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Filing # 140737673 E-Filed 12/21/2021 10:03:05 AM
IN THE COUNTY COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
Poinciana Portfolio Services, LLC., as Assignee for
Association of Poinciana Villages, Inc., a Florida not-
for-profit corporation,
Plaintiff,
v CASE NO.:
GARNER BANNISTER, UNKNOWN SPOUSE OF
GARNER BANNISTER and TENANT #1, TENANT #2,
TENANT #3, and TENANT #4, the names being fictitious
to account for parties in possession, all UNKNOWN
PARTIES claiming by and through, under, and against the
herein named individual DEFENDANT(s) who are not
known to be dead or alive, whether said unknown parties
may claim an interest as Spouses, Heirs, Devisees,
Grantees, or other Claimant, if any,
Defendant(s).
COMPLAINT TO FORECLOSE CLAIM OF LIEN
Plaintiff, Poinciana Portfolio Services, LLC., as Assignee for Association of
Poinciana Villages, Inc., (hereinafter referred to as "Association") by and through its
undersigned attorneys, hereby files this action against GARNER BANNISTER
(“Defendant(s)”) and UNKNOWN SPOUSE OF GARNER BANNISTER, and TENANT #1,
TENANT #2, TENANT #3, and TENANT #4, the names being fictitious to account for parties in
possession, if any, and in support thereof states as follows:
BACKGROUND ALLEGATIONS
This is an action for damages that may exceed the sum of $30,000.00. In any event, this
action is in equity and therefore, this Honorable Court has jurisdiction.
This action contains a claim to foreclose a Claim of Lien against the Defendant(s).
The claim to foreclose a Claim of Lien is based upon unpaid maintenance assessments
levied against the Defendant(s).
The Association is a Florida corporation, not-for-profit, and regularly conducting
business in Osceola County, Florida.
Plaintiff has standing to bring this instant action as Plaintiff is the assignee and owner of
the debt pursuant to an Assignment Agreement with the Association of Poinciana
Villages, Inc., a Homeowners Association created under the laws of the State of Florida.
The Assignment Agreement is included hereto as Exhibit “A”.
The claim to foreclose a Claim of Lien is filed in accordance with the ("Declaration") for
Poinciana Portfolio Services, LLC., as Assignee for Association of Poinciana Villages,
Inc,
Defendant(s), GARNER BANNISTER is sui juris and is the owner of real property
located in Polk County, Florida.
Defendant(s) GARNER BANNISTER, is the fee simple owner(s) of the real property
described as follows (which hereinafter shall be referred to as the “subject unit’):
LOT 10, BLOCK 1285, POINCIANA, NEIGHBORHOOD 3,
VILLAGE 2, ACCORDING TO THE PLAT THEREOF AS
RECORDED IN PLAT BOOK 3, AT PAGES 109-119, PUBLIC
RECORDS OF OSCEOLA COUNTY, FLORIDA.
The afore described real property owned by the Defendant(s) is within the area defined
by the Declaration as constituting the Association.
10. By virtue of ownership of said property, Defendant(s) are members of the Association.
11 By virtue of ownership of said property, Defendant(s) are members of the Association
and are bound by the terms of the Declaration.
12. The Defendant, UNKNOWN SPOUSE OF GARNER BANNISTER, is joined because
he/she may claim some interest in or lien upon the subject property by virtue of a possible
homestead interest. Said interest is subject, subordinate and inferior to that of the
Plaintiff.
13 Defendant(s), the unknown heirs, devisees, grantees, assignees, lienors, Creditors,
trustees, and all other parties claiming an interest by, through, under, or against
GARNER BANNISTER, UNKNOWN SPOUSE OF GARNER BANNISTER, may
claim some right, title or interest in and to the subject property by virtue of their asserted
status. Any such right, title or interest claimed by the Defendant(s) the unknown heirs,
devisees, grantees, assignees, lienors, Creditors, trustees, and all other parties claiming an
interest by, through, under, or against GARNER BANNISTER, UNKNOWN SPOUSE
OF GARNER BANNISTER (unknown parties) are inferior, subordinate and subject to
Plaintiffs Claim of Lien.
14. Defendant(s), TENANT #1, TENANT #2, TENANT #3 and TENANT #4 (UNKNOWN
PARTIES) may claim some right, title or interest in and to the subject property by virtue
of their status as TENANT #1, TENANT #2, TENANT #3 and TENANT #4
(UNKNOWN PARTIES) in possession. Any such right, title or interest claimed by the
TENANT #1, TENANT #2, TENANT #3 and TENANT #4 (UNKNOWN PARTIES) are
inferior, subordinate and subject to Association's Claim of Lien.
15 Pursuant to the Declaration, the Association is empowered to assess and collect
assessments for common expenses against individual units comprising the member
properties of the Association.
16 Pursuant to the Declaration, upon delinquency in payment of assessments to the
Association, the Association is empowered to file a claim of lien against individual units
comprising the member properties of the Association.
17 Article 9.10 of the Declaration expressly authorizes that any lien recorded as heretofore
set out shall also secure all costs of collecting the delinquent assessments, and reasonable
attorney's fees incurred by the Association in the collection of such assessments, and
charges and interest in the enforcement of the lien.
18, A true and correct copy of Article 9.10 of the Declaration is attached hereto and expressly
made a part hereof and marked as Exhibit "B".
19, All conditions precedent to filing this action have been performed or occurred.
20. All conditions precedent to Association's obligation under the Declaration have been
performed or occurred.
21 Association has retained the undersigned attorney to represent it in this action.
22. Association is required to pay its retained attorneys a reasonable fee for their services
together with all costs and expenses of collection.
COUNT 1- BREACH OF CONTRACT
23 Association realleges and incorporates paragraphs | through 22 herein.
24. Defendant(s) are in default of the terms of the Declaration.
25 Defendant(s) are in default of the terms of the Declaration by failing to timely pay in full
the maintenance assessments due to the Plaintiff.
26 Defendant(s) have not cured their breach of the provisions of the Declaration as stated
despite written demand by the Association.
27 Defendant(s) owe the Association for assessments due since January 1, 2017.
28 Defendant(s) owe the Association assessments, interest and all costs and expenses of
collection, including attorneys’ fees, pre-litigation, litigation, and post-litigation, which
continue to accrue during the pendency of this action.
29 Sums of money may have been paid by Defendants to the Association in this matter; said
sums, if any, may be held in trust by the undersigned law firm and shall be applied as a
setoff against the total sums adjudged owed by the Defendants. Said sums, which
heretofore have been insufficient to completely satisfy the outstanding claim of the
Association against Defendants, may be held in trust pending a judicial determination of
the appropriate application of said payment(s) pursuant to the governing documents and
any applicable provisions contained within Florida Statutes, as well a determination as to
the amount of interest, late charges and all costs and expenses of collection, including
attorneys’ fees to which the Association is entitled.
30. Pursuant to the Declaration and Florida Statute §720.3085 the Association is entitled to
an award of its pre-litigation, litigation, and post-litigation costs and expenses of
collection, including attorneys’ fees.
WHEREFORE, the Association requests the court enter judgment against Defendant(s)
for damages, plus pre-judgment interest and all costs and expenses of collection, including
attorneys’ fees.
COUNT Il - FORECLOSURE OF LIEN
31 Association realleges and incorporates the allegations contained in paragraphs | through
22 herein.
32. Association has made assessments for common expenses against Defendant's unit.
33 These assessments were first due and payable on or about January 1, 2017.
34, Since that date, Defendants have failed to pay the assessments in full as they became due.
35 On September 3, 2021 the Association sent written demand for payments by certified
mail, return receipt requested and regular U.S. mail, providing Defendant(s) with forty-
five (45) days’ notice of intent to record a Claim of Lien; a true and correct copy of
which is attached hereto, and by this reference, made a part hereof as Exhibit “C.”
36 As a result of the Defendants’ failure to pay assessments, Association, pursuant to the
Declaration, recorded a Claim of Lien against the subject unit.
37 A true and correct copy of the Claim of Lien is attached hereto and expressly made a part
hereof and marked as Exhibit "D".
38 Association’s Claim of Lien was recorded on October 25, 2021 and affects real property
located in Osceola County, Florida. It is recorded in the Public Records of Osceola
County, Florida, in Official Records Book 6072, beginning at Page 983.
39 Defendant(s), the unknown heirs, devisees, grantees, assignees, lienors, Creditors,
trustees, and all other parties claiming an interest by, through, under, or against
GARNER BANNISTER, UNKNOWN SPOUSE OF GARNER BANNISTER may claim
some right, title or interest in and to the subject property by virtue of their asserted status.
