On December 19, 2017 a
Motion,Ex Parte
was filed
involving a dispute between
Draper, Jerilyn Sue,
and
Feld, Jeffrey D,
for Other Circuit Civil
in the District Court of Collier County.
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Filing # 74032331 E-Filed 06/25/2018 11:53:52 AM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR
COLLIER COUNTY, FLORIDA CIVIL ACTION
JERILYN SUE DRAPER, Case No 2017-CA-2176
Plaintiff,
Vv.
JEFFREY FELD,
Defendant.
/
MOTION FOR REHEARING OF FINAL SUMMARY JUDGMENT
Defendant, Jeffrey Feld, moves for a rehearing to Set Aside the Summary
Judgment which has resulted in an improperly recorded Equitable Lien against
homestead exempt property of Mr. Feld pursuant to Rule 1.530 of the Florida Rules of
Civil Procedure and in support of this Motion states as follows:
1. Litigation was commenced by Plaintiff in December 2017 for a single count
complaint of replevin.
2. After personal service of the initial complaint was had on Defendant in 2018, and
even though Mr. Feld filed an Answer to the complaint within 20 days, an
Amended Complaint was filed, but not served on Mr. Feld.
3. After the Amended Complaint was filed, Plaintiff moved for a default based upon
the failure to file any “paper” with the court.
4. Due to a lack of receipt of the Amended Complaint (it was sent by Mail instead of
electronically, even though Mr. Feld’s e-mail address was clearly contained in his
initial Answer), a Default was entered on the Amended Complaint.
FILED: COLLIER COUNTY, CRYSTAL K. KINZEL, INTERIM, CLERK, 06/25/2018 11:59:56 AM5. A default is typically reserved for cases where “no filing or paper has been
received by the court.”
6. Although a pro se defendant, Mr. Feld did, in fact, file papers with the court and
sought motion for leave to set aside the Default on the Amended Complaint and
permission of the court to file his Amended Answer.
7. Atall material times hereto, Mr. Feld was anticipating proceeding on the merits of
the case.
8. A hearing was scheduled with the court regarding cleaning up the pleadings for
June 20, 2018.
9. The nature of the hearing changed from one regarding cleaning up the pleadings
to a Motion for Summary Judgment.
10.Mr. Feld objected to the nature of the hearing being changed from one regarding
the pleadings to a summary judgment hearing and requested permission of the
court to accept his filing and permit him to Amend the pleadings.
11.Fearing that his due process rights were being violated by the proceedings in this
case, Mr. Feld retained the undersigned counsel to handle this litigation on June
15, 2018.
12. The undersigned counsel immediately filed a designation of e-mail, notice of
unavailability, and a conflict with the hearing date scheduled for June 20, 2018.
13.Counsel for Mr. Feld also placed a phone call to counsel for Plaintiff and
informed the Boatman law firm that she was planning on re-amending the
pleadings to add affirmative defenses that Mr. Feld had not included in the
pleadings.14. During the phone call with opposing counsel, the undersigned informed counsel
for Plaintiff that she was seeking a continuance to get up to speed on the case
and that it appeared that, from a procedural standpoint, the case was rife with
procedural issues.
15.Counsel for the Defendant also informed Plaintiff's counsel that she had a conflict
in her schedule that prevented her from personally being able to appear at the
hearing and requested that the hearing be rescheduled to a time when she could
appear.
16.Counsel for Defendant informed Plaintiffs counsel that she was looking forward
to proceeding with discovery in the case in order to determine the case on the
merits.
17.The Boatman law firm informed the undersigned that they would not be
rescheduling the hearing and that they would be seeking to proceed in the case
with full knowledge that the Defendant was physically in Canada and unable to
appear and that Defendant’s chosen counsel had a conflict that prevented her
from being able to appear in court for the hearing.
18.Mr. Feld was going to be seeking leave of court, through his newly retained
counsel, to Amend the pleadings to respond to interest payments requested by
Ms. Draper on her credit cards; the amount claimed as money owed by Ms.
Draper of $50-some-odd thousand dollars being a fraudulent amount to be
sought; damages to his house that were caused by Ms. Draper during the time
the document was signed and she was residing in the home; possible amounts
paid by Mr. Feld to Ms. Draper that could have reduced any amounts that areclaimed to be owed for money let; a counterclaim seeking to offset any amounts
claimed based upon unpaid rent and/or expenses owed to him for his house
being used like a long-term storage bin by Ms. Draper for her personal
belongings after she was told to move by the court and failed to do so.
19. The above-listed affirmative defenses and possible counterclaims were
discussed by Mr. Feld with the undersigned, but unable to be pursued due to
both Mr. Feld ad the undersigned being out of the State of Florida until mid-July.
20. The Plaintiff would not have been unduly prejudiced by an extension of time that
would have permitted the undersigned to amend the pleadings, establish
affirmative defenses, and permit time to respond to the Motion for Summary
Judgment (which was initially supposed to be a hearing regarding cleaning up
the pleadings).
21.Justice requires that the Defendant be permitted to address the merits of the
claim.
CERTIFICATE OF SERVICE
| HEREBY CERTIFY that a true and correct copy of this document was filed with the
Clerk of the Court via the electronic service portal with e-mail copies going to: The
Boatman Law Firm, P.A. attn either Ernest A. Ricci, whose e-mail is ear@boatman-
law.com or James A. Boatman at jab@boatman-law.com on this 25"" day of June
2018.
By: lamantha ind, ,
Samantha Stevins, Esq.
