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Filing # 88898030 E-Filed 05/02/2019 02:50:23 PM
IN THE CIRCUIT COURT OF THE NINETEENTH
JUDICIAL CIRCUIT IN AND FOR ST. LUCIE
COUNTY, FLORIDA
CASE NO. 2017CA001679
MTGLQ INVESTORS, L.P.
Plaintiff,
Vv.
LORRAINE M. LEAVITT, ET AL.
Defendants.
PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S
VERIFIED MOTION TO CONTINUE SUMMARY JUDGMENT.
Comes Now the Plaintiff, MTGLQ INVESTORS, L.P., by and through the undersigned
counsel, and for its Opposition to Defendant’s Verified Motion to Continue Summary Judgment,
states as follows:
1. This matter is an action for foreclosure of a mortgage on real property located in Saint
Lucie County, Florida.
2. Plaintiff filed its Complaint on or about October 17, 2017.
3. Defendant filed her Answer and Affirmative Defenses on or about December 20, 2017.
4, Plaintiff filed its first Motion for Summary Judgment and Affidavit of Indebtedness on or
about June 14, 2018.
5. Within 5 days of Plaintiff filing its Motion for Summary Judgment and Affidavit of
Indebtedness, Defendant filed a Request to Produce which Plaintiff fully responded to on or
about November 6, 2018.
395170008
6. On or about November 12, 2018, attorney Carolyn Budnik filed a Notice of Appearance
as co-counsel for Defendant.
7. On or about January 2, 2019, Plaintiff filed an updated Affidavit of Indebtedness in order
to proceed to Summary Judgment.
8. When Plaintiff’s counsel attempted to coordinate a date for the Summary Judgment
hearing with opposing counsel’s office, the reply from opposing counsel was that their co-
counsel, attorney Carolyn Budnik, wanted dates to depose Plaintiff’s employee Tammy Garrett
who executed the Affidavit of Indebtedness filed on January 2, 2019.
9, When the dates were requested, I advised opposing counsel that the person they wanted
to depose was a non-party and not a corporate representative. Therefore, they needed to follow
the proper procedure to depose the non-party.
10. When Plaintiff’s counsel received no response from either of Defendant’s attorneys’
offices, we proceeded to attempt to coordinate dates for the Summary Judgment hearing in order
to move the litigation forward.
11. Once again, the response from opposing counsel was that they needed dates to depose
Plaintiff’s employee. Plaintiff's counsel again advised that the person Defendant seeks to depose
is a non-party, not a corporate representative, and the proper procedure must be followed.
12. This pattern continued from February (when the original deposition request was issued)
until Plaintiff’s counsel noticed their Motion for Summary Judgment after numerous attempts to
coordinate the hearing were not responded to or were merely responded to with a request for
deposition dates.
13.On or about May 1, 2019, Defendant’s co-counsel, Carilyn Budnik, filed a Verified
Motion to Continue Summary Judgment Hearing alleging that Plaintiff’s counsel has refused to
395170008
coordinate deposition dates.
14. Under Florida law: [WJhenever a litigant desires to depose a witness residing in another
state, that litigant must first secure the appointment of a commissioner from the court where the
litigation originates....The foreign litigant may then apply to the court having personal
jurisdiction over the witness for the process necessary to secure the attendance of the witness.
See Greenlight Fin. Servs., Inc. v. Union Am. Mortg., Inc., 971 So. 2d 983, 985 (Fla. 3d DCA
2008)(internal citations omitted); see also Stark v. Regency Highland Condo Ass’n,Inc., 418 So.
2d 1058, 1059 (Fla. 4" DCA 1982)(commission from Florida court and subsequent application to
foreign state court for process required); Travelers Indem. Co. v, Hill, 388 So. 2d 648, 650 (Fla
5™ DCA 1980)(same).
15. Additionally, Rule 1.310, governing depositions, and Rule 1.140, regarding subpoenas of
non-party witnesses, apply.
16, Rule 1.310(6), Florida Rules of Civil Procedure, provides that a deposition of a business
entity may be taken and that the “organization so named shall designate one or more officers,
directors, or managing agents, or other person...to testify on its behalf...” Additionally, the rule
requires that the notice shall “designate with reasonable particularity the matters on which the
examination is requested.”
