SJ
Sebastian Jaramillo
Tue, May 26, 2015 5:32 PM
I am trying to find some case law that essentially states that the court
lacks discretion to grant additional time to answer an eviction complaint
beyond the five day summons.
Any help is appreciated.
Sebastian Jaramillo, Esq.
66 W. Flagler St Suite 500 Miami, FL 33130
Tel: (305) 600-3805 Fax: (786) 347-5562
www.lawjb.com
This email and any files transmitted with it are confidential and intended
solely for the use of the individual or entity to whom they are addressed.
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delete this e-mail from your system. If you are not the intended recipient
you are notified that disclosing, copying, distributing or taking any
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IMPORTANT TAX NOTICE: This communication is not written to be used, and
cannot be used, by a taxpayer for the purpose of avoiding penalties that
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1986, as amended.
On Tue, May 26, 2015 at 1:12 PM, Leonard Cabral LensLaw@lenslaw.com wrote:
COMPARE the language in the chapter 83 and the mobile home statute. The
mobile home statute allows the person who pays to stay. That language is
absent in chapter 83. Paying money into the registry of the court the
opportunity for a defense such as legally withholding rent, retaliatory
eviction, Fair Housing violations, failure of numerous public housing
requirements before eviction, etc. If those defenses are valid the judge
rules for the tenant who can stay in the property.
Leonard P. Cabral
Leonardcabral@lenslaw.com
From: landten-bounces@lists.flabarrpptl.org [mailto:
landten-bounces@lists.flabarrpptl.org] *On Behalf Of *Cary Sabol
Sent: Tuesday, May 26, 2015 8:34 AM
To: Manuel Farach; RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Question regarding tenant's payment into
court registry
Thanks Manny. I'm looking for a residential context. There is actually a
case that says landlord proves a prima facie case for eviction when it
proves (1) rental agreement; (2) tenants failure to timely pay rent; and
(3) service of a 3 day notice. So I interpret that to mean once the 3 day
period expires, tenant can be evicted even if it pays rent into the
registry after filing of eviction case. However, that is a commercial
case, not a residential.
Anyhow, thanks for your input, I'll see what the rest of the group has to
say.
Cary
Law Offices of Cary P. Sabol
*P.O. Box 15981 | West Palm Beach | Florida | 33416 *
Phone: (561) 281-2744 <%28561%29%20281-2744>
- ------------------------------ *
IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury
Department Regulations, we are now required to advise you that, unless
otherwise expressly indicated, any federal tax advice expressed above was
neither written nor intended by the sender or this firm to be used and
cannot be used by any taxpayer for the purpose of avoiding penalties that
may be imposed under U.S. tax law. If any person uses or refers to any such
tax advice in promoting, marketing or recommending a partnership or other
entity, investment plan or arrangement to any taxpayer, then the advice
should be considered to have been written to support the promotion or
marketing by a person other than the sender or this firm of that
transaction or matter, and such taxpayer should seek advice based on the
taxpayer's particular circumstances from an independent tax advisor.
Confidentiality Notice: This electronic mail transmission is intended
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------------------------------
From: Manuel Farach MFarach@richmangreer.com
To: 'Cary Sabol' sabollawoffice@yahoo.com
Sent: Saturday, May 23, 2015 6:40 AM
Subject: RE: [RPPTL LandTen] Question regarding tenant's payment into
court registry
Cary,
I’ve viewed it as the Three Day Notice being a statutory condition
precedent to filing suit (see Judge Gross’s opinion in Bell v. Kornblatt
regarding the waivability of the Three Day Notice). I don’t think the
notice has the ability to terminate the lease, and I think that can only be
done by a judgment under 83.20. I’d like to see if anyone else has the same
opinion.
Manny
Manuel Farach / Of Counsel - Board Certified in Real Estate Law and
Business Litigation by The Florida Bar
Richman Greer P.A.
One Clearlake Centre
Suite 1504
250 Australian Avenue South
West Palm Beach, Florida 33401
Office: 561.803.3500
Fax: 561.820.1608
Direct: 561.803.3501
Email: MFarach@richmangreer.com
V-card http://richmangreer.com/uploads/vcards/VcardFarach.vcf
www.RichmanGreer.com http://www.richmangreer.com/
U.S. Treasury Regulation Circular 230 requires us to advise you that
written communications issued by us are not intended to be and cannot be
relied upon to avoid penalties that may be imposed by the Internal Revenue
Service.
Incoming emails are filtered which may delay receipt. This email is
personal to the named recipient(s) and may be privileged and confidential.
If you are not the intended recipient, you received this in error. If so,
any review, dissemination, or copying of this email is prohibited. Please
immediately notify us by email and delete the original message.
From: landten-bounces@lists.flabarrpptl.org [
mailto:landten-bounces@lists.flabarrpptl.org
landten-bounces@lists.flabarrpptl.org] *On Behalf Of *Cary Sabol
Sent: Friday, May 22, 2015 5:27 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Question regarding tenant's payment into court
registry
Hi All,
Hope everyone is doing well and looking forward to a relaxing holiday
weekend. I wanted to ask the group if anyone might know of any case law
that stands for the proposition that even if the tenant posts the rent
money into the court registry, the landlord still have the right to
terminate the lease and obtain an eviction judgment at a final hearing,
despite the tenant's posting of the rent money.
In other words, it is my understanding that if a landlord delivers a valid
three day notice and the tenant does not pay within that deadline, then the
lease is terminated. So if the landlord then files for eviction and the
tenant ends up posting the rent due in the court registry, the landlord can
still proceed with eviction and obtain an eviction judgment. I know this
is the state of the law, but just don't have a case to support it. Supreme
Court would be nice or 4th DCA, but anything will help. I've recently had
a few judges basically say to me that since the tenant has paid the rent
now, they can stay on the premises.
Any help is much appreciated.
Cary
Law Offices of Cary P. Sabol
*P.O. Box 15981 | West Palm Beach | Florida | 33416 *
*Phone: (561) 281-2744 <%28561%29%20281-2744> *
IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury
Department Regulations, we are now required to advise you that, unless
otherwise expressly indicated, any federal tax advice expressed above was
neither written nor intended by the sender or this firm to be used and
cannot be used by any taxpayer for the purpose of avoiding penalties that
may be imposed under U.S. tax law. If any person uses or refers to any such
tax advice in promoting, marketing or recommending a partnership or other
entity, investment plan or arrangement to any taxpayer, then the advice
should be considered to have been written to support the promotion or
marketing by a person other than the sender or this firm of that
transaction or matter, and such taxpayer should seek advice based on the
taxpayer's particular circumstances from an independent tax advisor.
Confidentiality Notice: This electronic mail transmission is intended
for the use of the individual or entity to which it is addressed and may
contain confidential information belonging to the sender which is protected
by the attorney-client privilege. If you are not the intended recipient,
you are hereby notified that any disclosure, copying, distribution, or the
taking of any action in reliance on the contents of this information is
strictly prohibited. If you have received this transmission in error,
please notify the sender immediately by e-mail and delete the original
message. Thank you for your cooperation.
landten mailing list
landten@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/landten
I am trying to find some case law that essentially states that the court
lacks discretion to grant additional time to answer an eviction complaint
beyond the five day summons.
Any help is appreciated.
*Sebastian Jaramillo, Esq.*
66 W. Flagler St Suite 500 Miami, FL 33130
Tel: (305) 600-3805 Fax: (786) 347-5562
www.lawjb.com
This email and any files transmitted with it are confidential and intended
solely for the use of the individual or entity to whom they are addressed.
If you have received this email in error please notify the system manager.
This message contains confidential information and is intended only for the
individual named. If you are not the named addressee you should not
disseminate, distribute or copy this e-mail. Please notify the sender
immediately by e-mail if you have received this e-mail by mistake and
delete this e-mail from your system. If you are not the intended recipient
you are notified that disclosing, copying, distributing or taking any
action in reliance on the contents of this information is strictly
prohibited.
IMPORTANT TAX NOTICE: This communication is not written to be used, and
cannot be used, by a taxpayer for the purpose of avoiding penalties that
may be asserted against the taxpayer under the Internal Revenue Code of
1986, as amended.
On Tue, May 26, 2015 at 1:12 PM, Leonard Cabral <LensLaw@lenslaw.com> wrote:
> COMPARE the language in the chapter 83 and the mobile home statute. The
> mobile home statute allows the person who pays to stay. That language is
> absent in chapter 83. Paying money into the registry of the court the
> opportunity for a defense such as legally withholding rent, retaliatory
> eviction, Fair Housing violations, failure of numerous public housing
> requirements before eviction, etc. If those defenses are valid the judge
> rules for the tenant who can stay in the property.
>
>
>
> Leonard P. Cabral
>
> Leonardcabral@lenslaw.com
>
>
>
>
>
>
>
> *From:* landten-bounces@lists.flabarrpptl.org [mailto:
> landten-bounces@lists.flabarrpptl.org] *On Behalf Of *Cary Sabol
> *Sent:* Tuesday, May 26, 2015 8:34 AM
> *To:* Manuel Farach; RPPTL Landlord Tenant Committee
> *Subject:* Re: [RPPTL LandTen] Question regarding tenant's payment into
> court registry
>
>
>
> Thanks Manny. I'm looking for a residential context. There is actually a
> case that says landlord proves a prima facie case for eviction when it
> proves (1) rental agreement; (2) tenants failure to timely pay rent; and
> (3) service of a 3 day notice. So I interpret that to mean once the 3 day
> period expires, tenant can be evicted even if it pays rent into the
> registry after filing of eviction case. However, that is a commercial
> case, not a residential.
>
>
>
> Anyhow, thanks for your input, I'll see what the rest of the group has to
> say.
>
>
>
> Cary
>
> *Law Offices of Cary P. Sabol*
>
> *P.O. Box 15981 | West Palm Beach | Florida | 33416 *
>
> *Phone: (561) 281-2744 <%28561%29%20281-2744>*
> * ------------------------------ *
>
> *IRS Circular 230 Notice*: Pursuant to recently enacted U.S. Treasury
> Department Regulations, we are now required to advise you that, unless
> otherwise expressly indicated, any federal tax advice expressed above was
> neither written nor intended by the sender or this firm to be used and
> cannot be used by any taxpayer for the purpose of avoiding penalties that
> may be imposed under U.S. tax law. If any person uses or refers to any such
> tax advice in promoting, marketing or recommending a partnership or other
> entity, investment plan or arrangement to any taxpayer, then the advice
> should be considered to have been written to support the promotion or
> marketing by a person other than the sender or this firm of that
> transaction or matter, and such taxpayer should seek advice based on the
> taxpayer's particular circumstances from an independent tax advisor.
>
>
>
> *Confidentiality Notice*: This electronic mail transmission is intended
> for the use of the individual or entity to which it is addressed and may
> contain confidential information belonging to the sender which is protected
> by the attorney-client privilege. If you are not the intended recipient,
> you are hereby notified that any disclosure, copying, distribution, or the
> taking of any action in reliance on the contents of this information is
> strictly prohibited. If you have received this transmission in error,
> please notify the sender immediately by e-mail and delete the original
> message. Thank you for your cooperation.
>
>
> ------------------------------
>
> *From:* Manuel Farach <MFarach@richmangreer.com>
> *To:* 'Cary Sabol' <sabollawoffice@yahoo.com>
> *Sent:* Saturday, May 23, 2015 6:40 AM
> *Subject:* RE: [RPPTL LandTen] Question regarding tenant's payment into
> court registry
>
>
>
> Cary,
>
> I’ve viewed it as the Three Day Notice being a statutory condition
> precedent to filing suit (see Judge Gross’s opinion in Bell v. Kornblatt
> regarding the waivability of the Three Day Notice). I don’t think the
> notice has the ability to terminate the lease, and I think that can only be
> done by a judgment under 83.20. I’d like to see if anyone else has the same
> opinion.
>
> Manny
>
>
> ------------------------------
>
> Manuel Farach / Of Counsel - Board Certified in Real Estate Law and
> Business Litigation by The Florida Bar
>
> Richman Greer P.A.
> One Clearlake Centre
> Suite 1504
> 250 Australian Avenue South
> West Palm Beach, Florida 33401
> Office: 561.803.3500
> Fax: 561.820.1608
> Direct: 561.803.3501
> Email: MFarach@richmangreer.com
> V-card <http://richmangreer.com/uploads/vcards/VcardFarach.vcf>
>
> www.RichmanGreer.com <http://www.richmangreer.com/>
>
> U.S. Treasury Regulation Circular 230 requires us to advise you that
> written communications issued by us are not intended to be and cannot be
> relied upon to avoid penalties that may be imposed by the Internal Revenue
> Service.
>
> Incoming emails are filtered which may delay receipt. This email is
> personal to the named recipient(s) and may be privileged and confidential.
> If you are not the intended recipient, you received this in error. If so,
> any review, dissemination, or copying of this email is prohibited. Please
> immediately notify us by email and delete the original message.
> ------------------------------
>
>
>
>
>
> *From:* landten-bounces@lists.flabarrpptl.org [
> mailto:landten-bounces@lists.flabarrpptl.org
> <landten-bounces@lists.flabarrpptl.org>] *On Behalf Of *Cary Sabol
> *Sent:* Friday, May 22, 2015 5:27 PM
> *To:* RPPTL Landlord Tenant Committee
> *Subject:* [RPPTL LandTen] Question regarding tenant's payment into court
> registry
>
>
>
> Hi All,
>
>
>
> Hope everyone is doing well and looking forward to a relaxing holiday
> weekend. I wanted to ask the group if anyone might know of any case law
> that stands for the proposition that even if the tenant posts the rent
> money into the court registry, the landlord still have the right to
> terminate the lease and obtain an eviction judgment at a final hearing,
> despite the tenant's posting of the rent money.
>
>
>
> In other words, it is my understanding that if a landlord delivers a valid
> three day notice and the tenant does not pay within that deadline, then the
> lease is terminated. So if the landlord then files for eviction and the
> tenant ends up posting the rent due in the court registry, the landlord can
> still proceed with eviction and obtain an eviction judgment. I know this
> is the state of the law, but just don't have a case to support it. Supreme
> Court would be nice or 4th DCA, but anything will help. I've recently had
> a few judges basically say to me that since the tenant has paid the rent
> now, they can stay on the premises.
>
>
>
> Any help is much appreciated.
>
>
>
> Cary
>
> *Law Offices of Cary P. Sabol*
>
> *P.O. Box 15981 | West Palm Beach | Florida | 33416 *
>
> *Phone: (561) 281-2744 <%28561%29%20281-2744> *
> ------------------------------
>
> *IRS Circular 230 Notice*: Pursuant to recently enacted U.S. Treasury
> Department Regulations, we are now required to advise you that, unless
> otherwise expressly indicated, any federal tax advice expressed above was
> neither written nor intended by the sender or this firm to be used and
> cannot be used by any taxpayer for the purpose of avoiding penalties that
> may be imposed under U.S. tax law. If any person uses or refers to any such
> tax advice in promoting, marketing or recommending a partnership or other
> entity, investment plan or arrangement to any taxpayer, then the advice
> should be considered to have been written to support the promotion or
> marketing by a person other than the sender or this firm of that
> transaction or matter, and such taxpayer should seek advice based on the
> taxpayer's particular circumstances from an independent tax advisor.
>
>
>
> *Confidentiality Notice*: This electronic mail transmission is intended
> for the use of the individual or entity to which it is addressed and may
> contain confidential information belonging to the sender which is protected
> by the attorney-client privilege. If you are not the intended recipient,
> you are hereby notified that any disclosure, copying, distribution, or the
> taking of any action in reliance on the contents of this information is
> strictly prohibited. If you have received this transmission in error,
> please notify the sender immediately by e-mail and delete the original
> message. Thank you for your cooperation.
>
>
>
> _______________________________________________
> landten mailing list
> landten@lists.flabarrpptl.org
> http://mailman.fsr.com/mailman/listinfo/landten
>
DM
Deborah Marks
Wed, May 27, 2015 1:01 PM
Until a default is entered a defendant can answer without permission- even weeks late.that is standard civil procedure. Similarly, with cause even a default can be vacated. You will not find any law to contravene those basic rules. The penalty for not answering in time is that the relief sought may be entered without further notice. If you read the summons- it lays that out. It does not say if you fill to respond within 5 days you have lost all ability to defend no matter what.
Deborah Marks
Deborah Marks, PA
18495 S. Dixie Hwy
Ste 134
Miami, FL 33157
305-372-9400
Sent from my iPhone
On May 26, 2015, at 1:32 PM, Sebastian Jaramillo sebastian@lawjb.com wrote:
I am trying to find some case law that essentially states that the court lacks discretion to grant additional time to answer an eviction complaint beyond the five day summons.
Any help is appreciated.
Sebastian Jaramillo, Esq.
66 W. Flagler St Suite 500 Miami, FL 33130
Tel: (305) 600-3805 Fax: (786) 347-5562
www.lawjb.com
This email and any files transmitted with it are confidential and intended solely for the use of the individual or entity to whom they are addressed. If you have received this email in error please notify the system manager. This message contains confidential information and is intended only for the individual named. If you are not the named addressee you should not disseminate, distribute or copy this e-mail. Please notify the sender immediately by e-mail if you have received this e-mail by mistake and delete this e-mail from your system. If you are not the intended recipient you are notified that disclosing, copying, distributing or taking any action in reliance on the contents of this information is strictly prohibited.
IMPORTANT TAX NOTICE: This communication is not written to be used, and cannot be used, by a taxpayer for the purpose of avoiding penalties that may be asserted against the taxpayer under the Internal Revenue Code of 1986, as amended.
On Tue, May 26, 2015 at 1:12 PM, Leonard Cabral LensLaw@lenslaw.com wrote:
COMPARE the language in the chapter 83 and the mobile home statute. The mobile home statute allows the person who pays to stay. That language is absent in chapter 83. Paying money into the registry of the court the opportunity for a defense such as legally withholding rent, retaliatory eviction, Fair Housing violations, failure of numerous public housing requirements before eviction, etc. If those defenses are valid the judge rules for the tenant who can stay in the property.
Leonard P. Cabral
Leonardcabral@lenslaw.com
From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol
Sent: Tuesday, May 26, 2015 8:34 AM
To: Manuel Farach; RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Question regarding tenant's payment into court registry
Thanks Manny. I'm looking for a residential context. There is actually a case that says landlord proves a prima facie case for eviction when it proves (1) rental agreement; (2) tenants failure to timely pay rent; and (3) service of a 3 day notice. So I interpret that to mean once the 3 day period expires, tenant can be evicted even if it pays rent into the registry after filing of eviction case. However, that is a commercial case, not a residential.
Anyhow, thanks for your input, I'll see what the rest of the group has to say.
Cary
Law Offices of Cary P. Sabol
P.O. Box 15981 | West Palm Beach | Florida | 33416
Phone: (561) 281-2744
IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor.
Confidentiality Notice: This electronic mail transmission is intended for the use of the individual or entity to which it is addressed and may contain confidential information belonging to the sender which is protected by the attorney-client privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please notify the sender immediately by e-mail and delete the original message. Thank you for your cooperation.
From: Manuel Farach MFarach@richmangreer.com
To: 'Cary Sabol' sabollawoffice@yahoo.com
Sent: Saturday, May 23, 2015 6:40 AM
Subject: RE: [RPPTL LandTen] Question regarding tenant's payment into court registry
Cary,
I’ve viewed it as the Three Day Notice being a statutory condition precedent to filing suit (see Judge Gross’s opinion in Bell v. Kornblatt regarding the waivability of the Three Day Notice). I don’t think the notice has the ability to terminate the lease, and I think that can only be done by a judgment under 83.20. I’d like to see if anyone else has the same opinion.
Manny
Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar
Richman Greer P.A.
One Clearlake Centre
Suite 1504
250 Australian Avenue South
West Palm Beach, Florida 33401
Office: 561.803.3500
Fax: 561.820.1608
Direct: 561.803.3501
Email: MFarach@richmangreer.com
V-card
www.RichmanGreer.com
U.S. Treasury Regulation Circular 230 requires us to advise you that written communications issued by us are not intended to be and cannot be relied upon to avoid penalties that may be imposed by the Internal Revenue Service.
Incoming emails are filtered which may delay receipt. This email is personal to the named recipient(s) and may be privileged and confidential. If you are not the intended recipient, you received this in error. If so, any review, dissemination, or copying of this email is prohibited. Please immediately notify us by email and delete the original message.
From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol
Sent: Friday, May 22, 2015 5:27 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Question regarding tenant's payment into court registry
Hi All,
Hope everyone is doing well and looking forward to a relaxing holiday weekend. I wanted to ask the group if anyone might know of any case law that stands for the proposition that even if the tenant posts the rent money into the court registry, the landlord still have the right to terminate the lease and obtain an eviction judgment at a final hearing, despite the tenant's posting of the rent money.
In other words, it is my understanding that if a landlord delivers a valid three day notice and the tenant does not pay within that deadline, then the lease is terminated. So if the landlord then files for eviction and the tenant ends up posting the rent due in the court registry, the landlord can still proceed with eviction and obtain an eviction judgment. I know this is the state of the law, but just don't have a case to support it. Supreme Court would be nice or 4th DCA, but anything will help. I've recently had a few judges basically say to me that since the tenant has paid the rent now, they can stay on the premises.
Any help is much appreciated.
Cary
Law Offices of Cary P. Sabol
P.O. Box 15981 | West Palm Beach | Florida | 33416
Phone: (561) 281-2744
IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor.
Confidentiality Notice: This electronic mail transmission is intended for the use of the individual or entity to which it is addressed and may contain confidential information belonging to the sender which is protected by the attorney-client privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please notify the sender immediately by e-mail and delete the original message. Thank you for your cooperation.
landten mailing list
landten@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/landten
Until a default is entered a defendant can answer without permission- even weeks late.that is standard civil procedure. Similarly, with cause even a default can be vacated. You will not find any law to contravene those basic rules. The penalty for not answering in time is that the relief sought may be entered without further notice. If you read the summons- it lays that out. It does not say if you fill to respond within 5 days you have lost all ability to defend no matter what.
Deborah Marks
Deborah Marks, PA
18495 S. Dixie Hwy
Ste 134
Miami, FL 33157
305-372-9400
Sent from my iPhone
> On May 26, 2015, at 1:32 PM, Sebastian Jaramillo <sebastian@lawjb.com> wrote:
>
> I am trying to find some case law that essentially states that the court lacks discretion to grant additional time to answer an eviction complaint beyond the five day summons.
>
> Any help is appreciated.
> Sebastian Jaramillo, Esq.
>
>
>
> 66 W. Flagler St Suite 500 Miami, FL 33130
> Tel: (305) 600-3805 Fax: (786) 347-5562
> www.lawjb.com
>
> This email and any files transmitted with it are confidential and intended solely for the use of the individual or entity to whom they are addressed. If you have received this email in error please notify the system manager. This message contains confidential information and is intended only for the individual named. If you are not the named addressee you should not disseminate, distribute or copy this e-mail. Please notify the sender immediately by e-mail if you have received this e-mail by mistake and delete this e-mail from your system. If you are not the intended recipient you are notified that disclosing, copying, distributing or taking any action in reliance on the contents of this information is strictly prohibited.
>
> IMPORTANT TAX NOTICE: This communication is not written to be used, and cannot be used, by a taxpayer for the purpose of avoiding penalties that may be asserted against the taxpayer under the Internal Revenue Code of 1986, as amended.
>
>> On Tue, May 26, 2015 at 1:12 PM, Leonard Cabral <LensLaw@lenslaw.com> wrote:
>> COMPARE the language in the chapter 83 and the mobile home statute. The mobile home statute allows the person who pays to stay. That language is absent in chapter 83. Paying money into the registry of the court the opportunity for a defense such as legally withholding rent, retaliatory eviction, Fair Housing violations, failure of numerous public housing requirements before eviction, etc. If those defenses are valid the judge rules for the tenant who can stay in the property.
>>
>>
>>
>> Leonard P. Cabral
>>
>> Leonardcabral@lenslaw.com
>>
>>
>>
>>
>>
>>
>>
>> From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol
>> Sent: Tuesday, May 26, 2015 8:34 AM
>> To: Manuel Farach; RPPTL Landlord Tenant Committee
>> Subject: Re: [RPPTL LandTen] Question regarding tenant's payment into court registry
>>
>>
>>
>> Thanks Manny. I'm looking for a residential context. There is actually a case that says landlord proves a prima facie case for eviction when it proves (1) rental agreement; (2) tenants failure to timely pay rent; and (3) service of a 3 day notice. So I interpret that to mean once the 3 day period expires, tenant can be evicted even if it pays rent into the registry after filing of eviction case. However, that is a commercial case, not a residential.
>>
>>
>>
>> Anyhow, thanks for your input, I'll see what the rest of the group has to say.
>>
>>
>>
>> Cary
>>
>> Law Offices of Cary P. Sabol
>>
>> P.O. Box 15981 | West Palm Beach | Florida | 33416
>>
>> Phone: (561) 281-2744
>>
>> IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor.
>>
>>
>>
>> Confidentiality Notice: This electronic mail transmission is intended for the use of the individual or entity to which it is addressed and may contain confidential information belonging to the sender which is protected by the attorney-client privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please notify the sender immediately by e-mail and delete the original message. Thank you for your cooperation.
>>
>>
>>
>> From: Manuel Farach <MFarach@richmangreer.com>
>> To: 'Cary Sabol' <sabollawoffice@yahoo.com>
>> Sent: Saturday, May 23, 2015 6:40 AM
>> Subject: RE: [RPPTL LandTen] Question regarding tenant's payment into court registry
>>
>>
>>
>> Cary,
>>
>> I’ve viewed it as the Three Day Notice being a statutory condition precedent to filing suit (see Judge Gross’s opinion in Bell v. Kornblatt regarding the waivability of the Three Day Notice). I don’t think the notice has the ability to terminate the lease, and I think that can only be done by a judgment under 83.20. I’d like to see if anyone else has the same opinion.
>>
>> Manny
>>
>>
>>
>>
>>
>> Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar
>>
>> Richman Greer P.A.
>> One Clearlake Centre
>> Suite 1504
>> 250 Australian Avenue South
>> West Palm Beach, Florida 33401
>> Office: 561.803.3500
>> Fax: 561.820.1608
>> Direct: 561.803.3501
>> Email: MFarach@richmangreer.com
>> V-card
>>
>> www.RichmanGreer.com
>>
>> U.S. Treasury Regulation Circular 230 requires us to advise you that written communications issued by us are not intended to be and cannot be relied upon to avoid penalties that may be imposed by the Internal Revenue Service.
>>
>> Incoming emails are filtered which may delay receipt. This email is personal to the named recipient(s) and may be privileged and confidential. If you are not the intended recipient, you received this in error. If so, any review, dissemination, or copying of this email is prohibited. Please immediately notify us by email and delete the original message.
>>
>>
>>
>>
>>
>> From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol
>> Sent: Friday, May 22, 2015 5:27 PM
>> To: RPPTL Landlord Tenant Committee
>> Subject: [RPPTL LandTen] Question regarding tenant's payment into court registry
>>
>>
>>
>> Hi All,
>>
>>
>>
>> Hope everyone is doing well and looking forward to a relaxing holiday weekend. I wanted to ask the group if anyone might know of any case law that stands for the proposition that even if the tenant posts the rent money into the court registry, the landlord still have the right to terminate the lease and obtain an eviction judgment at a final hearing, despite the tenant's posting of the rent money.
>>
>>
>>
>> In other words, it is my understanding that if a landlord delivers a valid three day notice and the tenant does not pay within that deadline, then the lease is terminated. So if the landlord then files for eviction and the tenant ends up posting the rent due in the court registry, the landlord can still proceed with eviction and obtain an eviction judgment. I know this is the state of the law, but just don't have a case to support it. Supreme Court would be nice or 4th DCA, but anything will help. I've recently had a few judges basically say to me that since the tenant has paid the rent now, they can stay on the premises.
>>
>>
>>
>> Any help is much appreciated.
>>
>>
>>
>> Cary
>>
>> Law Offices of Cary P. Sabol
>>
>> P.O. Box 15981 | West Palm Beach | Florida | 33416
>>
>> Phone: (561) 281-2744
>>
>> IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor.
