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AttyHeather
AttyHeather, Lawyer
Category: Real Estate Law
Satisfied Customers: 547
Experience:  Attorney with 15 years experience
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I have received judgment of eviction with order of default

Customer Question

Hi I have received judgment of eviction with order of default without hearing despite submitting the answer in 24 hours. I believe this is unfair and I want to appeal the judgement.
Submitted: 7 months ago.
Category: Real Estate Law
Expert:  socrateaser replied 7 months ago.
Hello, What is your question about your circumstances?
Customer: replied 7 months ago.
What do you mean ?
Customer: replied 7 months ago.
I told you my situation but you didn't answer
Customer: replied 7 months ago.
Are you there ?
Expert:  socrateaser replied 7 months ago.
I apologize for any miscommunication. I believe you may be better served with a different professional. I will reopen the question for others to assist. Best wishes and thanks for using Justanswer!
Customer: replied 7 months ago.
You took the payment this is not the way. I am not going to pay more
Expert:  AttyHeather replied 7 months ago.
Hi, My name is ***** ***** I would like to assist you with your question. I believe that the other expert was trying to find out exactly what was your question, because it is not quite clear from what you have written. You wrote: "Hi I have received judgment of eviction with order of default without hearing despite submitting the answer in 24 hours. I believe this is unfair and I want to appeal the judgement."From that, it is unclear if you are asking about whether it was proper for you to be evicted without a hearing; whether it was proper for you to have an order of default entered against you when you submitted an answer in 24 hours; whether you want to know how to appeal a judgment evicting you. Can you be a bit more clear about what you are asking? Also, the previous professional opted out of the question, which means that he or she was not paid or compensated for speaking to you.
Customer: replied 7 months ago.
Thanks for explaining I hope you can understand the stress I have been going through. I would like to know what is the procedure to appeal against the judgement of the eviction which has been issued against me. I wasnt given the chance to explain why I didn't pay the rent and landlord was completely In violation of lease. No the notice has been served it was from county court where shall I appeal and what do I need ?
Expert:  AttyHeather replied 7 months ago.
If you have the forms or documents you have received in this case saved on your computer in pdf form, would you be able to attach them to the message? That would allow me to better assist you.
Customer: replied 7 months ago.
This is all I received. Please see the attachments
Expert:  AttyHeather replied 7 months ago.
Thank you. I am reviewing your documents to get a better understanding of your question. Can you provide me with the Answer you filed please, and also the initial Complaint along with the Summons?
Customer: replied 7 months ago.
Please see
Expert:  AttyHeather replied 7 months ago.
Thank you. It sounds like property you were at was a disaster. Were you able to put the rent money on deposit with the court as stated?
Customer: replied 7 months ago.
I wasn't aware of the law before but I will and I have drafted the following please advise.Salman Mukaty
Defendant
V.
Arium Resort LLC
PlaintiffNOTICE OF APPEALFurther to the DEFAULT JUDGMENT FOR EVICTION & ORDER OF DEFAULT dated April 15th 2016 and received by mail on April 21st 2016. I would like to appeal against the judgment on following grounds;1. Defendant should be given a full hearing to explain why serious major (withholding of rent) was taken.2. Previously submitted documents were not considered and one sided story was taken in consideration.3. Defendant agreed to pay upcoming rent on time in registry and requested for time frame to clear past due once plaintiffs' explanation of previous violations.4. Compassionate grounds also be considered due to pregnancy in the family and new baby is due in 2 weeks with 2 years & 5 months old baby is already in the household who doesn't deserve eviction due to dispute between 2 adults.5. Plaintiff's attitude has not been changed and continued to act in same manner as-usual.6. Previous complaint and warning letters were ignored by plaintiff on regular basis (documents enclosed)Defendant would resume the rental amount by submitting in registry on 3rd of every month (due date) also would clear all the past due by May 30th 2016 directly into the registry.Defendant humbly requests the honorable court to please consider this appeal and grant full hearing. Please refer to all correspondences between February 2016 till date.Salman Mukaty
DefendantCopies Furnished to:
KENNETH J. LOWENHAUPT, ESQ
7765 SW 87th Ave. Suite 201
Miami, FL 33173SHERIFF OF BROWARD COUNTY
201 SE 6th Street # *****
Fort Lauderdale FL
33301ARIUM RESORT LLC
JOE CRICK*****Pembroke Pines
FL, 33025
Customer: replied 7 months ago.
Do I have to fill any specific form and where shall I submit ?
Customer: replied 7 months ago.
Any advise ?
Expert:  AttyHeather replied 7 months ago.
