Landlord Tenant Disputes After A Major Storm (Hurricane)

Posted By on October 3, 2017

After a major storm or hurricane here in Florida, apartments and other rental properties are often damaged to the point where they need some level of repair to make them livable. In some instances, the property may be a total loss or the damage is so bad that repairs can take an extended period of time to complete.

This of course means tenants may not be able to access their homes for a while. Even worse, when they are finally able to return to their homes they may find that their personal property has been destroyed.  Glass may have blown out of windows, rugs and flooring may be wet, walls can be covered in mold, doors broken or missing, and even the roof may be damaged or destroyed.

Generally speaking, a residential tenant owns the furnishings they bring to the residence, but the fixtures and improvements (like the walls, carpets, windows, and appliances) are owned by the landlord.

Which brings us to a common question that is asked after a storm; What are a tenant’s rights and a landlord’s duties after a hurricane’s wind, rain, or flooding causes damage to rental property and its contents? 

 

Hurricane Dennis 2005 damage
FEMA: Florida beach home after Hurricane Dennis (2008)

1.  What Happens If The Apartment or Rental Property is Uninhabitable?

Unfortunately, damage that Hurricanes can cause to real estate is well known to the insurance industry, legislators and property owners.  These casualty events are contemplated when insurance policies are written as well as when Florida law is adopted.

Fortunately, Florida law provides protection for tenants in these situations, due, in part, to landlords having taken advantage of tenants in the past when a hurricane or storm has hit Florida.

A.  Terminate The Lease (Rental Agreement)

Under Florida’s Residential Landlord and Tenant Act, if a residential tenant cannot live in their home because the damage caused by a Hurricane has rendered the property uninhabitable, then the tenant may have the grounds to terminate the lease.

According to Florida Statute 83.63, if the tenant’s home is “damaged or destroyed other than by the wrongful or negligent acts of the tenant so that the enjoyment of the premises is substantially impaired, the tenant may terminate the rental agreement and immediately vacate the premises.”

Additionally, the language of the lease may also address this issue.  There may be a provision in the written lease agreement that terminates the lease if the property is destroyed due to natural disasters or acts of God, or other causes not resulting from the tenant’s actions.

Florida contract law allows the parties to agree among themselves to end the lease and terminate their relationship.  In most instances, the tenant will be required to give written notice as described in the lease that the agreement is terminated due to the hurricane’s destruction.

B.  Return of Security Deposit

Under the lease agreement, there may be language addressing the return of the security deposit to the tenant if the home is uninhabitable due to a hurricane or storm damage or other act of God (look for a Force Majeure clause in the agreement).

If the contract does not have any language on this issue, then Florida law provides that the landlord must return the tenant’s security deposit within fifteen (15) days after the proper termination of the tenancy.

If for any reason the landlord is not returning the deposit money, then the tenant must receive a letter of explanation within thirty (30) days.  This letter must be sent by certified mail to the tenant, and the tenant must respond within fifteen (15) days to this notice or waive his right to return of the security deposit.

The tenant needs to have proof that he or she has provided the landlord with a designated mailing address after the storm so that the landlord has a legal address for service or a mailing address for where the money should be sent.

As overwhelmed as a tenant may be in the aftermath of a catastrophic weather event like a hurricane, a tenant needs to have physical proof that he or she has given their landlord their new mailing address (even if it’s a temporary one or it’s a post office box or rental box at the nearest UPS store).

Read:  How to Get a Refund of Your Security Deposit from the Landlord When Renting a Home or Apartment

 2.  What Happens When The Tenant’s Property is Damaged in a Storm or Hurricane?

After hurricane force winds or storm surge recedes, a tenant may return to their home to find that their apartment or condo is still standing and habitable – with some repairs needed.  However, what happens when the wind or rain has destroyed some or all of the tenant’s belongings?

A. Renter’s Insurance

Most renter’s insurance policies cover losses related to storm damage.  A tenant should make a claim as soon as possible after the storm passes.  Receipts should be gathered and pictures and video should be taken of the damage.

B. Landlord’s Insurance

If the tenant does not have renter’s insurance, or if it fails to cover all of their personal property, then the landlord may have an insurance policy which provides coverage for any personal property located in the dwelling.

It is advised that you send a written request (with proof that you sent it, along with the time and date) to your landlord for this information.  You should ask for a copy of the policy or the policy number and the name of his or her adjuster.

C. FEMA

Finally, there are claims that can be made through FEMA and its Individual and Household Program (IHP) for some tenant property losses.  This will cover basic necessities like clothing, beds, tables, and appliances.

3.  What Happens If The Landlord Tries to Wrongfully Evict The Tenant After A Hurricane?

Unfortunately, after a major hurricane or superstorm here in Florida, many people find themselves without a place to live.  For landlords, this may be an opportunity for a landlord to evict a “problem” tenant.

However, a tenant cannot be simply forced out of their homes just because there has been a hurricane or major storm event.

Florida eviction statutes apply here just like in any other situation where a landlord wants a tenant to move out.  The landlord cannot change the locks or keep the electricity turned off for the apartment, even if there has been a major weather event (unless, there is legitimate life and safety reason for doing so).

If the landlord does engage in this behavior, then that behavior is considered a wrongful eviction and is illegal under Florida law.  The tenant not only has a legal right to live in their home as provided for in their lease agreement, but the tenant has a legal right to collect damages from the landlord who engages in this activity.

For details, read: Illegal Evictions in Florida

4.  Hurricane Preparations Before The Storm Hits

It may be surprising to some, but Florida law does not impose a legal duty on landlords to rush over to rental properties and board up the windows or otherwise secure the property against the hurricane or storm.

Does a Landlord Have a Statutory Duty to Protect the Property from the Storm?

Tenants may find themselves dealing with landlords that have no intention of making efforts to protect the rental property from harm or destruction from storm surges, flooding, high winds, fires, or debris.

Under Florida law, landlords must keep the premises safe and meet all housing and health codes that apply to the property.  The law also mandates that the home, condo, or apartment be in “good repair” and “capable of resisting normal forces and loads.”

Of course, hurricane force winds are not “normal forces” – they are unusual and catastrophic ones.  If a landlord chooses not to protect their rental property from storm damage, then a tenant has to live with the consequences. This is because under Florida statutes, landlords do not have an obligation to maintain their premises to withstand a hurricane.

Does The Lease Agreement Provide A Duty For The Landlord to Act?

If there are provisions in the lease agreement that mandate a duty upon the landlord, then the landlord must make hurricane or storm preparations on the property.  However, this duty exists only if it has been agreed upon by the landlord and the tenant under the lease agreement.

Can a Landlord Forbid a Tenant From Making Storm Preparations?

The duty to protect the real property falls upon the owner and his or her property manager.  If the owner declines to protect his property, then Florida law does not force him or her to do so.

The tenant has control only over his or her own property/ belongings.  These are the items that he or she moved into the residence, from clothing and computers to washers, dryers, and cars in the garage or car port.

If the lease agreement does not provide for the landlord to make storm preparations on the rental property, then he or she can legally ignore it.  The tenant must do whatever he or she is able to do in order to protect their own possessions.

In addition, the landlord can go so far as to forbid the tenant from taking steps to protect the dwelling itself from the storm.

See, for instance, the interviews with three Palm Beach tenants faced with landlords who planned to do no hurricane preparations on the rental properties before Hurricane Irma, in the Palm Beach Post story, “Hurricane Irma: Do you rent? You could be on your own for shutters.”   And even worse, the coverage in the Miami Herald where the landlord forbid tenants from taking matters into their own hands and boarding up windows, etc., on their apartment complex before Irma hit.

While the law may not require the landlord to take proactive steps to protect the property, rest assured the insurance adjuster will want to know what the landlord did to safeguard the covered apartment complex or condo unit.  (This is called “mitigation of damages” in the insurance industry.)

Read: 6 Tenant Rights That All Florida Tenants and Landlords Need to Know

What Should You Do?

After a major storm or hurricane, a tenant may find that having an experienced Florida tenant’s rights lawyer on their side can be tremendously helpful in negotiating with their landlord and their insurance adjuster (as well as the tenant’s adjuster on their auto insurance policy).

If you are having a problem your landlord or an insurance adjuster after a hurricane, then a good piece of advice is to speak with an experienced Florida real estate lawyer to learn about your rights. Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

_______________

Picture of Larry Tolchinsky

Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.

 

 

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Real Estate Damage Claims After A Major Storm (Hurricane) in Florida

Posted By on September 18, 2017

We all know that living in Florida means having to deal with real property damage claims caused by tropical storms, tornadoes and by the dreaded hurricane(Like 2017’s Category 4 Hurricane Irma).
 

FEMA: Hurricane Andrew Property Damage in Florida


 

Just like any other insurance claim, a claimant (homeowner) should ask themselves the following questions when deciding how to proceed after one of these casualty events occur:

  • Who is responsible to hire someone to repair my property?
  • Who handles the clean-up and removal of my property (including the debris)?
  • What are my coverage limits?
  • How much is my deductible?
  • What about losses from lack of services (water, electricity)?
  • Will insurance cover all of my out of pocket costs?

