Preview
Filing # 101210805 E-Filed 01/07/2020 08:32:51 AM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR
OSCEOLA COUNTY, FLORIDA
CASE NO.: 2016 CA 000916
U.S. BANK, NATIONAL ASSOCIATION AS LEGAL TITLE
TRUSTEE FOR TRUMAN 2016 SC6 TITLE TRUST,
Plaintiff,
Vs.
VALERIA TAVERAS, ELIEZER TAVERAS, et. al.,
Defendants
DEFENDANTS PETITION (MOTION)
TO TAKE JUDICIAL NOTICE
Come now Defendants, Valeria Taveras, and Eliezer Taveras, pro se, and pursuant to
Section 90.202 subsections (6) and (11) of the Florida Statutes, move this Honorable Court to
Take Judicial Notice, and further stay,
I Section 90.202 subsections (6) and (11) allow the Court to take judicial notice as follows:
(6) Records of any court of this state or of any court of record of the United States or of
any state, territory, or jurisdiction of the United States. (11) Facts that are not subject to
dispute because they are generally known within the territorial jurisdiction of the court.
I In connection with the pending action, Defendants request the Court to take judicial notice
of the following:
That on 08/28/2014 a Declaratory Judgment action under Case No. 2014CA002620,
seeking to declare the mortgage filed in Osceola County Public Records, Book 3282, Page
429, which is also the subject of the foregoing action, was filed in this Honorable Court by
Defendants herein.
That a final judgment was entered by this court on the above action on January 29, 2015.
Copy of the final judgment is been attached hereto as Exhibit “A”.
That a motion to vacate the final judgment was entered by Christiana Trust on 06/25/2015.
Copy of the motion, without exhibits is been attached hereto as Composite Exhibit “B”.
That the Motion attached an affidavit, executed by Manuel Villegas, who purports to be
Default Operation Manager of BSI Financial Services, and the Affidavit attached a copy
of the promissory note, copy of which was attached to this complaint. Copy of Manuel
Villegas’ affidavit is been attached hereto as part of Composite Exhibit “B”.
That on July 09, 2008, a mortgage foreclosure complaint was filed in this Court by Bank
of America, N.A. (“BANA”), under Case Number 08CA5962MF. A copy of the
Complaint, without exhibits, is been attached hereto as Exhibit “C”.
That as evidenced in count II of the complaint, BANA intended to reestablish a “Lost
Mortgage Note”, and no order was given by this Court granting BANA’s request.
That BANA’s foreclosure action was dismissed on 07/23/2010 for lack of prosecution.
WHEREFORE, Defendants respectfully ask this Honorable Court for entry and order
granting judicial notice of above-referred matters; and other and further relief as this Court deems
just and proper.
CERTIFICATE OF SERVICE
IT IS HEREBY CERTIFIED that on January, 7, 2020, a true and correct copy of the
foregoing was sent via Electronic Mail to Plaintiff c/o its counsel, SHD Legal Group P.A.,
nswers@shdlegalgroup.com, and Greenspoon Marder P.A., gmforeclosure@gmlaw.com,
Pleadingsshd@shdlegalgroup.com; and Jason.silver@gmlaw.com; a true and correct copy of the
foregoing was sent via Email to Cross-Defendant Bank of America N.A. c/o its counsel Patty A.
Clarke pelarke@aldridgepite.com, ServiceMail@aldridgepite.com; and service@|gplaw.com;
also a true and correct copy was filed via the Florida Courts E-Filing Portal, which will provide
electronic service to all parties.
Additional Service List:
Braulio and Orquidea Grullon
7706 Excitement Drive
Reunion, FL 34747
Reunion Resort & Club Master Association, Inc.
C/O Aegis Community Management Solutions, Inc.
8390 Championsgate Blvd, Suite 304
Championsgate, FL 33896
Chase [owt
Hiczet Taveras
Valwuaibuten
Valeria Taveras
Etaveras20201 mail.com altaveras@yahoo.com
15465 SW 19 Way 15465 SW 19 Way
Miami, FL 33185 Miami, FL 33185
Phone: 305-515-4840 Phone: 305-515-4840
ULV ERAT AHONT AE
ARMANDO RAMIREZ OSCEOLA COUNTY» DATE 01/30/ Filed in open Cour IS
2015
FILE 2015014268 Bk 4722 Pas 20° 21-2022 (2 Pas}RE10249215 an day of
C FEES $0.00
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT 4D. .
ARMANDO, RAMIREZ, CI LERK
ag
IN AND FOR OSCEOLA COUNTY, FLORIDA
By DC.
ELIEZER TAVERAS and VALERIA TAVERAS
Plaintiff, CASE NO.: 2014 CA 002620
Vs.
CHRISTINA TRUST, A DIVISION OF
WILMINGTON SAVINGS FUND SOCIETY, FSB, NOT IN ITS INDIVIDUAL CAPACITY
BUT AS TRUSTEE OF ARLP TRUST 4,
Defendant.
/
FINAL DEFAULT DECLARATORY JUDGMENT
The Court finds that CHRISTINA TRUST, A DIVISION OF WILMINGTON SAVINGS
FUND SOCIETY, FSB, NOT IN ITS INDIVIDUAL CAPACITY BUT AS TRUSTEE OF
ARLP TRUST 4 (“CHRISTINA TRUST”) was served with a Summons and Complaint in this
action on September 15, 2014. No response was filed, and the Clerk has entered a default. The
Court further finds that the uncontested allegations show that Defendant is the successor by
assignment to a mortgage encumbering the real property of Plaintiffs, which is, by virtue of
Florida’s Statute of Limitations, invalid and unenforceable. Therefore,
IT IS ORDERED AND ADJUDGED as follows:
1 That Final Judgment is hereby entered in favor of the Plaintiffs, ELIEZER
TAVERAS and VALERIA TAVERAS, and against CHRISTINA TRUST.
2 That the Mortgage recorded on September 20, 2006 in Official Records Book
3282 at Page 429, of the Public Records of OSCEOLA County, Florida encumbering the
following described Real Property:
LOT 62, OF REUNION PHASE 1, PARCEL 1, UNIT 1, ACCORDING TO
THE PLAT THEREOF, AS RECORDED IN PLAT BOOK 14, AT PAGE 15,
OF THE PUBLIC RECORDS OF OSCEOLA COUNTY, FLORIDA
(the “Mortgage”) is hereby declared null, void, and cancelled, and does from the date of this
judgment not act as a valid encumbrance on the Real Property described above.
3 The address of Defendant CHRISTINA TRUST is 500 Delaware Ave
Wilmington, DE 19801.
Exhibit "A"
DONE AND ORDERED in chambers, in Osceola County, this __29th day January
» 2015.
sc LODNA, Circuit Court Judge
COPIES TO:
KEITH P. ARAGO
Attorney for VALERIA TAVERAS and ELIZIER
TAVERAS, 230 E. Monument Ave. Suite A
Kissimmee, FL 34741
CHRISTINA TRUST, Defendant, 500 Delaware Ave. Wilmington, DE 19801; 402 STRAND
ST. FREDERIKSTED, VI 00820.
Kil Oy .
Sue
(ag:
Electronically Certified Court Record
(Cover Page)
This cover page is for informational purposes only and is not a requirement when presenting the
Electronic Certified Document. Directly below the cover page, at the bottom of page 1, you will find
the digital signature bearing the identity and authority of the Clerk. On the left side of each page is a
unique code identifying the electronic certification for this document.
a wn aoe se see om o wc = on on - on sc - eee
Agency Name: Osceola County Clerk of the Circuit Court
Clerk of the Circuit Court: The Honorable Armando Ramirez
Date Issued: 12/17/2019 1:18:18 AM
Unique Reference Number: CAA-BAA-BCAJH-ECJADBAB-EEAAE-|
Case Number: 492014CA002620MFXXXX
DEFENDANT CHRISTIANA TRUST MOTION TO
Case Docket:
VACATE FINAL JUDGMENT
Requesting Party Code: 100
Requesting Party Reference: 26693580
HOW TO VERIFY THIS DOCUMENT:
This electronically certified Court Record contains a unique electronic reference number for
identification printed on each page. This document is delivered in PDF format and contains a digital
signature identifying the certifier and a tamper-evident seal indicating whether this document has
been tampered with. The second page of this document contains a digital signature indicating the
certifier as the Osceola County Clerk of the Circuit Court. Open this document using Adobe Reader
software to verify the digital signature of the author. Visit
https://Verify.Clerkecertify.com/Verifyimage to learn more about validating this certified copy.
tal
Exhibit “B"
fae! ae
Filing # 28921666 E-Filed 06/25/2015 09:50:13 AM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
ELIEZER TAVERAS AND VALERIA
TAVERAS,
Plaintiffs,
Vv.
CASE NO. 2014-CA-002620
CHRISTINA TRUST, DIVISION OF
WILMINGTON SAVINGS FUND
& SOCIETY, FSB, NOT IN ITS
INDIVIDUAL CAPACITY BUT AS
we
TRUSTEE OF ARLP TRUST 4,
Defendant.
e
eS
DEFENDANT CHRISTIANA TRUST’S MOTION TO VACATE FINAL JUDGMENT
iy
Defendant Christiana Trust, a division of Wilmington Savings Fund Society, FSB, not in
its individual capacity but as Trustee of ARLP Trust 4 (“Trust”), incorrectly named as Christina
0
Trust, a division of Wilmington Savings Fund Society, FSB, not in its individual capacity but as
oO
Trustee of ARLP Trust 4, by and through its undersigned counsel, and pursuant to Florida Rule
OQ
of Civil Procedure 1.540, files this Motion to Vacate Final Judgment and asks the Court to set
=
aside the Final Judgment entered in this case. The Court should grant the Trust’s Motion because
justice so requires and because the evidence shows that the Trust is entitled to relief. In support
of this Motion, the Trust states as follows:
I INTRODUCTION
The need for this Motion arises out of a void judgment obtained by Plaintiffs Eliezer
Taveras and Valeria Taveras (“Plaintiffs”). The Judgment is void because Plaintiffs obtained the
UTEREBY ATTEST THAT THIS CERTIFIED DOCUMENT'IS A TRUE AND CORRECT COPY AS SAME Digitally signed by The Honorable Armando Ramirez
ARPEARS ON RECORD WITH OSCEOLA COUNTY CLERK OF THE CIRCUIT COURT. Date: 2019.12.17 01:18:19 -05:0
Reason: Electronic Certified Co}
VISIT WWW.0SCEOLACLERK.COMIMOME/CONTENTECERTIFY TO VALIDATE THIS DOCUMENT. Location: 2 Courthouse Square, ssimmee, FI 34741
Judgment based upon a Complaint that failed to state a cause of action. Plaintiffs stated in their
Complaint that the Trust’s mortgage should be declared legally null and void, and is no longer an
enforceable debt; a request that has no support in the law. Therefore, the Judgment is based on a
Complaint that lacks even a colorable legal theory as to why the Trust’s mortgage should be
“declared null and void, cancelled, and from the date of this judgment does not act as a valid
encumbrance on the Real Property described above.”
