Preview
(i ili a a CIRCUIT COURT OF THE 9TH JUDICIAL
AND FOR OSCEOLA COUNTY, FLORIDA
\ aoe 7 ~ GENERAL JURISDICTION DIVISION
CASE NO: 49-2009-CA-006462 MF
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 oO
FOR RAMP 2005RZ3
PLAINTIFF % Che
LZ Be
ERIC SANTIAGO; UNKNOWN SPOUSE OF
ce
ERIC SANTIAGO IF ANY; ANY AND ALL
UNKNOWN PARTIES CLAIMING BY, %p CS,0,
THROUGH, UNDER, AND AGAINST THE € 7 aon
HEREIN NAMED INDIVIDUAL x
DEFENDANT(S) WHO ARE NOT KNOWN TO
BE DEAD OR ALIVE , WHETHER SAID ma,
UNKNOWN PARTIES MAY CLAIM AN
INTEREST AS SPOUSES, HEIRS, DEVISEES,
GRANTEES OR OTHER CLAIMANTS:
CELEBRATION RESIDENTIAL OWNERS
ASSOCIATION, INC,; CELEBRATION
NON-RESIDENTIAL OWNERS
ASSOCIATION, INC.; LUIS A. GONZALEZ:
SANTIAGO GOMEZ; JOHN DOE AND JANE
DOE AS UNKNOWN TENANTS IN
POSSESSION,
MOTION FOR SUMMARY FINAL JUDGMENT OF FORECLOSURE
AND TAXATION OF ATTORNEY'S FEES AND COSTS
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 RAMP 2005RZ3, files this Motion and states:
1 This Motion for Summary Final Judgment of Foreclosure is filed pursuant to Rule 1.510, Florida Rules of
Civil Procedure. The particular grounds upon which the Plaintiff's Motion for Summary Final Judgment is
based are set forth below
Plaintiff filed a Complaint to Foreclose the Mortgage on real property located in OSCEOLA County,
Florida. The legal description of the property is set forth in the mortgage attached to the Complaint.
The Promissory Note (Mortgage Note) held by the Plaintiff has not been paid, and the Mortgage securing
said note are in default, The Plaintiff's Mortgage constitutes a valid lien on the property which is superior
to any right, title interest or claim of all said defendants and all persons or entities claiming by, through, or
under them
There is a default under the terms and conditions of the Note and Mortgage. The entire indebtedness has
been accelerated and is immediately due and payable (see Plaintiff's Affidavit in Support of Motion for
Summary Judgment, attached hereto as Exhibit "A"). Moreover, Plaintiff is entitled to recover its principal
interest, late charges, costs, attorney's fees and other expenses (see Affidavit of Costs, attached hereto as
Exhibit "B"; Affidavit of Plaintiffs Counsel as to Attorney's Fees, attached hereto as Exhibit "C'; and
Affidavit in Support of Plaintiff's Attorney's Time, attached hereto as Exhibit "D")
The Obligor(s) have made no valid tender of payment of the Mortgage Note and Mortgage and have not
reinstated the Mortgage Note and Mortgage.
Because of the above grounds, Plaintiff is entitled to a Summary Final Judgment as a matter of law.
The interest of the owner of record for the property described herein is inferior and subordinate to the
interest of the Plaintiff Jordan v. Sayre , 24 Fla. 1, 3 So. 329 (1888).
TAOTAN YARIAN I A A A TINIAN AN A a
'
Plaintiff's lien takes priority over any subsequent claims or liens attaching to the property through the
Mortgagors, their successors, assigns and tenants Lee v. Slemons, | 12 Fla. 675, 150 So. 792 (1933);
Bullard v. Fender, 140 Fla. 448, 192 So. 167 (Fla. 1939); and County of Pinellas v. Clearwater Fed. Sav. &
AS ss'n, 214 So. 2d 525 (Fla. 2d DCA 1968).
Asa matter of law, the entire indebtedness secured by the Mortgage held by Plaintiff is due and collectable.
Van Huss v. Prudential Ins. Co., 123 Fla. 20, 165 So. 896 (1936); and Baader v. Walker, 153 So, 2d 51
(Fla. 2d DCA 1963), cert. denied, 156 So. 2d 858 (Fla. 1963).
As a matter of law, no valid tender of payment of the Mortgage Note and Mortgage has been made by any
Defendant or person otherwise obligated to make payments. Chandler v. Wright 16 Fla. 510 (1878); and
jacobs v. Automotive Repair Center, 137 So. 2d 263, (Fla. Ist DCA 1962).
Asa matter of law, the Mortgage Note is valid and is not usurious. See Fla. Stat. Section 665.007 (formerly
Fla Stat. Section 665.394); see also Fla. Stat. Section 687.12.
Asa matter of law and pursuant to the Mortgage securing the Mortgage Note, Plaintiff
is entitled to collect
costs and attorney's fees incident to the collection of indebtedness and any sums advanced to prevent the
impairment of its security. Ritch v. Eichelberger, 13 Fla. 169 (1869-71); American Securities Co. v.
Goldsberry , 69 Fla. 104, 67 So. 862 (1915); and Raskin v. Otten, 273 So. 2d 433 (Fla. 3d DCA 1973).
The provisions of the Note and Mortgage being sued upon in this action confer upon Plaintiff the right to
accelerate all sums due thereunder upon default of those Defendants who hold title to the subject property
and/or are otherwise obligated to pay the required monthly installments.Campbell v. Werner, 232 So. 2d
252, (Fla. 3d DCA 1970).
Plaintiff asserts that F.S. 720.3085 (2008) provides that the Plaintiff's mortgage, having been issued prior
to July 1, 2008, is to be governed by the Declaration of Covenants that was in existence as of the date the
mortgage was originated, as more fully set out in Plaintiffs Memorandum of Law attached hereto as Exhibit
MEY,
The Declaration of Covenants for Celebration Residential Owners Association, Inc. And Celebration
Non-residential Owners Association, Inc. provides that its lien is subordinate to the lien of Plaintiff and,
further, that the lender, if the successful purchaser at its foreclosure sale, would be liable only for those
assessments which become due after its acquisition of title. The Plaintiff was entitled to, and did in fact,
rely on the terms of the Declaration when issuing its mortgage.