You are in a tricky predicament. I do have an idea though, but you are going to have to try to keep up with my train of thought though, and I can't guarantee it'll work. . . But first, I have to make sure that you understand that the fatal flaw that you made in the process so far is that you did not (1) pay the disputed rent to the court, or (2) file a motion with the court to determine the amount of rent you owed. I hope that at this point, you are aware that that looks like where you messed up in the process and that is why the court entered your default.The court will probably believe that you were given ample notice of this obligation to either pay the disputed rent or file the motion to determine what amount in rent you had to deposit, because if you look in the document that you were initially served with called "Summons/Residential" it states in paragraph (1) that you must pay the unpaid / disputed rent to the clerk of the court. That provision is also underlined. This was the fatal flaw in your case and I believe why the landlord obtained a default judgment against you, despite your filing of an Answer that brought up many issues with the leased property.I believe it is necessary at this point for you to read the law at issue: Florida Statute 83.60: 83.60 Defenses to action for rent or possession; procedure.—(1)(a) In an action by the landlord for possession of a dwelling unit based upon nonpayment of rent or in an action by the landlord under s. 83.55 seeking to recover unpaid rent, the tenant may defend upon the ground of a material noncompliance with s. 83.51(1), or may raise any other defense, whether legal or equitable, that he or she may have, including the defense of retaliatory conduct in accordance with s. 83.64. The landlord must be given an opportunity to cure a deficiency in a notice or in the pleadings before dismissal of the action.(b) The defense of a material noncompliance with s. 83.51(1) may be raised by the tenant if 7 days have elapsed after the delivery of written notice by the tenant to the landlord, specifying the noncompliance and indicating the intention of the tenant not to pay rent by reason thereof. Such notice by the tenant may be given to the landlord, the landlord’s representative as designated pursuant to s. 83.50, a resident manager, or the person or entity who collects the rent on behalf of the landlord. A material noncompliance with s. 83.51(1) by the landlord is a complete defense to an action for possession based upon nonpayment of rent, and, upon hearing, the court or the jury, as the case may be, shall determine the amount, if any, by which the rent is to be reduced to reflect the diminution in value of the dwelling unit during the period of noncompliance with s. 83.51(1). After consideration of all other relevant issues, the court shall enter appropriate judgment.(2) In an action by the landlord for possession of a dwelling unit, if the tenant interposes any defense other than payment, including, but not limited to, the defense of a defective 3-day notice, the tenant shall pay into the registry of the court the accrued rent as alleged in the complaint or as determined by the court and the rent that accrues during the pendency of the proceeding, when due. The clerk shall notify the tenant of such requirement in the summons. Failure of the tenant to pay the rent into the registry of the court or to file a motion to determine the amount of rent to be paid into the registry within 5 days, excluding Saturdays, Sundays, and legal holidays, after the date of service of process constitutes an absolute waiver of the tenant’s defenses other than payment, and the landlord is entitled to an immediate default judgment for removal of the tenant with a writ of possession to issue without further notice or hearing thereon. If a motion to determine rent is filed, documentation in support of the allegation that the rent as alleged in the complaint is in error is required. Public housing tenants or tenants receiving rent subsidies are required to deposit only that portion of the full rent for which they are responsible pursuant to the federal, state, or local program in which they are participating.History.—s. 2, ch. 73-330; s. 7, ch. 83-151; s. 7, ch. 87-195; s. 7, ch. 93-255; s. 7, ch. 94-170; s. 1374, ch. 95-147; s. 12, ch. 2013-136. This statute REQUIRES that unless your defense to the eviction is that you PAID THE RENT, that you must either pay the disputed rent to the court, or file a motion to the court to determine what you have to pay. This is mandatory statutory language. And courts don't waive statutory mandates. Because of this, the only way I see that you can actually win is by showing the court that either (1) you did pay the court the rent (which you did not) or (2) that you did file the motion with the court to determine the amount of rent to deposit. Yes, I know that you have many reasons for not paying the rent. Your case will not get that far for you to explain those things to the judge unless you can show the judge that you DID comply with the mandatory statutory mandates I just described.Since it is clear that you did not pay the rent to the court, you must convince the court that the document you filed, which you have called an Answer in your conversation with me, is actually an "Answer and Motion to Determine Amount of Rent to be Paid into Court Registry." I have noted that on the document you filed with the court, you did not give it a title. Your position must be that not only was that document an Answer, but it was also a Motion to Determine Amount of Rent to Be Paid into Court Registry, and that the only reason that you did not pay the rent is because based on the document you filed with the court, you were waiting for the court to hold a hearing to tell you what amount you had to deposit.You will state that it was not fair for you to have to deposit the entire amount of rent due into the court registry, because there were so many maintenance problems that you had to fix yourself. You will state that you incurred great expense in making the premises livable and that you were forced to go to the expense to even stay at a hotel, and incur hotel expenses, due to the unlivable condition of the premises. Now, your defense is on the grounds that the landlord has materially noncomplied with s. 83.51(1). This statute states:83.51 Landlord’s obligation to maintain premises.