The Sequel: How to Sue AirBNB in Small Claims Court

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Well the host community here and elsewhere has chipped in brilliantly! As seen on the 2nd video v. AirBNB, I told the judge that the case is being followed closely by hosts in the U.S. and overseas. And that remark is followed by a (discrete) shoutout to @Brian_R170 at 17:40 for pointing out the AirBNB H3ll posting by the guest – which was REMOVED sometime between April 1 and 8 no doubt in response to my latest legal filing pointing it out.

In addition a Bay Area member of one of the hosting communities, not sure which one, “booked” my most humble listing for 1 night to offer financial support. She can stay here for real any time!

So thanks to all – this is in some respects a team effort.

Off to work on my motion on the AirBNB appeal – got to finish it today – it’s looking strong and I’m pouring everything we’ve all learned about the fickle nature of AirBNB Trust and Safety into the draft.

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UPDATE:

This morning was the appeal of my case against AirBNB in Baltimore Circuit Court.

Great judge, very fun to spar with him, he said twice that my arguments were “eloquent.” He was quite complementary. He was quite intrigued with my points that innkeepers are supposed to be exempt from the kind of “exculpatory” (“we ain’t responsible for your damages”) clauses AirBNB lands on hosts. He was also intrigued by the fact that Section 17 of the ToS (“we ain’t responsible for your damages,” again) is NOT permitted in the European Union.

We had a chat about how Justices Kagan and Breyer of SCOTUS are leading a debate on how much U.S. law should look to European law. I’ll get the audio of this case and post a video in time.

But in the end, I would have to call this a noble defeat, since he ruled AirBNB was not in fact responsible for my damages, due to Section 17. I’m a little surprised. He went with a ton of case law vs. AirBNB and from what I can tell, it was all tangential to the central fact of how AirBNB is shoving mammoth risks on HOSTS. The case law was about discrimination to guests, bookings that went bad, yadda yadda. I was prepared to hit these precedents head-on (because this was in the MAMMOTH 130-page Opposition that AirBNB filed against my appeal), but never got the chance before the judge ruled. I kind of cajoled him into letting me talk after he ruled, noting with a joke that “Hey you can’t disbar me,” when he said smiling he didn’t really have to listen. He finally gave up, “I guess you are going to go ahead anyway.” So he heard my little protest on the craptacularity of the precedents AirBNB bought up…

The judge was very nice to let me know that I can file a motion to reconsider with him, and also an appeal to the State Court, so I will look at these options. “Never say die,” my motto.

I WILL SAY THIS re TAKEAWAYS:

  1. There is a legal concept of an “unenforceable contract” due to unfairness and lack of bargaining power. If the AirBNB contract with hosts isn’t an example of this, then nothing is. The judge pointed to a bunch of Md. case law indicating decisions that found contracts were enforceable even though one of the parties had no choice. I just plain don’t follow this. It’s like there is state/federal law out there on contracts, but the judges somehow find it not valid. ANY ATTNYS that can explain this situation??

  2. If myself or another host can’t get the AirBNB contract for non-E.U. members closer to the E.U. contract, be aware please of this:

You may not be reading closely Section 15 of the ToS (“we can throw you out if we feel like it”) and Section 17 (“we owe you nothing”), but you’d better start. We outside the E.U. are up the proverbial creek without a paddle if ANYTHING happens in terms of delisting. And as I told the judge, getting delisted is a numbers game – it will happen sooner or later due to a squirrelly guest.

  1. Conclusions (unless a second appeal gets any traction):

a) Our relationship with the AirBNB platform and ability to stay listed hangs always by a thread.
b) if you get delisted (NOTE: this refers to the U.S.), you can sue AirBNB (not in Small Claims, which is money only) but in Circuit Court (or whatever is your higher court) where you can ask for a court ruling to get reinstated. AirBNB will probably raise its sleepy, uncooperative, disinterested head up and let you back on the platform, that is, if you care at that point.
c) If you want damages, for defamation or destruction of property, go after the guest, the guest, the guest, the guest.

