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In FL procedures of civil Litigations, after I receive the final judgement from the judge, is it OK to be serviced an amended final judgement by Plaintiff's lawyer.?
Hi, Peter, and Welcome to JustAnswer, My name is XXXXX XXXXX I would be glad to help Answer yur question, but need a bit more information, if you do not mind,
1. Was the Amended Judgment served on you, signed by the Judge ?
2. What is different in the Amdned Judgment ?
Thank you and I look forward to your reply,
I received a copy of the letter of the Plaintiff.s attorney to the Judge syaing :On February 25th... Your Honor entered a Final Judgment against the Defendants after a one day trial. I haveenclosed a copy for you review. Due to scrivener's errors, as well as the failure to include prejudgmentinterest, please find an Amended Final Judgment in this matter.Which procedural rule allows this ?
Hi, Peter, Thank you for your reply,
A "scrivener's error" is one where a typing error was made and does not relate to any issues in the case or dispute between the parties. The copy of the letter you received which the lawyer sent to the Judge was putting you on notice that if you had any objection to an Amended Judgment reflecting the correction, you could voice that objection to the Judge.
The lawyer was required to send you a copy of any correspondence he had with the Judge, otherwise it would have been considered an "Ex Parte" communication with the Judge and the Judge would not have looked at it,
If you need clarification, please use the "Reply" button to let me know, and I will be glad to explain further,
Please be kind enough to rate my service to you as "Excellent Service", If you are given a survey, please be kind enough to leave some Positive Feedback, I would appreciate it greatly,
Thank you for allowing me the opportunity to assist you,
What is the notice and what are the objections, typically? Is this going to cause a new final judgment to be issued.As you have seen, there is a double recovery fraud in there, and I need to know with which timeframe I am working. Please answer to my other question. in the event thta I ask for a rehearing in order to have the judge admit my evidence by calling the related witnesses etc... I need to now what kind of timeframeI have to prepare this,
PS, I rated excellent ansd I will add a bonus when we are through with this question
Hi, Peter, Thank you for the "Excellent Service" rating and your offer of a Bonus, I appreciate it greatly,
In order to Answer your follow up question, I need to know the following;
1. Was a copy of the proposed Amended Judgment included with a copy of the letter ?
2. If so, what is the difference in amounts ?
3. Do you know in what amount the Plaintiff made a claim for "Loss of Rents" to his insurance company ?
4. When did you receive the copy of the letter from the Plaintiff's lawyer ?
Hi, Peter, Did you receive my last Information Request with the 4 questions I asked ?
Yes, and I had answered but I don;t see the answer....Here again :1.YES2. Approx $10,0003. Plaintiff cashed a check of $15,000 after claiming for maximum allowance. Plaintiff declared that we had vacated the property and lease agreement was void thereafter.4. today
Due to scrivener's errors, as well as the failure to include prejudgmentinterestthis is the reason alleged by Plaintiff's lawyer ( ...)
Hi, Peter, I had not received your reply to my Information Request so thank you for retyping your reply,
There is definitely something wrong in this case.
A. If the Judge awarded interest to the Plaintiff (which they usually do) that is one thing. However, a difference between the amount stated in the first judgment and the Amended Judgment is substantial and could very well be more than just a scrivener's error.
You can object to this, but first do some calculations of your own so that the Plaintiff's attorney cannot refute your objection. Multiply the amount of the judgment by the interest rate for the amount of time that interest was awarded, then add that amount to the total judgment and see what you come up with. If it does not seem correct, you can send a letter to the judge with a copy to the Plaintiff's lawyer, stating your objections to the entry of the Amended Judgment and tell the Judge that the basis of your objection is that your calculations result in a different amount of interest and the interest stated by the Plaintiff's attorney is excessive and does not comport with the Judgment award by the Judge. If you have any trouble calculating the interest amount, let me know and I will calculate it. If that is the case, I will need the following:
1. Interest rate stated by the Judge;
2. Amount of the Judgment;
3. Period of time in which interest is applicable.
B. If you just received this today, that means that you still have time to appeal this decision. Therefore, simultaneously with objecting to the Amended Judgment, file an Appeal. At the hearing on your Appeal, introduce the documentation of the Insurance company showing that the Plaintiff has already received payment for his claim for "Loss of Rents". The Appeal is absolutely necessary because if the claim for Loss of Rents is attributable to you, then when the insurance company paid the Plaintiff's claim, they were subrogated to the rights of the Plaintiff and that means that the insurance company can sue you for the amount they paid out to Plaintiff on his claim. Then it becomes complicated and would require you to incur legal fees which you ordinarily would not have incurred, but for the Plaintiff being paid twice,
the failure to include prejudgment interestThe $10,000 are the pre-jugement interestsSo the calculation is detailed and should be correct.These are no-where to find in the final judgment ...If I understand well,Plaintiff's lawyer is alleging a scrivener's error..... to add now pre-judgment interests (???!!!!!)Do you suggest a rehearing or an Appeal or both ?
