Investor Mindset
Market News & Data
General Info
Real Estate Strategies
Landlording & Rental Properties
Real Estate Professionals
Financial, Tax, & Legal
Real Estate Classifieds
Reviews & Feedback
Updated 3 months ago, 09/18/2024
Unbelievable Florida security deposit claim lawsuit!!!
Attention all Florida investors/landlords regarding making a claim on tenant's security deposit!!
I obtained an eviction judgment against a former tenant who failed to pay rent in St. Petersburg, Florida (Pinellas County). After obtaining the judgment, but without my knowledge, tenant's attorney filed a "notice of last known address change re: security deposit" in the eviction case, listing an address belonging to an LLC located in another Florida county. Since I never received a copy of this notice, I was unaware of the address change or that the tenant assigned her security deposit claim rights to the LLC.
Within 30 days of tenant moving out of the property, I sent her a notice of intention to impose a claim on security deposit, via certified mail, to the tenant's last known address since I was unaware of the address change notice. The notice of intention to impose a claim on security deposit was returned to me as undeliverable by the USPS.
Now the LLC has filed a lawsuit against me for not returning the security deposit and/or for not sending the notice, via certified mail, to the LLC's address. Unfortunately it will be my word against the attorney regarding whether I ever received the notice and therefore knew about the address change. As a result, I will end having to pay the full amount of the security deposit and attorney's fees and costs to the attorney, even though I believe I fully complied with Florida law regarding this matter. To make matters worse, I discovered that this same law firm filed over 80 of these type of lawsuits against landlords just in 1 Florida county courthouse. Unbelievable!!!!
I welcome any feedback from other landlords regarding this type of case. Marc Brandon
Quote from @Josh Green:
Quote from @Marc Brandon:
Nathan thanks for your response. The security deposit was $1,200, but here in Florida, attorney's fees and costs are recoverable to the prevailing party in cases concerning security deposits. (FL statute 83.49.) If the landlord is making a claim against the tenant's security deposit, he/she must send a written notice to the tenant's "last known address" within 30 days, via certified mail.
In this case, since the tenant did not pay her last month's and stopped communicating with me, I obtained an eviction judgment. The tenant did not challenge the eviction, but apparently hired an attorney who filed a few documents in the eviction case, but I never received any of these documents.
Later I learned that the attorney convinced the tenant to assign her rights to make a claim for the security deposit (presumably because she could not pay the attorney) to an LLC that the attorney created. As previously stated, I never received a copy of the notice regarding last known address change for security deposit. More than 1 year after obtaining the eviction judgment, the LLC sued me for not returning the security deposit and/or not sending the notice to impose a claim on security deposit to the LLC's address in another Florida county.
Though I sent the notice to the tenant's last known address, via certified mail, I cannot prove that the attorney never sent me the address change notice and therefore run the risk of losing the case at trial. If this happens, the attorney will probably seek thousands of dollars in attorney's fees and costs, far greater than the security deposit.
This is incredibly frustrating since this attorney filed many of these type of cases against landlords throughout Florida!!!
Who’s the attorney? We should find their Google business page and leave bad reviews 🤣
Sometimes I wish I was an attorney. I would take those attorney to court.
I would find all the victims and do a class law suit against that attorney firm
Quote from @Marc Brandon:
Attention all Florida investors/landlords regarding making a claim on tenant's security deposit!!
I obtained an eviction judgment against a former tenant who failed to pay rent in St. Petersburg, Florida (Pinellas County). After obtaining the judgment, but without my knowledge, tenant's attorney filed a "notice of last known address change re: security deposit" in the eviction case, listing an address belonging to an LLC located in another Florida county. Since I never received a copy of this notice, I was unaware of the address change or that the tenant assigned her security deposit claim rights to the LLC.
Within 30 days of tenant moving out of the property, I sent her a notice of intention to impose a claim on security deposit, via certified mail, to the tenant's last known address since I was unaware of the address change notice. The notice of intention to impose a claim on security deposit was returned to me as undeliverable by the USPS.
Now the LLC has filed a lawsuit against me for not returning the security deposit and/or for not sending the notice, via certified mail, to the LLC's address. Unfortunately it will be my word against the attorney regarding whether I ever received the notice and therefore knew about the address change. As a result, I will end having to pay the full amount of the security deposit and attorney's fees and costs to the attorney, even though I believe I fully complied with Florida law regarding this matter. To make matters worse, I discovered that this same law firm filed over 80 of these type of lawsuits against landlords just in 1 Florida county courthouse. Unbelievable!!!!
