No Value: U.S. BANK NATIONAL ASSOCIATION AS LEGAL TITLE TRUSTEE FOR TRUMAN 2016 SC6 TITLE TRUST vs. TAVERAS, VALERIA

On May 06, 109 a No Value was filed involving a dispute between U.S. Bank National Association As Legal Title Trustee For Truman 2016 Sc6 Title Trust, and Bank Of America Na, Reunion Resort & Club Of Orlando Master Association Inc, Taveras, Eliezer, Taveras, Valeria, Unknown Tenant #1, Unknown Tenant #2, for CIRCUIT CIVIL in the District Court of Osceola County.

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Filing # 88995343 E-Filed 05/04/2019 11:49:58 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

MOTION FOR RECONSIDERATION
OF DEFENDANTS MOTION TO DISMISS AMENDED COMPLAINT

COME NOW, the Defendant(s), VALERIA TAVERAS; and ELIEZER TAVERAS, (hereinafter
“Defendants”), pro se and hereby submit their Motion for Reconsideration on Defendants’ Motion
to Dismiss Amended Complaint, and move this court to dismiss Amended Complaint pursuant to
Florida Rule 12(b)(6), and Florida Rule 1.140, as follows:

This motion is made in good faith and not for delay purposes.
IL. Rather than constituting a motion for rehearing under Fla. R. Civ. Pro. 1.530, a motion
directed to a nonfinal order is termed a “Motion for Reconsideration” based upon the trial
court’s inherent authority to reconsider and alter or retract orders prior to the entry of final
judgment. See Bettez v. City of Miami, 510 So. 2d 1242, 1242-43 (So. 3d DCA 1987).
iii. The Defendants respectfully assert that the 4/18/2019 court’s order, denying the
Defendants’ Motion to Dismiss Amended Complaint was in error and a biased decision for
prejudice of Judge Schreiber against the Defendants and in favor of the adverse party. The
4/18/2019 hearing’s transcript has been attached as Exhibit “1”.
IV, On April 29", the Defendants respectfully filed their Motion to Recuse the Honorable
Margaret H. Schreiber, and in good faith belief that an unbiased judge will hear this and
further motions; therefore, file this Motion for Reconsideration.
MEMORANDUM OF LAW

1 The proper standard of review for a Court when considering a motion to reconsider is set forth
in Prudential Securities, Inc. v. Emerson, 919 F.Supp. 415 (M.D.Fla.1996). The court in
Prudential held that “[a] Court will not alter a prior decision absent a showing of a clear and
obvious error where ‘the interests of justice’ demand correction.” Id. at 417 (quoting American
Home Assurance Co. v. Glenn Estess & Associates, Inc., 763 F.2d 1237, 1239 (11th
Cir.1985)). Moreover, the refusal to grant relief in a motion for reconsideration is reviewed by
the appellate court under an abuse of discretion standard. See Hancock v. City of Okla. City,
857 F.2d 1394, 1395 (10th Cir.1988).
Courts have considerable discretion to reconsider an order. Johnston _v. Tampa Sports
Authority, 442 F.Supp.2d 1257, 1261 (M.D.Fla.2006) (citing O’Neal v. Kennamer, 958 F.2d
1044, 1047 (11th Cir.1992)), The trial court abuses its discretion if it overlooks a relevant
factor that deserves significant weight. Sussman v. Salem, Saxon & Nielsen, P.A., 153 F.R.D.
689, 694 (M.D.Fla.1994). The trial court also abuses its discretion if it considers all relevant
factors, but, nonetheless, commits a “palpable error of judgment in calibrating the decisional
scales.” Id. (citing U.S. v. Hastings, 847 F.2d 920, 924 (1st Cir.1988), cert. denied, 488 U.S.
925, 109 S.Ct. 308, 102 L.Ed.2d 327 (1988)).
Considering these legal theories, the Defendants further state:
The purpose of a motion to dismiss is to test the legal sufficiency of the complaint. Ramos v.
Mast, 789 So. 2d 1226 (Fla. Dist. Ct. App. 2001).
The court accepts the allegations of the complaint as true and views the facts in the light most
favorable to the plaintiff in deciding a motion to dismiss, Hill v. White, 321 F.3d 1334, 1335

(11th Cir. 2003), recognizing that a plaintiff is required to allege “more than labels and
conclusions” in stating its claim, and that a mere “formulaic recitation of the elements of a
cause of action will not do.” Bell Atlantic Corp v. Twombly, 550 U.S. 544, 555 (2007).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted

as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct.