Oo
Not only should the Judgment be set aside due to the above, but it should also be set aside
&
because of the intrinsic fraud committed upon the Court by Plaintiffs. Plaintiffs committed
we
intrinsic fraud on the Court by claiming in their Complaint that the Trust’s interest in the
ig
Property should be declared null and void, even though Plaintiffs knew that the Trust’s lien was
a valid first lien Mortgage and knew that there was no conceivable or justifiable legal theory to
iy
support removing the Trust’s valid first lion Mortgage. Plaintiffs again committed fraud on the
court by filing its Motion for Summary Judgment and asking the Court to remove the Trust’s
0 valid first lien Mortgage even though Plaintiffs knew that there was absolutely no legal
oO justification for doing so.
Tl. FACTS
1 Plaintiffs executed a Mortgage in favor of Bank of America, N.A. (“Bank of
America”) on September 7, 2006 (“Mortgage”). (Exhibit A, Mortgage.)
2 The Mortgage was recorded in the Official Records of Osceola County Book
3282, page 429 on September 20, 2006. (Ex. A.)
3 The Mortgage secured a Note dated September 7, 2006 (“Notc”). (Exhibit B,
Note.)
4. The Note stated that Plaintiffs owed Bank of America $960,000.00 and is signed
by Plaintiffs. (Ex. B.)
5 The Note is indorsed in blank. (Ex. B.)
6. The Mortgage granted Bank of America a security interest in the Property that is
the subject of the instant litigation. (Ex. A.)
7. The mortgage lists a maturity date of October 01, 2036. (Ex. A)
8 The Property has an address of 7706 Excitement Drive, Kissimmee, Florida
&
34747 (“Property”) and is more particularly described as:
we
LOT 62, OF REUNION PHASE 1, PARCEL 1, UNIT 1, ACCORDING TO THE
PLAT THEREOF, AS RECORDED IN PLAT BOOK 14, AT PAGE 15, OF THE
e PUBLIC RECORDS OF OSCEOLA COUNTY, FLORIDA
eS
(Ex. A.)
iy
9. The Mortgage was assigned from Bank of America to the Trust on June 27, 2014
and was recorded in the Official Records of Osceola County Book 4630, page 1261 on July 1,
0 2014, (Exhibit C, Assignment of Mortgage)
oO 10. The Trust is the owner and holder of the Note and is entitled to enforce the Note.
OQ (Exhibit D, Affidavit of Manuel Villegas)
=
11, Plaintiffs failed to make the payment due on February 1, 2008, and all subsequent
payments. (Exhibit D)
12, Bank of America filed an action to foreclose its first lien Mortgage on or about
July 9, 2008, Osceola Circuit Civil Court Case Number 2008-CA-005962 (“Trust Foreclosure”),
(Exhibit E, Docket from Trust Foreclosure.)
13, Plaintiffs were named in the Trust Foreclosure. (Exhibit F, Lis Pendens from
Trust Foreclosure.)
14, The court entered an Order of Dismissal in the Trust Foreclosure on September
30, 2010. (Exhibit G, Order of Dismissal)
15. Plaintiffs filed the instant action for declaratory relief on or about August 28,
2014. (Exhibit H, Docket.)
st
16. Plaintiffs claim in their Complaint that the Trust’s interest in the subject Property
&
is no longer enforceable by virtue of Fla. Stat. § 95.11(c), and requested that declaratory
we
judgment be entered as follows: “The Mortgage on record is Icgally null and void, and no longer
ig
secures the Real Property, Any Note as described in the Mortgage Foreclosure Complaint is also
legally null and void, and is no longer an enforceable debt.” (Exhibit I, Complaint.)
iy
17. The Clerk centered a Default against the Trust on or about November 18, 2014
(Exhibit H).
0 18. Plaintiffs filed a motion for summary judgment on or about January 14, 2015.
oO (Exhibit H)
19, This Court entered a Final Default Declaratory Judgment on or about January 29,
2015, stating in relevant part that the Trust’s Mortgage “is hereby declared null, void, and
cancelled, and does from the date of this judgment not act as a valid encumbrance on the Real
Properly described above. (Exhibit J, Final Judgment.)
Ill. ARGUMENTS AND AUTHORITIES
Fla. R. Civ, P. 1.540(b) states:
On motion and upon such terms as are just, the court may relieve a party
or a party’s legal representative from a final judgment, decree, order, or
proceeding for the following reasons: (1) mistake, inadvertence, surprise,
or excusable neglect... (3) fraud (whether heretofore denominated
intrinsic or extrinsic), misrepresentation, or other misconduct of an
adverse party; (4) that the judgment or decree is void... The motion shall
be filed within a reasonable time, and for reasons (1), (2), and (3) not more
than 1 year after the judgment, decree, order, or proceeding was entered or
taken.
&
“A trial court has broad discretion in evaluating a Rule 1.540(b) motion seeking relief
we
from final judgment.” Coleman Holdings, Inc. v. Morgan Stanley & Co. Inc., 20 S0.3d 952, 954
e (Fla. 4th DCA 2009) (citing Crowley v. Crowley, 678 So.2d 435, 438 (Fla. 4th DCA 1996). “The
eS
discretion reposed in the trial judge by Fla. R. Civ. P. 1.540 is of the broadest scope and in order
iy
to reverse a judge’s ruling thereunder, there must be a showing of a gross abuse of discretion.”
Schwab & Co., Inc. v. Breezy Bay, Inc., 360 So.2d 117, 118 (Fla. 1978). Trial judges have broad
0 discretion under Fla. R. Civ. P. 1.540 because the facts of each case are very important to
oO whether or not relief should be granted under Fla, R. Civ. P. 1.540, and the circumstances
requiring relief under the Rule are not well defined. Jd.
OQ
= A. The Trust has brought this Motion in a Timely Manner
The Trust makes two arguments in this Motion, with two different time limitations. Both
are brought in a timely manner. A Motion to Vacate a void judgment must be brought within a
reasonable time, but courts have interpreted this to mean “relief from a void judgment pursuant
to Rule 1.540(b) may be granted at any time.” Colon v. Colon, 45 So.3d 553 (Fla. 4th DCA
2010); See also M.L. Builders, Inc. v. Reserve Developers, LLP, 769 So.2d 1079, 1082 (Fla. 4th
DCA 2000) (“While it is true that Rule 1.540(b)(4) states that a motion for relief from a void
judgment must be made within a ‘reasonable time,’ most courts have felt constrained to interpret
the ‘reasonable time’ requirement of the rule to mean no time limit when the judgment attacked
is void: ‘Assuming that a judgment is null and void for lack of jurisdiction does a Rule 1.540(b)
motion for relief not brought within a reasonable time have the effect of making a void judgment
valid? The answer is “no.””” (quoting Whigham v. Whigham, 464 So.2d 674, 676 (Fla. 5th DCA
1985))).
o
The portions of this Motion based on fraud must be brought not more than | year after
&
the judgment or order was entered. Fla. R. Civ. P. 1.540(b), The Final Default Declaratory
we
Judgment was entered January 29, 2015. It has not been one year since the entry of the Final
ig
Default Declaratory Judgment, and therefore this Motion is timely.
B. The Court Should Grant the Motion to Vacate Final Judgment Because the
Final Judgment is Void
iy
“[T]he law is well-settled that a default judgment may not be entered against a defendant
on a complaint which wholly fails to state a cause of action against the said defendant.” Mauna
0
Loa Investments, LLC v. Santiago, 2013 WL 5629771, *2 (Fla. 3d DCA 2013) (quoting Sunshine
oO
Sec. & Detective Agency v. Wells Fargo Armored Servs. Corp., 496 So.2d 246 (Fla. 34 DCA
1986). “A default judgment must be set aside where the complaint fails to state a cause of action
because ‘[fJailure to state a cause of action, unlike formal or technical deficiencies, is a fatal
pleading deficiency not curable by a default judgment.” Mauna Loa Investments, LLC, 2013 WL
5629771 at *2 (quoting Becerra v. Equity Imports, Inc., 551 So.2d 486, 488 (Fla. 3d DCA 1989)
(emphasis added). Unlike situations where a Motion to Vacate is based on fraud or excusable
neglect, “when the underlying judgment is “void,” the trial court has no discretion, but is
obligated to vacate the judgment.” Phenion Development Group, Inc. v. Love, 940 So.2d 1179,
1181 (Fla. Sth DCA 2006).
