Sharon Doner, Manager of Civil Law Division, Polk County Clerk of Courts

Transcription

1 Sharon Doner, Manager of Civil Law Division, Polk County Clerk of Courts

2 What is a Small Claims case? A Small Claims case is a legal action filed in county court to settle minor legal disputes among parties where the dollar amount involved is $5, or less, excluding costs, interest, and attorney fees. Who can file a Small Claims case? Any person(s) eighteen (18) years or older or any individual(s) doing business as a company or corporation may file a Small Claims case. A parent or guardian may file on behalf of a minor child.

3 Clerk duties: The clerk shall assist in the preparation of a statement of claim and other papers to be filed in the action at the request of any litigant and scheduled the action for a pre-trial court date according to the Judge s calendar. The clerk shall not be required to prepare papers on proceedings supplementary to execution. See Florida Rules of Civil Procedure, (c) What information do I need to file a Small Claims case? Actions are commenced by the filing of a statement of claim in concise form, which shall inform the defendant(s) of the basis and the amount of the claim. If the claim is based on a written document, copies shall be attached to support the claim amount, such as; receipts, invoices, contracts, etc.

4 What happens after a Small Claim is filed? At the pre-trial conference mediation is ordered if both parties in dispute are present and unable to settle their dispute. A mediator acts to encourage and facilitate the resolution of a dispute between two or more parties. It is an informal and non-adversarial process with the objective of helping the disputing parties reach a mutually acceptable and voluntary agreement. In mediation, decision-making authority rests with the parties. If the dispute cannot be settled at the pre-trial conference, a trial date will be scheduled by the court to hear testimony and rule on the outcome of the case. Prevailing Party: A final judgment bears interest pursuant to F.S until satisfied. Once a certified copy is recorded in the official records, the judgment becomes a lien upon any real property the defendant(s) own for (20) years. See Florida Rules of Civil Procedure, (f)

5 How can I collect on my judgment? A Writ of Execution is an Order from the Court for the Sheriff to levy on real or personal property in an effort to satisfy the judgment. The Writ must be requested in writing and can be issued ten (10) days after the judgment has been entered. A garnishment may be filed against the defendant(s) wages or bank account to satisfy the judgment. In the event the judgment is paid in full, a Satisfaction of Judgment must be furnished to the defendant(s) pursuant to F.S

6 What is a Replevin Action? Any person whose personal property is wrongfully detained by any other person can file to recover said property and any damages sustained by reason of the wrongful taking. The action must be brought in the jurisdiction based on the value sought to be replevied.

7 What is required to file a Replevin Action? A description of the claimed property that is sufficient to make possible its identification and a statement, to the best knowledge, information, and belief of the plaintiff of the value of such property and its location. A statement that the plaintiff is the owner of the claimed property or is entitled to possession of it, describing the source of such title or right. If the plaintiff's interest in such property is based on a written instrument, a copy of said instrument must be attached to the complaint. A statement that the property is wrongfully detained by the defendant, the means by which the defendant came into possession thereof, and the cause of such detention according to the best knowledge, information, and belief of the plaintiff.

8 Clerk s Responsibilities: The clerk shall assist in the preparation of the Statement of Claim in Replevin and prepare and issue a Summons, Notice to Appear, and Order to Show Cause to be served on the defendant.

9 Courts: If the court finds that the defendant has not waived the right to be heard on the order to show cause in accordance with F.S , the court shall, at the hearing on the order to show cause, consider the affidavits and other showings made by the parties appearing and make a determination of which party, with reasonable probability, is entitled to the possession of the claimed property pending final adjudication of the claims of the parties. This determination shall be based on a finding as to the probable validity of the underlying claim alleged against the defendant. If the court determines that the plaintiff is entitled to take possession of the claimed property, it shall issue an order directing the clerk of the court to issue a writ of replevin in which the matter will be scheduled for a hearing. The writ shall command the Sheriff to replevy the described property in possession of the defendant.

10 Courts: The officer executing the writ by levying on the property described shall deliver the property forthwith to plaintiff unless the writ directs otherwise. The defendant may obtain release of the property seized within 5 days after the seizure by posting with the clerk of the court who issued the writ the amount of 1.25 times the amount due and owing. If it appears that the property described in the complaint was wrongfully taken or detained by defendant and the property has been delivered to plaintiff by the officer executing the writ, plaintiff shall have judgment for his or her damages caused by the taking and detention and costs.