I’ll follow with one of my motions rejected by the judge and I kinda get why due to case law but it still doesn’t make sense to me as a lay person.

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Thanks for the update. I don’t think the US is close to going the EU route (too “socialist” for 'merica) on contracts. I’m thankful that I’m not dependent on Airbnb for income. If they shut me down or I shut myself down and need the money I’ll just go back to the room mate situation I had for years.

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Thanks for the update. I don’t think the US is close to going the EU route (too “socialist” for 'merica) on contracts. I’m thankful that I’m not dependent on Airbnb for income. If they shut me down or I shut myself down and need the money I’ll just go back to the room mate situation I had for years.

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Thanks @KKC. I of course think you are correct, and I’m not sure I’m in the most pro-small business state to gain traction, either.

Note to all: The appeal of my case against the GUEST, which I won and the GUEST appealed, should be heard in a month. That remains an interesting option.

This is one of the motions I filed. If anyone needs access to all the motions and counter-motions here from the beginning, I can get them online for inspection.

PUPPY LOVER, Appellant, representing herself, respectfully opposes the Appellee’s [AirBNB’s] Motion to Dismiss and Motion to Compel Arbitration. Given the time constraints imposed by the trial date presently scheduled for May 10, 2019, Appellant [PUPPY LOVER] presents the following brief response in support of her opposition to the Appellee’s motions, on which the Appellant is prepared to expand via supplemental and/or amended response if so permitted or requested by this Court:

  1. The Appellee’s motion to dismiss and motion to compel arbitration, in an attempt to absolve the Appellee of all liability in this case for its wanton actions, rely on the Terms of Service (TOS) of AirBNB’s contract. As the TOS constitute a one-sided and unjust waiver of rights that shocks the conscience of the impartial observer, the contract Appellee relies on in its motions is void and unenforceable in violation of public policy.

  2. In its Opposition, the Appellee relies on an unenforceable contract, as the Appellant hopes to demonstrate to the Court. Maryland and common law do not permit unconscionable contracts, as seen in this instance specifically as follows:
    (a) the unequal bargaining power between AirBNB and its hosts, who have not an iota of negotiating leverage;
    (b) the Appellee’s attempts via its Terms of Service to shift all risks of engaging in its short-term rental platform to hosts; and
    (c ) the Appellee’s absolving itself of liability for negligence. Further, Maryland and common law disallow exculpatory clauses in certain transactions, including any involving innkeepers as occur here, that are perceived to affect the public interest.

  3. Finally, in a compelling paradox, the Terms of Service so heavily referenced in the Appellee’s Response (pp. 2-25), rather than supporting an automatic decision in favor of the Appellee, on closer inspection achieve exactly the opposite. These Terms of Service go so far overboard in favoring the Appellee as to land squarely in realm of unfair, unconscionable and unenforceable. In fact, the European Union has forced the Appellee to provide a fairer contract in the EU, whereby hosts from Finland to the Mediterranean can in fact hold the Appellee responsible for negligence. If it pleases the Court, Maryland short-term rental hosts would appreciate having the same rights to fairness and due process as hosts in Europe.

WHEREFORE, the Appellant respectfully requests that the Appellee’s motion to dismiss be DENIED; and

WHEREFORE, the Appellant respectfully requests that the Appellee’s motion to compel arbitration be DENIED.

RESPECTFULLY SUBMITTED,
PUPPY LOVER

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Interesting drama, for sure. I only see airbnb, HomeAway, booking.com as a source of leads who once staying with me, are now a source of repeats and referrals for future bookings.

Especially when they get that a good 20% or so of the cost (host, guest) is removed from the equation. Buy local, small business, etc.

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Yes, a lead source is a good way to view the utility of Air, BDC, etc.

