Preview
Filing # 26266505 E-Filed 04/20/2015 09:44:54 AM
IN THE SEVENTEENTH CIRCUIT COURT OF THE
SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA. CIVIL DIVISION
CASE NO. CACEI4-16662-11
UCN: 062014CA016662XXXXXX
DEUTSCHE BANK NATIONAL TRUST COMPANY,
AS TRUSTEE, IN TRUST FOR THE REGISTERED
HOLDERS OF MORGAN STANLEY ABS CAPITAL I
INC TRUST 2007-HE6, MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2007- HE6,
Plaintiff,
vs.
ALEJANDRA MAYORGA; MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC AS NOMINEE FOR
WMC MORTGAGE CORPORATION MIN NO.
100136300117713684; VISCONTI CONDOMINIUM
ASSOCIATION, INC.; CACH, LLC; PORTFOLIO
RECOVERY ASSOCIATES, LLC; PARADISE
CONSTRUCTION ENTERPRISES, INC.; UNKNOWN
TENANT NO. 1; UNKNOWN TENANT NO. 2; and ALL,
UNKNOWN PARTIES CLAIMING INTERESTS BY,
THROUGH, UNDER OR AGAINST A NAMED
DEFENDANT TO THIS ACTION, OR HAVING OR
CLAIMING TO HAVE ANY RIGHT, TITLE OR
INTEREST IN THE PROPERTY HEREIN DESCRIBED,
Defendants.
MOTION FOR
SUMMARY FINAL JUDGMENT AND ATTORNEY'S FEES AND COSTS
Plaintiff, DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE, IN
TRUST FOR THE REGISTERED HOLDERS OF MORGAN STANLEY ABS CAPITAL I INC TRUST
2007-HE6, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007- HE6 by and through its
undersigned counsel, moves this Court, pursuant to Florida Rule of Civil Procedure 1.510, to enter a
Summary Final Judgment against each of the Defendants in the above-styled action. There exists no
genuine issues as to any material fact and Plaintiff is entitled to judgment as a matter of law based on the
*** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 4/20/2015 9:44:53 AM.****pleadings and affidavits filed in this action.
1. FORECLOSURE: This is an action by the holder of a mortgage, DEUTSCHE BANK
NATIONAL TRUST COMPANY, AS TRUSTEE, IN TRUST FOR THE REGISTERED HOLDERS OF
MORGAN STANLEY ABS CAPITAL I INC TRUST 2007-HE6, MORTGAGE PASS-THROUGH
CERTIFICATES, SERJES 2007- HE6, to foreclose the mortgage on real property situated in Broward
County, Florida.
2. HOLDER OF NOTE: The Plaintiff holds the promissory note and mortgage.
3. DEERAULT: This has resulted in a default of the note and mortgage.
4, PROPERTY: The legal description of the subject property is set forth in the Lis Pendens.
5. SERVICE: All Defendants have been served with notice of this action.
6. LIEN: Plaintiff's mortgage constitutes a valid lien on the subject property and is superior
to any right, title, interest or claim of all Defendants and all persons or entities claiming by, through or under
them.
7. EVIDENCE: Plaintiff adopts and incorporates into this motion the affidavit of
indebtedness, Plaintiffs affidavit of attorneys fees and costs, affidavit of reasonableness of fees, the
mortgage,the promissory note. Plaintiff has attached a copy of the original note as Exhibit "A".
8. MEMORANDUM OF LAW: The substantial matiers of law upon which this motion is
based are as follows:
a. A mortgage is presumed to have been validly executed and delivered on
the date recited in the mortgage if the mortgage is proven of record and recorded according to the law.
Ailantic Land and Improvement Company v. Lee, 112 So, 549, 550 (Fla. 1927).
b. Where a note secured by a mortgage is transferred without any formal
assignment of the mortgage, the mortgage in equity passes as an incident to the debt, unless there is some
plain and clear agreement to the contrary. Johns v. Gillian, 184 So. 140 (Fla. 1938). "A mere delivery of
a note and mortgage, with intention to pass the title, upon a proper consideration, will vest the equitableinterest in the person to whom it is so delivered.” /d., at 143. “Because the lien follows the debt, there was
no requirement of attachment of a written and recorded assignment of the mortgage in order for the
appellant to maintain the foreclosure action." Chemical Residential Mortgage v. Rector, 742 So.2d. 300
(Fla. 1" DCA, 1998), rev. denied 727 So.2d 910 (1999). To foreclose upon a promissory note, the
plaintiff must be the "holder" in order to be the real party in interest. Troupe v. Redner, 652 Sold 394
(Fla 2d DCA 1995), citing Withers v. Sandlin, 36 Fla. 619, 18 So, 856 (1896); Laing v. Gainey Builders,
Inc., 184 So, 2d 897 (Fla Ist DCA 1966). The “holder, with respect to a negotiable instrument, means
the person in possession if the instrument is payable to bearer or, in the case of an instrument payable to an
identified person, if the identified person is in possession. § 671.201(20), Fla. Stat. (2002). "Bearer”
means the person in possession of an instrument, document of title, or certificated security payable to bearer
or indorsed in blank. § 671.201(5), Fla. Stat. (2002).
c. In the event a formal assignment is delivered to the Plaintiff, Florida Law
has established that the “effective date” is the date of transfer of interest in the mortgage as opposed to the
date the assignment document was executed. 1M Specialty Mortgage. LLC v. Salomon, 874 So2d. 680
(Fla 4" DCA 2004); Citing: Johns v Gillian, 184 So. 140, 143 (Fla 1938).
