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Sergio Cabanas
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Sergio Cabanas’s Answers

402 total


  • Is there a limitation on consent judgment?

    I entered into a consent judgment over 11 years ago. I pay monthly without fail and every year the attorney for the person I owe increases the payment and makes me sign a new agreement to pay. The lien on my house wasn't renewed after seven years

    Sergio’s Answer

    This may be one of those rare occasions where all lawyers agree that this arrangement appears to be unusual, and you should take this paperwork to an attorney who can review it and advise you on the best strategy that may resolve this issue once an for all. Most attorneys provide a free initial consultation.

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  • If I include the home in my bankruptcy can I request time to move out from the judge?

    I'm renting from a private owner. I'm current on the rent except March rent. I'm in an eviction process for the security deposit that I did not fulfill. Due to an extreme medical reason and bills I am also in the beginning of a bankruptcy. I advis...

    Sergio’s Answer

    To best answer your question, I would need additional information and clarification of certain facts as this case is quite complex from a legal standpoint. It potentially involves bankruptcy laws and landlord-tenant laws. Does the "beginning of bankruptcy" mean you actually filed a bankruptcy, or just getting ready to file? It appears a judge is setting a hearing to determine rents that are owed, so there's an eviction? If you actually owed the landlord some payments for the security deposit, and they're suing you for eviction on back rent, you may have a winnable case, and you may have the right to recover attorney's fees and costs if we prevail. Regardless of the answers to these important questions, I would strongly urge you to address these issues with your bankruptcy attorney, if you have one, or consult an attorney knowledgeable about Landlord-Tenant law and bankruptcy law.

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  • Please see questions below. Also, does the bank only get out of paying most of HOA dues only if they foreclose and not a DIL?

    Hi, I'm considering accepting a deed in lieu that the bank offered me for a home I have in Florida. But I owe $80,000 in overdue homeowner association fees, and the HOA placed a lien on my property. The mortgage is for over $450,000 and the prop...

    Sergio’s Answer

    I agree with the other two responses in that you remain liable for HOA's debt despite the deed-in-lieu as it is a separate agreement. (We would have to review the actual Declaration of Condominium to be absolutely sure; however, most do make you personally liable for the debt). From a practical standpoint, it remains to be seen whether the HOA would pursue collections against you. I hope the mortgage lender has agreed to waiving any deficiency with regard to any remaining debt (which is usually the case with most deeds-in-lieu). You should consult an attorney who can review the specific facts and information of your case and advise you on your rights and options.

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  • Do banks accept shortsale settlements during foreclosure mediation?

    Hi my house is extremely upside down with Nationstar (not a Fannie Mae or Freddie Mac loan). I'm debating doing a short sale or fighting with a foreclosure defense attorney. I know in Orange County mediation is recommended. I also know that Na...

    Sergio’s Answer

    In my experience as a foreclosure defense attorney, I've never seen a shortsell-type of settlement at a mediation. The normal procedure for a short sale is achieved outside of the mediation/litigation process, by submitting an executed contract with the short sale paperwork that the bank requires. Whether the bank will accept that family's offer that's equivalent to the tax assessed value will depend on the bank's appraisal and other considerations. If you decide to go this route (with the short sale), please make sure the contract is contingent upon the bank's approval of the short sale as well as your acceptance of the terms and conditions of the short sale. It would be wise to have an attorney help you through this process. Good luck!

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  • What can I do! I do not have any income and how should I go from here?

    I was served to court next month because I owe and outstanding balance of 1,800 on fingerhunt but I've been without a job for 5 years due to a condition on my foot that I have been not able to ware shoes and go to Drs to help cure my condition,the...

    Sergio’s Answer

    Even though it may seem like "the end of the world" to be sued by a creditor, you may find that is really not the case at all after meeting with an experienced debt defense attorney, most of whom provide a free consultation. There are many options available to you depending on the facts of your case and specific needs.

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  • Does a tenant have rights for delinquent deposit payments after filing chapter 7 bankruptcy?

