Announcement

Collapse
No announcement yet.

Florida-Attorney fees for defendant time

Collapse
X
  •  
  • Filter
  • Time
  • Show
Clear All
new posts

  • Guest's Avatar
    Guest replied
    Re: Florida-Attorney fees for defendant time

    Unregistered; It is very simple. The poster was asked to vacate properly.
    R. Was he? The notice was defective. He was vacated improperly.

    He failed to and didn't take any legal steps to stop any legal action against him (proper rent withholding). He was given notice of pending eviction. You claim the notice was faulty.
    R. It was.

    Obviously, the judge doesn't think it was.
    R. You don't know that? Were you there in the courtroom? Doesn't appear to me it was even argued.

    He asked to have the motion set aside (who knows what reasoning he used on that - maybe the defective notice?)
    R. He asked to have the Judgment set aside. Assuming too much.

    I don't think he has any merit on the defective notice issue.
    R. I don't think your assumptions have any merit?

    I don't think the notice was defective.
    R. You don't think period?

    I believe in the proper time because I think he isn't posting the entire lease clause about when rent is due (he only posted a clause about when the rent is paid by mail - but the OP didn't pay the rent by mail!)
    R. He said he did pay by mail. The landlord lived in another part of the state and his only option was to...pay by mail.

    Even if he appealed (again) to a higher court, by the time it was heard he would already have moved out.
    R. He moved out before this thread ended.

    The LL would simply show up at the courthouse and say the tenant was already out. The appeal would be dismissed.
    R. So that would be her appellate brief argument?...he already moved out?

    No higher court is going to waste their time to determine the legality of an eviction on a tenant who is already gone.
    R. Tell that to the Appellate Courts?

    They have much bigger fish to fry.
    R. So LL/Tenant appeals are not for Appellate Courts?

    Again, I must emphasize, lack of legal knowledge or ignorance about the law is not an excuse.
    R. Yea I agree, reread your posts? Most of the time, but I can attest to one Judge who would let one tenant of the hook for failing to comply with statutory law.

    The petitioner, if he is going to file and plead the case himself, is expected to know the law and the court procedures. If he does not, he should not be filing the case. He should be hiring an attorney to do this for him.
    R. Yes and no. If a person has no funds they wind up in places like this, and do the best they can with whatever knowledge they have and can gather. In this case and a lot of cases like this case, people wind up getting screwed because they don't fully understand the legal system. Florida is more landlord friendly, than tenant friendly. A LL can get eviction forms like a atty. would draft them already made up online. Finding tenant forms to defend are hard to find, and has to figure how to do it mostly himself, not easy.

    The schools need to start educating people about the law, so they can have at least a shot at winning in the Courts with cases like this.

    Leave a comment:


  • Guest's Avatar
    Guest replied
    Re: Florida-Attorney fees for defendant time

    It is very simple. The poster was asked to vacate properly. He failed to and didn't take any legal steps to stop any legal action against him (proper rent withholding). He was given notice of pending eviction. You claim the notice was faulty. Obviously, the judge doesn't think it was. He was evicted. He asked to have the motion set aside (who knows what reasoning he used on that - maybe the defective notice?) Again, the judge rules against him. I don't think he has any merit on the defective notice issue. I don't think the notice was defective. It was served to him. I believe in the proper time because I think he isn't posting the entire lease clause about when rent is due (he only posted a clause about when the rent is paid by mail - but the OP didn't pay the rent by mail!) Even if he appealed (again) to a higher court, by the time it was heard he would already have moved out. The LL would simply show up at the courthouse and say the tenant was already out. The appeal would be dismissed. No higher court is going to waste their time to determine the legality of an eviction on a tenant who is already gone. They have much bigger fish to fry.

    Again, I must emphasize, lack of legal knowledge or ignorance about the law is not an excuse. The petitioner, if he is going to file and plead the case himself, is expected to know the law and the court procedures. If he does not, he should not be filing the case. He should be hiring an attorney to do this for him.

    Leave a comment:


  • Guest's Avatar
    Guest replied
    Re: Florida-Attorney fees for defendant time

    Originally posted by Unregistered View Post
    Well, duh!!

