 |
(321)757-6848 |
 |
Email Me |
 |
Request Help |
Landlord-Tenant
Leases and rental issues.
Landlord-Tenant, Leases and Tenancies
Foreclosure Defense
If the bank has the proper paperwork i.e. Mortgage, Promissory Note, Acceleration letter, and the Fair Debt letter, and they can prove they own the Mortgage and Note and or sent out the other paperwork then it is pretty hard to avoid the foreclosure, and the best thing is to try to stall it as long as it takes to modify your mortgage.
1. The Plaintiff has failed to state a cause of action because the Mortgage attached to the complaint does not show that the Plaintiff is the owner and holder of the Mortgage, there is no attachment that shows that Deutsche Bank National Trust Company is trustee for Long Beach Mortgage Loan Trust 2006-7. There is no attachment that shows that the Lender on the Mortgage, who is: Long Beach Mortgage Company, ever assigned or transferred its rights to Deutsche Bank National Trust Company or to Long Beach Mortgage Loan Trust 2006-7. The case should dismissed for failing to state a cause of action and for failing to attach necessary documents. (SEE Deutsche Bank National Trust Company, Trustee for Goldman Sachs-FFMLY-2004-FF3 v. Pope, 15 FLW Supp. 453 (Fla. Cir. Ct. 4th Jud. Cir. 2008); Mortgage Electronic registration Systems, Inc., v. Dean Thomas Miesmer, Deceased, Et Al., 12 FLW Supp. 845 (Fla. Cir. Ct. 4th Jud. Cir. 2005).
2. The Complaint should be dismissed because the Plaintiff has failed to plead that the mortgage being foreclosed upon was assigned and or transferred to the Plaintiff. (SEE Mortgage Electronic Registration Systems, Inc. as nominee for Wells Fargo Bank, N.A. v. Marvin Johnson, 13 FLW Supp. 42(Fla. Cir. Ct. 4th Jud. Cir. 2005); Deutsche Bank National Trust Company, As Trustee for Morgan Stanley ABS Capital 1 Inc., Trust 2005-HE2 Mortgage Pass-Through Certificates, Series, 2005-HE2, v. Yolanda Ray, 13 FLW Supp. 136(Fla. Circ. Ct. 4th Jud. Cir. 2005); Mortgage Electronic Registration Systems, Inc. as nominee for Countrywide Home Loans, Inc. v. Angela Foster, 12 FLW Supp. 648(Fla. 4th Jud. Cir. 2005).
3. The Plaintiff has failed to state a cause of action because none of its attachments establish that it has standing to bring this lawsuit. (SEE Mortgage Electronic Registration Systems, Inc. v. Carol G. Dewinter, 12 FLW Supp. 554(Fla. Cir. Ct. 4th Jud. Cir. 2005)
4. The Plaintiff has failed to state a cause of action by not attaching a promissory note to the complaint. (SEE Mortgage Electronic Registration Systems, Inc. v. Dean Thomas Miesmer, 12 FLW Supp. 845(Fla. Cir. Ct. 4th Jud. Cir. 2005); Deutsche Bank National Trust Company, Trustee for Goldman Sachs-FFMLY-2004-FF3 v. Pope, 15 FLW Supp. 453 (Fla. Cir. Ct. 4th Jud. Cir. 2008); Mortgage Electronic Registration Systems, Inc., as nominee for EMC Mortgage Corporation, v. Jannette Lee, 13 FLW Supp. 461(Fla. 4th Jud. Cir. 2006).
5. The Complaint should be dismissed for failing to join an indispensable party, and that party is the true lender listed on the Mortgage. (SEE Mortgage Electronic Registration Systems, Inc., as nominee for EMC Mortgage Corporation, v. Jannette Lee, 13 FLW Supp. 461(Fla. 4th Jud. Cir. 2006).
6. The Complaint should be dismissed because the Plaintiff never alleged nor did it comply with the Fair Debt Collection Practice Act by providing mortgagor with appropriate notice of her delinquency. Failure to provide proper statutory notice before filing suit prevents plaintiff from proceeding with foreclosure action unless and until condition precedent is satisfied. The complaint should be dismissed for violating the Federal Fair Debt Collection Practices Act. 15 U.S.C. 1692(g) requires that Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing—
(1) the amount of the debt;
(2) the name of the creditor to whom the debt is owed;
(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;
(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and
(5) a statement that, upon the consumer’s written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.
The Defendant never received such notification. Before a Foreclosure action can be made against the Defendant the Plaintiff must prove that the aforementioned notice was sent and received by the Defendant. (SEE Nationsbank, N.S., Successor by Merger with Nations Bank, N.A. (South) Successor by Merger with NationsBank of Florida, N.A. v. Patricia L. Phillips-Jack, 5 FLW Supp. 542(Fla. Cir. Ct. 17th Jud. Cir. 1998).
