Where landlord voluntarily dismissed eviction and failed to pay resulting judgment for attorney’s fees, any subsequent eviction is stayed until the judgment is paid.

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attorneys fees, costs, florida, judgment, LANDLORD, stay, TENANT, voluntary dismissal

On January 9, 2012, Plaintiff filed a previous action to evict Defendant.   On January 23, 2012, Plaintiff voluntarily dismissed the Previous Action. On February 24, 2012, the court in the Previous Action entered a Final Judgment for Attorney’s Fees Against The Plaintiff, in which Defendant was awarded $3,100.00 in costs, including reasonable attorney’s fees.

3. Fla. R. Civ. P. 1.420(d) states:

“Costs in any action dismissed under this rule shall be assessed and judgment for costs entered in that action. If a state commences an action based upon or including the same claim against the same adverse party, the court shall make such order for the payment of costs of the claim previously dismissed as it may deem proper and shall stay the proceedings in the action until the party seeking affirmative relief has complied with the order.” (emphasis added).

It is well settled case law that Plaintiff is required to satisfy the judgment entered in a previous action before Plaintiff can continue to proceed with a new action. Estate of McGrail v. Rosas, 691 So.2d 50, (Fla. 4th DCA 1997) [22 Fla. L. Weekly D911b]; Bubani v. Rogers, 363 So.2d 181 (Fla. 4th DCA 1978); Gordon v. Warren Heating & Air Conditioning, Inc., 340 So.2d 1234 (Fla. 4th DCA 1976); see also Field v. Nelson, 380 So.2d 547 (Fla. 2d DCA 1980).

This Court has no discretion as is required to render an order prohibiting further action in this case until Plaintiff satisfies the Final Judgment for Attorney’s Fees Against The Plaintiff, John Chapman in the Previous Action and this Court is required to stay this action until Plaintiff complies with this order. Id.

JOHN CHAPMAN, Plaintiff, vs. LAUREN MCGAW, Defendant. County Court, 9th Judicial Circuit in and for Orange County, Civil Division. Case No. 2012-CC-002083-O, Division 72. March 14, 2012. Wilfredo Martinez, Judge. 19 Fla. L. Weekly Supp. 490d

Fair Debt Collection Practices Act does apply to 3 day notices from “debt collectors”

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15 usc 1601, 3 day notice, 30 day notice, debt, debt collector, Fair Debt Collection Practices Act, florida, rent

Summary:  A 3 Day Notice is subject to 30 day validation period under Fair Debt Collection Practices Act.

In the case of Sailboat Bend Properties v. Larry Wyant 04-16677 COCE, County Court for Broward County, Florida, [12 Fla. L. Weekly Supp. 258a]  the landlord’s attorney served a 3 day notice on the Defendant Tenant.  The tenant defended by claiming that since the 3-day notice was not served by the landlord, but by an agent of the landlord,  that agent was acting as a debt collector, and therefore subject to the Federal Fail Debt Collection Practices Act.  FDCPA requires that debt collectors send the following notice with all demands for payment:

 

FAIR DEBT COLLECTION PRACTICES ACT

15 U.S.C. SECTION 1601(AS AMENDED) NOTICE

1.         The amount of the debt is set forth above.

2.         The creditors to whom the debt is owed are:

 

3.         The debtor may dispute the validity of this debt, or any portion thereof, within 30 days of the receipt of this notice.  If the debtor fails to dispute the debt, the debt will be assumed valid by the creditor.

4.         If the debtor notifies the creditor’s lawyer in writing within 30 days of receipt of this notice that the debt, or any portion thereof is disputed, the creditors lawyer will obtain verification of the debt or a copy of a judgment and a copy of the verification will be mailed to debtor by the creditors’ attorney.

5.         If the creditor named herein is not the original creditor, and if the debtor makes a written request to the creditors’ attorney within 30 days of receipt of this notice, the name and address of the original creditor will be mailed to the debtor by creditors’ attorney.

6.         This communication is for the purposes of collecting a debt, and any information obtained from the debtor will be used for that purpose.

