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

Florida Supreme Court Gives Final Word on Bartram and Foreclosure Refiling

Posted By on May 16, 2017

Last fall, we discussed the Florida Supreme Court’s decision in the Bartam case relating to foreclosure lawsuit deadlines Our article explains in detail the Supreme court’s opinion and it’s practical effect on foreclosures in Florida. Specifically, the case addressed the issue of the lawfulness of a mortgage holder refiling a foreclosure lawsuit, as well as other related issues (including the application of Florida’s Statute of Limitations).

However, the decision was not final. That’s because the borrowers asked the Florida Supreme Court to reconsider their ruling by filing a “motion for rehearing” of the matter.
 
Seal of the Supreme Court of Florida

 

What Is A Motion For Rehearing?

In a motion for rehearing, a moving party (in this case, the Plaintiff) is required to address with particularity the points of law or fact that, in its opinion, the court has overlooked or misapprehended in its decision. See Florida Rules of Appellate Procedure – Fla. R. App. P. 9.330.

Until a court rules on a rehearing motion, a case is not final. However, once a decision is final, it becomes the law of the land and is legally binding on all those owning real estate in Florida.

Read: Court Procedures That Can Delay Foreclosure

What Happened With The Motion for Rehearing in Bartram?

On March 16, 2017, the Florida Supreme Court denied the Motion for Rehearing filed in the Bartram case. Read it here.

However, the Florida Supreme Court did issue a “corrected” opinion in the case. The correction only involved adding names of some lawyers who were representing parties in the case. (See the Notice of Correction here..)

This means that the ruling made by the State’s Highest Court back in November still stands and it is now settled law in Florida that a bank can refile a foreclosure lawsuit even when a prior case has been dismissed.

Do You Have A Question About A Foreclosure Lawsuit?

If you are facing a 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.

The Bartram opinion does not mean that the bank automatically wins its foreclosure suit.

For more on foreclosure defenses and related issues, see our prior discussions:

 

_______________

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.

What Does The 2017 FHFA Foreclosure Prevention Report Mean For Florida Homeowners?

Posted By on May 2, 2017

It is important for Florida homeowners to be aware of their rights when it comes to their residential real estate. After all, it is likely the largest investment most Americans will make in their lifetime. It’s a key motivation for our articles on this blog. This is true whether the issue relates to:

Each piece of Florida real estate is unique and so are the circumstances of most real estate matters. Having a general understanding of Florida’s real estate laws are essential in today’s complex world.

However, knowing the law is not enough to protect that investment. Homeowners also need to be aware of the current economic conditions and how that impacts some key players, including mortgage lenders.

Be Aware of Financial Conditions

Knowing the current financial and economic conditions can be critical to the successful resolution of any residential real estate issue with a lender. This is true both before and after a potential lawsuit is filed.

Experienced Florida real estate lawyers recognize this fact and try to use this information to benefit their clients, especially when it comes to dealing with a foreclosure and loss mitigation.

So, where can you find reliable foreclosure information?

 
US-FederalHousingFinanceAgency-Seal

 

Federal Housing Finance Agency (FHFA) Data

One key source for information on residential real estate financing in Florida are research reports published by the federal government. They are free and available online to the public.

One example is the February 2017 Refinance report.  Another is the Foreclosure Prevention Report.

Foreclosure Prevention Report

The Foreclosure Prevention Report (FPR) is published by the Federal Housing Finance Agency (FHFA). It provides vital data regarding the residential mortgage industry as well as the condition of the financial mortgage market. It gives information that is specific to the State of Florida as well as our southern region and for the entire country.

Specifics are contained in FHFA reports that can help sway a mortgage lender to make a deal with a borrower, or sway a seller to drop their price.  For instance:

1. Mortgage Rates

We know from the latest FPR that the average interest rate on a 30-year fixed rate mortgage rose from January to February 2017 (from 4.15% to 4.17%).

Based on these facts, we know that residential mortgage interest rates may continue to rise during in 2017. This may persuade a seller to be more flexible with the sale price of their home.

2. HARP Refinancing of Underwater Homes with Current Mortgages

We’ve discussed HARP refinancing of residential home loans before.  HARP stands for the “Home Affordable Refinance Program.”

It is a federal program for home owners who are underwater in the home mortgages but have yet to fall behind on their monthly mortgage payments.  HARP has been extended by Congress through September 30, 2017.

The FPR reveals that Florida lead the country in the number of HARP refinances – and that over 60% of all HARP home loans were in just ten states. These states include:

  • Florida,
  • Illinois,
  • Michigan,
  • Ohio,
  • Georgia,
  • New Jersey,
  • Puerto Rico,
  • Pennsylvania,
  • New York, and
  • California.

 3. Underwater Mortgage Refinancing

HARP accounted for more than 6% of all Florida residential mortgage refinancing. Many of these refinances involved underwater mortgages. In fact, underwater mortgages were the basis for over a third of the HARP refinance deals done in Florida.

4. Loan to Value Ratio

It is possible to get a residential mortgage with a loan to value ratio that exceeds 100%. According to FPR, we know that 6% of HARP refinances had a loan to value ratio over 125%.

Furthermore, almost twenty percent of HARP loans were made to residential borrowers with a loan to value ratio over 105%.

 5. Mortgage Loan Modifications

During the month of January 2017, the federal government through Fannie Mae and Freddie Mac helped to thwart 14,558 foreclosures nationally.  Over half of these resolutions were mortgage loan modifications.

a. Principal Forbearance in a Mortgage Loan Modification

One way to modify a home loan or mortgage is through principal forbearance. From the FPR we know that this was negotiated in only 19% of the loan modifications done in January 2017.

This is fewer than have been done in the past, which means that banks may be less likely to agree to principal forbearance in future mortgage modifications.

 b. Extending Term of the Mortgage in Mortgage Loan Modification

Another way to modify a residential mortgage is to extend the life of the loan, or its terms.  Extended term loan modifications accounted for 44% of mortgage loan modifications tallied in the FPR.

So, it’s more likely to negotiate and resolve a mortgage issue with a lender that extends the term of the loan than to get a deal on principal forbearance. According to FPR, almost half of loan modifications were resolved by extending the term of the loan.

6. Other Home Retention Actions

Besides a mortgage modification, there are other ways to avoid losing your home. Lenders may be able to agree to programs like:

a. Extended Repayment Plan – An agreement between the lender and borrower, where the borrower has an extended time period to bring their mortgage current by (i) paying the usual mortgage payment, plus (ii) an additional agreed-upon amount to pay off the delinquency.

b. Forbearance Plan – An agreement between the lender and the borrower to reduce or suspend monthly payments for a specified time period. Afterwards, the monthly mortgage payment schedule resumes.  The borrower also agrees to pay additional money to cover the delinquency and get the account current.

7. Short Sales and Deeds-in-Lieu

Both short sales and deeds-in-lieu mean that the borrower loses his or her home.  However, these may be more beneficial in the long run for the borrower than an official foreclosure action because it has less of a long-term impact on their credit history (the bank may also waive any deficiency against the borrower).

According to the FPR, there were 1,615 short sales and deeds-in-lieu completed in January 2017.  That is 5% less than in December 2016.  This may signal a trend for banks to be less willing to agree upon a short sale and deed-in-lieu as an alternative to filing a foreclosure lawsuit here in Florida.