I welcome any feedback from other landlords regarding this type of case. Marc Brandon
I would suggest you also write a complaint to the Board of Attorneys of Florida about the attorneys who are suing you
Please stop panicking. That is when we make bad decisions. People here are trying to help, and you keep restating the points that you are panicking over. This is what this lawyer is counting on. A rush to settle before you find out their scam. And everyone here is telling you that you have the better position.
You keep stating that they have filed "Proof of Service". That is just a form stating that they have mailed something. (See link below) Anyone can state anything. Proof is another thing. As stated before, certified mail to the correct address, would be the minimum most courts would accept.
If you insist on doing this on your own, take a breath, and re-read what has already been said here. If you can't take the pressure, then please, get a lawyer. Then it is off of you to research and find all the laws and regulations.
They should have provided you with copies of everything they have filed. If there was a certified receipt, it should have been included.
Dave thanks for your reply. I am not panicking and have spoken with several attorneys regarding this matter. Unfortunately in Florida, the attorney was not required to send me the last known address change notice by certified mail. Instead regular mail with the proof of service is all that was required. As a result, if I were to proceed to trial, in all likelihood I would lose and end up having to pay thousands of dollars in attorney's fees and costs.
While I appreciate some of the comments others have made, they simply do not understand Florida law regarding security deposits and that this particular law firm has found a legal loophole in order to extort money out of landlords all over the state. I do not see the logic or reasoning in paying an attorney thousands of dollars defending me when in the end, I will probably lose the case and have a judgment against me for significantly more than I can settle for. Again, several experienced attorneys have agreed with my analysis.
Marc, can you please clarify what documents you’ve received about the lawsuit against you. I continue to see no suit against you in the jurisdiction.
Quote from @Al D.:
Marc, can you please clarify what documents you’ve received about the lawsuit against you. I continue to see no suit against you in the jurisdiction.
I do see the case in that county. As previously known, one of the allegations in that complaint is that the tenant left on March 13, which was also asserted by the lawyer firm in the eviction case records. The form that the attorney representing the tenant filed after you obtained the final judgement in the eviction case was electronically filed with that court on March 24, alleging also that you were served with a copy of it “by mail or eService” that same day. And you mentioned when you sent your letter.
Looking it this as an investigator, not a lawyer:
You may not have to proceed to trial, but you may have to get to discovery, predominantly to see how - and exactly when - you could have been served with the “NOTICE OF UPDATING MAILING ADDRESS FOR DEFENDANTS AND OBJECTION TO ANY CLAIM ON SECURITY DEPOSIT,” alleged to have been “furnished” to you on March 24, a Friday last year. I imagine that Florida law still places the burden of proof on the plaintiff here, that (i) the law firm (and exactly who there) did, in fact, send this notice to you, (ii) on what date it was stamped by either the machine inside the law firm (think “Pitney Bowes.” And then subject to subsequent timely submittal to the care of the USPS for delivery) or postmarked by the USPS directly, and (iii) still be subject to actual delivery (time) logistics in either stamping case… To start with.
In their complaint against you (Item 12,) the plaintiff omitted mentioning the date when they “filed” the updated address notice. (It’s just the complaint, so, fine.) But they readily provided the date for when the tenant left the property in Item 13. Could be nothing. Or everything... Discovery is expensive, and I can see your point of listening to the advice of the attorneys you’ve spoken with - it is your money, and you know the facts of the matter to be able to present them to get proper counsel. But I am also seeing you filing your own motions. And it’s important that none of us underestimate your reality - regardless of our own experiences and desire for justice at any alleged cost.
Interesting set of facts and events, and I wish the best for you. Again, thank you for the warning.
But if you pay, you are already on their radar. Every time you file for an eviction, will they try this again? Or someone they sell your name to?
And will you now consider this an additional headache, and maybe not be so ready to file for an eviction in the future? How much will this cost you in the future? And yes, bad prospective tenants can also find this out and see you as a mark. There are valid reasons others have said that they would pay more, just to not settle. And I've met too many lawyers that don't fight, but give in. Maybe you just haven't found a lawyer who isn't a wimp. lol
Just trying to show some of the other effects you may not be considering, if you settle. In the end, it is your decision. None of us can choose for you, because we don't have to live with it. Good luck.
Late to the party here but as a Landlord I find this interesting....
Question - How can a Tenant assign its Security Deposit without Landlord Consent ?