7. The case should be dismissed because without a Note the property cannot be foreclosed. (SEE Mortgage Electronic Registration Systems, Inc. v. Dean Thomas Miesmer, 12 FLW Supp. 845(Fla. Cir. Ct. 4th Jud. Cir. 2005); Deutsche Bank National Trust Company, Trustee for Goldman Sachs-FFMLY-2004-FF3 v. Pope, 15 FLW Supp. 453 (Fla. Cir. Ct. 4th Jud. Cir. 2008); Mortgage Electronic Registration Systems, Inc., as nominee for EMC Mortgage Corporation, v. Jannette Lee, 13 FLW Supp. 461(Fla. 4th Jud. Cir. 2006).
8. The complaint should be dismissed because the Plaintiff has not performed all the aforementioned conditions precedent before bringing this suit, to wit: complying with Fair Debt Collection Act, attaching necessary documents.
Foreclosure and Tenants
A tenant living in a residence that is being foreclosed upon must still pay the rent until the house is actually sold at which time the landlord is no longer the owner of the residence. If the tenant fails to pay the rent he or she could be evicted. Obviously if the written lease is expired or the tenant has an oral lease, the tenant can give proper notice to terminate the lease.
There is also an argument that the tenant can stop paying rent to the landlord once a final judgment of foreclosure has been entered against the landlord.
The tenant naturally does not want to pay and fears not having the security deposit returned.
There is a school of thought that the foreclosure is a breach of the covenant of quiet enjoyment and unless the landlord stops the foreclosure the tenant can get out of the lease.
However, the safest bet is for the tenant to pay the rent until the house is actually sold. In the event of a sale of the house there is a new federal statute that protects the tenant and allows the tenant to finish out the lease if there is one and if there is not one to get at least ninety days notice before the tenant has to vacate.
Foreclosure sale of leased premises does not constitute breach of landlord’s covenant for quiet enjoyment, since such covenant, express or implied, goes only to possession, not of title, and change of title to leased premises is of itself not inconsistent with lessee’s peaceable possession. Hyde v. Brandler, 118 A.2d 398 (Mun. Ct. App. D.C. 1955).
Thus, declaring that there could be no breach of the covenant for quiet enjoyment unless there was an eviction, actual or constructive, the court in Capone v. Hinck (1937) 163 Misc 47, 296 NYS 346, held that a tenant could not recover damages for breach of such covenant because of the institution of an action against him and his lessor to foreclose a mortgage on the leased premises, where it was not shown that there was an actual sale of the premises and a delivery of the referee’s deed to the purchaser. To the contention that the lessee had requested the lessor to defend the action to foreclose the mortgage and that the lessor had refused to do so, and that this constituted sufficient grounds for damages for breach of the covenant of quiet enjoyment, the court pointed out that the foreclosure action never reached a final stage of actual sale of the premises and delivery of the referee’s deed, but was settled by the lessor’s payment of a consideration to the lessee, who then surrendered the lease.
Lessors did not breach covenant of quiet enjoyment, despite lessors’ failure to pay their taxes, where lessees were not evicted, either actually or constructively, but continued to occupy premises through foreclosure sale and beyond. U.S. v. G & T Enterprises, L.C., 978 F. Supp. 1232, 80 A.F.T.R.2d 97-7908 (N.D. Iowa 1997), judgment aff’d, 149 F.3d 1188, 81 A.F.T.R.2d 98-2202 (8th Cir. 1998).
Although an action to foreclose a mortgage resulted in a decree of foreclosure, the court in John R. Thompson Co. v. Northwestern Mut. L. Ins. Co. (1937, DC Ohio) 31 F Supp 399, pointing out that it did not appear that there was a sale under the decree, but, on the contrary, that the mortgage was satisfied and discharged within the period given in the decree, held that the express covenant of quiet enjoyment in the lease was not breached by such proceedings, even if the covenant could be breached by loss of title by the lessor, it being apparent that no title was lost by the lessor under such proceedings.
Disposition of Abandoned Tenant Property
If a tenant abandons the premises and leaves property behind there are certain rules you must follow to avoid being sued. These rules can be avoided by having this clause in your lease:
BY SIGNING THIS RENTAL AGREEMENT THE TENANT AGREES THAT UPON SURRENDER OR ABANDONMENT, AS DEFINED BY CHAPTER 83, OF THE FLORIDA STATUTES, THE LANDLORD SHALL NOT BE LIABLE OR RESPONSIBLE FOR STORAGE OR DISPOSITION OF THE TENANT’S PERSONAL PROPERTY. For the purposes of this section, abandonment shall be as set forth in Florida Statute, 83.59(3)(c).
