Preview
IN THE CIRCUIT COURT FOR SARASOTA
COUNTY, FLORIDA. CIVIL DIVISION
aS
CASE NO. 582007CA007735XXXXXX
AURORA LOAN SERVICES, LLC.,
Plaintiff,
VS.
ANGELA NISBET; MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC., AS NOMINEE
FOR AEGIS WHOLESALE CORPORATION MIN.
NO. 100053030007553796; UNKNOWN TENANT
cD SS ™
2a 6s
NO. 1; UNKNOWN TENANT NO. 2; and ALL ost = o
UNKNOWN PARTIES CLAIMING INTERESTS BY, Eon wo oO
THROUGH, UNDER OR AGAINST A NAMED OF on 2
DEFENDANT TO THIS ACTION, OR HAVING OR CEG =e cv
CLAIMING TO HAVE ANY RIGHT, TITLE OR an = oO
INTEREST IN THE PROPERTY HEREIN Eo c a
DESCRIBED, me £
Defendants.
/
AMENDED MOTION FOR
SUMMARY FINAL JUDGMENT AND ATTORNEY'S FEES
Plaintiff, AURORA LOAN SERVICES, LLC. (hereinafter referred to as "Plaintiff") its
successors and assigns by and through its undersigned counsel, moves this Court, pursuant to Florida
Rule of Civil Procedure 1.510, to enter a Summary Final Judgment against each of the Defendants in the
above-styled action. There exists no genuine issues as to any material fact and Plaintiff is entitled to
judgment as a matter of law based on the pleadings and affidavits filed in this action.
l.
FORECLOSURE: This is an action by Plaintiff, to foreclose the mortgageon real
property situated in Sarasota County, Florida.
2. STANDING: Plaintiff, as servicer for the owner and acting on behalf of the owner with
authority to do so, is the present designated holder of the note and mortgage with authority to pursue the
present action, and is thereby entitled to enforce the instruments in accordance with F.S.A. §673.3011,
which provides in pertinent part that “.. . [a] person may be. . . entitled to enforce [an] instrument even
-— 7 —
iithough the person is not the owner of the instrument .. . “. Additionally, Fla. R. Civ. Pro. 1.210(a),
provides in pertinent part that “every action may be prosecuted [by] a party with who or in whose name a
contract has been made for the benefit of another . . . in that persons name without joining the name of
the party for whose benefit the action is brought.”
3. DEFAULT: The Note is due for April 1, 2007, and all subsequent payments, which has
resulted in a default of the note and mortgage .
4. PROPERTY: The legal description of the subject property is set forth in the complaint.
5. SERVICE: All Defendants have been served with notice of this action.
6. LOST NOTE: The original promissory note has been lost and is not in the custody or
control of Plaintiff. The note was continuously in possession and control of Plaintiffs assignors and
predecessors from the date of its execution until the loss of the note and has not been paid or otherwise
satisfied, assigned or transferred.
7. LIEN: Plaintiff's mortgage constitutes a valid lien on the subject property and is superior
to any right, title, interest or claim of all Defendants and all persons or entities claiming by, through or
under them.
8. EVIDENCE: Plaintiff adopts and incorporates into this motion the affidavit of
indebtedness, Plaintiffs affidavit of attorneys fees and costs, affidavit of reasonableness of fees, the
mortgage, the promissory note.
9. MEMORANDUM OF LAW: The substantial matters of law upon which this motion 1s
based are as follows:
a. A mortgage is presumed to have been validly executed and delivered on
the date recited in the mortgage if the mortgage is proven of record and recorded according to the law.
Atlantic Land and Improvement Company v. Lee, 112 So.2d 549, 550 (Fla. 1927).
b. Where a note secured by a mortgage is transferred without any formal
assignment of the mortgage, the mortgage in equity passes as an incident to the debt, unless there is someplain and clear agreement to the contrary. Johns v. Gillian, 184 So. 140 (Fla. 1938). "A mere delivery
of a note and mortgage, with intention to pass the title, upon a proper consideration, will vest the
equitable interest in the person to whom it is so delivered." /d., at 143. "Because the lien follows the
debt, there was no requirement of attachment of a written and recorded assignment of the mortgage in
order for the appellant to maintain the foreclosure action." Chemical Residential Mortgage v. Rector,
742 So.2d. 300 (Fla. 1 DCA, 1998), rev. denied 727 So.2d 910 (1999). To foreclose upon a
promissory note, the plaintiff must be the "holder" in order to be the real party in interest. Troupe v.
Redner, 652 So2d 394 (Fla 2d DCA 1995), citing Withers v. Sandlin, 36 Fla. 619, 18 So. 856 (1896);
Laing v. Gainey Builders, Inc., 184 So. 2d 897 (Fla Ist DCA 1966). The "holder", with respect to a
negotiable instrument, means the person in possession if the instrument is payable to bearer or, in the
case of an instrument payable to an identified person, if the identified person is in possession. §
671.201(20), Fla. Stat. (2002). "Bearer" means the person in possession of an instrument, document of
title, or certificated security payable to bearer or indorsed in blank. § 671.201(5), Fla. Stat. (2002).
C. In the event a formal assignment is delivered to the Plaintiff, Florida
Law has established that the “effective date” is the date of transfer of interest in the mortgage as opposed
to the date the assignment document was executed. WM Specialty Mortgage. LLC v. Salomon, 874 So2d.
680 (Fla 4" DCA 2004); Citing: Johns v Gillian, 184 So. 140, 143 (Fla 1938).
d. The interest of the owner of record in the property described herein is
inferior and subordinate to the interest of the Plaintiff, the mortgagee. Jordan v. Sayre, 3 So. 329 (Fla.
