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Filing # 66790482 E-Filed 01/19/2018 04:15:40 PM
IN THE CIRCUIT COURT OF THE TWENTIETH
JUDICIAL CIRCUIT IN AND FOR CHARLOTTE
COUNTY, FLORIDA.
CIVIL DIVISION
CASE NO. 17000100CA
US. BANK, NATIONAL ASSOCIATION AS
LEGAL TITLE TRUSTEE FOR TRUMAN 2016
SC6 TITLE TRUST,
Plaintiff,
vs.
THOMAS F. LAMATRICE; et al,
Defendant(s).
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
Plaintiff, U.S. BANK, NATIONAL ASSOCIATION AS LEGAL TITLE TRUSTEE
FOR TRUMAN 2016 SC6 TITLE TRUST (‘Plaintiff’), by and through its undersigned counsel
and pursuant to Fla. R. Civ. P. 1.510, moves this Court for the entry of summary judgment
against all Defendants, and further states:
PROCEDURAL HISTORY
1 This is an action for mortgage foreclosure filed. The Plaintiff filed the Verified
Complaint on December 7, 2015 against:
a. THOMAS F. LAMATRICE (“Defendant”);
b. UNKNOWN TENANT NO, 1; and
UNKNOWN TENANT NO. 2.
2 Defendant executed the Note and Mortgage for the subject property located at,
1010 Chevy Chase St NW, Port Charlotte, Florida 33948, better described as:
LOT 43, BLOCK 375, PORT CHARLOTTE SUBDIVISION SECTION 23,
ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 5,
PAGE 14A, OF THE PUBLIC RECORDS OF CHARLOTTE COUNTY,
FLORIDA.
3 Defendant filed an Answer and Affirmative Defenses on August 25, 2017.
However the Court struck all the defenses in this case.
SUMMARY JUDGMENT EVIDENCE
Plaintiff hereby relies on the following summary judgment evidence:
LNA with a Copy of Note with endorsement in blank, Exhibit “A”;
Recorded Mortgage, Exhibit “B”;
Affidavit in Support of Summary Judgment (previously filed); and
UNDISPUTED MATERIAL FACTS
5 The following facts are not in dispute:
Undisputed Fact Source
riginat
Luis executed a Note wit Ba of America, N.A. in the amount 0 Exhibit “A’
$158,115.00.
The Note was accompanied by Mortgage executed by Thomas F. Lamatrice Exhibit “B”
on December 20, 2006.
The loan was never modified. Exhibits “A” and “B”
b. tandin:
The Note ‘was originated by Bank of America and endorsed in Blank Aff. Exh. “cP
The Note was subsequently assigned to the Plaintiff. Aff. Exh. “p”
Additionally, Plaintiff purchased the subject loan in a purchase of multiple Aff. Exh. “—p”
loans providing the Plaintiff with the right to enforce.
fa dition
The Defendants defaulted on February 1, 2012 Aff. Exh. Ee?
Plaintiff's servicer sent the Defendants a Notice of Default on September 20, Aff. Exh. “G” & “HH”
2016.
The Defendants did not cure the default. Aff. 9
The Plaintiff was entitled to enforce the Note when it was lost, as it was held Aff. Exh. “C
by its counsel, and then shipped to its servicer when it was subsequently lost.
The Loss of possession was not the result of a transfer by the person or a Aff. Exh, “C”
lawsuit seizure.
Although a diligent search was conducted the Plaintiff cannot reasonable Aff. Exh. “C”
obtain possession of the Instrument because of the loss.
Plaintiff agrees to indemnify the borrower if the note is found. Aff. Exh. “C”
STANDARD FOR SUMMARY JUDGMENT
6. A party moving for summary judgment must show conclusively the absence of
any genuine issue of material fact. Craven v. TRG-Boynton Beach, Ltd., 925 So. 2d 476, 479-80
(Fla. 4 DCA 2006). In considering the motion, the court must make every possible inference in
favor of the party against whom summary judgment is sought. /d. at 480. A summary judgment
should not be granted unless the facts are so crystallized that nothing remains but questions of
law. Jd. “The burden is initially on the movant. Only where the movant tenders competent
evidence in support of his motion does the burden shift to the other party to come forward with
opposing evidence.” Id.
7. Summary judgment is particularly appropriate in cases involving contracts.
Volusia Countvy. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000). Under Florida
law, it is the role of the Court to determine the construction of a written agreement pursuant to
the unambiguous language in the agreement. Mariner Cay Property Owners Ass'n Inc. v.
Topside, 714 So. 2d 1130 (Fla. 4th DCA 1998). When the language of an agreement is
unambiguous, the Court shall not rewrite a contact between the parties. Home Development Co.
of St. Petersburg v. Bursani, 178 So. 2d 113,114 (Fla. 1965). Additionally, the owner and holder
of a valid recorded mortgage encumbering the subject real property, has a valid lien superior in
dignity and right to -any subsequently recorded mortgage, claim, or lien attaching to the property
through the mortgagors, their successors, assigns, and tenants. Lee v. Slemons, 150 So, 2d 792,
794 (Fla. 1933).
MEMORANDUM OF LAW
A COUNT FOR MORTGAGE FORECLOSURE
I. Plaintiff Possesses Standing to Foreclose
8 A necessary element in any mortgage foreclosure proceeding is that the party
seeking foreclosure must demonstrate that it has standing to foreclose. McLean v. JP Morgan
Chase Bank Nat’l Ass’n, 79 So. 3d 170, 173 (Fla. 4th DCA 2012). The plaintiff must prove that
it had standing to foreclose when the original complaint was filed. Id. The UCC provides that a
“person entitled to enforce” a negotiable instrument means the holder of the instrument, a non-
holder in possession of the instrument who has the rights of a holder, or a person not in
possession of the instrument who is entitled to enforce. § 673.301 1(1)-(3), Fla. Stat. (2013).
9 A “holder” is defined as “[t]he person in possession of a negotiable instrument
that is payable either to bearer or to an identified person that is the person in possession.” §
671.201(21)(a), Fla. Stat. (2013). “A plaintiff who is not the original lender may establish
standing to foreclose a mortgage loan by submitting a note with a blank or special endorsement,
an assignment of the note, or an affidavit otherwise proving the plaintiffs status as the holder of
the note.” Focht v. Wells Fargo Bank, N.A., 124 So. 3d 308, 310 (Fla. 2d DCA 2013).
10. When a note contains an endorsement in blank the plaintiff can establish standing
when showing the note was held at the time of filing. Country Place Cmty. Ass'n y. J.P. Morgan
Mortg. Acq. Corp., 51 So. 3d 1176, 1179 (Fla. 2d DCA 2010); Mazine v. M & I Bank, 67 So. 3d
1129, 1131 (Fla. 1st DCA 2011); see also § 673.3011. See Keifert v. Nationstar Mortg., LLC,
153 So. 3d 351, 353 (Fla. Ist DCA 2014). Standing can be established through documents and
the testimony of a litigation analyst.” Lloyd v. Bank of New York Mellon, 160 So. 3d 513, 515
(Fla. 4th DCA 2015).
11. Additionally, “an agent may hold commercial paper on behalf of its principal, and
when it does, the principal constructively possesses the commercial paper. Therefore, where an
agent holds a mortgage note on behalf of its principal, the principal has constructive possession
of the note and sanding to file a complaint for foreclosure as a holder under section
673.3011(1).” Phan v. Deutsche Bank Nat’l Trust Co., 198 So. 3d 744, 749 (Fla. 2d DCA 2016);
Fannie Mae v. McFadyen, 194 So. 3d 418, 423 (Fla. 3d DCA 2016)(finding Seterus
constructively possessed the note on behalf of Fannie Mae); Caraccia v. U.S. Bank, Nat’l Ass’n,
185 So. 3d 1277, 1279 (Fla. 4th DCA 2016)(confirming that the element of possession necessary
for standing to bring an action on a note may be met “through actual or constructive
possession.”); Deutsche Bank Nat’! Trust Co. v. Applewhite, 2017 Fla. App. LEXIS 3775 (Fla.
4" DCA 2017)(holding in the context of foreclosure actions, a loan servicing agent is a proper
representative to possess a mortgage note on behalf, such that the plaintiff remains in
constructive possession of the note as the holder sufficient to establish standing); Deutsche Bank
Nat'l Trust Co. v. Mobley, 2017 Fla. App. LEXIS 3095 (Fla. 3d DCA 2017)(same); U.S. Bank,
Nat’l Ass’n v. Angeloni, 199 So. 3d 492, 493 (Fla. 4" DCA 2016)(“Possession of a note by a
third party agent such as a servicer or law firm, gives the "owner" of the note constructive
possession sufficient to establish standing as the note's holder’).