You would not find the calculation in the Judgment. The Judge would simply state the amount of the Judgment and then say "Interest at the rate of ____ % is awarded. It would then be up to the Plaintiff's Attorney to calculate.
1. What is the amount of the judgment (amount awarded by Judge without interest) ?
2. Did the Judge specifically state that he was awarding interest also ? If so, what was the interest rate Judge stated (Usually about 6%)
3. On what date did Plaintiff first demand payment of amount in Number 1, above ?
4. Are you sure that the Plaintiff's Attorney is claiming $10,000 in interest ?
The calculation is in the letter of the lawyer to the Juge enclosing the Amended Final Judgment.As per your question 4,. You asked me the DIFFERENCE in between the 2 judgements (see above) and I answered $10,000 approx. The exact amount of interests stipulated in the proposed Amended Judgement is $12,335.52There are 2 counts in Plaintiff's complaint and we are examining only one to simplify for now, and the figures are for the 2 counts.The $10,000 difference is because there also another proposed amendment of $3500, which is a loan that I had made to Plaintiff and that the Judge had included by mistake in the total that he had granted to Plaintiff in his final judgment, But I don;t want to complicate for now and I prefer to stay focus on your questions .Your question 1. The amount is $92,100, but the back rents inside are $31,000, and the rest is related to the other count. Your question 2 : The final judgment says 7. "This Judgment shall bear interest at the statutory rate until fully satisfied." That is all. IT DOES NOT AUTHORIZE OR SPECIFY PRE-JUDGMENT INTEREST. Again, the letter of the lawyer to the judge enclosing the Amended FJ says "due to scrivener's errors, as well as failure to include pre-judgment interest", this is new and undocumented to me.Your Question 3 is a good question, because Plaintiff's demand for unapaid rents is subsequent to a second amended complaint serviced to me on May 2nd 2012. Plainttiff's lawyer calculates ERRONEOUSLY from the beginning of the case in October 2010 after merging the sums of both counts. The moneys granted by the judge for the count of breach of lease agreement is $31,000, so the interests should run starting May 3rd 2012 and not October 2010, if I understand well what is behind you question.This is what Plaintiff's lawyer is stating in his correspondence to the Judge:Interest was calculated as follows: 88,600 x 6% from October 30, 2010 through October 30, 2012 = $5,316.00 x 2 years= $10,632.00 $14.56 per diem x 117 days from October 31,2012 through February 25,2013 = $1,703.52.
Good morning, Peter, Thank you for your reply and your additional information,
If the Judge's decision stated, "This Judgment shall bear interest at the statutory rate until fully satisfied", then my Question 3 and its answer are irrelevant because the Judge did not grant any pre-judgment interest. He granted interest only on the judgment which did not come into being until the Judge rendered his decision, and such interest shall be payable until the judgment is paid (satisfied). Therefore, if the Judge just rendered his decision, then only a couple of days interest has accrued.
You should, therefore, object to the Amended Judgment immediately, stating something along the following line, in your letter to the Judge with a copy sent to the Plaintiff's lawyer,
Dear Judge __________
I am in receipt of Plaintiff's proposed Amended Judgment which he asks you to sign and a copy of the cover letter sent to you.
I am hereby objecting to the entry of the proposed Amended Judgment on the grounds that it does not conform to the judgment entered by your Honor and it is not being submitted to correct a "scrivener's error"., but rather, to add amounts which were not included in the Judgment.
By submitting the subject Amended Judgment for your Honor's signature, the Plaintiff is seeking to revise and completely change the Judgment entered by your Honor by adding pre-judgment interest which the Judgment did not contain.
May I respectfully XXXXX XXXXX Honor's attention to the Judgment already entered at the end of trial in this matter and which specifically states, "This Judgment shall bear interest at the statutory rate until fully satisfied"..
A normal reading of this statement is that interest does not accrue on any amount until it is reduced to judgment. The judgment in the instant case was entered on February 25, 2013. Therefore, no interest accrued until the date on which judgment was entered. Plaintiff's contention that pre-judgment interest is due is unjustified and without basis and amending the judgment to include pre-judgment interest is not a mere 'scrivener's error' , but rather, a drastic deviation from the judgment entered by the Court.