17. Furthermore, a deposition of a specific corporate representative, a non-party witness, is
subject to Rule 1.410, Florida Rules of Civil Procedure, requiring a Subpoena of the non-party
witness and that such non-party witness “may be required to attend an examination only in the
county wherein the person resides or is employed...”
18, The non-farty witness is not a resident of Florida or of Saint Lucie County and no such
subpoena, Notice of Intent to Issue such subpoena, or Commission has been issued or served.
395170008
19. Furthermcre, the deposition should be prohibited because in order to depose a non-party,
non-resident, the Defendants must comply with the procedures outlined in Florida’s Uniform
Foreign Depositions Law, § 92.251, Fla. Stat., for taking out of state depositions, stating:
[Whenever a litigant desires to depose a witness residing in another state, that litigant
must first secure the appointment of a commission from the court where the litigation
originates ...The foreign litigant may then apply to the court having personal jurisdiction
over the witness for the process necessary to secure the attendance of the witness.
Greenlight Fin. Services, Inc. v. Union Am. Mortg., Inc., 971 So. 2d 983, 985 (Fla. 3d
DCA 2008) (internal citations omitted); Stark v. Regency Highland Condo, Assoc., Inc.,
418 So. 2d 1058 (Fla. 4" DCA 1982) (“As noted above, neither party made any effort to
comply with the Uniform Foreign Depositions Act. No commission ever issued out of
any court, and no application was made to a Tennessee court for the process necessary to
secure the attendance of the witness nor the production of documents...”); Travelers
Indemnity Co. v, Hill, 388 So. 2d 648 (Fla. 5" DCA 1980) (“when a Florida litigant nees
testimony of a witness in Ohio, the first step in the proceedings is to secure the
appointment of a commissioner by the Florida court. Application is then made to the
Ohio court for the process necessary to secure the attendance of the witness...”).
20. As the person Defendant is wishing to depose is not a party to the case and is not a
designated corporate representative for the Plaintiff, if the deposition of the non-party witness is
ordered, Defendant should be required to follow the Rules of Civil Procedure in obtaining a
subpoena in the non-party’s state of residence and holding such deposition only in their county of
residence.
21. Defense also alleges that “Defendant has defenses available to her that she has been
unable to assert effectively due to the non-cooperation of counsel.
22. Plaintiff finds this argument disingenuous given that Defendant filed her answer and
affirmative defenses on December 20, 2017, engaged in discovery, and never requested to depose
any corporate representative, or any other non-party until our counsel attempted to coordinate a
hearing on Plaintiff’s Motion for Summary Judgment.
395170008
23. Defendant has had sufficient time to ask for leave to amend her answer and affirmative
defenses to effectively assert any additional defenses she wishes to assert.
24.“A party does not have an unlimited right to discovery prior to a hearing on motion for
summary judgment. Colby v. Ellis, 562 So. 2d 356, 357 (Fla. 2d DCA 1990)(summary judgment
was appropriate where no evidence or path to possible evidence was shown after three years of
litigation).
25, Even where discovery is pending, summary judgment may be granted where the adverse
party failed to act diligently. Congress Park Office Condos II, LLC v. First Citizens Bank, 105
So. 3d 602, 608 (Fla. 4 DCA 2013)(Court was entitled to believe discovery was for purposes of
delay when adverse party set Motion to Compel hearing just two weeks before summary
judgment hearing and had waited six months after trial court entered an order providing more
time for discovery). See also Allen v. Shows, 532 So. 2d 1304 (Fla. 2d DCA 1988)(summary
judgment appropriate after non-moving party failed to conduct discovery within two months
prior to hearing after court previously granted additional time to conclude discovery).
26.In this case, Plaintiff held off on coordinating the hearing on Motion for Summary
Judgment to allow Defendant’s counsel to follow the proper procedure to depose the out of state
non-party. However, after it became clear that Defense counsel was not going to do so, Plaintiff’s
counsel proceeded in their attempts to coordinate the hearing on Motion for Summary Judgment.
27. Due to Defendant’s non-cooperation with Plaintiff’s requests to coordinate the hearing
date and lack of getion to follow proper procedure to depose the out of state non-party, Plaintiff's
counsel noticed the Motion for Summary Judgment for May 9, 2019.