1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Court
must determine, based on “judicial experience and common sense,” whether the well-plead
facts in the complaint present a plausible claim for relief. Id. at 1950. “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. Thus, “only a
complaint that states a plausible claim for relief survives a motion to dismiss.” Id.
The existence of the defense may be judged on the face of an exhibit which is attached to the
plaintiff's complaint and made central to its claims. Concorida v. Bendekovic, 693 F.2d 1073
(11th Cir. 1982); LeFrere v. Quezada, 582 F.3d 1260 (11th Cir. 2009) (if complaint contains
claim that is facially subject to affirmative defense, it may be dismissed on motion to dismiss
for failure to state a claim).
Generally, in deciding a motion to dismiss for failure to state a claim, the court limits its inquiry
to facts stated in the complaint. See Fed. R. Civ. P. 12(d). But if a document is central to the
claim and is attached or incorporated by reference into the complaint, it is not considered
outside the pleading and can be considered by the court, SFM Holdings, L td.v. Banc of Am.
S ecs., LLC, 600 F. 3d 1334, 1337 (11th Cir. 2010).
Under Florida law, “[t]he party seeking foreclosure must present evidence that it owns and
holds the note and mortgage to establish standing to proceed with a foreclosure action.” Mazine
v.M & I Bank, 67 So.3d 1129, 1131 (Fla. Ist DCA 2011) (citing Servidio v. U.S. Bank Nat'l
Ass'n, 46 So.3d 1105 (Fla. 4th DCA 2010)).
10. A party seeking foreclosure must demonstrate that it has standing to foreclose. See McLean v.
JP Morgan Chase Bank Nat’! Ass’n, 79 So. 3d 170, 173 (Fla. 4th DCA 2012).
11 Standing must be established as of the time of filing the foreclosure complaint. See Focht v.
Wells Fargo Bank, N.A ., 124 So. 3d 308, 310 (Fla. 2d DCA 2013) (footnote omitted),
12 Having a mortgage is certainly not sufficient to foreclose a property. It’s been well settled that
the right to enforce a mortgage (by forced sale of property) is dependent on the right to enforce
the note secured by the mortgage. See WM Specialty Mortg., LLC v. Salomon, 874 So.2d 680,
682 (Fla. 4th DCA 2004) (“[A] mortgage is but an incident to the debt, the payment of which
it secures.” (Quoting Johns v. Gillian, 184 So. 140, 143-44 (Fla.1938)).
13 Furthermore, “[T]he plaintiff must prove that it had standing to foreclose when the complaint
was filed.” McLean v. JP Morgan Chase Bank Nat’! Ass’n, 79 So. 3d 170, 173 (Fla. 4th DCA
2012).
14, A court cannot look beyond the pleadings in deciding a Rule 12(b)(6) motion. See Spivey v.
Robertson, 197 F.3d 772, 774 (Sth Cir. 1999), Pleadings in the Rule 12(b)(6) context include
attachments to the complaint. See In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (Sth
Cir. 2007). Documents “‘attache[d] to a motion to dismiss are considered to be part of the
pleadings, if they are referred to in the plaintiffs complaint and are central to her claim.”
Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000) (internal
quotation marks omitted). “Although the Fifth Circuit has not articulated a test for determining
when a document is central to a plaintiffs claims, the case law suggests that documents are
central when they are necessary to establish an element of one of the plaintiffs claims. Thus,
when a plaintiff's claim is based on the terms of a contract, the documents constituting the

contract are central to the plaintiff's claim.” Kaye v. Lone Star Fund V (U.S.), L.P., 453 B.R.
645, 662 (N.D. Tex. 2011). “However, if a document referenced in the plaintiffs complaint is
merely evidence of an element of the plaintiffs claim, then the court may not incorporate it
into the complaint.” Id.
15 In Florida law, a plaintiff must demonstrate that it is the holder of the promissory note which
encumbers the subject property it is trying to foreclose. Thus, a promissory note attached to
the complaint must be considered part of the pleadings.