Other common issues the arise with storm and Hurricane related real estate damage claims include knowing what information to have when filing an insurance claim and how to proceed when the insurance company denies your claim.

Insurance Companies Are Well Oiled Machines

With so much practice, insurance companies have finely tuned systems and protocols in place for dealing with Florida hurricane and storm related real property damage claims.  Therefore, it is important for you to be just as prepared as they are especially when it comes time to deal with the insurance adjuster.

The insurance companies (especially Citizens) want to keep their claims payouts as low as possible because these storms impact their bottom line and, in some instances, impact their solvency.

So, be prepared by having your insurance policies readily available, along with copies of receipts and other evidence of ownership (like pictures and video of your belongings).

Filing An Insurance Claim

Here are a few quick pointers about filing an insurance claim:

You should file your storm damage claim with your insurance company as soon as you can.  Delays in filing a claim can create an issue with your carrier.  For example, if you wait to make a claim related to mold, the insurance adjuster may argue that you contributed to the damage because the delay in acting allowed the mold to spread which increased the damage to the property (meaning, you failed to mitigate the damage – see below).

Also, when filling out the company’s claim form, be sure to fill it out as accurately and as complete as possible. If you make mistakes, or fail to include an element of damage, or lie, then they may dispute their duty to pay your claim.

Additionally, it’s strongly recommended that you take photos of the storm or Hurricane damage when you are first allowed access to the property and are able to assess the damage.  Add these photos to your claim form and make sure they know the time and date that the photos were taken.

Most importantly, keep a copy of your completed claim form and its attachments for your records.  Also, keep evidence of the time and date that you submitted your claim, and how you did so (United States Postal Service, FedEx, hand delivery). Insurance adjusters get countless amounts of claims daily, and these numbers grow immediately following a hurricane. Don’t let the insurance company put your claim on the back burner.

What Damages Can Be Covered By A Florida Insurance Policy?

Residential property insurance is governed by Florida law. With Florida being at such a high risk of damage from a hurricane or tropical storm, insurance companies must offer coverage for damage to your residential property caused by high winds (hurricane windstorm coverage – Florida Statute 627.712) and flooding (banks and mortgage companies are required to make homeowner have this insurance for those in Flood Zones – See FEMA’s Flood Maps).

Wind Damage

Florida statutes mandate that insurance carriers offer home owners coverage for hurricane wind damage.

Citizens Property Insurance, is the state’s insurance company that offers coverage for wind damage for Florida property owners who are entitled to, but are unable to find property insurance coverage in the private market.

Flood Damage

Flooding poses a higher risk for those living in Florida than in other parts of the county. Accordingly, insurance carriers do not offer coverage for flooding and rising water damage under their basic property damage insurance policies.  (Citizens, for instance, does not include flooding in its property insurance policies.)

Florida home owners must get flood insurance coverage through an insurance company that offers flood insurance or through the National Flood Insurance Program, which is operated by the federal government (According to FEMA’s website “You can only purchase flood insurance through an insurance agent or an insurer participation in the NFIP. You cannot buy it directly from the National Flood Insurance Program”).

**Note that flood insurance policies do not begin coverage for 30 days after the policy is effective.

Additionally, those with flood insurance need to make sure that various kinds of water damage are covered in the event of a severe storm in Florida.  For instance, “storm surge” is a particular kind of flooding that happens after a hurricane.  The flood insurance policy language needs to include “storm surge” as part of its coverage. It is not safe to assume that it is covered in every flood insurance policy.

Mitigation Duties

The property owner has a duty to try and keep the damage to the home and residence as minimal as possible.  This “mitigation duty” extends to both before and after the Hurricane hits.

Before the storm,  the property owner has a duty to board up windows to shield them from the anticipated high wind speeds.  Additionally, to minimize the damage that flooding or high water may cause, it is wise for the owner to do things like shutting off the electricity at the breaker before water can come into contact with electrical outlets.

There is also the duty of mitigating damages after the storm hits. If there is property that poses a hazard to human health, then you have a duty to take care of that problem as soon as possible.  The same is true if there is damage that will grow or exacerbate harm to the house or residential property if left unattended.

When taking pictures of the storm, make sure to do so before making any repairs or cleaning up.  This is vital in situations where the home or condo has suffered flooding or has been exposed to the elements because of wind damage.

Timing of Repair

It is natural to want to begin repairs immediately following the storm. However, the insurance adjuster will want to inspect the property damage before repairs are made in order to make his or her own list of damages and to prepare an estimate of the cost to replace or repair the property.

Of course, after a big weather event, there may be some time that passes before the adjuster gets to your property.  If their delay causes additional property damage, then things can become complicated.

For instance, if the insurance adjuster delays going to the residence to assess the damage and mold begins to grow, then the insurance company may be a contributing cause of your damages (the adjuster’s delay allowed for the mold to grow causing additional damage to the property).   Here, you may have a claim against the insurance company for contributing to your damages, which may be a separate claim from the original claim made under your policy (however, don’t forget about your duty to mitigate damages).

Third Party Liability

Another issue with property damage after a major weather event like a hurricane here in Florida is who may be responsible for the damage.  For instance, if a huge tree is uprooted during the storm and falls onto your property, then the owner of the land where the tree fell may share liability for the debris removal and resulting repair.

Similarly, if you own a condo or duplex and your neighbor failed to shut off electricity, causing a fire in your home, then that property owner may be a third party who is liable for the damages to your real estate.

Litigation of Damage Claims

After a hurricane or serious storm, Florida home owners may be faced with the additional stress of the insurance company denying your damage claim.

For instance, whether or not your insurance policy covers flooding after a major weather event is a common issue that may need to be litigated here in Florida.  Was the damage to your property caused by rising flood waters or was it caused by water that entered your home through a damaged roof or broken window?  This is an issue that a trier of fact (either a judge or jury) may need to decide.

Most important information to know here: If your insurance company denies your claim, don’t let your claim it end there. Specific Florida laws were written to protect homeowners who are facing property loss or damage caused by severe weather.

What Should You Do?

If you are having a problem getting your insurance company to pay your home related hurricane damage claim, then a good piece of advice is to speak with an experienced Florida real estate lawyer to learn about your rights. Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

_______________

Picture of Larry Tolchinsky

Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.

 
 
 
 
If you found this information helpful, please share this article and bookmark it for your future reference.

6 Tenant Rights That All Florida Tenants and Landlords Need to Know

Posted By on September 5, 2017

In Florida, residential tenancies are governed by (1) Chapter 83 of the Florida Statutes under what is commonly known as “Florida Residential Landlord and Tenant Act” (see Florida Statute 83.40) and (2) the language in the individual lease or rental agreement between the landlord and the tenant.

These two work together to define the duties of a landlord to a tenant and define the legal rights of a residential tenant here in Florida.  The interaction of this statute with a lease or rental agreement can sometimes make things complicated and costly for landlords.

A complication generally manifests itself when a landlord either ignores or is ignorant of the rights granted to a tenant under Florida’s statutory law.   In these situations, the cost to the landlord can include a variety of remedies for a tenant, including the landlord paying actual and consequential damages, injunctive relief and the payment of the tenant’s attorney fees.
 

Kipling Arms Apartments
Kipling Arm Apartments: State Archives of Florida

 
Here are 6 common examples of rights that tenants have in Florida that landlords sometimes disrespect or disregard:

1.  Tenant Right to Have Residence in Reasonable Condition and Code-Compliant

Under Florida Statute 83.51, residential landlords have a legal duty to keep their residential property in a condition that complies with the requirements of the applicable building, housing, and health codes for that location.

Meaning, a Florida residential tenant has the right to hold a landlord responsible for failing to maintain the premises and keep its component in good repair and in reasonable working condition.

However, if the rental is a single-family home or a duplex, then the landlord may alter or modify some of its obligations in the lease agreement.  If the tenant agrees to the altered language, then the tenant has agreed that the landlord does not need to make provisions for things like extermination and garbage removal.

2. Tenant Right to Security Deposit With Statutory Interest

Florida Statute 83.49 is detailed on how a landlord must handle and protect a tenant’s security deposit, including its return.

The right to have security deposit held in a Florida Banking Institution

First and foremost, a tenant has a right to have their security deposit held in a bank account.  Under Florida Statute 83.49(1), the landlord must deposit the security deposit in a separate interest bearing or non-interest-bearing account in a Florida banking institution for the benefit of the tenant or tenants.

The tenant has a right to have the security deposit kept separately from any other assets of the landlord.  The landlord legally cannot commingle the security deposit with any other funds and cannot use the security deposit in any way.

For interest bearing accounts, the interest the tenant has a right to get on the security deposit is (1) at least 75% of the annualized average interest rate payable on such account or (2) interest at the rate of 5% per year, simple interest.