>>
>>
>>
>> Confidentiality Notice: This electronic mail transmission is intended for the use of the individual or entity to which it is addressed and may contain confidential information belonging to the sender which is protected by the attorney-client privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please notify the sender immediately by e-mail and delete the original message. Thank you for your cooperation.
>>
>>
>>
>>
>> _______________________________________________
>> landten mailing list
>> landten@lists.flabarrpptl.org
>> http://mailman.fsr.com/mailman/listinfo/landten
>
> _______________________________________________
> landten mailing list
> landten@lists.flabarrpptl.org
> http://mailman.fsr.com/mailman/listinfo/landten
SJ
Sebastian Jaramillo
Wed, May 27, 2015 1:19 PM
When it comes to my issue, the Defendant filed a Motion to Dismiss which
was denied. I'm arguing that his Motion to Dismiss was essentially an
answer, so that the Judge cannot now allow him to file a new answer but
rather must enter a Default Judgment.
Sebastian Jaramillo, Esq.
66 W. Flagler St Suite 500 Miami, FL 33130
Tel: (305) 600-3805 Fax: (786) 347-5562
www.lawjb.com
This email and any files transmitted with it are confidential and intended
solely for the use of the individual or entity to whom they are addressed.
If you have received this email in error please notify the system manager.
This message contains confidential information and is intended only for the
individual named. If you are not the named addressee you should not
disseminate, distribute or copy this e-mail. Please notify the sender
immediately by e-mail if you have received this e-mail by mistake and
delete this e-mail from your system. If you are not the intended recipient
you are notified that disclosing, copying, distributing or taking any
action in reliance on the contents of this information is strictly
prohibited.
IMPORTANT TAX NOTICE: This communication is not written to be used, and
cannot be used, by a taxpayer for the purpose of avoiding penalties that
may be asserted against the taxpayer under the Internal Revenue Code of
1986, as amended.
On Wed, May 27, 2015 at 9:01 AM, Deborah Marks deborahmarkslaw@gmail.com
wrote:
Until a default is entered a defendant can answer without permission- even
weeks late.that is standard civil procedure. Similarly, with cause even a
default can be vacated. You will not find any law to contravene those basic
rules. The penalty for not answering in time is that the relief sought may
be entered without further notice. If you read the summons- it lays that
out. It does not say if you fill to respond within 5 days you have lost all
ability to defend no matter what.
Deborah Marks
Deborah Marks, PA
18495 S. Dixie Hwy
Ste 134
Miami, FL 33157
305-372-9400
Sent from my iPhone
On May 26, 2015, at 1:32 PM, Sebastian Jaramillo sebastian@lawjb.com
wrote:
I am trying to find some case law that essentially states that the court
lacks discretion to grant additional time to answer an eviction complaint
beyond the five day summons.
Any help is appreciated.
Sebastian Jaramillo, Esq.
66 W. Flagler St Suite 500 Miami, FL 33130
Tel: (305) 600-3805 Fax: (786) 347-5562
www.lawjb.com
This email and any files transmitted with it are confidential and intended
solely for the use of the individual or entity to whom they are addressed.
If you have received this email in error please notify the system manager.
This message contains confidential information and is intended only for the
individual named. If you are not the named addressee you should not
disseminate, distribute or copy this e-mail. Please notify the sender
immediately by e-mail if you have received this e-mail by mistake and
delete this e-mail from your system. If you are not the intended recipient
you are notified that disclosing, copying, distributing or taking any
action in reliance on the contents of this information is strictly
prohibited.
IMPORTANT TAX NOTICE: This communication is not written to be used, and
cannot be used, by a taxpayer for the purpose of avoiding penalties that
may be asserted against the taxpayer under the Internal Revenue Code of
1986, as amended.
On Tue, May 26, 2015 at 1:12 PM, Leonard Cabral LensLaw@lenslaw.com
wrote:
COMPARE the language in the chapter 83 and the mobile home statute.
The mobile home statute allows the person who pays to stay. That language
is absent in chapter 83. Paying money into the registry of the court the
opportunity for a defense such as legally withholding rent, retaliatory
eviction, Fair Housing violations, failure of numerous public housing
requirements before eviction, etc. If those defenses are valid the judge
rules for the tenant who can stay in the property.
Leonard P. Cabral
Leonardcabral@lenslaw.com
From: landten-bounces@lists.flabarrpptl.org [mailto:
landten-bounces@lists.flabarrpptl.org] *On Behalf Of *Cary Sabol
Sent: Tuesday, May 26, 2015 8:34 AM
To: Manuel Farach; RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Question regarding tenant's payment into
court registry
Thanks Manny. I'm looking for a residential context. There is actually
a case that says landlord proves a prima facie case for eviction when it
proves (1) rental agreement; (2) tenants failure to timely pay rent; and
(3) service of a 3 day notice. So I interpret that to mean once the 3 day
period expires, tenant can be evicted even if it pays rent into the
registry after filing of eviction case. However, that is a commercial
case, not a residential.
Anyhow, thanks for your input, I'll see what the rest of the group has to
say.
Cary
Law Offices of Cary P. Sabol
*P.O. Box 15981 | West Palm Beach | Florida | 33416 *
Phone: (561) 281-2744 <%28561%29%20281-2744>
- ------------------------------ *
IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury
Department Regulations, we are now required to advise you that, unless
otherwise expressly indicated, any federal tax advice expressed above was
neither written nor intended by the sender or this firm to be used and
cannot be used by any taxpayer for the purpose of avoiding penalties that
may be imposed under U.S. tax law. If any person uses or refers to any such
tax advice in promoting, marketing or recommending a partnership or other
entity, investment plan or arrangement to any taxpayer, then the advice
should be considered to have been written to support the promotion or
marketing by a person other than the sender or this firm of that
transaction or matter, and such taxpayer should seek advice based on the
taxpayer's particular circumstances from an independent tax advisor.
Confidentiality Notice: This electronic mail transmission is intended
for the use of the individual or entity to which it is addressed and may
contain confidential information belonging to the sender which is protected
by the attorney-client privilege. If you are not the intended recipient,
you are hereby notified that any disclosure, copying, distribution, or the
taking of any action in reliance on the contents of this information is
strictly prohibited. If you have received this transmission in error,
please notify the sender immediately by e-mail and delete the original
message. Thank you for your cooperation.
------------------------------
From: Manuel Farach MFarach@richmangreer.com
To: 'Cary Sabol' sabollawoffice@yahoo.com
Sent: Saturday, May 23, 2015 6:40 AM
Subject: RE: [RPPTL LandTen] Question regarding tenant's payment into
court registry
Cary,
I’ve viewed it as the Three Day Notice being a statutory condition
precedent to filing suit (see Judge Gross’s opinion in Bell v. Kornblatt
regarding the waivability of the Three Day Notice). I don’t think the
notice has the ability to terminate the lease, and I think that can only be
done by a judgment under 83.20. I’d like to see if anyone else has the same
opinion.
Manny
Manuel Farach / Of Counsel - Board Certified in Real Estate Law and
Business Litigation by The Florida Bar
Richman Greer P.A.
One Clearlake Centre
Suite 1504
250 Australian Avenue South
West Palm Beach, Florida 33401
Office: 561.803.3500
Fax: 561.820.1608
Direct: 561.803.3501
Email: MFarach@richmangreer.com
V-card http://richmangreer.com/uploads/vcards/VcardFarach.vcf
www.RichmanGreer.com http://www.richmangreer.com/
U.S. Treasury Regulation Circular 230 requires us to advise you that
written communications issued by us are not intended to be and cannot be
relied upon to avoid penalties that may be imposed by the Internal Revenue
Service.
Incoming emails are filtered which may delay receipt. This email is
personal to the named recipient(s) and may be privileged and confidential.
If you are not the intended recipient, you received this in error. If so,
any review, dissemination, or copying of this email is prohibited. Please
immediately notify us by email and delete the original message.
From: landten-bounces@lists.flabarrpptl.org [
mailto:landten-bounces@lists.flabarrpptl.org
landten-bounces@lists.flabarrpptl.org] *On Behalf Of *Cary Sabol
Sent: Friday, May 22, 2015 5:27 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Question regarding tenant's payment into
court registry
Hi All,
Hope everyone is doing well and looking forward to a relaxing holiday
weekend. I wanted to ask the group if anyone might know of any case law
that stands for the proposition that even if the tenant posts the rent
money into the court registry, the landlord still have the right to
terminate the lease and obtain an eviction judgment at a final hearing,
despite the tenant's posting of the rent money.
In other words, it is my understanding that if a landlord delivers a
valid three day notice and the tenant does not pay within that deadline,
then the lease is terminated. So if the landlord then files for eviction
and the tenant ends up posting the rent due in the court registry, the
landlord can still proceed with eviction and obtain an eviction judgment.
I know this is the state of the law, but just don't have a case to support
it. Supreme Court would be nice or 4th DCA, but anything will help. I've
recently had a few judges basically say to me that since the tenant has
paid the rent now, they can stay on the premises.
Any help is much appreciated.
Cary
Law Offices of Cary P. Sabol
*P.O. Box 15981 | West Palm Beach | Florida | 33416 *
*Phone: (561) 281-2744 <%28561%29%20281-2744> *
IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury
Department Regulations, we are now required to advise you that, unless
otherwise expressly indicated, any federal tax advice expressed above was
neither written nor intended by the sender or this firm to be used and
cannot be used by any taxpayer for the purpose of avoiding penalties that
may be imposed under U.S. tax law. If any person uses or refers to any such
tax advice in promoting, marketing or recommending a partnership or other
entity, investment plan or arrangement to any taxpayer, then the advice
should be considered to have been written to support the promotion or
marketing by a person other than the sender or this firm of that
transaction or matter, and such taxpayer should seek advice based on the
taxpayer's particular circumstances from an independent tax advisor.
Confidentiality Notice: This electronic mail transmission is intended
for the use of the individual or entity to which it is addressed and may
contain confidential information belonging to the sender which is protected
by the attorney-client privilege. If you are not the intended recipient,
you are hereby notified that any disclosure, copying, distribution, or the
taking of any action in reliance on the contents of this information is
strictly prohibited. If you have received this transmission in error,
please notify the sender immediately by e-mail and delete the original
message. Thank you for your cooperation.
landten mailing list
landten@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/landten
When it comes to my issue, the Defendant filed a Motion to Dismiss which
was denied. I'm arguing that his Motion to Dismiss was essentially an
answer, so that the Judge cannot now allow him to file a new answer but
rather must enter a Default Judgment.
*Sebastian Jaramillo, Esq.*
66 W. Flagler St Suite 500 Miami, FL 33130
Tel: (305) 600-3805 Fax: (786) 347-5562
www.lawjb.com
This email and any files transmitted with it are confidential and intended
solely for the use of the individual or entity to whom they are addressed.
If you have received this email in error please notify the system manager.
This message contains confidential information and is intended only for the
individual named. If you are not the named addressee you should not
disseminate, distribute or copy this e-mail. Please notify the sender
immediately by e-mail if you have received this e-mail by mistake and
delete this e-mail from your system. If you are not the intended recipient
you are notified that disclosing, copying, distributing or taking any
action in reliance on the contents of this information is strictly
prohibited.
IMPORTANT TAX NOTICE: This communication is not written to be used, and
cannot be used, by a taxpayer for the purpose of avoiding penalties that
may be asserted against the taxpayer under the Internal Revenue Code of
1986, as amended.
On Wed, May 27, 2015 at 9:01 AM, Deborah Marks <deborahmarkslaw@gmail.com>
wrote:
> Until a default is entered a defendant can answer without permission- even
> weeks late.that is standard civil procedure. Similarly, with cause even a
> default can be vacated. You will not find any law to contravene those basic
> rules. The penalty for not answering in time is that the relief sought may
> be entered without further notice. If you read the summons- it lays that
> out. It does not say if you fill to respond within 5 days you have lost all
> ability to defend no matter what.
>
> Deborah Marks
> Deborah Marks, PA
> 18495 S. Dixie Hwy
> Ste 134
> Miami, FL 33157
> 305-372-9400
>
> Sent from my iPhone
>
> On May 26, 2015, at 1:32 PM, Sebastian Jaramillo <sebastian@lawjb.com>
> wrote:
>
> I am trying to find some case law that essentially states that the court
> lacks discretion to grant additional time to answer an eviction complaint
> beyond the five day summons.
>
> Any help is appreciated.
>
> *Sebastian Jaramillo, Esq.*
>
>
> 66 W. Flagler St Suite 500 Miami, FL 33130
> Tel: (305) 600-3805 Fax: (786) 347-5562
> www.lawjb.com
>
> This email and any files transmitted with it are confidential and intended
> solely for the use of the individual or entity to whom they are addressed.
> If you have received this email in error please notify the system manager.
> This message contains confidential information and is intended only for the
> individual named. If you are not the named addressee you should not
> disseminate, distribute or copy this e-mail. Please notify the sender
> immediately by e-mail if you have received this e-mail by mistake and
> delete this e-mail from your system. If you are not the intended recipient
> you are notified that disclosing, copying, distributing or taking any
> action in reliance on the contents of this information is strictly
> prohibited.
> IMPORTANT TAX NOTICE: This communication is not written to be used, and
> cannot be used, by a taxpayer for the purpose of avoiding penalties that
> may be asserted against the taxpayer under the Internal Revenue Code of
> 1986, as amended.
>
> On Tue, May 26, 2015 at 1:12 PM, Leonard Cabral <LensLaw@lenslaw.com>
> wrote:
>
>> COMPARE the language in the chapter 83 and the mobile home statute.
>> The mobile home statute allows the person who pays to stay. That language
>> is absent in chapter 83. Paying money into the registry of the court the
>> opportunity for a defense such as legally withholding rent, retaliatory
>> eviction, Fair Housing violations, failure of numerous public housing
>> requirements before eviction, etc. If those defenses are valid the judge
>> rules for the tenant who can stay in the property.
>>
>>
>>
>> Leonard P. Cabral
>>
>> Leonardcabral@lenslaw.com
>>
>>
>>
>>
>>
>>
>>
>> *From:* landten-bounces@lists.flabarrpptl.org [mailto:
>> landten-bounces@lists.flabarrpptl.org] *On Behalf Of *Cary Sabol
>> *Sent:* Tuesday, May 26, 2015 8:34 AM
>> *To:* Manuel Farach; RPPTL Landlord Tenant Committee
>> *Subject:* Re: [RPPTL LandTen] Question regarding tenant's payment into
>> court registry
>>
>>
>>
>> Thanks Manny. I'm looking for a residential context. There is actually
>> a case that says landlord proves a prima facie case for eviction when it
>> proves (1) rental agreement; (2) tenants failure to timely pay rent; and
>> (3) service of a 3 day notice. So I interpret that to mean once the 3 day
>> period expires, tenant can be evicted even if it pays rent into the
>> registry after filing of eviction case. However, that is a commercial
>> case, not a residential.
>>
>>
>>
>> Anyhow, thanks for your input, I'll see what the rest of the group has to
>> say.
>>
>>
>>
>> Cary
>>
>> *Law Offices of Cary P. Sabol*
>>
>> *P.O. Box 15981 | West Palm Beach | Florida | 33416 *
>>
>> *Phone: (561) 281-2744 <%28561%29%20281-2744>*
>> * ------------------------------ *
>>
>> *IRS Circular 230 Notice*: Pursuant to recently enacted U.S. Treasury
>> Department Regulations, we are now required to advise you that, unless
>> otherwise expressly indicated, any federal tax advice expressed above was
>> neither written nor intended by the sender or this firm to be used and
>> cannot be used by any taxpayer for the purpose of avoiding penalties that
>> may be imposed under U.S. tax law. If any person uses or refers to any such
>> tax advice in promoting, marketing or recommending a partnership or other
>> entity, investment plan or arrangement to any taxpayer, then the advice
>> should be considered to have been written to support the promotion or
>> marketing by a person other than the sender or this firm of that
>> transaction or matter, and such taxpayer should seek advice based on the
>> taxpayer's particular circumstances from an independent tax advisor.
>>
>>
>>
>> *Confidentiality Notice*: This electronic mail transmission is intended
>> for the use of the individual or entity to which it is addressed and may
>> contain confidential information belonging to the sender which is protected
>> by the attorney-client privilege. If you are not the intended recipient,
>> you are hereby notified that any disclosure, copying, distribution, or the
>> taking of any action in reliance on the contents of this information is
>> strictly prohibited. If you have received this transmission in error,
>> please notify the sender immediately by e-mail and delete the original
>> message. Thank you for your cooperation.
>>
>>
>> ------------------------------
>>
>> *From:* Manuel Farach <MFarach@richmangreer.com>
>> *To:* 'Cary Sabol' <sabollawoffice@yahoo.com>
>> *Sent:* Saturday, May 23, 2015 6:40 AM
>> *Subject:* RE: [RPPTL LandTen] Question regarding tenant's payment into
>> court registry
>>
>>
>>
>> Cary,
>>
>> I’ve viewed it as the Three Day Notice being a statutory condition
>> precedent to filing suit (see Judge Gross’s opinion in Bell v. Kornblatt
>> regarding the waivability of the Three Day Notice). I don’t think the
>> notice has the ability to terminate the lease, and I think that can only be
>> done by a judgment under 83.20. I’d like to see if anyone else has the same
>> opinion.
>>
>> Manny
>>
>>
>> ------------------------------
>>
>> Manuel Farach / Of Counsel - Board Certified in Real Estate Law and
>> Business Litigation by The Florida Bar
>>
>> Richman Greer P.A.
>> One Clearlake Centre
>> Suite 1504
>> 250 Australian Avenue South
>> West Palm Beach, Florida 33401
>> Office: 561.803.3500
>> Fax: 561.820.1608
>> Direct: 561.803.3501
>> Email: MFarach@richmangreer.com
>> V-card <http://richmangreer.com/uploads/vcards/VcardFarach.vcf>
>>
>> www.RichmanGreer.com <http://www.richmangreer.com/>
>>
>> U.S. Treasury Regulation Circular 230 requires us to advise you that
>> written communications issued by us are not intended to be and cannot be
>> relied upon to avoid penalties that may be imposed by the Internal Revenue
>> Service.
>>
>> Incoming emails are filtered which may delay receipt. This email is
>> personal to the named recipient(s) and may be privileged and confidential.
>> If you are not the intended recipient, you received this in error. If so,
>> any review, dissemination, or copying of this email is prohibited. Please
>> immediately notify us by email and delete the original message.
>> ------------------------------
>>
>>
>>
>>
>>
>> *From:* landten-bounces@lists.flabarrpptl.org [
>> mailto:landten-bounces@lists.flabarrpptl.org
>> <landten-bounces@lists.flabarrpptl.org>] *On Behalf Of *Cary Sabol
>> *Sent:* Friday, May 22, 2015 5:27 PM
>> *To:* RPPTL Landlord Tenant Committee
>> *Subject:* [RPPTL LandTen] Question regarding tenant's payment into
>> court registry
>>
>>
>>
>> Hi All,
>>
>>
>>
>> Hope everyone is doing well and looking forward to a relaxing holiday
>> weekend. I wanted to ask the group if anyone might know of any case law
>> that stands for the proposition that even if the tenant posts the rent
>> money into the court registry, the landlord still have the right to
>> terminate the lease and obtain an eviction judgment at a final hearing,
>> despite the tenant's posting of the rent money.
>>
>>
>>
>> In other words, it is my understanding that if a landlord delivers a
>> valid three day notice and the tenant does not pay within that deadline,
>> then the lease is terminated. So if the landlord then files for eviction
>> and the tenant ends up posting the rent due in the court registry, the
>> landlord can still proceed with eviction and obtain an eviction judgment.
>> I know this is the state of the law, but just don't have a case to support
>> it. Supreme Court would be nice or 4th DCA, but anything will help. I've
>> recently had a few judges basically say to me that since the tenant has
>> paid the rent now, they can stay on the premises.
>>
>>
>>
>> Any help is much appreciated.
>>
>>
>>
>> Cary
>>
>> *Law Offices of Cary P. Sabol*
>>
>> *P.O. Box 15981 | West Palm Beach | Florida | 33416 *
>>
>> *Phone: (561) 281-2744 <%28561%29%20281-2744> *
>> ------------------------------
>>
>> *IRS Circular 230 Notice*: Pursuant to recently enacted U.S. Treasury
>> Department Regulations, we are now required to advise you that, unless
>> otherwise expressly indicated, any federal tax advice expressed above was
>> neither written nor intended by the sender or this firm to be used and
>> cannot be used by any taxpayer for the purpose of avoiding penalties that
>> may be imposed under U.S. tax law. If any person uses or refers to any such
>> tax advice in promoting, marketing or recommending a partnership or other
>> entity, investment plan or arrangement to any taxpayer, then the advice
>> should be considered to have been written to support the promotion or
>> marketing by a person other than the sender or this firm of that
>> transaction or matter, and such taxpayer should seek advice based on the
>> taxpayer's particular circumstances from an independent tax advisor.
>>
>>
>>
>> *Confidentiality Notice*: This electronic mail transmission is intended
>> for the use of the individual or entity to which it is addressed and may
>> contain confidential information belonging to the sender which is protected
>> by the attorney-client privilege. If you are not the intended recipient,
>> you are hereby notified that any disclosure, copying, distribution, or the
>> taking of any action in reliance on the contents of this information is
>> strictly prohibited. If you have received this transmission in error,
>> please notify the sender immediately by e-mail and delete the original
>> message. Thank you for your cooperation.
>>
>>
>>
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>
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GD
Gioia DeCarlo
Wed, May 27, 2015 1:28 PM
I do not agree in the case of evictions, at least residential, which is
overwhelmingly what my eviction cases are. Numerous times I have
successfully filed a motion to strike answer (as untimely) and moved for
judgment, which was entered without hearing.
83.60(2) reads in part "Failure of the tenant to pay the rent into the
registry of the court or to file a motion to determine the amount of rent to
be paid into the registry within 5 days, excluding Saturdays, Sundays, and
legal holidays, after the date of service of process constitutes an absolute
waiver of the tenant¹s defenses other than payment, and the landlord is
entitled to an immediate default judgment for removal of the tenant with a
writ of possession to issue without further notice or hearing thereon.²
(emphasis mine)
This language always goes in my motion to stike an untimely answer (which is
usually some sob story about no job, an illness, or the landlord¹s lack of
taking care of the unit) and also in my filing for default.
And when a tenant does answer timely, it can be stricken on the 6th day if
the rent is not deposited unless it alleges proof of payment.
In my opinion, and my experience, unless the Tenant deposits the amount in
the registry or shows proof of payment (I have NEVER had a tenant show proof
of payment), they¹re out. Period. Further, if they file a motion to
determine rent and base it on decreasing the rent due to some deficiency in
the premises or any violation of the landlord¹s obligations, the tenant has
to show he/she first served the landlord with the statutory 7-day notice to
cure and the landlord failed to do so. I have yet to have a tenant do that
either. Of course, if the 3-day notice had the incorrect rent amount, and a
motion to determine is filed timely, then the 3-day notice needs to be
served again. However, after the fairly recent amendment, the case is
dismissed with leave to amend instead of just dismissed.
It is also my experience, that the judges, and the mediators (when the judge
sends it to mediation which is the farthest I have hasd tenants get) are
fully aware that tenants often file motions to determine rent and answers
with irrelevant allegations without rent deposited just as a delay tactic
and the judgment enters and they restrain, usually, from rolling their eyes.
Gioia DeCarlo
This e-mail transmission and any documents, files or previous e-mail
messages attached to it, are confidential and are protected by the
attorney-client privilege and/or work product doctrine. If you are not the
intended recipient, or a person responsible for delivering it to the
intended recipient, you are hereby notified that any review, disclosure,
copying, dissemination, distribution or use of any of the information
contained in, or attached to this e-mail transmission is STRICTLY
PROHIBITED. If you have received this transmission in error, please
immediately notify me by forwarding this e-mail to Info@dvllclegal.com, or
by telephone at (845) 321-0242 and then delete the message and its
attachments from your computer.
From: Deborah Marks deborahmarkslaw@gmail.com
Reply-To: RPPTL Landlord Tenant Committee landten@lists.flabarrpptl.org
Date: Wednesday, May 27, 2015 at 9:01 AM
To: RPPTL Landlord Tenant Committee landten@lists.flabarrpptl.org
Subject: Re: [RPPTL LandTen] Case law on discretion to answer complaint
after 5 day summons expired
Until a default is entered a defendant can answer without permission- even
weeks late.that is standard civil procedure. Similarly, with cause even a
default can be vacated. You will not find any law to contravene those basic
rules. The penalty for not answering in time is that the relief sought may
be entered without further notice. If you read the summons- it lays that
out. It does not say if you fill to respond within 5 days you have lost all
ability to defend no matter what.
Deborah Marks
Deborah Marks, PA
18495 S. Dixie Hwy
Ste 134
Miami, FL 33157
305-372-9400
Sent from my iPhone
On May 26, 2015, at 1:32 PM, Sebastian Jaramillo sebastian@lawjb.com
wrote:
I am trying to find some case law that essentially states that the court lacks
discretion to grant additional time to answer an eviction complaint beyond the
five day summons.
Any help is appreciated.
Sebastian Jaramillo, Esq.
66 W. Flagler St Suite 500 Miami, FL 33130
Tel: (305) 600-3805 Fax: (786) 347-5562
www.lawjb.com http://www.lawjb.com
This email and any files transmitted with it are confidential and intended
solely for the use of the individual or entity to whom they are addressed. If
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reliance on the contents of this information is strictly prohibited.
IMPORTANT TAX NOTICE: This communication is not written to be used, and cannot
be used, by a taxpayer for the purpose of avoiding penalties that may be
asserted against the taxpayer under the Internal Revenue Code of 1986, as
amended.
On Tue, May 26, 2015 at 1:12 PM, Leonard Cabral LensLaw@lenslaw.com wrote:
COMPARE the language in the chapter 83 and the mobile home statute. The
mobile home statute allows the person who pays to stay. That language is
absent in chapter 83. Paying money into the registry of the court the
opportunity for a defense such as legally withholding rent, retaliatory
eviction, Fair Housing violations, failure of numerous public housing
requirements before eviction, etc. If those defenses are valid the judge
rules for the tenant who can stay in the property.
Leonard P. Cabral
Leonardcabral@lenslaw.com
From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol
Sent: Tuesday, May 26, 2015 8:34 AM
To: Manuel Farach; RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Question regarding tenant's payment into court
registry
Thanks Manny. I'm looking for a residential context. There is actually a
case that says landlord proves a prima facie case for eviction when it proves
(1) rental agreement; (2) tenants failure to timely pay rent; and (3) service
of a 3 day notice. So I interpret that to mean once the 3 day period
expires, tenant can be evicted even if it pays rent into the registry after
filing of eviction case. However, that is a commercial case, not a
residential.
Anyhow, thanks for your input, I'll see what the rest of the group has to
say.
Cary
Law Offices of Cary P. Sabol
P.O. Box 15981 | West Palm Beach | Florida | 33416
Phone: (561) 281-2744 tel:%28561%29%20281-2744
IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury
Department Regulations, we are now required to advise you that, unless
otherwise expressly indicated, any federal tax advice expressed above was
neither written nor intended by the sender or this firm to be used and cannot
be used by any taxpayer for the purpose of avoiding penalties that may be
imposed under U.S. tax law. If any person uses or refers to any such tax
advice in promoting, marketing or recommending a partnership or other entity,
investment plan or arrangement to any taxpayer, then the advice should be
considered to have been written to support the promotion or marketing by a
person other than the sender or this firm of that transaction or matter, and
such taxpayer should seek advice based on the taxpayer's particular
circumstances from an independent tax advisor.
Confidentiality Notice: This electronic mail transmission is intended for the
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prohibited. If you have received this transmission in error, please notify
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From: Manuel Farach MFarach@richmangreer.com
To: 'Cary Sabol' sabollawoffice@yahoo.com
Sent: Saturday, May 23, 2015 6:40 AM
Subject: RE: [RPPTL LandTen] Question regarding tenant's payment into court
registry
Cary,
I¹ve viewed it as the Three Day Notice being a statutory condition precedent
to filing suit (see Judge Gross¹s opinion in Bell v. Kornblatt regarding the
waivability of the Three Day Notice). I don¹t think the notice has the
ability to terminate the lease, and I think that can only be done by a
judgment under 83.20. I¹d like to see if anyone else has the same opinion.