The pleadings and admissions together with the Affidavits attached hereto and those which may be filed
hereinafter, along with any and all depositions which may be hereinafter taken, if any, show that there are
no genuine issues as to any material facts. Accordingly, Plaintiff is entitled to Summary Final Judgment of
Foreclosure as a matter of law upon its claim.
The pleadings and exhibits filed herein as well'as Plaintiff's Affidavit in support hereof, establish that
Plaintiff's Mortgage was recorded prior to the recording of the instruments creating the lien in favor of those
Defendant(s) who claim an interest in the real property encumbered by the Mortgage. Therefore, any such
interest which may be vested in the aforesaid defendants is subordinate and inferior to the lien of the
Plaintiff's Mortgage. v. Fi V sin, 155 So. 2d 192 (Fla. 2d DCA 1963).
WHEREFORE, Plaintiff moves the Court to enter Summary Final Judgment for the Plaintiff.
ERTIFICATE OF SERVI.
1 HEREBY CERTIFY that a true and correct copy of regoing Motion for Summary Judgment, along
with supporting affidavits attached as exhibits, was mailed this day of 2009 to the
following:
ERIC SANTIAGO
UNKNOWN SPOUSE OF ERIC SANTIAGO N/K/A LARNA SANTIAGO
10151 CHORLTON CIR.
ORLANDO, FL 32832
+
CELEBRATION RESIDENTIAL OWNERS ASSOCIATION, INC.
C/O LARSEN & ASSOCIATES, INC., REGISTERED AGENT
300 S. ORANGE AVE #1200
ORLANDO, FL 32801
CELEBRATION NON-RESIDENTIAL OWNERS ASSOCIATION, INC.
C/O LARSEN & ASSOCIATES, P.A., REGISTERED AGENT
300 S. ORANGE AVE #1200
ORLANDO, FL 32801
LUIS A. GONZALEZ
SANTIAGO GOMEZ
708 MULBERRY AVE
CELEBRATION, FL 34747
JOHN DOE N/K/A LUIS GONZALEZ
JANE DOE N/K/A GLORIA GONZALEZ
708 MULBERRY AVE.
CELEBRATION, FL 34747
Nornfh Soin
aaa his, (1
aw v Pifices © David J. Sig PLA
ey for Plaintiff
900 South Pine Island Road, Suite 400
Plantation, FL 33324-3920
(954) 233-8000
09-55758 HCNW Bar #
BS
IN THE CIRCUIT COURT OF THE 9TH
JUDICIAL CIRCUIT, IN AND FOR OSCEOLA
COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO: 49-2009-CA-006462 MF
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
RAMP 2005RZ3
PLAINTIFF
VS.
ERIC SANTIAGO, ET AL
DEFENDANT(S)
AFFIDAVIT IN SUPPORT OF
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
EXHIBIT "A"
STATE OF PA
COUNTY or _ Manan
BEFORE ME an officer authorized to take oaths this day personally appeared
Jeffrey Stephan C&O of HOMECOMINGS FINANCIAL, LLC
Limited Si
(AFFIANT) who, being first duly sworn, deposes and says:
1 That your affiant is an authorized signator on behalf of HOMECOMINGS
FINANCIAL, LLC, mortgage loan servicing agent on behalf of the Plaintiff in the above styled
action; and has custody of and supervises the mortgage accounts and records of the Plaintiff
including the accounts and records of the note and mortgage herein involved.
2 Ihave personal knowledge of the facts set forth herein and am authorized to make
this Affidavit on behalf of the Plaintiff.
3 Ihave direct access to or have been provided with the business records of the
Plaintiff concerning the Note and Security Agreement, the Mortgage and other loan documents
which are the subject matter of this lawsuit, such records were made at or near the time by, or
from information transmitted by, a person with knowledge, such records were kept in the course
of the regularly conducted business activity of the plaintiff, and it was the regular practice of the
plaintiff to make such records.
4 Plaintiff is the designated holder of said Note and Mortgage; none of the defaults
alleged in the Complaint filed herein has been cured; and there remains due to Plaintiff on
account of said Note and Mortgage, the following sums:
PRINCIPAL BALANCE OF NOTE: $806,534.05
INTEREST THEREON AT $79.55 PER DIEM
FROM DECEMBER 1, 2008 TO AUGUST 31, 2009: $21,776.40
LATE CHARGES: $1,183.14
(All late charges were accrued prior to acceleration of the loan.)
INSPECTIONS CONDUCTED ON PROPERTY: $213.75
APPRAISAL(S)/BPO: $103.00
TOTAL DUE TO PLAINTIFF AS OF THE DATE
HEREOF (EXCLUSIVE OF COSTS INCURRED BY
PLAINTIFF'S ATTORNEY): $829,810.34
5 The street address of the subject property is 708 MULBERRY AVE.,
CELEBRATION, FL 34747.
“
6 Interest on the note at the aforesaid rate shall continue to accrue at the daily rate of
$79.55 for each day after the date of this affidavit; and subsequent to the defaults alleged in the
Complaint filed herein, Plaintiff engaged its attorney of record and in so doing agreed and
obligated itself to pay said attorneys a reasonable fee for their services.
eee
Aettrey Steph AFFIANT
ar
STATE OF
Limited igning Offices
COUNTY 0
by ate ey Stephan Q BED before me this LY day of
who is personally known to me.
>
NOTARY PUBLIC
My commission expires:
S:UMMONWEALIH UF PENNSYLVAAMA,
NOTARIAL SEAL
Nikole Shelton, Notary Public
Upper Dublin Twp, Montgomery County
My Commission Expires Aug. 11, 2030
Meenibor Rininayivcras AssocKROn ot
IN THE CIRCUIT COURT OF THE 9TH JUDICIAL
CIRCUIT, IN AND FOR OSCEOLA COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO: 49-2009-CA-006462 MF
ST
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 RAMP 2005RZ3
PLAINTIFF
VS.