8. Charge-offs-in-lieu of Foreclosure

Here, the lender has a reason to forego a foreclosure action because owning the property is not in the lender’s best interests.

For instance, if it is shown that there are environment issues on the land, or the property has lost most of its value, then the bank may be willing to charge off the mortgage.  The unpaid mortgage balance becomes a lien on the real estate, to be dealt with in the future when the property changes ownership.

This may not be common, but it is effective under the right circumstance.

9. Foreclosures are Rising in 2017

According to the FPR, foreclosures are on the rise. From December 2016 to January 2017, foreclosure sales were up 16% — and foreclosure actions were up 10%.   As a result, banks are now concerned about increasing defaults.

10. Reasons for Falling Behind in Mortgage Payments

According to the FPR, lenders tend to hear the same explanations again and again regarding why the mortgage is not current.

The FPR lists these as the “Top Five Reasons for Delinquency” (Report, page 13):

  • Curtailment of Income;
  • Excessive obligations ;
  • Unemployment;
  • Illness of principal mortgagor or family; and
  • Marital Difficulties.

Knowing that the bank is aware of these reasons can be helpful in finding a foreclosure alternative for your situation. One tip is to make sure the lender understands how your case is unique and deserves individual consideration (i.e. write a letter and provide proof of your hardship).

What Should You Do?

If you are facing a defaulting mortgage or a foreclosure lawsuit here in Florida, having an experienced Florida real estate lawyer to help you negotiate with your lender can make all the difference in how fast and how effectively your real estate matter can be resolved for and your family.

If you are having an issue with your home, 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.

_______________

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.

Payment Defense to Foreclosure

Posted By on April 18, 2017

In Florida, when a lender files a foreclosure lawsuit, the lender must prove that a homeowner has breached his or her obligations under the note and/or mortgage. In turn, a homeowner has the right to raise defenses that defeat or otherwise mitigate the claims made by the lender.

One such foreclosure defense is payment.

Gfp-checkbooks

The Foreclosure Defense of Payment

Under Florida law, if you have satisfied your monthly obligation to your lender of making your monthly payment, then it is highly unlikely that you will lose a foreclosure lawsuit based upon non-payment.

Even though this outcome sounds obvious, it is not safe to assume that a bank won’t file a non-payment foreclose lawsuit where the homeowner has made all of his or her payments, because they do. Here’s an example of such a scenario.

The Case of the Bank Alleging Lack of Payment Even Though Mortgage Payments Were Made

A good example of a foreclosure lawsuit based upon non-payment is the case of Gulliver v. Texas Commerce Bank, 787 So. 2d 256 (Fla. Dist. Ct. App. 2001). In that case, the bank sued for foreclosure based on a mortgage it held after it was assigned from the original lender.

At the time that the foreclosing bank took over the mortgage pursuant to the assignment, it was notified that the mortgage was one month behind in payments.

The foreclosing bank sent a formal notice to the borrower, introducing itself as the new mortgage holder of the home loan. It also notified the borrower that the mortgage payment was late, and the note was considered to be in default.

The borrowers made the mortgage payment. They also paid future mortgage payments to the new mortgage holder.

Unfortunately, the new bank didn’t tell the homeowners that they weren’t applying their payments to their mortgage balance. The new bank was holding these payments in a “suspense” account and not applying them to reduce their debt.

Several months went by and the new bank filed a foreclosure lawsuit. In the complaint, the bank swore to the court that no payments had been made on the mortgage for the past 7 months.

The borrowers hired a lawyer and filed an answer to the complaint that included the affirmative defense of payment. They filed an affidavit (which is sworn testimony) with supporting documents showing payments had been made. This evidence was shown through cashed checks. Despite this evidence, the court ruled in the bank’s favor.

Upon review, the appellate court held that the homeowners presented a valid defense. The court stated that making all of the monthly payments is a meritorious defense which should not be overlooked.

It didn’t matter that the lender put the payments in a “suspense account.” The bank didn’t win at summary judgment because there were facts in dispute that needed to be resolved.

Proving Payment

When asserting the foreclosure defense of payment, the borrower has to show that payment was made. This can be accomplished through documentation.

However, not all payments are the same. In fact, some payments aren’t really even payments. This scenario is described below.

The Case of the Bouncing Checks

In the case of Scarfo v. Peever, 405 So. 2d 1064 (Fla. Dist. Ct. App. 1981), the bank sued to foreclose on the homeowner’s property. The borrowers asserted the foreclosure defense of payment. Moreover, the borrowers not only asserted payment, they also stated that they stood “ready, willing, and able” to pay off the mortgage in full and were ready to do so before the bank filed the foreclosure lawsuit.

The mortgage in this case had a due date of the ninth (9th) of every month, with a 30 day grace period. The borrowers never paid on or before the due date. They always paid before the end of the grace period. Sometimes, they made partial payments during the course of the month.

One month, the borrowers sent out their mortgage payment on the last day before the expiration of the grace period. The lender, Mr. Scarfo, did not immediately deposit it and present it for payment. According to the facts of the case, he was sick with the flu.

When he presented the check for payment, it bounced not once, but twice.

Mr. Scarfo notified the borrowers that the check had bounced and that he was accelerating the note, thus filing suit to foreclose on the property. The borrowers brought him cash to cover the bounced check as well as the next month’s payment. They did this the day after the foreclosure lawsuit was filed. However, the lender still moved forward to foreclose.

The court ruled that when the borrower made his monthly payment by check, it was his responsibility to make sure there were sufficient funds in the account to cover its payment when the lender presented it.

The bounced check was not the lender’s problem. Moreover, it was insufficient to prove the foreclosure defense of payment.

The lender had the legal right to accelerate the mortgage because of the default. Trying to catch up on mortgage payments after a foreclosure lawsuit is filed is not enough to nullify a foreclosure action.

Does It Matter If The Borrower Has The Ability to Pay off the Mortgage Debt in Full?

When arguing the foreclosure defense of payment, how much does the borrower have to prove? If the borrower has the ability to pay off the mortgage, then what happens?

The Case of the Borrower “Ready, Willing, and Able” to Pay Off the Balance

In the case of Redding v. Powell, 452 So. 2d 132 (Fla. Dist. Ct. App. 1984), a parcel of land had been purchased with a mortgage. Everything went smoothly until the final payment was due. The lender filed a foreclosure action based upon the failure to pay the final payment on the note.

The borrowers denied that they had defaulted on the note, and they denied that the lenders were due any further sums.

They also asserted a foreclosure payment defense: they had been, and remained, “ … ready, willing and able to pay off the mortgage since they first learned that a balance was still owed.” The lenders refused to take their money – even before they took any steps to collect on the mortgage or to file for foreclosure.

Moreover, the lender’s lawyer had in his possession the borrower’s check which covered not only the principal balance and interest due on the mortgage, but a clearing fee as well. The lawyer did not have his client’s permission to cash it. There were funds to cover the check if presented.

The court ruled, when a borrower fails to make a final payment, the lender has no legal duty to demand payment before foreclosing on the property. It was the lender’s option to file the foreclosure lawsuit.

However, the borrower’s payment defense was legally valid. Here, the borrowers had asserted a defense of accord and satisfaction of the debt. Their checks and accompanying affidavits demonstrated their payment defense.

What about Prepayments?