Florida Bar Number 456810
Primary e-mail: stevinslawfirm@gmail.com
Secondary e-mail: vickistevins@qmail.com
2681 Airport Road South, Suite C-104
Naples, Florida 34112
Phone (239) 300-4417
Fax (239) 304-8424
Document Filed Date
June 25, 2018
Case Filing Date
December 19, 2017
Category
Other Circuit Civil
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Filing # 74032331 E-Filed 06/25/2018 11:53:52 AM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA CIVIL ACTION JERILYN SUE DRAPER, Case No 2017-CA-2176 Plaintiff, Vv. JEFFREY FELD, Defendant. / MOTION FOR REHEARING OF FINAL SUMMARY JUDGMENT Defendant, Jeffrey Feld, moves for a rehearing to Set Aside the Summary Judgment which has resulted in an improperly recorded Equitable Lien against homestead exempt property of Mr. Feld pursuant to Rule 1.530 of the Florida Rules of Civil Procedure and in support of this Motion states as follows: 1. Litigation was commenced by Plaintiff in December 2017 for a single count complaint of replevin. 2. After personal service of the initial complaint was had on Defendant in 2018, and even though Mr. Feld filed an Answer to the complaint within 20 days, an Amended Complaint was filed, but not served on Mr. Feld. 3. After the Amended Complaint was filed, Plaintiff moved for a default based upon the failure to file any “paper” with the court. 4. Due to a lack of receipt of the Amended Complaint (it was sent by Mail instead of electronically, even though Mr. Feld’s e-mail address was clearly contained in his initial Answer), a Default was entered on the Amended Complaint. FILED: COLLIER COUNTY, CRYSTAL K. KINZEL, INTERIM, CLERK, 06/25/2018 11:59:56 AM5. A default is typically reserved for cases where “no filing or paper has been received by the court.” 6. Although a pro se defendant, Mr. Feld did, in fact, file papers with the court and sought motion for leave to set aside the Default on the Amended Complaint and permission of the court to file his Amended Answer. 7. Atall material times hereto, Mr. Feld was anticipating proceeding on the merits of the case. 8. A hearing was scheduled with the court regarding cleaning up the pleadings for June 20, 2018. 9. The nature of the hearing changed from one regarding cleaning up the pleadings to a Motion for Summary Judgment. 10.Mr. Feld objected to the nature of the hearing being changed from one regarding the pleadings to a summary judgment hearing and requested permission of the court to accept his filing and permit him to Amend the pleadings. 11.Fearing that his due process rights were being violated by the proceedings in this case, Mr. Feld retained the undersigned counsel to handle this litigation on June 15, 2018. 12. The undersigned counsel immediately filed a designation of e-mail, notice of unavailability, and a conflict with the hearing date scheduled for June 20, 2018. 13.Counsel for Mr. Feld also placed a phone call to counsel for Plaintiff and informed the Boatman law firm that she was planning on re-amending the pleadings to add affirmative defenses that Mr. Feld had not included in the pleadings.14. During the phone call with opposing counsel, the undersigned informed counsel for Plaintiff that she was seeking a continuance to get up to speed on the case and that it appeared that, from a procedural standpoint, the case was rife with procedural issues. 15.Counsel for the Defendant also informed Plaintiff's counsel that she had a conflict in her schedule that prevented her from personally being able to appear at the hearing and requested that the hearing be rescheduled to a time when she could appear. 16.Counsel for Defendant informed Plaintiffs counsel that she was looking forward to proceeding with discovery in the case in order to determine the case on the merits. 17.The Boatman law firm informed the undersigned that they would not be rescheduling the hearing and that they would be seeking to proceed in the case with full knowledge that the Defendant was physically in Canada and unable to appear and that Defendant’s chosen counsel had a conflict that prevented her from being able to appear in court for the hearing. 18.Mr. Feld was going to be seeking leave of court, through his newly retained counsel, to Amend the pleadings to respond to interest payments requested by Ms. Draper on her credit cards; the amount claimed as money owed by Ms. Draper of $50-some-odd thousand dollars being a fraudulent amount to be sought; damages to his house that were caused by Ms. Draper during the time the document was signed and she was residing in the home; possible amounts paid by Mr. Feld to Ms. Draper that could have reduced any amounts that areclaimed to be owed for money let; a counterclaim seeking to offset any amounts claimed based upon unpaid rent and/or expenses owed to him for his house being used like a long-term storage bin by Ms. Draper for her personal belongings after she was told to move by the court and failed to do so. 19. The above-listed affirmative defenses and possible counterclaims were discussed by Mr. Feld with the undersigned, but unable to be pursued due to both Mr. Feld ad the undersigned being out of the State of Florida until mid-July. 20. The Plaintiff would not have been unduly prejudiced by an extension of time that would have permitted the undersigned to amend the pleadings, establish affirmative defenses, and permit time to respond to the Motion for Summary Judgment (which was initially supposed to be a hearing regarding cleaning up the pleadings). 21.Justice requires that the Defendant be permitted to address the merits of the claim. CERTIFICATE OF SERVICE | HEREBY CERTIFY that a true and correct copy of this document was filed with the Clerk of the Court via the electronic service portal with e-mail copies going to: The Boatman Law Firm, P.A. attn either Ernest A. Ricci, whose e-mail is ear@boatman- law.com or James A. Boatman at jab@boatman-law.com on this 25"" day of June 2018. By: lamantha ind, , Samantha Stevins, Esq. Florida Bar Number 456810 Primary e-mail: stevinslawfirm@gmail.com Secondary e-mail: vickistevins@qmail.com 2681 Airport Road South, Suite C-104 Naples, Florida 34112 Phone (239) 300-4417 Fax (239) 304-8424