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

Wed May 27 20:01:35 PDT 2015

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 at 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
>
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> On Wed, 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
>>
>>
>>
>>
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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
>>
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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.
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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> *
>>> ------------------------------
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>>> *IRS Circular 230 Notice*: Pursuant to recently enacted U.S. Treasury
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