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THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR ORANGE COUNTY, FLORIDA
MIDFIRST BANK,
Plaintiff,
vs. CASE NO.: 2010-CA-26649-O
Lydia Gardner
DIVISION: #40
VINCENT L. MINKO, AND
JOYCE MINKO, ET AL.,
2011 Mar 11 08:18 AM
Defendants,
________________________________________/
ANSWER OF DEFENDANT, UNITED STATES OF AMERICA
ON BEHALF OF THE U.S. DEPARTMENT OF
HOUSING AND URBAN DEVELOPMENT
eFiled in the Office of Clerk of Court, Orange County Florida
COMES NOW, the Defendant, United States of America, by and through
the undersigned Assistant United States Attorney, on behalf of the U.S. Department of
Housing and Urban Development and hereby files an answer to the complaint as
follows:
1. We are without information as to allegations contained in said
complaint other than the allegations of paragraphs 3 and 15 thereof, and requires strict
proof of same.
2. With respect to the allegations of the existence of a certain lien arising
out of Mortgage as set forth in paragraph 15 of said complaint, this defendant admits
that we are the holder of a certain Mortgage in the amount of $6,636.03 and filed in
Official Records Book 10036, Page 3847 of the Public Records of Orange County,
Florida, Attached hereto as Exhibit "A", is a Certificate of Indebtedness of the amount
due and owing to the government.
3. This defendant asserts its right of redemption accorded the United
States of America under the provisions of Section 2410(c), Title 28, United States Code.
4. This Defendant asserts it is not bound by the sixty day time period
imposed by §§ 45.031, 45.032, Fla. Stat. upon motions for distribution of surplus
proceeds,1 and thus requests same be set forth in any final judgment entered herein as
follows:
THE UNITED STATES SHALL NOT BE BOUND BY THE SIXTY DAY TIME
PERIOD IMPOSED BY § 45.032, FLA. STAT. UPON MOTIONS FOR
DISTRIBUTION OF SURPLUS PROCEEDS.
WHEREFORE, having fully answered, United States of America, on behalf of its
agency, the U.S. Department of Housing and Urban Development, prays:
1. The Court adjudicate the equities of the parties to this action and if the
property involved herein is sold that it be sold free and clear of all liens and encumbrances,
save the right of redemption of the United States of America.
2. Proceeds derived from said sale be applied to the payment of liens of the
parties to this action in accordance with their respective priorities and that the United
States be allowed to participate in the distribution of any surplus proceeds.
3. That any judgment entered in this action include language (1) preserving
its right of redemption accorded the United States of America by the provisions of 28
U.S.C. §2410(c), and (2) regarding FLA. STAT. § 45.032, as suggested above.
1
The 60-day time limit of §§ 45.031, 45.032 is clearly in the nature of a statute of limitations, and
“the United States is not bound by state statutes of limitations . . . .” United States v. Summerlin, 310 U.S.
414, 416 (1940)(holding that Florida state statute requiring claims against an estate to be filed within eight
months was not applicable to the United States); see also id. at 417 (state statute inapplicable to United
States whether characterized as a statute of limitations or a “statute of ‘non-claim’ ”).
4. The Court grant such other and further relief as it may deem just and
proper.
ROBERT E. O’NEILL
United States Attorney
/s/ Charles T. Harden, III
CHARLES T. HARDEN III
Assistant United States Attorney
Florida Bar No. 0097934
Amber L. Watson, Legal Assistant
400 North Tampa Street, Suite 3200
Tampa, Florida 33602
Telephone: (813) 274-6000
Facsimile: (813) 274-6200
Email: Charles.Harden@usdoj.gov
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on March _11th__, 2011, I electronically filed the
foregoing with the Clerk of the Court by using the E-Filing system; and a copy has been
furnished by U.S. Mail to:
Ashley L. Simon, Esquire
Kass, Shuler, Solomon, Spector,
Foyle & Singer, P.A.
