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Filing # 37138866 E-Filed 01/28/2016 02:45:38 PM
IN THE CIRCUIT COURT OF THE 17™ JUDICIAL CIRCUIT,
IN AND FOR BROWARD COUNTY, FLORIDA
CASE NO: CACE-15-013633
BANK OF AMERICA, N.A.,
Plaintiff,
VS.
RUTH JOSEPH A/K/A JOSEPH RUTH,
UNKNOWN SPOUSE OF RUTH JOSEPH
A/K/A JOSEPH RUTH; HOUSING FINANCE
AUTHORITY OF LEE COUNTY, FLORIDA;
STATE OF FLORIDA, BROWARD
COUNTY; BOARD OF COUNTY.
COMMISSIONERS OF BROWARD
COUNTY, FLORIDA; UNKNOWN TENANT
#1; UNKNOWN TENANT #2,
Defendants.
/
PLAINTIFF’S RESPONSE IN OPPOSITION TO. DEFENDANT’S MOTION TO
DISMISS COMPLAINT
COMES NOW, Plaintiff, BANK OF AMERICA, N.A. (“Plaintiff”), by and through its
undersigned counsel, hereby files its Response in Opposition to Defendant’s, RUTH JOSEPH’s
(“Defendant”), Motion to Dismiss, and in support thereof states as follows:
I. Preliminary Statement
Defendants filed their Motion to Dismiss (the “Motion”) on or about January 26, 2016,
and in the same has submitted to this Court that the Complaint should be dismissed for the
failing to allege the exact subsection of Section 673.3011 of the Florida Statutes Plaintiff is
relying on and lack of standing. As further set forth below, this argument is completely without
merit and do not present a grounds for dismissal.
i. Motion to Dismiss Standard
04-076810-FOO
*** FILED: BROWARD COUNTY, FL HOWARD FORMAN. CLERK 1/28/2016 2:45:38 PM.****The law in Florida is clear that a motion to dismiss, filed pursuant to Fla. R. Civ.
P. 1.140(b) tests the legal sufficiency of the Plaintiff's Complaint to state a cause of action.
McWhirter, Reeves, McGothlin, Davidson, Rief, and Bakas, P.A. v. Weiss, 704 So. 2d 214,
215 (Fla. 2d DCA 1998). The Trial court is restricted to review of the allegations within the
four(4) corners of the Complaint. /d. The trial court must take the facts within the Complaint
as trust without considering how the allegations will ultimately by proven. Troupe v. Redner,
652 So. 2d 394, 395 *(Fla. 2d DCA 1995).
Ti. Plaintiff properly alleged standing and attached the necessary documents
It appears that Defendant has filed her Motion without seemingly looking at the
Complaint and the attachments thereto. First, Defendant alleges in paragraph 5 of her
Motion that “Plaintiff alleges that it took ownership of the mortgage and note by assignment
annexed to the Complaint as exhibit C.” There is no such allegation, nor attachment, present
in the instant Complaint. This clearly indicates that Defendant filed her Motion for no other
purpose but delay.
Furthermore, Defendant’s allegation that Plaintiff failed to state what section of
Florida Statute §673.3011 is completely false. Plaintiff states in Paragraph 4 of its Complaint
that “Plaintiff is the holder of the Note.” Pursuant to Florida Statute §673.3011(1), the
“holder of the instrument” is entitled to enforce the same. Failure to identify the owner is not
relevant, as Plaintiffs standing is based on its status as holder of the note. Vidal v
Liquidation Props Ine., 104 So. 3d 1274 (Fla. 4" DCA 2013) (holding that one who owns_or
holds the note is entitled to foreclose on the mortgage).
Moreover, it is clear from the Note attached to the Complaint that Plaintiff has
standing and is the real party in interest. A copy of the Note is attached hereto as Exhibit
04-076810-FOO“A.” In order to obtain a judgment of foreclosure, Plaintiff must demonstrate that it has
standing to foreclose. McLean v. JP Morgan Chase Bank, Nat'l Ass’n, 79. So. 3d 170, 173
(Fla. 4" DCA 2012). Standing is established at the time of filing of the complaint. Am. Home
Mortg. Servicing, Inc. v. Bednarek (132 So. 3d 1222). Possession of the original promissory
note, endorsed in blank, is sufficient to establish that Plaintiff is the lawful holder of the note,
entitled to enforce its terms Riggs v Aurora 36 So. 3d 932 (Fla. 4" DCA 2010). Plaintiff, in
this case, is not only the original lender, it is in possession of the original promissory note
with a blank endorsements. It is clear in Florida that if the note or allonge reflects on its face
that the endorsement occurred before the filing of the complaint, this is sufficient to establish
standing. Id., (citing Taylor y. Bayview Loan Servicing, LLC, 74 So. 3d 115, at 1117-18 (Fla.
