Preview
Filing # 98246245 E-Filed 11/01/2019 01:18:20 PM
IN THE COUNTY COURT OF THE TWENTIETH JUDICIAL CIRCUIT, IN AND FOR CHARLOTTE
COUNTY, FLORIDA CIVIL DIVISION
HSBC BANK USA, NATIONAL ASSOCIATION
AS TRUSTEE FOR WELLS FARGO ASSET
SECURITIES CORPORATION, MORTGAGE
ASSET-BACKED PASS-THROUGH CERTICATES
SERIES 2007-AR9,
Plaintiff, CASE NO.: 19000332CA
vs.
DOUGLAS ENGBERG A/K/A DOUGLAS R.
ENGBERG, et al.
Defendants,
EMERGENCY MOTION TO VACATE JUDGMENT OF FORECLOSURE AND SET
ASIDE SALE DUE TO IMPROPER CONSTRUCTIVE SERVICE PURSUANT
TO FLA.R.CIV.P. 1.540(3) AND (4) AND FS. §49.12 AND §49.041.
COMES NOW, Defendant, DOUGLAS ENGBERG A/K/A DOUGLAS R. ENGBERG,
by and through his undersigned attorneys, and hereby moves before this Court to vacate the Final
Judgment of Foreclosure in this matter and set aside the foreclosure sale that occurred on.
October 28, 2019 due to the lack of proper service on this Defendant, and in support thereof
states as follows:
PROCEDURAL HISTORY & STATEMENT OF FACTS
Plaintiff filed its Foreclosure Complaint on or about March 26, 2019.
A Summons for Douglas Engberg was issued on March 27, 2019.
According to the Return of Service attached hereto as Exhibit “A”, the process server,
Suzette Drake, made only one attempt of service on April 9, 2019 at 10:22 a.m. at Mr.
Engberg’s residence located at 3837 Bermuda Court, Punta Gorda, FL 33950. Mr.
Engberg was not at home at the time.
Also set forth as part of Exhibit “A” is a second Affidavit of Service by Eric Rateliff
indicating he made only one attempt at service on April 25, 2019 at 11:13 am. at Mr.
Engberg’s property located at 8010 Kirkcaldy Court, Palos Heights, IL.
The Sworn Statement for Service of Process by Publication submitted by counsel for
Plaintiff, David L. Reider, Esq, is attached hereto as Exhibit “B” (hereinafter referred to
as the “Sworn Statement”,) In paragraph 4 he states that last known mailing address of
Defendant “.,.is as follows:” and then lists no addresses, despite the fact that there are
clearly addresses listed in the Affidavit of Diligent Search and Inquiry attached to his
sworn statement.
In the last year, Mr. Engberg has only lived at in his Punta Gorda address and has lived
there with his wife since May of 2011. (See Engberg Affidavit at paragraph 3.)
Plaintiff proceeded to get Defaults against all of the Defendants and obtained a Final
Summary Judgment of Foreclosure on September 11, 2019, scheduling the property for
sale on October 28, 2019.
The winning bid for the property was $606,700 and was sold to Equity Trust Company
Custodian FBO Wendy Ingorvaia IRA.
However, for the reasons set forth below, Plaintiff did not properly obtain constructive
service of Mr. Engberg and, therefore, the Final Judgment of Foreclosure is void and the
sale must be set aside as a matter of law.
LEGAL ARGUMENT
THE FINAL JUDGMENT OF FORECLOSURE IS VOID AS THE
PLAINTIFF FAILED TO COMPLY WITH THE STRICT
REQUIREMENTS OF E:S. §49.12 AND F.S, 849.041.
It is well established that the general rule in Florida is that a defendant must be
personally served. Societe Hellin, S.A. v. Valley Commercial Capital, LLC, 254 So. 3d
1018, 1020, (Fla. 4" DCA 2018). However, constructive service of process is allowed
under certain circumstances, As discussed below in Point II, it is Defendant’s position
that the due diligence requirements to allow substitute process to occur were not met.
However, assuming the requisite conditions were met to allow for constructive service,
the requirements for how the constructive service of process is to proceed were not
strictly followed as required.
Specifically, F.S. §49.12 provides as follows:
“If the residence of any party to be served by publication is stated in the
sworn statement with more particularly than the name of the State or
Country in which the Defendant resides, the clerk or the judge shall mail a
copy of the notice by United States mail with postage prepaid to each
Defendant, within 10 days after making or posting the notice, the date of
mailing to be noted on the docket with a copy of the pleading for which
the Notice was issued.”
Clearly, as set forth in the Affidavit of Diligent Search and Inquiry filed by
Plaintiff as an exhibit to the Sworn Statement for Service of Process by Publication
submitted by counsel for Plaintiff, David L. Reider, Esq., the last two addresses of the
Defendant were known by Plaintiff. However, a review of the Docket will show that
there is no copy of the pleading for which the Notice was issued with the date of
mailing noted on the Docket within ten days of the posting of the Notice (See Docket
attached as “Exhibit “C”). Accordingly, the Plaintiff and the Clerk failed to follow the
mandatory requirements of the statute.
The Sworn Statement submitted by Plaintiff in support of its request for service of
process by publication also fails to meet the requirements of the constructive service of
process statute. Specifically, F.S. §49.041 sets forth the requirements of the contents of
that statement, The Sworn Statement submitted by Plaintiff appears to be intentionally
inaccurate.
Specifically, Paragraph 3 says that Affiant was unable to determine the residence
of Douglas Engberg and refers to an Exhibit “A”. A brief perusal of said Exhibit “A”
indicates the Defendant’s addresses stated above in Punta Gorda and Illinois, were also
set forth in their Exhibit “A” based upon a search of:
1.) his social security number;
2.) his driver’s license records with DMV;
3.) the Tax Assessor’s Records;
4.) his Voter Registration; and,
5.) the Post Office’s Records.
Despite these five separate corroborating sources of Mr, Engberg’s address, Plaintiffs
attorney claimed to be unable to determine his residence in his sworn statement so that
the Notice of Action could be mailed to the Defendant’.
Additionally, in paragraph 4 of the Sworn Statement as noted above in reference
to the last known mailing address, the paragraph ends with a blank.
Pursuant to F.S. §49.041(3), the affiant must state the following with regard to the
defendant’s residence:
G3) In addition to the above, that the residence of such person
is, either:
(a) Unknown to the affiant; or
(b) In some state or country other than this state, stating said
residence if known; or
(c In the state, but that he or she has been absent from the
state for more than 60 days, next preceding the making of the sworn
statement, or conceals himself or herself so that process cannot be
personally served, and that affiant believes that there is no person in the
state upon whom service of process would bind said concealed defendant.
While the Sworn Statement clams that they were unable to find Mr. Engberg, the
exhibit attached thereto contradicts same. Accordingly, the Sworn Statement constitutes
a knowing misrepresentation to the court. At a minimum, the Plaintiff should have
represented that the Defendant is in the state and has been absent for at least 60 days.
That was not done. In either case, clearly the Notice of Action could have been mailed to
the Defendant at both of his last known addresses had the Sworn Statement not contained
misrepresentations as to the Defendant’s last known mailing address being unknown.
It is respectfully submitted that the Sworn Statement should have at least been
consistent with the Affidavit of Diligent Search and Inquiry and not merely submitted
with inaccurate and missing information in order to avoid having the Clerk of Courts
send the required statutory notice by not listing the Defendant’s addresses in
paragraph 4 of the Sworn Statement. Common sense shows that there were known
addresses where, at the very minimum, the Notice of Action could have been mailed to
the Defendant where the Defendant did in fact live,
| Maybe part of the problem with the inaccuracy of the affidavit is the fact that it was literally a “rubber stamp”
known
signature. One is left to wonder how the affiant could knowingly sign a document stating that there is no
five separate confirming sources of
address for the Defendant when the Exhibit attached to the Sworn Statement has
same,
Accordingly, since the Sworn Statement in support of the service of process by
publication is void on its face, the purported constructive service was improper, and the
Judgment should be voided, As recognized in Corneal v. O’Brien, 707 So, 2d 908 (Fla.
3d DCA 1998):
“In addition to the publication required as aforesaid, notice of the suit
must be mailed to such address as ‘diligent search and inquiry’ may cause
to be discovered. We note, parenthetically, the strict compliance with
these statutory procedures, at the peril of rendering the proceedings
void, is rudimentary.” (Emphasis added.)
