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Filing # 89825970 E-Filed 05/20/2019 10:01:16 PM
IN THE CIRCUIT COURT OF THE
FOURTH JUDICIAL CIRCUIT, IN
AND FOR DUVAL COUNTY,
FLORIDA CIVIL DIVISION
CASE NO.: 16-2017-CA-007655-
XXXX-MA
MTGLQ INVESTORS, L.P.
Plaintiff,
Vs.
THE UNKNOWN HEIRS OR BENEFICIARIES
OF THE ESTATE OF EFFIE SMITH HILTON,
DECEASED; BANK OF AMERICA; DISCOVER
BANK; TROLAS YACE HILTON; KIMBERLY
RENEA HILTON; ANY AND ALL UNKNOWN
PARTIES CLAIMING BY, THROUGH, UNDER,
OR AGAINST THE HEREIN NAMED
INDIVIDUAL DEFENDANT(S) WHO ARE NOT
KNOWN TO BE DEAD OR ALIVE, WHETHER
SAID UNKNOWN PARTIES MAY CLAIM AN
INTEREST AS SPOUSES, HEIRS, DEVISEES,
GRANTEES, OR OTHER CLAIMANTS
Defendants. /
AMENDED MOTION FOR SUMMARY FINAL JUDGMENT
Plaintiff, MTGLQ INVESTORS, L.P. moves for entry of a Summary Final Judgment of
foreclosure in favor and present name of the Plaintiff, MTGLQ INVESTORS, L.P. in accordance
with the provisions of the Florida Rules of Civil Procedure, and in support thereof would show:
1 That the pleadings filed herein, the Affidavit attached hereto marked Exhibit C and
the original of Exhibits A and B of the Complaint, show that there is no genuine issue of any
material fact. Plaintiff shall file affidavits in support of its Attorney's Fees and Costs, if warranted,
prior to a scheduled hearing on the Motion for Summary Judgment.
2. That the mortgage sued upon by Plaintiff constitutes a valid first lien on the property
sought to be foreclosed, is in default and is superior to any right, title, interest or claim of all
Defendants and all persons and entities claiming by, through or under them.
PH #85245
ACCEPTED: DUVAL COUNTY, RONNIE FUSSELL, CLERK, 05/21/2019 03:01:49 PM.
3 That on the basis of the above grounds the Plaintiff is entitled to a Summary Final
Judgment as a matter of law. The substantial matters of law to be argued are as follows:
a. The interest of the owner of record for the property described herein is inferior and
subordinate to the interest of Plaintiff. Jordan v. Sayre, 3 So. 329 (1888).
The lien of the Plaintiff's mortgage takes priority over any other subsequent claims
or liens attaching to the property through the mortgagors, their successors, assigns
and tenants, Baron v. Aiello, 319 So.2d 198 (Fla. 3d DCA 1975); All State
Plumbing, Inc. v. Mutual Security Life Insurance Company, 537 So.2d 598 (Fla. 3d
DCA 1988); and County of Pinellas _v. Clearwater Federal Savings and Loan
Association, 214 So.2d 525 (2d DCA Florida 1968); Bancflorida v. Hayward, 689
So.2d 1052 (Fla. 1997); Cheves v. First National Bank of Gainesville, 82 So. 870
(Fla. 1920).
Plaintiff is the Mortgagee or the holder-in-due-course of the original note and
mortgage and as such has standing to foreclosure on the subject note and mortgage,
JJ. Johns v. Gillian, 134 Fla. 575, (Fla. 1938); WM _ Specialty Mortgage, LLC v.
Salomon, 889 S. 2d 922, (Fla. 4th DCA 2004).
As a matter of law, the entire indebtedness secured by the mortgage held by Plaintiff
is due and collectible. Central Trust Home Company of Elizabeth v. Lippencott,
392 So.2d 931 (Fla. 5th DCA 1980); Miceli v. Bonita Springs Golf Course, 512
So.2d 966 (Fla. 2d DCA 1987); Baader v. Walker, 153 So.2d 51 (Fla. 2d DCA
1963).
As a matter of law and pursuant to the mortgage instrument securing the promissory
note, Plaintiff is entitled to collect costs and attorney's fees incident to the collection
of indebtedness and any sums advanced to prevent the impairment of its security.
Ritch_v. Eichelberger, 13 Fla. 169 (1869 71); American Securities Co. v.
PH # 85245
Goldsberry, 67 So. 862 (Fla. 1911); and Raskin v. Otten, 273 So.2d 433 (Fla. 3d
DCA 1973).
It is well settled that an affirmative defense "must be pleaded specifically" and
"confess the facts pleaded to" in order to be properly raised. Florida Coast Ry. Co..
V. Peters, 73 So. 151, 165 (Fla. 1916). In addition, affirmative defenses must not
merely allege legal conclusions; they must allege facts in support of their
conclusions. L.B. McLeod Const. Co. V. Cooper, 134 So, 224, 225 (Fla. 1931); Zito
y. Washington Fed. Sav. & Loan Assoc. of Miami Beach, 318 So. 2d 175, 176 (Fla.
3d DCA 1975).
