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Please see the decision entered by the Fourth District Court of Appeal on February 1, 2023.”

AMS Legal Team Appeal

You can fight back against Associations and their rogue condo and HOA board members that may illegally prevent you from gaining access to Association documents.

You read the final judgment by clicking here.

The Executive Order #20-94, entered at the beginning of the COVID-19 crisis, suspended and tolled “any statute providing for a mortgage foreclosure cause of action under Florida law for 45 days” and “any statute providing for an eviction cause of action under Florida Law solely as it related to non-payment of rent by residential tenant due to COVID-19 emergency….” This language made it much more difficult for mortgage lenders and residential landlords to either initiate actions for foreclosure and evictions, or to obtain final relief from the courts. The moratorium was extended three times since April.

Governor DeSantis’ recent executive order extended the moratorium until 12:01 a.m. on September 1, 2020 but it also amended the moratorium on foreclosure and evictions. As of  August 1, 2020 at 12:02 a.m.,  the Governor suspended and tolled “any statute providing for [a] final action at the conclusion of a mortgage foreclosure proceeding under Florida law solely when the proceeding arises from nonpayment of mortgage by a single-family mortgagor adversely affected by the COVID-19 emergency.” The recent executive order specially states that the executive order does not “suspend or otherwise affect foreclosure proceedings unrelated to non-payment of mortgage” (i.e., tax-lien foreclosures, homeowner’s associations’ foreclosures of claims of liens, etc.). This means that commercial mortgage foreclosures can technically proceed, as can residential mortgage foreclosures where the mortgagor was not adversely affect by the COVID-19 emergency. This also allows for the initiation of actions against residential mortgagors affected by the COVID-19 crisis but limits the ability to bring the case to its conclusion. While the definition of “at the conclusion of the mortgage foreclosure proceeding” is vague, it may allow Florida courts to issue orders on preliminary issues, bringing the case up to the point of issuance of final judgment. Homeowners and lenders will see in the upcoming month how the different circuits choose to implement these changes to the foreclosure moratorium.

As for the moratorium on evictions, while commercial landlords and tenants have technically not been affected by the April COVID-19 emergency executive order, residential evictions have been at a standstill since April. The recent amendment to the April executive order suspends and tolls “any statute providing for final action at the conclusion of an eviction proceeding under Florida law solely when the proceeding arises from non-payment of rent by a residential tenant adversely affected by the COVID-19 emergency.” This change leaves the possibility for residential landlords to initiate cases against tenants who are affected by the COVID-19 emergency, but may limit the ability of the judges or clerks from taking action beyond the issuance of a final judgment. The recent executive order also specifically states that “[n]othing in this Executive Order shall be construed to suspend or otherwise affect eviction proceedings unrelated to non-payment of rent,” leaving open the significant possibility of eviction proceedings against COVID-19 affected tenants who violate the terms of a lease for reasons other than non-payment of rent. These changes may cause a significant uptick in residential evictions filings in the State of Florida in the near future.

Executive Order Number 20-180 also specifically defines the term “adversely affected by the COVID-19 emergency” as: “loss of employment, diminished wages or business income, or other monetary loss realized during the Florida State of Emergency directly impacting the ability of a” “single-family mortgagor to make mortgage payments” or  “residential tenant to make rent payments.” This clarifies previously ambiguous language and gives landlords, lenders, tenants, and mortgagors clarity as to the scope of the application of the Governor’s prior order.

Finally, in the recent order Governor DeSantis specifically amended the April executive order to include that “[n]othing in this Executive Order shall be construed as relieving an individual from his or her obligation to make mortgage payments or rent payments. All payments. including tolled payments, are due when an individual is no longer adversely affected by the COVID-19 emergency.” It appears to send a clear message to residential mortgagors and tenants that although there is some relief for those suffering due to the pandemic, they are ultimately still responsible for paying their lenders or landlords all sums which may have gone unpaid during this moratorium period. Furthermore, this language may provide instruction in subsequent litigation should a party seek to assert a non-payment defense, citing to the COVID-19 pandemic and prior Executive Orders issued by Governor DeSantis.