Add to the 15-20% in fees another 15% or so in hotel taxes/sales taxes, or whatever the local figures are, it means that prospective guests are going to more and more, book just the first two days of a mid-term rental with a host and then go into a direct invoice or lease.

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Hopefully it will be available.

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PuppyLover, just again what to congratulate you on your actions and resilience and thank you for the update.

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As a sometime pro se litigant myself, I think you’ve done a pretty good job for a non-lawyer.

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As much as I admire your determination and grit unfortunately or fortunately a legal contract, such as we have with ABB, in the US is legal. Using the idea that it should follow the same laws as the EU is not a defensible reason for the contract to be deemed invalid. Unless you can prove within the law of the U.S. that the contract is illegal you will be fighting a loosing battle. If you are wanting to continue to fight then you will need to find US court decisions that are more in your favor. It follows on the same basis that a landlord can end their association with a tenant w/o reason or cause at the end of their lease.

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Thanks. I looked yesterday at examples of cases where indeed contracts had been found unconscionable, and they indeed seemed to go past AirBNB’s contract into the realm of trickery and deceit to “lure” an unsuspecting party into signing a contract with terms that were more onerous by a huge factor than other similar contracts for whatever the deal was (800% for a car loan, hypothetical). Whereas the Air contract is one-sided but presumably comparable to other one-sided contracts.

One thing (oh wait, four things!) I am extremely, extremely displeased with is, that the AirBNB attorney did the following:

ONE – AirBNB’s STATEMENT OF FACTS IS A HOT MESS
In AirBNB’s Opposition filing, it distorted the case facts IMO beyond recognition, in ways large and small. Hopefully the judge saw thru this, since he zeroed in on the contract to the exclusion of everything else. However, if he didn’t, he missed that that was lack of due process here that indeed shocks the conscience. Here are some examples, I’ll see if I can attach the pages so folks can see what I mean:

• Air stated that safety was of paramount concern, hence my delisting. ITS OPPOSITION PAPER SAYS THE GUEST WAS STAYING IN MY LISTING AT TIME OF REPORT. I pointed out that the guest didn’t file her report until she had been home in Massachusetts for three days, and as we know, hadn’t left early. Then AirBNB didn’t contact me for six more days. THEN it waited to delist me until AFTER the Moonrise Festival (biggest tourist event we have), when it raked in fees from the most lucrative two-day bookings I’ve ever had. Safety, schmafety. 14 days from guest report to delisting, no safety concerns ever reported by 650 guests before and after this guest.

  • NEXT AIRBNB STATES that it contacted me, and then WENT BACK TO THE GUEST after I said I didn’t have any weapons. SO from this statement, and the guest’s lamentations on AirBNB Hell, we have the following scenario: She goes home to Massachusetts. She calls AirBNB. They coach her into filing her defamatory review. AirBNB sends a vague templated note to me, noting (this is important), stating it had received a report of an “UNSECURED WEAPON” in my home. NOT a “FIREARM,” (rifle or pistol) and NOT a “9 mm handgun,” in which case I could have deduced that my rubber training pistol was at issue. I’m left grasping at air as to whether my sewing scissors or baseball bats were being construed as “weapons.” Anything under the sun can be a weapon!! THEN AIRBNB GOES BACK TO THE GUEST, after 1 vague email to me, to GET MORE INFORMATION!! Not to me to explain what the hell was going on. The guest we can presume said, OH NO SHE’s GOT A 9mm. And AirBNB could not confirm at our March hearing that she sent any photos, so, so much for evidence or their “investigation.”

  • Get a load of this wagon of horse manure:

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So, what’s left out of this picture?? 1. AIRBNB TOLD ME ITS DECISION WAS FINAL and WOULD NOT BE REVIEWED. ON THREE OCCASIONS – Aug. 14, Dec. 3 (two months after my photos were sent in), and again Dec. 5. So apparently I was supposed to read into “OUR DECISION IS FINAL, AND WE ARE NOT ENGAGING IN ANY MORE DISCUSSION” as, "COME BACK FOR MORE ABUSE by FUTILE efforts to send in evidence. As this forum knows, I spent TWO MONTHS asking the guest for help. Hit a brick wall of silence. And yes, when I returned to AirBNB just to get this on the record, I GOT TOLD AGAIN, 2x, YOUR ACCOUNT IS CLOSED, WE WILL NOT ENGAGE IN FURTHER DISCUSSION.

