[RPPTL LandTen] Damages for alleged violation of 83.49(1)?

[Joseph S. Hughes, Esq.]

Mr. Heist, 

That is certainly one way of looking at it. But I respectfully disagree.
There is a reason that the majority, if not all, of attorneys on this
listserv primarily (if not almost exclusively) represent landlords.
Tenants do not provide recyclable business, more typically cannot afford
attorneys, and taking any case on a contingency basis is an extremely
risky proposition no matter how solid the case is (especially when there
are no insurance companies involved!). Also, by and large, higher
judgments only result when the landlord decides to fight the case to
trial. I reject the vast majority of tenant cases that come my way and
take them on a contingency, and you better believe that they are not
frivolous when I undertake that risk.  

Both sides deserve the same level of competent representation, and
multipliers incentivize attorneys to take cases that would otherwise
result in the tenant being left unrepresented. And incidentally,
multipliers are still very difficult to obtain, but in my view are
absolutely warranted. It is in fact far more likely that the tenant's
attorney will have his/her fees significantly reduced, even where
reasonable time is expended. 

With the extent of discourse the legal community is currently having
regarding providing greater access to civil justice for our indigent and
lower class citizens, we need to realize that throwing more money and
pro bono work at the problem, while helpful, does not solve the issue of
underrepresentation, and is merely a bandaid. Private attorneys _must_
be incentivized to help tenants. Ask yourself: do you take contested
landlord cases on a contingency? Why not? How would you manage your
overhead while your cases were pending? A bird in the hand is two in the
bush, especially when there are no guarantees that you will even make a
recovery at all.  

Although there are many good landlords out there, you better believe
that there are plenty of bad ones as well who maliciously exploit their
positions of power. Removing attorney's fees from the statute would be
in complete disregard of Floridians' fundamental right to access to the
justice system, and will only serve to widen the deplorable civil
justice gap. 

---

Joseph S. Hughes, Esq.
The Law Office of Joseph Hughes P.A.
515 E. Las Olas Blvd. Ste 120
Fort Lauderdale, FL 33301
Cell: (413) 687-2093
Office: (954)256-5125
Fax: (954) 256-5126
http://www.joehugheslaw.com

The information contained in this email may be attorney privileged and
confidential information intended only for the use of the individual or
entity named above. If you are not the intended recipient of this
message or if this message has been addressed to you in error, please
immediately alert the sender by telephone or reply e-mail and delete
this message and any attachments. 

On 2016-07-25 17:38, Harry Heist wrote:

