PLAKHOV -v- SEROVA, No. 4D11-3280, slip op. (Fla. 4th DCA, October 24, 2012)
During the residential tenancy agreement, the landlord Serova was faced with a foreclosure action and difficulty paying the monthly assessments on the condominium unit rented to Plakhov. The tenant, having received notice of both the foreclosure action and nonpayment of the association dues, grew worried. Unknown to the tenant, the landlord was in discussions with the mortgage lender to modify the mortgage, and subsequently made modification payments to the lender.
Also unknown to the tenant, the landlord had brought her condominium association payments current two months before the tenant decided it was in his best interest to move out. It took several months for the landlord to find a new tenant. Consequently, the landlord not only took the security deposit but also obtained a money judgment for $16,700 against Plakhov. While affirming the judgment, the appellate court rejected the tenant’s defenses which included allegations of constructive eviction created by the landlord’s defaulted payments.
PALM BEACH MARKETPLACE -v- ALEYDA’S MEXICAN, No. 4D12-570, slip op.(Fla. 4th DCA, October 24, 2012)
Petition for Mandamus was filed to compel the trial court to enter a default judgment and writ of possession. Tenant had failed to timely post rent into the court’s registry that came due and owing, as required by F.S. §83.232. The statute provides that failure to post rent alleged as past due, or that subsequently comes due, in an action for possession is an absolute waiver of defenses entitling the landlord to immediate default for possession.
This is a ministerial duty of courts, meaning there is no discretion beyond that stated in the statute. Although mandating entry of the writ of possession, the appellate court reminded the trial court that the statute only speaks to a default for possession and not to any entitlement to money damages or even to the funds previously deposited.
Blue Star -v- LED Trust, No. 3D12-1728, slip op. (Fla. 3d DCA, October 24, 2012)
LED Trust filed a lis pendens against property owned by the Blue Star group, an entity in which the LED Trust was investing. LED’s action turned on counts including breach of contract, violations of corporate statutory duties, fraud, conspiracy to commit fraud, and for an accounting. None of those counts could be plugged into the property owned by Blue Star. Other counts in equity were brought for declaratory and injunctive relief, imposition of a constructive trust or equitable lien, and for specific performance.
But, the appellate court found LED’s equitable claims to be dim in that they were lacking a necessary connection to the subject property. The appellate court illuminated that LED was really seeking damages arising from mere membership interests in an LLC. In conclusion, the appellate court found that LED’s claims failed to establish a fair nexus between the equitable or legal ownership of the subject property and LED’s claim. Accordingly, the lis pendens could no longer cast a shadow on the title.
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Good -v- Deutsche Bank, No. 4D11-1167, slip op. (Fla. 4th DCA, October 17, 2012)
In response to a foreclosure action the homeowners responded with an affirmative defense alleging violations of the Federal Real Estate Settlement Procedures Act (“RESPA”) and seeking recoupment against the bank as successor in interest. Following entry of a summary judgment of foreclosure, the homeowners appealed arguing that the trial court erred because the bank failed to negate the affirmative defense. The appellate court found that RESPA imposed no liability against the bank since liability was not imputable to it as successor.
Only the actual persons or entities who violated RESPA can be pursued under RESPA. The court reasoned that if Congress wanted to create successor liability under RESPA it would have expressly done so as it did under the Truth in Lending Act (“TILA”), see 15 U.S.C. § 1641 (2011).
Author - Rex Russo
Over 35 years experience with Appeals, Real Estate Litigation, and Bankruptcy Actions and Adversary Defense.