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The quickest way would be to file a claim in Small Claims Court in the County in which the property is located. You do not need an attorney for this. Just go to the clerk's office and they have packet to complete. Attach a copy of the contract to the claim. She will be served a copy of the complaint. You both will be required to attend mediation. If she does not show up for the mediation date, then you will receive a default judgment for the amount owed plus interest, plus court costs. She is required to satisfy the default judgment. If she does not then you file for garnishment. Basically if she receives a paycheck, then a portion of her paycheck is paid directly to you until the debt is satisfied. If she does not receive a paycheck then you are entitled to receive her IRS refund.
If she shows up to the mediation, she would have to bring receipts for costs incurred to prove why she did not payback the security deposit.
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Haven't heard back from you and wanted to see if the information was helpful?
Anywhere from 30 to 90 days. Depends on how backed up the court is.
First, therer is no guarantee in any situation that you will win a case. With that said, the law is on your side. For starters she did not hold the security deposit in an escrow account as required by law. That is a big no no for landlords. A security deposit has nothing to do with the 30 day notice. If she were to win on the notice issue, then you would most likely be liable for either one months rent or a partial amount of one months rent. She is not allowed to take the security deposit to satisfy the notice requirement. You would still be entitled to the security deposit. The deposit is to protect a landlord from damage to the property. If there is no damage then they have no right to take your deposit.
As far as having a voice recording, this probably won't be necessary. The court will ask her to prove the funds were held in an escrow account. Usually they want to see a bank statement reflecting the amount. They also want to see when she withdrew the money. Chances are she spent the money long before you were allegedly in violation of giving her notice. This is another big no no.
It is in her best interest to settle this before going to court because her HOA may become aware of the fact she is breaking their rules. She could be fined or punished in other ways by the HOA.
Notice is a moot point. It is not a factor when it comes to the security deposit. The court looks at it as two separate issues. If she wants to file a claim against you for lack of notice, she is allowed to and you are allowed to defend yourself. I highly doubt she will want to file a claim against you considering the HOA issue.
I'm telling you I have a feeling she took your security deposit long before she was allowed to, regardless of whether you were suppose to give her notice.
Yes file in small claims court. Yes the attorney card was a bluff. You know how I know that...I am an attorney and I cost money. Apparently she took your deposit because she's broke and doesn't have any money. There's no way she paid an attorney at least a $500 to $1000 retainer fee.
Even if she has an attorney, who cares...the law is very clear about holding a security deposit in an escrow account and she did not do that. It would actually work in your favor if she had an attorney because more than likely they would advise her to settle with you and stay out of court. You do not want to mess with an HOA. They have a lot of power.
I have a feeling she is also lying to the IRS. She is required to report rental income on her taxes. I doubt she is doing that which means she is committing tax fraud.
That attorney is correct in saying she could turn around and sue you for one months rent, which is what I said to you as well; however, what that attorney is not taking into consideration is that she is in violation of her HOA, she's probably committing tax fraud, and she converted the security deposit into her own money before she was allowed to. Taking the security deposit is considered a theft. The last thing she wants to deal with is a possible criminal matter over such a small amount.
I have always said she may have a claim for the Notice, but is it in her best interest to pursue it. Also, small claims court does not require an attorney and you do not go before a judge. You and her will be required to attend a mediation to settle the matter. You have no repercussions with the court over the notice issue at a mediation.
Just a heads up, as an Expert for Just Answer I can read your other post and I see that it is a duplicate post and you are taking my answers and posing them to the other Expert...for example the HOA and tax fraud.
Your phone recording will not be accepted in court and it also does not prove anything. Her verbal admittance to the security deposit is not needed. The most damning evidence against her is her own bank records. She has to show a bank statement that shows the funds were deposited into an escrow account. Without the bank statement to prove the deposit was held separately from her personal money, she loses. There is no need for the voice recording.
Holding the money in a separate escrow account is not the key. The key is she took the money before she was allowed to. That's where she violated Florida Statutes.
The HOA will not directly affect your mediation; however, it will affect her as far as trying to continue to rent her room for income. It sounds like she needs the money and would want to protect that. If the HOA is notified she will be in violation of her HOA By Laws which has consequences. It is not worth her beating you only to turn around and realize she can't rent anymore. Is your security deposit worth giving up all the future rent she could collect?
When you file in small claims, it does not go to a judge for a hearing. You and her will be sent to mediation. There is no winning or losing in mediation. It is a settlement that is structured by a mediator.
When you go to mediation you tell the mediator that she is in violation of the HOA.
It's not blackmail to tell the mediator all of the facts, including her being in violation of her HOA.
You may, since a landlord has 30 days to return the deposit. Here's what happens though...you file a claim now, and let's say she returns your deposit because she has 30 days to do so...then you withdraw your claim from the court and go about your business.
She already admitted to taking the money and spending it. So we know the deposit is not there for her to return it. Plus the mediation will not be scheduled until at least November, which at that point you are past the time frame she has to return the money to you.
Correct. For now all she'll receive is the complaint and then she has 20 days to respond. That right there puts you in November.
Not exactly...all you have to prove is that she took the money before she was allowed to. Basically the court can infer that her written itemized list is a moot point because her taking the money before she was allowed to, shows she never had intent to return the deposit.
I know this is frustrating. Keep in mind the law is not black and white; there is a lot of gray area. This is where you can fight and have rights.
I appreciate the kind words. Thank you!
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