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‘Filing # 31055263 E-Filed 08/19/2015 01:44:32 PM
IN THE CIRCUIT COURT OF THE JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
THE BANK OF NEW YORK MELLON CASE NO.: 2009 CA 006462 MF
TRUST COMPANY, NATIONAL
ASSOCIATION FKA THE BANK OF NEW
YORK TRUST COMPANY, N.A. AS
SUCCESSOR TO JPMORGAN CHASE
BANK, N.A., AS TRUSTEE FOR,
RESIDENTIAL ASSET MORTGAGE
PRODUCTS, INC., MORTGAGE ASSET-
BACKED PASS-THROUGH
CERTIFICATES SERIES 2005-RZ3,
Plaintiff,
VS,
ERIC SANTIAGO; et al.,
i] Defendant(s).
A /
PLAINTIFF'S MOTION TO ABATE/STAY FORECLOSURE ACTION AND
STRIKE ORDER SCHEDULING NON-JURY TRIAL
& MEMORANDUM OF LAW IN SUPPORT
COMES NOW, the Plaintiff, THE BANK OF NEW YORK MELLON TRUST
COMPANY, NATIONAL ASSOCIATION FKA THE BANK OF NEW YORK TRUST
COMPANY, NA. AS SUCCESSOR TO JPMORGAN CHASE BANK, N.A., AS TRUSTEE
FOR RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC., MORTGAGE ASSET-
BACKED PASS-THROUGH CERTIFICATES SERIES 2005-RZ3,
and files its Motion to
(hereinafter referred to as “Plaintiff, by and through its undersigned counsel,
Abate or Stay Foreclosure Action & Request to Strike Order setting a Non-Jury Trial scheduled for
August 20, 2015 and in support, states the following:
1 Plaintiff filed the above-styled foreclosure action on or about 6/9/2009.
2 Defendants have been approved for a Non-HAMP Modification Plan (MAPVD).
3 Defendants’ down payment for this modification is due on September 18, 2015.
1221-9058B
2009 CA 006462 MF
Effective January 10, 2014, the Consumer Financial Protection Bureau promulgated
regulations revising the Real Estate Settlement Procedures Act to, in pertinent part,
prohibit a Mortgage Servicer from proceeding with a foreclosure action once a borrower
has submitted a fully completed Loss Mitigation Application under specific
circumstances,
As a result of these new federal regulations, Plaintiff requests that the subject action
be abated and/or stayed and that the Order scheduling the matter for trial be stricken
until such time as Plaintiff is able to comply with the federally mandated
requirements of 12 CFR §1024.41,
MEMORANDUM OF LAW
§1024.41 entitled “Loss Mitigation Procedures” of the Real Estate Settlement Procedures Act, 12
U.S.C, 2601, instituted by the Consumer Financial Protection Bureau (CrP) specifically states the
following in section (g),
Prohibition on forectosure sale, If a borrower submits a complete loss
mitigation application after a servicer has made the first notice or
filing required by applicable law for any judicial or non-judicial
foreclosure process but more than 37 days before a foreclosure sale, a
servicer shall not move for foreclosure judgment or order of sale, or
conduct a foreclosure sale, unless:
(L) The servicer has sent the borrower a notice pursuant to paragraph
(DAY of this section that the borrower is not eligible for any loss
mitigation option and the appeal process in 50 paragraph (h) of this
section is not applicable, the borrower has not requested an appeal
within the applicable time period for requesting an appeal, or the
borrower's appeal has been denied;
(2) The borrower rejects all loss mitigation options offered by the
servicer; or
(3) The borrower fails to perform under an agreement on a loss
mitigation option. .
Pursuant to §1024,41, the prohibition on a servicer moving for judgment or order of sale
includes making a dispositive motion for foreclosure judgment, such as a motion for default
judgment, a motion for judgment on the pleadings, motions for summary judgment or a notice of
readiness for trial which may directly result in a judgment of foreclosure or order of sale.
1221-9058B
2009 CA 006462 MF
However, if a servicer has made any of the aforementioned motions prior to receiving a complete
loss mitigation application, it must take reasonable steps to avoid a ruling on such motion or
issuance of such order prior to completing the procedures required by § 1024.41
6 It is respectfully submitted that no unfair prejudice to the parties will occur in the event
that this Motion is granted.
