Preview
eFile Accepted: 12/11/2014 09:34 AM
Filing # 21480714 Electronically Filed 12/10/2014 06:39:53 PM
IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT
IN AND FOR SARASOTA COUNTY, FLORIDA
PROF-2012-S1 REO, LLC,
Plaintiff,
CASE NO: 2011 CA 007792
vs.
DAVID PARKER, et al.,
Defendants.
/
MEMORANDUM IN OPPOSITION OF DEFENDANTS’ MOTION FOR ATTORNEYS’
FEES PURSUANT TO FLORIDA STATUTE §57.105
COMES NOW, the PLAINTIFF, PROF-2012-S1 REO, LLC, by and through its
undersigned attorneys, and hereby files this, its Memorandum in Opposition to Defendants’
Motion for Attorneys’ Fees, Pursuant to Florida Statute §57.105, and sets forth:
1. On or about September 26, 2011, the instant action was filed by Citimortgage,
Inc., to foreclose a mortgage on real property located in Sarasota County, Florida.
2. Plaintiff is the current owner and holder of the Note and Mortgage via
Assignments of Mortgage.
3. On or about October 26, 2012, Defendants filed their Consent to Judgment and
Withdrawal of Affirmative Defenses.
4. On or about September 20, 2013, the undersigned filed his Notice of Appearance
as Co-Counsel for Plaintiff.
5. On or about December 4, 2013, this Honorable Court executed an Order
substituting the current Plaintiff as the proper party to this action.
6. On or about February 6, 2014, Plaintiff filed its Motion for Summary Judgment,
and Affidavit of Indebtedness in support of the Motion.
Memorandum in Opposition to Defendants’ Motion for Attorneys’ Fees Pursuant to §57.105
Case No. 2011-CA-007729NC
109.033 — Parker
Page 1 of U17. On or about February 10, 2014, the Defendants filed their Objection and
Response to Plaintiff’s Motion for Summary Judgment.
8. Subsequent to the filing of this Motion, Defendants instituted a federal action
against the Plaintiff, as well as the undersigned, for alleged violations of the Fair Debt Collection
Practices Act. The basis for their allegations is that the Plaintiff, as well as the undersigned, were
seeking an in personum judgment against the Defendants in the instant action in violation of a
bankruptcy discharge order they previously received. As a result, the undersigned placed this
matter on hold, with the Plaintiff’s permission, so as not to incur any additional counts for this
federal action, and to await its resolution.
9, On or about November 18, 2014, the Defendants filed their Motion for Entry of
Consent Judgment requesting the Court to enter a Consent Judgment in the form attached to the
Motion as Exhibit “A”.
10. On or about November 23, 2014, Defendants filed the instant Motion for
Attorneys’ Fees Pursuant to Florida Statute §57.105, as well as a Motion to Show Cause for
Contempt and for Entry of Final Consented Judgment, against the Plaintiff, and the undersigned
attomey.
11. The gravamen of these (2) Motions is that the Plaintiff, and Plaintiff’s attorney
(the undersigned), failed to: 1) comply with the General Magistrate’s Recommended Order dated
June 29, 2012, requiring the Plaintiff at the time, Citimortgage, Inc., to conclude this matter
within sixty (60) days’; and 2) that Plaintiff is seeking an in personum judgment based upon the
allegation that it is seeking the entire indebtedness secured by the mortgage.
12. Plaintiff, as well as the undersigned, object to the Defendants’ Motion as it is has
' Plaintiff, and the undersigned counsel, strenuously disagree that the Magistrate’s Recommend Order required the
Plaintiff to obtain Judgment within sixty (60) days. Plaintiff is merely reiterating what the Defendants’ argument is
within their Motions.
Memorandum in Opposition to Defendants’ Motion for Attorneys’ Fees Pursuant to §57.105
Case No. 2011-CA-007729NC
109.033 — Parker
Page 2 of 11no basis in law or fact, misstates the facts of the case, and fails to comply with the requirements
of §57.105.
MEMORANDUM OF LAW
L DEFENDANTS HAVE FAILED TO STATE ADEQUATE GROUNDS TO
AWARD ATTORNEYS’ FEES PURSUANT TO FLORIDA STATUTE §57.105
Defendants’ Motion for Attorneys’ Fees has failed to state any grounds for this Honorable
Court to consider awarding attorneys’ fees under Florida Statute §57.105, let alone any adequate
grounds. Defendants’ Motion is baseless in both law and fact and has been merely filed to force
the Plaintiff, and the undersigned, into an untenable position with respect to the pending federal
action.
A. Standard for Awarding Fees Pursuant to Florida Statute §57.105
Florida Statute §57.105 , States, in pertinent part:
§ 57.105. Attorney's fee; sanctions for raising unsupported claims or defenses;
exceptions; service of motions; damages for delay of litigation.
(1) Upon the court's initiative or motion of any party, the court shall award a reasonable
attorney's fee, including prejudgment interest, to be paid to the prevailing party in equal
amounts by the losing party and the losing party's attorney on any claim or defense at any
time during a civil proceeding or action in which the court finds that the losing party or
the losing party's attorney knew or should have known that a claim or defense when
initially presented to the court or at any time before trial:
(a) Was not supported by the material facts necessary to establish the claim or defense;
or
(b) Would not be supported by the application of then-existing law to those material
facts.
(2) At any time in any civil proceeding or action in which the moving party proves by a
preponderance of the evidence that any action taken by the opposing party, including, but
not limited to, the filing of any pleading or part thereof, the assertion of or response to
any discovery demand, the assertion of any claim or defense, or the response to any
request by any other party, was taken primarily for the purpose of unreasonable delay, the
court shall award damages to the moving party for its reasonable expenses incurred in
obtaining the order, which may include attorney's fees, and other loss resulting from the
Memorandum in Opposition to Defendants’ Motion for Attorneys’ Fees Pursuant to §57.105
Case No. 2011-CA-007729NC
109.033 — Parker
Page 3 of 11improper delay.
(3) Notwithstanding subsections (1) and (2), monetary sanctions may not be awarded:
(a) Under paragraph (1)(b) if the court determines that the claim or defense was
initially presented to the court as a good faith argument for the extension, modification,
or reversal of existing law or the establishment of new law, as it applied to the material
facts, with a reasonable expectation of success.
(b) Under paragraph (1)(a) or paragraph (1)(b) against the losing party's attorney if he
or she has acted in good faith, based on the representations of his or her client as to the
existence of those material facts.
(c) Under paragraph (1)(b) against a represented party.
(d) On the court's initiative under subsections (1) and (2) unless sanctions are awarded
before a voluntary dismissal or settlement of the claims made by or against the party that
is, Or whose attorneys are, to be sanctioned.
Defendants are seeking attorneys’ fees pursuant to §57.105 (1) (a-b), claiming that the
Plaintiff, and the undersigned knew, or should have known, that the Motion for Summary
Judgment was not supported by the material facts necessary to establish the Plaintiff’s claim, or
by the application of the current existing law to the material facts. Defendants’ allegations are
that the Motion for Summary Judgment cannot be sustained by the Plaintiff because the Plaintiff,
and Plaintiff’s counsel (the undersigned), knew that it could not seek an in personum judgment
against the Defendants due to the bankruptcy discharge order.
[A] review of Florida case law reveals that there are established guidelines for
determining when an action is frivolous. These include where a case is found: (a) to be
completely without merit in law and cannot be supported by a reasonable argument for an
extension, modification or reversal of existing law; (b) to be contradicted by
overwhelming evidence; (c) as having been undertaken primarily to delay or prolong the
resolution of the litigation, or (c) [sic] as asserting material factual statements that are
false.
Palm Beach Polo Holdings, Inc., v. Stewart Title Guaranty Co., 134 So. 3d 1073, 1078 (Fla. 4"
DCA, 2014; citing Yakavonis v. Dolphin Petroleum, Inc., 934 So. 2d 615, 619 (Fla. 4" DCA,
2006 (quoting Wendy’s of Ne. Fla., Inc.. v. Vandereriff, 865 So. 2d 520 [Fla. 1° DCA, 2003}).
Memorandum in Opposition to Defendants’ Motion for Attorneys’ Fees Pursuant to §57.105
Case No. 2011-CA-007729NC
109.033 — Parker
Page 4 of 11B. Defendants have fail to satisfy the standard for seeking Attorneys’ Fees Pursuant
to Florida Statute §57.105
Defendants’ argument that Plaintiff, or its counsel, were trying to improperly seek an in
personum judgment because the Motion for Summary Judgment states that it was seeking “the
entire indebtedness secured by the mortgage held by Plaintiff’ clearly misunderstand the nature
of a foreclosure action, and misinterprets the language of the Motion for Summary Judgemnt,
itself.
A foreclosure action is strictly an in rem action as it seeks to have the court to act directly
on the title to the property to convert a lien interest against a land title to a legal title to the land.
Publix Super Markets, Inc., v. Cheesbro Roofing, Inc., 502 So. 2d 484. (Fla. 5" DCA, 1987). A
foreclosure action, by its definition, does not seek an in personum judgment. The foreclosure
judgment is, in essence, a judgment allowing the sale of the property. More importantly,
however, the judgment contains the liquidated amount of damages that is owed to the Plaintiff as
a result of the default. The liquidated damages acts as a credit to the Plaintiff in the foreclosure
sale. In order for the damages to be liquidated, the Plaintiff is required to submit Affidavits in
order for the Court to determine the amounts that are due and owing pursuant to the Note and
Mortgage. These Affidavits in no way seek to obtain an in personum judgment against the
borrowers, but merely seek to liquidate the damages.
Further, in the event a borrower has been granted a discharge in bankruptcy, the
bankruptcy discharge acts as a bar against a secured creditor for all amounts not secured by the
value of the collateral. In terms of a foreclosure, a lender, such as the Plaintiff, would be entitled
to “the entire indebtedness secured by the mortgage”. The mortgage would only seek to secure
the amount up to the actual value of the real property. The bankruptcy discharge would then act
as a bar to the lender to seek any amounts not covered by the value of the property from the
Memorandum in Opposition to Defendants’ Motion for Attorneys’ Fees Pursuant to §57.105
Case No. 2011-CA-007729NC
109.033 — Parker
Page 5 of 11judicial sale. However, that amount is not known until the property is sold. Notwithstanding the
foregoing, in order for the lender to obtain an in personum judgment, the lender would either
have to file a separate Motion with the Court, or file a completely separate action seeking
damages.