A "defense" under Florida law is any allegation raised that, if true, would defeat the
Plaintiff's cause of action. Martin County v. Edenfield, 609 So, 2d 27 (Fla. 1992).
The defendant must prove the factual existence of defenses and their legal
sufficiency. Id. In pleading a defense, a party "must set forth the facts in such a
manner as to reasonably inform his adversary of what is proposed to be proved in
order to provide the latter with a fair opportunity to meet it and prepare his
evidence." Zito, 318 So. 2d at 176. Moreover, in pleading affirmative defenses
"[t]he grounds on which any of the enumerated defenses are based and the
substantial matters of law intended to be argued shall be stated specifically and with
particularity in the responsive pleading or motion." Fla.R.Civ.P. 1.150(b) (emphasis
added).
Once Plaintiff tenders competent evidence to support its summary judgment motion,
a defendant is required to "come forward with counter-evidence sufficient to reveal a
genuine issue. It is not enough for defendants merely to assert that an issue does
exist." Landers _v. Milton, 370 So.2d 368, 370 (Fla. 1979). "While summary
judgments should be cautiously entered, where the material facts are not in dispute
PH # 85245
and the moving party is entitled to a judgment as a matter of law, it is the court's
duty to enter summary judgment." Castellano v. Raynor, 725 So.2d 1197, 1199 (Fla.
2d DCA 1999) (emphasis added).
An inability to produce the original promissory note and mortgage is not a material
issue of fact that should preclude entry of a summary judgment of foreclosure where
the record is devoid of any genuine issue of material fact for trial. Citibank v.
O'Donovan, 710 So.2d 654 (Fla. 3d DCA 1998).
4 Attorney for Plaintiff will offer the original note and mortgage (Exhibits A and B) to
the court upon the hearing on this motion.
NOTE: Pursuant to the Fair Debt Collection Practices Act, you are advised that this law
firm is deemed to be a debt collector attempting to collect a debt and any information obtained will
be used for that purpose.
WHEREFORE Plaintiff respectfully requests this Court enter a Final Summary Judgment
for Foreclosure against the named Defendants, award reasonable attorney fees and costs to
Plaintiff, and any other relief this Court deems just and proper.
Phelan Hallinan Diamond & Jones, PLLC
Attorneys for Plaintiff
2001 NW 64th Street, Suite 100
Ft. Lauderdale, FL 33309
Tel: 954-462-7000
Fax: 954-462-7001
Service by email: FL.Service@PhelanHallinan.com
By: /s/ Meghan K. Sullivat
Phelan Hallinan Diamond & Jones, PLLC
Meghan K. Sullivan, Esq., Florida Bar No. 1008092
Emilio R. Lenzi, Esq., Florida Bar No. 0668273
PH # 85245
Preview
Filing # 89825970 E-Filed 05/20/2019 10:01:16 PM IN THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT, IN AND FOR DUVAL COUNTY, FLORIDA CIVIL DIVISION CASE NO.: 16-2017-CA-007655- XXXX-MA MTGLQ INVESTORS, L.P. Plaintiff, Vs. THE UNKNOWN HEIRS OR BENEFICIARIES OF THE ESTATE OF EFFIE SMITH HILTON, DECEASED; BANK OF AMERICA; DISCOVER BANK; TROLAS YACE HILTON; KIMBERLY RENEA HILTON; ANY AND ALL UNKNOWN PARTIES CLAIMING BY, THROUGH, UNDER, OR AGAINST THE HEREIN NAMED INDIVIDUAL DEFENDANT(S) WHO ARE NOT KNOWN TO BE DEAD OR ALIVE, WHETHER SAID UNKNOWN PARTIES MAY CLAIM AN INTEREST AS SPOUSES, HEIRS, DEVISEES, GRANTEES, OR OTHER CLAIMANTS Defendants. / AMENDED MOTION FOR SUMMARY FINAL JUDGMENT Plaintiff, MTGLQ INVESTORS, L.P. moves for entry of a Summary Final Judgment of foreclosure in favor and present name of the Plaintiff, MTGLQ INVESTORS, L.P. in accordance with the provisions of the Florida Rules of Civil Procedure, and in support thereof would show: 1 That the pleadings filed herein, the Affidavit attached hereto marked Exhibit C and the original of Exhibits A and B of the Complaint, show that there is no genuine issue of any material fact. Plaintiff shall file affidavits in support of its Attorney's Fees and Costs, if warranted, prior to a scheduled hearing on the Motion for Summary Judgment. 2. That the mortgage sued upon by Plaintiff constitutes a valid first lien on the property sought to be foreclosed, is in default and is superior to any right, title, interest or claim of all Defendants and all persons and entities claiming by, through or under them. PH #85245 ACCEPTED: DUVAL COUNTY, RONNIE FUSSELL, CLERK, 05/21/2019 03:01:49 PM. 3 That on the basis of the above grounds the Plaintiff is entitled to a Summary Final Judgment as a matter of law. The substantial matters of law to be argued are as follows: a. The interest of the owner of record for the property described herein is inferior and subordinate to the interest of Plaintiff. Jordan v. Sayre, 3 So. 329 (1888). The lien of the Plaintiff's mortgage takes priority