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Filing # 63306011 E-Filed 10/25/2017 01:25:14 PM
IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT
IN AND FOR BREVARD COUNTY, FLORIDA
CIVIL ACTION
NEWPORT BEACH HOLDINGS, LLC,
Plaintiff,
VS. CASE NO.: 05-2016-CA-053709
DIVISION:
BRUCE GIMZEK, et al,
Defendant(s).
/
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
INCLUDING A HEARING TO TAX ATTORNEYS’ FEES AND COSTS
COMES NOW, Plaintiff, Newport Beach Holdings, LLC, by and through its’ undersigned
counsel, and hereby files this Motion for Summary Judgment Including a Hearing to Tax Attorneys’
Fees and Costs and says:
1 This Motion is filed pursuant to Fla. R. Civ. P. 1.510. The particular grounds on which the
Plaintiff's Motion for Summary Judgment Including a Hearing to Tax Attorneys’ Fees and
Costs is based are set forth below.
Plaintiff filed its Complaint to Foreclose a Mortgage on real property located in Brevard
County, Florida, the legal description of which is set forth in the Complaint.
The Mortgage sued upon by Plaintiff constitutes a valid lien on the property sought to be
foreclosed, is in default and is superior to any right, title, interest or claim of all Defendants
and all persons or entities claiming, by through or under them.
Attorney for Plaintiff will offer either of the following to the Court prior to or upon the
hearing of this Motion: 1) the Original Note with an allonge endorsed in blank from the
originator, or 2) a Lost Note Affidavit.
There is no genuine issue of material fact in this cause and the Plaintiff is entitled to
judgment as a matter of law for all relief sought in its Complaint to Foreclose Mortgage.
The mortgagor has defaulted under the note and mortgage being foreclosed and the default
Filing 63306011 NEWPORT BEACH VS BRUCE GIMZEK 05-2016-CA-053709-XXXX-XX
has not been cured, as more particularly set forth in Plaintiff's Affidavit of Indebtedness
and Complaint filed in this cause.
All conditions precedent, if any, to the acceleration of the note and mortgage have been
met.
In further support of its Motion for Summary Judgment, the Plaintiff relies upon the
following legal precedent:
a. that the record interests of the owner of the subject property and all those claiming
under the owner are inferior and subordinate to the interest of the Plaintiff. Jordan
v. Sayre, 24 Fla. 1, 3 So. 329 (1888), affirmed 10 So. 823; see also Sarmiento v.
Stockton, Whatley, Davin & Company, 399 So. 2d. 1057 (3d. DCA 1981) (a
plaintiffs mortgage is a lien superior in dignity to any prior or subsequent right,
title, claim, lien, or interest arising out of the mortgagor or the mortgagor's
predecessor(s) in interest);
b. that the entire indebtedness secured by the mortgage held by the Plaintiff is due and
collectible as a matter of law. Van Huss v. Prudential Insurance Co. of America,
123 Fla. 20, 165 So. 896 (1936). Further, the institution of a foreclosure suit is the
exercise of the mortgagee's option to declare the remaining principal sum and
interest due therein. Kreiss Potassium Phosphate Co. v. Night, 98 Fla. 1004, 124
So. 751 (1929);
c. that upon breach of the mortgagor's covenant to make the required payments for a
mortgage containing an acceleration clause a mortgagee may file suit to foreclose
the mortgage before the due date. Treb Trading Company v. Green, 102 Fla. 238,
135 So. 510 (1931); see also Federal Home Loan Mortgage Corp. v. Taylor, 318
So. 2d 203 (Fla. 1’'. DCA 1975) (an acceleration clause in an installment note and
mortgage confers a contract right on the note and mortgage holder which holder
may elect to invoke upon default and to seek enforcement thereof);
d. that under the provisions of the mortgage instruments securing the promissory note,
the Plaintiff is entitled to collect, as a matter of law, costs and reasonable attorneys’
fees incident to the collection of the indebtedness as well as any sums advanced by
the Plaintiff to protect or prevent the impairment of its security interest. American
Securities Co. v. Goldsberry, 69 Fla. 104, 67 So. 862 (1915), 1 A-L.R. 15; Raskin
v. Otten, 273 So. 2d 433 (Fla. 3d DCA 1973);
e. that the Defendant(s) have failed to raise any issue of fact or law that would prevent
the entry of a Summary Final Judgment in favor of the Plaintiff in this cause.
9. As additional support for the instant motion the Plaintiff relies upon and incorporates by
reference the Plaintiffs Affidavit Supporting Plaintiff's Motion for Summary Final
Judgment, Affidavit of Plaintiff's Counsel as to Attorney’s Fees and Costs, Affidavit as to
Filing 63306011 NEWPORT BEACH VS BRUCE GIMZEK 05-2016-CA-053709-XXXX-XX
Reasonable Attorney’s Fees, and Plaintiff’s Affidavit of Business Records.
10. This pleading, together with the Affidavits referenced herein and all other pleadings filed
with the court, show that there are no genuine issues as to any material facts.
