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Filing # 22705142 E-Filed 01/19/2015 04:48:21 PM
IN THE CIRCUIT COURT OF THE 20™ JUDICIAL CIRCUIT IN AND FOR
COLLIER COUNTY, FLORIDA CIVIL ACTION
JOSE J. CUEVAS,
Plaintiff,
v. CASE NO. 14-CA-2730
VICTORIA PENA, SUNCOAST SCHOOLS
FEDERAL CREDIT UNION, UNKNOWN
TENANT NO. 1, UNKNOWN TENANT NO. 2,
Defendants.
/
FIRST AMENDED COMPLAINT
Plaintiff, Jose. J. Cuevas, by and through the undersigned attorney, sues Defendants,
Victoria Pena, Suncoast Schools Federal Credit Union, Unknown Tenant No. 1 and Unknown
Tenant No. 2, and alleges:
COUNT I
Mortgage Foreclosure
1. This is an action to foreclose a mortgage on real property in Collier County,
Florida.
2. On March 30, 2010, Defendant, Victoria Pena, made, executed, and delivered a
Promissory Note and a Mortgage securing payment of the Note to Jose. J. Cuevas. The Mortgage
was recorded on May 4, 2010, in Official Records Book 4562 at Page 2320 of the public records
of Collier County, Florida, and mortgaged the property described in the Mortgage then owned by
and in possession of the Mortgagor. A true and correct copy of the Note and Mortgage were
appended as Exhibit “A” to the original Complaint filed in this action, and are incorporated
herein by reference.
3. The original Promissory Note has, since execution, been lost, destroyed or stolen,
as more thoroughly set forth in the Affidavit of Lost, Destroyed or Stolen Note attached to this
First Complaint and made a part hereof as Exhibit “B.” Notwithstanding the loss of the
Promissory Note, the Plaintiff, Jose. J. Cuevas, is entitled to enforce the lost, destroyed, or stolen
Promissory Note pursuant to § 673.3091 Fla. Stat. Ann.
4. The property is now owned by Defendant, Victoria Pena, who holds possession.
5. Defendant, Victoria Pena, has defaulted under the Note and Mortgage by failing
to make the payment due on May 15, 2014, and all subsequent payments.
Filed with Collier County Clerk of Courts6. Plaintiff, Jose. J. Cuevas, declares the full amount payable under the Note and
Mortgage to be due.
7. Defendant, Victoria Pena, owes Plaintiff principal of $102,982.58 on the Note and
Mortgage, plus interest from May 15, 2014, as well as title search expenses for ascertaining the
necessary parties to this action.
8. Defendant, Victoria Pena, has further defaulted under the Note and Mortgage
referred to above by failing to pay real property taxes on the real property for the years 2012 to
2013.
9. Defendant, Suncoast Schools Federal Credit Union, may claim some right, title,
and interest in and to the real property that is the subject matter of this foreclosure proceeding by
virtue of that certain Judgment dated September 30, 2011, and recorded in Official Records Book
4729 at Page 3062 of the public records of Collier County, Florida, but any such right, title, or
interest in and to the real property is junior, subordinate, and inferior to the lien of Plaintiffs
mortgage.
10. Defendants, Unknown Tenant No. 1 and Unknown Tenant No. 2, Occupants,
1460 Wilson Blvd. N., Naples, Florida 34120, may claim some interest in the subject property by
virtue of their possession or occupancy of the same. That interest, if any, is subordinate, junior,
and inferior to the lien of Plaintiff's mortgage.
11. Plaintiff, Jose. J. Cuevas, is obligated to pay his attorney a reasonable fee for his
services.
12. In accordance with the Fair Debt collection Practices Act (15 U.S.C. §§1692 et
seq.), we are required to state that this document is an attempt to collect a debt, and any
information obtained will be used for that purpose.
WHEREFORE, Plaintiff, Jose. J. Cuevas, demands judgment foreclosing the Mortgage
inclusive of reasonable costs, attorney’s fees and prejudgment interest, and if the proceeds of the
sale are insufficient to pay Plaintiff's claim, a deficiency judgment and any other relief that the
court considers just.
