In Diaz v. Torres,  [County Court, 9th Judicial Circuit in and for Orange County, Civil Division. Case No. 2012-CC-010491-O, Division 72. September 24, 2012. Wilfredo Martinez, Judge,  19 Fla. L. Weekly Supp. 1075a],  the landlord used a 7 day notice to demand payment of rent instead of a 3 day notice.

Landlord’s notice stated, in part, “You are hereby notified that you are not complying with your lease in that [sic] NOT COMPLYING WITH OWNER’S REQUEST TO MOVE” (emphasis in original).

The notice also states “payment of $1,500.00 is due immediately, noncompliance within three days of receipt of this notice of your lease shall be terminated . . .”

The court ruled that notices that do not contain language in substantial compliance with § 83.56(3), Fla. Stat. are fatally defective. Gonsalves v. Williams, 18 Fla. L. Weekly Supp. 1180a (Fla. Orange Cty. Ct. 2011); Bakke v. Davis, 18 Fla. L. Weekly Supp. 1179a (Fla. Orange Cty. Ct. 2011); Prashad v. Graham, 18 Fla. L. Weekly Supp. 205c (Fla. Orange Cty. Ct. 2011); LaGree v. McNair, 18 Fla. L. Weekly Supp. 697c (Fla. Orange Cty. Ct. 2011).

The court  also ruled that “Notices that contain confusing and conflicting demands demands are fatally defective.” Citing  Gosuwn v. Hernandez, 18 Fla. L. Weekly Supp. 603b (Fla. Orange Cty. Ct. 2011).

The Court found that  a 7-day notice of non-compliance does not contain language in substantial compliance with § ,, Fla. Stat. and, therefore, may not be used to evict a tenant for non-payment of rent.

Note:  the case links to Florida Law Weekly Supplement above require a subscription to the service to access the cases.

The courts have consistently held that successive notices cancel out all prior notices.

In Hyde v.  Brennan   County Court, 3rd Judicial Circuit in and for Columbia County. Case No. 06-100-CC. March 1, 2006,  13 Fla. L. Weekly Supp. 822b,  the landlord issued   three successive 15 day notices of termination of tenancy.   The first terminating the tenancy in January,  the second terminating the tenancy in February, and the third purporting to cancel the second notice and reinstate the first notice.  The court ruled that each notice cancelled all previous notices, and as the third notice was issued only six days prior to the end of the January  rental period,  it was defective.

Similarly  the courts have ruled that successive 3 day notices cancel out all prior 3 day notices. Chandler v. Maxwell, 4 Fla. L. Weekly Supp 279a, (Palm Beach County Court, 1996), citing Cummings v. Giles, 34 Fla. Supp. 2d 117 (Broward County Court, 1989); See also J.H. Floyd Sunshine Village v. Woods, 8 Fla. L. Weekly Supp. 460a (Sarasota County Court, April 19, 2001)

The court has also ruled that you  can not combine  a 3 day notice for non-payment of rent with a   7-day notice of lease violation into one notice.   In  RICHARDSON,  vs.  GALLAGHER,. [County Court, 3rd Judicial Circuit in and for Columbia County. Case No. 08-460-CC. May 27, 2008. Tom Coleman, Judge. 15 Fla. L. Weekly Supp. 819a], the landlord issued standard 3 day notice but  struck-out the pre-printed words “BEHIND IN RENT” in the subheading of the Notice and wrote in “destruction and missing property.” The body of the Notice reads in part: “YOU ARE HEREBY NOTIFIED THAT YOU ARE INDEBTED TO ME IN THE SUM OF – - — – - -DOLLARS. . . .”, thereby indicating that there was no rent due at the time the Notice was delivered. the Notice alleges “destruction and missing property.” This language is not appropriate in a three (3) day notice. “Destruction and missing property” is properly addressed by a seven (7) day notice as described in F.S. §85.56(2). The combining of 3 and 7 day language into one notice rendered it confusing.  Confusing notices are defective and cannot terminate a tenancy.

Where the landlord posted and mailed the 3 day notice to the tenant,  the court ruled that the mailed notice was the successive notice and cancelled out the posted notice.  As the mailed notice did not add five extra days  for the tenant to respond by mail,  the court ruled that notice defective.  Judgment for tenant.  AARON  vs. GOODWIN , County Court, 17th Judicial Circuit in and for Broward County. Case No. COSO-00-00376 (60). February 25, 2000. Sharon L. Zeller, Judge.

The court has also ruled that the successive notice principle applies where a landlord issued a 15 day notice to terminate tenancy followed by a 3 day notice demanding payment of rent.   In  SAMMONS  vs. FANKHAUSER [ County Court for Broward County. Case No. 98-7282 COWE (80). March 17, 1999. Steven G. Shutter, Judge],  landlord  gave tenant a Notice to Terminate Tenancy dated October 24, 1998, and purporting to terminate the tenancy on December 1, 1998.  Then on November 9, 1998 landlord gave a Three Day Notice to Pay Rent or Deliver Possession demanding payment or possession by November 13, 1998.   The tenants paid the rent claimed,  but did not move out at the end of the lease.   When the landlord filed an eviction for holdover,  amazingly,  the court ruled that 3 day notice cancelled out the 15 day notice,  so that the tenancy was never terminated.  Judgment for tenant.

The Plainitff  was the president of  a corporation that owned  the subject property in an eviction.   The tenant filed a motion to dismiss on standing.  The court ruled that being the president of the “landlord”   does not allow a person to file suit in his own  name.

The Plaintiff  tried to move to substitute the Corporation for the individual ,  but the Court ruled that the Florida Rules of Civil Procedure do not authorize “the dropping of all parties on one side and the substitution of a new party.” Trawick, Fla. Prac. and Proc. § 4:11 Substitution (2011 Edition).

Where the named plaintiff is not the landlord, the proper procedure is to dismiss this action without prejudice and for the landlord to bring a proper action against the tenants.

Defendants moved to dismiss a mortgage foreclosure on the basis that the “notice of intent to foreclose” sent by Plaintiff to Defendants complied with the notice requirements of clause 22 of the mortgage.

