IN THE CIRCUIT COURT FOR XXX COUNTY, XXXX
CIVIL ACTION NO.: XXXX
Division 1
XXXX,
Plaintiff
)
)
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v. )
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XXXX LLC, )
Respondent. )
)
PLAINTIFF’S OPPOSITION TO DEFENDANT’S ANSWER TO PLAINTIFF’S
AMENDED COMPLAINT
COMES NOW Plaintiff XXXX and files this response and/or
opposition to Defendant’s answer to Plaintiff’s Amended Complaint. In support of this
opposition, Plaintiff states as follows:
FACTUAL BACKGROUND
Plaintiff and Defendant entered a written lease on XXXX (hereinafter
“effective date”). The lease was for the premises located at XXXX, TN (hereinafter “the premises”), which is owned by the Defendant. Under the
Agreement, the Plaintiff was required to pay a monthly Base Rent amount of $1375.00 and
$16.67 of Renter’s Insurance. The Plaintiff was required to pay the aforesaid amounts on the
first day of every month.
The first term of the lease run from the effective date until XXX. The
second term would start immediately and run until XXXX.
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Accordingly, Plaintiff entered possession of the premises on XXXX. On
XXX, Plaintiff was informed by an IC alerted Plaintiff of hot water running from
the water tank overflow. On XXXX, Plaintiff reported the said issue to the Defendant
and made a maintenance request, upon which Plaintiff was informed that the concern was not
an emergency.
On XXX, Plaintiff employed IC attempted to put a XXX on the damaged
part, while Plaintiff awaited the Defendant’s response.
On XXXX, the Plaintiff reached out to the Defendant about mold on the
premises, upon which the Defendant sent four ICs to the premises. All the ICs stated that it
was mold. The tank would therefore be cleaned.
On XXXX, the water tank issue persisted and Plaintiff’s property was
damaged. On XXXXX, the Plaintiff reached the Defendant about the mold issue
that had spread into the master bedroom.
On or about XXXX, Plaintiff filed a Complaint against Defendant alleging
negligence of the Defendant and Defendant’s failure to promptly respond to a nuisance at
Plaintiff’s leased property.
Consequently, the Defendant filed an answer to Plaintiff’s Amended Complaint on
XXXX. Defendant’s answer contained the following:
Defendant’s Answer
1. Defendant denies Plaintiff’s statement in paragraph 3 that Plaintiff leased the
premises from Defendant as alleged. Defendant further denies the validity of the agreement
attached as Exhibit A.
2. Defendant denies the contents of paragraph 4 of the Amended Complaint,
which states that Plaintiff entered possession of the premises on XXX based on
the agreement.
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3. Defendant denies the contents of paragraph 5 of the Amended Complaint that
Defendant is the owner of the leased premises.
4. Defendant denies the contents of paragraph 6 of the Amended Complaint and
state that the premises were and continue to be in habitable condition.
5. Defendant denies the contents of paragraph 7 of the Amended Complaint and
demands strict proof of Plaintiff’s troubles at the premises.
6. Defendant denies the contents of paragraph 8 of the Amended Complaint and
demands strict proof of Plaintiff’s troubles at the premises.
7. Defendant denies the contents of paragraph 9 of the Amended Complaint and
demands strict proof that an IC reported the issue with the faulty tank to Plaintiff.
8. Defendant admits the contents of paragraph 10 that Plaintiff contacted it with
the issue of the tank. However, Defendant denies that Plaintiff was told that the issue was not
an emergency, and demands strict proof thereof.
9. Defendant admits the contents of paragraph 11 that Plaintiff made
maintenance call related to the water heater.
10. Defendant denies the contents of paragraph 12 of the Amended Complaint and
alleges that the workers made the repairs in a timely and workmanlike manner.
11. Defendant admits the allegation in paragraph 13 that Plaintiff made a call
regarding mold. Defendant further avers that the repairs were done in a timely and
workmanlike manner.
12. Defendant admits the contents of paragraph 14 that Plaintiff made
maintenance call related to the water heater. Defendant further denied that there was any
damage on Plaintiff’s property for which Defendant was liable.
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13. Defendant denies the contents of paragraph 15 of the Amended Complaint and
alleges that it was neither negligent nor engaged in any willful misconduct and that the lease
speaks for itself.
14. Defendant admits the allegation in paragraph 16 that Plaintiff made a call
regarding mold. Defendant further denies that the mold persisted from the last maintenance
call related to the mold issue.
15. Defendant denies responsibility for Plaintiff’s liability under paragraph 17.
16. Defendant denies Plaintiff’s reliefs under paragraph 18.
17. Defendant denies responsibility for Plaintiff’s liability under paragraph 19.
18. Defendant denies responsibility for Plaintiff’s liability under paragraph 20.
19. Defendant denies responsibility for Plaintiff’s liability under paragraph 21.
Defendant’s Affirmative Defenses
In addition to the answers above, Defendant made the following affirmative defenses:
1. Plaintiff fails to state a claim upon which relief can be granted.
2. Plaintiff has failed to join an indispensible party to the action to wit, LLC.
3. No action on Defendant’s part is a cause of any of Plaintiff’s losses.
4. The damages claimed by Plaintiff were not as a result of the Defendant’s actions
and/or inactions but were the result of superseding causes including Plaintiff’s
actions.
5. Plaintiff’s decisions contributed to the losses.
6. None of Defendant’s actions deviated from the Uniform Residential Landlord
Tenant Act, Tennessee law, common law, or the lease.
7. Defendant’s actions were conducted according to the Uniform Residential Landlord
Tenant Act, Tennessee law, common law, or the lease.