Any such right, title or interest claimed by the Defendant(s) the unknown heirs, devisees,
grantees, assignees, lienors, Creditors, trustees, and all other parties claiming an interest
by, through, under, or against GARNER BANNISTER, UNKNOWN SPOUSE OF
GARNER BANNISTER (unknown parties) are inferior, subordinate and subject to
Plaintiffs Claim of Lien.
40. Pursuant to the Declaration and Florida Statute §720.3085, the Claim of Lien secures the
payment of past due assessments, plus interest and all costs and expenses of collection,
including attorneys’ fees which accrue during the pendency of this action, as well as all
future assessments which continue to accrue.
41 On October 25, 2021 the Association sent Defendant(s) written demand for payments by
certified mail, return receipt requested and regular U.S. mail, providing Defendant(s)
with forty-five (45) days’ notice of intent to foreclose its Claim of Lien; a true and correct
of which is attached hereto, and by this reference, made a part hereof as Exhibit “E.”
42. Defendant(s) failed to timely remit payment in full pursuant to the demand made by the
Association.
43 Defendant(s) owe sums to the Association for assessments due since January 1, 2017.
Defendant(s) owe sums to the Association for assessments due since January 1, 2017,
plus assessments, interest and all costs and expenses of collection, including attorneys’
fees, pre-litigation, litigation, and post-litigation, which have accrued and continue to
accrue during the pendency of this action.
45 Sums of money may have been paid by Defendants to the Association in this matter; said
sums, if any, may be held in trust by the undersigned law firm and shall be applied as a
setoff against the total sums adjudged owed by the Defendants. Said sums, which
heretofore have been insufficient to completely satisfy the outstanding claim of the
Association against Defendants, may be held in trust pending a judicial determination of
the appropriate application of said payment(s) pursuant to the governing documents and
any applicable provisions contained within Florida Statutes, as well a determination as to
the amount of interest. late charges and all costs and expenses of collection, including
attorneys’ fees to which the Association is entitled.
46. Defendant(s) are delinquent in their financial obligations to the Association and the
Association is, therefore, seeking judgment foreclosing the Claim of Lien.
47 Pursuant to the Declaration and Florida Statute §720.3085, the Association seeks an
award of its pre-litigation, litigation, and post-litigation costs and expenses of collection,
including attorneys’ fees.
WHEREFORE, Plaintiff, respectfully requests that the Court award the following relief:
A Take jurisdiction of this action and of the parties hereto;
B Determine the amount of money, including interest, costs and attorney's fees
which Plaintiff is entitled to recover in this action;
Adjudge Plaintiff to have a lien upon the real property of the Defendant(s) as
described herein for the sum of money found to be due it and that said lien be
adjudged superior and paramount to the rights, title and interest of all
Defendant(s);
Adjudge that in default of the payment of any judgment amount awarded to the
Plaintiff within the time set for payment by this Court, the real property, the legal
description of which is cited herein, together with all improvements, fixtures and
equipment now or hereafter installed for use in the operation of said property, unit
and any estate or interest in any Defendant(s), in said real property, including
governmental or other permit relating to the use of said premises shall be sold as
this Court shall direct to satisfy Plaintiff's claim herein recited;
In the event of such sale, the Clerk of this Court shall after the payment of costs,
charges and expenses of this sale, credit and pay to Plaintiff the remainder of the
sums received under said sale against the unpaid balance due Plaintiff and in the
event this property shall sell for more than the total amount that may be found to
be due Plaintiff the remainder shall be paid into the Registry of the Court subject
to further Order of this Court;
That upon sale of the property and upon issuance of a Certificate of Title thereto,
the Court shall order and direct the Sheriff to place the purchaser at the sale in
actual possession of the property and remove the Defendant(s) or any other person
who may then be in actual possession;
Upon occurrence of the foreclosure sale herein requested, the estate and interest
of the Defendant(s) and all persons claiming under or against said Defendant(s)
since the filing of the Notice of Lis Pendens be forever barred and foreclosed of
all right or equity of redemption if any;
That if a deficiency shall occur by reason of the failure of the property foreclosed
to bring upon sale amounts sufficient to pay the costs of the sale together with all
sums found to be due Plaintiff. that deficiency judgment be granted against the
Defendant(s) and this Court take jurisdiction for the purpose of collecting and
enforcing said deficiency judgment against said Defendant(s);
I Grant such other and further relief as Plaintiff may be entitled to receive.
DATED this 21“ day of December, 2021.
Katzman Chandler
6535 Nova Drive, Suite 109
Fort Lauderdale, FL 33317
Phone No.: (954) 486-7774
Telefax: (954) 486-7782
BY: /s/ Jeremy Apisdorf
Jeremy Apisdorf, Esq.
Fla. Bar No.: 671231
Primary email address: Pleadings @KatzmanChandler.com
Secondary email address: JApisdorf@ KatzmanChandler.com
ASSIGNMENT AGREEMENT
This Assignment Agreement (“Agreement”) is entered into as of April 12, 2017 (the
“Effective Date”) by and between Poinciana Portfolio Services, LLC, a Florida limited liability
company (“Assignee”), and Association of Poinciana Villages, Inc., a homeowners association
created under the laws of the State of Florida (“APV” or “Assignor”) (collectively, the
“Parties”).
Recitals
A. Pursuant to a Purchase and Sale Agreement dated July 3, 2013 (the “FL00/APV
Contract”), APV sold and transferred to First 100, LLC, a Nevada limited liability company
(“First 100”), and First 100 acquired, all of APV’s interest in any and all “proceeds on past
income” (“PPY”) arising out of those certain 3,417 homeowner association liens/receivables
listed in Exhibit | to the F100/APV Contract, corresponding to the calendar year 2013 (the “2013
Receivables”). According to Mr. McCabe, as of March 20, 2017, there were 858 outstanding
2013 Receivables, as listed in Exhibit C hereto.
B. Pursuant to a first Addendum to the F100/APV Contract dated October 30, 2015,
APY sold and transferred to First 100, and First 100 acquired, all of APV’s interest in any and all
PPI arising out of those certain 1,862 homeowner association liens/receivables relating to the
2013 Receivables and corresponding to the calendar years 2014 and 2015 (the “2014-2015
Receivables,” and together with the 2013 Receivables, the “2013-2015 Receivables”).
c APV did not sell (to First 100 or any third party) APV’s interest in any and all PPI
arising out of those certain 1,862 homeowner association liens/receivables relating to the 2013
Receivables and corresponding to the calendar years 2016, 2017, and beyond (the “2016*
Receivables”). The 2016* Receivables could and would expand into new calendar years over
time.
D Pursuant to a second Addendum to the F100/APV Contract dated December 1,
2015, APV sold and transferred to First 100, and First 100 acquired, all of APV’s interest in any
and all PPI arising out of those certain 1,075 homeowner association liens/receivables listed
therein (the “ACR Receivables”) and previously handled by Associate Capital Resources, LLC
(“ACR”). Assignee and its Affiliates have disclaimed any interest in the ACR Receivables,
which are thus not directly or indirectly the subject of this Agreement.
E Pursuant to Section 7.08 of the F100/APV Contract (and attached thereto as
Exhibit 4), APV granted a limited power of attorney to First 100 (the “F100 POA”). A copy of
the F100 POA is attached hereto as Exhibit A.
F. First 100°s acquisition of those HOA Receivables was financed by Assignee’s
Affiliate, Omni Financial, LLC, a California limited liability company (“Omni”). Omni made
available a line of credit to First 100 in a maximum principal amount of Five Million Dollars
(USD $5,000,000.00) (the “Omni Loan”), as evidenced by, among other things, (i) a Loan
Agreement dated May 27, 2014, and addenda and amendments thereto, by First 100 as Borrower
and Omni as lead participating lender; (ii) a Promissory Note dated May 27, 2014 by First 100 as
obligor and Omni as payee; (2) a Security Agreement dated May 27, 2014 between First 100 as
pledgor and Omni as pledgee; (3) UCC-1 filings by Omni against First 100 in Nevada and
Florida; and (4) Deeds of Trust over various parcels granted by First 100 as trustor and Omni as
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beneficiary (collectively, including the other documents and instruments, the “Omni Loan
Documents”).
G In the Omni Loan Documents, First 100 granted to Omni a first-priority, senior
security interest in all of First 100’s personal property, including after-acquired property (and
thus encompassing all of First 100’s rights, title, and interest in (i) the F100/APV Contract and
(ii) 2013-2015 Receivables)
H After First 100 defaulted on the Omni Loan, Omni began UCC foreclosure
proceedings over First 100’s personal property by issuing a Notification of Disposition of
Collateral (of Personal Property of First 100, LLC) on January 8, 2016 and April 1, 2016, a copy
of each of which was delivered to APV.
