Florida-Attorney fees for defendant time

[Unregistered]

Re: Florida-Attorney fees for defendant time

What transpired at your court hearing?

When does/did you lease end? Has it ended yet? It's odd she's saying you don't have a lease when you clearly do. Did you bring the lease to the court hearing?

Interested to find out how this all turned out.

[notnixx13]

Re: Florida-Attorney fees for defendant time

I am quite certain she said there was no lease because she could then give written notice to quit anytime she wanted, at least here in Florida. In this case though it is retaliatory because previously I had sent LL certified letter to cure and she then sent letter to quit which stated she made repairs and that I had broken lease. Obviously, if you are following this post, you know the city code enforcement officials are now involved and their report agrees with my complaints. Anyways she would be able to simply terminate my tenancy if this was a month to month situation but by trying to BS a judge when I have the lease I don't think will go well for her.

My lease expires 9/1 and I will definitely report the outcome.

Thanks to everyone who contributed. I am not an attorney but I think I have what I need to prevail. I will add a major caveat. Unless, you are sure you are not only right but able to clearly and precisely prove that, get an attorney. I know I could still lose. I just can't believe that someone would really try to bluff on something so important. I can only believe that she thought I would back out of the trial and bolt.

Now, no matter what, she will have to spend far more money to fix the place well enough to please the inspectors than if she had made just a minor effort to please me and shown the slightest bit of compassion.

I will post again Monday after court.

[notnixx13]

Re: Florida-Attorney fees for defendant time

Judge acted as if he weren't listening at all. Seemed to be distracted. Delayed decision for a couple days. Depending on what I hear for decision is how I feel. Just a little bewildered now.

[notnixx13]

Re: Florida-Attorney fees for defendant time

I am filing a motion to set aside the judge's ruling, based on arguments I wrote before. The judge said he had read them before the hearing and I believed him. But this time if hearing is granted I will spell it out for him if it takes all day.

[Unregistered]

Re: Florida-Attorney fees for defendant time

Care to elucidate on what the decision was?

The courts decide how long a case goes, not the plaintiff or the defendant. So be prepared to only have so much time to make it clear to the judge.

[Unregistered]

Re: Florida-Attorney fees for defendant time

I am filing a motion to set aside the judge's ruling, based on arguments I wrote before. The judge said he had read them before the hearing and I believed him. But this time if hearing is granted I will spell it out for him if it takes all day.

What were the reasons/rulings in the Judges final judgment order?

Hopefully you will file your Motion for Relief from Judgment or Order within 10 days of the date the Judge signed the Judgment Order.

Fla. R. Civ. P. 1.530 governs Motions for New Trial and Rehearing; Amendments of Judgments, any of these motions need to be filed within 10 days of Judgment.

Fla. R. Civ. P. 1.540 governs Relief from Judgment, Decrees, or Orders. This motion can be filed up to a year after judgment has been entered. Usually for clerical mistakes, inadvertence, excusable neglect, newly discovered evidence, fraud upon the court, etc.

These motions do not toll the time for appeal. You still have the same amount of time to appeal from the date of the order...30 days.

So if you do file any of the above motions and the court denies same, I presume you could file a motion to stay eviction pending appeal, but not sure if that would apply in a eviction case. If someone has any knowledge of that situation feel free to chime in. You may have to move if the court denies any of the above motions and do your fighting/appealing from another rental.

Also once a eviction has been granted isn't it just a number of days before the eviction actually takes place?

Was it a final Order?, or non final Order?

[notnixx13]

Re: Florida-Attorney fees for defendant time

I am moving even though the writ of possession has not been issued. I really just want to tell the judge what think of him. He gave no reason, cited no laws or facts of law in his order. I spoke to an attorney who had been before him and he said the guy is basically sleepwalking. He is a retired judge filling in for another sitting judge and he just isn't there and it is apparently common knowledge.

Thanks for your comments and everyone else who chipped in. It was a learning experience.

NIck

[notnixx13]

Re: Florida-Attorney fees for defendant time

By the way I already filed.

