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Filing # 163670655 E-Filed 12/27/2022 11:14:45 AM
IN THE CIRCUIT COURT OF THE TWELFTH
JUDICIAL CIRCUIT IN AND FOR DESOTO
COUNTY, FLORIDA.
CIVIL DIVISION
CASE NO, 2022CA000280AXMA
THE BANK OF NEW YORK MELLON FKA THE
BANK OF NEW YORK. AS TRUSTEE FOR THE
CERTIFICATEHOLDERS OF THE CWABS, INC.,
ASSET-BACKED CERTIFICATES, SERIES 2005-
AB4,
Plaintiff,
vs.
GLORIA A. ANTHONY; MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS, INC. AS
NOMINEE FOR COUNTRYWIDE HOME LOANS,
INC.; LAKE SUZY PROPERTY OWNERS
ASSOCIATION, INC.; UNKNOWN TENANT NO. 1;
UNKNOWN TENANT NO. 2; and ALL UNKNOWN
PARTIES CLAIMING INTERESTS BY, THROUGH,
UNDER OR AGAINST A NAMED DEFENDANT TO
THIS ACTION, OR HAVING OR CLAIMING TO
HAVE ANY RIGHT, TITLE OR INTEREST IN THE
PROPERTY HEREIN DESCRIBED,
Defendant(s).
/
MOTION FOR SUMMARY FINAL JUDGMENT AND ATTORNEYS! FEES AND COSTS
Plaintiff, THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK
AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF THE CWABS, INC., ASSET-BACKED
CERTIFICATES, SERIES 2005-AB4 (hereinafter referred to as "Plaintiff") by and through its undersigned
counsel, moves this Court, pursuant to Florida Rule of Civil Procedure 1.510, to enter a Summary Final
Judgment against each of the Defendants in the above-styled action. There exists no genuine issues as to
any material fact and Plaintiff is entitled to judgment as a matter of law based on the pleadings and affidavits
filed in this action.
1 FORECLOSURE: This is an action by the holder of a mortgage, THE BANK OF NEW
YORK MELLON FKA THE BANK OF NEW YORK AS TRUSTEE FOR THE
Electronically Filed DeSoto Case # 2022CA000280AXMA 12/27/2022 11:14:45 AM
CERTIFICATEHOLDERS OF THE CWABS, INC., ASSET-BACKED CERTIFICATES, SERIES 2005-
AB4, to foreclose the mortgage on real property situated in Desoto County, Florida.
2. HOLDER OF NOTE: The Plaintiff holds the promissory note and mortgage.
3 DEFAULT: The Note is due for August 1, 2020, and all subsequent payments. This has
resulted in a default of the note and mortgage.
4 PROPERTY: The legal description of the subject property is set forth in the Lis Pendens.
5 SERVICE: All Defendants have been served with notice of this action.
6. LIEN: Plaintiff's mortgage constitutes a valid lien on the subject property and is superior
to any right, title, interest or claim of all Defendants and all persons or entities claiming by, through or
under them.
7 and incorporates into this motion the affidavit of
EVIDENCE: Plaintiff adopts
indebtedness, Plaintiff's affidavit of attorneys! fees and costs, affidavit of reasonableness of fees, the
mortgage, the promissory note. Plaintiff has attached a copy of the original note as Exhibit “A”.
8 MEMORANDUM OF LAW: The substantial matters of law upon which this motion is
based are as follows:
a. A mortgage is presumed to have been validly executed and delivered on
the date recited in the mortgage if the mortgage is proven of record and recorded according to the law.
Atlantic Land and Improvement Company v. Lee, 112 So. 549, 550 (Fla. 1927).
b Where a note secured by a mortgage is transferred without any formal
assignment of the mortgage, the mortgage in equity passes as an incident to the debt, unless there is some
plain and clear agreement to the contrary. Johns v. Gillian, 184 So. 140 (Fla. 1938). "A mere delivery of a
note and mortgage, with intention to pass the title, upon a proper consideration, will vest the equitable
interest in the person to whom it is so delivered.” Jd., at 143. "Because the lien follows the debt, there was
no requirement of attachment of a written and recorded assignment of the mortgage in order for the
appellant to maintain the foreclosure action." Chemical Residential Mortgage v. Rector, 742 So.2d. 300
(Ela. 1 DCA, 1998), rev. denied 727 So.2d 910 (1999). To foreclose upon a promissory note, the plaintiff
must be the "holder" in order to be the real party in interest. Troupe v. Redner, 652 So2d 394 (Fla 2d DCA
1995), citing Withers v. Sandlin, 36 Fla. 619, 18 So. 856 (1896); Laing v. Gainey Builders, Inc., 184 So. 2d
897 (Fla Ist DCA 1966). The "bolder", with respect to a negotiable instrument, means the person in
possession if the instrument is payable to bearer or, in the case of an instrument payable to an identified
person, if the identified person is in possession. § 671.201(20), Fla. Stat. (2002). "Bearer" means the person
in possession of an instrument, document of title, or certificated security payable to bearer or indorsed in
blank. § 671.201(5), Fla. Stat. (2002).
. In the event a formal assignment is delivered to the Plaintiff, Florida Law
has established that the “effective date” is the date of transfer of interest in the mortgage as opposed to the
date the assignment document was executed. WM Specialty Mortgage. LLC v. Salomon, 874 So2d. 680
(Fla 4" DCA 2004); Citing: Johns v Gillian, 184 So. 140, 143 (Fla 1938).
a. The interest of the owner of record in the property described herein is
inferior and subordinate to the interest of the Plaintiff, the mortgagee. Jordan v. Sayre, 3 So, 329 (Fla.
