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

Wed May 27 06:38:07 PDT 2015

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.
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West Palm Beach, FL 33405
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From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at 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

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From: Deborah Marks <deborahmarkslaw at gmail.com<mailto:deborahmarkslaw at gmail.com>>
Reply-To: RPPTL Landlord Tenant Committee <landten at lists.flabarrpptl.org<mailto:landten at lists.flabarrpptl.org>>
Date: Wednesday, May 27, 2015 at 9:01 AM
To: RPPTL Landlord Tenant Committee <landten at lists.flabarrpptl.org<mailto:landten at 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 at lawjb.com<mailto: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.

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On Tue, May 26, 2015 at 1:12 PM, Leonard Cabral <LensLaw at lenslaw.com<mailto: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<mailto:Leonardcabral at lenslaw.com>

From: landten-bounces at lists.flabarrpptl.org<mailto:landten-bounces at lists.flabarrpptl.org> [mailto: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
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From: Manuel Farach <MFarach at richmangreer.com<mailto:MFarach at richmangreer.com>>
To: 'Cary Sabol' <sabollawoffice at yahoo.com<mailto: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

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From:landten-bounces at lists.flabarrpptl.org<mailto:landten-bounces at lists.flabarrpptl.org> [mailto: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<tel:%28561%29%20281-2744>
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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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