[Unregistered]

Re: Florida-Attorney fees for defendant time

1] The 3-day notice was given to me with my eviction summons on 12/11/2009. Even though the removal of tenant notice stated it was posted on the fourth of December and because of a weekend the 3 day period had not passed until the 9th. I still did not receive it until the 11th.

2] The landlord did not sign the notice. There is a signature but it is not hers. I have a notarized letter from her and it is obviously not her signature on the notice I received.

3] Furthermore, the amount due is incorrect if I have read the law right. She states December rent is due and owing but on the lease it specifically states that rent mailed is not due until the 5th of the month. This is not called a grace period. She lives in New York and I am in Florida. My rent is mailed if it is sent. Using that reasoning my rent was not due until the 6th of December therefore the note was defective even if delivered.

The real reason for all the problems is I gave LL notice that I had health and safety issues because the landlord refuses to take responsibility for maintenance and continues to lie about same. I got fed up and sent her a notice to cure. She has not even acknowledged there is a problem. It will probably be simple that this is retaliatory eviction. Are there damages available if that is the case?

There is a "survivors trust" that legally owns the property. She may own the trust but I have been unable to find a registration in Florida. However, she filed the eviction with herself as the only party to the eviction and the same with the removal of tenant notice. She doesn't do anything in the name of the trust or as owner of same. I contend she doesn't own the property which makes notice defective.

Is that defective enough?

Even though the OP has already had his day in court, he states the notice was given to him along with the eviction complaint at the same time, most likely by the Court and served by a process server or deputy.

It appears the 3 day notice allegedly was posted on the 4th of December, whether it actually was or not is another issue. As the OP had no real proof of WHEN OR IF the notice was actually posted. It appears that the OP received the complaint and the notice together from the court itself. And therefore his argument that he assumed he had a defective notice because they were received together. But he had no proof that the notice was not actually posted on the 4th. If he had proof that the notice was not posted on the day alleged, then I am sure the Judge would have ruled in his favor on that part as defective notice.

As to the OP's paragraph 3, it appears he is on the right track, in that he states: "the lease specifically provides for the rent to be due on the 5th of each month". Which makes sense as 5 days is the usual mailing time allowed by courts for paperwork. The LL claims she posted her notice on Friday Dec. 4th...correct?...YES.

If the LL posted her notice as she states on Dec. 4th, the notice is defective, as the rent was not due until Sat., Dec. 5th pursuant to the lease agreement.

Since the rent was not yet due, the LL was NOT entitled to demand it from the tenant in a 3 day notice, until the 6th of Dec. So I would have to agree with the OP on this, as that is what he has stated above.

Florida Statutes Section 83.56 [3] states that the 3 day notice to pay rent can only be given when the rent is in default. The rent would be in default on the 6th, and not the 4th, when the LL posted the 3 day notice. Therefore, the 3 day notice was defective and as a result the rental agreement was not terminated.

Florida Statutes Section 83.59 [1] requires that the rental agreement be terminated BEFORE an eviction action may be filed. Therefore the LL was not entitled to file the eviction action.

As the LL had no right to file the action, the court also had no right to grant the LL any relief. Therefore the court can not require the tenant to post rent in the court registry, or enter a DEFAULT against the tenant for failure to so post, or even for failure to file an answer.

A statutory cause of action can not be commenced until the Plaintiff has complied with all the conditions precedent.

It appears to me the LL posted her notice two days early by her own admission on the notice itself. I would argue this at the hearing assuming the Judge grants the OP's Motion to Set Aside. If the Judge denies OP's motion, then he has the option of arguing this on appeal, as he states he argued this to the Judge at the hearing. Hopefully he argued this in his paperwork as well. I believe as a matter of law the OP was entitled to Judgment based on a defective 3-day notice. This appears to me to be reversible error.