For all of the foregoing reasons, I am objecting to the entry of the proposed Amended Judgment submitted by the Plaintiff.
_________________________ Sign above the line and type your name below the line.
If you need clarification, please use the "Reply" button to let me know, and I will be glad to explain further,
Sounds cool, Andrea, big bonus on the waytitle="Wink"/>Ok, so what do I do about the double recovery situation , in which the cisrcumstances prevented me from coming up with the full documentation thta is evidencing the fraud ?a) Add to this letter to ask for amendment on my side ?b) Ask for a rehearing of the case ?c) Appeald) Other
In Answer to your questions
1. Regarding the fraud situation, first consider the fact that you might have to pay the judgment to the Plaintiff. If that is the case, you should use the Plaintiff to help you earn some of that money. Contact his insurance company that paid his claim for loss of rents. Ask the insurance company if they pay a reward to anyone who gives them provable facts about any insured who has filed a fraudulent claim. Get this in writing from them, especially as to the amount of the reward. Only after you get written assurance that they will pay you, the amount of the reward, and the date by which they will pay the reward; only then should you give them the Plaintiff's name. along with your judgment as proof of his double recovery;
2. You do not say how you would amend the Judgment;
3. I do not know if a rehearing would do any good if the same Judge will hear the case because he will exclude your evidence again which shows that Plaintiff was paid by his insurance company;
4. You should definitely file an Appeal on the grounds that the trial Judge erred in not permitting you to introduce into evidence the insurance company's documentation as proof that Plaintiff was already paid by his insurance company
Thank you very much Andrea, I sent you a new bonus of $100 and hope it goes 100% in your pocket, if I may ask without triggering the thunders of the website ( kidding...)
Ok, so I need now to get the transcript of the hearing from the court reporter and deliver the letter to the judge, so where do i find the court reporter at the Court House ? At the judge's office , the clerk's ,... ? And what kind of documentation do I need to bring to get this transcript delivered ?
Hi, Peter, I don't know how you do it, You have 6 open questions, you must be really hopping. Here is the way to get the Transcript, really "Notes of Testimony":
The office that takes care of transcribing the testimony of witnesses goes by different names, some courts call it the "Audio" Department, some courts call it something else. That's not a problem, though. Just call the main number of the Court House and tell the operator you want to order the Notes of Testimony of the case you were involved in and ask to be connected with that Department. When the operator connects you, tell them what you want and give the following information:
1. Name of the case;
2. Case Number
3. Date of trial
4. Time of Trial
5. Name of the Judge
6. Court Room Number
Tell them that time is of the essence because you want to file an appeal and ask them to expedite it and to call you when it is ready to be picked up. Once you get it, read each page carefully. You are looking for incorrect rulings by the Judge and these missteps on his part will be the grounds for your Appeal, i.e., the judgment is not supported by the evidence, the judgment goes against the weight of the evidence, the trial Court erred in denying your request to introduce record, document, etc., maintained by a company in their ordinary course of business. Thank you very much for the Bonus and tor the "Excellent Service" ratings. In answer to your question,no, I do not get to keep the full amount in my pocket and we are prohibited from discussing money with customers, I do not know the reason, I just try to follow the rules
Andrea, yes, and I am multitasking other things too... no worries, I can handle. I get the message about the bonusses. Thank you for your answers, very much appreciated.I need to regroup and process, as you will understandI will file the info, re-read, look at the appelate procedures etc...There are many grounds for errors in that case.We will go over this tomorrow if you are available. I will call the Audio room /reporter on Monday but i guess I will have to go to the court to deliver the letter that we discussed about ( this one is immensely appreciated).
I was reading your previous questions so that I can get a better understanding of the case and be able to give you better Answers. I did not want to keep you waiting, so I did not have a chance to read all of them. From what I read, and please correct me if I am wrong -
You had a lease with Plaintiff
The property became uninhabitable as a result of Hurricane Sandy
You moved to a property the Plaintiff had across the street
Plaintiff allowed you free access to the uninhabitable property in exchange for showing it to appraisers and repairmen,
Plaintiff puts in a claim for "Loss of Rents" with his insurance company,
Plaintiff swears that tenants (you) vacated, but then turns around and sues you for rent the uninhabitable premises