BACKGROUND

16 The foregoing action was initiated by SERVIS ONE, INC; DBA BSI FINANCIAL SERVICES
(“BSI”) on behalf of CHRISTIANA TRUST, A DIVISION OF WILMINGTON SAVINGS
FUND SOCIETY, FSB, NOT IN ITS INDIVIDUAL CAPACITY BUT AS TRUSTEE OF
ARLP TRUST 4 (“THE TRUST”).
17 With its intention to establish standing, BSI filed, together with its Complaint, a copy of a
certain assignment of mortgage (“Assignment”) and corrective of assignment (“Corrective”)
from Bank of America N.A. (“BANA”) to THE TRUST. BSI also included a copy of a certain
promissory note (the “Questioned-Note”).
18 Notably neither the Assignment nor the Corrective makes reference to the endorsement of a
promissory note.
19 Public Records evidence that on 7/24/2017 THE TRUST assigned the Mortgage to the new
Plaintiff. The assignment (“Assignment-2”) was registered in this court on book 5183, pages
179 and 180.
20 On 4/20/2018 a corrective of assignment (“Corrective-2”) was filed in this court. The
corrective was registered in this court on book 5320, page 1059 and 1060. Copy of
Assignment-2 and Corrective-2 has been attached as composite Exhibit “2”.
21 Notably, both the Assignment-2 and Corrective-2 are indicating that THE TRUST was
endorsing the Questioned-Note to the actual Plaintiff.
22 On 4/27/2018 THE TRUST filed a MOTION TO SUBSTITUTE PARTY PLAINTIFF. The
same day the Defendants filed their response in opposition. This court granted Plaintiffs
motion ona hearing held on 6/7/2018.
23 As the Defendants had alleged that the Questioned-Note was false, on 5/14/2018 Greg
Rosenthal, attorney for Plaintiff, sent them a Request for Production of Documents, including
a request for documents proving the forgery on the Questioned-Note. On 5/25/2018 the
Defendants emailed him the answer, including copies of expert opinion of forensic examiners.
Copy of the answer was also filed in this court and can be found in the docket. Furthermore,
on August 23, 2018, as per the request of Mr. Rosenthal, who alleged that the curriculum vitae
were not included in the above-referred answer, Eliezer Taveras emailed him with full copies
of the affidavits.
24, The affidavits of expert opinion are clear and convincing evidence of the falsity of the
promissory note.
25 As the Plaintiff had evidence of the falsity of the Questioned-Note, it is now pursuing a futile
cause of action for equitable subrogation.

ACTUAL FACTS

26 On 12-21-2018 the Plaintiff filed its amended complaint (“Amended Complaint”), and a
motion to leave to amend. The motion was granted on a hearing held on February 7, 2019.
27 Plaintiff relies of the Questioned-Note and the Corrective-2, attached to the Amended

Complaint, to establish standing.
28 Notably, as seen on paragraph 27 of the Amended Complaint, the Plaintiff is pleading
“Assuming arguendo that Valeria Taveras’s signature was forged on the Note and/or Mortgage,
Plaintiff is entitled by the doctrine of equitable subrogation to the imposition and foreclosure
of an equitable lien against the subject property.”
29 The Plaintiff attached a copy of the Questioned-Note and a copy of the Corrective-2 on its
attempt to establish standing. Both the Questioned-Note and the Corrective-2 must be
considered part of Plaintiff's pleadings; see Concorida v. Bendekovic, 693 F.2d 1073 (11th
Cir. 1982); and LeFrere v. Quezada, 582 F.3d 1260 (11th Cir. 2009).
30 Moreover, on paragraph 27 of the Amended Complaint, the Plaintiff also states: “Otherwise,
said Defendants will gain a windfall and unjustly enriched.”
31 Plaintiffs pleadings, exhibits, and arguments are contradictory to Florida Law and are barred
by the doctrines of Standing, Unclean Hands, Breach of Contract, and Plaintiff has failed to

verify the complaint, pursuant to Florida Rule 1.110(b).

FAILING TO COMPLY WITH VERIFICATION OF COMPLAINT

32 The Amended Complaint failed to comply with the Florida Supreme Court [SC09-1460]
amendment of Rule 1.110(b).
33 The verification of complaint is ambiguous and contradictory. On paragraph 9 of the Amended
Complaint, the Plaintiff states that is the holder of the Note and Mortgage; but at the same time
is acknowledging the “possibility” of the falsity of the promissory note attached to its Amended
Complaint.
34 Notably, on paragraph 25 of its answer to the Defendants’ motion to dismiss, the plaintiff
acknowledges that Karin Ziembiec, the individual who verified the Amended Complaint, was
acknowledging the possibility that the promissory note was forged.
35 Florida Law is clear about contradictory statements, as provided on Rule 837.021, which states
that “Except as provided in subsection (2), whoever, in one or more official proceedings,
willfully makes two or more material statements under oath which contradict each other,

commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s.
775.084.” And paragraph 3(c) provides that in any prosecution for perjury under that section
“Tt is not necessary to prove which, if any, of the contradictory statements is not true.”
36 Karin Ziembiec should be prosecuted, pursuant to Florida Rule 837.021, and the Amended
Complaint must be dismissed.