In the Corneal case, the trial docket failed to show that the clerk mailed the Notice of the
suit to the defendant at required by F.S. §49.12. Accordingly, the court remanded the
matter with instructions to vacate the default.
Similarly, in Gmaz v. King, 238 So.2d 511 (Fla, 2d DCA 1970), a final judgment
was entered as a result of service by constructive process. In this case, the court
ecognized:
“When a complainant resorts to constructive service, he should make an
honest and conscientious effort, reasonably appropriate to the
circumstances, to acquire the information necessary to fully comply with
the controlling statues, to the end that the defendant, if it be reasonably
possible, may be accorded notice of the suit...and the full test of this
principle is “...whether the complainant reasonably employed
knowledge at his command in making the appropriate effort spoken
of.” (Emphasis added.) Id. at 514.
In Gmaz, the court concluded that since the plaintiff could have easily found the address
of the defendant in the Lee County Tax Receipt Book: “we hold that the constructive
process attempted by appellee in his quiet title suit was fatally defective, as a matter of
law, and that the final judgment subsequently entered therein upon default was void.” Id.
at 515,
In this matter before the court, a review of the docket attached hereto as Exhibit
“C”, clearly indicates that the Notice of Action was never served upon the Defendant
despite the fact that Plaintiff actually had two addresses for the Defendant. Accordingly,
as a matter of law, pursuant to F.S. §49.12, the Plaintiff and the Clerk (due to no fault of
the Clerk other than relying on a defective Sworn Statement submitted by Plaintiff),
failed to comply with the strict requirements of the statute by not mailing the Notice of
Action and noting same on the docket. Therefore, the Final Summary Judgment of
Foreclosure entered in this matter on September 11, 2019 is void as a matter of law.
For these reasons, Defendant, Douglas Engberg, respectfully requests that this
court enter an Order voiding the Final Judgment of Foreclosure in the matter and setting
aside the sale that occurred on October 28, 2019.
ih. PLAINTIFF FAILED TO USE THE REQUISITE DUE DILIGENCE
TO SERVE DEFENDANT, DOUGLAS ENGBERG, THAT WOULD
ENTITLE
S
ENTS IT
BO TO USE CONSTRU
e x SERVICE OF PROCESS.
CTIVE e
As indicated in the Affidavit of Diligent Search and Inquiry attached hereto as
part of Exhibit B, and in the Return of Service attached hereto as Exhibit A, the
Plaintiff's process servers only made one attempt at each location to serve the
Defendant. Additionally, it should be noted that in paragraph D.3 of the Affidavit of
Diligent Search and Inquiry, that the process server represented that she spoke with the
Defendant who advised that he was with his family in Illinois and they would be
traveling for a little longer.
In Coastal Capital Venture, LLC v. Integrity Staffing Solutions, Inc., 153 So. 3d
283 (Fla. 2"! DCA 2014), the plaintiff attempted to use substitute service. The plaintiff
made multiple service attempts at the defendant’s Sarasota condominium. As it turned
out, the defendants were on an extended business trip in California. The court also noted
that: “further during this time the President of Fortran was in regular telephone and text
communication with Brian Merritt and was aware that the Merritts were in California.”
Id.at 285.
In its decision, the court stated:
“Substitute service is unauthorized if personal service could be
obtained through reasonable diligence. McDaniel v. McElvy, 91 Fla.
7710 (Fla. 1926). The test is whether the complainant reasonably
employed knowledge at his command, made diligent inquiry, and
exerted an honest and conscientious effort appropriate to the
circumstances, to acquire the information necessary to enable him to
effect personal service on the defendant.” (Emphasis added.) Id.
The court went on to state “obviously, the necessary diligence is not established by
repeatedly sending a process server to an address when the resident is known to be out
of town.” Id. In its’ conclusion, in citing Knabb v. Morris, 492 So, 2d 839 (Fla. 5° DCA
1986) the court recognized that:
“There is a strong public policy interest in seeing that a defendant receives
notice of any actions against him so that he may have his day in court in
accordance with due process requirements. For this reason, substituted
service of process statutes must be strictly complied with. Thus,
failure to utilize obvious and available leads to locate the defendant is
fatal to a finding of due diligence.” (Emphasis added.) Coastal, at 285.
In the matter before this court, all of the evidence that Plaintiffs process server
acquired indicated that the Defendant, Douglas Engberg, resided at one of two
residences. Despite that knowledge, only one attempt of service was made at each
residence. Accordingly, Defendant respectfully submits that the requisite due diligence
and “honest and conscientious effort appropriate to the circumstances required” to allow
the Plaintiff to use substitute service was not met in this case when only one attempt to
serve the Defendant was made at his Punta Gorda residence.
By contrast, in Delaney v. Tobias, 26 So. 3d 77, 80 (Fla. 3 DCA 2010), the court
found that the requisite due diligence existed when the plaintiff «..,attempted to serve
Tobias twenty-two times over a three-month period at this admittedly correct Florida
address.” (Emphasis added.) While it is not Defendant’s position that 22 attempts need
to be made, certainly no such efforts were exercised in the matter before this court as
only one attempt at each address was made in this case.
In the case of Gans v. Heathgate-Sunflower Homeowners Association, 593 So. 2d
540 (Fla. 4" DCA 1992), the process server only made two attempts to serve the
defendant in a furnished house. For some reason, the process server concluded that the
property was vacant. The court noted that the vacant, but furnished house, could have
meant that the defendant was on vacation. Id. at 551-552, In the Gans case, the plaintiff’ s
affidavit also failed to state the name and address of the defendant although it knew the
defendant’s address in Miami, The court concluded that as a result of this defect and the
failure of the clerk to mail out the Notice of Publication, the face of the record revealed
that the Association’s service by publication was void and concluded that:
“Where the service by publication is void on its face, a reversal of the
order of sale will defeat the title of the non-party who purchases the
property in good faith at the judicial sale (citation omitted). The
Association’s sworn statement was facially defective as it did not set
forth the residence of Mrs. Gans as particularly as was known to the
affiant. Thus, the trial should have ordered the court clerk’s sale
cancelled.” Id, at 553.
As in the Gans case, the Plaintiff's Sworn Statement for Service of Process by
Publication in this case, failed to set forth the addresses of Mr. Engberg, despite the fact
that the attached Affidavit of Due Diligent Search and Inquiry indicated numerous times
the last two known addresses of the Defendant. Moreover, as set forth in Mr. Engberg’s
Affidavit, his Punta Gorda address was in fact his addresses where he resided since 2011.
It is respectfully submitted that only one attempt at service at his residence does not meet
the test of the Plaintiff having used “reasonable diligence” and, further, having
“employed knowledge at [its] command, made diligent inquiry, and exerted an honest
and conscientious effort appropriate to the circumstances, to acquire the information
necessary to enable [it] to effect personal service on the defendant.”
For these reasons, Defendant respectfully submits that since Plaintiff failed to
exercise the requisite due diligence required to allow it to serve by publication combined
with the failure of the clerk to send out the notice required by F.S. §49.12, that therefore
justice requires that an order be entered voiding the Final Judgment of Foreclosure and
setting aside the sale.
Til. DEFENDANT IS ENTITLED TO RELIEF FROM THE FINAL
JUDGMENT OF FORECLOSURE AND THE SUBSEQUENT SALE
PURSUANT TO FLA.R.CIV.P. 1.540(b)(3) and (4).
Florida Rule of Civil Procedure Rule 1.540(b)(4) allows the court to relieve a
party from a final judgment for the following reason: “(4) that the judgment or decree is
void.”
As set forth in detail above, it is respectfully submitted that Defendant has
established that the Final Judgment of Foreclosure was obtained as a result of improper
substitute service and is therefore void. Accordingly, Defendant respectfully requests
that the court enter an Order voiding the Final Summary Judgment of Foreclosure entered
in this matter and setting aside the subsequent sale,
As recognized by the court in De La Osa v. Wells Fargo Bank, NA, 208 So, 3d
259, 263 (Fla. 3d DCA 2016), “due process requires some mechanism to set aside void
final orders. After all, by definition a void order is a nullity. (citations omitted) . . .
Currently, Rule 1.540(b)(4) provides a just, speedy and inexpensive method to place the
factual issues that arise from a claim that an order is void in front of the judge who
entered the order.”