1888).
¢. The owner and holder of a valid recorded mortgage encumbering real
property has a lien superior in dignity and right to any subsequently recorded mortgage, claim or lien
attaching to the property through the mortgagors, their successors, assigns and tenants. Lee v. Slemons, 150
So. 792, 794 (Fla. 1933); Bullardv. Fender, 192 So. 167, 171 (Fla. 1939); County of Pinellas v. Clearwater
Federal Savings and Loan Association, 214 So.2d 525, 526 (Fla. 24 DCA 1968). Therefore, the lien of
Plaintiff's mortgage takes priority over the subsequently recorded claims or liens of the Defendants in this
action. United States v. First Federal Savings and Loan Association of St. Petersburg, 155 So.2d 192, 193
(Fla. 2d DCA 1963).
f. As a matter of law the entire indebtedness secured by the mortgage held
by Plaintiff is due and collectible. Van Huss v. Prudential Insurance Company of America, 165 So. 896
(Fla. 1936); Baader v. Walker, 153 So.2d 51, 54 (Fla. 2d DCA 1963).
8. As to any Defendant that is a Homeowners Association as defined
under Florida Statute §720,301, said Defendant’s interest is fully foreclosable as a matter of law. Florida
Statute §720.3085 does not prevent foreclosure of any past due assessment claims of a Defendant Home
Owners Association, as Plaintiff's rights are determined by the Homeowner’s Association’s Declaration of
Covenants. Florida Statute §720.3085, does not retroactively apply to mortgages or assessments recorded
prior to its enactment. To the contrary the §720.3085(1) specifically states that the Association's
assessments are inferior to the Plaintiff. Any application of the statute to the contrary is unconstitutional.
Sarasota County v. Andrews, et al. 573 So.2d 113 (2" DCA, 1991);Silver Blue Lake Apartments, Inc. v.
Silver Blue Lake Home Owners Association, Inc., 245 So. 2d 609, 611 (Fla 1971); Palm Point Property
Owners’ Association of Charlotte County, Inc. v. Pisarski (626 So. 2d 195 (Fla 1993); Holly Lake
Association v. Federal National Mortgage Association, 660 So. 24 266, 269 (Fla. 1995); Park Benziger &
Co., Inc. v. Southern Wine & Spirits, Inc. 391 So. 2d 681, 683 (Fla. 1980); David v, Sun Federal Savings
& Loan Ass'n, 461 So. 2d 93 (Fla 1984); Metropolitan Dade County v. Chase Federal Housing Corp., et
al. 737 So. 2d 494, 500 (Fla 1999);
h. As to Defendants against whom a default has been entered, final judgment
may be entered by the Court at any time. Rule 1.500(e) Florida Rule of Civil Procedure.
L This court must enter a summary final judgment of foreclosure where there
exists no genuine issue as to any material fact; this Court may, however, reserve jurisdiction to determine
the amount and priority of the claims. Mack Industries, Inc. v. Donald W. Nelson, Inc., 134 So.2d 821 (Fla.
2d DCA 1961).
J Where the note and mortgage so provide, a mortgagee is entitled to recover
costs, a reasonable fee for its attomeys in the prosecution of a foreclosure action, and any sums advanced
to prevent the impairment of its security. American Securities Co. v. Goldsberry, 67 So. 862, 866 (Fla.
1915).
9 ENTITLEMENT TO JUDGMENT: Plaintiff is entitled to recover its principal, interest,
late charges, costs, attorneys’ fees, and other expenses, all of which are more fully set forth in the affidavits
attached hereto.
10. NO ISSUE_OF LAW OR FACTS: The pleadings of file, together with the affidavits
attached hereto, demonstrate that there is no dispute as to any material fact. Accordingly, Plaintiff is entitled
to Summary Final Judgment as a matter of law.
WHEREFORE, the Plaintiff respectfully requests that this Court enter Summary Final Judgment
in its favor as to the total amount sought in its Complaint, and grant Plaintiff's motion for attomeys' fees
and costs and such other and further relief as this Court deems just, including the issuance of writs of
possession against any parties that may be in possession of the property.
CERTIFICATE OF SERVICE
J HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by regular
U.S. Mail, Facsimile, or electronic mail this 2 ] of Dectrseet 202210 all parties on the attached
service list. All parties for whom an e-mail address has not been designated or a mailing address is not
available are hereby notified that a copy of the served document may Obtained, on request, from the clerk
of the court or from the party serving the document.
JeToney M. oy
Florida Bar N 51
Roy Diaz, Atto ey
Florida Bar No. 767700
Diaz Anselmo & Associates, P.A.
Attorneys for Plaintiff
499 NW 70th Ave., Suite 309
Fort Lauderdale, FL 33317
Telephone: (954) 564-0071
Facsimile: (954) 564-9252
Service E-mail: answers@dallegal.com
1496-183232 /RKA
“ ae ot
ed :
=InterestOnly ADJUSTABLE RATE NOTE
Loan Number
(Six-Month LIBOR Inidex (As Published in The Wail Street Jounal) - Rate Caps)
THIS NOTE CONTAINS PROVISIONS ALLOWING FOR CHANGES IN MY INTEREST RATE AND
MY MONTHLY PAYMENT. THIS NOTE LIMITS THE AMOUNT MY ADJUSTABLE INTEREST RATE
CAN CHANGE AT ANY ONE TIME AND THE MAXIMUM: RATE E MUST PAY.
