Complaint Review: Sila Gutierrez Wilfredo Luis - Miami Beach Florida

I made and entered into a residential lease agreement with Sila Guiterrez and Luis Wilfredo for the premises located at 4779 Collins Ave., Unit 2007, Miami Beach, Miami-Dade County, FL (the “demised premises”), requiring me to pay the landlord three months’ advance rent of $3,400 per month or $10,200 — for the first and last month’s rent plus a deposit — prior to taking occupancy, as Defendant’s counsel admitted such in open court. 

After I paid the landlord $10,200, I requested a receipt for the deposit together with the name of the financial or non financial institution and account information for where THE LANDLORD allegedly deposited the $10,200 advance rent on multiple occasions; however, landlord and her counsel, Lissandra Guerrero, Esq. at Kubicki Draper, negligently failed to respond in any way whatsoever.  

The landlord does after all have a statutory obligation to deliver to a tenant, such as me, a receipt and account information (for where the depsoit is being depsoited) within 30 days of receiving the security deposit, according to  § 83.49(2), FL Stat.  (2017).   The landlord and their attorneys at Kubicki Draper cannot just simply pocket the money and pretend its a security deposit, as it has done in this case, rather the landlord is legally required to protect Plaintiff’s deposit pursuant to Florida Statute 83.49(1) by keeping it in a separate bank account from rents and other monies. This is true whether or not the lease agreement has any language about the landlord segregating the security deposit. 

Indubitably, where, as here, Sila Guiterrez and Luis WIlfredo and her counsel Lisandra Guerrero, Esq. failed to respond to my multiple requests for a receipt for the deposit. 

Sila Guiterrez and Luis Wilfredo own several properties in and around Miami Dade County and I don't want them ripping off more people like they did to me when they stole my entire $3,400 securirty deposit. 

On April 21, 2017 — more than 7 days before vacating the demised premises —, I delivered to Sila Guiterrez and Luis WIlfredo and their attorney Lisandra Guerrero written notice of my intention to vacate the demised premises, a copy of said correspondence is attached hereto and made a part hereof, as Exhibit “B.”  Indeed, Attorney Guerrero responded to my April 21, 2017 notice acknowledging its receipt and confirming Plaintiff’s vacation date of June 21, 2017.   It should be noted that on that notice I also advised the Sila Guiterrez and Luis WIlfredo and their negligent attorney Lisandra Guerrero of my new mailing address, but they did not ever deliver my security deposit or any explanation to me.  Sila Guiterrez, Luis WIlfredo and Lissandra Guerrero all stole or conspired to steal my $3,400 deposit. 

That is, I vacated the demised premises two days early on June 19, 2017; and, scheduled a final walk through inspection for June 21, 2017.  Lissandra Guerrero, Esq. and, not one, but two residential real estate agents performed the final walk through inspection at which point no one indicated that there was any damage to the apartment whatsoever.  So, Sila Guiterrez and Luis Wilfredo were required, but utterly failed to deliver via certified mail a notice of intent to impose a claim upon the deposit within 30 days after I left the premises. 

Defendant’s alleged notice must, but failed, to meet the following six point criteria for such a notice to be deemed properly delivered and legally sufficient.  If the notice is untimely or legally insufficient, as in the case here, then the Defendant is required to return the tenant’s entire deposit of $3,400 sans deduction or setoff.  However, Sila Guiterrez and Luis Wilfredo as well as Lisandra Guerrero stole my deposit and have continued to do so, despite my multiple requests for them to return my money.

While Lissandra Guerrero, Esq. may have told her clients that she sent me the required notice, she did not and lied to her clients in the process or helped them steal my $3,400 deposit.  In a similar case, that of Hunter’s Run v. Hoelscher, 34 Fla. Supp. 2d 148 (Fla. Orange County Ct. 1987), the Court ruled that if the letter is not sent by certified mail, the notice is defective and the landlord thereby forfeits his right to make a claim on the deposit.  In this case, Sila Guiterrez and Luis Wilfredo simply failed to send the statutorily required notice via certified mail, thus the notice, as in Hunter’s Run, is defective; and, therefore, Sila Guiterrez and Luis Wilfredo have forfeited their right to assert a claim against any portion of my $3,400 advance rent, but more than 6 months after leaving the condo, the landlord still wrongfully holds every penny of my security deposit in contravention of florida law.

In most states, including Florida, if a landlord does not send an itemized statement and deposit balance to the tenant within 30 days of the date the rental agreement is terminated or the tenant moves out, the landlord forfeits all rights to any portion of the deposit and from taking further legal action against the tenant in a court of a law.  aboutfloridalaw.com/2015/07/21/how-to-get-a-refund-of-your-rental-home-security-deposit-from-the-landlord/.   It really makes no difference how much damage there is, if any. Even if there was $10,000 in damages, the landlord has lost his rights to sue or keep any portion of the deposit. Thus, tenant’s untimely notice prohibits Defendant from suing and keeping any portion of Plaintiff’s deposit; however, Defendant has not done so and should be required to do so.

In support of this conclusion consider the facts and holding set forth in Mittelman v. Honzik, 14 Fla. L. Weekly Supp. 145d (17th Cir. App. 2007).  In that case, the tenant paid rent through the 21st of April, but moved out on the first of April. The landlord sent a notice informing the tenant of his intention to claim the deposit after May 1st but before May 22nd.  Therefore, the issue in this case became when the 30-day time period for landlord to issue its notice began. The Court ruled that the 30 day time period began on the date when the tenant physically left the premises.  Accordingly, the court held in Mittleman that the landlord’s notice was sent too late and the tenant became entitled to the return of his entire deposit.

Likewise, the Fourth District Court of Appeals in Casey v. Picinich, 573 So. 2d 76 (Fla. 4th DCA 1990), found that the landlord simply failed to properly deliver the required notice to the tenant informing the tenant of his intent to place a claim on the deposit; and held that the tenant, like me, is entitled to a complete return of the deposit plus interest.  

As such, in this case, I vacated the subject premises on June 19, 2017, the day that movers removed each and every item of my personalty from the demised premises.  Thus, any purported notice delivered by Sila Guiterrez and Luis Wilfredoshould have been, but was not, delivered via certified mail on or before July 18, 2017, but Defendant failed to do so.  Hence, as in Mittleman and Casey, Sila Guiterrez and Luis Wilfredo's notice was untimely; and, therefore the Defendant should be required to return Plaintiff’s entire deposit without deduction or setoff, but Defendant has refused to do so in contravention of Florida law.  Consequently, Ishould be entitled to attorney’s fees and costs.  Section 83.49(3)(c), FL Stat.

Sila Guiterrez and Luis Wilfredo failed to return my entire advance rent of $3,400 plus interest within 15 or 60 days after I vacated the demised premises, although Sila Guiterrez and Luis Wilfredo did refund $1,000, thus Sila Guiterrez and Luis Wilfredo continues to owe me $2,400 plus interest of 5% on $3,400 or $170.