FAILING TO STATE A CAUSE OF ACTION

37 On light of the Four Corners of the Complaint, a complaint must be legally sufficient.
38. A court is required to view the complaint in the light most favorable to the plaintiff and accept
the truthfulness of well-pleaded facts. See Milburn v. United States, 734 F.2d 762, 765 (11th
Cir. 1984); Warth v. Seldin, 422 U.S. 490, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975); See also
Beck v. Deloitte et al., 144 F.3d 732, 735-36 (11th Cir. 1998) (quoting St. Joseph's Hosp., Inc.
v. Hospital Corp. of America, 795 F.2d 948 (11th Cir.1986)).
39 Notably, THE TRUST filed the foregoing foreclosure action and changed party plaintiff,
pursuant to Florida Rule of Civil Procedure 1.260. Under this rule, the substituted transferee

acquires the standing of the transferor original plaintiff.
40. The Plaintiffs pleading for equitable subrogation (count two of the Amended Complaint) is
insufficient as a matter of law. The allegations are auto conclusive: The Plaintiff is barred from
such action.
41 In Florida, “[s]ubrogation is the substitution of one person in the place of another with
reference to a lawful claim or right.” State Farm Mut. Auto. Ins. Co. v. Johnson, 18 So. 3d

1099, 1100 (Fla. 2d DCA 2009) (citing West Am. Ins. Co. v. Yellow Cab Co. of Orlando, Inc.,
495 So. 2d 204, 206 (Fla, Sth DCA 1986)) (Emphasis added).
42 The seminal subrogation case in Florida is Dade County Sch. Bd. v. Radio Station WOBA,
731 So, 2d 638 (Fla. 1999). Dade County Sch. Bd. sets forth the two types of subrogation and
the legal requirements for both. The two types of subrogation are (1) contractual or
conventional subrogation and (2) equitable subrogation.
43 As to the first type of subrogation, “[c]onventional or contractual subrogation arises from a
contract between the parties establishing an agreement that the party paying the debt will have
the rights and remedies of the original creditor.” Id. at 646, (citing Boley v. Daniel, 72 So. 644,
645 (Fla. 1916) (finding that conventional subrogation arises when a party having no interest
in the matter pays the debt of another and by agreement is entitled to the rights and securities
of the creditor who has been paid)); (also citing Phoenix Ins. Co. v. Florida Farm Bureau Mut.
Ins. Co., 558 So. 2d 1048, 1050 (Fla. 2d DCA 1990)).
44 Regarding the second type of subrogation, A cause of action for equitable subrogation arises
where: (1) the subrogee made the payment to protect his or her own interest, (2) the subrogee
did not act as a volunteer, (3) the subrogee was not primarily liable for the debt, (4) the
subrogee paid off the entire debt, and (5) subrogation would not work any injustice to the rights
of a third party.” Johnson, 18 So. 2d at 1100-01 (citing Dade County Sch. Bd., 731 So.2d at
646). Furthermore, for equitable subrogation “[i]n tort cases, the party seeking subrogation
must have obtained a release for the other party responsible for the debt.” Johnson, 18 So, 2d
at 1101.
45 The ordinary equity maxims are applicable to subrogation, which is not permitted when there
is an adequate legal remedy. The plaintiff must come into court with clean hands, and. the
person who seeks equity must do equity. The remedy is not available when there are equal or
superior equities in other individuals who are in opposition to the party seeking subrogation.
The remedy is denied when the person seeking subrogation has interfered with the rights of
others, committed Fraud, or been negligent.!
46 Equitable subrogation is a legal fiction relying on technical rules, which cannot step out of the
restrictions provided in Florida Statute 95.11. The four-year limitation period under subsection
3(k) applies to an "equitable action," which includes equitable subrogation. Florida case law
indicates that the four-year limitation period on an equitable subrogation claim begins to run
from the date payment was made on the claim; that would make the Plaintiffs claim null and
void pursuant to the Statute of Limitations.
47 Further, the essential elements of a claim for unjust enrichment are: (1) a benefit conferred
upon a defendant by the plaintiff, (2) the defendant's appreciation of the benefit, and (3) the
defendant's acceptance and retention of the benefit under circumstances that make it
inequitable for him to retain it without paying the value thereof. See Swindell v. Crowson, 712
So.2d 1162, 1163 (Fla. 2d DCA 1998).
48 The arguments of Greg Rosenthal, Plaintiffs attorney, to support Plaintiffs claim for equitable
subrogation are provided in the transcript at page 13, lines 13-16:

