EVICTION MOTIONS YOUR ATTORNEY WILL FILE

Most property managers understand the eviction process in very general terms. They know that a Three Day Notice to Pay rent must be served upon the resident prior to filing a nonpayment eviction action. Likewise, virtually all property managers understand that the final stage of the eviction process involves the sheriff executing the writ of possession. Unfortunately, many property managers do not have a real clue as to what takes place during the time in between the time an eviction starts and is completed. Why is this “in between time” so important? If your eviction attorney navigates through this process skillfully, they not only help you prevail in court, they can shorten the eviction process, so that you can place somebody in a unit who is not living rent free. It is not enough for a property manager to grasp that there is important work to be performed by your eviction attorney in the period after an eviction action is started. A property manager should also have a solid grasp as to what goes on during this “in between period”.

Why, you ask? First, you will be better able manage your property, because the timing of the eviction process will not be a mystery to you. This knowledge will allow you to plan ahead and better organize and budget for your property accordingly. Your boss or owner and those you deal with at the corporate headquarters will also appreciate that you are able to explain to them in detailed terms the status of the eviction case against your residents. They will have comfort that their property manager is on top of things, and it will please them that you have made it a priority to remove the residents who are living “rent free”. Central to understanding the “in between” period of the eviction process is learning how motions are strategically used to advance the eviction effort.

The Motion for Default

Lou missed his February rent payment. You served him a proper Three Day Notice to Pay Rent which has expired. You have now asked your attorney to file an eviction action. The eviction is filed in court on Monday, February 8th. The Clerk of the Court mails Lou a copy of the eviction complaint and summons which Lou receives on Tuesday, February 9th. The process server delivers the eviction complaint and summons to Lou on Wednesday, February 10. In the meantime, Lou has decided not to respond to the eviction complaint and has tossed his copies in to the waste basket. Florida law requires that the resident respond to the eviction complaint within 5 business days after being served with the eviction complaint. Failure on the part of Lou to respond within the allotted time will subject Lou to a “Default”, which may be entered Clerk of the Court after the submission of the Manager’s Motion for Default. The word “default” sounds like a mysterious legal term to many. It is not! A default simply means that one has failed to perform an obligation. In the context of an eviction, the resident’s obligation is to respond to the Clerk of the Court within five business days after being served with the eviction complaint. If not, the resident will then be in default. In fact, on the eviction summons, the resident is instructed to send the Clerk of the Court reasons why they should not be evicted.

Now what? The answer is simple. Your attorney may file a Motion for Default on February 18^th (the sixth business day after service of process). With the exception of a few counties in Florida, the date the resident is sent a mailed copy of the eviction complaint from the Clerk of the Court is irrelevant. The key date for purposes of when the Motion for Default will be ripe is the date the resident was served with the eviction complaint and summons by the process server. In the case of Lou, the key date for timing purposes is February 10th; the date Lou was served with the eviction papers. On February 18th, five business days have passed without Lou responding to the Clerk of the Court. Now your attorney should file a Motion for Default with the following language: “Plaintiff moves for an entry of a Default by the Clerk against Defendant for failure to serve any paper on the undersigned or file any paper as required by law. I do hereby certify that no copy of the answer or other pleading of the Defendant in the above styled cause has been served upon the Plaintiff or his/her attorney, to the time of the filing of the above Motion For Default”. Once the Clerk of the Court enters the Default, the Judge will then sign the Final Judgment for Eviction, which will authorize the Clerk to issue the writ of possession to the Sheriff.

Motion for Default and Default Judgment

The resident has answered the eviction complaint. What does your eviction attorney do now? Section 83.60 (2) of the Florida Statutes answers that question.   Section 83.60 (2) contains the following: “In an action by the manager for possession of a dwelling unit, if the resident interposes any defense other than payment, the resident 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 which accrues during the pendency of the proceeding, when due. The clerk shall notify the resident of such requirement in the summons. Failure of the resident 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 resident's defenses other than payment, and the manager is entitled to an immediate default judgment for removal of the resident with a writ of possession to issue without further notice or hearing thereon. In the event 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 residents or residents receiving rent subsidies shall be required to deposit only that portion of the full rent for which the resident is responsible pursuant to federal, state, or local program in which they are participating”.