1 First 100 filed a lawsuit against Omni and PrenPoinciana on January 15, 2016
known as. Case No. 2:16-cv-00099 (and consolidated with Case No. 2:16-cv-00109)
(collectively, the “Lawsuit”), and sought a preliminary injunction stopping the foreclosure sale.
The U.S. District Court for the District of Nevada ultimately denied that relief.
J On May 25, 2016, Omni held a UCC foreclosure sale, in which it sold all of First
100’s personal property in eight separate lots (the “UCC Sale”). As evidenced by Bills of Sale
shared with APV, Omni was the prevailing bidder in all eight sales, and as such became the legal
owner of all of First 100’s personal property (including its rights, title, and interest in (i) the
FLOO/APV Contract and (ii) 2013-2015 Receivables). On or around the date hereof, Omni
transferred all such property to Assignee (but for certain property—e.g., office equipment—
which Omni disclaimed title to by contract with First 100).
K. Omni and First 100 eventually settled the Lawsuit pursuant to a Settlement
Agreement dated January 16, 2017, the terms of which stated, among other things, that:
a) ‘as a result of the Omni UCC Sale Omni has absolute ownership and all right,
title, and interest in the 2013 Receivables and 2014-2015 Receivables and any and
all related proceeds;
(2) “Omni shall pursue collections of the 2013 Receivables, 2014-2015 Receivables
and Additional HOA Receivables through the McCabe Firm (or a similarly
qualified attorney, at Omni’s discretion);” and
G) First 100 and its Affiliates agreed to indemnify the Omni Parties with respect to
any Liabilities and/or Claims “arising out of, with respect to, or relating to any
claim by a third party with respect to the acts or omissions of the [First 100
Parties] (regardless of whether or not [one of them] is at fault), including without
limitation any Liabilities or Claims by or from...any homeowner association
(including APV).
L. The U.S. District Court Court subsequently signed and entered a Stipulation and
Order and Stipulated Judgment stating, among other things, that
Omni is, and shall be determined to be, the absolute owner of all right, title, and
interest in the 2013 Receivables, the 2014-2015 Receivables, and Additional
HOA Receivables including, without limitation, any rights or privileges
enjoyed by, or benefiting, First 100 with respect to those HOA Receivables,
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including rights or privileges under any continuing powers of attorney granted by
a third party.
(ECF 240 at 4:8-14; ECF 241 at 3:16-22).
M. Following the UCC Sale, in or around July 2016, Omni began requesting that
APV issue a power of attomey to Omni (superseding and replacing the F100 POA, and having
similar terms thereto), yet APV has refused, owing solely to its prior dealings with First 100 (and
not due to any issues involving Omni), and preferring instead to enter into this form of
Agreement.
NOW THEREFORE, based on the foregoing, and in consideration of the mutual
agreements, covenants, and conditions contained herein, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the Parties hereby
agree as follows:
Agreement
1 Recitals; Definitions.
(a) Recitals. The Recitals are true and accurate and are incorporated into this
Agreement as an integral part hereof.
(b) Definitions. The following terms have the meanings set forth in the Agreement
Sections cross-referenced below:
Term Reference
“ACR” Recital D
“ACR Receivables” Recital D
“Affiliate” Section 4(b)(2)
“Agreement” 1° Paragraph
“APV" 1 Paragraph
“Assigned Property” Section 2(a)
“Assignee” 1* Paragraph
“Assignment” Section 2(a)
“Assignment Back” Section 2(b)
“Assignor” 1* Paragraph
“Business Day” Section 6(a)
“Claims” Section 5(a)
“Effective Date” 1* Paragraph
forcement Actions” Section 2(a)(ii)
irst 100” Recital A
“F100/APV Contract” Recital A
“F100 POA” Recital E
“Indemmnitee” Section 5(d)}
“Lawsuit Recital I
“Liabilities” Section 5(a)
“Omni” Recital F
“Omni Authorization” Section 3(e)
“Omni Authorization Contingency” Section 3(e)
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“Omni Loan” Recital F
“Omni Loan Documents” Recital F
“Omni Parties” Section 4(b)(2)
“Parties” 1° Paragraph
“ppl” Recital A
“Representing Party” Section 4
“UCC Sale” Recital J
“2013 Receivables” Recital A
“2013-2015 Receivables” Recital B
“2014-2015 Receivables” Recital B
“2016* Receivables” Recital C
2. Assignment and Assumption.
(a) Assignment. To the maximum extent permitted by applicable law, and to the
extent not already owned and/or controlled by Assignee by virtue of (a) the UCC Sale by Omni
and (b) subsequent assignment from Omni to the Assignee, APV hereby absolutely, irrevocably,
and unconditionally assigns, transfers, and delivers to Assignee (the “Assignment”) all of
APV’s remaining rights, title, and interest in and to the 2013-2015 and 2016* Receivables,
including without limitation the following (whether arising pursuant to APV’s goveming
documents, Florida statutes, recorded documents, at common law, by contract, or otherwise):
Gi) the debt obligations owed by property owners to APV with respect to
2013-2015 and 2016* Receivables;
(i) all mortgages, liens, and other encumbrances in such owners’ real property;
(iii) all PPI and related proceeds arising out of or with respect to 2013-2015 and
2016* Receivables (including the right to annual maintenance assessments,
interest, penalties, fines, late charges, attorneys’ fees and costs, and similar
amounts owed with respect to the 2013-2015 and 2016" Receivables)}—but
subject to the assignment-back provision in Section 2(b);
(y) APV’s authority and power to exercise any enforcement rights, commence
and conduct enforcement actions (including judicial foreclosures), and
designate third parties (including lawyers and other professionals) to
conduct enforcement actions with respect to the 2013-2015 and 2016*
HOA Receivables (e.g., entering into settlements with obligors, collecting
payoffs, initiating lawsuits, foreclosing on HOA Receivables, and taking
title to the underlying real property) (collectively, “Enforcement
Actions”). For the sake of clarity, if Assignee or its designee forecloses on
a property or otherwise ultimately obtains title, Assignee or its designee
would take title in its own name, not in APV’s name;
(collectively, the “Assigned Property”). Assignee hereby acknowledges such Assignment and
assumes the Assigned Property. The Parties’ intention in this Section 2(a) is for APV to retain no
rights or property interests whatsoever in or to the 2013-2015 and 2016* Receivables (except as
indicated herein).
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(b) Assignment Back. With respect to any 2013-2015 Receivable for which there is a
corresponding 2016* Receivable, to the maximum extent permitted by applicable law, Assignee
hereby absolutely, irrevocably, and unconditionally assigns, transfers, and delivers back to APV
(the “Assignment Back”), with respect to the those 2016* Receivables, all of the unpaid annual
assessments and late fees of $30.00 per calendar year. APV shall have and retain the right.
passively receive such amounts with respect to the 2016* Receivables. APV shall not conduct
any Enforcement Actions of its own for those years, given that Assignee shall have the sole right
and option to conduct such Enforcement Actions (pursuant to Section 2(a)(iv)), except that APV
may send annual assessment notices required by its governing documents and Fla. Stat. § 720.
All distributions of PPI (including those unpaid annual assessments) would be allecated,
prioritized, and effected by Assignee’s counsel in accordance with the statutory waterfall in Fla.
Stat. § 720.3085(3)(b).
4
3 Post-Assignment Actions.
(a) Notifications. Within ten (10) Business Days of the Effective Date, the Parties
shall jointly notify, in writing, in a form mutually and reasonably agreed by the parties’ legal
counsel:
(i) all third parties holding PPI with respect to the 2013-2015 and/or 2016*
Receivables, including without limitation McCabe Law Group, P.A. and
Katzman Garfinkel, P.A. (if applicable).
Gi) all owners of real property subject to an outstanding 2013-2015 and/or
2016* Receivable:
in each case about the nature and material terms of the Assignment herein. Assignee may
additionally record this Assignment or an abridged version hereof.