12. Lastly, the Plaintiff can establish standing through the Pooling and Servicing
Agreement coupled with the note endorsed in blank. Bolous v. U.S. Bank Nat’l Ass'n, 210 So. 3d
691 (Fla. 4" DCA 2016); HSBC Bank USA, N.A. vy. Alejandre, 2017 Fla. App. LEXIS 5785 (Fla.
4% DCA 2017); Pinnock v. Bank of N.Y. Mellon, 2016 Fla. App. LEXIS 18770 (Fla. 4° DCA
2016); Chahrour vy. Deutsche Bank Nat’l Trust Co., 2017 Fla. App. LEXIS 216 (Fla. 2017);
Deutsche Bank Nat’! Trust Co. v. Marciano, 190 So. 3d 166 (Fla. 5" DCA 2016).
13. Here, Plaintiff established standing in multiple ways. First, the Plaintiff was
assigned the Note via an Assignment of Mortgage. In addition, the Plaintiff has produced the
Pooling and Servicing Agreement with Mortgage Loan Schedule. The PSA establishes that the
loan was transferred to the Trust. Accordingly, the Plaintiff properly established its standing to
foreclose.
Il. Conditions Precedent
14. Prior to filing this action Plaintiff sent a Notice of Default and Right to Cure
Default letter dated September 20, 2016 relating the default on the loan at the subject Property
address. Plaintiff only needs to show substantial compliance with conditions precedent. Seaside
Cmty. Dev. Corp. v. Edwards, 573 So. 2d 142, 145 (Fla. I“ DCA 1991) (“When the happening of
a condition precedent is an element of a contract, no recovery can be had with regard to
performance of the contract substantial compliance with the condition precedent.”) (Emphasis
added); State Farm Mut. Auto. Ins. Co. v. Curran, 135 So. 3d 1071 (Fla. 2014); Green Tree
Servicing, LLC v. Milam, 2D14-660 (Fla. 2d DCA July 29, 2015).
15. The Second District ruled that this particular language fully complied with the
terms of the mortgage. U.S. Bank Nat'l Ass'n v. Busquets, 135 So. 3d 488 (Fla. 2d DCA 2014).
The Second District reviewed paragraph 22 of the mortgage and concluded:
Furthermore, the language of the Bank's notice adequately
describes the nature of the proceedings that Busquets might face.
The notice states that in the foreclosure proceeding, the lender may
collect attorney's fees and costs in addition to the unpaid principal
and interest. The notice further advises that in the foreclosure
proceeding, the mortgagee has “the right to assert in court the
nonexistence of a default or any other defense to acceleration and
foreclosure." Thus, the complete paragraph in the Bank's notice
adequately describes the foreclosure proceeding as a judicial
proceeding, making the notice sufficient under paragraph twenty-
two of the mortgage contract. It was therefore error for the trial
court to hold otherwise. Id.
16. The Second District also addressed with specificity of the use of the word “may”
rather than “shall” in connection with the right to reinstate, and concluded that the language was
in compliance:
Paragraph nineteen of the mortgage specifies Busquets’ right to
reinstate after acceleration by stating that "[i]f the Borrower meets
certain conditions, [the] Borrower shall have the right to have the
enforcement of this Security Instrument discontinued." The
paragraph then designates the timing for exercising this right, and
it continues by listing four conditions that must be met to be
eligible to secure reinstatement. In other words, by the plain
reading of the terms of the mortgage contract, the right to
reinstatement is at best a qualified right, obtainable only after the
borrower meets the specified conditions precedent. The trial court's
reading of paragraph twenty-two in isolation might suggest that the
notice must advise Busquets of an absolute right, but such a
reading is contrary to the provisions of paragraph nineteen and
would, in effect, misadvise Busquets of his rights by advising him
that he had an absolute right in conflict with the conditional rights
provision of the mortgage contract.
U.S. Bank Nat'l Ass'n v. Busquets, 135 So. 3d 488 (Fla. 2d DCA 2014), Ultimately, the Second
District reversed the trial court which had found that this language in the demand letter was not
in compliance with the mortgage. In the present case, Demand Letter meets all the elements of
paragraph 22. Based on the foregoing, to the extent any conditions precedent to suit exists, the
Plaintiff satisfied all necessary conditions precedent prior to filing this action.
Til. No Affirmative Defenses to Preclude Summary Judgment
17. There are no affirmative defenses, or for that matter any issues of fact precluding
the entry of summary judgment. The Defendant filed bankruptcy prior to this action and
surrendered the subject property. The Defendant is not permitted to contest this action, and
otherwise oppose the Plaintiff's ability to foreclose. Failla v. Citibank, N.A., 838 F.3d 1170 (11
Cir. 2016). Additionally, the Court has struck all defenses,
B COUNT TO REESTABLISH LOST NOTE
18. Plaintiff also met all requirement to reestablish the lost note. The alternative
requirements for a party to establish standing to foreclose:
[T]he party seeking foreclosure must present evidence that it holds
the note and mortgage in question in order to proceed with its
foreclosure action. A plaintiff must tender the original promissory
note to the trial court or seek to reestablish the note under section
673.3091, Florida Statutes (2010). If the note does not name the
plaintiff as the payee, the note must bear an endorsement in favor
of the plaintiff or a blank endorsement. Alternatively, the plaintiff
may submit evidence of an assignment from the payee to the
plaintiff or an affidavit of ownership to prove its status as a holder
of the note.
Richards v. HSBC Bank United States, 91 So. 3d 233, 234 (Fla. 5“ DCA 2012) (internal citations
omitted) citing Gee v. U.S. Bank Nat'l Ass'n, 72 So. 3d 211, 213 (Fla. 5th DCA 2011). Fla. Stat.
§673.3091 states:
(1) A person not in possession of an instrument is entitled to enforce
the instrument if:
(a) The person seeking to enforce the instrument was entitled to
enforce the instrument when loss of possession occurred, or has
directly or indirectly acquired ownership of the instrument from a
person who was entitled to enforce the instrument when loss of
possession occurred;
(b) The loss of possession was not the result of a transfer by the
person or a lawful seizure; and
(c) The person cannot reasonably obtain possession of the instrument
because the instrument was destroyed, its whereabouts cannot be
determined, or it is in the wrongful possession of an unknown person
or a person that cannot be found or is not amenable to service of
process.
(2) A person seeking enforcement of an instrument under subsection
(1) must prove the terms of the instrument and the person’s right to
enforce the instrument. If that proof is made, s. 673.3081 applies to the
case as if the person seeking enforcement had produced the
instrument. The court may not enter judgment in favor of the person
seeking enforcement unless it finds that the person required to pay the
instrument is adequately protected against loss that might occur by
reason of a claim by another person to enforce the instrument.
Adequate protection may be provided by any reasonable means.
Fla. Stat. § 673.3091 (2016).
19. Under Fla. Stat. 673.3011(3), a “person entitled to enforce” an instrument is a
person not in possession of the instrument who is entitled to enforce the instrument pursuant to s.
673.3091.” Fla. Stat. § 673.3011(3) (2016). Plaintiff's “right to enforce the instrument” can be
established by possession of an original note payable to the plaintiff or possession of an original
note which is either endorsed in blank or specially endorsed in plaintiffs favor. Gee v. U.S.
Bank, 72 So, 3d 211, 213 (Fla. 5" DCA 2011) (citing Riggs v. Aurora Loan Servs., 36 So. 3d
932, 933 (Fla. 4" DCA 2010). “The endorsement must have occurred before the filing of the
complaint because it is axiomatic that standing must be shown as of the filing of the complaint.”
Elsman v. HSBC Bank USA, 182 So. 3d 770, 771-772 (Fla. 5“ DCA 2015) (internal quotation
marks and citations omitted). Once the terms of the note and the party’s right to enforce the note
are established, Fla. Stat. 673.3081 “applies to the case as if the person seeking enforcement had
produced the instrument.” Fla. Stat. § 673.3081 (2016).
20. Here, Plaintiff met all the requirements of Fla. Stat. 673.3091. Firstly, Plaintiff
has proffered a copy of the note to establish its terms. Second, Plaintiff explained the
circumstances surrounding the loss of the Note in the LNA, which included that the loss was not
the result of a transfer or unlawful seizure, and that RUSHMORE was unable to locate the lost
note after a diligent search. Lastly, the Plaintiff, through RUSHMORE, established that it would
indemnify the borrowers. Plaintiff has met all elements to re-establish the lost note.
Cc AFFIRMATIVE DEFENSES
21. The Defendant has no affirmative Defenses in this action pursuant to this Court’s
Order and the fact the Defendant elected to surrender the subject property in his bankruptcy.
