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TexLaw
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Question for ZDNlaw only. Hi Zdnlaw Check my report about the hearing on the other thread, it was really crusty what happened in that lalaland court. This is my plan here. Nothing to expect from that judge except forcing her to do further mistakes, but then again, the way she will handle the rule 1.540 is clear. So I am waiting for her order, I will file my objections including that there is no attorney fee provision in the expired contract, and my wife was dismissed from the case and we have pleaded all along in our defenses that Plaintiff was not in conformity aith the ruls of court. While in FL the "normal" way is to claim against all the procuderal defects after the final judgment because the Court of Appellate does not want to interfere in on-going processes, interlocutory appeals are difficult to get sand only in cases where there is an order with immediate dispossession of property or payment of moneys etc.. I have read multiple publications about this, but if you have a different opinion, let me know. So filing this rule 1.540 motion and all what needs to be filed for the appelate rviews, and requesting an order setting a hearing asap is the way to go, and then maybe file a complaint against the opponents lawyer at the FL Bar and file a notice of Appeal and a motion to stay. The motion to stay is typically granted by the lower courts when there is a payment of money involved and I don;t have the kind of money these guys are asking for. So I am expecting the judge to deny the stay, but then I can ask the Court of Appellate also to stay the judgment and I am confident with the rule 1.540 and a fraud in the picture, and no fishy deals there, that I will get the stay from there. The interesting info here is that Plaintiff's attorney has filed his motion for attorney fees on April 4th and the final judgment was on Feb 25th.... So if the amended final judgment is voided, his motion is voided too. 

====================

This is exactly what I pleaded at the hearing and was granted all my previous motions but limited to pre-judgment interests:


Plaintiff failed to petition


 


Defendant did not intend to, does not and will not petition in his place by asking reconsideration for his amendments.


 


Defendant will not give Plaintiff a single chance to correct at this hearing in view to request an addition of 20,000 dollars to the reliefs against me and my wife.



Defendant's letter to the judge was exclusively to object the denial of due process of amending final order under the circumstances.


At the date his letter was written, Defendant was not notified nor aware that the Court had taken the decision to issue the final order.


THEREFORE IF DEEEMED MOTION IS EXCLUSIVELY ABOUT CORRESPONDENCE
IT IS NIL


A motion on an judgment that is nil is nil too


Now, before coming to my final point I respectfully XXXXX XXXXX submit the following points to this Court:


I affirm here that the Amended Final Judgment is nil, and that the Final Judgment is re-instated but it cannot be amended unless it is re-opened on a valid motion Rule 1.530


This is why I respectfully XXXXX XXXXX Court to consider and/or reconsider my amended motion to deemed motion that merges them all.


This would reflect accurately my intent.


 


My stated defenses are meritorious for the following reasons:


STOPPED BY JUDGE HERE…


 

Submitted: 1 year ago.
Category: Business Law
Expert:  TexLaw replied 1 year ago.
So, my understanding is that the Court has granted your motion for rehearing on the addition of the interest to the final judgment?

She has stated that she is not going to rule on the other motions, or did she grant them and is taking the prejudgment interest out of the Final Judgment?

In regard to your point about appeal or interlocutory appeal. You are correct in your understanding. Interlocutory appeals are very rare. You could have taken the judge up on a Writ of Mandate/Petition for Mandamus on the judge's failure to enforce the original order prior to the trial, but now the horse is out of the barn on that, and the proper procedure would be to wait for the court's resolution on your motions and an issuance of the final final judgment, and then proceed to appeal.

Did you ask the judge about the Findings of Fact and Conclusions of Law?
Customer: replied 1 year ago.

 


Thank you for your info and confirmations of some of my points, appreciated.


 


your motion for rehearing on the addition of the interest to the final judgment?


 


Not exactly. I had filed several motions to hammer my opponent's case, and especially the last one was a motion to amend the "deemed motion".


 


That's where I have all the affidavits of my many witnesses and almost all the contracts showing that I have a strong merit to be re-heard and granted a new trial.