11 To obtain possession of stolen property held by a pawnbroker, the victim must notify the broker by certified mail, return receipt requested, or in person, evidenced by a signed notice. The notice must contain a complete and accurate description of the property and must be accompanied by a legible copy of the law enforcement agency s report of the theft. If the victim and the pawnbroker do not resolve the matter within 10 days after the pawnbroker s receipt of the notice, the victim may petition the court to order the return of the property, naming the pawnbroker as a defendant. The pawnbroker is required to hold the property until the right to possession is resolved by the parties or by the court.

12 Clerk s Responsibilities: Assist with the filing of the Petition for Return of Goods and prepare a Summons/Notice to Appear in court along with an Order to Show Cause for the defendant to have the opportunity to be heard by the Court before the property in question is taken to possession by the Sheriff. The filing fees and service fees are waived. If the plaintiff prevails, the court will order the pawnbroker to pay the court costs and sheriff fees in which the clerk will prepare a satisfaction of judgment if entered by the courts.

13 The action of a county court civil case shall be deemed commenced when the complaint/petition is filed and the amount in controversy does not exceed $5, exclusive of interest, costs and attorney fees. The plaintiff(s) in these case types are generally represented by legal counsel. However, pro-se litigants can file without the assistance of the clerk. The filing fee is $ plus an additional $10.00 for each Summons to be issued by the clerk. These case types have simplified clerk duties which were further expedited with the implementation of e-filing. The clerk can receive the documents electronically as well as issue the Summons electronically in order for the attorney to retrieve from the docket to obtain service on the defendant(s) as well as file all other subsequent filings. Once the parties are served with the summons, if no response is filed as to the allegations set forth in the complaint/petition, a default is entered by the clerk and the attorney can move forward with a Summary Judgment otherwise the courts may set the matter for a hearing.

14 Foreign Judgments: The term "foreign judgment" means any judgment, decree, or order of a court of any other state or of the United States. This allows holders of the uncollected foreign judgment to domesticate the judgment in the Florida county where the judgment is recorded in order to satisfy the judgment. The enforcement of the foreign judgment is jurisdictional. The amount of the judgment determines which court this matter will be filed in. A judgment for less than $15, is filed in county court whereas a judgment in excess of $15, is filed in circuit court. Clerks record the judgment and serve the judgment debtor with a notice that requires debtor action to contest the judgment, in most instances, within 30 days. If no contest is filed, the recorded judgment becomes a lien on any real property of the judgment debtor located in the county of recording.

15 Mortgage Foreclosure: Once an Order/Final Judgment has been entered by the courts the clerk is required to sell the property at public sale on a specified day that shall be not less than 20 days or more than 35 days after the date thereof, on terms and conditions specified in the order or judgment. The clerk may conduct the sale of real or personal property under an order or judgment pursuant to this section by electronic means. A copy of the final judgment shall be furnished by the clerk by first class mail to the last known address of every party to the action or to the attorney of record for such party. Publication of Sale shall be published once a week for 2 consecutive weeks in a newspaper of general circulation in the county where the sale is to be held. Bidders other than the plaintiff are required to deposit 5% of their final bid prior to the start of the sale and pay the remaining funds into the registry by noon the next business day if they are the successful bidder. Otherwise their 5% deposit will be forfeited to pay for re-advertising the sale. The clerk will prepare the Certificate of Sale, Certificate of Title and Certificate of Disbursements pursuant to Chapter 45 F.S.

16 Injunctive Relief: A court order requiring a person or entity to do, or to refrain from doing, a specified act. If someone wants another person or entity to stop doing something, they may file a civil lawsuit requesting injunctive relief. A hearing will be held during which both parties will make their case before a judge. If injunctive relief is granted, the court issues an order prohibiting a specified act or behavior. Generally, injunctions are sought, and awarded, when a monetary amount cannot compensate for the wrong. Chapter F.S. A landlord of any dwelling unit governed by this part shall not cause, directly or indirectly, the termination or interruption of any utility service furnished the tenant, including, but not limited to, water, heat, light, electricity, gas, elevator, garbage collection, or refrigeration, whether or not the utility service is under the control of, or payment is made by, the landlord. A landlord of any dwelling unit governed by this part shall not prevent the tenant from gaining reasonable access to the dwelling unit by any means, including, but not limited to, changing the locks.