In the case at bar, Plaintiff’s Motion and Affidavit not only are with merit in law and fact,
but Plaintiff had absolute grounds for seeking a Summary Judgment as the Defendants consented
to the entry of the judgment when they filed their written consent on October 26, 2012.
Defendants’ interpretation that the Motion for Summary Judgment seeks an in personum
judgment is erroneous. The Motion clearly states it is seeking to liquidate its damages so it may
obtain a judgment and have the property sold at judicial sale. There 1s nothing in the Motion, or
the Affidavit, nor can the Defendants specifically cite to any portion thereof, which states that the
Plaintiff is seeking, or is entitled to, an in personum judgment. The Defendants’
misinterpretation, as well as Defendants’ counsel’s failure to properly understand the nature of
foreclosure proceedings does not, ipso facto, make Plaintiff’s Motion and Affidavit a violation of
the bankruptcy discharge or an intent to seek an in personum judgment.
Further, the Defendants’ allegation that the entire underlying debt had been discharged in
bankruptcy” is clearly in direct contravention of the bankruptcy law. A bankruptcy discharge
does not release a debtor from a secured debt. It only acts as a bar to collect monies owed for
any unsecured debt. The discharge will bar collection of any debt in excess of the value of the
collateral with respect to a secured debt. Accordingly, as in the instant case, the Defendants’
discharge will only act as a bar against collection of the deficiency portion of real property after a
foreclosure sale.
* See, paragraph 3 of the Defendants’ Motion, which states “Because the underlying debt or Note has been
discharged in bankruptcy...”
Memorandum in Opposition to Defendants’ Motion for Attorneys’ Fees Pursuant to §57.105
Case No. 2011-CA-007729NC
109.033 — Parker
Page 6 of il“yr
As an additional ground for seeking their attorneys’ fees, the Defendants allege that
Plaintiff, and Plaintiff’s counsel, have failed to comply with the Magistrate’s June 29, 2012,
Recommend Order. The Defendants allege that the Magistrate required the Plaintiff to bring the
instant matter to a final judgment within sixty (60) days. The Defendants completely misquote
the Magistrates findings, and intentionally have misled this Honorable Court.
The Magistrate’s findings state that there is “nothing impeding the Plaintiff from moving
swiftly” to bring matter to judgment and that the Magistrate urged the Plaintiff “to pursue this
action with diligence and take action within sixty (60) days to move the case toward final
judgment.” A true and correct copy of the Magistrate’s Recommend Order is attached hereto as
Exhibit “A” and incorporated herein by reference. These are the Magistrate’s exact words.
There is absolutely no requirement that Plaintiff at the time, Citimortgage, Inc., obtain judgment
in sixty (60) days, nor did the Magistrate recommend to the Court to Order this matter be
concluded within sixty (60) days. The Magistrate’s Recommended Order is clear and
unambiguous on its face, and the Defendants have completely distorted the plain meaning of the
Magistrate’s findings. Accordingly, Defendants’ position is completely fabricated on this point.
Therefore, it cannot form the basis for any Motion for Attorneys’ Fees whether under subsection
(1) of §57.105.
It is clear, based upon the allegations stated in the Defendants’ Motion, they are upset
that this matter has not been concluded and have been utilizing both this action, as well as the
federal action, as a means of extracting a pound of flesh for their woes. The Defendants’
imagined slights cannot substantiate their contention that Plaintiff acts were not supported by the
material facts necessary to establish its claim; or would not be supported by the application of the
existing law to the current material facts.
Memorandum in Opposition to Defendants’ Motion for Attorneys’ Fees Pursuant to §57.105
Case No. 2011-CA-007729NC
109.033 — Parker
Page 7 of 11C. Defendants have failed to strictly comply with the safe harbor provisions of
Florida Statute $57.105
Florida Statute §57.105 (4) states as follows:
(4) A motion by a party seeking sanctions under this section must be served but may not
be filed with or presented to the court unless, within 21 days after service of the motion,
the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or
appropriately corrected.
In order for the Defendants to seek fees pursuant to Florida Statute §57.105 (1)(a-b), they
were required to serve a copy of the Motion twenty-one (21) days before they filed it with the
Court. Defendants failed to comply with this requirement. Defendants provided the undersigned
with an e-mail dated November 23, 2014, wherein Defendants’ attorney attaches a copy of the
instant Motion in alleged compliance with the safe harbor provisions of the Statute. A true and
correct copy of the e-mail is attached as Exhibit “B” and incorporated herein by reference.
However, instead of waiting the twenty-one (21) days as required by the Statute, and as stated in
the e-mail, Defendants, and their attorney, filed the instant Motion with the Court on November
25, 2014. A true and correct copy of the Docket is attached as Exhibit “C” and incorporated
herein by reference. “As section 57.105 authorizes an award of attorney’s fees in derogation of
common law, it must be strictly construed.” Matte v. Caplan, 140 So. 3d 686, 689. (Fla. 4"
DCA, 2014). Defendants have failed to strictly comply with the Statute by filing the Motion for
Attorneys’ Fees less than forty-eight (48) hours after providing it to the Plaintiff’s counsel.
Therefore, the Defendants’ Motion, by failing to comply with the Statute, should be denied sua
sponte.
Il. DEFENDANTS’ CLAIM FOR ATTORNEYS’ FEES PURSUANT TO
FLORIDA STATUTE §57.105 (7) IS PREMATURE
As additional grounds for seeking attorneys’ fees and costs, Defendants state they are
Memorandum in Opposition to Defendants’ Motion for Attorneys’ Fees Pursuant to §57.105
Case No. 2011-CA-007729NC
109.033 — Parker
Page 8 of 11entitled to the reciprocity provisions of the Statute set forth in subsection (7), which states that
any contract which provides for fees for one party, will be awarded to the other, if that party
prevails in the underlying action. “The party prevailing on the ‘significant issues’ in the
litigation is the party that should be considered the prevailing party for attorneys’ fees.”
Schoenlank v. Schoenlank, 128 So. 3d 118, 121. (Fla. 3K DCA, 2013).
In the instant case, the Defendants are claiming that they are entitled to attorneys’ fees
based upon the “settlement agreement” entered into by Citimortgage, and the Defendants.
However, without a copy of that settlement agreement, and knowing what the terms of the
settlement were, it 1s difficult for the Plaintiff to argue that the Defendants were the prevailing
party to this action. Further, the instant Motion does not seek to enforce the alleged executed
agreement. The Motion merely states that the Defendants are entitled to attorneys’ fees pursuant
to that agreement. Moreover, the Defendants have not interposed any allegations in any pleading
filed with this Honorable Court that the current Plaintiff is bound by the alleged executed
agreement. Accordingly, their claims for attorneys’ fees pursuant to this alleged executed
document are ineffective against this Plaintiff, as it has not adopted the terms of the resolution.
Interestingly, if the Defendants were to argue that Plaintiff is bound by the terms of this
agreement due to its position as the owner of the loan, Plaintiff would be entitled to review a
copy of the settlement agreement and not have to seek the Court to review it, in camera. Further,
the Defendants would have provided the Plaintiff with a copy of this document, and, in fact,
would be required to file it with the Court, and provide the Plaintiff a copy. The fact that
Defendants have failed to do either significantly reveals their lack of faith in their arguments, and
only augments the Plaintiff’s position that this Motion has been filed as a means of using this
action against the Plaintiff and Plaintiff’s counsel in the federal action.
Memorandum in Opposition to Defendants’ Motion for Attorneys’ Fees Pursuant to §57.105
Case No. 2011-CA-007729NC
109.033 — Parker
Page 9 of 11ll. CONCLUSION
Based on the foregoing, the Defendants’ Motion for Attorneys’ Fees Pursuant to Florida
Statute §57.105, should be denied, and attorneys’ fees and costs should be awarded to the
Plaintiff by the Defendants and Defendants’ counsel as sanctions for having to prepare the instant
Memorandum, and argue against their baseless Motion.
WHEREFORE, the Plaintiff, PROF-2012-S1 REO, LLC, respectfully requests this
Honorable Court to deny the Defendants’ Motion, award attorneys’ fees to the Plaintiff by the
Defendants and Defendants’ counsel as sanctions for having to prepare the instant Memorandum,
and argue against their Motion, plus for any and all other relief this Honorable Court deems
necessary and just.
CERTIFICATE OF SERVICE
] HEREBY CERTIFY that a true and correct copy of the foregoing was mailed via First
Class, U.S. Mail or via e-mail, as indicated, to the people on the attached service list on this 10"
day of December, 2014.
IRA SCOT SILVERSTEIN, LLC
COUNSEL FOR PLAINTIFF
2900 West Cypress Creek Road, Suite 6
Fort Lauderdale, Florida 33309
(954) 773-9911
(954) 369-5034 Fax
service@isslawyer.com
By:/s/ Ira Scot Silverstein, Esq.
Ira Scot Silverstein, Esq.
FBN: 0009636
Memorandum in Opposition to Defendants’ Motion for Attorneys’ Fees Pursuant to §57.105
Case No. 2011-CA-007729NC
109.033 — Parker
Page 10 of 11SERVICE LIST CASE NO: 2011-CA-007792
Ha Thu Dao, Esq.