 


It includes the excusable neglect reason that we had discussed.


 


That's the stuff that the judge did not want to hear of initially.


 


So she opened the fire by stating that we would only debate the prejudgment interest subject at the hearing.


 


That's were I had to exchange fire until I got to my point, so now she granted rehear on all my motions ( my amendment was requiring to merge all the motions) with the limitation that we will re-hear only the prejudgment interest point.


 


In other words, all the points that we had been discussed about are in these granted motions, they have made their way in by way of piggy-backing, I would say.


 


The judge let them in only for the part related to pre-judgment interests.


 


That's the limitation I will work on by objecting to the upcoming order with case laws.


 


I will show that she can not limit a meritorious defense in a rule 1.530 motion argument to a very single technical point. Abuse of discretion. I have already some case law in mind, but needs to be verified.


 


The excusable neglect and the fraud will be part of my upcoming rule 1.540 motion. We still have ammunition.


 


 


 


Your finding of facts and conclusion of law observation is very much appreciated.


 


This is really another critical direction to object into, because actually, after verification, the final orders include these.


 


However because the final orders were written by my opponent's counsel and signed as is by the judge, they really suck big time. See below.


 


============================


 


I. FINDINGS OF FACT


 


(a)In 2008, the Defendants began renting the Plaintiffs former property located at nnn Street Wyman Road Boca Raton, FL 33421 (the "Property"). When Defendants moved into the


Property, the Property was listed for sale on the MLS. On May 13, 2008, Defendants e-mailed Plaintiff regarding a lease to own arrangement (Plaintiffs Exhibit 1). As a result, Plaintiff took


the Property off the market, and Plaintiff and Defendants entered into a Lease with Option to Purchase Agreement, with the intent to eventually purchase the Property (See Plaintiff s Exhibit


2).


 


(b)Defendant Y did not sign Exhibit 2; however, Defendant Y resided at the Property at all material times.


 


(c) According to Exhibit 2, Defendants agreed to pay $2500.00/month to Plaintiff as rent.


 


(d) (PI. 2, p.3). Plaintiff agreed that, should Defendant Z agree to exercise his option to purchase, $1500.00 of each month's rental payment would be credited towards the purchase of


the Property.


 


(e) The Agreement expressly stated that if Defendant Z does not exercise his option and purchase the Property within one year of the Agreement, Z will lose the option money, as it is non-refundable and non-transferable.


 


(f) According to Paragraph 4 of the Agreement, Defendant Z agreed to install new flooring in the living room, sun room, dining room, kitchen, hallway and Master baths, as well as installing new kitchen countertops. Throughout the tenancy, Defendants subleased the


studio apartment for vacation rentals. In October 2009, while Defendants were in the process of obtaining financing to purchase


the Property, a flood occurred at the Property as a result of a plumbing leak in the bathroom. In reliance on the belief that Defendants were going to close on the purchase of the Property,


Plaintiff gave Defendant Y the authority to negotiate the insurance claim on his behalf through Craig WW, the representative with Property W Cos.


 


(g) Defendants remained in the Property, and continued to reside at the Property, during and after the flood event at the Property.


 


(h) However, as of October 2009, Defendants ceased making monthly rental payments to Plaintiff while continuing to sub-lease the studio as a vacation rental.


 


(i) On November 2,2009, Citizens tendered a check in the amount of$20,129.41 (Plaintiffs Exhibit 5) to Plaintiff. Defendants advised Plaintiff not to deposit the check until Citizens disbursed the remainder of the claim to Plaintiff. As a result, Plaintiff brought the check to the Property and told the Defendants to hold the check while the insurance claim was being processed.


 


(j) Ninety (90) days later, without the authorization of Plaintiff, and prior to the 2 insurance claim being processed in full, Defendant Z deposited the Check into one


of his own bank accounts.