Manny
Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business
Litigation by The Florida Bar
Richman Greer P.A.
One Clearlake Centre
Suite 1504
250 Australian Avenue South
West Palm Beach, Florida 33401
Office: 561.803.3500 tel:561.803.3500
Fax: 561.820.1608 tel:561.820.1608
Direct: 561.803.3501 tel:561.803.3501
Email: MFarach@richmangreer.com
V-card http://richmangreer.com/uploads/vcards/VcardFarach.vcf
www.RichmanGreer.com http://www.richmangreer.com/
U.S. Treasury Regulation Circular 230 requires us to advise you that written
communications issued by us are not intended to be and cannot be relied upon
to avoid penalties that may be imposed by the Internal Revenue Service.
Incoming emails are filtered which may delay receipt. This email is personal
to the named recipient(s) and may be privileged and confidential. If you are
not the intended recipient, you received this in error. If so, any review,
dissemination, or copying of this email is prohibited. Please immediately
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From:landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol
Sent: Friday, May 22, 2015 5:27 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Question regarding tenant's payment into court
registry
Hi All,
Hope everyone is doing well and looking forward to a relaxing holiday
weekend. I wanted to ask the group if anyone might know of any case law that
stands for the proposition that even if the tenant posts the rent money into
the court registry, the landlord still have the right to terminate the lease
and obtain an eviction judgment at a final hearing, despite the tenant's
posting of the rent money.
In other words, it is my understanding that if a landlord delivers a valid
three day notice and the tenant does not pay within that deadline, then the
lease is terminated. So if the landlord then files for eviction and the
tenant ends up posting the rent due in the court registry, the landlord can
still proceed with eviction and obtain an eviction judgment. I know this is
the state of the law, but just don't have a case to support it. Supreme
Court would be nice or 4th DCA, but anything will help. I've recently had a
few judges basically say to me that since the tenant has paid the rent now,
they can stay on the premises.
Any help is much appreciated.
Cary
Law Offices of Cary P. Sabol
P.O. Box 15981 | West Palm Beach | Florida | 33416
Phone: (561) 281-2744 tel:%28561%29%20281-2744
IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury
Department Regulations, we are now required to advise you that, unless
otherwise expressly indicated, any federal tax advice expressed above was
neither written nor intended by the sender or this firm to be used and cannot
be used by any taxpayer for the purpose of avoiding penalties that may be
imposed under U.S. tax law. If any person uses or refers to any such tax
advice in promoting, marketing or recommending a partnership or other entity,
investment plan or arrangement to any taxpayer, then the advice should be
considered to have been written to support the promotion or marketing by a
person other than the sender or this firm of that transaction or matter, and
such taxpayer should seek advice based on the taxpayer's particular
circumstances from an independent tax advisor.
Confidentiality Notice: This electronic mail transmission is intended for the
use of the individual or entity to which it is addressed and may contain
confidential information belonging to the sender which is protected by the
attorney-client privilege. If you are not the intended recipient, you are
hereby notified that any disclosure, copying, distribution, or the taking of
any action in reliance on the contents of this information is strictly
prohibited. If you have received this transmission in error, please notify
the sender immediately by e-mail and delete the original message. Thank you
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landten mailing list
landten@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/landten
I do not agree in the case of evictions, at least residential, which is
overwhelmingly what my eviction cases are. Numerous times I have
successfully filed a motion to strike answer (as untimely) and moved for
judgment, which was entered without hearing.
83.60(2) reads in part "Failure of the tenant to pay the rent into the
registry of the court or to file a motion to determine the amount of rent to
be paid into the registry within 5 days, excluding Saturdays, Sundays, and
legal holidays, after the date of service of process constitutes an absolute
waiver of the tenant¹s defenses other than payment, and the landlord is
entitled to an immediate default judgment for removal of the tenant with a
writ of possession to issue without further notice or hearing thereon.²
(emphasis mine)
This language always goes in my motion to stike an untimely answer (which is
usually some sob story about no job, an illness, or the landlord¹s lack of
taking care of the unit) and also in my filing for default.
And when a tenant does answer timely, it can be stricken on the 6th day if
the rent is not deposited unless it alleges proof of payment.
In my opinion, and my experience, unless the Tenant deposits the amount in
the registry or shows proof of payment (I have NEVER had a tenant show proof
of payment), they¹re out. Period. Further, if they file a motion to
determine rent and base it on decreasing the rent due to some deficiency in
the premises or any violation of the landlord¹s obligations, the tenant has
to show he/she first served the landlord with the statutory 7-day notice to
cure and the landlord failed to do so. I have yet to have a tenant do that
either. Of course, if the 3-day notice had the incorrect rent amount, and a
motion to determine is filed timely, then the 3-day notice needs to be
served again. However, after the fairly recent amendment, the case is
dismissed with leave to amend instead of just dismissed.
It is also my experience, that the judges, and the mediators (when the judge
sends it to mediation which is the farthest I have hasd tenants get) are
fully aware that tenants often file motions to determine rent and answers
with irrelevant allegations without rent deposited just as a delay tactic
and the judgment enters and they restrain, usually, from rolling their eyes.
Gioia DeCarlo
This e-mail transmission and any documents, files or previous e-mail
messages attached to it, are confidential and are protected by the
attorney-client privilege and/or work product doctrine. If you are not the
intended recipient, or a person responsible for delivering it to the
intended recipient, you are hereby notified that any review, disclosure,
copying, dissemination, distribution or use of any of the information
contained in, or attached to this e-mail transmission is STRICTLY
PROHIBITED. If you have received this transmission in error, please
immediately notify me by forwarding this e-mail to Info@dvllclegal.com, or
by telephone at (845) 321-0242 and then delete the message and its
attachments from your computer.
From: Deborah Marks <deborahmarkslaw@gmail.com>
Reply-To: RPPTL Landlord Tenant Committee <landten@lists.flabarrpptl.org>
Date: Wednesday, May 27, 2015 at 9:01 AM
To: RPPTL Landlord Tenant Committee <landten@lists.flabarrpptl.org>
Subject: Re: [RPPTL LandTen] Case law on discretion to answer complaint
after 5 day summons expired
Until a default is entered a defendant can answer without permission- even
weeks late.that is standard civil procedure. Similarly, with cause even a
default can be vacated. You will not find any law to contravene those basic
rules. The penalty for not answering in time is that the relief sought may
be entered without further notice. If you read the summons- it lays that
out. It does not say if you fill to respond within 5 days you have lost all
ability to defend no matter what.
Deborah Marks
Deborah Marks, PA
18495 S. Dixie Hwy
Ste 134
Miami, FL 33157
305-372-9400
Sent from my iPhone
On May 26, 2015, at 1:32 PM, Sebastian Jaramillo <sebastian@lawjb.com>
wrote:
> I am trying to find some case law that essentially states that the court lacks
> discretion to grant additional time to answer an eviction complaint beyond the
> five day summons.
>
> Any help is appreciated.
> Sebastian Jaramillo, Esq.
>
>
>
> 66 W. Flagler St Suite 500 Miami, FL 33130
> Tel: (305) 600-3805 Fax: (786) 347-5562
> www.lawjb.com <http://www.lawjb.com>
>
> This email and any files transmitted with it are confidential and intended
> solely for the use of the individual or entity to whom they are addressed. If
> you have received this email in error please notify the system manager. This
> message contains confidential information and is intended only for the
> individual named. If you are not the named addressee you should not
> disseminate, distribute or copy this e-mail. Please notify the sender
> immediately by e-mail if you have received this e-mail by mistake and delete
> this e-mail from your system. If you are not the intended recipient you are
> notified that disclosing, copying, distributing or taking any action in
> reliance on the contents of this information is strictly prohibited.
> IMPORTANT TAX NOTICE: This communication is not written to be used, and cannot
> be used, by a taxpayer for the purpose of avoiding penalties that may be
> asserted against the taxpayer under the Internal Revenue Code of 1986, as
> amended.
>
> On Tue, May 26, 2015 at 1:12 PM, Leonard Cabral <LensLaw@lenslaw.com> wrote:
>> COMPARE the language in the chapter 83 and the mobile home statute. The
>> mobile home statute allows the person who pays to stay. That language is
>> absent in chapter 83. Paying money into the registry of the court the
>> opportunity for a defense such as legally withholding rent, retaliatory
>> eviction, Fair Housing violations, failure of numerous public housing
>> requirements before eviction, etc. If those defenses are valid the judge
>> rules for the tenant who can stay in the property.
>>
>> Leonard P. Cabral
>> Leonardcabral@lenslaw.com
>>
>>
>>
>>
>> From: landten-bounces@lists.flabarrpptl.org
>> [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol
>> Sent: Tuesday, May 26, 2015 8:34 AM
>> To: Manuel Farach; RPPTL Landlord Tenant Committee
>> Subject: Re: [RPPTL LandTen] Question regarding tenant's payment into court
>> registry
>>
>>
>> Thanks Manny. I'm looking for a residential context. There is actually a
>> case that says landlord proves a prima facie case for eviction when it proves
>> (1) rental agreement; (2) tenants failure to timely pay rent; and (3) service
>> of a 3 day notice. So I interpret that to mean once the 3 day period
>> expires, tenant can be evicted even if it pays rent into the registry after
>> filing of eviction case. However, that is a commercial case, not a
>> residential.
>>
>>
>>
>> Anyhow, thanks for your input, I'll see what the rest of the group has to
>> say.
>>
>>
>>
>> Cary
>>
>> Law Offices of Cary P. Sabol
>>
>> P.O. Box 15981 | West Palm Beach | Florida | 33416
>>
>> Phone: (561) 281-2744 <tel:%28561%29%20281-2744>
>>
>>
>> IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury
>> Department Regulations, we are now required to advise you that, unless
>> otherwise expressly indicated, any federal tax advice expressed above was
>> neither written nor intended by the sender or this firm to be used and cannot
>> be used by any taxpayer for the purpose of avoiding penalties that may be
>> imposed under U.S. tax law. If any person uses or refers to any such tax
>> advice in promoting, marketing or recommending a partnership or other entity,
>> investment plan or arrangement to any taxpayer, then the advice should be
>> considered to have been written to support the promotion or marketing by a
>> person other than the sender or this firm of that transaction or matter, and
>> such taxpayer should seek advice based on the taxpayer's particular
>> circumstances from an independent tax advisor.
>>
>>
>>
>> Confidentiality Notice: This electronic mail transmission is intended for the
>> use of the individual or entity to which it is addressed and may contain
>> confidential information belonging to the sender which is protected by the
>> attorney-client privilege. If you are not the intended recipient, you are
>> hereby notified that any disclosure, copying, distribution, or the taking of
>> any action in reliance on the contents of this information is strictly
>> prohibited. If you have received this transmission in error, please notify
>> the sender immediately by e-mail and delete the original message. Thank you
>> for your cooperation.
>>
>>
>>
>> From: Manuel Farach <MFarach@richmangreer.com>
>> To: 'Cary Sabol' <sabollawoffice@yahoo.com>
>> Sent: Saturday, May 23, 2015 6:40 AM
>> Subject: RE: [RPPTL LandTen] Question regarding tenant's payment into court
>> registry
>>
>>
>>
>> Cary,
>>
>> I¹ve viewed it as the Three Day Notice being a statutory condition precedent
>> to filing suit (see Judge Gross¹s opinion in Bell v. Kornblatt regarding the
>> waivability of the Three Day Notice). I don¹t think the notice has the
>> ability to terminate the lease, and I think that can only be done by a
>> judgment under 83.20. I¹d like to see if anyone else has the same opinion.
>>
>> Manny
>>
>>
>>
>>
>> Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business
>> Litigation by The Florida Bar
>>
>> Richman Greer P.A.
>> One Clearlake Centre
>> Suite 1504
>> 250 Australian Avenue South
>> West Palm Beach, Florida 33401
>> Office: 561.803.3500 <tel:561.803.3500>
>> Fax: 561.820.1608 <tel:561.820.1608>
>> Direct: 561.803.3501 <tel:561.803.3501>
>> Email: MFarach@richmangreer.com
>> V-card <http://richmangreer.com/uploads/vcards/VcardFarach.vcf>
>>
>> www.RichmanGreer.com <http://www.richmangreer.com/>
>>
>> U.S. Treasury Regulation Circular 230 requires us to advise you that written
>> communications issued by us are not intended to be and cannot be relied upon
>> to avoid penalties that may be imposed by the Internal Revenue Service.
>>
>> Incoming emails are filtered which may delay receipt. This email is personal
>> to the named recipient(s) and may be privileged and confidential. If you are
>> not the intended recipient, you received this in error. If so, any review,
>> dissemination, or copying of this email is prohibited. Please immediately
>> notify us by email and delete the original message.
>>
>>
>>
>>
>>
>>
>> From:landten-bounces@lists.flabarrpptl.org
>> [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol
>> Sent: Friday, May 22, 2015 5:27 PM
>> To: RPPTL Landlord Tenant Committee
>> Subject: [RPPTL LandTen] Question regarding tenant's payment into court
>> registry
>>
>>
>>
>> Hi All,
>>
>>
>>
>> Hope everyone is doing well and looking forward to a relaxing holiday
>> weekend. I wanted to ask the group if anyone might know of any case law that
>> stands for the proposition that even if the tenant posts the rent money into
>> the court registry, the landlord still have the right to terminate the lease
>> and obtain an eviction judgment at a final hearing, despite the tenant's
>> posting of the rent money.
>>
>>
>>
>> In other words, it is my understanding that if a landlord delivers a valid
>> three day notice and the tenant does not pay within that deadline, then the
>> lease is terminated. So if the landlord then files for eviction and the
>> tenant ends up posting the rent due in the court registry, the landlord can
>> still proceed with eviction and obtain an eviction judgment. I know this is
>> the state of the law, but just don't have a case to support it. Supreme
>> Court would be nice or 4th DCA, but anything will help. I've recently had a
>> few judges basically say to me that since the tenant has paid the rent now,
>> they can stay on the premises.
>>
>>
>>
>> Any help is much appreciated.
>>
>>
>>
>> Cary
>>
>> Law Offices of Cary P. Sabol
>>
>> P.O. Box 15981 | West Palm Beach | Florida | 33416
>>
>> Phone: (561) 281-2744 <tel:%28561%29%20281-2744>
>>
>>
>> IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury
>> Department Regulations, we are now required to advise you that, unless
>> otherwise expressly indicated, any federal tax advice expressed above was
>> neither written nor intended by the sender or this firm to be used and cannot
>> be used by any taxpayer for the purpose of avoiding penalties that may be
>> imposed under U.S. tax law. If any person uses or refers to any such tax
>> advice in promoting, marketing or recommending a partnership or other entity,
>> investment plan or arrangement to any taxpayer, then the advice should be
>> considered to have been written to support the promotion or marketing by a
>> person other than the sender or this firm of that transaction or matter, and
>> such taxpayer should seek advice based on the taxpayer's particular
>> circumstances from an independent tax advisor.
>>
>>
>>
>> Confidentiality Notice: This electronic mail transmission is intended for the
>> use of the individual or entity to which it is addressed and may contain
>> confidential information belonging to the sender which is protected by the
>> attorney-client privilege. If you are not the intended recipient, you are
>> hereby notified that any disclosure, copying, distribution, or the taking of
>> any action in reliance on the contents of this information is strictly
>> prohibited. If you have received this transmission in error, please notify
>> the sender immediately by e-mail and delete the original message. Thank you
>> for your cooperation.
>>
>>
>> _______________________________________________
>> landten mailing list
>> landten@lists.flabarrpptl.org
>> http://mailman.fsr.com/mailman/listinfo/landten
>
> _______________________________________________
> landten mailing list
> landten@lists.flabarrpptl.org
> http://mailman.fsr.com/mailman/listinfo/landten
_______________________________________________ landten mailing list
landten@lists.flabarrpptl.org
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JZ
James Zink
Wed, May 27, 2015 1:38 PM
While all that is correct, it presumes there is a failure to pay into the registry, which I don't believe Sebastian mentioned. The only thing required by the statute is payment or a motion to determine rent. If that has happened, which I assume since a failure to pay into the registry is pretty straightforward, I agree with Deborah most judges will give an opportunity to file an Answer unless a default is entered. You can move for a default if none is filed, and if the judge grants it before the answer, you would be golden. But my guess is, based on the question, you don't want the Answer considered at all after it has already been filed, and I don't believe the statute supports that position, again assuming rent is paid into the registry.
James Zink, Esq.
Florida Rural Legal Services, Inc.
3111 South Dixie Highway, Suite 140
West Palm Beach, FL 33405
Phone: (561) 820-8902 x. 6025
Fax: (561) 820-8892
The information contained in this e-mail, including any attachment(s), is intended solely for use by the named addressee(s). If you are not the intended recipient, or a person designated as responsible for delivering such messages to the intended recipient, you are not authorized to disclose, copy, distribute or retain this message, in whole or in part, without written authorization from the sender. If you have received this message in error, please notify the sender immediately
From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Gioia DeCarlo
Sent: Wednesday, May 27, 2015 9:29 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Case law on discretion to answer complaint after 5 day summons expired
I do not agree in the case of evictions, at least residential, which is overwhelmingly what my eviction cases are. Numerous times I have successfully filed a motion to strike answer (as untimely) and moved for judgment, which was entered without hearing.
83.60(2) reads in part "Failure of the tenant to pay the rent into the registry of the court or to file a motion to determine the amount of rent to be paid into the registry within 5 days, excluding Saturdays, Sundays, and legal holidays, after the date of service of process constitutes an absolute waiver of the tenant's defenses other than payment, and the landlord is entitled to an immediate default judgment for removal of the tenant with a writ of possession to issue without further notice or hearing thereon." (emphasis mine)
This language always goes in my motion to stike an untimely answer (which is usually some sob story about no job, an illness, or the landlord's lack of taking care of the unit) and also in my filing for default.
And when a tenant does answer timely, it can be stricken on the 6th day if the rent is not deposited unless it alleges proof of payment.
In my opinion, and my experience, unless the Tenant deposits the amount in the registry or shows proof of payment (I have NEVER had a tenant show proof of payment), they're out. Period. Further, if they file a motion to determine rent and base it on decreasing the rent due to some deficiency in the premises or any violation of the landlord's obligations, the tenant has to show he/she first served the landlord with the statutory 7-day notice to cure and the landlord failed to do so. I have yet to have a tenant do that either. Of course, if the 3-day notice had the incorrect rent amount, and a motion to determine is filed timely, then the 3-day notice needs to be served again. However, after the fairly recent amendment, the case is dismissed with leave to amend instead of just dismissed.
It is also my experience, that the judges, and the mediators (when the judge sends it to mediation- which is the farthest I have hasd tenants get) are fully aware that tenants often file motions to determine rent and answers with irrelevant allegations without rent deposited just as a delay tactic and the judgment enters and they restrain, usually, from rolling their eyes.
Gioia DeCarlo
[cid:image002.png@01D09860.D60B1FC0]
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From: Deborah Marks <deborahmarkslaw@gmail.commailto:deborahmarkslaw@gmail.com>
Reply-To: RPPTL Landlord Tenant Committee <landten@lists.flabarrpptl.orgmailto:landten@lists.flabarrpptl.org>
Date: Wednesday, May 27, 2015 at 9:01 AM
To: RPPTL Landlord Tenant Committee <landten@lists.flabarrpptl.orgmailto:landten@lists.flabarrpptl.org>
Subject: Re: [RPPTL LandTen] Case law on discretion to answer complaint after 5 day summons expired
Until a default is entered a defendant can answer without permission- even weeks late.that is standard civil procedure. Similarly, with cause even a default can be vacated. You will not find any law to contravene those basic rules. The penalty for not answering in time is that the relief sought may be entered without further notice. If you read the summons- it lays that out. It does not say if you fill to respond within 5 days you have lost all ability to defend no matter what.
Deborah Marks
Deborah Marks, PA
18495 S. Dixie Hwy
Ste 134
Miami, FL 33157
305-372-9400
Sent from my iPhone
On May 26, 2015, at 1:32 PM, Sebastian Jaramillo <sebastian@lawjb.commailto:sebastian@lawjb.com> wrote:
I am trying to find some case law that essentially states that the court lacks discretion to grant additional time to answer an eviction complaint beyond the five day summons.
Any help is appreciated.
Sebastian Jaramillo, Esq.
[cid:~WRD000.jpg]
66 W. Flagler St Suite 500 Miami, FL 33130
Tel: (305) 600-3805 Fax: (786) 347-5562
www.lawjb.comhttp://www.lawjb.com
This email and any files transmitted with it are confidential and intended solely for the use of the individual or entity to whom they are addressed. If you have received this email in error please notify the system manager. This message contains confidential information and is intended only for the individual named. If you are not the named addressee you should not disseminate, distribute or copy this e-mail. Please notify the sender immediately by e-mail if you have received this e-mail by mistake and delete this e-mail from your system. If you are not the intended recipient you are notified that disclosing, copying, distributing or taking any action in reliance on the contents of this information is strictly prohibited.
IMPORTANT TAX NOTICE: This communication is not written to be used, and cannot be used, by a taxpayer for the purpose of avoiding penalties that may be asserted against the taxpayer under the Internal Revenue Code of 1986, as amended.
On Tue, May 26, 2015 at 1:12 PM, Leonard Cabral <LensLaw@lenslaw.commailto:LensLaw@lenslaw.com> wrote:
COMPARE the language in the chapter 83 and the mobile home statute. The mobile home statute allows the person who pays to stay. That language is absent in chapter 83. Paying money into the registry of the court the opportunity for a defense such as legally withholding rent, retaliatory eviction, Fair Housing violations, failure of numerous public housing requirements before eviction, etc. If those defenses are valid the judge rules for the tenant who can stay in the property.
Leonard P. Cabral
Leonardcabral@lenslaw.commailto:Leonardcabral@lenslaw.com
From: landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol
Sent: Tuesday, May 26, 2015 8:34 AM
To: Manuel Farach; RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Question regarding tenant's payment into court registry
Thanks Manny. I'm looking for a residential context. There is actually a case that says landlord proves a prima facie case for eviction when it proves (1) rental agreement; (2) tenants failure to timely pay rent; and (3) service of a 3 day notice. So I interpret that to mean once the 3 day period expires, tenant can be evicted even if it pays rent into the registry after filing of eviction case. However, that is a commercial case, not a residential.
Anyhow, thanks for your input, I'll see what the rest of the group has to say.
Cary
Law Offices of Cary P. Sabol
P.O. Box 15981 | West Palm Beach | Florida | 33416
Phone: (561) 281-2744tel:%28561%29%20281-2744
IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor.
Confidentiality Notice: This electronic mail transmission is intended for the use of the individual or entity to which it is addressed and may contain confidential information belonging to the sender which is protected by the attorney-client privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please notify the sender immediately by e-mail and delete the original message. Thank you for your cooperation.
From: Manuel Farach <MFarach@richmangreer.commailto:MFarach@richmangreer.com>
To: 'Cary Sabol' <sabollawoffice@yahoo.commailto:sabollawoffice@yahoo.com>
Sent: Saturday, May 23, 2015 6:40 AM
Subject: RE: [RPPTL LandTen] Question regarding tenant's payment into court registry
Cary,
I've viewed it as the Three Day Notice being a statutory condition precedent to filing suit (see Judge Gross's opinion in Bell v. Kornblatt regarding the waivability of the Three Day Notice). I don't think the notice has the ability to terminate the lease, and I think that can only be done by a judgment under 83.20. I'd like to see if anyone else has the same opinion.
Manny
[cid:image003.gif@01D09860.D60B1FC0]
Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar
Richman Greer P.A.
One Clearlake Centre
Suite 1504
250 Australian Avenue South
West Palm Beach, Florida 33401
Office: 561.803.3500tel:561.803.3500
Fax: 561.820.1608tel:561.820.1608
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From:landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol
Sent: Friday, May 22, 2015 5:27 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Question regarding tenant's payment into court registry
Hi All,
Hope everyone is doing well and looking forward to a relaxing holiday weekend. I wanted to ask the group if anyone might know of any case law that stands for the proposition that even if the tenant posts the rent money into the court registry, the landlord still have the right to terminate the lease and obtain an eviction judgment at a final hearing, despite the tenant's posting of the rent money.
In other words, it is my understanding that if a landlord delivers a valid three day notice and the tenant does not pay within that deadline, then the lease is terminated. So if the landlord then files for eviction and the tenant ends up posting the rent due in the court registry, the landlord can still proceed with eviction and obtain an eviction judgment. I know this is the state of the law, but just don't have a case to support it. Supreme Court would be nice or 4th DCA, but anything will help. I've recently had a few judges basically say to me that since the tenant has paid the rent now, they can stay on the premises.
Any help is much appreciated.
Cary
Law Offices of Cary P. Sabol
P.O. Box 15981 | West Palm Beach | Florida | 33416
Phone: (561) 281-2744tel:%28561%29%20281-2744
IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor.
Confidentiality Notice: This electronic mail transmission is intended for the use of the individual or entity to which it is addressed and may contain confidential information belonging to the sender which is protected by the attorney-client privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please notify the sender immediately by e-mail and delete the original message. Thank you for your cooperation.
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While all that is correct, it presumes there is a failure to pay into the registry, which I don't believe Sebastian mentioned. The only thing required by the statute is payment or a motion to determine rent. If that has happened, which I assume since a failure to pay into the registry is pretty straightforward, I agree with Deborah most judges will give an opportunity to file an Answer unless a default is entered. You can move for a default if none is filed, and if the judge grants it before the answer, you would be golden. But my guess is, based on the question, you don't want the Answer considered at all after it has already been filed, and I don't believe the statute supports that position, again assuming rent is paid into the registry.
James Zink, Esq.
Florida Rural Legal Services, Inc.
3111 South Dixie Highway, Suite 140
West Palm Beach, FL 33405
Phone: (561) 820-8902 x. 6025
Fax: (561) 820-8892
The information contained in this e-mail, including any attachment(s), is intended solely for use by the named addressee(s). If you are not the intended recipient, or a person designated as responsible for delivering such messages to the intended recipient, you are not authorized to disclose, copy, distribute or retain this message, in whole or in part, without written authorization from the sender. If you have received this message in error, please notify the sender immediately
From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Gioia DeCarlo
Sent: Wednesday, May 27, 2015 9:29 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Case law on discretion to answer complaint after 5 day summons expired
I do not agree in the case of evictions, at least residential, which is overwhelmingly what my eviction cases are. Numerous times I have successfully filed a motion to strike answer (as untimely) and moved for judgment, which was entered without hearing.
83.60(2) reads in part "Failure of the tenant to pay the rent into the registry of the court or to file a motion to determine the amount of rent to be paid into the registry within 5 days, excluding Saturdays, Sundays, and legal holidays, after the date of service of process constitutes an absolute waiver of the tenant's defenses other than payment, and the landlord is entitled to an immediate default judgment for removal of the tenant with a writ of possession to issue without further notice or hearing thereon." (emphasis mine)
This language always goes in my motion to stike an untimely answer (which is usually some sob story about no job, an illness, or the landlord's lack of taking care of the unit) and also in my filing for default.
And when a tenant does answer timely, it can be stricken on the 6th day if the rent is not deposited unless it alleges proof of payment.
In my opinion, and my experience, unless the Tenant deposits the amount in the registry or shows proof of payment (I have NEVER had a tenant show proof of payment), they're out. Period. Further, if they file a motion to determine rent and base it on decreasing the rent due to some deficiency in the premises or any violation of the landlord's obligations, the tenant has to show he/she first served the landlord with the statutory 7-day notice to cure and the landlord failed to do so. I have yet to have a tenant do that either. Of course, if the 3-day notice had the incorrect rent amount, and a motion to determine is filed timely, then the 3-day notice needs to be served again. However, after the fairly recent amendment, the case is dismissed with leave to amend instead of just dismissed.