First lawyer withdrew, but never filed Answer to Plaintiff's Complaint
Second lawyer made some mistakes, then left you also
1. Is that pretty much what happened ?
2. How much did Plaintiff testify was your rent per month ?
3. How did he come up with $90,000 in past due rent ?
1. Case is complex, so there are a lot more to detail when we go into details. Especially in the light of the fact that I had rented the house in the first place as a secondary residence, being owner of a condo nearby, where to establish my home business, a corporation. So the imrovement works and the rents were paid by my corporation. And the moneys paid by Calvo after he got them from the insurance were paid to my corporation. I have stressed this out to the judge, thsi s a regular corporation of the State of DE, and the P has thereofre failed to meet his burden of proof that I would benefit of moneys he paid to my corporation. Things were based on trust so they are also a bit messy because there is unsufficient documentation. But basically yes, the whole deal is that the insurance moneys were going to me after deduction of the flood repair works and some to pay an early installment of the loan that was being processed. Actually they went to my Company, the checks were establishe to its order. There is no precise amount stipulated, the written agreement is global. because it is related to various written contracts, my previous lawyer filed a motion to dismiss the count of unjust enrichment.
1. What monies from the insurance company were being paid to you ? Part of the $65,000 paid for repairs necessitated by the Hurricane, or on another claim Plaintiff submitted ?
2. Why was Plaintiff paying your corporation ? Were you selling anything to Plaintiff ?
3. Please tell me how Plaintiff arrived at the $90,000 amount for which he was awarded judgment. Was this rent he claimed you owed him ?
1. Damage was a sewer flood, so it;s a lot of cleaning and painting, but not much else. The estimation of the adjuster is consisting of cleanings for the large part, and the hardwood floors for another part. I had paid and installed these hardwood floors,
I got a first check of $20,000 in December 2009, was endorssed and I deposited on my Company;saccount. Then the adjuster got more and the insurance issued another check of $15,000 for losses of rent and a second check of $50,000 approx for damages, for a total of $65,000 approxthese are the figures in front of my eyes, STATEMENT OF LOSS, established by the insurance Co
After cashing the 2 last checks ($65,000) P established a breakdown, partly hand written, that I could not admit as evidence, sorry, don;t remember why, either a photocopy problem after my car broke down andmy 2 printers before, etc.. or was vitime of hearsay exception, but there is a documentation that was produces by P. and that was admitted, that mentions this breaksown.P, then gave me a personal check in the name of my Company of approx 41,100. i have the breakdown if you wish.His allegation initially is thta I had stolen the first check ( civil theft, disnissed without prejudice,and 2 complaints at the Boca raton Police, rejected as unfounded, and stating his bad faith, but nevertheless his lawyer is comfortable to use these to give a bad impression of me tp the judge who probably did not read what;s inside these complaints)
The civil theft was that we had vacated the property after the flood and he had left the insurance check of $20,000 there and we stole it and cash it.Now he alleges that he gave me the second check of $41,100 to the order of my Company to do the flood repairs and that the repairs were not done, so there is an unjust enrichment,All the repair invoices and purchases of materials are in the name of my comaonay,becuase the house was used for the most part as a home Office. Rents were paid by my company too. P knew it since the beginning of our relationship. So he did not even ask me to the order of who m establish the check, it was almost automatic. He had received over time something like 30 monthly rents from my Company etc...
3. >>> P, did not arrive so far, but Judge did
Plaintif was claiming 61,100 less $3,500 less offsets for $28,000, need to check that. Judge forgit the offsets and the $3,500 in her judgment,For the rents, it was in excess of $15,000, so he got $31,000 which is well in excess based on an arbitrary rent estimation, using the terminated lease option purchase contract as a basis of an alleged verbal rental agreement, knowing that the rent in that terminated contract was $1,000 and the option moneys were $1,500The above, however, is just the tip of the iceberg to explain the extravagant manner in which the judge came to that $31,100 figure, ignoring a written agreement setting the rent to $1,500 after September 2010, thsi agreement was exchanged in between lawyers back thenAfter one month, P who was furious after he suspected we were about to biy another property, raised the $1,500 rent to $2.500 and we decided to leave in November 2010 or about.Judge is finding thta this payment of $1,500 to the mother - she finds,but actually to the sister and co-owner of the house who had cashed the 30previous rents over the years - this payment is in response to Plaintiff's notice of eviction !!!!!!!
In the judgment itself, Judge is finding a few number of facts that are total;y inept, showing thta she has flewn over the case at a very high altitude,so to speak. Examples are many, but for now I have elaborated quite a lot, so if any question let me know.
i sent you a maximum feedback with anther $100 bonus as i really appreciate the quantity of input your are putting in this case and i am very happy to benefit of your advices.
Peter, Thank you very, very much for the "Excellent Service" ratings and the generous Bonuses, I really do appreciate it, but what I appreciate the most is the faith you have placed in me to furnish you with Answers and information and help you to work yourself out of this maze.