There are instances when borrowers will make payments in advance on their mortgage, or “prepay” the note. Often, home owners will add $100 – $200 to their monthly mortgage payment. This is done to pay off the principal faster, and is considered a financially savvy thing to do by many financial advisers.

What happens when there is a foreclosure? Can these advance payments help in a foreclosure payment defense?

The Case of the Accepted Prepayments

In the case of Gulf Life Insurance Company v. Pringle, 216 So. 2d 468 (Fla. Dist. Ct. App. 1968), the borrowers successfully had the lender’s foreclosure case dismissed based upon their foreclosure defense of pre-payment.

Here, the lender filed a foreclosure lawsuit because the borrowers were not making their periodic mortgage payments by the due date. However, the borrowers were paying the lender and had even made payments in advance to the lender that exceeded the amount of the stated mortgage payment.

The mortgage in this case allowed for prepayments and there was no pre-payment penalty. Specifically, the note provided the option to make, without penalty, payments of $100.00 or multiples thereof, not to exceed 15% of the original sum of the note during the life of the mortgage.

When the foreclosure suit was filed, the total amount in periodic prepayments exceeded the mortgage payments due and owing at the time of the foreclosure lawsuit being filed.

The borrower proved that the mortgage payments were actually ahead of schedule and the lender had no right to accelerate the note.

What Should You Do?

When you are sued for foreclosure, all is not lost. Under Florida law, you may have a variety of defenses to assert against the bank. One such defense is the affirmative defense of payment.

The burden of proof here is upon the borrower to assert this defense and prove it through facts and evidence. Lenders often try to end these foreclosure lawsuits quickly with a “motion for summary judgment” stating that there are no disputed facts that have to be resolved by a trier of fact (judge or jury).

If you are facing foreclosure in Florida, a good piece of advice is to talk with an experienced Florida real estate lawyer to learn about your rights, including those related to the affirmative defense of payment and motions for summary judgment. 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.

Court Procedures That Can Delay Foreclosure

Posted By on April 4, 2017

In Florida, those fighting a residential foreclosure should be aware of the procedures often used by lawyers and judges that delay a foreclosure lawsuit from proceeding.

Two of these procedures are called “stays” and “continuances.” Both are governed by the Florida Rules of Civil Procedure as well as local rules, state statutes, and court precedent.

Stay versus Continuance

Stays and continuances are not the same. A stay is an order by a judge that places a foreclosure lawsuit on hold, whether it be a temporary hold or a permanent one.

When a judge orders a stay, there is no hearing or trial date until the stay is lifted by the court. Many people facing foreclosure may be familiar with a “bankruptcy stay,” which is an order preventing a foreclosure sale from occurring.

On the other hand, a continuance is an order by a judge that delays a hearing date or the date of a particular foreclosure trial.

A continuance can happen before, during, or even after the hearing or the trial has started.

 

Courtroom clock, David W. Dyer Federal Building and U.S. Courthouse, Miami, Florida LCCN2010719005

Image: Courtroom clock, David W. Dyer Federal Building and U.S. Courthouse, Miami, Florida; from photographs in the Carol M. Highsmith Archive, Library of Congress.

Motion To Continue The Foreclosure Lawsuit Before Trial

A motion for continuance can be requested by either party. For example, the lender may want to continue the lawsuit for various reasons (e.g., witnesses are unavailable, documents are lost or misplaced, etc.). In other cases, the home owner fighting the foreclosure may need more time for things like gathering more evidence in discovery.

Example of Bank Moving for Continuance before Trial Date:  the Reive case

An example of how a motion for continuance works in a Florida foreclosure case is provided in the recent decision, Reive v. Deutsche Bank Nat. Trust Co., 190 So. 3d 93 (Fla. Dist. Ct. App. 2015).

In that case, the bank filed a motion to continue its foreclosure lawsuit. It was not a new lawsuit; the bank had sued the borrower for foreclosure three (3) years earlier.

Every motion for continuance must provide valid basis for requesting the trial be postposed

Every motion filed before a judge has to have a valid legal reason for its requested action. In the above case, the bank asked the judge to order the case continued because the underlying loan was being transferred by the lender to a new mortgage servicer. And, of course, the borrower did not contest the motion to delay the lawsuit. 

Nevertheless, the judge denied the unopposed motion to continue the three-year-old lawsuit.  The bank had to proceed with the trial notwithstanding the fact that the loan was being transferred to a new servicer.

The trial date was less than two weeks away (10 days from the date the judge denied the continuance).  

With only 4 days before the time to appear in court to pick a jury, the borrower (defendant) was notified of new witnesses and new documents that the bank was planning on using at the trial.

The usual minimum time limit for delivery of this information is 30 days. The reason for this is so the lawyer who receives the new information has time to analyze it and prepare his response or reply to it (for example, the lawyer may object to the use of the documents on the basis that he or she has not had an opportunity to question the proponent of the information or authenticate it and/or challenge its accuracy).

In most, if not all, Florida litigation, parties are given formal “pretrial discovery deadlines” by court order, which are set by the judge.  These deadlines apply to things such as providing witness lists and documents.

So, in this case, the borrower (defendant) objected.  He filed a motion with the judge, requesting that the new information not be allowed at trial because it was past the deadline.  The judge ruled against the borrower. As a result, the borrower appealed his case to the reviewing court.

Motion for Continuance and Trial by Ambush

The borrower won his appeal.  According to the appellate court, the borrower was correct for objecting to the introduction of the new evidence.  This scenario of last minute evidence after a denial of a continuance motion was a “surprise in fact” and in violation of the rulings of the Florida Supreme Court (violating Binger v. King Pest Control, 401 So.2d 1310, 1313-14 (Fla.1981).  Furthermore, it was a “trial by ambush” and a violation of the borrower’s constitutional due process rights.

The case was reversed and sent back for a new trial.

Motion For Continuance During Foreclosure Trial

In a Florida foreclosure lawsuit, either side can file a motion to continue the case even if the trial has already begun.

Example of Bank Moving for Continuance after Trial Starts:  the Serban case

An example of this type of continuance was made by the bank in the case of HSBC Bank USA, NA v. Serban, 148 So. 3d 1287 (Fla. Dist. Ct. App. 2014).

In March 2008, HSBC Bank (Bank) filed a foreclosure lawsuit against its borrower, alleging that he had failed to pay his mortgage payments.

The foreclosure lawsuit sat on the court’s docket for five years without much, if any, action by the bank.

Courts Can Set Foreclosure Cases for Trial

In August 2013, the circuit court set the case for trial on October 17, 2013.  This is a common practice by the courts to get old cases moved along and off the docket.

Courts have the power to set cases for trial without any party filing a motion asking that the case be given a trial date.

The court ordered the case be tried before a judge; no jury was required.  (This is known as a “bench trial.”)

Here, the case was set for trial in 65 days.  Florida Rule of Civil Procedure rule 1.440(c) requires 30 days’ notice, so the order gave the parties twice the minimum time required for its trial date notice.

Included in its notice-order was language requiring (1) the bank (Plaintiff) to file “all necessary documents”  and be “present and prepared” on the trial date; and warning that (2) if either party was not ready for the Non-Jury Trial, they might be sanctioned which could include dismissal of the entire lawsuit.

The bank didn’t object to this order.  The borrower was allowed to amend his answer and formally assert more defenses before trial.