Plaintiffs’ Complaint fails to state a cause of action for the simple reason that, even if all
the facts alleged in the complaint are true, Plaintiffs are not entitled to the relief obtained. See id.
at 1182 (“where a complaint fails to state a cause of action, the pleading deficiency is ‘not
curable by a default judgment’ because ‘even if the allegations were accepted as truc, the
plaintiff would not have made a case upon which relief could be granted.’ For this reason,
&
default judgment should be set aside as void where the complaint, on its face, fails to state a
we
recognizable claim.”). The Complaint asks this Court to remove the Trust’s valid first lien
e Mortgage as legally null and void, no longer securing the Real Property, but does not articulate a
eS
legal theory under which the Trust’s Mortgage can be removed. Even if all the factual allegations
iy
in Plaintiffs’ Complaint are truc, Plaintiffs would still not be entitled to the relief requested and
obtained.
0 Plaintiffs Complaint likely fails to articulate a legal theory to remove the Trust’s
oO Mortgage because no such legal theory exists. Although Plaintiffs appear to be stating a claim
that the Mortgage is null and void and unenforceable as a result of Fla. Stat. 95.11(c), this is
OQ
= simply not the state of the law in Florida. First, all appellate courts who have considered the
issue except one have held that “a default on the note occurring after a failed foreclosure attempt
causes a new cause of action for statute of limitations purposes.” U.S. Bank Nat. Ass’n, v.
Bartram, 140 So.3d 1007, 1014 (Fla. 5th DCA 2014) review granted Bartram v. U.S. Bank Nat.
Ass'n, Nos. 8C14-1265, SC14-1266, SC14-1305, 2014 WL 4662078 (Fla. Sept. 11, 2014); 20/0-
3 SFR Venture, LLC y. Garcia, 149 $0.3d 123, 125 n. 2 (Fla. 4th DCA 2014); PNC Bank, N.A. v.
Neal, 147 So.3d 32 (Fla. 1st DCA 2013) (holding as such only as to dismissals with prejudice,
the First DCA has not had occasion to review a dismissal without prejudice); see also Kann v.
Wells Fargo Bank, N.A., 981 F. Supp. 2d 1271, 1273-74 (S.D. Fla. 2013); Dorta v. Wilmington
Trust National Ass’n, No. 5:13-cv-185-Oc-10PRL, 2014 WL 1152917 (M.D, Fla. Mar. 24,
2014); LNB-017-013, LLC v. HSBC Bank USA, Nat. Ass’n, No. 1:14-cv-24800-UU, 2015 WL
1546150 (S.D. Fla. 2015).
The only case that has held that the statute of limitations do bar a subsequent foreclosure
o
is out of Florida’s Third District Court of Appeals. Deutsche Bank Trust Co. Americas v.
&
Beauvais, No. 3D 14-575, 2014 WL 7156961 (Fla. 3d DCA Dec. 17, 2014). In Beauvais, the
we
Court held that although the bank is free to foreclose on a subsequent default when the initial
ig
action in which the bank sought to accelerate was dismissed with prejudice, the statute of
limitations bars subsequent actions to foreclose on payment defaults when the action is dismissed
iy
without prejudice. /d. at *6-10. The court then went on to consider whether “given [its] holding
on the statute of limitations, the lien of mortgage is null and void and must be canceled.” Jd. at
0 *10. The court held, as a result of the statute of repose, the mortgage lien remained valid until
oO “five years from the date of maturity as reflected in the recorded mortgage securing the
obligation.” Jd. at *11.
As is evident from the above, the law within this District is clear that not only is the
Trust’s mortgage not deemed null and void as a result of the statute of limitations, but also the
Trust is free to file a new foreclosure based on a subsequent payment default. Furthermore, even
in the case that most supports Plaintiffs’ position, the law within Florida is clear that the Trust’s
mortgage remains valid until five years aficr its maturity, or October 1, 2041. Therefore,
Plaintiffs’ Complaint fails to state a cause of action, the Judgment is void, and the Court must
vacate the Judgment.
Cc. The Court Should Grant the Motion to Vacate Final Judgment Because the
Final Judgment was Obtained Through Intrinsic Fraud
Because Motions based on Fla. R. Civ. P. 1.540 are fact specific, an evidentiary hearing
is often necessary. Crowley, 678 So.2d at 438. To be entitled to an evidentiary hearing, a Motion
based upon Fla. R. Civ. P. 1.540(b)(3) must “clearly and concisely set out the essential facts of
the fraud, and not just legal conclusions.” Flemenbaum v. Flemenbaum, 636 So.2d 579, 580 (Fla.
4th DCA 1994), The Motion should also explain why the fraud entitles the moving party to have
& the judgment set aside. /d. One way of showing that the fraud entitles the moving party to have
we the judgment set aside is a showing that the fraud affected the outcome of the case. Freemon v.
ig
Deutsche Bank Trust Co. Americas, 46 So.3d 1202, 1204 (Fla. 4th DCA 2010). Under Fla. R.
Civ. P. 1.540(b), a Court may grant relief from a judgment for intrinsic fraud or
misrepresentation, Here, Plaintiffs have committed intrinsic fraud and made misrepresentations
iy
to the Court.
“Intrinsic fraud.. applies to fraudulent conduct that arises within a proceeding and
0
pertains to the issues in the case that have been tried or could have been tried. This Court... has
oO
expressly held that false testimony given in a proceeding is intrinsic fraud.” Parker v. Parker,
950 So.2d 388, 391. “[I]ntrinsic fraud is the presentation of misleading information on an issue
before the court that was tried or could have been tried.” /d. In addition, “A lawyer shall not
knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false
statement of material fact or law previously made to the tribunal by the lawyer...” R. Regulating
Fla, Bar 4-3,3(a)(1).
In Parker, the Florida Supreme Court held that the “wife’s misrepresentation concerning
paternity during the dissolution of marriage proceedings constitutes intrinsic fraud.” /d. at 393.
Misrepresentation and collusion constitute intrinsic fraud. Zuckerman v. Alex Hofrichter, P.A.,
630 So.2d 210 (Fla. 3d DCA 1993). Perjury is intrinsic fraud, Streater v. Stamper, 466 So.2d 397
(Fla. Ist DCA 1985).
In Freemon, the Court refused to set aside a judgment because the movant failed to
demonstrate fraud or show why the facts would entitle the movant to relief. 46 So.3d 1202.
8
So Freemon is applicable to the case at hand because it illustrates the type of intrinsic fraud that
o
a must be alleged, and shown by clear evidence, in order to be entitled to relief under Fla. R. Civ.
&
P. 1,540(b). Freemon involved a foreclosure action where the defendant had defaulted. 46 So.3d
at 1203. The plaintiff moved for summary judgment and attached an affidavit of indebtedness.
Id. at 1204. The Court granted summary judgment. /d. The defendant moved for relief from
a
judgment, alleging that the affidavit in support of the motion for summary judgment was
oOt
fraudulent because the person who signed the affidavit did not have personal knowledge of the
a facts stated therein. Jd. The Court held that the motion to set aside the judgment did not
a
demonstrate fraud or show why the facts would entitle the movant to relief because the movant
a
failed to allege that she did not default on the mortgage, failed to allege that the amounts claimed
to be due and owing in the affidavit were incorrect, and failed to specifically allege fraud in
connection with any statements within the affidavit. /d. at 1205.
=
Freemon illustrates that to be entitled to relief under Fla. R. Civ. P. 1.540, a movant must
specifically allege that statements made to the Court were false. A movant must allege that
specific statements were incorrect and must allege fraud in connection with those statements.
Here, the Trust can show that Plaintiffs made falsc statements to the Court. The Trust can show
that specific statements made by Plaintiffs were incorrect and were made in a fraudulent manner,
Plaintiffs presented false and misleading information on an issue before the court when they
10
claimed in their Complaint that the Trust’s Mortgage on the Property should be declared null and
void pursuant to the applicable statute of limitations. Plaintiffs knew that there was no factual or
legal basis for removing the Trust’s valid first lien Mortgage. As discussed above, there is simply
no basis in the law for declaring the Trust’s valid first lien Mortgage null and void on the basis of
the statute of limitations. Therefore, Plaintiffs have committed intrinsic fraud.
a
e
The fraud committed by Plaintiffs entitles the Trust to have the Judgment sct aside
because the fraud affected the outcome of the case. If Plaintiffs had not named the Trust in the
&
instant action and then asked this Court to declare the Trust’s valid first lien Mortgage null and
lu
void, there would not have been a Judgment removing the Trust’s Mortgage. Therefore, the
Ww
a Court should vacate the Final Judgment because it was obtained through intrinsic fraud.
a
WHEREFORE Defendant Christiana Trust, a division of Wilmington Savings Fund
wo
th Socicty, FSB, not in its individual capacity but as Trustee of ARLP Trust 4 respectfully requests
=
that this Honorable Court enter an order vacating and setting aside the Final Judgment,
a
dismissing the instant action because Plaintiffs’ Complaint fails to state a cause of action on
2 which relicf can be granted, and ordering all other relicf this Court deems just and proper.
S
Go Dated: June 25, 2015. MORRIS, LAING, EVANS, BROCK.
& KENNEDY, Chartered
s/ Kyle W. Ohlenschlaeger
Kyle W. Ohlenschlaeger, Esq.
FL Bar No, 111685
505 S. Flagler Drive, Suite 400
West Palm Beach, FL 33401
Telephone: (561) 795-6996
Facsimile: (561) 584-6459
Designated Email for Servi
Fl-litigation@ ort: ing.con’
g.com
1
CRPRDNRBS46a, 3/30/2012 9:56:38 AM PAGE 16/104 888-294-S658
LOAN # 6319977457
> ADJUSTABLE RATE NOTE
THIS NOTE CONTAINS PROVISIONS ALLOWING FOR CHANGES IN MY_ INTEREST
RATE AND MY MONTHLY PAYMENT. INCREASES IN THE INTEREST RATE WILL
RESULT IN HIGHER PAYMENTS. DECREASES IN THE INTEREST RATE WILL RESULT
IN LOWER PAYMENTS.