I hereby certify that a true copies hereof have been furnished to the above named addressee at the above noted addresses on, _________  by US Mail, postage prepaid

By: ______________________________________

The above notice gives the debtor, 30 days in which to dispute the claim.   Therefore the Court ruled that the landlord  violated the Fair Debt Collection Practices act by filing the eviction suit before the 30 day validation period because he used a debt collector,  his attorney,  to serve the 3 day notice!  [ see also Liliana Muniz vs. Edwin Collazo, case no.: 07-1847 COSO (62), Arlene Campos vs. Magalie Pittman-Star, Case No.: 06-00074 COCE (50) [13 Fla. L. Weekly Supp. 387a], Romea vs. Heiberger & Associates, U.S. District Court, S.D.N.Y. 97 Civ. 4681 (LAK) (December 23, 1997), Veronica Hairston and James Hairston vs. Whitehorn and Delman, 97 Civ. 3015 (JSM) U.S. Dist. Court, S.D.N.Y. 1998 U.S. Dist. Lexis 819 (January 30, 1998 filed), Codar vs. State of Arizona, 95 F. 3d 1156 (9th Cir. 1996).

The Court noted that the conflict can be avoided if the landlord herself signs and sends these letters to the tenants. The F.D.C.P.A. would not apply to such a landlord because she would not be collecting the debt of another, but rather her own debt. [Veronica Hairston and James Hairston vs. Whitehorn and Delman, 97 Civ. 3015 (JSM) U.S. Dist. Court, S.D.N.Y. 1998 U.S. Dist. Lexis 819 (January 30, 1998 filed)] Also, See Codar vs. State of Arizona, 95 F. 3d 1156 (9th Cir. 1996).

In Parkway North Apartments, Ltd., vs. McMillian (Lee County 2011, 18 Fla. L. Weekly Supp. 1192a)  The landlord issued a 3 day notice with a 3 day deadline and also a FDCPA 30 day deadline on it.  The court ruled that a notice with two different deadlines was confusing and therefore defective.

The moral of the story,  landlords have to serve 3-day notices themselves.

Broward turns up the heat on deadbeat banks

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abandoned, broward, foreclosure, lien, lori parish, maintenance, non-ad valorem, property, tax, vacant

Broward County is ground zero for foreclosures with an estimated fifty percent of all single family homes “under water”  according to Lori Parish, the Broward County Property Appraiser.   With Foreclosure cases  in Florida taking an average of two and a half years in court, and 688,000 foreclosure cases currently pending in Florida, there is a lot of vacant property.  Once a lender determines that they do not want ownership of a property, usually because it is in disrepair,  the lender instructs their attorneys to stop the foreclosure case and the law suit will just sit  on the court’s docket with no activity for years on end.  Until the case finishes and the court issues a deed to the property back to the bank,  the lender is not legally obligated to maintain the property.   As neither the bank nor the owner in foreclosure was willing to maintain the property,  put the burden on local cities to board up the houses and cut the grass at tax payer expense.  As the owner had already abandoned the home,  they did not care if the city filed a code enforcement lien against it for the maintenance costs.

It did not seem like there was a solution.

The Broward County Revenue Collector came up with a plan that forces the banks to pay for the maintenance the city is performing on these abandoned properties by converting the maintenance costs into  a non-ad valorem tax (user fee). The banks are forced in the tax bills to repay the city for maintaining these nuisance properties.   Mortgages that had escrows are required to pay the property taxes.   If property taxes are not paid,  then the County can foreclose themselves,  wiping out the mortgage, and giving a tax deed to a new owner.

In Broward, the cities of Hallandale Beach, West Park, Deerfield Beach, Lauderhill, Pembroke Pines, Sunrise and Tamarac have passed the necessary ordinances to participate in this program.   All others cities which desire to do this can enact the enabling ordinance this year to begin this lot maintenance/nuisance abatement tax as of 2013 in their cities.