2nd DCA 2011)). Since the note attached to the Complaint contains the endorsement in
blank, it is clear that the same occurred prior to the filing of the Complaint. Clay County
Land Trust #08—04-25-0078-014-27 v. JPMorgan Chase Bank, N.A, 152 So. 3d 83 (Fla. 1st
DCA 2014) (holding that the Note containing an undated endorsement in blank was
sufficient to prove standing, since it was attached to the Complaint). As such, it is clear that
Defendant’s Motion fails as a matter of law.
IV. Conclusion
In light of the foregoing, it is clear that Defendant’s Motion is without merit and
should be denied in its entirety. Defendant should be ordered to file an Answer within ten
(10) days and attorney’s fees awarded to the undersigned for having to file this opposition.
All other grounds may be argued ore tenus
04-076810-F00WHEREFORE, Plaintiff prays that this Honorable Court will enter an Order
denying Defendant’s Motion to Dismiss, award Plaintiff attorney’s fees and costs for having
to defend a baseless Motion, and for such other relief that this Court deems just and proper.
CERTIFICATE OF SERVICE
J HEREBY CERTIFY that a true and correct copy of the foregoing was served by
Electronic Mail pursuant to Rule 2.516, Fla. R. Jud. Admin, and/or by U.S. Mail to any other
Matthéw Hearne, Esq.
FRENKEL LAMBERT WEISS WEISMAN &
GORDON, LLP
One East Broward Blvd, Suite 1430
Fort Lauderdale, Florida 33301
Tel: (954) 522-3233
FL Bar #: 84251
DESIGNATED PRIMARY E-MAIL FOR SERVICE
PURSUANT TO FLA. R. JUD. ADMIN 2.516
fleservi flwlaw.com
04-076810-FO0SERVICE LIST
Case CACE-15-013633
OWEI Z. BELLEH, ESQ.
BROWN & BELLEH, PLLC.
ATTORNEY FOR RUTH JOSEPH A/K/A JOSEPH RUTH
1801 NE 123RD STREET SUITE 409
NORTH MIAMI, FL 33181
OWEI@BELLEHLAW.COM
ESERVICE@BELLEHLAW.COM
UNKNOWN SPOUSE OF RUTH JOSEPH A/K/A JOSEPH RUTH NKA ANDREW WIMBLEY
2900 ISLAND DRIVE.
MIRAMAR, FL 33023
STATE OF FLORIDA, BROWARD COUNTY
2450 SHUMARD OAK BLVD.
BUILDING 1, FLOOR 2
TALLAHASSEE, FL 32399
PHILIP L. BURNETT, P.A.
ATTORNEY FOR DEFENDANT HOUSING FINANCE AUTHORITY OF LEE COUNTY, FLORIDA
POST OFFICE BOX 2258
FT. MYERS, FL 33902
PHILBURNETT@EMBARQMAIL.COM
OFFICE OF THE COUNTY ATTORNEY FOR BROWARD COUNTY
ATTORNEY FOR BOARD OF COUNTY COMMISSIONERS OF BROWARD COUNTY, FLORIDA
GOVERNMENTAL CENTER, SUITE 423
115 SOUTH ANDERWS AVENUE
FORT LAUDERDALE, FL 33301
RTEITLER@BROWARD.ORG
UNKNOWN TENANT(S)
2900 ISLAND DRIVE
MIRAMAR, FL 33023
04-076810-F0OEXHIBIT “A”@ »
NOTE
a
DOCUMENTARY STAKE AX 201.08 F.S, AND FLORIDA NONRECURRING INTANGIBLE TAX UNDER
STATUTES.