1888).
e. The owner and holder of a valid recorded mortgage encumbering real
property has a lien superior in dignity and right to any subsequently recorded mortgage, claim or lien
attaching to the property through the mortgagors, their successors, assigns and tenants. Lee v. Slemons,
150 So. 792, 794 (Fla. 1933); Bullard v. Fender, 192 So. 167, 171 (Fla. 1939); County of Pinellas v.
Clearwater Federal Savings and Loan Association, 214 So.2d 525, 526 (Fla. 2d DCA 1968). Therefore,the lien of Plaintiff's mortgage takes priority over the subsequently recorded claims or liens of the
Defendants in this action. United States v. First Federal Savings and Loan Association of St. Petersburg,
155 So.2d 192, 193 (Fla. 2d DCA 1963).
f. As a matter of law the entire indebtedness secured by the mortgage held
by Plaintiff is due and collectible. Van Huss v. Prudential Insurance Company of America, 165 So. 896
(Fla. 1936); Baader v. Walker, 153 So.2d 51, 54 (Fla. 2d DCA 1963).
g. As to any Defendant that is a Homeowners Association as defined
under Florida Statute §720.301, said Defendant’s interest is fully forecloseable as a matter of law.
Florida Statute §720.3085 does not prevent foreclosure of any past due assessment claims of a
Defendant Home Owners Association, as Plaintiff's rights are determined by the Homeowner's
Association’s Declaration of Covenants. Florida Statute §720.3085, does not retroactively apply to
mortgages or assessments recorded prior to its enactment. Any application of the statute to the contrary Is
unconstitutional. Sarasota County v. Andrews, et al. 573 So.2d 113 (2" DCA, 1991);Silver Blue Lake
Apartments, Inc. v. Silver Blue Lake Home Owners Association, Inc., 245 So. 2d 609, 611 (Fla 1971);
Palm Point Property Owners’ Association of Charlotte County, Inc. v. Pisarski (626 So. 2d 195 (Fla
1993); Holly Lake Association v. Federal National Mortgage Association, 660 So. 2d 266, 269 (Fla.
1995); Park Benziger & Co., Inc. v. Southern Wine & Spirits, Inc. 39\ So. 2d 681, 683 (Fla. 1980);
David v. Sun Federal Savings & Loan Ass'n, 461 So. 2d 93 (Fla 1984); Metropolitan Dade County v.
Chase Federal Housing Corp., et al. 737 So. 2d 494, 500 (Fla 1999);
h. As to Defendants against whom a default has been entered, final
judgment may be entered by the Court at any time. Rule 1.500(e) Florida Rule of Civil Procedure.
i. This court must enter a summary final judgment of foreclosure where
there exists no genuine issue as to any material fact; this Court may, however, reserve jurisdiction to
determine the amount and priority of the claims. Mack Industries, Inc. v. Donald W. Nelson, Inc., 134
So.2d 821 (Fla. 2d DCA 1961).J: Where the note and mortgage so provide, a mortgagee is entitled to
recover costs, a reasonable fee for its attorneys in the prosecution of a foreclosure action, and any sums
advanced to prevent the impairment of its security. American Securities Co. v. Goldsberry, 67 So. 862,
866 (Fla. 1915).
10. ENTITLEMENT TO JUDGMENT: Plaintiff is entitled to recover its principal, interest,
late charges, costs, attorneys’ fees, and other expenses, all of which are more fully set forth in the
affidavits attached hereto.
lt. NO ISSUE OF LAW OR FACTS: The pleadings of file, together with the affidavits
attached hereto, demonstrate that there is no dispute as to any material fact. Accordingly, Plaintiff is
entitled to Summary Final Judgment as a matter of law.
WHEREFORE, the Plaintiff respectfully requests that this Court re-establish the lost
promissory note and enter Summary Final Judgment in its favor as to the total amount sought in its
Complaint, grant Plaintiff's motion for attorney's fees and such other and further relief as this Court
deems just, including the issuance of writs of possession against any parties that may be in possession of
the property.
I HEREBY CERTIFY that copies of the foregoing Motion for Summary Final Judgment,
together with Affidavits referred to herein, have been mailed to the parties on the attached Service List
this 2 day of MV QsrdAn~— 2008.
SMITH, HIATT & DIAZ, P.A.
Attorneys for Plaintiff
PO BOX 11438
Fort Lauderdale, FL 33339-1438
Telephone: (954) 564-0071
Facsimile: (954) 564-9252
By. @ —————
Tanya D. Simpson
Florida Bar No. 36523
1334-37769SERVICE LIST
Case No. 582007CA007735XXXXXX
ANGELA NISBET
18239 COASTLINE DRIVE APT. 3
MALIBU, CA 90265
MERS
C.T. Corporation System, Inc.
1200 SOUTH PINE ISLAND ROAD
PLANTATION, FL 33324IN THE CIRCUIT COURT FOR SARASOTA
COUNTY, FLORIDA. CIVIL DIVISION
CASE NO. 582007CA007735XXXXXX
AURORA LOAN SERVICES, LLC.,
Plaintiff,
VS.
ANGELA NISBET; MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC., AS NOMINEE
FOR AEGIS WHOLESALE CORPORATION MIN.
NO. 100053030007553796; UNKNOWN TENANT
NO. 1; UNKNOWN TENANT NO. 2; and ALL
UNKNOWN PARTIES CLAIMING INTERESTS BY,
THROUGH, UNDER OR AGAINST A NAMED
DEFENDANT TO THIS ACTION, OR HAVING OR
CLAIMING TO HAVE ANY RIGHT, TITLE OR
INTEREST IN THE PROPERTY HEREIN
DESCRIBED,
Defendants.
/
AMENDED AFFIDAVIT OF ATTORNEYS' FEES AND COSTS
STATE OF FLORIDA )
COUNTY OF BROWARD )
BEFORE ME, personally appeared the undersigned Affiant, who under oath, did depose and say:
1. My name is Tanya D. Simpson and I am an attorney of the Firm of Smith, Hiatt & Diaz, P.A., and
counsel for the Plaintiff in the above-styled case. 1 have personal knowledge of the facts set forth herein.