1. You really should write a book about the circumstances in which you were thrown, all the things that have happened to you in your quest for justice, your witnessing the creative thinking of those who seek and succeed in filing fraudulent insurance claims and sometimes the wheels of justice are so slow that you have even seen them travel in reverse. The only thing is that you would have to sell the book as fiction because I do not think that anyone would believe this was a true story;
2. Peter, please, please send the letter I drafted for you to send to the Judge. Do not delay it. Both the Plaintiff and his lawyer are very slick. I will not believe that his lawyer does not know what is going on. But the lawyer is slick in his own right in trying to pass off thousands of dollars in an Amended Judgment as a "scrivener's error";
3. File your notice of Appeal. The Appellate Court's are very strict about adhering to the Rules of Appellate Procedure and they do not give any preferential treatment to any party simply because they are proceeding "Pro Se". You can add to the grounds for your Appeal:
4. Please do not lose your chance to speak to the insurance company. Give them enough information, without names, just to entice them, then negotiate your reward from them. I cannot stress the importance and favorable impact which exposing the Plaintiff will have on your case;
5. This will give substantial weight to your Appeal;
6. This "Newly discovered evidence" would be enough to have your request for a new trial granted.
7. But more importantly, with evidence showing fraudulent claims filed by Plaintiff, there is no Judge who would believe anything he said;
8. With this evidence of active fraud on the part of Plaintiff, his Complaint would be dismissed with prejudice in any new trial;
9. The $92,200 Judgment against you would be vacated.
10. (This should have been high on my list as Number 2 or Number 3) There are so many inconsistencies in Plaintiff's story because he has changed it so many times to fit his particular needs of the moment; Prime Example, Why would he have left a $20,000 check in the premises that you formerly occupied ?
11. How can Plaintiff claim you stole the first insurance check in the amount of $20,000 and in the same breath, state that he paid over to your company the second check in the amont of $41,000 to do repair work;
12. Contact the Florida Bar Association Lawyer Referral Service and ask for their "Pro Bono" Committee and see if you qualify for free legal representation:
Florida Bar Association Lawyer Referral Service
13. More Resources for Free or Low Cost Legal Assistance:
14. More Resources for Free Legal Services:
If this Judge granted your Lawyer's Petition for Leave to Withdraw, then you would add them as additional grounds for Appeal. Based on the information I gathered from your posts, I have placed all the grounds for Appeal here, in one place. There are probably more, but these are the ones I gathered from the information you gave me.
1. Trial Court abused his discretion in granting the Petition for Leave to Withdraw filed by Defendant's Attorney on the "Eve of trial"
2. You should report the lawyer to the Attorney Disciplinary Board because he acted unethically, compromised your rights and prejudiced your case by abandoning you. This is extreme unethical behavior and contrary to the Code of Ethics. Here is the Florida Attorney Disciplinary Board:
Florida Disciplinary Board
Director of Lawyer Regulation
651 East Jefferson Street
Tallahassee, FL NNN-NN-NNNNbr/>
3. Trial Court abused his discretion in refusing to Defendant's request for a Continuance in order to retain counsel;
4. Trial Court erred in denying Defendant's request to admit into evidence Plaintiff's emails to Defendant;
5. Trial Court erred in entering judgment in the amount o $_________ without evidence to support such judgment
6. Trial Court erred in that the Judgment is not supported by the evidence;
7. Trial Court erred in that the Judgment is against the weight of the evidence;
8. Trial Court erred in denying Defendant's request to introduce business records into evidence as an exception to the hearsay rule;
9. Trial Court erred in not placing appropriate weight on evidence which supported Defendant's case
Peter, if I can help you in any way, or you have more questions, please do not hesitate to let me know, Okay ? I am almost always online and if I am not, it is only for a few minutes, taking a much needed break. Please feel free to address your questions to me by typing my name at the beginning of your question like this,
"For Andrea Only .......... "
And I will respond as soon as I can. JustAnswer has a "Queue" system which requires us to Answer the questions in the order in which they come in and we are locked out of questions, even when customers have requested us, until we post an Answer to questions coming in prior to them. I just wanted to let you know, so that if you see that I am online, but I have not responded to you, it is because I am unable to do so until I post Answers t to those ahead of you.