Grand Central Law, PLLC
P.O. Box 7382
Lakeland, FL 33087
youremylawyer@gmail.com
Memorandum in Opposition to Defendants’ Motion for Attorneys’ Fees Pursuant to §57.105
Case No. 2011-CA-007729NC
109.033 — Parker
Page Li of 11EXHIBIT “A”IN THE CORCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT
[IN AND FOR SARASOTA COUNTY, FLORIDA
.
no
orn
corn
a we,
am SR
«&s>
=,
ca
we
—
«<> .
oo.
er *
a
as
=
“or,
—_
8S :6 WY 62Nnr £182
Wd0usu wos OFZ
CITUMORTGAGE, INC. =
cS
cc
Palen chfy,
v8. CASE NO. 2011 CA 007792 NC
DAVID M. PARKER, et al.,
Defendants.
f
RECOMMENDED ORDER OF MAGISTRATE
This cause came on for hearing before Magistrate Deborah A. Bailey, on June 12,
2012, on the Defendants’ Response to Complaint and Motion for Court Order
Deeming Possession and Title Tramsferred to Plaintiff. The Magistrate has jurisdiction
pursuant to Rule 1.490 of the Flonda Rules of Civit Procedure. Being fully advised in
the premises, the Magistrate reports as follows:
This foreclosure action was filed on or about September 26, 2011. The
I.
On November 16, 2011, the
Defendants were served on or about October 25, 2011.
Defendants filed the instant Motion.
2. Defendants’ Motion asserts the following facts that were not controverted by
the Plaintiff at the hearing. This 1s not the first time the Plamtiff has filed a foreclosure
action against the Defendants. Plaintff, through the Law Offices of David J. Stern,
originally filed a foreclosure against the Defendants in 2008, in a case styled as
Citimortgage, Inc., Successor by Merger to Citi Financial Mortgage Company Inc. v.
Parker, et al., Case No. 2008 CA 013687 NC. The Parkers did not defend this suit and,
in fact, filed a Chapter 7 bankruptcy proceeding in the U.S. Bankruptcy Court for the
In the bankruptcy case, the
Middle District of Florida under Case No. 8:08-bk- 19857
- they moved out of the property
Parkers mdicated their ntent to surrender the property
and ultimately moved to Illinois to seek employment. The Bankruptcy Court granted a
The returns of service in the file w the mstant action indicate that the Parkers were served by
personal and substituted service tn Highiand, Hlunois, on or about October 25, 2011 _.discharge to the Parkers on or about March 26, 2009. At that time, the 2008 foreciosure
case remained pending in Sarasota County.
3. Because of no action in the 2008 case, the Clerk issued a Notice of Hearing
for Lack of Prosecution on August 26, 2010, which set the matter for hearing on
November 22, 2010. After the Notice was issued, the Plaintiff took steps to move the
case forward by filing its Motion for Summary Judgment and associated affidavits.
Plaintsff also obtained a Clerk's Default against the Parkers. As a result of the Plaintiff's
actions, the Court entered an Order finding that good cause existed to leave the action
open. The Court's Order scheduled a status conference for January 3, 2011, and
specifically warned the parties that a failure to appear “may result in dismissal of the
case.” The Plaintiff as a party secking affirmative relief was specifically directed to
appear. On January 3, 2011, no one appeared, and the Court dismissed the action without
preyudice for lack of prosecution.
4. On or about May 25, 2011, counsel for the Plaintiff in the present action filed
a Motion in the 2008 action requesting the Clerk return to it the original Note and
Mortgage. Plainuff then filed the instant action on or about September 26, 2011.
5. The Defendants’ mstant Motion seeks a ruling from the Court that would; (a)
enter a final unopposed motion for summary judgment “as per the terms submitted in
case 2008-CA-013687 NC, effective March 18, 2009"; (b) transfer title and possession to
the Plaintiff effective March 18, 2009; and (c) grant the Defendants attorneys’ fees and
costs for having to defend the instant action. In addition, the Defendants move for an
award of fees pursuant to § 57.105, Florida Statutes, asserting that the instant action ts
frivolous or, alternatively, they are entitled to fees based on the underlying contractual
provisions of the Note and Mortgage.
6. After further review of the authorities cited in the Defendants’ Motion, the
Magistrate finds that there is no basis upon which to grant the relief requested. At the
hearing, Defendants’ counsel mentioned the case of In re Pratt, 462 F.3d 14 (1" Cir.
2006). In Pratt, the Court held that a creditor violated the debtors’ discharge when it
refused to release a lien on an inoperable vehicle after it had been surrendered by the
debtors in bankruptcy unless the debtors paid the outstanding loan balance in full. The
court also held, however, that merely surrendering the vehicle in a bankruptcy does not
require the creditor to repossess the vehicle, especially where 1t has no value.
7. Recently, the Bankruptcy Appellate Panel for the same federal circuit had the
opportunity to consider the same arguments in a bankruptcy action in which the debtors
surrendered their real property. See In re Canning, 462 B.R. 258 (BAP 1* Cir. 2011).
Ultimately, the Canning pancl affirmed the bankruptcy court’s holding that a creditor did
not violate the Cannings’ discharge order when it refused to foreclose on the
“underwater” property and committed no violation by failing to release its len on the
property. [d. at 265-268.
2
The Cannings’ arguments on appeal ere aumilar to those advanced here by the Parkers, Le.. the
creditor's conduct effectively cradicates the debtor's right to surrender and keeps them mndefimtely from
28. The other cases cited m Defendants’ Motion are not on point. The
Defendants have shown no intentional misconduct by Citimortgage in this action. See
e.g. Florida Nat'l Bank of Miami v. Bankatlantic, 489 So. 24 255 (Fla. 1991). There has
not yet been any judgment in favor of Citimortgage in order that a writ of possession
could be issued. See Cohen v. Ginsberg, 715 So. 24 1113 (Fla. 4" DCA 1998). This case
does not involve a willful violation of the automatic stay by the creditor. See Fleet
Mortgage Group v. Kaneb, 196 F.3d 265 (1* Cir. 1999).
9. In sum, Defendants’ equitable arguments would be better made in defense of
the merits of this action. Otherwise, the Motion provides no grounds upon which the
Magistrate can recommend dismissal, i.e, the Complaint states a legally sufficient claim
for foreclosure. Of note, however, there appears to be nothing irnpeding the Plaintiff
from moving swiftly in this action toward judgment. The Defendants vacated this
property some three years ago and have reportedly already been discharged from the
undertying debt in their bankruptcy. Accordingly, the Magistrate would urge the Plaintiff
to pursue this action with diligence and take action within the next 60 days to move the
case toward final judgment.
Based upon the above-stated findings, the Magistrate submits the following
Recommended Order for approval by the Court:
Recommendcd Order
1. Defendants’ Motion for Court Order Deeming Possession & Title
Transferred to Plaintiff is DENIED without prejudice.
2. The Complaint states a legally sufficient cause of action, and the
Defendants shall file an answer within 20 days of the date the Court
adopts this Recommended Order as final.
3. Otherwise, the parties shall be guided by the findings of the Magistrate set
forth above.
Please take motice that pursuant to Rule 1.490(h), the parties to this cause
have tem (10) days from the date of service of this Recommended Order to serve
exceptions to its comtents. The party filing exceptions is required to send copies of
p_ exceptions directly to the Judge assigmed to this case, as well as to the
undersigned Miggistrate. The party filing exceptions will be required to provide the
Court with a record sufficient to support thelr exceptions or the exceptions will be
denied. A record ordimarily imcludes es writtem transcript of all relevant
proceedings. The party filing the exceptions must have the tramscript prepared for
the court’s review. If exceptions are timely filed, they shall be heard om reasomable
rare rt PAP EY IY SN i BP ayer AT PANY adr
achieving the “fresh start” a discharge ts supposed to provide. The Cannings also argued that the creditor’s
refusal to foreclosure forced them to continue to spend sums to secure the property against vandalem and
also caused them emotional turmoil. fd at 263.notice by either party or the court. If no exceptions are filed withim tem (10) days
from the date of service, the Court shall take appropriate action om the report.
cc: Benjamin Ladouceur, Esq.
Morms|Handwick|Schneider, LLC
$110 E1senhower Blvd., Suite 120
Tampa, FL 33634
Ha Thu Dao, Esq.
Grand Central Law, PLLC
P.O. Box 7382
Lakeland, FL 33807
Sent to Clerk for flung on setfi
Maited to partes on joa}}o
Be
Deborah ALI “BI
itey, A § 4
Fwelfth Judicial Cirga
pane ee eae eee eee
oo
Fmd
ee
Cea
TT
tee
Pie ee
ernie
ore;
ot
Aes
Books
oA a ae
Brat ite neat rare
Soles
on
Sees
Sra neater it et
Rp han ae eee
So ae
RTA A
ater
mA
ees
arena ee
eves
a poe
SGT
PES
Re ee ae re re ee oid
Ey
ee ee ee
Bh
i2011 CA 7792
CITIMORTGAGE V. PARKER
COPIES MAILED TO:
BENJAMIN LADOUCEUR, ESQ.
MORRIS{HARDWICKISCHNEIDER, LLC
5110 EISENHOWER BLVD., SUITE 120
TAMPA, FL 33634
HA THU DAO, ESQ.
GRAND CENTRAL LAW, PLLC
P.O. BOX 7382
LAKELAND, FL 33807EXHIBIT “B”I S i | t j
NGA LAREN d Ltt FIDO AK OSLE TEM MACK MALTON LEE MA SIMMER RETAIS SOc neT NON RCRA SE EMA EN TY Fe ae eT ee Ee ea el LT yeaa PE? EE ee
From: Ha Dao
Sent: Sunday, November 23, 2014 11:34 AM
To: Ira Silverstein
Cc: Gus Centrone; Brian Shrader; Dawn Parker
Subject: SERVICE OF COURT DOCUMENT - CASE NUMBER 582011CA007792XXXANC
Attachments: Exhibits to Motion.pdf; Motion for Fees and Costs.pdf
Twelve Judicial Circuit of Florida, Sarasota Circuit Court, Civil, Case
#2011CA007792
Movant: Defendants David Parker and Dawn Parker
Title of document: Motion for Fees and Costs and Exhibits pursuant to Florida Statute 57.105 (1)
under safe harbor provision
Service upon: Ira Scot Silverstein, Esq. at ira@isslawyer.com
Mr. Silverstein, enclosed please find the Parkers' Motion for Fees and Costs with exhibits in
compliance with the safe harbor requirements under Sec. 57.105(1).