The right to prompt return of the security deposit

The law mandates that the tenant must get their security deposit back “no more than 15 days” after they move out. The tenant also has a right to be paid the interest on that security deposit for the time that it was with the landlord unless otherwise provided in the lease agreement.

If the landlord wants to keep some (or all) of the security deposit, then the landlord must comply with the detailed instructions of Florida Statute 83.49 which include providing the tenant with a notice that includes the following language pursuant to the statute:

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) .

Read: How to Get a Refund of Your Security Deposit from the Landlord When Renting a Home or Apartment

3. Tenant Right to Proper Written Notice from the Landlord

The tenant has the right to receive a notice in writing of the landlord’s desire to end the residential lease.  Usually, the landlord wants the tenant to leave because the tenant is behind on the rent.  However, there are times when the landlord wants to evict the tenant because the tenant has failed to perform other things listed in the lease.

Whatever the reason, the landlord has to give written notice to the tenant.  Moreover, that written notice must follow certain guidelines or it will not legally be considered proper and effective notice.

For instance, under Florida Statute 83.56(3),(4), the written notice to the tenant from the landlord:

  • Must be delivered by mail or by delivering a copy to the property.
  • Three days has to pass between the date of the notice and any filing of a lawsuit against the tenant by the landlord. Saturdays, Sundays and legal holidays are not counted here.

The written notice must also include specific language that is specified in Florida law. For instance, Florida Statute 83.56(3) provides the following paragraph has to be in the written notice for unpaid rent:

“You are hereby notified that you are indebted to me in the sum of   dollars for the rent and use of the premises   (address of leased premises, including county)  , Florida, now occupied by you and that I demand payment of the rent or possession of the premises within 3 days (excluding Saturday, Sunday, and legal holidays) from the date of delivery of this notice, to wit: on or before the   day of  ,   (year)  .

Signed, (landlord’s name, address, phone number)”

Related: Tenant Defenses to Residential Evictions in Florida

4. Tenant Right to Proper Service of Any Lawsuit by the Landlord

If the landlord decides to sue the tenant, then the tenant has the right to proper service of that lawsuit.  Service of the lawsuit follows the Florida procedures rulesSee, e.g., Florida Rules of Civil Procedure 1.070 and Form 1.902.

Under Florida law, the tenant has the right to proper service of two things: (1) any lawsuit filed by the landlord for eviction and (2) any lawsuit filed to recover unpaid rent or damages.

This must be done via a summons issued by the clerk of the court where the residence is located.  The clerk must be asked by the landlord to issue the summons and to deliver that summons to the sheriff for the county where the residence is located.

Separate summonses are needed for (1) eviction and (2) claims for rent or damages (see below related to the amount of time a tenant has to file an answer to the complaint/lawsuit).  They are then delivered to the tenant along with the formal complaint (the document that initiates the lawsuit) filed by the landlord.

5. Tenant Right to Attorney’s Fees, Court Costs, and Damages

Additionally, it’s important for a tenant to know that Florida Statute 83.48 deals with attorneys’ fees and court costs in any lawsuit brought to enforce the rental agreement or for violation of the Act.

If the tenant sues for violation of his or her rights or is defending against a lawsuit brought by the landlord, and the tenant wins, then the landlord must pay both reasonable court costs and the tenant’s legal fees.  This tenant right cannot be waived by any language in the lease agreement.

Furthermore, under Florida statute 83.55, if the landlord fails to comply with the requirements of the lease agreement or any part of Florida Residential Landlord and Tenant Act, the tenant may recover the damages caused by the noncompliance.

6. Tenant’s Right to Stay in Place after Landlord Files a Lawsuit

Florida law also gives the residential tenant rights in defending against any lawsuit filed by the landlord.  The tenant, for instance, has five days (where the landlord asks for possession or asks to evict the tenant) to twenty days (where the landlord asks for rent damages) to file an answer to the complaint. The time starts on the day that the sheriff serves the summons on the tenant (or it is posted on the door).  Saturdays, Sundays, and legal holidays are not counted towards the deadline.

After Lawsuit for Unpaid Rents

The tenant has the right to assert defenses to the landlord’s allegations.  This can include a Motion to Determine the Amount of Rent to Be Paid into the Registry.  Here, the tenant has a right to remain in the rental until the court decides the matter.  Meanwhile, the rent money is entrusted to the clerk of the court (“placed into the registry”).

After Eviction Lawsuit

Once a tenant files an answer to an eviction lawsuit filed by the landlord, then he cannot be evicted until the civil lawsuit process has finalized.  The landlord cannot force the tenant to vacate the rental until the court renders its decision in the case.

What Should You Do?

If you rent a home, condo or apartment here in Florida and have concerns about your rights as a tenant, then a good piece of advice is to speak with an experienced Florida real estate lawyer to learn about your rights because the law provides for the payment of your attorney fees if the court rules in your favor (which means, in many instances, a tenant will not have to pay any money to a lawyer, unless the lawyer wins their case).

Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

_______________

Picture of Larry Tolchinsky

Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.

 
 
 
 
If you found this information helpful, please share this article and bookmark it for your future reference.

Is Dyck O’Neal Trying To Garnish Your Bank Accounts and/or Wages?   

Posted By on August 22, 2017

Unfortunately, foreclosures are still a common occurrence in Florida. What’s worse is that the financial devastation does not end with losing a home. That’s because banks have the right to purse a “deficiency judgment” against the homeowner when the foreclosure sales proceeds are not sufficient to pay the bank all of the money it is owed under the mortgage.

Collecting on a Foreclosure Deficiency Judgment

When foreclosure sale proceeds are not enough to cover the remaining balance of the borrower’s debt to the bank, then the foreclosing bank or servicing company will likely seek a deficiency judgment against the homeowner. That’s especially true today with unemployment at a historically low rate.

Many years ago, the Florida legislature granted banks and other creditors the power to recover money owed to them by allowing the creditor to garnish the homeowner’s wages and seizing their assets.

 

Twenty dollar bills
 

Who is Dyck O’Neal?

Dyck O’Neal is a national company that makes its money as a debt collector.  Specifically, Dyck O’Neal’s business is to buy bank debt, which includes buying the right to seek a deficiency judgment against homeowners who did not fully repay their mortgage loans.

Over the past few years, Dyck O’Neal has purchased huge amounts of debt from banks all over Florida. Banks are happy to negotiate these deals because their main business purpose is to loan money, not debt collection.  (Dyck O’Neal is so good at their job that the federal government does a lot of business with them. For example. Dyck O’Neal is one of two authorized debt collectors for Fannie Mae.)

Even though banks and other mortgage holders receive less than the full value of the debt they own, they are happy to sell the debt to Dyck O’Neal. Debt collection is not an easy business.  Most of the debt cannot be collected for various reasons, including the debtor having filed bankruptcy.

One of the most common questions we receive about Dyck O’Neal is how are they able to purse a homeowner when they had nothing to do with the loan transaction.  Simply stated, mortgage debt is freely transferable.  Meaning, it can be sold just like any other financial instrument.  Essentially what happens is that Dyck O’Neal buys the mortgage debt, which places them in the shoes of the mortgage debt holder, including having the right to pursue a deficiency judgment and garnishment.

Read: 19 Articles About Florida Deficiency Judgments

Basics of Garnishment

Debt collectors usually first try to resolve debt repayment through negotiation with borrowers by offering payment plans and other similar repayment agreements.  However, if the debt collector can’t work out a deal with a borrower, state and federal law allows debt collectors to take additional actions to retrieve the money they are owed.

One of the harshest debt collection tools for the debt collector is garnishment.   Garnishment allows a debt collector to recover the money it is owed directly from wages or salary owed to the borrower by his or her employer or other third party (like an insurance company settlement check or money held in an investment company).

Under the terms of most garnishment orders, the debtor’s employer is legally required to pay a portion of each pay check to the debt collector instead of the employee.

1. What Does Florida Law Say About Garnishment?

Florida Statute 77.01 provides for a writ of garnishment as a right of every judgment creditor.  Moreover, Florida Statute 77.0305 allows the debt collector to get a “continuing writ of garnishment against salary or wages” of the borrower.

In Florida, this law provides that salary or wages can be taken to satisfy a judgment.  It’s done by the Florida court order called a “continuing writ of garnishment” that is served upon the employer of the person who lost their home in foreclosure and owes the deficiency balance.

This is a legal order signed by a judge.  These orders usually direct a debtor’s employer to make periodic payments of a portion of the salary (or wages) of the borrower to Dyck O’Neal.

This must continue until (1) until the judgment is satisfied or (2) until otherwise provided by court order.

2. Are there Federal Garnishment Laws?

In some situations, federal law does apply to garnishing wages and salary.  For instance, the Consumer Credit Protection Act limits Florida writs of garnishment.

Under the CCPA, Florida garnishments cannot exceed the lower amount of either:  (1) 25% of your disposable income, or (2) the amount that your income exceeds 30 times the federal minimum wage.  In July 2017, the minimum wage was $8.10 per hour (see this chart for updates).