11. On the basis of the above grounds, Plaintiff is entitled to Final Summary Judgment as a
matter of law upon its Complaint.
WHEREFORE, Plaintiff prays for entry of Final Summary Judgment in its favor against
all Defendants for the relief set forth in its Complaint.
/s/__Damian G. Waldman
M Damian G. Waldman, Esq.
Florida Bar No. 0090502
o Farha Ahmed, Esq.
Florida Bar No. 113222
o John Patrick Koplitz, Esq.
Florida Bar No. 44379
Benjamin James Mollo, Esq.
Florida Bar No. 12613
Law Offices of Damian G. Waldman, P.A.
PO Box 5162
Largo, FL 33779
Telephone: (727) 538-4160
Facsimile: (727) 240-4972
Email 1: damian@dwaldmanlaw.com
Email 2: farha@dwaldmanlaw.com
Email
Email 4:
E-Service: service@dwaldmanlaw.com
Attorneys for Plaintiff
Filing 63306011 NEWPORT BEACH VS BRUCE GIMZEK 05-2016-CA-053709-XXXX-XX
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of this Motion for Summary Judgment
has been furnished by U.S. Mail to all parties listed on the attached service list on October 25, 2017.
/s/ Damian G. Waldman
Damian G. Waldman, Esq.
Attorneys for Plaintiff
SERVICE LIST
Newport Beach Holdings, LLC
c/o Damian Waldman, Esq.
PO Box 5162
Largo, FL 33779
damian@dwaldmanlaw.com
farha@dwaldma:
a) vaiame
iohn@dwaldmanlaw.com
ben@dwaldmanlaw.com
service@dwaldmanlaw.com
Attorneys for Plaintiff
Bruce Gimzek
3190 N. Atlantic Ave., Apt. 323
Cocoa Beach, FL 32931-3368
Unknown Spouse of Bruce Gimzek
2228 Iona Drive
Cocoa, FL 32926
City of Cocoa, Florida
c/o Jennifer B. Nix, Esq.
111 North Orange Avenue, Suite 2000
Orlando, FL 32801
jnix@or dol: net
jandr ora andolaw.net
Cach, LLC
c/o CT Corporation System, RA
1200 S. Pine Island Rd.
Plantation, FL 33324
Unknown Tenant #1 n/k/a Gino Tommasello
2228 Iona Drive
Cocoa, FL 32926
Unknown Tenant #2 n/k/a Vaughn Moroe
2228 Iona Drive
Cocoa, FL 32926
Filing 63306011 NEWPORT BEACH VS BRUCE GIMZEK 05-2016-CA-053709-XXXX-XX
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Filing # 63306011 E-Filed 10/25/2017 01:25:14 PM IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT IN AND FOR BREVARD COUNTY, FLORIDA CIVIL ACTION NEWPORT BEACH HOLDINGS, LLC, Plaintiff, VS. CASE NO.: 05-2016-CA-053709 DIVISION: BRUCE GIMZEK, et al, Defendant(s). / PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT INCLUDING A HEARING TO TAX ATTORNEYS’ FEES AND COSTS COMES NOW, Plaintiff, Newport Beach Holdings, LLC, by and through its’ undersigned counsel, and hereby files this Motion for Summary Judgment Including a Hearing to Tax Attorneys’ Fees and Costs and says: 1 This Motion is filed pursuant to Fla. R. Civ. P. 1.510. The particular grounds on which the Plaintiff's Motion for Summary Judgment Including a Hearing to Tax Attorneys’ Fees and Costs is based are set forth below. Plaintiff filed its Complaint to Foreclose a Mortgage on real property located in Brevard County, Florida, the legal description of which is set forth in the Complaint. The Mortgage sued upon by Plaintiff constitutes a valid lien on the property sought to be foreclosed, is in default and is superior to any right, title, interest or claim of all Defendants and all persons or entities claiming, by through or under them. Attorney for Plaintiff will offer either of the following to the Court prior to or upon the hearing of this Motion: 1) the Original Note with an allonge endorsed in blank from the originator, or 2) a Lost Note Affidavit. There is no genuine issue of material fact in this cause and the Plaintiff is entitled to judgment as a matter of law for all relief sought in its Complaint to Foreclose Mortgage. The mortgagor has defaulted under the note and mortgage being foreclosed and the default Filing 63306011 NEWPORT BEACH VS BRUCE GIMZEK 05-2016-CA-053709-XXXX-XX has not been cured, as more particularly set forth in Plaintiff's Affidavit of Indebtedness and Complaint filed in this cause. All conditions precedent, if any, to the acceleration of the note and mortgage have been met. In further support of its Motion for Summary Judgment, the Plaintiff relies upon the following legal precedent: a. that the record interests of the owner of the subject property and all those claiming under the owner are inferior and subordinate to the interest of the Plaintiff. Jordan v. Sayre, 24 Fla. 1, 3 So. 329 (1888), affirmed 10 So. 823; see also Sarmiento v. Stockton, Whatley, Davin & Company, 399 So. 2d. 1057 (3d. DCA 1981) (a plaintiffs mortgage is a lien superior in dignity to any prior or subsequent right, title, claim, lien, or interest arising out of the mortgagor or the mortgagor's predecessor(s) in interest); b. that the entire indebtedness secured by the mortgage held by the Plaintiff is due and collectible as a matter of law. Van Huss v. Prudential Insurance Co. of America, 123 Fla. 20, 165 So. 896 (1936). Further, the institution of a foreclosure suit is the exercise of the mortgagee's option to declare the remaining principal sum and interest due therein. Kreiss Potassium Phosphate Co. v. Night, 98 Fla. 1004, 124 So. 751 (1929); c. that upon breach of the mortgagor's covenant to make the required payments for a mortgage containing an acceleration clause a mortgagee may file suit to foreclose the mortgage before the due date. Treb Trading Company v. Green, 102 Fla. 238, 135 So. 510 (1931); see also Federal Home Loan Mortgage Corp. v. Taylor, 318 So. 2d 203 (Fla. 1’'. DCA 1975) (an acceleration clause in an installment note and mortgage confers a contract right on the note and mortgage holder which holder may elect to invoke upon default and to seek enforcement thereof); d. that under the provisions of the mortgage instruments securing the promissory note, the Plaintiff is entitled to collect, as a matter of law, costs and reasonable attorneys’ fees incident to the collection of the indebtedness as well as any sums advanced by the Plaintiff to protect or prevent the impairment of its security interest. American Securities Co. v. Goldsberry, 69 Fla. 104, 67 So. 862 (1915), 1 A-L.R. 15; Raskin v. Otten, 273 So. 2d 433 (Fla. 3d DCA 1973); e. that the Defendant(s) have failed to raise any issue of fact or law that would prevent the entry of a Summary Final Judgment in favor of the Plaintiff in this cause. 9. As additional support for the instant motion the Plaintiff relies upon and incorporates by reference the Plaintiffs Affidavit Supporting Plaintiff's Motion for Summary Final Judgment, Affidavit of Plaintiff's Counsel as to Attorney’s Fees and Costs, Affidavit as to Filing 63306011 NEWPORT BEACH VS BRUCE GIMZEK 05-2016-CA-053709-XXXX-XX Reasonable Attorney’s Fees, and Plaintiff’s Affidavit of Business Records. 10. This pleading, together with the Affidavits referenced herein and all other pleadings filed with the court, show that there are no genuine issues as to any material facts. 11. On the basis of the above grounds, Plaintiff is entitled to Final Summary Judgment as a matter of law upon its Complaint. WHEREFORE, Plaintiff prays for entry of Final Summary Judgment in its favor against all Defendants for the relief set forth in its Complaint. /s/__Damian G. Waldman M Damian G. Waldman, Esq. Florida Bar No. 0090502 o Farha Ahmed, Esq. Florida Bar No. 113222 o John Patrick Koplitz, Esq. Florida Bar No. 44379 Benjamin James Mollo, Esq. Florida Bar No. 12613 Law Offices of Damian G. Waldman, P.A. PO Box 5162 Largo, FL 33779 Telephone: (727) 538-4160 Facsimile: (727) 240-4972 Email 1: damian@dwaldmanlaw.com Email 2: farha@dwaldmanlaw.com Email Email 4: E-Service: service@dwaldmanlaw.com Attorneys for Plaintiff Filing 63306011 NEWPORT BEACH VS BRUCE GIMZEK 05-2016-CA-053709-XXXX-XX CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this Motion for Summary Judgment has been furnished by U.S. Mail to all parties listed on the attached service list on October 25, 2017. /s/ Damian G. Waldman Damian G. Waldman, Esq. Attorneys for Plaintiff SERVICE LIST Newport Beach Holdings, LLC c/o Damian Waldman, Esq. PO Box 5162 Largo, FL 33779 damian@dwaldmanlaw.com farha@dwaldma: a) vaiame iohn@dwaldmanlaw.com ben@dwaldmanlaw.com service@dwaldmanlaw.com Attorneys for Plaintiff Bruce Gimzek 3190 N. Atlantic Ave., Apt. 323 Cocoa Beach, FL 32931-3368 Unknown Spouse of Bruce Gimzek 2228 Iona Drive Cocoa, FL 32926 City of Cocoa, Florida c/o Jennifer B. Nix, Esq. 111 North Orange Avenue, Suite 2000 Orlando, FL 32801 jnix@or dol: net jandr ora andolaw.net Cach, LLC c/o CT Corporation System, RA 1200 S. Pine Island Rd. Plantation, FL 33324 Unknown Tenant #1 n/k/a Gino Tommasello 2228 Iona Drive Cocoa, FL 32926 Unknown Tenant #2 n/k/a Vaughn Moroe 2228 Iona Drive Cocoa, FL 32926 Filing 63306011 NEWPORT BEACH VS BRUCE GIMZEK 05-2016-CA-053709-XXXX-XX