WHEREFORE, Plaintiff, respectfully requests this Court enter summary judgment in its
favor, and for any further relief this Court deems proper and just.
CERTIFICATE OF SERVICE
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 19th day of January, 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/ Adam A. Diaz
Adam A. Diaz
Florida Bar No. 98379
1460-162745
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. 1 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
EXHIBIT A
a
IN THE CIRCUIT COURT OF THE TWENTIETH
JUDICIAL CIRCUIT IN AND FOR CHARLOTTE
COUNTY, FLORIDA. CIVIL DIVISION
CASE NO.
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.
Loan No: a
AFFIDAVIT OF LOST NOTE
STATE OF
) Ss.
COUNTY OF )
Jeannette Kabayan , who
BEFORE ME, the undersigned authority, personally appeared
after being first duly sworn on oath deposes and says:
1 Tam _ Assistant
Vice President of Rushmore Loan Management Services LLC, servicing agent to
Plaintiff, and have personal knowledge of the status of the loan that is the subject of the above
captioned suit. More specifically, I have personal knowledge with respect to the following loan
("the Loan")
Loan Number:
Borrowers: THOMAS F. LAMATRICE
Date of Note: 12/20/2006
Original Principal Balance: 158,115.00
Property Address: 1010 CHEVY CHASE ST NWPORT CHARLOTTE, FL 33948
Rushmore Loan Management Services LLC maintains records for the Loan in its capacity as
plaintiff's servicer. As part of my job responsibilities, 1 am familiar with the type of records
maintained in connection with the Loan.
Some of the information in this affidavit is taken from Rushmore Loan Management Services
LLC's business records,
I have personal knowledge of Rushmore Loan Management Services LLC's procedures for
creating and maintaining these records. Such business records are: (a) made at or near the time of
the occurrence of the matters set forth therein by persons with personal knowledge of the
information in the business record, or from information transmitted by persons with personal
knowledge; and (b) kept in the course of regularly conducted business activities. It is the regular
practice to make such records. I have personal knowledge of Rushmore Loan Management
Services LLC's procedures for the safekeeping and retrieval of original notes serviced by
Rushmore Loan Management Services LLC on behalf of the note holder and Rushmore Loan
Management Services LLC lost note procedures for determining that an original note is lost.
Attached as Exhibit A is a copy of the note evidencing the terms of the note (Note), which is a
true and correct copy of the form of the note.
I have personal knowledge that Rushmore Loan Management Services LLC's lost note
procedures were followed in determining that the Note has been lost and that a good faith effort
was made to locate the lost note in accordance with such procedures.
Below is the clear chain of the endorsements, transfers, allonges or assignments of the Note and
all documents that evidence same as are available to Plaintiff:
a, Original Payee BANK OF AMERICA, N.A. TO BLANK via endorsement
b. Original Payee BANK OF AMERICA, N.A. TO CHRISTINA TRUST, A DIVISION OF
WILMINGTON SAVINGS FIND SOCIETY, FSB, NOT IN ITS INDIVIDUAL
CAPACITY BUT AS TRUSTEE OF ARLP TRUST 3 via recorded Assignment of
Mortgage.
c. CHRISTINA TRUST, A DIVISION OF WILMINGTON SAVINGS FIND SOCIETY,
FSB, NOT IN ITS INDIVIDUAL CAPACITY BUT AS TRUSTEE OF ARLP TRUST 3
to U.S. BANK, NATIONAL ASSOCIATION AS LEGAL TITLE TRUSTEE FOR
TRUMAN 2016 SC6 TITLE TRUST via recorded Assignment of Mortgage
Afier due diligence and based on review of the business records, possession of the note cannot
reasonably be obtained because the Note was destroyed, its whereabouts cannot be determined, or
it is in the wrongful possession of an unknown person or a person that cannot be found or is not
amenable to service of process.
Moreover, the loss of possession of the Note is not the result of a rightful transfer or a lawful
seizure of the Note.
10. Plaintiff shall henceforth hold the defendant maker(s) of the note harmless and shall indemnify
them from any loss they may incur by reason of a claim by any other person to enforce the lost
note. If the original note is ever located, Plaintiff will immediately deliver it to the Court for
cancellation,
FURTHER AFFIANT SAYETH NOT
U.S. BANK, NATIONAL ASSOCIATION AS LEGAL
TITLE TRUSTEE FOR TRUMAN 2016 SC6 TITLE
TRUST BY RUSHMORE LOAN MANAGEMENT
SERVICES, LLC ITS APPOINTED ATTORNEY IN
A
Se
By: < ™
NAI ette Kabayan
TITLE: shstanl Vice President
Date:
Subscribed and sworn to befor ¢ in the county of State of
, this day of »20__
See attached Jurat
(Notary’s ote)
(Commission Expiration)
1460-162745/SIS
JURAT
A notary public or other officer com pleting this certificate verifie
s only the identity of
the individual who signed the docu ment to which this certificate is attache
d, and not
the truthfulness, accuracy, or validity of that document
State of California
County of Orange
Subscribed and sworn to (or affirmed) before me on this
S 60 hay of Xanacar 2017 by
Proved to me on the basis of satisfa ict tory evidence td be the pers onts who
appeared before me.
§, JIMENEZ
Commission #2119008
Signature: Nore Pai ee ‘County
rtp}
(This area for notary stamp)
GA 04/13
ALL-PURPOSE ACKNOWLEDGMENT
A notary public or other officer completing this certifi cate verifies only the identity
of the individual who signed the document to which t his certificate is attached, and
not the truthfulness, accuracy, or validity of that document
State of California
County of ORANGE
On \- S0O- \4 , before me imenez Notary Public,
personally appeared, who proved to me on the basis of
satisfactory evidence to be the persopts} Whose name{s}isiaré subscribed to the
within instrument and
acknowledged to me that he/Sfie/tbef executed the same in his/her/their authorize
d capacity (iesy“and
that by AiSther/teéir signature{syon the instrument the persgptsJ. or the entity upon
behalf of which the
person(syacted, executed the instrument.
| certify under PENALTY OF PERJURY under the laws of the State of C: alifornia that the foregoing
Paragraph is true and correct.
WITNESS my hand and official seal.
commion . 21808
. County
7, No ll
Signate lof Notary (seal)
DO NOT GO BELOW THIS LINE
LOAN NUMBER; i os 1 EXHIBIT "A’
‘NOT! E
12720706 PORT CHARLOTTE FL
1010 CHEW. CHASE
[Statot
ST NW, PORT CHARLOTTE, i "39948
[Property Address)
1, BORROWER'S PROMISE TO PAY
Jn retusa tor a lon that } have reveived, I promise tu pay US, $
“Principal”), plus inturest, to thearder of the Lender. The Lunder is
168 116,00 {this umount is galled
BANK OF AMERICA, NLA.
Twill make all poyments under this Note in the farm of cash, check or monoy order. .
J understand thot the Lender may ( (ranafer chis Note, Th iu Lender or anyane whe wkes this Note by transfer and wher
isentitted to receive payments under this Note is called the “Note Holder.”
ZAINTERI
Interest be charged on unpaid Principal until the full amount uf Principal has been paid. [ will pay interest at a
yearty™" eatout 6.000
inlerest rate required by this Section 2 is the rate] will pay both before und alter ‘any default described in Section.
6(B) of this Note,
PAY: NTS
(A) Time and I" eof Payments
ay principal and interest by making a payment every month,
Iwill make my monthly paymenton the 1sT day ‘af each month beginningon
Twill make these payments every month unui | have paid all of f the principal and FEGRUARY 01, 2007 .
interest and any other charges described
below that | may owe under this Note, Hach monthly paymn
applica to interest before Principal, If,on ent will be appticd as of its acheduled Jue date and wifl be
JANUARY 01, 2097 + T sult ewe amounts under
this Note, [ will pay those amounts in Cull on thatdato, whieh is called the "Maturity
Date.”
(will make my monthly puymeatsat BANK OF AMERICA, P.