JULY 28, 2005 ORANGE CALIFORNIA
Date} [city] [State]
11600 SW COURTLY MANOR oe Nia LAKE SUZY, FLORIDA 34269
1 BORROWER'S PROMISE TO PAY
In return for a loan that I have xeceived, I promise to pay U.S. $ 436,000.00 (this amount is called
“Principal"), plus interest, fo the order of Lender. Lender is SOUTHCOAST LOANS & MORTGAGE, NC. ' A
CALIFORNIA CORPORATION
I will make all payments under this Note in the form of cash, check or.
Tunderstandthat Lender may transfer this Note, Lender or anyone who takes this Note by traisfer and who is entitled to
secéive payments under this Note is called the "Note Holder."
Bw INTEREST
Interest will be charged on unpaid principal until the full amount of Principal bas been paid. T will pay interest at a
yearly rate of 6.273 %. The interest rate [ will pay may change in accordance with Section 4 of this Note.
‘The interest rate requi ‘by this Section 2 and Section 4 of this Note is the rate I will pay both before and after any
default described in Section 7(B) of this Note.
3. PAYMENTS
(A) Time and Place of Payments
I will. make a payment on the dst day of every month, beginning on SEPTEMBER 1, 2005
Before he First Principal and Interest PaymentDue Date as described in Section 4 of this Note, my payment will byconsist. duly
of the interest due on the unpaid principal balance of this Note, ‘Thereafter, I will pay principal and interest making a
‘payment every month as provided below.
Twill make my monthly payments of principal and inlerest beginning on the Pirst Principal and Interest Payment Due
Date as describedin Section4 of this Note. 1 will make these payments every month until I have paid all of the principal. and
interest and any other charges described below that I may owe under this Note, Bach monthly payment will be applied as of its
scheduled due date, and if the payment includes both principal and interest, it will be applied to interest before Principal. Tf,
on AUGUST i, 2035 , still owe amounts under this Note, I will pay those amounts in full on that date, which
is called the "Maturity Date."
I will make my monthly payments at 625 THE CITY (DRIVE SOUTH, SUITE 303,
ORANGE, CALIFORNIA 92868
or af a different place if requiredby the Note Holder,
(®) Amount of My Initial Monthly Payments
My initial monthly payment will be in the amount of U.S. $2,279.19 before the First Principal
and
at the rate
Interest Payment Due Date thereafter it will be in an amount sufficient to spay the principal and interest
determined as described in Section 4 of this Note in substantially equal installments by the Matarity Date. The Note Holder
vill notifyme prior to the date of change in monthly payment.
(© Monthly Payment Changes
Changes in my monthly payment will reflect changes in the unpaid principal of my Joan and in the interest rate that I
must pay. The Note Holdor will determine my new interest rate and the changed amount of my monthly payment in
accordance with Section4 of this Note.
4 ADJUSTABLE INTEREST RATE AND MONTHLY PAYMENT CHANGES
(A) Change Dates
‘Phe initial fixed interest rate I will pay will change to an adjustable interest rate on the first daymonthof
AUGUST 1 2007, and the adjustable intere pay may change on that day every sixth
xate I will st
thereafter. The date on which my initial fixed interest rate changesto an adjustable interest rate, and each date on which my
adjustable interest rat change, is called a "Change Date."
Borrower Initials:
(9 BCARM Interestonty =e
FEAZTEIFU (0410) Page vol 8
~
Rames
oe
@ ® A
c
(B) The Index
Beginning with the first Change Date, my interest rate will be based on an Index. The “Index” is the average of interbank
offered rates for six month U.S, dollar-denominated deposits in the London market ("LIBOR"), as published in The Wall
Street Jounal. The most zecent Index figure available as of the date 45 days before the Change Date is called the "Current
Index."
If the Index is no longer available, the Note Holder will choose a new index that is based upon comparable information.
‘The Note Holder will give me notice of this choice.
(© Calculation of Changes
Before cach Change Date, the Note Holder will calculate my new interest rate by adding FOUR AND 623/1000
percentage points ( +623 %) to the Current Index. The Note Holder will then
round the resnlt of this addition to the nearest one-eighth of-one percentage point (0.125%). Subject to the limits stated in
Section 4(D) below, this sounded amount will be my new interest rate until the next Change Date.
‘The Note Holder will then determine the amount of the monthly payment that would be sufficient to repay the unpaid
principal that I am expected to owe at the Change Date in full on the ‘Maturity Date at my new interest rate in substantially
equal payments. The result of this calculation will be the new amount of my monthly payment.
@) Limits on Interest Rate Changes
‘The interest rate I am required to pay at the Srst Change Date will not be greater than 9.273 % or less than
6.273 %, Thereafter, my interest rate will never be increased or decreased on any single Change Date by more than
ONE AND 000/1000 ‘percentage point(s) ( 1.000 %) from the rate of interest I have been paying for the
preceding six mouths. My interest xate will never be greater than 12.273 % or less than 4.623 %.
&) Effective
Date of Changes
on each Change Date. I will pay the amount of my new monthly payment
rate will become effective
‘My new interest
beginning on the first monthly payment date after the Change Date until the amount of my monthly payment changes again.