When the foreclosure trial date arrived, lawyers for each side appeared before the judge for the bench trial.  At that time, the bank’s lawyer announced he was ready for trial, but that he was requesting a continuance because of witness unavailability.

From the case, the bank’s lawyer is quoted from the record as telling the judge:

“….  Wells Fargo is the servicer, Your Honor. All of the Wells Fargo witnesses are assigned out for other trials. I have been begging and trying to get a witness for the case, and the client has been trying to find somebody. But all of their witnesses are assigned out, and they couldn’t have somebody here today. Your Honor.”

The bank’s lawyer admitted to the judge that he had known for at least a week before the trial setting that there was no witness available to represent the bank. 

Good Cause for Continuance at Trial

So, the borrower’s lawyer objected.  He objected to the case being continued because (1) this was not good cause for a continuance; and (2) the borrower had already paid for the lawyer’s time to prepare and appear on this trial date.  It wasn’t fair to ask the borrower to pay for this again.

The trial court judge agreed with the borrower.  The motion for continuance was denied.  The foreclosure case was dismissed as requested by the borrower (though the bank could refile under Florida Rule of Civil Procedure 1.420(b)).

The reviewing court agreed with the decision, noting that the bank had filed the foreclosure lawsuit over five (5) years before the scheduled bench trial, which was more than enough time to get a witness to represent the bank.

What Should You Do?

Having a foreclosure lawsuit filed against you isn’t the end of your fight against the lender who is trying to take your home.  An experienced Florida foreclosure defense attorney can help you both before and after the lawsuit is filed.  Sometimes, that may even mean taking the case to the appeals (reviewing) court before justice is served.

If you are facing foreclosure, a good piece of advice is to talk with an experienced Florida real estate lawyer to learn about your rights, including those related to stays and continuances. 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, check out our past discussions on residential foreclosures in Florida, including:

_______________

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.

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

Posted By on March 21, 2017

Residential foreclosures are still a problem for many home owners in Florida, particularly here in Broward County, Miami-Dade County, and Palm Beach County. To make matters worse, some banks are still committing wrongful acts during the foreclosure process which can result in the banks having to reimburse a homeowner their costs, including attorney’s fees, to defend themselves.

 

Florida Foreclosure Notice

 

When May A Bank Be Required To Pay the Borrower’s Legal Fees and Expenses in A Foreclosure Suit?

Whether or not the bank will be required to reimburse the borrower for any legal fees and expenses in the foreclosure action will depend upon the circumstances of their case. Here are 2 fact patterns where a bank can be required to pay a homeowner’s costs for their foreclosure defense.

1. Bank Voluntarily Dismisses the Foreclosure Lawsuit

In any civil case, if the party that brought the lawsuit decides to stop the proceedings, then they can do so by filing a “notice to dismiss.”

In Florida, if the bank voluntarily dismisses the foreclosure action, then the borrower may be able to recover the expenses to defend him or herself.

Why? The answer is explained in the case of Bis V. US Bank Nat. Ass’n, 172 So. 3d 971 (Fla. Dist. Ct. App. 2015).

 Bis v. U.S. Bank: Voluntary Dismissal of the Foreclosure, Fees and  Costs

In 2015, homeowners Steven and Eugenia Bis took their foreclosure case to the Florida Court of Appeals to appeal the trial judge’s denial of their request for the bank to pay their attorneys’ fees and court costs.

In part, their appeal was successful.  The court ruled that the couple could get the bank to cover the legal expenses they incurred in defending against the foreclosure.  However, the bank would not be forced to reimburse them for their attorneys’ fees.

Here’s what happened: Several years ago, the bank, U.S. Bank National Association (“the Bank”), filed a foreclosure lawsuit against the couple after they were unable to resolve their differences during settlement negotiations.  They hired a lawyer and fought the Bank over the foreclosure.

The case was progressing like most foreclosure lawsuits, including the discovery process.  Then, on the day of the foreclosure trial, the Bank arrived with a notice of voluntary dismissal of the foreclosure lawsuit.  The Bis’ were glad the case was dismissed, but they wanted to get their costs covered by the bank.

So, the Bis’ filed a request with the Florida judge that the Bank be forced to pay both their legal fees and costs.

  Florida Rule of Civil Procedure 1.420(d)

The appeals court found that the Bank had followed Florida Rule of Civil Procedure 1.420 which provides that costs are to be assessed in the action that is the subject of the voluntary dismissal. See, Wilson v. Rose Printing Co., 624 So.2d 257, 258 (Fla.1993).

Unfortunately, this rule does not provide for attorneys’ fees.  So, the borrowers could get their costs reimbursed by the Bank but not their legal fees.

2. Sanctions against the Mortgagor Bank

If the lender wrongfully files a foreclosure lawsuit against the borrower, then the mortgagee (bank or lender) may be forced to reimburse the borrower for their legal fees and court costs by way of the court assessing sanctions against the bank.

This scenario is explained in the case of Snow v. Rosse, 455 So.2d 615, 617 (Fla.Dist.Ct.App.1984).

 The Case of Snow v. Rosse:  Sanctions in a Foreclosure Lawsuit

In this case, the borrowers claimed they made their mortgage payments as was required under their promissory note, but the mortgagees filed for foreclosure anyway.  The borrowers provided proof that they had sent mortgage checks, but there was fraudulent activity on the part of the mortgagees. What happened was that the mortgagees didn’t cash the borrowers’ checks.

The trial court rules that under Florida Statute 57.105, the borrowers could be awarded their attorneys’ fees after they were victorious in defeating the foreclosure lawsuit filed against them. In this case, the award of attorneys’ fees and court costs was considered a sanction against a party who has undertaken wrongful actions; in this case, holding onto mortgage checks and then trying to foreclose was considered a wrongful act.

What Should You Do?

In Florida, there are instances where a homeowner can have their foreclosure defense costs, including legal fees, covered by the bank. Those situations are case specific. One such case is where the bank fails to properly deposit your mortgage payment checks, another is where the bank has voluntarily dismissed its lawsuit.

If you believe you have grounds to recover your foreclosure costs from a bank or other foreclosing party, a good piece of advice is to talk with an experienced Florida real estate lawyer to learn whether or not your facts qualify to have the bank reimburse your costs for defending yourself. 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:

_______________

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.

Residential Security Deposit Lawsuits in Florida

Posted By on March 7, 2017

For tenants moving out of apartments, condos, homes, or other residential dwellings here in Florida, they have the right to expect the return of their security deposit (provided they have not damaged the property and they themselves have followed the notice requirements (see below) required under the law). However, landlords routinely violate the law by keeping some, if not all, of that money.

What should a tenant do when a landlord wrongfully keeps their security deposit? Florida law allows a tenant to file a lawsuit against the landlord to recover his or her security deposit. The good news is that the law allows the tenant to recover their attorney fees for doing so.

South Palm Beach condominiums from lake

Image: Waterfront condominium buildings facing the lagoon, Lake Worth, in the Town of South Palm Beach, Florida; image by C.Z. Marlin


 

Florida Statute 83.49 Controls Security Deposits

Florida Statute 83.49 controls residential tenant security deposits. For details, including the definition of a “security deposit,” check out the discussion in our recently updated post, “How to Get a Refund of Your Security Deposit.”

When landlords fail to return the tenant’s security deposit, then the tenant has the option to sue the landlord for its return.  In fact, it’s one of the most common basis for a landlord-tenant lawsuit here in Florida.   For more, read “Top 13 Reasons to Sue a Florida Landlord.”