ERIC SANTIAGO, ET AL
DEFENDANTS
FLABARNO: 09
EXHIBIT "B"
STATE OF FLORIDA )
COUNTY OF BROWARD )
deposes “ dh \e AIS g , of the Law Offices of David J. Stern, being first duly sworn,
This firm has expended the following sums on costs:
Filing Fee: $1,993.00
Service of Process: $768.90
Abstracting: $325.00
Service/Mail Required by Law: $16.50
Title Update Charges: $75.00
TOTAL: $3,178.40
Attorney for Plaintiff
+, 2009, by
Suzanpolalany
?
WORN TO AND SUBSCRIBED before me this lo day of Dt
who is personally known to me.
yo
fo En ——~al
Notary Seite o
MH
aes
lorid.
Soke LURYBELL Escuivct. Print Name:
Notary Public, State of Florida
1 ke * Commission No. DD 624794
eeeee My Commission Expires 3/2/2010,
Oo i
IN THE CIRCUIT COURT OF THE 9TH JUDICIAL
CIRCUIT, IN AND FOR OSCEOLA COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO: 49-2009-CA-006462 MF
SS
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 RAMP 2005RZ3
PLAINTIFF
VS.
ERIC SANTIAGO, ET AL
DEFENDAN S
AFFIDAVIT OF PLAINTIFF'S COUNSEL AS TO ATTORNEYS FEES
EXHIBIT "C"
, being first duly sworn, deposes and says:
1 1 am counsel for the Plaintiff
in the above-styled cause.
2. No contemporaneous time records are kept by the attorneys for Plaintiff unless a foreclosure case
becomes contested. The Plaintiff is contractually obligated to pay its attorneys a flat fee of $1,300.00 to handle this
uncontested foreclosure case. However, under applicable law, the Plaintiff's counsel believes it is entitled to recover
a reasonable fee to be determined by the Court in excess of the agreed flat fee, provided the Plaintiff and/or the
Defendant borrower are not required to pay more than the contractual amount set forth above,
3. As required under Cohen & Cohen, P.A, v. Angrand, 710 So. 2d 166, 168 (Fla. 3rd DCA 1998), the
following is a reconstruction of approximate time spent on this case by the attorney who handled this file.
Services Rendered Hours
Review of loan documents, and case file in preparation for filing Foreclosure Complaint 1.0
Review and Revise Draft of Complaint, Notice of Lis Pendens and Summonses. 1
Review Final Draft.
Review ofall Service Returns/A ffidavits from Process Server, verify addresses, verify military and 1.2
marital status of defendants, verify occupancy of property. Note default dates and document file re:
same
Motions for and Orders of, Default, Non-Military Service Affidavits and Notice of Dropping Party 0.5
Review and Revise Affidavit in Support of Motion for Final Summary Judgment, monitor receipt of 1.0
same, and review.
Review and Revise Motion for Final Summary Judgment, supporting Affidavits, proposed Summary 17
Final Judgment, and Notice of Hearing. Review Final Draft.
Preparation for and attendance at hearing on Motion for Summary Judgment (estimate) 0.7
Correspondence and telephone conferences with parties, Court, Process Servers 1S
Preparation of Memorandum of Law 2.0
TOTAL HOURS 10.7
4, A reasonable hourly rate for services rendered herein is $150.00 per hour.
5. Based on the foregoing, I believe a reasonable attorney's fee would be $1,600.00.
ZN
Oran ane
(Zea) Keb mp
Attorney for Plaintiff
SWORN TO AND SUBSCRIBED before me this jo day of Log. wnt » 2009, by
‘ 3 Rann So. who is personally known to me.
0
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HM
fe Notary Public?
yer a Print Name:
LURYBELL ESGUIVEL
Public, State of Florida
ey, * Notary
Commission No, OD 524794
etegn” My Commission Expires 3/2/2016
IN THE CIRCUIT COURT OF THE
JUDICIAL CIRCUIT, IN AND FOR
COUNTY, FLORIDA.
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GENERAL JURISDICTION DIVISION
cAseNo: 49-2003 -Ck -COloUlo2 MIF
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PLAINTIFF
IND. AS SLLCe SSC
VS.
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PAP
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Eric 3 sErAt_
DEFENDANTS
IDAVIT O} INTIFF’S ATTO! °S TIM!
STATE OF FLORIDA
COUNTY OF BROWARD
RICHARD G. TOLEDO, being first duly sworn, deposes and says:
1 Your A ffiant is a duly qualified and licensed attorney admitted to practice in the Courts of Florida.
2. Your A ffiant has been a practicing member of the Florida Bar'since 1990.
3. Your Affiant has experience in the defense and prosecution of suits similar to that in the above captioned
case and is familiar with the factors to be considered in determining the reasonableness of a fee outlined in R.
Regulating Fla. Bar 4-1.5(b) and under Florida Patient’s Compensation Fund v, Rowe, 472 So. 2d 1145 (Fla. 1985).
4 Your Affiant has examined the attorney’s file in this proceeding, including the Affidavit of Plaintiff's
Counsel as to Attorney’s Fees.
5 Your Affiant has no interest in the outcome of this litigation.
6 » Your Affiant is not associated with or employed by Plaintiff or by Defendants or by attorneys of either.
7 Your affiant is familiar with the amounts customarily charged by attorneys and allowed by the Court for
attorney’s fees in such cases in the area and that $150.00 per hour is a reasonable rate.
8. Your A ffiant knows the, r
the opinion that the sum of $
re would be reasonable attorney's fees for _{ ©
| value of the services rendered and hours by PI. jaintiff’s attorney and is of
hours for the
hand
services rendered in this cause.