 


(k)On June 4, 2012, the final insurance claim checks were disbursed to Plaintiff. After payment to Craig WW for his services, and to the mold remediation company, Plaintiff


tendered the remaining $41,100.00 to Defendants to make the necessary repairs to the Property.


 


(l) As Plaintiff testified at trial, he provided the money to the Defendants because they were going to purchase the Property. Prior to tendering the check to Defendants, Defendants requested


Plaintiff make the check payable to Defendant Z's business account.


 


(m) In September 2010, more than two years after the Agreement to purchase the Property was executed, Plaintiff was informed by Euro Mortgage that Defendants' loan application was


denied. This would mark the third time that Defendant Z was denied financing.


 


(n) Plaintiff lost all hope Defendants would close on the Property, and set up a meeting at the Property with Defendants. At the meeting, Plaintiff asked Defendants for the insurance monies


to be returned to the Plaintiff; however, Defendants refused to return the insurance monies to Plaintiff, claiming they are somehow entitled to the money, and did not have to return it to


Plaintiff. At this time, Plaintiff also learned for the first time that Defendants deposited the November 2,2009 claim check into their own account.


 


(o) The Plaintiff testified at trial that Defendants failed to make several repairs to the Property. On December 8, 2010, the Boca Raton Police Department took several photographs


which proved Defendants failed to make the repairs to the hallway bathroom and adjacent walls.


 


(p) (Plaintiffs Exhibit _, a-h). Plaintiff testified he paid $5,000.00 out of pocket to fix the repairs. The Defendants testified at trial that they made several improvements and every necessary repair to the Property and are thus entitled to keep the entire $61,100.00 from the insurance claim. However, Defendants failed to introduce a scintilla of evidence to support the alleged improvements andlor repairs made to the Property. Defendants did not introduce a single receipt, photograph, or any other evidence to show that improvements andlor repairs had been made to the Property.


 


(q) The Plaintiff does acknowledge that Defendants installed the wood flooring as one of the requirements under the Agreement.


 


(r) Defendants did not pay rent to Plaintiff for thirteen (13) months from October 2009 through October 2010. In November 2010, Defendants made a wire transfer payment in the amount of$1500.00 to Plaintiffs mother's account in response to Plaintiffs Notice of Eviction.


 


(s) Defendants vacated the Property shortly thereafter. The parties stipulated and agreed Defendants lent Plaintiff $3,500.00 during the then tenancy which Plaintiff failed to pay back.


 


II CONCLUSIONS OF LAW


 


On the evidence presented, IT IS ORDERED AND ADJUDGED that:


 


1. Defendant Z is found to be in breach of the terms of the Lease Agreement and in breach of the verbal agreement for failing to make all the improvements and repairs to the Property and for failing to pay rent for the months of October 2009 to October


2010.


 


2. Defendant Z is further found to have been unjustly enriched by receiving the insurance claim proceeds and failing to make all the improvements and repairs to the Property, as well as for earning rental income by sub-leasing the Property and failing to pay rent for the months of October 2009 to October 2010.


 


3. Defendant Z is found to have been unjustly enriched by enjoying the benefit of the Lease Agreement by residing at the Property, receiving the insurance clailn proceeds, as well as for earning rental income by sub-leasing the Property and failing to pay rent for the months of October 2009 to October 2010.


 


4. The Plaintiff, P AUL X, shall have and recover from the Defendant,Z, damages as follows: $31,000.00 (Back Rent 13 Months); and $61,100.00 (insurance monies); less $3,500.00 (Defendants' loan), for a total of $88,600.00, together with interest from October 30, 2010 through February 25, 2013 in the amount of


$12,335.52, for a total judgment in the amount of $100,935.52 (One Hundred Thousand Nine Hundred Thirty Five and 52/100), for which let execution issue forthwith.


 


5. The Plaintiff, X, shall have and recover from the Defendant, Z, damages as follows: $31,000.00 (Back Rent 13 Months); and $61,100.00 (insurance monies); less $3,500.00 (Defendants' loan) for a total of $88,600.00, together with interest from October 30, 2010 through February 25, 2013 in the amount of $12,335.52, for a


total judgment in the amount of $100,935.52 (One Hundred Thousand Nine Hundred Thirty Five and 52/100), for which let execution issue forthwith.