The above statutory language requires conventional property residents to deposit into the Court Registry the rent alleged in the eviction complaint and all rent that becomes due in the future while the lawsuit is ongoing. According to Section 83.60 (2), if the resident files a motion to determine rent, they must attach sufficient documentation supporting the position that the rent owed as alleged in the complaint is wrong. Consider the following scenario: Arthur is served with his eviction papers on March 14th. The manager alleges that one full month of rent has not been paid. On March 18th Arthur files his answer with the court. Arthur deposits no money into the Court Registry and briefly writes that that he will receive his tax refund check soon and requests a court hearing. Arthur responded in time to avoid a default being entered against him by the Clerk of the Court. What course of action will your attorney take in this case? After five business days have elapsed from the date of service or process, your attorney will file with the Court a Motion for Default and Default Judgment. Your attorney in that motion should request that the Judge enter the default and enter a default final judgment for eviction. The motion may read in part like the following: Plaintiff moves for entry of a default and default judgment by the Court against Defendant for failure to deposit the rent amount alleged in the complaint into the Court Registry as required by Florida Statute 83.60(2)”. Likewise, in the above example, If Arthur had written that he is requesting a hearing to determine rent because he disagreed with the amount owed, but gave no reasons why he believed that to be true, then your attorney would add the following language to the above mentioned Motion for Default and Default Judgment: “Defendant has attached no documentation showing the rent amount alleged in the complaint to be in error, as required by Florida Statute 83.60(2)”. It is also important to note that some judges prefer that the eviction attorney file a Motion To Strike Defendant’s Answer and For Order Entering Default and Default Judgment instead of the motion for default and default judgment. Both motions have the same basic language, except that the Motion to Strike requests the Judge to “strike” the resident’s pleading because they are defective. If the above motions are granted, then the judge will sign the final judgment of eviction, authorizing the Clerk of the Court to issue the writ of possession to the Sheriff. These motions are vital, because you can often navigate through the eviction process without the need to attend mediation and/or court hearings, which saves you time and money!

Motion for Default and Default Judgment for Failure to Deposit the accrued rent into the Court Registry

Elvis, your resident, was served with an eviction complaint on July 28th because he has not paid the July rent. The next day Elvis files an answer to the eviction complaint with the Clerk of the Courts. He points out that the Three Day Notice to Pay rent was not prepared properly, and he deposits the July rent into the Court Registry. It is now August 10th, and rent is due on the first of each month according to the lease. No additional monies have been deposited by Elvis into the Court registry. At this point a seasoned eviction attorney will file a Motion for Default for Failure to Deposit the Accrued Rent into the Court Registry. While sounding technical, this motion is easy enough to understand. Florida Statute 83.60 (2) requires the residents who are defending their evictions to deposit not only the rent alleged in the complaint, but all future rents as it comes due while the lawsuit is pending.

Under this scenario, many judges will grant the eviction without a hearing (forcing Elvis to leave the building), since his failure to deposit accrued August rent into the Court Registry resulted in a WAIVER OF ALL DEFENSES other than payment, according to Section 83.60(2). Elvis’ defective Three day notice defense is not a defense of payment, and therefore, that defense will not be available for use by Elvis. The motion may contain language like this: “Plaintiff moves for entry of a default and default judgment by the Court against Defendant for failure to deposit the accrued August-2010 rent into the Court Registry as required by Florida Statute 83.60 (2).

A motion for disbursement of the Court Registry funds is also usually filed at the same time the motion for default is filed. Unless there is some real dispute as to whether the money deposited into the Court Registry is actually owing, the disbursement order will also often be granted without a hearing. However, a judge will sometimes grant the eviction without a hearing, but withhold ruling on disbursement of the Court Registry funds until a future hearing is held, particularly if the resident is complaining about alleged problems with the apartment or indicating other disputes.