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IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR ORANGE COUNTY, FLORIDA
HOME EQUITY MORTGAGE CORPORATION,
a Florida Corporation; MARCO A. RODRIGUEZ DIAZ,
ALINA NODAL and J. SANTOS S.A.
CASE NO.: 10-CA-005964
Lydia Gardner
10-CA-8016
DIVISION 43A
Plaintiff,
v.
2011 Nov 18 05:45 PM
TEO, LLC, a Florida Limited Liability Company
and MARIA DE LEON, etc., et al.
Defendants.
_____________________________________________/
JOINT STIPULATION OF FACTS
eFiled in the Office of Clerk of Court, Orange County Florida
COME NOW the parties and file this Joint Stipulation of Facts which is to be used by the
Court in lieu of a trial in open court. The parties agree that the Court may enter final judgment
based upon this Stipulation of Facts, and the parties will supplement this Stipulation at the request
of the Court. The following facts and other matters are agreed upon:
1. The facts set forth in the Request For Admissions served by the Defendants on
December 27, 2010, a copy of which is attached hereto, are agreed upon by the parties and the
documents attached to the Requests are admissible in evidence without objection. In addition, all
the documents referenced in this Stipulation or referenced in either party’s affidavits or exhibit list
furnished to the other party prior to the Pretrial Conference shall be admitted into evidence. Either
party may file a response to said affidavits.
2. This is an action for foreclosure of a mortgage on commercial property. The original
mortgage and note shall be surrendered to the Court at the time of filing of this Stipulation.
3. On November 9, 2007 the Defendant TEO, LLC executed a mortgage and note to Home
Equity Mortgage Corp. in the principal amount of $300,000.00, payable at the stated interest rate
of 12.99 percent per annum, in equal monthly payments of $3,247.50 per month beginning January
1, 2008. The note and mortgage were guaranteed by a written guarantee of the same date executed
by Maria DeLeon.
4. Home Equity Mortgage Corp. executed a partial assignment of the note and mortgage to
Marco A. Rodriguez Diaz and Alina Nodal. The assignment was dated November 2, 2007 and
recorded on February 11, 2008. Alina Nodal subsequently assigned her interest in the note and
mortgage to her son, Marco A. Rodriguez Diaz, by written assignment dated March 16, 2011.
5. Home Equity Mortgage Corp. also executed a partial assignment of the note and
mortgage to J. Santos S.A. This assignment is dated March 14, 2008 and was recorded on May 28,
2008. J. Santos S.A. subsequently assigned its interest in the mortgage and note to B&Z Asset
Management Corporation by assignment dated March 15, 2011.
6. The purpose of the loan was to fund construction on a vacant lot owned by TEO, LLC,
so that TEO, LLC, could conduct business on that property. The construction was not ultimately
done, in that there were zoning problems prohibiting the proposed use of the property. As part of
the application process, TEO, LLC, submitted a proposed construction contract for the contemplated
building to be constructed on the property and the property was appraised for its value after the
contemplated construction.
7. At the time of the loan, a construction draw schedule was executed by TEO, LLC. The
schedule contemplated disbursement of the loan in stages as the construction progressed, based upon
requests to be submitted by TEO, LLC. No applications or requests for draws under the schedule
were ever made, however, because of the zoning problem and resultant failure to construct the
building.
8. A HUD-1 Settlement Statement was executed by TEO, LLC, at closing which reflects
the disbursements made at closing. The statement reflects that a total of $87,900.00 of the
$300,000.00 loan was funded on the day of closing. Of that amount $50,000.00 was paid to TEO,
LLC, and the balance was paid for various closing costs and charges as reflected on the HUD-1
statement. At that time as well, a notice of payment was executed by TEO, LLC, which notified
TEO, LLC, of its obligation under the mortgage and note to make monthly payments of $3,349.00
per month on the $300,000.00 loan, $3,247.50 of which was the monthly interest charged pursuant
to the note dated November 9, 2007, Notice of Payment and Amortization Schedule beginning
January 1, 2008.
9. On February 10, 2009 the Circuit Court of Miami-Dade County, Florida entered an
order of Temporary Injunction and Appointing Receiver, in which it enjoined Home Equity from
conducting further business and appointed a receiver to conduct the business of Home Equity
Mortgage Corp. and handle its affairs. The order is dated February 10, 2009. In Paragraph 1 of the
order, the Court found that the evidence indicated (1) The sale by Defendant HEMC (Home Equity)
involved the sale and fractionalized participation in mortgages in violation of Florida Statutes,
specifically:
(a) Fraud, misrepresentation, deceit, negligence, or incompetence in any mortgage
financing transaction, in violation of section 494.0072(2)(b), Florida Statutes;
(b) Failure to place immediately upon receipt, and maintain until authorized to disburse,
any money entrusted to him or her by a person dealing with him or her as a lender in a segregated
account in a federally insured financial institution, in violation of section 494.0072(2)(e), Florida
Statutes;
(c) Failure to disburse funds in accordance with agreements, in violation of section
494.0072(2)(g), Florida Statutes.