Security Deposit Lawsuits – Notice Requirements

Below we have provided two examples of tenants who sued their landlord for the return of their security deposit. Both deal with the issue of “notice.”

There is a duty placed on the residential landlord to provide notice to the tenant that a claim is being made against the tenant’s security deposit. There is also a duty on the tenant to give notice that he or she is moving out. The tenant loses in the first case; the tenant wins in the second one.

A. Plakhov v. Serova: Tenant Must Give Notice Before Vacating Rental Unit.

In Plakhov, the tenant did not give the required 7-day notice to the landlord before moving out, so the landlord’s legal duty to provide notice of intent to claim part of the security deposit was excused. The landlord was awarded damages for unpaid rent and was allowed to keep the security deposit.

Here’s what happened.

In this case, a condo owner leased a Florida condo unit to a tenant. They signed a written lease agreement which stated the monthly rent as $2200, and the beginning of the lease was in November 2008.

When the lease was signed, the tenant paid the owner / landlord the first and last month’s rent as well as another $2200 as a security deposit. The landlord deposited the security deposit with a real estate management company.

Afterwards, the tenant stopped paying rent. First, he only paid part of the rent in January ($900) and then stopped paying rent entirely.

Landlord-Owner Foreclosure and Unpaid Condo Fees

The tenant was worried because he had been sued by a bank in a foreclosure lawsuit against the condo owner. The tenant was also worried due to the fact that the condo association gave him notice that the condo owner was behind in paying the condo fees.

The owner and the bank negotiated a deal and the foreclosure lawsuit was then dismissed. The owner also paid all her past-due condo fees. The owner was in good standing with her lender and the condo board as of February 2009.

Two months later, the tenant moved out. The owner immediately listed the condo for rent, but it took several months to rent the condo again. A new tenant moved into the unit in November 2009.

Notice to Tenant

Meanwhile, the owner also sent a “Notice of Intention to Impose Claim against Security Deposit” to the tenant.  It was dated April 28, 2009, and sent in care of the tenant’s attorney.  It was sent certified mail, return receipt requested.

In the notice, the tenant was informed that if he did not object to the landlord’s imposition of a claim against the security deposit within fifteen (15) days from the date of receipt (April 29, 2009), then the owner was entitled to keep the deposit.

The tenant sued the landlord and lost.  The landlord was granted a final judgment for past unpaid rental payments as well as the full security deposit.

Why did the tenant lose the lawsuit?  The court explained:

  1. The foreclosure lawsuit against the owner / landlord did not mean that the tenant had the legal right to breach his lease agreement. The tenant had a legal duty to keep paying rent.
  2. The owner’s delinquency in paying condo fees likewise did not give the tenant the legal right to breach his lease agreement. The tenant had a legal duty to keep paying rent.
  3. Florida Statute 83.49(2) does have notice requirements for written notice to the tenant but that law only applies to landlords who own five or more rental units. Here, the owner was only renting the single condo.  So, she did not have to meet the notice requirements.
  4. Florida Statute 83.49(5) requires the tenant to give notice, too. Here, the tenant did not give notice to the landlord that he was moving out. This failure relieves any landlord of giving notice regarding keeping the security deposit. 

B.  Malagon v. Solari: Tenant’s Attorney’s Fees Paid by Landlord

In Malagon, the landlord did not give legal notice that he was keeping part of the tenant’s security deposit, he just kept it. The tenant sued for the entire deposit and won; the court held that the landlord forfeited any rights to the security deposit by failing to give notice.

On appeal, the landlord did get to keep some of the deposit.  However, the court also ruled that the tenant’s legal fees would be partially paid by the landlord as provided by law. 

Here’s what happened.

In this case, the tenant and the landlord sued each other.  The tenant filed a lawsuit for return of the security deposit and the landlord responded with a “counterclaim” against the tenant.

Prevailing Party Gets Legal Expenses Paid

On appeal, each side won a partial victory.  The tenant was considered the “prevailing party” in the case because he did recover something, even though he was awarded less than the total amount he was seeking in the case.

Since the tenant was held to be the “prevailing party,” then he could get his attorneys’ fees and court costs paid by the landlord.  This is allowed under Florida Statute 83.49(3)(c).

Why Were Only Partial Legal Fees Paid? 

The tenant could not get 100% of his legal expenses paid for by the landlord. The appellate court explained that when the tenant loses some claims to the landlord, (having “only limited success,”) then the tenant must only be awarded those attorneys’ fees and court costs that are reasonably related to his winning results.

In other words, the landlord did not have to pay the tenant’s attorney’s fees and court costs on the counterclaim arguments that the landlord won in the lawsuit.

The landlord had to pay only the legal expenses that pertained to the claims against the landlord that the tenant won in the case.

Do You Have a Security Deposit Issue With Your Former Landlord?

If you are moving out of your rental unit, then you have a right to the return of your security deposit.   That’s the law here in the State of Florida.  However, that does not mean that you won’t have to file a lawsuit to get that money returned to you by the landlord.

A good piece of advice if you are having a problem with your landlord returning your security deposit is to speak with an experienced Florida real estate lawyer to learn about your rights because the law provides for the payment of attorney fees in the event the landlord is determined to have violated the law (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

For more on landlord tenant issues, check out the following:

_______________

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.

Conditions a Bank Must Satisfy Before Filing a Foreclosure in Florida

Posted By on February 21, 2017

If a bank intends to file a foreclosure, there are steps (or conditions) the bank must take prior to filing a lawsuit. Some of these conditions are set forth in federal and state law and others can be contained within the mortgage itself.

Generally speaking, banks must closely adhere to these conditions. Otherwise, the bank is vulnerable to certain defenses to the foreclosure lawsuit which can result in a case being dismissed.

 

Balanced scale of Justice (blue)

 

What are Conditions Precedent?

According to Black’s Law Dictionary, eighth edition, a condition precedent is “an act or event, other than a lapse of time, that must exist or occur before a duty to perform something promised arises.”

In all Florida contracts, including mortgages, there are agreed upon tasks or duties that each party must perform called “conditions.” For example, before a lender, servicer or bank can take an action, such as foreclosing on the home, they have to perform those agreed upon tasks or duties stated in the contract.

The performance of these conditions must “precede” any action taken against the other party. They are tasks that a lender must perform before it can lawfully file a foreclosure action. 

What Does Florida Law Say About Conditions Precedent and Foreclosure Lawsuits?

Florida law is still evolving when comes to mortgage foreclosures.  In fact just recently, two Florida appellate courts issued new holdings on “conditions precedent” relating to Florida foreclosures.

Does HUD’s Conditions Precedent Apply to Florida FHA Foreclosures?

In the recent case of Palma v. J.P. Morgan (see below), the court held that Florida banks are subject to federal regulation 24 C.F.R. § 203.604  (when it comes to FHA foreclosures) even if the mortgage documents do not specifically say this regulation is applicable.

See:  Palma v. JP Morgan Chase Bank, Nat’l Ass’n, No. 5D15-3358 (Fla. Dist. Ct. App. Dec. 2, 2016) (“Palma”).

Face to Face Meeting Before Foreclosure

In Palma, the Fifth Court of Appeals ruled that a federal regulation issued by the Department of Housing and Urban Development (HUD) applies to Florida mortgages.  That regulation protects borrowers facing foreclosure by requiring banks to have a face-to-face interview with the borrower as another “condition precedent” to foreclosure.