14066-9000 BOX 9000, GETZVILLE, NY
‘or at a different place if required by the Note Hotder,
(8) Amouat of Monthly Pi ments
My monthly payment will bein theamuuntatU.S, $ 947.98
4, NORROWER'S RIGHT TO PREPAY
| HAVE THE RIGKE TO UAE PAYMENTS OF PRINCIPAL AT ANY TILE BEFORE THEY ARE OUE. A PAYMENT OF PRINCIPAL
AMO) ASA “FREPAYHENT." WHEN § UAE A PREPATMENT, 1 WIL TELL THE MOTE HOLDER AN WRITING THAI J AM DOING $0,OHRY 1 15AY
‘NOL OESIONATE A PATHENT AE A PREPATUENT 1F | HAVE NOT MADE ALL THE MOHTHLY PAYMENTS OUE UNDER THIS NOTE,
| VAY MASE A FULL PREHATAENT OR PARTIAL PREPAYMENT WIFHOUT PAYING ANY FREPAIMENT CHARGE, AFTER
FEES OR OUTSFANDING FEES THAT 4 OMT, THE ADTE HOLOER WiLL USE UY PREPAYMENTS [0 REQUCE THE AANA! OF PAVING ANY LATE
PRINCIPAL
ORE UNTER THtS NOTE. HUMEVER, THE NDE HOLDER MAY APPLY iT PREPAYMENT TO THE ACCAVED AND UNPAID INTEREST GN THETHAT 3
PREPAYMENT AUOUNE OLORE AMPLYINO MY PREPAYMENT 10 FEOXCE THE PRINCIPAL AMOUNT OF THIS SDTE, UF 1 KARE A PARTIAL
AREPATWENT. THERE WILL QE NO CHENGES IN THE QUE QATES OR IW THE AMOLAT OF UY SCFWLY PAM LEMESS THE ROVE HOLDER
AOREES (N WRITINE (O THOSE CHANGES.
FLORIDA FIXED RATE NOTE ~ Singlo Family
me ana
BOSNIFL 100 YM MORTGAGE FORMS + (en01521-7299
SAFL 12/20¢06 W250 ax 9305870955,
cea
—<—=—
f
S.1OAN CHARGES
Ita to which appli te this loan and which sels snaximum loan charges, is finally interpreted so thal the interest
or acher loan charges COlfye ted or (a be collected ia connection with this loan exceed the
permitted limits, : (a) any
such loan charge shall be re reduced by the amount necessary in reduce the charge to the permitted lim t; and (b} any mums
alrdady collected try, im me which exceeded permitted limits Wi he refunded to me. The Note Holder may chonse to
nike thin refund By ged
redulegs Principal | the reduction thewillPrincipal 1 owe under this or by making a direct payment to me. If a refund
be treatedus » partial Prepayment,
6 woRnottes FAILURTO E PAY AS REQUIRED
(A) Late Charge for Overdue Payments
I the Note Holder has net received the full amount of any monthly payment by theend of 15
eslendar days after the date it is due, 4 wilt pay jate charge to the Note Holder, The amount of the charge will be
‘% of my overdue paymentof principal and interest. 1 will pay this lute charge promptly but
only once on each late payment.
(B) Detaute
{Pde oot pay the (ull amoun
of tcach monthly payment an the daue it is due, I will be in default,
{C) Notice of Default
JEL wen in default, the Note Holder mi ay seid me a Written notice telling me that if | do not pay' the overdue amount
by a certain dote, rhe Note Holder ma iy require me to pay immediately the full amount of Principal which has nut been
paid and all the intere: sat that | owe on ihatan Moun, That date munt bo ac teast 30 days after tho date on which the notice
is mailed to me or delivered by ather mea! ine,
(D) No Waiver By Note Halder
Even if, a1 o time when [ am in default,
described abave, the Note Holder wil
the Note Holder does not require me to pay immediately in full as
still have ¥ he right te dosv if Lam in default ata eter ime,
(12) Poyment of Nate Holder's Costs an id Expenses
If the Note Holder hos requi me to pay immediately in full as described above, the Note older will have the
ri Wy be paid back by me for al uf its costs and ex spenses in enforcing this Note to the extent not prohibited by
applicable law, Those expenses include, tor example, reasonable attorneys’ fees,
7. GIVING OF NOTICES
Untess applicable tow requires 2 di ferent method, any’ notice that must be given to me under this Note will be
given by delivering it or by mailing it by First clase mait co me at the Property Address above or at 0 different address if
Tgive the Note Holder a noticeof my diff ferent uddress,
Any notice that must be given to the Nove Halder onder this Note wilt be given by delivering itor by mai
first class mait to the Note Holder at the address stated i in Section 3{.A) above or at a different address if | am giv
it by
noticu uf that different address,
no
8. OBLIGATIONS OF PERSONS UNDER THIS NOTE
tf more n One person signs this Note, each pecson
made in this Note, including the promise to pay the full is amou Cully tnd personally obligated to keep oll of the promises
int awed, Any person wha is a guarantor, surety ne
endorser of this Now ¢ iS also obligated to do these things, Any person who takey over these abli tiuns, inchuding the
obligations of a guarantor, surety or endorser of this Ni also obligated 10 keep all of the promises mude int this
Now, The Note Uolder may enfarce its fights under this Nor te against cach person individually or against all cf us
together. ‘This means that any one of us may be required to pray’ all of the amounts owed under this Note.
o. WAIVERS:
and ony other persin who has obligations under this Note waive the sights of Presentment ond Notige
Dishonor, 7? Presentment” means the right ta require the Note Flolder to demand payment of amounte of
Dishonor” means the right 10 require the Note Holder tw give nutice to other persons that a1
due. ‘otice uf
ents due have not deen
paid,
10. UNIFORM SECURED TE
‘This Note is a uniform insirument with limited variotie
given to the Note Holder under this Note, » Mortgoge, Deed 0 Teust,someor jurisdictions. In addixi n to the protections
Security Dyed {the "Security Instrument”),
dated the same date as this Note, protects the Note Holder from possible losses which might result if T do not keep the
OSENIFL) wry Payer
SRFL 2/20/08 B:S0 Ae S305276955,
—
, ve 4
the promises which I make
required to m ake immediate in payment
this Note, ‘That Securit ty y Instrument describes how and under what conditions | muy
in full of all u aunts | owe under this Note, Some of those conditions reud bea9
Ke stows:
Tall or any part of the Proper: ty or any Interest in the Property is sold or transferred (or if Rorrower
nota getural is
cunsent, Lent
and o beneficial interest it in Borrowerin.
may require immediate payment or trasnsfereed) without Lender's prior weitten
full
However, thinapt tion shal) not be exercised by Lender if such exerciof all sums secured this Security’ Instrument.
Lender exercises this ‘option, Lender shall give or te ise ia prohibited by Applicable Law.
provide a peri iod of nut fess than 30 days from the date the native is given in accordanse with Section
ar notice of acceleration, ‘The notice shall
15 within
Which Horrower must poy all sums secured by this Security Ins
prior to the expi ication of this period, Lender may invoke any remedies trument. If Borrower fails (o pay these sums.
without furt her nuticewr demand an permitted by this Security Instrument
rower,
1. DOCUMENTARY TAX
‘The miste documentary tax due
on this Note has been paid on the mortgage securing this indehtedness.
WITNESS THE HAND(S) AND SEAL(S) OF THIE UNDERS
IGNED,
Whe
OWES F LAWATRICE
DA (Seal)
Borrower
(Seal)
“Borewwoe
{Sent)
~Boreowor
(Seal)
Fay 7G THE ORDERUF “Parrower
ee ee
ee
RTT Ses (Seal)
‘OFF Rarer
Se ic
6y_ cl eterno by SUE (Seal)
SSIST ANT VICE PresraehT sUnrrowur
(Seal)
Borrower
(Seul)
[Sign Original Oniy!
SSSNIFL) Dien Medea
GAEL 12/2046 9:50 mu 9305076955
_-
EXHIBIT B
BARBARA T. SCOTT, CHARLOTTE COUNTY CLERK OR BOOK 3107, PGS 255-270 16 pg(s)
INSTR # 1635335 Doc Type MTG, Recorded 01/31/2007 at 03:03 PM Mtg Doc
$553.70 Intangible $316.23 Rec. Fee $137.50 Cashier By: NANCYLA
ae
Return To: LOAN 7
Recording requested by: LST
When recorded return to :
3I6 $451
Custom Recording Solution:
2550 N. Redhill Ave.
Santa Ana, CA. 9270:
800-756-3524 ext. 5011
This document was prepared by:
ANNETTE GAINES
BANK OF AMERICA, N.A
6700 LAKEVIEW CENTER DRIVE
TAMPA, FL 336190000
[Space Above This Line For Recording Datal
MORTGAGE
DEFINITIONS
Words used in multiple sections of this document are defined below and other words are defined
in Sections 3, 11, 13, 18, 20 and 21. Certain rules regarding the usage of words used in this
document are also provided in Section 16.
(A) "Security Instrument" means this document, which is dated DECEMBER 20, 2006
together with all Riders to this document.
(B) "Borrower" is THOMAS F. LAMATRICE, AN UNMARRIED PERSON
Borrower is the mortgagor under this Security Instrument.