2. The firm of Smith, Hiatt & Diaz, P.A. has a fee agreement wherein it is entitled to be paid certain
attorneys’ fees and reimbursement of certain costs related to representation of the Plaintiff in the above styled
matter. The fee agreement is commensurate with the experience of the attorneys representing the Plaintiff,
and is based on (i) a flat fee of $1,200.00 for uncontested foreclosures, and (ii) client approved additional
fees to file necessary pleadings and otherwise respond to issues that may be raised by a Defendant, which
additional fees are based on the nature of the response and based on an hourly rate, as reflected below.3. Smith, Hiatt & Diaz, P.A. is entitled to be paid $350.00 to complete a title examination and to
prepare a title report to be utilized in the preparation of a foreclosure complaint. The foregoing includes time
related to (i) obtaining a title base, (ii) examining title, (ii7) ordering necessary documents related to status
of title and (iv) preparation of a title status report.
4. Pursuant to the fee agreement, Smith, Hiatt & Diaz, P.A. is entitled to receive reimbursement of
the following costs incurred in the above styled foreclosure proceedings.
A. Filing Fee $ 255.00
B. Service of Process $ 305.00
TOTAL COSTS $560.00
5. Pursuant to the fee agreement, Smith, Hiatt & Diaz, P.A. is entitled to be paid a reasonable
attorneys’ fee for this case.
6. The work in this case was completed by attorneys and paralegals. In reviewing the above styled
case, I have determined the following is a description of the work completed together with applicable time
value that the firm estimates is associated therewith:
Receive and review initial documentation,
including loan documents and communication
from client; establish legal file 40
Review and analyze the title status report
and prepare synopsis of necessary defendants
for preparation of complaint .80
Research and obtain current location of Defendant(s) .40
Draft Complaint for Foreclosure; draft Notice of Lis
Pendens; Draft Summonses necessary to foreclose
mortgage joining all necessary parties 1.50
Arrange for filing of complaint; compile documents for
service of process .40
Review file; draft Affidavit of Indebtedness; drafted
correspondence to client .70
Receive and docket conformed Notice of Lis Pendens 20Obtain and review title update reflecting title status
through the recording of lis pendens and obtain and review
Defendant name search update to determine intervening
liens 40
Receive and docket Return(s) of Service .40
Receive and Review Affidavit of Indebtedness from client 30
Draft Amended Affidavit of Indebtedness; Amended Rowe
Affidavit; Amended Expert Affidavit and Amended Motion
for Summary Final Judgement 1.70
Review file; arrange setting of hearing of Motion for
Summary Judgment; draft Motion for Summary Judgment,
draft Notice of Hearing; draft letter(s) to Court regarding
motion. 1.50
Communicate with attorney acting as expert and draft Affidavit
of Reasonable Attorneys Fees, draft Affidavit of Fees
and Costs. 1.00
The times reflected above are not based on contemporaneous time records, and are based on the Affiant's
experience of the time required to complete the services described therein.
7. In addition to the foregoing, Smith, Hiatt & Diaz, P.A. will also be obligated to provide the
following representation prior to the hearing on Plaintiff's Motion for Summary Judgment, (/) Receive and
review all Answers filed by applicable defendant(s), (ii) Draft Motion for Clerk’s default; draft non-military
affidavits for any applicable Defendants, (iii) Draft proposed Final Judgment, (iv) Draft Notice of Sale, (v)
Draft Certificate of Sale, (vi) Draft Certificate of Title, (vii) Draft Certificate of Disbursement, (viii) Prepare
Final Disposition.(ix) Review file in preparation of hearing, and (x) Attend Hearing on Motion for Summary
Final Judgment.
8. Post judgment, Smith, Hiatt & Diaz, P.A. will be obligated to provide representation which
includes, but is not necessarily limited to (i) review and proof sale publication (ii) coordination of bidding
at sale, (iii) calculation of supplemental amounts due, (iv) draft Supplemental Affidavit of Amounts Due, (v)
correspondence related to bidding at sale including bidding instruction, (v/) correspondence to client
regarding sale, (vii) receipt and review of Certificate of Sale, (viii) receipt and review of Certificate of Title.9. Based on the status of the above styled case, Smith, Hiatt & Diaz, P.A. is entitled to be paid, (/)
the title search fee , (ii) reasonable Attorneys’ fees , and (iii) reimbursement of costs, in the amounts reflected
herein.
10. Upon reviewing the above styled case, a reasonable fee for the work described above would be
$1200.00, based on the flat fee agreement, together with necessary reasonable time expended to respond to
any issue that may be raised by a Defendant, based on an hourly rate of $150.00 per hour.
11. Plaintiff agreed to pay its attorneys a reasonable fee for legal services in connection with this
foreclosure based on the above described flat fee for an uncontested case together with any applicable
required additional fee.
THIS CONCLUDES THIS AFFIDAVIT. ‘
Ce
Tanya D. Simpson
Florida Bar No.36523
Sworn to and subscribed before me this Ly day ee ER
2008 by Tanya D. Simpson, ae AIRING “1 ;
nally known to me and who did take an oath. Cae. MY CON ISSN eon i
=. Pi > SU : soe ?
he SES ponessTav rotary Put 7 UNGER 4
1334-37769[33/~ >776F
IN THE CIRCUIT COURT FOR SARASOTA
COUNTY, FLORIDA. CIVIL DIVISION
CASE NO. 582007CA007735XXX XXX
AURORA LOAN SERVICES, LLC.,
Plaintff,
VS.
ANGELA NISBET; MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC., AS NOMINEE
FOR AEGIS WHOLESALE CORPORATION MIN.
NO. 100053030007553796; UNKNOWN TENANT
NO. 1: UNKNOWN TENANT NO. 2: and ALL
UNKNOWN PARTIES CLAIMING INTERESTS BY,
THROUGH, UNDER OR AGAINST A NAMED
DEFENDANT TO THIS ACTION, OR HAVING OR
CLAIMING TO HAVE ANY RIGHT, TITLE OR
INTEREST IN THE PROPERTY HEREIN
DESCRIBED,
Defendants.
/
AMENDED AFFIDAVIT OF INDEBTEDNESS
STATE OF COLORADO
) SS.
COUNTY OF DOUGLAS )
BEFORE ME, the undersigned authority, personally appeared PTH DP EL APM who
after being first duly sworn on oath deposes and says:
1. fam TH Vv (1 rH | GLU of AURORA LOAN SERVICES, LLC, servicer for the
owner and acting on behalf of the owner with authority to do so, and have personal knowledge of the
loan that is the subject of the above captioned suit.