    The poster already said in post #78 "Just found out the motion to set aside was denied. I do not have the papers but will go to courthouse and find out. One of the posters before got it right. I have no idea what the judge ruled on or what he based his decision on. I don't have the money to appeal and wouldn't know what to appeal. I guess I'm done for now. " He'd done. Why can't this thread be?
    It appears you have nothing to add to the thread, other than repeating what the OP has already posted, as well as your sarcasm...DUH!!

    It also appears you have no answers to the questions asked of you in #83, of your baseless assumptions you made in your most recent post.

    Your repeating the OP's post #78 have been answered and provided in #81 for the OP, basically a briefed argument for appeal for the OP's case. His choice to take advantage of it or not.

    If you want this thread to end, or better yet if you have nothing to constructively add, then stop posting.

    The OP should be the only one posting from this point on, as it is his decision to come back with further questions if he so chooses.

    I would also add that "its not that he failed to follow the law", its more that he did not have enough legal knowledge about procedure, etc. to allow the law to work for him in this case as pointed out in this thread and why he came here looking for answers. I know I did my best to provide those answers. I learned some things as well by doing my research. I wish him luck in the future and you as well.

    Leave a comment:


  • Guest's Avatar
    Guest replied
    Re: Florida-Attorney fees for defendant time

    Well, duh!!

    The poster already said in post #78 "Just found out the motion to set aside was denied. I do not have the papers but will go to courthouse and find out. One of the posters before got it right. I have no idea what the judge ruled on or what he based his decision on. I don't have the money to appeal and wouldn't know what to appeal. I guess I'm done for now. " He'd done. Why can't this thread be?

    Leave a comment:


  • Guest's Avatar
    Guest replied
    Re: Florida-Attorney fees for defendant time

    Originally posted by Unregistered View Post
    The OP already said he is no longer going to pursue the matter.

    The OP said "he doesn't know what to appeal?", now he does. And that he "guesses he is done for now"?

    If he had, I seriously doubt it would be reversed on appeal.

    Why? What is the basis of this statement?

    The judge ruled on the motions and facts of the case, and again on the motion to have that ruling set aside. The tenant lost both.

    That's true. We don't know the content of his answer or his motion to set aside or what arguments he made to the court? Do Judges make mistakes? Do Judges want to set aside their own their rulings or be reversed on appeal?

    I also doubt the notice was defective in nature.

    Why? In what way do you doubt that the notice was not defective? Reread the last post more carefully.

    If it had been, the case would have been thrown out at first hearing.

    I agree the case would have been thrown out at the first hearing, IF he pled his case more effectively. Reread the last post more carefully. And that would depend on the content of his answer, his argument at the hearing. Judges do rule incorrectly at times. That's why we have Appellate Courts.

    The fact is that the poster was asked to vacate, didn't vacate, didn't post the rent with the clerk as required, and basically failed to follow the law.

    True, true, true, and maybe true. But the fact is if you read the last post carefully, he wasn't required to vacate, he was not required to post his rent with the clerk as a matter of law, if you read the last post carefully. If he had a Atty. he would still be there, the case would have been dismissed for defective notice...reread the last post more carefully.

    The OP has been evicted and the eviction is now on record with the court history for every LL to see in the future.

    That's why I posted what I posted in the last post, it is there to help the OP to make a decision to appeal.

    The OP will face housing denials based on this.

    True it doesn't help matters, depends on the LL. Unless he appeals the Judgment. Which I believe he has a good shot at a reversal.

    Case over.
    If the OP chooses to not contest the Judgment, then the case will be over. That's his call, not yours.

    Leave a comment:


  • Guest's Avatar
    Guest replied
    Re: Florida-Attorney fees for defendant time

    The OP already said he is no longer going to pursue the matter. If he had, I seriously doubt it would be reversed on appeal.

    The judge ruled on the motions and facts of the case, and again on the motion to have that ruling set aside. The tenant lost both. I also doubt the notice was defective in nature. If it had been, the case would have been thrown out at first hearing.

    The fact is that the poster was asked to vacate, didn't vacate, didn't post the rent with the clerk as required, and basically failed to follow the law. The OP has been evicted and the eviction is now on record with the court history for every LL to see in the future. The OP will face housing denials based on this. Case over.