) Receipt of PPI. If, on or after the Effective Date, APV receives any PPI with
respect to:
@ the 2013-2015 Receivables, it shall immediately (i.c., within five (5)
Business Days) remit the same to Assignee, without any setoff or
deduction of any kind: or
Gi) the 2016* Receivables, it shall immediately (i.e., within five (5) Business
Days) report all of the relevant details to Assignee and Assignee’s then-
current legal counsel, including account number, amount, payor, and so
forth. Such counsel will promptly calculate how much PPI belongs to
APV and how much belongs to Assignee (in accordance with the last
sentence in Section 2(b)), and notify APV and Assignee in writing of its
determination. Within five (5) Business Days of such notification, APV
shall remit to Assignee all of the PPI identified as Assignee’s (or belonging
to any other party, such as legal counsel) in such counsel’s notice, without
any setoff or deduction of any kind.
© Incorporation by Reference. APV hereby agrees to maintain and satisfy all of the
obligations set forth in Exhibit B in favor of Assignee.
@) Enforcement Actions. On and after the Effective Date, Assignee shall have the
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unfettered right, power, and authority to conduct Enforcement Actions with respect to the HOA
Receivables, without any obligation to consult with, obtain the consent of, or procure any further
rights from, APV; provided, however, that if so required by applicable law or contract, Assignee
shall wait a period of thirty (30) days before commencing or re-commencing the affected
Enforcement Actions. To the extent any Enforcement Action was commenced in the period
between the expiration or termination of the F100/APV Agreement and the Effective Date, APV
ratifies the same (as if commenced on or after the Effective Date).
© Further Assurances: Contingent Authorization. Each Party will promptly (1) do
any commercially reasonable act or thing and (2) execute and deliver any and all commercially
reasonable documents or instruments, which may be necessary or proper to effectuate the
provisions and intent of this Agreement, at such Party's own reasonable cost and expense.
4 Representations, Warranties, and Covenants.
(a) Mutual Representations. Warranties and Covenants. Each Party (the
“Representing Party”) represents, warrants, and covenants to the other Party as of the Effective
Date as follows:
a) Authorization; Execution; Enforceability. The Representing Party: (i) has
full power and authority to enter into this Agreement and perform its obligations hereunder: and
(if) has taken all necessary action to authorize the execution, delivery and performance of this
Agreement (and the person(s) signing on behalf of the Representing Party hereby represent and
warrant such due authorization). Upon full execution, this Agreement shall constitute a legal,
valid and binding obligation of the Representing Party, enforceable in accordance with its terms
(except as modified by insolvency laws, and subject to principles of equity).
(2) No Conflict. The execution, delivery and performance of this Agreement
will not violate or conflict with (ij) the Representing Party’s organizational or governing
documents; (ii) any provision of applicable law governing the Representing Party or the
transactions contemplated herein; (iii) any provision or term of the Representing Party’s permits,
licenses, or other governmental accreditations; (iv) any other contract or agreement to which the
Representing Party is a party; or (v) any judgment or order of any court. The Representing Party
does not need the consent or approval of any non-Party to this Agreement to execute, deliver,
and perform this Agreement, or has obtained all such consents and approvals and shared them in
writing with the other Party. The Representing Party is not a party to any pending or threatened
lawsuit, action, arbitration, proceeding, inquiry, or investigation which could reasonably be
expected to prevent or delay the consummation of the Representing Party’s obligations set forth
herein or frustrate the other Parties’ objectives herein.
GB) Legal Advice. The Representing Party has received or had the full
opportunity to receive independent legal advice from attorneys of its choice with respect to this
Agreement, and is knowingly and voluntarily entering into this Agreement, intending to be
legally bound by all of the provisions hereof.
(4) No Other Representations. The Representing Party acknowledges that (i)
no person, agent or attorney has made any promises, representations or warranties whatsoever,
express or implied, that are not contained herein, to induce the Representing Party’s execution of
this Agreement, and (ii) this instrument has not been executed in reliance on any such promise,
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2018CC-000395-0000-00 Received in Polk 01/22/2018 04:25 PM
representation, warranty or agreement not contained herein.
6) Notification. The Representing Party shall immediately (and in no event
later than 48 hours) deliver notice to the other Parties if it commits a breach of this Agreement.
(b) APV’s Representations, Warranties, and Special Covenants. APV represents,
warrants, and covenants to the Omni Parties as of the Effective Date:
qd) Title; No Encumbrances. To the extent not already owned and/or
controlled by Assignee, APV has good and marketable title to the Assigned Property as of the
Effective Date (prior to the assignment set forth herein), and the same is not subject to any lien,
charge, pledge, or other encumbrance (including any tax or judicial lien imposed by virtue of
APV being the debtor on such lien). APV knows of no defense which an underlying obligor may
have with respect to the 2013-2015 and/or 2016* Receivables; provided, however, that this
sentence does not constitute a representation as to whether such obligors have or have not filed
bankruptcy, or whether the mortgagors for the underlying properties have or have not instituted
foreclosure proceedings of their own, or whether the County has issued a tax deed. Upon
consummation of the Assignment, Assignee will have the power and authority to conduct the
Enforcement Actions and maximize the PPI derived from the 2013-2015 and 2016* Receivables.
APV has no knowledge of any Enforcement Action having been initiated against any of the 2016*
Receivables.
2) No Other Assignments. APV has not assigned, transferred, pledged, or
delegated, nor purported to assign, transfer, pledge, or delegate, any of the Assigned Property to
a third party prior to the Effective Date. APV will not purport to assign, transfer, pledge, or
delegate any of the same on or after the Effective Date. APV agrees to indemnify and save
harmless the Omni Parties from and against any and all claims brought by a purported assignee,
transferee, pledgee, or delegee, except any claims brought by First 100. In this Agreement, the
“Omni Parties” means Omni, its past, present, and future parent corporations, subsidiaries,
Affiliates (including the Assignee), predecessors, legal successors, heirs, executors and assigns,
any lenders represented by Omni or participating in the Omni Loan, and its and their
shareholders, members, principals, owners, investors, directors, managers, officers, employees,
representatives, agents, attorneys, and insurers. In this Agreement, an “Affiliate” means, for any
particular person/entity, any other person/entity controlling, controlled by or under common
control with such particular person, where “control” means the possession, directly or indirectly,
of the power to direct the management and policies of a person/entity whether through the
ownership of voting securities, by contract, or otherwise.
G) No Insolvency. APV is not insolvent and will not be rendered insolvent by
the Assignment herein. No petition in bankruptcy (voluntary or otherwise), assignment for the
benefit of creditors, or petition seeking reorganization or arrangement or other action is pending
against or contemplated by APV.
(4) Governing Documents. APV has provided Assignee with a true, correct,
and complete set of its governing documents as of the Effective Date, and will immediately
forward any amendments thereto adopted after the Effective Date for as long as any 2013-2015
or 2016” Receivable remains outstanding.
(5) Other Powers of Attorney. APV has not directly or indirectly granted any
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2018CC-000395-0000-00 Received in Polk 01/22/2018 04:25 PM
third party, including First 100, or GFY Management, LLC, nor its own legal counsel, a
continuing, surviving power of attorney, or attorney-in-fact status, substantially similar to the
F100 POA or Omni Authorization, allowing such third party to conduct Enforcement Actions in
APV’s name with respect to HOA Receivables of the type at issue here, except that ACR was
granted attorney-in-fact status. APV covenants not to grant directly or indirectly such a power of
attorney or attorney-in-fact status to any third party, including its own legal counsel, for two
years from the Effective Date of this Agreement. This representation, warranty, and covenant is a
material reason for Assignee agreeing to enter into this Assignment in lieu of taking a power of
attorney as of the Effective Date (and bringing Enforcement Actions pursuant thereto).
5 [Intentionally omitted]
6. Miscellaneous.
(a) Notices. Any notices by any Party required or desired hereunder shall be in
writing and be validly made only if (i) deposited in the United States mail, certified or registered,
postage prepaid, return receipt requested, (ii) made by Federal Express or similar courier keeping
records of deliveries and attempted deliveries, or (iii) when successfully served by facsimile or
email, if also served in accordance with (i) or (ii) above. Service by mail or courier shall be
conclusively made on the earlier of the first Business Day delivery is attempted or upon receipt.
Facsimile and email transmissions received during business hours during a Business Day shall be
deemed made on such Business Day, and received at any other time shall be deemed received on
the next Business Day. In this Agreement, a “Business Day” means a day except for a Saturday,
Sunday, or a day when commercial banks in Las Vegas, Nevada are authorized to close. Any
notice or demand shall be addressed as follows:
To an Omni Party: To APV:
Poinciana Portfolio Services, LLC Association of Poinciana Villages, Inc.
c/o Omni Financial LLC Attention: Mark Maldonado
Attention: M. Boone 401 Walnut StreetKissimmee, FL 34759
1260 41* Ave Suite O Fax: (863) 427-0659
Capitola, CA 95010 Email:
F (831) 462-1618 Mark.Maldonado@fsresidential.com
Email: martin@shermanandboone.com
with a mandatory copy to: with a mandatory copy to:
Howard & Howard Attorneys Larsen & Associates, P.L.