. The interest of the owner of record in the property described herein is
inferior and subordinate to the interest of the Plaintiff, the mortgagee. Jordan v. Sayre, 3 So. 329 (Fla.
1888).
e. The owner and holder of a valid recorded mortgage encumbering real
property has a lien superior in dignity and right to any subsequently recorded mortgage, claim or lien
attaching to the property through the mortgagors, their successors, assigns and tenants. Lee y. Slemons, 150
So. 792, 794 (Fla. 1933); Bullard v. Fender, 192 So. 167, 171 (Fla. 1939); County of Pinellas v.
Clearwater Federal Savings and Loan Association, 214 So.2d 525, 526 (Fla. 2d DCA 1968). Therefore,
the lien of Plaintiff's mortgage takes priority over the subsequently recorded claims or liens of the
Defendants in this action. United States v. First Federal Savings and Loan Association of St. Petersburg,
155 So.2d 192, 193 (Fla. 2d DCA 1963).£ As a matter of law the entire indebtedness secured by the mortgage held
by Plaintiff is due and collectible. Van Huss v. Prudential Insurance Company of America, 165 So. 896
(Fla. 1936); Baader v. Walker, 153 So.2d 51, 54 (Fla. 2d DCA 1963).
& As to any Defendant that is a Homeowners Association as defined
under Florida Statute §720.301, said Defendant’s interest is fully forecloseable as a matter of law. Florida
Statute §720.3085 does not prevent foreclosure of any past due assessment claims of a Defendant Home
Owners Association, as Plaintiff's rights are determined by the Homeowner’s Association’s Declaration of
Covenants, Florida Statute §720.3085, does not retroactively apply to mortgages or assessinents recorded
prior to its enactment. To the contrary the §720.3085(1) specifically states that the Association's
assessments are inferior to the Plaintiff. Any application of the statute to the contrary is unconstitutional.
Sarasota County v. Andrews, et al. 573 So.2d 113 (2" DCA, 1991);Silver Blue Lake Apartments, Inc. v.
Silver Blue Lake Home Owners Association, Inc.,245 So. 2d 609, 611 (Fla 1971); Palm Point Property
Owners’ Association of Charlotte County, Inc. v. Pisarski (626 So. 2d 195 (Fla 1993); Holly Lake
Association v. Federal National Mortgage Association, 660 So. 2d 266, 269 (Fla. 1995); Park Benziger
& Co., Inc, v. Southern Wine & Spirits, Inc. 391 So. 2d 68}, 683 (Fla. 1980); David v. Sun Federal
Savings & Loan Ass’n, 461 So. 2d 93 (Fla 1984); Metropolitan Dade County v. Chase Federal Housing
Corp., et al. 737 So. 2d 494, 500 (Fla 1999);
h. As to Defendants against whom a default has been entered, final judgment
may be entered by the Court at any time. Rule 1.500(e) Florida Rule of Civil Procedure.
i This court must enter a summary final judgment of foreclosure where
there exists no genuine issue as to any material fact; this Court may, however, reserve jurisdiction to
determine the amount and priority of the claims. Mack Industries, Inc. v. Donald W. Nelson, Inc., 134
So.2d 821 (Fla. 2d DCA 1961).
j. Where the note and mortgage so provide, a mortgagee is entitled to
recover costs, a reasonable fee for its attorneys in the prosecution of a foreclosure action, and any sums
advanced to prevent the impairment of its security. American Securities Co. v. Goldsberry, 67 So. 862,866 (Fla. 1915).
9. ENTITLEMENT TO JUDGMENT: Plaintiff is entitled to recover its principal, interest,
late charges, costs, attorneys’ fees, and other expenses, all of which are more fully set forth in the affidavits
attached hereto.
Plaintiff is entitled to recover its principal, interest, late charges, costs, and other expenses, all of
which are more fully set forth in the affidavits attached hereto.
10. NO ISSUE OF LAW OR FACTS: The pleadings of file, together with the affidavits
attached hereto, demonstrate that there is no dispute as to any material fact. Accordingly, Plaintiff is
entitled to Summary Final Judgment as a matter of law.
WHEREFORE, the Plaintiff respectfully requests that this Court enter Summary Final
Judgment in its favor as to the total amount sought in its Complaint , grant Plaintiffs motion for attorney's
fees and costs and such other and further relief as this Court deems just, including the issuance of writs of
possession against any parties that may be in possession of the property note and mortgage.
1 HEREBY CERTIFY that copies of the foregoing Motion for Summary Final Judgment,
together with Affidavits referred to herein, have been mailed to the parties on the attached Service List this I
aay of ul ,2015.
SHD Legal Group P.A.