    Leave a comment:


  • Guest's Avatar
    Guest replied
    Re: Florida-Attorney fees for defendant time

    Originally posted by notnixx13 View Post
    Just found out the motion to set aside was denied. I do not have the papers but will go to courthouse and find out. One of the posters before got it right. I have no idea what the judge ruled on or what he based his decision on. I don't have the money to appeal and wouldn't know what to appeal. I guess I'm done for now.

    I will find a more fair solution to my problems next time. It is hardly a wonder that people don't trust the judge, lawyers or courts. If I hadn't pursued my complaint legally I would have my $1600 and peace of mind.

    I will still send letter for return of deposit.

    Thanks everyone!
    Hopefully that S.D. return letter is certified.

    You could ask the Judge to clarify his ruling.

    I agree, if you had hired a LL/tenant atty., and or filed a motion to Dismiss the complaint based on a defective notice, you probably would still have your $1600 and would probably still be living there with some peace of mind and could have collected your costs and atty. fee's to boot. But no one expects a pro se litigant to have all the answers, nor a forum for that matter to plead your case effectively in a court of law. But you have to make it clear to the Judge that he will be reversed on appeal if he rules against you by citing case law on the record [your Answer/Motion to Set Aside, etc.], what appellate courts have ruled in the past, what opinions those higher courts have passed down, and why the higher courts will reverse the trial judges orders if he enters orders that run contrary to what the appellate courts require. Some of which is below.

    You can file a Affidavit of Indigency to appeal, based on your unemployment and lack of funds. If the clerk does not approve it, you can file a motion/request to have the Judge determine your Indigency status.

    If you argued the defective notice in your answer to the complaint as you stated it was, and as stated in post #54, you have a good chance of a successful appeal. But that is hard to determine without seeing or knowing what you pled in your answer, or knowing exactly what you argued in court?

    Although you can argue defective notice, as pointed out in post#54. But if you were late with rent on both Nov. & Dec. 2009, as you have stated. And did not post rent until Dec. 31, 2009, then that probably undermined your defective notice argument to the court. I'm rethinking that...that may be why the Judge ruled the way he did. I'm thinking the LL won by default because of your not posting the rent into the court registry within the 5 days of receiving the complaint.

    I was under the impression when I posted #54, that you mailed the rent on time to the LL. When actually you did not submit the rent until Dec. 31. As you have most recently stated: "you did so when the Judge told you to, because you were confused with procedure." At that point it was to late, the damage was done in the Judges eyes, and therefore he ruled and defaulted you. That's my best guesstimate.

    You stated it correctly before, defective notice...no cause of action.

    And based on post #54, you can make that argument to the Appellate Court if you so choose. Provide you did so in your Answer to the Complaint, or in your Motion to Set Aside. As you have no transcript of the proceeding to give to the Appellate Court to review what transpired in court. You could file a Statement of the Proceedings in lieu of a transcript, but I'm not to sure you even want to go there, or appeal? That's up to you.

    But based on your own argument and post #54, statute and case law you were not required to post your rent into the courts registry because of the defective notice. The LL had no cause of action or right to file the complaint when she did. Regardless of whether or not your rent was late, whether or not you posted your rent into the court registry late or not, or even at all.

    It obviously would have helped your cause, had you posted your rent with the court registry when due each month. And also filed a Motion to Dismiss the Complaint, that way you would have covered both bases in case the Judge ruled one way or the other. And also given the Court/Judge grounds or a decent foundation to grant your Motion to Dismiss the Complaint.

    As another poster stated, some Judges rule differently. Which is true, some will rule that if the notice is defective, then no cause of action exists...case dismissed with prejudice. Some will give the LL a 2nd chance, and dismiss the case without prejudice, allowing them to re-post and refile their complaint. Some will grant the LL a automatic Default Judgment if the tenant does not post his rent into the registry. Even if the notice is defective. Which is what appears to have happened to you in your case. Which I see as reversible error.