Lender requirements to issue payoffs & satisfactions

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701.04, estoppel, florida, foreclosure, mortgage, note, payoff, request, satisfaction

Florida Statutes 701.04(1) requires a lender to issue a payoff letter (estoppel letter) within 14 days  and to issue a satisfaction of mortgage in 60 days.  If the lender does not do so,  you can sue them and recover court costs and attorney’s fees.  Here is a link to the statute http://www.flsenate.gov/Laws/Statutes/2011/701.04

The Florida legislature just amended this provision  to require that the request for a mortgage estoppel letter include a copy of the instrument showing title in the property or lawful authorization.  This change is effective January 1, 2013.

 

Error to grant summary judgment of foreclosure while discovery is outstanding

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assignment, defense. summary judgment, discovery, error, florida, foreclosure, mortgage, motion to compel, note, outstanding discovery, standing

DILCIA OSORTO, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for Natixis 2007-HE2, Appellee. 4th District. Case No. 4D10-3631. March 28, 2012.

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Roger B. Colton, Judge; L.T. Case No. 2008CA034095AW.

(Polen, J.) Appellant, Dilcia Osorto, appeals the trial court’s final order granting summary final judgment through a final judgment of foreclosure. We find in favor of Osorto and hold that the trial court granted summary judgment prematurely where there were outstanding discovery requests. As such, we reverse and remand for discovery to be completed.

What happens to your tenancy when a foreclosure has been filed against your landlord ?

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apartment, condominium, florida, foreclosure, LANDLORD, landlord in foreclosure, lease, protecting tenants in foreclosure, rental agreement, TENANT

If the landlord has not been paying the mortgage on the property you are renting, the mortgage company can file a lawsuit to have the property auctioned off to pay the loan.  This is called a foreclosure.

The lender will file a complaint in the Circuit Court of the County in which your property is located.

The lender will then issue a summons to all interested parties, including you, the tenant.

If someone came to your door and handed you or anyone in your household over 15 years old,  court papers, then you have been served.

Everyone served will have 20 days to respond to the court.

It does not count if they leave the papers at your door.

Once you have been served, the court has the authority to terminate your tenancy  at the end of the foreclosure.

As a tenant, if your lease began before the foreclosure was filed,  the lender has to let you live out your lease term.   If your lease started after the foreclosure was filed,  your lease will end when  the court auctions the leased premises off.  Foreclosure’s can take years to finish, and sometimes the lender looses the case. So dont panic !

How to check the status of the foreclosure

You need to keep track of the case so you will know well in advance when the foreclosure auction will happen.    You can check the status of the foreclosure on the Clerk of Court’s website.

In Broward that is   www.BrowardClerk.org

• Choose “online Services”
• Public Access Search
• Click here:  http://www.clerk-17th-flcourts.org/Clerkwebsite/BCCOC2/OdysseyPA/CaseSearch.aspx?SelectCourt=true&DisplayCitation=no&DisplayHearing=yes&DisplayType=Civil
• Party name:  type in the landlord’s name

A list of cases will come up.  Click on a case to see the “docket”    It will show you the 3 most recent events in the case.

Reference the foreclosure timeline below to see how far along your case is.

You can also try calling the Clerk at 954-831-5745 and tell them the case number which is on the upper right corner of the court papers.

FORECLOSURE TIMELINE

These are the steps in a foreclosure case so you can see how far along your foreclosure is:

1.   Complaint filed & summons issued.  Everyone has 20 days to respond to the court
2. Returns of service will be filed -  indicating the party was served or not served.
3. Publication:  the lender can publish a notice in the newspaper against those parties not personally served.
4. Affidavits filed:  in preparation for a motion for summary judgment the lender will file affidavits of costs and amounts due and owing
5. Motion for summary judgment
6. Notice of hearing (  must be no sooner than 20 days after the motion was filed and no sooner than five days before the hearing)
7. Hearing for Summary Judgment:  this is a 5 minute hearing based on the fact that no one has contested the foreclosure.  If the lender’s papers are in order the foreclosure will be granted and the Clerk of Court will set a “sale date”  on which the property will be auctioned off on the internet. The sale date is generally 6-8 weeks after the judgment.
8. Sale Date:  if the sale was not cancelled and the sale went through,  you will see the sale noted on the docket.   Your landlord no longer owns the property.
9. Certificate of title:  ten days ( or longer ) after the sale the court will issue a deed to the highest bidder at the sale called a “certificate of title.”
10. If the buyer is not the lender, but a 3^rd party who is going to move in themselves,  they can apply to the court for a “writ of possession”  to have the sheriff kick you out.   If the lender takes title,  it has to give you a 90 Day written notice to move,  before they can apply for a writ of possession.  The 90 days does not start until you get the notice.
11. If your lease started before the foreclosure was filed,   the buyer has to let you live out your lease.

