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Filing # 73384206 E-Filed 06/11/2018 03:48:23 PM
IN THE CIRCUIT COURT OF THE TWENTIETH
JUDICIAL CIRCUIT IN AND FOR CHARLOTTE
COUNTY, FLORIDA. CIVIL DIVISION
CASE NO. 17000100CA.
U.S. BANK, NATIONAL ASSOCIATION AS LEGAL
TITLE TRUSTEE FOR TRUMAN 2016 SC6 TITLE
TRUST,
Plaintiff,
VS.
THOMAS F. LAMATRICE; UNKNOWN TENANT
NO. 1; UNKNOWN TENANT NO. 2; and ALL
UNKNOWN PARTIES CLAIMING INTERESTS BY,
THROUGH, UNDER OR AGAINST A NAMED
DEFENDANT TO THIS ACTION, OR HAVING OR
CLAIMING TO HAVE ANY RIGHT, TITLE OR
INTEREST IN THE PROPERTY HEREIN
DESCRIBED,
Defendants.
/
PLAINTIFF’S RESPONSE TO DEFENDANT’S OBJECTION TO FORECLOSURE
SALE AND FOR STAY PENDING APPEAL
Plaintiff, U.S. BANK, NATIONAL ASSOCIATION AS LEGAL TITLE TRUSTEE
FOR TRUMAN 2016 SC6 TITLE TRUST (‘Plaintiff’), by and through its undersigned
attorneys, pursuant to Florida Rule of Civil Procedure 1.530(b) and Rules 9,110(b) and 9,310(a)
of the Florida Rules of Appellate Procedure, and files its response to Defendant, THOMAS F.
LAMATRICEF’s Objection to Foreclosure Sale, Certificate of Sale, To Issuance of Certificate of
Title and for Stay Pending Appeal, and states the following:
1 This action was filed to foreclosure real property in Charlotte County, Florida filed on
January 31, 2017.
On or about August 25, 2017, Defendant filed his Answer to Plaintiff's Foreclosure
Complaint.
On October 11, 2017, the Court granted Plaintiff's Motion to Strike Defendant’s
Affirmative Defenses which struck Defendant’s ability to opposing the pending
foreclosure due to his previous surrender of the subject property in bankruptcy.
A Final Summary Judgment of Foreclosure was entered in this matter on February 28,
2018 wherein a foreclosure date was scheduled for April 2, 2018.
On March 15, 2018, Defendant filed his Motion for Rehearing of Final Judgment and
for Stay Pending Appeal.
The foreclosure sale proceeded as scheduled on April 2, 2018 and a Certificate of
Sale was filed with the Clerk of the Court reflecting that the property was sold back to
the Plaintiff as the highest bidder.
On April 12, 2018, Defendant filed its Objection to Foreclosure Sale, Certificate of
Sale, To Issuance of Certificate of Title and For Stay Pending Appeal.
Plaintiff asserts that Defendant’s motion attempts to relitigate the Courts ruling
entered on October 11, 2017 and that new issues are being alleged for which the court
to reconsider,
Plaintiff further asserts that the court should not stay the case because the Defendant
failed to timely file an appeal pursuant to the Rules of Appellate Procedure.
MEMORANDUM OF LAW
I Rehearing and Objection to Sale
Florida R. Civ. Pro. Rule 1.530(a) states that, “a new trial may be granted to all or any of
the parties and on all or a part of the issues. On a motion for a rehearing of matters heard
without a jury, including summary judgments, the court may [emphasis added] open the
judgment if one has been entered, take additional testimony, and enter a new judgment.” The
rule clearly indicates the court may but is not required to consider a Motion for Rehearing.
In the instant case, neither Defendant’s Motion for Rehearing or his Objection to Sale
indicates that he made any attempt to have the hearing heard by the Court. Moreover,
Defendant’s Motion for Rehearing seeks only to reassert the arguments made to the Court when
the it considered Plaintiff's Motion to Strike Defendant's Motion to Strike Affirmative defenses.
Thus, there was not new evidence or questions of law brought forth in the motion that had not
already been considered by the court and the Objection to Sale should be overruled.
IL. Stay Pending Appeal
Rule 9,110(b) of the Florida Rules of Appellate Procedure require that a notice,
accompanied by any filing fees prescribed by law, be filed with the clerk of the lower tribunal
within 30 days of rendition of the order to be reviewed. Rule 9.310(a) of the Florida Rules of
Appellate Procedure requires “a party seeking to stay a final or non-final order pending review”
to “file a motion in the lower tribunal, which shall have continuing jurisdiction, in its discretion,
to grant, modify or deny such relief.”
As of the time that this response is being filed, there is no pending issue filed by the
Defendant before the Second District Court of Appeal that would require a stay pending appeal.