    Fla. Stat. 83.60[2] "Defenses to an action for rent or possession; procedure". "In a action by the LL for possession of a dwelling unit, if the tenant interposes any defense other than payment, the tenant shall pay into the registry of the court the accrued rent as alleged in the complaint...Failure of the tenant to pay the rent into the registry WITHIN 5 DAYS...constitutes an absolute waiver of the tenants defenses, other than payment, and the LL is entitled to an immediate default judgment for the removal of the tenant with a writ of possession to issue without further notice or hearing thereon."

    Which again, appears to be what has happened to you. I view the above quoted statute paragraph as presuming the LL posted her 3-Day Notice legitimately after the rent was due, not before the rent was due, therefore making the notice and the complaint both defective. I believe you said you received the complaint on Dec.11, 2009. Five business days later would have been Dec. 18, 2009, when rent was due according to statute. You paid the rent on Dec. 31, 2009. Which was a Default in the Judges eyes. But it appears to me he failed to consider your defective notice argument.

    In a 2007 decision by the 17th Circuit Court, Broward County, Florida in its Appellate capacity, the Court ruled that the tenant was not required to post the rent in the court registry in order to defend against the defective 3-Day Notice. Case cite: Eltaine Roche v. Muoi Nguyen, Case No. 06-12904[3]. The court ruled that a defective 3-day notice can not be amended after the case has been filed, as it is a condition precedent to filing. The Court ruled in sequential order: 1] F.S. 83.56[3] requires the specific notice demanding rent or possession. 2] F.S. 83.59[1] requires the rental agreement be terminated before a LL can commence eviction. 3] F.S. 83.60[2], sets forth the requirement to post rent into the court registry. If the proper 3 Day Notice is not given, the lease is not terminated under the law, and the argument that the rent money nevertheless had to be posted is untenable."..."The existence of a cause of action at the time suit is commenced is controlling. The law is clear that the statutory right of action for possession only accrues upon the termination of the tenancy."

    Basically..."defective notice...no cause of action exists." That, in my book is reversible error in your case.

    A proper 3-Day Notice to evict is a condition precedent to eviction. Bell v. Kornblatt, 705 So. 2d 113, [Fla. 4th D.C.A. 1998]. As in your case.

    Failing to specify the amount of rent or stating the wrong amount owed. Kaplan v. McCabe, 532 So. 2d 1354 [Fla. 5th D.C.A. 1998]; Palawaski v. Duley, 50 Fla. Supp. 2d 207 [Fla. Manatee County Court 1991] [failing to state the exact amount of rent due]. As you stated was the case, in your case.

    The date notice is posted must be timely, yet cannot be sent before rent is due. The Housing Authority of The City of St. Petersburg, Fla. v. Bullard, 45 Fla. Supp. 2d 130 [Fla. Pinellas County Court 1990]. [Notice was improper where delivered to each tenant on the 1st of each month before rent was due and the tenant had defaulted.] As was the case in Dec. when your LL posted her 3-day notice on Dec. 4th., and according to your lease it was not due until the 6th because of the 5 day mailing period ...defective notice.

    Bottom line is you can argue this on appeal that the Judge erred on some of the above arguments and citing the above case law in support as a start. If you choose to argue the defective notice on appeal. You do have chance, on what I feel is a valid argument.

    If you do appeal and get the judgment reversed, you won't have that eviction on your record, or have to pay her costs presuming she is asking for them. She may be happy just to evict you. She obviously can't ask for atty. fee's as you well know.

    And if you get a reversal, that means she has to pay your costs in the lower court, if any, as well as your appellate fee's to file. It think it is fair to say, she most likely does not want to hire a appellate atty. Whether she can afford one is another story and she may not even defend against a appeal seeing that she got already got rid of you. If she can't afford to make repairs to your rental as she argued to the court, it would follow that she can't afford an appellate attorney, unless she B.S. ed the court.

    Remanding the case back to the court for further proceedings seems like a waste of time and judicial resources to me, now that you have been evicted and already moved.

    Just a note, you can't make repairs and charge them to the LL, unless she had authorized same beforehand, otherwise you are S.O.L. on that deal. You would be shooting yourself in the foot with that argument to the court.