28. The Notice of Hearing for the May 9, 2019 hearing on Plaintiff’s Motion for Summary
Judgment was filed and served on or about April 9, 2019.
395170008
29. It was only until we were a week away from the hearing that co-counsel for Defendant
filed her Verified Motion to Continue Summary Judgment Hearing.
30. Defendant is not engaged in bona fide discovery, but rather is seeking to use the
deposition and this motion as a means to delay this action, which is an improper use of the rules
of discovery.
WHEREFORE, the Plaintiff prays this Honorable Court to enter its Order denying the
Verified Motion to Continue Summary Judgment; if Summary Judgment is continued, that
Defendant be required to comply with the applicable rules and statutes for the deposition of non-
parties; and awarding the Plaintiff such other and further relief as may be reasonable and
appropriate.
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished by U.S. Mail or Email on this a» day of
he , 2019 to:
UNKNOWN SPOUSE OF LORRAINE M. LEAVITT
1930 HARRISON ST
HOLLY WOOD, FL 33020
SUNTRUST BANK
303 PEACHTREE STREET NE
ATLANTA, GA 30308
CAROLYN N. BUDNIK, ESQ. (OPPOSING COUNSEL FOR LEAVITT, LORRAINE M.)
800 SE THIRD AVE.
4TH FLOOR
FORT LAUDERDALE, FL 33316
CAROLYN@CBUDLAW.COM
DANE T. STANISH (OPPOSING COUNSEL FOR LEAVITT, LORRAINE M.)
3475 SHERIDAN ST STE 209
HOLLYWOOD, FL 33021
STANISHD@GMAIL.COM
395170008
UNKNOWN TENANT 1 N/K/A PATTY SMITH
6115 NW NOLIA CT
PORT ST LUCIE, FL 34983
UNKNOWN TENANT 2 N/K/A THERESA LEAVITT
6115 NW NOLIA CT
PORT ST LUCIE, FL 34983
eXL Legal, PLLC
Designated Email Address: efiling@exllegal.com
12425 28th Street North, Suite 200
St. Petersbi 5 L 33716
aay jo, 727) 536- 4911
Rosannie T. Morgan
Bar # 60962
395170008
Preview
Filing # 88898030 E-Filed 05/02/2019 02:50:23 PM IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR ST. LUCIE COUNTY, FLORIDA CASE NO. 2017CA001679 MTGLQ INVESTORS, L.P. Plaintiff, Vv. LORRAINE M. LEAVITT, ET AL. Defendants. PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S VERIFIED MOTION TO CONTINUE SUMMARY JUDGMENT. Comes Now the Plaintiff, MTGLQ INVESTORS, L.P., by and through the undersigned counsel, and for its Opposition to Defendant’s Verified Motion to Continue Summary Judgment, states as follows: 1. This matter is an action for foreclosure of a mortgage on real property located in Saint Lucie County, Florida. 2. Plaintiff filed its Complaint on or about October 17, 2017. 3. Defendant filed her Answer and Affirmative Defenses on or about December 20, 2017. 4, Plaintiff filed its first Motion for Summary Judgment and Affidavit of Indebtedness on or about June 14, 2018. 5. Within 5 days of Plaintiff filing its Motion for Summary Judgment and Affidavit of Indebtedness, Defendant filed a Request to Produce which Plaintiff fully responded to on or about November 6, 2018. 395170008 6. On or about November 12, 2018, attorney Carolyn Budnik filed a Notice of Appearance as co-counsel for Defendant. 7. On or about January 2, 2019, Plaintiff filed an updated Affidavit of Indebtedness in order to proceed to Summary Judgment. 8. When Plaintiff’s counsel attempted to coordinate a date for the Summary Judgment hearing with opposing counsel’s office, the reply from opposing counsel was that their co- counsel, attorney Carolyn Budnik, wanted dates to depose Plaintiff’s employee Tammy Garrett who executed the Affidavit of Indebtedness filed on January 2, 2019. 9, When the dates were requested, I advised opposing counsel that the person they wanted to depose was a non-party and not a corporate representative. Therefore, they needed to follow the proper procedure to depose the non-party. 10. When Plaintiff’s counsel received no response from either of Defendant’s attorneys’ offices, we proceeded to attempt to coordinate dates for the Summary Judgment hearing in order to move the litigation forward. 11. Once again, the response from opposing counsel was that they needed dates to depose Plaintiff’s employee. Plaintiff's counsel again advised that the person Defendant seeks to depose is a non-party, not a corporate representative, and the proper procedure must be followed. 