HK
&
Mi
guur 2 : helt
Seek
2900 ISLAND DRIVE, MIRAMAR, FL 33023 €"
Property Adena}
‘y(t NOYE |S EXEMPT FROM
/199, FS. RER 169.621 FLORID
lL PARTHES
“Borrower” micans cach péron signing at the end of this Note, tind the person's successors amd: assigus. “Lantter™ picatis
RANK OF AMERICA, N.Ay
and its successors and assigns.
2, BORROWER'S PROMISE TO PAY; INTEREST
tn retur for a Joan reseived from Leader, Bomower promises to pay the principal sum of
ar
ONE. HUNDRED FORTY ‘FOUR THOUSAND TWO HUNDRED FORTY EIGH' 90/2100
Dallars (U.S.$144,248,00 —_), plus interest, to the order of Lender. Interest will be charged on unpaid principal, frm ure de
of disbursement of the loan proceeds by Lender, at the rai of FOUR & 30/200 percent (1.300 %) per yeett
uofil'the fuil arnount of pring pal has been paid.
3. PROMISE TO PAY SECURED
‘Borrower's prontive 10 pay is secured by @ mortgage, deed of trust or similar security insieument that is dated the same date ay
this Note and called the "Secufity Insitusnent." The Security {nstrument protects the Lender from losses which tight reset, it
Borrower defaults under this Note,
4, MANNER QF PAYMENT
(A), ‘Time
Borrower: shall’ make a payment of principal and interest to Lender on the first day of each’ month beyianing on
SEPTEMBER-18T, 2013. Any principal and intecest vemaining on the Girst day of AUGUST, 2041 will he,due un that
Gate, which is called the "Maturity Date.”
68) Place
Payméat shall be wade at
P.O. Box 680070, Dallas, TX 75265-0070
‘or at stich place as Lender niay designate in writing by notice to Bortawer.
(€), Amount
Each monthly payment of priricipal and interest will be in the amount of U.S. $713.24 J This amoun wil be
fart of a larger monthly payment required by she Security Insieunteni, that shall be applied (0 pringipal, interest sind otter tems inthe
order déseribed in the Security Instrument:
{D) Allonge to this Note for payment adjustments
TE an allonge providing for payenent adjustments is executed by Borrower together with this Noté, the cavemunts of the
stlonge sal) ho incorporated ja and shall amend and supplement tre covenants of this Note.as if the allonge were 2 put of this
Note, {Check applizable box}
(0) Gradvated Payment Allonge [7] Growing Equity Allonge C1 other fapecity]
BORROWER'S RIGHT TO PREPAY
Borrower has the right t0 pay the debt evidericed by this Note, in wiole or fn part, without charge of penalty, on the first day of
any month, Lender shail acecpt prepayment on other. days provided that Borrower pays ‘nerest an the umount prepaid for the
omaiinder of the. monih to the extent required by Lender and permitted by regulations of the Sceréiayy. If Borrower inakes,a partial
prepayment, there will bono changes in the due-daie or in the amount of the monthly payment unless Lender agrees in writing to Urose
changes.
6 BORROWER'S FAILURE TO PAY
(A) Late Charge for Overdue Payments:
Se Lender has not received the full monthly Payment required by the Seouity Instrument; os described én Paragraph a(C) of
this ‘Noto, by the end of fifteen ealendar:days: after the payment. is due, Lender may collect i late charge in tho ionourlt af
FOUR percent ( 4.000'%) of the overdue amount of each payment,
(8) Defanté
Hf Borrower defaults by failing to pay in fill any monthly payment, then Lender may; except as tinted by regulations at
the: Sceretiry-in-the cose-of payment-Jefauils,- require immediate. payment in full-of the. principal balance. remaining, duc. avd all
averued interest. Lender may choose not (o exercise this option without waiving its rights in the event of any subsequent
imany circumstances regulations issued by the Secretary will limit Lender's rights to require immediate payment in full in the case of
payment. defaults. This Note: docs not authorize acceleration wher not permitted by HUD regulations, As used in thik Note,
‘Sceruary” means the Sccrctary of Housing and Urbin Development or his or her designee
F Fixed Rate Note-FL,
2001 FFL (0907)(89) Pege {of 2 FHA Florida Fixed Rate Nols « 10/95 “Amonded 10/03
dekall, byoc), © |
(©) Payment of Casis and Expenses
If Lender has-required immediate’ payment in. full, as described above; lender may. require Borrower to pay costs und
expenses including reasouable and customary attorneys’ fees for enforcing this Note to the: extenl-not prohibited by apphcabic law.