If the above clause is not in your lease then you must do the following:
715.105 Form of notice to former tenant.—
(1) A notice to the former tenant which is in substantially the following form satisfies the requirements of s. 715.104: Notice of Right to Reclaim Abandoned Property
To: …(Name of former tenant)……(Address of former tenant)… When you vacated the premises at …(address of premises, including room or apartment number, if any)…, the following personal property remained: …(insert description of personal property)…. You may claim this property at …(address where property may be claimed)…. Unless you pay the reasonable costs of storage and advertising, if any, for all the above-described property and take possession of the property which you claim, not later than …(insert date not fewer than 10 days after notice is personally delivered or, if mailed, not fewer than 15 days after notice is deposited in the mail)…, this property may be disposed of pursuant to s.
715.109. (Insert here the statement required by subsection (2)) Dated:…. …(Signature of landlord)…..(Type or print name of landlord)…..(Telephone number)……(Address)…
(2) The notice set forth in subsection (1) shall also contain one of the
following statements:
(a) “If you fail to reclaim the property, it will be sold at a public sale after notice of the sale has been given by publication. You have the right to bid on the property at this sale. After the property is sold and the costs of storage, advertising, and sale are deducted, the remaining money will be paid over to the county. You may claim the remaining money at any time within 1 year after the county receives the money.”
(b) “Because this property is believed to be worth less than $500 $250, it may be kept, sold, or destroyed without further notice if you fail to reclaim it within the time indicated above.”
715.106 Form of notice to owner other than former tenant.—
(1) A notice which is in substantially the following form given to a person who is not the former tenant and whom the landlord reasonably believes to be the owner of any of the abandoned personal property satisfies the require-ments of s. 715.104:
Notice of Right to Reclaim Abandoned Property
To: …(Name)…
…(Address)…
When …(name of former tenant)… vacated the premises at …(address of premises, including room or apartment number, if any)…, the following personal property remained: …(insert description of personal property)…. If you own any of this property, you may claim it at …(address where property may be claimed)…. Unless you pay the reasonable costs of storage and advertising, if any, and take possession of the property to which you are entitled, not later than …(insert date not fewer than 10 days after notice is personally delivered or, if mailed, not fewer than 15 days after notice is deposited in the mail)…, this property may be disposed of pursuant to s. 715.109.
(Insert here the statement required by subsection (2)) Dated:…. …(Signature of landlord)…..(Type or print name of landlord)…..(Telephone number)……(Address)…
(2) The notice set forth in subsection (1) shall also contain one of the following statements: (a) “If you fail to reclaim the property, it will be sold at a public sale after notice of the sale has been given by publication. You have the right to bid on the property at this sale. After the property is sold and the costs of storage, advertising, and sale are deducted, the remaining money will be paid over to the county. You may claim the remaining money at any time within 1 year after the county receives the money.” (b) “Because this property is believed to be worth less than $500 $250, it may be kept, sold, or destroyed without further notice if you fail to reclaim it within the time indicated above.” Section 5. Subsection (1) of section 715.109, Florida Statutes, is amended
to read:
715.109 Sale or disposition of abandoned property.—
(1) If the personal property described in the notice is not released pursuant to s. 715.108, it shall be sold at public sale by competitive bidding. However, if the landlord reasonably believes that the total resale value of the property not released is less than $500, she or he may retain such property for her or his own use or dispose of it in any manner she or he chooses. Nothing in this section shall be construed to preclude the landlord or tenant from bidding on the property at the public sale. The successful bidder’s title is subject to ownership rights, liens, and security interests, which have priority by law.
Ejectment
An ejectment action is used when you want to remove someone who is not considered a tenant. An ejectment action has to be filed in circuit court.
Service Animals and Tenants
If a tenant has a service animal a landlord has to sometimes make reasonable accommodations so the pet can remain in the rental unit.
For example, an owner might make an exception to a “no pets” rule for a tenant with a disability who needs a guide dog or other service animal. An owner, however, is not required to help care for the animal. The latter would result in a fundamental alteration in the nature of services provided by the owner. Finally, because a request for an accommodation or modification must be directly linked to the person’s disability, owners have the right to ask an applicant or tenant who submits the request for documentation of his or her disability.
If a tenant or applicant provides documentation from a physician or health care provider, an owner must consider the request even if the tenant or applicant doesn’t “look” disabled.
Security Deposits
The Landlord has 15 days from the time the tenant vacates the premises to send a certified letter to the forwarding address the tenant has given the landlord with the full amount of the deposit, or to the last known address of the tenant, which may be the rental unit, if no forwarding address was given.
The Landlord has 30 days from the time the tenant vacates the premises to send a certified letter to the forwarding address the tenant has given the landlord stating in detail why the Landlord is keeping part or all of the deposit and returning what is left, or to the last known address of the tenant, which may be the rental unit, if no forwarding address was given.