Accordingly, as the Defendant in this case has demonstrated that the Final
Judgment of Foreclosure is void due to improper constructive service, Defendant is
entitled to relief from the Judgment pursuant to Rule 1.540(b)(4) as a void judgment. For
these reasons, Defendant respectfully requests that an Order be entered vacating the Final
Summary Judgment of Foreclosure entered in this matter and setting aside the sale.
Moreover, Florida Rule of Civil Procedure Rule 1.540(b)(3) allows the court to
relieve a patty from a final judgment for the following reason: “fraud (whether heretofore
denominated intrinsic or extrinsic) misrepresentation, or other misconduct of an adverse
party. In the matter before this court, clearly the Sworn Statement submitted by Plaintiff
misrepresented that it had no knowledge of Defendant’s last known address and the court
allowed the matter to proceed to judgment based upon that misrepresentation that
improperly allowed the Plaintiff to use constructive service. Had Plaintiff not made this
blatant misrepresentation to the court, the Defendant would have received the Notice of
Action and had the opportunity to have his day in court.
In the case of Lacore v. Gitalda Bake Shop, Inc., 407 So.2d 275, 276 (Fla. 3d
DCA 1981), the court recognized that:
Rule 1,540(b)(3) is a rule providing for equitable relief and is to be
liberally construed, See, ¢.g., Pearlman _v. Mount Sinai_Hospital_of
Gre: ater Miami, Inc., 405 So.2d 764 (Fla.3d DCA 1981), The nature of a
default judgment is such that a misleading statement by affidavit as to
the amount of damages constitutes a misrepresentation by an adverse
party for purposes of Rule 1.540(b)(3). See, cg., Kimbrough v.
McCranie, 325 So.2d 70 (Fla. Ist DCA 1976); Alexander v. First
National Bank of Titusville, 275 So.2d 272 (Fla. 4th DCA 1973).
(Emphasis added).
As in the Lacore case, clearly, a misrepresentation of allegedly not knowing the address
of the Defendant in the Sworn Statement was a material misrepresentation to the
detriment of the Defendant and the integrity of this court. Accordingly, as Rule
1.540(b)(3) is to be liberally construed, and since the representation was used to
wrongfully get a default against the Defendant and force the sale of the Defendant’s
residence, it is respectfully submitted that the Defendant is entitled to relief from the
Final Judgment of Foreclosure and to have the subsequent sale set aside.
WHEREFORE, for all of the reasons set forth above, Defendant, Douglas
Engberg, respectfully requests this honorable Court to enter an Order voiding the Final
Judgment of Foreclosure entered on September 11, 2019 and setting aside the sale that
occurred on October 28, 2019, to Equity Trust Company Custodian FBO Wendy
Ingorvaia IRA, and for such other and further relief as the court deems necessary,
equitable and just.
Is! Mark Martella
Mark Martella, Esq.
Florida Bar No. 0024021
Icard, Merrill, Cullis, Timm, Furen
& Ginsburg, P.A.
18501 Murdock Circle, Suite 304
Port Charlotte, FL 33948
(941) 206-3700; Fax (941) 206-3701
mmartella@icardmerrill.com
Attorneys for Defendant, Douglas Engberg a/k/a
Douglas R. Engberg
10
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via email to:
David L. Reider, Esq. of eXL Legal, PLLC at efiling@exllegal.com and via UPS Overnight Delivery to
Wendy Ingorvaia, 55 West 14" Street, 7H, New York, NY 10011on this Ist day of November, 2019.
/s/ Mark Martella
Mark Martella, Esq.
Florida Bar No. 0024021
Teard, Merrill, Cullis, Timm, Furen
& Ginsburg, P.A.
18501 Murdock Circle, Suite 304
Port Charlotte, FL 33948
(941) 206-3700; Fax (941) 206-3701
mmartella@icardmerrill.com
Attorneys for Defendant, Douglas Engberg a/k/a
Douglas R. Engberg
s‘isharel\mark\engberg\pleadings\min 2 vacate judement.doc
11
EXHIBIT “A”
filing # 88993937 E-Filed 05/03/2019 07:53:07 PM
fv.1000003076
RETURN OF SERVICE,
TS TI CHRCUIE COURT OF CHARLOTTE COUNTY, FLORIDA
PLAINTIFF HSBC WANE USA, NATIONAL ASSOCIATION AS TRUSTEE TOR WELLS FARGO ASSETS URITIES CORPORATION, MORYGAGE ASSET-HACKED PAS
THROY CERTIFICATES SEI : ‘ARS
vs
DRI ANT DOUGLAS ENGRERG AVA DOUOLAS R. ENGAERG, FAL,AU
DEFPAANT [0 BT SERVE DOUGLAS ENC 5 ERG 5 IIA DOUGH AS RE GHERG
Case NOD: 09 TYPE OF PROCESS. SUMMONS &: COMP! INT, LIS PENDENS, STANDING ORDER
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MY COMMISSION EXPIRES 2/2/23
Filing # 86978116 B-Filed 03/26/2019 02:10:16 PM
IN THE CIRCUIT COURT OF THE TWENTIETH
JUDICIAL CIRCUIT IN AND FOR CHARLOTTE
COUNTY, FLORIDA
CASE NO, 19000332CA
HSBC BANK USA, NATIONAL.
ASSOCIATION AS TRUSTEE FOR
WELLS FARGO ASSET SECURITIES
CORPORATION, MORTGAGE ASSET-
BACKED PASS-THROUGH
CERTIFICATES SERIES 2007-AR9
Plaintiff,
v.
DOUGLAS ENGBERG A/K/A DOUGLAS
R. ENGBERG, et al.
Defendants.
/
SUMMONS
PERSONAL SERVICE ON A NATURAL PERSON
DOUGLAS ENGBERG A/K/A DOUGLAS R. ENGBERG
3837 BERMUDA CT
PUNTA GORDA, FL 33950-8123
int una is served on you case fo file & written response fo the al chee
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IN OF THE STA ‘You are commanded to serve this Summons and a copy of the Complaint or
h ition ih this k jawsuil on the above-nan med Defendant,
03/27/2019 42019
WITNESS my hand and the seul of tls Court on
(SEAL)
odation in order to participate
If you a ve a person with a disabi ty who needs any accomm on of certain assistance,
in this proceeding, you are entitled, at no cost to you, to the provisi whose office is located at
Please contact Jon Embury, Admini istrative Services Manager,
Marion Avenue, Punta Gorda, Florida 33950, court ani whose telephone number is
50 E. schedu led appearance, or immediately
(941}637-2110, at least 7 daysy before our
e appearance is less than
upon receiving this no tification if the ime before the schedul
days; if Fyou are hearing or voce impair711. red, call
TION PRACTICES ACT YOU ARE ADVISED THAT
NOTE: PURSUANT TO THE FAIR DEBT COLLEC
FIRM IS DEEMED TO BE ‘A DEBT COLLE CTOR ATTEMPTING TO COLLECT A DEBT
THIS LAW
U! ISED FOR THAT PURPOSE.
AND ANY INFORMATION OBTAINED WILL BE
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Si desea responder a fa demuanda por su eat in, a mismo tiempo en que pres in su respuesta anteof tribunal, debera usted enviar por correo©
(Derandate © Abogado del
fentrexat una enpia de sit respuesta 3 la persona denominwda abajo como “pinintiPiaintie’s Auomney".
ema late).