This part may be to late for the OP, but the OP states his LL had a agent serve the 3 day notice. As such the Fair Debt Collection Practices Act requires that because an agent of the LL served the 3 day notice and not the LL. The LL's agent who posted the 3 day notice, was acting as a debt collector, and therefore subject to the Federal Fair Debt Collection Practices Act and must send a specific notice demand letter: 15 U.S.C. SECTION 1601 [AS AMENDED] NOTICE. This notice gives the debtor 30 days to dispute the claim. Therefore the Court in the case cite below, ruled that the LL violated the Fair Debt Collections Act by filing the eviction suit before the 30 day validation period because he used a debt collector, his atty., to serve the 3 day notice. The case cite for this is: Sailboat Bend Properties v. Larry Wyant, 04-16677 COCE, County Court for Broward County, Florida.
This paragraph means a LL has to serve the 3 day notice themselves or be subject to the Fair Debt Collection Practices Act.

I never heard of this, but good to know. Maybe the OP can argue this as well at the hearing, if the Judge grants his motion to set aside Judgment.

[Unregistered]

Re: Florida-Attorney fees for defendant time

Even though the OP has already had his day in court, he states the notice was given to him along with the eviction complaint at the same time, most likely by the Court and served by a process server or deputy.

It appears the 3 day notice allegedly was posted on the 4th of December, whether it actually was or not is another issue. As the OP had no real proof of WHEN OR IF the notice was actually posted. It appears that the OP received the complaint and the notice together from the court itself. And therefore his argument that he assumed he had a defective notice because they were received together. But he had no proof that the notice was not actually posted on the 4th. If he had proof that the notice was not posted on the day alleged, then I am sure the Judge would have ruled in his favor on that part as defective notice.

As to the OP's paragraph 3, it appears he is on the right track, in that he states: "the lease specifically provides for the rent to be due on the 5th of each month". Which makes sense as 5 days is the usual mailing time allowed by courts for paperwork. The LL claims she posted her notice on Friday Dec. 4th...correct?...YES.

If the LL posted her notice as she states on Dec. 4th, the notice is defective, as the rent was not due until Sat., Dec. 5th pursuant to the lease agreement.

Since the rent was not yet due, the LL was NOT entitled to demand it from the tenant in a 3 day notice, until the 6th of Dec. So I would have to agree with the OP on this, as that is what he has stated above.

Florida Statutes Section 83.56 [3] states that the 3 day notice to pay rent can only be given when the rent is in default. The rent would be in default on the 6th, and not the 4th, when the LL posted the 3 day notice. Therefore, the 3 day notice was defective and as a result the rental agreement was not terminated.

Florida Statutes Section 83.59 [1] requires that the rental agreement be terminated BEFORE an eviction action may be filed. Therefore the LL was not entitled to file the eviction action.

As the LL had no right to file the action, the court also had no right to grant the LL any relief. Therefore the court can not require the tenant to post rent in the court registry, or enter a DEFAULT against the tenant for failure to so post, or even for failure to file an answer.

A statutory cause of action can not be commenced until the Plaintiff has complied with all the conditions precedent.

It appears to me the LL posted her notice two days early by her own admission on the notice itself. I would argue this at the hearing assuming the Judge grants the OP's Motion to Set Aside. If the Judge denies OP's motion, then he has the option of arguing this on appeal, as he states he argued this to the Judge at the hearing. Hopefully he argued this in his paperwork as well. I believe as a matter of law the OP was entitled to Judgment based on a defective 3-day notice. This appears to me to be reversible error.

This part may be to late for the OP, but the OP states his LL had a agent serve the 3 day notice. As such the Fair Debt Collection Practices Act requires that because an agent of the LL served the 3 day notice and not the LL. The LL's agent who posted the 3 day notice, was acting as a debt collector, and therefore subject to the Federal Fair Debt Collection Practices Act and must send a specific notice demand letter: 15 U.S.C. SECTION 1601 [AS AMENDED] NOTICE. This notice gives the debtor 30 days to dispute the claim. Therefore the Court in the case cite below, ruled that the LL violated the Fair Debt Collections Act by filing the eviction suit before the 30 day validation period because he used a debt collector, his atty., to serve the 3 day notice. The case cite for this is: Sailboat Bend Properties v. Larry Wyant, 04-16677 COCE, County Court for Broward County, Florida.
This paragraph means a LL has to serve the 3 day notice themselves or be subject to the Fair Debt Collection Practices Act.