2. This affidavit is based upon the loan payment records of the servicing agent and the
Affiant is familiar with these records. These records are regularly maintained in the day to day course of -business, and itis the regular practice to make and maintain these records. These records are compiled in
a computer data bank and are utilized as a matter of daily routine practice. The purpose of these records
is to Monitor and maintain the account relating to a note and mortgage that are the subject matter of the
pending case. These records properly reflect loan payments, charges and advances that are
contemporaneously noted in the records at the time of the applicable transactions by persons whose
regular duties include recording this information.
3. _——s*~Plaintiff, as servicer for the owner and acting on behalt of the owner with authority to do
so, 1s the present designated holder of the and mortgage with authority to pursue the present action.
4. The payment of said note was secured by a mortgage now held by Plaintiff covering the
following-described property situate in County, Florida, to-wit:
THE SOUTH 1/2 OF LOT 7607 AND ALL OF LOTUS 7608 AND 7609, SOUTH
VENICE, UNIT NO. 27, AS PER PLAT THEREOF RECORDED IN PLAT BOOK 6,
PAGE 76, OF THE PUBLIC RECORDS OF SARASOTA COUNTY, FLORIDA.
5. The payment due April 1, 2007 under the note and mortgage was not timely made and the
note and mortgage are thereby in detault.
6. Plaintiff has elected, under the provisions of mortgage and note, to declare the entire
balance as due and payable. The obligors under the mortgage and note were notified of the default and
have not paid the sums of money due thereunder.
7. Asa result of the default, foreclosure proceedings were instituted. The Plaintiff sent a
proposed Stipulation Agreement to Defendant(s), ANGELA NISBET. The original, executed Stipulation
Agreement was never retumed to Plaintiff to be filed with the court. However, as a result of the
Stipulation, Plaintiff received funds which were applied to the loan. Notwithstanding, the note and
mortgage were not cured and the loan remains in default
8. There 1s now due and owing to Plaintiff the following sums:
A. Principal balance $239,839.33B. 5.75% interest at $37.78 per diem
from March t, 2007 thru March 21, 2008 $14,546.42
C. Advance for Taxes $2,323.36
D. Advance for Insurance $1,939.93
F. Bankruptcy Fees and Costs $925.00
F. Pre-Acceleration Late Charges $114.92
G. Property Inspections $
H. Brokers Price Opinion/Appraisal $
I, Other S
J. Other $
K. Other S
LL. Other $
M. Other $
AMOUNT DUE: $259,688.96
Less [escrow/Suspense Credit $151.12 )
TOTAL: $259,537.84
9. Interest will continue to accrue at the rate of 5.75 percent ($37.78 per diem).
10. The Plaintiff retained Smith, Hiatt & Diaz, P.A. to represent it in this matter and has
agreed to pay a reasonable fee for said representation.
Subscribed and sworn to (or affirmed)-before me on
this O11 day of FLBWAPWA __ 2008,
by
personally known to me or proved to me on the basis of satisfactory
evidence to be the person(s) who appeared before me.Signature —_\
Notary Public
My Commission Ext
1334-37769
ER MECKSTROTH §
JENNOTARY PUBLIC
STATE OF COLORADO So
My Commission Expires 06/ 43/2009IN THE CIRCUIT COURT FOR SARASOTA
COUNTY, FLORIDA. CIVIL DIVISION
CASE NO. 582007CA007735XXXXXX
AURORA LOAN SERVICES, LLC.,
Plaintiff,
VS.
ANGELA NISBET; et al.,
Defendants.
/
AFFIDAVIT OF ATTORNEYS' FEES
STATE OF FLORIDA )
) SS.
COUNTY OF BROWARD )
I, John A. Watson, the undersigned, do hereby state on oath as follows:
| am an attorney at law licensed to practice in Florida, and have been admitted to the
practice of law in the State of Florida since May 13, 1982.
I am personally familiar with the procedure of mortgage foreclosures in Florida, and with
the fees usually charged by attorneys in conducting such suits.
I am personally familiar with the law firm of Smith, Hiatt & Diaz, P.A. and how the Firm
processes foreclosure files. I am further familiar with the fee agreement the Firm has with its clients
regarding foreclosure files.
I am familiar with Rule 4-1.5(b) of the Rules Regulating the Florida Bar, and have taken
into account the factors set forth in such Rule for the determination of reasonable attorneys fees.
1 am familiar with and have considered the dictates of the Florida Supreme Court in the
case of Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (1985) for the determination of
reasonable attorneys fees.
In arriving at my opinion of the value of reasonable attorneys fees in this matter I have
considered the following criteria:
a. The time and labor required, the novelty, complexity and difficulty of the
questions involved, and the skill requisite to perform the legal services properly.
b. The likelihood that acceptance of the particular employment will preclude other
employment for the lawyer.C. The fee or rate of fee customarily charged in the locality for services of a
comparable or similar nature, including the aspect of discounted fees.
d. The amount involved and the result to be obtained.
e. The time limitations imposed by the client or the circumstances.
f. The nature and length of professional relationship with the client.
g. The experience, reputation and ability of the lawyers performing the services.
h. Whether the fee is fixed or contingent.
Smith, Hiatt & Diaz, P.A. has reached a fee agreement with their client wherein the Firm
is paid based on a flat fee for uncontested foreclosures, such as this matter. The Firm is paid a flat fee of
$1,200.00 for an uncontested foreclosure. To the extent an issue is raised which fails to raise a genuine
issue of fact, but must be replied to, the Firm is paid on a flat fee basis for a response to the issue. The
Firm does not maintain specific time records for uncontested foreclosures pursuant to it’s flat fee
arrangement, therefore | have not reviewed specific time records.
[ am familiar with the specific steps and requirements that the Firm must complete to
handle an uncontested foreclosure to its conclusion. This knowledge, together with my understanding of
the flat fee agreement, leads me to the opinion that a flat fee of $1905.00 is reasonable. In my opinion
reviewing the actual file in this case is not necessary and would be futile, therefore I have not reviewed
the actual file.
