Going to court to defend yourself in an eviction proceeding can be a stressful experience.

Preparing before you go increases the chance that you will win your case and be able to continue your tenancy. The following is a list of defenses you can use to try to get the judge to throw the landlord's case out.

Before you go to court, you should read through these defenses to see if any apply to your case. Bring to court any evidence you have to support your case. It is unlikely that you will be given an adjournment to get receipts, notices from your landlord, building inspection reports, etc., so have them with you in court. If you have witnesses, bring them. The court will not accept written statements from your witnesses. If you owe your landlord money, bring it with you either in cash or in a money order.

Read through the defenses that apply to your case (either nonpayment or the general defenses that follow). If any of them apply to you, as soon as you can after your case is called, say to the judge "I think this case should be dismissed because...." and then explain, using the defenses listed below, what your landlord failed to do and why the eviction case against you should be dismissed.

The following defenses apply to all eviction proceedings, both nonpayment cases and holdover proceedings (which are covered on the last page). Read through them to see that your landlord followed all the necessary requirements.

It is unlawful for your landlord to serve you the court papers himself. Someone else must do it. If your landlord gave you your court papers, say, "Judge, I was not properly served and this case must be dismissed."

The papers can be served:

1. personally (someone hands them to you); OR
2. by giving them to someone in your house or putting them on your door and then by sending them to you BOTH by regular AND certified mail.

Managers or other agents of the landlord cannot appear in court for them. This is considered the unauthorized practice of law. If the owner of the property or his or her attorney is not in the courtroom and only the manager or someone who works for the landlord is, tell the judge. He should dismiss the case.

If you had already moved by the time you got your court papers, ask the judge to dismiss the case.

Nonpayment Cases

The following defenses apply only to cases where your landlord is bringing you to court for not paying the rent. Look in the upper right-hand corner of your court papers to see whether it says 'nonpayment' or 'holdover' or if the box next to one of these words is checked. If the nonpayment box is checked, you are going to court for a nonpayment proceeding.

Late fees, attorney fees, security deposits, etc., may only be asked for in a nonpayment eviction if there is a written lease that says that these items will be considered rent if not paid. If your landlord is asking for any unpaid amounts besides rent, say: "Judge, my landlord is asking for money in addition to rent. I do not have a lease agreement OR my lease agreement does not say he can do this. For that reason, he cannot ask for money in addition to rent in this proceeding." (This does not mean that the judge will dismiss your case. The judge should limit the case to the rent money you owe.)

Your landlord cannot simply say that you owe $1525 in back rent. She must clearly set out how she arrived at this amount by listing all the amounts that you owe and what they are owed for. If your court papers do not specify which months you owe rent for and exactly how much is due for each of those months, say: "Judge, New York State law requires that the amount that is due and the period for which it is due be explained clearly in the court papers. My landlord did not do this and this case should be dismissed."

If your landlord did not either 1) ask for the rent or 2) give you a note asking for rent or put a note on your door, and send copies by both regular and certified mail, tell the judge: "I did not get a proper pay or quit notice and the case should be dismissed."

Was the petition filed before the pay or quit notice ran out or before rent was due? If it was, the case should be dismissed or thrown out. Tell the Judge: "This proceeding is premature because my rent is not due until _____ OR because the pay or quit notice says I have until ___ to pay my rent and I received my court papers before that day."

You may not be evicted in a nonpayment proceeding because you did not pay a rent increase that you did not agree to pay and have never paid. Tell the judge: "My rent is only $___. I have never paid $ (the increased amount) and my landlord cannot ask for that amount in this proceeding." (This does not mean that the judge will dismiss your case. The judge should limit the case to the rent money you owe.)

If you did not cause these conditions and your landlord knows about these unsafe conditions, the judge should reduce the amount of rent you owe. Say to the Judge: "I want to raise a 'warranty of habitability defense' and I want a 'rent abatement,' " (i.e., money off the rent). The judge should give you an opportunity to describe the dangerous conditions in your apartment and will give your landlord the opportunity to tell his side of the story. Neighborhood Legal Services can provide you with more information about how to prepare for a warranty of habitability hearing. You can call us at 847-0650 if you would like us to send you this information.

The next groups of defenses apply to holdover cases. Your landlord would bring a holdover proceeding against you if you were given a 30-day notice to vacate, if you broke your lease agreement in some way (perhaps by violating a rule), or if your lease came to an end and you did not move. Usually, your landlord can give you your notice of termination orally (verbally) or in writing.

If your tenancy began on the first of the month and you have a month-to-month tenancy, your landlord must give you notice before the first day of the month that your tenancy will end the last day of the month. If your landlord did not give you this amount of time, say: "Judge, this case should be dismissed because I have a month-to-month tenancy and my landlord did not give me timely notice."

The landlord's notice to you must tell you clearly that you have to move. If the landlord gives you a choice, for example, "Unless you stop parking in my spot in the driveway you have to move at the end of the month," you have not received unequivocal notice. If your landlord did not give you definite notice that you had to move, say: "Judge, my landlord never gave me a clear and unequivocal termination notice and this case should dismissed."

Your landlord cannot start the court proceeding against you before the date you were supposed to be out. If you got your court papers before the day you were supposed to move, say: "Judge, this proceeding is premature and should be dismissed."

If your landlord takes rent from you after the date you were supposed to move and before you received the court papers for the current month's rent, then your landlord has started your tenancy again. Tell the Judge, "My landlord accepted rent from me (or from Section 8) after the day (s)he told me to move and before I got the court papers. This eviction case should be dismissed."