It is also my experience, that the judges, and the mediators (when the judge sends it to mediation- which is the farthest I have hasd tenants get) are fully aware that tenants often file motions to determine rent and answers with irrelevant allegations without rent deposited just as a delay tactic and the judgment enters and they restrain, usually, from rolling their eyes.
Gioia DeCarlo
[cid:image002.png@01D09860.D60B1FC0]
This e-mail transmission and any documents, files or previous e-mail messages attached to it, are confidential and are protected by the attorney-client privilege and/or work product doctrine. If you are not the intended recipient, or a person responsible for delivering it to the intended recipient, you are hereby notified that any review, disclosure, copying, dissemination, distribution or use of any of the information contained in, or attached to this e-mail transmission is STRICTLY PROHIBITED. If you have received this transmission in error, please immediately notify me by forwarding this e-mail to Info@dvllclegal.com<mailto:Info@dvllclegal.com>, or by telephone at (845) 321-0242 and then delete the message and its attachments from your computer.
From: Deborah Marks <deborahmarkslaw@gmail.com<mailto:deborahmarkslaw@gmail.com>>
Reply-To: RPPTL Landlord Tenant Committee <landten@lists.flabarrpptl.org<mailto:landten@lists.flabarrpptl.org>>
Date: Wednesday, May 27, 2015 at 9:01 AM
To: RPPTL Landlord Tenant Committee <landten@lists.flabarrpptl.org<mailto:landten@lists.flabarrpptl.org>>
Subject: Re: [RPPTL LandTen] Case law on discretion to answer complaint after 5 day summons expired
Until a default is entered a defendant can answer without permission- even weeks late.that is standard civil procedure. Similarly, with cause even a default can be vacated. You will not find any law to contravene those basic rules. The penalty for not answering in time is that the relief sought may be entered without further notice. If you read the summons- it lays that out. It does not say if you fill to respond within 5 days you have lost all ability to defend no matter what.
Deborah Marks
Deborah Marks, PA
18495 S. Dixie Hwy
Ste 134
Miami, FL 33157
305-372-9400
Sent from my iPhone
On May 26, 2015, at 1:32 PM, Sebastian Jaramillo <sebastian@lawjb.com<mailto:sebastian@lawjb.com>> wrote:
I am trying to find some case law that essentially states that the court lacks discretion to grant additional time to answer an eviction complaint beyond the five day summons.
Any help is appreciated.
Sebastian Jaramillo, Esq.
[cid:~WRD000.jpg]
66 W. Flagler St Suite 500 Miami, FL 33130
Tel: (305) 600-3805 Fax: (786) 347-5562
www.lawjb.com<http://www.lawjb.com>
This email and any files transmitted with it are confidential and intended solely for the use of the individual or entity to whom they are addressed. If you have received this email in error please notify the system manager. This message contains confidential information and is intended only for the individual named. If you are not the named addressee you should not disseminate, distribute or copy this e-mail. Please notify the sender immediately by e-mail if you have received this e-mail by mistake and delete this e-mail from your system. If you are not the intended recipient you are notified that disclosing, copying, distributing or taking any action in reliance on the contents of this information is strictly prohibited.
IMPORTANT TAX NOTICE: This communication is not written to be used, and cannot be used, by a taxpayer for the purpose of avoiding penalties that may be asserted against the taxpayer under the Internal Revenue Code of 1986, as amended.
On Tue, May 26, 2015 at 1:12 PM, Leonard Cabral <LensLaw@lenslaw.com<mailto:LensLaw@lenslaw.com>> wrote:
COMPARE the language in the chapter 83 and the mobile home statute. The mobile home statute allows the person who pays to stay. That language is absent in chapter 83. Paying money into the registry of the court the opportunity for a defense such as legally withholding rent, retaliatory eviction, Fair Housing violations, failure of numerous public housing requirements before eviction, etc. If those defenses are valid the judge rules for the tenant who can stay in the property.
Leonard P. Cabral
Leonardcabral@lenslaw.com<mailto:Leonardcabral@lenslaw.com>
From: landten-bounces@lists.flabarrpptl.org<mailto:landten-bounces@lists.flabarrpptl.org> [mailto:landten-bounces@lists.flabarrpptl.org<mailto:landten-bounces@lists.flabarrpptl.org>] On Behalf Of Cary Sabol
Sent: Tuesday, May 26, 2015 8:34 AM
To: Manuel Farach; RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Question regarding tenant's payment into court registry
Thanks Manny. I'm looking for a residential context. There is actually a case that says landlord proves a prima facie case for eviction when it proves (1) rental agreement; (2) tenants failure to timely pay rent; and (3) service of a 3 day notice. So I interpret that to mean once the 3 day period expires, tenant can be evicted even if it pays rent into the registry after filing of eviction case. However, that is a commercial case, not a residential.
Anyhow, thanks for your input, I'll see what the rest of the group has to say.
Cary
Law Offices of Cary P. Sabol
P.O. Box 15981 | West Palm Beach | Florida | 33416
Phone: (561) 281-2744<tel:%28561%29%20281-2744>
________________________________
IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor.
Confidentiality Notice: This electronic mail transmission is intended for the use of the individual or entity to which it is addressed and may contain confidential information belonging to the sender which is protected by the attorney-client privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please notify the sender immediately by e-mail and delete the original message. Thank you for your cooperation.
________________________________
From: Manuel Farach <MFarach@richmangreer.com<mailto:MFarach@richmangreer.com>>
To: 'Cary Sabol' <sabollawoffice@yahoo.com<mailto:sabollawoffice@yahoo.com>>
Sent: Saturday, May 23, 2015 6:40 AM
Subject: RE: [RPPTL LandTen] Question regarding tenant's payment into court registry
Cary,
I've viewed it as the Three Day Notice being a statutory condition precedent to filing suit (see Judge Gross's opinion in Bell v. Kornblatt regarding the waivability of the Three Day Notice). I don't think the notice has the ability to terminate the lease, and I think that can only be done by a judgment under 83.20. I'd like to see if anyone else has the same opinion.
Manny
________________________________
[cid:image003.gif@01D09860.D60B1FC0]
Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar
Richman Greer P.A.
One Clearlake Centre
Suite 1504
250 Australian Avenue South
West Palm Beach, Florida 33401
Office: 561.803.3500<tel:561.803.3500>
Fax: 561.820.1608<tel:561.820.1608>
Direct: 561.803.3501<tel:561.803.3501>
Email: MFarach@richmangreer.com<mailto:MFarach@richmangreer.com>
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www.RichmanGreer.com<http://www.richmangreer.com/>
U.S. Treasury Regulation Circular 230 requires us to advise you that written communications issued by us are not intended to be and cannot be relied upon to avoid penalties that may be imposed by the Internal Revenue Service.
Incoming emails are filtered which may delay receipt. This email is personal to the named recipient(s) and may be privileged and confidential. If you are not the intended recipient, you received this in error. If so, any review, dissemination, or copying of this email is prohibited. Please immediately notify us by email and delete the original message.
________________________________
From:landten-bounces@lists.flabarrpptl.org<mailto:landten-bounces@lists.flabarrpptl.org> [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol
Sent: Friday, May 22, 2015 5:27 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Question regarding tenant's payment into court registry
Hi All,
Hope everyone is doing well and looking forward to a relaxing holiday weekend. I wanted to ask the group if anyone might know of any case law that stands for the proposition that even if the tenant posts the rent money into the court registry, the landlord still have the right to terminate the lease and obtain an eviction judgment at a final hearing, despite the tenant's posting of the rent money.
In other words, it is my understanding that if a landlord delivers a valid three day notice and the tenant does not pay within that deadline, then the lease is terminated. So if the landlord then files for eviction and the tenant ends up posting the rent due in the court registry, the landlord can still proceed with eviction and obtain an eviction judgment. I know this is the state of the law, but just don't have a case to support it. Supreme Court would be nice or 4th DCA, but anything will help. I've recently had a few judges basically say to me that since the tenant has paid the rent now, they can stay on the premises.
Any help is much appreciated.
Cary
Law Offices of Cary P. Sabol
P.O. Box 15981 | West Palm Beach | Florida | 33416
Phone: (561) 281-2744<tel:%28561%29%20281-2744>
________________________________
IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor.
Confidentiality Notice: This electronic mail transmission is intended for the use of the individual or entity to which it is addressed and may contain confidential information belonging to the sender which is protected by the attorney-client privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please notify the sender immediately by e-mail and delete the original message. Thank you for your cooperation.
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SJ
Sebastian Jaramillo
Wed, May 27, 2015 1:44 PM
I agree, my case is a little more complicated. The rent has been deposited
in the registry of the court, the Defendant filed both a Motion to
Determine Rent and a Motion to Dismiss. Both motions have been denied.
There is case law that argues that a tenant's Motion to Dismiss is
essentially a defective answer Crocker v. Diland Corporation 593 So. 2d
1096 (Fla.5th DCA). I need however to find something that shows that the
court lacks discrection to allow Defendant to file an answer after they've
already filed a responsive pleading.
Sebastian Jaramillo, Esq.
66 W. Flagler St Suite 500 Miami, FL 33130
Tel: (305) 600-3805 Fax: (786) 347-5562
www.lawjb.com
This email and any files transmitted with it are confidential and intended
solely for the use of the individual or entity to whom they are addressed.
If you have received this email in error please notify the system manager.
This message contains confidential information and is intended only for the
individual named. If you are not the named addressee you should not
disseminate, distribute or copy this e-mail. Please notify the sender
immediately by e-mail if you have received this e-mail by mistake and
delete this e-mail from your system. If you are not the intended recipient
you are notified that disclosing, copying, distributing or taking any
action in reliance on the contents of this information is strictly
prohibited.
IMPORTANT TAX NOTICE: This communication is not written to be used, and
cannot be used, by a taxpayer for the purpose of avoiding penalties that
may be asserted against the taxpayer under the Internal Revenue Code of
1986, as amended.
On Wed, May 27, 2015 at 9:28 AM, Gioia DeCarlo gdc@dvllclegal.com wrote:
I do not agree in the case of evictions, at least residential, which is
overwhelmingly what my eviction cases are. Numerous times I have
successfully filed a motion to strike answer (as untimely) and moved for
judgment, which was entered without hearing.
83.60(2) reads in part "Failure of the tenant to pay the rent into the
registry of the court or to file a motion to determine the amount of rent
to be paid into the registry within 5 days, excluding Saturdays, Sundays,
and legal holidays, after the date of service of process constitutes an absolute
waiver of the tenant’s defenses other than payment, and the landlord is
entitled to an immediate default judgment for removal of the tenant with a
writ of possession to issue without further notice or hearing thereon.”
(emphasis mine)
This language always goes in my motion to stike an untimely answer (which
is usually some sob story about no job, an illness, or the landlord’s lack
of taking care of the unit) and also in my filing for default.
And when a tenant does answer timely, it can be stricken on the 6th day if
the rent is not deposited unless it alleges proof of payment.
In my opinion, and my experience, unless the Tenant deposits the amount in
the registry or shows proof of payment (I have NEVER had a tenant show
proof of payment), they’re out. Period. Further, if they file a motion to
determine rent and base it on decreasing the rent due to some deficiency in
the premises or any violation of the landlord’s obligations, the tenant has
to show he/she first served the landlord with the statutory 7-day notice to
cure and the landlord failed to do so. I have yet to have a tenant do
that either. Of course, if the 3-day notice had the incorrect rent amount,
and a motion to determine is filed timely, then the 3-day notice needs to
be served again. However, after the fairly recent amendment, the case is
dismissed with leave to amend instead of just dismissed.
It is also my experience, that the judges, and the mediators (when the
judge sends it to mediation— which is the farthest I have hasd tenants get)
are fully aware that tenants often file motions to determine rent and
answers with irrelevant allegations without rent deposited just as a delay
tactic and the judgment enters and they restrain, usually, from rolling
their eyes.
Gioia DeCarlo
This e-mail transmission and any documents, files or previous e-mail
messages attached to it, are confidential and are protected by the
attorney-client privilege and/or work product doctrine. If you are not the
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intended recipient, you are hereby notified that any review, disclosure,
copying, dissemination, distribution or use of any of the information
contained in, or attached to this e-mail transmission is STRICTLY
PROHIBITED. If you have received this transmission in error, please
immediately notify me by forwarding this e-mail to Info@dvllclegal.com,
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attachments from your computer.
From: Deborah Marks deborahmarkslaw@gmail.com
Reply-To: RPPTL Landlord Tenant Committee landten@lists.flabarrpptl.org
Date: Wednesday, May 27, 2015 at 9:01 AM
To: RPPTL Landlord Tenant Committee landten@lists.flabarrpptl.org
Subject: Re: [RPPTL LandTen] Case law on discretion to answer complaint
after 5 day summons expired
Until a default is entered a defendant can answer without permission- even
weeks late.that is standard civil procedure. Similarly, with cause even a
default can be vacated. You will not find any law to contravene those basic
rules. The penalty for not answering in time is that the relief sought may
be entered without further notice. If you read the summons- it lays that
out. It does not say if you fill to respond within 5 days you have lost all
ability to defend no matter what.
Deborah Marks
Deborah Marks, PA
18495 S. Dixie Hwy
Ste 134
Miami, FL 33157
305-372-9400
Sent from my iPhone
On May 26, 2015, at 1:32 PM, Sebastian Jaramillo sebastian@lawjb.com
wrote:
I am trying to find some case law that essentially states that the court
lacks discretion to grant additional time to answer an eviction complaint
beyond the five day summons.
Any help is appreciated.
Sebastian Jaramillo, Esq.
66 W. Flagler St Suite 500 Miami, FL 33130
Tel: (305) 600-3805 Fax: (786) 347-5562
www.lawjb.com
This email and any files transmitted with it are confidential and intended
solely for the use of the individual or entity to whom they are addressed.
If you have received this email in error please notify the system manager.
This message contains confidential information and is intended only for the
individual named. If you are not the named addressee you should not
disseminate, distribute or copy this e-mail. Please notify the sender
immediately by e-mail if you have received this e-mail by mistake and
delete this e-mail from your system. If you are not the intended recipient
you are notified that disclosing, copying, distributing or taking any
action in reliance on the contents of this information is strictly
prohibited.
IMPORTANT TAX NOTICE: This communication is not written to be used, and
cannot be used, by a taxpayer for the purpose of avoiding penalties that
may be asserted against the taxpayer under the Internal Revenue Code of
1986, as amended.
On Tue, May 26, 2015 at 1:12 PM, Leonard Cabral LensLaw@lenslaw.com
wrote:
COMPARE the language in the chapter 83 and the mobile home statute. The
mobile home statute allows the person who pays to stay. That language is
absent in chapter 83. Paying money into the registry of the court the
opportunity for a defense such as legally withholding rent, retaliatory
eviction, Fair Housing violations, failure of numerous public housing
requirements before eviction, etc. If those defenses are valid the judge
rules for the tenant who can stay in the property.
Leonard P. Cabral
Leonardcabral@lenslaw.com
From: landten-bounces@lists.flabarrpptl.org [mailto:
landten-bounces@lists.flabarrpptl.org] *On Behalf Of *Cary Sabol
Sent: Tuesday, May 26, 2015 8:34 AM
To: Manuel Farach; RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Question regarding tenant's payment into
court registry
Thanks Manny. I'm looking for a residential context. There is actually
a case that says landlord proves a prima facie case for eviction when it
proves (1) rental agreement; (2) tenants failure to timely pay rent; and
(3) service of a 3 day notice. So I interpret that to mean once the 3 day
period expires, tenant can be evicted even if it pays rent into the
registry after filing of eviction case. However, that is a commercial
case, not a residential.
Anyhow, thanks for your input, I'll see what the rest of the group has to
say.
Cary
Law Offices of Cary P. Sabol
*P.O. Box 15981 | West Palm Beach | Florida | 33416 *
Phone: (561) 281-2744 <%28561%29%20281-2744>
------------------------------
IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury
Department Regulations, we are now required to advise you that, unless
otherwise expressly indicated, any federal tax advice expressed above was
neither written nor intended by the sender or this firm to be used and
cannot be used by any taxpayer for the purpose of avoiding penalties that
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should be considered to have been written to support the promotion or
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taxpayer's particular circumstances from an independent tax advisor.
Confidentiality Notice: This electronic mail transmission is intended
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From: Manuel Farach MFarach@richmangreer.com
To: 'Cary Sabol' sabollawoffice@yahoo.com
Sent: Saturday, May 23, 2015 6:40 AM
Subject: RE: [RPPTL LandTen] Question regarding tenant's payment into
court registry
Cary,
I’ve viewed it as the Three Day Notice being a statutory condition
precedent to filing suit (see Judge Gross’s opinion in Bell v. Kornblatt
regarding the waivability of the Three Day Notice). I don’t think the
notice has the ability to terminate the lease, and I think that can only be
done by a judgment under 83.20. I’d like to see if anyone else has the same
opinion.
Manny
Manuel Farach / Of Counsel - Board Certified in Real Estate Law and
Business Litigation by The Florida Bar
Richman Greer P.A.
One Clearlake Centre
Suite 1504
250 Australian Avenue South
West Palm Beach, Florida 33401
Office: 561.803.3500
Fax: 561.820.1608
Direct: 561.803.3501
Email: MFarach@richmangreer.com
V-card http://richmangreer.com/uploads/vcards/VcardFarach.vcf
www.RichmanGreer.com http://www.richmangreer.com/
U.S. Treasury Regulation Circular 230 requires us to advise you that
written communications issued by us are not intended to be and cannot be
relied upon to avoid penalties that may be imposed by the Internal Revenue
Service.
Incoming emails are filtered which may delay receipt. This email is
personal to the named recipient(s) and may be privileged and confidential.
If you are not the intended recipient, you received this in error. If so,
any review, dissemination, or copying of this email is prohibited. Please
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*From:*landten-bounces@lists.flabarrpptl.org [
mailto:landten-bounces@lists.flabarrpptl.org
landten-bounces@lists.flabarrpptl.org] *On Behalf Of *Cary Sabol
Sent: Friday, May 22, 2015 5:27 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Question regarding tenant's payment into
court registry
Hi All,
Hope everyone is doing well and looking forward to a relaxing holiday
weekend. I wanted to ask the group if anyone might know of any case law
that stands for the proposition that even if the tenant posts the rent
money into the court registry, the landlord still have the right to
terminate the lease and obtain an eviction judgment at a final hearing,
despite the tenant's posting of the rent money.
In other words, it is my understanding that if a landlord delivers a
valid three day notice and the tenant does not pay within that deadline,
then the lease is terminated. So if the landlord then files for eviction
and the tenant ends up posting the rent due in the court registry, the
landlord can still proceed with eviction and obtain an eviction judgment.
I know this is the state of the law, but just don't have a case to support
it. Supreme Court would be nice or 4th DCA, but anything will help. I've
recently had a few judges basically say to me that since the tenant has
paid the rent now, they can stay on the premises.
Any help is much appreciated.
Cary
Law Offices of Cary P. Sabol
*P.O. Box 15981 | West Palm Beach | Florida | 33416 *
*Phone: (561) 281-2744 <%28561%29%20281-2744> *
IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury
Department Regulations, we are now required to advise you that, unless
otherwise expressly indicated, any federal tax advice expressed above was
neither written nor intended by the sender or this firm to be used and
cannot be used by any taxpayer for the purpose of avoiding penalties that
may be imposed under U.S. tax law. If any person uses or refers to any such
tax advice in promoting, marketing or recommending a partnership or other
entity, investment plan or arrangement to any taxpayer, then the advice
should be considered to have been written to support the promotion or
marketing by a person other than the sender or this firm of that
transaction or matter, and such taxpayer should seek advice based on the
taxpayer's particular circumstances from an independent tax advisor.
Confidentiality Notice: This electronic mail transmission is intended
for the use of the individual or entity to which it is addressed and may
contain confidential information belonging to the sender which is protected
by the attorney-client privilege. If you are not the intended recipient,
you are hereby notified that any disclosure, copying, distribution, or the
taking of any action in reliance on the contents of this information is
strictly prohibited. If you have received this transmission in error,
please notify the sender immediately by e-mail and delete the original
message. Thank you for your cooperation.
landten mailing list
landten@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/landten
I agree, my case is a little more complicated. The rent has been deposited
in the registry of the court, the Defendant filed both a Motion to
Determine Rent and a Motion to Dismiss. Both motions have been denied.
There is case law that argues that a tenant's Motion to Dismiss is
essentially a defective answer Crocker v. Diland Corporation 593 So. 2d
1096 (Fla.5th DCA). I need however to find something that shows that the
court lacks discrection to allow Defendant to file an answer after they've
already filed a responsive pleading.
*Sebastian Jaramillo, Esq.*
66 W. Flagler St Suite 500 Miami, FL 33130
Tel: (305) 600-3805 Fax: (786) 347-5562
www.lawjb.com
This email and any files transmitted with it are confidential and intended
solely for the use of the individual or entity to whom they are addressed.
If you have received this email in error please notify the system manager.
This message contains confidential information and is intended only for the
individual named. If you are not the named addressee you should not
disseminate, distribute or copy this e-mail. Please notify the sender
immediately by e-mail if you have received this e-mail by mistake and
delete this e-mail from your system. If you are not the intended recipient
you are notified that disclosing, copying, distributing or taking any
action in reliance on the contents of this information is strictly
prohibited.
IMPORTANT TAX NOTICE: This communication is not written to be used, and
cannot be used, by a taxpayer for the purpose of avoiding penalties that
may be asserted against the taxpayer under the Internal Revenue Code of
1986, as amended.
On Wed, May 27, 2015 at 9:28 AM, Gioia DeCarlo <gdc@dvllclegal.com> wrote:
> I do not agree in the case of evictions, at least residential, which is
> overwhelmingly what my eviction cases are. Numerous times I have
> successfully filed a motion to strike answer (as untimely) and moved for
> judgment, which was entered without hearing.
>
> 83.60(2) reads in part "Failure of the tenant to pay the rent into the
> registry of the court or to file a motion to determine the amount of rent
> to be paid into the registry within 5 days, excluding Saturdays, Sundays,
> and legal holidays, after the date of service of process constitutes an *absolute
> waiver* of the tenant’s defenses other than payment, and the landlord is
> entitled to an immediate default judgment for removal of the tenant with a
> writ of possession to issue without further notice or hearing thereon.”
> (emphasis mine)
>
> This language always goes in my motion to stike an untimely answer (which
> is usually some sob story about no job, an illness, or the landlord’s lack
> of taking care of the unit) and also in my filing for default.
>
> And when a tenant does answer timely, it can be stricken on the 6th day if
> the rent is not deposited unless it alleges proof of payment.
>
> In my opinion, and my experience, unless the Tenant deposits the amount in
> the registry or shows proof of payment (I have NEVER had a tenant show
> proof of payment), they’re out. Period. Further, if they file a motion to
> determine rent and base it on decreasing the rent due to some deficiency in
> the premises or any violation of the landlord’s obligations, the tenant has
> to show he/she first served the landlord with the statutory 7-day notice to
> cure and the landlord failed to do so. I have yet to have a tenant do
> that either. Of course, if the 3-day notice had the incorrect rent amount,
> and a motion to determine is filed timely, then the 3-day notice needs to
> be served again. However, after the fairly recent amendment, the case is
> dismissed with leave to amend instead of just dismissed.
>
> It is also my experience, that the judges, and the mediators (when the
> judge sends it to mediation— which is the farthest I have hasd tenants get)
> are fully aware that tenants often file motions to determine rent and
> answers with irrelevant allegations without rent deposited just as a delay
> tactic and the judgment enters and they restrain, usually, from rolling
> their eyes.
>
> Gioia DeCarlo
>
>
>
>
> This e-mail transmission and any documents, files or previous e-mail
> messages attached to it, are confidential and are protected by the
> attorney-client privilege and/or work product doctrine. If you are not the
> intended recipient, or a person responsible for delivering it to the
> intended recipient, you are hereby notified that any review, disclosure,
> copying, dissemination, distribution or use of any of the information
> contained in, or attached to this e-mail transmission is STRICTLY
> PROHIBITED. If you have received this transmission in error, please
> immediately notify me by forwarding this e-mail to Info@dvllclegal.com,
> or by telephone at (845) 321-0242 and then delete the message and its
> attachments from your computer.
>
>
> From: Deborah Marks <deborahmarkslaw@gmail.com>
> Reply-To: RPPTL Landlord Tenant Committee <landten@lists.flabarrpptl.org>
> Date: Wednesday, May 27, 2015 at 9:01 AM
> To: RPPTL Landlord Tenant Committee <landten@lists.flabarrpptl.org>
> Subject: Re: [RPPTL LandTen] Case law on discretion to answer complaint
> after 5 day summons expired
>
> Until a default is entered a defendant can answer without permission- even
> weeks late.that is standard civil procedure. Similarly, with cause even a
> default can be vacated. You will not find any law to contravene those basic
> rules. The penalty for not answering in time is that the relief sought may
> be entered without further notice. If you read the summons- it lays that
> out. It does not say if you fill to respond within 5 days you have lost all
> ability to defend no matter what.
>
> Deborah Marks
> Deborah Marks, PA
> 18495 S. Dixie Hwy
> Ste 134
> Miami, FL 33157
> 305-372-9400
>
> Sent from my iPhone
>
> On May 26, 2015, at 1:32 PM, Sebastian Jaramillo <sebastian@lawjb.com>
> wrote:
>
> I am trying to find some case law that essentially states that the court
> lacks discretion to grant additional time to answer an eviction complaint
> beyond the five day summons.
>
> Any help is appreciated.
>
> *Sebastian Jaramillo, Esq.*
>
>
> 66 W. Flagler St Suite 500 Miami, FL 33130
> Tel: (305) 600-3805 Fax: (786) 347-5562
> www.lawjb.com
>
> This email and any files transmitted with it are confidential and intended
> solely for the use of the individual or entity to whom they are addressed.
> If you have received this email in error please notify the system manager.
> This message contains confidential information and is intended only for the
> individual named. If you are not the named addressee you should not
> disseminate, distribute or copy this e-mail. Please notify the sender
> immediately by e-mail if you have received this e-mail by mistake and
> delete this e-mail from your system. If you are not the intended recipient
> you are notified that disclosing, copying, distributing or taking any
> action in reliance on the contents of this information is strictly
> prohibited.
> IMPORTANT TAX NOTICE: This communication is not written to be used, and
> cannot be used, by a taxpayer for the purpose of avoiding penalties that
> may be asserted against the taxpayer under the Internal Revenue Code of
> 1986, as amended.
>
> On Tue, May 26, 2015 at 1:12 PM, Leonard Cabral <LensLaw@lenslaw.com>
> wrote:
>
>> COMPARE the language in the chapter 83 and the mobile home statute. The
>> mobile home statute allows the person who pays to stay. That language is
>> absent in chapter 83. Paying money into the registry of the court the
>> opportunity for a defense such as legally withholding rent, retaliatory
>> eviction, Fair Housing violations, failure of numerous public housing
>> requirements before eviction, etc. If those defenses are valid the judge
>> rules for the tenant who can stay in the property.
>>
>>
>>
>> Leonard P. Cabral
>>
>> Leonardcabral@lenslaw.com
>>
>>
>>
>>
>>
>>
>>
>> *From:* landten-bounces@lists.flabarrpptl.org [mailto:
>> landten-bounces@lists.flabarrpptl.org] *On Behalf Of *Cary Sabol
>> *Sent:* Tuesday, May 26, 2015 8:34 AM
>> *To:* Manuel Farach; RPPTL Landlord Tenant Committee
>> *Subject:* Re: [RPPTL LandTen] Question regarding tenant's payment into
>> court registry
>>
>>
>>
>> Thanks Manny. I'm looking for a residential context. There is actually
>> a case that says landlord proves a prima facie case for eviction when it
>> proves (1) rental agreement; (2) tenants failure to timely pay rent; and
>> (3) service of a 3 day notice. So I interpret that to mean once the 3 day
>> period expires, tenant can be evicted even if it pays rent into the
>> registry after filing of eviction case. However, that is a commercial
>> case, not a residential.
>>
>>
>>
>> Anyhow, thanks for your input, I'll see what the rest of the group has to
>> say.