' West’s Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Croup, Inc. All
rights reserved.
Now, should the Court determine that the original -- that the note attached
to my amended complaint is a forgery, that's where the equitable subrogation count
comes in.
49 And on page 15, lines 12-18, Mr. Rosenthal also pleaded:
So in terms of the futility argument, again, the reason why the complaint was
amended in the first place was to allege -- to have the Plaintiff given the ability to
allege a cause of action if it's determined by the Court that the note is a forgery.
And that was the equitable subrogation count that was added when the complaint
was amended.
50. Those pleadings and reasons are futile. As a matter of law, the Plaintiff is statutorily barred
from pursuing equitable subrogation and any other claim, once it is proven that the promissory
note attached to the Amended Complaint was forged. The court erred allowing a Plaintiff to
pursue a count for equitable subrogation under these suppositions, considering that the Plaintiff
is not the original lender; and the Defendants never had a valid contract with the Plaintiff, as

further explained in more details.
31 IF the promissory note was forged, then the plaintiff is barred from equitable subrogation and
from any intent to foreclose the subject property, for the doctrine of unclean hands.
52 IF the signature of Valeria Taveras on the promissory note was forged, then the promissory
note is false, then THE TRUST did not have standing for a claim of equitable subrogation of
a certain mortgage that was supposedly paid by BANA, neither has the Plaintiff. The Plaintiff
is barred by the doctrine of standing.
53 If the Plaintiff is barred by the doctrine of standing, then the Plaintiff cannot pledge unjust
enrichment as Plaintiff did not confer any benefit to the Defendants.
54 IE the promissory note was forged, then the Mortgage that was assigned to the Plaintiff (which
copy of corrective of assignment of mortgage is attached to the Amended Complaint, thus, it
is part of Plaintiff's pleadings) is now void and null for the doctrine of breach of contract, due
to the fact that the note was endorsed in the assignment of mortgage.
55 IF the Questioned-Note is false, then as a matter of law, the Plaintiff is statutorily barred from
enforcing the mortgage signed by the Defendants for the invalidity or unenforceability of the
lien of the mortgage, or claim thereof, which arises out of the endorsement of the forged
promissory note, what constitutes a breach of contract. See Oubre v. Entergy Operations, Inc.,
522 U.S. 422, 431, 118 S.Ct. 838, 139 L.Ed.2d 849 (1998) (Breyer, J., concurring). “For a
contract to be deemed unenforceable as illegal or contrary to public policy, its purpose or object
must be contrary to a law or policy of the state.” Alliance Metals, Inc., of Atlanta v. Hinely
I ndus., Inc., 222 F.3d 895, 899 (11th Cir.2000); see also Beamer, 411 F.Supp.2d 882.
56 It has been well settled that “an agreement that is violative of a provision of a constitution or a
valid statute, or an agreement which cannot be performed without violating such a
constitutional or statutory provision, is illegal and void. And when an agreement, express or
implied, is tainted with the vice of such illegality, no alleged right founded upon the contract
or agreement can be enforced in a court of justice. For courts have no right to ignore or set
aside a public policy established by the legislature or the people. Indeed, there rests upon the
courts the affirmative duty of refusing to sustain that which by the valid statutes of the
jurisdiction, or by the constitution, has been declared repugnant to public policy”. Local No.
234 of United Association of Journeymen_and Apprentices of Plumbing and _Pipefitting
Industry of United States and Canada v. Henley & Beckwith, Inc., 66 So. 2d 818, 821 (Fla.
1953). See also Deep South Systems, Inc. v. Heath, 843 So. 2d 378, 381 (Fla. 2d DCA 2003).

37 Notably, a copy of the Questioned-Note and a copy of the assignment of mortgage were
attached to the Amended Complaint. As it has been well settled, the attachments are made part