LifeBridge: Free Life Insurance for Low Income Parents

        Life insurance has long been an effective tool for exploiting poor people. Charles Dickens wrote that "a Life Assurance Office is at all times exposed to be practiced upon by the most crafty and cruel of the human race." At the turn of the last century "industrial life insurance" was marketed to the working class, and sold doorto door by agents who collected the premiums the same way on a weekly or monthly basis. Agents often convinced consumers to purchase policies they could not afford to maintain, and thus many policies subsequently lapsed.

        Much like rent-to-own tactics used today, this distribution and collection system, together with the high lapse rate, made industrial life insurance very expensive. Supreme Court Justice Louis Brandeis believed that the entire industry principally served to defraud working people of their life savings.

        According to the American Council of Life Insurers (1999), fewer than 18 percent of U.S. workers at or below the poverty level have life insurance. For those that do, it is not uncommon for them to buy life insurance in amounts of $1,000 to $5,000 by paying premiums of $50 per month for years on end. At these premiums, the face amount of the life insurance is paid within a few years, yet the purchaser is often not aware of that fact and continues to make payments.

        Given this historical background, I was justifiably suspicious when I first learned of Massachusetts Mutual's new and free life insurance program for low-income parents, "LifeBridge," but it appears to be authentic. In essence, the company is willing to issue a $50,000 life insurance policy and pay the premiums for 10 years for a low-income parent or legal guardian. If the insured parent/guardian dies during this time, the $50,000 is to be used to pay the education expenses for his/her children. This life insurance coverage is free; there is no out-of-pocket cost to any covered insured or her/his children.

Applicants for LifeBridge insurance must be:

Between the ages of 19 and 42;

Employed full time or part time with a total annual family income of at least $10,000, but less than $40,000;

The parent or legal guardian of one or more dependent children under age 18;

In good health.

        As with all insurance, there are additional important limitations. Individuals must be the primary financial provider in a household and eligible for the federal Earned Income Tax Credit. Persons who have been diagnosed with heart disease, cancer, or HIV are ineligible. Persons who have abused drugs or alcohol within the last 10 years or who have been convicted of DWI in the last five years are not eligible. Persons applying for LifeBridge will probably be required to undergo a physical examination.

        According to the sponsors, LifeBridge will be available until 20,000 policies have been issued or through December 31, 2997, whichever comes first. Mass. Mutual is distributing LifeBridge information and eligibility forms through Big Brothers/Big Sisters, the Urban League, Habitant for Humanity and other community organizations. Additional information and eligibility forms are also directly available by calling 1-800-272 2216.

Questions and Answers About the Medicaid Buy-In Program
For Working People with Disabilities

The program offers Medicaid coverage to people with disabilities who are working and earning more than the allowable limits for regular Medicaid. If you are eligible, the program offers you the chance to keep your health care coverage through Medicaid while earning more income than was previously allowed.

July 1, 2003

To be eligible for this coverage, a person must

• Have a disability as defined by the Social Security Administration
• Be at least 16, but not yet 65 years of age
• Be engaged in paid work (includes part-time and full-time work)
• Have a gross income that may be as high as $46,170 for an individual and $61,870 for a couple (as of January 1, 2003)
• Have non-exempt resources that do not exceed $10,000

If I'm not working now, can I become eligible for the program?

Maybe. If you meet all the other criteria, you can apply for the Medicaid Buy-In Program for Working People with Disabilities once you begin working.

Single people or married couples (if both spouses have a disability and are working) are covered under this program. Spouses without a disability and children may be covered through other programs.

If you are already working and receive Medicaid coverage with a monthly spenddown, you still have the option of participating in the Medicaid Buy-In Program for Working People with Disabilities.

Maybe. It depends on how much income you have. The method used to compute net earned and unearned income is complex. There may be a premium based on your income. This will be determined when you apply for the program. We understand that no premiums will be collected until early 2004.

Application for the Medicaid Buy-In Program for Working People with Disabilities must be made at your local Department of Social Services.

Resources are property of all kinds, such as bank accounts, stocks, bonds, and vacation homes. All resources will be reviewed to determine their availability and value. To be eligible for this program a person may not have more than $10,000 in resources.

Resources that are not counted include:

• Homestead
• Automobile
• Pre-need funeral agreements (irrevocable)
• Money saved in a Plan to Achieve Self-Support (PASS)
• Life Insurance Policies (whole life policies with a combined face value of $1,500 or less)

There are other resources that are not counted. Your local Department of Social Services can provide you with further information.

Your local Department of Social Services will review your application and tell you if you are eligible for the program. Please make sure you bring the information required to complete the application.

Addresses and phone numbers may be found in the phone book or online at: www.health.state.ny.us/nysdoh/medicaid/ldss.html, or

See the Summer 2003 issue of the Benefits Planner at www.nls.org/planner/summer03.htm, or

Contact a Benefits Counselor who is trained to help you make decisions about this program and others.

Call the toll free Statewide Work Incentive Hotline at (888) 224-3272 or TDD (716) 847-1322, or

See the Benefits Planning Assistance & Outreach (BPAO) Directory online at  www.ssa.gov/work/ServiceProviders/BPAODirectory.html

In Erie County, call NLS at 847-0650.

Do you need help with student loans?

Did you pay for a vocational school, and never complete the course? Are you delinquent with your payments? Are you in default? Project Dandelion can help.

Income eligible clients can get free advice and assistance. Call to register for one of our free clinics. Clinics are held on the first TUESDAY of every month. Register today. We meet at 2:00 p.m. Call 847-0650 for more information.

Our mission is to assist and encourage low income families and individuals in their efforts to attain self-sufficiency through training, support, newsletters and legal services.

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