ALJDEC

99F-L989015-BFS · Department of Building and Fire Safety · 1999-05-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 19, 1999 at 9:00 a.m. APPEARANCES: Petitioner appeared on her own behalf; Respondents appeared through their attorney, J. Denton Dobbins, Jr., Esq. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

The parties presented evidence and testimony regarding whether Respondents had violated the Arizona Mobile Home Landlord and Tenant Act, A.R.S. §§ 33-1401 et seq., and, during the hearing, agreed to settle their dispute. Based upon the entire record, the undersigned makes the following Findings of Fact, Conclusions of Law and Recommended Order. FINDINGS OF FACT Petitioner moved her mobile home into a rented space in Respondents’ mobile home park in August 1998. By December 1998, Petitioner had gotten behind in rent payments. Respondent instituted a forcible detainer action under A.R.S. § 33-1485 and served Petitioner with summons as required by law for a court hearing on December 22, 1998. Petitioner dropped into Respondents’ drop box a cashier’s check for $389.69, either several days before or on December 22, 1998. In any event, Respondents did not receive the check until after the hearing on their forcible detainer action. Petitioner did not attend the hearing because she had given Respondents a cashier’s check. After the hearing, the justice court awarded Respondents $603.03, including of $386.03 for rent, $80.00 for late charges, $37.00 in costs, and $100.00 in attorneys’ fees. When Respondents later found the cashier’s check, they returned it to Petitioner. On December 24, 1998, Petitioner moved to set aside the justice court’s judgment, but the court denied her motion and allowed the writ of restitution to be executed. On January 7, 1999, at approximately 9:45 a.m., the justice court’s constable executed the writ of execution, delivering possession of the space and mobile home to Respondents. Respondents subsequently changed the locks. On January 7, 1999, at approximately 11:42 a.m., Petitioner filed for protection under Chapter 13 of the United States Bankruptcy Code. Sometime thereafter, Petitioner attempted to break into the mobile home but Respondents stopped her. Petitioner did not notify Respondents in advance of her visit to the park. Respondent then erected a security fence around the mobile home. Petitioner also arranged for the mobile home to be moved from the space. She did not inform Respondents of her arrangements or personally supervise the attempted move. When Petitioner’s movers attempted to cut the fence, Respondent called the police and the movers left. On March 4, 1999, the bankruptcy court dismissed Petitioner’s bankruptcy petition after she failed to appear for a creditors’ meeting. Petitioner has continued to make payments to GreenPoint Mortgage, the lienholder for the mobile home, and her loan on it is in good standing. At the hearing, the administrative law judge and the parties discussed the facts, summarized above, and the applicable law, summarized below. Based on this discussion, the parties agreed to settle their claims against one another as follows: m. Petitioner agrees to pay Respondents $2,100.00, without interest, in full satisfaction of their claims against her arising out of the rental agreement. This amount represents the justice court judgment and approximately one-half the rent on the space that has accrued since then.