Good morning AndreaThank you very much for your above advices and great work. I will copy it to Word and process it today, then come back with questions if needed. Let me tell you this about me, as for now, before I ask you the question at the end of this long expose. I am a retired businessmen, with 2 cancers under convalescence, including a melanomia and a second type of skin cancer thta is less agressive, and a prostate cancer that was just treated with rays for a couple of months, and in addition a brain tumor, meningioma. I am Dutch my wife is a US citizen from Connecticut, Old Saybrook, I have an MBA and a Master in Law from French top universities and Businesss School, and as an ex- developer, I have been through many court cases, in several countries, with different law systems and logics, some lawsuits being just amicable,like to arbitrate objectively a situation that was cnfusing both parties, some being much more aggressive.. The part I didn't get in the US legislative system, was the way to establish evidence, which is less flexible here. Therefore, I need to go through all the evidences of this case and read the transcript, and ask for advice to see which evidence can be brought to Appeal and whichone is not admissible. I have tons of evidences against the Plaintiff's allegations, in fact most of his exibits can be used against his claims, but I stilldon;t know which exhibits of the Plaintiff were admitted in this case and which ones were not..So my experience of court cases is to stop them asap and not expect much, as something will eventually backfire somewhere for some reason and create a mess in our lives.I have seen what you suggest very quickly, I will look into detail, and I must say that you are doing a wonderful work, while you are also a hard worker and a very dedicated person, whcich deserves a lot of respect. Such is not the case of Plaintiff, who is a kind of gigolo, living on women's money or on inheritance moneys or on his little scams. This guy was pushing me into a lot more works on his property than I ought to, and in fact I am the one in the unjust enrichment situation. So I have under-estimated my adversary quite a lot, which is my main mistake here, while my wife is still blaming me for having done all these improvements to a property that we wanted to purchase and that we liked,not the house itself, but the location by the beach and the environment. The lengthy introduction above being said, at this point my new question is about an email to Plaintiff's lawyer to explain him what i had tried to explain since the beginning, but was not conveyed by my lawyers :- This lawsuit is leading to a potential fraud, Plaintiff had been relentless against us in the hope that we would pay him back the moneys we got from him. Reason is that he had no intention to give it to us if we were not buying his house, but on the other hand if he had told us that straightforwardly, the deal in between us would have changed too.I don't want to elaborate further here, but the botXXXXX XXXXXne is that there was an agreement to pay him an addition to the sales price , on top of the sales price of the contract, which originally was capped to the maximum financable, and when the appraiser's report came in, the agreement would have led me to overpay his property substantially more than appraised. However, no breakdown of moneys were clearly defined, as to what goes to my improvements to the property, and what goes to the repairs of the flood damage and what goes to paying off the price addition, because Plaintiff then must have had in the back of his mind to ask us to refund the moneys in case we would not have bought the property.This is actually invalidating his unjust enrichment claim, as the intent must be well defined and clear to all parties, and accepted as such.So he chose the tactics to pretend that he brought me a check to do the repairs of the flood damage and nothing was done, against the FHA appraisal report, that inspects thoroughly the property with pictures and details the condition of it. The judge, however, did not want to listen to my defense, and considered that the moneys were paid indeed towards future works and that no works were done, neither flood repairs,nor even improvements, which goes beyond the version of the Plaintiff thta admits the improvement works - stioulate din the lease option contract as they had been perfomed BEFORE we signed the contract.Even when I pointed out that Plaintiff failed to fulfill his burden of proof becuase of the discrepancy between the amount of the insurance claim and the amount spent by Plaintiff to do the works, as per his testimony under oath etc..., showing clearly that most of the repair works had to be done, the judge did not listen obviously. The judge, for some reason, did not tke into consideration the inspection report and the pictures of the FHA appraiser after the flood repair works, even though this report is part of the exhibits that were brought to the court by Plaintiff's lawyer. However, I don't remember if this exhibit was admitted as evidence or not, I know that they were given to the judge by plaintiff's lawyer and a copy was remitted to us, in a binder. But is this sufficient to consider thta they are admitted ? Plaintiff's lawyer, as I remember, selected only some of these exhibits for some purpose that i don;t remember of, is it admission, I don't know , so I actually ignore if these can be used to appeal. However this is not my question for now.My question here is that I got 2 emails from the lawyer of Plaintiff, and i have all reasons to believe that Plaintiff is restless with the fraud situation, but his lawyer is pretending as if nothing, while changing his tone and testing if any possible settlement with me.So my intention is to send him an email, the text of which I prepared and my only question here is should I post it on this thread or should you close it and open a new question ?
PS : FYI, just sent you a new bonus of $100 and an excellent feedback in case you don't see these on your end...
Hi, peter, you are a sweetheart. I will let you know what I see on my end through your other "short" paragraph question. I am on my way there now and you should have my Answer in a few inutes,
Thank you, XXXXX XXXXX your time and care, highly appreciated, this is really a minimum I need to do. I had to retire and stop running my company due to health issues last year completely and my income is really very limited, otherwise I would do a lot more becuase it is well deserved.