THIS CONCLUDES THIS AFFIDAVIT
John A. Watson
Sworn jo and subscribed before me this 2¥ day
mY * f oot a
Jord ke Hoa n
ce EXPY m 220 287749
* - We , ‘ 1 *
’ Suti490 Thy a, wy Bi. 2014
Te “aly Pubre Undanvnters
ue
~
Notary Public
My commission expires:
1334-37769
Preview
IN THE CIRCUIT COURT FOR SARASOTA COUNTY, FLORIDA. CIVIL DIVISION aS CASE NO. 582007CA007735XXXXXX AURORA LOAN SERVICES, LLC., Plaintiff, VS. ANGELA NISBET; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE FOR AEGIS WHOLESALE CORPORATION MIN. NO. 100053030007553796; UNKNOWN TENANT cD SS ™ 2a 6s NO. 1; UNKNOWN TENANT NO. 2; and ALL ost = o UNKNOWN PARTIES CLAIMING INTERESTS BY, Eon wo oO THROUGH, UNDER OR AGAINST A NAMED OF on 2 DEFENDANT TO THIS ACTION, OR HAVING OR CEG =e cv CLAIMING TO HAVE ANY RIGHT, TITLE OR an = oO INTEREST IN THE PROPERTY HEREIN Eo c a DESCRIBED, me £ Defendants. / AMENDED MOTION FOR SUMMARY FINAL JUDGMENT AND ATTORNEY'S FEES Plaintiff, AURORA LOAN SERVICES, LLC. (hereinafter referred to as "Plaintiff") its successors and assigns by and through its undersigned counsel, moves this Court, pursuant to Florida Rule of Civil Procedure 1.510, to enter a Summary Final Judgment against each of the Defendants in the above-styled action. There exists no genuine issues as to any material fact and Plaintiff is entitled to judgment as a matter of law based on the pleadings and affidavits filed in this action. l. FORECLOSURE: This is an action by Plaintiff, to foreclose the mortgageon real property situated in Sarasota County, Florida. 2. STANDING: Plaintiff, as servicer for the owner and acting on behalf of the owner with authority to do so, is the present designated holder of the note and mortgage with authority to pursue the present action, and is thereby entitled to enforce the instruments in accordance with F.S.A. §673.3011, which provides in pertinent part that “.. . [a] person may be. . . entitled to enforce [an] instrument even -— 7 — iithough the person is not the owner of the instrument .. . “. Additionally, Fla. R. Civ. Pro. 1.210(a), provides in pertinent part that “every action may be prosecuted [by] a party with who or in whose name a contract has been made for the benefit of another . . . in that persons name without joining the name of the party for whose benefit the action is brought.” 3. DEFAULT: The Note is due for April 1, 2007, and all subsequent payments, which has resulted in a default of the note and mortgage . 4. PROPERTY: The legal description of the subject property is set forth in the complaint. 5. SERVICE: All Defendants have been served with notice of this action. 6. LOST NOTE: The original promissory note has been lost and is not in the custody or control of Plaintiff. The note was continuously in possession and control of Plaintiffs assignors and predecessors from the date of its execution until the loss of the note and has not been paid or otherwise satisfied, assigned or transferred. 7. LIEN: Plaintiff's mortgage constitutes a valid lien on the subject property and is superior to any right, title, interest or claim of all Defendants and all persons or entities claiming by, through or under them. 8. EVIDENCE: Plaintiff adopts and incorporates into this motion the affidavit of indebtedness, Plaintiffs affidavit of attorneys fees and costs, affidavit of reasonableness of fees, the mortgage, the promissory note. 9. MEMORANDUM OF LAW: The substantial matters of law upon which this motion 1s based are as follows: a. A mortgage is presumed to have been validly executed and delivered on the date recited in the mortgage if the mortgage is proven of record and recorded according to the law. Atlantic Land and Improvement Company v. Lee, 112 So.2d 549, 550 (Fla. 1927). b. Where a note secured by a mortgage is transferred without any formal assignment of the mortgage, the mortgage in equity passes as an incident to the debt, unless there is someplain and clear agreement to the contrary. Johns v. Gillian, 184 So. 140 (Fla. 1938). "A mere delivery of a note and mortgage, with intention to pass the title, upon a proper consideration, will vest the equitable interest in the person to whom it is so delivered." /d., at 143. "Because the lien follows the debt, there was no requirement of attachment of a written and recorded assignment of the mortgage in order for the appellant to maintain the foreclosure action." Chemical Residential Mortgage v. Rector, 742 So.2d. 300 (Fla. 1 DCA, 1998), rev. denied 727 So.2d 910 (1999). To foreclose upon a promissory note, the plaintiff must be the "holder" in order to be the real party in interest. Troupe v. Redner, 652 So2d 394 (Fla 2d DCA 1995), citing Withers v. Sandlin, 36 Fla. 619, 18 So. 856 (1896); Laing v. Gainey Builders, Inc., 184 So. 2d 897 (Fla Ist DCA 1966). The "holder", with respect to a negotiable instrument, means the person in possession if the instrument is payable to bearer or, in the case of an instrument payable to an identified person, if the identified person is in possession. § 671.201(20), Fla. Stat. (2002). "Bearer" means the person in possession of an instrument, document of title, or certificated security payable to bearer or indorsed in blank. § 671.201(5), Fla. Stat. (2002). C. In the event a formal assignment is delivered to the Plaintiff, Florida Law has established that the “effective date” is the date of transfer of interest in the mortgage as opposed to the date the assignment document was executed. WM Specialty Mortgage. LLC v. Salomon, 874 So2d. 680 (Fla 4" DCA 2004); Citing: Johns v Gillian, 184 So. 140, 143 (Fla 1938). d. The interest of the owner of record in the property described herein is inferior and subordinate to the interest of the Plaintiff, the mortgagee. Jordan v. Sayre, 3 So. 329 (Fla. 1888). e. The owner and holder of a valid recorded mortgage encumbering real property has a lien superior in dignity and right to any subsequently recorded mortgage, claim or lien attaching to the property through the mortgagors, their successors, assigns and tenants. Lee