®) Notice of Changes
Before the effective dato of any change in my interest rate and/or monthly payment, the Note Holder will detiver ox mail
to me a notice of suck change. The notice will include information required by Jaw fo be given to me and also the title and
teleph a person who will answer any question I may have regarding the notice.
sumber of one
(G) Date of First Principal and interest Payment
‘Phe date of my first payment consisting of both principal and interest on this Note (the “Birst Principal and Interest
Payment Due Date”) shall be the first monthly payment date after AUGUST 1, 2010
5 BORROWER’S RIGHT TO PREPAY ** See attached Prepayment Note Addendum.
[have the right to make payments of Principal at any time before they are due. A prepayment of all the unpaid principal
is known as a "ull prepayment.” A prepayment of only part of te unpaid principal is known as a "Partial Prepayment."no more
Hf I make a Partial Prepayment equal to one or more of my monthly payments, my due date may be advanced
than one month. If make any other Partial Prepayment, I must still make each later payment as it becomes due and in the
same amount, I znay make a Full or a Partial Prepayment at any time.
If this box is checked, no prepayment penalty will be charged on this loan.
If this box is checked, I have selected a Ioan which has a prepayment penalty. ‘The Prepaym Addendum
Penalty ent
aitached hereto and made a part hereof defines the terms of the prepayment penalty. I understand that by agreeing to pay 2
prepayment penalty T acknowledge that my interest rate and/or fees are lower than they would be without a prepayment
penalty.
6. LOAN CHARGES
Tf a Jaw, which applies to this loan and which sets maximum Joan charges, is finally interpreted so that the interestox
other Joan charges collected or to be collected in connecti with thisonJoan exceed the permitted limits, then: (@) any such loan
charge shall be reduced by the amount necessary to deduce the charge to the permitted limit; and (b) any sums already
collected ftom me that exceeded permitted limits will be refunded to me. The Note Holder may choose to make this refund by
seducing the Principal I owe under this Note or by making a direct payment {0 me. If a refund reduces Principal, the reduction
will be treated as a partial Prepayment.
7. BORROWER’S FAILURE TO PAY AS REQUIRED
(A) Late Charges for Overdue Payments
If the Note Holder has not received the fall amount of any monthly payment by the end of 15 calendar
days after the date it is due, I will pay a late charge to the Note Holder. The amouut of the charge will be 5.000 % of
my overdue payment of interest, during the period when my payment is interest only, and of principal and interest thereafter. I
will pay this late charge promptly but only once on each late payment.
(B) Default
If Ldo not pay the full amount of each monthly payment on the date it is due, I will be in default.
(© Notice of Default
‘YT am in default, the Note Holder may send me a written notice telling me that if I do uot pay the overdue amount by a
certain date, the Nate Holder may reqnire me to pay immediately the full amount of Principal that bas not been paid and all
the interest that I owe on that amount. That date mbst be at least 30 days after the‘date on which the notice is mailed to me or
delivered by other means,
(D) No Waiver By Note Holder
‘Bven if, at a time when I am in default, the Note Holder does not require me to pay immediately in full as described
above, the Note Holder will still have the right to do so if 1 am in default at a later time.
Borrower Initials:
(© BC-AAN IterestOry oF
FEAZ1BEFL (0810) Page 209 fee:
Ratioew ae
XN
ne @’ ®
4
©) Payment of Note Holder’s Costs and ‘Expenses
Jf the Note Holder has required me to pay inumediately in full es described above, the Note Holder will have the right to
be paid back by me for all of its costs and expenses in enforcing this Note to the extent not prohibited by applicable law,
‘Those expenses include, for example, reasonable attorneys’ fees,
8. GIVING OF NOTICES
‘Unless applicable lav requires a different method, any notice that mustbe given to me under this Note will be givenby
delivering it or by muiling it by first class mail to me at the Property Address above or at a different address if I give the Note
Holder a notice of my different address.
‘Unless the Note Holder requires a different method, any notice that must be given to the Note Holder under this Note
in Section 3(A) above or at a different
will be given by mailing it by first class nuil to the Note Holder at the address stated
address if I am given a notice of that different address.
OBLIGATIONS OF PERSONS UNDER THIS NOTE
If more than one person signs this Note, each person is fully and personally obligated to keep all of the promises made in
this Note, including the promise to pay the full amount owed. Any person who is a guarantor, surety or endorser of this Note
4s also obligated to do these things. Any person who takes over these obligations, including the obligations of a guarantor,
surety or endorser of this Note, is also obligated to keep all of the promises made in this Note. ‘The Note Holder may enforce
its rights under this Note against each person individually or against all of us together. This means that any one of us may be
required to pay all of the amounts owed under this Note.
10. WAIVERS
and any other person who has obligations under this Note waive the rights of Presentment and Notice of Dishonor.
“Presentment” means the right to require the Note Holder to demand payment of amounts due, "Notice of Dishonor" means
the right to require the Note Holder to give notice to other persons that argounis due have not been paid.
1. SECURED NOTE
In addition to the protections given to the Note Holder under this Note, a Mortgage, Deed of Trust, or Security Deed.
(ihe "Security Tustrument"), dated the same date as this Note, protects the Note Holder from possible losses that might result if
Ido not keep the promises that I make in this Note. That Security Iustrament describes how and under what conditions I may
‘be required to make immediate payment in fall of all amousts I owe under this Note, Some of those conditions read as
follows:
is not a
fall or any part of the Property or any Interest in the Property is sold or transferred (or if Borrower
natural person and a beneficial interest in Borrower is sold or transferred) without Lender’s prior written consent,
Lender may require immediate payment in fall of all sums secured by this Security Instrument, However, this
option shall not be exercised by Lender if such exercise is prohibited by Applicable Law.