Clause 22 of the mortgage provides, in pertinent part, that

[Plaintiff] shall give notice to [Defendant] prior to acceleration following Borrower’s [alleged] breach of any covenant or agreement in this Security Instrument. . .The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security agreement, foreclosure by judicial proceeding and sale of the Property. The notice shall further inform [Defendant] of the right to assert in the foreclosure proceeding the non-existence of a default or any other defense of [Defendant] to acceleration and foreclosure.

 The word “shall” in the mortgage created conditions precedent to Plaintiff’s alleged right to foreclosure of the security instrument. Konsulian v. Busey Bank, N.A., 61 So. 3d 1283, 1285 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D1164c].

The language of clause 22 of the mortgage is clear and unambiguous. Id.   Nevertheless, the notice of intent to foreclose filed by Plaintiff does not comply with the clear and unambiguous language of Clause 22.  As a result, Plaintiff failed to satisfy a condition precedent to its alleged right to foreclose the mortgage.  Judgment for Defendant.  Case dismissed.

SUNTRUST MORTGAGE, INC, v. ALJISAR,   Circuit Court, 6th Judicial Circuit in and for Pinellas County, Civil Division. Case No. 12-000989-CI-19. December 7, 2012. Amy M. Williams, Judge. Online Reference: FLWSUPP 2004SUNT

See also

SUNTRUST MORTGAGE, INC. v.  CHUTE, Circuit Court, 6th Judicial Circuit in and for Pinellas County, Civil Division. Case No. 11-8210-CI-19. January 16, 2013. Honorable Amy M. Williams, Judge.Online Reference: FLWSUPP 2004CHUT

the notice of intent to foreclose filed by Plaintiff did not substantially comply with Clause 22 because the notice provides that Defendants “have the right to bring a court action at any time to assert the non-existence of default or any other defenses [Defendants] might have to acceleration and sale.” The mortgage requires that the notice state that Defendants “have the right to assert in the foreclosure proceeding the non-existence of a default or any other defense of [Defendants] to acceleration and foreclosure.”

A landlord had obtained a judgment of possession and a writ of possession had issued.  The tenant then declared bankruptcy and filed a motion to stay the writ of possession based on the automatic stay of state court proceedings pending  resolution of the bankruptcy.   The tenant did not appear for the hearing on his motion.  The landlord produced the tenant’s bankruptcy filing at the hearing.

The judge in the eviction case found that the clerk of the bankruptcy court notified the parties that the petition omitted the required certification of a state law cure of the monetary default and rental deposit pursuant to 11 U.S.C. § 362l(1) and (2). The notice attached a certified copy of the bankruptcy docket “reflecting. . .the applicability of the exception to stay under 11 U.S.C. Section 362(b)(22).” That provision states “The filing of a [bankruptcy] petition under section 301, 302, or 303 of this title. . . does not operate as a stay — subject to subsection (l), under subsection (a)(3), of the continuation of any eviction . . . involving residential property in which the debtor resides as a tenant under a lease or rental agreement and with respect to which the lessor has obtained before the date of the filing of the bankruptcy petition, a judgment for possession of such property against the debtor.”(Emphasis added).

This provision is relevant because tenant’s  petition was filed after entry of the final judgment for possession. Even with the proper certifications and rent deposit, though, Section 362(b)(22) applies to lift the automatic stay 30 days after the bankruptcy petition is filed unless the tenant certifies a complete cure of the monetary default within the 30 day period. 11 U.S.C § 362(l)(1) and (2).

In this case, where there is a documented lack of the tenant’s certification and rent deposit, §362(b)(22) applies “immediately” upon the filing of the petition to lift the automatic stay. 11 U.S.C. § 362(l)(4). As a result, the bankruptcy petition filed by the tenant on  did not operate as an automatic stay to the continuation of this eviction of residential tenants. The landlord  may now “complete the process to recover full possession of the property” without the necessity of an order granting relief from the stay. Id.

Consequently, tenant’s motion to stay the pending alias writ of possession and vacate the order granting the landord’s  motion for alias writ of possession  was denied and an alias writ of possession was issued.

__________________

The court’s treatment of this request for a stay of execution of a writ of possession and the plaintiff’s opposition to that request is guided by Florida Rule of Civil Procedure 1.550(b). That rule requires a motion and notice to all adverse parties. There is no mention in the rule of the necessity for a hearing. Further, the rule places a burden of “good cause” on the party seeking the stay. Here, the reviewing judge found implicitly that, based on the documents submitted, no good cause existed for a stay of the writ of possession. This proceeding does not change that judicial analysis.

WDOP SUB I, LP dba Brookwood Club Apts., vs. PEREZ. County Court, 4th Judicial Circuit in and for Duval County. Case No. 2012-CC-12262, Division P. December 4, 2012. Angela Cox, Judge. Online Reference: FLWSUPP 2004WDOP

A Complaint for mortgage foreclosure contained a verification by an employee of the “contractual servicer” for the Plaintiff and not the Plaintiff itself.

The court noted that in adopting the amendment to Fla. R. Civ. P. 1.110 which implemented the verification requirement, the Florida Supreme Court stated:

The primary purposes of this amendment are (1) to provide incentive for the plaintiff to appropriately investigate and verify its ownership of the note or right to enforce the note and ensure that the allegations in the complaint are accurate; (2) to conserve judicial resources that are currently being wasted on inappropriately pleaded “lost note” counts and inconsistent allegations; (3) to prevent the wasting of judicial resources and harm to defendants resulting from suits brought by plaintiffs not entitled to enforce the note; and (4) to give trial courts greater authority to sanction plaintiffs who make false allegations. In re Amendments to Fla. R. Civ. P., 2010 WL 455295, at *I, 1 (Fla. Feb. 11, 2010) (emphasis added).

The Court then made a finding that the Florida Supreme Court clearly intended that foreclosure complaints are to be verified by the Plaintiff, not the servicer.

Because the subject Complaint was verified by the servicer, it does not comply with Fla. R. Civ. P. 1.110.   The court dismissed the foreclosure,  granting the Plaintiff  sixty (60) days  to file an amended complaint verified by the Plaintiff.