Defenses to Garnishment:

The good news is that garnishment is not automatic and there are quite a few defenses to this type of debt collection effort. Some of which include:

1. Improper Notice of the Transfer of Debt to Dyck O’Neal

When the bank transfers the debt, including the deficiency judgment, to Dyck O’Neal (called an “assignment”), there are statutory requirements that must be followed to notify the borrower that this has occurred.  Under Florida Statute 559.715, Dyck O’Neal (“the assignee”) must give the borrower written notice of the assignment “as soon as practical” after the assignment is made, but “at least 30 days before any action to collect the debt. “

If the notice of the assignment is given past this deadline, then this is a defense against the garnishment. Moreover, if the notice of the assignment is sent before the actual date on the assignment, then this too is a defense to the garnishment action.

2.  Statutory Notice Requirements for Garnishment Are Not Followed

Under certain circumstances, a debtor may be able to argue that Dyck O’Neal did not follow proper procedure when it sought garnishment against the debtor.

For instances, under Florida Statute 77.055, the notice to the borrower must say that he or she must move to dissolve the writ of garnishment within 20 days after the date indicated on the certificate of service in the notice if any allegation in Dyck O’Neal’s motion for writ of garnishment is untrue.

If a debt collector does not strictly follow the letter of the law about notice, then the homeowner may be able to succeed in having the writ of garnishment “dissolved.”

3. Garnishment Action Does Not Apply

According to Florida law, Dyck O’Neal cannot garnish any and all income that comes into the debtor’s possession or control.  There are several revenue sources that are excluded from debt collection efforts, including writs of garnishment.  These are known as “exemptions” to garnishment. A complete list of exemptions are provided below.

4.  Statute of Limitations

In Florida, debt collectors have time limits to collect a debt (usually several years).  However, certain types of mortgage debt is subject to a specific law that makes the time limit to seek a deficiency judgment very short.

To learn more, read our article about the new time limit to collect a mortgage debt related to a residential foreclosure.

Exemptions to Garnishment

Some borrowers and certain types of assets are exempt from a writ of garnishment by Dyck O’Neal.  Some examples of those exemptions allowed under the law include:

1.  Head of Household

For instance, if a debtor provides more than half (51%+) of his or her child’s financial support, then those wages or salary cannot be garnished.  These borrowers are considered to be “head of household.”   However, if he or she makes over $500/week and agrees in writing, then their wages or salary can be garnished.

2.  Exempt Source

Some kinds of income are exempt by law from garnishment.  These include:

  • Social Security benefits
  • Supplemental Security Income benefits
  • Public assistance (welfare)
  • Workers Compensation
  • Unemployment Compensation
  • Veterans benefits
  • Retirement or profit-sharing benefits or pension money
  • Life insurance benefits or cash surrender value of a life insurance policy or proceeds of
  • annuity contract
  • Disability income benefits
  • Prepaid College Trust Fund
  • Medical Savings Account.

Wrongful Garnishment

Debt collectors often improperly seize assets that they are legally not entitled to garnish.  This happens because most debtors do nothing to challenge the garnishment.

It is up to the borrower to assert his or her legal rights to prevent these wrongful garnishment efforts, including:

1.  Answer the Writ of Garnishment

The borrower’s first line of defense is to fight the issuance of writ of garnishment.  The debtor will be served by the court with notice that Dyck O’Neal is seeking a writ of garnishment for the payment of the deficiency judgment.

Once served, there is a time frame within which the borrower should file his or her written answer to the action, which should include any defenses and/or exemption arguments.  If the defenses or exemptions are valid, the court will likely decline to issue the writ of garnishment.

2.  Dissolve the Writ and Seek Damages

If the court grants a Writ of Garnishment and Dyck O’Neal uses the writ to seize funds that are exempt or that are otherwise not appropriate, then the borrower must immediately ask the court for help.  For example, the borrower may be able to pursue a wrongful garnishment claim against Dyck O’Neal which can result in the writ being dissolved and the debtor being awarding damages, including attorney’s fees.

What Should You Do?

Anyone who has dealt with the stress of a home foreclosure understands how difficult and protracted these matters can be.  An experienced Florida Real Estate Attorney can be of great help in dealing with aggressive debt collectors like Dyck O’Neal – especially when you are facing their attempts to take away a part of your paycheck.

If you are facing a garnishment in Florida by Dyck O’Neal related to a foreclosure deficiency judgment, a good piece of advice is to talk with an experienced Florida real estate lawyer to learn about the legal defenses that are available to you. Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

For more on Dyck O’Neal, see:

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Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.

 
 
 
 
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Constructive Notice in a Florida Foreclosure – Archer v. US Bank

Posted By on August 8, 2017

Unfortunately in Florida, foreclosure lawsuits still fill the civil trial dockets and some homeowners are still fighting some of the same foreclosure issues that has plagued our real estate industry for years.  Fortunately, the appellate court has been helping homeowners with some of these issues by finding the banks have gone too far.

Read: Florida Foreclosure Appeal on The Issue of Standing
 
Florida-dca-map
 

An interesting case from the Fifth Circuit Court of Appeals on Service of Process

This brings us to a recent case out of the Fifth District Court of Appeals. The court’s ruling in this case is something that should concern all residential property owners in Florida, especially those fighting foreclosure or those fretting that they may fall behind in their mortgage payments.

This is because this case illustrates that without personal notice to the borrower, the bank could foreclose on the property.

March 31, 2017 Opinion in Archer v. U.S. Bank

In early 2017, the Fifth District Florida Court of Appeals decided that it could not review an order made by a trial court relating to US Bank failing to meet statutory prerequisites for notice.  The homeowner believed his rights were violated because the bank served him by publication rather than by personal service.

The result of the appeal was that the appeals court said it lacked jurisdiction to hear the issue related to a “nonfinal” order.

The full text of this Orange County case can be read online as Archer v. US Bank National Association, No. 5D16-1970 (Fla. Dist. Ct. App. Mar. 31, 2017).

Paul Archer fights foreclosure; there is a substituted bank

The case began when the lender filed a foreclosure lawsuit in Orange County naming Paul Archer as defendant.  Mr. Archer executed a mortgage with this lender and failed to make his required mortgage payments.

At some point, as happens in so many Florida foreclosures, one bank substituted for another. In this case, U.S. Bank National Association (US Bank) substituted in the lawsuit as the party plaintiff.

It wasn’t long before US Bank ran into problems with locating Mr. Archer personally, so US Bank opted to serve him with the requisite notice by publication.

Eventually, Mr. Archer learned of the foreclosure proceeding and hired a foreclosure defense lawyer.  Thereafter, a motion to quash the constructive service by publication was filed by Archer with the trial court.

Motion to Quash Notice as Failing Florida Statutory Requirements

In this motion, Archer argued that US Bank had not done enough to track him down and notify him of the foreclosure lawsuit filed against him.

Specifically, the borrower argued that the bank had failed to meet the notice requirements of Florida Statute  49.031 and Florida Statute 49.041.

The trial court denied the motion to quash the notice.  So, Mr. Archer appealed the trial court’s decision to deny his motion and the appeals court ruled against him, too.

The appellate court opinion was that:Because the nonfinal order did not determine personal jurisdiction over Archer, it is not appealable under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(i), and this Court lacks jurisdiction. We therefore dismiss the appeal.”

Constructive Notice and Service by Publication

When US Bank filed its foreclosure lawsuit, it was required to let the borrower know that the suit had been filed.

According to Florida law, every plaintiff must serve the defendant with an official notice that a lawsuit has been filed.  This is true for every case that is filed in Florida, not only for foreclosure actions.

There are different ways to accomplish this official notice to the defendant.  One of them is through “constructive service” or “constructive notice.”

“Service by publication” is a form of constructive service and is done in foreclosure cases as well as quiet title actions, paternity actions, and more.  See Florida Statute 49.011.

Basically, the Bank, as plaintiff, served the defendant, Archer, with the lawsuit by publishing the notice.

Personal Jurisdiction of the Court

Personal jurisdiction is the courts power, or authority, to bring a person before it to decide issues related to that person.

In order to exercise jurisdiction over a person, the law must be followed closely, including proper notice.

Of course, the requirement of personally serving someone creates a temptation for that person to hide from a lawsuit. That’s why there are procedural rules for service in ways other than personal service of a lawsuit on a party.

Can The Constructive Notice Procedure Be Abused By Banks?

There is a temptation to use constructive notice and move forward in a case without making every effort to track down a defendant in a foreclosure lawsuit.

That’s why there are all sorts of steps that need to be followed by a plaintiff who serves notice by publication. For example, a sworn statement is required under Florida Statute 49.041.  That sworn statement has to explain how a “diligent search” was made to try and locate the defendant in order to serve him or her with the complaint.

In many foreclosure cases, the property is abandoned.  The borrower has moved on, and has accepted that the bank will get a foreclosure judgment and repossess the home.  So, there is no defense to the lawsuit and thus, the borrower doesn’t hire a lawyer and fight against it.

In these cases, the bank often serves the homeowner using constructive notice simply because the borrower has moved outside the state and cannot be found.