Hi, Peter, You are too kind, You are very welcome, Than you for the compliment, I appreciate that greatly,
Take good care of yourself,
I am re-reading all the Q&A...I want to answer your following questions now, as I did not want to drill into details before. Sorry I don;t open a new question, as they charge me each time and I prefer to give you a bonus.You had a lease with PlaintiffYES, it went that way. One month before the sewage flood ( not hurricane Sandy we are in West Palm Beach county ) I had finished the complete overhaul of a studio thta is attached to the property. The verbal agreement was that I could sublet it as vacation rental. We had also decided to terminate the lease purchase option contract as i was going to apply for a loan and it would be a contingency which was not the case earlier.This is important, becuase this amicable termination is implying, as I was recently re-confirmed, that the parties would have the right to be brought to the ex-ante situation, and so all sums due as option moneys are legally refundable to me, as much as the imprivement works I did to the property and thta are listed in the Lase Purchase Option contract for a large part, becuase we had a verbal agreement before signing the document, and i had implemented most of the renovtion and overhaul repairs stipulated in the contract when we signed it.This point is also very important, becuase the judge is granting attorney;s fees based in this lease contract on one hand, but is also finding that we did not bring a "scintilla" of evidence that we had done any repairs to the property, which is overriding Plaintiff's pkeadings where he admits the works, and for an amount of $28,000.So if we are now in the post judgment correspondence phase with the judge, i may just as well comeup with a scrivener;s error to ask for an amended judgment here, stating that the scintilla of evidence is way beyond any material fact here, and especially her personal interpretation and not the one of the parties.Or I may reserve this ofr my Appeal , if admissible,whcih we need to examinelater.The property became uninhabitable as a result of Hurricane Sandy...of sewer overflow and contaminationYou moved to a property the Plaintiff had across the streetWe firstmoved to the studio adjacent to the house we were renting, and then in February 2010 my comapny rented the property across the street and furnished it, that very narrow street was a dead end with no cars passing , very narrow, in a residential area of private houses,no traffic almost during the day, just the cars of 3 or 4 neighbors.We then used a bedroom occasionally, a living room and another room as my office, IMy company moved to the house across the street and the friend thta was living with us too, so we had a larger house made by the combination of the 2, and we were let to stay rent free to do the cleanings ( detailed) and painting works while we were waiting to become owbners of the house. Plaintiff allowed you free access to the uninhabitable property in exchange for showing it to appraisers and repairmen,Yes, and also to do the repairs, that did not necessitate any qualified workmanship, mostly cleanings, as per the adjuster's report, we can drill that one later, becuase it;s pretty much covering me against a fraud attack, I beleive, but we need to evaluate later.Plaintiff puts in a claim for "Loss of Rents" with his insurance company,YesPlaintiff swears that tenants (you) vacated, but then turns around and sues you for rent the uninhabitable premises Yes
First lawyer withdrew, but never filed Answer to Plaintiff's ComplaintNO this is something thta I misinpretated. This is why I am moving forward slowly, I am a dummy here and I do goofs.
Second lawyer made some mistakes, then left you alsoYESExplanation
This is waht happenedFirst lawyer actually did fine. Hedid not file answers to the complaint, yes, but he filed a motion to dismiss thta was granted and I was confirmed thta this is considered as an answer.If you have a different opinion, letme knowHe filed in a timely fashion, and his job was brilliant. However, he kept on repeating me that the judge had granted the motion, whhich he did, with leave to amend within 20 days, and that if 60 days later we had no news, the case should be over.The judge also asked Plaintiff to attach contracts to his first amended complaint.The motion to dismiss was precisely on the grounds that there was no valid cause of action for an unjust enrichment complaint becuase the remedy is a complaint for breach of contract.There was a memorandum of law with it.4 months later, Plaintiff files his 1st amended complaint and I am not happy with my lawyer, becuase he was adamant. In fact I noticed he was quite competent in law, and so I start losing confidence. probably not appropriately, we need to verify what happened there..So my first lawyer files a 2nd motion to dismiss or strike, with same grounds, pointing at the 4 months against the 20 days and the absence of the contracts, again for the 2nd time now.In my mind, this case is won and over.I go to France to get treated for my cancer and I hear next that the judge denied the motion with order to file anwers to first amended complaint.That is where I lost all confidence in first lawyer================See here some extracts of the pleadings :3. Plaintiff ignored this Court's order by failing to file an amended complaint with all contract attachments within twenty (20) days. In