U.S. BANK, NATIONAL ASSOCIATION, AS TRUSTEE FOR MASTR ASSET BACKED SECURITIES TRUST 2006-HE2, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006- HE2, v. MAYO. Circuit Court, 6th Judicial Circuit in and for Pinellas County. Case No. 12003183CI. December 28, 2012. Amy M. Williams, Judge.   Online Reference: FLWSUPP 2004USBA

See also

HSBC BANK, vs. WIGLEY. Circuit Court, 6th Judicial Circuit in and for Pinellas County. Case No. 12004342CI. January 24, 2013. John A. Schaefer, Judge.  Online Reference: FLWSUPP 2004WIGL.

Plaintiff filed an action to evict Defendant.   The court ruled in favor of the Defendant and the case was involuntarily dismissed.  The court subsequently entered a  Final Judgment for Attorney’s Fees against the Plaintiff.

The plaintiff did not pay the Defendant’s attorney’s fees.   Then the  Plaintiff  filed a new eviction against the defendant.   The Defendant moved to stay the proceedings.

The court cited 3. Fla. R. Civ. P. 1.420(d) which states:

“Costs in any action dismissed under this rule shall be assessed and judgment for costs entered in that action. If a party who has once dismissed a claim in any court of this state commences an action based upon or including the same claim against the same adverse party, the court shall make such order for the payment of costs of the claim previously dismissed as it may deem proper and shall stay the proceedings in the action until the party seeking affirmative relief has complied with the order.” (emphasis added).

It is well settled case law that Plaintiff is required to satisfy the Final Judgment for Attorney’s Fees entered in the Previous Action before Plaintiff can continue to proceed in this action. Estate of McGrail v. Rosas, 691 So.2d 50, (Fla. 4th DCA 1997) [22 Fla. L. Weekly D911b]; Bubani v. Rogers, 363 So.2d 181 (Fla. 4th DCA 1978); Gordon v. Warren Heating & Air Conditioning, Inc., 340 So.2d 1234 (Fla. 4th DCA 1976); see also Field v. Nelson, 380 So.2d 547 (Fla. 2d DCA 1980).

The Court has no discretion as is required to render an order for the payment of the Final Judgment for Attorney’s Fees in the Previous Action and this Court is required stay the new  action including discovery until Plaintiff  has paid the judgment for costs and fees.

SSS INVESTMENTS GROUP INC, vs.  DANIELSON,  County Court, 9th Judicial Circuit in and for Orange County, Civil Division. Case No. 2012-CC-015727-O, Division 70. January 23, 2013. Andrew L. Cameron, Judge.   20 Fla. L. Weekly Supp. 436a.  Online Reference: FLWSUPP 2004SSS

Plaintiff filed a complaint for foreclosure on September 29, 2010.  Plaintiff alleged in its Complaint that:

The Mortgage Note and Mortgage are in default. The required installment payment of June 1, 2010, was not paid, and no subsequent payments have been made. The Mortgage is contractually due for June 1, 2010, payment. The last payment received was applied to the May 1, 2010, installment, and no subsequent payments have been applied to the loan.  [Plaintiff's Complaint ¶6.]

The Defendants filed their answer on February 8, 2011 denying that the Mortgage Note and Mortgage are in default.

At trial, the defendant testified that in October of 2009 she contacted Plaintiff to discuss a mortgage modification.  A representative of Plaintiff,  informed her that her account had to be 90 days in default before they will consider a loan modification. Relying on this statement, the defendant  did not make her mortgage payments from November 2009 through January 2010.

Defendant further testified that she was told by another of Plaintiff’s representatives,  that she would begin a temporary modification period requiring reduced payments for February 1, 2010, March 1, 2010 and April 1, 2010.  Defendant testified that she timely made each of these payments.

Defendant testified that in June 2010, she received a notice that she was being denied for a permanent loan modification. As a result, on June 23, 2010 she contacted Plaintiff to see how much she owed. A representative of Plaintiff informed the Defendant that if she paid $6,774.84 the loan would be current through July 2010 making August 1, 2010 the next due payment. Defendant then made this payment telephonically with Plaintiff’s representative during the same phone call.

Defendant further testified that she received a letter dated July 19, 2010 which claimed that she owed $1,969.40 in past due amounts.  She again contacted Plaintiff regarding the amounts claimed to be due and was again told not to make a payment for 90 days so that she could be considered for a loan modification. Approximately 60 days later, Plaintiff filed the instant foreclosure.

The witness for the Plaintiff, provided no testimony to rebut the testimony of the Defendant  in relation to the representations of Plaintiff during the various aforesaid phone calls. The lender’s witness testified only based on the payment history introduced at trial that the last payment applied to the account was for May 2010 and no further payments had been received.

The Court found that the Defendant’s  testimony regarding the June 23, 2010 phone call and payment is un-rebutted and thus must be accepted.   Plaintiff is bound by the representation made by its representative to Defendant on June 23, 2010 that the loan would be brought current through July 31, 2010 if she made payment in the amount of $6,774.84.  Therefore, the Court found that the subject loan was current through July 31, 2010. This is contrary to Plaintiffs allegation in its Complaint that the loan was in default as of June 1, 2010. Thus, Plaintiff has failed to prove that the loan was in default on the date alleged in its Complaint.

Additionally, per paragraph 7 of the Complaint, Plaintiff’s cause of action is based on an alleged acceleration of the full amount of the loan. Paragraph 22 of the subject mortgage requires that prior to an acceleration of the full amount of the loan, the Defendants must be provided with a notice of the Plaintiff’s intent to accelerate the loan 30 days in advance.

Plaintiff introduced its alleged Notice of Intent to Accelerate dated July 19, 2010. Plaintiff’s Trial Exhibit #4. This Notice, however, is not effective because the loan was current on July 19, 2010 due to the payment made on June 23, 2010 in the amount of $6,774.84. Therefore, Plaintiff did not have the contractual right to accelerate the loan. No subsequent notice of intent to accelerate was introduced by Plaintiff. Therefore, Plaintiff has failed to prove that it provided an effective notice of intent to accelerate more than 30 days prior to acceleration of the loan, a necessary condition precedent to acceleration and bringing the instant action. Bryson v. BB&T, 75 So. 3d 783, 785-786 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D2582a].