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pane esposer ue reponse eerie « tla panse
plainte ed-jointe aupres de ce Tribus, simple coup de telephone est insuffisnnt pour vous prateger;
vous etes ablige de deposer votre re cerlte, ayes meat du numero do dossier ci-dessns ot du nom des parties nommees ie tasi cause yous,
sowhaites que fe Tribunal entende vole cuse, ‘Si vous ne depasez pas volre seponse cert dans te relal requis, vous risquiz a de perdre Hy a dautres
ain qe votre saluire, votre ung 1, et_vosrir bens peatvent elie st par ta suite, sans aucua preavis ulteriour du
‘un avocat. Si vous ne connaissez pas d'avacul, vous pourriez telephener
‘obligations jucidiques el vous putivez reque os services immedintsique di (Figerunt
un service de reference U'avocats ou a nun breast d'assistence & Fannunire de telephones).
cerit, i vows faudea eg Jement, en mains temps que cette famuilite, faite parvenir ou
8 vous ehoisissez de doposer vous-meme une picreponse de votte reponse cerite au PlaintiffPlain tife's Attorney” (laignant au a su avoente) Homme
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PLAINTIF! ATTORNEY:
EXL LEGAL, PLLC
12425 28TH STREET NORTH, SUITE 200
ST. PETERSBURG, FL 33716
‘TELEPHONE NO. (727) 536-4911
- EXHIBIT 1 -
IN THE CIRCUIT COURT FOR THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
A NOTICE FROM THE COURT REGARDING LAWSUITS TO FORECLOSE MORTGAGES
ON HOMES
to
If you are being sued to foreclose the morlgage on your home you may have the opportunity
participate in “mediation.” At “mediation,” you will meet with a Florida Supreme Court certified
e your
mediator appointed by the court and also a representative of the company asking to foreclosur
.
mortgage to see if you and the company suing you can work out an agreement to stop the foreclosure
about the
The mediator will not be allowed to give you legal advice or to give you an opinion
job is to remain neutral and not take sides, but to give both sides a chance to
lawsuit, The mediator’s
and the company
talk to cach other fo see if'an agreement can be reached to stop the foreclosure. If you
, a settlemen t agreemen t will be written up and signed by you and the
suing you come to an agreement
is
company suing you. With some limited exceptions, what cach side says at the mediation
confidential and the judge will not know what was said at mediation ,
(HMP) to provide
‘The ‘Twentieth Circuit has implemented the Homestead Mediation Program
meaningful mediations early in the foreclosu re process for homeown ers thal mect the criteria listed
does not climina te the opportun ity to mediate at any other
below. Election into or out of this program
e, and Florida
time prior Lo ti al as may be allowed by Rule 1.700, FI lorida Rules of Civil Procedur
Statute Chapter 44.
Eligibility Criteria for the Homestead Mediation Program:
a The home has a homestead exemption; and
and
G You are the person who borrowed the money for the mortgage;
‘The origination of the note and mor(gag e sued upon was subject to the provisions
a
of the federal Truth in Lending Act, Regulat ion Z.
provide all the
To participate in the Homestead Mediation Program, the borrower must
s:
following documents within 20 days after you were served the summon
. File with the Clerk a written respons e to the Complai nt, with a copy to Plaintiffs
attorney.
m Opt-In
. File with the Clerk a completed and signed Homestead Mediation Progra
Form, with a copy to Plaintiff's attorney.
all
° And, the Borrower shall complete and sign the Financial Worksheet, include
a copy to the
attachments requested, and submit the original to Plaintiff's counsel, with
Court’s Mediation Department,
—_
l Worksheet can be found on the
The Homestead Mediation Program Opt-In Form and the Financia
losure.asp or by calling the Court
Court’s website at http Javww.ca.cjis20.org/home/main/forec
iof2
Mediation Department at 239-533-3353.
Please note that this program is not to be used as a tactic to delay the foreclosure process and is
intended for Borrowers who have the means and ability to effectively mediate their case. An clection
on the part of the Borrower to opt-in to the HMP does not operate as an automatic stay of the case, but
rather, (he proceedings, including but not limited to discovery, may continue pending mediation.
‘The fee for mediation shall be $300.00 for the first (wo (2) hours, to be equitably and proportionately
divided between the Plaintiff and the Borrower, as provided for by Rule 1.720(g). ‘The Borrower's
portion of the mediation fee, $150.00, is due at the beginning of the mediation session, and shall be
payable directly to the Mediator. Any additional fees for mediation in excess of the initial two (2)
hours shall be apportioned equally between the Borrower and the Plaintiff and shall be payable directly
to the Mediator.
of the
If it is determined that the Borrower does not have sufficient payment for the Borrower's portion
be repotted as a failure to appear by the
mediation fee at the beginning of the mediation session, it shall
mediation session and the mediation
Borrower. Any party that fails to appear al a properly noticed
cancellation fee of
does not occur; the parly who failed to appear will be responsible for a “no show”
the Borrower, if the Borrower fails to appear,
$300.00, Due to the voluntary nature of this program by
participat ion in the HMP, mediation will not
this will be deemed as a waiver of the privilege of further
ber peduled and the case will proceed accordingly.
n Program,
If you have questions or for additional information regarding the Homestead Mediatio
or visit our websile at
contact the Lee County Mediation office at 239-533-3353
http:/Avww.ca.cjis20.org/home/main/foreclosure.asp.
Resources
Resourc to Assist
es to the Foreclo
Assist iuin the ure Process
Sorectossure “soceee
239-252-8138
Collier County Bar Association Lawyer Referral Service...
239-334-449 1
Lee County Bar Association Lawyer Referral Service we
800-342-8011
The Florida Bar Lawyer Referral Service.....
(for Charlotte, Hendry, and Glades Counties)
sey 239-775-4555
Legal Aid Society of Collier County, Inc, — Naples...
(for Collier County residents only)
239-334-4554
Florida Rural Legal Services, Inc, ~ Fort Myers...
941-505-9007
Florida Rural Legal Services, Inc, - Punta Gorda
239-434-2397
HUD of SW Morida, providing credit counseling...
20f2
EXHIBIT “B”
a
oO
IN THE CIRCUIT COURT OF THE TWENTIETH GY
We
JUDICIAL CIRCUIT IN AND FOR CHARLOTTE
S
COUNTY, FLORIDA a,oe
CASE NO, 08-2019-CA-000332
ts
HSBC BANK USA, NATIONAL
ASSOCIATION AS TRUSTEE FOR WELLS
FARGO ASSET SECURITIES
CORPORATION, MORTGAGE ASSET-
BACKED PASS-THROUGH
CERTIFICATES SERIES 2007-AR9
Plaintiff,
y,
DOUGLAS ENGBERG A/K/A DOUGLAS R.
ENGBERG, ET AL.
Defendants.
/
SWORN STATEMENT FOR SERVICE OF PROCESS
BY PUBLICATION
STATE OF FLORIDA )
COUNTY OF PINELLAS )
David L. Relder
BEFORE ME, the undersigned Notary Public, personally appeared
attorney for Plaintiff herein, who being first duly sworn, deposes and says:
1 Affiant is the attorney of record for the Plaintiff.
2 Diligent search and inquiry have been made to discover the residence, post office
address or mailing address of the Defendant(s), DOUGLAS ENGBERG A/K/A DOUGLAS R.