n. Respondent Mark Low testified at the hearing that the settlement amount includes approximately $1,500.00 in rent concessions. As the undersigned pointed out at the hearing, because the parties’ agreement does not require Petitioner to pay interest on past due rent, the judgment, or additional attorneys’ fees, she will save even more money. In return for these concessions, Petitioner agreed to withdraw her administrative complaint. o. Petitioner shall pay $500.00 down and arrange to move the mobile home from Respondents’ park by June 15, 1999. Commencing on July 15, 1999, she shall pay Respondent $100.00 on the 15th of each month until the full amount owed is fully paid. p. The parties shall stipulate to amend the justice court judgment to increase its amount to $2,100.00 and to provide that interest shall not accrue on unpaid amounts, so long as Petitioner continues to make the agreed-to payments. q. Unless Respondents consent, Petitioner shall not attempt to retrieve her personal belongings or move the mobile home except during Respondent’s normal business hours. Before Petitioner attempts to remove her personal belongings from the mobile home or to move the home, she shall provide advance notice in writing to Respondent of the date and time she intends to access the mobile home. If Petitioner hires movers or arranges for friends or family to help her, she shall also identify such persons and inform Respondents that she has authorized that person to remove her personal belongings or to move the mobile home. Petitioner shall send a copy of all her correspondence to Respondents to their attorney, identified above. The administrative law judge discussed the terms of the above settlement with Petitioner and explained the possible adverse consequences of allowing this dispute to persist. The administrative law judge believes Petitioner’s agreement to the settlement was knowing and voluntary. CONCLUSIONS OF LAW In this administrative proceeding, Petitioner bore the burden of proof to establish statutory violations by a preponderance of the evidence. See A.A.C. R2-19-119; see also Culpepper v. State, 187 Ariz. 431, 438, 930 P.2d 508, 515 (App. 1996). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). A preponderance of the evidence is “evidence which is of greater weight or more convincing than evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary at page 1064 (6th ed. 1990). When Petitioner filed her bankruptcy petition, under federal law the filing stayed “enforcement, against the debtor or against property of the estate, of a judgment obtained before the commencement of the case under this title.” 11 U.S.C. § 362(a)(2). Because Respondents had already obtained and executed the writ of execution against the space and mobile home before Petitioner filed bankruptcy, however, these acts were complete and could not be affected by Petitioner’s later filing because federal law does not provide for any retroactive effect of a filing. See A.R.S. § 33-1451(B) (allowing landlord to refuse to allow a tenant to remove a mobile home if rent is owed). Respondents were stayed from executing the monetary award included in the justice court judgment, but there is no evidence that they attempted to collect any money from Petitioner after she filed for bankruptcy. When Petitioner’s bankruptcy petition was dismissed, her position vis-à-vis her creditors returned to what it had been before she filed the petition. See 11 U.S.C. § 349(b)(3) (“[A] dismissal of a case . . . revests the property of the estate in the entity in which such property was vested immediately before the commencement of the case under this title.”). She still owed rent for the space, which was still accruing, and Respondents could have enforced their rights against her in a civil action. The Arizona Mobile Home Residential Landlord and Tenant Act specifically incorporates the provisions of the federal Bankruptcy Code. See A.R.S. § 33-1403. However, since Petitioner’s bankruptcy was dismissed, it cannot affect Respondents’ rights to hold the mobile home and the accrual of rent and other penalties. Although Petitioner’s mistake about a very complex and technical area of law is not unreasonable, it cannot diminish Respondents’ legal rights. As discussed at the hearing, although Respondents may secure the mobile home and space, they have no claim to Petitioner’s personal possessions inside the mobile home. See A.R.S. § 33-1480. It appears that Petitioner only attempted to enter the home once and that she did not make her intentions clear to Respondents at that time. However, Petitioner does have an independent right to the furnishings, personal papers, and other personal property inside the mobile home. Regardless of whether Petitioner performs the settlement, if she provides advance notice to Respondents and does not disrupt operation of the park, they must allow her access to the mobile home and permit her to remove her personal property. Public policy and the Mobile Home Residential Landlord and Tenant Act favor good-faith settlement of disputes. See A.R.S. § 33-1405. The settlement reach and submitted during the hearing of this matter, having been found to be reasonable and voluntarily made, warrants termination of the hearing and dismissal of the charges contained in the Citation and Complaint.

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/ / / / RECOMMENDED ORDER In view of the foregoing, it is recommended that the Director dismiss the Citation and Complaint in Case No. LTA 98-9/015. Done this day, May 21, 1999.

______________________________________ Diane Mihalsky Administrative Law Judge

Original transmitted by mail this ____ day of May, 1999, to:

Department of Building & Fire Safety N. Eric Borg, Director E. Virginia, Suite 100 Phoenix, AZ 85004 ATTN: Michelle M. Castañeda

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826