of the pleadings.
58. Defendants’ answer to the Plaintiff's futile assumptions are provided on Defendants’ Motion
to Dismiss Amended Complaint and in the transcript, at page 7, 6-25 and page 8, 1-6.
59. The judge’s conclusion of the Motion to Dismiss Amended Complaint are provided in the
transcript at page 20, lines 3-25 and page 21, lines 1-5:
THE COURT:: This is a two-count complaint for mortgage foreclosure and for
equitable subrogation. The Court is obliged to confine its analysis to the four
corners of the complaint and to assume the allegations in the complaint are true.
Mr. Taveras is not an attorney, but you've done a pretty good job trying to put forth
an argument in support of your motion to dismiss.
This would be analogous to the Plaintiffs having to -- let's say the Plaintiffs
want to allege that there's a car in the garage that's closed and the doors close, so
they file a complaint and they say, in that garage is a car. And in Count One, they
say that car's a Mercedes. And in Count Two, they say that car is a Toyota. And in
Count Three, they say there's no car in that garage. The counts are inconsistent, but
I have to allege -- I have to accept the allegations as true. They are being pled in
the alternative. Either there's a Mercedes or a Toyota or no car in the garage. They
can't win all of it if there's only one car in the garage.
You're asking me to open the garage and figure out what's in the garage in
order to rule on the motion to dismiss. I can't do that.
So I give you that analogy because I wanted to help you to understand the
procedural posture that we're at and the basis for my denying your motion to dismiss
the amended complaint in this case.
60. The judge’s conclusions are contradictory and in a certain degree outside the four corners of
the complaint. The judge should not base her decision assuming that “something is in the
garage”, which clearly will be getting out of the four corners of complaint. The decision should
be made based only of Plaintiffs pleadings, which includes the attachments to the Amended
Complaint and the futile pleadings of its attorneys, which self concludes that the Plaintiff is
barred from equitable subrogation for the doctrine of unclean hands, the doctrine of standing,
the doctrine of breach of contract and pursuant to the Florida Statute of Limitations, section
95.11, subsection 3(k).

CONCLUSION

Based on the foregoing legal authorities and arguments, Plaintiff's Amended Complaint
must be dismissed. The Complaint must be dismissed because (1) Plaintiff has failed to comply
with Florida Rule 1.110(b), the verification of complaint is false, or in the alternative ambiguous,
null and in violation of Florida Rule 837.021; (2) Plaintiff has failed to state a cause of action for
equitable subrogation, based on the facts that its assumptions, found in the Amended Complaint,
are barred by the doctrines of Unclean Hands, Standing, Breach of Contract, Fraud on the Court,

and by the Statute of Limitations; (3) The Amended Complaint cannot be amended and therefore
should be dismissed with prejudice.
WHEREFORE, Defendants respectfully requests the entry of an order of setting aside the
order entered by the Honorable Margaret H. Schreiber on 4/18/2019 denying Defendants’ motion
to dismiss the Amended Complaint, and entry an order dismissing with prejudice the Amended
Complaint, or on the alternative to dismiss with prejudice count No. 2 of the Amended Complaint.
Defendants pray that this motion is heard after the court has come to a final resolution of
their Motion to Recuse the Honorable Margaret H. Schreiber.

This section has been intentionally left blank.
CERTIFICATE OF SERVICE
IT IS HEREBY CERTIFIED that on May 4", 2019 a true and correct copy of the foregoing
was sent via Electronic Mail to Plaintiffs counsel, SHD Legal Group P.A.,

nswers@shdlegalgroup.com; a true and correct copy of the foregoing was sent via Email to Bank
of America N.A. c/o its counsel Patty A. Clarke pelarke@aldridgepite.com,
ServiceMail@aldridgepite.com; and Omar Perez at service@lgplaw.com, DAL@Ilgplaw.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

jaseta
liezer averas
ValiaMoutes
Valeria Taveras
Etaveras2020 ail.com valtaveras@yahoo.com
15465 SW 19 Way 15465 SW 19 Way
Miami, FL 33185 Miami, FL 33185
Phone: 305-515-4840 Phone: 305-515-4840
Exhibit “1”
U.S. BANK vs VALERIA TAVERAS, et al,

2016-CA-000916

Excerpted Motion Proceedings Before
The Honorable Margaret H. Schreiber
Kissimmee, Florida 04/18/2019

KGeR
Fe OD RETORTERS
321.285.2324
www.AllGoodReporters.com
U.S. BANK vs VALERIA TAVERAS, et al,, 2016-CA-000916
Excerpted Motion Proceedings 04/18/2019 Kissimmee, FL

IN THE CIRCUIT COURT OF THE
NINTH JUDICIAL CIRCUIT, IN AND
FOR OSCEOLA COUNTY, FLORIDA

CASE NO.: 2016-CcA-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.
10

12 ------------------
--- -- -- -- -- - - - -- - -----s

13 EXCERPTED MOTION PROCEEDINGS

14
15 Held before the Honorable Margaret H. Schreiber, Judge

16 of the Circuit Court, on Thursday, April 18, 2019, commencing

17 at 3:35 p.m., at the Osceola County Courthouse, Courtroom 5E,

18 2 Courthouse Square, Kissimmee, Florida, 34741, reported by

19 Rita G. Meyer, RDR, CRR, CRC, Stenographic Shorthand

20 Reporter and Notary Public, State of Florida at Large.

22
23
24
25

All Good Reporters, LLC 321-285-2324
www.AllGoodReporters.com
U.S. BANK vs VALERIA TAVERAS, et al,, 2016-CA-000916
Excerpted Motion Proceedings 04/18/2019 Kissimmee, FL Page 2