Please be advised that independently, the Parkers can bring a motion for
sanctions pursuant to (7) of the statute without having to provide you with
the 21-day notice. However, we want to give you the opportunity to
withdraw your summary judgment motion as filed and to stipulate to our
request for the filing of the consented final judgment for in rem relief as
soon as practicable.
In the event that we have to file the motion, I will also file an Affidavit of
Fees and Costs.
We believe it is in the interest of all parties involved to conclude the
foreclosure action as soon as possible. Please advise of your intention and
I will be happy to draft a consent/stipulation for your signature for entry of
the consented final judgment. We are not objecting to your filling in the
actual numbers for purpose of the foreclosure sale by your client.
{ await your response.Ha Thu Dao, Esq.
Licensed to practice in FL & WA
AV rated
Member of NACA & NACBA
Grad of the Max Gardner's Litigation Boot Camp
Direct Phone: (727) 269-9334
Direct Fax: (727) 264-2447
GRAND CENTRAL LAW, PLLC
787 Maynard Ave South
Seatile, WA 98104
GRAND CENTRAL LAW, PLLC
907 22nd Ave N
Saint Petersburg, FL. 33704
NOTE:The information contained in this electronic e-mail transmission and any attachments are intended only for the use of the individual or entity to whom or to
which it is addressed, and may contain information that is privileged, confidential and exempt from disclosure under applicable law. If the reader of this
communication is not the intended recipient, or the employee or agent responsible for delivering this communication to the intended recipient, you are
hereby notified that any dissemination, distribution, copying or disclosure of this communication and any attachment is strictly prohibited. If you have
received this transmission in error, please notify the sender immediately by telephone or electronic mail, and delete the original communication and any
attachment from any computer, server or other electronic recording or storage device or medium. Receipt by anyone other than the intended recipient is
not a waiver of any attorney-client, physician-patient or other privilege. Thank you.EXHIBIT “C”Print Civil Detail Page 1 of 2
| CLERKNET 2.2
3 A
| Civit INQUIRY DETAIL :
Aaa eRam acoso O RETINOIC ENON ES
CASE DETAILS
Case Number: 2011 CA 007792 NC Uniform Case Number: 5$82011CA0077920000NC
Judge: BONNER KIMBERLY CARLTON Filing Date: 9/26/2011
DOCKET INFORMATION
Date Description Pages image
12/9/2014 NOTICE OF HEARING - AMENDED 2 View
11/25/2014 *** CANCELLED - COURT EVENT SET EVENT: MOTIONS DATE: Dec 15 2014 9:00AM JUDGE: BONNER, KIMBERLY CARLTON
LOCATION: JACS
11/25/2014 COURT EVENT SET EVENT: MOTIONS DATE: Dec 30 2014 10:00AM JUDGE: BONNER, KIMBERLY CARLTON LOCATION:
JACS
11/23/2014 FORECLOSURE -~ FINAL JUDGMENT PROPOSED 33 View
11/23/2014 NOTICE-HEARING 2 View
11/23/2014 MOTION TO SHOW CAUSE FOR CONTEMPT AND ENTRY OF FIN CONSENTED JUDGMENT 8 View
11/21/2014 COURT EVENT SET EVENT: MOTIONS DATE: Dec 15 2014 9:00AM JUDGE: BONNER, KIMBERLY CARLTON LOCATION: JACS
11/21/2014 *** CANCELLED - COURT EVENT SET EVENT: MOTIONS DATE: Dec 1 2014 10:00AM JUDGE: BAILEY, DEBORAH LOCATION:
JACS
11/21/2014 COURT EVENT SET EVENT: MOTIONS DATE: Dec 1 2014 10:00AM JUDGE: BAILEY, DEBORAH LOCATION: JACS
11/18/2014 COURT EVENT SET EVENT: MOTIONS DATE: Dec 1 2014 10:00AM JUDGE: BAILEY, DEBORAH LOCATION: JACS
11/18/2014 NOTICE OF HEARING 2 View
11/18/2014 EXHIBIT - A - PROPOSED IN REM JUDGMENT BASED ON 2012 SETTLEMENT AGREEMENT 20 View
11/18/2014 MOTION - FOR ENTRY OF CONSENTED JUDGMENT 7 View
2/10/2014 DAVID M PARKERS DECLARATION IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT AS TO THE SUBSTITUTED 6 View
PLAINTIFF PROF 2012-S1 REO | LLC
2/10/2014 EXHIBIT C . 21 View
2/10/2014 EXHIBIT INDEX 20 View
2/10/2014 DEFENDANTS OBJECTION/RESPONSE TO MOTION FOR SUMMARY JUDGMENT AS TO THE SUBSTITUTED PLAINTIFF PROF 13 View
2012-S1 REO I LLC
2/6/2014 PLAINTIFF'S AFFIDAVIT OF DEFENDANT'S INDEBTEDNESS 31 View
2/6/2014 MOTION FOR SUMMARY FINAL JUDGMENT OF FORECLOSURE AND FOR ATTORNEYS’ FEES AND COSTS 4 View
12/4/2013 ORDER GRANTING PLAINTIFF'S MOTION TO SUBSTITUTE PARTY PLAINTIFF (PROF-2012-S1 REO, LLC) 1 View
12/2/2013 CORRESPONDENCE PUBLIC- TO IRA SCOT SILVERSTEIN LLC- FROM COURT CLERK 5 View
11/26/2013 MOTION TO SUBSTITUTE PARTY PLAINTIFF 7 View
11/20/2013 MOTION TO REOPEN THE CASE AND PROCEED TO FINAL JUDGMENT 5 View
10/2/2013 CLIENT CONSENT TO SUBSTITUTION OF COUNSEL 1 View
9/20/2013 NOTICE OF APPEARANCE AS CO-COUNSEL AND DESIGNATIN OF EMAIL ADDRESS - ON BEHALF OF PLAINTIFF ATTORNEY: = 2 View
SILVERSTEIN, IRA SCOT (0009636)
10/26/2012 CONSENT - TO FINAL JUDGMENT AND WITHDRAWAL OF AFFIRMATIVE DEFENSES 2 View
7/16/2012 ORDER ADOPTING RECOMMENDED ORDER - ON THE DEFENDANTS’ RESPONSE TO COMPLAINT AND MOTION FOR COURT 7 View
ORDER DEEMING POSSESSION AND TITLE TRANSFERRED TO PLAINTIFFPrint Civil Detail Page 2 of 2
Date Dascription Pages image
7/12/2012 MOTION EXTENSION TIME 2 View
6/29/2012 RECOMMENDED ORDER OF MAGISTRATE - ON THE DEFENDANT'S RESPONSE TO COMPLAINT AND MOTION FOR COURT 5 View
ORDER DEEMING POSSESSION AND TITLE TRANSFERRED TO PLAINTIFF
6/25/2012 DEFENSE COUNSEL NOTICE ~- CHANGE OF ADDRESS 2 View
6/25/2012 ANSWER - DAVID M. PARKER AND DAWN M. PARKER 8 View
6/19/2012 DEFAULT - JP MORGAN CHASE BANK NA DEFAULT SENT ON: 06/19/2012 17:41:15 1 View
6/19/2012 PLAINTIFF'S MOTION FOR CLERK'S DEFAULT - JP MORGAN CHASE BANK NA 2 View
3/26/2012 NOTICE OF HEARING 11 View
3/23/2012 ORDER OF REFERRAL TO MAGISTRATE. 3 View
12/28/2011 SUMMONS NON SERVED - TENANT 4 View
12/28/2011 SUMMONS SERVED - JP MORGAN CHASE BANK NA 3 View
12/28/2011 SUMMONS SERVED - PARKER, DAWN M 4 View
12/28/2011 SUMMONS SERVED - PARKER, DAVID M 4 View
11/16/2011 MOTION ~- FOR COURT ORDER DEEMING POSSESSION & TITLE TRANSFERRED TO PLTF AND DEFTS RESPONSE TO 9 View
COMPLAINT
11/16/2011 NOTICE OF APPEARANCE - FOR HER ATTORNEY: DAO, HA THU (0487597) 2 View
9/26/2011 SUMMONS ISSUED - TENANT 0
9/26/2011 SUMMONS ISSUED - JP MORGAN CHASE BANK, NA 0
9/26/2011 SUMMONS ISSUED - DAWN M PARKER 0
9/26/2011 SUMMONS ISSUED - DAVID M PARKER 0
9/26/2011 LETTER - OUTSTANDING FEES FEE SHORTAGE LETTER ~ PLAINTIFF SENT ON: 09/26/2011 14:14:00 1 View
9/26/2011 COMPLAINT FORECLSE >$250,000 RECEIPT: 698325 DATE: 27-SEP-2011 31 View
9/26/2011 LIS PENDENS FILED AND RECORDED 2 View
9/26/2011 CERTIFICATE OF SETTLEMENT AUTHORITY 2 View
9/26/2011 FORECLOSURE FORM A . 6 View
9/26/2011 NOTICE TO HOMEOWNER FACING FORECLOSURE 1 View
9/26/2011 NOTICE OF VALUE 1 View
9/26/2011 SUMMONS CIRCUIT EFILED - REQUEST FOR ISSUANCE-TENANT-(NOTICE FROM THE COURT REGARDING LAWSUITS TO 3 View
FORECLOSE MORTGAGES ON HOMESTEADS NOT ATTACHED) RECEIPT: 698325 DATE: 27-SEP-2011
9/26/2011 SUMMONS CIRCUIT EFILED - REQUEST FOR ISSUANCE-JP MORGAN CHASE BANK NA-(NOTICE FROM THE COURT 3 View
REGARDING LAWSUITS TO FORECLOSE MORTGAGES ON HOMESTEADS NOT ATTACHED) RECEIPT: 698325 DATE: 27-SEP-
2011
9/26/2011 SUMMONS CIRCUIT EFILED - REQUEST FOR ISSUANCE-DAWN M PARKER-(NOTICE FROM THE COURT REGARDING 3 View
LAWSUITS TO FORECLOSE MORTGAGES ON HOMESTEADS NOT ATTACHED) RECEIPT: 698325 DATE: 27-SEP-2011
9/26/2011 SUMMONS CIRCUIT EFILED - REQUEST FOR ISSUANCE-DAVID M PARKER-(NOTICE FROM THE COURT REGARDING 3 View
LAWSUITS TO FORECLOSE MORTGAGES ON HOMESTEADS NOT ATTACHED) RECEIPT: 698325 DATE: 27-SEP-2011
9/26/2011 CIVIL COVER SHEET 2 View
Showing 1 - 57 of 57 first | prev | next | last
CLERKNET 2.2 © COPYRIGHT 2012
Preview
eFile Accepted: 12/11/2014 09:34 AM Filing # 21480714 Electronically Filed 12/10/2014 06:39:53 PM IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT IN AND FOR SARASOTA COUNTY, FLORIDA PROF-2012-S1 REO, LLC, Plaintiff, CASE NO: 2011 CA 007792 vs. DAVID PARKER, et al., Defendants. / MEMORANDUM IN OPPOSITION OF DEFENDANTS’ MOTION FOR ATTORNEYS’ FEES PURSUANT TO FLORIDA STATUTE §57.105 COMES NOW, the PLAINTIFF, PROF-2012-S1 REO, LLC, by and through its undersigned attorneys, and hereby files this, its Memorandum in Opposition to Defendants’ Motion for Attorneys’ Fees, Pursuant to Florida Statute §57.105, and sets forth: 1. On or about September 26, 2011, the instant action was filed by Citimortgage, Inc., to foreclose a mortgage on real property located in Sarasota County, Florida. 2. Plaintiff is the current owner and holder of the Note and Mortgage via Assignments of Mortgage. 3. On or about October 26, 2012, Defendants filed their Consent to Judgment and Withdrawal of Affirmative Defenses. 4. On or about September 20, 2013, the undersigned filed his Notice of Appearance as Co-Counsel for Plaintiff. 5. On or about December 4, 2013, this Honorable Court executed an Order substituting the current Plaintiff as the proper party to this action. 6. On or about February 6, 2014, Plaintiff filed its Motion for Summary Judgment, and Affidavit of Indebtedness in support of the Motion. Memorandum in Opposition to Defendants’ Motion for Attorneys’ Fees Pursuant to §57.105 Case No. 2011-CA-007729NC 109.033 — Parker Page 1 of U17. On or about February 10, 2014, the Defendants filed their Objection and Response to Plaintiff’s Motion for Summary Judgment. 