Such fees and costs shall bear interest [rom the date of disbursement at the samc rate as the principal of this Note.
7, WATVERS
Rorower and any other person who has obligations under this Note waive the rights of prosemiment and notice of dishonoe:
“Presonunént” means the right to require Lender to demand payment of anounts: due. “Notice of dishonor” means. ihe right lo require
Lender fo give sotice to other persous that amounts duc have not been paid,
8. GIVING OF NOTICES
Unless applicable law requires a different method, any notice that must be given to Bonoiwer under this Noit will be given by
delivering it or by mailing it by first class mail to Borrower or.the property address above or at a differgnt address if Bocrower les,
piven Lender a notice of Borrower's different address:
Any notice that must be given to Lender under this Note.will be given by first class mail t Lender al the. address stated in
Paragraph 4(B) or ata different address if Borrower is given a notice of that different address.
9. OBLIGATIONS OF PERSONS UNDER THIS NOTE
{f rhore than one person signs this Note, each person is fully and personally obligated w'keep oll of the promises tmucde int this
Note, inéluding the promise 10 pay the ful] atnount owed. Any person who is a guarantor, sutety or endorser of this Note is also
obligated to do these things, Any person who takes over these obligations, including tho obligauions of @ glisranwur, surely or omorscr
of this Note, is also obligated keep all of the promises:made in this Note, Lendor may enforce its sights under this Note against euch
person individually or against all signatories togedser. Any one person signing this Note may be required to pay all.of the aroun
oxved under this Note:
RY SIGNING BELOW, Borrower accopis and agrees to the terms and covenants contained in this Note.
(Seal)
Borrower
(Seal)
“Borrower
Geaty
“Bosrower
{Sika Origénal Onky?
cor
mde
Wek ORY Outen Oe
F Shiod Fata NoteFL
2001R-F, (03/07) Page’? of 2 PHA Eloxida Fixed Rata Note - 1095 Amendad 1019PAY TO THE ORDER OF
BANK OF AMERICA, NA.
BY RECONTRUST COMPANY, R.A.
ASAT INEVIN-FACT
BY.
LAURIE MEDER
svP
Preview
Filing # 37138866 E-Filed 01/28/2016 02:45:38 PM IN THE CIRCUIT COURT OF THE 17™ JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA CASE NO: CACE-15-013633 BANK OF AMERICA, N.A., Plaintiff, VS. RUTH JOSEPH A/K/A JOSEPH RUTH, UNKNOWN SPOUSE OF RUTH JOSEPH A/K/A JOSEPH RUTH; HOUSING FINANCE AUTHORITY OF LEE COUNTY, FLORIDA; STATE OF FLORIDA, BROWARD COUNTY; BOARD OF COUNTY. COMMISSIONERS OF BROWARD COUNTY, FLORIDA; UNKNOWN TENANT #1; UNKNOWN TENANT #2, Defendants. / PLAINTIFF’S RESPONSE IN OPPOSITION TO. DEFENDANT’S MOTION TO DISMISS COMPLAINT COMES NOW, Plaintiff, BANK OF AMERICA, N.A. (“Plaintiff”), by and through its undersigned counsel, hereby files its Response in Opposition to Defendant’s, RUTH JOSEPH’s (“Defendant”), Motion to Dismiss, and in support thereof states as follows: I. Preliminary Statement Defendants filed their Motion to Dismiss (the “Motion”) on or about January 26, 2016, and in the same has submitted to this Court that the Complaint should be dismissed for the failing to allege the exact subsection of Section 673.3011 of the Florida Statutes Plaintiff is relying on and lack of standing. As further set forth below, this argument is completely without merit and do not present a grounds for dismissal. i. Motion to Dismiss Standard 04-076810-FOO *** FILED: BROWARD COUNTY, FL HOWARD FORMAN. CLERK 1/28/2016 2:45:38 PM.