(d) Commission of fraud, misrepresentation, concealment, dishonest dealing by trick,
scheme, or device, culpable negligence, or breach of trust, in violation of section 494.0072(2)(q),
Florida Statutes;
(e) Knowing or willing employment of any device, scheme, or artifice to defraud, in
violation of section 494.0025(4)(a), Florida Statutes;
(f) Engagement in any transaction, practice, or course of business which operates as a
fraud upon any person in connection with the purchase or sale of any mortgage loan, in violation of
section 494.0025(4)(b);
(g) Obtaining property by fraud, willful misrepresentation of a future act, or false
promise, in violation of section 494.0025(4)(c);
(h) Knowing and willful falsification, concealment, or cover up by a trick, scheme, or
device a material fact, make any false or fraudulent statement or representation, or create or use any
false writing or document, knowing the same to contain any false or fraudulent statement or entry,
in violation of section 494.0025(5), Florida Statutes.
10. In the same action, the court subsequently entered an order granting the receiver
authority to transition the loan servicing operations of Home Equity Mortgage Corp. to other
Servicers, and also entered an order binding investors being serviced by B&Z to the Servicing
Agreement of B&Z Asset Management Corporation, so that B&Z became the subsequent Servicing
Agent for the subject mortgage transaction.
11. TEO, LLC, made the following payments on the loan based on the payment records
of the lender produced by the representative of the Servicing Agent (B&Z), David Brody, at his
deposition on March 22, 2011:
01/10/08 $ 2,036.70
02/04/08 1,098.21
03/10/08 1,066.93
07/08/08 1,071.93
07/08/08 1,928.07
08/28/08 1,134.49
08/28/08 1,168.91
08/28/08 1,168.90
10/09/08 1,071.93
10/09/08 1,083.93
11/07/08 1,090.74
12/15/08 1,090.74
$15,011.48
01/19/09 1,071.93
01/19/09 1,040.64
TOTAL: $17,124.05
The total of the payments is $17,124.05, and no payments have been made subsequent to January
19, 2009.
12. On December 24, 2009, attorney Robert Gindell sent the Defendants TEO, LLC, and
Maria DeLeon a letter on behalf of the lender, advising that the loan was being accelerated due to
the alleged failure to make any payments since December 16, 2008, and indicating that interest was
being charged on the amount funded at the closing, $87,900.26 at the default rate of 18% per annum
from January 2, 2009. Prior to January 2, 2009 the alleged rate of interest on the mortgage and note
was 12.99 percent per annum but was stated to be paid in monthly payments of $3,247.50. On the
balance claimed by the lender of $87,900.26, the amount due as of the date of that letter on
December 24, 2009, was $105,660.21, excluding attorneys fees. The stated per diem amount of
interest at the default rate of 18% is $43.34 after January 2, 2009. This amount is due unless the
Defendants prevail on their affirmative defense of usury.
13. Each of the parties have retained attorneys to represent them and the mortgage and
note requires attorneys fees to be awarded to the prevailing party in this action. The parties have
agreed that the issue of attorneys fees will be ordered by the Court subsequent to the final judgment
in this action, by separate motion.
14. During the course of this action the parties agreed, and the Court ordered, that the
property subject to the mortgage may be sold and the proceeds held in the trust account of the
Defendant’s attorney John G. Pierce pending resolution of this claim. The funds stand in place of
the property as security for the mortgage and note and shall be disbursed to the parties as their
entitlement may be determined by the Court.
15. The parties have agreed that upon execution of this Stipulation each party may submit
copies of depositions, written closing statement arguments or memoranda, and the court shall decide
the action based upon this Stipulation, all relevant documents submitted to the Court, affidavits of
the parties, depositions filed with the Court and upon the closing statements, argument and/or
memoranda filed with the Court. Exhibits referenced by either party may be attached to this
Stipulation or may be attached to the closing statement/memoranda. All documents shall be filed
not later than December 1, 2011, and any reply to closing argument by either party shall be filed not
later than December 5, 2011.
Executed this 18th day of November, 2011, by the parties, through counsel:
John G. Pierce, Esq Richard W. Glenn, Esq.