The concern with the ruling in Archer v. U.S. Bank is this:  Mr. Archer wanted to defend against the foreclosure lawsuit. It didn’t matter that the bank didn’t use its best efforts to try and locate him.

In Rem versus Personal Jurisdiction

According to the appeals court in this decision, a distinction is made between jurisdiction over the borrower (Archer) and over the property itself.

The court ruled that constructive notice conferred “in rem” jurisdiction for the trial court over the property.  Not jurisdiction over the person of Mr. Archer. – See: Milanick v. State, 147 So. 3d 34, 35 (Fla. 5th DCA 2014); Bedford Computer Corp. v. Graphic Press, Inc., 484 So. 2d 1225, 1227 (Fla. 1986).

In Florida foreclosure lawsuits, the court held that the bank only needs “in rem” jurisdiction because the court only needs authority over the property to file a foreclosure lawsuit. See: NCNB Nat’l Bank of Fla. v. Pyramid Corp., 497 So. 2d 1353, 1355 (Fla. 4th DCA 1986); Also see: Florida Statute 49.011(1).

Can The Bank Get A Deficiency Judgment?

Personal jurisdiction is required by a bank in order to obtain a deficiency judgment against the homeowner.  However, constructive (published) notice is enough for a Bank to foreclose on real property. This was not a deficiency action to collect money owed by the homeowner, it was just an action to foreclose on real property.

What should You Do?

This appellate decision allows a substituted bank to foreclose on property despite a challenge on whether or not it followed the statutory requirements for personally notifying the homeowner of the filing of a foreclosure lawsuit.  After all, notice and the opportunity to be heard are fundamental rights that are enumerated in our constitution.

If you are facing a foreclosure in Florida and you believe you weren’t properly served with the foreclosure lawsuit, a good piece of advice is to talk with an experienced Florida real estate lawyer to learn about the legal defenses that are available to you. Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

_______________

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Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.

 
 
 
 
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2 Cases of Banks Failing to Honor Mortgage Modifications in Florida

Posted By on July 25, 2017

Homeowners have been successful in enforcing mortgage modifications against foreclosing banks in Florida.

Mortgages are Contracts

Home mortgages, just like any other contract, can be changed (or modified) by the parties to the agreement.  Over the last several years, banks have provided countless homeowners the opportunity to save their homes by offering mortgage modifications that lowered the borrowers monthly payments.  Of course, homeowners trying to modify their mortgages and avoid foreclosure assumed that banks would act in good faith and honor the modifications they offered homeowners. However, a lot of times that doesn’t happen

Fannie Mae Flex Modification and HAMP

For instance, you have likely heard of the Home Affordable Modification Program (HAMP).  This was a federal program providing for mortgage modifications of certain kinds of home loans to avoid foreclosure. Many banks and mortgage holders offered HAMP modifications to struggling homeowners due, in part, to incentives offered by the U.S. Treasury to the banks to modify.  However, the program had many problems with execution and the uncertainty of the program led to many broken promises.

Fortunately, in December 2016, HAMP was replaced by the new Fannie Mae Flex Modification.  To see if you qualify for a Fannie Mae Flex Mortgage Modification, click here.

Are All Mortgage Modifications Legally Binding?

Unfortunately, all mortgage modifications are not legally binding.  Before a homeowner commences negotiations for a modification with their bank or mortgage servicer, they should protect themselves and learn the elements of an enforceable mortgage modifications in Florida.

For instance, a letter from a bank to a homeowner that contains information about a notice of interest rate increase on a modified mortgage, where no written mortgage modification had been previously offered, delivered or signed by the borrower, is likely not an enforceable mortgage modification. Generally speaking, bank mortgage modifications are not letters, they are written formal agreements requiring signatures from both the borrower and bank in order to be enforceable.

 

Florida Supreme Court 2017

Justice may mean taking your case to the appellate court for legal review.  Shown: the 2017 Florida Supreme Court, the highest appellate court in the State of Florida.


 

2 Cases of Lenders Failing to Honor a Mortgage Modification

Florida banks and mortgage lenders’ failure to honor formal mortgage modification agreements have become the basis for more and more defenses to foreclosure lawsuits.

Consider the following two cases:

1.  Nowlin v. Nationstar Mortg., LLC, 193 So. 3d 1043 (Fla. Dist. Ct. App. 2016).

In this mortgage modification case, the mortgage lender filed a foreclosure lawsuit against the borrowers even though they never missed a mortgage payment.

What happened was the borrowers got a home loan from BAC Home Loans Servicing in October 2002, which later transferred their loan to Nationstar.  BAC and the Nowlins entered into a formal mortgage modification of their home loan in July 2009.

The Nowlins weren’t behind on their payments when the mortgage modification was signed by both parties.

They received a letter from BAC informing them that their loan modification had been approved, and all they had to do was sign and return two enclosed documents before a notary and return them to BAC via Federal Express.  The FedEx receipt showed BAC received the documents on August 18, 2009.

Under their modification agreement, they were also required to send cashier’s checks for three consecutive mortgage payments. When the last cashier’s check payment was received by BAC, the mortgage modification would become a binding agreement.  The first payment was due on October 1, 2009.

The Nowlins sent cashiers’ checks, which were cashed by BAC on September 9th, November 1st, and December 1st.

Despite the Nowlin’s on time payments and receipts proving such, BAC sent them a letter in December 2009, notifying them that BAC was accelerating their mortgage loan because their August 2009 mortgage payment had not been received.  When they called BAC, they were told their modification had been cancelled.  They sent in paperwork for a second modification and BAC later claimed that paperwork wasn’t in their file.

In July 2014, BAC transferred the mortgage to Nationstar, who then went forward as plaintiff in the foreclosure proceedings.

The Nowlins lost at trial and appealed their case to the Florida Second District Court of Appeals and they won.  The foreclosure lawsuit was held improper and reversed.

The appellate court held that there was a valid modification agreement between BAC and the Nowlin’s and therefore the foreclosure was wrongful.

In its offer to the Nowlins, BAC specifically outlined what actions would constitute an acceptance of its offer to modify the mortgage contract. The Nowlins were required to (1) sign and return the documents provided by BAC, and (2) make three monthly payments beginning on October 1, 2009. The Nowlin’s provided evidence through FedEx receipts and bank documentation which showed they did both these things.

Under Florida contract law, the Nowlins’ acceptance of BAC’s offer to modify the original home loan was effective upon mailing of the payments and not upon receipt. (See: Morrison v. Thoelke, 155 So.2d 889, 905 (Fla. 2d DCA 1963).)

Basically, Nationstar’s argument was that it had no record of receiving the loan modification documents. The bank tried to rescind the offer of a mortgage modification before the Nowlin’s accepted the deal. Fortunately for the Nowlin’s the court ruled that acceptance occurred at the time of mailing, not at the time the bank received the paperwork and payments.

2.  Kuehlman v. Bank of America, NA, 177 So. 3d 1282 (Fla. Dist. Ct. App. 2015).

In this mortgage modification case, the borrower fell behind on his mortgage payments and entered into a loan modification.  Unfortunately, the borrower fell behind on his payments again, but the bank accepted the payments.  Thereafter, the bank filed foreclosure.

Result:  Bank of America filed a foreclosure lawsuit and won and the Borrower appealed.  The appellate court reversed the lower court’s foreclosure judgment finding that there was a legally binding modification of the mortgage.

Here’s what happened:  The home owner was behind on his mortgage payments and was offered a mortgage modification by the Bank, which had a deadline.

The borrower accepted the offer and returned all of the paperwork to the Bank.  He also included a payment for the new amount required under the agreement. Both were past the deadline stated in the offer.

He then continued making the revised payments under the modification agreement.  He made six more, which were all late.  However, all these late mortgage payments were accepted by the Bank and were cashed by the lender.

Many months later, the Bank got a notice from Fannie Mae (or Freddie Mac) instructing the Bank to reject the modification.

The Bank accepted two more payments from the Borrower after it received this notice.

Then it notified the borrower it was accelerating the mortgage, and gave the Borrower an opportunity to cure his default based on the original mortgage terms.  After that, it filed a foreclosure action.

The Bank argued that the Borrower failed to meet the deadline in the original modification offer, so the borrower failed to timely accept the offer.

According to the appellate court, when the Bank accepted the late paperwork as well as the late modified mortgage payments, there was a valid modification.  In contract terms, the Bank had accepted the Borrower’s counteroffer.

Are You Having a Problem with a Mortgage Modification?

A mortgage modification is a great opportunity for a homeowner to reorganize their finances. If the parties adhere to the terms of the agreement, the new mortgage terms should make living in the home more affordable for the homeowner, assuming, of course, that the bank actually honors the deal.

With that said, if you are offered a mortgage modification by your lender, then it is a good idea to follow the terms of the deal very closely. Document and make copies of any paperwork sent to the bank, and be sure to include a date on all paperwork. That way, you should be able to avoid any issues with the bank because as you can see they try to find all kinds of reasons to not honor the deal.