I never heard of this, but good to know. Maybe the OP can argue this as well at the hearing, if the Judge grants his motion to set aside Judgment.

Also might add that a Motion to Dismiss would have helped your argument on the defective 3 day notice. Gives the Judge something to hang his hat on. Might as well try filing it, the Court may reconsider, or can only deny it worse case scenario.

[Unregistered]

Re: Florida-Attorney fees for defendant time

While the poster wrote that the rent was not due until the 5th, this may be mistaken. Many tenants mistake a grace period (for late fees) with a due date (for the rent). If the 5th was a grace period (for the late fees only), the rent was technically due on the 1st, late on the 2nd, and the date of 5th only concerns when late fees are due. Late fee dates (grace periods) have nothing to due with when rent is due. They only apply to when late fees are due, not the rent. The lease itself specifies when the rent is due. (Typically this is written, "Rent is due on the 1st, but tenant has a 5 day grace period. If rent is paid before the 5th, late fees will not apply.") Tenants mistakenly think that if they pay within a grace period that their rent is not late. This is NOT true. The rent is still late, they have just paid before the late fees kicked in. A LL may file for eviction at any time after the rent is due and late, even if a grace period for the fees is not expired. *IF* this is the case, the LL's notice on the 4th would be proper. The rent would have been "DUE" on the 1st. Since the judge ruled against the tenant, it would appear that this is the case. The poster states that the writ of possession has not yet been issued. That is because he has appealed the decision. But the ruling of an eviction has already been made and is part of the public record.

[Unregistered]

Re: Florida-Attorney fees for defendant time

While the poster wrote that the rent was not due until the 5th, this may be mistaken. Many tenants mistake a grace period (for late fees) with a due date (for the rent). If the 5th was a grace period (for the late fees only), the rent was technically due on the 1st, late on the 2nd, and the date of 5th only concerns when late fees are due. Late fee dates (grace periods) have nothing to due with when rent is due. They only apply to when late fees are due, not the rent. The lease itself specifies when the rent is due. (Typically this is written, "Rent is due on the 1st, but tenant has a 5 day grace period. If rent is paid before the 5th, late fees will not apply.") Tenants mistakenly think that if they pay within a grace period that their rent is not late. This is NOT true. The rent is still late, they have just paid before the late fees kicked in. A LL may file for eviction at any time after the rent is due and late, even if a grace period for the fees is not expired. *IF* this is the case, the LL's notice on the 4th would be proper. The rent would have been "DUE" on the 1st. Since the judge ruled against the tenant, it would appear that this is the case. The poster states that the writ of possession has not yet been issued. That is because he has appealed the decision. But the ruling of an eviction has already been made and is part of the public record.

The OP may be mistaken, only he knows that, but he clearly stated in his post that: "the lease specifically states the rent if mailed is due on the 5th." Courts routinely allow 5 days for mailing paperwork.

Only the OP can see and read the lease, we can only presume that what he states is true.

Some tenants may also be on some type of disability or some kind of state or federal aid, where electronic monthly payments are deposited into their bank account on the 1st of each month, and therefore can't make a withdrawal and forward a check, until after a deposit is made on the 1st.

The LL according to the lease,was required to wait until the 5 day mailing period ended, ["if mailed"] before posting her 3 day notice.

Keep in mind the LL lives in NY, the tenant is in Fla., 5 days for mailing is reasonable.
The bottom line is her 3 day notice is still premature as she posted same on the 4th. She had to wait until the 6th before posting the 3 day notice, otherwise the notice is defective.
If the notice is defective the tenancy was not terminated, if the rental agreement has not been lawfully terminated, the LL is not entitled to file for eviction.

From what I recall the OP posted the rent with the court registry, not to the LL. As they had a dispute over repairs to the rental. We don't know on what date the OP posted his rent with the court? Even IF he posted it late, he was not required to do so, as the 3 day notice was defective.
We don't know on what date the LL filed her complaint. Does not matter anyway, as her notice was defective.
We have not seen the LL's 3 day notice. Again does not matter, as the notice was defective.