Attention: R. Hernquist & M. Gardberg Attention: Tom Slaten
3800 Howard Hughes Pkwy, 10" Floor
Preview
Filing # 140737673 E-Filed 12/21/2021 10:03:05 AM IN THE COUNTY COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA Poinciana Portfolio Services, LLC., as Assignee for Association of Poinciana Villages, Inc., a Florida not- for-profit corporation, Plaintiff, v CASE NO.: GARNER BANNISTER, UNKNOWN SPOUSE OF GARNER BANNISTER and TENANT #1, TENANT #2, TENANT #3, and TENANT #4, the names being fictitious to account for parties in possession, all UNKNOWN PARTIES claiming by and through, under, and against the herein named individual DEFENDANT(s) who are not known to be dead or alive, whether said unknown parties may claim an interest as Spouses, Heirs, Devisees, Grantees, or other Claimant, if any, Defendant(s). COMPLAINT TO FORECLOSE CLAIM OF LIEN Plaintiff, Poinciana Portfolio Services, LLC., as Assignee for Association of Poinciana Villages, Inc., (hereinafter referred to as "Association") by and through its undersigned attorneys, hereby files this action against GARNER BANNISTER (“Defendant(s)”) and UNKNOWN SPOUSE OF GARNER BANNISTER, and TENANT #1, TENANT #2, TENANT #3, and TENANT #4, the names being fictitious to account for parties in possession, if any, and in support thereof states as follows: BACKGROUND ALLEGATIONS This is an action for damages that may exceed the sum of $30,000.00. In any event, this action is in equity and therefore, this Honorable Court has jurisdiction. This action contains a claim to foreclose a Claim of Lien against the Defendant(s). The claim to foreclose a Claim of Lien is based upon unpaid maintenance assessments levied against the Defendant(s). The Association is a Florida corporation, not-for-profit, and regularly conducting business in Osceola County, Florida. Plaintiff has standing to bring this instant action as Plaintiff is the assignee and owner of the debt pursuant to an Assignment Agreement with the Association of Poinciana Villages, Inc., a Homeowners Association created under the laws of the State of Florida. The Assignment Agreement is included hereto as Exhibit “A”. The claim to foreclose a Claim of Lien is filed in accordance with the ("Declaration") for Poinciana Portfolio Services, LLC., as Assignee for Association of Poinciana Villages, Inc, Defendant(s), GARNER BANNISTER is sui juris and is the owner of real property located in Polk County, Florida. Defendant(s) GARNER BANNISTER, is the fee simple owner(s) of the real property described as follows (which hereinafter shall be referred to as the “subject unit’): LOT 10, BLOCK 1285, POINCIANA, NEIGHBORHOOD 3, VILLAGE 2, ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 3, AT PAGES 109-119, PUBLIC RECORDS OF OSCEOLA COUNTY, FLORIDA. The afore described real property owned by the Defendant(s) is within the area defined by the Declaration as constituting the Association. 10. By virtue of ownership of said property, Defendant(s) are members of the Association. 11 By virtue of ownership of said property, Defendant(s) are members of the Association and are bound by the terms of the Declaration. 12. The Defendant, UNKNOWN SPOUSE OF GARNER BANNISTER, is joined because he/she may claim some interest in or lien upon the subject property by virtue of a possible homestead interest. Said interest is subject, subordinate and inferior to that of the Plaintiff. 13 Defendant(s), the unknown heirs, devisees, grantees, assignees, lienors, Creditors, trustees, and all other parties claiming an interest by, through, under, or against GARNER BANNISTER, UNKNOWN SPOUSE OF GARNER BANNISTER, may claim some right, title or interest in and to the subject property by virtue of their asserted status. Any such right, title or interest claimed by the Defendant(s) the unknown heirs, devisees, grantees, assignees, lienors, Creditors, trustees, and all other parties claiming an interest by, through, under, or against GARNER BANNISTER, UNKNOWN SPOUSE OF GARNER BANNISTER (unknown parties) are inferior, subordinate and subject to Plaintiffs Claim of Lien. 14. Defendant(s), TENANT #1, TENANT #2, TENANT #3 and TENANT #4 (UNKNOWN PARTIES) may claim some right, title or interest in and to the subject property by virtue of their status as TENANT #1, TENANT #2, TENANT #3 and TENANT #4 (UNKNOWN PARTIES) in possession. Any such right, title or interest claimed by the TENANT #1, TENANT #2, TENANT #3 and TENANT #4 (UNKNOWN PARTIES) are inferior, subordinate and subject to Association's Claim of Lien. 15 Pursuant to the Declaration, the Association is empowered to assess and collect assessments for common expenses against individual units comprising the member properties of the Association. 16 Pursuant to the Declaration, upon delinquency in payment of assessments to the Association, the Association is empowered to file a claim of lien against individual units comprising the member properties of the Association. 17 Article 9.10 of the Declaration expressly authorizes that any lien recorded as heretofore set out shall also secure all costs of collecting the delinquent assessments, and reasonable attorney's fees incurred by the Association in the collection of such assessments, and charges and interest in the enforcement of the lien. 18, A true and correct copy of Article 9.10 of the Declaration is attached hereto and expressly made a part hereof and marked as Exhibit "B". 19, All conditions precedent to filing this action have been performed or occurred. 20. All conditions precedent to Association's obligation under the Declaration have been performed or occurred. 21 Association has retained the undersigned attorney to represent it in this action. 22. Association is required to pay its retained attorneys a reasonable fee for their services together with all costs and expenses of collection. COUNT 1- BREACH OF CONTRACT 23 Association realleges and incorporates paragraphs | through 22 herein. 24. Defendant(s) are in default of the terms of the Declaration. 25 Defendant(s) are in default of the terms of the Declaration by failing to timely pay in full the maintenance assessments due to the Plaintiff. 26 Defendant(s) have not cured their breach of the provisions of the Declaration as stated despite written demand by the Association. 27 Defendant(s) owe the Association for assessments due since January 1, 2017. 28 Defendant(s) owe the Association assessments, interest and all costs and expenses of collection, including attorneys’ fees, pre-litigation, litigation, and post-litigation, which continue to accrue during the pendency of this action. 29 Sums of money may have been paid by Defendants to the Association in this matter; said sums, if any, may be held in trust by the undersigned law firm and shall be applied as a setoff against the total sums adjudged owed by the Defendants. Said sums, which heretofore have been insufficient to completely satisfy the outstanding claim of the Association against Defendants, may be held in trust pending a judicial determination of the appropriate application of said payment(s) pursuant to the governing documents and any applicable provisions contained within Florida Statutes, as well a determination as to the amount of interest, late charges and all costs and expenses of collection, including attorneys’ fees to which the Association is entitled. 30. Pursuant to the Declaration and Florida Statute §720.3085 the Association is entitled to an award of its pre-litigation, litigation, and post-litigation costs and expenses of collection, including attorneys’ fees. WHEREFORE, the Association requests the court enter judgment against Defendant(s) for damages, plus pre-judgment interest and all costs and expenses of collection, including attorneys’ fees. COUNT Il - FORECLOSURE OF LIEN 31 Association realleges and incorporates the allegations contained in paragraphs | through 22 herein. 32. Association has made assessments for common expenses against Defendant's unit. 33 These assessments were first due and payable on or about January 1, 2017. 34, Since that date, Defendants have failed to pay the assessments in full as they became due. 35 On September 3, 2021 the Association sent written demand for payments by certified mail, return receipt requested and regular U.S. mail, providing Defendant(s) with forty- five (45) days’ notice of intent to record a Claim of Lien; a true and correct copy of which is attached hereto, and by this reference, made a part hereof as Exhibit “C.” 36 As a result of the Defendants’ failure to pay assessments, Association, pursuant to the Declaration, recorded a Claim of Lien against the subject unit. 37 A true and correct copy of the Claim of Lien is attached hereto and expressly made a part hereof and marked as Exhibit "D". 38 Association’s Claim of Lien was recorded on October 25, 2021 and affects real property located in Osceola County, Florida. It is recorded in the Public Records of Osceola County, Florida, in Official Records Book 6072, beginning at Page 983. 39 Defendant(s), the unknown heirs, devisees, grantees, assignees, lienors, Creditors, trustees, and all other parties claiming an interest by, through, under, or against GARNER BANNISTER, UNKNOWN SPOUSE OF GARNER BANNISTER may claim some right, title or interest in and to the subject property by virtue of their asserted status. Any such right, title or interest claimed by the Defendant(s) the unknown heirs, devisees, grantees, assignees, lienors, Creditors, trustees, and all other parties claiming an interest by, through, under, or against GARNER BANNISTER, UNKNOWN SPOUSE OF GARNER BANNISTER (unknown parties) are inferior, subordinate and subject to Plaintiffs Claim of Lien. 40. Pursuant to the Declaration and Florida Statute §720.3085, the Claim of Lien secures the payment of past due assessments, plus interest and all costs and expenses of collection, including attorneys’ fees which accrue during the pendency of this action, as well as all future assessments which continue to accrue. 