This Motion is made not for purposes of delay, but in a good faith effort to comply with
the federal regulations of 12 CFR §1024.41
WHEREFORE, Plaintiff, THE BANK OF NEW YORK MELLON TRUST
COMPANY, NATIONAL ASSOCIATION FKA THE BANK OF NEW YORK TRUST
COMPANY, N.A. AS SUCCESSOR TO JPMORGAN CHASE BANK, N.A., AS TRUSTEE,
FOR RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC., MORTGAGE ASSET-
BACKED PASS-THROUGH CERTIFICATES SERIES 2005-RZ3, respectfully requests that
this Honorable Court grant Plaintiff's Motion to Abate or Stay the above-styled foreclosure
action and striking the Order scheduling the matter for trial on August 20, 2015
CERTIFICATE OF SERVICE
THEREBY CERTIFY that a true and correct copy of the foregoing was provided via E-
Mail or Regular U.S, Mail to the parties listed on the service list on this 19 He day of
AAGUST 2018
ALDRIDGE | PITE, LLP
Attorney for Plaintiff
1615 South Congress Avenue
Suite 200
Delray Beach, FL 33445
pephene: (561) 39276391
weak
Susana Lehman
FBN: 15449
Primary E-Mail
ServiceMail@aldridgepite.com
1221-9058B
2009 CA 006462 MF
Service List:
By U.S. Maik:
Unknown Spouse of Eric Santiago N/K/A Larna Santiago
£0151 Chorlston Circle
Orlando, FL 32832
Celebration Non Residential Owners Association, Inc
C/O Larsen & Associates, P.A., Registered Agent
300 S, Orange Ave, Ste #1200
Orlando, FL 32801
Luis A. Gonzalez.
708 Mulberry Avenue
Kissimmee, Fl 34747
Santiago Gomez
708 Mulberry Avenue
Kissimmee, FL 34747
John Doe N/K/A Luis Gonzalez
708 Mulberry Avenue
Kissimmee, FL 34747
Jane Doe N/K/A Gloria Gonzalez
708 Mulberry Avenue
Kissimmee, FL 34747
i By E-Mail:
Matthew D. Weidner, Esq.
Attorney for Eric- Santiago
250 Mirror Lake Drive North
St. Petersburg, FL 33701
Servic mattweidnerlaw.com
Paul T. Hinckley, Esq.
Taylor & Carls,-P.A.
Attomey for Celebration Residential Owner's Association, Inc, a
150.N. Westmonte Drive
Altamonte Springs, FL 32714
hinckte: bple; (com
1221-9058B
2009 CA 006462 MF
Preview
‘Filing # 31055263 E-Filed 08/19/2015 01:44:32 PM IN THE CIRCUIT COURT OF THE JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA THE BANK OF NEW YORK MELLON CASE NO.: 2009 CA 006462 MF TRUST COMPANY, NATIONAL ASSOCIATION FKA THE BANK OF NEW YORK TRUST COMPANY, N.A. AS SUCCESSOR TO JPMORGAN CHASE BANK, N.A., AS TRUSTEE FOR, RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC., MORTGAGE ASSET- BACKED PASS-THROUGH CERTIFICATES SERIES 2005-RZ3, Plaintiff, VS, ERIC SANTIAGO; et al., i] Defendant(s). A / PLAINTIFF'S MOTION TO ABATE/STAY FORECLOSURE ACTION AND STRIKE ORDER SCHEDULING NON-JURY TRIAL & MEMORANDUM OF LAW IN SUPPORT COMES NOW, the Plaintiff, THE BANK OF NEW YORK MELLON TRUST COMPANY, NATIONAL ASSOCIATION FKA THE BANK OF NEW YORK TRUST COMPANY, NA. AS SUCCESSOR TO JPMORGAN CHASE BANK, N.A., AS TRUSTEE FOR RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC., MORTGAGE ASSET- BACKED PASS-THROUGH CERTIFICATES SERIES 2005-RZ3, and files its Motion to (hereinafter referred to as “Plaintiff, by and through its undersigned counsel, Abate or Stay Foreclosure Action & Request to Strike Order setting a Non-Jury Trial scheduled for August 20, 2015 and in support, states the following: 1 Plaintiff filed the above-styled foreclosure action on or about 6/9/2009. 2 Defendants have been approved for a Non-HAMP Modification Plan (MAPVD). 3 Defendants’ down payment for this modification is due on September 18, 2015. 