Pierce & Associates 2000 PGA Boulevard
800 North Ferncreek Avenue Suite 3200A
Orlando, Florida 32803 Palm Beach Gardens, FL 33408
407-898-4848 561-626-1011
Fax: 407-898-9321 Fax: 561-626-1011
email: jerry@johnpierce.com email: rwglenn@rwglenn.com
By: s/John G. Pierce By: s/Richard W. Glenn
John G. Pierce Richard W. Glenn
Fla Bar 095247 Fla Bar 252395
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IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA HOME EQUITY MORTGAGE CORPORATION, a Florida Corporation; MARCO A. RODRIGUEZ DIAZ, ALINA NODAL and J. SANTOS S.A. CASE NO.: 10-CA-005964 Lydia Gardner 10-CA-8016 DIVISION 43A Plaintiff, v. 2011 Nov 18 05:45 PM TEO, LLC, a Florida Limited Liability Company and MARIA DE LEON, etc., et al. Defendants. _____________________________________________/ JOINT STIPULATION OF FACTS eFiled in the Office of Clerk of Court, Orange County Florida COME NOW the parties and file this Joint Stipulation of Facts which is to be used by the Court in lieu of a trial in open court. The parties agree that the Court may enter final judgment based upon this Stipulation of Facts, and the parties will supplement this Stipulation at the request of the Court. The following facts and other matters are agreed upon: 1. The facts set forth in the Request For Admissions served by the Defendants on December 27, 2010, a copy of which is attached hereto, are agreed upon by the parties and the documents attached to the Requests are admissible in evidence without objection. In addition, all the documents referenced in this Stipulation or referenced in either party’s affidavits or exhibit list furnished to the other party prior to the Pretrial Conference shall be admitted into evidence. Either party may file a response to said affidavits. 2. This is an action for foreclosure of a mortgage on commercial property. The original mortgage and note shall be surrendered to the Court at the time of filing of this Stipulation. 3. On November 9, 2007 the Defendant TEO, LLC executed a mortgage and note to Home Equity Mortgage Corp. in the principal amount of $300,000.00, payable at the stated interest rate of 12.99 percent per annum, in equal monthly payments of $3,247.50 per month beginning January 1, 2008. The note and mortgage were guaranteed by a written guarantee of the same date executed by Maria DeLeon. 4. Home Equity Mortgage Corp. executed a partial assignment of the note and mortgage to Marco A. Rodriguez Diaz and Alina Nodal. The assignment was dated November 2, 2007 and recorded on February 11, 2008. Alina Nodal subsequently assigned her interest in the note and mortgage to her son, Marco A. Rodriguez Diaz, by written assignment dated March 16, 2011. 5. Home Equity Mortgage Corp. also executed a partial assignment of the note and mortgage to J. Santos S.A. This assignment is dated March 14, 2008 and was recorded on May 28, 2008. J. Santos S.A. subsequently assigned its interest in the mortgage and note to B&Z Asset Management Corporation by assignment dated March 15, 2011. 6. The purpose of the loan was to fund construction on a vacant lot owned by TEO, LLC, so that TEO, LLC, could conduct business on that property. The construction was not ultimately done, in that there were zoning problems prohibiting the proposed use of the property. As part of the application process, TEO, LLC, submitted a proposed construction contract for the contemplated building to be constructed on the property and the property was appraised for its value after the contemplated construction. 7. At the time of the loan, a construction draw schedule was executed by TEO, LLC. The schedule contemplated disbursement of the loan in stages as the construction progressed, based upon requests to be submitted by TEO, LLC. No applications or requests for draws under the schedule were ever made, however, because of the zoning problem and resultant failure to construct the building. 8. A HUD-1 Settlement Statement was executed by TEO, LLC, at closing which reflects the disbursements made at closing. The statement reflects that a total of $87,900.00 of the $300,000.00 loan was funded on the day of closing. Of that amount $50,000.00 was paid to TEO, LLC, and the balance was paid for various closing costs and charges as reflected on the HUD-1 statement. At that time as well, a notice of payment was executed by TEO, LLC, which notified TEO, LLC, of its obligation under the mortgage and note to make monthly payments of $3,349.00 per month on the $300,000.00 loan, $3,247.50 of which was the monthly interest charged pursuant to the note dated November 9, 2007, Notice of Payment and Amortization Schedule beginning January 1, 2008. 