“As a matter of substantive law, it is a good defense to foreclosure on an accelerated basis that the mortgagor tenders payment of defaulted items, after the default but before the notice of mortgagee’s election to accelerate has been given.” Delandro v. America’s Mortgage Servicing, Inc., 674 So. 2d 184, 186 (Fla. 3d DCA 1996) [21 Fla. L. Weekly D1201a] (quoting Campbell v. Werner, 232 So. 2d 252 (Fla. 3d DCA 1970). See also Yelen v. Bankers Trust Co., 476 So. 2d 767, 769 (Fla. 3d DCA 1985(“A tender of arrears, made before the lender has declared the entire amount due, prevents the lender’s acceleration of the mortgage).

Per paragraph 8 of the Plaintiff’s Complaint, $138,507.19 was due in principal as of May 2010. Therefore, the subject loan is hereby current with a balance going forward of $138,507.19 with the next contractual monthly payment due on November 1, 2012. Said payment shall be the $923.57 in principal and interest reflected in the Note plus lawful escrow amounts. Any amounts currently held in suspense by Plaintiff shall be applied towards the outstanding principal balance.

The Court further found that it would be inequitable for the Defendants to be assessed any interest, late charges or other fees as a result of the alleged default.

The court entered judgment for the defendant awarding  her costs and fees,  while also specifying that plaintiff shall not assess defendant any costs or fees related to the foreclosure

20 Fla. L. Weekly Supp. 400b

Online Reference: FLWSUPP 2004WEST

A landlord issued a tenant a 3 day Notice for non payment of rent due 3/8/13  with a due date of 3/14/13.  On 3/26/13  the landlord filed an eviction for non-payment of rent.  The tenant was served on 3/30/13.  On  4/2/13  the tenant issued landlord a 7 day notice to perform repairs.  On 4/3/13  the tenant filed an answer and motion for rent determination and did not post any rent into the court registry.

The court set  the case for a rent determination hearing  on 4/8/13  and heard oral  testimony from the tenant, unsupported by any documentation,  concerning  alleged repair issues at  the  leased premises.

Counsel pointed out that  tenant’s  7 day notice had not matured even as of the date of the hearing, and thus landlord was still within his time frame  in which to effect the requested repairs before the tenant would have any entitlement to withhold future rent.   Further,   that  a 7 day notice issued in April   could have no bearing on tenant’s obligation to pay March rent.

The court was  presented with the case of Lee v. Schweizer , 7 Fla L. Weekly Supp 750a, County Court Sarasota 2000] which states that a “tenant may not take matters into his or her own hands and resort to the self-help of unilaterally withholding rent payments without proper notice.”     …   “a tenant may not raise a defense concerning the physical condition of the premises  without first having complied with the seven day notice requirement.”

Indeed, Section 83.60  “defenses to action for rent,”   requires  the tenant  to have issued a 7 day notice of non-compliance to the landlord in order to raise failure to make repairs as a defense to non-payment of rent.

As tenant’s 7 day notice had not matured prior to landlord’s 3 day notice,  tenant did not have a defense to the non-payment of the rent claimed in the 3 day notice. Thus,  tenant was obligated to post the amount claimed in the 3 day notice into the court registry to avoid an automatic default.

Cortleigh Apartments v. Thompson Case 13-6231 (52)  COCE,  Broward County.

The original complaint, filed by prior counsel Ben-Ezra & Katz, P.A., contained a count seeking to foreclose a mortgage and a count seeking to re-establish a lost note in which New Century Mortgage Corporation was named as the Lender;  The original complaint did not contain a copy of the allegedly lost note as an exhibit;

Plaintiff subsequently filed a Notice of Filing Original Note which contained a note with an undated, stamped blank endorsement by New Century Mortgage Corporation representative Magda Villanueva, AVP/Shipping Manager;

At trial the court found that  Plaintiff’s evidence failed to establish the date the undated, blank endorsement was stamped on the note, and failed to establish the note was acquired by Plaintiff prior to the filing of the original complaint.

The court held that  Plaintiff failed to establish its standing to prosecute this action and dismissed the case.

DEUTSCHE BANK NATIONAL TRUST COMPANY, AS INDENTURE TRUSTEE FOR NEW CENTURY HOME EQUITY LOAN TRUST, SERIES 2004-1, v. LANGLEY. Circuit Court, 20th Judicial Circuit in and for Collier County, Civil Division. Case No. 08-04802-CA. January 6, 2013. Hugh D. Hayes, Judge.  Online Reference: FLWSUPP 2004LANG

Marina owner’s action for residential eviction against defendant who rented slip at marina, and occupied boat that remained stationary, and was used exclusively as a residence, defendant’s contention that action fell within federal admiralty jurisdiction was without merit

Factual Background

Plaintiff is the owner of a marina. Plaintiff rents a slip to Defendant, who owns and resides on the boat docked in the marina. Plaintiff filed this action for residential eviction based on a FIVE  day notice to cure   under  Fla. Stat. §83.52, failure to maintain dwelling unit.  The tenant argued that Admiralty Law controlled and the court had no jurisdiction,  and that Plaintiff’s five day notice to cure was defective.

I. Defendant’s Admiralty Motion

This Court finds that this is not an admiralty action because the agreement between the parties is plainly not maritime in nature. Defendant’s boat is moored at a slip in Plaintiff’s marina, it remains stationary and is used exclusively as a residence. The agreement governing the obligations of the parties is a lease which provides for monthly payments for use of the slip. A maritime contract, however, must “relate to the ship as an instrument of commerce, and … a contract for the wharfage³ of a ship withdrawn from commerce is not maritime…. The reason is that such service does not pertain to the navigation of a ship, nor assist a vessel in the discharge of a maritime obligation.” Pillsbury Flour Mills Co.v. Interlake S.S. Co., 40 F. 2d 439, 440 (2nd Cir. 1930) (emphasis added). See Port Utilities Commission of Charleston v. Marine Oil Co., 173 S. C. 346, 175 S. E. 818 (1934) (state court entertained removal proceeding for slip lessee’s failure to pay rent); compare King v. Convey-Eckstein, 66 Fla. 246, 63 So. 659 (Fla. 1913) (lessees of docks may be held liable in state courts for injuries to third parties for failing to maintain premises in a reasonably safe condition).⁴

As this is not an admiralty case, the challenge to this Court’s jurisdiction on the basis that federal law precludes state courts from considering this type of matter cannot succeed. Accordingly, Defendant’s admiralty motion is DENIED.