v. Slemons, 150 So. 792, 794 (Fla. 1933); Bullard v. Fender, 192 So. 167, 171 (Fla. 1939); County of Pinellas v. Clearwater Federal Savings and Loan Association, 214 So.2d 525, 526 (Fla. 2d DCA 1968). Therefore,the lien of Plaintiff's mortgage takes priority over the subsequently recorded claims or liens of the Defendants in this action. United States v. First Federal Savings and Loan Association of St. Petersburg, 155 So.2d 192, 193 (Fla. 2d DCA 1963). f. As a matter of law the entire indebtedness secured by the mortgage held by Plaintiff is due and collectible. Van Huss v. Prudential Insurance Company of America, 165 So. 896 (Fla. 1936); Baader v. Walker, 153 So.2d 51, 54 (Fla. 2d DCA 1963). g. As to any Defendant that is a Homeowners Association as defined under Florida Statute §720.301, said Defendant’s interest is fully forecloseable as a matter of law. Florida Statute §720.3085 does not prevent foreclosure of any past due assessment claims of a Defendant Home Owners Association, as Plaintiff's rights are determined by the Homeowner's Association’s Declaration of Covenants. Florida Statute §720.3085, does not retroactively apply to mortgages or assessments recorded prior to its enactment. Any application of the statute to the contrary Is unconstitutional. Sarasota County v. Andrews, et al. 573 So.2d 113 (2" DCA, 1991);Silver Blue Lake Apartments, Inc. v. Silver Blue Lake Home Owners Association, Inc., 245 So. 2d 609, 611 (Fla 1971); Palm Point Property Owners’ Association of Charlotte County, Inc. v. Pisarski (626 So. 2d 195 (Fla 1993); Holly Lake Association v. Federal National Mortgage Association, 660 So. 2d 266, 269 (Fla. 1995); Park Benziger & Co., Inc. v. Southern Wine & Spirits, Inc. 39\ So. 2d 681, 683 (Fla. 1980); David v. Sun Federal Savings & Loan Ass'n, 461 So. 2d 93 (Fla 1984); Metropolitan Dade County v. Chase Federal Housing Corp., et al. 737 So. 2d 494, 500 (Fla 1999); h. As to Defendants against whom a default has been entered, final judgment may be entered by the Court at any time. Rule 1.500(e) Florida Rule of Civil Procedure. i. This court must enter a summary final judgment of foreclosure where there exists no genuine issue as to any material fact; this Court may, however, reserve jurisdiction to determine the amount and priority of the claims. Mack Industries, Inc. v. Donald W. Nelson, Inc., 134 So.2d 821 (Fla. 2d DCA 1961).J: Where the note and mortgage so provide, a mortgagee is entitled to recover costs, a reasonable fee for its attorneys in the prosecution of a foreclosure action, and any sums advanced to prevent the impairment of its security. American Securities Co. v. Goldsberry, 67 So. 862, 866 (Fla. 1915). 10. ENTITLEMENT TO JUDGMENT: Plaintiff is entitled to recover its principal, interest, late charges, costs, attorneys’ fees, and other expenses, all of which are more fully set forth in the affidavits attached hereto. lt. NO ISSUE OF LAW OR FACTS: The pleadings of file, together with the affidavits attached hereto, demonstrate that there is no dispute as to any material fact. Accordingly, Plaintiff is entitled to Summary Final Judgment as a matter of law. WHEREFORE, the Plaintiff respectfully requests that this Court re-establish the lost promissory note and enter Summary Final Judgment in its favor as to the total amount sought in its Complaint, grant Plaintiff's motion for attorney's fees and such other and further relief as this Court deems just, including the issuance of writs of possession against any parties that may be in possession of the property. I HEREBY CERTIFY that copies of the foregoing Motion for Summary Final Judgment, together with Affidavits referred to herein, have been mailed to the parties on the attached Service List this 2 day of MV QsrdAn~— 2008. SMITH, HIATT & DIAZ, P.A. Attorneys for Plaintiff PO BOX 11438 Fort Lauderdale, FL 33339-1438 Telephone: (954) 564-0071 Facsimile: (954) 564-9252 By. @ ————— Tanya D. Simpson Florida Bar No. 36523 1334-37769SERVICE LIST Case No. 582007CA007735XXXXXX ANGELA NISBET 18239 COASTLINE DRIVE APT. 3 MALIBU, CA 90265 MERS C.T. Corporation System, Inc. 1200 SOUTH PINE ISLAND ROAD PLANTATION, FL 33324IN THE CIRCUIT COURT FOR SARASOTA COUNTY, FLORIDA. CIVIL DIVISION CASE NO. 582007CA007735XXXXXX AURORA LOAN SERVICES, LLC., Plaintiff, VS. ANGELA NISBET; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE FOR AEGIS WHOLESALE CORPORATION MIN. NO. 100053030007553796; UNKNOWN TENANT NO. 1; UNKNOWN TENANT NO. 2; and ALL UNKNOWN PARTIES CLAIMING INTERESTS BY, THROUGH, UNDER OR AGAINST A NAMED DEFENDANT TO THIS ACTION, OR HAVING OR CLAIMING TO HAVE ANY RIGHT, TITLE OR INTEREST IN THE PROPERTY HEREIN DESCRIBED, Defendants. / AMENDED AFFIDAVIT OF ATTORNEYS' FEES AND COSTS STATE OF FLORIDA ) COUNTY OF BROWARD ) BEFORE ME, personally appeared the undersigned Affiant, who under oath, did depose and say: 1. My name is Tanya D. Simpson and I am an attorney of the Firm of Smith, Hiatt & Diaz, P.A., and counsel for the Plaintiff in the above-styled case. 1 have personal knowledge of the facts set forth herein. 2. The firm of Smith, Hiatt & Diaz, P.A. has a fee agreement wherein it is entitled to be paid certain attorneys’ fees and reimbursement of certain costs related to representation of the Plaintiff in the above styled matter. The fee agreement is commensurate with the experience of the attorneys representing the Plaintiff, and is based on (i) a flat fee of $1,200.00 for uncontested foreclosures, and (ii) client approved additional fees to file necessary pleadings and otherwise respond to issues that may be raised by a Defendant, which additional fees are based on the nature of the response and based on an hourly rate, as reflected below.3. Smith, Hiatt & Diaz, P.A. is entitled to be paid $350.00 to complete a title examination and to prepare a title report to be utilized in the preparation of a foreclosure complaint. The foregoing includes time related to (i) obtaining a title base, (ii) examining title, (ii7) ordering necessary documents related to status of title and (iv) preparation of a title status report. 