People will tell you that you don’t have to pay the rent anymore if the landlord is in foreclosure.   That is not true.    The foreclosure does not legally affect your lease until the property is auctioned off.   If you don’t pay the rent,  the landlord can still evict you.

SECURITY DEPOSIT:   There is nothing that protects your security deposit in the event of a foreclosure.

CONDOMINIUMS

If you are renting a condominium there are a few other concerns.   First,  if the landlord has not been paying the condo dues,  the association can file their own foreclosure.   These foreclosures will move much faster, and generally will finish in less than a year.   The association will usually want to continue renting to you after they have foreclosed  your landlord.

The condo association also has the right to demand the rent directly from you, if the owner has not been paying the dues.   In this case,  the association has to give you a written demand, and they cannot make you pay them rent, that you have already paid the landlord.   Unfortunately for you,  the association will not be responsible for making any repairs.   Once the association has demanded the rent from you,  they  can evict you if you don’t pay them.  But if you have paid rent to the association, the landlord can no longer evict you for not paying that rent to him.

MULTI UNIT BUILDINGS

If  you are renting in a  building of more than four units,  it is considered commercial instead of residential.   In a commercial foreclosure,  the lender will usually try to seize the rent first thing, either by  a court order for you to pay them the rent directly, or by having the court appoint a “receiver”  to  take over management of the building from your landlord.

A landlord by any other name ….

Tags

83.43(3), 83.43(4), 83.43(7), agreement, definition, florida, LANDLORD, lease, relationship, rental, standing, TENANT

As Juliet observed “Tis but thy name that is my enemy …  What’s in a name? that which we call a rose By any other name would smell as sweet” From Shakespeare’s Romeo and Juliet

But as the court observed,  you can have a property owner and an occupant, but if you can’t call them landlord and tenant,  your eviction will be dismissed.

In KEN PHILLIPS AS TRUSTEE OF THE CALIFORNIA SHORT SALE SOLUTIONS TRUST C/O METRO CITY REALTY AND CONDOS INC, Plaintiff, vs. DONALD W. GRACE,  the plaintiff property owner attempted to evict  Donald Grace who was in possession of the property.   The plaintiff produced a lease between a Bill Murphy and the defendant that had expired two years ago.   There was no rental agreement as defined by § 83.43(7) between the  plaintiff and the defendant.    Without a rental agreement,  the court ruled that Grace was not a “tenant” as defined by § 84.43(4),  and plaintiff was not a “landlord” as defined by § 83.43(3), and therefore the remedy of eviction was not available. “A property owner may only bring an eviction action under § 83.59, Fla. Stat. when there is a landlord and tenant relationship between the parties.”

KEN PHILLIPS AS TRUSTEE OF THE CALIFORNIA SHORT SALE SOLUTIONS TRUST C/O METRO CITY REALTY AND CONDOS INC, Plaintiff, vs. DONALD W. GRACE, III, Defendant. County Court, 9th Judicial Circuit in and for Orange County, Civil Division. Case No. 2011-CC-019218-O, Division 72. February 24, 2012. Wilfredo Martinez, Judge. FLWSUPP 1906PHIL

Abandonment

Tags

715, 83.59, 83.67(5), abandoned, abandonment, agreement, florida, LANDLORD, lease, property, TENANT

Florida Statutes 83.59(c) provides that when the tenant has been absent from the premises without explanation for half of a rent payment period, and the rent is delinquent, the landlord may presume abandonment.   The disposition of the tenant’s personal property is governed by Chapter 715 of Florida Statutes which provides six single spaced pages of rules (see below).  Alternatively 83.67(5) provides