12. This pattern continued from February (when the original deposition request was issued) until Plaintiff’s counsel noticed their Motion for Summary Judgment after numerous attempts to coordinate the hearing were not responded to or were merely responded to with a request for deposition dates. 13.On or about May 1, 2019, Defendant’s co-counsel, Carilyn Budnik, filed a Verified Motion to Continue Summary Judgment Hearing alleging that Plaintiff’s counsel has refused to 395170008 coordinate deposition dates. 14. Under Florida law: [WJhenever a litigant desires to depose a witness residing in another state, that litigant must first secure the appointment of a commissioner from the court where the litigation originates....The foreign litigant may then apply to the court having personal jurisdiction over the witness for the process necessary to secure the attendance of the witness. See Greenlight Fin. Servs., Inc. v. Union Am. Mortg., Inc., 971 So. 2d 983, 985 (Fla. 3d DCA 2008)(internal citations omitted); see also Stark v. Regency Highland Condo Ass’n,Inc., 418 So. 2d 1058, 1059 (Fla. 4" DCA 1982)(commission from Florida court and subsequent application to foreign state court for process required); Travelers Indem. Co. v, Hill, 388 So. 2d 648, 650 (Fla 5™ DCA 1980)(same). 15. Additionally, Rule 1.310, governing depositions, and Rule 1.140, regarding subpoenas of non-party witnesses, apply. 16, Rule 1.310(6), Florida Rules of Civil Procedure, provides that a deposition of a business entity may be taken and that the “organization so named shall designate one or more officers, directors, or managing agents, or other person...to testify on its behalf...” Additionally, the rule requires that the notice shall “designate with reasonable particularity the matters on which the examination is requested.” 17. Furthermore, a deposition of a specific corporate representative, a non-party witness, is subject to Rule 1.410, Florida Rules of Civil Procedure, requiring a Subpoena of the non-party witness and that such non-party witness “may be required to attend an examination only in the county wherein the person resides or is employed...” 18, The non-farty witness is not a resident of Florida or of Saint Lucie County and no such subpoena, Notice of Intent to Issue such subpoena, or Commission has been issued or served. 395170008 19. Furthermcre, the deposition should be prohibited because in order to depose a non-party, non-resident, the Defendants must comply with the procedures outlined in Florida’s Uniform Foreign Depositions Law, § 92.251, Fla. Stat., for taking out of state depositions, stating: [Whenever a litigant desires to depose a witness residing in another state, that litigant must first secure the appointment of a commission from the court where the litigation originates ...The foreign litigant may then apply to the court having personal jurisdiction over the witness for the process necessary to secure the attendance of the witness. Greenlight Fin. Services, Inc. v. Union Am. Mortg., Inc., 971 So. 2d 983, 985 (Fla. 3d DCA 2008) (internal citations omitted); Stark v. Regency Highland Condo, Assoc., Inc., 418 So. 2d 1058 (Fla. 4" DCA 1982) (“As noted above, neither party made any effort to comply with the Uniform Foreign Depositions Act. No commission ever issued out of any court, and no application was made to a Tennessee court for the process necessary to secure the attendance of the witness nor the production of documents...”); Travelers Indemnity Co. v, Hill, 388 So. 2d 648 (Fla. 5" DCA 1980) (“when a Florida litigant nees testimony of a witness in Ohio, the first step in the proceedings is to secure the appointment of a commissioner by the Florida court. Application is then made to the Ohio court for the process necessary to secure the attendance of the witness...”). 20. As the person Defendant is wishing to depose is not a party to the case and is not a designated corporate representative for the Plaintiff, if the deposition of the non-party witness is ordered, Defendant should be required to follow the Rules of Civil Procedure in obtaining a subpoena in the non-party’s state of residence and holding such deposition only in their county of residence. 