SEPT oy, 2006 KISS HUMES REUNION) FL
iState}
7706 EXC TEMENT DRIVE. KISSIMMEE (REUNION EL 34747
KISSIMMEE (REUNION) AREA
[Property Address}
1, BORROWER’S PROMISE TO PAY
In return for a loen, thet I have received, I promise to pay US, 5 000 00 (this amount is
celled “Principai”), pivs interest, to the order of Lender, Lender is BANK OF AMERICA, N.A
‘
8nt Twill make all payments under this Note in the form of cash, check or money order,
So understend that may éransfer this Note, Lender or anyone whe takes this Note by transfer and who is
o entitled to receive peyments under this Note ie called Une “Note Holder,"
3
a 2, INTEREST
&
Interest will be charged con unpaid principal until the full amaunt of Principal has been paid. I will pay interest
ata yearly rate of %. The interest rate I will pay will change in accordance with Section 4
tb of this Note.
The interest rate required by this Section 2 and Section 4 of this Note is the cate Iwill pay both before and after
any default described in Section 7(B) of this Note, Interest will be calculated on a 360 DAY basis.
ul
3. PAYMENTS
a (Please check box for interest-only payments.
‘Beginning on the day of NOVEMBER, 200fiod on the FIRST
day of every month thereafter until the FIRST day of NOVEMBER, 2011 Twill pay only the
interest on the unpaid priacipal balance of the Note, Thereafter, 1 will pay principal and interest by making
i payments every month as provided below,
(A) Time and Place of Payments
< Ewill pay principal and interest by making a payment every month.
a
a [will make my monthly payments on the F day of each month beginning on
NOVEMBER 01, 201
Twill make these payments every month until I have paid all of the principal and interest and any other charges
a described below that I may owe under this Note, Hach monthly payment will be applied us of its suheduled due date
and wili be appiieé to interest before Principal. If, on OCTOBER @1 1 still owe amounts
under this Note, I will pay those amounts in full on that date, which is called the “Maturity Date.
a Iwill make my monthly payments at BANK OF AMERICA, N.A P.O. BOX 17404, BALTIMORE, MO
af 24287-1404
or ata different place if required by the Note Holder.
FLORIDA ADJUSTABLE RATE NOTE — Sing’e Family
CENA AE A
=
vise tone
BSBINIFLY «io VMP MORTGAGE FORMS - (8901521-7291
FENI 98/07/08 $361 AM 6919577457
CANN aA
&
Exhibit "B”
CRPRDNRBS46a, 3/30/2012 9:56:38 AM PAGE 17/104 888-294-S658
+
{B) Amaunt of My Initiai Monthly Payments
. Each of my initial monthly payments will be in the artount OF U.S. $ 4,800.00 This amount
may change.
{€) Monthiy Payment Changes
Chonges in my monthly payment will reflect changes in the unpa’d principal of my ioan and in the interest rate
that I must pay, The Note Holder will determine my new interest rate and the changed amount of my monthly
payment in accordance with Section 4 of this Note.
4, INTEREST RATE AND MONTHLY PAYMENT CHANGES
{A) Change Dates
‘The interest rate | will pay may change on the FIRST day of OCTOBER, 2011
and on that dey every 42TH month thereafter. Each date on which my interest rate could change is culled a
"Change Date
(B) The Index
Beginning with the first Change Date, my interest rate will be based on an Index. The “Index” is:
VME ONE-YEAR LONCON INTERBAMK OFFERED RATE ("LIBOR"? WHICH IS THE AVERAGE JF INTERGANK OFFERED RATES FOR ONE-YEAR
U.S. DOLLARDENOMINATED DEPOSITS 1N THE LONDON MARKET, AS PUBLESHEG IN THE WALL STH! JOURNAL VHE MOST RECENE
INDEX SIGURE AVAILALE #5 OF THE DATE 45 DAYS BEFORE EACH CHANGE DATE IS CALLED THE “CURRENT INOEX.~
8nt
So
o
= If the Index is no longer available, the Note Holder will choose a new Index that is based upon comparable
a information, The Note Holder will give me notice of this choice.
& {(C) Calculation of Changes
Befare each Change Dale, the Note Holder will calculate my new interest ray by adding TWO AND
tb ONE-QUARTER percentage points 250 %) to the Current Index.
The Note Holder will then round the result of this addition to the [i Nearest i Next Highest (__) Next Lowest
ONE-EIGHTH OF ONE PERCENTAGE POINT 0.125 %),
ul Subject to the fimits stated in Section 4{D) below, this zounded amount wil! be my new interest cate until the next
Change Date,
The Note Halder will then determine the amount of the monthly payment that would be sufficient to repay the
a unpaid principal thet I am expected to owe at the Change Dete in full om the Maturity Date at my new interest rate
in substantially equal payments. The result of this calcviatiou will be the aew amount of pay inonthiy payment.
‘The "interest Oaly Period is the period from the date of this Nove through OCTOBER O1 2091
Bor terest-Oniy Period, after calculating my new interest rate as provided above, the Note Holder will then
i determine the amount of the mouthly payment that would be sulficient ta puy the interest which accrues on the
unpaid principal of my loan, ‘Ihe result of this calculation will be the new amount of my monthly payment,
The "Amortization Peciod” ia the period after the Loterest-Only Period. Por the Amortization Period, after
<
a
cateulating my new interest rate as provided above, the Note Holder will then determine the amount of the monthly
a payment that would be sufficient ta repsy the unpaid principal that I am expected to owe 2t the Chenge Date in full
on the Maturity Date at my sew interest rate in substantially equal payments. The result of this calculation will be
the new amount of my monthly payment.
a
(D) Limits on Intecest Rate Changes
(Please check appropriate boxes; if no box is checked, there will be no tmaxtiiniurm titnk on
a changes.)
af (1) Thece will be no maximum Limit on interest rate changes.
3
=
BSESINEL) wn Pape ate
FLNI 99/07/06 8:07 aM 6359977457
&
CRPRDNRBS46a, 3/30/2012 9:56:38 AM PAGE 18/104 888-294-S6568
: :
Q) The interest rate | am required to pay, et the first Change Date will nat be greater than
% or less than
(3) My interest rets will never be increased or decreased on anyy single Change Date by more then
ercentage points
from the rate of interest I have been paying Ter the Preceding period.
C3 (4) My interest rate will never be greater than 1 %, which ia calied the "Maximum
Rate.”
G) My interest rate will never be fess than %, which is called the "Minimum
Rats.’
(6) My interest rate will never be less than the initial interest rate.
(7) The interes: rate E am required to pay at 2S first Change Date will not be greater than
41.00) % or jess than. %. Uhercafter, my interest rate will
never be increased or decreased on any single Change date by more then TWO
percentage points { 2.000 %) from the rate of
interest I have been paying for the preceding period.
{E) Effective Date of Changes
My new interest rate will become effective on each Change Date. I will pay the amount of my new monthiy
payment beginning on the first monthly payment date after the Change Date until the amount of my monthly
payment changes again.
8nt
So (F) Notice of Changes
oS The Note Hoider wili deliver or mail to me a notice of any changes in my interest rate and the emount of my
g monthly payment before the effective date of any change. The notice will include information required by law to be
a given to me and also the title and telephone number of a person who will answer any question I may have regerding
the notice,
&
5. BORROWER'S
V HAVE THE RIGHTRIGHT
TG MACE TO PREPA
PAYMENTS OF PRINCIPAL AT RY TIME BEFORE THEY ARE DUE. A PAYMENT OF PRINCIPAL ONLY 1S
tb ENGIN ASA. “PREPAYHENT, " WHEN 1 MAKE A. PREPAYMENT FP WILK TELL THE NOTE HOLOER IN WRITING THAT 1 ats DOING so. 1
may HOT DESIENATE A PAYMENT AS A PREPAYMENT [F J RAVE MOT SUE ALL THE MORTMLY PAYMENTS OUE UNDER THIS NOTE
ul | MAY MAKE A FULL PREPAYMENT OR PARTIAL PREPAYMENTS WITHCUT PAYING A PREPAYMENT CHARGE. APTER PAYING ANY LATE
FEES Of OUTSTANDING FEES THAT 1 DWE THE NOTE MOLLER WILL USE MY PREPEYMENTS TO REDUCE THE AMOUNT OF PRINCIPAL THAT
1 OWE UNDER THIS NOTE HOWEVER THE NOTE HOLDER MAY APPLY MY PREPAYMENT TC THE ACCRUED AN UNPAID INTEREST GN THE
PREPAYMENT AMOUNT BEFORE APPLYING MY PREPAYMENT TO REDUCE THE PR.NGIPAL AMOUNT OF THE NOTE. LPL MAKE A PARTIAL
a PREPAYMENT, HERE WILL BE NG CHANGES IN THE GUE DATE OF MY MONTHLY PAYMENT UNLESS THE NOTE HOLDER ADREES tN WRITING
TO THOSE CHANGES. IF THE PARTIAL PREPAYMENT 1S MAUE QUAING THE PERIOD WHEN WY MUNTHLY PAYMENTS CONS S; UMLY OF
INTEREST. THE AMOUNT OF THE MONTHLY PAYMENT WIL GECREASE FOR THE REMA:NGER OF THE TERM WHEN MY PAYMENTS CONS/ST
ONLY OF INTEREST. IE THE PARTIAL PREPAYMENT 13 MADE DURING THE PERIOD WHEN MY PAYMENTS CONSIST OF PRINCIPAL ANT
i INTEREST, Mf PARTEAL PREPAYMENT MAY REQU HE AMOUNT OF WY MONTHLY PAYMENTS AFTER THE FIAST CHANJE DATE FOLLOWING
MO PARTIAL PREPAYMENT. HOWEVER. ANY RECUCTION DUE TO Mt PARTIAL PREPAYMENT MAY BE CFFSET Y AN INTEREST RATE
INCREASE.
a
a
a
a 6. LOAN CHARG!