41 On October 25, 2021 the Association sent Defendant(s) written demand for payments by certified mail, return receipt requested and regular U.S. mail, providing Defendant(s) with forty-five (45) days’ notice of intent to foreclose its Claim of Lien; a true and correct of which is attached hereto, and by this reference, made a part hereof as Exhibit “E.” 42. Defendant(s) failed to timely remit payment in full pursuant to the demand made by the Association. 43 Defendant(s) owe sums to the Association for assessments due since January 1, 2017. Defendant(s) owe sums to the Association for assessments due since January 1, 2017, plus assessments, interest and all costs and expenses of collection, including attorneys’ fees, pre-litigation, litigation, and post-litigation, which have accrued and continue to accrue during the pendency of this action. 45 Sums of money may have been paid by Defendants to the Association in this matter; said sums, if any, may be held in trust by the undersigned law firm and shall be applied as a setoff against the total sums adjudged owed by the Defendants. Said sums, which heretofore have been insufficient to completely satisfy the outstanding claim of the Association against Defendants, may be held in trust pending a judicial determination of the appropriate application of said payment(s) pursuant to the governing documents and any applicable provisions contained within Florida Statutes, as well a determination as to the amount of interest. late charges and all costs and expenses of collection, including attorneys’ fees to which the Association is entitled. 46. Defendant(s) are delinquent in their financial obligations to the Association and the Association is, therefore, seeking judgment foreclosing the Claim of Lien. 47 Pursuant to the Declaration and Florida Statute §720.3085, the Association seeks an award of its pre-litigation, litigation, and post-litigation costs and expenses of collection, including attorneys’ fees. WHEREFORE, Plaintiff, respectfully requests that the Court award the following relief: A Take jurisdiction of this action and of the parties hereto; B Determine the amount of money, including interest, costs and attorney's fees which Plaintiff is entitled to recover in this action; Adjudge Plaintiff to have a lien upon the real property of the Defendant(s) as described herein for the sum of money found to be due it and that said lien be adjudged superior and paramount to the rights, title and interest of all Defendant(s); Adjudge that in default of the payment of any judgment amount awarded to the Plaintiff within the time set for payment by this Court, the real property, the legal description of which is cited herein, together with all improvements, fixtures and equipment now or hereafter installed for use in the operation of said property, unit and any estate or interest in any Defendant(s), in said real property, including governmental or other permit relating to the use of said premises shall be sold as this Court shall direct to satisfy Plaintiff's claim herein recited; In the event of such sale, the Clerk of this Court shall after the payment of costs, charges and expenses of this sale, credit and pay to Plaintiff the remainder of the sums received under said sale against the unpaid balance due Plaintiff and in the event this property shall sell for more than the total amount that may be found to be due Plaintiff the remainder shall be paid into the Registry of the Court subject to further Order of this Court; That upon sale of the property and upon issuance of a Certificate of Title thereto, the Court shall order and direct the Sheriff to place the purchaser at the sale in actual possession of the property and remove the Defendant(s) or any other person who may then be in actual possession; Upon occurrence of the foreclosure sale herein requested, the estate and interest of the Defendant(s) and all persons claiming under or against said Defendant(s) since the filing of the Notice of Lis Pendens be forever barred and foreclosed of all right or equity of redemption if any; That if a deficiency shall occur by reason of the failure of the property foreclosed to bring upon sale amounts sufficient to pay the costs of the sale together with all sums found to be due Plaintiff. that deficiency judgment be granted against the Defendant(s) and this Court take jurisdiction for the purpose of collecting and enforcing said deficiency judgment against said Defendant(s); I Grant such other and further relief as Plaintiff may be entitled to receive. DATED this 21“ day of December, 2021. Katzman Chandler 6535 Nova Drive, Suite 109 Fort Lauderdale, FL 33317 Phone No.: (954) 486-7774 Telefax: (954) 486-7782 BY: /s/ Jeremy Apisdorf Jeremy Apisdorf, Esq. Fla. Bar No.: 671231 Primary email address: Pleadings @KatzmanChandler.com Secondary email address: JApisdorf@ KatzmanChandler.com ASSIGNMENT AGREEMENT This Assignment Agreement (“Agreement”) is entered into as of April 12, 2017 (the “Effective Date”) by and between Poinciana Portfolio Services, LLC, a Florida limited liability company (“Assignee”), and Association of Poinciana Villages, Inc., a homeowners association created under the laws of the State of Florida (“APV” or “Assignor”) (collectively, the “Parties”). Recitals A. Pursuant to a Purchase and Sale Agreement dated July 3, 2013 (the “FL00/APV Contract”), APV sold and transferred to First 100, LLC, a Nevada limited liability company (“First 100”), and First 100 acquired, all of APV’s interest in any and all “proceeds on past income” (“PPY”) arising out of those certain 3,417 homeowner association liens/receivables listed in Exhibit | to the F100/APV Contract, corresponding to the calendar year 2013 (the “2013 Receivables”). According to Mr. McCabe, as of March 20, 2017, there were 858 outstanding 2013 Receivables, as listed in Exhibit C hereto. B. Pursuant to a first Addendum to the F100/APV Contract dated October 30, 2015, APY sold and transferred to First 100, and First 100 acquired, all of APV’s interest in any and all PPI arising out of those certain 1,862 homeowner association liens/receivables relating to the 2013 Receivables and corresponding to the calendar years 2014 and 2015 (the “2014-2015 Receivables,” and together with the 2013 Receivables, the “2013-2015 Receivables”). c APV did not sell (to First 100 or any third party) APV’s interest in any and all PPI arising out of those certain 1,862 homeowner association liens/receivables relating to the 2013 Receivables and corresponding to the calendar years 2016, 2017, and beyond (the “2016* Receivables”). The 2016* Receivables could and would expand into new calendar years over time. D Pursuant to a second Addendum to the F100/APV Contract dated December 1, 2015, APV sold and transferred to First 100, and First 100 acquired, all of APV’s interest in any and all PPI arising out of those certain 1,075 homeowner association liens/receivables listed therein (the “ACR Receivables”) and previously handled by Associate Capital Resources, LLC (“ACR”). Assignee and its Affiliates have disclaimed any interest in the ACR Receivables, which are thus not directly or indirectly the subject of this Agreement. E Pursuant to Section 7.08 of the F100/APV Contract (and attached thereto as Exhibit 4), APV granted a limited power of attorney to First 100 (the “F100 POA”). A copy of the F100 POA is attached hereto as Exhibit A. F. First 100°s acquisition of those HOA Receivables was financed by Assignee’s Affiliate, Omni Financial, LLC, a California limited liability company (“Omni”). Omni made available a line of credit to First 100 in a maximum principal amount of Five Million Dollars (USD $5,000,000.00) (the “Omni Loan”), as evidenced by, among other things, (i) a Loan Agreement dated May 27, 2014, and addenda and amendments thereto, by First 100 as Borrower and Omni as lead participating lender; (ii) a Promissory Note dated May 27, 2014 by First 100 as obligor and Omni as payee; (2) a Security Agreement dated May 27, 2014 between First 100 as pledgor and Omni as pledgee; (3) UCC-1 filings by Omni against First 100 in Nevada and Florida; and (4) Deeds of Trust over various parcels granted by First 100 as trustor and Omni as lof ll EXHIBIT — a 2018CC-000395-0000-00 Received in Polk 01/22/2018 04:25 PM beneficiary (collectively, including the other documents and instruments, the “Omni Loan Documents”). G In the Omni Loan Documents, First 100 granted to Omni a first-priority, senior security interest in all of First 100’s personal property, including after-acquired property (and thus encompassing all of First 100’s rights, title, and interest in (i) the F100/APV Contract and (ii) 2013-2015 Receivables) H After First 100 defaulted on the Omni Loan, Omni began UCC foreclosure proceedings over First 100’s personal property by issuing a Notification of Disposition of Collateral (of Personal Property of First 100, LLC) on January 8, 2016 and April 1, 2016, a copy of each of which was delivered to APV. 1 First 100 filed a lawsuit against Omni and PrenPoinciana on January 15, 2016 known as. Case No. 2:16-cv-00099 (and consolidated