Lender exercises the option to require immediate payment in full, Lender shall give Borrower notice of
acceleration. The notice shall provide 4 period of not Jess than 30 days from, the date the notice is given in
accordanc with Sectione 15 within which Borrower mmst pay all sums secured by this Security Instrument, If
Borrower fails to pay these sums prior to the expiration of this period, Lender may invoke any remedies permitted
by this Security Instrument without further notice ox demand on Borrower.
12, DOCUMENTARY TAX
‘The state documentary tax due on this Note has been paid on the mortgage securing this indebtedness.
‘WITNESS THE HAND(S) AND SEAL(S) OF THE NDER
trAdy
Preview
Filing # 163670655 E-Filed 12/27/2022 11:14:45 AM IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT IN AND FOR DESOTO COUNTY, FLORIDA. CIVIL DIVISION CASE NO, 2022CA000280AXMA THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK. AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF THE CWABS, INC., ASSET-BACKED CERTIFICATES, SERIES 2005- AB4, Plaintiff, vs. GLORIA A. ANTHONY; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AS NOMINEE FOR COUNTRYWIDE HOME LOANS, INC.; LAKE SUZY PROPERTY OWNERS ASSOCIATION, INC.; UNKNOWN TENANT NO. 1; UNKNOWN TENANT NO. 2; and ALL UNKNOWN PARTIES CLAIMING INTERESTS BY, THROUGH, UNDER OR AGAINST A NAMED DEFENDANT TO THIS ACTION, OR HAVING OR CLAIMING TO HAVE ANY RIGHT, TITLE OR INTEREST IN THE PROPERTY HEREIN DESCRIBED, Defendant(s). / MOTION FOR SUMMARY FINAL JUDGMENT AND ATTORNEYS! FEES AND COSTS Plaintiff, THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF THE CWABS, INC., ASSET-BACKED CERTIFICATES, SERIES 2005-AB4 (hereinafter referred to as "Plaintiff") by and through its undersigned counsel, moves this Court, pursuant to Florida Rule of Civil Procedure 1.510, to enter a Summary Final Judgment against each of the Defendants in the above-styled action. There exists no genuine issues as to any material fact and Plaintiff is entitled to judgment as a matter of law based on the pleadings and affidavits filed in this action. 1 FORECLOSURE: This is an action by the holder of a mortgage, THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK AS TRUSTEE FOR THE Electronically Filed DeSoto Case # 2022CA000280AXMA 12/27/2022 11:14:45 AM CERTIFICATEHOLDERS OF THE CWABS, INC., ASSET-BACKED CERTIFICATES, SERIES 2005- AB4, to foreclose the mortgage on real property situated in Desoto County, Florida. 2. HOLDER OF NOTE: The Plaintiff holds the promissory note and mortgage. 3 DEFAULT: The Note is due for August 1, 2020, and all subsequent payments. This has resulted in a default of the note and mortgage. 4 PROPERTY: The legal description of the subject property is set forth in the Lis Pendens. 5 SERVICE: All Defendants have been served with notice of this action. 6. LIEN: Plaintiff's mortgage constitutes a valid lien on the subject property and is superior to any right, title, interest or claim of all Defendants and all persons or entities claiming by, through or under them. 7 and incorporates into this motion the affidavit of EVIDENCE: Plaintiff adopts indebtedness, Plaintiff's affidavit of attorneys! fees and costs, affidavit of reasonableness of fees, the mortgage, the promissory note. Plaintiff has attached a copy of the original note as Exhibit “A”. 8 MEMORANDUM OF LAW: The substantial matters of law upon which this motion is based are as follows: a. A mortgage is presumed to have been validly executed and delivered on the date recited in the mortgage if the mortgage is proven of record and recorded according to the law. Atlantic Land and Improvement Company v. Lee, 112 So. 549, 550 (Fla. 1927). b Where a note secured by a mortgage is transferred without any formal assignment of the mortgage, the mortgage in equity passes as an incident to the debt, unless there is some plain and clear agreement to the contrary. Johns v. Gillian, 184 So. 140 (Fla. 1938). "A mere delivery of a note and mortgage, with intention to pass the title, upon a proper consideration, will vest the equitable interest in the person to whom it is so delivered.” Jd., at 143. "Because the lien follows the debt, there was no requirement of attachment of a written and recorded assignment of the mortgage in order for the appellant to maintain the foreclosure action." Chemical Residential Mortgage v. Rector, 742 So.2d. 300 (Ela. 1 DCA, 1998), rev. denied 727 So.2d 910 (1999). To foreclose upon a promissory note, the plaintiff must be the "holder" in order to be the real party in interest. Troupe v. Redner, 652 So2d 394 (Fla 2d DCA 1995), citing Withers v. Sandlin, 36 Fla. 619, 18 So. 856 (1896); Laing v. Gainey Builders, Inc., 184 So. 2d 897 (Fla Ist DCA 1966). The "bolder", with respect to a negotiable instrument, means the person in possession if the instrument is payable to bearer or, in the case of an instrument payable to an identified person, if the identified person is in possession. § 671.201(20), Fla. Stat. (2002). "Bearer" means the person in possession of an instrument, document of title, or certificated security payable to bearer or indorsed in blank. § 671.201(5), Fla. Stat. (2002). . In the event a formal assignment is delivered to the Plaintiff, Florida Law has established that the “effective date” is the date of transfer of interest in the mortgage as opposed to the date the assignment document was executed. WM Specialty Mortgage. LLC v. Salomon, 874 So2d. 680 (Fla 4" DCA 2004); Citing: Johns v Gillian, 184 So. 140, 143 (Fla 1938). a. The interest of the owner of record in the property described herein is inferior and subordinate to the interest of the Plaintiff, the mortgagee. Jordan v. Sayre, 3 So, 329 (Fla. 1888). ¢. The owner and holder of a valid recorded mortgage encumbering real property has a lien superior in dignity and right to any subsequently recorded mortgage, claim or lien attaching to the property through the mortgagors, their successors, assigns and tenants. Lee v. Slemons, 150 So. 792, 794 (Fla. 1933); Bullardv. Fender, 192 So. 167, 171 (Fla. 1939); County of Pinellas v. Clearwater Federal Savings and Loan Association, 214 So.2d 525, 526 (Fla. 24 DCA 1968). Therefore, the lien of Plaintiff's mortgage takes priority over the subsequently recorded claims or liens of the Defendants in this action. United States v. First Federal Savings and Loan Association of St. Petersburg, 155 So.2d 192, 193 (Fla. 2d DCA 1963). f. As a matter of law the entire indebtedness secured by the mortgage held by Plaintiff is due and collectible. Van Huss v. Prudential Insurance Company of America, 165 So. 896 (Fla. 1936); Baader v. Walker, 153 So.2d 51, 54 (Fla. 2d DCA 1963). 