    The Appellate Courts have a Prose package for those attempting to appeal as a guideline. Try Googling Florida Appellate Court Prose self-help guidelines or something to that effect if you are contemplating appealing. Remember you have 30 days from the date of the Judgment to file your Notice of Appeal. It can be done, you have to decide if it is worth your time and effort...good luck.

    Poster #35 and #54.

    Leave a comment:


  • Guest's Avatar
    Guest replied
    Re: Florida-Attorney fees for defendant time

    Originally posted by Unregistered View Post
    The judge gave no reason? How is NotNixx13 supposed to appeal without that information? Grounds for appeal have to be based on something, (I thought?)

    Good question. But sometimes Judges rule and don't give reasons why. Probably because they don't want to be appealed and remanded.

    I wonder if the case was dismissed with or without prejudice.
    I believe it was a Default Judgment, based on the OP filing a Motion to Set Aside Judgment. Although the OP has not clarified whether the Judgment was by default or not?

    Leave a comment:


  • Guest's Avatar
    Guest replied
    Re: Florida-Attorney fees for defendant time

    Keep in mind that you won't get that whole $1600. Since the final appeal was just exhausted, the writ of possession will now be issued and that starts his time clock on returning the deposit money. Possession was just now legally returned to the LL. His time to return the deposit has just started. So he probably still has 30 days from when that writ is issued.

    Next, since you were officially evicted, he (no doubt) has asked the judge to have you pay for the cost of the proceedings. It is standard that the losing party pays, and it probably even says so in the lease. So the attorney fees, court costs for the case and appeals are all on you. You will receive a letter showing costs for all those fees deducted from your deposit, plus possibly the rent up to the date the LL finally received lawful possession. Chances are, you won't see any of that money. Sorry.

    You can file suit against him in small claims for the deposit. But a judge will most likely award him those costs since you were legally evicted.

    Leave a comment:


  • notnixx13
    replied
    Re: Florida-Attorney fees for defendant time

    Just found out the motion to set aside was denied. I do not have the papers but will go to courthouse and find out. One of the posters before got it right. I have no idea what the judge ruled on or what he based his decision on. I don't have the money to appeal and wouldn't know what to appeal. I guess I'm done for now.

    I will find a more fair solution to my problems next time. It is hardly a wonder that people don't trust the judge, lawyers or courts. If I hadn't pursued my complaint legally I would have my $1600 and peace of mind.

    I will still send letter for return of deposit.

    Thanks everyone!

    Leave a comment:


  • Guest's Avatar
    Guest replied
    Re: Florida-Attorney fees for defendant time

    The judge gave no reason? How is NotNixx13 supposed to appeal without that information? Grounds for appeal have to be based on something, (I thought?)

    I wonder if the case was dismissed with or without prejudice.

    Leave a comment:


  • Guest's Avatar
    Guest replied
    Re: Florida-Attorney fees for defendant time

    As an outsider to this argument, can I ask that we please refrain from all posts that don't specifically ask or answer the main thread? Please, don't answer this post. We don't need any more posts other than that from the OP. Can the OP, if he/she returns here, please update us? (and nothing else.) If he/she does return to this thread, I doubt he/she will even re-post here as this long argument has scared the OP off.

    Leave a comment:


  • Guest's Avatar
    Guest replied
    Re: Florida-Attorney fees for defendant time

    Originally posted by Unregistered View Post
    Gee, fighting makes you two sound like little kids. Yeah, I'm a third (fourth?) party to all this.

    Since the tenant has lost the eviction case and is just now trying to appeal it., and since he already said he moved, isn't this whole discussion moot until the poster comes back to update us on his appeal? I seriously doubt it will go anywhere since he is already out of the unit. There really isn't any reason for the judge to re-hear the case now.
    He's complaining about post #35. Do you see anything wrong with that post? I don't, looks like good info to me.
    The OP did not appeal anything yet. Can't argue new facts on appeal. He filed a motion to set aside Judgment. Which I doubt will happen. Still waiting for whether the Judge ruled on that or not? Not to sure what he can appeal at this point?