****The law in Florida is clear that a motion to dismiss, filed pursuant to Fla. R. Civ. P. 1.140(b) tests the legal sufficiency of the Plaintiff's Complaint to state a cause of action. McWhirter, Reeves, McGothlin, Davidson, Rief, and Bakas, P.A. v. Weiss, 704 So. 2d 214, 215 (Fla. 2d DCA 1998). The Trial court is restricted to review of the allegations within the four(4) corners of the Complaint. /d. The trial court must take the facts within the Complaint as trust without considering how the allegations will ultimately by proven. Troupe v. Redner, 652 So. 2d 394, 395 *(Fla. 2d DCA 1995). Ti. Plaintiff properly alleged standing and attached the necessary documents It appears that Defendant has filed her Motion without seemingly looking at the Complaint and the attachments thereto. First, Defendant alleges in paragraph 5 of her Motion that “Plaintiff alleges that it took ownership of the mortgage and note by assignment annexed to the Complaint as exhibit C.” There is no such allegation, nor attachment, present in the instant Complaint. This clearly indicates that Defendant filed her Motion for no other purpose but delay. Furthermore, Defendant’s allegation that Plaintiff failed to state what section of Florida Statute §673.3011 is completely false. Plaintiff states in Paragraph 4 of its Complaint that “Plaintiff is the holder of the Note.” Pursuant to Florida Statute §673.3011(1), the “holder of the instrument” is entitled to enforce the same. Failure to identify the owner is not relevant, as Plaintiffs standing is based on its status as holder of the note. Vidal v Liquidation Props Ine., 104 So. 3d 1274 (Fla. 4" DCA 2013) (holding that one who owns_or holds the note is entitled to foreclose on the mortgage). Moreover, it is clear from the Note attached to the Complaint that Plaintiff has standing and is the real party in interest. A copy of the Note is attached hereto as Exhibit 04-076810-FOO“A.” In order to obtain a judgment of foreclosure, Plaintiff must demonstrate that it has standing to foreclose. McLean v. JP Morgan Chase Bank, Nat'l Ass’n, 79. So. 3d 170, 173 (Fla. 4" DCA 2012). Standing is established at the time of filing of the complaint. Am. Home Mortg. Servicing, Inc. v. Bednarek (132 So. 3d 1222). Possession of the original promissory note, endorsed in blank, is sufficient to establish that Plaintiff is the lawful holder of the note, entitled to enforce its terms Riggs v Aurora 36 So. 3d 932 (Fla. 4" DCA 2010). Plaintiff, in this case, is not only the original lender, it is in possession of the original promissory note with a blank endorsements. It is clear in Florida that if the note or allonge reflects on its face that the endorsement occurred before the filing of the complaint, this is sufficient to establish standing. Id., (citing Taylor y. Bayview Loan Servicing, LLC, 74 So. 3d 115, at 1117-18 (Fla. 2nd DCA 2011)). Since the note attached to the Complaint contains the endorsement in blank, it is clear that the same occurred prior to the filing of the Complaint. Clay County Land Trust #08—04-25-0078-014-27 v. JPMorgan Chase Bank, N.A, 152 So. 3d 83 (Fla. 1st DCA 2014) (holding that the Note containing an undated endorsement in blank was sufficient to prove standing, since it was attached to the Complaint). As such, it is clear that Defendant’s Motion fails as a matter of law. IV. Conclusion In light of the foregoing, it is clear that Defendant’s Motion is without merit and should be denied in its entirety. Defendant should be ordered to file an Answer within ten (10) days and attorney’s fees awarded to the undersigned for having to file this opposition. All other grounds may be argued ore tenus 04-076810-F00WHEREFORE, Plaintiff prays that this Honorable Court will enter an Order denying Defendant’s Motion to Dismiss, award Plaintiff attorney’s fees and costs for having to defend a baseless Motion, and for such other relief that this Court deems just and proper. CERTIFICATE OF SERVICE J HEREBY CERTIFY that a true and correct copy of the foregoing was served by Electronic Mail pursuant to Rule 2.516, Fla. R. Jud. Admin, and/or by U.S. Mail to any other Matthéw Hearne, Esq. FRENKEL LAMBERT WEISS