fact, Plaintiff waited four (4) months to file his amended complaint. Consequently, Plaintiff s amended complaint should be stricken4. Alternatively, and without waiving this motion to strike, Defendants move to dismiss the Amended Complaint because it seeks Unjust Enrichment for a matter that is clearly governed by contract Alternatively, and without waiving this motion to strike, Defendants move to dismiss the Amended Complaint because it seeks Unjust Enrichment for a matter that is clearly governed by contract. As set forth in Plaintiff s initial complaint, their existed a written contractualrelationship between Plaintiff,, and Defendant,(See Exhibit "A" attached to the complaint entitled: Contract for Residential Lease and Option to Purchase, hereinafter referred to as the "First Option"). Moreover, Paragraph 25 of the initialcomplaint stated that the First Option expired on June 30, 2009, and Paragraphs 26 and 29 alleged the existence of yet a second and a third written option contract. Plaintiff initially failed to attacheither of these alleged agreements, and was required to do so in its amended complaint pursuant to the agreed court order.5.A plaintiff cannot pursue an equitable theory, such as unjust enrichment or quantum meruit, to prove entitlement to relief if an express contract exists. Ocean Communications, Inc. v.Bubeck, 956 So.2d 1222 (Fla. 4th DCA 2007); Kovtan v. Frederiksen, 449 So.2d 1 (Fla. 2d DCA 1984).6. Based upon the initial complaint and the contract documents attachment thereto, aswell as the Court's prior order requiring Plaintiff to attach the additional contracts, it is apparent thatPlaintiff's claims stem from written contracts alleged between the parties. Thus, based upon the welIestablishedauthorities cited above, Plaintiff s claim for unjust enrichment should be dismissed.7. Finally, a review of Plaintiffs pleadings in this case clearly refers to disputes and claims stemming from the three alleged option agreements. Having initially alleged and admitted theexistence of written contracts between the parties (albeit failing to attach the second and third option contracts), Plaintiff s claims are barred by the economic loss rule and any claims should be limitedto allegations and damages resulting from breach of contract issues. The economic loss rule applies in cases when the parties are in contractual privity and one party seeks to recover damages in tort formatters arising from the contract. Indemnity Ins. Co. of N Am. v. Am. Aviation, Inc., 891 So.2d 532 (Fla. 2004).
I do not know if a rehearing would do any good if the same Judge will hear the case because he will exclude your evidence again which shows that Plaintiff was paid by his insurance company;yes,but what about when I call the adjuster at the hearing and ask him about the documents if they are his and validate them then ?That would be a motion to re-hear or alternatively to vacate the judgment.
The economy of the motion to vacate/re-hear is that it would save a lot of trouble1) Insurance company, fraud, investigations,accusations, archives and what not would be spared2) appeal could be abandoned, that's a pretty heavy burden too, i have started to read the pro se .Can I explain this to the judge in my motion ? Is the argument "for a better administration of Justice" a valid one ?
1. The judge clearly made many mistakes, the first one was to allow the plaintiff's amended complaint to stand without requiring him to show why he did not file within the 20 days in which the Judge Ordered. I do not think you should have lost confidence in the first lawyer because his first "Motion to Dismiss Plaintiff's Complaint" was granted, so he had no reason to believe that the Judge would rule otherwise the second time around. It was the Judge who was being inconsistent. The problems as I see iit is that an additional objection should have been raised and that is the plaintiff's failure to timely file the complaint "Prejudiced the defendant".
But, in reality, judges allow plaintiffs to file Amended Complaints despite the late filing on the basis that "It is in the interests of justice".. Courts have allowed plaintiffs to file Amended Complaints they have Ordered, much later than 4 months. And, in order to dismiss the plaintiff's amended complaint as untimely filed, a defendant would have to show a substantial prejudice to them because of the untimely filing of the amended complaint;
2. I agree with you that a "re-hearing" would be a lot simpler and a lot less time consuming. But, the way you described this judge, I do not think she would go for it. You might try a "Motion for Reconsideration" where you are asking the udge to take a "second look" at the evidence, and you ask the judge to put more weight on this piece of evidence, rather than that piece of evidence, and show that too much weight was put on X evidence and not enough weight was put on Y evidence. You could also raise the issues of the judge denying your request to submit evidence that the plaintiff was dealing with the corporation and not you individually and suing the wrong defendant should be enough to grant your Motion for Reconsideration and it constituted.
I wish there were some way so that we would not have to jump from one question box to another because not only is it cumbersome, but it also does not lend itself to any sense of continuity and the questions go off in different directions,
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