Again irregardless, the LL was required to wait until the 6th of Dec., according to the OP and his lease, before posting her 3 day notice.

You yourself said it, the late fees have nothing to do with the rent or the 3 day notice.

You ass-u-me this is why the Judge ruled, you may be correct. If this is so, I would appeal it.
I think that the OP had the correct argument as far as the defective 3 day notice goes. But argued in the wrong context, in that he should have filed a Motion to Dismiss, with prejudice, the eviction complaint based on a defective 3 day notice, as his response to the complaint. I believe had he done that, he would have been in a better position to get the complaint dismissed.

Even the OP does not know what or why the Judge ruled the way he did? So WE can only assume why the Judge ruled the way he did?

There is no record of the OP appealing anything. The OP stated he filed a motion to set aside the Judges ruling. He may be indirectly appealing to the judge for another bite at the apple, but not an appeal...yet.

The writ had not issued yet because he just got the ruling, and it takes a few days or so for the court to do the paperwork on the writ to issue. Whether his motion to set aside the judges ruling would stay the writ until the judge rules on the motion is another question? Anyone got an answer?

Only the OP can clarify those issues for us, but I'm sure he has his hands full trying to find, and move to a new place at the present time.

Your points on the late fees are well taken though, good points.

[notnixx13]

Re: Florida-Attorney fees for defendant time

Should I also file a motion to dismiss because of defective notice now that hearing is passed or wait for new hearing?

The lease specifically states,"rent paid by mail is due on the 5th." The landlord did not post or personally sign 3-day notice. It was done in Florida and she lives in NY. Same with eviction complaint. She did not sign it for court and paper I got was not notarized. I told the judge all this and asked for testimony or proof from person who posted. Judge ignored request. I also told judge this was a retaliatory eviction. I complained and withheld rent legally because of well documented problems which the landlord, in writing and in telephonic hearing to judge , states she could not afford. LL sent letter telling me to leave if I was not paying rent. When I did not move she served me with eviction complaint. Letter to quit was before this and it said I had until 12/20 to move. All this was in written answer to court and I argued this in court. Judge did not listen or care. I have now moved but still want my $1600 back from that judge gave to LL. I also want my $800 dollar deposit and payment for $600 worth of repairs including materials I documented and took pictures of for court.

[Unregistered]

Re: Florida-Attorney fees for defendant time

Should I also file a motion to dismiss because of defective notice now that hearing is passed or wait for new hearing?

The lease specifically states,"rent paid by mail is due on the 5th." The landlord did not post or personally sign 3-day notice. It was done in Florida and she lives in NY.

Same with eviction complaint.
R. I would think the LL should sign the complaint to be valid.

She did not sign it for court and paper I got was not notarized.
Q. What paper are you referring to that was not notarized? The 3 day notice does not need to be notarized that I know of? The complaint does not have to be notarized either.

I told the judge all this and asked for testimony or proof from person who posted.
Q. Did you subpoena the person who posted the 3 day notice? The proof was the notice itself. If you wanted testimony from the person who posted, you should have subpoenaed this person. But what would you have gained by having her testify? What proof would you ask this person for?...his/her signature?
Q. Did you argue to the Judge that the 3 day notice was defective and how it was defective? That to me was your out right there. Motion to Dismiss complaint for defective notice...done deal. No further argument needed. You would probably still be there had you done so, or hired an atty. Hate to say it, but? The Judge may or may have not allowed the LL to refile her 3 day notice and complaint, but if he did it would have bought you more time to draft a counter claim for damages in case she did refile.

Judge ignored request.

I also told judge this was a retaliatory eviction.
Q. What did the Code Inspectors report say about your complaints with the apt.?