 


6. This Judgment shall bear interest at the statutory rate until fully satisfied.


 


7. In addition, Plaintiff is entitled to his attorney's fees and costs as the prevailing party pursuant to the terms of the Lease Agreement against the Defendant, Z


 


8. Defendants shall complete under oath Florida Rule of Civil Procedure 1.977 (Fact Information Sheet), including all required attachments, and serve it on T. ESQ., Plaintiffs attorney, within forty-five (45) days from the date of this Final Judgment, unless the Final Judgment is satisfied or post-judgment discovery is stayed.


 


9. This Court reserves jurisdiction to enter further orders that are proper for entitlement to attorney's fees against YR Y, and to compel the Defendants to complete Form 1.977, including all required attachments, and serve it on T. Esq.


 


=============

Note I have added the (a),(b) etc... for easy reference because I see a lot of findings contradicting each other and the conclusions of law on some of these findings are not founded if not frivolous



 

Expert:  TexLaw replied 1 year ago.
Hi Pierre,

Thanks for writing. This is a lengthy post, so I'm going to take some time in responding.

Please make sure to go through and "rate"/"accept" on my other answers with you.

Thanks and will be back with you shortly,
ZDN
Expert:  TexLaw replied 1 year ago.
Hi,

You definitely do need to object to the objectionable portions of the Findings of Fact and offer a better/correct version of what was shown at trial (even the facts that were demonstrated against you). If there are inclusions in the statement which were not shown by the evidence at the trial, it is very important to object to this in writing and explain why this was not established at trial, especially since there is no record for the appellate court to review.

How was this originally presented to the court and was it served on you prior to the court signing it?
Customer: replied 1 year ago.

Thank you for the info.

The judge ordered verbally after the hearing that parties would send her their proposed final judgments. The particular court rule was to communicate 48 hours to opponent before sending to the judge.

Opponent communicated few hours before he communicated to the judge, there was no time to object.

The judge signed his proposal as is.

If there are inclusions in the statement which were not shown by the evidence at the trial, it is very important to object to this in writing and explain why this was not established at trial, especially since there is no record for the appellate court to review.

Thank you, XXXXX XXXXX do I implement that practically ? I am looking at filing my own proposed final judgment ?


The trouble is that 90% of what Plaintiff tells is pure lie, and truly I do not have the mental capability to identify the stuff inside that could be kept. He demonstrated nothing, it's all allegations and lies.



If you look at the final judgment, it is plaintiff's attorneys prose VERBATIM and it's a bunch of contradictions.



I called the adjuster one month later or so, not 90 days !!! the back of the check shows that it was cashed 45 days after it was issued and it went first to his sister in Virginia because he was never communicating any physical address, ... by the time it reached him and he brought it, it was around December 6th and the check was cashed on January 9th or so, as showing on its back.

This is an admitted evidence, the date of the check is written on it, the day it was cashed is on the back, and here we go, 90 days ! Look at paragraph (j)

Just 2 examples... nothing is consistent. or even makes sense.

Paragraph (b) and (c) , for instance... it says that Defendant Y, my wife, did not sign the attached lease in (b) but in (c) she agreed to pay the rent of $2,500 ??? it looks like the reason why she agreed was that she stood at the property.... like you try it, you buy it kind of deal... but it's not really saying that...

Other example...He says that he gave the me check until the insurance issue would resolve... however, we are the ones to have told him that this was the condition, he never said it was HIS condition... He remitted the check at a time when we had told him that we needed to wait to cash it. That is what the judgment states. So whenever we found it was no longer needed to wait, we cashed it...

What is the point here ? ... The reality is that he's afraid of the fraud tso he pretends like he's aware of nothing about the insurance claim, he trusted my wife, the master mind, so he signed everything blindly - especially the sworn statement of loss, and found himself with $80,000 in his hands out of luck !!! Just kidding...