WEISMAN & GORDON, LLP One East Broward Blvd, Suite 1430 Fort Lauderdale, Florida 33301 Tel: (954) 522-3233 FL Bar #: 84251 DESIGNATED PRIMARY E-MAIL FOR SERVICE PURSUANT TO FLA. R. JUD. ADMIN 2.516 fleservi flwlaw.com 04-076810-FO0SERVICE LIST Case CACE-15-013633 OWEI Z. BELLEH, ESQ. BROWN & BELLEH, PLLC. ATTORNEY FOR RUTH JOSEPH A/K/A JOSEPH RUTH 1801 NE 123RD STREET SUITE 409 NORTH MIAMI, FL 33181 OWEI@BELLEHLAW.COM ESERVICE@BELLEHLAW.COM UNKNOWN SPOUSE OF RUTH JOSEPH A/K/A JOSEPH RUTH NKA ANDREW WIMBLEY 2900 ISLAND DRIVE. MIRAMAR, FL 33023 STATE OF FLORIDA, BROWARD COUNTY 2450 SHUMARD OAK BLVD. BUILDING 1, FLOOR 2 TALLAHASSEE, FL 32399 PHILIP L. BURNETT, P.A. ATTORNEY FOR DEFENDANT HOUSING FINANCE AUTHORITY OF LEE COUNTY, FLORIDA POST OFFICE BOX 2258 FT. MYERS, FL 33902 PHILBURNETT@EMBARQMAIL.COM OFFICE OF THE COUNTY ATTORNEY FOR BROWARD COUNTY ATTORNEY FOR BOARD OF COUNTY COMMISSIONERS OF BROWARD COUNTY, FLORIDA GOVERNMENTAL CENTER, SUITE 423 115 SOUTH ANDERWS AVENUE FORT LAUDERDALE, FL 33301 RTEITLER@BROWARD.ORG UNKNOWN TENANT(S) 2900 ISLAND DRIVE MIRAMAR, FL 33023 04-076810-F0OEXHIBIT “A”@ » NOTE a DOCUMENTARY STAKE AX 201.08 F.S, AND FLORIDA NONRECURRING INTANGIBLE TAX UNDER STATUTES. HK & Mi guur 2 : helt Seek 2900 ISLAND DRIVE, MIRAMAR, FL 33023 €" Property Adena} ‘y(t NOYE |S EXEMPT FROM /199, FS. RER 169.621 FLORID lL PARTHES “Borrower” micans cach péron signing at the end of this Note, tind the person's successors amd: assigus. “Lantter™ picatis RANK OF AMERICA, N.Ay and its successors and assigns. 2, BORROWER'S PROMISE TO PAY; INTEREST tn retur for a Joan reseived from Leader, Bomower promises to pay the principal sum of ar ONE. HUNDRED FORTY ‘FOUR THOUSAND TWO HUNDRED FORTY EIGH' 90/2100 Dallars (U.S.$144,248,00 —_), plus interest, to the order of Lender. Interest will be charged on unpaid principal, frm ure de of disbursement of the loan proceeds by Lender, at the rai of FOUR & 30/200 percent (1.300 %) per yeett uofil'the fuil arnount of pring pal has been paid. 3. PROMISE TO PAY SECURED ‘Borrower's prontive 10 pay is secured by @ mortgage, deed of trust or similar security insieument that is dated the same date ay this Note and called the "Secufity Insitusnent." The Security {nstrument protects the Lender from losses which tight reset, it Borrower defaults under this Note, 4, MANNER QF PAYMENT (A), ‘Time Borrower: shall’ make a payment of principal and interest to Lender on the first day of each’ month beyianing on SEPTEMBER-18T, 2013. Any principal and intecest vemaining on the Girst day of AUGUST, 2041 will he,due un that Gate, which is called the "Maturity Date.” 68) Place Payméat shall be wade at P.O. Box 680070, Dallas, TX 75265-0070 ‘or at stich place as Lender niay designate in writing by notice to Bortawer. (€), Amount Each monthly payment of priricipal and interest will be in the amount of U.S. $713.24 J This amoun wil be fart of a larger monthly payment required by she Security Insieunteni, that shall be applied (0 pringipal, interest sind otter tems inthe order déseribed in the Security Instrument: {D) Allonge to this Note for payment adjustments TE an allonge providing for payenent adjustments is executed by Borrower together with this Noté, the cavemunts of the stlonge sal) ho incorporated ja and shall amend and supplement tre covenants of this Note.as if the allonge were 2 put of this Note, {Check applizable box} (0) Gradvated Payment Allonge [7] Growing Equity Allonge C1 other fapecity] BORROWER'S RIGHT TO PREPAY Borrower has the right t0 pay the debt evidericed by this Note, in wiole or fn part, without charge of penalty, on the first day of any month, Lender shail acecpt prepayment on other. days provided that Borrower pays ‘nerest an the umount prepaid for the omaiinder of the. monih to the extent required by Lender and permitted by regulations of the Sceréiayy. If Borrower inakes,a partial prepayment, there will bono changes in the due-daie or in the amount of the monthly payment unless Lender agrees in writing to Urose changes. 