ENGBERG, and all unknown part
Preview
Filing # 98246245 E-Filed 11/01/2019 01:18:20 PM IN THE COUNTY COURT OF THE TWENTIETH JUDICIAL CIRCUIT, IN AND FOR CHARLOTTE COUNTY, FLORIDA CIVIL DIVISION HSBC BANK USA, NATIONAL ASSOCIATION AS TRUSTEE FOR WELLS FARGO ASSET SECURITIES CORPORATION, MORTGAGE ASSET-BACKED PASS-THROUGH CERTICATES SERIES 2007-AR9, Plaintiff, CASE NO.: 19000332CA vs. DOUGLAS ENGBERG A/K/A DOUGLAS R. ENGBERG, et al. Defendants, EMERGENCY MOTION TO VACATE JUDGMENT OF FORECLOSURE AND SET ASIDE SALE DUE TO IMPROPER CONSTRUCTIVE SERVICE PURSUANT TO FLA.R.CIV.P. 1.540(3) AND (4) AND FS. §49.12 AND §49.041. COMES NOW, Defendant, DOUGLAS ENGBERG A/K/A DOUGLAS R. ENGBERG, by and through his undersigned attorneys, and hereby moves before this Court to vacate the Final Judgment of Foreclosure in this matter and set aside the foreclosure sale that occurred on. October 28, 2019 due to the lack of proper service on this Defendant, and in support thereof states as follows: PROCEDURAL HISTORY & STATEMENT OF FACTS Plaintiff filed its Foreclosure Complaint on or about March 26, 2019. A Summons for Douglas Engberg was issued on March 27, 2019. According to the Return of Service attached hereto as Exhibit “A”, the process server, Suzette Drake, made only one attempt of service on April 9, 2019 at 10:22 a.m. at Mr. Engberg’s residence located at 3837 Bermuda Court, Punta Gorda, FL 33950. Mr. Engberg was not at home at the time. Also set forth as part of Exhibit “A” is a second Affidavit of Service by Eric Rateliff indicating he made only one attempt at service on April 25, 2019 at 11:13 am. at Mr. Engberg’s property located at 8010 Kirkcaldy Court, Palos Heights, IL. The Sworn Statement for Service of Process by Publication submitted by counsel for Plaintiff, David L. Reider, Esq, is attached hereto as Exhibit “B” (hereinafter referred to as the “Sworn Statement”,) In paragraph 4 he states that last known mailing address of Defendant “.,.is as follows:” and then lists no addresses, despite the fact that there are clearly addresses listed in the Affidavit of Diligent Search and Inquiry attached to his sworn statement. In the last year, Mr. Engberg has only lived at in his Punta Gorda address and has lived there with his wife since May of 2011. (See Engberg Affidavit at paragraph 3.) Plaintiff proceeded to get Defaults against all of the Defendants and obtained a Final Summary Judgment of Foreclosure on September 11, 2019, scheduling the property for sale on October 28, 2019. The winning bid for the property was $606,700 and was sold to Equity Trust Company Custodian FBO Wendy Ingorvaia IRA. However, for the reasons set forth below, Plaintiff did not properly obtain constructive service of Mr. Engberg and, therefore, the Final Judgment of Foreclosure is void and the sale must be set aside as a matter of law. LEGAL ARGUMENT THE FINAL JUDGMENT OF FORECLOSURE IS VOID AS THE PLAINTIFF FAILED TO COMPLY WITH THE STRICT REQUIREMENTS OF E:S. §49.12 AND F.S, 849.041. It is well established that the general rule in Florida is that a defendant must be personally served. Societe Hellin, S.A. v. Valley Commercial Capital, LLC, 254 So. 3d 1018, 1020, (Fla. 4" DCA 2018). However, constructive service of process is allowed under certain circumstances, As discussed below in Point II, it is Defendant’s position that the due diligence requirements to allow substitute process to occur were not met. However, assuming the requisite conditions were met to allow for constructive service, the requirements for how the constructive service of process is to proceed were not strictly followed as required. Specifically, F.S. §49.12 provides as follows: “If the residence of any party to be served by publication is stated in the sworn statement with more particularly than the name of the State or Country in which the Defendant resides, the clerk or the judge shall mail a copy of the notice by United States mail with postage prepaid to each Defendant, within 10 days after making or posting the notice, the date of mailing to be noted on the docket with a copy of the pleading for which the Notice was issued.” Clearly, as set forth in the Affidavit of Diligent Search and Inquiry filed by Plaintiff as an exhibit to the Sworn Statement for Service of Process by Publication submitted by counsel for Plaintiff, David L. Reider, Esq., the last two addresses of the Defendant were known by Plaintiff. However, a review of the Docket will show that there is no copy of the pleading for which the Notice was issued with the date of mailing noted on the Docket within ten days of the posting of the Notice (See Docket attached as “Exhibit “C”). Accordingly, the Plaintiff and the Clerk failed to follow the mandatory requirements of the statute. The Sworn Statement submitted by Plaintiff in support of its request for service of process by publication also fails to meet the requirements of the constructive service of process statute. Specifically, F.S. §49.041 sets forth the requirements of the contents of that statement, The Sworn Statement submitted by Plaintiff appears to be intentionally inaccurate. Specifically, Paragraph 3 says that Affiant was unable to determine the residence of Douglas Engberg and refers to an Exhibit “A”. A brief perusal of said Exhibit “A” indicates the Defendant’s addresses stated above in Punta Gorda and Illinois, were also set forth in their Exhibit “A” based upon a search of: 1.) his social security number; 2.) his driver’s license records with DMV; 3.) the Tax Assessor’s Records; 4.) his Voter Registration; and, 5.) the Post Office’s Records. Despite these five separate corroborating sources of Mr, Engberg’s address, Plaintiffs attorney claimed to be unable to determine his residence in his sworn statement so that the Notice of Action could be mailed to the Defendant’. Additionally, in paragraph 4 of the Sworn Statement as noted above in reference to the last known mailing address, the paragraph ends with a blank. Pursuant to F.S. §49.041(3), the affiant must state the following with regard to the defendant’s residence: G3) In addition to the above, that the residence of such person is, either: (a) Unknown to the affiant; or (b) In some state or country other than this state, stating said residence if known; or (c In the state, but that he or she has been absent from the state for more than 60 days, next preceding the making of the sworn statement, or conceals himself or herself so that process cannot be personally served, and that affiant believes that there is no person in the state upon whom service of process would bind said concealed defendant. While the Sworn Statement clams that they were unable to find Mr. Engberg, the exhibit attached thereto contradicts same. Accordingly, the Sworn Statement constitutes a knowing misrepresentation to the court. At a minimum, the Plaintiff should have represented that the Defendant is in the state and has been absent for at least 60 days. That was not done. In either case, clearly the Notice of Action could have been mailed to the Defendant at both of his last known addresses had the Sworn Statement not contained misrepresentations as to the Defendant’s last known mailing address being unknown. It is respectfully submitted that the Sworn Statement should have at least been consistent with the Affidavit of Diligent Search and Inquiry and not merely submitted with inaccurate and missing information in order to avoid having the Clerk of Courts send the required statutory notice by not listing the Defendant’s addresses in paragraph 4 of the Sworn Statement. Common sense shows that there were known addresses where, at the very minimum, the Notice of Action could have been mailed to the Defendant where the Defendant did in fact live, | Maybe part of the problem with the inaccuracy of the affidavit is the fact that it was literally a “rubber stamp” known signature. One is left to wonder how the affiant could knowingly sign a document stating that there is no five separate confirming sources of address for the Defendant when the Exhibit attached to the Sworn Statement has same, Accordingly, since the Sworn Statement in support of the service of process by publication is void on its face, the purported constructive service was improper, and the Judgment should be voided, As recognized in Corneal v. O’Brien, 707 So, 2d 908 (Fla. 3d DCA 1998): “In addition to the publication required as aforesaid, notice of the suit must be mailed to such address as ‘diligent search and inquiry’ may cause to be discovered. We note, parenthetically, the strict compliance with these statutory procedures, at the peril of rendering the proceedings void, is rudimentary.” (Emphasis added.) In the Corneal case, the trial docket failed to show that the clerk mailed the Notice of the suit to the defendant at required by F.S. §49.12. Accordingly, the court remanded the matter with instructions to vacate the default. Similarly, in