> When I see attorneys filing cases solely for the purposes of getting an attorney's fee award when their client was not damaged in any way shape or form, it makes me ashamed to be an attorney. 
> 
> Someday I would like to see the attorney's fee provision revisited in landlord/tenant law. A number of attorneys are making their living off of awards exceeding $10,000 against small, sometimes elderly  landlords who file pro se eviction cases with minor defects using Supreme Court approved forms. Often multipliers are awarded.  If the Bar is  going to encourage pro se filings "to make access to the courts affordable and easier to the pro se filer" there should be some duty on the courts to give some guidance to the pro se filer. I was speaking with a judge in a smaller county and told him about the multipliers that were being awarded in some counties. He was astounded and thought that was absurd.  I agree. 
> 
> Harry 
> 
> LAW OFFICES OF 
> HEIST, WEISSE & WOLK P.A.
> PH: 1 800 253 8428
> FAX: 1 800 367 9038
> "Serving the Property Management Professional"
> Website:  WWW.EVICT.COM [1] 
> Email: HARRY at EVICT.COM 
> 
> [2] 
> 
> VISIT US ON FACEBOOK 
> 
> THIS E-MAIL MESSAGE IS CONFIDENTIAL, ATTORNEY-CLIENT PRIVILEGED, AND INTENDED FOR THE PERSONS NAMED ABOVE ONLY.  ALL OTHER USE, COPYING, OR DISTRIBUTION IS STRICTLY PROHIBITED. 
> 
> FROM: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] ON BEHALF OF Todd Allen
> SENT: Monday, July 25, 2016 5:22 PM
> TO: RPPTL Landlord Tenant Committee
> SUBJECT: Re: [RPPTL LandTen] Damages for alleged violation of 83.49(1)? 
> 
> I generally do not file 57.105 motions, but I can't imagine there being a better case.
> 
> Todd B. Allen, Esq.  |  Attorney 
> 
> [Office] 
> 
> 239.593.7900 
> 
> [Fax] 
> 
> 239.593.7909 
> 
> www.lindsayallenlaw.com [3] 
> 
> 13180 Livingston Road, Ste. 206 
> 
> Naples, FL 34109 
> 
> [3] 
> 
> On Jul 25, 2016, at 5:16 PM, Leonard Cabral <LensLaw at Lenslaw.com> wrote: 
> 
> I agree with Joseph but I wonder if you think the outcome would be different if the landlord could show that at all times during the tenancy the funds in the account where the money was comingled never went below the amount of the security deposit. (assuming that it stayed there until it was proper to remove).  
> 
> Also I was surprised that the definition of theft only requires someone to TEMPORARILY deprive the use of their property.   
> 
> _Florida Statute_ §812.0145(1)(c)1 (1), a person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently: (a) deprive the other person of a right to the property or a benefit from the property and (b) appropriate the property to his or her own use or to the use of any person not entitled to the use of the property. 
> 
> FROM: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] ON BEHALF OF Joseph S. Hughes, Esq.
> SENT: Monday, July 25, 2016 4:28 PM
> TO: RPPTL Landlord Tenant Committee <landten at lists.flabarrpptl.org>
> SUBJECT: Re: [RPPTL LandTen] Damages for alleged violation of 83.49(1)? 
> 
> Yes. 
> 
> First, when combined with evidence of bad faith, commingling may serve as a basis for civil theft, breach of fiduciary duty, and conversion, permitting treble damages under civil theft in both small claims and county, and punitive damages under breach of fiduciary duty and conversion in county court. In county court, the fees will typically be higher than small claims. 
> 
> Second, although difficult to prevail on, these additional claims may also entitle the tenant to a jury trial as independent tort actions where the lease nonetheless contains a jury trial waiver. This provides the tenant with additional leverage. If the landlord is particularly unlikeable or the emotional elements favor the tenant, this could be devastating to the landlord if the right jury is selected and could result in much higher damages (not to mention attorney's fees and costs).    
> 
> Third, I only know of one 2nd DCA case that says that commingling does not result in a forfeiture of the deposit. This could easily be disagreed with by other DCAs, and since a security deposit is considered "property", I would still make the argument that if the landlord cannot reasonably abide by the notice requirements when s/he has effectively converted the funds, thereby making the deposit unidentifiable for notice purposes, the notice would be defective. After all, how can a landlord make a claim on a deposit that technically no longer exists due to the commingling? Notice that a "deposit" is distinguished from "damages" for I believe this very reason, among others (including to avoid offers of judgment.) 
> 
> Just my two cents.
> 
> --- 
> 
> Joseph S. Hughes, Esq.
> The Law Office of Joseph Hughes P.A.
> 515 E. Las Olas Blvd. Ste 120
> Fort Lauderdale, FL 33301
> Cell: (413) 687-2093
> Office: (954)256-5125
> Fax: (954) 256-5126
> http://www.joehugheslaw.com [4]
> 
> The information contained in this email may be attorney privileged and confidential information intended only for the use of the individual or entity named above. If you are not the intended recipient of this message or if this message has been addressed to you in error, please immediately alert the sender by telephone or reply e-mail and delete this message and any attachments. 
> 
> On 2016-07-25 15:31, Alberto Cardet wrote: 
> 
> Section 83.49(1) requires a landlord to hold a tenant's security deposit in separate account and not commingle said funds with any other funds. 
> 
> Tenant vacates and landlord returns 100% of security deposit.  Tenant now sues alleging that "upon information and belief" the landlord violated 83.49(1) because landlord commingled funds.  Alleges that as a result tenant has suffered damages and in addition demands attorney fees and costs. 
> 
> I have heard at local seminars that 83.49(1) does not contain any teeth, in the context that failure to abide by 83.49(1) by itself does not provide any remedy to the tenant or waive the landlord's right to make a claim on the deposit, which the landlord did not make in my case. 
> 
> Even if a violation of 83.49(1) exists, is anyone aware of any damages that may be claimed by a tenant?  
> 
> Thank you 
> 
> Albert 
> 
> Cardet Law, P.A. 
> 
> 1330 Coral Way #301 
> 
> Miami FL 33145 
> 
> 305-403-7783 
> 
> _______________________________________________
> landten mailing list
> landten at lists.flabarrpptl.org
> http://mailman.fsr.com/mailman/listinfo/landten [5] 
> 
> _______________________________________________
> landten mailing list
> landten at lists.flabarrpptl.org
> http://mailman.fsr.com/mailman/listinfo/landten [5]

CONFIDENTIALITY NOTICE: This message contains information from Lindsay &
Allen, PLLC that may be privileged and/or confidential. If you are not
the addressee, please be advised that any disclosure, copying,
distribution or other use of the contents of this message is prohibited.
If you are the intended recipient and a client of the law firm, please
preserve your attorney-client privilege by NOT showing this message to
others and keeping its contents confidential. 

UNIFORM ELECTRONIC TRANSACTIONS ACT NOTICE: If this communication
concerns negotiation of a contract or agreement, unless otherwise
expressly stated in writing, the Uniform Electronic Transactions Act
does not apply to this communication. Contract formation in this matter
occurs subject to our clients' final review and manually affixing of
original signatures on original documents.  

EVIDENTIARY PRIVILEGE: To the extent that this message is a
communication to settle a claim, all evidentiary limitations on its use
are hereby expressly made applicable to its contents.  

FEDERAL FAIR DEBT COLLECTIONS PRACTICES ACT NOTICE: To the extent that
this message is an effort to collect a consumer debt, you are hereby
notified that this is a communication from a debt collector and that all
information provided in response to this message may be used for debt
collection purposes.  
_______________________________________________
landten mailing list
landten at lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/landten 

Links:
------
[1] http://www.evict.com/
[2] https://www.facebook.com/pages/Heist-Weisse-Wolk-PA/343965575625870
[3] http://www.lindsayallenlaw.com/
[4] http://www.joehugheslaw.com/
[5] http://mailman.fsr.com/mailman/listinfo/landten
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/landten/attachments/20160725/acd1a083/attachment-0001.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image003.png
Type: image/png
Size: 1153 bytes
Desc: not available
URL: <http://mailman.fsr.com/pipermail/landten/attachments/20160725/acd1a083/image003-0001.png>