(C) “Lender” is BANK OF AMERICA, N.A
Lender is a NATIONAL BANKING ASSOCIATION
organized and existing under the laws of THE UNITED STATES OF AMERICA
FLORIDA - Single Family - Fannie Mae/Freddie Mac UNIFORM INSTRUMENT Form 3010 1/01
ZR-GELI 0s:
Page 1 of 16
VMP MORTGAGE FORMS - (800)521-7291
CVFL 12/20/06 8:50
X
OR BOOK 3107, Page Number: 256 INSTR # 1635335 Page 2 of 16
Lender’s address is 6700 LAKEVIEW CENTER DRIVE, TAMPA, FL 336190000
Lender is the mortgagee under this Security Instrument.
(D) "Note" means the promissory note signed by Borrower and dated DECEMBER 20, 2006
The Note states that Borrower owes Lender ONE HUNDRED FIFTY EIGHT THOUSAND ONE
HUNDRED FIFTEEN AND 00/100 Dollars
(US. $ 158, 115.00 ) plus interest. Borrower has promised to pay this debt in regular
Periodic Payments and to pay the debt in full not later than JANUARY 01, 2037
(FE) "Property" means the property that is described be
Preview
Filing # 66790482 E-Filed 01/19/2018 04:15:40 PM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA. CIVIL DIVISION CASE NO. 17000100CA US. BANK, NATIONAL ASSOCIATION AS LEGAL TITLE TRUSTEE FOR TRUMAN 2016 SC6 TITLE TRUST, Plaintiff, vs. THOMAS F. LAMATRICE; et al, Defendant(s). PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Plaintiff, U.S. BANK, NATIONAL ASSOCIATION AS LEGAL TITLE TRUSTEE FOR TRUMAN 2016 SC6 TITLE TRUST (‘Plaintiff’), by and through its undersigned counsel and pursuant to Fla. R. Civ. P. 1.510, moves this Court for the entry of summary judgment against all Defendants, and further states: PROCEDURAL HISTORY 1 This is an action for mortgage foreclosure filed. The Plaintiff filed the Verified Complaint on December 7, 2015 against: a. THOMAS F. LAMATRICE (“Defendant”); b. UNKNOWN TENANT NO, 1; and UNKNOWN TENANT NO. 2. 2 Defendant executed the Note and Mortgage for the subject property located at, 1010 Chevy Chase St NW, Port Charlotte, Florida 33948, better described as: LOT 43, BLOCK 375, PORT CHARLOTTE SUBDIVISION SECTION 23, ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 5, PAGE 14A, OF THE PUBLIC RECORDS OF CHARLOTTE COUNTY, FLORIDA. 3 Defendant filed an Answer and Affirmative Defenses on August 25, 2017. However the Court struck all the defenses in this case. SUMMARY JUDGMENT EVIDENCE Plaintiff hereby relies on the following summary judgment evidence: LNA with a Copy of Note with endorsement in blank, Exhibit “A”; Recorded Mortgage, Exhibit “B”; Affidavit in Support of Summary Judgment (previously filed); and UNDISPUTED MATERIAL FACTS 5 The following facts are not in dispute: Undisputed Fact Source riginat Luis executed a Note wit Ba of America, N.A. in the amount 0 Exhibit “A’ $158,115.00. The Note was accompanied by Mortgage executed by Thomas F. Lamatrice Exhibit “B” on December 20, 2006. The loan was never modified. Exhibits “A” and “B” b. tandin: The Note ‘was originated by Bank of America and endorsed in Blank Aff. Exh. “cP The Note was subsequently assigned to the Plaintiff. Aff. Exh. “p” Additionally, Plaintiff purchased the subject loan in a purchase of multiple Aff. Exh. “—p” loans providing the Plaintiff with the right to enforce. fa dition The Defendants defaulted on February 1, 2012 Aff. Exh. Ee? Plaintiff's servicer sent the Defendants a Notice of Default on September 20, Aff. Exh. “G” & “HH” 2016. The Defendants did not cure the default. Aff. 9 The Plaintiff was entitled to enforce the Note when it was lost, as it was held Aff. Exh. “C by its counsel, and then shipped to its servicer when it was subsequently lost. The Loss of possession was not the result of a transfer by the person or a Aff. Exh, “C” lawsuit seizure. Although a diligent search was conducted the Plaintiff cannot reasonable Aff. Exh. “C” obtain possession of the Instrument because of the loss. Plaintiff agrees to indemnify the borrower if the note is found. Aff. Exh. “C” STANDARD FOR SUMMARY JUDGMENT 6. A party moving for summary judgment must show conclusively the absence of any genuine issue of material fact. Craven v. TRG-Boynton Beach, Ltd., 925 So. 2d 476, 479-80 (Fla. 4 DCA 2006). In considering the motion, the court must make every possible inference in favor of the party against whom summary judgment is sought. /d. at 480. A summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law. Jd. “The burden is initially on the movant. Only where the movant tenders competent evidence in support of his motion does the burden shift to the other party to come forward with opposing evidence.” Id. 7. Summary judgment is particularly appropriate in cases involving contracts. Volusia Countvy. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000). Under Florida law, it is the role of the Court to determine the construction of a written agreement pursuant to the unambiguous language in the agreement. Mariner Cay Property Owners Ass'n Inc. v. Topside, 714 So. 2d 1130 (Fla. 4th DCA 1998). When the language of an agreement is unambiguous, the Court shall not rewrite a contact between the parties. Home Development Co. of St. Petersburg v. Bursani, 178 So. 2d 113,114 (Fla. 1965). Additionally, the owner and holder of a valid recorded mortgage encumbering the subject real property, has a valid lien superior in dignity and right to -any subsequently recorded mortgage, claim, or lien attaching to the property through the mortgagors, their successors, assigns, and tenants. Lee v. Slemons, 150 So, 2d 792, 794 (Fla. 1933). MEMORANDUM OF LAW A COUNT FOR MORTGAGE FORECLOSURE I. Plaintiff Possesses Standing to Foreclose 8 A necessary element in any mortgage foreclosure proceeding is that the party seeking foreclosure must demonstrate that it has standing to foreclose. McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So. 3d 170, 173 (Fla. 4th DCA 2012). The plaintiff must prove that it had standing to foreclose when the original complaint was filed. Id. The UCC provides that a “person entitled to enforce” a negotiable instrument means the holder of the instrument, a non- holder in possession of the instrument who has the rights of a holder, or a person not in possession of the instrument who is entitled to enforce. § 673.301 1(1)-(3), Fla. Stat. (2013). 9 A “holder” is defined as “[t]he person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession.” § 671.201(21)(a), Fla. Stat. (2013). “A plaintiff who is not the original lender may establish standing to foreclose a mortgage loan by submitting a note with a blank or special endorsement, an assignment of the note, or an affidavit otherwise proving the plaintiffs status as the holder of the note.” Focht v. Wells Fargo Bank, N.A., 124 So. 3d 308, 310 (Fla. 2d DCA 2013). 10. When a note contains an endorsement in blank the plaintiff can establish standing when showing the note was held at the time of filing. Country Place Cmty. Ass'n y. J.P. Morgan Mortg. Acq. Corp., 51 So. 3d 1176, 1179 (Fla. 2d DCA 2010); Mazine v. M & I Bank, 67 So. 3d 1129, 1131 (Fla. 1st DCA 2011); see also § 673.3011. See Keifert v. Nationstar Mortg., LLC, 153 So. 3d 351, 353 (Fla. Ist DCA 2014). Standing can be established through documents and the testimony of a litigation analyst.” Lloyd v. Bank of New York Mellon, 160 So. 3d 513, 515 (Fla. 4th DCA 2015). 11. Additionally, “an agent may hold commercial paper on behalf of its principal, and when it does, the principal constructively possesses the commercial paper. Therefore, where an agent holds a mortgage note on behalf of its principal, the principal has constructive possession of the note and sanding to file a complaint for foreclosure as a holder under section 673.3011(1).” Phan v. Deutsche Bank Nat’l Trust Co., 198 So. 3d 744, 749 (Fla. 2d DCA 2016); Fannie Mae v. McFadyen, 194 So. 3d 418, 423 (Fla. 3d DCA 2016)(finding Seterus constructively possessed the note on behalf of Fannie Mae); Caraccia v. U.S. Bank, Nat’l Ass’n, 185 So. 3d 1277, 1279 (Fla. 4th DCA 2016)(confirming that the element of possession necessary for standing to bring an action on a note may be met “through actual or constructive possession.”); Deutsche Bank Nat’! Trust Co. v. Applewhite, 2017 Fla. App. LEXIS 3775 (Fla. 4" DCA 2017)(holding in the context of foreclosure actions, a loan servicing agent is a proper representative to possess a mortgage note on behalf, such that the plaintiff remains in constructive possession of the note as the holder sufficient to establish standing); Deutsche Bank Nat'l Trust Co. v. Mobley, 2017 Fla. App. LEXIS 3095 (Fla. 3d DCA 2017)(same); U.S. Bank, Nat’l Ass’n v. Angeloni, 199 So. 3d 492, 493 (Fla. 4" DCA 2016)(“Possession of a note by a third party agent such as a servicer or law firm, gives the "owner" of the note constructive possession sufficient to establish standing as the note's holder’). 