over any other subsequent claims or liens attaching to the property through the mortgagors, their successors, assigns and tenants, Baron v. Aiello, 319 So.2d 198 (Fla. 3d DCA 1975); All State Plumbing, Inc. v. Mutual Security Life Insurance Company, 537 So.2d 598 (Fla. 3d DCA 1988); and County of Pinellas _v. Clearwater Federal Savings and Loan Association, 214 So.2d 525 (2d DCA Florida 1968); Bancflorida v. Hayward, 689 So.2d 1052 (Fla. 1997); Cheves v. First National Bank of Gainesville, 82 So. 870 (Fla. 1920). Plaintiff is the Mortgagee or the holder-in-due-course of the original note and mortgage and as such has standing to foreclosure on the subject note and mortgage, JJ. Johns v. Gillian, 134 Fla. 575, (Fla. 1938); WM _ Specialty Mortgage, LLC v. Salomon, 889 S. 2d 922, (Fla. 4th DCA 2004). As a matter of law, the entire indebtedness secured by the mortgage held by Plaintiff is due and collectible. Central Trust Home Company of Elizabeth v. Lippencott, 392 So.2d 931 (Fla. 5th DCA 1980); Miceli v. Bonita Springs Golf Course, 512 So.2d 966 (Fla. 2d DCA 1987); Baader v. Walker, 153 So.2d 51 (Fla. 2d DCA 1963). As a matter of law and pursuant to the mortgage instrument securing the promissory note, Plaintiff is entitled to collect costs and attorney's fees incident to the collection of indebtedness and any sums advanced to prevent the impairment of its security. Ritch_v. Eichelberger, 13 Fla. 169 (1869 71); American Securities Co. v. PH # 85245 Goldsberry, 67 So. 862 (Fla. 1911); and Raskin v. Otten, 273 So.2d 433 (Fla. 3d DCA 1973). It is well settled that an affirmative defense "must be pleaded specifically" and "confess the facts pleaded to" in order to be properly raised. Florida Coast Ry. Co.. V. Peters, 73 So. 151, 165 (Fla. 1916). In addition, affirmative defenses must not merely allege legal conclusions; they must allege facts in support of their conclusions. L.B. McLeod Const. Co. V. Cooper, 134 So, 224, 225 (Fla. 1931); Zito y. Washington Fed. Sav. & Loan Assoc. of Miami Beach, 318 So. 2d 175, 176 (Fla. 3d DCA 1975). A "defense" under Florida law is any allegation raised that, if true, would defeat the Plaintiff's cause of action. Martin County v. Edenfield, 609 So, 2d 27 (Fla. 1992). The defendant must prove the factual existence of defenses and their legal sufficiency. Id. In pleading a defense, a party "must set forth the facts in such a manner as to reasonably inform his adversary of what is proposed to be proved in order to provide the latter with a fair opportunity to meet it and prepare his evidence." Zito, 318 So. 2d at 176. Moreover, in pleading affirmative defenses "[t]he grounds on which any of the enumerated defenses are based and the substantial matters of law intended to be argued shall be stated specifically and with particularity in the responsive pleading or motion." Fla.R.Civ.P. 1.150(b) (emphasis added). Once Plaintiff tenders competent evidence to support its summary judgment motion, a defendant is required to "come forward with counter-evidence sufficient to reveal a genuine issue. It is not enough for defendants merely to assert that an issue does exist." Landers _v. Milton, 370 So.2d 368, 370 (Fla. 1979). "While summary judgments should be cautiously entered, where the material facts are not in dispute PH # 85245 and the moving party is entitled to a judgment as a matter of law, it is the court's duty to enter summary judgment." Castellano v. Raynor, 725 So.2d 1197, 1199 (Fla. 2d DCA 1999) (emphasis added). An inability to produce the original promissory note and mortgage is not a material issue of fact that should preclude entry of a summary judgment of foreclosure where the record is devoid of any genuine issue of material fact for trial. Citibank v. O'Donovan, 710 So.2d 654 (Fla. 3d DCA 1998). 4 Attorney for Plaintiff will offer the original note and mortgage (Exhibits A and B) to the court upon the hearing on this motion. NOTE: Pursuant to the Fair Debt Collection Practices Act, you are advised that this law firm is deemed to be a debt collector attempting to collect a debt and any information obtained will be used for that purpose. WHEREFORE Plaintiff respectfully requests this Court enter a Final Summary Judgment for Foreclosure against the named Defendants, award reasonable attorney fees and costs to Plaintiff, and any other relief this Court deems just and proper. Phelan Hallinan Diamond & Jones, PLLC Attorneys for Plaintiff 2001 NW 64th Street, Suite 100 Ft. Lauderdale, FL 33309 Tel: 954-462-7000 Fax: 954-462-7001 Service by email: FL.Service@PhelanHallinan.com By: /s/ Meghan K. Sullivat Phelan Hallinan Diamond & Jones, PLLC Meghan K. Sullivan, Esq., Florida Bar No. 1008092 Emilio R. Lenzi, Esq., Florida Bar No. 0668273 PH # 85245