If a law, which applies to this loan and which sets maximum loun charges, fs finally interpreted so thar the
af interest or other loan charges collected or to be collected in connection with this loan exceed the permitted limits,
3 then: (a) any such loan charge shall be reduced by the amount necessary to reduce the charge to the permitted limit;
and (b) any sums alresdy collected from me that exceeded itted limits will be refunded ta me. The Note Holder
may choose to make this refund by reducing the Principal Lowe under this Note or by making a direct payment to
me. Ifa refund reduces Principal, the reduction will be treated aa 4 oarsial Prepayment,
=
BSBSSNIFLY s07 Pipe Fate
FUN] 98/07/08 9:64 Aa GII99T74:
CRPRDNRBS46a, 3/30/2012 9:56:38 AM PAGE 19/104 888-294-S658
. :
7. BORROWER'S FAILURE TO PAY AS REQUIRED
(A) Late Charges for Overdue Payments .
df the Note Holder has noi received the fall amount of sny monthly payment by the end of 15
calender days after the date it is due, I will pay a late charge to the Note Holder. The
amount of the chacge will be 5.0 % of my overdue payment of principal and interest. I will
pay this late charge promptly but only on
Preview
Filing # 101210805 E-Filed 01/07/2020 08:32:51 AM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA CASE NO.: 2016 CA 000916 U.S. BANK, NATIONAL ASSOCIATION AS LEGAL TITLE TRUSTEE FOR TRUMAN 2016 SC6 TITLE TRUST, Plaintiff, Vs. VALERIA TAVERAS, ELIEZER TAVERAS, et. al., Defendants DEFENDANTS PETITION (MOTION) TO TAKE JUDICIAL NOTICE Come now Defendants, Valeria Taveras, and Eliezer Taveras, pro se, and pursuant to Section 90.202 subsections (6) and (11) of the Florida Statutes, move this Honorable Court to Take Judicial Notice, and further stay, I Section 90.202 subsections (6) and (11) allow the Court to take judicial notice as follows: (6) Records of any court of this state or of any court of record of the United States or of any state, territory, or jurisdiction of the United States. (11) Facts that are not subject to dispute because they are generally known within the territorial jurisdiction of the court. I In connection with the pending action, Defendants request the Court to take judicial notice of the following: That on 08/28/2014 a Declaratory Judgment action under Case No. 2014CA002620, seeking to declare the mortgage filed in Osceola County Public Records, Book 3282, Page 429, which is also the subject of the foregoing action, was filed in this Honorable Court by Defendants herein. That a final judgment was entered by this court on the above action on January 29, 2015. Copy of the final judgment is been attached hereto as Exhibit “A”. That a motion to vacate the final judgment was entered by Christiana Trust on 06/25/2015. Copy of the motion, without exhibits is been attached hereto as Composite Exhibit “B”. That the Motion attached an affidavit, executed by Manuel Villegas, who purports to be Default Operation Manager of BSI Financial Services, and the Affidavit attached a copy of the promissory note, copy of which was attached to this complaint. Copy of Manuel Villegas’ affidavit is been attached hereto as part of Composite Exhibit “B”. That on July 09, 2008, a mortgage foreclosure complaint was filed in this Court by Bank of America, N.A. (“BANA”), under Case Number 08CA5962MF. A copy of the Complaint, without exhibits, is been attached hereto as Exhibit “C”. That as evidenced in count II of the complaint, BANA intended to reestablish a “Lost Mortgage Note”, and no order was given by this Court granting BANA’s request. That BANA’s foreclosure action was dismissed on 07/23/2010 for lack of prosecution. WHEREFORE, Defendants respectfully ask this Honorable Court for entry and order granting judicial notice of above-referred matters; and other and further relief as this Court deems just and proper. CERTIFICATE OF SERVICE IT IS HEREBY CERTIFIED that on January, 7, 2020, a true and correct copy of the foregoing was sent via Electronic Mail to Plaintiff c/o its counsel, SHD Legal Group P.A., nswers@shdlegalgroup.com, and Greenspoon Marder P.A., gmforeclosure@gmlaw.com, Pleadingsshd@shdlegalgroup.com; and Jason.silver@gmlaw.com; a true and correct copy of the foregoing was sent via Email to Cross-Defendant Bank of America N.A. c/o its counsel Patty A. Clarke pelarke@aldridgepite.com, ServiceMail@aldridgepite.com; and service@|gplaw.com; also a true and correct copy was filed via the Florida Courts E-Filing Portal, which will provide electronic service to all parties. Additional Service List: Braulio and Orquidea Grullon 7706 Excitement Drive Reunion, FL 34747 Reunion Resort & Club Master Association, Inc. C/O Aegis Community Management Solutions, Inc. 8390 Championsgate Blvd, Suite 304 Championsgate, FL 33896 Chase [owt Hiczet Taveras Valwuaibuten Valeria Taveras Etaveras20201 mail.com altaveras@yahoo.com 15465 SW 19 Way 15465 SW 19 Way Miami, FL 33185 Miami, FL 33185 Phone: 305-515-4840 Phone: 305-515-4840 ULV ERAT AHONT AE ARMANDO RAMIREZ OSCEOLA COUNTY» DATE 01/30/ Filed in open Cour IS 2015 FILE 2015014268 Bk 4722 Pas 20° 21-2022 (2 Pas}RE10249215 an day of C FEES $0.00 IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT 4D. . ARMANDO, RAMIREZ, CI LERK ag IN AND FOR OSCEOLA COUNTY, FLORIDA By DC. ELIEZER TAVERAS and VALERIA TAVERAS Plaintiff, CASE NO.: 2014 CA 002620 Vs. CHRISTINA TRUST, A DIVISION OF WILMINGTON SAVINGS FUND SOCIETY, FSB, NOT IN ITS INDIVIDUAL CAPACITY BUT AS TRUSTEE OF ARLP TRUST 4, Defendant. / FINAL DEFAULT DECLARATORY JUDGMENT The Court finds that CHRISTINA TRUST, A DIVISION OF WILMINGTON SAVINGS FUND SOCIETY, FSB, NOT IN ITS INDIVIDUAL CAPACITY BUT AS TRUSTEE OF ARLP TRUST 4 (“CHRISTINA TRUST”) was served with a Summons and Complaint in this action on September 15, 2014. No response was filed, and the Clerk has entered a default. The Court further finds that the uncontested allegations show that Defendant is the successor by assignment to a mortgage encumbering the real property of Plaintiffs, which is, by virtue of Florida’s Statute of Limitations, invalid and unenforceable. Therefore, IT IS ORDERED AND ADJUDGED as follows: 1 That Final Judgment is hereby entered in favor of the Plaintiffs, ELIEZER TAVERAS and VALERIA TAVERAS, and against CHRISTINA TRUST. 2 That the Mortgage recorded on September 20, 2006 in Official Records Book 3282 at Page 429, of the Public Records of OSCEOLA County, Florida encumbering the following described Real Property: LOT 62, OF REUNION PHASE 1, PARCEL 1, UNIT 1, ACCORDING TO THE PLAT THEREOF, AS RECORDED IN PLAT BOOK 14, AT PAGE 15, OF THE PUBLIC RECORDS OF OSCEOLA COUNTY, FLORIDA (the “Mortgage”) is hereby declared null, void, and cancelled, and does from the date of this judgment not act as a valid encumbrance on the Real Property described above. 3 The address of Defendant CHRISTINA TRUST is 500 Delaware Ave Wilmington, DE 19801. Exhibit "A" DONE AND ORDERED in chambers, in Osceola County, this __29th day January » 2015. sc LODNA, Circuit Court Judge COPIES TO: KEITH P. ARAGO Attorney for VALERIA TAVERAS and ELIZIER TAVERAS, 230 E. Monument Ave. Suite A Kissimmee, FL 34741 CHRISTINA TRUST, Defendant, 500 Delaware Ave. Wilmington, DE 19801; 402 STRAND ST. FREDERIKSTED, VI 00820. Kil Oy . Sue (ag: Electronically Certified Court Record (Cover Page) This cover page is for informational purposes only and is not a requirement when presenting the Electronic Certified Document. Directly below the cover page, at the bottom of page 1, you will find the digital signature bearing the identity and authority of the Clerk. On the left side of each page is a unique code identifying the electronic certification for this document. a wn aoe se see om o wc = on on - on sc - eee Agency Name: Osceola County Clerk of the Circuit Court Clerk of the Circuit Court: The Honorable Armando Ramirez Date Issued: 12/17/2019 1:18:18 AM Unique Reference Number: CAA-BAA-BCAJH-ECJADBAB-EEAAE-| Case Number: 492014CA002620MFXXXX DEFENDANT CHRISTIANA TRUST MOTION TO Case Docket: VACATE FINAL JUDGMENT Requesting Party Code: 100 Requesting Party Reference: 26693580 HOW TO VERIFY THIS DOCUMENT: This electronically certified Court Record contains a unique electronic reference number for identification printed on each page. This document is delivered in PDF format and contains a digital signature identifying the certifier and a tamper-evident seal indicating whether this document has been tampered with. The second page of this document contains a digital signature indicating the certifier as the Osceola County Clerk of the Circuit Court. Open this document using Adobe Reader software to verify the digital signature of the author. Visit https://Verify.Clerkecertify.com/Verifyimage to learn more about validating this certified copy. tal Exhibit “B" fae! ae Filing # 28921666 E-Filed 06/25/2015 09:50:13 AM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA ELIEZER TAVERAS AND VALERIA TAVERAS, Plaintiffs, Vv. CASE NO. 2014-CA-002620 CHRISTINA TRUST, DIVISION OF WILMINGTON SAVINGS FUND & SOCIETY, FSB, NOT IN ITS INDIVIDUAL CAPACITY BUT AS we TRUSTEE OF ARLP TRUST 4, Defendant. e eS DEFENDANT CHRISTIANA TRUST’S MOTION TO VACATE FINAL JUDGMENT iy Defendant Christiana Trust, a division of Wilmington Savings Fund Society, FSB, not in its individual capacity but as Trustee of ARLP Trust 4 (“Trust”), incorrectly named as Christina 0 Trust, a division of Wilmington Savings Fund Society, FSB, not in its individual capacity but as oO Trustee of ARLP Trust 4, by and through its undersigned counsel, and pursuant to Florida Rule OQ of Civil Procedure 1.540, files this Motion to Vacate Final Judgment and