COUNT II
Damages
Plaintiff, Jose. J. Cuevas, by and through the undersigned attorneys, sues Defendant,
Victoria Pena, and alleges:
13. This is an action for damages that exceed $15,000.
14. Plaintiff realleges and incorporates herein the allegations contained in paragraphs1 through 12 above.
15. Defendant owes Plaintiff those sums of money set forth in paragraph 7 above.
WHEREFORE, Plaintiff demands judgment for damages, prejudgment interest, costs,
and attorneys' fees against Defendant and such other relief as the court deems just.
Verification
Under penalty of perjury, I declare that I have read the foregoing, and the facts alleged
therein are true and correct to the best of my knowledge and belief.
NE
wv Jose J. Cuevas ee
» 2015.
Dated: January 4
CERTIFICATE OF SERVICE
I HEREBY CERTIFY a true and correct copy of the foregoing First Amended Complaint
was served electronically through the Florida e-filing portal and by electronic mail on Scott A.
Beatty, Esq., Henderson, Franklin, Starnes & Holt, P.A., 3451 Bonita Bay Blvd., Suite 206,
Bonita Springs FL 34134 at scott.beatty@henlaw.com and by regular U.S. mail on Suncoast
Schools Federal Credit Union, c/o Denisse Nonninger, its bank manager, 1035 Crosspointe Dr.,
Naples, FL 34110 this _[ 27 of January 2015.
Respectfully submitted,
Jeff Bluestein, Esq.
Attorney for Plaintiff
720 Goodlette Road, Suite 304
Naples, FL 34102
(239) 649-8050
Florida Bar Number: 626554
E-Mail: jeff@attorneyshapiro.com
Secondary E-Mail: service@attorneyshapiro.comEXHIBIT B
FIRST AMENDED AFFIDAVIT OF LOST, DESTROYED OR STOLEN NOTE
STATE OF FLORIDA
COUNTY OF COLLIER
Jose J. Cuevas after being duly sworn, warrants and states as follows:
On March 30, 2010, Defendant, Victoria Pena, made, executed, and delivered a
Promissory Note in the sum of $126,000.00 payable to Jose J. Cuevas and a Mortgage securing
payment of the Note to Jose. J. Cuevas.
The Mortgage was recorded on May 4, 2010, in Official Records Book 4562 at Page
2320 of the public records of Collier County, Florida, and mortgaged the property described in
the Mortgage then owned by and in possession of the Mortgagor. Since execution of the
Promissory Note, the note has not been endorsed or assigned.
Despite a thorough and diligent search, Jose. J. Cuevas presumes the Promissory Note to
be lost. Jose J. Cuevas was the last holder in due course of the Note. Jose J. Cuevas hereby
avers that the Note has not been sold, transferred, lawfully seized, assigned, or otherwise
hypothecated to another person or entity.
Jose J. Cuevas was entitled to enforce the Promissory Note when the loss of possession
occurred. Jose J. Cuevas cannot reasonably obtain the Promissory Note because its whereabouts
cannot be determined.
The Plaintiff, Jose. J. Cuevas, is entitled to enforce the lost, destroyed, or stolen
Promissory Note pursuant to § 673.3091, Fla. Stat. Ann.
A copy of the Promissory Note is attached to this Affidavit and thereby made a part
hereof.
Jose. J. Cuevas agrees to indemnify and hold harmless any person who relies on this
affidavit from any expense, including but not limited to, legal fees which may be incurred as a
result of a breach of the above representation.
I declare under penalty of perjury that the foregoing is true and correct.
SIGNED on (Z [ 1s”
Xeose \ Cero.
