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Filing # 115427576 E-Filed 10/22/2020 10:46:58 AM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR COLLIER COUNTY, FLORIDA
CASE NO: 11-2019-CA-004759-0001-XX
LIMOSA, LLG, a Delaware limited liability
company,
Plaintiff,
vs.
MARC L. SHAPIRO, AS TRUSTEE OF
THE 1205 RESERVE WAY TRUST
UNDER AGREEMENT DATED
OCTOBER 10, 2013, et al.,
Defendanis.
/
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT
& TO DEEM REQUEST FOR ADMISSIONS ADMITTED
COMES NOW, Plaintiff, LIMOSA, LLC, a Delaware limited liability company, as
substituted Plaintiff for Wilmington Savings Fund Society, FSB, d/b/a Christiana Trust Not
Individually but As Trustee for Hilldale Trust, by and through the undersigned counsel,
and pursuant to Rule 1.510, Florida Rules of Civil Procedure, hereby moves this Court
for entry of Partial Summary Judgment as to Defendant, MARC L. SHAPIRO, AS
TRUSTEE OF THE 1205 RESERVE WAY TRUST UNDER AGREEMENT DATED
OCTOBER 10, 2013 (“Defendant”) on the grounds that there is no genuine issue as to
any material fact and the Plaintiff is entitled to a judgment as a matter of law and to deem
all Requests for Admissions admitted, and in support hereof states as follows:
FILED: COLLIER COUNTY, CRYSTAL K. KINZEL, CLERK, 10/22/2020 10:46:58 AML_ PRELIMINARY STATEMENT
Defendant has admitted! he is not a borrower under the Note or Mortgage, he has
no knowledge of Plaintiff's compliance with conditions precedent or the failure to comply
with the National Housing Act, he is collecting rental income, he has no legal basis to
contest the entry of judgment, he is a stranger to the mortgage transaction, and Plaintiff
is owed $260,000.00 in principal plus interest.
Il. PROCEDURAL HISTORY
1. Plaintiff filed its Verified Complaint for Foreclosure (the “Complaint”) based
upon non-payment of the subject note and mortgage.
2. Defendant filed an Answer and Affirmative Defenses raising certain
boilerplate affirmative defenses.
3. To test these allegations, the Plaintiff served Defendant with a Request for
Admissions seeking an admission from Defendant as to all defenses raised in his
unverified general answer.
4. Defendant failed to respond to the admissions within the time permitted by
Fla. R. Civ. P. 1.370, and therefore the requests are deemed admitted.
Il. UNDISPUTED MATERIAL FACTS
5. The material facts surrounding the Default are undisputed.
6. Defendant has admitted all of Plaintiff's requests by virtue of his failure to
respond in the timeframe permitted.
1 Defendant failed to respond to the Requests for Admissions within the time permitted by the Florida
Rules of Civil Procedure.IV. SUMMARY JUDGMENT
A. Applicable Law
7. “A party seeking to recover upon a claim . . . may move for a summary
judgment in that party's favor upon all or any party thereof with or without supporting
affidavits at any time after the expiration of 20 days from the commencement of the action
or after service of a motion for summary judgment by the adverse party.” Fla. R. Civ. P.
1.510(a).
8. Summary judgment is appropriate when there is no issue of material fact.
Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000).
9. Summary judgment is appropriate where the “material facts are not in
dispute and the judgment is based on the legal construction of documents.” Ball v.
Florida Podiatrist Trust, 620 So. 2d 1018, 1022 (Fla. 1st DCA 1993) (emphasis added);
see also Cox v. CSX, 732 So. 2d 1092, 1096 (Fla. 1st DCA 1999) (“where the
determination of the issues of a lawsuit depends upon the construction of a written
instrument and the legal effect to be drawn therefrom, the question at issue is essentially
one of law and determinable by entry of summary judgment.”) (emphasis added).
B. Argument
10. Plaintiff is entitled to Partial Summary Judgment as to all issues raised in
Defendant's affirmative defenses.