RICHARD G. TOLEDO, ESQ., AFFIANT
SWORN TO AND SUBSCRIBED before me this _. 2 day of Sep. , 2099
RICHARD G. TOLEDO, who is personally known
| fo me.
pha eet
eu
‘
LURYBELL ESGUIVEL
* Notary Public, State of Fiori
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D Ne
EXHIBIT 4 fy, Public St¥fe o: loride
Commission No. DD 524794 hPrint Name:
en” My Commission Expires 3/2/2011
ee OB
IN THE CIRCUIT COURT OF THE
9TH JUDICIAL CIRCUIT, IN AND
FOR OSCEOLA COUNTY,
FLORIDA
GENERAL JURISDICTION
DIVISION
CASE NO: 49-2009-CA-006462 MF
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 RAMP.
2005RZ3
PLAINTIFF
VS.
ERIC SANTIAGO, ET AL
DEFENDANT 2
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT
AS IT RELATES TO F.S. 720.3085
EXHIBIT “E”
ISSUE: .
Should Florida Statute §720.3085 (2008) be construed to make first mortgagees of record prior to
July, 1 2008 retroactively liable for Homeowners! Association (HOA) assessments above and
beyond those, if any, which were specified within the applicable Declaration of Covenants at the
time the mortgage was issued if the first mortgagee becomes the owner of the property by virtue
of a successful foreclosure action?
ANSWER:
No, the statute should not be retroactively applied to make a first mortgagee of record prior to
July 1, 2008, which obtains possession of the property through a foreclosure sale on its first lien
mortgage, liable for additional assessments that may have been incurred by the homeowner, but
for which the first lien holder was not to be liable pursuant to the Declaration of Covenants.
Subsection (1) of the statute, as amended in July, 2008, explicitly provides "Nothing in this
subsection shall be construed to bestow upon any lien... including liens for unpaid assessments
created pursuant to this subsection, a priority which, by law, the lien. . did not have before July
1, 2008."
‘
Plaintiff's mortgage was issued prior to July 1, 2008, at which time the governing HOA
Declaration of Covenants specified that assessment liens were subordinate to the interest of the
first mortgagee, and more specifically, that a first mortgagee which takes possession of the
property by virtue of a foreclosure of its mortgage would be liable only for those dues which
ome due after its acquisition of title. The lender relied on these covenants when determining to
issue its mortgage.
Florida law has continuously held that "retroactive...legislation is invalid if it impairs a
substantive vested right, creates or imposes a new obligation, imposes new penalties" etc. The
Florida Supreme Court opined that "any legislation that diminishes the value of a contract is
repugnant to and inhibited by the Constitution." See In re Advisory Opinion, 509 So.2d 292.
The rationale behind this is the Contracts clause in the United States Constitution (U.S.C.A.
Const. Art. I § 10, cl. 1)(2007) which prohibits the legislature from impinging on parties' abilities
to freely contract, without a legitimate legislative purpose. Mortgages fall-within the protection
of the contracts clause, and where the mortgage was issued in reliance on an existing Declaration
of Covenants: "no subsequent enactment should enlarge or diminish such rights or obligations"
(CIS CONLAW §501)(2007).
While under very limited circumstances, Florida has held that minimal impairment of contracts
may be allowable to achieve a legitimate governmental interest, "virtually no degree of contract
impairment is tolerablein this state." Pomponio v. Clari e of Pi 10 Condo >
378 So.2d 774, 780 (Fla. 1979)
In Pomponio, the Court defined impairment as "as to make worse; to diminish in quantity, value,
excellency or strength; to lessen in power; to weaken." Id. at 781. The Court decided that
contract impairment should be evaluated using the evolving reasonableness test:
An impairment may be constitutional if it is reasonable and necessary to serve an important
public purpose. The severity of the impairment measures the height of the hurdle the state
legislation must clear. Minimal alteration of contractual obligation may end the inquiry at its first
stage. Severe impairment, on the other hand, will push the inquiry to a careful examination of the
nature and purpose of the state legislation.
To determine how much impairment is tolerable, we must weigh the degree to which a party's
contract rights are statutorily impaired against both the source of authority under which the state
purports to alter the contractual relationship and the evil which it seeks to remedy. Obviously,
this becomes a balancing process to determine whether the nature and extent of the impairment is
constitutionally tolerable in light of the importance of the state's objective, or whether it
unreasonably intrudes into the parties' bargain to a degree greater than is necessary to achieve
that objective. Id., at 779, 780.
In Sarasota County v. Andrews, 573 So.2d 113 (Fla. 2 DCA 1991), where the court held that an
ordinance authorizing local governments to impose fines that become superior to all other liens,
except those for taxes, was unconstitutional as to a first mortgagee, in that it was too severe of
an impairment. Specifically, the court stated that such an ordinance substantially impaired the
contractual rights of a first mortgagee: "the only way it can preserve its contracted-for position as
first lien holder is to pay off the County's lien... This would require an additional investment that
ST
.
[themortgagee] neither contracted for nor could have anticipated when it made its loan before
the ordinance was enacted". Id, at 115.
Similarly, the HOA should not be entitled to any more from the first mortgagee which becomes
the successful purchaser at a foreclosure sale of its mortgage, based on F.S, 720.3085, than it
would have been prior to July 1, 2008.
First mortgagees of record prior to July 1, 2008, if they obtain the subject property via
foreclosure or by deed-in-lieu of foreclosure, pursuant to the controlling Declaration of the HOA,
should be able to eliminate all prior assessments, and be liable only for assessments that accrue
after it takes possession.
CONCLUSION:
Thus, this court must find that F.S. §720.3085 (2008) specifically exempts first mortgagees of
record prior to July 1, 2008 from any obligation to the HOA other than that pursuant to the
controlling HOA Declaration at the time the mortgage was issued. To hold otherwise would be
to impose obligations on the first lien holder that were not previously contemplated; it would
necessitate (non-contracted for) additional investments if Plaintiff is the "successful" purchaser at
its own foreclosure sale. Ultimately, the retroactive application of the statute to first mortgagees
of record prior to July 1, 2008 would turn profitable contracts into losing propositions, the exact
evil contemplated by the Florida Supreme Court.
