Protecting Tenants Under Foreclosure Act does not provide for attorneys fees

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attorneys fees, foreclosure, motion to stay, protecting tenants under foreclosure act, PTFA, quash, writ

The MEEKS were tenants of a property that was foreclosed. A Certificate of Title was issued on December 17, 2013 to RYAN HENSON #10 LAND TRUST which filed a Motion for Writ of Possession on December 20, 2013.   MEEKS, filed an Emergency Motion to Quash the Writ of Possession on January 3, 2014.

The Court issued a Final Order Quashing Writ of Possession on January 28, 2014 holding that MEEKS were bona fide tenants in possession and must be given a ninety (90) notice to vacate the property pursuant to the PTFA. Thereafter, Tenants, MEEKS, filed a Motion to Determine Entitlement to Attorney’s Fees seeking attorney’s fees pursuant to §83.48, Florida Statutes.

The Court ruled that the Emergency Motion to Quash was not based upon enforcement of any provisions of the rental agreement. The Florida Residential Landlord and Tenant Act only allows for recovery of attorney’s fees by the prevailing party in a civil action brought to “enforce the provisions of the rental agreement or this part” [ Section 83.48, Florida Statutes] .

The Emergency Motion to Quash was based solely upon the PTFA. The court ruled that the PTFA does not provide for any award of attorney’s fees. The tenant’s motion for attorney’s fees was denied.

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CITIMORTGAGE, INC., vs. LUTZ, et al,. Circuit Court, 7th Judicial Circuit in and for Volusia County. Case No. 2009 35312 CICI, Division 31. April 7, 2014. Terence R. Perkins, Judge. 21 Fla. L. Weekly Supp. 647b

Court rules that e-mail satisfies statutory mailing requirement

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1.090(e), 83.57, e-mail, mailing, non-renewal of tenancy, notice, termination of tenancy

Tenant occupied landlord’s premises under an oral month to month lease. On February 13 landlord e-mailed tenant a 15 day notice of non-renewal effective March 1 pursuant to 83.57 F.S. When the tenant failed to vacate, landlord filed for eviction and tenant defended on the basis that 15 day notice had not been “mailed” to him. The trial court ruled that the e-mail transmitted by landlord to tenant and acknowledged by tenant through a return e-mail satisfied the requirement set forth in §83.57 Fla. Stat. of 15 days notice to vacate by “mailing or delivery of a true copy” of the notice as set forth in §83.56(4), Fla. Stat.

§83.56(4) F.S. specifies that delivery of written notices shall be by mailing or delivery of a true copy thereof, or, if the tenant is absent from the premises, by leaving a copy thereof at the residence.

The tenant appealed and the appellate court found that the term “e-mail” is considered to be a form of “mail,” and is included within the definition of “mail” in Black’s Law Dictionary, Eighth Ed. (Thomson West, 2004): “mail, n. … 3. One or more written or oral messages sent electronically (e.g., through e-mail or voicemail).” Id. at 972, citing Cases: Telecommunications [key no.] 461.15. C.J.S. Telegraphs, Telephones, Radio, and Television §221.]

Accordingly, the court held that e-mail constitutes a mailing sufficient to satisfy a statutory requirement of a mailing of written notice, whenever a contract or course of dealing between parties establishes e-mail as a permissible means of notice, or whenever it is shown that the recipient received actual and timely notice through e-mail which is substantially the same notice as would have been provided in a writing mailed through conventional means.

Editor’s Note: if a 3 Day Notice is “mailed,” the recipient is entitled to respond by mail. Rule 1.090(e), Florida Rules of Civil Procedure provides the recipient five additional days to accomplish the mailing, which should be added to the due date on the “3 Day Notice.”  See Post office box rule  and Post office box rule revised

HARARI, vs. WHITFORD. Circuit Court,15th Judicial Circuit (Appellate) in and for Palm Beach County. May 25, 2007. Appeal from the County Court in and for Palm Beach County, Judge James L. Martz. 14 Fla. L. Weekly Supp. 701a.

Appellate court rules addendum containing liquidates damages clause enforceable even if the provision is not in the lease.

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83.595, early termination, florida, LANDLORD, liquidated damages, TENANT

On June 20, 2014 the 5^th District Court of Appeals answered a question certified by the Brevard County Court as a matter of great public importance.

The query posed is: “[w]hether an addendum, providing for liquidated damages or an early termination fee, as provided in the rental agreement, in the form set forth in § 83.595(4), Fla. Stat., constitutes a valid, binding obligation, where the parties’ lease, in the form approved by the Florida Supreme Court and The Florida Bar, omits any reference to liquidated damages or an early termination fee.”

The county court answered “No,” concluding that a liquidated damages clause has to be in both the lease and the addendum.

The appellate court rejected this and stated that “the law is well established that two or more documents executed by the same parties, at or near the same time, and concerning the same transaction or subject matter are generally construed together as a single contract.” “This rule bears the moniker “contemporaneous instrument rule.”

The appellate court expressed its belief that the addendum was signed at the same time as the lease and also noted that it was described as “page 7 of 7” of the lease.

The appellate court held that “when a tenant and the landlord execute an addendum choosing the remedy of liquidated damages or an early termination fee pursuant to section 83.595, the remedy is enforceable if the addendum is executed at the same time as the lease (which does not make provision for the remedy) as part of the same transaction.”

RAISSA WILSON, Appellant,v. WILLIAM TERWILLINGER, Appellee.  Case No. 5D13-1478 DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT. Opinion filed June 20, 2014

Liquidated Damages clause enforced in real estate contract providing for choice of remedies

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"Lefemine v. Baron", choice of remedies, florida, forfeiture, liquidated damages, specific performance

The Florida 3^rd District Court of Appeals (Dade) appears to have departed from the rule that a seller can not keep the buyer’s deposit for breach if the contract also gives him the remedy of specific performance.

Fraud Alert: forged deeds on REO properties

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foreclosure, forged deed, fraud, minimum documentary stamps, reo

Attorneys Title Fund Services LLC  reports in the May 2014 issue of “The Fund Concept”  that  there is a spate of forged deeds on REO properties.  These are foreclosed bank owned properties that have been sitting vacant for months or even years.   The scheme is that the fraudster will forge a deed from the bank  to himself.   Then the fraudster will contract to sell the property at a bargain price.

Red Flags on the grantor’s deed:

Minimum documentary stamps on the fraudsters deed.   Florida taxes deeds at $0.70  per $100 of sales price.  This tax is printed on the deed with the recording information.  If the tax paid is $0.70,  then the sales price was $100  or less.  In a real REO sale by a bank full documentary stamps would be paid.

The deed is handwritten.

The deed does not show the scrivener (person who prepared the deed)  in the top left corner,  or shows the grantee is the scrivener.   A bank would never have the buyer prepare the deed.

The grantor bank is out of state,  but the deed was notarized in Florida

Red Flags in your transaction:

There is no realtor.

The seller has no documentation of his purchase other than the recorded deed. i.e.  no owner’s title insurance policy, no settlement statement,  etc.

You are dealing with a middleman other than the record title holder.