The lender must show that it complied with 24 C.F.R. § 203.604. Specifically, this regulation mandates the bank either (1) meet with the borrower for a face-to-face interview; or (2) make a reasonable effort to have that face-to-face a meeting.  The meeting must take place, or good faith efforts to meet with the borrower must happen, before three full monthly mortgage payments go unpaid.

Does The Face-to-Face Meeting Mortgage Requirement Apply to All Mortgages?

The federal regulation 24 C.F.R. § 203.604 does not apply to all foreclosures.  It applies only where there is language in the mortgage stating that the HUD regulation is “incorporated” or included in the terms of the document.

1.  FHA Mortgages

All FHA loans incorporate the HUD regulation, so it has a bearing on a lot of Florida mortgages.

Meaning, if you have an FHA loan, then the bank must sit down and have a face-to-face meeting with you before they can start foreclosure proceedings.

2.  Standard Mortgages

Some “standard” mortgages may be impacted by this rule. The Palma court noted the language regarding a required face-to-face meeting is usually found in standard mortgage paragraph 22.  So, it’s important to know your documents before, during and after you borrow money from a bank.

How Was This Condition Precedent Used By the Borrower?

In Palma, the bank filed a foreclosure lawsuit and won; the borrower then appealed to the Fifth District Court of Appeals.

The borrower asserted the federal regulation as a “condition precedent” and as an affirmative defense to the foreclosure lawsuit. Meaning, the borrower asserted the mortgage incorporated the HUD requirement of bank being required to have a face-to-face meeting before a foreclosure can be filed.

The appellate court agreed with Mr. Palma and remanded the case to the trial court with instructions that the foreclosure action be involuntarily dismissed.

As the court stated, “… [the] Bank failed to meet its burden, providing no evidence that it engaged in a face-to-face interview before filing its foreclosure complaint.”

Is Substantial Compliance by the Bank Enough to Satisfy a Condition Precedent?

What does a bank have to do to satisfy a “condition precedent” under its mortgage documents?

This question was answered in another new Florida appellate court decision, Dixon v. Wells Fargo Bank, NA, No. 4D15-3974 (Fla. Dist. Ct. App. Jan. 4, 2017).

The Dixon court held that a bank’s substantial compliance is enough to satisfy a condition precedent. However, that doesn’t mean a bank can ignore the contract’s language.

What Must The Banks Do to Substantially Comply?

In Dixon, there was a standard mortgage given by the borrowers to Wells Fargo Bank, N.A. (“Bank”).  After the borrowers failed to make a mortgage payment, the Bank sent the homeowners a default letter.

That default letter stated:

  • it was being sent pursuant to the terms of the promissory Note and Mortgage;
  • that the Bank was accelerating all sums due and owing;
  • now the entire principal balance was due;
  • along with “all other sums recoverable under the terms of the promissory Note and Mortgage; and
  • the process of filing a foreclosure complaint had begun.

The letter also advised the borrowers that they should contact the Bank if that wanted to “bring their loan current” or pay it off.  And, the debt would be assumed valid unless they challenged it within 30 days.

Eight days after the Bank sent the default letter, it filed a foreclosure lawsuit.

How Did The Bank Fail?

In their standard mortgage, there was a paragraph that explained how the lender was to give any notice of default, should the borrower fail to pay the mortgage payment.  The contract language stated this had to be done before any foreclosure lawsuit could be filed.  (It was a “pre-suit requirement.”)

In paragraph 22 of the mortgage, the lender agreed to (1) give 30 days’ notice and (2) give the borrower an opportunity to cure the default before it filed a lawsuit.  The bank did not follow this language and therefore its lawsuit was dismissed.

The Dixon court simply ruled that the Bank had failed to comply with the conditions precedent of the mortgage.  Specifically, the bank had failed to substantially comply with paragraph 22.  It filed suit before the agreed-upon time period of 30 days allowed for the borrowers to cure their default (30 days is 30 days – 8 days won’t cut it!).

What Happened To These Lawsuits?

In Dixon, and in Palma, the borrowers’ motion for involuntary dismissal of the foreclosure action was granted.  Meaning, the lawsuits were dismissed and the banks had to refile their cases only after they followed the law (just like the rest of us).

What Should You Do?

If you are struggling with financial difficulties regarding your Florida home or condo, and have either stopped making your mortgage payment or you’re thinking you may have to stop paying your home loan soon, then a good piece of advice is to speak with an experienced Florida real estate lawyer to learn about your rights and to learn the different foreclosure defenses that may be 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.

_______________

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.

Tenant Defenses to Residential Evictions in Florida

Posted By on February 7, 2017

In Florida, the portion of the landlord-tenant law relating to residential dwelling units (including, homes, apartments, mobile homes and condos) was written, in part, to protect tenants during the the eviction process. Under our statutory law, the eviction process is referred to as an action by the landlord for possession of the dwelling unit.

Most residential evictions in Florida occur over the issues of non-payment of rent or because the landlord alleges the tenant has violated some term of the lease (often times, that violation (breach) relates to pets, guests and/or noise issues).

Fortunately, a residential tenant in Florida has certain statutory defenses he or she can raise against a landlord that seeks to evict the tenant from their dwelling (under the law, a dwelling is defined, in part, as “a structure or part of a structure that is rented for use as a home, residence, or sleeping place by one person or by two or more persons who maintain a common household.”)

These defenses are available to a tenant no matter if the tenant is leasing for a long period of time (like an apartment lease covering a year or more) or if the tenant is renting from week to week or from month to month (like a summer vacation home or condo).
 

FEMA - 13988 - Photograph by Andrea Booher taken on 07-13-2005 in Florida

Eviction Notices Happen In Swanky Condos, Too.


 

Residential Landlord-Tenant Eviction Law in Florida

In Florida, we have a specific law that controls residential tenancies known as known as the “Florida Residential Landlord and Tenant Act.”

Our residential landlord-tenant law is found in this Florida Statute as well as in court case precedent, where courts have rendered legal opinions in past eviction cases.  The statutory laws that control residential tenant evictions in Florida are found in a sub-section of Chapter 83 of the Florida Civil Practice and Procedures Code.  See, Florida Statutes 83.40 – 83.683.

How Does The Eviction Process Begin in Florida?

So, how does the legal process between landlord and tenant begin? Here’s what usually happens:

A landlord normally begins the eviction process when the tenant stops paying the rent or continually fails to materially comply with the lease or the law relating to maintaining the dwelling.  Sure, sometimes the tenant doesn’t have the money to pay the rent on time that month.  Times can get tough.

However, there are times when a tenant has the money to pay the rent and decides not to do so.  Why?  The tenant may feel forced to stop sending the rent check because the landlord isn’t listening to their complaints or fulfilling his or her duty under the law to maintain the premises.

Notice of Termination of The Rental Agreement to the Tenant

Under the law, before a residential tenancy is terminated and the landlord is entitled to possession of the property, the landlord must deliver (defined under the law) a written notice to the tenant.  The type of notice to be used, and, if applicable, the amount of time the tenant has to correct the non-compliance, will depend on the reasons for termination the rental agreement (i.e. non payment of rent or a material failure to comply with Florida Statute 83.52 or material provisions of the rental agreement – See Florida Statute 83.56).