Jose J. Cuevas
Sworn to or affirmed and signed before me on \ | \ q | a0 | ¢ , by Jose Cuevas.ISSA PANELLA ! . -
stny ae = State of Florida (Signature of Notary Public - State of Florida)
y Comm. Expires Jan 24, 2016
Commission # EE 163055
(Print, Type, or Stamp Commissioned Name of
Notary Public)
X Personally Known
Produced Identification
Type of Identification Produced
Preview
Filing # 22705142 E-Filed 01/19/2015 04:48:21 PM IN THE CIRCUIT COURT OF THE 20™ JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA CIVIL ACTION JOSE J. CUEVAS, Plaintiff, v. CASE NO. 14-CA-2730 VICTORIA PENA, SUNCOAST SCHOOLS FEDERAL CREDIT UNION, UNKNOWN TENANT NO. 1, UNKNOWN TENANT NO. 2, Defendants. / FIRST AMENDED COMPLAINT Plaintiff, Jose. J. Cuevas, by and through the undersigned attorney, sues Defendants, Victoria Pena, Suncoast Schools Federal Credit Union, Unknown Tenant No. 1 and Unknown Tenant No. 2, and alleges: COUNT I Mortgage Foreclosure 1. This is an action to foreclose a mortgage on real property in Collier County, Florida. 2. On March 30, 2010, Defendant, Victoria Pena, made, executed, and delivered a Promissory Note and a Mortgage securing payment of the Note to Jose. J. Cuevas. The Mortgage was recorded on May 4, 2010, in Official Records Book 4562 at Page 2320 of the public records of Collier County, Florida, and mortgaged the property described in the Mortgage then owned by and in possession of the Mortgagor. A true and correct copy of the Note and Mortgage were appended as Exhibit “A” to the original Complaint filed in this action, and are incorporated herein by reference. 3. The original Promissory Note has, since execution, been lost, destroyed or stolen, as more thoroughly set forth in the Affidavit of Lost, Destroyed or Stolen Note attached to this First Complaint and made a part hereof as Exhibit “B.” Notwithstanding the loss of the Promissory Note, the Plaintiff, Jose. J. Cuevas, is entitled to enforce the lost, destroyed, or stolen Promissory Note pursuant to § 673.3091 Fla. Stat. Ann. 4. The property is now owned by Defendant, Victoria Pena, who holds possession. 5. Defendant, Victoria Pena, has defaulted under the Note and Mortgage by failing to make the payment due on May 15, 2014, and all subsequent payments. Filed with Collier County Clerk of Courts6. Plaintiff, Jose. J. Cuevas, declares the full amount payable under the Note and Mortgage to be due. 7. Defendant, Victoria Pena, owes Plaintiff principal of $102,982.58 on the Note and Mortgage, plus interest from May 15, 2014, as well as title search expenses for ascertaining the necessary parties to this action. 8. Defendant, Victoria Pena, has further defaulted under the Note and Mortgage referred to above by failing to pay real property taxes on the real property for the years 2012 to 2013. 9. Defendant, Suncoast Schools Federal Credit Union, may claim some right, title, and interest in and to the real property that is the subject matter of this foreclosure proceeding by virtue of that certain Judgment dated September 30, 2011, and recorded in Official Records Book 4729 at Page 3062 of the public records of Collier County, Florida, but any such right, title, or interest in and to the real property is junior, subordinate, and inferior to the lien of Plaintiffs mortgage. 10. Defendants, Unknown Tenant No. 1 and Unknown Tenant No. 2, Occupants, 1460 Wilson Blvd. N., Naples, Florida 34120, may claim some interest in the subject property by virtue of their possession or occupancy of the same. That interest, if any, is subordinate, junior, and inferior to the lien of Plaintiff's mortgage. 11. Plaintiff, Jose. J. Cuevas, is obligated to pay his attorney a reasonable fee for his services. 