>>
>>
>>
>> Cary
>>
>> *Law Offices of Cary P. Sabol*
>>
>> *P.O. Box 15981 | West Palm Beach | Florida | 33416 *
>>
>> *Phone: (561) 281-2744 <%28561%29%20281-2744>*
>> *------------------------------*
>>
>> *IRS Circular 230 Notice*: Pursuant to recently enacted U.S. Treasury
>> Department Regulations, we are now required to advise you that, unless
>> otherwise expressly indicated, any federal tax advice expressed above was
>> neither written nor intended by the sender or this firm to be used and
>> cannot be used by any taxpayer for the purpose of avoiding penalties that
>> may be imposed under U.S. tax law. If any person uses or refers to any such
>> tax advice in promoting, marketing or recommending a partnership or other
>> entity, investment plan or arrangement to any taxpayer, then the advice
>> should be considered to have been written to support the promotion or
>> marketing by a person other than the sender or this firm of that
>> transaction or matter, and such taxpayer should seek advice based on the
>> taxpayer's particular circumstances from an independent tax advisor.
>>
>>
>>
>> *Confidentiality Notice*: This electronic mail transmission is intended
>> for the use of the individual or entity to which it is addressed and may
>> contain confidential information belonging to the sender which is protected
>> by the attorney-client privilege. If you are not the intended recipient,
>> you are hereby notified that any disclosure, copying, distribution, or the
>> taking of any action in reliance on the contents of this information is
>> strictly prohibited. If you have received this transmission in error,
>> please notify the sender immediately by e-mail and delete the original
>> message. Thank you for your cooperation.
>>
>>
>> ------------------------------
>>
>> *From:* Manuel Farach <MFarach@richmangreer.com>
>> *To:* 'Cary Sabol' <sabollawoffice@yahoo.com>
>> *Sent:* Saturday, May 23, 2015 6:40 AM
>> *Subject:* RE: [RPPTL LandTen] Question regarding tenant's payment into
>> court registry
>>
>>
>>
>> Cary,
>>
>> I’ve viewed it as the Three Day Notice being a statutory condition
>> precedent to filing suit (see Judge Gross’s opinion in Bell v. Kornblatt
>> regarding the waivability of the Three Day Notice). I don’t think the
>> notice has the ability to terminate the lease, and I think that can only be
>> done by a judgment under 83.20. I’d like to see if anyone else has the same
>> opinion.
>>
>> Manny
>>
>>
>> ------------------------------
>>
>> Manuel Farach / Of Counsel - Board Certified in Real Estate Law and
>> Business Litigation by The Florida Bar
>>
>> Richman Greer P.A.
>> One Clearlake Centre
>> Suite 1504
>> 250 Australian Avenue South
>> West Palm Beach, Florida 33401
>> Office: 561.803.3500
>> Fax: 561.820.1608
>> Direct: 561.803.3501
>> Email: MFarach@richmangreer.com
>> V-card <http://richmangreer.com/uploads/vcards/VcardFarach.vcf>
>>
>> www.RichmanGreer.com <http://www.richmangreer.com/>
>>
>> U.S. Treasury Regulation Circular 230 requires us to advise you that
>> written communications issued by us are not intended to be and cannot be
>> relied upon to avoid penalties that may be imposed by the Internal Revenue
>> Service.
>>
>> Incoming emails are filtered which may delay receipt. This email is
>> personal to the named recipient(s) and may be privileged and confidential.
>> If you are not the intended recipient, you received this in error. If so,
>> any review, dissemination, or copying of this email is prohibited. Please
>> immediately notify us by email and delete the original message.
>> ------------------------------
>>
>>
>>
>>
>>
>> *From:*landten-bounces@lists.flabarrpptl.org [
>> mailto:landten-bounces@lists.flabarrpptl.org
>> <landten-bounces@lists.flabarrpptl.org>] *On Behalf Of *Cary Sabol
>> *Sent:* Friday, May 22, 2015 5:27 PM
>> *To:* RPPTL Landlord Tenant Committee
>> *Subject:* [RPPTL LandTen] Question regarding tenant's payment into
>> court registry
>>
>>
>>
>> Hi All,
>>
>>
>>
>> Hope everyone is doing well and looking forward to a relaxing holiday
>> weekend. I wanted to ask the group if anyone might know of any case law
>> that stands for the proposition that even if the tenant posts the rent
>> money into the court registry, the landlord still have the right to
>> terminate the lease and obtain an eviction judgment at a final hearing,
>> despite the tenant's posting of the rent money.
>>
>>
>>
>> In other words, it is my understanding that if a landlord delivers a
>> valid three day notice and the tenant does not pay within that deadline,
>> then the lease is terminated. So if the landlord then files for eviction
>> and the tenant ends up posting the rent due in the court registry, the
>> landlord can still proceed with eviction and obtain an eviction judgment.
>> I know this is the state of the law, but just don't have a case to support
>> it. Supreme Court would be nice or 4th DCA, but anything will help. I've
>> recently had a few judges basically say to me that since the tenant has
>> paid the rent now, they can stay on the premises.
>>
>>
>>
>> Any help is much appreciated.
>>
>>
>>
>> Cary
>>
>> *Law Offices of Cary P. Sabol*
>>
>> *P.O. Box 15981 | West Palm Beach | Florida | 33416 *
>>
>> *Phone: (561) 281-2744 <%28561%29%20281-2744> *
>> ------------------------------
>>
>> *IRS Circular 230 Notice*: Pursuant to recently enacted U.S. Treasury
>> Department Regulations, we are now required to advise you that, unless
>> otherwise expressly indicated, any federal tax advice expressed above was
>> neither written nor intended by the sender or this firm to be used and
>> cannot be used by any taxpayer for the purpose of avoiding penalties that
>> may be imposed under U.S. tax law. If any person uses or refers to any such
>> tax advice in promoting, marketing or recommending a partnership or other
>> entity, investment plan or arrangement to any taxpayer, then the advice
>> should be considered to have been written to support the promotion or
>> marketing by a person other than the sender or this firm of that
>> transaction or matter, and such taxpayer should seek advice based on the
>> taxpayer's particular circumstances from an independent tax advisor.
>>
>>
>>
>> *Confidentiality Notice*: This electronic mail transmission is intended
>> for the use of the individual or entity to which it is addressed and may
>> contain confidential information belonging to the sender which is protected
>> by the attorney-client privilege. If you are not the intended recipient,
>> you are hereby notified that any disclosure, copying, distribution, or the
>> taking of any action in reliance on the contents of this information is
>> strictly prohibited. If you have received this transmission in error,
>> please notify the sender immediately by e-mail and delete the original
>> message. Thank you for your cooperation.
>>
>>
>>
>> _______________________________________________
>> landten mailing list
>> landten@lists.flabarrpptl.org
>> http://mailman.fsr.com/mailman/listinfo/landten
>>
>
> _______________________________________________
> landten mailing list
> landten@lists.flabarrpptl.org
> http://mailman.fsr.com/mailman/listinfo/landten
>
> _______________________________________________ landten mailing list
> landten@lists.flabarrpptl.org
> http://mailman.fsr.com/mailman/listinfo/landten
>
> _______________________________________________
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> http://mailman.fsr.com/mailman/listinfo/landten
>
GD
Gioia DeCarlo
Wed, May 27, 2015 1:50 PM
I agree, if the tenant either pays the alleged amount into the registry or
files a motion to determine rent within the 5 days, which is a repsonsive
filling, yes, the judge will give leeway to file the answer. What I do if
the motion ito determine is timely filed, is to check the amount in the
3-day notice for error (I do before filing the complaint and before serving
the 3-day notice if the landlord consults me before serving) and if the
amount is correct, schedule the soonest available hearing date because the
tenants typically do not schedule it because they want to stay in possession
as long as possible. If there is an allegation of deficient premises and
landlord¹s failure to meet lease or statutory obligations, might as well
deal with it sooner than later.
Gioia DeCarlo
This e-mail transmission and any documents, files or previous e-mail
messages attached to it, are confidential and are protected by the
attorney-client privilege and/or work product doctrine. If you are not the
intended recipient, or a person responsible for delivering it to the
intended recipient, you are hereby notified that any review, disclosure,
copying, dissemination, distribution or use of any of the information
contained in, or attached to this e-mail transmission is STRICTLY
PROHIBITED. If you have received this transmission in error, please
immediately notify me by forwarding this e-mail to Info@dvllclegal.com, or
by telephone at (845) 321-0242 and then delete the message and its
attachments from your computer.
From: James Zink james.zink@frls.org
Reply-To: RPPTL Landlord Tenant Committee landten@lists.flabarrpptl.org
Date: Wednesday, May 27, 2015 at 9:38 AM
To: RPPTL Landlord Tenant Committee landten@lists.flabarrpptl.org
Subject: Re: [RPPTL LandTen] Case law on discretion to answer complaint
after 5 day summons expired
While all that is correct, it presumes there is a failure to pay into the
registry, which I don¹t believe Sebastian mentioned. The only thing required
by the statute is payment or a motion to determine rent. If that has
happened, which I assume since a failure to pay into the registry is pretty
straightforward, I agree with Deborah most judges will give an opportunity
to file an Answer unless a default is entered. You can move for a default if
none is filed, and if the judge grants it before the answer, you would be
golden. But my guess is, based on the question, you don¹t want the Answer
considered at all after it has already been filed, and I don¹t believe the
statute supports that position, again assuming rent is paid into the
registry.
James Zink, Esq.
Florida Rural Legal Services, Inc.
3111 South Dixie Highway, Suite 140
West Palm Beach, FL 33405
Phone: (561) 820-8902 x. 6025
Fax: (561) 820-8892
The information contained in this e-mail, including any attachment(s), is
intended solely for use by the named addressee(s). If you are not the
intended recipient, or a person designated as responsible for delivering
such messages to the intended recipient, you are not authorized to disclose,
copy, distribute or retain this message, in whole or in part, without
written authorization from the sender. If you have received this message in
error, please notify the sender immediately
From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Gioia DeCarlo
Sent: Wednesday, May 27, 2015 9:29 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Case law on discretion to answer complaint
after 5 day summons expired
I do not agree in the case of evictions, at least residential, which is
overwhelmingly what my eviction cases are. Numerous times I have
successfully filed a motion to strike answer (as untimely) and moved for
judgment, which was entered without hearing.
83.60(2) reads in part "Failure of the tenant to pay the rent into the
registry of the court or to file a motion to determine the amount of rent to
be paid into the registry within 5 days, excluding Saturdays, Sundays, and
legal holidays, after the date of service of process constitutes an absolute
waiver of the tenant¹s defenses other than payment, and the landlord is
entitled to an immediate default judgment for removal of the tenant with a
writ of possession to issue without further notice or hearing thereon.²
(emphasis mine)
This language always goes in my motion to stike an untimely answer (which is
usually some sob story about no job, an illness, or the landlord¹s lack of
taking care of the unit) and also in my filing for default.
And when a tenant does answer timely, it can be stricken on the 6th day if
the rent is not deposited unless it alleges proof of payment.
In my opinion, and my experience, unless the Tenant deposits the amount in
the registry or shows proof of payment (I have NEVER had a tenant show proof
of payment), they¹re out. Period. Further, if they file a motion to
determine rent and base it on decreasing the rent due to some deficiency in
the premises or any violation of the landlord¹s obligations, the tenant has
to show he/she first served the landlord with the statutory 7-day notice to
cure and the landlord failed to do so. I have yet to have a tenant do that
either. Of course, if the 3-day notice had the incorrect rent amount, and a
motion to determine is filed timely, then the 3-day notice needs to be
served again. However, after the fairly recent amendment, the case is
dismissed with leave to amend instead of just dismissed.
It is also my experience, that the judges, and the mediators (when the judge
sends it to mediation which is the farthest I have hasd tenants get) are
fully aware that tenants often file motions to determine rent and answers
with irrelevant allegations without rent deposited just as a delay tactic
and the judgment enters and they restrain, usually, from rolling their eyes.
Gioia DeCarlo
This e-mail transmission and any documents, files or previous e-mail
messages attached to it, are confidential and are protected by the
attorney-client privilege and/or work product doctrine. If you are not the
intended recipient, or a person responsible for delivering it to the
intended recipient, you are hereby notified that any review, disclosure,
copying, dissemination, distribution or use of any of the information
contained in, or attached to this e-mail transmission is STRICTLY
PROHIBITED. If you have received this transmission in error, please
immediately notify me by forwarding this e-mail to Info@dvllclegal.com
mailto:Info@dvllclegal.com , or by telephone at (845) 321-0242 and then
delete the message and its attachments from your computer.
From: Deborah Marks deborahmarkslaw@gmail.com
Reply-To: RPPTL Landlord Tenant Committee landten@lists.flabarrpptl.org
Date: Wednesday, May 27, 2015 at 9:01 AM
To: RPPTL Landlord Tenant Committee landten@lists.flabarrpptl.org
Subject: Re: [RPPTL LandTen] Case law on discretion to answer complaint
after 5 day summons expired
Until a default is entered a defendant can answer without permission- even
weeks late.that is standard civil procedure. Similarly, with cause even a
default can be vacated. You will not find any law to contravene those basic
rules. The penalty for not answering in time is that the relief sought may
be entered without further notice. If you read the summons- it lays that
out. It does not say if you fill to respond within 5 days you have lost all
ability to defend no matter what.
Deborah Marks
Deborah Marks, PA
18495 S. Dixie Hwy
Ste 134
Miami, FL 33157
305-372-9400
Sent from my iPhone
On May 26, 2015, at 1:32 PM, Sebastian Jaramillo sebastian@lawjb.com
wrote:
I am trying to find some case law that essentially states that the court lacks
discretion to grant additional time to answer an eviction complaint beyond the
five day summons.
Any help is appreciated.
Sebastian Jaramillo, Esq.
66 W. Flagler St Suite 500 Miami, FL 33130
Tel: (305) 600-3805 Fax: (786) 347-5562
www.lawjb.com http://www.lawjb.com
This email and any files transmitted with it are confidential and intended
solely for the use of the individual or entity to whom they are addressed. If
you have received this email in error please notify the system manager. This
message contains confidential information and is intended only for the
individual named. If you are not the named addressee you should not
disseminate, distribute or copy this e-mail. Please notify the sender
immediately by e-mail if you have received this e-mail by mistake and delete
this e-mail from your system. If you are not the intended recipient you are
notified that disclosing, copying, distributing or taking any action in
reliance on the contents of this information is strictly prohibited.
IMPORTANT TAX NOTICE: This communication is not written to be used, and cannot
be used, by a taxpayer for the purpose of avoiding penalties that may be
asserted against the taxpayer under the Internal Revenue Code of 1986, as
amended.
On Tue, May 26, 2015 at 1:12 PM, Leonard Cabral LensLaw@lenslaw.com wrote:
COMPARE the language in the chapter 83 and the mobile home statute. The
mobile home statute allows the person who pays to stay. That language is
absent in chapter 83. Paying money into the registry of the court the
opportunity for a defense such as legally withholding rent, retaliatory
eviction, Fair Housing violations, failure of numerous public housing
requirements before eviction, etc. If those defenses are valid the judge
rules for the tenant who can stay in the property.
Leonard P. Cabral
Leonardcabral@lenslaw.com
From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol
Sent: Tuesday, May 26, 2015 8:34 AM
To: Manuel Farach; RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Question regarding tenant's payment into court
registry
Thanks Manny. I'm looking for a residential context. There is actually a
case that says landlord proves a prima facie case for eviction when it proves
(1) rental agreement; (2) tenants failure to timely pay rent; and (3) service
of a 3 day notice. So I interpret that to mean once the 3 day period expires,
tenant can be evicted even if it pays rent into the registry after filing of
eviction case. However, that is a commercial case, not a residential.
Anyhow, thanks for your input, I'll see what the rest of the group has to say.
Cary
Law Offices of Cary P. Sabol
P.O. Box 15981 | West Palm Beach | Florida | 33416
Phone: (561) 281-2744 tel:%28561%29%20281-2744
IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury Department
Regulations, we are now required to advise you that, unless otherwise
expressly indicated, any federal tax advice expressed above was neither
written nor intended by the sender or this firm to be used and cannot be used
by any taxpayer for the purpose of avoiding penalties that may be imposed
under U.S. tax law. If any person uses or refers to any such tax advice in
promoting, marketing or recommending a partnership or other entity, investment
plan or arrangement to any taxpayer, then the advice should be considered to
have been written to support the promotion or marketing by a person other than
the sender or this firm of that transaction or matter, and such taxpayer
should seek advice based on the taxpayer's particular circumstances from an
independent tax advisor.
Confidentiality Notice: This electronic mail transmission is intended for the
use of the individual or entity to which it is addressed and may contain
confidential information belonging to the sender which is protected by the
attorney-client privilege. If you are not the intended recipient, you are
hereby notified that any disclosure, copying, distribution, or the taking of
any action in reliance on the contents of this information is strictly
prohibited. If you have received this transmission in error, please notify the
sender immediately by e-mail and delete the original message. Thank you for
your cooperation.
From: Manuel Farach MFarach@richmangreer.com
To: 'Cary Sabol' sabollawoffice@yahoo.com
Sent: Saturday, May 23, 2015 6:40 AM
Subject: RE: [RPPTL LandTen] Question regarding tenant's payment into court
registry
Cary,
I¹ve viewed it as the Three Day Notice being a statutory condition precedent
to filing suit (see Judge Gross¹s opinion in Bell v. Kornblatt regarding the
waivability of the Three Day Notice). I don¹t think the notice has the ability
to terminate the lease, and I think that can only be done by a judgment under
83.20. I¹d like to see if anyone else has the same opinion.
Manny
Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business
Litigation by The Florida Bar
Richman Greer P.A.
One Clearlake Centre
Suite 1504
250 Australian Avenue South
West Palm Beach, Florida 33401
Office: 561.803.3500 tel:561.803.3500
Fax: 561.820.1608 tel:561.820.1608
Direct: 561.803.3501 tel:561.803.3501
Email: MFarach@richmangreer.com
V-card http://richmangreer.com/uploads/vcards/VcardFarach.vcf
www.RichmanGreer.com http://www.richmangreer.com/
U.S. Treasury Regulation Circular 230 requires us to advise you that written
communications issued by us are not intended to be and cannot be relied upon
to avoid penalties that may be imposed by the Internal Revenue Service.
Incoming emails are filtered which may delay receipt. This email is personal
to the named recipient(s) and may be privileged and confidential. If you are
not the intended recipient, you received this in error. If so, any review,
dissemination, or copying of this email is prohibited. Please immediately
notify us by email and delete the original message.
From:landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol
Sent: Friday, May 22, 2015 5:27 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Question regarding tenant's payment into court
registry
Hi All,
Hope everyone is doing well and looking forward to a relaxing holiday weekend.
I wanted to ask the group if anyone might know of any case law that stands for
the proposition that even if the tenant posts the rent money into the court
registry, the landlord still have the right to terminate the lease and obtain
an eviction judgment at a final hearing, despite the tenant's posting of the
rent money.
In other words, it is my understanding that if a landlord delivers a valid
three day notice and the tenant does not pay within that deadline, then the
lease is terminated. So if the landlord then files for eviction and the
tenant ends up posting the rent due in the court registry, the landlord can
still proceed with eviction and obtain an eviction judgment. I know this is
the state of the law, but just don't have a case to support it. Supreme Court
would be nice or 4th DCA, but anything will help. I've recently had a few
judges basically say to me that since the tenant has paid the rent now, they
can stay on the premises.
Any help is much appreciated.
Cary
Law Offices of Cary P. Sabol
P.O. Box 15981 | West Palm Beach | Florida | 33416
Phone: (561) 281-2744 tel:%28561%29%20281-2744
IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury Department
Regulations, we are now required to advise you that, unless otherwise
expressly indicated, any federal tax advice expressed above was neither
written nor intended by the sender or this firm to be used and cannot be used
by any taxpayer for the purpose of avoiding penalties that may be imposed
under U.S. tax law. If any person uses or refers to any such tax advice in
promoting, marketing or recommending a partnership or other entity, investment
plan or arrangement to any taxpayer, then the advice should be considered to
have been written to support the promotion or marketing by a person other than
the sender or this firm of that transaction or matter, and such taxpayer
should seek advice based on the taxpayer's particular circumstances from an
independent tax advisor.
Confidentiality Notice: This electronic mail transmission is intended for the
use of the individual or entity to which it is addressed and may contain
confidential information belonging to the sender which is protected by the
attorney-client privilege. If you are not the intended recipient, you are
hereby notified that any disclosure, copying, distribution, or the taking of
any action in reliance on the contents of this information is strictly
prohibited. If you have received this transmission in error, please notify the
sender immediately by e-mail and delete the original message. Thank you for
your cooperation.
landten mailing list
landten@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/landten
landten mailing list
landten@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/landten
I agree, if the tenant either pays the alleged amount into the registry or
files a motion to determine rent within the 5 days, which is a repsonsive
filling, yes, the judge will give leeway to file the answer. What I do if
the motion ito determine is timely filed, is to check the amount in the
3-day notice for error (I do before filing the complaint and before serving
the 3-day notice if the landlord consults me before serving) and if the
amount is correct, schedule the soonest available hearing date because the
tenants typically do not schedule it because they want to stay in possession
as long as possible. If there is an allegation of deficient premises and
landlord¹s failure to meet lease or statutory obligations, might as well
deal with it sooner than later.
Gioia DeCarlo
This e-mail transmission and any documents, files or previous e-mail
messages attached to it, are confidential and are protected by the
attorney-client privilege and/or work product doctrine. If you are not the
intended recipient, or a person responsible for delivering it to the
intended recipient, you are hereby notified that any review, disclosure,
copying, dissemination, distribution or use of any of the information
contained in, or attached to this e-mail transmission is STRICTLY
PROHIBITED. If you have received this transmission in error, please
immediately notify me by forwarding this e-mail to Info@dvllclegal.com, or
by telephone at (845) 321-0242 and then delete the message and its
attachments from your computer.
From: James Zink <james.zink@frls.org>
Reply-To: RPPTL Landlord Tenant Committee <landten@lists.flabarrpptl.org>
Date: Wednesday, May 27, 2015 at 9:38 AM
To: RPPTL Landlord Tenant Committee <landten@lists.flabarrpptl.org>
Subject: Re: [RPPTL LandTen] Case law on discretion to answer complaint
after 5 day summons expired
While all that is correct, it presumes there is a failure to pay into the
registry, which I don¹t believe Sebastian mentioned. The only thing required
by the statute is payment or a motion to determine rent. If that has
happened, which I assume since a failure to pay into the registry is pretty
straightforward, I agree with Deborah most judges will give an opportunity
to file an Answer unless a default is entered. You can move for a default if
none is filed, and if the judge grants it before the answer, you would be
golden. But my guess is, based on the question, you don¹t want the Answer
considered at all after it has already been filed, and I don¹t believe the
statute supports that position, again assuming rent is paid into the
registry.
James Zink, Esq.
Florida Rural Legal Services, Inc.
3111 South Dixie Highway, Suite 140
West Palm Beach, FL 33405
Phone: (561) 820-8902 x. 6025
Fax: (561) 820-8892
The information contained in this e-mail, including any attachment(s), is
intended solely for use by the named addressee(s). If you are not the
intended recipient, or a person designated as responsible for delivering
such messages to the intended recipient, you are not authorized to disclose,
copy, distribute or retain this message, in whole or in part, without
written authorization from the sender. If you have received this message in
error, please notify the sender immediately
From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Gioia DeCarlo
Sent: Wednesday, May 27, 2015 9:29 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Case law on discretion to answer complaint
after 5 day summons expired
I do not agree in the case of evictions, at least residential, which is
overwhelmingly what my eviction cases are. Numerous times I have
successfully filed a motion to strike answer (as untimely) and moved for
judgment, which was entered without hearing.
83.60(2) reads in part "Failure of the tenant to pay the rent into the
registry of the court or to file a motion to determine the amount of rent to
be paid into the registry within 5 days, excluding Saturdays, Sundays, and
legal holidays, after the date of service of process constitutes an absolute
waiver of the tenant¹s defenses other than payment, and the landlord is
entitled to an immediate default judgment for removal of the tenant with a
writ of possession to issue without further notice or hearing thereon.²
(emphasis mine)
This language always goes in my motion to stike an untimely answer (which is
usually some sob story about no job, an illness, or the landlord¹s lack of
taking care of the unit) and also in my filing for default.
And when a tenant does answer timely, it can be stricken on the 6th day if
the rent is not deposited unless it alleges proof of payment.
In my opinion, and my experience, unless the Tenant deposits the amount in
the registry or shows proof of payment (I have NEVER had a tenant show proof
of payment), they¹re out. Period. Further, if they file a motion to
determine rent and base it on decreasing the rent due to some deficiency in
the premises or any violation of the landlord¹s obligations, the tenant has
to show he/she first served the landlord with the statutory 7-day notice to
cure and the landlord failed to do so. I have yet to have a tenant do that
either. Of course, if the 3-day notice had the incorrect rent amount, and a
motion to determine is filed timely, then the 3-day notice needs to be
served again. However, after the fairly recent amendment, the case is
dismissed with leave to amend instead of just dismissed.
It is also my experience, that the judges, and the mediators (when the judge
sends it to mediation which is the farthest I have hasd tenants get) are
fully aware that tenants often file motions to determine rent and answers
with irrelevant allegations without rent deposited just as a delay tactic
and the judgment enters and they restrain, usually, from rolling their eyes.
Gioia DeCarlo
This e-mail transmission and any documents, files or previous e-mail
messages attached to it, are confidential and are protected by the
attorney-client privilege and/or work product doctrine. If you are not the
intended recipient, or a person responsible for delivering it to the
intended recipient, you are hereby notified that any review, disclosure,
copying, dissemination, distribution or use of any of the information
contained in, or attached to this e-mail transmission is STRICTLY
PROHIBITED. If you have received this transmission in error, please
immediately notify me by forwarding this e-mail to Info@dvllclegal.com
<mailto:Info@dvllclegal.com> , or by telephone at (845) 321-0242 and then
delete the message and its attachments from your computer.
From: Deborah Marks <deborahmarkslaw@gmail.com>
Reply-To: RPPTL Landlord Tenant Committee <landten@lists.flabarrpptl.org>
Date: Wednesday, May 27, 2015 at 9:01 AM
To: RPPTL Landlord Tenant Committee <landten@lists.flabarrpptl.org>
Subject: Re: [RPPTL LandTen] Case law on discretion to answer complaint
after 5 day summons expired
Until a default is entered a defendant can answer without permission- even
weeks late.that is standard civil procedure. Similarly, with cause even a
default can be vacated. You will not find any law to contravene those basic
rules. The penalty for not answering in time is that the relief sought may
be entered without further notice. If you read the summons- it lays that
out. It does not say if you fill to respond within 5 days you have lost all
ability to defend no matter what.
Deborah Marks
Deborah Marks, PA
18495 S. Dixie Hwy
Ste 134
Miami, FL 33157
305-372-9400
Sent from my iPhone
On May 26, 2015, at 1:32 PM, Sebastian Jaramillo <sebastian@lawjb.com>
wrote:
>
> I am trying to find some case law that essentially states that the court lacks
> discretion to grant additional time to answer an eviction complaint beyond the
> five day summons.
>
>
>
> Any help is appreciated.
>
> Sebastian Jaramillo, Esq.
>
> 66 W. Flagler St Suite 500 Miami, FL 33130
> Tel: (305) 600-3805 Fax: (786) 347-5562
> www.lawjb.com <http://www.lawjb.com>
>
> This email and any files transmitted with it are confidential and intended
> solely for the use of the individual or entity to whom they are addressed. If
> you have received this email in error please notify the system manager. This
> message contains confidential information and is intended only for the
> individual named. If you are not the named addressee you should not
> disseminate, distribute or copy this e-mail. Please notify the sender
> immediately by e-mail if you have received this e-mail by mistake and delete
> this e-mail from your system. If you are not the intended recipient you are
> notified that disclosing, copying, distributing or taking any action in
> reliance on the contents of this information is strictly prohibited.
>
> IMPORTANT TAX NOTICE: This communication is not written to be used, and cannot
> be used, by a taxpayer for the purpose of avoiding penalties that may be
> asserted against the taxpayer under the Internal Revenue Code of 1986, as
> amended.