Gmaz v. King, 238 So.2d 511 (Fla, 2d DCA 1970), a final judgment was entered as a result of service by constructive process. In this case, the court ecognized: “When a complainant resorts to constructive service, he should make an honest and conscientious effort, reasonably appropriate to the circumstances, to acquire the information necessary to fully comply with the controlling statues, to the end that the defendant, if it be reasonably possible, may be accorded notice of the suit...and the full test of this principle is “...whether the complainant reasonably employed knowledge at his command in making the appropriate effort spoken of.” (Emphasis added.) Id. at 514. In Gmaz, the court concluded that since the plaintiff could have easily found the address of the defendant in the Lee County Tax Receipt Book: “we hold that the constructive process attempted by appellee in his quiet title suit was fatally defective, as a matter of law, and that the final judgment subsequently entered therein upon default was void.” Id. at 515, In this matter before the court, a review of the docket attached hereto as Exhibit “C”, clearly indicates that the Notice of Action was never served upon the Defendant despite the fact that Plaintiff actually had two addresses for the Defendant. Accordingly, as a matter of law, pursuant to F.S. §49.12, the Plaintiff and the Clerk (due to no fault of the Clerk other than relying on a defective Sworn Statement submitted by Plaintiff), failed to comply with the strict requirements of the statute by not mailing the Notice of Action and noting same on the docket. Therefore, the Final Summary Judgment of Foreclosure entered in this matter on September 11, 2019 is void as a matter of law. For these reasons, Defendant, Douglas Engberg, respectfully requests that this court enter an Order voiding the Final Judgment of Foreclosure in the matter and setting aside the sale that occurred on October 28, 2019. ih. PLAINTIFF FAILED TO USE THE REQUISITE DUE DILIGENCE TO SERVE DEFENDANT, DOUGLAS ENGBERG, THAT WOULD ENTITLE S ENTS IT BO TO USE CONSTRU e x SERVICE OF PROCESS. CTIVE e As indicated in the Affidavit of Diligent Search and Inquiry attached hereto as part of Exhibit B, and in the Return of Service attached hereto as Exhibit A, the Plaintiff's process servers only made one attempt at each location to serve the Defendant. Additionally, it should be noted that in paragraph D.3 of the Affidavit of Diligent Search and Inquiry, that the process server represented that she spoke with the Defendant who advised that he was with his family in Illinois and they would be traveling for a little longer. In Coastal Capital Venture, LLC v. Integrity Staffing Solutions, Inc., 153 So. 3d 283 (Fla. 2"! DCA 2014), the plaintiff attempted to use substitute service. The plaintiff made multiple service attempts at the defendant’s Sarasota condominium. As it turned out, the defendants were on an extended business trip in California. The court also noted that: “further during this time the President of Fortran was in regular telephone and text communication with Brian Merritt and was aware that the Merritts were in California.” Id.at 285. In its decision, the court stated: “Substitute service is unauthorized if personal service could be obtained through reasonable diligence. McDaniel v. McElvy, 91 Fla. 7710 (Fla. 1926). The test is whether the complainant reasonably employed knowledge at his command, made diligent inquiry, and exerted an honest and conscientious effort appropriate to the circumstances, to acquire the information necessary to enable him to effect personal service on the defendant.” (Emphasis added.) Id. The court went on to state “obviously, the necessary diligence is not established by repeatedly sending a process server to an address when the resident is known to be out of town.” Id. In its’ conclusion, in citing Knabb v. Morris, 492 So, 2d 839 (Fla. 5° DCA 1986) the court recognized that: “There is a strong public policy interest in seeing that a defendant receives notice of any actions against him so that he may have his day in court in accordance with due process requirements. For this reason, substituted service of process statutes must be strictly complied with. Thus, failure to utilize obvious and available leads to locate the defendant is fatal to a finding of due diligence.” (Emphasis added.) Coastal, at 285. In the matter before this court, all of the evidence that Plaintiffs process server acquired indicated that the Defendant, Douglas Engberg, resided at one of two residences. Despite that knowledge, only one attempt of service was made at each residence. Accordingly, Defendant respectfully submits that the requisite due diligence and “honest and conscientious effort appropriate to the circumstances required” to allow the Plaintiff to use substitute service was not met in this case when only one attempt to serve the Defendant was made at his Punta Gorda residence. By contrast, in Delaney v. Tobias, 26 So. 3d 77, 80 (Fla. 3 DCA 2010), the court found that the requisite due diligence existed when the plaintiff «..,attempted to serve Tobias twenty-two times over a three-month period at this admittedly correct Florida address.” (Emphasis added.) While it is not Defendant’s position that 22 attempts need to be made, certainly no such efforts were exercised in the matter before this court as only one attempt at each address was made in this case. In the case of Gans v. Heathgate-Sunflower Homeowners Association, 593 So. 2d 540 (Fla. 4" DCA 1992), the process server only made two attempts to serve the defendant in a furnished house. For some reason, the process server concluded that the property was vacant. The court noted that the vacant, but furnished house, could have meant that the defendant was on vacation. Id. at 551-552, In the Gans case, the plaintiff’ s affidavit also failed to state the name and address of the defendant although it knew the defendant’s address in Miami, The court concluded that as a result of this defect and the failure of the clerk to mail out the Notice of Publication, the face of the record revealed that the Association’s service by publication was void and concluded that: “Where the service by publication is void on its face, a reversal of the order of sale will defeat the title of the non-party who purchases the property in good faith at the judicial sale (citation omitted). The Association’s sworn statement was facially defective as it did not set forth the residence of Mrs. Gans as particularly as was known to the affiant. Thus, the trial should have ordered the court clerk’s sale cancelled.” Id, at 553. As in the Gans case, the Plaintiff's Sworn Statement for Service of Process by Publication in this case, failed to set forth the addresses of Mr. Engberg, despite the fact that the attached Affidavit of Due Diligent Search and Inquiry indicated numerous times the last two known addresses of the Defendant. Moreover, as set forth in Mr. Engberg’s Affidavit, his Punta Gorda address was in fact his addresses where he resided since 2011. It is respectfully submitted that only one attempt at service at his residence does not meet the test of the Plaintiff having used “reasonable diligence” and, further, having “employed knowledge at [its] command, made diligent inquiry, and exerted an honest and conscientious effort appropriate to the circumstances, to acquire the information necessary to enable [it] to effect personal service on the defendant.” For these reasons, Defendant respectfully submits that since Plaintiff failed to exercise the requisite due diligence required to allow it to serve by publication combined with the failure of the clerk to send out the notice required by F.S. §49.12, that therefore justice requires that an order be entered voiding the Final Judgment of Foreclosure and setting aside the sale. Til. DEFENDANT IS ENTITLED TO RELIEF FROM THE FINAL JUDGMENT OF FORECLOSURE AND THE SUBSEQUENT SALE PURSUANT TO FLA.R.CIV.P. 1.540(b)(3) and (4). Florida Rule of Civil Procedure Rule 1.540(b)(4) allows the court to relieve a party from a final judgment for the following reason: “(4) that the judgment or decree is void.” As set forth in detail above, it is respectfully submitted that Defendant has established that the Final Judgment of Foreclosure was obtained as a result of improper substitute service and is therefore void. Accordingly, Defendant respectfully requests that the court enter an Order voiding the Final Summary Judgment of Foreclosure entered in this matter and setting aside the subsequent sale, As recognized by the court in De La Osa v. Wells Fargo Bank, NA, 208 So, 3d 259, 263 (Fla. 3d DCA 2016), “due process requires some mechanism to set aside void final orders. After all, by definition a void order is a nullity. (citations omitted) . . . Currently, Rule 1.540(b)(4) provides a just, speedy and inexpensive method to place the factual