[RPPTL LandTen] Case law on discretion to answer complaint after 5 day summons expired

Wed May 27 06:19:23 PDT 2015

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
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On Wed, May 27, 2015 at 9:01 AM, Deborah Marks <deborahmarkslaw at 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 at 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
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> On Tue, May 26, 2015 at 1:12 PM, Leonard Cabral <LensLaw at 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 at lenslaw.com
>>
>>
>>
>>
>>
>>
>>
>> *From:* landten-bounces at lists.flabarrpptl.org [mailto:
>> landten-bounces at 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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>>    ------------------------------
>>
>> *From:* Manuel Farach <MFarach at richmangreer.com>
>> *To:* 'Cary Sabol' <sabollawoffice at 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
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>> *From:* landten-bounces at lists.flabarrpptl.org [
>> mailto:landten-bounces at lists.flabarrpptl.org
>> <landten-bounces at 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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