with Case No. 2:16-cv-00109) (collectively, the “Lawsuit”), and sought a preliminary injunction stopping the foreclosure sale. The U.S. District Court for the District of Nevada ultimately denied that relief. J On May 25, 2016, Omni held a UCC foreclosure sale, in which it sold all of First 100’s personal property in eight separate lots (the “UCC Sale”). As evidenced by Bills of Sale shared with APV, Omni was the prevailing bidder in all eight sales, and as such became the legal owner of all of First 100’s personal property (including its rights, title, and interest in (i) the FLOO/APV Contract and (ii) 2013-2015 Receivables). On or around the date hereof, Omni transferred all such property to Assignee (but for certain property—e.g., office equipment— which Omni disclaimed title to by contract with First 100). K. Omni and First 100 eventually settled the Lawsuit pursuant to a Settlement Agreement dated January 16, 2017, the terms of which stated, among other things, that: a) ‘as a result of the Omni UCC Sale Omni has absolute ownership and all right, title, and interest in the 2013 Receivables and 2014-2015 Receivables and any and all related proceeds; (2) “Omni shall pursue collections of the 2013 Receivables, 2014-2015 Receivables and Additional HOA Receivables through the McCabe Firm (or a similarly qualified attorney, at Omni’s discretion);” and G) First 100 and its Affiliates agreed to indemnify the Omni Parties with respect to any Liabilities and/or Claims “arising out of, with respect to, or relating to any claim by a third party with respect to the acts or omissions of the [First 100 Parties] (regardless of whether or not [one of them] is at fault), including without limitation any Liabilities or Claims by or from...any homeowner association (including APV). L. The U.S. District Court Court subsequently signed and entered a Stipulation and Order and Stipulated Judgment stating, among other things, that Omni is, and shall be determined to be, the absolute owner of all right, title, and interest in the 2013 Receivables, the 2014-2015 Receivables, and Additional HOA Receivables including, without limitation, any rights or privileges enjoyed by, or benefiting, First 100 with respect to those HOA Receivables, 2of 11 2018CC-000395-0000-00 Received in Polk 01/22/2018 04:25 PM including rights or privileges under any continuing powers of attorney granted by a third party. (ECF 240 at 4:8-14; ECF 241 at 3:16-22). M. Following the UCC Sale, in or around July 2016, Omni began requesting that APV issue a power of attomey to Omni (superseding and replacing the F100 POA, and having similar terms thereto), yet APV has refused, owing solely to its prior dealings with First 100 (and not due to any issues involving Omni), and preferring instead to enter into this form of Agreement. NOW THEREFORE, based on the foregoing, and in consideration of the mutual agreements, covenants, and conditions contained herein, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties hereby agree as follows: Agreement 1 Recitals; Definitions. (a) Recitals. The Recitals are true and accurate and are incorporated into this Agreement as an integral part hereof. (b) Definitions. The following terms have the meanings set forth in the Agreement Sections cross-referenced below: Term Reference “ACR” Recital D “ACR Receivables” Recital D “Affiliate” Section 4(b)(2) “Agreement” 1° Paragraph “APV" 1 Paragraph “Assigned Property” Section 2(a) “Assignee” 1* Paragraph “Assignment” Section 2(a) “Assignment Back” Section 2(b) “Assignor” 1* Paragraph “Business Day” Section 6(a) “Claims” Section 5(a) “Effective Date” 1* Paragraph forcement Actions” Section 2(a)(ii) irst 100” Recital A “F100/APV Contract” Recital A “F100 POA” Recital E “Indemmnitee” Section 5(d)} “Lawsuit Recital I “Liabilities” Section 5(a) “Omni” Recital F “Omni Authorization” Section 3(e) “Omni Authorization Contingency” Section 3(e) 3 of Ih 2018CC-000395-0000-00 Received in Polk 01/22/2018 04:25 PM “Omni Loan” Recital F “Omni Loan Documents” Recital F “Omni Parties” Section 4(b)(2) “Parties” 1° Paragraph “ppl” Recital A “Representing Party” Section 4 “UCC Sale” Recital J “2013 Receivables” Recital A “2013-2015 Receivables” Recital B “2014-2015 Receivables” Recital B “2016* Receivables” Recital C 2. Assignment and Assumption. (a) Assignment. To the maximum extent permitted by applicable law, and to the extent not already owned and/or controlled by Assignee by virtue of (a) the UCC Sale by Omni and (b) subsequent assignment from Omni to the Assignee, APV hereby absolutely, irrevocably, and unconditionally assigns, transfers, and delivers to Assignee (the “Assignment”) all of APV’s remaining rights, title, and interest in and to the 2013-2015 and 2016* Receivables, including without limitation the following (whether arising pursuant to APV’s goveming documents, Florida statutes, recorded documents, at common law, by contract, or otherwise): Gi) the debt obligations owed by property owners to APV with respect to 2013-2015 and 2016* Receivables; (i) all mortgages, liens, and other encumbrances in such owners’ real property; (iii) all PPI and related proceeds arising out of or with respect to 2013-2015 and 2016* Receivables (including the right to annual maintenance assessments, interest, penalties, fines, late charges, attorneys’ fees and costs, and similar amounts owed with respect to the 2013-2015 and 2016" Receivables)}—but subject to the assignment-back provision in Section 2(b); (y) APV’s authority and power to exercise any enforcement rights, commence and conduct enforcement actions (including judicial foreclosures), and designate third parties (including lawyers and other professionals) to conduct enforcement actions with respect to the 2013-2015 and 2016* HOA Receivables (e.g., entering into settlements with obligors, collecting payoffs, initiating lawsuits, foreclosing on HOA Receivables, and taking title to the underlying real property) (collectively, “Enforcement Actions”). For the sake of clarity, if Assignee or its designee forecloses on a property or otherwise ultimately obtains title, Assignee or its designee would take title in its own name, not in APV’s name; (collectively, the “Assigned Property”). Assignee hereby acknowledges such Assignment and assumes the Assigned Property. The Parties’ intention in this Section 2(a) is for APV to retain no rights or property interests whatsoever in or to the 2013-2015 and 2016* Receivables (except as indicated herein). 4o0f 11 2018CC-000395-0000-00 Received in Polk 01/22/2018 04:25 PM (b) Assignment Back. With respect to any 2013-2015 Receivable for which there is a corresponding 2016* Receivable, to the maximum extent permitted by applicable law, Assignee hereby absolutely, irrevocably, and unconditionally assigns, transfers, and delivers back to APV (the “Assignment Back”), with respect to the those 2016* Receivables, all of the unpaid annual assessments and late fees of $30.00 per calendar year. APV shall have and retain the right. passively receive such amounts with respect to the 2016* Receivables. APV shall not conduct any Enforcement Actions of its own for those years, given that Assignee shall have the sole right and option to conduct such Enforcement Actions (pursuant to Section 2(a)(iv)), except that APV may send annual assessment notices required by its governing documents and Fla. Stat. § 720. All distributions of PPI (including those unpaid annual assessments) would be allecated, prioritized, and effected by Assignee’s counsel in accordance with the statutory waterfall in Fla. Stat. § 720.3085(3)(b). 4 3 Post-Assignment Actions. (a) Notifications. Within ten (10) Business Days of the Effective Date, the Parties shall jointly notify, in writing, in a form mutually and reasonably agreed by the parties’ legal counsel: (i) all third parties holding PPI with respect to the 2013-2015 and/or 2016* Receivables, including without limitation McCabe Law Group, P.A. and Katzman Garfinkel, P.A. (if applicable). Gi) all owners of real property subject to an outstanding 2013-2015 and/or 2016* Receivable: in each case about the nature and material terms of the Assignment herein. Assignee may additionally record this Assignment or an abridged version hereof. ) Receipt of PPI. If, on or after the Effective Date, APV receives any PPI with respect to: @ the 2013-2015 Receivables, it shall immediately (i.c., within five (5) Business Days) remit the same to Assignee, without any setoff or deduction of any kind: or Gi) the 2016* Receivables, it shall immediately (i.e., within five (5) Business Days) report all of the relevant details to Assignee and Assignee’s then- current legal counsel, including account number, amount, payor, and so forth. Such counsel will promptly calculate how much PPI belongs to APV and how much belongs to Assignee (in accordance with the last sentence in Section 2(b)), and notify APV and Assignee in writing of its determination. Within five (5) Business Days of such notification, APV shall remit to Assignee all of the PPI identified as Assignee’s (or belonging to any other party, such as legal counsel) in such counsel’s notice, without any setoff or deduction of any kind. © Incorporation by Reference. APV hereby agrees to maintain and satisfy all of the obligations set forth in Exhibit B in favor of Assignee. @) Enforcement Actions. On and after the Effective Date, Assignee shall have the Sof 11 2018CC-000395-0000-00 Received in Polk 01/22/2018 04:25 PM unfettered right, power, and authority to conduct Enforcement Actions with respect to the HOA Receivables, without any obligation to consult with, obtain the consent of, or procure any further rights from, APV; provided, however, that if so required by applicable law or contract, Assignee shall wait a period of thirty (30) days before commencing or re-commencing the affected Enforcement Actions. To the extent any Enforcement Action was commenced in the period between the expiration or termination of the F100/APV Agreement and the Effective Date, APV ratifies the same (as if commenced on or after the Effective Date). © Further Assurances: Contingent Authorization. Each Party will promptly (1) do any commercially reasonable act or thing and (2) execute and deliver any and all commercially reasonable documents or instruments, which may be necessary or proper to effectuate the provisions and intent of this Agreement, at such Party's own reasonable cost and expense. 