II. Defendants Landlord – Tenant Motion

This Court found,  Section 83.56, Fla. Stat., requires a  SEVEN day notice to cure  a  lease violation.   The five day notice to cure provided by the landlord in this case,  was therefore defective.

The fact that the parties‘  lease contains a provision permitting only a five day period is of no consequence. Florida’s landlord-tenant law clearly provides that “[a] provision in a rental agreement is void and unenforceable to the extent that it …[p]urports to waive or preclude the rights, remedies, or requirements set forth in this part….” §83.47(1)(a), Fla. Stat. Thus, the notice is invalid because it contained a time shorter than that required by Florida’s landlord-tenant statute and, therefore, this cause must be dismissed. See Shapiro v. Puche, 1 F.LW. Supp. 409 (Broward County 1993).

Based upon the foregoing, Defendant’s motion is GRANTED and this case is DISMISSED.

^{_____________________________________}

¹In essence, Defendant has moved, pursuant to Rule 1.420(b), for an involuntary dismissal for Plaintiff’s failure to show any right to affirmative relief.

²The Boat Storage & Service Agreement at paragraph 5 provides “[t]he MARINA shall…have the right to terminate this agreement upon five (5) days Notice to OWNER in the event that OWNER shall fail to observe or perform any of its other obligations hereunder.”

³“Wharfage” is generally defined as a charge for the use of a wharf, dock or slip made by the owner by way of rent or other compensation. See 79 Am. Jur. Wharves §29 (1975).

⁴Defendant’s related theory that this is an in rem action against the boat that converts this case into an admiralty dispute is contrary to the nature of an eviction proceeding. Plaintiff does not seek possession of the boat, rather, it seeks recovery of its exclusive right to the slip. Similarly, the relationship between the Plaintiff and the Defendant is governed by a lease, not a lien or other instrument which may give Plaintiff an interest in the boat itself. Consequently, suit was not brought against the boat (which would be possible in an in rem admiralty proceeding). See e.g. Still v. Dixon, 337 So. 2d 1033, 1035 (Fla. 2d DCA 1976). Rather, the suit was brought against the Defendant, an individual.

TCY LTD., INC., v. JOHNSON. Dade County. Case No. 94-13511-CC 23. 1995.

3 Fla. L. Weekly Supp. 72b

Mortgagee sued to overturn a tax deed sale extinguishing its two mortgage liens on the subject property on the basis that the notice sent to it was returned as undeliverable. 

 Florida Statutes  §197.522(1),  provide that prior to a tax deed sale the Clerk of Court  is to issue notice of the application for a tax deed to interested parties as identified in §197.502(4). “Interested parties”  include  any mortgagee of record if the address appears on the recorded mortgage. The Clerk sent notice of the Tax deed sale to the mortgagee  at the address listed on both mortgages recorded against the subject property. The notice was returned as undeliverable.  The mortgagee admitted that it had moved its primary address and did not directly notify the Tax Collector’s office of the new address. The Clerk’s office admits that after the notice was returned it took no further action to attempt to locate a new address for Beneficial.

The court noted that cases of  Jones v. Flowers, 547 U.S. 220 (2006) [19 Fla. L. Weekly Fed. S158a]; Delta Property Management v. Profile Investments, Inc., 87 So. 3d 765 (Fla. 2012) [37 Fla. L. Weekly S157a]; and Vosilla v. Rosado, 944 So. 2d 289 (Fla. 2006) [31 Fla. L. Weekly S758a] in which a tax deed sale had been overturned for failure to provide notice.  But both Delta Property and Vosilla   involved notices to the property owners  who had notified government authorities that their mailing address had changed. Through no fault on the property owner’s part, the notices were sent to addresses that no longer were valid. In concluding that the tax deed sale in Delta Property was invalid the Florida Supreme Court summarized:

Pursuant to Jones and Vosilla, the Clerk had a duty to take additional, reasonable steps to attempt to provide notice to the legal titleholder before selling the property. As identified by those decisions, those reasonable steps depend on the particular circumstances of the case and may include: checking the records of the taxing authorities for a change of address submitted by the legal titleholder; resending notice by regular mail so that no signature is required; posting notice on the property to be sold, not merely at the last known address of the titleholder; or sending a notice addressed to “occupant” by regular mail. Delta Property, 87 So. 2d at 773 (emphasis added).

These cases are distinguishable on their facts because they involve inadequate notice to titleholders to property and do not involve alleged inadequate notice to a mortgage holder.

The mortgagee herein argued that the Clerk of Court should have searched public records or the internet to find a new address for the mortgagee when the notice of tax deed sale was returned undelivered  citing Mennonite Board of Missions v. Adams, 462 U.S. 791 (1983). The U.S. Supreme Court stated that “prior to an action which will affect an interest in life, liberty, or property protected by the Due Process Clause of the Fourteenth Amendment, a State must provide ‘notice reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’ ” Id. at 795 (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)(involving notice to beneficiaries on judicial settlement of accounts by the trustee of a common trust fund)).

In both Mullane and Mennonite Board the U.S. Supreme Court stated that mere publication, without any other attempt to notify interested parties, was not sufficient to provide adequate notice. In discussing mortgage holders in Mennonite Board, the U.S. Supreme court concluded, “When the mortgagee is identified in a mortgage that is publicly recorded, constructive notice by publication must be supplemented by notice mailed to the mortgagee’s last known available address, or by personal service. But unless the mortgagee is not reasonably identifiable, constructive notice alone does not satisfy the mandate of Mullane.” 462 U.S. at 798 (emphasis added). The Supreme Court did not require the government entity to search public records or to employ other means to locate a new address for the mortgagee.