If provided in the rental agreement or a written agreement separate from the rental agreement, upon surrender or abandonment by the tenant, the landlord is not required to comply with s. 715.104 and is not liable or responsible for storage or disposition of the tenant’s personal property; if provided in the rental agreement, there must be printed or clearly stamped on such rental agreement a legend in substantially the following form:

BY SIGNING THIS RENTAL AGREEMENT, THE TENANT AGREES THAT UPON SURRENDER, ABANDONMENT, OR RECOVERY OF POSSESSION OF THE DWELLING UNIT DUE TO THE DEATH OF THE LAST REMAINING TENANT, AS PROVIDED BY CHAPTER 83, FLORIDA STATUTES, THE LANDLORD SHALL NOT BE LIABLE OR RESPONSIBLE FOR STORAGE OR DISPOSITION OF THE TENANT’S PERSONAL PROPERTY.

In the case of SHORTER HOME SOLUTIONS, LLC, Plaintiff, vs. TYRANCE KINGDOM, ( Broward County Court  2010), 17 Fla. L. Weekly Supp. 220a,  the tenant was on a one year lease terminating 8/31/09 and receiving housing assistance from the City of Fort Lauderdale.  The tenant stopped paying his portion of the rent in June, and in July he traveled to Mississippi without notifying the landlord.  The City of Fort Lauderdale terminated the rent assistance and did not pay August rent.   On August 20^th,  the landlord declared the property abandoned at  removed the tenant’s belongings to the curb,  which is where the tenant found them upon his return.   Thereupon they filed suit against each other.   The court consolidated the cases and ruled that the landlord was not required to file an eviction as the tenant had legally abandoned the premises by failing to notify the landlord he would return,  the rent being delinquent, and the tenant being absent past the 15^th of the month.   The court ruled that the landlord was thus entitled to remove the tenant’s belongings and  denied the tenant any relief for the loss of his property.  In fact,   the judge entered a money judgment against the tenant for the rent delinquency, costs, and fees.   As the tenant had posted the rent into the court registry in order to contest the case, those funds were disbursed to the landlord.

Following is Chapter 715 “Disposition of Personal Property Landlord and Tenant Act”

Liquidated Damages

Tags

83.575, 83.595, breach, damages, florida, LANDLORD, lease, liquidated damages, non-renewal, notice, real-estate, tenancy, TENANT, termination

The Florida Landlord – Tenant Statute contains two liquidated damages provisions  allowing the landlord an opportunity to impose liquidated damages on the tenant for early termination or for failure to give notice of intent not to renew the lease.

§83.595 (4)  was added to the statute in 2004 to allow the landlord to charge liquidated damages if a tenant breached the lease by vacating before the lease was up  (i.e. an “early termination fee”).  The fee may not be more than two months rent.   For early termination,  the landlord may not require the tenant to give notice of early termination more than sixty days  in advance.  The liquidated damages provision must be contained in a separately signed lease addendum containing a provision in substantially the following form:

☐ I agree, as provided in the rental agreement, to pay $  (an amount that does not exceed 2 months’ rent) as liquidated damages or an early termination fee if I elect to terminate the rental agreement, and the landlord waives the right to seek additional rent beyond the month in which the landlord retakes possession.

☐ I do not agree to liquidated damages or an early termination fee, and I acknowledge that the landlord may seek damages as provided by law.

 §83.575  was also added to the landlord tenant statute in 2004  allowing the landlord to require the tenant to provide up to 60 days notice of intent to vacate at the end of a rental agreement of fixed duration,  or face liquidated damages for failing to notify the landlord that the tenant is not renewing the lease.   The statute, however,  requires the landlord to first  provide the tenant a “reminder notice”  of the liquidated damages 15 days before the tenant’s notice period expires.

Otherwise,  if the tenant remains on the premises after the lease has expired the  tenant would be liable for the month in which they held over,  plus one extra month damages if it was WITH PERMISSION 836.575 (3),  or double rent per-diem under 83.58 if it was WITHOUT PERMISSION

Big Girls Don’t Cry

Tags

abandonment, accelerated, breach, default, early, florida, LANDLORD, late fee, rent, tenancy, TENANT, termination

Commercial tenant’s refusal to pay a $240.20 late fee ends up costing him $169,297.77 !