9. On February 10, 2009 the Circuit Court of Miami-Dade County, Florida entered an order of Temporary Injunction and Appointing Receiver, in which it enjoined Home Equity from conducting further business and appointed a receiver to conduct the business of Home Equity Mortgage Corp. and handle its affairs. The order is dated February 10, 2009. In Paragraph 1 of the order, the Court found that the evidence indicated (1) The sale by Defendant HEMC (Home Equity) involved the sale and fractionalized participation in mortgages in violation of Florida Statutes, specifically: (a) Fraud, misrepresentation, deceit, negligence, or incompetence in any mortgage financing transaction, in violation of section 494.0072(2)(b), Florida Statutes; (b) Failure to place immediately upon receipt, and maintain until authorized to disburse, any money entrusted to him or her by a person dealing with him or her as a lender in a segregated account in a federally insured financial institution, in violation of section 494.0072(2)(e), Florida Statutes; (c) Failure to disburse funds in accordance with agreements, in violation of section 494.0072(2)(g), Florida Statutes. (d) Commission of fraud, misrepresentation, concealment, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust, in violation of section 494.0072(2)(q), Florida Statutes; (e) Knowing or willing employment of any device, scheme, or artifice to defraud, in violation of section 494.0025(4)(a), Florida Statutes; (f) Engagement in any transaction, practice, or course of business which operates as a fraud upon any person in connection with the purchase or sale of any mortgage loan, in violation of section 494.0025(4)(b); (g) Obtaining property by fraud, willful misrepresentation of a future act, or false promise, in violation of section 494.0025(4)(c); (h) Knowing and willful falsification, concealment, or cover up by a trick, scheme, or device a material fact, make any false or fraudulent statement or representation, or create or use any false writing or document, knowing the same to contain any false or fraudulent statement or entry, in violation of section 494.0025(5), Florida Statutes. 10. In the same action, the court subsequently entered an order granting the receiver authority to transition the loan servicing operations of Home Equity Mortgage Corp. to other Servicers, and also entered an order binding investors being serviced by B&Z to the Servicing Agreement of B&Z Asset Management Corporation, so that B&Z became the subsequent Servicing Agent for the subject mortgage transaction. 11. TEO, LLC, made the following payments on the loan based on the payment records of the lender produced by the representative of the Servicing Agent (B&Z), David Brody, at his deposition on March 22, 2011: 01/10/08 $ 2,036.70 02/04/08 1,098.21 03/10/08 1,066.93 07/08/08 1,071.93 07/08/08 1,928.07 08/28/08 1,134.49 08/28/08 1,168.91 08/28/08 1,168.90 10/09/08 1,071.93 10/09/08 1,083.93 11/07/08 1,090.74 12/15/08 1,090.74 $15,011.48 01/19/09 1,071.93 01/19/09 1,040.64 TOTAL: $17,124.05 The total of the payments is $17,124.05, and no payments have been made subsequent to January 19, 2009. 12. On December 24, 2009, attorney Robert Gindell sent the Defendants TEO, LLC, and Maria DeLeon a letter on behalf of the lender, advising that the loan was being accelerated due to the alleged failure to make any payments since December 16, 2008, and indicating that interest was being charged on the amount funded at the closing, $87,900.26 at the default rate of 18% per annum from January 2, 2009. Prior to January 2, 2009 the alleged rate of interest on the mortgage and note was 12.99 percent per annum but was stated to be paid in monthly payments of $3,247.50. On the balance claimed by the lender of $87,900.26, the amount due as of the date of that letter on December 24, 2009, was $105,660.21, excluding attorneys fees. The stated per diem amount of interest at the default rate of 18% is $43.34 after January 2, 2009. This amount is due unless the Defendants prevail on their affirmative defense of usury. 13. Each of the parties have retained attorneys to represent them and the mortgage and note requires attorneys fees to be awarded to the prevailing party in this action. The parties have agreed that the issue of attorneys fees will be ordered by the Court subsequent to the final judgment in this action, by separate motion. 14. During the course of this action the parties agreed, and the Court ordered, that the property subject to the mortgage may be sold and the proceeds held in the trust account of the Defendant’s attorney John G. Pierce pending resolution of this claim. The funds stand in place of the property as security for the mortgage and note and shall be disbursed to the parties as their entitlement may be determined by the Court. 15. The parties have agreed that upon execution of this Stipulation each party may submit copies of depositions, written closing statement arguments or memoranda, and the court shall decide the action based upon this Stipulation, all relevant documents submitted to the Court, affidavits of the parties, depositions filed with the Court and upon the closing statements, argument and/or memoranda filed with the Court. Exhibits referenced by either party may be attached to this Stipulation or may be attached to the closing statement/memoranda. All documents shall be filed not later than December 1, 2011, and any reply to closing argument by either party shall be filed not later than December 5, 2011. Executed this 18th day of November, 2011, by the parties, through counsel: John G. Pierce, Esq Richard W. Glenn, Esq. Pierce & Associates 2000 PGA Boulevard 800 North Ferncreek Avenue Suite 3200A Orlando, Florida 32803 Palm Beach Gardens, FL 33408 407-898-4848 561-626-1011 Fax: 407-898-9321 Fax: 561-626-1011 email: jerry@johnpierce.com email: rwglenn@rwglenn.com By: s/John G. Pierce By: s/Richard W. Glenn John G. Pierce Richard W. Glenn Fla Bar 095247 Fla Bar 252395