4. Pursuant to the fee agreement, Smith, Hiatt & Diaz, P.A. is entitled to receive reimbursement of the following costs incurred in the above styled foreclosure proceedings. A. Filing Fee $ 255.00 B. Service of Process $ 305.00 TOTAL COSTS $560.00 5. Pursuant to the fee agreement, Smith, Hiatt & Diaz, P.A. is entitled to be paid a reasonable attorneys’ fee for this case. 6. The work in this case was completed by attorneys and paralegals. In reviewing the above styled case, I have determined the following is a description of the work completed together with applicable time value that the firm estimates is associated therewith: Receive and review initial documentation, including loan documents and communication from client; establish legal file 40 Review and analyze the title status report and prepare synopsis of necessary defendants for preparation of complaint .80 Research and obtain current location of Defendant(s) .40 Draft Complaint for Foreclosure; draft Notice of Lis Pendens; Draft Summonses necessary to foreclose mortgage joining all necessary parties 1.50 Arrange for filing of complaint; compile documents for service of process .40 Review file; draft Affidavit of Indebtedness; drafted correspondence to client .70 Receive and docket conformed Notice of Lis Pendens 20Obtain and review title update reflecting title status through the recording of lis pendens and obtain and review Defendant name search update to determine intervening liens 40 Receive and docket Return(s) of Service .40 Receive and Review Affidavit of Indebtedness from client 30 Draft Amended Affidavit of Indebtedness; Amended Rowe Affidavit; Amended Expert Affidavit and Amended Motion for Summary Final Judgement 1.70 Review file; arrange setting of hearing of Motion for Summary Judgment; draft Motion for Summary Judgment, draft Notice of Hearing; draft letter(s) to Court regarding motion. 1.50 Communicate with attorney acting as expert and draft Affidavit of Reasonable Attorneys Fees, draft Affidavit of Fees and Costs. 1.00 The times reflected above are not based on contemporaneous time records, and are based on the Affiant's experience of the time required to complete the services described therein. 7. In addition to the foregoing, Smith, Hiatt & Diaz, P.A. will also be obligated to provide the following representation prior to the hearing on Plaintiff's Motion for Summary Judgment, (/) Receive and review all Answers filed by applicable defendant(s), (ii) Draft Motion for Clerk’s default; draft non-military affidavits for any applicable Defendants, (iii) Draft proposed Final Judgment, (iv) Draft Notice of Sale, (v) Draft Certificate of Sale, (vi) Draft Certificate of Title, (vii) Draft Certificate of Disbursement, (viii) Prepare Final Disposition.(ix) Review file in preparation of hearing, and (x) Attend Hearing on Motion for Summary Final Judgment. 8. Post judgment, Smith, Hiatt & Diaz, P.A. will be obligated to provide representation which includes, but is not necessarily limited to (i) review and proof sale publication (ii) coordination of bidding at sale, (iii) calculation of supplemental amounts due, (iv) draft Supplemental Affidavit of Amounts Due, (v) correspondence related to bidding at sale including bidding instruction, (v/) correspondence to client regarding sale, (vii) receipt and review of Certificate of Sale, (viii) receipt and review of Certificate of Title.9. Based on the status of the above styled case, Smith, Hiatt & Diaz, P.A. is entitled to be paid, (/) the title search fee , (ii) reasonable Attorneys’ fees , and (iii) reimbursement of costs, in the amounts reflected herein. 10. Upon reviewing the above styled case, a reasonable fee for the work described above would be $1200.00, based on the flat fee agreement, together with necessary reasonable time expended to respond to any issue that may be raised by a Defendant, based on an hourly rate of $150.00 per hour. 11. Plaintiff agreed to pay its attorneys a reasonable fee for legal services in connection with this foreclosure based on the above described flat fee for an uncontested case together with any applicable required additional fee. THIS CONCLUDES THIS AFFIDAVIT. ‘ Ce Tanya D. Simpson Florida Bar No.36523 Sworn to and subscribed before me this Ly day ee ER 2008 by Tanya D. Simpson, ae AIRING “1 ; nally known to me and who did take an oath. Cae. MY CON ISSN eon i =. Pi > SU : soe ? he SES ponessTav rotary Put 7 UNGER 4 1334-37769[33/~ >776F IN THE CIRCUIT COURT FOR SARASOTA COUNTY, FLORIDA. CIVIL DIVISION CASE NO. 582007CA007735XXX XXX AURORA LOAN SERVICES, LLC., Plaintff, VS. ANGELA NISBET; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE FOR AEGIS WHOLESALE CORPORATION MIN. NO. 100053030007553796; UNKNOWN TENANT NO. 1: UNKNOWN TENANT NO. 2: and ALL UNKNOWN PARTIES CLAIMING INTERESTS BY, THROUGH, UNDER OR AGAINST A NAMED DEFENDANT TO THIS ACTION, OR HAVING OR CLAIMING TO HAVE ANY RIGHT, TITLE OR INTEREST IN THE PROPERTY HEREIN DESCRIBED, Defendants. / AMENDED AFFIDAVIT OF INDEBTEDNESS STATE OF COLORADO ) SS. COUNTY OF DOUGLAS ) BEFORE ME, the undersigned authority, personally appeared PTH DP EL APM who after being first duly sworn on oath deposes and says: 1. fam TH Vv (1 rH | GLU of AURORA LOAN SERVICES, LLC, servicer for the owner and acting on behalf of the owner with authority to do so, and have personal knowledge of the loan that is the subject of the above captioned suit. 2. This affidavit is based upon the loan payment records of the servicing agent and the Affiant is familiar with these records. These records are regularly maintained in the day to day course of -business, and itis the regular practice to make and maintain these records. These records are compiled in a computer data bank and are utilized as a matter of daily routine practice. The purpose of these records is to Monitor and maintain the account relating to a note and mortgage that are the subject matter of the pending case. These records properly reflect loan payments, charges and advances that are contemporaneously noted in the records at the time of the applicable transactions by persons whose regular duties include recording this information. 