8. Subsequent to the filing of this Motion, Defendants instituted a federal action against the Plaintiff, as well as the undersigned, for alleged violations of the Fair Debt Collection Practices Act. The basis for their allegations is that the Plaintiff, as well as the undersigned, were seeking an in personum judgment against the Defendants in the instant action in violation of a bankruptcy discharge order they previously received. As a result, the undersigned placed this matter on hold, with the Plaintiff’s permission, so as not to incur any additional counts for this federal action, and to await its resolution. 9, On or about November 18, 2014, the Defendants filed their Motion for Entry of Consent Judgment requesting the Court to enter a Consent Judgment in the form attached to the Motion as Exhibit “A”. 10. On or about November 23, 2014, Defendants filed the instant Motion for Attorneys’ Fees Pursuant to Florida Statute §57.105, as well as a Motion to Show Cause for Contempt and for Entry of Final Consented Judgment, against the Plaintiff, and the undersigned attomey. 11. The gravamen of these (2) Motions is that the Plaintiff, and Plaintiff’s attorney (the undersigned), failed to: 1) comply with the General Magistrate’s Recommended Order dated June 29, 2012, requiring the Plaintiff at the time, Citimortgage, Inc., to conclude this matter within sixty (60) days’; and 2) that Plaintiff is seeking an in personum judgment based upon the allegation that it is seeking the entire indebtedness secured by the mortgage. 12. Plaintiff, as well as the undersigned, object to the Defendants’ Motion as it is has ' Plaintiff, and the undersigned counsel, strenuously disagree that the Magistrate’s Recommend Order required the Plaintiff to obtain Judgment within sixty (60) days. Plaintiff is merely reiterating what the Defendants’ argument is within their Motions. Memorandum in Opposition to Defendants’ Motion for Attorneys’ Fees Pursuant to §57.105 Case No. 2011-CA-007729NC 109.033 — Parker Page 2 of 11no basis in law or fact, misstates the facts of the case, and fails to comply with the requirements of §57.105. MEMORANDUM OF LAW L DEFENDANTS HAVE FAILED TO STATE ADEQUATE GROUNDS TO AWARD ATTORNEYS’ FEES PURSUANT TO FLORIDA STATUTE §57.105 Defendants’ Motion for Attorneys’ Fees has failed to state any grounds for this Honorable Court to consider awarding attorneys’ fees under Florida Statute §57.105, let alone any adequate grounds. Defendants’ Motion is baseless in both law and fact and has been merely filed to force the Plaintiff, and the undersigned, into an untenable position with respect to the pending federal action. A. Standard for Awarding Fees Pursuant to Florida Statute §57.105 Florida Statute §57.105 , States, in pertinent part: § 57.105. Attorney's fee; sanctions for raising unsupported claims or defenses; exceptions; service of motions; damages for delay of litigation. (1) Upon the court's initiative or motion of any party, the court shall award a reasonable attorney's fee, including prejudgment interest, to be paid to the prevailing party in equal amounts by the losing party and the losing party's attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party's attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial: (a) Was not supported by the material facts necessary to establish the claim or defense; or (b) Would not be supported by the application of then-existing law to those material facts. (2) At any time in any civil proceeding or action in which the moving party proves by a preponderance of the evidence that any action taken by the opposing party, including, but not limited to, the filing of any pleading or part thereof, the assertion of or response to any discovery demand, the assertion of any claim or defense, or the response to any request by any other party, was taken primarily for the purpose of unreasonable delay, the court shall award damages to the moving party for its reasonable expenses incurred in obtaining the order, which may include attorney's fees, and other loss resulting from the Memorandum in Opposition to Defendants’ Motion for Attorneys’ Fees Pursuant to §57.105 Case No. 2011-CA-007729NC 109.033 — Parker Page 3 of 11improper delay. (3) Notwithstanding subsections (1) and (2), monetary sanctions may not be awarded: (a) Under paragraph (1)(b) if the court determines that the claim or defense was initially presented to the court as a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, as it applied to the material facts, with a reasonable expectation of success. (b) Under paragraph (1)(a) or paragraph (1)(b) against the losing party's attorney if he or she has acted in good faith, based on the representations of his or her client as to the existence of those material facts. (c) Under paragraph (1)(b) against a represented party. (d) On the court's initiative under subsections (1) and (2) unless sanctions are awarded before a voluntary dismissal or settlement of the claims made by or against the party that is, Or whose attorneys are, to be sanctioned. Defendants are seeking attorneys’ fees pursuant to §57.105 (1) (a-b), claiming that the Plaintiff, and the undersigned knew, or should have known, that the Motion for Summary Judgment was not supported by the material facts necessary to establish the Plaintiff’s claim, or by the application of the current existing law to the material facts. Defendants’ allegations are that the Motion for Summary Judgment cannot be sustained by the Plaintiff because the Plaintiff, and Plaintiff’s counsel (the undersigned), knew that it could not seek an in personum judgment against the Defendants due to the bankruptcy discharge order. [A] review of Florida case law reveals that there are established guidelines for determining when an action is frivolous. These include where a case is found: (a) to be completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (b) to be contradicted by overwhelming evidence; (c) as having been undertaken primarily to delay or prolong the resolution of the litigation, or (c) [sic] as asserting material factual statements that are false. Palm Beach Polo Holdings, Inc., v. Stewart Title Guaranty Co., 134 So. 3d 1073, 1078 (Fla. 4" DCA, 2014; citing Yakavonis v. Dolphin Petroleum, Inc., 934 So. 2d 615, 619 (Fla. 4" DCA, 2006 (quoting Wendy’s of Ne. Fla., Inc.. v. Vandereriff, 865 So. 2d 520 [Fla. 1° DCA, 2003}). Memorandum in Opposition to Defendants’ Motion for Attorneys’ Fees Pursuant to §57.105 Case No. 2011-CA-007729NC 109.033 — Parker Page 4 of 11B. Defendants have fail to satisfy the standard for seeking Attorneys’ Fees Pursuant to Florida Statute §57.105 Defendants’ argument that Plaintiff, or its counsel, were trying to improperly seek an in personum judgment because the Motion for Summary Judgment states that it was seeking “the entire indebtedness secured by the mortgage held by Plaintiff’ clearly misunderstand the nature of a foreclosure action, and misinterprets the language of the Motion for Summary Judgemnt, itself. A foreclosure action is strictly an in rem action as it seeks to have the court to act directly on the title to the property to convert a lien interest against a land title to a legal title to the land. Publix Super Markets, Inc., v. Cheesbro Roofing, Inc., 502 So. 2d 484. (Fla. 5" DCA, 1987). A foreclosure action, by its definition, does not seek an in personum judgment. The foreclosure judgment is, in essence, a judgment allowing the sale of the property. More importantly, however, the judgment contains the liquidated amount of damages that is owed to the Plaintiff as a result of the default. The liquidated damages acts as a credit to the Plaintiff in the foreclosure sale. In order for the damages to be liquidated, the Plaintiff is required to submit Affidavits in order for the Court to determine the amounts that are due and owing pursuant to the Note and Mortgage. These Affidavits in no way seek to obtain an in personum judgment against the borrowers, but merely seek to liquidate the damages. Further, in the event a borrower has been granted a discharge in bankruptcy, the bankruptcy discharge acts as a bar against a secured creditor for all amounts not secured by the value of the collateral. In terms of a foreclosure, a lender, such as the Plaintiff, would be entitled to “the entire indebtedness secured by the mortgage”. The mortgage would only seek to secure the amount up to the actual value of the real property. The bankruptcy discharge would then act as a bar to the lender to seek any amounts not covered by the value of the property from the Memorandum in Opposition to Defendants’ Motion for Attorneys’ Fees Pursuant to §57.105 Case No. 2011-CA-007729NC 109.033 — Parker Page 5 of 11judicial sale. However, that amount is not known until the property is sold. Notwithstanding the foregoing, in order for the lender to obtain an in personum judgment, the lender would either have to file a separate Motion with the Court, or file a completely separate action seeking damages. In