Note also the phrasing here: “Appelant claimed … her contention …” etc. We’ll come back to this.

Note to self: Potential for abuse here is staggering and not in the public interest, since any competitor can knock out another via a defamatory review. WRITE THIS to the judge.

Colossal irritating aside: I never “claimed the Guest had mistaken (a pistol) for a firearm),” I never even used the term “firearm” in any correspondence at any time. I asked the guest if she might have misunderstood an item she saw in the dog’s toy basket, and if so, would she kindly correct the record.

TWO – ON TOP OF BAD FACTS, PROPAGANDA WRITING
Clearly despite the fact everyone under Heaven, including all three Judges I’ve gone before so far, has ceded the fact that I did not have a weapon, and the guest’s review was thus defamatory … STILL the phrasing throughout spins the facts to always say the “guest reported a weapon” and “we gathered information and determined that a weapon was present” etc. And everything I SAY in my defense is spun as “my contention” and “the purported rubber toy.” And let’s take this further – this paper eventually comes around to the fact that I got reinstated because of “further review” of my photos, translation: a lawsuit. So we have a lovely internal contradiction here where AirBNB spins, spins, spins, spins the facts throughout pages 2, 3, 4 and 5, and then contradicts itself when it backs down by reinstatement. The significance of this is, poison fruit from the poison tree – its citation and setup of the legal precedents it leans on appear to be a similar spin job of ancillary lawsuits involving guests, bad rentals, and other relatively minor matters compared to destroying a business partner who lies at the absolute core of its business model, and this case, a business partner that should have had significant goodwill from testifying at the state and local levels on AirBNB legislation.

THREE – THE SET UP
AirBNB essentially set me up here. See above where it coaches the guest into a bad review, sends me a vague note, GOES BACK TO THE GUEST, DOESN’T CLARIFY SQUAT w. ME the SUPERHOST – next communication is delisting. Note to self: Clarify with judge that this goes above and beyond lack of due process and negligence, and whatever AirBNB ToS says in Sections 15 and 17 – it’s just gunning down a business partner who is doing exceptionally well.

FOUR – UNSEEMLY COOPERATION WITH GUEST’S ATTORNEY
Both attorneys, for AirBNB and the guest, are cooperating. I knew because the guest attorney told me so on the phone April 19, and further, it’s in a footnote in the AirBNB Opposition paper:

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Chr!st on a stick, what is going on here? A guest files a defamatory review – GUESS WHAT AIRBNB, THAT’S ILLEGAL! – and AirBNB mud slings on ME, who has been defamed, in its Opposition; does nothing to the guest, who is still busy reviewing her AirBNB stays right now (May 2019) (link to user profile), despite defaming a host; and gets busy having little chats with her attorney. For all I know, the AirBNB Hell posting by the guest saying she had to get her own attorney is a misdirection play and in fact AirBNB is paying her attorney.

And, there’s more, and I’ll just put it into an organized letter to the judge and at this point I don’t even care if it’s pretty and tied up in a bow in legalese.

tl;dr If a guest ever screws you over, AirBNB will gladly pile on.

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Another thing here is, this was supposed to be a “de novo” trial, i.e., complete do-over of the case. I actually think I didn’t even GET a de novo trial, because I had no opportunity to go over the case, to the extent that I didn’t even get to show the judge the dog’s toy basket with the rubber training pistol in it, which I had right on my plaintiff’s table in a cloth bag.