The court ruled that the Clerk of Court complied with section 197.522(1) by sending notice to the mortgagee  at the “last known available address.” This Court notes that section 197.522(1)(d) states, “The failure of anyone to receive notice as provided herein shall not affect the validity of the tax deed issued pursuant to the notice.” Therefore, failure of the notice to be received by Beneficial, as a non-titleholder, does not affect the validity of the tax deed. The record conclusively shows that Beneficial’s claim cannot be proved as a matter of law and the Clerk is entitled to summary judgment.

Landlord filed an eviction.  Tenant’s attorney filed a motion to dismiss.  Landlord filed a voluntary dismissal.  The court ruled that upon a voluntary dismissal  by landlord,  tenant is the prevailing party and thus entitled to recover reasonable attorneys fees and costs.

At the hearing on fees on costs  the court determined that the tenant’s attorney had taken on the case strictly on contingency fee, and that with a 50% probability of success was entitled to a fee multiplier of two.   The court noted that there are only a few attorneys who represent tenants, and that the only way to entice more attorneys to represent tenants is to award contingent fee multipliers, and that the tenant could not otherwise afford to hire an attorney.

The expert testified that:

a. that the relevant market (Orange, Seminole, and Osceola Counties) requires a contingency fee multiplier to ensure that tenants be able to obtain competent counsel.

b. that based on the nature of tenant defense work the defense attorney is rarely able to mitigate the risk of non-payment and the attorney was unable to do so in this case; and

c. That other factors set forth in Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985) are applicable, especially, “the amount involved (in this case possession of the property), the result obtained (a dismissal), and the fee arrangement with the client (pure contingency).

Three hundred dollars per hour was deemed a reasonable hourly fee, and 5.8  hours were found to have been expended.  Further Tenant’s witness on attorneys fees charged $375/hour for two hours.    Total  fee awarded to tenant $4230.00.

BANEZ, vs. BANEZ, County Court, 9th Judicial Circuit in and for Orange County. Case No. 2012-CC-015710-O. February 13, 2013. Adam McGinnis, Judge.  20 Fla. L. Weekly Supp. 513a.

Appellee Adamo, (“Trustee”), is the landlord of a commercial lease with tenant St. Petersburg Pain. The Trustee filed a Complaint for Eviction. On July 30, 2012, a Default Judgment for Possession was entered. After a hearing, on August 6, 2012, the trial court entered the Order Vacating Default Judgment and Staying Writ of Possession. The Order directed St. Petersburg Pain to file its Answer and deposit the three past due rental payments into the registry of the court by 4:00 p.m. on August 8, 2012. The Order warned St. Petersburg Pain that failure to pay the rent by the date stated would result in the entry of a Final Judgment of Eviction on August 9, 2012.

St. Petersburg Pain sent the rent by Federal Express,  but it did not arrive until  August 9, 2012, at 10:30 a.m.

The Trustee filed an “Ex-Part Motion for Entry of Judgment for Possession Due to Failure to Deposit Rent” that was considered by the Court at the Final Hearing of Possession on August 9, 2012. At the hearing, counsel for St. Petersburg Pain explained that the Federal Express delivery of the deposit was one day late due to an error made by Federal Express.

The trial court properly found that pursuant to section 83.232(5), Florida Statutes (2012), it had no discretion to extend the time for the deposit of the past due rental payments. See Stetson Mgmt. Co. v. Fiddler’s Elbow, Inc., 18 So. 3d 717, 718 (Fla. 2d DCA 2009) [34 Fla. L. Weekly D2023a]; 214 Main St. Corp. v. Tanksley, 947 So. 2d 490 (Fla. 2d DCA 2006) [31 Fla. L. Weekly D2830a]. The trial court issued a detailed Final Judgment of Eviction which thoroughly sets out binding case law. The trial court had a ministerial duty to provide the remedies set forth in the statute and did not err in entering the final judgment for possession of the subject property to the Trustee. See Palm Beach Marketplace, LLC v. Aleyda’s Mexican Restaurante, Inc., 103 So. 3d 911, 912 (Fla. 4th DCA 2012) [37 Fla. L. Weekly D2522a].

Affirmed. (ALLAN, SCHAEFER, and ST. ARNOLD, JJ.)

Editors Note: Close only counts in  horseshoes and hand grenades !  

ST. PETERSBURG PAIN & URGENT CARE, Appellant, v. ADAMO,  Appellee. Circuit Court, 6th Judicial Circuit (Appellate) in and for Pinellas County. Case No. 12-000039AP-88A. UCN 522012AP000039XXXXCI. April 4, 2013, nunc pro tunc April 2, 2013. Appeal from Final Judgment Pinellas County Court. Kathleen T. Hessinger, Judge. 20 Fla. L. Weekly Supp. 557b

LawPro reports that the number of frauds perpetrated on attorneys by bogus emails continues to rise and over half of the recently reported frauds were reported by attorneys in the United States.  If you receive an electronic request for legal services that appears questionable, check LawPro’s database to see if the request is from a confirmed fraudster before offering legal representation.

No the emails are not coming from Nigeria:  61% of the emails came from the U.S., 31% from Ontario, 3% from elsewhere in Canada and 5% from overseas.

House Bill 77  was signed into Law June 7, 2013. The 20 page bill extensively amended  the residential landlord tenant act. 

The  changes are as follows:

§83.42 (2)  83.42 Exclusions from application of part.

“Occupancy under a contract of sale of a dwelling unit:” 

A purchaser is not exempt from the landlord tenant act unless he as paid at least 12 months’ rent or paid at least 1 month’s rent and a deposit of at least 5 percent of the purchase price of the property.

§83.48 Attorney Fees: 

The right to attorney fees may not be waived in a lease agreement. However, attorney fees may not be awarded in a claim for personal injury damages based on a breach of duty under s. 83.51.