17 Declaratory Relief: Declaratory Judgment is a binding judgment from a court defining the legal relationship between parties and their rights in the matter before the court. A declaratory judgment does not provide for any enforcement, however. In other words, it states the court's authoritative opinion regarding the exact nature of the legal matter without requiring the parties to do anything. (Both the circuit and county courts have jurisdiction within the jurisdictional amounts to declare rights, status, and other legal relations). A petition for a declaratory judgment begins with an identification of the parties. The petition must clearly articulate the relevant facts and set forth all allegations against the defendant. Relevant documents also must be filed with the petition. If the petition is sufficient, the court shall require any adverse party whose rights have been adjudicated by the declaratory judgment to show cause on reasonable notice, why further relief should not be granted forthwith. Example: a party to a contract may seek the legal interpretation of a contract to determine the parties' rights, or an insured may seek a determination of insurance coverage under a policy. In a will contest, a party may seek a declaratory judgment to determine who is entitled to inherit under the will or to define what part of an estate a beneficiary is entitled to receive.

18 Florida Statutes Chapter 713 governs mechanic liens which is comprehensive and complex. The statute provides important protections to contractors, subcontractors, suppliers and homeowners. For suppliers, the mechanic s lien statute provides a method to assure full payment. For owner s, the Florida mechanic s mien statute requires subcontractors to provide notice of possible liens, which allows owners to avoid double payment to a contractor, subcontractor, supplier, or laborer for the same services.

19 What is a mechanic lien? Amechanic lien applies only to private projects and is sometimes cited as a construction lien. This is a tool that is available to ensure proper payment by a property owner or general contractor for work, material, labor or supplies furnished on a project. The lien restricts the owner from selling, refinancing or transferring property without accommodating the lien.

20 Who can file a Florida Mechanic s Lien? Amechanic s lien is primarily for general contractors, subcontractors, laborers, as well as material/equipment suppliers. Florida law requires that all lien claimants record their mechanics lien within 90 days of the date they last supplied labor or materials and serve the owner within 15 days of recording the lien. Technically, the lienholder has the right to force the sale of the property to obtain payment of its lien. In practice, that rarely happens. Instead, the lien itself is typically enough to prompt the owner or other nonpaying party to make payment. Additional rules apply to subcontractors that provide materials, labor or services to a project, but do not contract directly with the owner. Before starting work on the project, a business in that position should provide written notice to the owner (or person in charge of the property) stating that she/he intends to file a claim of lien in the event of nonpayment.

21 When is the deadline to enforce a Florida mechanics lien, or? How long is the lien effective? Generally, a Florida mechanics lien must be enforced within one year of the date the lien was recorded. However, this time period can be both extended and shortened. If the lien claimant supplied labor or materials after the original lien was recorded, and filed an amended claim of lien noting that later date, the one-year time limitation runs from the date the amended lien was filed. Either of those one-year periods may be shortened, however. If the owner or owner s agent files and serves a Notice of Contest of Lien, the time limit is shortened to 60 days from that date. Also, any interested party may shorten the time limit to a mere 20 days by filing and serving a summons and complaint to show cause why the lien should not be enforced by suit, or vacated.

22 Transfer of claim of lien to security (F.S ) The owner, or any other interested person, may apply to the court to release the mechanic s lien by filing a surety bond or a cash deposit. The bond is equal to the face amount of the lien plus three year s interest at the legal rate, plus the greater of $1,000 or 25% of the amount of the lien for court costs. Upon the filing of the bond deposit, the clerk will mail a copy to each person who has a mechanic s lien so they are aware of the release.

23 Clerk s duties: The clerk is required to prepare and record a Certificate of Transfer showing the transfer of lien from real property to a cash deposit or surety bond. The lienor has one year to file a claim to enforce the lien otherwise the funds can be released upon the request of the party depositing the funds.

24 Florida Rules of Civil Procedure, (c) & (f) Florida Statutes 55.03: Florida Statutes : Florida Statutes : Florida Statutes Chapter 45: Florida Statutes 83.67: Florida Statutes Chapter 713: Florida Statute : Florida Statute : Florida Statute : uteyear=2002&title=-%3e2002-%3echapter%2086

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28 LANDLORD / TENANT JURISDICTION FLORIDA STATUTE 34, COUNTY COURTS JURISDICTION IN LANDLORD AND TENANT CASES LANDLORD / TENANT PRACTICE AND PROCEDURE FLORIDA STATUTE 83, LANDLORD TENANT

29 LANDLORD / TENANT COMMON DISPUTES INCLUDE: FAILURE TO PAY RENT NON-COMPLIANCE WITH THE RENTAL AGREEMENT (CURABLE OR NONCURABLE) BREACH OR EARLY TERMINATION OF THE RENTAL AGREEMENT