8. As to any Defendant that is a Homeowners Association as defined under Florida Statute §720,301, said Defendant’s interest is fully foreclosable as a matter of law. Florida Statute §720.3085 does not prevent foreclosure of any past due assessment claims of a Defendant Home Owners Association, as Plaintiff's rights are determined by the Homeowner’s Association’s Declaration of Covenants. Florida Statute §720.3085, does not retroactively apply to mortgages or assessments recorded prior to its enactment. To the contrary the §720.3085(1) specifically states that the Association's assessments are inferior to the Plaintiff. Any application of the statute to the contrary is unconstitutional. Sarasota County v. Andrews, et al. 573 So.2d 113 (2" DCA, 1991);Silver Blue Lake Apartments, Inc. v. Silver Blue Lake Home Owners Association, Inc., 245 So. 2d 609, 611 (Fla 1971); Palm Point Property Owners’ Association of Charlotte County, Inc. v. Pisarski (626 So. 2d 195 (Fla 1993); Holly Lake Association v. Federal National Mortgage Association, 660 So. 24 266, 269 (Fla. 1995); Park Benziger & Co., Inc. v. Southern Wine & Spirits, Inc. 391 So. 2d 681, 683 (Fla. 1980); David v, Sun Federal Savings & Loan Ass'n, 461 So. 2d 93 (Fla 1984); Metropolitan Dade County v. Chase Federal Housing Corp., et al. 737 So. 2d 494, 500 (Fla 1999); h. As to Defendants against whom a default has been entered, final judgment may be entered by the Court at any time. Rule 1.500(e) Florida Rule of Civil Procedure. L This court must enter a summary final judgment of foreclosure where there exists no genuine issue as to any material fact; this Court may, however, reserve jurisdiction to determine the amount and priority of the claims. Mack Industries, Inc. v. Donald W. Nelson, Inc., 134 So.2d 821 (Fla. 2d DCA 1961). J Where the note and mortgage so provide, a mortgagee is entitled to recover costs, a reasonable fee for its attomeys in the prosecution of a foreclosure action, and any sums advanced to prevent the impairment of its security. American Securities Co. v. Goldsberry, 67 So. 862, 866 (Fla. 1915). 9 ENTITLEMENT TO JUDGMENT: Plaintiff is entitled to recover its principal, interest, late charges, costs, attorneys’ fees, and other expenses, all of which are more fully set forth in the affidavits attached hereto. 10. NO ISSUE_OF LAW OR FACTS: The pleadings of file, together with the affidavits attached hereto, demonstrate that there is no dispute as to any material fact. Accordingly, Plaintiff is entitled to Summary Final Judgment as a matter of law. WHEREFORE, the Plaintiff respectfully requests that this Court enter Summary Final Judgment in its favor as to the total amount sought in its Complaint, and grant Plaintiff's motion for attomeys' fees and costs and such other and further relief as this Court deems just, including the issuance of writs of possession against any parties that may be in possession of the property. CERTIFICATE OF SERVICE J HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by regular U.S. Mail, Facsimile, or electronic mail this 2 ] of Dectrseet 202210 all parties on the attached service list. All parties for whom an e-mail address has not been designated or a mailing address is not available are hereby notified that a copy of the served document may Obtained, on request, from the clerk of the court or from the party serving the document. JeToney M. oy Florida Bar N 51 Roy Diaz, Atto ey Florida Bar No. 767700 Diaz Anselmo & Associates, P.A. Attorneys for Plaintiff 499 NW 70th Ave., Suite 309 Fort Lauderdale, FL 33317 Telephone: (954) 564-0071 Facsimile: (954) 564-9252 Service E-mail: answers@dallegal.com 1496-183232 /RKA “ ae ot ed : =InterestOnly ADJUSTABLE RATE NOTE Loan Number (Six-Month LIBOR Inidex (As Published in The Wail Street Jounal) - Rate Caps) THIS NOTE CONTAINS PROVISIONS ALLOWING FOR CHANGES IN MY INTEREST RATE AND MY MONTHLY PAYMENT. THIS NOTE LIMITS THE AMOUNT MY ADJUSTABLE INTEREST RATE CAN CHANGE AT ANY ONE TIME AND THE MAXIMUM: RATE E MUST PAY. JULY 28, 2005 ORANGE CALIFORNIA Date} [city] [State] 11600 SW COURTLY MANOR oe Nia LAKE SUZY, FLORIDA 34269 1 BORROWER'S PROMISE TO PAY In return for a loan that I have xeceived, I promise to pay U.S. $ 436,000.00 (this amount is called “Principal"), plus interest, fo the order of Lender. Lender is SOUTHCOAST LOANS & MORTGAGE, NC. ' A CALIFORNIA CORPORATION I will make all payments under this Note in the form of cash, check or. Tunderstandthat Lender may transfer this Note, Lender or anyone who takes this Note by traisfer and who is entitled to secéive payments under this Note is called the "Note Holder." Bw INTEREST Interest will be charged on unpaid principal until the full amount of Principal bas been paid. T will pay interest at a yearly rate of 6.273 %. The interest rate [ will pay may change in accordance with Section 4 of this Note. ‘The interest rate requi ‘by this Section 2 and Section 4 of this Note is the rate I will pay both before and after any default described in Section 7(B) of this Note. 3. PAYMENTS (A) Time and Place of Payments I will. make a payment on the dst day