issues that arise from a claim that an order is void in front of the judge who entered the order.” Accordingly, as the Defendant in this case has demonstrated that the Final Judgment of Foreclosure is void due to improper constructive service, Defendant is entitled to relief from the Judgment pursuant to Rule 1.540(b)(4) as a void judgment. For these reasons, Defendant respectfully requests that an Order be entered vacating the Final Summary Judgment of Foreclosure entered in this matter and setting aside the sale. Moreover, Florida Rule of Civil Procedure Rule 1.540(b)(3) allows the court to relieve a patty from a final judgment for the following reason: “fraud (whether heretofore denominated intrinsic or extrinsic) misrepresentation, or other misconduct of an adverse party. In the matter before this court, clearly the Sworn Statement submitted by Plaintiff misrepresented that it had no knowledge of Defendant’s last known address and the court allowed the matter to proceed to judgment based upon that misrepresentation that improperly allowed the Plaintiff to use constructive service. Had Plaintiff not made this blatant misrepresentation to the court, the Defendant would have received the Notice of Action and had the opportunity to have his day in court. In the case of Lacore v. Gitalda Bake Shop, Inc., 407 So.2d 275, 276 (Fla. 3d DCA 1981), the court recognized that: Rule 1,540(b)(3) is a rule providing for equitable relief and is to be liberally construed, See, ¢.g., Pearlman _v. Mount Sinai_Hospital_of Gre: ater Miami, Inc., 405 So.2d 764 (Fla.3d DCA 1981), The nature of a default judgment is such that a misleading statement by affidavit as to the amount of damages constitutes a misrepresentation by an adverse party for purposes of Rule 1.540(b)(3). See, cg., Kimbrough v. McCranie, 325 So.2d 70 (Fla. Ist DCA 1976); Alexander v. First National Bank of Titusville, 275 So.2d 272 (Fla. 4th DCA 1973). (Emphasis added). As in the Lacore case, clearly, a misrepresentation of allegedly not knowing the address of the Defendant in the Sworn Statement was a material misrepresentation to the detriment of the Defendant and the integrity of this court. Accordingly, as Rule 1.540(b)(3) is to be liberally construed, and since the representation was used to wrongfully get a default against the Defendant and force the sale of the Defendant’s residence, it is respectfully submitted that the Defendant is entitled to relief from the Final Judgment of Foreclosure and to have the subsequent sale set aside. WHEREFORE, for all of the reasons set forth above, Defendant, Douglas Engberg, respectfully requests this honorable Court to enter an Order voiding the Final Judgment of Foreclosure entered on September 11, 2019 and setting aside the sale that occurred on October 28, 2019, to Equity Trust Company Custodian FBO Wendy Ingorvaia IRA, and for such other and further relief as the court deems necessary, equitable and just. Is! Mark Martella Mark Martella, Esq. Florida Bar No. 0024021 Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A. 18501 Murdock Circle, Suite 304 Port Charlotte, FL 33948 (941) 206-3700; Fax (941) 206-3701 mmartella@icardmerrill.com Attorneys for Defendant, Douglas Engberg a/k/a Douglas R. Engberg 10 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via email to: David L. Reider, Esq. of eXL Legal, PLLC at efiling@exllegal.com and via UPS Overnight Delivery to Wendy Ingorvaia, 55 West 14" Street, 7H, New York, NY 10011on this Ist day of November, 2019. /s/ Mark Martella Mark Martella, Esq. Florida Bar No. 0024021 Teard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A. 18501 Murdock Circle, Suite 304 Port Charlotte, FL 33948 (941) 206-3700; Fax (941) 206-3701 mmartella@icardmerrill.com Attorneys for Defendant, Douglas Engberg a/k/a Douglas R. Engberg s‘isharel\mark\engberg\pleadings\min 2 vacate judement.doc 11 EXHIBIT “A” filing # 88993937 E-Filed 05/03/2019 07:53:07 PM fv.1000003076 RETURN OF SERVICE, TS TI CHRCUIE COURT OF CHARLOTTE COUNTY, FLORIDA PLAINTIFF HSBC WANE USA, NATIONAL ASSOCIATION AS TRUSTEE TOR WELLS FARGO ASSETS URITIES CORPORATION, MORYGAGE ASSET-HACKED PAS THROY CERTIFICATES SEI : ‘ARS vs DRI ANT DOUGLAS ENGRERG AVA DOUOLAS R. ENGAERG, FAL,AU DEFPAANT [0 BT SERVE DOUGLAS ENC 5 ERG 5 IIA DOUGH AS RE GHERG Case NOD: 09 TYPE OF PROCESS. SUMMONS &: COMP! INT, LIS PENDENS, STANDING ORDER DIVISION, OnE I rochethis processon the BAO1/2019 at 40:22,4M ' ( Vsorved [2 nan-sorved fie Defeadans identified ubove as deseied baw, ON DATETIME: 4/9/2019 7:20:00 PM. PADDRESS WL Ne SERVED. a7 BERMUDA COURT (ORAPTEAPTEDY [ay NON-SERVICT: bor the ceansn that ler Uihigentefferts, | coud nor verse the Defendant idemtitied hue at yhe bless stated abo, 1) Mifitwy Sta {refined CaNe (Vex Brunch (2 Marita Siatas: CPRefised (Nos mansed (yMasied (C1 Married,but separated (2) Mesile Home CDVee VIN Nor Viste tay Ne 1 aYes Vie: coMMi NON-SERVICE UNOCCPIED) PACKAGES FROM AMAZON ARE STILL AT THE FRONT GATE WITH MY CARD, NO NEIGHOORS OUT TO CONFIRM, {hereby covtty that Lam over the ays of 48, Lamm ut a party to this a wand have no i esti the proves being resveat, ud { ana a Certified Mrovess Server: Special Hracest Server good standing 1 dial erveuitcuunty wy wiki tbe proves os sere anaon ra ceher ase al thorized ip have served poets maiction whese 6 ven 4 cg dncnmral end ie 1h fete ate fo ace eet ES RIS hy x. Sewer pare! SATS DHL, Process Server 1D Title UC applicable © TIFIED PROCESS VER Lyre AXi ie Beoa :1000003076 "AFFIDAVIT OF SERVICE, 18 THB CIRCUTT COURT OP ITE, COUNTY, FLORIDA PLAINTIFF spc USA. NATIONAL ASSOCIATION Ad LUSTER FOR WELLS FARGO ASS SECURITIESCO} \TION, MORTGAGD ASSUT-BACKED PASS, u JROVGH CORTIFICATHS SERIES 2007. ANS: ot DEPENDANT OLGA: ANA DOUGLAS DEFENDANTTO DB SERVED: ‘CASE NO 08-2019-€4-000332 TTYPROF PROCESS: SUMMONS A COMPLAINT, LIS PENDENS, STANDINO ORDER THER { sceived ths procens othe SPRAALD at 1 Cyecrved (a) somaerved the Defeat identi above us described below, ON DATE/TIME: 4/18/2019 11213108 AM \T ADDRESS WHERE SERVED S418 KTRKCALDY CT (OR ATTEMPTED) (3) NON-SERVICE: Fut the reason thal ser lige effort could not cerve the within nhmed defendant athe adress sated above, Mi Sta: ()Mefwa C)No ye Brant ) Maia Statue, (pRefiaed (Mot marind (Manted {( )Meried bot separa (8) Mobile Vora (1 Yes Ven Not Viable (apo Aye Vin ‘COMMENTS: #937 119 AM SINGLE FAMILY HOMEDRICK TANS! ROWNNOTICE THIMATTACHED FOUR CAR SAEGABAGE)IN ON FRONT DOO GROUNDOn FOOL,NO- MGh rostah FaUNT WEADOWIAEPLERROOK TREATMENTENO. MESSAGESEC ETVED REALTY) ABMS, ERLE AND LEFT A 1 hereby eer tha snot a pasty to tbe shove ation or voit and fm over thease of 8 year nd the above affidavit i ine end correct [aS Ja019 stareor__ Le wen Ce tba $475117 county or COOK 294, pie Ratelt PF ‘Sworn to or wffiamed and signed before owe 25 day oF Sener Name H roves Server 1D Tite (appeal): oat Poble OS ler Pitsted Naw of Notary Pull oan we € Produces, 4 Hecation OFFICIAL SEAL, KASHMERE RATCLIFF NOTARY PUBLIC, STATE OF ILLINO!S MY COMMISSION EXPIRES 2/2/23 Filing # 86978116 B-Filed 03/26/2019 02:10:16 PM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA CASE NO, 19000332CA HSBC BANK USA, NATIONAL. ASSOCIATION AS TRUSTEE FOR WELLS FARGO ASSET SECURITIES CORPORATION, MORTGAGE ASSET- BACKED PASS-THROUGH CERTIFICATES SERIES 2007-AR9 Plaintiff, v. DOUGLAS ENGBERG A/K/A DOUGLAS R. ENGBERG, et al. Defendants. / SUMMONS PERSONAL SERVICE ON A NATURAL PERSON DOUGLAS ENGBERG A/K/A DOUGLAS R. ENGBERG 3837 BERMUDA CT PUNTA GORDA, FL 33950-8123 int una is served on you case fo file & written response fo the al chee A nwsvit bias been fled ph st you fil You will trays 20 ealendar days er not protect you: your wi suing themayaboveInge the namber apd named part money, ist andbe Compl hasnt i this Cou your ease. If you do not Tite Dr regyonse ot Tinks, Sou ease, nnd your wages fied if you wantthereaft the Co er by taken witho ut Further winrniny fram the & ot uel. “here are other Tegal vents, Yaw may want (o cal! a altorney ¥Fyan de not koow an sflerney, your tay cal t rin attorney referral service or legal nid fae y may listed in the phone bnok). Tea Yay. you myst also mail or fake a. carbon response yourself, theat the sante thine, you file your writen res nse fo, the Courl UW you chose to fl le ‘afa written your vwril(en response 10 "PLAINTIF F! LAINTIFF'S ATTOR? IBY," eXL, Legal, PLLC, 12425 28th Street North, Sti20h hetocopy I Petersbisry, FL, 33716, IN OF THE STA ‘You are commanded to serve this Summons and a copy of the Complaint or h ition ih this k jawsuil on the above-nan med Defendant, 03/27/2019 42019 WITNESS my hand and the seul of tls Court on (SEAL) odation in order to participate If you a ve a person with a disabi ty who needs any accomm on of certain assistance, in this proceeding, you are entitled, at no cost to you, to the provisi whose office is located at Please contact Jon Embury, Admini istrative Services Manager, Marion