1 APPEARANCES:

2 GREG H. ROSENTHAL, ESQUIRE
SHD Legal Group, P.A.
3 499 Nw 70th Avenue., Ste. 309
Plantation, FL 33317-7574
4 954.564.0071
grosenthal@shdlegalgroup.com
5
For U.S. Bank National Association as Trustee,
6
SHAWN G. RADER, ESQUIRE
7 Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
8 Orlando, FL
407.843.4600
9 shawn. rader@lowndes-law.com
10 For U.S. Bank National Association as Trustee,

11 PATRICK J. HENNESSEY, JR., ESQUIRE
Greenspoon Marder
12 201 E. Pine Street, Ste. 500
Orlando, FL 32801-2718
13 407.425.6559
patrick. hennessey@gm1aw.com
14
For Christiana Trust, a division of wilmington
15 Savings,

16 OMAR PEREZ, ESQUIRE
Liebler, Gonzalez & Portuondo
17 618 E. South Street, Ste. 500
Orlando, FL 32801-2986
18 407.992.6100
op@1gplaw.com
19
For Bank of America, N.A.,
20
ELIEZER TAVERAS and
21 VALERIA TAVERAS, PRO SE
15465 sw 19 way
22 Miami, FL 33185
305.515.4840
23 etaveras2020@gmail.com

24
Also Present: Richard Faillos, Spanish Interpreter
25

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U.S. BANK vs VALERIA TAVERAS, et al,, 2016-CA-000916
Excerpted Motion Proceedings 04/18/2019 Kissimmee, FL Page 3

* % * * *

MR. TAVERAS (Through Interpreter): Thank you,
Your Honor.

Good afternoon. I'm going to state this in

Spanish because it's going to be easier for me to

present my case.
Before stating my case, I'd like to try to
establish a foundation.
Number one, the purpose of a motion to dismiss

10 jis to test the legal sufficiency of the complaint.

11 A case would be Ramos versus Mast in 789 So.2d.

12 District Court 1226.
13 MR. TAVERAS: Number two.

14 MR. TAVERAS (Through Interpreter): And the
15 second one is to survive a motion to dismiss, a

16 complaint must contain sufficient factual matter

17 accepted as true to state your claim for relief that
18 is plausible on its face. A case would be Ashcroft
19 versus Iqbal, 129 S.ct. 1937, 1949, (2009).

20 I feel that this case needs to be dismissed

21 because the amended complaint does not have

22 sufficient legal grounds. And the first one is the
23 Plaintiff's defective rule of 1.110(b), a

24 verification of complaint.

25 MR. TAVERAS: Number two.

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MR. TAVERAS (Through Interpreter): Number two
is the Plaintiff's violation of the Florida Statute

817.535, which means that the Plaintiff has unclean
hands to pursue anything.

MR. TAVERAS: Number three.

MR. TAVERAS (Through Interpreter): Number
three is a fraud in court.
MR. TAVERAS: Number four.
MR. TAVERAS (Through Interpreter): Number four

10 is the Plaintiff has failed to state a cause of

11 action.

12 MR. TAVERAS: Number five.
13 MR. TAVERAS (Through Interpreter): And the

14 number five is the amended complaint cannot be
15 amended; and therefore, should be dismissed with

16 prejudice.

17 I want to review a little bit of the history.
18 In September 6 of 2006, we purchased the property
19 which is the basis of this lawsuit. The Plaintiff

20 was not the party that loaned us the money. Bank of
21 America was the one that did.

22 In May 27 of 2014, and supposedly Bank of
23 America assigned the mortgage to Christiana Trust, a

24 division of wilmington Savings Fund Society FSB, not

25 jin its individual capacity, but as a trustee of the

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ARLP Trust 4. This was the original Plaintiff in

this case.
And on July 24, 2017, Christiana Trust

transferred the mortgage to the actual or the

current Plaintiff. And in April 27 of 2018,
Christiana Trust filed a motion to substitute party

or Plaintiff and it was granted in June 7 of 2018.
I-- let me state, Your Honor, that it's very

important to remember that to change from one

10 Plaintiff to another, this is for Rule of Civil

11 Procedure 1.260. And under this rule, the new

12 Plaintiff acquires the standing of the previous
13 Plaintiff

14 Something else. It's very important. Is that
15 in May 14 of 2018, the attorney for the Plaintiff
16 asked us for a request for production because we

17 told them that the signature from -- of Ms. Valeria
18 Taveras --

19 THE COURT: Let me interrupt you for just a

20 minute.