If you are having a problem with a mortgage modification in Florida, a good piece of advice is to talk with an experienced Florida real estate lawyer to learn about your rights.  Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

You May Also Be Interested In:

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Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.

 
 
 
 
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What is Normal Wear and Tear Relating to a Tenant Security Deposit?

Posted By on July 11, 2017

Knowing whether or not damage is caused by “normal wear and tear” impacts how much money, if any, the landlord can deduct from the tenant’s security deposit. 

Security Deposits When Renting A Home In Florida

In Florida, most residential landlords will likely ask their tenants for money as security for their tenant’s future obligation to pay rent and maintain the premises. That security money is “on deposit” with the landlord. Meaning, it is not the property of the landlord and therefore the landlord has a legal obligation to keep the money safe.

In fact, the Florida legislature passed a specific law controlling how security deposits are to be safeguarded for residential tenants.

Florida’s Security Deposit Law

Florida Statute 83.49 controls residential security deposits and the duties of a landlord to protect and return that money to the tenant. If the landlord fails to obey this law, then the tenant can sue the landlord in a Florida court of law. If the tenant wins, then the landlord will have to return the security deposit to the tenant, pay the tenant’s court costs, and pay the tenant’s legal fee.

See: Florida Statute 83.49(3) (c).
 

Shoredrive

Shore Drive Apartments: designed and built by noted Florida Architect, William B. Harvard, in 1970.


 

What Is A Security Deposit?

A security deposit is a sum of money the tenant pays to the landlord in advance of taking possession of the property.  This deposit can serve several purposes, but one of the main reasons is to compensate the landlord for excessive wear and tear caused by a tenant.

Under Florida law, the landlord is required to keep this deposit money safeguarded in a separate account.  Unless he or she can prove a valid exception, the landlord is legally bound to return this deposited money to the tenant when the lease is over and the tenant lawfully vacates the premises.

Read: How to Get a Refund of Your Security Deposit from the Landlord When Renting a Home or Apartment

What Is “Normal Wear and Tear” Under Florida Law?

Florida law recognizes that the condition of an apartment and its fixtures (appliances, wall and window coverings, carpets, etc.) will deteriorate over time.  For example, curtains will eventually fade because of sun exposure, and hanging pictures and mirrors will result in leaving holes in the walls. For this reason, a landlord is generally not permitted to keep any amount of a security deposit just because the premises and its contents are in need of repair, replacement or maintenance.

Under the law, “normal wear and tear” is not considered causing damage to property. Meaning, the reduction in the value of property caused by normal wear and tear cannot be deducted from a  tenant’s security deposit.

For instance, in a 2011 Broward County case, the tenant won a lawsuit against the landlord over failure to return the security deposit.  The landlord deducted the cost of carpet cleaning; general cleaning of the home and driveway; and painting of the interior, from the security deposit.

The court ruled that these expenses were “normal wear and tear” and the cost to address these issues should not have been deducted by the landlord from the tenant’s security deposit.  See, Burley v. Mateo, 18 Fla. L. Weekly Supp. 624a (Broward County 2011).

Examples of Normal Wear and Tear

Paint on the walls of an apartment will fade and get dirty over time. This is a naturally occurring condition which isn’t caused by a tenant.  As part of ordinary maintenance, a landlord should freshen up an apartment with a new coat of paint every time a new tenant occupies the premises.

In addition,  carpets fade and tear over time.  Flat, worn or discolored carpet does not mean that the tenant actively damaged the apartment.  Rugs don’t last forever.

Other instances of “normal wear and tear” may include (1) rust in an oven; (2) grease in a stove hood; (3) interior doors not properly closing; (4) toilets leaking and (5) pin holes in the wall where picture frames were hung.

If the lease does not define what is considered to be “normal wear and tear,” or what the tenant is expected to do at “move out,” then Florida common law (the rulings of past court cases) will control how a dispute will be resolved.

As a result, most Florida leases will have language detailing what the landlord expects the tenant to do when vacating the premises.  For example, the tenant may be asked to pay for the carpet to be professionally cleaned.

**Read your lease for how “normal wear and tear” may be defined for your apartment, house, or condo.**

Can a Landlord Keep the Tenant’s Security Deposit Because of Normal Wear and Tear?

There are many instances where a landlord is allowed to keep a tenant’s security deposit, in whole or in part, to pay to repair or replace items damaged by their tenant.  However, the damage must go beyond normal wear and tear.

Florida’s security deposit law exists to not only protect tenants but it also allows landlords to sue the tenant for damages over and above the amount of the security deposit, if need be.

Examples of Damage by a Tenant That Is Not Normal Wear and Tear

Damages by a tenant can be anything that harms the landlord’s property.  If the tenant’s grandchildren knock a hole in the clubhouse wall, or break a window, then the tenant is liable for the repair.  If the tenant fails to repair the damage, then the landlord may be able to do so on its own using the tenant’s security deposit.

If the tenant is a hoarder and the landlord has to go to special lengths to clean the premises, then those costs can be deducted from the security deposit.  The costs of cleaning a filthy apartment and removing debris and trash, including conditions caused by house pets, can be deducted from the security deposit.

Another example of damage by the tenant is replacement of carpets and drapery because of the tenant’s excessive smoking.  If the tenant’s smoking has left a permanent odor of stale cigarettes in the curtains and rugs, this can be considered excessive wear and tear.  Meaning, the costs to clean, and even replace, these items can be deducted from the security deposit.

Notice A Florida Landlord Must Give In Order To Withhold Any Part of A Security Deposit For Damages To The Property

For tenants who have already signed a lease, or those who are fighting for the return of a security deposit after they’ve vacated the apartment, Florida Statute 83.49 provides guidance.

Under this Florida law, there are specific time limits for the landlord to withhold the security deposit from a tenant.   Florida Statute 83.49 requires the landlord:

  • to return the security deposit within 15 days of the lease termination / vacating of the premises.
  • to give the tenant written notice by certified mail to the tenant’s last known mailing address within 30 days of the lease termination / vacating of the premises of his intent to impose a claim on the security deposit. The written notice must explain the landlord’s reason for imposing the claim.

Moreover, the landlord’s written notice has to include the following language (or something substantially similar):

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).”

What Should You Do?

Before signing a lease, a tenant should read their lease carefully, paying specific attention to the section about the use and protection of their security deposit. This provision can and should be negotiated before the lease is signed, including clearly stating whether or not the tenant is responsible to clean the carpet and/or patch the walls at the end of the lease.

If you are having a problem with your landlord returning your security deposit because of normal wear and tear a good piece of advice is to speak with an experienced Florida real estate lawyer to learn about your rights.

The good news is that Florida law provides for the payment of attorney fees in the event the landlord is found to have improperly kept a tenant’s security deposit (which means, in many instances, the tenant will not have to pay any money to the lawyer, unless the lawyer wins the case). Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

Also See: Tenant Defenses to Residential Evictions in Florida

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Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.

 
 
 
 
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Partition of Florida Homestead Property

Posted By on June 27, 2017

In Florida, “homestead property” is residential real estate which is occupied by a person or family as their permanent residence.

The legal concept of “homestead” is provided by the Florida constitution.  Its purpose is to stop the family home, or homestead, from being sold to pay off debts incurred by the land owner.  Tullis v. Tullis, 360 So. 2d 375 (Fla. 1978).

As explained by the Florida Supreme Court, the law recognizes three kinds of homestead protections:  (1) homestead tax exemption; (2) homestead protection from sale by creditors; and (3) homestead restrictions on the sale or devise of the property by a co-owner.    Snyder v. Davis, 699 So. 2d 999, 1001-02 (Fla. 1997).

 

Constitutional Protection of Florida Homestead Property

The constitutional protection afforded homestead property is a part of the Florida Constitution under Article X, Section 4

Of particular importance is section 4(a) of this constitutional provision, which states

(a) “There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon…”

As a general rule in Florida, a creditor of a homeowner cannot partition or force the sale of property if the property has “homestead” protection (exceptions include mortgage holders, construction liens and liens for ad valorem real estate taxes).

However, there are exceptions. For example, certain co-owners can “partition” and force the sale of the homestead property to a bona fide purchaser.

What is a Partition?

A partition of real estate involves breaking the property into separate ownership interests.  That means, legally dividing the property to terminate the shared ownership and forcing the sale of the real estate.

For more detailed information about Florida partition lawsuits, read:

Partition of Florida Homestead Property

In order avoid violating the Florida Constitution, Chapter 64 of Florida Statutes along with Article X, Section 4 must be followed when it comes to partitioning Florida homestead property.

Real Estate Owned By Husband and Wife

The general rule for a Florida homestead is if both husband and wife are living, then the homestead property can only be sold if they both sign a deed. Furthermore, a creditor of either of them, or both, cannot force the sale of the homestead. That protection from the forced sale of the property is the essence of the homestead protection. This is true even if just one of their names appears on the deed.