Avenue, Punta Gorda, Florida 33950, court ani whose telephone number is 50 E. schedu led appearance, or immediately (941}637-2110, at least 7 daysy before our e appearance is less than upon receiving this no tification if the ime before the schedul days; if Fyou are hearing or voce impair711. red, call TION PRACTICES ACT YOU ARE ADVISED THAT NOTE: PURSUANT TO THE FAIR DEBT COLLEC FIRM IS DEEMED TO BE ‘A DEBT COLLE CTOR ATTEMPTING TO COLLECT A DEBT THIS LAW U! ISED FOR THAT PURPOSE. AND ANY INFORMATION OBTAINED WILL BE MPORTANTE Usted hn side demantado fegatmente. ‘Tiene velnte (20) dias, contagos w partit del reeibo de edestadesea not acion, para contestar Ia demanda, udjunte, por eserito, y presentarta ante est fe tribunal, Una Thaniada telefoniea no nombres lo prategera; si que ef tribunal genisidero si defensa, che prosentar st respinesit par escrito, incluyenda el numero def cesn y los de las partes, vresndas en dicho 8, Si natedpreviono. el euso y pautin ser de spajado de sis ingsesvs 4 y unpropiedades, contest {a denmanela a tiempo, padiese perder tegates. o privado de sus derechos, sin aviso del tibunal, Existen ottos requisites Si lo desea, pues de usted consullir abogado immediatumente. Si ne ennoce 2 ua hugado, pueds tamara unu de las offcinas de asistencia legul que aparecen en Ia guia teleforioa, Si desea responder a fa demuanda por su eat in, a mismo tiempo en que pres in su respuesta anteof tribunal, debera usted enviar por correo© (Derandate © Abogado del fentrexat una enpia de sit respuesta 3 la persona denominwda abajo como “pinintiPiaintie’s Auomney". ema late). Wy LAN’ Des poursuites judivinries ont ete “entreprises contre vous, Vous ayer. 20 jonrs 5‘Unconeculifs a partir de ja date de Fasstgnution de celts citation pane esposer ue reponse eerie « tla panse plainte ed-jointe aupres de ce Tribus, simple coup de telephone est insuffisnnt pour vous prateger; vous etes ablige de deposer votre re cerlte, ayes meat du numero do dossier ci-dessns ot du nom des parties nommees ie tasi cause yous, sowhaites que fe Tribunal entende vole cuse, ‘Si vous ne depasez pas volre seponse cert dans te relal requis, vous risquiz a de perdre Hy a dautres ain qe votre saluire, votre ung 1, et_vosrir bens peatvent elie st par ta suite, sans aucua preavis ulteriour du ‘un avocat. Si vous ne connaissez pas d'avacul, vous pourriez telephener ‘obligations jucidiques el vous putivez reque os services immedintsique di (Figerunt un service de reference U'avocats ou a nun breast d'assistence & Fannunire de telephones). cerit, i vows faudea eg Jement, en mains temps que cette famuilite, faite parvenir ou 8 vous ehoisissez de doposer vous-meme une picreponse de votte reponse cerite au PlaintiffPlain tife's Attorney” (laignant au a su avoente) Homme ‘expedier une cople an entfane ou ne phot cielessous PLAINTIF! ATTORNEY: EXL LEGAL, PLLC 12425 28TH STREET NORTH, SUITE 200 ST. PETERSBURG, FL 33716 ‘TELEPHONE NO. (727) 536-4911 - EXHIBIT 1 - IN THE CIRCUIT COURT FOR THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA A NOTICE FROM THE COURT REGARDING LAWSUITS TO FORECLOSE MORTGAGES ON HOMES to If you are being sued to foreclose the morlgage on your home you may have the opportunity participate in “mediation.” At “mediation,” you will meet with a Florida Supreme Court certified e your mediator appointed by the court and also a representative of the company asking to foreclosur . mortgage to see if you and the company suing you can work out an agreement to stop the foreclosure about the The mediator will not be allowed to give you legal advice or to give you an opinion job is to remain neutral and not take sides, but to give both sides a chance to lawsuit, The mediator’s and the company talk to cach other fo see if'an agreement can be reached to stop the foreclosure. If you , a settlemen t agreemen t will be written up and signed by you and the suing you come to an agreement is company suing you. With some limited exceptions, what cach side says at the mediation confidential and the judge will not know what was said at mediation , (HMP) to provide ‘The ‘Twentieth Circuit has implemented the Homestead Mediation Program meaningful mediations early in the foreclosu re process for homeown ers thal mect the criteria listed does not climina te the opportun ity to mediate at any other below. Election into or out of this program e, and Florida time prior Lo ti al as may be allowed by Rule 1.700, FI lorida Rules of Civil Procedur Statute Chapter 44. Eligibility Criteria for the Homestead Mediation Program: a The home has a homestead exemption; and and G You are the person who borrowed the money for the mortgage; ‘The origination of the note and mor(gag e sued upon was subject to the provisions a of the federal Truth in Lending Act, Regulat ion Z. provide all the To participate in the Homestead Mediation Program, the borrower must s: following documents within 20 days after you were served the summon . File with the Clerk a written respons e to the Complai nt, with a copy to Plaintiffs attorney. m Opt-In . File with the Clerk a completed and signed Homestead Mediation Progra Form, with a copy to Plaintiff's attorney. all ° And, the Borrower shall complete and sign the Financial Worksheet, include a copy to the attachments requested, and submit the original to Plaintiff's counsel, with Court’s Mediation Department, —_ l Worksheet can be found on the The Homestead Mediation Program Opt-In Form and the Financia losure.asp or by calling the Court Court’s website at http Javww.ca.cjis20.org/home/main/forec iof2 Mediation Department at 239-533-3353. Please note that this program is not to be used as a tactic to delay the foreclosure process and is intended for Borrowers who have the means and ability to effectively mediate their case. An clection on the part of the Borrower to opt-in to the HMP does not operate as an automatic stay of the case, but rather, (he proceedings, including but not limited to discovery, may continue pending mediation. ‘The fee for mediation shall be $300.00 for the first (wo (2) hours, to be equitably and proportionately divided between the Plaintiff and the Borrower, as provided for by Rule 1.720(g). ‘The Borrower's portion of the mediation fee, $150.00, is due at the beginning of the mediation session, and shall be payable directly to the Mediator. Any additional fees for mediation in excess of the initial two (2) hours shall be apportioned equally between the Borrower and the Plaintiff and shall be payable directly to the Mediator. of the If it is determined that the Borrower does not have sufficient payment for the Borrower's portion be repotted as a failure to appear by the mediation fee at the beginning of the mediation session, it shall mediation session and the mediation Borrower. Any party that fails to appear al a properly noticed cancellation fee of does not occur; the parly who failed to appear will be responsible for a “no show” the Borrower, if the Borrower fails to appear, $300.00, Due to the voluntary nature of this program by participat ion in the HMP, mediation will not this will be deemed as a waiver of the privilege of further ber peduled and the case will proceed accordingly. n Program, If you have questions or for additional information regarding the Homestead Mediatio or visit our websile at contact the Lee County Mediation office at 239-533-3353 http:/Avww.ca.cjis20.org/home/main/foreclosure.asp. Resources Resourc to Assist es to the Foreclo Assist iuin the ure Process Sorectossure “soceee 239-252-8138 Collier County Bar Association Lawyer Referral Service... 239-334-449 1 Lee County Bar Association Lawyer Referral Service we 800-342-8011 The Florida Bar Lawyer Referral Service..... (for Charlotte, Hendry, and Glades Counties) sey 239-775-4555 Legal Aid Society of Collier County, Inc, — Naples... (for Collier County residents only) 239-334-4554 Florida Rural Legal Services, Inc, ~ Fort Myers... 941-505-9007 Florida Rural Legal Services, Inc, - Punta Gorda 239-434-2397 HUD of SW Morida, providing credit counseling... 20f2 EXHIBIT “B” a oO IN THE CIRCUIT COURT OF THE TWENTIETH GY We JUDICIAL CIRCUIT IN AND FOR CHARLOTTE S COUNTY, FLORIDA a,oe CASE NO, 08-2019-CA-000332 ts HSBC BANK USA, NATIONAL ASSOCIATION AS TRUSTEE FOR WELLS FARGO ASSET SECURITIES CORPORATION, MORTGAGE ASSET- BACKED PASS-THROUGH CERTIFICATES SERIES 2007-AR9 Plaintiff, y, DOUGLAS ENGBERG A/K/A DOUGLAS R. ENGBERG, ET AL. Defendants. / SWORN STATEMENT FOR SERVICE OF PROCESS BY PUBLICATION STATE OF FLORIDA ) COUNTY OF PINELLAS ) David L. Relder BEFORE ME, the undersigned Notary Public, personally appeared attorney for Plaintiff herein, who being first duly sworn, deposes and says: 1 Affiant is the attorney of record for the Plaintiff. 2 Diligent search and inquiry have been made to discover the residence, post office address or mailing address of the Defendant(s), DOUGLAS ENGBERG A/K/A DOUGLAS R. ENGBERG, and all unknown part