I complained and withheld rent legally because of well documented problems which the landlord, in writing and in telephonic hearing to judge , states she could not afford.
R.
Had you filed a counter claim the judge may have considered your damages. I was going to say before that a lot of home owners are having problems paying their mortgages with all the foreclosure stuff going on, the Judge might be sympathetic toward a LL these days. The Judge himself is probably a homeowner also. I would be thinking maybe the Judge just saw an impasse here, because the LL can't afford the repairs and you wanted the repairs done.

LL sent letter telling me to leave if I was not paying rent.
Q. Are you referring to the 3 day notice or Notice to Quit? When did she send this letter?
Q. You said you paid the rent into the registry in Dec., right?
R. LL can send notice to quit for breach of the lease such as: failure to make rent payment, making unauthorized repairs, etc. My guess is that she did not agree to the repairs you made correct? If you make any worthwhile claims do it in writing or don't do it. Otherwise the LL will claim no knowledge or deny any authorization, even though they know you are making the repair.

When I did not move she served me with eviction complaint.
Letter to quit was before this and it said I had until 12/20 to move. All this was in written answer to court and I argued this in court. Judge did not listen or care.
R. LL can file these papers, shows she notified you of her moves. Sounds like you argued her case for her.

I have now moved but still want my $1600 back from that judge gave to LL.
Q. I am not following this sentence. You want your $1600 back, what does the $1600 represent? After that I don't understand...back from that judge gave to LL? Can you clarify this? The judge awarded the LL $1600, is that what this says?

I also want my $800 dollar deposit and payment for $600 worth of repairs including materials I documented and took pictures of for court.

R. I'm not to clear on this, but I believe had you filed a counter claim for your damages, the Judge would have considered them at the hearing. Thats what a Judge asked my LL at a SD return hearing when he started to claim bogus damages. "Did you file a counter claim?" He did not. I got the SD back, plus costs.
Q. Did the LL authorize the repairs? Probably not is my guess. If so, you are SOL on that.

Q. Did the Judge rule on your Motion to Set Aside yet? If not, why not? If you got no response, did you call the Judges J.A. and ask if you need to set it for a hearing?

If the Judge sets aside his ruling, which I doubt he will. But if he does, and grants you a new hearing, then yes, file the Motion to Dismiss.

But quite honestly, this should have been done as your response to the complaint within 5 days of receiving same. But that is water over the dam now.

You could have also argued, it appears the Fair Debt Collection Practices Act stated below, assuming the Court grants your motion to set aside. Seeing that your LL had a agent post the 3 day notice for her and therefore you would be allowed 30 days to respond to the 3 day notice.

You can't make new arguments on appeal if you decide to appeal this decision.

I would need you to clarify the Judges ruling on the rent, and damages, if any, he granted to the LL.

If you want your SD back, there is a lot of info here in the forums on Fla. SD returns. Do a Google search for Fla. Stat. 83.49, that governs SD returns. But you have 15 days from the day you moved, to send the LL a certified letter RRR. Did you leave a forwarding address for the LL to return your SD? The LL has 15 days to return it to you. If the LL claims damages she has up to 30 days to send a certified letter stating her damages, costs, and any remaining balance. You then have up to 15 days from receipt of same to object to the LL withholding of your SD, and make another demand for its return via certified letter RRR. If she doesn't return it, file a SC action.
If you don't want the LL to know where you live get a P.O. Box.

I am just curious, but on what date did you post your rent with the court for the month of Dec.?

[Unregistered]

Re: Florida-Attorney fees for defendant time

It's unfortunate that even when someone is asking someone something politely, people respond with rudeness. It was unnecessary. On many, if not most forums, a new thread is required of each post.

With that said, I did go back and re-read the post and yes, I did read it wrong, so my apologies both to Notnixx13 and the unregistered who posted the next to most recent post.

As for the poster above mine, I'm happy I annoyed you. If you are annoyed by something as benign as a polite request, then you deserve to be annoyed. Happy to oblige.

Start a new thread with each post...? Yea right, there would be ten million threads...get a clue...you clueless tool. A polite rude request is more like it. The guy was just helping the OP.
You just side tracked the thread with your ignorance and rudeness, with your own question and one answer...cool...tool.