Good question, Andrew. The following are some “Factual Allegations” the law firm stated in the complaint against Marc, in order, limited to what should matter to us to avoid similar. To your point, the lease was no longer in effect:
4. “… the tenant, rented the premises, located at …(the “Property”), from the Defendants.
5. Tenant paid Defendant a $1,200.00 security deposit.
6. Pursuant to §83.56(3), the Defendant delivered a 3 Day Notice for the tenant to pay or the tenancy would be terminated.
7. The Defendant terminated the lease as a statutory predicate to filing its eviction action pursuant to §83.59(1) and (3)(a).
8. The Defendant then brought an action for possession pursuant to §83.59(1) which states
“[i]f the rental agreement is terminated and the tenant does not vacate the premises, the landlord may recover possession of the dwelling unit as provided in this section.”
9. After terminating the lease, Defendant sought Property possession through an eviction action.
10. Since the Defendant terminated the rental agreement as a condition precedent to filing the eviction action for possession, the Defendant was obligated to comply with §83.56(6).
11. §83.56 Termination of rental agreement.-
‘...
(6) If the rental agreement is terminated, the landlord shall comply with s. 83.49(3).’
12. A Notice of Updating Mailing Address for tenants updating the tenant’s mailing address was filed in the prior eviction.
13. The Tenant surrendered the Property on or around March 13, 2023.
14. Under the plain reading of § 83.49(3)(a), a landlord must send deposit-claim notice to the tenant’s “last known mailing address.”
15. The Tenant assigned the rights to the security deposit to the KAC 2021-1, LLC.
16. KAC 2021-1, LLC, assigned the rights to the security deposit to the Tenant's Rights, LLC."
17. The Defendant did not return the security deposit within the statutory time allowed.
18. The Defendant failed to send a deposit claim via certified mail to the last known mailing address.”
Count 1, based on the above:
“20. After the tenant’s breach, the Defendant terminated the lease pursuant to §83.59(1), as a condition precedent to filing the Eviction Complaint seeking possession.
21. Since the Defendant terminated the lease, the Defendant was required under Florida statute §83.56(6) to comply with §83.49(3).
22. The Defendant failed to send a claim on the security deposit within 30 days of the Tenant’s surrendering the Property.
23. The Defendant fail (sic) to return the security deposit, even though §83.49(3)(a) required Defendants to do so.”
The following is information for consideration and not legal advice. Check with an attorney for legal advice specific to your situation. I would start at the beginning. What does my lease say regarding the notice requirement. Most leases typically have two terms: (1) defining how notice will be given and (2) defining where notice will be given to each contracting party. For example, certified mail to Tenant at 123 street. Did I comply with that? My tenant's attorney is filing a notice with the court which obligates the parties to use that address for court service purposes. It doesn't supersede the written contract, especially if the lease spells out how the notice must be given and how it can be updated. At worst my tenant could argue I had knowledge of a new address (I'll be checking the certificate of service on the notice they filed with the court and make sure it lists me or my attorney). If my attorney was served and didn't notify me, that's a malpractice issue for them and a good point of leverage that they better deal with this at their expense because the only other recourse is against them. Assuming my lease had the right notice language on method and address, I'd be directing my attorney to challenge anything the tenant does in court because the court must enforce the lease as written and it can't be modified without a written modification (I have lease clauses for this and that the lease is an integrated contract so they also can't testify on facts outside the contract terms or that something else was verbally agreed to, etc.). Statute 83.49 requires notice by certified mail to the tenant’s last known mailing address. Was my tenant's court notice filed after I had already sent notice out to the last known address. Also, I might argue that the tenant waived the statutory right and contracted to be notified as spelled out by the lease.
Quote from @Marc Brandon:
Dave thanks for your reply. I am not panicking and have spoken with several attorneys regarding this matter. Unfortunately in Florida, the attorney was not required to send me the last known address change notice by certified mail. Instead regular mail with the proof of service is all that was required. As a result, if I were to proceed to trial, in all likelihood I would lose and end up having to pay thousands of dollars in attorney's fees and costs.
While I appreciate some of the comments others have made, they simply do not understand Florida law regarding security deposits and that this particular law firm has found a legal loophole in order to extort money out of landlords all over the state. I do not see the logic or reasoning in paying an attorney thousands of dollars defending me when in the end, I will probably lose the case and have a judgment against me for significantly more than I can settle for. Again, several experienced attorneys have agreed with my analysis.
In that case, I would just return the security deposit. It probably will be cheaper for you vs hiring an attorney and going to trial.