1221-9058B 2009 CA 006462 MF Effective January 10, 2014, the Consumer Financial Protection Bureau promulgated regulations revising the Real Estate Settlement Procedures Act to, in pertinent part, prohibit a Mortgage Servicer from proceeding with a foreclosure action once a borrower has submitted a fully completed Loss Mitigation Application under specific circumstances, As a result of these new federal regulations, Plaintiff requests that the subject action be abated and/or stayed and that the Order scheduling the matter for trial be stricken until such time as Plaintiff is able to comply with the federally mandated requirements of 12 CFR §1024.41, MEMORANDUM OF LAW §1024.41 entitled “Loss Mitigation Procedures” of the Real Estate Settlement Procedures Act, 12 U.S.C, 2601, instituted by the Consumer Financial Protection Bureau (CrP) specifically states the following in section (g), Prohibition on forectosure sale, If a borrower submits a complete loss mitigation application after a servicer has made the first notice or filing required by applicable law for any judicial or non-judicial foreclosure process but more than 37 days before a foreclosure sale, a servicer shall not move for foreclosure judgment or order of sale, or conduct a foreclosure sale, unless: (L) The servicer has sent the borrower a notice pursuant to paragraph (DAY of this section that the borrower is not eligible for any loss mitigation option and the appeal process in 50 paragraph (h) of this section is not applicable, the borrower has not requested an appeal within the applicable time period for requesting an appeal, or the borrower's appeal has been denied; (2) The borrower rejects all loss mitigation options offered by the servicer; or (3) The borrower fails to perform under an agreement on a loss mitigation option. . Pursuant to §1024,41, the prohibition on a servicer moving for judgment or order of sale includes making a dispositive motion for foreclosure judgment, such as a motion for default judgment, a motion for judgment on the pleadings, motions for summary judgment or a notice of readiness for trial which may directly result in a judgment of foreclosure or order of sale. 1221-9058B 2009 CA 006462 MF However, if a servicer has made any of the aforementioned motions prior to receiving a complete loss mitigation application, it must take reasonable steps to avoid a ruling on such motion or issuance of such order prior to completing the procedures required by § 1024.41 6 It is respectfully submitted that no unfair prejudice to the parties will occur in the event that this Motion is granted. This Motion is made not for purposes of delay, but in a good faith effort to comply with the federal regulations of 12 CFR §1024.41 WHEREFORE, Plaintiff, THE BANK OF NEW YORK MELLON TRUST COMPANY, NATIONAL ASSOCIATION FKA THE BANK OF NEW YORK TRUST COMPANY, N.A. AS SUCCESSOR TO JPMORGAN CHASE BANK, N.A., AS TRUSTEE, FOR RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC., MORTGAGE ASSET- BACKED PASS-THROUGH CERTIFICATES SERIES 2005-RZ3, respectfully requests that this Honorable Court grant Plaintiff's Motion to Abate or Stay the above-styled foreclosure action and striking the Order scheduling the matter for trial on August 20, 2015 CERTIFICATE OF SERVICE THEREBY CERTIFY that a true and correct copy of the foregoing was provided via E- Mail or Regular U.S, Mail to the parties listed on the service list on this 19 He day of AAGUST 2018 ALDRIDGE | PITE, LLP Attorney for Plaintiff 1615 South Congress Avenue Suite 200 Delray Beach, FL 33445 pephene: (561) 39276391 weak Susana Lehman FBN: 15449 Primary E-Mail ServiceMail@aldridgepite.com 1221-9058B 2009 CA 006462 MF Service List: By U.S. Maik: Unknown Spouse of Eric Santiago N/K/A Larna Santiago £0151 Chorlston Circle Orlando, FL 32832 Celebration Non Residential Owners Association, Inc C/O Larsen & Associates, P.A., Registered Agent 300 S, Orange Ave, Ste #1200 Orlando, FL 32801 Luis A. Gonzalez. 708 Mulberry Avenue Kissimmee, Fl 34747 Santiago Gomez 708 Mulberry Avenue Kissimmee, FL 34747 John Doe N/K/A Luis Gonzalez 708 Mulberry Avenue Kissimmee, FL 34747 Jane Doe N/K/A Gloria Gonzalez 708 Mulberry Avenue Kissimmee, FL 34747 i By E-Mail: Matthew D. Weidner, Esq. Attorney for Eric- Santiago 250 Mirror Lake Drive North St. Petersburg, FL 33701 Servic mattweidnerlaw.com Paul T. Hinckley, Esq. Taylor & Carls,-P.A. Attomey for Celebration Residential Owner's Association, Inc, a 150.N. Westmonte Drive Altamonte Springs, FL 32714 hinckte: bple; (com 1221-9058B 2009 CA 006462 MF