§83.49 Security Deposits:

The landlord must give the tenant  a written notice within 30 day stating:  the name and address of the depository  or state that the landlord has posted a surety bond instead;  whether the tenant will receive interest; and the following disclosure:

YOUR LEASE REQUIRES PAYMENT OF CERTAIN DEPOSITS. THE LANDLORD MAY TRANSFER ADVANCE RENTS TO THE LANDLORD’S ACCOUNT AS THEY ARE DUE AND WITHOUT NOTICE. WHEN YOU MOVE OUT, YOU MUST GIVE THE LANDLORD YOUR NEW ADDRESS SO THAT THE LANDLORD CAN SEND YOU NOTICES REGARDING YOUR DEPOSIT. THE LANDLORD MUST MAIL YOU NOTICE, WITHIN 30 DAYS AFTER YOU MOVE OUT, OF THE LANDLORD’S INTENT TO IMPOSE A CLAIM AGAINST THE DEPOSIT. IF YOU DO NOT REPLY TO THE LANDLORD STATING YOUR OBJECTION TO THE CLAIM WITHIN 15 DAYS AFTER RECEIPT OF THE LANDLORD’S NOTICE, THE LANDLORD WILL COLLECT THE CLAIM AND MUST MAIL YOU THE REMAINING DEPOSIT, IF ANY.

IF THE LANDLORD FAILS TO TIMELY MAIL YOU NOTICE, THE LANDLORD MUST RETURN THE DEPOSIT BUT MAY LATER FILE A LAWSUIT AGAINST YOU FOR DAMAGES. IF YOU FAIL TO TIMELY OBJECT TO A CLAIM, THE LANDLORD MAY COLLECT FROM THE DEPOSIT, BUT YOU MAY LATER FILE A LAWSUIT CLAIMING A REFUND.

YOU SHOULD ATTEMPT TO INFORMALLY RESOLVE ANY DISPUTE BEFORE FILING A LAWSUIT. GENERALLY, THE PARTY IN WHOSE  FAVOR A JUDGMENT IS RENDERED WILL BE AWARDED COSTS AND ATTORNEY FEES PAYABLE BY THE LOSING PARTY.

For leases entered into up until December 31, 2013  the landlord may give the notice according to  the current landlord tenant statute.   The disclosure herein is  only required under leases entered into after January 1, 2014.

The failure of tenant to object to a landlord’s claim against security within 15 days no longer bars the tenant for suing to recover their security deposit.

§83.51 Landlord’s obligation to maintain premises.

Screens:  the landlord shall ensure screens are installed in a reasonable condition at the commencement of the tenancy,  but shall only have to fix them once a year thereafter.

§83.56.  Seven Day Notice of non-compliance.  The legislature clarified that once a 7 day notice of lease violation has been issued,  the landlord does not have to issue another notice if the tenant commits another similar violation within a year  in order to evict.

§83.54(5)(a) Waiver:  The landlord may now accept partial rent after posting 3 day notice if : 1) the landlord provides a dated receipt stating the balance due before filing an eviction, and(2) puts the partial payment into the court registry upon filing the eviction.

§83.54(5)(c)Section 8:  Waiver now occurs if landlord does not evict within 45 days of actual knowledge of tenant’s noncompliance not the date of the noncompliance.

§83.575  Notice of non-renewal of lease with fixed term.  A lease requirement of notice of intent not to renew, will apply to both the landlord and the tenant.

 §83.60 Defenses to action for rent or possession.

83.60 (1)(a) NEW TERM:  “The landlord must be given an opportunity to cure a deficiency in a notice or in the pleadings before dismissal of an action.”

The legislature has made it clear that the courts are not to dismiss evictions for defective 3 day notices.  They further clarified that the tenant is required to post the rent into the court registry even if the 3 day notice is defective.

§ 83.64 Retaliatory Conduct:  the legislature added two more categories that the landlord shall not retaliate against:

(e) Tenant has paid the rent to the association pursuant to their demand.

(f) Tenant has exercised rights under local, state, or federal fair housing laws.

In DUVALL vs. SUNSHINE STATE REALTY & ASSOCIATES, INC.,   a property manager drafted his own claim on security deposit form,  instead of using a Florida Bar approved form,  and then went on to represent himself at trial after the tenant hired a lawyer to sue him to recover the security deposit.  Needless to say,  it did not work out in favor of the property manager. If  you really want to draft your own legal forms you have three choices:  use a Florida Bar approved form,  hire an attorney to prepare a form for you,  become an attorney and prepare the form. Hint:  a google search for “eviction attorney”  produced “about 4,820,000 results in 0.37 seconds,”   which is considerably faster than going to law school and getting admitted to the bar.

In DUVALL vs. SUNSHINE STATE REALTY & ASSOCIATES, INC.,  the tenant vacated at the end of her lease.   Defendant property manager sent a claim on $800 out of the $1000 security deposit by certified mail 14 days after the tenant vacated.  Tenant objected to the claim within 15 days.

The “Demand upon Security Deposit” was a hand written document on Sunshine State Realty & Associates Inc.’s stationary drafted by Richard C. Allen, the President thereof,  a nonlawyer.  The form was not the Supreme Court of Florida approved form required for use by nonlawyers and nonlawyer property managers. The “Demand upon Security Deposit”  did not advise the tenant of her statutory right to object to the claim against her security deposit and that the objection must be in writing and must be sent within 15 days of receiving the notice of intention to impose a claim on security deposit.

Pursuant to Florida Statute 83.49(3)(a):  [t]he notice [of intention to impose a claim on the deposit] shall contain a statement in substantially the following form:

This is a notice of my intention to impose a claim for damages in the amount of _______________ upon your security deposit, due to ____________________________________. It is sent to you as required by s. 83.49(3), Florida Statutes. You are hereby notified that you must object in writing to this deduction from your security deposit within 15 days from the time you receive this notice or I will be authorized to deduct my claim from your security deposit. Your objection must be sent to (landlord’s address).

If the landlord fails to give the required notice within the 30-day period, he or she forfeits the right to impose a claim upon the security deposit. Fla. Stat. 83.49(3)(a), (emphasis added).

The statute is strictly construed. A Landlord forfeits the right to keep possession of the Tenant’s security deposit if the requirements of Florida Statute 83.49(3)(a) are not followed precisely. See: Durene v. Alcime, 448 So. 2d 1208 (Fla. 3d DCA 1984); Lockwood v Perry, 11 Fla. L. Weekly Supp. 704(a) (Hillsborough Co. Ct. Appellate, 2004); and Hick v Marchetti, 4 Fla. L. Weekly Supp. 525b (Charlotte Co. Ct. Appellate 1996). It is well established law if the landlord fails to send the notice required by Florida Statute 83.49(3)(a) the landlord forfeits its right to impose a claim against the Tenant’s security deposit. Similarly, if the notice required by Florida Statute 83.49(3)(a) does not substantially comply with the required statutory language the notice is defective and the landlord has not complied with the statute and the landlord forfeits any right to impose a claim against the Tenant’s security deposit.