Worse case scenario, his back up plan is to run away, he has no known address anywhere to be found.


An insurance claim does not work the way he describes. The insurance will not release the moneys if the property is not put back into condition, In fact they came and visited 2 or 3 times. It was witnessed by the staff of my Company from across the street, the office had large sliding window panes, and we could see anybody coming in and out of the property from there.

The insurance issue, as per the adjuster, was requiring not to cash the check when it would have been interpretated as a form of acceptation, before the adjuster files a new claim for additional moneys.

The adjuster had filed the new claim or whatever it was when I called him in January 2010, he said it was OK to cash the check. I called plaintiff and he said it was ok if adjuster had told me it was ok.

I told him to call the adjuster to make sure by himself, he replied there was no need.

I asked him if he would not endorse the check when only his brother had endorsed it, he told me that the brother had a power of attorney for all the co=owners of the property, brothers and sisters, so i did not need his signature.

I believed him and I was ignoring that I needed the signature of the adjuster and the decontamination company that were beneficiaries too.

I had never cashed a check with 4 beneficiaries before, in fact in Europe it's forbidden to endorse a check, they passed the law when I was in my twenties, so I am not really familiar with endorsements of checks.

the Police Detective told me it was a felony, and he had to investigate the matter and we had to bring the invoices of the repairs.

I told him about the above, so he concluded that there was no criminal intent.

Plaintiff had lied to him and changed his version 3 times, so he told me that he did not like plaintiff at all.



While I was in France getting treated, and where I was staying at some of my family;s, he told me he was of French origin etc... in fact he has a very common French name, He was very friendly, asked me to send him a report so he could close his file and make sure that if a judge would look into it, it would have nothing against me as he was believing I had been mislead and plaintiff was aggressively after me.



Etc... etc,,, etc,,,

I may ask Pam, the friend of my wife, maybe one of your neighbots, she's Texan..., She could do that work without getting upset like me, she's brilliant and as a business woman, she's familiar with lawsuits and she keeps on skyping me to offer her help. Actually she sent me something thatt could be of interest and that I am going to post in another question.

Please let me know how this is typically handled: file my proposed judgment ? Any other procedure ?

Expert:  TexLaw replied 1 year ago.
1. Thank you, XXXXX XXXXX do I implement that practically ? I am looking at filing my own proposed final judgment ?

- You file an "Objection to the Plaintiff's Proffered Findings of Fact and Conclusions of Law" on the grounds that it was not served on you in a timely fashion and did not allow you time to respond, and go through each item you dispute and state your dispute and why it was not supported by the evidence that was presented at trial by both parties. Then you file a "Defendant's Offer of Findings of Fact and Conclusions of Law" with a fair assessment of the trial...you have to be fair to both sides.
Customer: replied 1 year ago.

Sounds excellent . But is that objection not too late because the judge has issued the judgment and validated these and my opponent had sent these on January 18th, 2013 ?

My intention was to piggy-back this on my objection to the pending written order.

 

That order will grant my 1.530 rule motion (the one that merges all myprevious motions) on the limited point of the pre-judgment interests.

I will first bring up a strongly documented memorandum of laws to show that the Court is abusing of its discretion when my defenses are very meritorious and supported by affidavits of witnesses.

Rule 1.530(c) allows me to serve affidavits in support of my motion and if the opposing party does not serve opposing affidavits, that is weakening their case.

In that respect, I will object exactly the way you say, except the "vehicle" is different, but if it's not too late to file an "Objection to the Plaintiff's Proffered Findings of Fact and Conclusions of Law", I may reserve my objections to the upcoming order to other points.

I will file a "Defendant's Offer of Findings of Fact and Conclusions of Law", that sounds excellent too, but is it not too late.

 

It was my intention to attach a proposed re-amended final judgment to my objection that I will ask my friend's wife Pam to write for me. So I will have her writing this Offer and then I will just format the whole thing into a proposed final judgment.