12. Lastly, the Plaintiff can establish standing through the Pooling and Servicing Agreement coupled with the note endorsed in blank. Bolous v. U.S. Bank Nat’l Ass'n, 210 So. 3d 691 (Fla. 4" DCA 2016); HSBC Bank USA, N.A. vy. Alejandre, 2017 Fla. App. LEXIS 5785 (Fla. 4% DCA 2017); Pinnock v. Bank of N.Y. Mellon, 2016 Fla. App. LEXIS 18770 (Fla. 4° DCA 2016); Chahrour vy. Deutsche Bank Nat’l Trust Co., 2017 Fla. App. LEXIS 216 (Fla. 2017); Deutsche Bank Nat’! Trust Co. v. Marciano, 190 So. 3d 166 (Fla. 5" DCA 2016). 13. Here, Plaintiff established standing in multiple ways. First, the Plaintiff was assigned the Note via an Assignment of Mortgage. In addition, the Plaintiff has produced the Pooling and Servicing Agreement with Mortgage Loan Schedule. The PSA establishes that the loan was transferred to the Trust. Accordingly, the Plaintiff properly established its standing to foreclose. Il. Conditions Precedent 14. Prior to filing this action Plaintiff sent a Notice of Default and Right to Cure Default letter dated September 20, 2016 relating the default on the loan at the subject Property address. Plaintiff only needs to show substantial compliance with conditions precedent. Seaside Cmty. Dev. Corp. v. Edwards, 573 So. 2d 142, 145 (Fla. I“ DCA 1991) (“When the happening of a condition precedent is an element of a contract, no recovery can be had with regard to performance of the contract substantial compliance with the condition precedent.”) (Emphasis added); State Farm Mut. Auto. Ins. Co. v. Curran, 135 So. 3d 1071 (Fla. 2014); Green Tree Servicing, LLC v. Milam, 2D14-660 (Fla. 2d DCA July 29, 2015). 15. The Second District ruled that this particular language fully complied with the terms of the mortgage. U.S. Bank Nat'l Ass'n v. Busquets, 135 So. 3d 488 (Fla. 2d DCA 2014). The Second District reviewed paragraph 22 of the mortgage and concluded: Furthermore, the language of the Bank's notice adequately describes the nature of the proceedings that Busquets might face. The notice states that in the foreclosure proceeding, the lender may collect attorney's fees and costs in addition to the unpaid principal and interest. The notice further advises that in the foreclosure proceeding, the mortgagee has “the right to assert in court the nonexistence of a default or any other defense to acceleration and foreclosure." Thus, the complete paragraph in the Bank's notice adequately describes the foreclosure proceeding as a judicial proceeding, making the notice sufficient under paragraph twenty- two of the mortgage contract. It was therefore error for the trial court to hold otherwise. Id. 16. The Second District also addressed with specificity of the use of the word “may” rather than “shall” in connection with the right to reinstate, and concluded that the language was in compliance: Paragraph nineteen of the mortgage specifies Busquets’ right to reinstate after acceleration by stating that "[i]f the Borrower meets certain conditions, [the] Borrower shall have the right to have the enforcement of this Security Instrument discontinued." The paragraph then designates the timing for exercising this right, and it continues by listing four conditions that must be met to be eligible to secure reinstatement. In other words, by the plain reading of the terms of the mortgage contract, the right to reinstatement is at best a qualified right, obtainable only after the borrower meets the specified conditions precedent. The trial court's reading of paragraph twenty-two in isolation might suggest that the notice must advise Busquets of an absolute right, but such a reading is contrary to the provisions of paragraph nineteen and would, in effect, misadvise Busquets of his rights by advising him that he had an absolute right in conflict with the conditional rights provision of the mortgage contract. U.S. Bank Nat'l Ass'n v. Busquets, 135 So. 3d 488 (Fla. 2d DCA 2014), Ultimately, the Second District reversed the trial court which had found that this language in the demand letter was not in compliance with the mortgage. In the present case, Demand Letter meets all the elements of paragraph 22. Based on the foregoing, to the extent any conditions precedent to suit exists, the Plaintiff satisfied all necessary conditions precedent prior to filing this action. Til. No Affirmative Defenses to Preclude Summary Judgment 17. There are no affirmative defenses, or for that matter any issues of fact precluding the entry of summary judgment. The Defendant filed bankruptcy prior to this action and surrendered the subject property. The Defendant is not permitted to contest this action, and otherwise oppose the Plaintiff's ability to foreclose. Failla v. Citibank, N.A., 838 F.3d 1170 (11 Cir. 2016). Additionally, the Court has struck all defenses, B COUNT TO REESTABLISH LOST NOTE 18. Plaintiff also met all requirement to reestablish the lost note. The alternative requirements for a party to establish standing to foreclose: [T]he party seeking foreclosure must present evidence that it holds the note and mortgage in question in order to proceed with its foreclosure action. A plaintiff must tender the original promissory note to the trial court or seek to reestablish the note under section 673.3091, Florida Statutes (2010). If the note does not name the plaintiff as the payee, the note must bear an endorsement in favor of the plaintiff or a blank endorsement. Alternatively, the plaintiff may submit evidence of an assignment from the payee to the plaintiff or an affidavit of ownership to prove its status as a holder of the note. Richards v. HSBC Bank United States, 91 So. 3d 233, 234 (Fla. 5“ DCA 2012) (internal citations omitted) citing Gee v. U.S. Bank Nat'l Ass'n, 72 So. 3d 211, 213 (Fla. 5th DCA 2011). Fla. Stat. §673.3091 states: (1) A person not in possession of an instrument is entitled to enforce the instrument if: (a) The person seeking to enforce the instrument was entitled to enforce the instrument when loss of possession occurred, or has directly or indirectly acquired ownership of the instrument from a person who was entitled to enforce the instrument when loss of possession occurred; (b) The loss of possession was not the result of a transfer by the person or a lawful seizure; and (c) The person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process. (2) A person seeking enforcement of an instrument under subsection (1) must prove the terms of the instrument and the person’s right to enforce the instrument. If that proof is made, s. 673.3081 applies to the case as if the person seeking enforcement had produced the instrument. The court may not enter judgment in favor of the person seeking enforcement unless it finds that the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument. Adequate protection may be provided by any reasonable means. Fla. Stat. § 673.3091 (2016). 19. Under Fla. Stat. 673.3011(3), a “person entitled to enforce” an instrument is a person not in possession of the instrument who is entitled to enforce the instrument pursuant to s. 673.3091.” Fla. Stat. § 673.3011(3) (2016). Plaintiff's “right to enforce the instrument” can be established by possession of an original note payable to the plaintiff or possession of an original note which is either endorsed in blank or specially endorsed in plaintiffs favor. Gee v. U.S. Bank, 72 So, 3d 211, 213 (Fla. 5" DCA 2011) (citing Riggs v. Aurora Loan Servs., 36 So. 3d 932, 933 (Fla. 4" DCA 2010). “The endorsement must have occurred before the filing of the complaint because it is axiomatic that standing must be shown as of the filing of the complaint.” Elsman v. HSBC Bank USA, 182 So. 3d 770, 771-772 (Fla. 5“ DCA 2015) (internal quotation marks and citations omitted). Once the terms of the note and the party’s right to enforce the note are established, Fla. Stat. 673.3081 “applies to the case as if the person seeking enforcement had produced the instrument.” Fla. Stat. § 673.3081 (2016). 