Case Dismissal Overturned When No Opportunity Given to Landlord to Cure Defect

In a concept previously discussed here, a dismissal was recently reversed in on appeal Miami-Dade when the circuit court sitting as an appellate court to the lower county court determined that the county court had failed to give landlord an opportunity to cure a defect in the pleadings pursuant to Florida’s revised Landlord/Tenant Act which went into effect July 2013; specifically Florida Statutes section 83.60(1)(a).

Diana Marvez vs. Canderlaria. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 14-076 AP. L.T. Case No. 13-20652 CC 25. November 19, 2014. An Appeal from an order of dismissal in the County Court in and for Miami-Dade County. 
(Before ZABEL, SHAPIRO, LINDSEY, JJ.)
(PER CURIAM.) Diana Marvez filed suit to evict Steven Candelaria and Mayelin Candelaria. Subsequently, the Candelarias moved to dismiss the action. The motion to dismiss was granted with prejudice and Marvez appeals.
As a preliminary matter, this Court observes that a dismissal with prejudice is a harsh determination that ends an action without addressing the merits. Dismissal with prejudice is especially harsh where the failure of the complaint is amenable to amendment. Wells Fargo Bank, N.A. v. Reeves, 92 So. 3d 249, 253 (Fla. 1st DCA 2012) [37 Fla. L. Weekly D1381a].
In the present instance, the motion to dismiss sought dismissal on the grounds that Marvez’s complaint for eviction rested upon a deficient three day notice. The motion further asserted that the wrong lease agreement had been attached to the complaint. This, contend the Candelarias, required dismissal with prejudice.
Effective July 1, 2013, Florida law changed to require that “[t]he landlord must be given an opportunity to cure a deficiency in a notice or in the pleadings before dismissal of the action.” Fla. Stat. 83.60(1)(a).
Based upon the foregoing, the Trial Court’s Order of Dismissal REVERSED. The cause is REMANDED to the trial court for entry of an order of dismissal without prejudice and with leave to amend pursuant to section 83.60(1)(a). The Trial Court shall assess appellate fees and costs pursuant to section 83.48, Florida Statues, to the party ultimately prevailing below. (ZABEL, SHAPIRO, LINDSEY, JJ., Concurring).

Debtors Cannot Strip Liens Off Of Underwater Houses in Chapter 7 Bankruptcy

The U.S. Supreme Court reversed a lower-court decision allowing debtors to  “strip off” underwater second liens in Chapter 7 bankruptcy, saying precedent required it to keep such mortgage claims intact.
 
Justice Clarence Thomas, caught between his usual adherence to the strict wording of statutes and the competing doctrine of stare decisis, ruled that a prior decision carved out an exception from bankruptcy law for mortgage liens.
 
The unanimous decision in Bank of America v. Caulkett is a victory for lenders who said it would be unfair to require them to give up potentially valuable claims simply because a home’s current value is depressed. It’s a defeat for consumer advocates who favor using bankruptcy to reduce the amount borrowers owe against their houses, although borrowers can still strip underwater second liens through the more costly and time-consuming process of Chapter 13 bankruptcy.
 
While bankruptcy judges generally can order reductions in unsecured debts like credit card balances, loans secured by liens on real estate are protected by the fact the lender can seize the collateral. The question in this case was whether a second lien claim for more than could be recovered by selling the house fit the definition of “secured.”
 
The Supreme Court already has ruled that in Chapter 13 reorganizations, where debtors with reliable income set up a plan to repay creditors over time, second mortgages with no collateral value to back them up can be stripped. And Section 506(a) of the Bankruptcy Code, which applies to Chapter 7 liquidations, also defines a “secured claim” as being secured by property worth more than the claim and “unsecured claim” as being worth less.
 
“In other words, if the value of a creditor’s interest in the property is zero—as is the case here—his claim cannot be a `secured claim,’” Thomas wrote.
 