If this judge does not like it, maybe the magistrates of the DCA will.

She will have a more objective approach than me.

Can I not piggy-back the Offer of Findings etc... to my objection to the upcoming order rule 1.530 on the grounds that Plaintiff did not let me the time to object previously ?

Expert:  TexLaw replied 1 year ago.
Yes, it is probably too late for the both the objections and the proposal, and the objections are likely waive, but you should put them in writing anyway and submit them to be ruled on by the court. The worst that can happen is that they are set aside as waived. However, the court could rule in your favor, and regardless it becomes part of the record. You should mention in the objections that the reason they are late is because Plaintiff failed to provide you with adequate notice and time for response.

You can mention it in the 1.530 motion, to show that the Findings of Fact are not proper and that what actually occurred at the trial does not support the final judgment. However, it should only be in passing. The main focus of the motion is not the defective findings of fact.
Customer: replied 1 year ago.

Got it.

I follow you 1000% on that logic, and here is how I want to introduce the whole thing as you described.

I am waiting for a written order to confirm the verbal order granting my motions - including the affidavits - but on a limited point of pre-judgment.

This order may not come, given the "profile" of the case, because the judge must suspect that I will object, and I am expecting my opponent to serve a notice of hearing instead, after having gotten a date from the assistant of the judge over the phone.

So i will use the transcript to establish there was a verbal order, never mind.

Therein, I will expose the double-standard situation very diplomatically and briefly and more extensively come up with case law where restricting to such a narrow point of pre-judgment interests in the presence of affidavit and a strongly meritorious defense is a denial of due process when cases should be adjudicated on their merits.

I will attach the transcript of course.

Then I will bring up my proposed final judgment that I will deem as objection to the late served proposed final judgment of my opponent and will come up with a request to vacate the amended FJ first, then request to re-open the final judgment and then propose to vacate it for a new final judgment , attach a copy of the proposed judgment, in which I will put the findings of facts and conclusions of law.

If you follow me on this one, I will actually go one step further in my claims, but let's focus on that one first.




Expert:  TexLaw replied 1 year ago.
1. "I am waiting for a written order to confirm the verbal order granting my motions - including the affidavits - but on a limited point of pre-judgment."

-You shouldn't wait for the written order. Go ahead and proceed, as there are deadlines that are ticking. You only have so much time before you miss your appellate deadline.

2. So i will use the transcript to establish there was a verbal order, never mind.

-Agreed. Proceed with haste.

3. Then I will bring up my proposed final judgment that I will deem as objection to the late served proposed final judgment of my opponent and will come up with a request to vacate the amended FJ first, then request to re-open the final judgment and then propose to vacate it for a new final judgment , attach a copy of the proposed judgment, in which I will put the findings of facts and conclusions of law.

-Yes. Good Plan.
Customer: replied 1 year ago.

>>You only have so much time before you miss your appellate deadline.

Thank you for reminding, but fortunately in FL's rules of Appellate Procedures, the rule 1.530 motion is tolling the appeal until it's disposed by an order.

The granted re-hearing, even if limited, is therefore a strong acquisition.

I will proceed right away, but remember I also have my rule1.540 motion to file....

Not being an attorney means that anything I want to do is presumed to harm me, therefore what an attorney would do in 10 minutes can take me 1 day sometimes.

The Notice of Appeal is 99% ready, I just have a template to fill in.

I am also filing into the docket whatever the court of appellate may need to see, but last time I came with almost 200 pages attached to my amended motion and I am afraid that the clerk may ask the judge at some point.

I need to make some calculations here and get some info about how this tolling would work if the amended final judgment would be vacated by the court of appellates, but this is for another question.

I am going to work

Expert:  TexLaw replied 1 year ago.
OK. I'm glad the deadline is tolled.

As far as the 200 pages that you are attaching, as long as it is not repetitive information which is already part of the court's record, it should be fine.

I'm standing by here for the next several hours if you need anything.

-ZDN
TexLaw, Attorney
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