a forcible detainer hearing – has the lease been breached. The judge will allow questioning of a wide variety, some things will seem pretty crazy, and the attorney will go after you with these odd lines of questioning; if it gets too odd, or irrelevant, try objecting. The attorney will also often use accusatory tone and language – ignore it if you can, they are baiting you into saying something rash.

In my case the attorney tried two more tricks, both unethical to me but these types of things are allowed. After the attorney had asked all kinds of crazy questions, he still had to admit that his client hadn’t paid the rent. However, he cited an obscure case claiming that it would show my notice was improper (improper notice being one of the few defenses). Conveniently, he didn’t bring a copy of this case to give the judge. So, the judge withheld the normally on-the-spot judgment to review the case later. This case cited was entirely bogus, it didn’t say anything like what the attorney claimed – but giving the citation without having a copy of it bought a little time (the judge issued the judgment later that afternoon). Then, when the 7 days allowed after the judgment were up, the attorney filed a notice with the court that because the judgment wasn’t given in court (a circumstance he created with his bogus case citation), the rules of civil procedure required 10 days instead of 7. However, I’m familiar with the civil rules and know that they say nothing of the kind (the 10 instead of 7 applies to motions and other filings, not judgments) and filed an immediate brief calling the attorney out on it. It did no good though – the court clerks were afraid to do anything like issue the warrant for possession I needed (and was entitled to) with that notice filed by the attorney. They contacted the judge, but of course she was in another county on the circuit (the attorney knew this would be the case) and it was going to be three days before she was back anyway, so wasn’t going to do anything without reviewing the filings. The attorney knew good and well all this was bogus (or he’s not a very knowledgeable attorney who got lucky by being dumb), and also knew he could get away with it. Expect these little things to happen and don’t get too distraught; the attorney at best can only buy a few extra days. Not much for they money they charge (and which of course should have been paid to you on the rent owed).

There are a couple of tricks to fight back with when facing attorneys, but they’re a bit advanced; I’ll write on them another time.

Category: Eviction