11. Fla. R. Civ. P. 1.370(a) provides, inter alia, that:
“The matter is admitted unless the party to whom the request
is directed serves upon the party requesting the admission a
written answer or objection addressed to the matter within 30
days after service of the request.12. Over 30 days has passed since service of the requests, and the Defendant
has failed to serve an answer, objection, or motion for any other relief. Additionally, the
additional time provided under the Order on the Motion for Extension of Time has since
expired.
V. CONCLUSION
13. The matters raised in Defendant's affirmative defenses are not at issue and
summary judgment should be entered.
WHEREFORE, Plaintiff respectfully requests this Court to enter partial summary
judgment against Defendant, MARC L. SHAPIRO, AS TRUSTEE OF THE 1205
RESERVE WAY TRUST UNDER AGREEMENT DATED OCTOBER 10, 2013, and to
deem the Requests for Admissions admitted, and for such further relief as this Court
deems appropriate.
| HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished to all Parties on the attached Service List on this 22" day of October, 2020.
LAW OFFICES OF MANDEL,
MANGANELLI & LEIDER, P.A.
Attorneys for Plaintiff
1900 NW Corporate Blvd., Suite 305W
Boca Raton, Florida 33431
Telephone: (561) 826-1740
Facsimile: (561) 826-1741
Email: servicesmandel@gmail.com
BY:__/S/ Matthew B. Leider
MATTHEW B. LEIDER
FLORIDA BAR NO. 84424SERVICE LIST
MARC L. SHAPIRO, P.A.
MARC SHAPIRO, ESQ.
720 Goodlette Rd. N., Suite 304
Naples, FL 34102
service@attorneyshapiro.com
mjones@attorneyshapiro.com
Attorneys for MARC L. SHAPIRO, AS TRUSTEE OF THE 1205 RESERVE WAY
TRUST UNDER AGREEMENT DATED OCTOBER 10, 2013
JOHN DOE OR ANY OTHER PERSON IN POSSESSION
1205 Reserve Way, Unit 301
Naples, FL 34105
Stephanie Kyla Thomson, Esq
Goede, Adamczyk, DeBoest & Cross, PLLC
6609 Willow Park Drive, Second Floor
Naples, FL 34109-9015
kthomson@gadclaw.com
srodriguez@gadclaw.com
mfc@gadclaw.com
Attorney for The Reserve at Naples Condominium Association, Inc.
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Filing # 115427576 E-Filed 10/22/2020 10:46:58 AM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA CASE NO: 11-2019-CA-004759-0001-XX LIMOSA, LLG, a Delaware limited liability company, Plaintiff, vs. MARC L. SHAPIRO, AS TRUSTEE OF THE 1205 RESERVE WAY TRUST UNDER AGREEMENT DATED OCTOBER 10, 2013, et al., Defendanis. / PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT & TO DEEM REQUEST FOR ADMISSIONS ADMITTED COMES NOW, Plaintiff, LIMOSA, LLC, a Delaware limited liability company, as substituted Plaintiff for Wilmington Savings Fund Society, FSB, d/b/a Christiana Trust Not Individually but As Trustee for Hilldale Trust, by and through the undersigned counsel, and pursuant to Rule 1.510, Florida Rules of Civil Procedure, hereby moves this Court for entry of Partial Summary Judgment as to Defendant, MARC L. SHAPIRO, AS TRUSTEE OF THE 1205 RESERVE WAY TRUST UNDER AGREEMENT DATED OCTOBER 10, 2013 (“Defendant”) on the grounds that there is no genuine issue as to any material fact and the Plaintiff is entitled to a judgment as a matter of law and to deem all Requests for Admissions admitted, and in support hereof states as follows: FILED: COLLIER COUNTY, CRYSTAL K. KINZEL, CLERK, 10/22/2020 10:46:58 AML_ PRELIMINARY STATEMENT Defendant has admitted! he is not a borrower under the Note or Mortgage, he has no knowledge of Plaintiff's compliance with conditions precedent or the failure to comply with the National Housing Act, he is collecting rental income, he has no legal basis to contest the entry of judgment, he is a stranger to the mortgage transaction, and Plaintiff is owed $260,000.00 in principal plus interest. Il. PROCEDURAL HISTORY 1. Plaintiff filed its Verified Complaint for Foreclosure (the “Complaint”) based upon non-payment of the subject note and mortgage. 