Preview
(i ili a a CIRCUIT COURT OF THE 9TH JUDICIAL AND FOR OSCEOLA COUNTY, FLORIDA \ aoe 7 ~ GENERAL JURISDICTION DIVISION CASE NO: 49-2009-CA-006462 MF 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 oO FOR RAMP 2005RZ3 PLAINTIFF % Che LZ Be ERIC SANTIAGO; UNKNOWN SPOUSE OF ce ERIC SANTIAGO IF ANY; ANY AND ALL UNKNOWN PARTIES CLAIMING BY, %p CS,0, THROUGH, UNDER, AND AGAINST THE € 7 aon HEREIN NAMED INDIVIDUAL x DEFENDANT(S) WHO ARE NOT KNOWN TO BE DEAD OR ALIVE , WHETHER SAID ma, UNKNOWN PARTIES MAY CLAIM AN INTEREST AS SPOUSES, HEIRS, DEVISEES, GRANTEES OR OTHER CLAIMANTS: CELEBRATION RESIDENTIAL OWNERS ASSOCIATION, INC,; CELEBRATION NON-RESIDENTIAL OWNERS ASSOCIATION, INC.; LUIS A. GONZALEZ: SANTIAGO GOMEZ; JOHN DOE AND JANE DOE AS UNKNOWN TENANTS IN POSSESSION, MOTION FOR SUMMARY FINAL JUDGMENT OF FORECLOSURE AND TAXATION OF ATTORNEY'S FEES AND COSTS 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 RAMP 2005RZ3, files this Motion and states: 1 This Motion for Summary Final Judgment of Foreclosure is filed pursuant to Rule 1.510, Florida Rules of Civil Procedure. The particular grounds upon which the Plaintiff's Motion for Summary Final Judgment is based are set forth below Plaintiff filed a Complaint to Foreclose the Mortgage on real property located in OSCEOLA County, Florida. The legal description of the property is set forth in the mortgage attached to the Complaint. The Promissory Note (Mortgage Note) held by the Plaintiff has not been paid, and the Mortgage securing said note are in default, The Plaintiff's Mortgage constitutes a valid lien on the property which is superior to any right, title interest or claim of all said defendants and all persons or entities claiming by, through, or under them There is a default under the terms and conditions of the Note and Mortgage. The entire indebtedness has been accelerated and is immediately due and payable (see Plaintiff's Affidavit in Support of Motion for Summary Judgment, attached hereto as Exhibit "A"). Moreover, Plaintiff is entitled to recover its principal interest, late charges, costs, attorney's fees and other expenses (see Affidavit of Costs, attached hereto as Exhibit "B"; Affidavit of Plaintiffs Counsel as to Attorney's Fees, attached hereto as Exhibit "C'; and Affidavit in Support of Plaintiff's Attorney's Time, attached hereto as Exhibit "D") The Obligor(s) have made no valid tender of payment of the Mortgage Note and Mortgage and have not reinstated the Mortgage Note and Mortgage. Because of the above grounds, Plaintiff is entitled to a Summary Final Judgment as a matter of law. The interest of the owner of record for the property described herein is inferior and subordinate to the interest of the Plaintiff Jordan v. Sayre , 24 Fla. 1, 3 So. 329 (1888). TAOTAN YARIAN I A A A TINIAN AN A a ' Plaintiff's lien takes priority over any subsequent claims or liens attaching to the property through the Mortgagors, their successors, assigns and tenants Lee v. Slemons, | 12 Fla. 675, 150 So. 792 (1933); Bullard v. Fender, 140 Fla. 448, 192 So. 167 (Fla. 1939); and County of Pinellas v. Clearwater Fed. Sav. & AS ss'n, 214 So. 2d 525 (Fla. 2d DCA 1968). Asa matter of law, the entire indebtedness secured by the Mortgage held by Plaintiff is due and collectable. Van Huss v. Prudential Ins. Co., 123 Fla. 20, 165 So. 896 (1936); and Baader v. Walker, 153 So, 2d 51 (Fla. 2d DCA 1963), cert. denied, 156 So. 2d 858 (Fla. 1963). As a matter of law, no valid tender of payment of the Mortgage Note and Mortgage has been made by any Defendant or person otherwise obligated to make payments. Chandler v. Wright 16 Fla. 510 (1878); and jacobs v. Automotive Repair Center, 137 So. 2d 263, (Fla. Ist DCA 1962). Asa matter of law, the Mortgage Note is valid and is not usurious. See Fla. Stat. Section 665.007 (formerly Fla Stat. Section 665.394); see also Fla. Stat. Section 687.12. Asa matter of law and pursuant to the Mortgage securing the Mortgage Note, Plaintiff is entitled to collect costs and attorney's fees incident to the collection of indebtedness and any sums advanced to prevent the impairment of its security. Ritch v. Eichelberger, 13 Fla. 169 (1869-71); American Securities Co. v. Goldsberry , 69 Fla. 104, 67 So. 862 (1915); and Raskin v. Otten, 273 So. 2d 433 (Fla. 3d DCA 1973). The provisions of the Note and Mortgage being sued upon in this action confer upon Plaintiff the right to accelerate all sums due thereunder upon default of those Defendants who hold title to the subject property and/or are otherwise obligated to pay the required monthly installments.Campbell v. Werner, 232 So. 2d 252, (Fla. 3d DCA 1970). Plaintiff asserts that F.S. 720.3085 (2008) provides that the Plaintiff's mortgage, having been issued prior to July 1, 2008, is to be governed by the Declaration of Covenants that was in existence as of the date the mortgage was originated, as more fully set out in Plaintiffs Memorandum of Law attached hereto as Exhibit MEY, The Declaration of Covenants for Celebration Residential Owners Association, Inc. And Celebration Non-residential Owners Association, Inc. provides that its lien is subordinate to the lien of Plaintiff and, further, that the lender, if the successful purchaser at its foreclosure sale, would be liable only for those assessments which become due after its acquisition of title. The Plaintiff was entitled to, and did in fact, rely on the terms of the Declaration when issuing its mortgage. The pleadings and admissions together with the Affidavits attached hereto and those which may be filed hereinafter, along with any and all depositions which may be hereinafter taken, if any, show that there are no genuine issues as to any material facts. Accordingly, Plaintiff is entitled to Summary Final Judgment of Foreclosure as a matter of law upon its claim. The pleadings and exhibits filed herein as well'as Plaintiff's Affidavit in support hereof, establish that Plaintiff's Mortgage was recorded prior to the recording of the instruments creating the lien in favor of those Defendant(s) who claim an interest in the real property encumbered by the Mortgage. Therefore, any such interest which may be vested in the aforesaid defendants is subordinate and inferior to the lien of the Plaintiff's Mortgage. v. Fi V sin, 155 So. 2d 192 (Fla. 2d DCA 1963). WHEREFORE, Plaintiff moves the Court to enter Summary Final Judgment for the Plaintiff. ERTIFICATE OF SERVI. 