of every month, beginning on SEPTEMBER 1, 2005 Before he First Principal and Interest PaymentDue Date as described in Section 4 of this Note, my payment will byconsist. duly of the interest due on the unpaid principal balance of this Note, ‘Thereafter, I will pay principal and interest making a ‘payment every month as provided below. Twill make my monthly payments of principal and inlerest beginning on the Pirst Principal and Interest Payment Due Date as describedin Section4 of this Note. 1 will make these payments every month until I have paid all of the principal. and interest and any other charges described below that I may owe under this Note, Bach monthly payment will be applied as of its scheduled due date, and if the payment includes both principal and interest, it will be applied to interest before Principal. Tf, on AUGUST i, 2035 , still owe amounts under this Note, I will pay those amounts in full on that date, which is called the "Maturity Date." I will make my monthly payments at 625 THE CITY (DRIVE SOUTH, SUITE 303, ORANGE, CALIFORNIA 92868 or af a different place if requiredby the Note Holder, (®) Amount of My Initial Monthly Payments My initial monthly payment will be in the amount of U.S. $2,279.19 before the First Principal and at the rate Interest Payment Due Date thereafter it will be in an amount sufficient to spay the principal and interest determined as described in Section 4 of this Note in substantially equal installments by the Matarity Date. The Note Holder vill notifyme prior to the date of change in monthly payment. (© Monthly Payment Changes Changes in my monthly payment will reflect changes in the unpaid principal of my Joan and in the interest rate that I must pay. The Note Holdor will determine my new interest rate and the changed amount of my monthly payment in accordance with Section4 of this Note. 4 ADJUSTABLE INTEREST RATE AND MONTHLY PAYMENT CHANGES (A) Change Dates ‘Phe initial fixed interest rate I will pay will change to an adjustable interest rate on the first daymonthof AUGUST 1 2007, and the adjustable intere pay may change on that day every sixth xate I will st thereafter. The date on which my initial fixed interest rate changesto an adjustable interest rate, and each date on which my adjustable interest rat change, is called a "Change Date." Borrower Initials: (9 BCARM Interestonty =e FEAZTEIFU (0410) Page vol 8 ~ Rames oe @ ® A c (B) The Index Beginning with the first Change Date, my interest rate will be based on an Index. The “Index” is the average of interbank offered rates for six month U.S, dollar-denominated deposits in the London market ("LIBOR"), as published in The Wall Street Jounal. The most zecent Index figure available as of the date 45 days before the Change Date is called the "Current Index." If the Index is no longer available, the Note Holder will choose a new index that is based upon comparable information. ‘The Note Holder will give me notice of this choice. (© Calculation of Changes Before cach Change Date, the Note Holder will calculate my new interest rate by adding FOUR AND 623/1000 percentage points ( +623 %) to the Current Index. The Note Holder will then round the resnlt of this addition to the nearest one-eighth of-one percentage point (0.125%). Subject to the limits stated in Section 4(D) below, this sounded amount will be my new interest rate until the next Change Date. ‘The Note Holder will then determine the amount of the monthly payment that would be sufficient to repay the unpaid principal that I am expected to owe at the Change Date in full on the ‘Maturity Date at my new interest rate in substantially equal payments. The result of this calculation will be the new amount of my monthly payment. @) Limits on Interest Rate Changes ‘The interest rate I am required to pay at the Srst Change Date will not be greater than 9.273 % or less than 6.273 %, Thereafter, my interest rate will never be increased or decreased on any single Change Date by more than ONE AND 000/1000 ‘percentage point(s) ( 1.000 %) from the rate of interest I have been paying for the preceding six mouths. My interest xate will never be greater than 12.273 % or less than 4.623 %. &) Effective Date of Changes on each Change Date. I will pay the amount of my new monthly payment rate will become effective ‘My new interest beginning on the first monthly payment date after the Change Date until the amount of my monthly payment changes again. ®) Notice of Changes Before the effective dato of any change in my interest rate and/or monthly payment, the Note Holder will detiver ox mail to me a notice of suck change. The notice will include information required by Jaw fo be given to me and also the title and teleph a person who will answer any question I may have regarding the notice. sumber of one (G) Date of First Principal and interest Payment ‘Phe date of my first payment consisting of both principal and interest on this Note (the “Birst Principal and Interest Payment Due Date”) shall be the first monthly payment date after AUGUST 1, 2010 5 BORROWER’S RIGHT TO PREPAY ** See attached Prepayment Note Addendum. [have the right to make payments of Principal at any time before they are due. A prepayment of all the unpaid principal is known as a "ull prepayment.” A prepayment of only part of te unpaid principal is known as a "Partial Prepayment."no more Hf I make a Partial Prepayment equal to one or more of my monthly payments, my due date may be advanced than one month. If make any other Partial Prepayment, I must still make each later payment as it becomes due and in the same amount, I znay make a Full or a Partial Prepayment at any time. If this box is checked, no prepayment penalty will be charged on this loan. If this box is checked, I have selected a Ioan which has a prepayment penalty. ‘The Prepaym Addendum Penalty ent aitached hereto and made a part hereof defines the terms of the prepayment penalty. I understand that by agreeing to pay 2 prepayment penalty T acknowledge that my interest rate and/or fees are lower than they would be without a prepayment penalty. 