Why?  In Florida, when a married couple buys or owns a home or condo which they use as their residence, then under the Florida constitution the homestead protection against the forced sale of the property attaches to the property.  It doesn’t matter if they bought the property together or one person owned the property before they are married. Once they are married, and they reside in the property, the homestead interest attaches to the property preventing the forced sale of the property.

Can one spouse force another spouse to sell the home? Can one spouse sell the homestead without the other spouse’s permission? 

The simple answer is no, the property can only be sold if they both agree and they each sign a deed. However, there is a way for one spouse to force the sale of the family home: the husband and wife can get divorced.  In the event of a divorce, the ownership interest changes to “tenants in common” which means each party has a separate transferrable interest in the property.

Read: How Do You Terminate The Joint Tenancy of Florida Real Estate?

Can A Co-Owner of Real Estate, Who Is Not Married To The Other Co-Owner, Use The Homestead Protection To Prevent The Partition of The Property?

Married couples are not the only ones who can share a joint interest in residential real estate in Florida.  Business partners or heirs of an estate can jointly own real estate.  These non-married parties can co-own real estate in Florida as “tenants in common” or as “joint tenants with right of survivorship.”

Even in these situations, the homestead protection can still be used to protect the property from a forced sale by a creditor even though the co-owners are not married (at least a portion of the property can be protected – that portion used by a co-owner as their primary residence).

(Note: The Florida Constitution does have a requirement for the use of the homestead protection against the forced sale and that is that the protection applies to real estate owned by a human being (a “natural person”) and not a corporation or LLC.)

So, can a co-owner who isn’t married use the homestead protection against the other co-owner to prevent the forced sale or partition of the property?  If the homestead protection applies to one of the co-owners, then how can their co-tenant partition and force the sale of the real estate?   

This issue was addressed in Tullis v. Tullis, 360 So. 2d 375 (Fla. 1978).  There, the Florida Supreme Court held that the Florida “constitutional provisions allow the partition and forced sale of homestead property upon suit by one of the owners of that property.”  There is nothing in the law that prevents a co-owner “from suing for partition and obtaining a forced sale in order to obtain the beneficial enjoyment of her interest in the property.” Tullis, 360 So. 2d at 375.

Also see, Wescott v. Wescott, 487 So. 2d 1099 (Fla. Dist. Ct. App. 1986).

In Tullis, Don and Shirley Tullis were a married couple who owned their home here in Florida.  Don’s young daughter from a prior marriage lived with them.

Over time, they decided the marriage wasn’t working, so they filed for divorce.  Don and his daughter stayed in the home and Shirley moved out.  Their divorce decree didn’t explain how their family home would be handled, ownership-wise.  So, Shirley filed a new lawsuit to partition the property so it could be sold.

Don fought against Shirley’s partition, arguing that the homestead protections kept her from forcing a sale of the home.  Everyone agreed that the property couldn’t be divided. Meaning, it would have to be sold if Don wouldn’t buy out Shirley’s interest.

Shirley won at both the trial level and at the appellate level.  Then, the Florida Supreme Court ruled in her favor as well.

The Florida Supreme Court pointed out that the couple had divorced and now they were two common owners of the real estate.

Therefore, they were now like any other co-tenants; meaning, Shirley could sue for partition and force the sale of the land.

Are You Considering Partitioning Homestead Property in Florida?

If you own a home or condo in Florida and share an ownership interest, then you need to know if any kind of homestead protection applies to your real estate.

  • If it does, then are you prohibited from selling it?
  • Are you protected against creditors forcing a sale?

If you are thinking about partitioning your residential real estate, then a good piece of advice is to speak with an experienced Florida real estate lawyer to learn about your rights. Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

Want more information on partition actions under Florida law?  Check out our resource page on partition lawsuits, and feel free to download and study our sample partition complaint.

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Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.

 

 

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Ocwen Filing Bad Foreclosure Lawsuits: Is Ocwen Servicing Your Mortgage?

Posted By on June 13, 2017

Ocwen is being accused of overcharging borrowers and is being sued (again) by regulators.

Based in West Palm Beach, Ocwen promotes itself as “one of the leading mortgage servicing companies in America.” That’s not an exaggeration: Ocwen services a lot of mortgages here in Florida.

However, lawsuits filed against the company are on the rise, alleging that the company has been engaging in illegal practices. Here’s what you need to know if you have (or had) an Ocwen mortgage.

 

Seal of the Attorney General of Florida

In the April 2017 lawsuit, Florida AG seeks to bar Ocwen from doing business in the state.

 

What is a Mortgage Servicer?

A mortgage servicer collects mortgage payments and performs other related services like collection efforts, paying real estate taxes and insurance premiums.  Additionally, servicers have the power to file a foreclosure lawsuit against the borrower for failing to make timely payments, as well as other breaches of the mortgage.

Some mortgage servicers also provide loan modification programs to help struggling home owners avoid losing their homes to foreclosure.

What Does Ocwen Do For Florida Home Owners?

Ocwen is a major player in Florida residential real estate financing.  This is because after the 2008 Foreclosure Fraud Crisis, Ocwen bought huge amounts of subprime home loans from Florida lenders anxious to avoid loans considered to be at high-risk of default and foreclosure.

Ocwen continued to build its mortgage servicing empire from there.  Today, it not only services existing mortgages, but originates home loans and offers reverse mortgages.

It advertises itself as a leader in helping “families stay in their homes” with loan modification programs. Ocwen provides more home loan modifications under the HAMP program that any other lender.  It’s no wonder it’s dubbed the country’s “sub-prime mortgage giant” by Bloomberg.

New Lawsuits Filed by Federal Government and State of Florida

Ocwen may be a residential financing powerhouse here in Florida, but that doesn’t mean it can get away with violating the law.

1.  Federal Lawsuit against Ocwen for Illegal Foreclosures and More

A few weeks ago, the federal government filed a lawsuit against Ocwen for violation of federal regulations in how the company was servicing mortgages.  According to the Consumer Financial Protection Bureau (CFPB), Ocwen had been:

  • illegally foreclosing on homes;
  • failing to credit mortgage payments to loan accounts;
  • adding their products onto their borrowers’ accounts (even though the borrower didn’t approve or know of the additional fees or costs).

Read the 93 page federal complaint here.  It is filed in the United States District Court for the Southern District of Florida, West Palm Beach Division, as Case No. 9:17-CV-80495 with Ocwen Financial Corporation and its subsidiaries Ocwen Mortgage Servicing, Inc., and Ocwen Loan Servicing, Inc., being named as defendants.  It is based upon federal law.

2.  State Lawsuit against Ocwen for Deceptive Trade and Mortgage Servicing Misconduct

Shortly after the CFPB filed its lawsuit, the State of Florida filed a separate lawsuit, alleging “mortgage servicing misconduct” in violation of state laws.  This new lawsuit was filed by the Florida Office of Financial Regulation (FOFR) and Pam Bondi, Attorney General for the State of Florida based upon alleged violations of state law.

According to the complaint, Ocwen violated the Florida Deceptive and Unfair Trade Practices Act, the Florida Real Estate Settlement Procedures Act, and Chapter 494 of the Florida Statutes.

Read the 49-page state complaint here.

FOFR alleges that Ocwen (1) filed illegal foreclosures, (2) mishandled loan modifications, (3) misapplied mortgage payments, (4) failed to pay insurance premiums from escrow and (5) collected excessive fees.

3.  Ocwen’s Response

Ocwen denied that any wrongdoing occurred on its part.

The company issued a statement stating that these claims are unfounded and that it works to help borrowers, not hurt them. 

For details, check out the Housing Wire coverage of Ocwen’s defense stance.

What about the 2014 Settlement between Ocwen and Regulators?

In 2014, both the CFPB and 49 states (including Florida) sued Ocwen for bad mortgage practices, which ended in a settlement.

In that settlement agreement, Ocwen paid a $127 Million fine as well as providing another $2 Billion in relief to consumers harmed by its actions.

  1. This meant that Floridians with foreclosures between January 1, 2009 and December 31, 2012, would be sent money in settlement by the Settlement Administrator, as well as being able to seek additional monetary relief in their own lawsuits against Ocwen should they choose to do so.
  2. After this 2014 settlement, Ocwen continue to operate as a mortgage servicer in Florida and the rest of the country. The deal didn’t bar Ocwen from continuing to do business.

Now, according to the Florida Attorney General and the CFPB, Ocwen has persisted in unlawful practices.  So, the new lawsuits have been filed for “pervasive and systemic” problems in its operations.

Bondi’s office also wants a federal court order that bars Ocwen from servicing mortgage loans here in Florida.

From Pam Bondi:  “Enough is enough. Florida’s distressed Ocwen borrowers should no longer have to endure costly servicing errors and unfair practices.”