In a highly contentious dispute between a condominium unit owner and the governing condominium association, one Andrew M. Schwartz, P.A. client recently prevailed at trial on such a motion. At the close of the condominium association’s case in chief, a motion was made (and granted) due to the failure of the association to introduce evidence at trial of one of the necessary elements of its presented claim. While this specific case turned on a very technical issue (i.e. a failure on the part of the association to admit evidence of the publication of a specific statement which it claimed the unit owner had made to a third party), this type of motion ultimately rests upon a fundamental concept of the American legal system. This concept is that a prosecuting party (again, be it a criminal or civil case) bears the burden of proving the claim presented to the Court, and the defending party is presumed innocent (or in the civil context free from any wrongdoing) until sufficient proof is otherwise presented by the prosecuting party.

As it was so succinctly stated by the United States Supreme Court in Taylor v. Kentucky, 436 U.S. 478 (1978), “The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.” Coffin v. United States, 156 U.S. 432, 453, 15 S.Ct. 394, 403, 39 L.Ed. 481 (1895).”

In the civil context, it is widely held by the courts of this State that: “As a general rule, the burden of proof is on the party asserting the affirmative of an issue. Espinoza v. Dep’t of Bus. & Prof’l Regulation, 739 So.2d 1250, 1251 (Fla. 3d DCA 1999).”

In the Florida Supreme Court case of Tillman v. Baskin, 260 So.2d 509 (Fla. 1972), the Court addressed what a trial Court is bound to do where a prosecuting party’s presentation of its case is challenged, purely on the admitted evidence, by the defending party:

“The Supreme Court of Alaska also has rejected the federal interpretation, stating: ‘Where plaintiff’s proof has failed in some aspect the motion should, of course, be granted. Where plaintiff’s proof is overwhelming, application of the rule is made easy and the motion should be denied. But where plaintiff has presented a prima facie case based on unimpeached evidence we are of the opinion that the trial judge should not grant the motion even though he is the trier of the facts and may not himself feel at that point in the trial that the plaintiff has sustained his burden of proof. We believe that in the latter situation the trial judge should follow the alternative offered by the rule wherein it is provided that he may decline to render any judgment until the close of all the evidence’, and deny the motion. If, after denial of the motion, the defendant declines to present any evidence, the judge must, of course, then exercise his own judgment in applying the law to the facts presented and rule on the motion and decide the case.’ Rogge v. Weaver, Alaska 1962, 368 P.2d 810, 813. Accord, Arbenz v. Bebout, Wyo. 1968 444 P.2d 317. We agree. There is nothing in Rule 1.420(b) making mandatory a weighing of the facts before the end of all the testimony. Fairness and justice demand that this not be done where the plaintiff has presented a prima facie case in his favor. We prefer the rule enunciated by the Supreme Court of Alaska to that followed by the federal courts. It is inconceivable that a trial judge can fairly find for a defendant after hearing nothing more than testimony from a plaintiff establishing a prima facie case in that plaintiff’s favor. When a prima facie case is made by plaintiff, fairness would appear to require that the trial judge weigh it in the light of the strength or weakness of the defendant’s defense evidence, if any, as in the case of a jury trial. We hold that a trial judge cannot weigh evidence when ruling on a defendant’s Rule 1.420(b) F.R.C.P. motion for involuntary dismissal following the presentation of a prima facie case by a plaintiff.”) (emphasis added).”

Although not much has changed since Tillman v. Baskin, prosecuting parties are still routinely defeated at the close of their case due to the insufficient proffer of evidence. This recent ruling in favor of our client highlights the importance of pre-trial preparation.  In any litigation matter, it is incumbent upon a prosecuting or defending party to determine whether admissible evidence supporting each element of the claim or claims at issue actually exists, and if so, how it can be presented to the Court at trial.  This is something we address with our clients at the outset of each matter we handle, to ensure that a small error in pre-trial preparation does not lead to an adverse result which could have otherwise been avoided.

We extend our best wishes for Corey and look forward to seeing her take the Broward judicial bench in January 2019.