21 MR. TAVERAS: Yeah.

22 THE COURT: I appreciate the history of what's
23 going on. we're here on your motion to dismiss the
24 amended complaint. I need you to confine your

25 argument to why I should dismiss the amended

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complaint. The discovery really doesn't bear on
that.

MR. TAVERAS (through Interpreter): Thank you,
Your Honor.

One thing I want to add is that in the dates

that I was provided to you previously, that means

that we had provided the proof that he asked, the
attorney asked us, that this particular note had
been falsified. That's where the amended complaint

10 came from. Currently, they're asking us, according

11 to paragraph 27 of the amended complaint, it says:

12 Assuming arguendo that Valeria Taveras' signature
13 was forged on the note and/or mortgage, Plaintiff is

14 entitled by the doctrine of equitable subrogation to
15 the imposition and foreclosure of an equitable lien
16 against the subject property.” It also says,

17 "Otherwise, said Defendants will gain a windfall and

18 unjustly enriched."
19 Now, in paragraph 8 and 9, the Plaintiff has

20 stated that he has the original -- interpreter

21 interpreting --
22 MR. TAVERAS: The promissory note.
23 MR. TAVERAS (Through Interpreter): Oh, the

24 promissory note. The promissory note. And that

25 it's been signed on paragraph 11. And at the end of

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the amended complaint, Ms. Karin Ziembiec is

verifying such complaint and is saying: "Under
penalty of perjury, I declare that I have read the
foregoing and the facts alleged therein are true and

correct to the best of my knowledge and belief."

So let's assume this: They are putting a

conditional if. They're saying that if this
signature's false, that we have the right to pursue
equitable subrogation.

10 Now, if the Court allows them to continue down
11 this path, it would be a fundamental mistake because

12 that would be stating that -- that a Plaintiff that
13 has no standing could do equitable subrogation.

14 Now, if this note is false, Christiana Trust

15 did not have any standing. And if Christiana Trust
16 did not have any standing, U.S. Bank doesn't have

17 it, either. The new Plaintiff in the case does not
18 have standing.
19 Now, if the note is false, so the Plaintiff has

20 dirty hands. He can no longer pursue anything.

21 Now, if this note is false, the assignment of

22 mortgage that was done from Christiana Trust to the
23 Plaintiff is invalid, it's null, and we have no

24 obligation to comply. It has been well established

25 in many cases in the State of Florida that if

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there's something illegal in a contract, so that

contract is null and voided because of breach of
contract. So the conditional if that they have
introduced in their second case is self-sufficient,

self-conclusive that they don't have any legal right
to do so.

Now, one other thing

Case Info

Judge

ARENDAS, CHRISTINE E Track Judge’s New Case

Case No.

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Document Filed Date

November 16, 2058

Case Filing Date

May 06, 109

County

Parties

BANK OF AMERICA NA Defendant
CHRISTIANA TRUST, A DIVISION OF WILMINGTON SAVINGS Counterclaim Defendant
DIAZ, ROY A Attorney for the Plaintiff
MILSON, NICOLE Attorney for the Defendant
REUNION RESORT & CLUB OF ORLANDO MASTER ASSOCIATION INC Defendant
TAVERAS, ELIEZER Defendant
TAVERAS, VALERIA Defendant
UNKNOWN TENANT #1 Defendant
UNKNOWN TENANT #2 Defendant
U.S. BANK NATIONAL ASSOCIATION AS LEGAL TITLE TRUSTEE FOR TRUMAN 2016 SC6 TITLE TRUST Plaintiff
Adam Diaz Attorneys for Plaintiffs
Shawn Rader Attorneys for Plaintiffs
Ariel Acevedo Attorneys for Plaintiffs
Greg Rosenthal Attorney
Patrick Hennessey Attorney
Suly Espinoza Attorneys for Plaintiffs
Omar Perez Attorneys for Plaintiffs
Jason Silver Attorney
Ariel Cook Attorneys for Plaintiffs
Keith Arago Attorney
Alyssa Neufeld Attorney
Ludys Barringer Attorneys for Plaintiffs
Amanda Lundergan Attorney
Kyle Ohlenschlaeger Attorney
Brian Alvarez Attorney
Galina Boytchev Attorney
Kelvin Soto Attorney
Keith Preston Attorney
Marisol Morales Attorney
Michael Rodriguez Attorney
Traci Ruben Attorney
Maribel Diaz Attorney
Scott Gross Attorney
Shannon Charles Attorney
Matthew Glachman Attorney
Erik Silevitch Attorney
Matthew Pingeton Attorney
Tyrone Latour Attorney
Paul Burke Attorney

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