>
>
> On Tue, May 26, 2015 at 1:12 PM, Leonard Cabral <LensLaw@lenslaw.com> wrote:
>
> COMPARE the language in the chapter 83 and the mobile home statute. The
> mobile home statute allows the person who pays to stay. That language is
> absent in chapter 83. Paying money into the registry of the court the
> opportunity for a defense such as legally withholding rent, retaliatory
> eviction, Fair Housing violations, failure of numerous public housing
> requirements before eviction, etc. If those defenses are valid the judge
> rules for the tenant who can stay in the property.
>
> Leonard P. Cabral
> Leonardcabral@lenslaw.com
>
>
>
>
> From: landten-bounces@lists.flabarrpptl.org
> [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol
> Sent: Tuesday, May 26, 2015 8:34 AM
> To: Manuel Farach; RPPTL Landlord Tenant Committee
> Subject: Re: [RPPTL LandTen] Question regarding tenant's payment into court
> registry
>
>
> Thanks Manny. I'm looking for a residential context. There is actually a
> case that says landlord proves a prima facie case for eviction when it proves
> (1) rental agreement; (2) tenants failure to timely pay rent; and (3) service
> of a 3 day notice. So I interpret that to mean once the 3 day period expires,
> tenant can be evicted even if it pays rent into the registry after filing of
> eviction case. However, that is a commercial case, not a residential.
>
>
>
> Anyhow, thanks for your input, I'll see what the rest of the group has to say.
>
>
>
> Cary
>
> Law Offices of Cary P. Sabol
>
> P.O. Box 15981 | West Palm Beach | Florida | 33416
>
> Phone: (561) 281-2744 <tel:%28561%29%20281-2744>
>
>
> IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury Department
> Regulations, we are now required to advise you that, unless otherwise
> expressly indicated, any federal tax advice expressed above was neither
> written nor intended by the sender or this firm to be used and cannot be used
> by any taxpayer for the purpose of avoiding penalties that may be imposed
> under U.S. tax law. If any person uses or refers to any such tax advice in
> promoting, marketing or recommending a partnership or other entity, investment
> plan or arrangement to any taxpayer, then the advice should be considered to
> have been written to support the promotion or marketing by a person other than
> the sender or this firm of that transaction or matter, and such taxpayer
> should seek advice based on the taxpayer's particular circumstances from an
> independent tax advisor.
>
>
>
> Confidentiality Notice: This electronic mail transmission is intended for the
> use of the individual or entity to which it is addressed and may contain
> confidential information belonging to the sender which is protected by the
> attorney-client privilege. If you are not the intended recipient, you are
> hereby notified that any disclosure, copying, distribution, or the taking of
> any action in reliance on the contents of this information is strictly
> prohibited. If you have received this transmission in error, please notify the
> sender immediately by e-mail and delete the original message. Thank you for
> your cooperation.
>
>
>
> From: Manuel Farach <MFarach@richmangreer.com>
> To: 'Cary Sabol' <sabollawoffice@yahoo.com>
> Sent: Saturday, May 23, 2015 6:40 AM
> Subject: RE: [RPPTL LandTen] Question regarding tenant's payment into court
> registry
>
>
>
> Cary,
>
> I¹ve viewed it as the Three Day Notice being a statutory condition precedent
> to filing suit (see Judge Gross¹s opinion in Bell v. Kornblatt regarding the
> waivability of the Three Day Notice). I don¹t think the notice has the ability
> to terminate the lease, and I think that can only be done by a judgment under
> 83.20. I¹d like to see if anyone else has the same opinion.
>
> Manny
>
>
>
>
> Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business
> Litigation by The Florida Bar
>
> Richman Greer P.A.
> One Clearlake Centre
> Suite 1504
> 250 Australian Avenue South
> West Palm Beach, Florida 33401
> Office: 561.803.3500 <tel:561.803.3500>
> Fax: 561.820.1608 <tel:561.820.1608>
> Direct: 561.803.3501 <tel:561.803.3501>
> Email: MFarach@richmangreer.com
> V-card <http://richmangreer.com/uploads/vcards/VcardFarach.vcf>
>
> www.RichmanGreer.com <http://www.richmangreer.com/>
>
> U.S. Treasury Regulation Circular 230 requires us to advise you that written
> communications issued by us are not intended to be and cannot be relied upon
> to avoid penalties that may be imposed by the Internal Revenue Service.
>
> Incoming emails are filtered which may delay receipt. This email is personal
> to the named recipient(s) and may be privileged and confidential. If you are
> not the intended recipient, you received this in error. If so, any review,
> dissemination, or copying of this email is prohibited. Please immediately
> notify us by email and delete the original message.
>
>
>
>
>
>
> From:landten-bounces@lists.flabarrpptl.org
> [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol
> Sent: Friday, May 22, 2015 5:27 PM
> To: RPPTL Landlord Tenant Committee
> Subject: [RPPTL LandTen] Question regarding tenant's payment into court
> registry
>
>
>
> Hi All,
>
>
>
> Hope everyone is doing well and looking forward to a relaxing holiday weekend.
> I wanted to ask the group if anyone might know of any case law that stands for
> the proposition that even if the tenant posts the rent money into the court
> registry, the landlord still have the right to terminate the lease and obtain
> an eviction judgment at a final hearing, despite the tenant's posting of the
> rent money.
>
>
>
> In other words, it is my understanding that if a landlord delivers a valid
> three day notice and the tenant does not pay within that deadline, then the
> lease is terminated. So if the landlord then files for eviction and the
> tenant ends up posting the rent due in the court registry, the landlord can
> still proceed with eviction and obtain an eviction judgment. I know this is
> the state of the law, but just don't have a case to support it. Supreme Court
> would be nice or 4th DCA, but anything will help. I've recently had a few
> judges basically say to me that since the tenant has paid the rent now, they
> can stay on the premises.
>
>
>
> Any help is much appreciated.
>
>
>
> Cary
>
> Law Offices of Cary P. Sabol
>
> P.O. Box 15981 | West Palm Beach | Florida | 33416
>
> Phone: (561) 281-2744 <tel:%28561%29%20281-2744>
>
>
> IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury Department
> Regulations, we are now required to advise you that, unless otherwise
> expressly indicated, any federal tax advice expressed above was neither
> written nor intended by the sender or this firm to be used and cannot be used
> by any taxpayer for the purpose of avoiding penalties that may be imposed
> under U.S. tax law. If any person uses or refers to any such tax advice in
> promoting, marketing or recommending a partnership or other entity, investment
> plan or arrangement to any taxpayer, then the advice should be considered to
> have been written to support the promotion or marketing by a person other than
> the sender or this firm of that transaction or matter, and such taxpayer
> should seek advice based on the taxpayer's particular circumstances from an
> independent tax advisor.
>
>
>
> Confidentiality Notice: This electronic mail transmission is intended for the
> use of the individual or entity to which it is addressed and may contain
> confidential information belonging to the sender which is protected by the
> attorney-client privilege. If you are not the intended recipient, you are
> hereby notified that any disclosure, copying, distribution, or the taking of
> any action in reliance on the contents of this information is strictly
> prohibited. If you have received this transmission in error, please notify the
> sender immediately by e-mail and delete the original message. Thank you for
> your cooperation.
>
>
> _______________________________________________
> landten mailing list
> landten@lists.flabarrpptl.org
> http://mailman.fsr.com/mailman/listinfo/landten
>
>
> _______________________________________________
> landten mailing list
> landten@lists.flabarrpptl.org
> http://mailman.fsr.com/mailman/listinfo/landten
_______________________________________________ landten mailing list
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D
deborahmarkslaw (at) gmail.com
Wed, May 27, 2015 2:27 PM
The motion to strike is usually because an answer was filed but they didn't put the money into the registry. It isn't the "answer" being late that creates the problem.
Sent from my iPad
On May 27, 2015, at 9:28 AM, Gioia DeCarlo gdc@dvllclegal.com wrote:
I do not agree in the case of evictions, at least residential, which is overwhelmingly what my eviction cases are. Numerous times I have successfully filed a motion to strike answer (as untimely) and moved for judgment, which was entered without hearing.
83.60(2) reads in part "Failure of the tenant to pay the rent into the registry of the court or to file a motion to determine the amount of rent to be paid into the registry within 5 days, excluding Saturdays, Sundays, and legal holidays, after the date of service of process constitutes an absolute waiver of the tenant’s defenses other than payment, and the landlord is entitled to an immediate default judgment for removal of the tenant with a writ of possession to issue without further notice or hearing thereon.” (emphasis mine)
This language always goes in my motion to stike an untimely answer (which is usually some sob story about no job, an illness, or the landlord’s lack of taking care of the unit) and also in my filing for default.
And when a tenant does answer timely, it can be stricken on the 6th day if the rent is not deposited unless it alleges proof of payment.
In my opinion, and my experience, unless the Tenant deposits the amount in the registry or shows proof of payment (I have NEVER had a tenant show proof of payment), they’re out. Period. Further, if they file a motion to determine rent and base it on decreasing the rent due to some deficiency in the premises or any violation of the landlord’s obligations, the tenant has to show he/she first served the landlord with the statutory 7-day notice to cure and the landlord failed to do so. I have yet to have a tenant do that either. Of course, if the 3-day notice had the incorrect rent amount, and a motion to determine is filed timely, then the 3-day notice needs to be served again. However, after the fairly recent amendment, the case is dismissed with leave to amend instead of just dismissed.
It is also my experience, that the judges, and the mediators (when the judge sends it to mediation— which is the farthest I have hasd tenants get) are fully aware that tenants often file motions to determine rent and answers with irrelevant allegations without rent deposited just as a delay tactic and the judgment enters and they restrain, usually, from rolling their eyes.
Gioia DeCarlo
This e-mail transmission and any documents, files or previous e-mail messages attached to it, are confidential and are protected by the attorney-client privilege and/or work product doctrine. If you are not the intended recipient, or a person responsible for delivering it to the intended recipient, you are hereby notified that any review, disclosure, copying, dissemination, distribution or use of any of the information contained in, or attached to this e-mail transmission is STRICTLY PROHIBITED. If you have received this transmission in error, please immediately notify me by forwarding this e-mail to Info@dvllclegal.com, or by telephone at (845) 321-0242 and then delete the message and its attachments from your computer.
From: Deborah Marks deborahmarkslaw@gmail.com
Reply-To: RPPTL Landlord Tenant Committee landten@lists.flabarrpptl.org
Date: Wednesday, May 27, 2015 at 9:01 AM
To: RPPTL Landlord Tenant Committee landten@lists.flabarrpptl.org
Subject: Re: [RPPTL LandTen] Case law on discretion to answer complaint after 5 day summons expired
Until a default is entered a defendant can answer without permission- even weeks late.that is standard civil procedure. Similarly, with cause even a default can be vacated. You will not find any law to contravene those basic rules. The penalty for not answering in time is that the relief sought may be entered without further notice. If you read the summons- it lays that out. It does not say if you fill to respond within 5 days you have lost all ability to defend no matter what.
Deborah Marks
Deborah Marks, PA
18495 S. Dixie Hwy
Ste 134
Miami, FL 33157
305-372-9400
Sent from my iPhone
On May 26, 2015, at 1:32 PM, Sebastian Jaramillo sebastian@lawjb.com wrote:
I am trying to find some case law that essentially states that the court lacks discretion to grant additional time to answer an eviction complaint beyond the five day summons.
Any help is appreciated.
Sebastian Jaramillo, Esq.
66 W. Flagler St Suite 500 Miami, FL 33130
Tel: (305) 600-3805 Fax: (786) 347-5562
www.lawjb.com
This email and any files transmitted with it are confidential and intended solely for the use of the individual or entity to whom they are addressed. If you have received this email in error please notify the system manager. This message contains confidential information and is intended only for the individual named. If you are not the named addressee you should not disseminate, distribute or copy this e-mail. Please notify the sender immediately by e-mail if you have received this e-mail by mistake and delete this e-mail from your system. If you are not the intended recipient you are notified that disclosing, copying, distributing or taking any action in reliance on the contents of this information is strictly prohibited.
IMPORTANT TAX NOTICE: This communication is not written to be used, and cannot be used, by a taxpayer for the purpose of avoiding penalties that may be asserted against the taxpayer under the Internal Revenue Code of 1986, as amended.
On Tue, May 26, 2015 at 1:12 PM, Leonard Cabral LensLaw@lenslaw.com wrote:
COMPARE the language in the chapter 83 and the mobile home statute. The mobile home statute allows the person who pays to stay. That language is absent in chapter 83. Paying money into the registry of the court the opportunity for a defense such as legally withholding rent, retaliatory eviction, Fair Housing violations, failure of numerous public housing requirements before eviction, etc. If those defenses are valid the judge rules for the tenant who can stay in the property.
Leonard P. Cabral
Leonardcabral@lenslaw.com
From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol
Sent: Tuesday, May 26, 2015 8:34 AM
To: Manuel Farach; RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Question regarding tenant's payment into court registry
Thanks Manny. I'm looking for a residential context. There is actually a case that says landlord proves a prima facie case for eviction when it proves (1) rental agreement; (2) tenants failure to timely pay rent; and (3) service of a 3 day notice. So I interpret that to mean once the 3 day period expires, tenant can be evicted even if it pays rent into the registry after filing of eviction case. However, that is a commercial case, not a residential.
Anyhow, thanks for your input, I'll see what the rest of the group has to say.
Cary
Law Offices of Cary P. Sabol
P.O. Box 15981 | West Palm Beach | Florida | 33416
Phone: (561) 281-2744
IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor.
Confidentiality Notice: This electronic mail transmission is intended for the use of the individual or entity to which it is addressed and may contain confidential information belonging to the sender which is protected by the attorney-client privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please notify the sender immediately by e-mail and delete the original message. Thank you for your cooperation.
From: Manuel Farach MFarach@richmangreer.com
To: 'Cary Sabol' sabollawoffice@yahoo.com
Sent: Saturday, May 23, 2015 6:40 AM
Subject: RE: [RPPTL LandTen] Question regarding tenant's payment into court registry
Cary,
I’ve viewed it as the Three Day Notice being a statutory condition precedent to filing suit (see Judge Gross’s opinion in Bell v. Kornblatt regarding the waivability of the Three Day Notice). I don’t think the notice has the ability to terminate the lease, and I think that can only be done by a judgment under 83.20. I’d like to see if anyone else has the same opinion.
Manny
Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar
Richman Greer P.A.
One Clearlake Centre
Suite 1504
250 Australian Avenue South
West Palm Beach, Florida 33401
Office: 561.803.3500
Fax: 561.820.1608
Direct: 561.803.3501
Email: MFarach@richmangreer.com
V-card
www.RichmanGreer.com
U.S. Treasury Regulation Circular 230 requires us to advise you that written communications issued by us are not intended to be and cannot be relied upon to avoid penalties that may be imposed by the Internal Revenue Service.
Incoming emails are filtered which may delay receipt. This email is personal to the named recipient(s) and may be privileged and confidential. If you are not the intended recipient, you received this in error. If so, any review, dissemination, or copying of this email is prohibited. Please immediately notify us by email and delete the original message.
From:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol
Sent: Friday, May 22, 2015 5:27 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Question regarding tenant's payment into court registry
Hi All,
Hope everyone is doing well and looking forward to a relaxing holiday weekend. I wanted to ask the group if anyone might know of any case law that stands for the proposition that even if the tenant posts the rent money into the court registry, the landlord still have the right to terminate the lease and obtain an eviction judgment at a final hearing, despite the tenant's posting of the rent money.
In other words, it is my understanding that if a landlord delivers a valid three day notice and the tenant does not pay within that deadline, then the lease is terminated. So if the landlord then files for eviction and the tenant ends up posting the rent due in the court registry, the landlord can still proceed with eviction and obtain an eviction judgment. I know this is the state of the law, but just don't have a case to support it. Supreme Court would be nice or 4th DCA, but anything will help. I've recently had a few judges basically say to me that since the tenant has paid the rent now, they can stay on the premises.
Any help is much appreciated.
Cary
Law Offices of Cary P. Sabol
P.O. Box 15981 | West Palm Beach | Florida | 33416
Phone: (561) 281-2744
IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor.
Confidentiality Notice: This electronic mail transmission is intended for the use of the individual or entity to which it is addressed and may contain confidential information belonging to the sender which is protected by the attorney-client privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please notify the sender immediately by e-mail and delete the original message. Thank you for your cooperation.
landten mailing list
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http://mailman.fsr.com/mailman/listinfo/landten
The motion to strike is usually because an answer was filed but they didn't put the money into the registry. It isn't the "answer" being late that creates the problem.
Sent from my iPad
> On May 27, 2015, at 9:28 AM, Gioia DeCarlo <gdc@dvllclegal.com> wrote:
>
> I do not agree in the case of evictions, at least residential, which is overwhelmingly what my eviction cases are. Numerous times I have successfully filed a motion to strike answer (as untimely) and moved for judgment, which was entered without hearing.
>
> 83.60(2) reads in part "Failure of the tenant to pay the rent into the registry of the court or to file a motion to determine the amount of rent to be paid into the registry within 5 days, excluding Saturdays, Sundays, and legal holidays, after the date of service of process constitutes an absolute waiver of the tenant’s defenses other than payment, and the landlord is entitled to an immediate default judgment for removal of the tenant with a writ of possession to issue without further notice or hearing thereon.” (emphasis mine)
>
> This language always goes in my motion to stike an untimely answer (which is usually some sob story about no job, an illness, or the landlord’s lack of taking care of the unit) and also in my filing for default.
>
> And when a tenant does answer timely, it can be stricken on the 6th day if the rent is not deposited unless it alleges proof of payment.
>
> In my opinion, and my experience, unless the Tenant deposits the amount in the registry or shows proof of payment (I have NEVER had a tenant show proof of payment), they’re out. Period. Further, if they file a motion to determine rent and base it on decreasing the rent due to some deficiency in the premises or any violation of the landlord’s obligations, the tenant has to show he/she first served the landlord with the statutory 7-day notice to cure and the landlord failed to do so. I have yet to have a tenant do that either. Of course, if the 3-day notice had the incorrect rent amount, and a motion to determine is filed timely, then the 3-day notice needs to be served again. However, after the fairly recent amendment, the case is dismissed with leave to amend instead of just dismissed.
>
> It is also my experience, that the judges, and the mediators (when the judge sends it to mediation— which is the farthest I have hasd tenants get) are fully aware that tenants often file motions to determine rent and answers with irrelevant allegations without rent deposited just as a delay tactic and the judgment enters and they restrain, usually, from rolling their eyes.
>
> Gioia DeCarlo
>
>
>
>
>
> This e-mail transmission and any documents, files or previous e-mail messages attached to it, are confidential and are protected by the attorney-client privilege and/or work product doctrine. If you are not the intended recipient, or a person responsible for delivering it to the intended recipient, you are hereby notified that any review, disclosure, copying, dissemination, distribution or use of any of the information contained in, or attached to this e-mail transmission is STRICTLY PROHIBITED. If you have received this transmission in error, please immediately notify me by forwarding this e-mail to Info@dvllclegal.com, or by telephone at (845) 321-0242 and then delete the message and its attachments from your computer.
>
>
> From: Deborah Marks <deborahmarkslaw@gmail.com>
> Reply-To: RPPTL Landlord Tenant Committee <landten@lists.flabarrpptl.org>
> Date: Wednesday, May 27, 2015 at 9:01 AM
> To: RPPTL Landlord Tenant Committee <landten@lists.flabarrpptl.org>
> Subject: Re: [RPPTL LandTen] Case law on discretion to answer complaint after 5 day summons expired
>
> Until a default is entered a defendant can answer without permission- even weeks late.that is standard civil procedure. Similarly, with cause even a default can be vacated. You will not find any law to contravene those basic rules. The penalty for not answering in time is that the relief sought may be entered without further notice. If you read the summons- it lays that out. It does not say if you fill to respond within 5 days you have lost all ability to defend no matter what.
>
> Deborah Marks
> Deborah Marks, PA
> 18495 S. Dixie Hwy
> Ste 134
> Miami, FL 33157
> 305-372-9400
>
> Sent from my iPhone
>
>> On May 26, 2015, at 1:32 PM, Sebastian Jaramillo <sebastian@lawjb.com> wrote:
>>
>> I am trying to find some case law that essentially states that the court lacks discretion to grant additional time to answer an eviction complaint beyond the five day summons.
>>
>> Any help is appreciated.
>> Sebastian Jaramillo, Esq.
>>
>>
>>
>> 66 W. Flagler St Suite 500 Miami, FL 33130
>> Tel: (305) 600-3805 Fax: (786) 347-5562
>> www.lawjb.com
>>
>> This email and any files transmitted with it are confidential and intended solely for the use of the individual or entity to whom they are addressed. If you have received this email in error please notify the system manager. This message contains confidential information and is intended only for the individual named. If you are not the named addressee you should not disseminate, distribute or copy this e-mail. Please notify the sender immediately by e-mail if you have received this e-mail by mistake and delete this e-mail from your system. If you are not the intended recipient you are notified that disclosing, copying, distributing or taking any action in reliance on the contents of this information is strictly prohibited.
>>
>> IMPORTANT TAX NOTICE: This communication is not written to be used, and cannot be used, by a taxpayer for the purpose of avoiding penalties that may be asserted against the taxpayer under the Internal Revenue Code of 1986, as amended.
>>
>>> On Tue, May 26, 2015 at 1:12 PM, Leonard Cabral <LensLaw@lenslaw.com> wrote:
>>> COMPARE the language in the chapter 83 and the mobile home statute. The mobile home statute allows the person who pays to stay. That language is absent in chapter 83. Paying money into the registry of the court the opportunity for a defense such as legally withholding rent, retaliatory eviction, Fair Housing violations, failure of numerous public housing requirements before eviction, etc. If those defenses are valid the judge rules for the tenant who can stay in the property.
>>>
>>>
>>>
>>> Leonard P. Cabral
>>>
>>> Leonardcabral@lenslaw.com
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>> From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol
>>> Sent: Tuesday, May 26, 2015 8:34 AM
>>> To: Manuel Farach; RPPTL Landlord Tenant Committee
>>> Subject: Re: [RPPTL LandTen] Question regarding tenant's payment into court registry
>>>
>>>
>>>
>>> Thanks Manny. I'm looking for a residential context. There is actually a case that says landlord proves a prima facie case for eviction when it proves (1) rental agreement; (2) tenants failure to timely pay rent; and (3) service of a 3 day notice. So I interpret that to mean once the 3 day period expires, tenant can be evicted even if it pays rent into the registry after filing of eviction case. However, that is a commercial case, not a residential.
>>>
>>>
>>>
>>> Anyhow, thanks for your input, I'll see what the rest of the group has to say.
>>>
>>>
>>>
>>> Cary
>>>
>>> Law Offices of Cary P. Sabol
>>>
>>> P.O. Box 15981 | West Palm Beach | Florida | 33416
>>>
>>> Phone: (561) 281-2744
>>>
>>> IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor.
>>>
>>>
>>>
>>> Confidentiality Notice: This electronic mail transmission is intended for the use of the individual or entity to which it is addressed and may contain confidential information belonging to the sender which is protected by the attorney-client privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please notify the sender immediately by e-mail and delete the original message. Thank you for your cooperation.
>>>
>>>
>>>
>>> From: Manuel Farach <MFarach@richmangreer.com>
>>> To: 'Cary Sabol' <sabollawoffice@yahoo.com>
>>> Sent: Saturday, May 23, 2015 6:40 AM
>>> Subject: RE: [RPPTL LandTen] Question regarding tenant's payment into court registry
>>>
>>>
>>>
>>> Cary,
>>>
>>> I’ve viewed it as the Three Day Notice being a statutory condition precedent to filing suit (see Judge Gross’s opinion in Bell v. Kornblatt regarding the waivability of the Three Day Notice). I don’t think the notice has the ability to terminate the lease, and I think that can only be done by a judgment under 83.20. I’d like to see if anyone else has the same opinion.
>>>
>>> Manny
>>>
>>>
>>>
>>>
>>>
>>> Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar
>>>
>>> Richman Greer P.A.
>>> One Clearlake Centre
>>> Suite 1504
>>> 250 Australian Avenue South
>>> West Palm Beach, Florida 33401
>>> Office: 561.803.3500
>>> Fax: 561.820.1608
>>> Direct: 561.803.3501
>>> Email: MFarach@richmangreer.com
>>> V-card
>>>
>>> www.RichmanGreer.com
>>>
>>> U.S. Treasury Regulation Circular 230 requires us to advise you that written communications issued by us are not intended to be and cannot be relied upon to avoid penalties that may be imposed by the Internal Revenue Service.
>>>
>>> Incoming emails are filtered which may delay receipt. This email is personal to the named recipient(s) and may be privileged and confidential. If you are not the intended recipient, you received this in error. If so, any review, dissemination, or copying of this email is prohibited. Please immediately notify us by email and delete the original message.
>>>
>>>
>>>
>>>
>>>
>>> From:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol
>>> Sent: Friday, May 22, 2015 5:27 PM
>>> To: RPPTL Landlord Tenant Committee
>>> Subject: [RPPTL LandTen] Question regarding tenant's payment into court registry
>>>
>>>
>>>
>>> Hi All,
>>>
>>>
>>>
>>> Hope everyone is doing well and looking forward to a relaxing holiday weekend. I wanted to ask the group if anyone might know of any case law that stands for the proposition that even if the tenant posts the rent money into the court registry, the landlord still have the right to terminate the lease and obtain an eviction judgment at a final hearing, despite the tenant's posting of the rent money.
>>>
>>>
>>>
>>> In other words, it is my understanding that if a landlord delivers a valid three day notice and the tenant does not pay within that deadline, then the lease is terminated. So if the landlord then files for eviction and the tenant ends up posting the rent due in the court registry, the landlord can still proceed with eviction and obtain an eviction judgment. I know this is the state of the law, but just don't have a case to support it. Supreme Court would be nice or 4th DCA, but anything will help. I've recently had a few judges basically say to me that since the tenant has paid the rent now, they can stay on the premises.
>>>
>>>
>>>
>>> Any help is much appreciated.
>>>
>>>
>>>
>>> Cary
>>>
>>> Law Offices of Cary P. Sabol
>>>
>>> P.O. Box 15981 | West Palm Beach | Florida | 33416
>>>
>>> Phone: (561) 281-2744
>>>
>>> IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor.
>>>
>>>
>>>
>>> Confidentiality Notice: This electronic mail transmission is intended for the use of the individual or entity to which it is addressed and may contain confidential information belonging to the sender which is protected by the attorney-client privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please notify the sender immediately by e-mail and delete the original message. Thank you for your cooperation.
>>>
>>>
>>>
>>>
>>> _______________________________________________
>>> landten mailing list
>>> landten@lists.flabarrpptl.org
>>> http://mailman.fsr.com/mailman/listinfo/landten
>>
>> _______________________________________________
>> landten mailing list
>> landten@lists.flabarrpptl.org
>> http://mailman.fsr.com/mailman/listinfo/landten
> _______________________________________________ landten mailing list landten@lists.flabarrpptl.org http://mailman.fsr.com/mailman/listinfo/landten
> <image001.gif>
> <8CB06059-7794-44D1-BE98-12633C0070FE[96].png>
> _______________________________________________
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AC
Alberto Cardet
Thu, May 28, 2015 3:01 AM
I believe the Supreme Court reversed the Crocker case. See Pro-Art Dental (986
So.2d 1244 (2007). I think your issue is more a Chapter 51 summary
procedure issue, that sets forth that all defenses must be filed within 5
days and no other pleadings are permitted. Here is a google scholar link
to Pro Art, unfortunately I don't think it supports your position.
https://scholar.google.com/scholar_case?q=51.011&hl=en&as_sdt=4,10&case=12872517701375053237&scilh=0
Cardet Law, P.A.
1330 Coral Way #301
Miami FL 33145
305-403-7783
On Wed, May 27, 2015 at 9:44 AM, Sebastian Jaramillo sebastian@lawjb.com
wrote:
I agree, my case is a little more complicated. The rent has been deposited
in the registry of the court, the Defendant filed both a Motion to
Determine Rent and a Motion to Dismiss. Both motions have been denied.
