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Filing # 164163315 E-Filed 01/05/2023 02:56:23 PM
IN THE CIRCUIT COURT OF THE
FOURTH JUDICIAL CIRCUIT, IN AND
FOR DUVAL COUNTY, FLORIDA.
CASE No. 162022CA005634XXXXMA
BANK OF NEW YORK MELLON TRUST
COMPANY, N.A. AS TRUSTEE FOR
MORTGAGE ASSETS MANAGEMENT SERIES I
TRUST,
PLAINTIFF,
VS.
MATTIE PEARL WILLIAMS, ET AL.
DEFENDANT(S).
PLAINTIFF'S MOTION FOR SUMMARY FINAL JUDGMENT OF FORECLOSURE
AND FOR AWARD OF ATTORNEYS’ FEES AND COSTS
Plaintiff, pursuant to Rule 1.510 of the Florida Rules of Civil Procedure, respectfully
moves this Court for the entry of a summary judgment in its favor and in support of its motion
states:
1. There is no genuine dispute as to any material fact in this action and Plaintiff is entitled to
a judgment as a matter of law for all relief sought in its complaint to foreclose mortgage.
The Florida Supreme Court sua sponte amended Rule 1.510 Fla. R. Civ P., effective May
1, 2021, and adopted the summary judgment standard articulated by the United States
Supreme Court in Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242 (1986); and Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 US. 574 (1986).
Our Case #: 22-001230-REV-FHA-F\162022CA005634XXXXMA\PHH
ACCEPTED: DUVAL COUNTY, JODY PHILLIPS, CLERK, 01/08/2023 09:27:34 AM
3. Accordingly, a moving party is entitled to summary judgment “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine dispute as to any material fact and that the
moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2). A
dispute of material fact is genuine “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” See Anderson 477 U.S. at 248. If the evidence
is merely colorable, or is not significantly probative, summary judgment may be
granted.” Id. at 249-50.
Further, “[T]here is no express or implied requirement that the moving party support its
motion with affidavits or other similar materials negating the opponent’s claim.” Celotex,
477 U.S. at 323. Rather, “the burden on the moving party may be discharged by
‘showing’ that there is an absence of evidence to support the nonmoving party’s case.” Jd.
at 325.
In the instant case, Defendants have failed to raise any dispute of fact or law that would
prevent the entry of a summary final judgment as provided for under Rule 1.510.
The Defendant(s) defaulted under the Promissory Note and Mortgage being foreclosed as
more particularly set forth in Plaintiff’s complaint.
Service of process has been properly perfected on defendant(s) herein.
Plaintiff is in possession of the original Promissory Note and will present the original
Promissory Note to the court. Verizzo v. Bank of New York, 28 So. 3d 976 (Fla. 2d DCA
2010); BAC Funding Consortium, Inc. v. Jean-Jacques, 28 So. 3d 936 (Fla. 2d DCA
2010).
Our Case #: 22-001230-REV-FHA-F\162022CA005634XXXXMA\PHH
9. The borrower(s) were properly sent notice prior to acceleration of the loan, and prior to
the filing of the foreclosure action, pursuant to the terms of the Note and Mortgage. If
the Note and the Mortgage provide that notice shall be given prior to acceleration, then
providing notice constitutes a condition precedent to the foreclosure. Frost v. Regions
Bank, 15 So.3d 905 (Fla. 4th DCA 2009); Laurencio y. Deutsche Bank National Trust
Company, 65 So. 3d. 1190 (Fla. 2d DCA 2011).
10 Plaintiff may assign its bid at the sale if Plaintiff is the successful bidder at the sale.
Plaintiff is entitled to assign its common law and statutory rights as a matter of law.
VSOR Industries, Inc. v. Martin Properties, Inc., 919 So, 2d 554 (Fla. 4th DCA 2005).
11 Plaintiff will rely on the following matters of law to be argued in support of its motion for
summary judgment:
a) that the record interests of the owner of the subject property and all those claiming
under the owner are inferior and subordinate to the interest of Plaintiff. Jordan v.
Sayre, 24 Fla. 1, 3 So. 329 (1888);
b) that the applicable rule governing priority of lien interests is first in time, is first in
right and accordingly Plaintiff’s mortgage takes priority over any other subsequent
claims or liens attaching to the property through mortgagors, their successors, assigns,
or tenants. BancFlorida v. Hayward, 689 So. 2d 1052 (Fla. 1997); Holly Lake Ass'n v.
Fed. Nat. Mortg. Ass'n, 660 So. 2d 266, 268 (Fla. 1995); U.S. Bank Nat. Ass'n v.