The notice must also state that the tenant has fifteen (15) days to object or the landlord will be allowed to keep the money.
Section 1. Subsection (3) of section 83.49, Florida Statutes, is amended
to read: 83.49 Deposit money or advance rent; duty of landlord and tenant.—
(3)(a) Upon the vacating of the premises for termination of the lease, if the landlord does not intend to impose a claim on the security deposit, the landlord shall have 15 days to return the security deposit together with interest if otherwise required, or the landlord shall have 30 days in which to give the tenant written notice by certified mail to the tenant’s last known mailing address of his or her intention to impose a claim on the deposit and the reason for imposing the claim. The notice shall contain a statement in substantially the following form: This is a notice of my intention to impose a claim for damages in the amount of …. upon your security deposit, due to ….. It is sent to you as required by s. 83.49(3), Florida Statutes. You are hereby notified that you must object in writing to this deduction from your security deposit within 15 days from the time you receive this notice or I will be authorized to deduct my claim from your security deposit. Your objection must be sent to …(land-lord’s address)…. If the landlord fails to give the required notice within the 30-day 15-day period, he or she forfeits the right to impose a claim upon the security
deposit.
(b) Unless the tenant objects to the imposition of the landlord’s claim or the amount thereof within 15 days after receipt of the landlord’s notice of intention to impose a claim, the landlord may then deduct the amount of his or her claim and shall remit the balance of the deposit to the tenant within 30 days after the date of the notice of intention to impose a claim for dam-ages.
(c) If either party institutes an action in a court of competent jurisdiction to adjudicate the party’s right to the security deposit, the prevailing party is entitled to receive his or her court costs plus a reasonable fee for his or her attorney. The court shall advance the cause on the calendar.
(d) Compliance with this section by an individual or business entity authorized to conduct business in this state, including Florida-licensed real estate brokers and salespersons, shall constitute compliance with all other relevant Florida Statutes pertaining to security deposits held pursuant to a rental agreement or other landlord-tenant relationship. Enforcement personnel shall look solely to this section to determine compliance. This section prevails over any conflicting provisions in chapter 475 and in other sections of the Florida Statutes, and shall operate to permit licensed real estate brokers to disburse security deposits and deposit money without having to comply with the notice and settlement procedures contained in s.
Draft and Review Leases
Many people especially in the residential scenario do not read their lease before signing it. Also, many landlords write leases that do not protect them properly.
I draft and or review leases that protect the rights of my client, whether the client is a landlord or tenant.
There are certain clauses you should and must have in your lease.
For instance:
BY SIGNING THIS RENTAL AGREEMENT THE TENANT AGREES THAT UPON SURRENDER OR ABANDONMENT, AS DEFINED BY CHAPTER 83, OF THE FLORIDA STATUTES, THE LANDLORD SHALL NOT BE LIABLE OR RESPONSIBLE FOR STORAGE OR DISPOSITION OF THE TENANT’S PERSONAL PROPERTY. For the purposes of this section, abandonment shall be as set forth in Florida Statute, 83.59(3)(c).
Termination Notice – by Tenant
Landlords
The termination of a lease by the landlord will often times lead to legal consequences for both the landlord and the tenant. I strongly recommend that landlords seek the advice of counsel prior to terminating a lease, especially a long-term, fruitful one.
Tenants
If you’ve received written notice that your landlord terminates the lease, contact my office at 321-757-6848 for a consultation. Whether the landlord has a right to terminate a lease or not, there are bound to be legal consequences. I can stand at your side as an helpful advocate, protecting your interests during this challenging time. Call my office at 321-757-6848 to schedule a convenient appointment.
If a tenant finds that his or her residence is unlivable, the tenant should contact an attorney regarding the protections that the law affords residential tenants, and the corrective measures landlords must take.
NOTE: A tenant who abandons his or her tenancy should take note that even though no lawsuit is filed, an unhappy landlord may yet try to negatively affect the tenant’s credit. My office can help you to check credit reports, and take appropriate action on your behalf.
Although I recommend that notice always be given in writing, tenants can terminate an oral lease by giving the same notice a landlord is required to give to terminate an oral lease. If needed, contact my office at 321-757-6848 for specific details of how Florida’s landlord-tenant statutes apply to your tenancy.
Termination Notice – by Landlord
Landlords
The termination of a lease by the landlord will often times lead to legal consequences for both the landlord and the tenant. I strongly recommend that landlords first seek counsel from an attorney prior to terminating a lease, especially a long-term, fruitful one.
Tenants
If you’ve received written notice that your landlord terminates the lease, contact my office at 321-757-6848 for a consultation. Whether or not the landlord has a right to terminate a lease, there will be legal consequences. It is valuable to have on your side an advocate like Geoffrey Golub. Reach him at 321-757-6848 or 321-750-1107.