the case at bar, Plaintiff’s Motion and Affidavit not only are with merit in law and fact, but Plaintiff had absolute grounds for seeking a Summary Judgment as the Defendants consented to the entry of the judgment when they filed their written consent on October 26, 2012. Defendants’ interpretation that the Motion for Summary Judgment seeks an in personum judgment is erroneous. The Motion clearly states it is seeking to liquidate its damages so it may obtain a judgment and have the property sold at judicial sale. There 1s nothing in the Motion, or the Affidavit, nor can the Defendants specifically cite to any portion thereof, which states that the Plaintiff is seeking, or is entitled to, an in personum judgment. The Defendants’ misinterpretation, as well as Defendants’ counsel’s failure to properly understand the nature of foreclosure proceedings does not, ipso facto, make Plaintiff’s Motion and Affidavit a violation of the bankruptcy discharge or an intent to seek an in personum judgment. Further, the Defendants’ allegation that the entire underlying debt had been discharged in bankruptcy” is clearly in direct contravention of the bankruptcy law. A bankruptcy discharge does not release a debtor from a secured debt. It only acts as a bar to collect monies owed for any unsecured debt. The discharge will bar collection of any debt in excess of the value of the collateral with respect to a secured debt. Accordingly, as in the instant case, the Defendants’ discharge will only act as a bar against collection of the deficiency portion of real property after a foreclosure sale. * See, paragraph 3 of the Defendants’ Motion, which states “Because the underlying debt or Note has been discharged in bankruptcy...” Memorandum in Opposition to Defendants’ Motion for Attorneys’ Fees Pursuant to §57.105 Case No. 2011-CA-007729NC 109.033 — Parker Page 6 of il“yr As an additional ground for seeking their attorneys’ fees, the Defendants allege that Plaintiff, and Plaintiff’s counsel, have failed to comply with the Magistrate’s June 29, 2012, Recommend Order. The Defendants allege that the Magistrate required the Plaintiff to bring the instant matter to a final judgment within sixty (60) days. The Defendants completely misquote the Magistrates findings, and intentionally have misled this Honorable Court. The Magistrate’s findings state that there is “nothing impeding the Plaintiff from moving swiftly” to bring matter to judgment and that the Magistrate urged the Plaintiff “to pursue this action with diligence and take action within sixty (60) days to move the case toward final judgment.” A true and correct copy of the Magistrate’s Recommend Order is attached hereto as Exhibit “A” and incorporated herein by reference. These are the Magistrate’s exact words. There is absolutely no requirement that Plaintiff at the time, Citimortgage, Inc., obtain judgment in sixty (60) days, nor did the Magistrate recommend to the Court to Order this matter be concluded within sixty (60) days. The Magistrate’s Recommended Order is clear and unambiguous on its face, and the Defendants have completely distorted the plain meaning of the Magistrate’s findings. Accordingly, Defendants’ position is completely fabricated on this point. Therefore, it cannot form the basis for any Motion for Attorneys’ Fees whether under subsection (1) of §57.105. It is clear, based upon the allegations stated in the Defendants’ Motion, they are upset that this matter has not been concluded and have been utilizing both this action, as well as the federal action, as a means of extracting a pound of flesh for their woes. The Defendants’ imagined slights cannot substantiate their contention that Plaintiff acts were not supported by the material facts necessary to establish its claim; or would not be supported by the application of the existing law to the current material facts. Memorandum in Opposition to Defendants’ Motion for Attorneys’ Fees Pursuant to §57.105 Case No. 2011-CA-007729NC 109.033 — Parker Page 7 of 11C. Defendants have failed to strictly comply with the safe harbor provisions of Florida Statute $57.105 Florida Statute §57.105 (4) states as follows: (4) A motion by a party seeking sanctions under this section must be served but may not be filed with or presented to the court unless, within 21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. In order for the Defendants to seek fees pursuant to Florida Statute §57.105 (1)(a-b), they were required to serve a copy of the Motion twenty-one (21) days before they filed it with the Court. Defendants failed to comply with this requirement. Defendants provided the undersigned with an e-mail dated November 23, 2014, wherein Defendants’ attorney attaches a copy of the instant Motion in alleged compliance with the safe harbor provisions of the Statute. A true and correct copy of the e-mail is attached as Exhibit “B” and incorporated herein by reference. However, instead of waiting the twenty-one (21) days as required by the Statute, and as stated in the e-mail, Defendants, and their attorney, filed the instant Motion with the Court on November 25, 2014. A true and correct copy of the Docket is attached as Exhibit “C” and incorporated herein by reference. “As section 57.105 authorizes an award of attorney’s fees in derogation of common law, it must be strictly construed.” Matte v. Caplan, 140 So. 3d 686, 689. (Fla. 4" DCA, 2014). Defendants have failed to strictly comply with the Statute by filing the Motion for Attorneys’ Fees less than forty-eight (48) hours after providing it to the Plaintiff’s counsel. Therefore, the Defendants’ Motion, by failing to comply with the Statute, should be denied sua sponte. Il. DEFENDANTS’ CLAIM FOR ATTORNEYS’ FEES PURSUANT TO FLORIDA STATUTE §57.105 (7) IS PREMATURE As additional grounds for seeking attorneys’ fees and costs, Defendants state they are Memorandum in Opposition to Defendants’ Motion for Attorneys’ Fees Pursuant to §57.105 Case No. 2011-CA-007729NC 109.033 — Parker Page 8 of 11entitled to the reciprocity provisions of the Statute set forth in subsection (7), which states that any contract which provides for fees for one party, will be awarded to the other, if that party prevails in the underlying action. “The party prevailing on the ‘significant issues’ in the litigation is the party that should be considered the prevailing party for attorneys’ fees.” Schoenlank v. Schoenlank, 128 So. 3d 118, 121. (Fla. 3K DCA, 2013). In the instant case, the Defendants are claiming that they are entitled to attorneys’ fees based upon the “settlement agreement” entered into by Citimortgage, and the Defendants. However, without a copy of that settlement agreement, and knowing what the terms of the settlement were, it 1s difficult for the Plaintiff to argue that the Defendants were the prevailing party to this action. Further, the instant Motion does not seek to enforce the alleged executed agreement. The Motion merely states that the Defendants are entitled to attorneys’ fees pursuant to that agreement. Moreover, the Defendants have not interposed any allegations in any pleading filed with this Honorable Court that the current Plaintiff is bound by the alleged executed agreement. Accordingly, their claims for attorneys’ fees pursuant to this alleged executed document are ineffective against this Plaintiff, as it has not adopted the terms of the resolution. Interestingly, if the Defendants were to argue that Plaintiff is bound by the terms of this agreement due to its position as the owner of the loan, Plaintiff would be entitled to review a copy of the settlement agreement and not have to seek the Court to review it, in camera. Further, the Defendants would have provided the Plaintiff with a copy of this document, and, in fact, would be required to file it with the Court, and provide the Plaintiff a copy. The fact that Defendants have failed to do either significantly reveals their lack of faith in their arguments, and only augments the Plaintiff’s position that this Motion has been filed as a means of using this action against the Plaintiff and Plaintiff’s counsel in the federal action. Memorandum in Opposition to Defendants’ Motion for Attorneys’ Fees Pursuant to §57.105 Case No. 2011-CA-007729NC 109.033 — Parker Page 9 of 11ll. CONCLUSION Based on the foregoing, the Defendants’ Motion for Attorneys’ Fees Pursuant to Florida Statute §57.105, should be denied, and attorneys’ fees and costs should be awarded to the Plaintiff by the Defendants and Defendants’ counsel as sanctions for having to prepare the instant Memorandum, and argue against their baseless Motion. WHEREFORE, the Plaintiff, PROF-2012-S1 REO, LLC, respectfully requests this Honorable Court to deny the Defendants’ Motion, award attorneys’ fees to the Plaintiff by the Defendants and Defendants’ counsel as sanctions for having to prepare the instant Memorandum, and argue against their Motion, plus for any and all other relief this Honorable Court deems necessary and just. CERTIFICATE OF SERVICE ] HEREBY CERTIFY that a true and correct copy of the foregoing was mailed