As stated previously, an Order striking Defendant’s Affirmative Defenses was entered on
October 11, 2017. Defendant did not file a Petition for Writ of Certiorari regarding same.
Instead, Defendant filed a Motion for Rehearing subsequent to the entry of the Final Summary
Judgment that, in effect, attempts to ask the court for an untimely review of the Order striking
the affirmative defenses. Defendant now secks to delay the issuance of a Certificate of Title
pending appeal. However, the Final Judgment of Foreclosure was entered on February 28,
2018. A motion indicating an intention to file an appeal should have been filed by the
Defendant no later than Friday, March 30, 2018. Since no such filing exists, Defendant has
failed to timely assert his right to an appellate review of both the Order Striking Affirmative
defenses and the Final Summary Judgment of Foreclosure. Thus, the request for a stay is moot
and should be denied.
WHEREFORE, Plaintiff, U.S. BANK, NATIONAL ASSOCIATION AS LEGAL
TITLE TRUSTEE FOR TRUMAN 2016 SC6 TITLE TRUST, respectfully requests this Court
Overrule Defendants Objection to Foreclosure Sale and Certificate of Sale and direct the Clerk of
the Court to Issue a Certificate of Title. Plaintiff further requests that the court deny
Defendant’s request for a stay pending appeal as the matter is moot and requests any such further
relief this Court deems proper and just including the award of attorneys’ fees and costs,
CERTIFICATE OF SERVIC
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished
by regular U.S. Mail, Facsimile or electronic mail this__11 _ day of June, 2018 to all parties
on the attached service list.
SHD Legal Group P.A.
Attorneys for Plaintiff
PO BOX 19519
Fort Lauderdale, FL 33318
Telephone: (954) 564-0071
Facsimile: (954) 564-9252
Service E-mail: answers@shdlegalgroup.com
By:_/s/: Marie A. Potopsingh
Matie A. Potopsingh
Florida Bar No. 560901
1460-162745
MAP
SERVICE LIST
Case No. 17000100CA
MARK P, STOPA, ESQ.
Attorney for THOMAS F, LAMATRICE
2202 N. WESTSHORE BLVD., SUITE 200
TAMPA, FL 33607
Email Address: foreclosurepleadings@stopalawfirm.com
UNKNOWN TENANT NO. | N/K/A ANTHONY ARMSTRONG
1010 CHEVY CHASE ST NW
PORT CHARLOTTE, FL 33948
UNKNOWN TENANT NO. 2 N/K/A JIMMY FONTANA
1010 CHEVY CHASE ST NW
PORT CHARLOTTE, FL 33948
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Filing # 73384206 E-Filed 06/11/2018 03:48:23 PM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA. CIVIL DIVISION CASE NO. 17000100CA. U.S. BANK, NATIONAL ASSOCIATION AS LEGAL TITLE TRUSTEE FOR TRUMAN 2016 SC6 TITLE TRUST, Plaintiff, VS. THOMAS F. LAMATRICE; UNKNOWN TENANT NO. 1; UNKNOWN TENANT NO. 2; and ALL UNKNOWN PARTIES CLAIMING INTERESTS BY, THROUGH, UNDER OR AGAINST A NAMED DEFENDANT TO THIS ACTION, OR HAVING OR CLAIMING TO HAVE ANY RIGHT, TITLE OR INTEREST IN THE PROPERTY HEREIN DESCRIBED, Defendants. / PLAINTIFF’S RESPONSE TO DEFENDANT’S OBJECTION TO FORECLOSURE SALE AND FOR STAY PENDING APPEAL Plaintiff, U.S. BANK, NATIONAL ASSOCIATION AS LEGAL TITLE TRUSTEE FOR TRUMAN 2016 SC6 TITLE TRUST (‘Plaintiff’), by and through its undersigned attorneys, pursuant to Florida Rule of Civil Procedure 1.530(b) and Rules 9,110(b) and 9,310(a) of the Florida Rules of Appellate Procedure, and files its response to Defendant, THOMAS F. LAMATRICEF’s Objection to Foreclosure Sale, Certificate of Sale, To Issuance of Certificate of Title and for Stay Pending Appeal, and states the following: 1 This action was filed to foreclosure real property in Charlotte County, Florida filed on January 31, 2017. On or about August 25, 2017, Defendant filed his Answer to Plaintiff's Foreclosure Complaint. On October 11, 2017, the Court granted Plaintiff's Motion to Strike Defendant’s Affirmative Defenses which struck Defendant’s ability to opposing the pending foreclosure due to his previous surrender of the subject property in bankruptcy. A Final Summary Judgment of Foreclosure was entered in this matter on February 28, 2018 wherein a foreclosure date was scheduled for April 2, 2018. On March 15, 2018, Defendant filed his Motion for Rehearing of Final Judgment and for Stay Pending Appeal. The foreclosure sale proceeded as scheduled on April 2, 2018 and a Certificate of Sale was filed with the Clerk of the Court reflecting that the property was sold back to the Plaintiff as the highest bidder. On April 12, 2018, Defendant filed its Objection to Foreclosure Sale, Certificate of Sale, To Issuance