1 HEREBY CERTIFY that a true and correct copy of regoing Motion for Summary Judgment, along with supporting affidavits attached as exhibits, was mailed this day of 2009 to the following: ERIC SANTIAGO UNKNOWN SPOUSE OF ERIC SANTIAGO N/K/A LARNA SANTIAGO 10151 CHORLTON CIR. ORLANDO, FL 32832 + CELEBRATION RESIDENTIAL OWNERS ASSOCIATION, INC. C/O LARSEN & ASSOCIATES, INC., REGISTERED AGENT 300 S. ORANGE AVE #1200 ORLANDO, FL 32801 CELEBRATION NON-RESIDENTIAL OWNERS ASSOCIATION, INC. C/O LARSEN & ASSOCIATES, P.A., REGISTERED AGENT 300 S. ORANGE AVE #1200 ORLANDO, FL 32801 LUIS A. GONZALEZ SANTIAGO GOMEZ 708 MULBERRY AVE CELEBRATION, FL 34747 JOHN DOE N/K/A LUIS GONZALEZ JANE DOE N/K/A GLORIA GONZALEZ 708 MULBERRY AVE. CELEBRATION, FL 34747 Nornfh Soin aaa his, (1 aw v Pifices © David J. Sig PLA ey for Plaintiff 900 South Pine Island Road, Suite 400 Plantation, FL 33324-3920 (954) 233-8000 09-55758 HCNW Bar # BS IN THE CIRCUIT COURT OF THE 9TH JUDICIAL CIRCUIT, IN AND FOR OSCEOLA COUNTY, FLORIDA GENERAL JURISDICTION DIVISION CASE NO: 49-2009-CA-006462 MF 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 RAMP 2005RZ3 PLAINTIFF VS. ERIC SANTIAGO, ET AL DEFENDANT(S) AFFIDAVIT IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT EXHIBIT "A" STATE OF PA COUNTY or _ Manan BEFORE ME an officer authorized to take oaths this day personally appeared Jeffrey Stephan C&O of HOMECOMINGS FINANCIAL, LLC Limited Si (AFFIANT) who, being first duly sworn, deposes and says: 1 That your affiant is an authorized signator on behalf of HOMECOMINGS FINANCIAL, LLC, mortgage loan servicing agent on behalf of the Plaintiff in the above styled action; and has custody of and supervises the mortgage accounts and records of the Plaintiff including the accounts and records of the note and mortgage herein involved. 2 Ihave personal knowledge of the facts set forth herein and am authorized to make this Affidavit on behalf of the Plaintiff. 3 Ihave direct access to or have been provided with the business records of the Plaintiff concerning the Note and Security Agreement, the Mortgage and other loan documents which are the subject matter of this lawsuit, such records were made at or near the time by, or from information transmitted by, a person with knowledge, such records were kept in the course of the regularly conducted business activity of the plaintiff, and it was the regular practice of the plaintiff to make such records. 4 Plaintiff is the designated holder of said Note and Mortgage; none of the defaults alleged in the Complaint filed herein has been cured; and there remains due to Plaintiff on account of said Note and Mortgage, the following sums: PRINCIPAL BALANCE OF NOTE: $806,534.05 INTEREST THEREON AT $79.55 PER DIEM FROM DECEMBER 1, 2008 TO AUGUST 31, 2009: $21,776.40 LATE CHARGES: $1,183.14 (All late charges were accrued prior to acceleration of the loan.) INSPECTIONS CONDUCTED ON PROPERTY: $213.75 APPRAISAL(S)/BPO: $103.00 TOTAL DUE TO PLAINTIFF AS OF THE DATE HEREOF (EXCLUSIVE OF COSTS INCURRED BY PLAINTIFF'S ATTORNEY): $829,810.34 5 The street address of the subject property is 708 MULBERRY AVE., CELEBRATION, FL 34747. “ 6 Interest on the note at the aforesaid rate shall continue to accrue at the daily rate of $79.55 for each day after the date of this affidavit; and subsequent to the defaults alleged in the Complaint filed herein, Plaintiff engaged its attorney of record and in so doing agreed and obligated itself to pay said attorneys a reasonable fee for their services. eee Aettrey Steph AFFIANT ar STATE OF Limited igning Offices COUNTY 0 by ate ey Stephan Q BED before me this LY day of who is personally known to me. > NOTARY PUBLIC My commission expires: S:UMMONWEALIH UF PENNSYLVAAMA, NOTARIAL SEAL Nikole Shelton, Notary Public Upper Dublin Twp, Montgomery County My Commission Expires Aug. 11, 2030 Meenibor Rininayivcras AssocKROn ot IN THE CIRCUIT COURT OF THE 9TH JUDICIAL CIRCUIT, IN AND FOR OSCEOLA COUNTY, FLORIDA GENERAL JURISDICTION DIVISION CASE NO: 49-2009-CA-006462 MF ST 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 RAMP 2005RZ3 PLAINTIFF VS. ERIC SANTIAGO, ET AL DEFENDANTS FLABARNO: 09 EXHIBIT "B" STATE OF FLORIDA ) COUNTY OF BROWARD ) deposes “ dh \e AIS g , of the Law Offices of David J. Stern, being first duly sworn, This firm has expended the following sums on costs: Filing Fee: $1,993.00 Service of Process: $768.90 Abstracting: $325.00 Service/Mail Required by Law: $16.50 Title Update Charges: $75.00 TOTAL: $3,178.40 Attorney for Plaintiff +, 2009, by Suzanpolalany ? WORN TO AND SUBSCRIBED before me this lo day of Dt who is personally known to me. yo fo En ——~al Notary Seite o MH aes lorid. Soke LURYBELL Escuivct. Print Name: Notary Public, State of Florida 1 ke * Commission No. DD 624794 eeeee My Commission Expires 3/2/2010, Oo i IN THE CIRCUIT COURT OF THE 9TH JUDICIAL CIRCUIT, IN AND FOR OSCEOLA COUNTY, FLORIDA GENERAL JURISDICTION DIVISION CASE NO: 49-2009-CA-006462 MF SS 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 RAMP 2005RZ3 PLAINTIFF VS. ERIC SANTIAGO, ET AL DEFENDAN S AFFIDAVIT OF PLAINTIFF'S COUNSEL AS TO ATTORNEYS FEES EXHIBIT "C" , being first duly sworn, deposes and says: 1 1 am counsel for the Plaintiff in the above-styled cause. 