The notice must include specific language about the basis for terminating the rental agreement and the steps, if applicable, the tenant can take to avoid termination or being required to vacate and/or deliver possession of the premises. No matter which type of notice is delivered, it must substantially follow the form set forth in the statute or it will be considered defective.

After notice is delivered and the tenant fails to comply, then an eviction lawsuit is filed.

Defenses to Being Evicted By The Landlord

When the eviction process begins a tenant can assert a variety of defenses to the eviction lawsuit.  Here are some of the most common:

1.  Improper Notice by the Landlord

If the landlord does not provide proper notice of the eviction, then, simply stated, he or she has not followed the law.  In Florida, a tenant cannot be evicted if the landlord does not take the following steps:

  • provide written notice; and
  • include all of the statutorily required information in that notice.

Grace Period

For instance, if the tenant fails to pay rent when due and the default continues for 3 days after notice is delivered to the tenant, then the landlord may terminate the rental agreement and evict the tenant.  This 3 day period is called a “condition precedent” (meaning, this step must occur before the landlord can exercise his or her right to terminate the rental agreement).

If the landlord did not give the full 3 days before terminating the agreement, or filing a lawsuit,  then the condition has not been met.

The tenant can move to dismiss the eviction action because of a defective notice.  See, Clark v. Hiett, 495 So.2d 773 (Fla 2d DCA 1986).

What Days Count in the Notice? You May Be Surprised

A basic step here is that the three-day time period has to be counted correctly.  It cannot include legal holidays.

If the landlord’s count includes a Florida legal holiday, then the notice is improper giving the tenant a defense to the eviction lawsuit.

What are the legal holidays for the State of Florida?  They are listed in Florida Statute 683.01 and include the following:

  • Sunday, the first day of each week.
  • New Year’s Day, January 1.
  • Birthday of Martin Luther King, Jr., January 15.
  • Birthday of Robert E. Lee, January 19.
  • Lincoln’s Birthday, February 12.
  • Susan B. Anthony’s Birthday, February 15.
  • Washington’s Birthday, the third Monday in February.
  • Good Friday.
  • Pascua Florida Day, April 2.
  • Confederate Memorial Day, April 26.
  • Memorial Day, the last Monday in May.
  • Birthday of Jefferson Davis, June 3.
  • Flag Day, June 14.
  • Independence Day, July 4.
  • Labor Day, the first Monday in September.
  • Columbus Day and Farmers’ Day, the second Monday in October.
  • Veterans’ Day, November 11.
  • General Election Day.
  • Thanksgiving Day, the fourth Thursday in November.
  • Christmas Day, December 25.
  • Shrove Tuesday, sometimes also known as “Mardi Gras,” in counties where carnival associations are organized for the purpose of celebrating the same.
  • Whenever any legal holiday shall fall upon a Sunday, the Monday next following shall be deemed a public holiday for all and any of the purposes aforesaid.

Other Failures to Give Proper Notice of Eviction

The landlord’s notice must be correct under the law (as to substance and form).  Other examples of improper notice which can provide a tenant with a defense to eviction are:

  1. The lease is signed by both husband and wife, but the notice only lists one of them;
  2. The notice has the wrong amount listed for the rent; and
  3. The notice includes a late fee as different amount due than rent (only rent can be the basis of an eviction notice).

However, the landlord “must be given an opportunity to cure a deficiency in a notice or in the pleadings before dismissal of the action.

2.  “I Don’t Have the Money to Pay Right Now”

A lot of times, tenants will say they will have the money “soon” to pay the rent.  They may even have the evidence to support their claim.  Maybe their employer is late in paying them all of the commissions that are due to them.  Maybe their parents haven’t sent them the check yet or their student loan hasn’t been release to them.

These excuses may be valid, but insufficient funds on the date that the rent is due may not stop an eviction.  However, if the tenant pays rent in full during the three-day time period, then the landlord cannot proceed with the eviction.  If the landlord does proceed with the eviction, then the tenant can use “payment” as a defense.

3. Landlord Has Not Kept Up the Property

Under Florida 83.51, residential landlords have a statutory duty or obligation to repair and maintain their rental property.

Housing Regulations

Here, the landlord must comply with applicable housing regulations.  These are laws, rules, and regulations that may have been passed by federal, state, county, or city governments regarding the condition and upkeep of the property.

If the landlord does not obey, then the tenant is free to stop paying rent.  It is considered a “complete defense” to any eviction action.

Florida 83.60(1)(b) provides the legal defense.  In the Florida Code, this is called the “defense of a material noncompliance with Florida Statute 83.51.”

Seven Day Time Ticker

There is a time requirement:  7 days must have passed between (1) the delivery of written notice by the tenant to the landlord, specifying the noncompliance and indicating the intention of the tenant not to pay rent by reason thereof, and (2) the withholding of the rent payment.

Notice by the Tenant

The tenant’ notice can be given to (1) the landlord, (2) the landlord’s designated representative under Florida Statute 83.50, (3) a resident manager, or (4) the person or entity who collects the rent on behalf of the landlord.

Reduced Rent Can Be Awarded

The judge or jury may decide that not only was the landlord guilty of material noncompliance with the law requiring the landlord to maintain the property, but that the tenant can have their rent reduced “ …to reflect the diminution in value of the dwelling unit during the period of noncompliance.”

Tenant Must Comply With Rental Deposit Law

The tenant cannot simply hold the money that would otherwise go to the landlord as a rent payment.  The rent must be paid.  However, it just doesn’t go to the landlord. Instead, the tenant must pay the rent into the court registry.  See, K.D. Lewis Enterprises Corp. v. Smith, 445 So. 2d 1032 (Fla. 5th DCA 1984).

Warning:  you must follow this law to the letter, and deposit your rent in the court depository in order for this to be a viable tenant defense to eviction.

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

4. Waiver

In Florida, under Florida Statute 83.56(5), a tenant may argue the defense of “waiver” in an eviction lawsuit.  Here, the tenant must provide evidence that the landlord took a rent payment after the lawsuit was filed.

If the landlord accepts rent after starting an eviction proceeding, then he or she has waived his right to evict the tenant.

Note:  this defense may not work if the tenant’s actions that cause the eviction to begin are repeated again.  Continued or repeated violations by the tenant can work to block a waiver defense.

5. Retaliatory Conduct, Discrimination and Self-Help

Under Florida’s statutory law, there are several other defenses that a tenant may use to defend against a residential eviction.  These are referred to in the statutes as unlawful or prohibited practices (See Florida Statutes 83.64 and 83.67).

However, there are caveats to using some of these defenses, like “in order for the tenant to raise the defense of retaliatory conduct, the tenant must have acted in good faith.”

For details of what is considered an unlawful or prohibited practices (like changing the locks or interrupting your electricity), and to learn the consequences for doing so, read our prior post “Illegal Residential Evictions in Florida.”

What Should You Do?

A good piece of advice if your landlord is attempting to terminate your lease agreement and evict you from your home, is to speak with an experienced Florida real estate lawyer to learn about your rights and to learn the different defenses that may be available to you, including how landlords may be ordered to pay your legal fees if you win your 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.

Illegal Evictions in Florida

Posted By on January 24, 2017

Every day in Florida, there is a residential tenant dealing with a landlord who has committed an illegal act all in the name of the almighty dollar. Because landlords are still finding ways to harm tenants, the Florida legislature wrote and continues to write law to protect tenants from these illegal acts.