asks the Court to set = aside the Final Judgment entered in this case. The Court should grant the Trust’s Motion because justice so requires and because the evidence shows that the Trust is entitled to relief. In support of this Motion, the Trust states as follows: I INTRODUCTION The need for this Motion arises out of a void judgment obtained by Plaintiffs Eliezer Taveras and Valeria Taveras (“Plaintiffs”). The Judgment is void because Plaintiffs obtained the UTEREBY ATTEST THAT THIS CERTIFIED DOCUMENT'IS A TRUE AND CORRECT COPY AS SAME Digitally signed by The Honorable Armando Ramirez ARPEARS ON RECORD WITH OSCEOLA COUNTY CLERK OF THE CIRCUIT COURT. Date: 2019.12.17 01:18:19 -05:0 Reason: Electronic Certified Co} VISIT WWW.0SCEOLACLERK.COMIMOME/CONTENTECERTIFY TO VALIDATE THIS DOCUMENT. Location: 2 Courthouse Square, ssimmee, FI 34741 Judgment based upon a Complaint that failed to state a cause of action. Plaintiffs stated in their Complaint that the Trust’s mortgage should be declared legally null and void, and is no longer an enforceable debt; a request that has no support in the law. Therefore, the Judgment is based on a Complaint that lacks even a colorable legal theory as to why the Trust’s mortgage should be “declared null and void, cancelled, and from the date of this judgment does not act as a valid encumbrance on the Real Property described above.” Oo Not only should the Judgment be set aside due to the above, but it should also be set aside & because of the intrinsic fraud committed upon the Court by Plaintiffs. Plaintiffs committed we intrinsic fraud on the Court by claiming in their Complaint that the Trust’s interest in the ig Property should be declared null and void, even though Plaintiffs knew that the Trust’s lien was a valid first lien Mortgage and knew that there was no conceivable or justifiable legal theory to iy support removing the Trust’s valid first lion Mortgage. Plaintiffs again committed fraud on the court by filing its Motion for Summary Judgment and asking the Court to remove the Trust’s 0 valid first lien Mortgage even though Plaintiffs knew that there was absolutely no legal oO justification for doing so. Tl. FACTS 1 Plaintiffs executed a Mortgage in favor of Bank of America, N.A. (“Bank of America”) on September 7, 2006 (“Mortgage”). (Exhibit A, Mortgage.) 2 The Mortgage was recorded in the Official Records of Osceola County Book 3282, page 429 on September 20, 2006. (Ex. A.) 3 The Mortgage secured a Note dated September 7, 2006 (“Notc”). (Exhibit B, Note.) 4. The Note stated that Plaintiffs owed Bank of America $960,000.00 and is signed by Plaintiffs. (Ex. B.) 5 The Note is indorsed in blank. (Ex. B.) 6. The Mortgage granted Bank of America a security interest in the Property that is the subject of the instant litigation. (Ex. A.) 7. The mortgage lists a maturity date of October 01, 2036. (Ex. A) 8 The Property has an address of 7706 Excitement Drive, Kissimmee, Florida & 34747 (“Property”) and is more particularly described as: we LOT 62, OF REUNION PHASE 1, PARCEL 1, UNIT 1, ACCORDING TO THE PLAT THEREOF, AS RECORDED IN PLAT BOOK 14, AT PAGE 15, OF THE e PUBLIC RECORDS OF OSCEOLA COUNTY, FLORIDA eS (Ex. A.) iy 9. The Mortgage was assigned from Bank of America to the Trust on June 27, 2014 and was recorded in the Official Records of Osceola County Book 4630, page 1261 on July 1, 0 2014, (Exhibit C, Assignment of Mortgage) oO 10. The Trust is the owner and holder of the Note and is entitled to enforce the Note. OQ (Exhibit D, Affidavit of Manuel Villegas) = 11, Plaintiffs failed to make the payment due on February 1, 2008, and all subsequent payments. (Exhibit D) 12, Bank of America filed an action to foreclose its first lien Mortgage on or about July 9, 2008, Osceola Circuit Civil Court Case Number 2008-CA-005962 (“Trust Foreclosure”), (Exhibit E, Docket from Trust Foreclosure.) 13, Plaintiffs were named in the Trust Foreclosure. (Exhibit F, Lis Pendens from Trust Foreclosure.) 14, The court entered an Order of Dismissal in the Trust Foreclosure on September 30, 2010. (Exhibit G, Order of Dismissal) 15. Plaintiffs filed the instant action for declaratory relief on or about August 28, 2014. (Exhibit H, Docket.) st 16. Plaintiffs claim in their Complaint that the Trust’s interest in the subject Property & is no longer enforceable by virtue of Fla. Stat. § 95.11(c), and requested that declaratory we judgment be entered as follows: “The Mortgage on record is Icgally null and void, and no longer ig secures the Real Property, Any Note as described in the Mortgage Foreclosure Complaint is also legally null and void, and is no longer an enforceable debt.” (Exhibit I, Complaint.) iy 17. The Clerk centered a Default against the Trust on or about November 18, 2014 (Exhibit H). 0 18. Plaintiffs filed a motion for summary judgment on or about January 14, 2015. oO (Exhibit H) 19, This Court entered a Final Default Declaratory Judgment on or about January 29, 2015, stating in relevant part that the Trust’s Mortgage “is hereby declared null, void, and cancelled, and does from the date of this judgment not act as a valid encumbrance on the Real Properly described above. (Exhibit J, Final Judgment.) Ill. ARGUMENTS AND AUTHORITIES Fla. R. Civ, P. 1.540(b) states: On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, decree, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect... (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) that the judgment or decree is void... The motion shall be filed within a reasonable time, and for reasons (1), (2), and (3) not more than 1 year after the judgment, decree, order, or proceeding was entered or taken. & “A trial court has broad discretion in evaluating a Rule 1.540(b) motion seeking relief we from final judgment.” Coleman Holdings, Inc. v. Morgan Stanley & Co. Inc., 20 S0.3d 952, 954 e (Fla. 4th DCA 2009) (citing Crowley v. Crowley, 678 So.2d 435, 438 (Fla. 4th DCA 1996). “The eS discretion reposed in the trial judge by Fla. R. Civ. P. 1.540 is of the broadest scope and in order iy to reverse a judge’s ruling thereunder, there must be a showing of a gross abuse of discretion.” Schwab & Co., Inc. v. Breezy Bay, Inc., 360 So.2d 117, 118 (Fla. 1978). Trial judges have broad 0 discretion under Fla. R. Civ. P. 1.540 because the facts of each case are very important to oO whether or not relief should be granted under Fla, R. Civ. P. 1.540, and the circumstances requiring relief under the Rule are not well defined. Jd. OQ = A. The Trust has brought this Motion in a Timely Manner The Trust makes two arguments in this Motion, with two different time limitations. Both are brought in a timely manner. A Motion to Vacate a void judgment must be brought within a reasonable time, but courts have interpreted this to mean “relief from a void judgment pursuant to Rule 1.540(b) may be granted at any time.” Colon v. Colon, 45 So.3d 553 (Fla. 4th DCA 2010); See also M.L. Builders, Inc. v. Reserve Developers, LLP, 769 So.2d 1079, 1082 (Fla. 4th DCA 2000) (“While it is true that Rule 1.540(b)(4) states that a motion for relief from a void judgment must be made within a ‘reasonable time,’ most courts have felt constrained to interpret the ‘reasonable time’ requirement of the rule to mean no time limit when the judgment attacked is void: ‘Assuming that a judgment is null and void for lack of jurisdiction does a Rule 1.540(b) motion for relief not brought within a reasonable time have the effect of making a void judgment valid? The answer is “no.””” (quoting Whigham v. Whigham, 464 So.2d 674, 676 (Fla. 5th DCA 1985))). o The portions of this Motion based on fraud must be brought not more than | year after & the judgment or order was entered. Fla. R. Civ. P. 1.540(b), The Final Default Declaratory we Judgment was entered January 29, 2015. It has not been one year since the entry of the Final ig Default Declaratory Judgment, and therefore this Motion is timely. B. The Court Should Grant the Motion to Vacate Final Judgment Because the Final Judgment is Void iy “[T]he law is well-settled that a default judgment may not be entered against a defendant on a complaint which wholly fails to state a cause of action against the said defendant.” Mauna 0 Loa Investments, LLC v. Santiago, 2013 WL 5629771, *2 (Fla. 3d DCA 2013) (quoting Sunshine oO Sec. & Detective Agency v. Wells Fargo Armored Servs. Corp., 496 So.2d 246 (Fla. 34 DCA 1986). “A default judgment must be set aside where the complaint fails to state a cause of action because ‘[fJailure to state a cause of action, unlike formal or technical deficiencies, is a fatal pleading deficiency not curable by a default judgment.” Mauna Loa Investments, LLC, 2013 WL 5629771 at *2 (quoting Becerra v. Equity Imports, Inc., 551 So.2d 486, 488 (Fla. 3d DCA 1989) (emphasis added). Unlike situations where a Motion to Vacate is based on fraud or excusable neglect, “when the underlying judgment is “void,” the trial court has no discretion, but is obligated to vacate the judgment.” Phenion Development Group, Inc. v. Love, 940 So.2d 1179, 1181 (Fla. Sth DCA 2006). Plaintiffs’ Complaint fails to state a cause of action for the simple reason that, even if all the facts alleged in the complaint are true, Plaintiffs are not entitled to the relief obtained. See id. at 1182 (“where a complaint fails to state a cause of action, the pleading deficiency is ‘not curable by a default judgment’ because ‘even if the allegations were accepted as truc, the plaintiff would not have made a case upon which relief could be granted.’ For this reason, & default judgment should be set aside as void where the complaint, on its face, fails to state a we recognizable claim.”). The Complaint asks this Court to remove the Trust’s valid first lien e Mortgage as legally null and void, no longer securing the Real Property, but does not articulate a eS legal theory under which the Trust’s Mortgage can be removed. Even if all the factual allegations iy in Plaintiffs’ Complaint are truc, Plaintiffs would still not be entitled to the relief requested and obtained. 0 Plaintiffs Complaint likely fails to articulate a legal theory to remove the Trust’s oO Mortgage because no such legal theory exists. Although Plaintiffs appear to be stating a claim that the Mortgage is null and void and unenforceable as a result of Fla. Stat. 95.11(c), this is OQ = simply not the state of the law in Florida. First, all appellate courts who have considered the issue except one have held that “a default on the note occurring after a failed foreclosure attempt causes a new cause of action for statute of limitations purposes.” U.S. Bank Nat. Ass’n, v. Bartram, 140 So.3d 1007, 1014 (Fla. 5th DCA 2014) review granted Bartram v. U.S. Bank Nat. Ass'n, Nos. 8C14-1265, SC14-1266, SC14-1305, 2014 WL 4662078 (Fla. Sept. 11, 2014); 20/0- 3 SFR Venture, LLC y. Garcia, 149 $0.3d 123, 125 n. 2 (Fla. 4th DCA 2014); PNC Bank, N.A. v. Neal, 147 So.3d 32 (Fla. 1st DCA 2013) (holding as such only as to dismissals with prejudice, the First DCA has not had occasion to review a dismissal without prejudice); see also Kann v. Wells Fargo Bank, N.A., 981 F. Supp. 2d 1271, 1273-74 (S.D. Fla. 2013); Dorta v. Wilmington Trust National Ass’n, No. 5:13-cv-185-Oc-10PRL, 2014 WL 1152917 (M.D, Fla. Mar. 24, 2014); LNB-017-013, LLC v. HSBC Bank USA, Nat. Ass’n, No. 1:14-cv-24800-UU, 2015 WL 1546150 (S.D. Fla. 2015). The only case that has held that the statute of limitations do bar a subsequent foreclosure o is out of Florida’s Third District Court of Appeals. Deutsche Bank Trust Co. Americas v. & Beauvais, No. 3D 14-575, 2014 WL 7156961 (Fla. 3d DCA Dec. 17, 2014). In Beauvais, the we Court held that although the bank is free to foreclose on a subsequent default when the initial ig action in which the bank sought to accelerate was dismissed with prejudice, the statute of limitations bars subsequent actions to foreclose on payment defaults when the action is dismissed iy without prejudice. /d. at *6-10. The court then went on to consider whether “given [its] holding on the statute of limitations, the lien of mortgage is null and void and must be canceled.” Jd. at 0 *10. The court held, as a result of the statute of repose, the mortgage lien remained valid until oO “five years from the date of maturity as reflected in the recorded mortgage securing the obligation.” Jd. at *11. As is evident from the above, the law within this District is clear that not only is the Trust’s mortgage not deemed null and void as a result of the statute of limitations, but also the Trust is free to file a new foreclosure based on a subsequent payment default. Furthermore, even in the case that most supports Plaintiffs’ position, the law within Florida is clear that the Trust’s mortgage remains valid until five years aficr its maturity, or October 1, 2041. Therefore, Plaintiffs’ Complaint fails to state a cause of action, the Judgment is void, and the Court must vacate the Judgment. Cc. The Court Should Grant the Motion to Vacate Final Judgment Because the Final Judgment was Obtained Through Intrinsic Fraud Because Motions based on Fla. R. Civ. P. 1.540 are fact specific, an evidentiary hearing is often necessary. Crowley, 678 So.2d at 438. To be entitled to an evidentiary hearing, a Motion based upon Fla. R. Civ. P. 1.540(b)(3) must “clearly and concisely set out the essential facts of the fraud, and not just legal conclusions.” Flemenbaum v. Flemenbaum, 636 So.2d 579, 580 (Fla. 4th DCA 1994), The Motion should also explain why the fraud entitles the moving party to have & the judgment set aside. /d. One way of showing that the fraud entitles the moving party to have we the judgment set aside is a showing that the fraud affected the outcome of the case. Freemon v. ig Deutsche Bank Trust Co. Americas, 46 So.3d 1202, 1204 (Fla. 4th DCA 2010). Under Fla. R. Civ. P. 1.540(b), a Court may grant relief from a judgment for intrinsic fraud or misrepresentation, Here, Plaintiffs have committed intrinsic fraud and made misrepresentations iy to the Court. “Intrinsic fraud.. applies to fraudulent conduct that arises within a proceeding and 0 pertains to the issues in the case that have been tried or could have been tried. This Court... has oO expressly held that false testimony given in a proceeding is intrinsic fraud.” Parker v. Parker, 950 So.2d 388, 391. “[I]ntrinsic fraud is the presentation of misleading information on an issue before the court that was tried or could have been tried.” /d. In addition, “A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer...” R. Regulating Fla, Bar 4-3,3(a)(1). In Parker, the Florida Supreme Court held that the “wife’s misrepresentation concerning paternity during the dissolution of marriage proceedings constitutes intrinsic fraud.” /d. at 393. Misrepresentation and collusion constitute intrinsic fraud. Zuckerman v. Alex Hofrichter, P.A., 630 So.2d 210 (Fla. 3d DCA 1993). Perjury is intrinsic fraud, Streater v. Stamper, 466 So.2d 397 (Fla. Ist DCA 1985). In Freemon, the Court refused to set aside a judgment because the movant failed to demonstrate fraud or show why the facts would entitle the movant to relief. 46 So.3d 1202. 8 So Freemon is applicable to the case at hand because it illustrates the type of intrinsic fraud that o a must be alleged, and shown by clear evidence, in order to be entitled to relief under Fla. R. Civ. & P. 1,540(b). Freemon involved a foreclosure action where the defendant had defaulted. 46 So.3d at 1203. The plaintiff moved for summary judgment and attached an affidavit of indebtedness. Id. at 1204. The Court granted summary judgment. /d. The defendant moved for relief from a judgment, alleging that the affidavit in support of the motion for summary judgment was oOt fraudulent because the person who signed the affidavit did not have personal knowledge of the a facts stated therein. Jd. The Court held that the motion to set aside the judgment did not a demonstrate fraud or show why the facts would entitle the movant to relief because the movant a failed to allege that she did not default on the mortgage, failed to allege that the amounts claimed to be due and owing in the affidavit were incorrect, and failed to specifically allege fraud in connection with any statements within the affidavit. /d. at 1205. = Freemon illustrates that to be entitled to relief under Fla. R. Civ. P. 1.540, a movant must specifically allege that statements made to the Court were false. A movant must allege that specific statements were incorrect and must allege fraud in connection with those statements. Here, the Trust can show that Plaintiffs made falsc statements to the Court. The Trust can show that specific statements made by Plaintiffs were incorrect and were made in a fraudulent manner, Plaintiffs presented false and misleading information on an issue before the court when they 10 claimed in their Complaint that the Trust’s Mortgage on the Property should be declared null and void pursuant to the applicable statute of limitations. Plaintiffs knew that there was no factual or legal basis for removing the Trust’s valid first lien Mortgage. As discussed above, there is simply no basis in the law for declaring the Trust’s valid first lien Mortgage null and void on the basis of the statute of limitations. Therefore, Plaintiffs have committed intrinsic fraud. a e The fraud committed by Plaintiffs entitles the Trust to have the Judgment sct aside because the fraud affected the outcome of the case. If Plaintiffs had not named the Trust in the & instant action and then asked this Court to declare the Trust’s valid first lien Mortgage null and lu void, there would not have been a Judgment removing the Trust’s Mortgage. Therefore, the Ww a Court should vacate the Final Judgment because it was obtained through intrinsic fraud. a WHEREFORE Defendant Christiana Trust, a division of Wilmington Savings Fund wo th Socicty, FSB, not in its individual capacity but as Trustee of ARLP Trust 4 respectfully requests = that this Honorable Court enter an order vacating and setting aside the Final Judgment, a dismissing the instant action because Plaintiffs’ Complaint fails to state a cause of action on 2 which relicf can be granted, and ordering all other relicf this Court deems just and proper. S Go Dated: June 25, 2015. MORRIS, LAING, EVANS, BROCK. & KENNEDY, Chartered s/ Kyle W. Ohlenschlaeger Kyle W. Ohlenschlaeger, Esq. FL Bar No, 111685 505 S. Flagler Drive, Suite 400 West Palm Beach, FL 33401 Telephone: (561) 795-6996 Facsimile: (561) 584-6459 Designated Email for Servi Fl-litigation@ ort: ing.con’ g.com 1 CRPRDNRBS46a, 3/30/2012 9:56:38 AM PAGE 16/104 888-294-S658 LOAN # 6319977457 > ADJUSTABLE RATE NOTE THIS NOTE CONTAINS PROVISIONS ALLOWING FOR CHANGES IN MY_ INTEREST RATE AND MY MONTHLY PAYMENT. INCREASES IN THE INTEREST RATE WILL RESULT IN HIGHER PAYMENTS. DECREASES IN THE INTEREST RATE WILL RESULT IN LOWER PAYMENTS. SEPT oy, 2006 KISS HUMES REUNION) FL iState} 7706 EXC TEMENT DRIVE. KISSIMMEE (REUNION EL 34747 KISSIMMEE (REUNION) AREA [Property Address} 1, BORROWER’S PROMISE TO PAY In return for a loen, thet I have received, I promise to pay US, 5 000 00 (this amount is celled “Principai”), pivs interest, to the order of Lender, Lender is BANK OF AMERICA, N.A ‘ 8nt