4 Representations, Warranties, and Covenants. (a) Mutual Representations. Warranties and Covenants. Each Party (the “Representing Party”) represents, warrants, and covenants to the other Party as of the Effective Date as follows: a) Authorization; Execution; Enforceability. The Representing Party: (i) has full power and authority to enter into this Agreement and perform its obligations hereunder: and (if) has taken all necessary action to authorize the execution, delivery and performance of this Agreement (and the person(s) signing on behalf of the Representing Party hereby represent and warrant such due authorization). Upon full execution, this Agreement shall constitute a legal, valid and binding obligation of the Representing Party, enforceable in accordance with its terms (except as modified by insolvency laws, and subject to principles of equity). (2) No Conflict. The execution, delivery and performance of this Agreement will not violate or conflict with (ij) the Representing Party’s organizational or governing documents; (ii) any provision of applicable law governing the Representing Party or the transactions contemplated herein; (iii) any provision or term of the Representing Party’s permits, licenses, or other governmental accreditations; (iv) any other contract or agreement to which the Representing Party is a party; or (v) any judgment or order of any court. The Representing Party does not need the consent or approval of any non-Party to this Agreement to execute, deliver, and perform this Agreement, or has obtained all such consents and approvals and shared them in writing with the other Party. The Representing Party is not a party to any pending or threatened lawsuit, action, arbitration, proceeding, inquiry, or investigation which could reasonably be expected to prevent or delay the consummation of the Representing Party’s obligations set forth herein or frustrate the other Parties’ objectives herein. GB) Legal Advice. The Representing Party has received or had the full opportunity to receive independent legal advice from attorneys of its choice with respect to this Agreement, and is knowingly and voluntarily entering into this Agreement, intending to be legally bound by all of the provisions hereof. (4) No Other Representations. The Representing Party acknowledges that (i) no person, agent or attorney has made any promises, representations or warranties whatsoever, express or implied, that are not contained herein, to induce the Representing Party’s execution of this Agreement, and (ii) this instrument has not been executed in reliance on any such promise, 6of IL 2018CC-000395-0000-00 Received in Polk 01/22/2018 04:25 PM representation, warranty or agreement not contained herein. 6) Notification. The Representing Party shall immediately (and in no event later than 48 hours) deliver notice to the other Parties if it commits a breach of this Agreement. (b) APV’s Representations, Warranties, and Special Covenants. APV represents, warrants, and covenants to the Omni Parties as of the Effective Date: qd) Title; No Encumbrances. To the extent not already owned and/or controlled by Assignee, APV has good and marketable title to the Assigned Property as of the Effective Date (prior to the assignment set forth herein), and the same is not subject to any lien, charge, pledge, or other encumbrance (including any tax or judicial lien imposed by virtue of APV being the debtor on such lien). APV knows of no defense which an underlying obligor may have with respect to the 2013-2015 and/or 2016* Receivables; provided, however, that this sentence does not constitute a representation as to whether such obligors have or have not filed bankruptcy, or whether the mortgagors for the underlying properties have or have not instituted foreclosure proceedings of their own, or whether the County has issued a tax deed. Upon consummation of the Assignment, Assignee will have the power and authority to conduct the Enforcement Actions and maximize the PPI derived from the 2013-2015 and 2016* Receivables. APV has no knowledge of any Enforcement Action having been initiated against any of the 2016* Receivables. 2) No Other Assignments. APV has not assigned, transferred, pledged, or delegated, nor purported to assign, transfer, pledge, or delegate, any of the Assigned Property to a third party prior to the Effective Date. APV will not purport to assign, transfer, pledge, or delegate any of the same on or after the Effective Date. APV agrees to indemnify and save harmless the Omni Parties from and against any and all claims brought by a purported assignee, transferee, pledgee, or delegee, except any claims brought by First 100. In this Agreement, the “Omni Parties” means Omni, its past, present, and future parent corporations, subsidiaries, Affiliates (including the Assignee), predecessors, legal successors, heirs, executors and assigns, any lenders represented by Omni or participating in the Omni Loan, and its and their shareholders, members, principals, owners, investors, directors, managers, officers, employees, representatives, agents, attorneys, and insurers. In this Agreement, an “Affiliate” means, for any particular person/entity, any other person/entity controlling, controlled by or under common control with such particular person, where “control” means the possession, directly or indirectly, of the power to direct the management and policies of a person/entity whether through the ownership of voting securities, by contract, or otherwise. G) No Insolvency. APV is not insolvent and will not be rendered insolvent by the Assignment herein. No petition in bankruptcy (voluntary or otherwise), assignment for the benefit of creditors, or petition seeking reorganization or arrangement or other action is pending against or contemplated by APV. (4) Governing Documents. APV has provided Assignee with a true, correct, and complete set of its governing documents as of the Effective Date, and will immediately forward any amendments thereto adopted after the Effective Date for as long as any 2013-2015 or 2016” Receivable remains outstanding. (5) Other Powers of Attorney. APV has not directly or indirectly granted any Tof ll 2018CC-000395-0000-00 Received in Polk 01/22/2018 04:25 PM third party, including First 100, or GFY Management, LLC, nor its own legal counsel, a continuing, surviving power of attorney, or attorney-in-fact status, substantially similar to the F100 POA or Omni Authorization, allowing such third party to conduct Enforcement Actions in APV’s name with respect to HOA Receivables of the type at issue here, except that ACR was granted attorney-in-fact status. APV covenants not to grant directly or indirectly such a power of attorney or attorney-in-fact status to any third party, including its own legal counsel, for two years from the Effective Date of this Agreement. This representation, warranty, and covenant is a material reason for Assignee agreeing to enter into this Assignment in lieu of taking a power of attorney as of the Effective Date (and bringing Enforcement Actions pursuant thereto). 5 [Intentionally omitted] 6. Miscellaneous. (a) Notices. Any notices by any Party required or desired hereunder shall be in writing and be validly made only if (i) deposited in the United States mail, certified or registered, postage prepaid, return receipt requested, (ii) made by Federal Express or similar courier keeping records of deliveries and attempted deliveries, or (iii) when successfully served by facsimile or email, if also served in accordance with (i) or (ii) above. Service by mail or courier shall be conclusively made on the earlier of the first Business Day delivery is attempted or upon receipt. Facsimile and email transmissions received during business hours during a Business Day shall be deemed made on such Business Day, and received at any other time shall be deemed received on the next Business Day. In this Agreement, a “Business Day” means a day except for a Saturday, Sunday, or a day when commercial banks in Las Vegas, Nevada are authorized to close. Any notice or demand shall be addressed as follows: To an Omni Party: To APV: Poinciana Portfolio Services, LLC Association of Poinciana Villages, Inc. c/o Omni Financial LLC Attention: Mark Maldonado Attention: M. Boone 401 Walnut StreetKissimmee, FL 34759 1260 41* Ave Suite O Fax: (863) 427-0659 Capitola, CA 95010 Email: F (831) 462-1618 Mark.Maldonado@fsresidential.com Email: martin@shermanandboone.com with a mandatory copy to: with a mandatory copy to: Howard & Howard Attorneys Larsen & Associates, P.L. Attention: R. Hernquist & M. Gardberg Attention: Tom Slaten 3800 Howard Hughes Pkwy, 10" Floor