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jb156200
jb156200, Attorney
Category: Landlord-Tenant
Satisfied Customers: 155
Experience:  I am a licensed practicing attorney in Tampa, Florida.
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I just rented a room out of a woman's house for 1 month and

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Hello,I just rented a room out of a woman's house for 1 month and I moved out about 2 weeks ago and she's refused to give me my $700 security deposit back. I initially paid $1400 for the sum of the first month's rent and the security deposit. I paid half of it with a check and the other half with cash, but she wrote on the contract that it was paid explicitly in cash and that it says "paid" on the contract. She issued this to me as the receipt and it is signed by both of us.The contract itself says that she needs to give me the security deposit back within 30 days if the place is left clean and undamaged. I left the place spotless like I always do when I rent and move out, and I took a video that is very detailed. I also took pictures.She claims that I didn't give her 30-day notice and that she simply doesn't have any money, but the contract explicitly says that the security deposit would be kept in escrow. I did not give her 30-day notice, but the agreement that I would give her 30-day notice was completely verbal and is no where on the contract.One other thing I'm planning on doing is calling her and recording the phone call -- which after doing research I've determined is completely legal and admissible in court -- and having her tell me she's explicitly not going to pay, just to be sure.What is the most effective and quickest way I can get my money in full. I'm willing to take her to court. I just want to know how to go about this the smartest way.Thanks.
Customer: replied 1 month ago.
I'm in Florida by the way.

Good morning. My name is ***** ***** I am a licensed attorney in Florida. Please give me a moment as I type my answer.

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.

Please let me know if you have an additional question or need clarification of the information provided. Don't forget to rate my answer. There is no additional charge to you. Thank you.

Haven't heard back from you and wanted to see if the information was helpful?

Customer: replied 1 month ago.
Very helpful. I'm prepped to file tomorrow. How long will it take if, worst case scenario, I have to garnish her wages?

Anywhere from 30 to 90 days. Depends on how backed up the court is.

Customer: replied 1 month ago.
Thank you jb. One more clarification I need before I rate you.You did not address my chances of winning or the strength of my case. The landlord is claiming that I didn't give her 30-day notice, like I said. It says explicitly on the contract that it is a "month-to-month" rental and it says nowhere on the contract anything about 30-day notice. I also made a recording of a phone conversation with her last night where she repeated that she spent the money that was supposed to be in escrow and that her reason for not giving me the security deposit back is because she doesn't have the money. I have a geo-tagged and dated video of the place moved out of. It's perfectly clean and there's no damage. One thing I'm concerned about is that I haven't given her back the key. Also, she's not supposed to be renting her place out because of a rule with her home association. She hid it to prevent from paying an association fee. How will this come into play?

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.

Customer: replied 1 month ago.
She won't make the reasonable decision. I already gave her that opportunity to make that decision last night when I called her. She's a crazy Columbian woman. She texted me saying to call her lawyer.I'm going to file with small claims court.Also, regarding the notice, I only stayed there 1 month, so it would be impossible to give her 1-month notice unless I told her on the first day that I was leaving at the end of the month. Then, it would actually be a 2-month lease. Get what I'm saying? How does this factor in?

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.

Customer: replied 1 month ago.
Ok, so what ultimately do you recommend? That I file tomorrow with small claims court? That's what I'm planning on doing. Is this sound?Also, do you think the lawyer card she played was a bluff?
Customer: replied 1 month ago.
I agree with you there. That's a good point.

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.

Customer: replied 1 month ago.
That's what I thought! I said to myself even if she has a lawyer friend who cares! I'm filing tomorrow!Regarding the HOA, I decided not to mess with that yet, because she won't be able to pay me back as quickly if she loses if she's telling the truth because she seems to be relying on new renters for income, but I've let her know that I know about this vulnerability. Like I said, she's not making reasonable decisions. I've had a bigger money problem with a Columbian family when I was younger. They refused to pay me hundreds in wages for no reason and I was too naive to fight back. Columbians are ruthless with money.

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.

Customer: replied 1 month ago.
jb, I agree with what you're saying but another lawyer on here just told me this regarding the exact same question:"If you file before November 1, she will send you the written itemized list explaining that she's keeping the deposit to cover October's rent, and then she'll win. She might even file a counterclaim for the second half of November's rent, and she'll win that, too. So filing now doesn't help you at all.She cannot use the fact that you waited a month to file the lawsuit as evidence that she doesn't owe the money, both because the statute of limitations is 4 years and because, again, you can't file within 30 days.Note that if you sue her and she returns the deposit, she CAN turn around and sue you for October's rent. And because you didn't give her any notice, she will win that lawsuit. I'm sorry. The fact that you didn't know the law isn't a legal defense. Suing her could actually wind up costing you a lot of money."

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.

Customer: replied 1 month ago.
Well, I'm getting 2 pretty conflicting recommendations! So, I have to get to the bottom of this understandably.Is the phone recording I made legal?

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.

Customer: replied 1 month ago.
If you're seeing my conversation with the other attorney, then you can see that she is advising me profusely to wait until Nov 1st to file in small claims court because she believes that the landlord will properly give an itemized list giving the reason for keeping our deposit that I didn't give 15-day notice, and that I will lose on that basis.Does your earlier advice take into account that she wouldn't consider that she's breaking the rules with her HOA and evading taxes and that she's only concerned with beating us in court? How will her HOA directly influence the court hearing?

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?

Customer: replied 1 month ago.
Well how can I communicate this to her without illegally blackmailing her? I mentioned that I knew this in last night's phone conversation.

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.

Customer: replied 1 month ago.
I can point out in front of a mediator that I will report her to the HOA if she doesn't pay me? Basically blackmail? Really?

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.

Customer: replied 1 month ago.
Ok. Do you think I should wait until Nov 1 to file just to be safe, based on what the other attorney said?

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.

Customer: replied 1 month ago.
Ok, so she won't get a notice of a court date until November anyways?

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.

Customer: replied 1 month ago.
Yea, but like the other lawyer said she will then be notified before Nov 1 and if her lawyer is a friend then he'll just advise her to send me a written itemized list and then I'm not covered in that regard.

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.

Customer: replied 1 month ago.
Thanks so much jb. You were great. I will likely reference you for another question, so please keep this story on your brain!
Customer: replied 1 month ago.
Please allow me to rate you!

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!

Just message me with any additional questions you may have going forward.

jb156200 and other Landlord-Tenant Specialists are ready to help you
Customer: replied 1 month ago.
Well I don't really have any questions. I'm still too uncertain to go ahead and file. I'm going to do a little research on my own before I go ahead with the filing. I understand your approach, and it makes sense to me. My own personal belief is that if something is wrong then I should be able to have faith in the court system to have it sorted out. But, the other attorney seemed certain of her own opinion that I should wait for Nov 1st until filing because she could snipe me out of any money by sending me an itemized list! How am I to make a decision when I have 0 legal education, you know?

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