    Leave a comment:


  • Guest's Avatar
    Guest replied
    Re: Florida-Attorney fees for defendant time

    Originally posted by Unregistered View Post
    To the poster who can't stop whining about something that makes no difference at all: High Conflict Personality much? Holy hell batman, you need a chill pill.

    This thread is very long, and it's a shame it keeps getting diverted by someone obviously suffering some sort of personality disorder.

    That said, I have trying to wade through all the muck to find out what NotNixx's judge's ruling (outcome) was, but cannot locate it. Does anyone else know the outcome?
    As a contributing poster in this thread I would like to apologize for the poster that has sidetracked this thread for his own benefit, then apologized, but rationalized his apology and keeps ranting for no reason and has nothing to add to the thread. Yea I agree it is a shame.
    The OP's Judge ruled for the LL, but gave no reason why.

    Leave a comment:


  • Guest's Avatar
    Guest replied
    Re: Florida-Attorney fees for defendant time

    Originally posted by Unregistered View Post
    If a forum administrator is monitoring this thread, is it possible for your to delete all of the long, rambling posts that are only diverting this already very long thread off topic? You can clearly see which ones they are. They are the ones with all of the quoting (seen as gray).

    Yea I agree, you are completely and already have diverted the thread because of your inability to add anything worthy to the thread, with the exception to yourself. But thats what it is all about now....you.

    Per forum rules: "By agreeing to these rules, you warrant that you will not post any messages that are obscene, vulgar, sexually-oriented, hateful, threatening, or otherwise violative of any laws". And: "The owners of WORLD Law Direct Forums reserve the right to remove, edit, move or close any thread for any reason."

    Are you ADMIN?

    This thread is already 8 pages long,[Yea OK, try reading BACK STREET PIZZA IF YOU WANT TO SEE LONG, FRUITCAKE...MAYBE YOU SHOULD. GO THERE AND HAVE A FIELD DAY AS THAT THREAD IS SO B.S. IT IS PATHETIC, LIKE YOU ARE] and some of us are interested in Notnixx's story,[NOT YOU!] [YOU ARE MORE INTERESTED IN YOUR SELFISH SELF] and it's ridiculous to have to be subjected to YOUR obvious personal problems, in order to get through to posts that are actually contributing to this thread. [MINE--NOT YOURS!] As per forum rules, hateful posts[YOURS!] fall under the category of what's not allowed[YOU!]. These quote, shaded in gray posts are not only NOT guilty of that, but YOU are completely unnecessary. AND NOT CONTRIBUTING TO THIS THREAD.

    Thank you. Much appreciated.
    HOW MUCH DO YOU CHARGE TO HAUNT A HOUSE?

    Are you Admin? 2nd time this question has been asked and not answered...HI-JACKER.
    It would be helpful if Admin removed the above posters constant sidetracking efforts, trying to divert all the attention to himself, as opposed to the thread as he/she has nothing to add to the thread and is more hellbent on for whatever reason trying to make something out of nothing for his own personal gain. He/she is complaining about how long the thread is, but the only thing he posts about is his complaining and himself. He unnecessarily sidetracked for no reason this thread at one point, for his own personal question. If ADMIN is reading this then I would appreciate banning this person who posted the above completely from this forum as he/she has completely nothing to add to the thread. This thread is all about the OP's story, the above poster obviously has an axe to grind for whatever petty reason, and his only accomplishment is to completely HI-JACK this thread for his/her own selfish needs and made this thread his story of how selfish and need to have his/her own way at the expense of the Op and his thread. The posters above post, as well as his other posts have completely wasted space and have taken over the thread. Please delete this posters threads as they are completely for his own whining benefit and not...the OP's.

    Leave a comment:

Previously entered content was automatically saved. Restore or Discard.
Auto-Saved
Smile :) Stick Out Tongue :p Wink ;) Mad :mad: Big Grin :D Frown :( Embarrassment :o Confused :confused: Roll Eyes (Sarcastic) :rolleyes: Cool :cool: EEK! :eek:
x
Insert: Thumbnail Small Medium Large Fullsize Remove  
x

the color of a blueberry is... (write the answer twice with an "@" between the words)

widgetinstance 213 (Related Topics) skipped due to lack of content & hide_module_if_empty option.
Working...
X