I settled the case for $3,000.
- Real Estate Broker
- Cody, WY
- 40,610
- Votes |
- 27,663
- Posts
Quote from @Marc Brandon:
I settled the case for $3,000.
I knew that was going to happen.
The attorney scared you into paying his shake-down. I've seen it a lot with copyright violation claims. The only reason these lawsuits prevail is because people get scared and give in. This is why he's filed 80 of these suits and it's why he will continue to do so.
- Nathan Gesner
If this is happening to anyone else. It may pay to vet the lease details as I posted above. In Florida your attorney can provide the other side with a Florida Statute 57.105 notice of sanctions. If they do not have a valid legal basis and maintain their filing, both the party and their attorney get sanctioned and have to pay. The attorney's portion of the sanction comes out of their own pocket. That's the fastest way to get attorneys who are filing frivolous suits to back off. Again, only if legally unfounded, which depending on your lease terms it may be.
Quick review of Marc's case on the clerk's website. Looks like that attorney likely said they mailed it and didn't. It is my personal opinion that under the applicable rules, service on pro se parties representing themselves is deemed completed when e-filed by the attorney certifying they mailed you. No proof they actually mailed you is necessary.
In reviewing what happened to Marc, here's how I plan to mitigate it in my rentals:
1. Lease addendum 1: Landlord and Tenant agree all notices of a change of address under this agreement shall only be made by certified mail. Landlord and Tenant hereby waive all objections and causes of action arising out of or related to any change of address made by means other than certified mail.
2. Lease addendum 2: No part of this agreement, or any deposits made to or held by the Landlord may be assigned to any third party. The tenant specifically agrees they shall not assign any deposits under this agreement.
3. If I decide to represent myself in court (pro se), I will always register with the Florida Court's e-filing system and add myself to the service list with the first papers filed. I may also ask the court to enter an order that I be served via email. This would prevent any party or attorney from certifying mail service, not mailing and the trying to hold me accountable.
The foregoing is not legal advice and is shared for informational purposes only on what I see as a practical approach of how I will address such issues.
Marcus good ideas for protecting yourself in your current lease agreements. One additional idea is to add a provision stating something to the effect of
"This Lease is governed by the statutory and case law of the State of Florida. Any claims, actions and/or lawsuits based upon and/or arising out of this Lease, including any statutory causes of action arising out of and/or related to this Lease, must be brought in ________ County, Florida."
The significance of this provision is to protect you (landlord) from having to defend yourself in a county other than where you live, where the property is located or where the lease was entered into. In my case, the attorney filed the small claims court case in another county 3.5 hours away.
From now on, I will only use the Florida court e-file system when filing any eviction litigation against former tenants.
@Nathan Gesner
I agree
The first time I was sued I was scared you know what and settled when I had a winning case.
After the first one you learn your lesson - also you are correct that we get calls and letters from attorneys saying we violate ftc because someone signed up on our website for more info and we call them and they sue. I had one guy who we googled and had 12 suits pending. We just ignored the attorney after an initial response and it went away. Attorney had asked for a ton of info and all we provided was the date and time and ip address of the guy.
Had another one where tenant wanted out of lease and our lead paint certification expired on a Friday and they had a lawyer send a $5000 demand due to unsafe unit (which didn’t have lead paint in it) and us pay their moving.
We told them we will let you out of the lease but will never give you a penny - that’s how it ended - they moved out and we let them out of lease
- Chris Seveney
If you guys read the complaint against Marc, specifically from Paragraph 7, paying due attention to Count 1 (Paragraph 20,) does anyone still care about what is (WAS) in the lease or any addenda?
I don’t think any lease term could matter after the lease is terminated and the tenant is actually out as a direct result, especially, as in this case, when the lease is terminated by the landlord.
It is as if the lease stated something along the lines of: “Even after this contract is terminated for any reason, you owe me X, Y, Z going forward.”
Timing on the lawyer’s actions in the eviction case appears to be key - “loophole” - to me.
Can someone please tell me if I may be wrong (and why.)
But registering for e-file is a great idea.
The main issue here is that you had to send a physical check to a "new address" to return the deposit. If the deposit always stayed in the renter's name (where it belongs as it's legally their money), you wouldn't have to send any checks and have this issue.
As I previously stated, the former tenant assigned her rights, in writing, to the security deposit to an LLC created by her attorneys. Therefore the former tenant was no longer entitled to the security deposit, or any portion of it, presuming she would have gotten some, or all of it back after vacating the rental property.