Twill make all payments under this Note in the form of cash, check or money order, So understend that may éransfer this Note, Lender or anyone whe takes this Note by transfer and who is o entitled to receive peyments under this Note ie called Une “Note Holder," 3 a 2, INTEREST & Interest will be charged con unpaid principal until the full amaunt of Principal has been paid. I will pay interest ata yearly rate of %. The interest rate I will pay will change in accordance with Section 4 tb of this Note. The interest rate required by this Section 2 and Section 4 of this Note is the cate Iwill pay both before and after any default described in Section 7(B) of this Note, Interest will be calculated on a 360 DAY basis. ul 3. PAYMENTS a (Please check box for interest-only payments. ‘Beginning on the day of NOVEMBER, 200fiod on the FIRST day of every month thereafter until the FIRST day of NOVEMBER, 2011 Twill pay only the interest on the unpaid priacipal balance of the Note, Thereafter, 1 will pay principal and interest by making i payments every month as provided below, (A) Time and Place of Payments < Ewill pay principal and interest by making a payment every month. a a [will make my monthly payments on the F day of each month beginning on NOVEMBER 01, 201 Twill make these payments every month until I have paid all of the principal and interest and any other charges a described below that I may owe under this Note, Hach monthly payment will be applied us of its suheduled due date and wili be appiieé to interest before Principal. If, on OCTOBER @1 1 still owe amounts under this Note, I will pay those amounts in full on that date, which is called the “Maturity Date. a Iwill make my monthly payments at BANK OF AMERICA, N.A P.O. BOX 17404, BALTIMORE, MO af 24287-1404 or ata different place if required by the Note Holder. FLORIDA ADJUSTABLE RATE NOTE — Sing’e Family CENA AE A = vise tone BSBINIFLY «io VMP MORTGAGE FORMS - (8901521-7291 FENI 98/07/08 $361 AM 6919577457 CANN aA & Exhibit "B” CRPRDNRBS46a, 3/30/2012 9:56:38 AM PAGE 17/104 888-294-S658 + {B) Amaunt of My Initiai Monthly Payments . Each of my initial monthly payments will be in the artount OF U.S. $ 4,800.00 This amount may change. {€) Monthiy Payment Changes Chonges in my monthly payment will reflect changes in the unpa’d principal of my ioan and in the interest rate that I must pay, The Note Holder will determine my new interest rate and the changed amount of my monthly payment in accordance with Section 4 of this Note. 4, INTEREST RATE AND MONTHLY PAYMENT CHANGES {A) Change Dates ‘The interest rate | will pay may change on the FIRST day of OCTOBER, 2011 and on that dey every 42TH month thereafter. Each date on which my interest rate could change is culled a "Change Date (B) The Index Beginning with the first Change Date, my interest rate will be based on an Index. The “Index” is: VME ONE-YEAR LONCON INTERBAMK OFFERED RATE ("LIBOR"? WHICH IS THE AVERAGE JF INTERGANK OFFERED RATES FOR ONE-YEAR U.S. DOLLARDENOMINATED DEPOSITS 1N THE LONDON MARKET, AS PUBLESHEG IN THE WALL STH! JOURNAL VHE MOST RECENE INDEX SIGURE AVAILALE #5 OF THE DATE 45 DAYS BEFORE EACH CHANGE DATE IS CALLED THE “CURRENT INOEX.~ 8nt So o = If the Index is no longer available, the Note Holder will choose a new Index that is based upon comparable a information, The Note Holder will give me notice of this choice. & {(C) Calculation of Changes Befare each Change Dale, the Note Holder will calculate my new interest ray by adding TWO AND tb ONE-QUARTER percentage points 250 %) to the Current Index. The Note Holder will then round the result of this addition to the [i Nearest i Next Highest (__) Next Lowest ONE-EIGHTH OF ONE PERCENTAGE POINT 0.125 %), ul Subject to the fimits stated in Section 4{D) below, this zounded amount wil! be my new interest cate until the next Change Date, The Note Halder will then determine the amount of the monthly payment that would be sufficient to repay the a unpaid principal thet I am expected to owe at the Change Dete in full om the Maturity Date at my new interest rate in substantially equal payments. The result of this calcviatiou will be the aew amount of pay inonthiy payment. ‘The "interest Oaly Period is the period from the date of this Nove through OCTOBER O1 2091 Bor terest-Oniy Period, after calculating my new interest rate as provided above, the Note Holder will then i determine the amount of the mouthly payment that would be sulficient ta puy the interest which accrues on the unpaid principal of my loan, ‘Ihe result of this calculation will be the new amount of my monthly payment, The "Amortization Peciod” ia the period after the Loterest-Only Period. Por the Amortization Period, after < a cateulating my new interest rate as provided above, the Note Holder will then determine the amount of the monthly a payment that would be sufficient ta repsy the unpaid principal that I am expected to owe 2t the Chenge Date in full on the Maturity Date at my sew interest rate in substantially equal payments. The result of this calculation will be the new amount of my monthly payment. a (D) Limits on Intecest Rate Changes (Please check appropriate boxes; if no box is checked, there will be no tmaxtiiniurm titnk on a changes.) af (1) Thece will be no maximum Limit on interest rate changes. 3 = BSESINEL) wn Pape ate FLNI 99/07/06 8:07 aM 6359977457 & CRPRDNRBS46a, 3/30/2012 9:56:38 AM PAGE 18/104 888-294-S6568 : : Q) The interest rate | am required to pay, et the first Change Date will nat be greater than % or less than (3) My interest rets will never be increased or decreased on anyy single Change Date by more then ercentage points from the rate of interest I have been paying Ter the Preceding period. C3 (4) My interest rate will never be greater than 1 %, which ia calied the "Maximum Rate.” G) My interest rate will never be fess than %, which is called the "Minimum Rats.’ (6) My interest rate will never be less than the initial interest rate. (7) The interes: rate E am required to pay at 2S first Change Date will not be greater than 41.00) % or jess than. %. Uhercafter, my interest rate will never be increased or decreased on any single Change date by more then TWO percentage points { 2.000 %) from the rate of interest I have been paying for the preceding period. {E) Effective Date of Changes My new interest rate will become effective on each Change Date. I will pay the amount of my new monthiy payment beginning on the first monthly payment date after the Change Date until the amount of my monthly payment changes again. 8nt So (F) Notice of Changes oS The Note Hoider wili deliver or mail to me a notice of any changes in my interest rate and the emount of my g monthly payment before the effective date of any change. The notice will include information required by law to be a given to me and also the title and telephone number of a person who will answer any question I may have regerding the notice, & 5. BORROWER'S V HAVE THE RIGHTRIGHT TG MACE TO PREPA PAYMENTS OF PRINCIPAL AT RY TIME BEFORE THEY ARE DUE. A PAYMENT OF PRINCIPAL ONLY 1S tb ENGIN ASA. “PREPAYHENT, " WHEN 1 MAKE A. PREPAYMENT FP WILK TELL THE NOTE HOLOER IN WRITING THAT 1 ats DOING so. 1 may HOT DESIENATE A PAYMENT AS A PREPAYMENT [F J RAVE MOT SUE ALL THE MORTMLY PAYMENTS OUE UNDER THIS NOTE ul | MAY MAKE A FULL PREPAYMENT OR PARTIAL PREPAYMENTS WITHCUT PAYING A PREPAYMENT CHARGE. APTER PAYING ANY LATE FEES Of OUTSTANDING FEES THAT 1 DWE THE NOTE MOLLER WILL USE MY PREPEYMENTS TO REDUCE THE AMOUNT OF PRINCIPAL THAT 1 OWE UNDER THIS NOTE HOWEVER THE NOTE HOLDER MAY APPLY MY PREPAYMENT TC THE ACCRUED AN UNPAID INTEREST GN THE PREPAYMENT AMOUNT BEFORE APPLYING MY PREPAYMENT TO REDUCE THE PR.NGIPAL AMOUNT OF THE NOTE. LPL MAKE A PARTIAL a PREPAYMENT, HERE WILL BE NG CHANGES IN THE GUE DATE OF MY MONTHLY PAYMENT UNLESS THE NOTE HOLDER ADREES tN WRITING TO THOSE CHANGES. IF THE PARTIAL PREPAYMENT 1S MAUE QUAING THE PERIOD WHEN WY MUNTHLY PAYMENTS CONS S; UMLY OF INTEREST. THE AMOUNT OF THE MONTHLY PAYMENT WIL GECREASE FOR THE REMA:NGER OF THE TERM WHEN MY PAYMENTS CONS/ST ONLY OF INTEREST. IE THE PARTIAL PREPAYMENT 13 MADE DURING THE PERIOD WHEN MY PAYMENTS CONSIST OF PRINCIPAL ANT i INTEREST, Mf PARTEAL PREPAYMENT MAY REQU HE AMOUNT OF WY MONTHLY PAYMENTS AFTER THE FIAST CHANJE DATE FOLLOWING MO PARTIAL PREPAYMENT. HOWEVER. ANY RECUCTION DUE TO Mt PARTIAL PREPAYMENT MAY BE CFFSET Y AN INTEREST RATE INCREASE. a a a a 6. LOAN CHARG! If a law, which applies to this loan and which sets maximum loun charges, fs finally interpreted so thar the af interest or other loan charges collected or to be collected in connection with this loan exceed the permitted limits, 3 then: (a) any such loan charge shall be reduced by the amount necessary to reduce the charge to the permitted limit; and (b) any sums alresdy collected from me that exceeded itted limits will be refunded ta me. The Note Holder may choose to make this refund by reducing the Principal Lowe under this Note or by making a direct payment to me. Ifa refund reduces Principal, the reduction will be treated aa 4 oarsial Prepayment, = BSBSSNIFLY s07 Pipe Fate FUN] 98/07/08 9:64 Aa GII99T74: CRPRDNRBS46a, 3/30/2012 9:56:38 AM PAGE 19/104 888-294-S658 . : 7. BORROWER'S FAILURE TO PAY AS REQUIRED (A) Late Charges for Overdue Payments . df the Note Holder has noi received the fall amount of sny monthly payment by the end of 15 calender days after the date it is due, I will pay a late charge to the Note Holder. The amount of the chacge will be 5.0 % of my overdue payment of principal and interest. I will pay this late charge promptly but only on