via First Class, U.S. Mail or via e-mail, as indicated, to the people on the attached service list on this 10" day of December, 2014. IRA SCOT SILVERSTEIN, LLC COUNSEL FOR PLAINTIFF 2900 West Cypress Creek Road, Suite 6 Fort Lauderdale, Florida 33309 (954) 773-9911 (954) 369-5034 Fax service@isslawyer.com By:/s/ Ira Scot Silverstein, Esq. Ira Scot Silverstein, Esq. FBN: 0009636 Memorandum in Opposition to Defendants’ Motion for Attorneys’ Fees Pursuant to §57.105 Case No. 2011-CA-007729NC 109.033 — Parker Page 10 of 11SERVICE LIST CASE NO: 2011-CA-007792 Ha Thu Dao, Esq. Grand Central Law, PLLC P.O. Box 7382 Lakeland, FL 33087 youremylawyer@gmail.com Memorandum in Opposition to Defendants’ Motion for Attorneys’ Fees Pursuant to §57.105 Case No. 2011-CA-007729NC 109.033 — Parker Page Li of 11EXHIBIT “A”IN THE CORCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT [IN AND FOR SARASOTA COUNTY, FLORIDA . no orn corn a we, am SR «&s> =, ca we — «<> . oo. er * a as = “or, —_ 8S :6 WY 62Nnr £182 Wd0usu wos OFZ CITUMORTGAGE, INC. = cS cc Palen chfy, v8. CASE NO. 2011 CA 007792 NC DAVID M. PARKER, et al., Defendants. f RECOMMENDED ORDER OF MAGISTRATE This cause came on for hearing before Magistrate Deborah A. Bailey, on June 12, 2012, on the Defendants’ Response to Complaint and Motion for Court Order Deeming Possession and Title Tramsferred to Plaintiff. The Magistrate has jurisdiction pursuant to Rule 1.490 of the Flonda Rules of Civit Procedure. Being fully advised in the premises, the Magistrate reports as follows: This foreclosure action was filed on or about September 26, 2011. The I. On November 16, 2011, the Defendants were served on or about October 25, 2011. Defendants filed the instant Motion. 2. Defendants’ Motion asserts the following facts that were not controverted by the Plaintiff at the hearing. This 1s not the first time the Plamtiff has filed a foreclosure action against the Defendants. Plaintff, through the Law Offices of David J. Stern, originally filed a foreclosure against the Defendants in 2008, in a case styled as Citimortgage, Inc., Successor by Merger to Citi Financial Mortgage Company Inc. v. Parker, et al., Case No. 2008 CA 013687 NC. The Parkers did not defend this suit and, in fact, filed a Chapter 7 bankruptcy proceeding in the U.S. Bankruptcy Court for the In the bankruptcy case, the Middle District of Florida under Case No. 8:08-bk- 19857 - they moved out of the property Parkers mdicated their ntent to surrender the property and ultimately moved to Illinois to seek employment. The Bankruptcy Court granted a The returns of service in the file w the mstant action indicate that the Parkers were served by personal and substituted service tn Highiand, Hlunois, on or about October 25, 2011 _.discharge to the Parkers on or about March 26, 2009. At that time, the 2008 foreciosure case remained pending in Sarasota County. 3. Because of no action in the 2008 case, the Clerk issued a Notice of Hearing for Lack of Prosecution on August 26, 2010, which set the matter for hearing on November 22, 2010. After the Notice was issued, the Plaintiff took steps to move the case forward by filing its Motion for Summary Judgment and associated affidavits. Plaintsff also obtained a Clerk's Default against the Parkers. As a result of the Plaintiff's actions, the Court entered an Order finding that good cause existed to leave the action open. The Court's Order scheduled a status conference for January 3, 2011, and specifically warned the parties that a failure to appear “may result in dismissal of the case.” The Plaintiff as a party secking affirmative relief was specifically directed to appear. On January 3, 2011, no one appeared, and the Court dismissed the action without preyudice for lack of prosecution. 4. On or about May 25, 2011, counsel for the Plaintiff in the present action filed a Motion in the 2008 action requesting the Clerk return to it the original Note and Mortgage. Plainuff then filed the instant action on or about September 26, 2011. 5. The Defendants’ mstant Motion seeks a ruling from the Court that would; (a) enter a final unopposed motion for summary judgment “as per the terms submitted in case 2008-CA-013687 NC, effective March 18, 2009"; (b) transfer title and possession to the Plaintiff effective March 18, 2009; and (c) grant the Defendants attorneys’ fees and costs for having to defend the instant action. In addition, the Defendants move for an award of fees pursuant to § 57.105, Florida Statutes, asserting that the instant action ts frivolous or, alternatively, they are entitled to fees based on the underlying contractual provisions of the Note and Mortgage. 6. After further review of the authorities cited in the Defendants’ Motion, the Magistrate finds that there is no basis upon which to grant the relief requested. At the hearing, Defendants’ counsel mentioned the case of In re Pratt, 462 F.3d 14 (1" Cir. 2006). In Pratt, the Court held that a creditor violated the debtors’ discharge when it refused to release a lien on an inoperable vehicle after it had been surrendered by the debtors in bankruptcy unless the debtors paid the outstanding loan balance in full. The court also held, however, that merely surrendering the vehicle in a bankruptcy does not require the creditor to repossess the vehicle, especially where 1t has no value. 7. Recently, the Bankruptcy Appellate Panel for the same federal circuit had the opportunity to consider the same arguments in a bankruptcy action in which the debtors surrendered their real property. See In re Canning, 462 B.R. 258 (BAP 1* Cir. 2011). Ultimately, the Canning pancl affirmed the bankruptcy court’s holding that a creditor did not violate the Cannings’ discharge order when it refused to foreclose on the “underwater” property and committed no violation by failing to release its len on the property. [d. at 265-268. 2 The Cannings’ arguments on appeal ere aumilar to those advanced here by the Parkers, Le.. the creditor's conduct effectively cradicates the debtor's right to surrender and keeps them mndefimtely from 28. The other cases cited m Defendants’ Motion are not on point. The Defendants have shown no intentional misconduct by Citimortgage in this action. See e.g. Florida Nat'l Bank of Miami v. Bankatlantic, 489 So. 24 255 (Fla. 1991). There has not yet been any judgment in favor of Citimortgage in order that a writ of possession could be issued. See Cohen v. Ginsberg, 715 So. 24 1113 (Fla. 4" DCA 1998). This case does not involve a willful violation of the automatic stay by the creditor. See Fleet Mortgage Group v. Kaneb, 196 F.3d 265 (1* Cir. 1999). 9. In sum, Defendants’ equitable arguments would be better made in defense of the merits of this action. Otherwise, the Motion provides no grounds upon which the Magistrate can recommend dismissal, i.e, the Complaint states a legally sufficient claim for foreclosure. Of note, however, there appears to be nothing irnpeding the Plaintiff from moving swiftly in this action toward judgment. The Defendants vacated this property some three years ago and have reportedly already been discharged from the undertying debt in their bankruptcy. Accordingly, the Magistrate would urge the Plaintiff to pursue this action with diligence and take action within the next 60 days to move the case toward final judgment. Based upon the above-stated findings, the Magistrate submits the following Recommended Order for approval by the Court: Recommendcd Order 1. Defendants’ Motion for Court Order Deeming Possession & Title Transferred to Plaintiff is DENIED without prejudice. 2. The Complaint states a legally sufficient cause of action, and the Defendants shall file an answer within 20 days of the date the Court adopts this Recommended Order as final. 