Fundamentally the procedure requires the landlord to mail to the tenant a statutory notice of claim on the security deposit within 30 days of the tenant vacating the rental dwelling or the landlord forfeits his right to impose a claim upon the security deposit. If the tenant does not object to the landlord’s statutory notice of claim on the security deposit in writing within 15 days after receipt of the landlord’s notice, the landlord may deduct the amount of the claim from the tenant’s security deposit and return to the tenant the remaining deposit, if any. If the tenant timely objects to the claim on the security deposit, the landlord must keep the security deposit in the Florida banking institution where the security deposit is held and either the tenant or the landlord must file a lawsuit so that the court can resolve the dispute.

A non-lawyer property manager must use the Supreme Court of Florida approved form as set forth in In re Revisions To Simplified Forms Pursuant To Rule 10-2.1(a) of The Rules Regulating the Fla. Bar, 50 So.3d 503 (Fla., 2010) [35 Fla. L. Weekly S216a] and by failing to use the Florida approved form Sunshine State Realty & Associates, Inc. forfeited its right to impose a claim against the Tenant’s security deposit.

Therefore, SUNSHINE STATE’s “Demand upon Security Deposit” failed to meet the statutory requirement of Fla. Stat. 83,49(3)(a).  A nonlawyer must use only Florida Supreme Court approved forms. In re Revisions to Simplified Forms Pursuant to Rule 10-2.1(a) of the Rules Regulating the Fla. Bar, 50 So.3d 503 (Fla. 2010) [35 Fla. L. Weekly S216a]. Pursuant to the Rules Regulating the Florida Bar 10-2.1(a), Unlicensed Practice of Law, non-lawyers may assist persons in filling out only those legal forms approved by the Florida Supreme Court. Some courts have determined that the mere modification of a form approved by the Florida Supreme Court for use by nonlawyers constitutes the unauthorized practice of law. See: The Florida Bar v Schramek, 616 So.2d 979, 984 (Fla.1993). The Florida Supreme Court has approved a Notice of Intent to Impose a Claim on a Security Deposit for use by a nonlawyer or nonlawyer property manager. Therefore a nonlawyer or a nonlawyer property manager must use the Florida Approved Notice of Intention to Impose Claim on Security Deposit (see pg. 2, n.1).

The court ordered the manager to return the entire security deposit and pay the tenant’s court costs and attorney’s fees.

DUVALL, vs. SUNSHINE STATE REALTY & ASSOCIATES, INC.. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2012 21898 CONS Division 78. February 27, 2013. 20 Fla. L. Weekly Supp. 624a.

The failure of a landlord to seek monetary damages as relief from a tenant (in contrast to mere possession) does not relieve the tenant of the obligation to deposit the rent claimed in the 3 day notice into the court registry . See Stanley v. Quest Int’l, 50 So.3d 672, 673-74 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D2636a].   Where the  tenant failed to tender rent into the court registry as required by Florida Statute §83.60(2)  the landlord is entitled to a default judgment of eviction..

FRANCOIS v.  HARRIS, County Court, 17th Judicial Circuit in and for Broward County. Case No.12-22637 COCE (53). December 4, 2012. Robert W. Lee, Judge. 20 Fla. L. Weekly Supp. 292a.

 The parties entered into a residential lease. Prior to moving in, the Plaintiffs (tenants) paid the Defendant (landlord) one-month’s rent. Pursuant to the agreement, the Plaintiffs were supposed to pay an additional sum prior to taking occupancy, $8,100.00 (comprising two-months’ additional rent and a security deposit). The day the Plaintiffs were to take occupancy, they showed up with only $5,400.00. The Defendant declined to allow occupancy.

The Court ruled that the Plaintiffs breached their agreement by not tendering the amount due under the lease.

Plaintiffs  claimed that they are, nevertheless,  entitled to a return of their deposit because the Defendant failed to provide the certified letter advising that he was imposing a claim of the security deposit. Fla. Stat. §83.49(3)(a). This argument  was rejected: first, because the amount prepaid was not the security deposit, it was the first month’s rent; and second, a tenant breaching a lease agreement cannot claim the protection of the statutory certified letter requirement because the tenant has not “vacat[ed] the premises for termination of the lease.” Id.

The Defendant claimed he was entitled to retain the $2,700.00 prepaid rent because the Plaintiffs breached the lease agreement. (Although the Defendant did not plead setoff as a defense, he was not required to do so as this is a small claims case. Rule 7.090(b); Linden v. Auto Trend, Inc., 923 So.2d 1281 (Fla 4th DCA 2006) [31 Fla. L. Weekly D933d]; Spivey v. Siam Motors, Inc., 14 Fla. L. Weekly Supp. 1096b (13th Cir. Ct. 2007) (appellate capacity).) Entitlement to rent from a breaching tenant is governed by Florida Statute §83.595. The evidence was undisputed that the Plaintiffs were never provided occupancy of the premises; indeed, they were never provided a key. The Defendants options under the statute were to release the Plaintiffs from liability for any rent, or to hold the Plaintiffs liable for rent until the property is relet. For instance, had the property relet on the 15th of the month, the landlord would have to return rent to the tenants pro rata. Here, the only evidence presented was that the Defendant believed he was entitled to keep the entire amount of prepaid rent. There was simply no evidence presented as to if and when the property was relet, and as a result, the Court concludes that the Defendant has failed to meet its burden of showing entitlement to a setoff.

As a result, the Court found  that the Plaintiffs, although they breached the lease agreement, were entitled to a return of the prepaid rent.

TAYLOR, vs. EDRI, County Court, 17th Judicial Circuit in and for Broward County. Case No. 12-21741 COCE 53. February 4, 2013. Robert W. Lee, Judge.20 Fla. L. Weekly Supp. 727c