21. Defense also alleges that “Defendant has defenses available to her that she has been unable to assert effectively due to the non-cooperation of counsel. 22. Plaintiff finds this argument disingenuous given that Defendant filed her answer and affirmative defenses on December 20, 2017, engaged in discovery, and never requested to depose any corporate representative, or any other non-party until our counsel attempted to coordinate a hearing on Plaintiff’s Motion for Summary Judgment. 395170008 23. Defendant has had sufficient time to ask for leave to amend her answer and affirmative defenses to effectively assert any additional defenses she wishes to assert. 24.“A party does not have an unlimited right to discovery prior to a hearing on motion for summary judgment. Colby v. Ellis, 562 So. 2d 356, 357 (Fla. 2d DCA 1990)(summary judgment was appropriate where no evidence or path to possible evidence was shown after three years of litigation). 25, Even where discovery is pending, summary judgment may be granted where the adverse party failed to act diligently. Congress Park Office Condos II, LLC v. First Citizens Bank, 105 So. 3d 602, 608 (Fla. 4 DCA 2013)(Court was entitled to believe discovery was for purposes of delay when adverse party set Motion to Compel hearing just two weeks before summary judgment hearing and had waited six months after trial court entered an order providing more time for discovery). See also Allen v. Shows, 532 So. 2d 1304 (Fla. 2d DCA 1988)(summary judgment appropriate after non-moving party failed to conduct discovery within two months prior to hearing after court previously granted additional time to conclude discovery). 26.In this case, Plaintiff held off on coordinating the hearing on Motion for Summary Judgment to allow Defendant’s counsel to follow the proper procedure to depose the out of state non-party. However, after it became clear that Defense counsel was not going to do so, Plaintiff’s counsel proceeded in their attempts to coordinate the hearing on Motion for Summary Judgment. 27. Due to Defendant’s non-cooperation with Plaintiff’s requests to coordinate the hearing date and lack of getion to follow proper procedure to depose the out of state non-party, Plaintiff's counsel noticed the Motion for Summary Judgment for May 9, 2019. 28. The Notice of Hearing for the May 9, 2019 hearing on Plaintiff’s Motion for Summary Judgment was filed and served on or about April 9, 2019. 395170008 29. It was only until we were a week away from the hearing that co-counsel for Defendant filed her Verified Motion to Continue Summary Judgment Hearing. 30. Defendant is not engaged in bona fide discovery, but rather is seeking to use the deposition and this motion as a means to delay this action, which is an improper use of the rules of discovery. WHEREFORE, the Plaintiff prays this Honorable Court to enter its Order denying the Verified Motion to Continue Summary Judgment; if Summary Judgment is continued, that Defendant be required to comply with the applicable rules and statutes for the deposition of non- parties; and awarding the Plaintiff such other and further relief as may be reasonable and appropriate. CERTIFICATE OF SERVICE I certify that a copy hereof has been furnished by U.S. Mail or Email on this a» day of he , 2019 to: UNKNOWN SPOUSE OF LORRAINE M. LEAVITT 1930 HARRISON ST HOLLY WOOD, FL 33020 SUNTRUST BANK 303 PEACHTREE STREET NE ATLANTA, GA 30308 CAROLYN N. BUDNIK, ESQ. (OPPOSING COUNSEL FOR LEAVITT, LORRAINE M.) 800 SE THIRD AVE. 4TH FLOOR FORT LAUDERDALE, FL 33316 CAROLYN@CBUDLAW.COM DANE T. STANISH (OPPOSING COUNSEL FOR LEAVITT, LORRAINE M.) 3475 SHERIDAN ST STE 209 HOLLYWOOD, FL 33021 STANISHD@GMAIL.COM 395170008 UNKNOWN TENANT 1 N/K/A PATTY SMITH 6115 NW NOLIA CT PORT ST LUCIE, FL 34983 UNKNOWN TENANT 2 N/K/A THERESA LEAVITT 6115 NW NOLIA CT PORT ST LUCIE, FL 34983 eXL Legal, PLLC Designated Email Address: efiling@exllegal.com 12425 28th Street North, Suite 200 St. Petersbi 5 L 33716 aay jo, 727) 536- 4911 Rosannie T. Morgan Bar # 60962 395170008