—(1) The landlord at all times during the tenancy shall:(a) Comply with the requirements of applicable building, housing, and health codes; or(b) Where there are no applicable building, housing, or health codes, maintain the roofs, windows, doors, floors, steps, porches, exterior walls, foundations, and all other structural components in good repair and capable of resisting normal forces and loads and the plumbing in reasonable working condition. The landlord, at commencement of the tenancy, must ensure that screens are installed in a reasonable condition. Thereafter, the landlord must repair damage to screens once annually, when necessary, until termination of the rental agreement.The landlord is not required to maintain a mobile home or other structure owned by the tenant. The landlord’s obligations under this subsection may be altered or modified in writing with respect to a single-family home or duplex.(2)(a) Unless otherwise agreed in writing, in addition to the requirements of subsection (1), the landlord of a dwelling unit other than a single-family home or duplex shall, at all times during the tenancy, make reasonable provisions for:1. The extermination of rats, mice, roaches, ants, wood-destroying organisms, and bedbugs. When vacation of the premises is required for such extermination, the landlord is not liable for damages but shall abate the rent. The tenant must temporarily vacate the premises for a period of time not to exceed 4 days, on 7 days’ written notice, if necessary, for extermination pursuant to this subparagraph.2. Locks and keys.3. The clean and safe condition of common areas.4. Garbage removal and outside receptacles therefor.5. Functioning facilities for heat during winter, running water, and hot water.(b) Unless otherwise agreed in writing, at the commencement of the tenancy of a single-family home or duplex, the landlord shall install working smoke detection devices. As used in this paragraph, the term “smoke detection device” means an electrical or battery-operated device which detects visible or invisible particles of combustion and which is listed by Underwriters Laboratories, Inc., Factory Mutual Laboratories, Inc., or any other nationally recognized testing laboratory using nationally accepted testing standards.(c) Nothing in this part authorizes the tenant to raise a noncompliance by the landlord with this subsection as a defense to an action for possession under s. 83.59.(d) This subsection shall not apply to a mobile home owned by a tenant.(e) Nothing contained in this subsection prohibits the landlord from providing in the rental agreement that the tenant is obligated to pay costs or charges for garbage removal, water, fuel, or utilities.(3) If the duty imposed by subsection (1) is the same or greater than any duty imposed by subsection (2), the landlord’s duty is determined by subsection (1).(4) The landlord is not responsible to the tenant under this section for conditions created or caused by the negligent or wrongful act or omission of the tenant, a member of the tenant’s family, or other person on the premises with the tenant’s consent.History.—s. 2, ch. 73-330; s. 22, ch. 82-66; s. 4, ch. 87-195; s. 1, ch. 90-133; s. 3, ch. 93-255; s. 444, ch. 95-147; s. 8, ch. 97-95; s. 6, ch. 2013-136. You must cite that the landlord did not comply with that statute, and that you incurred expenses, and that you filed your document with the court, and that you presumed based on the statements that you made, that it was obvious that you had no idea how much to deposit with the court and that you needed that determined, and that you expected that the next step was that the court would set a hearing date - - not enter your default. Then, you must demand that the default be set aside, that the judgment be set aside, that any writs of restitution be set aside, before you are irreparably prejudiced. You should ask for the court's indulgence and state that you did the best that you could as a pro se litigant under the harsh circumstances of being in such a difficult financial predicament, that was caused by the landlord's failure to maintain the property. Now, another complex issue that I hope you are following me on. If you try to do an appeal, you might not get it going in time to beat the writ of restitution being executed (meaning you will probably be removed before the appeal can be filed). What I think you need to do instead of file a Motion to Set Aside the Default. The form for this in Florida is here:http://www.flcourts.org/core/fileparse.php/293/urlt/922c.pdf Please carefully review the form. You will see that the Motion to Set Aside Default can be filed for a variety of reasons. The best and most applicable reasons for you are (1) mistake, inadvertence, surprise, or excusable neglect, and (2) that the judgment should not have been entered against you. You will need to state that you filed your document with the court, and you believed that based on what you were saying that you WERE asking for the court to determine how much money you needed to deposit with the court. That you are pro se and did your best and thought that the document you filed was asking for that determination because you spoke of all the expenses you incurred and how you didn't think you should have to pay the rent. But instead the court entered your default, which you believed to be unfair. And for those reasons, the judgment should not have been entered against you. You will then need to incorporate all of the things I have discussed into the form. You will need to take that Motion to Set Aside Default to the court clerk and beg them to present it to the judge immediately. In fact, if you write EX PARTE at the front of the title, the clerk may just do that. If you write EX PARTE on it, you need to explain that it is ex parte because it cannot wait, needs to go to the judge immediately, because if it waits, you are going to probably be kicked out by the sheriff. I think this is your best chance. I'm not saying it will work, but wow, I hope it does. If my information and education has been helpful, please immediately respond and let me know by kindly giving me a favorable rating. I'm sorry it took so long, but your issue is quite complex.Best, ***** ***** Attorney
Customer: replied 7 months ago.