30 LANDLORD / TENANT NOTICES BEFORE THE CLERK BECOMES INVOLVED LANDLORD SERVES TENANT WITH NOTICE ALL NOTICES MUST INCLUDE NAME EVERY ADULT LIVING ON THE PREMISES, IF NAMES ARE UNKNOWN PLAINTIFF SHOULD LIST AS UNKNOWN TENANTS PROPER ADDRESS OF PROPERTY SIGNATURE AND DATE FORM OF DELIVERY

31 LANDLORD / TENANT NOTICES & COMPLAINTS THREE DAY NOTICE - TERMINATION FOR FAILURE TO PAY RENT ALLOWS THE TENANT(S) TO PAY OR VACATE PREMISES WITHIN THREE BUSINESS DAYS (EXCLUDING WEEKENDS, HOLIDAYS, AND DATE SERVED) NOTICE INCLUDES AN ON OR BEFORE DATE FOR RESOLUTION

32 LANDLORD / TENANT NOTICES & COMPLAINTS SEVEN DAY NOTICE NOTICE OF NON-COMPLIANCE FOR MATTERS OTHER THAN FAILURE TO PAY RENT (CURABLE NON-COMPLIANCE) ALLOWS THE TENANT(S) TO CURE THE ISSUE OF NON-COMPLIANCE NOTICE INCLUDES A SPECIFIC DATE TO VACATE IF THE NONCOMPLIANCE CANNOT BE CORRECTED

33 LANDLORD / TENANT NOTICES & COMPLAINTS SEVEN DAY NOTICE NOTICE OF NON-CURABLE NON-COMPLIANCETERMINATION OF TENANCY NOTICE SERVES TO TERMINATE LEASE IMMEDIATELY

34 LANDLORD / TENANT NOTICES & COMPLAINTS FIFTEEN DAY (OR SEVEN DAY) NOTICE TO VACATE TERMINATION OF TENANCY USED FOR MONTH (OR WEEK TO WEEK) TENANTS LANDLORD IS NOT REQUIRED TO GIVE A SPECIFIC REASON TENANTS MUST BE GIVEN NOTICE AT LEAST FIFTEEN DAYS PRIOR TO WHEN RENT IS DUE AGAIN (EXCLUDING DATE OF SERVICE). SEVEN DAYS IF WEEKLY. SPECIFIC DATE TO VACATE REQUIRED

35 IF TENANT FAILS TO COMPLY, PLAINTIFF SUBMITS TO CLERK: 3 DAY NOTICE (POST OR DELIVER TO TENANT) WAIT 3 BUSINESS DAYS - COMPLAINT FOR EVICTION - ORIGINAL THREE DAY NOTICE - COPY OF LEASE (IF APPLICABLE) - EVICTION SUMMONS - FILING FEE ($ Summons fees)

36 LANDLORD / TENANT THE COURT REQUIRES THE PLAINTIFF PROVE THAT THE DEFENDANT IS NOT ACTIVE DUTY MILITARY TO OBTAIN A DEFAULT. MUST BE FILED WITH THE MOTION FOR DEFAULT OR MAY BE FILED AT THE TIME OF CASE INITIATION

37 LANDLORD / TENANT COMPLAINT CONSIDERATIONS COUNT I POSSESSION COUNT II DAMAGES PLAINTIFF MAY AMEND THEIR COMPLAINT TO INCLUDE COUNT II

38 WAIT 5 BUSINESS DAYS FROM SERVICE OF COMPLAINT IF

39 NO ANSWER FILED AND NO MONEY POSTED TO REGISTRY PLAINTIFF SUBMITS MOTION FOR CLERK S DEFAULT AND FINAL JUDGMENT FOR EVICTION JUDGE SIGNS JUDGMENT, CLERK FORWARDS TO RECORDING DEPT. PLAINTIFF REQUESTS AND PAYS FEE FOR CLERK TO ISSUE WRIT OF POSSESSION

40 WRIT DELIVERED TO SHERIFF (FEES APPLY FOR SERVICE] SHERIFF SERVES DEFENDANTS HAVE 24 HOURS TO VACATE SHERIFF RETURNS TO PUT PROPERTY OWNER IN POSSESSION CASE IS RESOLVED PENDING COUNT II DAMAGES IF FILED

41 WAIT 5 BUSINESS DAYS FROM SERVICE OF COMPLAINT IF

42 PLAINTIFF LOSES TENANT ANSWERS AND DEPOSITS RENT PLAINTIFF ARRANGES FOR HEARING IF PLAINTIFF WINS CONSULT ATTORNEY JUDGE SIGNS JUDGMENT, CLERK FORWARDS TO RECORDING DEPT. PLAINTIFF REQUESTS AND PAYS FEE FOR CLERK TO ISSUE WRIT OF POSSESSION