10 Things You Should Know If You Have (Or Had) A Mortgage Serviced By Ocwen

As described in the 2017 complaints, Ocwen allegedly has engaged in the following (many borrowers are unaware that these things are happening):

  1. Ocwen has loaded wrong information and inaccurate data into its internal loan servicing system, called REALServicing. It is servicing home loans based upon erroneous information.
  2. Ocwen has been illegally foreclosing on home owners. In the federal lawsuit, Ocwen is alleged to have wrongfully foreclosed on at least 1000 borrowers.  This has happened in several ways, including foreclosing on borrowers who were complying with their new loss mitigation agreements.
  3. Ocwen has illegally sold homes at foreclosure sales.
  4. Ocwen has not credited payments to mortgages.
  5. Ocwen has not sent borrowers accurate statements on mortgage balance, total payments received, etc.
  6. Ocwen has mismanaged escrow accounts including those that hold payments made toward property taxes.
  7. Ocwen has failed to pay insurance premiums for borrowers that were to be paid out of the escrow accounts.
  8. Ocwen has mismanaged private mortgage insurance (PMI) plans for borrowers and borrowers have overpaid.
  9. Ocwen has enrolled borrowers into its own products without their consent and collected payments from them (deceptive trade).
  10. Ocwen has mismanaged mortgage accounts involving borrowers who have passed away, including failing to recognize legal heirs and beneficiaries interests and foreclosing on the decedent’s home despite the probate process.

What can you do If You Have Had Dealings With Ocwen?

If you make your mortgage payments each month to Ocwen, then should you be concerned?

If you have…

  • a current home loan, then the lawsuits suggest that there may be issues with mortgage balance, your escrow account, or add-ons that you never agreed to buy.
  • been subject to an Ocwen foreclosure, then were you a victim of a wrongful foreclosure? Your file will need to be reviewed for legal errors and omissions under state and federal law.

…then you may want to consider one of the following:

1.  File Complaint with Regulators

Florida homeowners with concerns about Ocwen mortgage servicing are invited to file a complaint with the Florida authorities at MyFloridaLegal.com or by calling (866) 9-NO-SCAM.

Federal complaints can be filed at FLOFR.com or by calling (850) 487-9687, selecting Option 1.

This will enable you to share in any settlement proceeds that may result from the new litigation.

2.  Consider Independent Legal Action

If you feel you’ve been affected by the wrongdoing of Ocwen’s mortgage servicing, you may want to consider filing your own lawsuit and recovering your damages.

What Should You Do?

An experienced Florida Foreclosure Defense Lawyer can help you determine the viability of your claims and how best to proceed.   The complaints filed with the government cannot replace filing your own civil claim.

If you are facing an Ocwen foreclosure in Florida, a good piece of advice is to talk with an experienced Florida real estate lawyer to learn about the legal defenses that are available to you. Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

Please note:  Not every Ocwen mortgage will have violations and not every Ocwen foreclosure will be wrongful.  But the only way to determine if you have been a victim of the acts alleged in these two new regulatory lawsuits is to review your individual circumstances and the actions that Ocwen has taken regarding your loan.

For more on wrongful foreclosure, check out the following:

Did Your Foreclosure Violate the Law? Are You a Victim of Wrongful Foreclosure?

Can You Collect Attorney Fees From a Bank Related To A Foreclosure?

_______________

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Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.

 
 
 
 
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New Florida Condo Law: Bad Condo Boards Face New Criminal Charges

Posted By on May 30, 2017

In a bipartisan manner the Florida Legislature passed an important change in how condo boards and condominiums are to conduct themselves here in the Sunshine State.  This new legislation addresses some important issue for South Floridians and includes criminal consequences for Condo Boards that do bad things.

 

South Palm Beach condominium lakeside

 

Florida Senate Bill 1682 Amends Florida Statute 718.111

Once signed by Florida Governor Rick Scott, the changes to the Florida Condominium Act will be effective within a matter of weeks.

Florida SB1682 will be effective on July 1, 2017, as an amendment to Florida Statute 718.111, as follows:

  • prohibiting an officer, director, or manager of a condominium association from soliciting, offering to accept, or accepting a kickback for which consideration has not been provided;
  • prohibiting an association from hiring an attorney who represents the management company of the association;
  • requiring the Division of Florida Condominiums, Timeshares, and Mobile Homes to maintain and provide copies of financial reports;
  • authorizing, rather than requiring, the division to employ full-time attorneys to conduct certain arbitration hearings; and
  • prohibiting specified parties from purchasing a unit at a foreclosure sale resulting from the association’s foreclosure of association lien for unpaid assessments or from taking a deed in lieu of foreclosures, etc.

Read the text of the new law (amended Florida Statute 718.111) here.

1. Condo Board Members Can Be Arrested for Violating a Criminal Statute

Under this new law, Florida condo board members can face criminal action for certain behavior that has plagued condo owners for years. A prosecutor in the local state attorney’s office will have the power to prosecute a condo board member after that member has been arrested and charged for things like:

A. Kickbacks

The Condo law has been amended so that kickbacks are added into the statute.  Not only are kickbacks to a Condo Board Member to be considered subject to a civil penalty under Florida Statute 718.501(1)(d), taking a kickback is also defined as a crime in Florida Statute 617.0834.

B.  Voting Fraud

Under the new Condo Law, if there is a forged ballot or voting certificate in a condo election, then it is a crime punishable under Florida Statute 831.01, the state criminal law against forgery.  If found guilty, the convicted Condo Board Member will be sentenced for committing a felony of the third degree.

C.  Taking Condo Association Funds

Theft or embezzlement of condo funds is defined as a crime punishable under Florida Statute 812.014, the state criminal law against theft.  If the amount in controversy (taken or stolen) is high enough, then the convicted Condo Board Member faces sentencing for a felony of the first degree.

Using the Condo Association’s debit card (either in the name of the Condo Association or billed directly to the Condo Association) for anything other than an association expense can be charged and prosecuted as credit card fraud pursuant to Florida Statute 817.61. Over $100 and this becomes a felony of the third degree.

D.  Destroying or Hiding (Withholding) Condo Association Records

Under the new Condo Board crime law, any Condo Board member that destroys an official document or record of the Condo Association “in furtherance of a crime” commits a crime.  Depending upon the circumstances, that may be a charge of either (1) tampering with evidence as provided in Florida Statute 918.13 or (2) obstruction of justice as provided in Florida Statute 843.02.

Tampering with evidence is a felony of the third degree; obstruction is a misdemeanor of the first degree.

E. Additional Provisions

The new Condo Board law does more.  There are provisions in the new law that:

  • outlaw the Condo Board members from buying condo units other than time shares that have been foreclosed upon by the Condo Association for unpaid assessments;
  • bar the Condo Board from hiring the attorney who represents the Condo Association’s management company; and
  • give renters of condo units the right to inspect and copy the Condo Association’s Bylaws and Rules.

2. Removal of Condo Board Members

What if the Condo Board Member fails to adhere to the new statute?  What can the condo owners do – do they have to go to court and get help from the judge?

Under the new Condo Law, any Condo Board Member that fails to obey the terms of the statute must be removed from the Condo Board.  This can happen even if the Condo Board Member later proves that he or she was not in violation of the statutory language.

A. If Charged With Crime, Condo Board Member Must Be Removed From Board

The law goes further than defining the criminal activity here.  It also states that any Florida condo board member who is charged with a crime defined in the amended statute must be taken off the condo board.

Just getting charged requires removal, not conviction.

B. Mere Failure to Provide Access to Financial Records Means Removal

Now, Florida Condo Boards must keep official condo association records open for association members.

If a member of the condominium association is denied access to condo financial records by a condo board member, then the board member must be removed because they are in violation of the new condo law.

Denying access to the condo records is enough to get the Condo Board Member removed from the Condo Board.

C. Reinstatement of Charged Condo Board Members

If the condo board member is later cleared of wrongdoing and found innocent, then he or she can be reinstated to the condo board.

Read: Common Lawsuits Against Florida Condominium Boards

It Started With Media Expose by el Nuevo Herald/Univision 23

According to reports by the Miami Herald, this new Condo Board Law comes after members of the Florida Legislature were shocked by the expose on Condo Board abuses by reporters Brenda Medina and Enrique Flor.  See, “Good law goes after condo abuses,” an editorial published on May 1, 2017, by the Miami Herald Editorial Board.

You can read part of that expose here, detailing how Miami-Dade condo unit owners discovered their names had been forged on ballots electing the Condo Board Members, among other things.

Condo Owners Given Power in New Legislation

It’s well known that there have been longstanding abuses by those in power on Florida Condominium Association Boards.  Condo owners have been frustrated by their inability to fight back and shocked at how blatant some of these Board Members are in abusing their powers.

Now, Florida Condo Board members can be held to account for their actions.  Renters as well as owners have more control over their lives now.

What Should You Do?

If you or a loved one live in a Florida condominium and have an issue or controversy with the Condo Association or the Condo Board, then having an experienced Florida Condo Lawyer to help you investigate and advocate on your behalf can be invaluable.

A good piece of advice is to talk with an experienced Florida real estate lawyer to learn about your rights. Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

For more on Florida Condominium issues, see:

_______________

Picture of Larry Tolchinsky
Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.
 
 
 
 
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