[RPPTL LandTen] Case law on discretion to answer complaint after 5 day summons expired
deborahmarkslaw at gmail.com
deborahmarkslaw at gmail.com
Wed May 27 07:27:19 PDT 2015
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 at 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 at dvllclegal.com, or by telephone at (845) 321-0242 and then delete the message and its attachments from your computer.
>
>
> 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
>>
>> 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 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
>>>
>>> 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 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
>>> Office: 561.803.3500
>>> Fax: 561.820.1608
>>> Direct: 561.803.3501
>>> Email: MFarach at 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 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
>>>
>>> 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 at lists.flabarrpptl.org
>>> http://mailman.fsr.com/mailman/listinfo/landten
>>
>> _______________________________________________
>> landten mailing list
>> landten at lists.flabarrpptl.org
>> http://mailman.fsr.com/mailman/listinfo/landten
> _______________________________________________ landten mailing list landten at lists.flabarrpptl.org http://mailman.fsr.com/mailman/listinfo/landten
> <image001.gif>
> <8CB06059-7794-44D1-BE98-12633C0070FE[96].png>
> _______________________________________________
> landten mailing list
> landten at lists.flabarrpptl.org
> http://mailman.fsr.com/mailman/listinfo/landten
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/landten/attachments/20150527/96790c1a/attachment-0001.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: 8CB06059-7794-44D1-BE98-12633C0070FE[96].png
Type: image/png
Size: 20321 bytes
Desc: not available
URL: <http://mailman.fsr.com/pipermail/landten/attachments/20150527/96790c1a/8CB06059-7794-44D1-BE98-12633C0070FE96-0001.png>
More information about the landten
mailing list