3. _——s*~Plaintiff, as servicer for the owner and acting on behalt of the owner with authority to do so, 1s the present designated holder of the and mortgage with authority to pursue the present action. 4. The payment of said note was secured by a mortgage now held by Plaintiff covering the following-described property situate in County, Florida, to-wit: THE SOUTH 1/2 OF LOT 7607 AND ALL OF LOTUS 7608 AND 7609, SOUTH VENICE, UNIT NO. 27, AS PER PLAT THEREOF RECORDED IN PLAT BOOK 6, PAGE 76, OF THE PUBLIC RECORDS OF SARASOTA COUNTY, FLORIDA. 5. The payment due April 1, 2007 under the note and mortgage was not timely made and the note and mortgage are thereby in detault. 6. Plaintiff has elected, under the provisions of mortgage and note, to declare the entire balance as due and payable. The obligors under the mortgage and note were notified of the default and have not paid the sums of money due thereunder. 7. Asa result of the default, foreclosure proceedings were instituted. The Plaintiff sent a proposed Stipulation Agreement to Defendant(s), ANGELA NISBET. The original, executed Stipulation Agreement was never retumed to Plaintiff to be filed with the court. However, as a result of the Stipulation, Plaintiff received funds which were applied to the loan. Notwithstanding, the note and mortgage were not cured and the loan remains in default 8. There 1s now due and owing to Plaintiff the following sums: A. Principal balance $239,839.33B. 5.75% interest at $37.78 per diem from March t, 2007 thru March 21, 2008 $14,546.42 C. Advance for Taxes $2,323.36 D. Advance for Insurance $1,939.93 F. Bankruptcy Fees and Costs $925.00 F. Pre-Acceleration Late Charges $114.92 G. Property Inspections $ H. Brokers Price Opinion/Appraisal $ I, Other S J. Other $ K. Other S LL. Other $ M. Other $ AMOUNT DUE: $259,688.96 Less [escrow/Suspense Credit $151.12 ) TOTAL: $259,537.84 9. Interest will continue to accrue at the rate of 5.75 percent ($37.78 per diem). 10. The Plaintiff retained Smith, Hiatt & Diaz, P.A. to represent it in this matter and has agreed to pay a reasonable fee for said representation. Subscribed and sworn to (or affirmed)-before me on this O11 day of FLBWAPWA __ 2008, by personally known to me or proved to me on the basis of satisfactory evidence to be the person(s) who appeared before me.Signature —_\ Notary Public My Commission Ext 1334-37769 ER MECKSTROTH § JENNOTARY PUBLIC STATE OF COLORADO So My Commission Expires 06/ 43/2009IN THE CIRCUIT COURT FOR SARASOTA COUNTY, FLORIDA. CIVIL DIVISION CASE NO. 582007CA007735XXXXXX AURORA LOAN SERVICES, LLC., Plaintiff, VS. ANGELA NISBET; et al., Defendants. / AFFIDAVIT OF ATTORNEYS' FEES STATE OF FLORIDA ) ) SS. COUNTY OF BROWARD ) I, John A. Watson, the undersigned, do hereby state on oath as follows: | am an attorney at law licensed to practice in Florida, and have been admitted to the practice of law in the State of Florida since May 13, 1982. I am personally familiar with the procedure of mortgage foreclosures in Florida, and with the fees usually charged by attorneys in conducting such suits. I am personally familiar with the law firm of Smith, Hiatt & Diaz, P.A. and how the Firm processes foreclosure files. I am further familiar with the fee agreement the Firm has with its clients regarding foreclosure files. I am familiar with Rule 4-1.5(b) of the Rules Regulating the Florida Bar, and have taken into account the factors set forth in such Rule for the determination of reasonable attorneys fees. 1 am familiar with and have considered the dictates of the Florida Supreme Court in the case of Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (1985) for the determination of reasonable attorneys fees. In arriving at my opinion of the value of reasonable attorneys fees in this matter I have considered the following criteria: a. The time and labor required, the novelty, complexity and difficulty of the questions involved, and the skill requisite to perform the legal services properly. b. The likelihood that acceptance of the particular employment will preclude other employment for the lawyer.C. The fee or rate of fee customarily charged in the locality for services of a comparable or similar nature, including the aspect of discounted fees. d. The amount involved and the result to be obtained. e. The time limitations imposed by the client or the circumstances. f. The nature and length of professional relationship with the client. g. The experience, reputation and ability of the lawyers performing the services. h. Whether the fee is fixed or contingent. Smith, Hiatt & Diaz, P.A. has reached a fee agreement with their client wherein the Firm is paid based on a flat fee for uncontested foreclosures, such as this matter. The Firm is paid a flat fee of $1,200.00 for an uncontested foreclosure. To the extent an issue is raised which fails to raise a genuine issue of fact, but must be replied to, the Firm is paid on a flat fee basis for a response to the issue. The Firm does not maintain specific time records for uncontested foreclosures pursuant to it’s flat fee arrangement, therefore | have not reviewed specific time records. [ am familiar with the specific steps and requirements that the Firm must complete to handle an uncontested foreclosure to its conclusion. This knowledge, together with my understanding of the flat fee agreement, leads me to the opinion that a flat fee of $1905.00 is reasonable. In my opinion reviewing the actual file in this case is not necessary and would be futile, therefore I have not reviewed the actual file. THIS CONCLUDES THIS AFFIDAVIT John A. Watson Sworn jo and subscribed before me this 2¥ day mY * f oot a Jord ke Hoa n ce EXPY m 220 287749 * - We , ‘ 1 * ’ Suti490 Thy a, wy Bi. 2014 Te “aly Pubre Undanvnters ue ~ Notary Public My commission expires: 1334-37769