Question 1
We filed an eviction last month on a resident that we really let go way too long without paying rent. It was partially our fault in allowing him extensions, believing all his stories and accepting a check from him after he was late. We sent the eviction over to our attorney who promptly filed the case. The day before the last day in which the resident could file an answer, we received a call from his attorney asking for more time. Knowing that we should never speak with an attorney unless it is our attorney, we gave him our attorney's phone number. About 10 minutes later, we received a call from our attorney who told us that the resident wanted one more week, and the resident's attorney would sign a stipulation saying that if the resident did not vacate by the end of the week, a Final Judgment of Eviction would enter. Our attorney recommended that we do this, but we said "No" because we did not feel that the resident should be given any more time. Well, now the bad news. The resident's attorney filed an Answer with the court, a Motion to Dismiss and a Motion to Determine Rent. The hearing is set for 2 weeks from now! Did we make a mistake not listening to our attorney?
Answer
You sure made a big mistake. Many residents go to attorneys for assistance. They often know the attorney as a friend, relative or possibly the attorney is handling another matter such as a divorce, business issue or a criminal matter. The resident's attorney really does not want to get involved in the case but feels obligated to do so based upon the relationship with the client. Often the resident is just looking to get a little more time. What you should have done is simply agreed to the stipulation. By doing so, you would have been guaranteed a Final Judgment if the resident did not move by the end of the week that was offered.
You probably felt that you were giving the resident something he did not deserve by "giving" him an extra week, but what you really did was give the resident's attorney an opportunity to do what he is legally entitled to do and that is to file papers with the court. This instantly bought the resident far more than a week, and while you probably will still win the case, you lost out as the resident can and will now remain on the premises.
It is really important to trust your attorney's judgment in these matters, and if you do not understand exactly why your attorney is making such a recommendation, ask for a detailed explanation. You might also have been under the impression that the resident would be required to post the rent that was owed into the registry of the court when his attorney filed all the papers with the court. While it is the law that in order for a resident to fight an eviction, the money needs to be posted, there are many legal ways to get around this requirement, at least until a hearing is set.
The word "settlement" or "stipulation" often is interpreted as giving in or giving something away, but as you can see in this situation, you would have gained by stipulating.
Understanding what a Stipulation is and how it works is crucial when dealing with evictions. Rather than just another promise, a Stipulation can lock in a resident to vacate or pay and save you a lot of time and frustration. If you have ever had to file an eviction more than once on a resident or ended up in court only to come to an agreement, most likely you did not use a Stipulation or understood the advantages it can give you.
Question 2
Approximately 2 months ago we received a lawsuit, which was called a "Statement of Claim". We later found out that this was a "Small Claims Court" case and the prior resident was suing us for a return of her $1500.00 security deposit which we claimed for damages when she vacated the premises. There was a "pre-trial" set for last month at our county courthouse. We immediately called our attorney, and he stated that he could come with us to the pre-trial or we could do it without him, as at the pre-trial, the parties go before a mediator, and if it is not settled at that time, a trial is set for some time in the future. We chose not to have our attorney attend and handled it ourselves. Well, lo and behold, the prior resident who sued us did not even show up in court, and the court clerk said the case was dismissed. Does this mean we won? Can the prior resident sue us again for the same thing?
Answer
Often a person will file a small claims court case to harass you or try to get you to settle with them and has no real intentions of even showing up in court. Since it does not cost much to sue someone if you do not use an attorney, this happens frequently. In other cases, the person suing you, the "plaintiff", will not be able to attend the pre-trial due to personal reasons, conflicts or work responsibilities or something as lame as saying they couldn't find a parking space at the courthouse.
When this happens, the court dismisses the case "without prejudice". This means that the plaintiff who sued you can re-file the case again or ask the judge to "set aside" the dismissal of the action. Often judges will set aside the dismissal of the action if the plaintiff can come up with a good enough reason why this should be done. It is a general premise in court to allow this, as if the plaintiff re-files the case, it will end up taking up more of the court's resources.
The plaintiff can re-file one more time against you, but if he or she does not show up again, the case is dismissed "with prejudice", meaning that the plaintiff will not be allowed to re-file a third time.
It is always crucial to call your attorney whenever you have a lawsuit filed against you or your company, no matter how small the lawsuit may seem. Some judges will require that you bring an attorney into small claims court, and if the tenant has an attorney, the stakes really increase, as if you lose the case, you may be required to pay the prior resident's attorney's fees. Many times, when the person suing you knows that you have an attorney, the case can be settled for far less than if the person suing you feels you are going to try to defend yourself. Additionally, many prior residents who file lawsuits do so incorrectly, often filing against the wrong party by not using the proper legal ownership or management name of the apartment community. When this happens, our firm fires off a Motion To Dismiss and this gives us a lot of leverage in either getting rid of the case completely or settling low.
Getting sued by a past resident is just one of the risks of managing property. Anyone can sue for anything any time they want. Early intervention when getting served with paperwork can often make a case go away fast. Got sued? Contact us right away at info@evict.com for assistance and guidance.
Question 3
Our company is going through some financial difficulties and is asking the property managers to file their own evictions rather than use the attorney that we have been using for years. When this initially occurred, we went to the courthouse and got a set of paperwork and an instruction sheet and have been successful in filing our own cases for about 2 months now. Most of the residents move out anyway shortly after receiving the papers from the sheriff's department, and we have not run into any problems until just last week. One of the residents filed an answer with the court, we filed our "Motion for Default" and received a letter from the judge's assistant saying that we needed to hire an attorney. We called up our past attorney and he said that the court was correct but did not want to help us with the case. We called a few other attorneys and they said they would help us out, but the price seemed awfully high. Why do we need an attorney now?
Answer
The law allows a landlord's agent to file an eviction without the use of an attorney and to proceed with filing a Motion for Default and submitting a Final Judgment and Writ of Possession only if the resident does not contest the case and, the property is not in a corporate name. In your situation, the case is being contested, as the resident has filed an answer with the court and the law requires that you hire an attorney at this point to file the appropriate paperwork. You cannot attend court in this case without an attorney present.
Many lawyers are not inclined to help a property manager out if they are not being used to file all the evictions of the apartment community. Additionally, most of the attorneys who represent apartment communities freely give legal advice throughout the course of the year and feel it is unfair to do so if the apartment community is not using them for any revenue generating work like filing the evictions.
You may want to speak with your owners or regional manager about this and explain that the majority of evictions for apartment communities in Florida are filed by attorneys just for the reasons stated. Most attorney's fees are extremely reasonable AND often the case is settled whereby you are able to recoup those fees and costs from the resident if a Stipulation is consummated. You might be surprised when you have to end up paying an attorney to finish up one case for what it would have cost you to have the attorney file five or more cases for you from beginning to end.
Filing an eviction on your own may look like it's saving some money but, if the case is contested, all those savings can go down the drain fast. Using a law firm that files thousands of evictions each year will usually get you the lowest price, the experience you need and get you through the tough contested case. Contact us at info@evict.com to learn more.