    I rented out my home to a tenant in November 2015 with a promise to pay of deposit. The tenant paid slowly until I could not wait for the balance. I filed for eviction after serving a 3 day notice. The judge granted a "rent determination" hearing....

    Sergio’s Answer

    I agree this has become a complicated issue, as you have the two "legal worlds" of bankruptcy and landlord-tenant law, colliding to create a mess. You'll know in the future that when a tenant moves in, all sums collected should be applied towards the deposits first, with any payment plan being related to "rent" only, so you can evict faster and more easily if the tenant fails to pay. As to the problem at hand now, it is my opinion that it'll be safer to file a motion in the bankruptcy court, allowing you to collect the remaining balance of the deposit, which should be done through an attorney, of course as it's complicated. Thereafter try to collect attorney's fees as post-petition debt. However, putting the legalities aside, it may be more economically beneficial to forego the remaining security deposit, but you run the risk of not being able to recover damages or other charges from the tenant who is already proven to have economic hardships.

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  • Can I serve them a 3 day notice & if they don't vacate can I call the police and have them removed.

    I have a tenant who signed a month to month rental agreement. The agreement states that if rent is not paid by the 5th of the month they would be issued a 3 day notice to vacate. The tenant gave me a 30 day verbal agreement on 1/27. I followed ...

    Sergio’s Answer

    With all due respect to you, the efforts being made here to terminate the tenancy is not being handled in the manner required by law, which means you will continue to lose time and money (and continue to be frustrated). You could proceed with an eviction through a proper 3-day notice or a notice of termination as suggested by another attorney. Whatever you decide to do, it must be done right, or risk losing more money and time. You should consult with an attorney to help through this process. The small investment in an attorney will more than pay for itself if you try to do this process on your own. That's the reason people hire attorneys!

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  • Can the landlord of evict me and my family from our home when all the rent is paid?

    I have a landlord who is trying to sue and evict me and my family from our current home. All of our rent is up to date, sometimes late, But, it is always paid. I have lived here for three years with no issues, no bounced checks or never had been...

    Sergio’s Answer

    To me, I would need more information to answer your question properly, but I'll make several assumptions to answer the question as best I can. It appears that Landlord filed an eviction based on your failure to pay rent within the time stated on the 3-day notice, despite the fact you continually had an agreement with the landlord to pay later in the month. Thereafter the landlord filed an eviction to which you filed a proper response and paid the rent into the court registry? If these are the facts (again with important assumptions), it would appear you have a possible defense, but it'll be complicated to establish. Generally, under the Florida law you are required to pay the rent within the time stated in a proper 3-day notice, and you failure to do so entitled the landlord to an eviction. However, there are many court decisions that suggest that where the "business practice" develops between the parties, the legal doctrines called "waiver" and "estoppel" come into play, where it must be established that the Landlord had willingly engaged in this practice throughout your tenancy (the longer the better). This is complicated because the defense entails (1) researching and providing the judge with the applicable law and (2) making proper arguments in addition to (3) proving the facts (i., the pattern). Given the complexity of such a defense, you should consult an attorney to help you through this process. If you prevail, you will be entitled to recovery of attorney's fees.

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  • Can I do motion to strike and vacate a judgment and quash stipulation agreement

    Landlord filed eviction because I withheld rent due to uninhabitable condition of premises A stipulation agreement was signed and the eviction was dismissed without prejudice However the landlord breached the agreement and I filed an affidavit of...

    Sergio’s Answer

    This question is difficult to answer without knowing the key facts (i.e., the issues that led to the stipulation and how it was allegedly breached) in addition to reviewing the agreement. This unfortunate situation will be in public records and if it's not fixed, it may affect your future application(s) for rent, employment or credit. You should consult an attorney, most of whom provide a free consultation.

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  • How do I stop a judgment and writ of execution

    Landlord evicted me and court set up mediation At mediation signed stipulation no money owed but have to leave by December 13th 2015 Tried to give landlord keys but he left town on December 2nd 2015 Stipulation specifically states keys to be put...

    Sergio’s Answer

    I agree you should have an attorney review this situation in order to avoid the problems that may ensure with the judgment. Most of us provide a free initial consultation.

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