3. Otherwise, the parties shall be guided by the findings of the Magistrate set forth above. Please take motice that pursuant to Rule 1.490(h), the parties to this cause have tem (10) days from the date of service of this Recommended Order to serve exceptions to its comtents. The party filing exceptions is required to send copies of p_ exceptions directly to the Judge assigmed to this case, as well as to the undersigned Miggistrate. The party filing exceptions will be required to provide the Court with a record sufficient to support thelr exceptions or the exceptions will be denied. A record ordimarily imcludes es writtem transcript of all relevant proceedings. The party filing the exceptions must have the tramscript prepared for the court’s review. If exceptions are timely filed, they shall be heard om reasomable rare rt PAP EY IY SN i BP ayer AT PANY adr achieving the “fresh start” a discharge ts supposed to provide. The Cannings also argued that the creditor’s refusal to foreclosure forced them to continue to spend sums to secure the property against vandalem and also caused them emotional turmoil. fd at 263.notice by either party or the court. If no exceptions are filed withim tem (10) days from the date of service, the Court shall take appropriate action om the report. cc: Benjamin Ladouceur, Esq. Morms|Handwick|Schneider, LLC $110 E1senhower Blvd., Suite 120 Tampa, FL 33634 Ha Thu Dao, Esq. Grand Central Law, PLLC P.O. Box 7382 Lakeland, FL 33807 Sent to Clerk for flung on setfi Maited to partes on joa}}o Be Deborah ALI “BI itey, A § 4 Fwelfth Judicial Cirga pane ee eae eee eee oo Fmd ee Cea TT tee Pie ee ernie ore; ot Aes Books oA a ae Brat ite neat rare Soles on Sees Sra neater it et Rp han ae eee So ae RTA A ater mA ees arena ee eves a poe SGT PES Re ee ae re re ee oid Ey ee ee ee Bh i2011 CA 7792 CITIMORTGAGE V. PARKER COPIES MAILED TO: BENJAMIN LADOUCEUR, ESQ. MORRIS{HARDWICKISCHNEIDER, LLC 5110 EISENHOWER BLVD., SUITE 120 TAMPA, FL 33634 HA THU DAO, ESQ. GRAND CENTRAL LAW, PLLC P.O. BOX 7382 LAKELAND, FL 33807EXHIBIT “B”I S i | t j NGA LAREN d Ltt FIDO AK OSLE TEM MACK MALTON LEE MA SIMMER RETAIS SOc neT NON RCRA SE EMA EN TY Fe ae eT ee Ee ea el LT yeaa PE? EE ee From: Ha Dao Sent: Sunday, November 23, 2014 11:34 AM To: Ira Silverstein Cc: Gus Centrone; Brian Shrader; Dawn Parker Subject: SERVICE OF COURT DOCUMENT - CASE NUMBER 582011CA007792XXXANC Attachments: Exhibits to Motion.pdf; Motion for Fees and Costs.pdf Twelve Judicial Circuit of Florida, Sarasota Circuit Court, Civil, Case #2011CA007792 Movant: Defendants David Parker and Dawn Parker Title of document: Motion for Fees and Costs and Exhibits pursuant to Florida Statute 57.105 (1) under safe harbor provision Service upon: Ira Scot Silverstein, Esq. at ira@isslawyer.com Mr. Silverstein, enclosed please find the Parkers' Motion for Fees and Costs with exhibits in compliance with the safe harbor requirements under Sec. 57.105(1). Please be advised that independently, the Parkers can bring a motion for sanctions pursuant to (7) of the statute without having to provide you with the 21-day notice. However, we want to give you the opportunity to withdraw your summary judgment motion as filed and to stipulate to our request for the filing of the consented final judgment for in rem relief as soon as practicable. In the event that we have to file the motion, I will also file an Affidavit of Fees and Costs. We believe it is in the interest of all parties involved to conclude the foreclosure action as soon as possible. Please advise of your intention and I will be happy to draft a consent/stipulation for your signature for entry of the consented final judgment. We are not objecting to your filling in the actual numbers for purpose of the foreclosure sale by your client. { await your response.Ha Thu Dao, Esq. Licensed to practice in FL & WA AV rated Member of NACA & NACBA Grad of the Max Gardner's Litigation Boot Camp Direct Phone: (727) 269-9334 Direct Fax: (727) 264-2447 GRAND CENTRAL LAW, PLLC 787 Maynard Ave South Seatile, WA 98104 GRAND CENTRAL LAW, PLLC 907 22nd Ave N Saint Petersburg, FL. 33704 NOTE:The information contained in this electronic e-mail transmission and any attachments are intended only for the use of the individual or entity to whom or to which it is addressed, and may contain information that is privileged, confidential and exempt from disclosure under applicable law. If the reader of this communication is not the intended recipient, or the employee or agent responsible for delivering this communication to the intended recipient, you are hereby notified that any dissemination, distribution, copying or disclosure of this communication and any attachment is strictly prohibited. If you have received this transmission in error, please notify the sender immediately by telephone or electronic mail, and delete the original communication and any attachment from any computer, server or other electronic recording or storage device or medium. Receipt by anyone other than the intended recipient is not a waiver of any attorney-client, physician-patient or other privilege. Thank you.EXHIBIT “C”Print Civil Detail Page 1 of 2 | CLERKNET 2.2 3 A | Civit INQUIRY DETAIL : Aaa eRam acoso O RETINOIC ENON ES CASE DETAILS Case Number: 2011 CA 007792 NC Uniform Case Number: 5$82011CA0077920000NC Judge: BONNER KIMBERLY CARLTON Filing Date: 9/26/2011 DOCKET INFORMATION Date Description Pages image 12/9/2014 NOTICE OF HEARING - AMENDED 2 View 11/25/2014 *** CANCELLED - COURT EVENT SET EVENT: MOTIONS DATE: Dec 15 2014 9:00AM JUDGE: BONNER, KIMBERLY CARLTON LOCATION: JACS 11/25/2014 COURT EVENT SET EVENT: MOTIONS DATE: Dec 30 2014 10:00AM JUDGE: BONNER, KIMBERLY CARLTON LOCATION: JACS 11/23/2014 FORECLOSURE -~ FINAL JUDGMENT PROPOSED 33 View 11/23/2014 NOTICE-HEARING 2 View 11/23/2014 MOTION TO SHOW CAUSE FOR CONTEMPT AND ENTRY OF FIN CONSENTED JUDGMENT 8 View 11/21/2014 COURT EVENT SET EVENT: MOTIONS DATE: Dec 15 2014 9:00AM JUDGE: BONNER, KIMBERLY CARLTON LOCATION: JACS 11/21/2014 *** CANCELLED - COURT EVENT SET EVENT: MOTIONS DATE: Dec 1 2014 10:00AM JUDGE: BAILEY, DEBORAH LOCATION: JACS 11/21/2014 COURT EVENT SET EVENT: MOTIONS DATE: Dec 1 2014 10:00AM JUDGE: BAILEY, DEBORAH LOCATION: JACS 11/18/2014 COURT EVENT SET EVENT: MOTIONS DATE: Dec 1 2014 10:00AM JUDGE: BAILEY, DEBORAH LOCATION: JACS 11/18/2014 NOTICE OF HEARING 2 View 11/18/2014 EXHIBIT - A - PROPOSED IN REM JUDGMENT BASED ON 2012 SETTLEMENT AGREEMENT 20 View 11/18/2014 MOTION - FOR ENTRY OF CONSENTED JUDGMENT 7 View 2/10/2014 DAVID M PARKERS DECLARATION IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT AS TO THE SUBSTITUTED 6 View PLAINTIFF PROF 2012-S1 REO | LLC 2/10/2014 EXHIBIT C . 21 View 2/10/2014 EXHIBIT INDEX 20 View 2/10/2014 DEFENDANTS OBJECTION/RESPONSE TO MOTION FOR SUMMARY JUDGMENT AS TO THE SUBSTITUTED PLAINTIFF PROF 13 View 2012-S1 REO I LLC 2/6/2014 PLAINTIFF'S AFFIDAVIT OF DEFENDANT'S INDEBTEDNESS 31 View 2/6/2014 MOTION FOR SUMMARY FINAL JUDGMENT OF FORECLOSURE AND FOR ATTORNEYS’ FEES AND COSTS 4 View 12/4/2013 ORDER GRANTING PLAINTIFF'S MOTION TO SUBSTITUTE PARTY PLAINTIFF (PROF-2012-S1 REO, LLC) 1 View 12/2/2013 CORRESPONDENCE PUBLIC- TO IRA SCOT SILVERSTEIN LLC- FROM COURT CLERK 5 View 11/26/2013 MOTION TO SUBSTITUTE PARTY PLAINTIFF 7 View 11/20/2013 MOTION TO REOPEN THE CASE AND PROCEED TO FINAL JUDGMENT 5 View 10/2/2013 CLIENT CONSENT TO SUBSTITUTION OF COUNSEL 1 View 9/20/2013 NOTICE OF APPEARANCE AS CO-COUNSEL AND DESIGNATIN OF EMAIL ADDRESS - ON BEHALF OF PLAINTIFF ATTORNEY: = 2 View SILVERSTEIN, IRA SCOT (0009636) 10/26/2012 CONSENT - TO FINAL JUDGMENT AND WITHDRAWAL OF AFFIRMATIVE DEFENSES 2 View 7/16/2012 ORDER ADOPTING RECOMMENDED ORDER - ON THE DEFENDANTS’ RESPONSE TO COMPLAINT AND MOTION FOR COURT 7 View ORDER DEEMING POSSESSION AND TITLE TRANSFERRED TO PLAINTIFFPrint Civil Detail Page 2 of 2 Date Dascription Pages image 7/12/2012 MOTION EXTENSION TIME 2 View 6/29/2012 RECOMMENDED ORDER OF MAGISTRATE - ON THE DEFENDANT'S RESPONSE TO COMPLAINT AND MOTION FOR COURT 5 View ORDER DEEMING POSSESSION AND TITLE TRANSFERRED TO PLAINTIFF 6/25/2012 DEFENSE COUNSEL NOTICE ~- CHANGE OF ADDRESS 2 View 6/25/2012 ANSWER - DAVID M. PARKER AND DAWN M. PARKER 8 View 6/19/2012 DEFAULT - JP MORGAN CHASE BANK NA DEFAULT SENT ON: 06/19/2012 17:41:15 1 View 6/19/2012 PLAINTIFF'S MOTION FOR CLERK'S DEFAULT - JP MORGAN CHASE BANK NA 2 View 3/26/2012 NOTICE OF HEARING 11 View 3/23/2012 ORDER OF REFERRAL TO MAGISTRATE. 3 View 12/28/2011 SUMMONS NON SERVED - TENANT 4 View 12/28/2011 SUMMONS SERVED - JP MORGAN CHASE BANK NA 3 View 12/28/2011 SUMMONS SERVED - PARKER, DAWN M 4 View 12/28/2011 SUMMONS SERVED - PARKER, DAVID M 4 View 11/16/2011 MOTION ~- FOR COURT ORDER DEEMING POSSESSION & TITLE TRANSFERRED TO PLTF AND DEFTS RESPONSE TO 9 View COMPLAINT 11/16/2011 NOTICE OF APPEARANCE - FOR HER ATTORNEY: DAO, HA THU (0487597) 2 View 9/26/2011 SUMMONS ISSUED - TENANT 0 9/26/2011 SUMMONS ISSUED - JP MORGAN CHASE BANK, NA 0 9/26/2011 SUMMONS ISSUED - DAWN M PARKER 0 9/26/2011 SUMMONS ISSUED - DAVID M PARKER 0 9/26/2011 LETTER - OUTSTANDING FEES FEE SHORTAGE LETTER ~ PLAINTIFF SENT ON: 09/26/2011 14:14:00 1 View 9/26/2011 COMPLAINT FORECLSE >$250,000 RECEIPT: 698325 DATE: 27-SEP-2011 31 View 9/26/2011 LIS PENDENS FILED AND RECORDED 2 View 9/26/2011 CERTIFICATE OF SETTLEMENT AUTHORITY 2 View 9/26/2011 FORECLOSURE FORM A . 6 View 9/26/2011 NOTICE TO HOMEOWNER FACING FORECLOSURE 1 View 9/26/2011 NOTICE OF VALUE 1 View 9/26/2011 SUMMONS CIRCUIT EFILED - REQUEST FOR ISSUANCE-TENANT-(NOTICE FROM THE COURT REGARDING LAWSUITS TO 3 View FORECLOSE MORTGAGES ON HOMESTEADS NOT ATTACHED) RECEIPT: 698325 DATE: 27-SEP-2011 9/26/2011 SUMMONS CIRCUIT EFILED - REQUEST FOR ISSUANCE-JP MORGAN CHASE BANK NA-(NOTICE FROM THE COURT 3 View REGARDING LAWSUITS TO FORECLOSE MORTGAGES ON HOMESTEADS NOT ATTACHED) RECEIPT: 698325 DATE: 27-SEP- 2011 9/26/2011 SUMMONS CIRCUIT EFILED - REQUEST FOR ISSUANCE-DAWN M PARKER-(NOTICE FROM THE COURT REGARDING 3 View LAWSUITS TO FORECLOSE MORTGAGES ON HOMESTEADS NOT ATTACHED) RECEIPT: 698325 DATE: 27-SEP-2011 9/26/2011 SUMMONS CIRCUIT EFILED - REQUEST FOR ISSUANCE-DAVID M PARKER-(NOTICE FROM THE COURT REGARDING 3 View LAWSUITS TO FORECLOSE MORTGAGES ON HOMESTEADS NOT ATTACHED) RECEIPT: 698325 DATE: 27-SEP-2011 9/26/2011 CIVIL COVER SHEET 2 View Showing 1 - 57 of 57 first | prev | next | last CLERKNET 2.2 © COPYRIGHT 2012