The judge, I’ll check the audio to confirm, seemed to treat the case more like an appeal, with statements like “I’m ready to rule on this,” and “I’m ready to rule on that,” so I could not even get to a refutation of the precedents (AT ALL except in my insistent little epilogue post ruling), let alone what happened, to show evidence, and to refute the AirBNB distortion of facts.

THAT might be something to hang my hat on, with my Motion for Reconsideration, if the audio supports what I remember going on.

(This court cases are very intense and emotionally and physically and mentally draining, not quite like anything I’ve done before. It’s a massive struggle to attempt this without a law degree, and going against attorneys, and really only having one’s grasp of the facts and the barest basics of how a trial runs to go on. Hence, I will have to check the audio to see if indeed my de novo trial kind of didn’t happen, at all. Post-trial, you kind of go into a blank mind of post-battle exhaustion. So memory is fallible. To the audio I go, once it is ready.)

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If you would like to post deets about your experience and advice, I am all ears.

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In defamation case, it wasn’t that you won it was that the “guest” defaulted by not showing up which is why the appeal. In defamation case both parties must be present and not just represented by an attorney.

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There is de novo appeal, de novo trail and a de novo hearing. It appears from your remarks you recvd a de novo hearing in which the information is presented before judge (and he has all the pertinent information prior to hearing the case) but will hear add’l testimony or remarks from both sides in order to possibly over rule the prior ruling.

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My reading (correct me if I’m wrong) is that the presiding judge rejected all three of the defendant’s attorney’s claims of qualified privilege (see YouTube: Taking Defamatory Review to AirBNB for Damages , cued to 14:29) – Judge says, “I don’t see any of those privileges applicable here.”

He also said earlier that the guest “snubbed” the court, not that she created a default by just sending counsel. In other words, my impression was, he was VERY VERY VERY displeased with her no-show, but still heard the arguments, and when he rejected the arguments, the merits, and then he added the “by default” part because the defendant herself wasn’t there and he was fried over that.

I don’t see anywhere that defendants “have” to show up for a defamation trial if they have counsel, can you point me to something on this? Not finding anything by searching.

Another thing I am wondering, I can’t imagine that her attorney (their firm specializes in defamation!!!) would have not known she had to attend if that was the case, her counsel was loaded with all his little arguments about qualified privilege in great detail and would I’m certain have known if his client had to attend to win.

That’s invaluable information re the different kinds of de novo hearings and trials. I thought for sure this was a de novo trial, and rechecking civil procedure, it sure looks to me that this was supposed to be a new trial, but it sure evolved into a “hearing,” if that. …

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I can only state from personal experience that when a case goes to default, according to our attorney, that one of the parties did not show up as required. As in defamation cases the judge needs to speak to the individual who wrote or said the actual words and not thru a third party “attorney”. Of course this is our local court system and would check with your local system.

It could be that the attorney advised the client to attend but they opted not to which in turn cause the case to be won/lost by default.

A trial de novo is usually ordered by an appellate court when the original trial fails to make a determination in a manner dictated by law.

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Just read your post, admire your sense of pride and principle as well as going after Airbnb legally, even in limited small claim court.
I have a situation that just happened to me about a 2 weeks ago, Airbnb has handled it horribly and I am looking for more input from anyone who has had a past negative experience with any court outcome.

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My actual title is carolrwphoto - if this can be corrected, that would be great.
I was a super host for nearly 3 years, 4.9 rating throughout, nearly always booked, with no negative reviews.
I was summarily kicked out of airbnb without any sort of reasonable due process and I am very upset about this. I want to appeal this and help others to not become victimized by the rigid “terms” airbnb uses without any humanity, regard for circumstances or reason. It’s appalling how I was treated, as well as the many guests who were booked, along with guests who were already staying here. The disrespect and ruthlessness with which this company treated me and my guests is beyond description or comprehension. How do I fight this and help others do the same? Are there any human beings in this company making decisions based on full due process, or is a mindless algorithm ultimately making final decisions based on rigid terms that take no account of circumstances?
Does anyone have suggestions?
Carol