6. LOAN CHARGES Tf a Jaw, which applies to this loan and which sets maximum Joan charges, is finally interpreted so that the interestox other Joan charges collected or to be collected in connecti with thisonJoan exceed the permitted limits, then: (@) any such loan charge shall be reduced by the amount necessary to deduce the charge to the permitted limit; and (b) any sums already collected ftom me that exceeded permitted limits will be refunded to me. The Note Holder may choose to make this refund by seducing the Principal I owe under this Note or by making a direct payment {0 me. If a refund reduces Principal, the reduction will be treated as a partial Prepayment. 7. BORROWER’S FAILURE TO PAY AS REQUIRED (A) Late Charges for Overdue Payments If the Note Holder has not received the fall amount of any monthly payment by the end of 15 calendar days after the date it is due, I will pay a late charge to the Note Holder. The amouut of the charge will be 5.000 % of my overdue payment of interest, during the period when my payment is interest only, and of principal and interest thereafter. I will pay this late charge promptly but only once on each late payment. (B) Default If Ldo not pay the full amount of each monthly payment on the date it is due, I will be in default. (© Notice of Default ‘YT am in default, the Note Holder may send me a written notice telling me that if I do uot pay the overdue amount by a certain date, the Nate Holder may reqnire me to pay immediately the full amount of Principal that bas not been paid and all the interest that I owe on that amount. That date mbst be at least 30 days after the‘date on which the notice is mailed to me or delivered by other means, (D) No Waiver By Note Holder ‘Bven if, at a time when I am in default, the Note Holder does not require me to pay immediately in full as described above, the Note Holder will still have the right to do so if 1 am in default at a later time. Borrower Initials: (© BC-AAN IterestOry oF FEAZ1BEFL (0810) Page 209 fee: Ratioew ae XN ne @’ ® 4 ©) Payment of Note Holder’s Costs and ‘Expenses Jf the Note Holder has required me to pay inumediately in full es described above, the Note Holder will have the right to be paid back by me for all of its costs and expenses in enforcing this Note to the extent not prohibited by applicable law, ‘Those expenses include, for example, reasonable attorneys’ fees, 8. GIVING OF NOTICES ‘Unless applicable lav requires a different method, any notice that mustbe given to me under this Note will be givenby delivering it or by muiling it by first class mail to me at the Property Address above or at a different address if I give the Note Holder a notice of my different address. ‘Unless the Note Holder requires a different method, any notice that must be given to the Note Holder under this Note in Section 3(A) above or at a different will be given by mailing it by first class nuil to the Note Holder at the address stated address if I am given a notice of that different address. OBLIGATIONS OF PERSONS UNDER THIS NOTE If more than one person signs this Note, each person is fully and personally obligated to keep all of the promises made in this Note, including the promise to pay the full amount owed. Any person who is a guarantor, surety or endorser of this Note 4s also obligated to do these things. Any person who takes over these obligations, including the obligations of a guarantor, surety or endorser of this Note, is also obligated to keep all of the promises made in this Note. ‘The Note Holder may enforce its rights under this Note against each person individually or against all of us together. This means that any one of us may be required to pay all of the amounts owed under this Note. 10. WAIVERS and any other person who has obligations under this Note waive the rights of Presentment and Notice of Dishonor. “Presentment” means the right to require the Note Holder to demand payment of amounts due, "Notice of Dishonor" means the right to require the Note Holder to give notice to other persons that argounis due have not been paid. 1. SECURED NOTE In addition to the protections given to the Note Holder under this Note, a Mortgage, Deed of Trust, or Security Deed. (ihe "Security Tustrument"), dated the same date as this Note, protects the Note Holder from possible losses that might result if Ido not keep the promises that I make in this Note. That Security Iustrament describes how and under what conditions I may ‘be required to make immediate payment in fall of all amousts I owe under this Note, Some of those conditions read as follows: is not a fall or any part of the Property or any Interest in the Property is sold or transferred (or if Borrower natural person and a beneficial interest in Borrower is sold or transferred) without Lender’s prior written consent, Lender may require immediate payment in fall of all sums secured by this Security Instrument, However, this option shall not be exercised by Lender if such exercise is prohibited by Applicable Law. Lender exercises the option to require immediate payment in full, Lender shall give Borrower notice of acceleration. The notice shall provide 4 period of not Jess than 30 days from, the date the notice is given in accordanc with Sectione 15 within which Borrower mmst pay all sums secured by this Security Instrument, If Borrower fails to pay these sums prior to the expiration of this period, Lender may invoke any remedies permitted by this Security Instrument without further notice ox demand on Borrower. 12, DOCUMENTARY TAX ‘The state documentary tax due on this Note has been paid on the mortgage securing this indebtedness. ‘WITNESS THE HAND(S) AND SEAL(S) OF THE NDER trAdy