Failure to Specifically Plead an Affirmative Defense Means Reversal of Dismissal In Florida Eviction Action
September 8th, 2015
Failure to Pay Rent into Court Registry in a Florida Eviction is an Absolute Waiver of Defenses Other Then Payment
In a recent eviction action out of Miami-Dade, County, Judge King denied a defendant’s motion to dismiss and request for hearing on that motion when it was determined that the defendant had failed to pay any monies into the court registry and had not brought the defense of payment in his motion. The court determined that the Plaintiff would thus be entitled to an immediate default final judgment for possession pursuant to Florida Statutes section 83.60(2). See opinion below.
THR FLORIDA, L.P., Plaintiff, vs. JARED BRADLEY PICKRELL and all others in possession, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 14-535 CC 26 (04). March 12, 2014. Lawrence D. King, Judge. Counsel: Miguel J. Chamorro, Lydecker Diaz LLC, Miami, for Plaintiff. Miguel R. Lara, Rasco Klock Perez & Nieto, PL, Coral Gables, for Defendant.
ORDER DENYING DEFENDANT’S MOTION TO DISMISS
THIS MATTER came before the Court on March 12, 2014 for consideration of Defendant, Pickerell’s Motion to Dismiss filed February 14, 2014. The Court has reviewed all pending motions and responses filed by the parties to this action, the statutory enactments cited by the Plaintiff and Defendant therein, reviewed the pleadings contained in the Clerk’s file, and being otherwise apprised in the premises hereby issues the following ruling.
IT IS ORDERED AND ADJUDGED that Defendant, Pickrell’s Motion to Dismiss and hearing thereon is DENIED.
Plaintiff, THR Florida, L.P. is entitled to seek residential eviction relief pursuant to the summary procedure statute for removal of a tenant who fails to pay monthly rent Section 83.60, Fla. Stat. (2013). The Complaint alleges that Defendant owes $ 9,430.00 through January 2014 for unpaid rent. Further, Defendant has failed to timely pay any disputed rent monies into the Court Registry as otherwise required pursuant to Section 83.60(2), Fla. Stat. (2013), which results by operation of statutory enactment as an absolute waiver of all defenses, other than payment. See Stanley v. Quest International Investment, Inc., 50 So. 3d 672 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D2636a]; Hanover v. Vasquez, 848 So. 2d 1188 (Fla. 3d DCA 2003) [28 Fla. L. Weekly D1319b]; K.D. Lewis Enterprises, Corp. v. Smith, 445 So. 2d 1032 (Fla. 5th DCA 1984).
The Court finds that Defendant has not raised payment as a defense in this action, nor has Defendant filed any supporting evidence of payment to the Landlord of the disputed rent more specifically set forth in the Complaint. Therefore, Plaintiff is entitled to an immediate default final judgment for removal of the tenant with writ of possession to issue without further notice or hearing thereon. Section 83.60(2), Fla. Stat. (2013). Defendant’s Motion to Dismiss filed February 14, 2014 sets forth contentions of Plaintiff’s failure to comply with the requirements of service of a proper statutory 3-day notice, demanding the outstanding rent.
To afford the Defendant, Pickrell a hearing regarding any relief sought by way of his Motion to Dismiss, or in any Answer and Affirmative Defenses (other than payment), which might be filed by Defendant, the tenant must first place the full amount of the unpaid rent set forth in the complaint into the Court Registry, Section 83.60(2), Fla. Stat. (2012). Karsteter v. Graham Companies, 521 So. 2d 298 (Fla. 3d DCA 1988) rev. denied 529 So. 2d 694 (Fla. 1988).
Respectfully, the Court finds all other relief sought by Defendant, Pickrell regarding the Federal Fair Debt Collection Practices Act contained in the Motion to Dismiss to be without merit
IT IS FURTHER ORDERED that all other relief including attorney fees and costs sought by Defendant, Pickrell in his Motion to Dismiss is DENIED.