In fact, the “Florida Residential Landlord and Tenant Act” is so detailed as to what a landlord must do and shall not do that some have argued the law is one-sided in favor of the residential tenant.

One positive aspect of the act is that the most important protections relate to security deposits and illegal evictions and these laws are mandatory in nature; meaning, the landlord has to follow the law, otherwise he or she can be held to financially account to the tenant, including paying their attorney fees.

 

Broward County FL Sheriff 2010 Charger Hemi

In a Proper Florida Eviction, the County Sheriff Oversees the Landlord’s Actions: There’s No “Self-Help”


 

3 Florida Laws That Protect Residential Renter’s From Illegal Evictions

The three specific Florida Statutes that help to protect tenants from the bad acts of landlords are:

Florida Statute 83.60 – relating to defenses to a lawsuit for rent or possession of the tenant’s home or apartment;

Florida Statute 83.64 – relating to retaliatory conduct by a landlord; and

Florida Statute 83.67 – relating to prohibited practices by a landlord (see below).

All residential renters should be aware of these laws and the protections they give to tenants. A violation of any of these laws can subject a landlord to some type of financial hardship, including having to pay compensation to a tenant.

What is an Illegal Eviction or a Self-Help Eviction?

Simply stated, when a landlord engages in the behavior listed in Florida Statute 83.67, he or she is violating the law.

Violating certain provisions of this law (like locking out a tenant, removing their belongings or cutting off their utilities) is sometimes referred to as a “self-help” eviction. In those instances the landlord can be sued for damages.

What if the Tenant Hasn’t Paid Rent?

Landlords cannot simply do anything they want to remove a tenant from their home. Landlords must follow the very specific eviction procedures set forth in the law.

This is true even if the tenant is behind on paying his or her rent.

In Florida, tenants have a right to remain in their home until the landlord complies with the proper eviction process, including providing the tenant with a correct 3-day notice to pay rent or vacate the premises (there is a whole body of law related to defective 3-day notices).

Examples of Illegal Eviction in Florida

The law defines what a landlord can and cannot do in order to evict and move a tenant out of the rental unit before the end of the lease.

The law gives specific examples of acts by a landlord that are illegal and wrongful in Florida.  They are:

  • Terminating the tenant’s electricity;
  • Interrupting the tenant’s electricity;
  • Terminating the tenant’s gas;
  • Interrupting the tenant’s gas;
  • Terminating or interrupting any other utility service, such as garbage collection, elevator service, water, etc.;
  • Changing the locks on the rental unit;
  • Using a bootlock on the dwelling;
  • Preventing reasonable access to the rental unit in any way; and
  • Removing outside doors, locks, windows, roof, or walls except as needed for repair, maintenance, or replacement while the tenant still has possession of the rental unit.

Of course, having a law on the books is one thing.  It doesn’t stop bad landlords from trying to take advantage of renters and evicting them anyway.

Landlords ignore the law all of the time.  They know that most tenants won’t do anything about it. The unfortunate thing is that most tenants are unaware that many lawyers will represent a tenant who has been illegally evicted without requiring the tenant to pay any money to the attorney unless the attorney wins their case.

4 Things a Tenant Can Do If a Landlord Attempts an Illegal Eviction?

These situations can be emotional and even dangerous for tenants.  If a renter is able to communicate with their landlord without fear of harm or retaliation, then explaining that the Florida eviction laws have been violated can be helpful.  (A written notice is better than a phone call, because having written documentation may make it easier to defend against an eviction later on or to prove a claim for damages.)

1.  Give the Landlord the Law

Many times, landlords become reasonable and prudent people when they are informed of the law (especially when they realize the tenant is informed and the tenant has shared with the landlord that he or she can be liable to the tenant for damages).  Even though the landlord may still move forward to evict a renter, they will likely do so in accordance with the law.

2.  Call the Police

If the landlord does not remedy the violation, or if the renter is afraid to ask that the landlord obey the eviction laws, then the renter can always call the police.

Landlords are breaking the law when they turn off the utilities or change the locks.  The police can order them to comply with the law.  They can also help the tenant re-enter the home without being accused of “breaking and entering” the property.

The police officer will also file a police report of what has happened.  (This is more documentation for the tenant to use later, if needed.)

3.  Call the Utility Company

You have a right to basic utilities like electricity and gas.  If the landlord has turned them off, then call the utility company.  Ask that services be restored.  (You may have to pay a deposit.)

4.  Sue the Landlord for Damages

As stated above, if a landlord violates Florida Statute 83.67, he or she can be ordered to pay money to a tenant for a landlord’s bad behavior.  How much?

A violation of this statute can mean that a landlord can be ordered to pay his or her renter:

(1) Either (a) the tenant’s actual and consequential damages or (b) 3 months’ rent, whichever amount is greater;

(2) Costs of filing the lawsuit; and

(3) The attorneys’ fees of the tenant’s lawyer.

If the landlord repeatedly violates this law, then he or she can be required to pay the tenant each time the tenant is harmed.  (Note: in order for a tenant to be paid for each time this occurs, the repeated violations cannot have taken place at the same time as the initial violation.)

What is the Proper Florida Eviction Process?

What are the proper procedures a landlord must follow under Florida law to evict a tenant?  The law is clear.  These are the steps that a landlord should take when evicting a tenant:

  1. First, the landlord must give written notice to the tenant. This writing must be a 3 day notice to vacate or a notice of lease termination, and it should have a specific date or deadline for the tenant to vacate and all of the dates must be strictly adhered to;
  2. Second, if the tenant doesn’t move out by the deadline, then the landlord must file a lawsuit to evict the tenant (the landlord can also sue for damages – however, that can slow down the process unless the landlord follows certain rules related to civil procedure);
  3. Third, the landlord has to prove his or her right to evict the tenant to a judge and get an order signed by the judge allowing the eviction;
  4. Fourth, the landlord must obtain a writ of possession and then pay the County Sheriff to go to the home and post the writ on the door giving the tenant 24 hours to vacate the premises (some counties have special rules as to when the 24 hours begins). Once the 24 hours passes, and the tenant hasn’t moved out, the sheriff will then evict the tenant. At this time, any personal property left in the home will be removed by the sheriff, placed on the front lawn or in the street,  and the locks can then be legally changed.

What Can a Florida Tenant’s Rights Lawyer Do For You?

If you are renting your home here in Florida and are having trouble with your landlord, then a tenant’s rights lawyer can be very helpful to you even if it’s just explaining your rights.

For instance, it does not matter who pays for the electricity, gas, or water.  The landlord cannot interrupt these services to a tenant’s home even if the landlord pays for these services under the lease.  See Florida Statute 83.67.

Also, it is possible to go to court and get help fast.  A court order can be obtained from a judge to stop the landlord from committing any further bad acts.

How? Tenants can get priority help from judges because an illegal eviction is defined under the law as “constituting irreparable harm” which means a tenant can get “injunctive relief.”  (injunctive relief is where a judge specifically orders a landlord to stop acting in a harmful way) See Florida Statute 83.67.

A good piece of advice if you are being illegally evicted, is to speak with an experienced Florida real estate lawyer to learn about your rights, including how landlords can be ordered to pay a tenant’s legal fees if they win 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.

css.php