of Certificate of Title and For Stay Pending Appeal. Plaintiff asserts that Defendant’s motion attempts to relitigate the Courts ruling entered on October 11, 2017 and that new issues are being alleged for which the court to reconsider, Plaintiff further asserts that the court should not stay the case because the Defendant failed to timely file an appeal pursuant to the Rules of Appellate Procedure. MEMORANDUM OF LAW I Rehearing and Objection to Sale Florida R. Civ. Pro. Rule 1.530(a) states that, “a new trial may be granted to all or any of the parties and on all or a part of the issues. On a motion for a rehearing of matters heard without a jury, including summary judgments, the court may [emphasis added] open the judgment if one has been entered, take additional testimony, and enter a new judgment.” The rule clearly indicates the court may but is not required to consider a Motion for Rehearing. In the instant case, neither Defendant’s Motion for Rehearing or his Objection to Sale indicates that he made any attempt to have the hearing heard by the Court. Moreover, Defendant’s Motion for Rehearing seeks only to reassert the arguments made to the Court when the it considered Plaintiff's Motion to Strike Defendant's Motion to Strike Affirmative defenses. Thus, there was not new evidence or questions of law brought forth in the motion that had not already been considered by the court and the Objection to Sale should be overruled. IL. Stay Pending Appeal Rule 9,110(b) of the Florida Rules of Appellate Procedure require that a notice, accompanied by any filing fees prescribed by law, be filed with the clerk of the lower tribunal within 30 days of rendition of the order to be reviewed. Rule 9.310(a) of the Florida Rules of Appellate Procedure requires “a party seeking to stay a final or non-final order pending review” to “file a motion in the lower tribunal, which shall have continuing jurisdiction, in its discretion, to grant, modify or deny such relief.” As of the time that this response is being filed, there is no pending issue filed by the Defendant before the Second District Court of Appeal that would require a stay pending appeal. As stated previously, an Order striking Defendant’s Affirmative Defenses was entered on October 11, 2017. Defendant did not file a Petition for Writ of Certiorari regarding same. Instead, Defendant filed a Motion for Rehearing subsequent to the entry of the Final Summary Judgment that, in effect, attempts to ask the court for an untimely review of the Order striking the affirmative defenses. Defendant now secks to delay the issuance of a Certificate of Title pending appeal. However, the Final Judgment of Foreclosure was entered on February 28, 2018. A motion indicating an intention to file an appeal should have been filed by the Defendant no later than Friday, March 30, 2018. Since no such filing exists, Defendant has failed to timely assert his right to an appellate review of both the Order Striking Affirmative defenses and the Final Summary Judgment of Foreclosure. Thus, the request for a stay is moot and should be denied. WHEREFORE, Plaintiff, U.S. BANK, NATIONAL ASSOCIATION AS LEGAL TITLE TRUSTEE FOR TRUMAN 2016 SC6 TITLE TRUST, respectfully requests this Court Overrule Defendants Objection to Foreclosure Sale and Certificate of Sale and direct the Clerk of the Court to Issue a Certificate of Title. Plaintiff further requests that the court deny Defendant’s request for a stay pending appeal as the matter is moot and requests any such further relief this Court deems proper and just including the award of attorneys’ fees and costs, CERTIFICATE OF SERVIC I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by regular U.S. Mail, Facsimile or electronic mail this__11 _ day of June, 2018 to all parties on the attached service list. SHD Legal Group P.A. Attorneys for Plaintiff PO BOX 19519 Fort Lauderdale, FL 33318 Telephone: (954) 564-0071 Facsimile: (954) 564-9252 Service E-mail: answers@shdlegalgroup.com By:_/s/: Marie A. Potopsingh Matie A. Potopsingh Florida Bar No. 560901 1460-162745 MAP SERVICE LIST Case No. 17000100CA MARK P, STOPA, ESQ. Attorney for THOMAS F, LAMATRICE 2202 N. WESTSHORE BLVD., SUITE 200 TAMPA, FL 33607 Email Address: foreclosurepleadings@stopalawfirm.com UNKNOWN TENANT NO. | N/K/A ANTHONY ARMSTRONG 1010 CHEVY CHASE ST NW PORT CHARLOTTE, FL 33948 UNKNOWN TENANT NO. 2 N/K/A JIMMY FONTANA 1010 CHEVY CHASE ST NW PORT CHARLOTTE, FL 33948