2. Defendant filed an Answer and Affirmative Defenses raising certain boilerplate affirmative defenses. 3. To test these allegations, the Plaintiff served Defendant with a Request for Admissions seeking an admission from Defendant as to all defenses raised in his unverified general answer. 4. Defendant failed to respond to the admissions within the time permitted by Fla. R. Civ. P. 1.370, and therefore the requests are deemed admitted. Il. UNDISPUTED MATERIAL FACTS 5. The material facts surrounding the Default are undisputed. 6. Defendant has admitted all of Plaintiff's requests by virtue of his failure to respond in the timeframe permitted. 1 Defendant failed to respond to the Requests for Admissions within the time permitted by the Florida Rules of Civil Procedure.IV. SUMMARY JUDGMENT A. Applicable Law 7. “A party seeking to recover upon a claim . . . may move for a summary judgment in that party's favor upon all or any party thereof with or without supporting affidavits at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party.” Fla. R. Civ. P. 1.510(a). 8. Summary judgment is appropriate when there is no issue of material fact. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000). 9. Summary judgment is appropriate where the “material facts are not in dispute and the judgment is based on the legal construction of documents.” Ball v. Florida Podiatrist Trust, 620 So. 2d 1018, 1022 (Fla. 1st DCA 1993) (emphasis added); see also Cox v. CSX, 732 So. 2d 1092, 1096 (Fla. 1st DCA 1999) (“where the determination of the issues of a lawsuit depends upon the construction of a written instrument and the legal effect to be drawn therefrom, the question at issue is essentially one of law and determinable by entry of summary judgment.”) (emphasis added). B. Argument 10. Plaintiff is entitled to Partial Summary Judgment as to all issues raised in Defendant's affirmative defenses. 11. Fla. R. Civ. P. 1.370(a) provides, inter alia, that: “The matter is admitted unless the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter within 30 days after service of the request.12. Over 30 days has passed since service of the requests, and the Defendant has failed to serve an answer, objection, or motion for any other relief. Additionally, the additional time provided under the Order on the Motion for Extension of Time has since expired. V. CONCLUSION 13. The matters raised in Defendant's affirmative defenses are not at issue and summary judgment should be entered. WHEREFORE, Plaintiff respectfully requests this Court to enter partial summary judgment against Defendant, MARC L. SHAPIRO, AS TRUSTEE OF THE 1205 RESERVE WAY TRUST UNDER AGREEMENT DATED OCTOBER 10, 2013, and to deem the Requests for Admissions admitted, and for such further relief as this Court deems appropriate. | HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to all Parties on the attached Service List on this 22" day of October, 2020. LAW OFFICES OF MANDEL, MANGANELLI & LEIDER, P.A. Attorneys for Plaintiff 1900 NW Corporate Blvd., Suite 305W Boca Raton, Florida 33431 Telephone: (561) 826-1740 Facsimile: (561) 826-1741 Email: servicesmandel@gmail.com BY:__/S/ Matthew B. Leider MATTHEW B. LEIDER FLORIDA BAR NO. 84424SERVICE LIST MARC L. SHAPIRO, P.A. MARC SHAPIRO, ESQ. 720 Goodlette Rd. N., Suite 304 Naples, FL 34102 service@attorneyshapiro.com mjones@attorneyshapiro.com Attorneys for MARC L. SHAPIRO, AS TRUSTEE OF THE 1205 RESERVE WAY TRUST UNDER AGREEMENT DATED OCTOBER 10, 2013 JOHN DOE OR ANY OTHER PERSON IN POSSESSION 1205 Reserve Way, Unit 301 Naples, FL 34105 Stephanie Kyla Thomson, Esq Goede, Adamczyk, DeBoest & Cross, PLLC 6609 Willow Park Drive, Second Floor Naples, FL 34109-9015 kthomson@gadclaw.com srodriguez@gadclaw.com mfc@gadclaw.com Attorney for The Reserve at Naples Condominium Association, Inc.