2. No contemporaneous time records are kept by the attorneys for Plaintiff unless a foreclosure case becomes contested. The Plaintiff is contractually obligated to pay its attorneys a flat fee of $1,300.00 to handle this uncontested foreclosure case. However, under applicable law, the Plaintiff's counsel believes it is entitled to recover a reasonable fee to be determined by the Court in excess of the agreed flat fee, provided the Plaintiff and/or the Defendant borrower are not required to pay more than the contractual amount set forth above, 3. As required under Cohen & Cohen, P.A, v. Angrand, 710 So. 2d 166, 168 (Fla. 3rd DCA 1998), the following is a reconstruction of approximate time spent on this case by the attorney who handled this file. Services Rendered Hours Review of loan documents, and case file in preparation for filing Foreclosure Complaint 1.0 Review and Revise Draft of Complaint, Notice of Lis Pendens and Summonses. 1 Review Final Draft. Review ofall Service Returns/A ffidavits from Process Server, verify addresses, verify military and 1.2 marital status of defendants, verify occupancy of property. Note default dates and document file re: same Motions for and Orders of, Default, Non-Military Service Affidavits and Notice of Dropping Party 0.5 Review and Revise Affidavit in Support of Motion for Final Summary Judgment, monitor receipt of 1.0 same, and review. Review and Revise Motion for Final Summary Judgment, supporting Affidavits, proposed Summary 17 Final Judgment, and Notice of Hearing. Review Final Draft. Preparation for and attendance at hearing on Motion for Summary Judgment (estimate) 0.7 Correspondence and telephone conferences with parties, Court, Process Servers 1S Preparation of Memorandum of Law 2.0 TOTAL HOURS 10.7 4, A reasonable hourly rate for services rendered herein is $150.00 per hour. 5. Based on the foregoing, I believe a reasonable attorney's fee would be $1,600.00. ZN Oran ane (Zea) Keb mp Attorney for Plaintiff SWORN TO AND SUBSCRIBED before me this jo day of Log. wnt » 2009, by ‘ 3 Rann So. who is personally known to me. 0 _— tte HM fe Notary Public? yer a Print Name: LURYBELL ESGUIVEL Public, State of Florida ey, * Notary Commission No, OD 524794 etegn” My Commission Expires 3/2/2016 IN THE CIRCUIT COURT OF THE JUDICIAL CIRCUIT, IN AND FOR COUNTY, FLORIDA. ota GENERAL JURISDICTION DIVISION cAseNo: 49-2003 -Ck -COloUlo2 MIF ICMAlion rer} Co NeKonal Cssacietion FUNTNC Banco? ident +OIboic PLAINTIFF IND. AS SLLCe SSC VS. ipBorIOR PAP I CIRASC BanICN.. ASAD} 2COBR2% Eric 3 sErAt_ DEFENDANTS IDAVIT O} INTIFF’S ATTO! °S TIM! STATE OF FLORIDA COUNTY OF BROWARD RICHARD G. TOLEDO, being first duly sworn, deposes and says: 1 Your A ffiant is a duly qualified and licensed attorney admitted to practice in the Courts of Florida. 2. Your A ffiant has been a practicing member of the Florida Bar'since 1990. 3. Your Affiant has experience in the defense and prosecution of suits similar to that in the above captioned case and is familiar with the factors to be considered in determining the reasonableness of a fee outlined in R. Regulating Fla. Bar 4-1.5(b) and under Florida Patient’s Compensation Fund v, Rowe, 472 So. 2d 1145 (Fla. 1985). 4 Your Affiant has examined the attorney’s file in this proceeding, including the Affidavit of Plaintiff's Counsel as to Attorney’s Fees. 5 Your Affiant has no interest in the outcome of this litigation. 6 » Your Affiant is not associated with or employed by Plaintiff or by Defendants or by attorneys of either. 7 Your affiant is familiar with the amounts customarily charged by attorneys and allowed by the Court for attorney’s fees in such cases in the area and that $150.00 per hour is a reasonable rate. 8. Your A ffiant knows the, r the opinion that the sum of $ re would be reasonable attorney's fees for _{ © | value of the services rendered and hours by PI. jaintiff’s attorney and is of hours for the hand services rendered in this cause. RICHARD G. TOLEDO, ESQ., AFFIANT SWORN TO AND SUBSCRIBED before me this _. 2 day of Sep. , 2099 RICHARD G. TOLEDO, who is personally known | fo me. pha eet eu ‘ LURYBELL ESGUIVEL * Notary Public, State of Fiori eh = D Ne EXHIBIT 4 fy, Public St¥fe o: loride Commission No. DD 524794 hPrint Name: en” My Commission Expires 3/2/2011 ee OB IN THE CIRCUIT COURT OF THE 9TH JUDICIAL CIRCUIT, IN AND FOR OSCEOLA COUNTY, FLORIDA GENERAL JURISDICTION DIVISION CASE NO: 49-2009-CA-006462 MF 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 RAMP. 2005RZ3 PLAINTIFF VS. ERIC SANTIAGO, ET AL DEFENDANT 2 MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AS IT RELATES TO F.S. 720.3085 EXHIBIT “E” ISSUE: . Should Florida Statute §720.3085 (2008) be construed to make first mortgagees of record prior to July, 1 2008 retroactively liable for Homeowners! Association (HOA) assessments above and beyond those, if any, which were specified within the applicable Declaration of Covenants at the time the mortgage was issued if the first mortgagee becomes the owner of the property by virtue of a successful foreclosure action? ANSWER: No, the statute should not be retroactively applied