There is case law that argues that a tenant's Motion to Dismiss is
essentially a defective answer Crocker v. Diland Corporation 593 So. 2d
1096 (Fla.5th DCA). I need however to find something that shows that the
court lacks discrection to allow Defendant to file an answer after they've
already filed a responsive pleading.
Sebastian Jaramillo, Esq.
66 W. Flagler St Suite 500 Miami, FL 33130
Tel: (305) 600-3805 Fax: (786) 347-5562
www.lawjb.com
This email and any files transmitted with it are confidential and intended
solely for the use of the individual or entity to whom they are addressed.
If you have received this email in error please notify the system manager.
This message contains confidential information and is intended only for the
individual named. If you are not the named addressee you should not
disseminate, distribute or copy this e-mail. Please notify the sender
immediately by e-mail if you have received this e-mail by mistake and
delete this e-mail from your system. If you are not the intended recipient
you are notified that disclosing, copying, distributing or taking any
action in reliance on the contents of this information is strictly
prohibited.
IMPORTANT TAX NOTICE: This communication is not written to be used, and
cannot be used, by a taxpayer for the purpose of avoiding penalties that
may be asserted against the taxpayer under the Internal Revenue Code of
1986, as amended.
On Wed, May 27, 2015 at 9:28 AM, Gioia DeCarlo gdc@dvllclegal.com wrote:
I do not agree in the case of evictions, at least residential, which is
overwhelmingly what my eviction cases are. Numerous times I have
successfully filed a motion to strike answer (as untimely) and moved for
judgment, which was entered without hearing.
83.60(2) reads in part "Failure of the tenant to pay the rent into the
registry of the court or to file a motion to determine the amount of rent
to be paid into the registry within 5 days, excluding Saturdays, Sundays,
and legal holidays, after the date of service of process constitutes an absolute
waiver of the tenant’s defenses other than payment, and the landlord is
entitled to an immediate default judgment for removal of the tenant with a
writ of possession to issue without further notice or hearing thereon.”
(emphasis mine)
This language always goes in my motion to stike an untimely answer (which
is usually some sob story about no job, an illness, or the landlord’s lack
of taking care of the unit) and also in my filing for default.
And when a tenant does answer timely, it can be stricken on the 6th day
if the rent is not deposited unless it alleges proof of payment.
In my opinion, and my experience, unless the Tenant deposits the amount
in the registry or shows proof of payment (I have NEVER had a tenant show
proof of payment), they’re out. Period. Further, if they file a motion to
determine rent and base it on decreasing the rent due to some deficiency in
the premises or any violation of the landlord’s obligations, the tenant has
to show he/she first served the landlord with the statutory 7-day notice to
cure and the landlord failed to do so. I have yet to have a tenant do
that either. Of course, if the 3-day notice had the incorrect rent amount,
and a motion to determine is filed timely, then the 3-day notice needs to
be served again. However, after the fairly recent amendment, the case is
dismissed with leave to amend instead of just dismissed.
It is also my experience, that the judges, and the mediators (when the
judge sends it to mediation— which is the farthest I have hasd tenants get)
are fully aware that tenants often file motions to determine rent and
answers with irrelevant allegations without rent deposited just as a delay
tactic and the judgment enters and they restrain, usually, from rolling
their eyes.
Gioia DeCarlo
This e-mail transmission and any documents, files or previous e-mail
messages attached to it, are confidential and are protected by the
attorney-client privilege and/or work product doctrine. If you are not the
intended recipient, or a person responsible for delivering it to the
intended recipient, you are hereby notified that any review, disclosure,
copying, dissemination, distribution or use of any of the information
contained in, or attached to this e-mail transmission is STRICTLY
PROHIBITED. If you have received this transmission in error, please
immediately notify me by forwarding this e-mail to Info@dvllclegal.com,
or by telephone at (845) 321-0242 and then delete the message and its
attachments from your computer.
From: Deborah Marks deborahmarkslaw@gmail.com
Reply-To: RPPTL Landlord Tenant Committee landten@lists.flabarrpptl.org
Date: Wednesday, May 27, 2015 at 9:01 AM
To: RPPTL Landlord Tenant Committee landten@lists.flabarrpptl.org
Subject: Re: [RPPTL LandTen] Case law on discretion to answer complaint
after 5 day summons expired
Until a default is entered a defendant can answer without permission-
even weeks late.that is standard civil procedure. Similarly, with cause
even a default can be vacated. You will not find any law to contravene
those basic rules. The penalty for not answering in time is that the relief
sought may be entered without further notice. If you read the summons- it
lays that out. It does not say if you fill to respond within 5 days you
have lost all ability to defend no matter what.
Deborah Marks
Deborah Marks, PA
18495 S. Dixie Hwy
Ste 134
Miami, FL 33157
305-372-9400
Sent from my iPhone
On May 26, 2015, at 1:32 PM, Sebastian Jaramillo sebastian@lawjb.com
wrote:
I am trying to find some case law that essentially states that the court
lacks discretion to grant additional time to answer an eviction complaint
beyond the five day summons.
Any help is appreciated.
Sebastian Jaramillo, Esq.
66 W. Flagler St Suite 500 Miami, FL 33130
Tel: (305) 600-3805 Fax: (786) 347-5562
www.lawjb.com
This email and any files transmitted with it are confidential and
intended solely for the use of the individual or entity to whom they are
addressed. If you have received this email in error please notify the
system manager. This message contains confidential information and is
intended only for the individual named. If you are not the named addressee
you should not disseminate, distribute or copy this e-mail. Please notify
the sender immediately by e-mail if you have received this e-mail by
mistake and delete this e-mail from your system. If you are not the
intended recipient you are notified that disclosing, copying, distributing
or taking any action in reliance on the contents of this information is
strictly prohibited.
IMPORTANT TAX NOTICE: This communication is not written to be used, and
cannot be used, by a taxpayer for the purpose of avoiding penalties that
may be asserted against the taxpayer under the Internal Revenue Code of
1986, as amended.
On Tue, May 26, 2015 at 1:12 PM, Leonard Cabral LensLaw@lenslaw.com
wrote:
COMPARE the language in the chapter 83 and the mobile home statute. The
mobile home statute allows the person who pays to stay. That language is
absent in chapter 83. Paying money into the registry of the court the
opportunity for a defense such as legally withholding rent, retaliatory
eviction, Fair Housing violations, failure of numerous public housing
requirements before eviction, etc. If those defenses are valid the judge
rules for the tenant who can stay in the property.
Leonard P. Cabral
Leonardcabral@lenslaw.com
From: landten-bounces@lists.flabarrpptl.org [mailto:
landten-bounces@lists.flabarrpptl.org] *On Behalf Of *Cary Sabol
Sent: Tuesday, May 26, 2015 8:34 AM
To: Manuel Farach; RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Question regarding tenant's payment into
court registry
Thanks Manny. I'm looking for a residential context. There is actually
a case that says landlord proves a prima facie case for eviction when it
proves (1) rental agreement; (2) tenants failure to timely pay rent; and
(3) service of a 3 day notice. So I interpret that to mean once the 3 day
period expires, tenant can be evicted even if it pays rent into the
registry after filing of eviction case. However, that is a commercial
case, not a residential.
Anyhow, thanks for your input, I'll see what the rest of the group has
to say.
Cary
Law Offices of Cary P. Sabol
*P.O. Box 15981 | West Palm Beach | Florida | 33416 *
Phone: (561) 281-2744 <%28561%29%20281-2744>
------------------------------
IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury
Department Regulations, we are now required to advise you that, unless
otherwise expressly indicated, any federal tax advice expressed above was
neither written nor intended by the sender or this firm to be used and
cannot be used by any taxpayer for the purpose of avoiding penalties that
may be imposed under U.S. tax law. If any person uses or refers to any such
tax advice in promoting, marketing or recommending a partnership or other
entity, investment plan or arrangement to any taxpayer, then the advice
should be considered to have been written to support the promotion or
marketing by a person other than the sender or this firm of that
transaction or matter, and such taxpayer should seek advice based on the
taxpayer's particular circumstances from an independent tax advisor.
Confidentiality Notice: This electronic mail transmission is intended
for the use of the individual or entity to which it is addressed and may
contain confidential information belonging to the sender which is protected
by the attorney-client privilege. If you are not the intended recipient,
you are hereby notified that any disclosure, copying, distribution, or the
taking of any action in reliance on the contents of this information is
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please notify the sender immediately by e-mail and delete the original
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From: Manuel Farach MFarach@richmangreer.com
To: 'Cary Sabol' sabollawoffice@yahoo.com
Sent: Saturday, May 23, 2015 6:40 AM
Subject: RE: [RPPTL LandTen] Question regarding tenant's payment into
court registry
Cary,
I’ve viewed it as the Three Day Notice being a statutory condition
precedent to filing suit (see Judge Gross’s opinion in Bell v. Kornblatt
regarding the waivability of the Three Day Notice). I don’t think the
notice has the ability to terminate the lease, and I think that can only be
done by a judgment under 83.20. I’d like to see if anyone else has the same
opinion.
Manny
Manuel Farach / Of Counsel - Board Certified in Real Estate Law and
Business Litigation by The Florida Bar
Richman Greer P.A.
One Clearlake Centre
Suite 1504
250 Australian Avenue South
West Palm Beach, Florida 33401
Office: 561.803.3500
Fax: 561.820.1608
Direct: 561.803.3501
Email: MFarach@richmangreer.com
V-card http://richmangreer.com/uploads/vcards/VcardFarach.vcf
www.RichmanGreer.com http://www.richmangreer.com/
U.S. Treasury Regulation Circular 230 requires us to advise you that
written communications issued by us are not intended to be and cannot be
relied upon to avoid penalties that may be imposed by the Internal Revenue
Service.
Incoming emails are filtered which may delay receipt. This email is
personal to the named recipient(s) and may be privileged and confidential.
If you are not the intended recipient, you received this in error. If so,
any review, dissemination, or copying of this email is prohibited. Please
immediately notify us by email and delete the original message.
*From:*landten-bounces@lists.flabarrpptl.org [
mailto:landten-bounces@lists.flabarrpptl.org
landten-bounces@lists.flabarrpptl.org] *On Behalf Of *Cary Sabol
Sent: Friday, May 22, 2015 5:27 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Question regarding tenant's payment into
court registry
Hi All,
Hope everyone is doing well and looking forward to a relaxing holiday
weekend. I wanted to ask the group if anyone might know of any case law
that stands for the proposition that even if the tenant posts the rent
money into the court registry, the landlord still have the right to
terminate the lease and obtain an eviction judgment at a final hearing,
despite the tenant's posting of the rent money.
In other words, it is my understanding that if a landlord delivers a
valid three day notice and the tenant does not pay within that deadline,
then the lease is terminated. So if the landlord then files for eviction
and the tenant ends up posting the rent due in the court registry, the
landlord can still proceed with eviction and obtain an eviction judgment.
I know this is the state of the law, but just don't have a case to support
it. Supreme Court would be nice or 4th DCA, but anything will help. I've
recently had a few judges basically say to me that since the tenant has
paid the rent now, they can stay on the premises.
Any help is much appreciated.
Cary
Law Offices of Cary P. Sabol
*P.O. Box 15981 | West Palm Beach | Florida | 33416 *
*Phone: (561) 281-2744 <%28561%29%20281-2744> *
IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury
Department Regulations, we are now required to advise you that, unless
otherwise expressly indicated, any federal tax advice expressed above was
neither written nor intended by the sender or this firm to be used and
cannot be used by any taxpayer for the purpose of avoiding penalties that
may be imposed under U.S. tax law. If any person uses or refers to any such
tax advice in promoting, marketing or recommending a partnership or other
entity, investment plan or arrangement to any taxpayer, then the advice
should be considered to have been written to support the promotion or
marketing by a person other than the sender or this firm of that
transaction or matter, and such taxpayer should seek advice based on the
taxpayer's particular circumstances from an independent tax advisor.
Confidentiality Notice: This electronic mail transmission is intended
for the use of the individual or entity to which it is addressed and may
contain confidential information belonging to the sender which is protected
by the attorney-client privilege. If you are not the intended recipient,
you are hereby notified that any disclosure, copying, distribution, or the
taking of any action in reliance on the contents of this information is
strictly prohibited. If you have received this transmission in error,
please notify the sender immediately by e-mail and delete the original
message. Thank you for your cooperation.
landten mailing list
landten@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/landten
I believe the Supreme Court reversed the Crocker case. See Pro-Art Dental (986
So.2d 1244 (2007). I think your issue is more a Chapter 51 summary
procedure issue, that sets forth that all defenses must be filed within 5
days and no other pleadings are permitted. Here is a google scholar link
to Pro Art, unfortunately I don't think it supports your position.
https://scholar.google.com/scholar_case?q=51.011&hl=en&as_sdt=4,10&case=12872517701375053237&scilh=0
Cardet Law, P.A.
1330 Coral Way #301
Miami FL 33145
305-403-7783
On Wed, May 27, 2015 at 9:44 AM, Sebastian Jaramillo <sebastian@lawjb.com>
wrote:
> I agree, my case is a little more complicated. The rent has been deposited
> in the registry of the court, the Defendant filed both a Motion to
> Determine Rent and a Motion to Dismiss. Both motions have been denied.
> There is case law that argues that a tenant's Motion to Dismiss is
> essentially a defective answer Crocker v. Diland Corporation 593 So. 2d
> 1096 (Fla.5th DCA). I need however to find something that shows that the
> court lacks discrection to allow Defendant to file an answer after they've
> already filed a responsive pleading.
>
>
> *Sebastian Jaramillo, Esq.*
>
>
> 66 W. Flagler St Suite 500 Miami, FL 33130
> Tel: (305) 600-3805 Fax: (786) 347-5562
> www.lawjb.com
>
> This email and any files transmitted with it are confidential and intended
> solely for the use of the individual or entity to whom they are addressed.
> If you have received this email in error please notify the system manager.
> This message contains confidential information and is intended only for the
> individual named. If you are not the named addressee you should not
> disseminate, distribute or copy this e-mail. Please notify the sender
> immediately by e-mail if you have received this e-mail by mistake and
> delete this e-mail from your system. If you are not the intended recipient
> you are notified that disclosing, copying, distributing or taking any
> action in reliance on the contents of this information is strictly
> prohibited.
> IMPORTANT TAX NOTICE: This communication is not written to be used, and
> cannot be used, by a taxpayer for the purpose of avoiding penalties that
> may be asserted against the taxpayer under the Internal Revenue Code of
> 1986, as amended.
>
> On Wed, May 27, 2015 at 9:28 AM, Gioia DeCarlo <gdc@dvllclegal.com> wrote:
>
>> I do not agree in the case of evictions, at least residential, which is
>> overwhelmingly what my eviction cases are. Numerous times I have
>> successfully filed a motion to strike answer (as untimely) and moved for
>> judgment, which was entered without hearing.
>>
>> 83.60(2) reads in part "Failure of the tenant to pay the rent into the
>> registry of the court or to file a motion to determine the amount of rent
>> to be paid into the registry within 5 days, excluding Saturdays, Sundays,
>> and legal holidays, after the date of service of process constitutes an *absolute
>> waiver* of the tenant’s defenses other than payment, and the landlord is
>> entitled to an immediate default judgment for removal of the tenant with a
>> writ of possession to issue without further notice or hearing thereon.”
>> (emphasis mine)
>>
>> This language always goes in my motion to stike an untimely answer (which
>> is usually some sob story about no job, an illness, or the landlord’s lack
>> of taking care of the unit) and also in my filing for default.
>>
>> And when a tenant does answer timely, it can be stricken on the 6th day
>> if the rent is not deposited unless it alleges proof of payment.
>>
>> In my opinion, and my experience, unless the Tenant deposits the amount
>> in the registry or shows proof of payment (I have NEVER had a tenant show
>> proof of payment), they’re out. Period. Further, if they file a motion to
>> determine rent and base it on decreasing the rent due to some deficiency in
>> the premises or any violation of the landlord’s obligations, the tenant has
>> to show he/she first served the landlord with the statutory 7-day notice to
>> cure and the landlord failed to do so. I have yet to have a tenant do
>> that either. Of course, if the 3-day notice had the incorrect rent amount,
>> and a motion to determine is filed timely, then the 3-day notice needs to
>> be served again. However, after the fairly recent amendment, the case is
>> dismissed with leave to amend instead of just dismissed.
>>
>> It is also my experience, that the judges, and the mediators (when the
>> judge sends it to mediation— which is the farthest I have hasd tenants get)
>> are fully aware that tenants often file motions to determine rent and
>> answers with irrelevant allegations without rent deposited just as a delay
>> tactic and the judgment enters and they restrain, usually, from rolling
>> their eyes.
>>
>> Gioia DeCarlo
>>
>>
>>
>>
>> This e-mail transmission and any documents, files or previous e-mail
>> messages attached to it, are confidential and are protected by the
>> attorney-client privilege and/or work product doctrine. If you are not the
>> intended recipient, or a person responsible for delivering it to the
>> intended recipient, you are hereby notified that any review, disclosure,
>> copying, dissemination, distribution or use of any of the information
>> contained in, or attached to this e-mail transmission is STRICTLY
>> PROHIBITED. If you have received this transmission in error, please
>> immediately notify me by forwarding this e-mail to Info@dvllclegal.com,
>> or by telephone at (845) 321-0242 and then delete the message and its
>> attachments from your computer.
>>
>>
>> From: Deborah Marks <deborahmarkslaw@gmail.com>
>> Reply-To: RPPTL Landlord Tenant Committee <landten@lists.flabarrpptl.org>
>> Date: Wednesday, May 27, 2015 at 9:01 AM
>> To: RPPTL Landlord Tenant Committee <landten@lists.flabarrpptl.org>
>> Subject: Re: [RPPTL LandTen] Case law on discretion to answer complaint
>> after 5 day summons expired
>>
>> Until a default is entered a defendant can answer without permission-
>> even weeks late.that is standard civil procedure. Similarly, with cause
>> even a default can be vacated. You will not find any law to contravene
>> those basic rules. The penalty for not answering in time is that the relief
>> sought may be entered without further notice. If you read the summons- it
>> lays that out. It does not say if you fill to respond within 5 days you
>> have lost all ability to defend no matter what.
>>
>> Deborah Marks
>> Deborah Marks, PA
>> 18495 S. Dixie Hwy
>> Ste 134
>> Miami, FL 33157
>> 305-372-9400
>>
>> Sent from my iPhone
>>
>> On May 26, 2015, at 1:32 PM, Sebastian Jaramillo <sebastian@lawjb.com>
>> wrote:
>>
>> I am trying to find some case law that essentially states that the court
>> lacks discretion to grant additional time to answer an eviction complaint
>> beyond the five day summons.
>>
>> Any help is appreciated.
>>
>> *Sebastian Jaramillo, Esq.*
>>
>>
>> 66 W. Flagler St Suite 500 Miami, FL 33130
>> Tel: (305) 600-3805 Fax: (786) 347-5562
>> www.lawjb.com
>>
>> This email and any files transmitted with it are confidential and
>> intended solely for the use of the individual or entity to whom they are
>> addressed. If you have received this email in error please notify the
>> system manager. This message contains confidential information and is
>> intended only for the individual named. If you are not the named addressee
>> you should not disseminate, distribute or copy this e-mail. Please notify
>> the sender immediately by e-mail if you have received this e-mail by
>> mistake and delete this e-mail from your system. If you are not the
>> intended recipient you are notified that disclosing, copying, distributing
>> or taking any action in reliance on the contents of this information is
>> strictly prohibited.
>> IMPORTANT TAX NOTICE: This communication is not written to be used, and
>> cannot be used, by a taxpayer for the purpose of avoiding penalties that
>> may be asserted against the taxpayer under the Internal Revenue Code of
>> 1986, as amended.
>>
>> On Tue, May 26, 2015 at 1:12 PM, Leonard Cabral <LensLaw@lenslaw.com>
>> wrote:
>>
>>> COMPARE the language in the chapter 83 and the mobile home statute. The
>>> mobile home statute allows the person who pays to stay. That language is
>>> absent in chapter 83. Paying money into the registry of the court the
>>> opportunity for a defense such as legally withholding rent, retaliatory
>>> eviction, Fair Housing violations, failure of numerous public housing
>>> requirements before eviction, etc. If those defenses are valid the judge
>>> rules for the tenant who can stay in the property.
>>>
>>>
>>>
>>> Leonard P. Cabral
>>>
>>> Leonardcabral@lenslaw.com
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>> *From:* landten-bounces@lists.flabarrpptl.org [mailto:
>>> landten-bounces@lists.flabarrpptl.org] *On Behalf Of *Cary Sabol
>>> *Sent:* Tuesday, May 26, 2015 8:34 AM
>>> *To:* Manuel Farach; RPPTL Landlord Tenant Committee
>>> *Subject:* Re: [RPPTL LandTen] Question regarding tenant's payment into
>>> court registry
>>>
>>>
>>>
>>> Thanks Manny. I'm looking for a residential context. There is actually
>>> a case that says landlord proves a prima facie case for eviction when it
>>> proves (1) rental agreement; (2) tenants failure to timely pay rent; and
>>> (3) service of a 3 day notice. So I interpret that to mean once the 3 day
>>> period expires, tenant can be evicted even if it pays rent into the
>>> registry after filing of eviction case. However, that is a commercial
>>> case, not a residential.
>>>
>>>
>>>
>>> Anyhow, thanks for your input, I'll see what the rest of the group has
>>> to say.
>>>
>>>
>>>
>>> Cary
>>>
>>> *Law Offices of Cary P. Sabol*
>>>
>>> *P.O. Box 15981 | West Palm Beach | Florida | 33416 *
>>>
>>> *Phone: (561) 281-2744 <%28561%29%20281-2744>*
>>> *------------------------------*
>>>
>>> *IRS Circular 230 Notice*: Pursuant to recently enacted U.S. Treasury
>>> Department Regulations, we are now required to advise you that, unless
>>> otherwise expressly indicated, any federal tax advice expressed above was
>>> neither written nor intended by the sender or this firm to be used and
>>> cannot be used by any taxpayer for the purpose of avoiding penalties that
>>> may be imposed under U.S. tax law. If any person uses or refers to any such
>>> tax advice in promoting, marketing or recommending a partnership or other
>>> entity, investment plan or arrangement to any taxpayer, then the advice
>>> should be considered to have been written to support the promotion or
>>> marketing by a person other than the sender or this firm of that
>>> transaction or matter, and such taxpayer should seek advice based on the
>>> taxpayer's particular circumstances from an independent tax advisor.
>>>
>>>
>>>
>>> *Confidentiality Notice*: This electronic mail transmission is intended
>>> for the use of the individual or entity to which it is addressed and may
>>> contain confidential information belonging to the sender which is protected
>>> by the attorney-client privilege. If you are not the intended recipient,
>>> you are hereby notified that any disclosure, copying, distribution, or the
>>> taking of any action in reliance on the contents of this information is
>>> strictly prohibited. If you have received this transmission in error,
>>> please notify the sender immediately by e-mail and delete the original
>>> message. Thank you for your cooperation.
>>>
>>>
>>> ------------------------------
>>>
>>> *From:* Manuel Farach <MFarach@richmangreer.com>
>>> *To:* 'Cary Sabol' <sabollawoffice@yahoo.com>
>>> *Sent:* Saturday, May 23, 2015 6:40 AM
>>> *Subject:* RE: [RPPTL LandTen] Question regarding tenant's payment into
>>> court registry
>>>
>>>
>>>
>>> Cary,
>>>
>>> I’ve viewed it as the Three Day Notice being a statutory condition
>>> precedent to filing suit (see Judge Gross’s opinion in Bell v. Kornblatt
>>> regarding the waivability of the Three Day Notice). I don’t think the
>>> notice has the ability to terminate the lease, and I think that can only be
>>> done by a judgment under 83.20. I’d like to see if anyone else has the same
>>> opinion.
>>>
>>> Manny
>>>
>>>
>>> ------------------------------
>>>
>>> Manuel Farach / Of Counsel - Board Certified in Real Estate Law and
>>> Business Litigation by The Florida Bar
>>>
>>> Richman Greer P.A.
>>> One Clearlake Centre
>>> Suite 1504
>>> 250 Australian Avenue South
>>> West Palm Beach, Florida 33401
>>> Office: 561.803.3500
>>> Fax: 561.820.1608
>>> Direct: 561.803.3501
>>> Email: MFarach@richmangreer.com
>>> V-card <http://richmangreer.com/uploads/vcards/VcardFarach.vcf>
>>>
>>> www.RichmanGreer.com <http://www.richmangreer.com/>
>>>
>>> U.S. Treasury Regulation Circular 230 requires us to advise you that
>>> written communications issued by us are not intended to be and cannot be
>>> relied upon to avoid penalties that may be imposed by the Internal Revenue
>>> Service.
>>>
>>> Incoming emails are filtered which may delay receipt. This email is
>>> personal to the named recipient(s) and may be privileged and confidential.
>>> If you are not the intended recipient, you received this in error. If so,
>>> any review, dissemination, or copying of this email is prohibited. Please
>>> immediately notify us by email and delete the original message.
>>> ------------------------------
>>>
>>>
>>>
>>>
>>>
>>> *From:*landten-bounces@lists.flabarrpptl.org [
>>> mailto:landten-bounces@lists.flabarrpptl.org
>>> <landten-bounces@lists.flabarrpptl.org>] *On Behalf Of *Cary Sabol
>>> *Sent:* Friday, May 22, 2015 5:27 PM
>>> *To:* RPPTL Landlord Tenant Committee
>>> *Subject:* [RPPTL LandTen] Question regarding tenant's payment into
>>> court registry
>>>
>>>
>>>
>>> Hi All,
>>>
>>>
>>>
>>> Hope everyone is doing well and looking forward to a relaxing holiday
>>> weekend. I wanted to ask the group if anyone might know of any case law
>>> that stands for the proposition that even if the tenant posts the rent
>>> money into the court registry, the landlord still have the right to
>>> terminate the lease and obtain an eviction judgment at a final hearing,
>>> despite the tenant's posting of the rent money.
>>>
>>>
>>>
>>> In other words, it is my understanding that if a landlord delivers a
>>> valid three day notice and the tenant does not pay within that deadline,
>>> then the lease is terminated. So if the landlord then files for eviction
>>> and the tenant ends up posting the rent due in the court registry, the
>>> landlord can still proceed with eviction and obtain an eviction judgment.
>>> I know this is the state of the law, but just don't have a case to support
>>> it. Supreme Court would be nice or 4th DCA, but anything will help. I've
>>> recently had a few judges basically say to me that since the tenant has
>>> paid the rent now, they can stay on the premises.
>>>
>>>
>>>
>>> Any help is much appreciated.
>>>
>>>
>>>
>>> Cary
>>>
>>> *Law Offices of Cary P. Sabol*
>>>
>>> *P.O. Box 15981 | West Palm Beach | Florida | 33416 *
>>>
>>> *Phone: (561) 281-2744 <%28561%29%20281-2744> *
>>> ------------------------------
>>>
>>> *IRS Circular 230 Notice*: Pursuant to recently enacted U.S. Treasury
>>> Department Regulations, we are now required to advise you that, unless
>>> otherwise expressly indicated, any federal tax advice expressed above was
>>> neither written nor intended by the sender or this firm to be used and
>>> cannot be used by any taxpayer for the purpose of avoiding penalties that
>>> may be imposed under U.S. tax law. If any person uses or refers to any such
>>> tax advice in promoting, marketing or recommending a partnership or other
>>> entity, investment plan or arrangement to any taxpayer, then the advice
>>> should be considered to have been written to support the promotion or
>>> marketing by a person other than the sender or this firm of that
>>> transaction or matter, and such taxpayer should seek advice based on the
>>> taxpayer's particular circumstances from an independent tax advisor.
>>>
>>>
>>>
>>> *Confidentiality Notice*: This electronic mail transmission is intended
>>> for the use of the individual or entity to which it is addressed and may
>>> contain confidential information belonging to the sender which is protected
>>> by the attorney-client privilege. If you are not the intended recipient,
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SJ
Sebastian Jaramillo
Thu, May 28, 2015 1:40 PM
The supreme court did the opposite, struck down the lower tribunal decision
in Pro-Art Dental from the 4th DCA and upheld Crocker.