I have submitted the motion and dropped true copies by hand at all parties office when to sheriff's office and they didn't take since it wasn't a court order. My question is if writ has been issued once how long does it take for them to come and enforce the eviction. Also I just checked with court writ hasn't been issued yet.
Customer: replied 7 months ago.
Please advice
Customer: replied 7 months ago.
Also how can take stay on writ?
Expert:  AttyHeather replied 7 months ago.
Before I continue answering questions for you, I need you to confirm that you were satisfied with my prior response by saying so in the chat session that you are satisfied, and by issuing me a positive rating. When you do not do this, it can reflect poorly on me to site administrators. I would be happy to continue assisting you if I know that you are satisfied and like my work and happy with me. Please let me know as I would like to continue assisting you today.Sincerely,Heather S, Attorney
Customer: replied 7 months ago.
Yes so far you did satisfy me but I still have many question regarding the same case so hopefully once we get to the bottom I will completely rate you.
Expert:  AttyHeather replied 7 months ago.
I believe I completely and fully answered your original question. I spent more time with you late last night than any other customer and I woke up with a headache this morning from staying up so late assisting you and researching your issue. At this time, I do not think I can further assist you because you are saying you have so many more questions and I need to be able to assist my other customers as well. When an expert decides to accept a question, they need to know how much work will be involved, and the look at the value of the question and decide if they want to take it. At this time, the value of the question and the possibility that you are going to have so much more work to do makes me think that I will not be able to assist many more customers today, because I will be too busy helping you, and I worry that you will end up unsatisfied in the end. I hope you understand and I did my best for you. I just cannot handle your entire case through this forum for the small amount of money the website pays me to do this. I hope you understand. If you still want more assistance from me, you will need to issue a positive rating as I have asked, and I will need you to open up a new question so that I can be paid to continue helping you with more questions.Best of luck to you,Heather S
Customer: replied 7 months ago.
Please go and read the terms and conditions of this forum that you can ask as many question as you required until you get satisfied and you do t have to pay. But I guess you guys are not getting paid but we getting charged. So I will raise this issue with the website. Thanks I will only provide rating once I get full service as mentioned.
Customer: replied 7 months ago.
Please see
Expert:  AttyHeather replied 7 months ago.
Ok, I appreciate your advice and I will read the terms and conditions of the website again. This forum is for people to ask a legal question - - not rather to get unlimited advice from start to finish of your case. Your original question did not state that you wanted help from start to finish of this case. I think I answered your original question and in fact, I believe I went above and beyond. Your follow up questions are transitioning to the next part of your case. Many customers in this situation will start a new question and state at the beginning something like **This question is for Heather S only***. That way every expert on the site knows that it is for a particular person. But I did answer your original question, and your follow up question pertain to additional legal issues that were not presented at the start. I know that that seems confusing, but if you want help from start to finish for your case, I was not aware of that because you did not say so at the beginning and if you did, I probably would not have agreed to begin assisting you in the first place. We can still work on this together, but you will need to issue the positive rating and open a new question. If you do not do that, I will have to remove myself from this question and open it up to see if someone else wants to help you.Sincerely,Heather S, Attorney
Expert:  AttyHeather replied 7 months ago.
Hi again, I have noticed that another expert has not picked up this question. I will agree to answer your last question, which was "if a writ has been issued once, how long does it take for them to come and enforce the eviction," if you will state again that you are satisfied that I answered your initial question and issue a satisfied rating (which is 3, 4, or 5) after I answer your new question about how long it takes to enforce the writ. Let me know if that would be ok. Heather S, Attorney

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