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8. Defendant relies on the doctrine of comparative fault and alleges that Plaintiff’s
actions are the proximate cause of Plaintiff’s damages and/or losses.
9. Defendant relies upon the statutory limits of compensable damages under TCA
Section 29-39-102.
10. Plaintiff failed to mitigate her damages.
11. Defendant was not grossly negligent nor was there any willful misconduct on
Defendant’s part.
12. Plaintiff was using the premises for purposes other than for a one-family residential
unit.
13. Plaintiff was using the premises for other purposes other than a residential unit.
14. The premises have been maintained in a habitable condition.
15. All the work order for repairs were done on a timely and workmanlike manner.
PLAINTIFF’S RESPONSE AND/OR OPPOSITION
i. Plaintiff did not renew the lease
First, Plaintiff avers that she did not renew a lease with the Defendant. Notably,
Plaintiff paid rent on XXXX. The first term of the lease was up to XXXX. To
prove that Plaintiff did not renew the lease, the IP address that shows in the new lease is that
of XXXXl, who signed the lease without Plaintiff’s consent. (Exhibit 4- Section of
Lease signed by XXXX). Notably, Plaintiff’s IP address is XXXXX (Exhibit
1-Plaintiff’s IP address). On the other hand, the other person’s IP address is 148.75.214.230.
(Exhibit 2- The other IP address).
ii. Defendant unjustly withholds Plaintiff’s excess money
The lease was supposed to expire on XXXX, Plaintiff paid
$13,500.00 because she had initially intended to renew the lease. However, she did not renew
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the lease. Accordingly, there was an excess of $8600.00. On XXXX, Plaintiff
demanded the excess money from the Defendant. The Defendant refused to return the said
money. It is Plaintiff’s contention that the extra money was supposed to be returned to her.
Plaintiff intended to leave the premises way before the original lease would be up. Had the
Defendant given Plaintiff the excess money that she demanded, Plaintiff would have looked
for another place to stay before the lease ended. Further, Plaintiff’s products were destroyed
because the Defendant failed to return the money to Plaintiff thus forcing Plaintiff to live in
and around the mold.
iii. The Defendant erroneously charges Plaintiff premiums on the rental insurance
The Plaintiff’s obligation to pay insurance premiums ceased when Plaintiff did not
renew the first lease. For instance, in a letter dated XXXX, the Defendant that the
insurance would be cancelled if Plaintiff would not make the payments. (Exhibit 3- Letter
from Defendant). Plaintiff did not renew the insurance payments thus ending her obligation
to pay. It is therefore unjust and/or unfair for the Defendant to keep charging Plaintiff for the
insurance.
iv. There is no need for Plaintiff to sue BAF assets LLC separately
The Defendant alleges that Plaintiff failed to include a necessary party in the case to
wit, BAF assets LLC with whom Plaintiff allegedly entered the lease agreement. Plaintiff
entered the agreement with the Defendant, whose name appeared prominently on the lease.
(Exhibit 5- Section of the First Lease). Plaintiff further asserts that there is no need to sue
BAF Assets LLC. The landlord changed the name from US SFE ASSET COMPANY 1, LLC
to BAF ASSETTS2, LLC. (Exhibit 7- Change of name). Besides, Plaintiff paid the money
directly to Defendant.
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v. Plaintiff DID NOT use the premises for any other purpose other than
residential use
Defendant alleges that Plaintiff used the premises for non-residential use, which is a
violation of the lease agreement. On the contrary, Plaintiff avers that she used the premises
purely and/or solely for residential purposes. Notably, Plaintiff runs an online store,
satinminks.net, where she stores her product in a room and ships orders herself. The address
that shows up on a search of Plaintiff’s company is different from that of the premises. The
address of the premises is the premises located at 6452 Valley Oak Drive, Memphis Shelby,
TN. On the other hand, the address of Plaintiff’s store is XXXX Drive Memphis
TN 38141. (Exhibit 6- Address to online store). Accordingly, no one visited Plaintiff’s
home for purchases.
vi. Plaintiff lived alone on the premises
Defendant alleges that more than one family lived on the premises, in violation of the
agreement. On the contrary, Plaintiff avers that she lived on the premises alone and that there
is no proof whatsoever that she invited any other family to live on the premises.
vii. The premises were not habitable
Defendant alleges that the premises were well maintained and that Defendant
maintained all requirements of habitability under the law. On the contrary, Plaintiff avers that
Defendant failed to maintain the premises in a habitable condition. Plaintiff submitted real
footage and photos of mold growing on the premises, which pose a health hazard. Besides,
other tenants of the premises gave reviews online, which showed the truth about Defendant’s
failure to maintain the premises as required under the law.
CONCLUSION
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In view of the foregoing, Plaintiff requests this court denies Defendant’s averments in
the answer and instead, grant Plaintiff all the prayers in Plaintiff’s Complaint. Plaintiff also
prays this Court grant any further relief it deems fit.
Date:
XXXX
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CERTIFICATE OF SERVICE
I certify that a copy of this Memorandum of Points and Authorities in Support of Motion for
Summary Judgment was served on [ENTER DATE] to the Defendant in this action at the
following address:
XXX
DATE:
XXXX
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EXHIBITS
Exhibit 1-Plaintiff’s IP address
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Exhibit 2- The other IP address
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Exhibit 3- Letter from Defendant
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Exhibit 4- Section of the Lease signed by XXXXl
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Exhibit 5- Section of the First Lease
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Exhibit 6- Address to online store
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Exhibit 7- Change of name
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Exhibit 8- Tenants’ Reviews
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