20. Here, Plaintiff met all the requirements of Fla. Stat. 673.3091. Firstly, Plaintiff has proffered a copy of the note to establish its terms. Second, Plaintiff explained the circumstances surrounding the loss of the Note in the LNA, which included that the loss was not the result of a transfer or unlawful seizure, and that RUSHMORE was unable to locate the lost note after a diligent search. Lastly, the Plaintiff, through RUSHMORE, established that it would indemnify the borrowers. Plaintiff has met all elements to re-establish the lost note. Cc AFFIRMATIVE DEFENSES 21. The Defendant has no affirmative Defenses in this action pursuant to this Court’s Order and the fact the Defendant elected to surrender the subject property in his bankruptcy. WHEREFORE, Plaintiff, respectfully requests this Court enter summary judgment in its favor, and for any further relief this Court deems proper and just. CERTIFICATE OF SERVICE 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 19th day of January, 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/ Adam A. Diaz Adam A. Diaz Florida Bar No. 98379 1460-162745 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. 1 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 EXHIBIT A a IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA. CIVIL DIVISION CASE NO. 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. Loan No: a AFFIDAVIT OF LOST NOTE STATE OF ) Ss. COUNTY OF ) Jeannette Kabayan , who BEFORE ME, the undersigned authority, personally appeared after being first duly sworn on oath deposes and says: 1 Tam _ Assistant Vice President of Rushmore Loan Management Services LLC, servicing agent to Plaintiff, and have personal knowledge of the status of the loan that is the subject of the above captioned suit. More specifically, I have personal knowledge with respect to the following loan ("the Loan") Loan Number: Borrowers: THOMAS F. LAMATRICE Date of Note: 12/20/2006 Original Principal Balance: 158,115.00 Property Address: 1010 CHEVY CHASE ST NWPORT CHARLOTTE, FL 33948 Rushmore Loan Management Services LLC maintains records for the Loan in its capacity as plaintiff's servicer. As part of my job responsibilities, 1 am familiar with the type of records maintained in connection with the Loan. Some of the information in this affidavit is taken from Rushmore Loan Management Services LLC's business records, I have personal knowledge of Rushmore Loan Management Services LLC's procedures for creating and maintaining these records. Such business records are: (a) made at or near the time of the occurrence of the matters set forth therein by persons with personal knowledge of the information in the business record, or from information transmitted by persons with personal knowledge; and (b) kept in the course of regularly conducted business activities. It is the regular practice to make such records. I have personal knowledge of Rushmore Loan Management Services LLC's procedures for the safekeeping and retrieval of original notes serviced by Rushmore Loan Management Services LLC on behalf of the note holder and Rushmore Loan Management Services LLC lost note procedures for determining that an original note is lost. Attached as Exhibit A is a copy of the note evidencing the terms of the note (Note), which is a true and correct copy of the form of the note. I have personal knowledge that Rushmore Loan Management Services LLC's lost note procedures were followed in determining that the Note has been lost and that a good faith effort was made to locate the lost note in accordance with such procedures. Below is the clear chain of the endorsements, transfers, allonges or assignments of the Note and all documents that evidence same as are available to Plaintiff: a, Original Payee BANK OF AMERICA, N.A. TO BLANK via endorsement b. Original Payee BANK OF AMERICA, N.A. TO CHRISTINA TRUST, A DIVISION OF WILMINGTON SAVINGS FIND SOCIETY, FSB, NOT IN ITS INDIVIDUAL CAPACITY BUT AS TRUSTEE OF ARLP TRUST 3 via recorded Assignment of Mortgage. c. CHRISTINA TRUST, A DIVISION OF WILMINGTON SAVINGS FIND SOCIETY, FSB, NOT IN ITS INDIVIDUAL CAPACITY BUT AS TRUSTEE OF ARLP TRUST 3 to U.S. BANK, NATIONAL ASSOCIATION AS LEGAL TITLE TRUSTEE FOR TRUMAN 2016 SC6 TITLE TRUST via recorded Assignment of Mortgage Afier due diligence and based on review of the business records, possession of the note cannot reasonably be obtained because the Note was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process. Moreover, the loss of possession of the Note is not the result of a rightful transfer or a lawful seizure of the Note. 10. Plaintiff shall henceforth hold the defendant maker(s) of the note harmless and shall indemnify them from any loss they may incur by reason of a claim by any other person to enforce the lost note. If the original note is ever located, Plaintiff will immediately deliver it to the Court for cancellation, FURTHER AFFIANT SAYETH NOT U.S. BANK, NATIONAL ASSOCIATION AS LEGAL TITLE TRUSTEE FOR TRUMAN 2016 SC6 TITLE TRUST BY RUSHMORE LOAN MANAGEMENT SERVICES, LLC ITS APPOINTED ATTORNEY IN A Se By: < ™ NAI ette Kabayan TITLE: shstanl Vice President Date: Subscribed and sworn to befor ¢ in the county of State of , this day of »20__ See attached Jurat (Notary’s ote) (Commission Expiration) 1460-162745/SIS JURAT A notary public or other officer com pleting this certificate verifie s only the identity of the individual who signed the docu ment to which this certificate is attache d, and not the truthfulness, accuracy, or validity of that document State of California County of Orange Subscribed and sworn to (or affirmed) before me on this S 60 hay of Xanacar 2017 by Proved to me on the basis of satisfa ict tory evidence td be the pers onts who appeared before me. §, JIMENEZ Commission #2119008 Signature: Nore Pai ee ‘County rtp} (This area for notary stamp) GA 04/13 ALL-PURPOSE ACKNOWLEDGMENT A notary public or other officer completing this certifi cate verifies only the identity of the individual who signed the document to which t his certificate is attached, and not the truthfulness, accuracy, or validity of that document State of California County of ORANGE On \- S0O- \4 , before me imenez Notary Public, personally appeared, who proved to me on the basis of satisfactory evidence to be the persopts} Whose name{s}isiaré subscribed to the within instrument and acknowledged to me that he/Sfie/tbef executed the same in his/her/their authorize d capacity (iesy“and that by AiSther/teéir signature{syon the instrument the persgptsJ. or the entity upon behalf of which the person(syacted, executed the instrument. | certify under PENALTY OF PERJURY under the laws of the State of C: alifornia that the foregoing Paragraph is true and correct. WITNESS my hand and official seal. commion . 21808 . County 7, No ll Signate lof Notary (seal) DO NOT GO BELOW THIS LINE LOAN NUMBER; i os 1 EXHIBIT "A’ ‘NOT! E 12720706 PORT CHARLOTTE FL 1010 CHEW. CHASE [Statot ST NW, PORT CHARLOTTE, i "39948 [Property Address) 1, BORROWER'S PROMISE TO PAY Jn retusa tor a lon that } have reveived, I promise tu pay US, $ “Principal”), plus inturest, to thearder of the Lender. The Lunder is 168 116,00 {this umount is galled BANK OF AMERICA, NLA. Twill make all poyments under this Note in the farm of cash, check or monoy order. . J understand thot the Lender may ( (ranafer chis Note, Th iu Lender or anyane whe wkes this Note by transfer and wher isentitted to receive payments under this Note is called the “Note Holder.” ZAINTERI Interest be charged on unpaid Principal until the full amount uf Principal has been paid. [ will pay interest at a yearty™" eatout 6.000 inlerest rate required by this Section 2 is the rate] will pay both before und alter ‘any default described in Section. 