Farhood, 153 So. 3d 955, 958 (Fla. 1st DCA 2014);
°) that the entire indebtedness secured by the mortgage held by Plaintiff is due and
collectible as a matter of law. Van Huss v. Prudential Insurance Co. of America, 123
Fla. 20, 165 So. 896 (1936); Harmony Homes, Inc., v. United States ex rel. Small
Our Case #: 22-001230-REV-FHA-F\162022CA005634XXXXMA\PHH
Business Administration, 936 F. Supp. 907 (M.D. Fla. 1996), aff'd 124 F.3d 1299;
qd) that under the provisions of the mortgage instruments securing the Promissory Note,
Plaintiff is entitled to collect, as a matter of law, costs and reasonable attorneys’ fees
incident to the collection of the indebtedness as well as any sums advanced by
Plaintiff to protect or prevent the impairment of its security interest. American
Securities Co. v. Goldsberry, 69 Fla. 104, 67 So. 862 (1915), 1 A.L.R. 15; Raskin v.
Otten, 273 So. 2d 433 (Fla. 3d DCA 1973).
12. Plaintiff incorporates in this motion, non-military affidavit and/or attestation of non-
military service, affidavit of indebtedness, affidavit/attestation of costs and
affidavit/attestation of attorney’s fees.
WHEREFORE Plaintiff respectfully requests that this Court enter an order in accordance
with the above motion.
Tromberg, Morris & Poulin, PLLC
Attomey for Plaintiff
1515 South Federal Highway, Suite 100
Boca Raton, FL 33432
Telephone #: 561-338-4101
Fax #: 561-338-4077
Email: eservice@tmpplic.com
Secondary Email: e-mail@tmppllc.com
B
GMA ___
Kyle Melanson, Esq.
FBN 1017909
Our Case #: 22-001230-REV-FHA-F\162022CA005634XXXXMA\PHH
CERTIFICATE OF SERVICE
J HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished
by United States mail on January 6, 2023 or electronic mail on January 5, 2023 to the
following parties:
MATTIE PEARL WILLIAMS, 4043 Marland Street, Jacksonville, FL 32209
RIVER CITY ROOFING CORP., c/o Chad D. Bell, Registered Agent, 5018 Spring Park Road,
Jacksonville, FL 32207
John F. Rudy, III, Esq., 400 N. Tampa Street, Suite 3200, Tampa, FL 33602
USAFLM.HUD@usdoj.govDOJMDFla@hud.gov
By:
OMA __
Kyle Melanson, Esq.
FBN 1017909
Our Case #: 22-001230-REV-FHA-F\162022CA005634XXXXMA\PHH
Preview
Filing # 164163315 E-Filed 01/05/2023 02:56:23 PM IN THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT, IN AND FOR DUVAL COUNTY, FLORIDA. CASE No. 162022CA005634XXXXMA BANK OF NEW YORK MELLON TRUST COMPANY, N.A. AS TRUSTEE FOR MORTGAGE ASSETS MANAGEMENT SERIES I TRUST, PLAINTIFF, VS. MATTIE PEARL WILLIAMS, ET AL. DEFENDANT(S). PLAINTIFF'S MOTION FOR SUMMARY FINAL JUDGMENT OF FORECLOSURE AND FOR AWARD OF ATTORNEYS’ FEES AND COSTS Plaintiff, pursuant to Rule 1.510 of the Florida Rules of Civil Procedure, respectfully moves this Court for the entry of a summary judgment in its favor and in support of its motion states: 1. There is no genuine dispute as to any material fact in this action and Plaintiff is entitled to a judgment as a matter of law for all relief sought in its complaint to foreclose mortgage. The Florida Supreme Court sua sponte amended Rule 1.510 Fla. R. Civ P., effective May 1, 2021, and adopted the summary judgment standard articulated by the United States Supreme Court in Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); and Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 US. 574 (1986). Our Case #: 22-001230-REV-FHA-F\162022CA005634XXXXMA\PHH ACCEPTED: DUVAL COUNTY, JODY PHILLIPS, CLERK, 01/08/2023 09:27:34 AM 3. Accordingly, a moving party is entitled to summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2). A dispute of material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” See Anderson 477 U.S. at 248. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Id. at 249-50. Further, “[T]here is no express or implied requirement that the moving party support its motion with affidavits or other similar materials negating the opponent’s claim.” Celotex, 477 U.S. at 323. Rather, “the burden on the moving party may be discharged by ‘showing’ that there is an absence of evidence to support the nonmoving party’s case.” Jd. at 325. In the instant case, Defendants have failed to raise any dispute of fact or law that would prevent the entry of a summary final judgment as provided for under Rule 1.510. The Defendant(s) defaulted under the Promissory Note and Mortgage being foreclosed as more particularly set forth in Plaintiff’s complaint. Service of process has been properly perfected on defendant(s) herein. Plaintiff is in possession of the original Promissory Note and will present the original Promissory Note to the court. Verizzo v. Bank of New York, 28 So. 3d 976 (Fla. 2d DCA 2010); BAC Funding Consortium, Inc. v. Jean-Jacques, 28 So. 3d 936 (Fla. 2d DCA 2010). Our Case #: 22-001230-REV-FHA-F\162022CA005634XXXXMA\PHH 9. The borrower(s) were properly sent notice prior to acceleration of the loan, and prior to the filing of the foreclosure action, pursuant to the terms of the Note and Mortgage. If the Note and the Mortgage provide that notice shall be given prior to acceleration, then providing notice constitutes a condition precedent to the foreclosure. Frost v. Regions Bank, 15 So.3d 905 (Fla. 4th DCA 2009); Laurencio y. Deutsche Bank National Trust Company, 65 So. 3d. 1190 (Fla. 2d DCA 2011). 10 Plaintiff may assign its bid at the sale if Plaintiff is the successful bidder at the sale. Plaintiff is entitled to assign its common law and statutory rights as a matter of law. VSOR Industries, Inc. v. Martin Properties, Inc., 919 So, 2d 554 (Fla. 4th DCA 2005). 11 Plaintiff will rely on the following matters of law to be argued in support of its motion for summary judgment: a) that the record interests of the owner of the subject property and all those claiming under the owner are inferior and subordinate to the interest of Plaintiff. Jordan v. Sayre, 24 Fla. 1, 3 So. 329 (1888); b) that the applicable rule governing priority of lien interests is first in time, is first in right and accordingly Plaintiff’s mortgage takes priority over any other subsequent claims or liens attaching to the property through mortgagors, their successors, assigns, or tenants. BancFlorida v. Hayward, 689 So. 2d 1052 (Fla. 1997); Holly Lake Ass'n v. Fed. Nat. Mortg. Ass'n, 660 So. 2d 266, 268 (Fla. 1995); U.S. Bank Nat. Ass'n v. Farhood, 153 So. 3d 955, 958 (Fla. 1st DCA 2014); °) that the entire indebtedness secured by the mortgage held by Plaintiff is due and collectible as a matter of law. Van Huss v. Prudential Insurance Co. of America, 123 Fla. 20, 165 So. 896 (1936); Harmony Homes, Inc., v. United States ex rel. Small Our Case #: 22-001230-REV-FHA-F\162022CA005634XXXXMA\PHH Business Administration, 936 F. Supp. 907 (M.D. Fla. 1996), aff'd 124 F.3d 1299; qd) that under the provisions of the mortgage instruments securing the Promissory Note, Plaintiff is entitled to collect, as a matter of law, costs and reasonable attorneys’ fees incident to the collection of the indebtedness as well as any sums advanced by Plaintiff to protect or prevent the impairment of its security interest. American Securities Co. v. Goldsberry, 69 Fla. 104, 67 So. 862 (1915), 1 A.L.R. 15; Raskin v. Otten, 273 So. 2d 433 (Fla. 3d DCA 1973). 12. Plaintiff incorporates in this motion, non-military affidavit and/or attestation of non- military service, affidavit of indebtedness, affidavit/attestation of costs and affidavit/attestation of attorney’s fees. WHEREFORE Plaintiff respectfully requests that this Court enter an order in accordance with the above motion. Tromberg, Morris & Poulin, PLLC Attomey for Plaintiff 1515 South Federal Highway, Suite 100 Boca Raton, FL 33432 Telephone #: 561-338-4101 Fax #: 561-338-4077 Email: eservice@tmpplic.com Secondary Email: e-mail@tmppllc.com B GMA ___ Kyle Melanson, Esq. FBN 1017909 Our Case #: 22-001230-REV-FHA-F\162022CA005634XXXXMA\PHH CERTIFICATE OF SERVICE J HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by United States mail on January 6, 2023 or electronic mail on January 5, 2023 to the following parties: MATTIE PEARL WILLIAMS, 4043 Marland Street, Jacksonville, FL 32209 RIVER CITY ROOFING CORP., c/o Chad D. Bell, Registered Agent, 5018 Spring Park Road, Jacksonville, FL 32207 John F. Rudy, III, Esq., 400 N. Tampa Street, Suite 3200, Tampa, FL 33602 USAFLM.HUD@usdoj.govDOJMDFla@hud.gov By: OMA __ Kyle Melanson, Esq. FBN 1017909 Our Case #: 22-001230-REV-FHA-F\162022CA005634XXXXMA\PHH