43 WRIT DELIVERED TO SHERIFF (FEES APPLY FOR SERVICE] SHERIFF SERVES DEFENDANTS HAVE 24 HOURS TO VACATE SHERIFF RETURNS TO PUT PROPERTY OWNER IN POSSESSION CASE IS RESOLVED PENDING MOTION FOR MONEY IN REGISTRY OR COUNT II DAMAGES IF FILED

44 RENT DEPOSITS TO REGISTRY FLORIDA STATUTE 28.24(10) FEES FOR RECEIVING MONEY INTO THE COURT REGISTRY 3% ON THE FIRST $ % ON EACH EACH SUBSEQUENT $ PLAINTIFF MUST MOTION COURT FOR RETURN DISBURSEMENT REQUIRES COURT ORDER

45 WAIT 5 BUSINESS DAYS FROM SERVICE OF COMPLAINT IF

46 TENANT ANSWERS BUT NO RENT DEPOSITED PLAINTIFF SUBMITS MOTION FOR DEFAULT FOR NONPAYMENT JUDICIAL DEFAULT ENTERED JUDGE SIGNS JUDGMENT, CLERK FORWARDS TO RECORDING DEPT. PLAINTIFF REQUESTS AND PAYS FEE FOR CLERK TO ISSUE WRIT OF POSSESSION

47 LANDLORD / TENANT TENANT HAS ANSWERED BUT DISPUTES AMOUNT OWED OR IT IS UNCLEAR TENANTS WILL PRODUCE COPIES OF RECEIPTS IF THE DEFENDANT ALLEGES THAT THEY ARE NOT A TENANT, THEN THERE IS NO REQUIREMENT TO POST RENT IN THE COURT REGISTRY GRIMM V. HUCKABEE, 891 SO.2D 608 (FLA. 1ST DCA 2005). JUDGE WILL SET FOR HEARING

48 WRIT DELIVERED TO SHERIFF (FEES APPLY FOR SERVICE] SHERIFF SERVES DEFENDANTS HAVE 24 HOURS TO VACATE SHERIFF RETURNS TO PUT PROPERTY OWNER IN POSSESSION CASE IS RESOLVED PENDING COUNT II DAMAGES IF FILED

49 LANDLORD / TENANT THINGS THAT WILL DELAY EXECUTION OF A WRIT OF POSSESSION DEFENDANT FILES EMERGENCY MOTION FOR TEMPORARY STAY CLERK WILL FORWARD EMERGENCY MOTION TO JUDGE AND TO SHERIFF IF JUDGE ISSUES RULING IN FAVOR OF DEFENDANT, A CERTIFIED COPY OF THE ORDER IS FORWARDED TO THE SHERIFF IF JUDGE ISSUES RULING DENYING DEFENDANT S MOTION, CLERK TO NOTIFY SHERIFF

50 LANDLORD / TENANT THINGS THAT WILL DELAY EXECUTION OF A WRIT OF POSSESSION (CONTINUED) INCORRECT OR INCONSISTENT NAMES AND ADDRESS ON PAPERWORK DIFFICULTY LOCATING PHYSICAL ADDRESS

51 UNLAWFUL DETAINER EJECTMENT

52 UNLAWFUL DETAINER FLORIDA STATUTE 82 $300 FILING FEE OTHER COUNTY CIVIL NO RENTAL AGREEMENT AND A LANDLORD/TENANT RELATIONSHIP DOES NOT EXIST, ONLY ISSUE IS POSSESSION. TYPICALLY FRIENDS, FAMILY MEMBERS, SIGNIFICANT OTHERS, OR OTHER PERSONS ARE PERMITTED TO STAY ON THE PREMISES FOR A PERIOD OF TIME OR UNDER CERTAIN CONDITIONS. HAVE NO OBLIGATION TO CONTRIBUTE AND THEN REFUSE TO LEAVE.

53 EJECTMENT FLORIDA STATUTE 66 CIRCUIT COURT CASE - $400 FILING FEE PLAINTIFF MUST PROVE TITLE INVOLVES THE REMOVAL OF A PERSON OR PERSONS WHO HAS NO RENTAL AGREEMENT. DEFENDANT CLAIMS SOME RIGHT, INTEREST, OR TITLE TO THE PROPERTY.

54 RESOURCES FLORIDA STATUTES 34, 66, 82, AND 83 FLORIDA RULES OF CIVIL PROCEDURE FLORIDA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES AT FLCOURTS.ORG FLORIDABAR.ORG LOCAL LEGAL AID SERVICES

55 QUESTIONS?