6(B) of this Note, PAY: NTS (A) Time and I" eof Payments ay principal and interest by making a payment every month, Iwill make my monthly paymenton the 1sT day ‘af each month beginningon Twill make these payments every month unui | have paid all of f the principal and FEGRUARY 01, 2007 . interest and any other charges described below that | may owe under this Note, Hach monthly paymn applica to interest before Principal, If,on ent will be appticd as of its acheduled Jue date and wifl be JANUARY 01, 2097 + T sult ewe amounts under this Note, [ will pay those amounts in Cull on thatdato, whieh is called the "Maturity Date.” (will make my monthly puymeatsat BANK OF AMERICA, P. 14066-9000 BOX 9000, GETZVILLE, NY ‘or at a different place if required by the Note Hotder, (8) Amouat of Monthly Pi ments My monthly payment will bein theamuuntatU.S, $ 947.98 4, NORROWER'S RIGHT TO PREPAY | HAVE THE RIGKE TO UAE PAYMENTS OF PRINCIPAL AT ANY TILE BEFORE THEY ARE OUE. A PAYMENT OF PRINCIPAL AMO) ASA “FREPAYHENT." WHEN § UAE A PREPATMENT, 1 WIL TELL THE MOTE HOLDER AN WRITING THAI J AM DOING $0,OHRY 1 15AY ‘NOL OESIONATE A PATHENT AE A PREPATUENT 1F | HAVE NOT MADE ALL THE MOHTHLY PAYMENTS OUE UNDER THIS NOTE, | VAY MASE A FULL PREHATAENT OR PARTIAL PREPAYMENT WIFHOUT PAYING ANY FREPAIMENT CHARGE, AFTER FEES OR OUTSFANDING FEES THAT 4 OMT, THE ADTE HOLOER WiLL USE UY PREPAYMENTS [0 REQUCE THE AANA! OF PAVING ANY LATE PRINCIPAL ORE UNTER THtS NOTE. HUMEVER, THE NDE HOLDER MAY APPLY iT PREPAYMENT TO THE ACCAVED AND UNPAID INTEREST GN THETHAT 3 PREPAYMENT AUOUNE OLORE AMPLYINO MY PREPAYMENT 10 FEOXCE THE PRINCIPAL AMOUNT OF THIS SDTE, UF 1 KARE A PARTIAL AREPATWENT. THERE WILL QE NO CHENGES IN THE QUE QATES OR IW THE AMOLAT OF UY SCFWLY PAM LEMESS THE ROVE HOLDER AOREES (N WRITINE (O THOSE CHANGES. FLORIDA FIXED RATE NOTE ~ Singlo Family me ana BOSNIFL 100 YM MORTGAGE FORMS + (en01521-7299 SAFL 12/20¢06 W250 ax 9305870955, cea —<—=— f S.1OAN CHARGES Ita to which appli te this loan and which sels snaximum loan charges, is finally interpreted so thal the interest or acher loan charges COlfye ted or (a be collected ia connection with this loan exceed the permitted limits, : (a) any such loan charge shall be re reduced by the amount necessary in reduce the charge to the permitted lim t; and (b} any mums alrdady collected try, im me which exceeded permitted limits Wi he refunded to me. The Note Holder may chonse to nike thin refund By ged redulegs Principal | the reduction thewillPrincipal 1 owe under this or by making a direct payment to me. If a refund be treatedus » partial Prepayment, 6 woRnottes FAILURTO E PAY AS REQUIRED (A) Late Charge for Overdue Payments I the Note Holder has net received the full amount of any monthly payment by theend of 15 eslendar days after the date it is due, 4 wilt pay jate charge to the Note Holder, The amount of the charge will be ‘% of my overdue paymentof principal and interest. 1 will pay this lute charge promptly but only once on each late payment. (B) Detaute {Pde oot pay the (ull amoun of tcach monthly payment an the daue it is due, I will be in default, {C) Notice of Default JEL wen in default, the Note Holder mi ay seid me a Written notice telling me that if | do not pay' the overdue amount by a certain dote, rhe Note Holder ma iy require me to pay immediately the full amount of Principal which has nut been paid and all the intere: sat that | owe on ihatan Moun, That date munt bo ac teast 30 days after tho date on which the notice is mailed to me or delivered by ather mea! ine, (D) No Waiver By Note Halder Even if, a1 o time when [ am in default, described abave, the Note Holder wil the Note Holder does not require me to pay immediately in full as still have ¥ he right te dosv if Lam in default ata eter ime, (12) Poyment of Nate Holder's Costs an id Expenses If the Note Holder hos requi me to pay immediately in full as described above, the Note older will have the ri Wy be paid back by me for al uf its costs and ex spenses in enforcing this Note to the extent not prohibited by applicable law, Those expenses include, tor example, reasonable attorneys’ fees, 7. GIVING OF NOTICES Untess applicable tow requires 2 di ferent method, any’ notice that must be given to me under this Note will be given by delivering it or by mailing it by First clase mait co me at the Property Address above or at 0 different address if Tgive the Note Holder a noticeof my diff ferent uddress, Any notice that must be given to the Nove Halder onder this Note wilt be given by delivering itor by mai first class mait to the Note Holder at the address stated i in Section 3{.A) above or at a different address if | am giv it by noticu uf that different address, no 8. OBLIGATIONS OF PERSONS UNDER THIS NOTE tf more n One person signs this Note, each pecson made in this Note, including the promise to pay the full is amou Cully tnd personally obligated to keep oll of the promises int awed, Any person wha is a guarantor, surety ne endorser of this Now ¢ iS also obligated to do these things, Any person who takey over these abli tiuns, inchuding the obligations of a guarantor, surety or endorser of this Ni also obligated 10 keep all of the promises mude int this Now, The Note Uolder may enfarce its fights under this Nor te against cach person individually or against all cf us together. ‘This means that any one of us may be required to pray’ all of the amounts owed under this Note. o. WAIVERS: and ony other persin who has obligations under this Note waive the sights of Presentment ond Notige Dishonor, 7? Presentment” means the right ta require the Note Flolder to demand payment of amounte of Dishonor” means the right 10 require the Note Holder tw give nutice to other persons that a1 due. ‘otice uf ents due have not deen paid, 10. UNIFORM SECURED TE ‘This Note is a uniform insirument with limited variotie given to the Note Holder under this Note, » Mortgoge, Deed 0 Teust,someor jurisdictions. In addixi n to the protections Security Dyed {the "Security Instrument”), dated the same date as this Note, protects the Note Holder from possible losses which might result if T do not keep the OSENIFL) wry Payer SRFL 2/20/08 B:S0 Ae S305276955, — , ve 4 the promises which I make required to m ake immediate in payment this Note, ‘That Securit ty y Instrument describes how and under what conditions | muy in full of all u aunts | owe under this Note, Some of those conditions reud bea9 Ke stows: Tall or any part of the Proper: ty or any Interest in the Property is sold or transferred (or if Rorrower nota getural is cunsent, Lent and o beneficial interest it in Borrowerin. may require immediate payment or trasnsfereed) without Lender's prior weitten full However, thinapt tion shal) not be exercised by Lender if such exerciof all sums secured this Security’ Instrument. Lender exercises this ‘option, Lender shall give or te ise ia prohibited by Applicable Law. provide a peri iod of nut fess than 30 days from the date the native is given in accordanse with Section ar notice of acceleration, ‘The notice shall 15 within Which Horrower must poy all sums secured by this Security Ins prior to the expi ication of this period, Lender may invoke any remedies trument. If Borrower fails (o pay these sums. without furt her nuticewr demand an permitted by this Security Instrument rower, 1. DOCUMENTARY TAX ‘The miste documentary tax due on this Note has been paid on the mortgage securing this indehtedness. WITNESS THE HAND(S) AND SEAL(S) OF THIE UNDERS IGNED, Whe OWES F LAWATRICE DA (Seal) Borrower (Seal) “Borewwoe {Sent) ~Boreowor (Seal) Fay 7G THE ORDERUF “Parrower ee ee ee RTT Ses (Seal) ‘OFF Rarer Se ic 6y_ cl eterno by SUE (Seal) SSIST ANT VICE PresraehT sUnrrowur (Seal) Borrower (Seul) [Sign Original Oniy! SSSNIFL) Dien Medea GAEL 12/2046 9:50 mu 9305076955 _- EXHIBIT B BARBARA T. SCOTT, CHARLOTTE COUNTY CLERK OR BOOK 3107, PGS 255-270 16 pg(s) INSTR # 1635335 Doc Type MTG, Recorded 01/31/2007 at 03:03 PM Mtg Doc $553.70 Intangible $316.23 Rec. Fee $137.50 Cashier By: NANCYLA ae Return To: LOAN 7 Recording requested by: LST When recorded return to : 3I6 $451 Custom Recording Solution: 2550 N. Redhill Ave. Santa Ana, CA. 9270: 800-756-3524 ext. 5011 This document was prepared by: ANNETTE GAINES BANK OF AMERICA, N.A 6700 LAKEVIEW CENTER DRIVE TAMPA, FL 336190000 [Space Above This Line For Recording Datal MORTGAGE DEFINITIONS Words used in multiple sections of this document are defined below and other words are defined in Sections 3, 11, 13, 18, 20 and 21. Certain rules regarding the usage of words used in this document are also provided in Section 16. (A) "Security Instrument" means this document, which is dated DECEMBER 20, 2006 together with all Riders to this document. (B) "Borrower" is THOMAS F. LAMATRICE, AN UNMARRIED PERSON Borrower is the mortgagor under this Security Instrument. (C) “Lender” is BANK OF AMERICA, N.A Lender is a NATIONAL BANKING ASSOCIATION organized and existing under the laws of THE UNITED STATES OF AMERICA FLORIDA - Single Family - Fannie Mae/Freddie Mac UNIFORM INSTRUMENT Form 3010 1/01 ZR-GELI 0s: Page 1 of 16 VMP MORTGAGE FORMS - (800)521-7291 CVFL 12/20/06 8:50 X OR BOOK 3107, Page Number: 256 INSTR # 1635335 Page 2 of 16 Lender’s address is 6700 LAKEVIEW CENTER DRIVE, TAMPA, FL 336190000 Lender is the mortgagee under this Security Instrument. (D) "Note" means the promissory note signed by Borrower and dated DECEMBER 20, 2006 The Note states that Borrower owes Lender ONE HUNDRED FIFTY EIGHT THOUSAND ONE HUNDRED FIFTEEN AND 00/100 Dollars (US. $ 158, 115.00 ) plus interest. Borrower has promised to pay this debt in regular Periodic Payments and to pay the debt in full not later than JANUARY 01, 2037 (FE) "Property" means the property that is described be