More here

Butler & Hosch Closing Was Illegal Alleges Lawsuit By Former Employees

Butler & Hosch, which closed suddenly law month, is now being sued by former employees Stephen Regal and Gianna Hillis in federal court seeking back pay and benefits. 

The lawsuit alleges that the firm failed to provide 60 days’ written notice as required by the federal Worker Adjustment and Retraining Notification Act.   

Before the sudden announcement, the firm controlled about 90 percent of the nation’s foreclosure litigation, according to Hosch. It had a national footprint spanning 27 states and the District of Columbia, with 700 attorneys, paralegals and back-office staff working on up to 60,000 foreclosure files.

The employees bringing suit say the letter implied the firm’s administration “knew that terminations were anticipated but failed to provide employees, nor state and local authority, with advance notice as required” under the law. They demanded a jury trial.

Plaintiffs attorney Seth Lehrman said the employees worked without pay for three weeks. The complaint suggested the layoffs were the second round for the firm, following a cut of dozens of employees in December.

Besides back pay, the employees are seeking expenses, commissions, bonuses, accrued vacation and holiday pay, pension and 401(k) contributions as well as medical benefits for 60 days.  The proposed class would include all former full-time Butler & Hosch employees, including temporary workers.

The employees are represented by Farmer Jaffe Weissing Edwards Fistos & Lehrman and Bulter and Hosch by GrayRobinson.

Newly Enacted Florida Statute 83.561 Protects Tenants in Foreclosed Homes

The Govorner of Florida has signed HB 779 into law creating Florida Statute 83.561, offering limited protections to tenants in foreclosed homes, including a 30 day notice the new purchaser is required to give to a tenant living in a foreclosed home after sale.  

There are very strict requirements to receive these protections, so call or email us at 754-800-LAW0 or info@JAKLegal.com if you are unsure if this new law applies to you.  The law went into effect June 2, 2015.


83.561 Termination of rental agreement upon foreclosure.—

(1) If a tenant is occupying residential premises that are the subject of a foreclosure sale, upon issuance of a certificate of title following the sale, the purchaser named in the certificate of title takes title to the residential premises subject to the rights of the tenant under this section.

(a) The tenant may remain in possession of the premises for 30 days following the date of the purchaser’s delivery of a written 30-day notice of termination.

(b) The tenant is entitled to the protections of s. 83.67.

(c) The 30-day notice of termination must be in substantially the following form:

NOTICE TO TENANT OF TERMINATION

You are hereby notified that your rental agreement is terminated on the date of delivery of this notice, that your occupancy is terminated 30 days following the date of the delivery of this notice, and that I demand possession of the premises on …(date)…. If you do not vacate the premises by that date, I will ask the court for an order allowing me to remove you and your belongings from the premises. You are obligated to pay rent during the 30-day period for any amount that might accrue during that period. Your rent must be delivered to …(landlord’s name and address)….

(d) The 30-day notice of termination shall be delivered in the same manner as provided in s. 83.56(4).

(2) The purchaser at the foreclosure sale may apply to the court for a writ of possession based upon a sworn affidavit that the 30-day notice of termination was delivered to the tenant and the tenant has failed to vacate the premises at the conclusion of the 30-day period. If the court awards a writ of possession, the writ must be served on the tenant. The writ of possession shall be governed by s. 83.62.

(3) This section does not apply if:

(a) The tenant is the mortgagor in the subject foreclosure or is the child, spouse, or parent of the mortgagor in the subject foreclosure.

(b) The tenant’s rental agreement is not the result of an arm’s length transaction.

(c) The tenant’s rental agreement allows the tenant to pay rent that is substantially less than the fair market rent for the premises, unless the rent is reduced or subsidized due to a federal, state, or local subsidy.

(4) A purchaser at a foreclosure sale of a residential premises occupied by a tenant does not assume the obligations of a landlord, except as provided in paragraph (1)(b), unless or until the purchaser assumes an existing rental agreement with the tenant that has not ended or enters into a new rental
agreement with the tenant.

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