6 BORROWER'S FAILURE TO PAY (A) Late Charge for Overdue Payments: Se Lender has not received the full monthly Payment required by the Seouity Instrument; os described én Paragraph a(C) of this ‘Noto, by the end of fifteen ealendar:days: after the payment. is due, Lender may collect i late charge in tho ionourlt af FOUR percent ( 4.000'%) of the overdue amount of each payment, (8) Defanté Hf Borrower defaults by failing to pay in fill any monthly payment, then Lender may; except as tinted by regulations at the: Sceretiry-in-the cose-of payment-Jefauils,- require immediate. payment in full-of the. principal balance. remaining, duc. avd all averued interest. Lender may choose not (o exercise this option without waiving its rights in the event of any subsequent imany circumstances regulations issued by the Secretary will limit Lender's rights to require immediate payment in full in the case of payment. defaults. This Note: docs not authorize acceleration wher not permitted by HUD regulations, As used in thik Note, ‘Sceruary” means the Sccrctary of Housing and Urbin Development or his or her designee F Fixed Rate Note-FL, 2001 FFL (0907)(89) Pege {of 2 FHA Florida Fixed Rate Nols « 10/95 “Amonded 10/03 dekall, byoc), © | (©) Payment of Casis and Expenses If Lender has-required immediate’ payment in. full, as described above; lender may. require Borrower to pay costs und expenses including reasouable and customary attorneys’ fees for enforcing this Note to the: extenl-not prohibited by apphcabic law. Such fees and costs shall bear interest [rom the date of disbursement at the samc rate as the principal of this Note. 7, WATVERS Rorower and any other person who has obligations under this Note waive the rights of prosemiment and notice of dishonoe: “Presonunént” means the right to require Lender to demand payment of anounts: due. “Notice of dishonor” means. ihe right lo require Lender fo give sotice to other persous that amounts duc have not been paid, 8. GIVING OF NOTICES Unless applicable law requires a different method, any notice that must be given to Bonoiwer under this Noit will be given by delivering it or by mailing it by first class mail to Borrower or.the property address above or at a differgnt address if Bocrower les, piven Lender a notice of Borrower's different address: Any notice that must be given to Lender under this Note.will be given by first class mail t Lender al the. address stated in Paragraph 4(B) or ata different address if Borrower is given a notice of that different address. 9. OBLIGATIONS OF PERSONS UNDER THIS NOTE {f rhore than one person signs this Note, each person is fully and personally obligated w'keep oll of the promises tmucde int this Note, inéluding the promise 10 pay the ful] atnount owed. Any person who is a guarantor, sutety or endorser of this Note is also obligated to do these things, Any person who takes over these obligations, including tho obligauions of @ glisranwur, surely or omorscr of this Note, is also obligated keep all of the promises:made in this Note, Lendor may enforce its sights under this Note against euch person individually or against all signatories togedser. Any one person signing this Note may be required to pay all.of the aroun oxved under this Note: RY SIGNING BELOW, Borrower accopis and agrees to the terms and covenants contained in this Note. (Seal) Borrower (Seal) “Borrower Geaty “Bosrower {Sika Origénal Onky? cor mde Wek ORY Outen Oe F Shiod Fata NoteFL 2001R-F, (03/07) Page’? of 2 PHA Eloxida Fixed Rata Note - 1095 Amendad 1019PAY TO THE ORDER OF BANK OF AMERICA, NA. BY RECONTRUST COMPANY, R.A. ASAT INEVIN-FACT BY. LAURIE MEDER svP