I do think it is a summary procedure issue and the Defendant is allowed to
file a defense at any time until a default is entered. My position is that
he already filed an answer, albeit a defective one when he filed his Motion
to Dismiss. Therefore when I moved for Default I was entitled to a Default
Judgment because his defective answer did not dispute any of the
allegations of the complaint.
Sebastian Jaramillo, Esq.
66 W. Flagler St Suite 500 Miami, FL 33130
Tel: (305) 600-3805 Fax: (786) 347-5562
www.lawjb.com
This email and any files transmitted with it are confidential and intended
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On Wed, May 27, 2015 at 11:01 PM, Alberto Cardet alcardet@gmail.com wrote:
I believe the Supreme Court reversed the Crocker case. See Pro-Art Dental
(986 So.2d 1244 (2007). I think your issue is more a Chapter 51 summary
procedure issue, that sets forth that all defenses must be filed within 5
days and no other pleadings are permitted. Here is a google scholar link
to Pro Art, unfortunately I don't think it supports your position.
https://scholar.google.com/scholar_case?q=51.011&hl=en&as_sdt=4,10&case=12872517701375053237&scilh=0
Cardet Law, P.A.
1330 Coral Way #301
Miami FL 33145
305-403-7783
On Wed, May 27, 2015 at 9:44 AM, Sebastian Jaramillo sebastian@lawjb.com
wrote:
I agree, my case is a little more complicated. The rent has been
deposited in the registry of the court, the Defendant filed both a Motion
to Determine Rent and a Motion to Dismiss. Both motions have been denied.
There is case law that argues that a tenant's Motion to Dismiss is
essentially a defective answer Crocker v. Diland Corporation 593 So. 2d
1096 (Fla.5th DCA). I need however to find something that shows that the
court lacks discrection to allow Defendant to file an answer after they've
already filed a responsive pleading.
Sebastian Jaramillo, Esq.
66 W. Flagler St Suite 500 Miami, FL 33130
Tel: (305) 600-3805 Fax: (786) 347-5562
www.lawjb.com
This email and any files transmitted with it are confidential and
intended solely for the use of the individual or entity to whom they are
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the sender immediately by e-mail if you have received this e-mail by
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intended recipient you are notified that disclosing, copying, distributing
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strictly prohibited.
IMPORTANT TAX NOTICE: This communication is not written to be used, and
cannot be used, by a taxpayer for the purpose of avoiding penalties that
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1986, as amended.
On Wed, May 27, 2015 at 9:28 AM, Gioia DeCarlo gdc@dvllclegal.com
wrote:
I do not agree in the case of evictions, at least residential, which is
overwhelmingly what my eviction cases are. Numerous times I have
successfully filed a motion to strike answer (as untimely) and moved for
judgment, which was entered without hearing.
83.60(2) reads in part "Failure of the tenant to pay the rent into the
registry of the court or to file a motion to determine the amount of rent
to be paid into the registry within 5 days, excluding Saturdays, Sundays,
and legal holidays, after the date of service of process constitutes an absolute
waiver of the tenant’s defenses other than payment, and the landlord
is entitled to an immediate default judgment for removal of the tenant with
a writ of possession to issue without further notice or hearing thereon.”
(emphasis mine)
This language always goes in my motion to stike an untimely answer
(which is usually some sob story about no job, an illness, or the
landlord’s lack of taking care of the unit) and also in my filing for
default.
And when a tenant does answer timely, it can be stricken on the 6th day
if the rent is not deposited unless it alleges proof of payment.
In my opinion, and my experience, unless the Tenant deposits the amount
in the registry or shows proof of payment (I have NEVER had a tenant show
proof of payment), they’re out. Period. Further, if they file a motion to
determine rent and base it on decreasing the rent due to some deficiency in
the premises or any violation of the landlord’s obligations, the tenant has
to show he/she first served the landlord with the statutory 7-day notice to
cure and the landlord failed to do so. I have yet to have a tenant do
that either. Of course, if the 3-day notice had the incorrect rent amount,
and a motion to determine is filed timely, then the 3-day notice needs to
be served again. However, after the fairly recent amendment, the case is
dismissed with leave to amend instead of just dismissed.
It is also my experience, that the judges, and the mediators (when the
judge sends it to mediation— which is the farthest I have hasd tenants get)
are fully aware that tenants often file motions to determine rent and
answers with irrelevant allegations without rent deposited just as a delay
tactic and the judgment enters and they restrain, usually, from rolling
their eyes.
Gioia DeCarlo
This e-mail transmission and any documents, files or previous e-mail
messages attached to it, are confidential and are protected by the
attorney-client privilege and/or work product doctrine. If you are not the
intended recipient, or a person responsible for delivering it to the
intended recipient, you are hereby notified that any review, disclosure,
copying, dissemination, distribution or use of any of the information
contained in, or attached to this e-mail transmission is STRICTLY
PROHIBITED. If you have received this transmission in error, please
immediately notify me by forwarding this e-mail to Info@dvllclegal.com,
or by telephone at (845) 321-0242 and then delete the message and its
attachments from your computer.
From: Deborah Marks deborahmarkslaw@gmail.com
Reply-To: RPPTL Landlord Tenant Committee <landten@lists.flabarrpptl.org
Date: Wednesday, May 27, 2015 at 9:01 AM
To: RPPTL Landlord Tenant Committee landten@lists.flabarrpptl.org
Subject: Re: [RPPTL LandTen] Case law on discretion to answer complaint
after 5 day summons expired
Until a default is entered a defendant can answer without permission-
even weeks late.that is standard civil procedure. Similarly, with cause
even a default can be vacated. You will not find any law to contravene
those basic rules. The penalty for not answering in time is that the relief
sought may be entered without further notice. If you read the summons- it
lays that out. It does not say if you fill to respond within 5 days you
have lost all ability to defend no matter what.
Deborah Marks
Deborah Marks, PA
18495 S. Dixie Hwy
Ste 134
Miami, FL 33157
305-372-9400
Sent from my iPhone
On May 26, 2015, at 1:32 PM, Sebastian Jaramillo sebastian@lawjb.com
wrote:
I am trying to find some case law that essentially states that the court
lacks discretion to grant additional time to answer an eviction complaint
beyond the five day summons.
Any help is appreciated.
Sebastian Jaramillo, Esq.
66 W. Flagler St Suite 500 Miami, FL 33130
Tel: (305) 600-3805 Fax: (786) 347-5562
www.lawjb.com
This email and any files transmitted with it are confidential and
intended solely for the use of the individual or entity to whom they are
addressed. If you have received this email in error please notify the
system manager. This message contains confidential information and is
intended only for the individual named. If you are not the named addressee
you should not disseminate, distribute or copy this e-mail. Please notify
the sender immediately by e-mail if you have received this e-mail by
mistake and delete this e-mail from your system. If you are not the
intended recipient you are notified that disclosing, copying, distributing
or taking any action in reliance on the contents of this information is
strictly prohibited.
IMPORTANT TAX NOTICE: This communication is not written to be used, and
cannot be used, by a taxpayer for the purpose of avoiding penalties that
may be asserted against the taxpayer under the Internal Revenue Code of
1986, as amended.
On Tue, May 26, 2015 at 1:12 PM, Leonard Cabral LensLaw@lenslaw.com
wrote:
COMPARE the language in the chapter 83 and the mobile home statute.
The mobile home statute allows the person who pays to stay. That language
is absent in chapter 83. Paying money into the registry of the court the
opportunity for a defense such as legally withholding rent, retaliatory
eviction, Fair Housing violations, failure of numerous public housing
requirements before eviction, etc. If those defenses are valid the judge
rules for the tenant who can stay in the property.
Leonard P. Cabral
Leonardcabral@lenslaw.com
From: landten-bounces@lists.flabarrpptl.org [mailto:
landten-bounces@lists.flabarrpptl.org] *On Behalf Of *Cary Sabol
Sent: Tuesday, May 26, 2015 8:34 AM
To: Manuel Farach; RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Question regarding tenant's payment
into court registry
Thanks Manny. I'm looking for a residential context. There is
actually a case that says landlord proves a prima facie case for
eviction when it proves (1) rental agreement; (2) tenants failure to timely
pay rent; and (3) service of a 3 day notice. So I interpret that to mean
once the 3 day period expires, tenant can be evicted even if it pays rent
into the registry after filing of eviction case. However, that is a
commercial case, not a residential.
Anyhow, thanks for your input, I'll see what the rest of the group has
to say.
Cary
Law Offices of Cary P. Sabol
*P.O. Box 15981 | West Palm Beach | Florida | 33416 *
Phone: (561) 281-2744 <%28561%29%20281-2744>
------------------------------
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taxpayer's particular circumstances from an independent tax advisor.
Confidentiality Notice: This electronic mail transmission is
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From: Manuel Farach MFarach@richmangreer.com
To: 'Cary Sabol' sabollawoffice@yahoo.com
Sent: Saturday, May 23, 2015 6:40 AM
Subject: RE: [RPPTL LandTen] Question regarding tenant's payment
into court registry
Cary,
I’ve viewed it as the Three Day Notice being a statutory condition
precedent to filing suit (see Judge Gross’s opinion in Bell v. Kornblatt
regarding the waivability of the Three Day Notice). I don’t think the
notice has the ability to terminate the lease, and I think that can only be
done by a judgment under 83.20. I’d like to see if anyone else has the same
opinion.
Manny
Manuel Farach / Of Counsel - Board Certified in Real Estate Law and
Business Litigation by The Florida Bar
Richman Greer P.A.
One Clearlake Centre
Suite 1504
250 Australian Avenue South
West Palm Beach, Florida 33401
Office: 561.803.3500
Fax: 561.820.1608
Direct: 561.803.3501
Email: MFarach@richmangreer.com
V-card http://richmangreer.com/uploads/vcards/VcardFarach.vcf
www.RichmanGreer.com http://www.richmangreer.com/
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*From:*landten-bounces@lists.flabarrpptl.org [
mailto:landten-bounces@lists.flabarrpptl.org
landten-bounces@lists.flabarrpptl.org] *On Behalf Of *Cary Sabol
Sent: Friday, May 22, 2015 5:27 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Question regarding tenant's payment into
court registry
Hi All,
Hope everyone is doing well and looking forward to a relaxing holiday
weekend. I wanted to ask the group if anyone might know of any case law
that stands for the proposition that even if the tenant posts the rent
money into the court registry, the landlord still have the right to
terminate the lease and obtain an eviction judgment at a final hearing,
despite the tenant's posting of the rent money.
In other words, it is my understanding that if a landlord delivers a
valid three day notice and the tenant does not pay within that deadline,
then the lease is terminated. So if the landlord then files for eviction
and the tenant ends up posting the rent due in the court registry, the
landlord can still proceed with eviction and obtain an eviction judgment.
I know this is the state of the law, but just don't have a case to support
it. Supreme Court would be nice or 4th DCA, but anything will help. I've
recently had a few judges basically say to me that since the tenant has
paid the rent now, they can stay on the premises.
Any help is much appreciated.
Cary
Law Offices of Cary P. Sabol
*P.O. Box 15981 | West Palm Beach | Florida | 33416 *
*Phone: (561) 281-2744 <%28561%29%20281-2744> *
IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury
Department Regulations, we are now required to advise you that, unless
otherwise expressly indicated, any federal tax advice expressed above was
neither written nor intended by the sender or this firm to be used and
cannot be used by any taxpayer for the purpose of avoiding penalties that
may be imposed under U.S. tax law. If any person uses or refers to any such
tax advice in promoting, marketing or recommending a partnership or other
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should be considered to have been written to support the promotion or
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Confidentiality Notice: This electronic mail transmission is
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landten mailing list
landten@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/landten
The supreme court did the opposite, struck down the lower tribunal decision
in Pro-Art Dental from the 4th DCA and upheld Crocker.
I do think it is a summary procedure issue and the Defendant is allowed to
file a defense at any time until a default is entered. My position is that
he already filed an answer, albeit a defective one when he filed his Motion
to Dismiss. Therefore when I moved for Default I was entitled to a Default
Judgment because his defective answer did not dispute any of the
allegations of the complaint.
*Sebastian Jaramillo, Esq.*
66 W. Flagler St Suite 500 Miami, FL 33130
Tel: (305) 600-3805 Fax: (786) 347-5562
www.lawjb.com
This email and any files transmitted with it are confidential and intended
solely for the use of the individual or entity to whom they are addressed.
If you have received this email in error please notify the system manager.
This message contains confidential information and is intended only for the
individual named. If you are not the named addressee you should not
disseminate, distribute or copy this e-mail. Please notify the sender
immediately by e-mail if you have received this e-mail by mistake and
delete this e-mail from your system. If you are not the intended recipient
you are notified that disclosing, copying, distributing or taking any
action in reliance on the contents of this information is strictly
prohibited.
IMPORTANT TAX NOTICE: This communication is not written to be used, and
cannot be used, by a taxpayer for the purpose of avoiding penalties that
may be asserted against the taxpayer under the Internal Revenue Code of
1986, as amended.
On Wed, May 27, 2015 at 11:01 PM, Alberto Cardet <alcardet@gmail.com> wrote:
> I believe the Supreme Court reversed the Crocker case. See Pro-Art Dental
> (986 So.2d 1244 (2007). I think your issue is more a Chapter 51 summary
> procedure issue, that sets forth that all defenses must be filed within 5
> days and no other pleadings are permitted. Here is a google scholar link
> to Pro Art, unfortunately I don't think it supports your position.
>
>
> https://scholar.google.com/scholar_case?q=51.011&hl=en&as_sdt=4,10&case=12872517701375053237&scilh=0
>
>
>
> Cardet Law, P.A.
> 1330 Coral Way #301
> Miami FL 33145
> 305-403-7783
>
> On Wed, May 27, 2015 at 9:44 AM, Sebastian Jaramillo <sebastian@lawjb.com>
> wrote:
>
>> I agree, my case is a little more complicated. The rent has been
>> deposited in the registry of the court, the Defendant filed both a Motion
>> to Determine Rent and a Motion to Dismiss. Both motions have been denied.
>> There is case law that argues that a tenant's Motion to Dismiss is
>> essentially a defective answer Crocker v. Diland Corporation 593 So. 2d
>> 1096 (Fla.5th DCA). I need however to find something that shows that the
>> court lacks discrection to allow Defendant to file an answer after they've
>> already filed a responsive pleading.
>>
>>
>> *Sebastian Jaramillo, Esq.*
>>
>>
>> 66 W. Flagler St Suite 500 Miami, FL 33130
>> Tel: (305) 600-3805 Fax: (786) 347-5562
>> www.lawjb.com
>>
>> This email and any files transmitted with it are confidential and
>> intended solely for the use of the individual or entity to whom they are
>> addressed. If you have received this email in error please notify the
>> system manager. This message contains confidential information and is
>> intended only for the individual named. If you are not the named addressee
>> you should not disseminate, distribute or copy this e-mail. Please notify
>> the sender immediately by e-mail if you have received this e-mail by
>> mistake and delete this e-mail from your system. If you are not the
>> intended recipient you are notified that disclosing, copying, distributing
>> or taking any action in reliance on the contents of this information is
>> strictly prohibited.
>> IMPORTANT TAX NOTICE: This communication is not written to be used, and
>> cannot be used, by a taxpayer for the purpose of avoiding penalties that
>> may be asserted against the taxpayer under the Internal Revenue Code of
>> 1986, as amended.
>>
>> On Wed, May 27, 2015 at 9:28 AM, Gioia DeCarlo <gdc@dvllclegal.com>
>> wrote:
>>
>>> I do not agree in the case of evictions, at least residential, which is
>>> overwhelmingly what my eviction cases are. Numerous times I have
>>> successfully filed a motion to strike answer (as untimely) and moved for
>>> judgment, which was entered without hearing.
>>>
>>> 83.60(2) reads in part "Failure of the tenant to pay the rent into the
>>> registry of the court or to file a motion to determine the amount of rent
>>> to be paid into the registry within 5 days, excluding Saturdays, Sundays,
>>> and legal holidays, after the date of service of process constitutes an *absolute
>>> waiver* of the tenant’s defenses other than payment, and the landlord
>>> is entitled to an immediate default judgment for removal of the tenant with
>>> a writ of possession to issue without further notice or hearing thereon.”
>>> (emphasis mine)
>>>
>>> This language always goes in my motion to stike an untimely answer
>>> (which is usually some sob story about no job, an illness, or the
>>> landlord’s lack of taking care of the unit) and also in my filing for
>>> default.
>>>
>>> And when a tenant does answer timely, it can be stricken on the 6th day
>>> if the rent is not deposited unless it alleges proof of payment.
>>>
>>> In my opinion, and my experience, unless the Tenant deposits the amount
>>> in the registry or shows proof of payment (I have NEVER had a tenant show
>>> proof of payment), they’re out. Period. Further, if they file a motion to
>>> determine rent and base it on decreasing the rent due to some deficiency in
>>> the premises or any violation of the landlord’s obligations, the tenant has
>>> to show he/she first served the landlord with the statutory 7-day notice to
>>> cure and the landlord failed to do so. I have yet to have a tenant do
>>> that either. Of course, if the 3-day notice had the incorrect rent amount,
>>> and a motion to determine is filed timely, then the 3-day notice needs to
>>> be served again. However, after the fairly recent amendment, the case is
>>> dismissed with leave to amend instead of just dismissed.
>>>
>>> It is also my experience, that the judges, and the mediators (when the
>>> judge sends it to mediation— which is the farthest I have hasd tenants get)
>>> are fully aware that tenants often file motions to determine rent and
>>> answers with irrelevant allegations without rent deposited just as a delay
>>> tactic and the judgment enters and they restrain, usually, from rolling
>>> their eyes.
>>>
>>> Gioia DeCarlo
>>>
>>>
>>>
>>>
>>> This e-mail transmission and any documents, files or previous e-mail
>>> messages attached to it, are confidential and are protected by the
>>> attorney-client privilege and/or work product doctrine. If you are not the
>>> intended recipient, or a person responsible for delivering it to the
>>> intended recipient, you are hereby notified that any review, disclosure,
>>> copying, dissemination, distribution or use of any of the information
>>> contained in, or attached to this e-mail transmission is STRICTLY
>>> PROHIBITED. If you have received this transmission in error, please
>>> immediately notify me by forwarding this e-mail to Info@dvllclegal.com,
>>> or by telephone at (845) 321-0242 and then delete the message and its
>>> attachments from your computer.
>>>
>>>
>>> From: Deborah Marks <deborahmarkslaw@gmail.com>
>>> Reply-To: RPPTL Landlord Tenant Committee <landten@lists.flabarrpptl.org
>>> >
>>> Date: Wednesday, May 27, 2015 at 9:01 AM
>>> To: RPPTL Landlord Tenant Committee <landten@lists.flabarrpptl.org>
>>> Subject: Re: [RPPTL LandTen] Case law on discretion to answer complaint
>>> after 5 day summons expired
>>>
>>> Until a default is entered a defendant can answer without permission-
>>> even weeks late.that is standard civil procedure. Similarly, with cause
>>> even a default can be vacated. You will not find any law to contravene
>>> those basic rules. The penalty for not answering in time is that the relief
>>> sought may be entered without further notice. If you read the summons- it
>>> lays that out. It does not say if you fill to respond within 5 days you
>>> have lost all ability to defend no matter what.
>>>
>>> Deborah Marks
>>> Deborah Marks, PA
>>> 18495 S. Dixie Hwy
>>> Ste 134
>>> Miami, FL 33157
>>> 305-372-9400
>>>
>>> Sent from my iPhone
>>>
>>> On May 26, 2015, at 1:32 PM, Sebastian Jaramillo <sebastian@lawjb.com>
>>> wrote:
>>>
>>> I am trying to find some case law that essentially states that the court
>>> lacks discretion to grant additional time to answer an eviction complaint
>>> beyond the five day summons.
>>>
>>> Any help is appreciated.
>>>
>>> *Sebastian Jaramillo, Esq.*
>>>
>>>
>>> 66 W. Flagler St Suite 500 Miami, FL 33130
>>> Tel: (305) 600-3805 Fax: (786) 347-5562
>>> www.lawjb.com
>>>
>>> This email and any files transmitted with it are confidential and
>>> intended solely for the use of the individual or entity to whom they are
>>> addressed. If you have received this email in error please notify the
>>> system manager. This message contains confidential information and is
>>> intended only for the individual named. If you are not the named addressee
>>> you should not disseminate, distribute or copy this e-mail. Please notify
>>> the sender immediately by e-mail if you have received this e-mail by
>>> mistake and delete this e-mail from your system. If you are not the
>>> intended recipient you are notified that disclosing, copying, distributing
>>> or taking any action in reliance on the contents of this information is
>>> strictly prohibited.
>>> IMPORTANT TAX NOTICE: This communication is not written to be used, and
>>> cannot be used, by a taxpayer for the purpose of avoiding penalties that
>>> may be asserted against the taxpayer under the Internal Revenue Code of
>>> 1986, as amended.
>>>
>>> On Tue, May 26, 2015 at 1:12 PM, Leonard Cabral <LensLaw@lenslaw.com>
>>> wrote:
>>>
>>>> COMPARE the language in the chapter 83 and the mobile home statute.
>>>> The mobile home statute allows the person who pays to stay. That language
>>>> is absent in chapter 83. Paying money into the registry of the court the
>>>> opportunity for a defense such as legally withholding rent, retaliatory
>>>> eviction, Fair Housing violations, failure of numerous public housing
>>>> requirements before eviction, etc. If those defenses are valid the judge
>>>> rules for the tenant who can stay in the property.
>>>>
>>>>
>>>>
>>>> Leonard P. Cabral
>>>>
>>>> Leonardcabral@lenslaw.com
>>>>
>>>>
>>>>
>>>>
>>>>
>>>>
>>>>
>>>> *From:* landten-bounces@lists.flabarrpptl.org [mailto:
>>>> landten-bounces@lists.flabarrpptl.org] *On Behalf Of *Cary Sabol
>>>> *Sent:* Tuesday, May 26, 2015 8:34 AM
>>>> *To:* Manuel Farach; RPPTL Landlord Tenant Committee
>>>> *Subject:* Re: [RPPTL LandTen] Question regarding tenant's payment
>>>> into court registry
>>>>
>>>>
>>>>
>>>> Thanks Manny. I'm looking for a residential context. There is
>>>> actually a case that says landlord proves a prima facie case for
>>>> eviction when it proves (1) rental agreement; (2) tenants failure to timely
>>>> pay rent; and (3) service of a 3 day notice. So I interpret that to mean
>>>> once the 3 day period expires, tenant can be evicted even if it pays rent
>>>> into the registry after filing of eviction case. However, that is a
>>>> commercial case, not a residential.
>>>>
>>>>
>>>>
>>>> Anyhow, thanks for your input, I'll see what the rest of the group has
>>>> to say.
>>>>
>>>>
>>>>
>>>> Cary
>>>>
>>>> *Law Offices of Cary P. Sabol*
>>>>
>>>> *P.O. Box 15981 | West Palm Beach | Florida | 33416 *
>>>>
>>>> *Phone: (561) 281-2744 <%28561%29%20281-2744>*
>>>> *------------------------------*
>>>>
>>>> *IRS Circular 230 Notice*: Pursuant to recently enacted U.S. Treasury
>>>> Department Regulations, we are now required to advise you that, unless
>>>> otherwise expressly indicated, any federal tax advice expressed above was
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>>>> cannot be used by any taxpayer for the purpose of avoiding penalties that
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>>>> should be considered to have been written to support the promotion or
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>>>> ------------------------------
>>>>
>>>> *From:* Manuel Farach <MFarach@richmangreer.com>
>>>> *To:* 'Cary Sabol' <sabollawoffice@yahoo.com>
>>>> *Sent:* Saturday, May 23, 2015 6:40 AM
>>>> *Subject:* RE: [RPPTL LandTen] Question regarding tenant's payment
>>>> into court registry
>>>>
>>>>
>>>>
>>>> Cary,
>>>>
>>>> I’ve viewed it as the Three Day Notice being a statutory condition
>>>> precedent to filing suit (see Judge Gross’s opinion in Bell v. Kornblatt
>>>> regarding the waivability of the Three Day Notice). I don’t think the
>>>> notice has the ability to terminate the lease, and I think that can only be
>>>> done by a judgment under 83.20. I’d like to see if anyone else has the same
>>>> opinion.
>>>>
>>>> Manny
>>>>
>>>>
>>>> ------------------------------
>>>>
>>>> Manuel Farach / Of Counsel - Board Certified in Real Estate Law and
>>>> Business Litigation by The Florida Bar
>>>>
>>>> Richman Greer P.A.
>>>> One Clearlake Centre
>>>> Suite 1504
>>>> 250 Australian Avenue South
>>>> West Palm Beach, Florida 33401
>>>> Office: 561.803.3500
>>>> Fax: 561.820.1608
>>>> Direct: 561.803.3501
>>>> Email: MFarach@richmangreer.com
>>>> V-card <http://richmangreer.com/uploads/vcards/VcardFarach.vcf>
>>>>
>>>> www.RichmanGreer.com <http://www.richmangreer.com/>
>>>>
>>>> U.S. Treasury Regulation Circular 230 requires us to advise you that
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>>>>
>>>> Incoming emails are filtered which may delay receipt. This email is
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>>>> ------------------------------
>>>>
>>>>
>>>>
>>>>
>>>>
>>>> *From:*landten-bounces@lists.flabarrpptl.org [
>>>> mailto:landten-bounces@lists.flabarrpptl.org
>>>> <landten-bounces@lists.flabarrpptl.org>] *On Behalf Of *Cary Sabol
>>>> *Sent:* Friday, May 22, 2015 5:27 PM
>>>> *To:* RPPTL Landlord Tenant Committee
>>>> *Subject:* [RPPTL LandTen] Question regarding tenant's payment into
>>>> court registry
>>>>
>>>>
>>>>
>>>> Hi All,
>>>>
>>>>
>>>>
>>>> Hope everyone is doing well and looking forward to a relaxing holiday
>>>> weekend. I wanted to ask the group if anyone might know of any case law
>>>> that stands for the proposition that even if the tenant posts the rent
>>>> money into the court registry, the landlord still have the right to
>>>> terminate the lease and obtain an eviction judgment at a final hearing,
>>>> despite the tenant's posting of the rent money.
>>>>
>>>>
>>>>
>>>> In other words, it is my understanding that if a landlord delivers a
>>>> valid three day notice and the tenant does not pay within that deadline,
>>>> then the lease is terminated. So if the landlord then files for eviction
>>>> and the tenant ends up posting the rent due in the court registry, the
>>>> landlord can still proceed with eviction and obtain an eviction judgment.
>>>> I know this is the state of the law, but just don't have a case to support
>>>> it. Supreme Court would be nice or 4th DCA, but anything will help. I've
>>>> recently had a few judges basically say to me that since the tenant has
>>>> paid the rent now, they can stay on the premises.
>>>>
>>>>
>>>>
>>>> Any help is much appreciated.
>>>>
>>>>
>>>>
>>>> Cary
>>>>
>>>> *Law Offices of Cary P. Sabol*
>>>>
>>>> *P.O. Box 15981 | West Palm Beach | Florida | 33416 *
>>>>
>>>> *Phone: (561) 281-2744 <%28561%29%20281-2744> *
>>>> ------------------------------
>>>>
>>>> *IRS Circular 230 Notice*: Pursuant to recently enacted U.S. Treasury
>>>> Department Regulations, we are now required to advise you that, unless
>>>> otherwise expressly indicated, any federal tax advice expressed above was
>>>> neither written nor intended by the sender or this firm to be used and
>>>> cannot be used by any taxpayer for the purpose of avoiding penalties that
>>>> may be imposed under U.S. tax law. If any person uses or refers to any such
>>>> tax advice in promoting, marketing or recommending a partnership or other
>>>> entity, investment plan or arrangement to any taxpayer, then the advice
>>>> should be considered to have been written to support the promotion or
>>>> marketing by a person other than the sender or this firm of that
>>>> transaction or matter, and such taxpayer should seek advice based on the
>>>> taxpayer's particular circumstances from an independent tax advisor.
>>>>
>>>>
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>>>>
>>>>
>>>>
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