12. In accordance with the Fair Debt collection Practices Act (15 U.S.C. §§1692 et seq.), we are required to state that this document is an attempt to collect a debt, and any information obtained will be used for that purpose. WHEREFORE, Plaintiff, Jose. J. Cuevas, demands judgment foreclosing the Mortgage inclusive of reasonable costs, attorney’s fees and prejudgment interest, and if the proceeds of the sale are insufficient to pay Plaintiff's claim, a deficiency judgment and any other relief that the court considers just. COUNT II Damages Plaintiff, Jose. J. Cuevas, by and through the undersigned attorneys, sues Defendant, Victoria Pena, and alleges: 13. This is an action for damages that exceed $15,000. 14. Plaintiff realleges and incorporates herein the allegations contained in paragraphs1 through 12 above. 15. Defendant owes Plaintiff those sums of money set forth in paragraph 7 above. WHEREFORE, Plaintiff demands judgment for damages, prejudgment interest, costs, and attorneys' fees against Defendant and such other relief as the court deems just. Verification Under penalty of perjury, I declare that I have read the foregoing, and the facts alleged therein are true and correct to the best of my knowledge and belief. NE wv Jose J. Cuevas ee » 2015. Dated: January 4 CERTIFICATE OF SERVICE I HEREBY CERTIFY a true and correct copy of the foregoing First Amended Complaint was served electronically through the Florida e-filing portal and by electronic mail on Scott A. Beatty, Esq., Henderson, Franklin, Starnes & Holt, P.A., 3451 Bonita Bay Blvd., Suite 206, Bonita Springs FL 34134 at scott.beatty@henlaw.com and by regular U.S. mail on Suncoast Schools Federal Credit Union, c/o Denisse Nonninger, its bank manager, 1035 Crosspointe Dr., Naples, FL 34110 this _[ 27 of January 2015. Respectfully submitted, Jeff Bluestein, Esq. Attorney for Plaintiff 720 Goodlette Road, Suite 304 Naples, FL 34102 (239) 649-8050 Florida Bar Number: 626554 E-Mail: jeff@attorneyshapiro.com Secondary E-Mail: service@attorneyshapiro.comEXHIBIT B FIRST AMENDED AFFIDAVIT OF LOST, DESTROYED OR STOLEN NOTE STATE OF FLORIDA COUNTY OF COLLIER Jose J. Cuevas after being duly sworn, warrants and states as follows: On March 30, 2010, Defendant, Victoria Pena, made, executed, and delivered a Promissory Note in the sum of $126,000.00 payable to Jose J. Cuevas and a Mortgage securing payment of the Note to Jose. J. Cuevas. The Mortgage was recorded on May 4, 2010, in Official Records Book 4562 at Page 2320 of the public records of Collier County, Florida, and mortgaged the property described in the Mortgage then owned by and in possession of the Mortgagor. Since execution of the Promissory Note, the note has not been endorsed or assigned. Despite a thorough and diligent search, Jose. J. Cuevas presumes the Promissory Note to be lost. Jose J. Cuevas was the last holder in due course of the Note. Jose J. Cuevas hereby avers that the Note has not been sold, transferred, lawfully seized, assigned, or otherwise hypothecated to another person or entity. Jose J. Cuevas was entitled to enforce the Promissory Note when the loss of possession occurred. Jose J. Cuevas cannot reasonably obtain the Promissory Note because its whereabouts cannot be determined. The Plaintiff, Jose. J. Cuevas, is entitled to enforce the lost, destroyed, or stolen Promissory Note pursuant to § 673.3091, Fla. Stat. Ann. A copy of the Promissory Note is attached to this Affidavit and thereby made a part hereof. Jose. J. Cuevas agrees to indemnify and hold harmless any person who relies on this affidavit from any expense, including but not limited to, legal fees which may be incurred as a result of a breach of the above representation. I declare under penalty of perjury that the foregoing is true and correct. SIGNED on (Z [ 1s” Xeose \ Cero. Jose J. Cuevas Sworn to or affirmed and signed before me on \ | \ q | a0 | ¢ , by Jose Cuevas.ISSA PANELLA ! . - stny ae = State of Florida (Signature of Notary Public - State of Florida) y Comm. Expires Jan 24, 2016 Commission # EE 163055 (Print, Type, or Stamp Commissioned Name of Notary Public) X Personally Known Produced Identification Type of Identification Produced