to make a first mortgagee of record prior to July 1, 2008, which obtains possession of the property through a foreclosure sale on its first lien mortgage, liable for additional assessments that may have been incurred by the homeowner, but for which the first lien holder was not to be liable pursuant to the Declaration of Covenants. Subsection (1) of the statute, as amended in July, 2008, explicitly provides "Nothing in this subsection shall be construed to bestow upon any lien... including liens for unpaid assessments created pursuant to this subsection, a priority which, by law, the lien. . did not have before July 1, 2008." ‘ Plaintiff's mortgage was issued prior to July 1, 2008, at which time the governing HOA Declaration of Covenants specified that assessment liens were subordinate to the interest of the first mortgagee, and more specifically, that a first mortgagee which takes possession of the property by virtue of a foreclosure of its mortgage would be liable only for those dues which ome due after its acquisition of title. The lender relied on these covenants when determining to issue its mortgage. Florida law has continuously held that "retroactive...legislation is invalid if it impairs a substantive vested right, creates or imposes a new obligation, imposes new penalties" etc. The Florida Supreme Court opined that "any legislation that diminishes the value of a contract is repugnant to and inhibited by the Constitution." See In re Advisory Opinion, 509 So.2d 292. The rationale behind this is the Contracts clause in the United States Constitution (U.S.C.A. Const. Art. I § 10, cl. 1)(2007) which prohibits the legislature from impinging on parties' abilities to freely contract, without a legitimate legislative purpose. Mortgages fall-within the protection of the contracts clause, and where the mortgage was issued in reliance on an existing Declaration of Covenants: "no subsequent enactment should enlarge or diminish such rights or obligations" (CIS CONLAW §501)(2007). While under very limited circumstances, Florida has held that minimal impairment of contracts may be allowable to achieve a legitimate governmental interest, "virtually no degree of contract impairment is tolerablein this state." Pomponio v. Clari e of Pi 10 Condo > 378 So.2d 774, 780 (Fla. 1979) In Pomponio, the Court defined impairment as "as to make worse; to diminish in quantity, value, excellency or strength; to lessen in power; to weaken." Id. at 781. The Court decided that contract impairment should be evaluated using the evolving reasonableness test: An impairment may be constitutional if it is reasonable and necessary to serve an important public purpose. The severity of the impairment measures the height of the hurdle the state legislation must clear. Minimal alteration of contractual obligation may end the inquiry at its first stage. Severe impairment, on the other hand, will push the inquiry to a careful examination of the nature and purpose of the state legislation. To determine how much impairment is tolerable, we must weigh the degree to which a party's contract rights are statutorily impaired against both the source of authority under which the state purports to alter the contractual relationship and the evil which it seeks to remedy. Obviously, this becomes a balancing process to determine whether the nature and extent of the impairment is constitutionally tolerable in light of the importance of the state's objective, or whether it unreasonably intrudes into the parties' bargain to a degree greater than is necessary to achieve that objective. Id., at 779, 780. In Sarasota County v. Andrews, 573 So.2d 113 (Fla. 2 DCA 1991), where the court held that an ordinance authorizing local governments to impose fines that become superior to all other liens, except those for taxes, was unconstitutional as to a first mortgagee, in that it was too severe of an impairment. Specifically, the court stated that such an ordinance substantially impaired the contractual rights of a first mortgagee: "the only way it can preserve its contracted-for position as first lien holder is to pay off the County's lien... This would require an additional investment that ST . [themortgagee] neither contracted for nor could have anticipated when it made its loan before the ordinance was enacted". Id, at 115. Similarly, the HOA should not be entitled to any more from the first mortgagee which becomes the successful purchaser at a foreclosure sale of its mortgage, based on F.S, 720.3085, than it would have been prior to July 1, 2008. First mortgagees of record prior to July 1, 2008, if they obtain the subject property via foreclosure or by deed-in-lieu of foreclosure, pursuant to the controlling Declaration of the HOA, should be able to eliminate all prior assessments, and be liable only for assessments that accrue after it takes possession. CONCLUSION: Thus, this court must find that F.S. §720.3085 (2008) specifically exempts first mortgagees of record prior to July 1, 2008 from any obligation to the HOA other than that pursuant to the controlling HOA Declaration at the time the mortgage was issued. To hold otherwise would be to impose obligations on the first lien holder that were not previously contemplated; it would necessitate (non-contracted for) additional investments if Plaintiff is the "successful" purchaser at its own foreclosure sale. Ultimately, the retroactive application of the statute to first mortgagees of record prior to July 1, 2008 would turn profitable contracts into losing propositions, the exact evil contemplated by the Florida Supreme Court.