Serna v. Gutierrez

2013 NMCA 26, 2013 NMCA 026, 3 N.M. 419
CourtNew Mexico Court of Appeals
DecidedDecember 3, 2012
DocketDocket 30,910
StatusPublished
Cited by8 cases

This text of 2013 NMCA 26 (Serna v. Gutierrez) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Serna v. Gutierrez, 2013 NMCA 26, 2013 NMCA 026, 3 N.M. 419 (N.M. Ct. App. 2012).

Opinion

OPINION

GARCIA, Judge.

{1} The district court issued an opinion and order affirming a metropolitan court judgment that awarded Oscar Serna (Landlord) restitution of the premises rented under a federal housing program based on Jonita Gutierrez’s (Tenant) failure to timely pay rent for two months and Tenant’s delay in the payment of a portion of her security deposit. Tenant appeals the district court’s order, arguing that the metropolitan court terminated the tenancy without complying with the federal requirements for termination and eviction. Because Landlord failed to demonstrate a serious violation of the lease during its first one-year term, we reverse and remand this matter to the metropolitan court for further proceedings.

FACTS

{2} Tenant rented a residential property from Landlord for a one-year term beginning July 1, 2009 (the Lease). The Lease was entered into as part of a federal government rent-subsidy assistance program commonly known as the Section 8 housing program. See 42 U.S.C. § 1437f (2009) (amended 2011). The applicable federal regulations relevant to the parties dispute are codified at 24 C.F.R. § 982.310 (2010) (owner termination of tenancy). A housing assistance payment contract was also executed by the parties and the public housing agency, Albuquerque Housing Services, in order to comply with the requirements to participate in the Section 8 housing program. See 24 C.F.R. § 982.305(c) (2004). Under the Section 8 housing program, the Department of Housing and Urban Development (HUD) enables tenants on public aid to acquire rental housing for a percentage of their public assistance income, while the federal government guarantees to the landlord that it will pay the balance of the fair rental value of a rental unit. See 42 U.S.C. § 1437f.

{3} The Lease began on July 1, 2009, and required Tenant to pay a $700 security deposit. The rent for the term of the Lease was $538 per month. The amount to be paid by federal public housing assistance was $446 per month. Tenant’s monthly payment was $92. If the rent was not paid in full on the first day of the month, the Lease authorized Landlord to charge a $35 late payment fee. The Lease permitted Landlord to terminate the tenancy if Tenant committed a serious violation of the Lease or a violation of federal, state, or local law. It also permitted Landlord to terminate the Lease for other good cause but only after the completion of the first one-year term of the Lease. It is not disputed that Landlord’s petition to terminate the Lease occurred on August 13, 2009, during the first one-year term of the Lease.

{4} Tenant moved into the premises on June 28, 2009. Tenant paid $100 of the security deposit prior to moving in and was told that she owed $74 in rent for the three days that she occupied the premises during the month of June. In June, Tenant wrote two checks to Landlord in an attempt to pay rent for the month of June and the $600 balance remaining on the security deposit. When Landlord’s wife attempted to cash the checks, she discovered that they were written from a closed account. Tenant failed to make any further payments toward the amount claimed to be due for June rent. Tenant did pay the $600 remainder of the security deposit on October 1, 2009.

{5} In July and August, Tenant’s rent payments were delivered after the first day of the month and were subject to a late charge under the Lease. Tenant did not pay her portion of the July rent until July 17, 2009. Her July rent payment was late because Albuquerque Housing Services did not mail Tenant her federal public assistance check and the letter advising Tenant that her portion of the monthly rent payment was $92 until July 13, 2009. Tenant mailed her portion of the August rent on August 3, 2009, the same day that she received her federal public assistance check. By early October 2009, Tenant had fully paid the security deposit and was current on all her monthly rent payments under the Lease.

{6} On August 13, 2009, Landlord filed a petition for restitution against Tenant, alleging that he was entitled to possession of the premises because Tenant had breached the Lease by failing to pay the full security deposit, the June rent, and the full amount of rent for July and August. Landlord’s petition did not assert any claim that Tenant committed a violation of law. At the time of his petition, Landlord claimed that the monthly rent amount for the property was $875 per month. Tenant answered the petition, asserting that she had paid the Lease amount of $538 per month and that she had paid $100 of the security deposit. She argued that the parties had agreed that she could pay the $600 remainder of the security deposit by October 2009, and alleged that Landlord’s petition was an attempt at retaliation for her complaint to Landlord about a plumbing problem.

{7} The metropolitan court held two hearings to address the issues in this case. After hearing testimony from both parties, the metropolitan court found that the case came down to credibility. It found much of Tenant’s testimony troubling. Although the courtheard testimony regarding T enant’s prior criminal convictions involving bad checks, theft, and fraud, its findings related to Tenant’s credibility were based on the substance of her testimony, not her prior criminal convictions.

{8} Ultimately, the metropolitan court found that the testimony from Landlord, his wife, and his sister was more credible than Tenant’s testimony. As a result, the metropolitan court entered a judgment for restitution in favor of Landlord and terminated the Lease. The metropolitan court judgment restored the premises to Landlord and awarded Landlord $144 for past-due rent, $117 for costs, and $4,000 for attorney fees. The past-due rent amount was calculated by adding Tenant’s $74 unpaid June rent with two $35 late rent payment fees for the months of July and August.

{9} Tenant appealed the metropolitan court judgment to the district court. On appeal, she raised six issues: (1) that the metropolitan court erred in finding that she did not pay the June rent; (2) whether any failure to pay the June rent could be used to evict her when the Lease was not even in effect in June; (3) whether the metropolitan court erred in allowing Landlord to introduce Tenant’s criminal background; (4) whether the metropolitan court violated Tenant’s Section 8 property interest in the Lease by evicting Tenant without finding a material violation of the Lease; (5) whether the metropolitan court erred in denying Tenant’s counterclaim for retaliation; and (6) whether the metropolitan court erred in awarding Landlord attorney fees and costs. After reviewing arguments by the parties and the metropolitan court record, the district court affirmed the judgment of the metropolitan court.

{10} Like the metropolitan court, the district court found that the case was largely one of credibility.

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Cite This Page — Counsel Stack

Bluebook (online)
2013 NMCA 26, 2013 NMCA 026, 3 N.M. 419, Counsel Stack Legal Research, https://law.counselstack.com/opinion/serna-v-gutierrez-nmctapp-2012.