P.O. Box 800
Tampa, Florida 33601-0800
U.S. Department of Housing and Urban Development
Office of General Counsel, Florida Southern State Office
Michalene Rowells, Paralegal Specialist
909 SE First Avenue, Room 500
Miami, Florida 33131-3042
/s/ Charles T. Harden, III
CHARLES T. HARDEN III
Assistant United States Attorney
Florida Bar No. 0097934
Amber L. Watson, Legal Assistant
400 North Tampa Street, Suite 3200
Tampa, Florida 33602
Telephone: (813) 274-6000
Facsimile: (813) 274-6200
Email: Charles.Harden@usdoj.gov
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THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA MIDFIRST BANK, Plaintiff, vs. CASE NO.: 2010-CA-26649-O Lydia Gardner DIVISION: #40 VINCENT L. MINKO, AND JOYCE MINKO, ET AL., 2011 Mar 11 08:18 AM Defendants, ________________________________________/ ANSWER OF DEFENDANT, UNITED STATES OF AMERICA ON BEHALF OF THE U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT eFiled in the Office of Clerk of Court, Orange County Florida COMES NOW, the Defendant, United States of America, by and through the undersigned Assistant United States Attorney, on behalf of the U.S. Department of Housing and Urban Development and hereby files an answer to the complaint as follows: 1. We are without information as to allegations contained in said complaint other than the allegations of paragraphs 3 and 15 thereof, and requires strict proof of same. 2. With respect to the allegations of the existence of a certain lien arising out of Mortgage as set forth in paragraph 15 of said complaint, this defendant admits that we are the holder of a certain Mortgage in the amount of $6,636.03 and filed in Official Records Book 10036, Page 3847 of the Public Records of Orange County, Florida, Attached hereto as Exhibit "A", is a Certificate of Indebtedness of the amount due and owing to the government. 3. This defendant asserts its right of redemption accorded the United States of America under the provisions of Section 2410(c), Title 28, United States Code. 4. This Defendant asserts it is not bound by the sixty day time period imposed by §§ 45.031, 45.032, Fla. Stat. upon motions for distribution of surplus proceeds,1 and thus requests same be set forth in any final judgment entered herein as follows: THE UNITED STATES SHALL NOT BE BOUND BY THE SIXTY DAY TIME PERIOD IMPOSED BY § 45.032, FLA. STAT. UPON MOTIONS FOR DISTRIBUTION OF SURPLUS PROCEEDS. WHEREFORE, having fully answered, United States of America, on behalf of its agency, the U.S. Department of Housing and Urban Development, prays: 1. The Court adjudicate the equities of the parties to this action and if the property involved herein is sold that it be sold free and clear of all liens and encumbrances, save the right of redemption of the United States of America. 2. Proceeds derived from said sale be applied to the payment of liens of the parties to this action in accordance with their respective priorities and that the United States be allowed to participate in the distribution of any surplus proceeds. 3. That any judgment entered in this action include language (1) preserving its right of redemption accorded the United States of America by the provisions of 28 U.S.C. §2410(c), and (2) regarding FLA. STAT. § 45.032, as suggested above. 1 The 60-day time limit of §§ 45.031, 45.032 is clearly in the nature of a statute of limitations, and “the United States is not bound by state statutes of limitations . . . .” United States v. Summerlin, 310 U.S. 414, 416 (1940)(holding that Florida state statute requiring claims against an estate to be filed within eight months was not applicable to the United States); see also id. at 417 (state statute inapplicable to United States whether characterized as a statute of limitations or a “statute of ‘non-claim’ ”). 4. The Court grant such other and further relief as it may deem just and proper. ROBERT E. O’NEILL United States Attorney /s/ Charles T. Harden, III CHARLES T. HARDEN III Assistant United States Attorney Florida Bar No. 0097934 Amber L. Watson, Legal Assistant 400 North Tampa Street, Suite 3200 Tampa, Florida 33602 Telephone: (813) 274-6000 Facsimile: (813) 274-6200 Email: Charles.Harden@usdoj.gov CERTIFICATE OF SERVICE I HEREBY CERTIFY that on March _11th__, 2011, I electronically filed the foregoing with the Clerk of the Court by using the E-Filing system; and a copy has been furnished by U.S. Mail to: Ashley L. Simon, Esquire Kass, Shuler, Solomon, Spector, Foyle & Singer, P.A. P.O. Box 800 Tampa, Florida 33601-0800 U.S. Department of Housing and Urban Development Office of General Counsel, Florida Southern State Office Michalene Rowells, Paralegal Specialist 909 SE First Avenue, Room 500 Miami, Florida 33131-3042 /s/ Charles T. Harden, III CHARLES T. HARDEN III Assistant United States Attorney Florida Bar No. 0097934 Amber L. Watson, Legal Assistant 400 North Tampa Street, Suite 3200 Tampa, Florida 33602 Telephone: (813) 274-6000 Facsimile: (813) 274-6200 Email: Charles.Harden@usdoj.gov