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  1. #1
    Join Date
    Jul 2007
    Posts
    18

    Default Eviction in Florida, Lee County

    Landlord/Plaintiff Eviction Summons and my wife;s response. We guaranteed a residential lease however the Company is Tenant and she and I are the allowed occupants.

    See if you agree that I might be able to get

    1) a dismissal of the Eviction
    2) Not be required to pay into the Court rent for this month (due tomorrow as is the end of the month)

    Answer by Amelia Fookers, Defendant:

    Plaintiff did not constructively serve Defendant with a Notice of Non Compliance neither posted on the door, mailed or hand delivered.

    The Tenant/Defendant is claimed to be Amelia Fookers. The Tenant is XYZ Unlimited of North Woohoo, a Mississippi LLC. Amelia Fookers is an allowed occupant of the Tenant.

    Defendant received the Eviction Summons on July 25, 2007 mailed on July 24, 2007 by Charlie Snotnose, Clerk Of Circuit Court

    Plaintiff claims that rent for July 2007 was not paid. Plaintiff filed for Eviction on July 23rd, 2007. Attached are copies of emails and USPS postal receipt 0306 1070 0004 5836 7820 showing that Plaintiff was of delivery of the rental payment at the address indicated on the Lease Agreement.

    18265 Daleletonian Lane
    LA CA 92404

    Plaintiff has refused to cash the company check sent on July 18th, received on July 20th, or return said check.

    Plaintiff has attached a Lease Agreement that is not the Lease Agreement for the Premises. The Plaintiff’s attached Lease Agreement is unsigned by Plaintiff and is not initialed by Plaintiff and Plaintiff has not provided proof of breach or cause for terminating the tenancy

    Defendant asks for a Waiver of Right To Proceed with the eviction claim on the grounds that the Plaintiff accepted the rent payment, that there is no breach of the Lease Agreement and has waived her rights to proceed. Defendant claims that the Plaintiff has accepted the rent and has failed to reasonably and promptly return the payment to the Defendant. {83.202, 2007 Florida Statutes}

    Defendant has performed according to the Lease Agreement and the Plaintiff has relinquished her right to terminate the rental agreement or to bring a civil action.

    Plaintiff has failed to meet the provisions of Florida statutory law for constructive notification and the proper filing of an Eviction Summons.
    ================================================== =

    Comments?

  2. #2

    Default Re: Eviction in Florida, Lee County

    While it's nice you posted the details of your answer..obviously no one on here can see the full summon/original complaint OR what the landlord has to present in court.

    You will likely have to go to court on that answer and prove it. If the LL somehow proves that they DID serve a THREE day to pay/quit by mailing which is enough per FL law then they do not have to accept rent after that three day notice expired more than likely.

    Also, you say COMPANY check? COMPANY is the tenant and you /wife are occupants?

    Please explain this.

    Non payment is different process slightly than other non compliant claims in FL. Here are some select codes that might help.

    (3) If the tenant fails to pay rent when due and the default continues for 3 days, excluding Saturday, Sunday, and legal holidays, after delivery of written demand by the landlord for payment of the rent or possession of the premises, the landlord may terminate the rental agreement. Legal holidays for the purpose of this section shall be court-observed holidays only. The 3-day notice shall contain a statement in substantially the following form:


    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) .
    (landlord's name, address and phone number)

    (4) The delivery of the written notices required by subsections (1), (2), and (3) shall be by mailing or delivery of a true copy thereof or, if the tenant is absent from the premises, by leaving a copy thereof at the residence.

    (5) If the landlord accepts rent with actual knowledge of a noncompliance by the tenant or accepts performance by the tenant of any other provision of the rental agreement that is at variance with its provisions, or if the tenant pays rent with actual knowledge of a noncompliance by the landlord or accepts performance by the landlord of any other provision of the rental agreement that is at variance with its provisions, the landlord or tenant waives his or her right to terminate the rental agreement or to bring a civil action for that noncompliance, but not for any subsequent or continuing noncompliance. Any tenant who wishes to defend against an action by the landlord for possession of the unit for noncompliance of the rental agreement or of relevant statutes shall comply with the provisions in s. 83.60(2). The court may not set a date for mediation or trial unless the provisions of s. 83.60(2) have been met, but shall enter a default judgment for removal of the tenant with a writ of possession to issue immediately if the tenant fails to comply with s. 83.60(2). This subsection does not apply to that portion of rent subsidies received from a local, state, or national government or an agency of local, state, or national government; however, waiver will occur if an action has not been instituted within 45 days of the noncompliance.

  3. #3

    Default Re: Eviction in Florida, Lee County

    Is this a commercial or residential rental agreement?

    Also...just as a side note...if the rent wasn't paid by about the 3rd or 4th..I would serve 3-day and not accept rent past the time it expired and likely already have you OUT in CA even if you came up with the money after that time. The LL can choose to terminate the agreement and not accept payment after expiration of 3-day.

    So your court case will be more about proving or disproving 3-day notice was sent and maybe this company thing..not sure WHAT that means.

  4. #4
    Join Date
    Jul 2007
    Posts
    18

    Default Re: Eviction in Florida, Lee County

    Thanks for your responses. I am certainly happy that I am not on CA

    The Tenant is an LLC, the right to occupy is two individuals; this was done so that the biz could take the expense for tax purposes.

    To bring you up to date, we files the Answer above and the judge took a few days and filed a Certificate Of Clerk As 2 No Rent Deposit. I am, looking at one of several choices at this time.

