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

Wed May 27 06:50:46 PDT 2015

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

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From:  James Zink <james.zink at frls.org>
Reply-To:  RPPTL Landlord Tenant Committee <landten at lists.flabarrpptl.org>
Date:  Wednesday, May 27, 2015 at 9:38 AM
To:  RPPTL Landlord Tenant Committee <landten at 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

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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 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

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From: Deborah Marks <deborahmarkslaw at gmail.com>
Reply-To: RPPTL Landlord Tenant Committee <landten at lists.flabarrpptl.org>
Date: Wednesday, May 27, 2015 at 9:01 AM
To: RPPTL Landlord Tenant Committee <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>
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
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> be used, by a taxpayer for the purpose of avoiding penalties that may be
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> amended. 
>  
> 
> 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 <tel:%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,
> 
> 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>
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> V-card <http://richmangreer.com/uploads/vcards/VcardFarach.vcf>
> 
> www.RichmanGreer.com <http://www.richmangreer.com/>
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> From: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>
> 
> 
> IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury Department
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