    1) File A Motion To Determine Rent
    2) File A Motion To Dismiss

    Both are valid. The Landlord has yet to produce a signed copy of the Lease, we have, and the differences are considerable. One is that the deposit of $500 is not due until 30Aug07.

    The Landlord accepted rent and as you pointed out did not make prompt return of it either. The rent was never late according to our lease (BTW, the Landlord is in CA )

    Actually, this is getting to be fun. Landliord is a whacko with a drug problem, what she wants is possession for her own use as she has been evicted out of her home in CA . Thinking that she would file and possess, she rides by in her WhackoMobile 3-4 times a day. I never forget to wave.

    To make matters worse for her, we have an Option To Purchase at a set number which is 75% of value even in these down real estate times.with no other stipulations. It is an Addendum to the Lease. I believe we are going to exercise it. Closing on or before 1April...2008, near the end of the lease.

    Comments appreciated

  5. #5
    Join Date
    Jul 2007
    Posts
    18

    Default Re: Eviction in Florida, Lee County

    [QUOTE=CA LL;117384]While it's nice you posted the details of your answer..obviously no one on here can see the full summon/original complaint OR what the landlord has to present in court.

    Non payment is different process slightly than other non compliant claims in FL. Here are some select codes that might help.

    (5) If the landlord accepts rent with actual knowledge of a noncompliance by the tenant or accepts performance by the tenant of any other provision of the rental agreement that is at variance with its provisions, or if the tenant pays rent with actual knowledge of a noncompliance by the landlord or accepts performance by the landlord of any other provision of the rental agreement that is at variance with its provisions, the landlord or tenant waives his or her right to terminate the rental agreement or to bring a civil action for that noncompliance, but not for any subsequent or continuing noncompliance.

    This is why a Motion to Dismiss should be valid. LL accepted the rent payment and failed "to promptly return the same" which keeps LL from doule dipping the rent once a Tenant had paid it into court registry.

  6. #6

    Default Re: Eviction in Florida, Lee County

    Gotta ask again...

    Is this a COMMERCIAL or RESIDENTIAL lease..makes a HUGE difference in eviction proceedings, law, etc.

  7. #7
    Join Date
    Jul 2007
    Posts
    18

    Default Re: Eviction in Florida, Lee County

    Quote Quoting CA LL
    View Post
    Gotta ask again...

    Is this a COMMERCIAL or RESIDENTIAL lease..makes a HUGE difference in eviction proceedings, law, etc.
    It is a residential lease ( a home) with the Tenant being an LLC

  8. #8
    Join Date
    Jul 2007
    Posts
    18

    Default Re: Eviction in Florida, Lee County

    Update 03Aug07 Fri

    It has been 10 days since the date of service (24July07) of the Eviction. The LL filed a ridiculoulsy poor intial Complaint, unsigned lease and several other glaring problems, attached to the Complaint.

    The Judge refused to grant a default for nonpayment of rent today. Even though the Clerk's office alerted him that I had no money for July or August paid into the court's registry.

    A hearing has been set for Wednesday. I am going to file a Motion To Dismiss which should easily be approved since LL had accepted rent and made no effort to return the rent check.

    We will see, the Judge has two completely different sets of facts, I wouldn't be surprised if I refused to Dismiss just to get LL and Me in the same room to sort this wrteched affair out.

  9. #9
    Join Date
    Jul 2007
    Posts
    18

    Default Re: Eviction in Florida, Lee County

    The judge ordered that LL and I attend a hearing in his chambers the following week. During that time, the LL took a set of emails that had my name on them to the county police. By irritating them with the emails in hand, she got them to drive with her for a entry into the house regardless of the stated lease condition of 72 hours prior notification.

    One officer took ker through the house where she took at least 100 photos. The other confronted me with the emails, which I was not the author, and seriously began harrassing me over their content. Keeping my cool (knowing that your emails are marked with your IP address (ahem, not posting from state I now live in FYI) I let him act like a cretin.

    She left but during the harrassment, the officer claimed that I was under investigation for these emails and gave me the detective's name. I called him and he confirmed that I was but refused to tell me what the charges were under his investigation. I believe he was a liar and sure enough, I have found at he was.

    But the end is a happy one. After LL refusing to cash the certified checks for the last two months while proceedings were going on, I found a much better place. I killed the certified checks with my bank and moved out. LL did get her eviction even though I called the judge to tell him that I had been counseled by my criminal attorney not to go to attend the hearing for those reporting notes could be held against me.

    So I pocketed two months rent, the LL who later it was revealed was in Chpter 13, was forcing me out of her place so she could live in it. She has had it on the market and reduced the price $100,000 less than she paid. No buyers.

    I called her up and told her that I had no issues, that I was oh so wrong and would he let me buy the place for cash. Of course she would! Her ditzy Realtor who had forged the emails showed up at closing and so did the lying detective. At which point I evoked the cancellation clause, receive my deposit in return and informed the Realtor in front of God and Man that the IP addresses fingered her as the forger. The detective sat there motionless.

    It gets better. I also told the Realtor that the golf course siren was so loud it would startle you to the point of near heartattack (true), that it went off up to 20 times a day (true in rainy season) and that there were water moccassins in holes all around the house (also true). The Realtor now has to let any Buyer know this under Full Disclosure.

    Moral: Eviction courts are for LL, be a Kennedy. Don't get mad, get even.

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