Attorneys for Plaintiff
PO BOX 11438
Fort Lauderdale, FL 33339-1438
Telephone: (954) 564-0071
Facsimile: (954) 564-9252
Service E-mail: answers@shdlegalgroup.com
7
By: :
Yashmin F Chen-Alexis
Florida Bar No, <8
/
1162-143268
SAH.EXHIBIT “A”ADJUSTABLE RAY
(6-Month LIBOR Index - Rate Caps)
(First Business Day of Preceding Month Lookback)
MAYORGA
— oan #.
iam ies
‘THIS NOTE CONTAINS PROVISIONS ALLOWING FOR CHANGES IN MY INTEREST RATE
AND MY MONTHLY PAYMENT. THIS NOTE LIMITS THE AMOUNT MY INTEREST RATE
CAN CHANGE AT ANY ONE TIME AND THE MAXIMUM RATE I MUST PAY.
November 21, 2006 WESTON Florida
[Date] (City) [State]
9288 WEST ATLANTIC BOULVARD 1112 CORAL SPRINGS, FI. 33071
[Property Address]
1, BORROWER'S PROMISE TO PAY
In retumn for a Joan that I have received, I promise to pay U.S. $ 168,000.00 (this amount is
called “Principal”), plus interest, to the order of the Lender. The Lender is WMC MORTGAGE CORP.
Iwill make all
payments under this Note in the form of cash, check or money order.
Tunderstand that the Lender may transfer this Note. The Lender or anyone who takes this Note by transfer
and who is entitled to receive payments under this Note is called the “Note Holder.”
2. INTEREST
Interest will be charged on unpaid principal until the full amount of Principal has been paid. I will pay
——titeresrara yearly rite ot —8-625-—— %-- The interest rane Twill pay will change itr accordance witht Section
of this Note.
‘The interest rate required by this Section 2 and Section 4 of this Note is the rate I will pay both before and
afier any default described in Section 7(B) of this Note.
3, PAYMENTS fs
(A) Time and Place of Payments
I will pay principal and interest by making payment every month.
I will make my monthly payment onthe 1st day of each month beginningon January 1,
2007 . I will make these payments every month until I have paid all of the principal and interest and any other
charges described below that I may owe under this Note. Bach monthly payment will be applied as of its scheduled
duc date and will be applied to interest before Principal If,on December 1, 2036 +I still owe
amounts under this Note, will pay those amounts in full on that date, which is called the “Maturity Date.”
I will make my monthly payments at 4828 Loop Central Drive, Houston, TX
77081-2226 or at a different place if
required by the Note Holder.
(B) Amount of My Initial Monthly Payments
Each of my initial monthly payments will be in the amount of US. $ 1,224.16 . This amouat
may change.
(C) Monthly Payment Changes
Changes in my monthly payment will reflect changes in the unpaid principal of my loan and in the interest
rate that I must pay. The Note Holder will detennine my new interest rate and the changed amount of my monthly
payment in accordance with Section 4 of this Note.
4, INTEREST RATE AND MONTHLY PAYMENT CHANGES
(A) Change Dates
The interest rate I will pay may change on the first day of December, 2008 , and may change on that
day every 6th — month thereafter. Each date on which my interest rate could change is called a “Change Date.”
(B) The Index
Beginning with the first Change Date, my interest rate will be based on an Index. The “Index” is the six
month London Interbank Offered Rate (“LIBOR”) which is the average of interbank offered rates for six-month
US. dollar-denominated deposits in the London market, as published in The Wall Street Journal. The most recent
FLORIDA ADJUSTABLE RATE NOTE - 6-month LIBOR Index (First Business Day Lookhack) ~ Single Family ~
Page | of +
pogun st
Bocesini.vsx 0z/0u/z006
EU BRASS RY BS A
(INU aa a=. available as of the first business day of the month immediately preceding the month in which the
Change Date occurs is called the “Current Index.”
If the Index is no longer available, the Note Holder will choose a new index which is based upon comparable
information. The Note Holder will give me notice of this choice. |
(©) Calculation of Changes :
Before each Change Date, the Note Holder will calculate my new interest rate by adding
* six and Two Tenths percentage point(s)( 6.200 %)
to the Current Index. The Note Holder will then round the result of this addition to the nearest one-cighth of one
~ percentage point (0.125%). Subject to the limits stated in Section 4(D) below, this rounded amount will be my new
interest rate until the next Change Date. :
‘The Note Holder will then determine the amount of the monthly payment that would be sufficient to repay
the unpaid principal that I am expected to owe at the Change Date in full on a date thal is 20 years after the
Maturity Date (such date being referred to herein as the “Amortization Date”) at my new interest rate in
substantially equal payments. The result of this calculation will be the new amount of my monthly payment. T
understand that as a result of the Amortization Date being after the Maturity Date, I will have a balloon payment on
the Maturity Date.
©) Limits on Interest Rate Changes
‘The interest rate I am required to pay at the first Change Date will not be greater than 11.625. % or
Jess than 8,625 %. Thereafter, my interest rate will never be increased or decreased on any single Change
Date by more than One
percentage point(s) ( 1.000 ‘%) from the rate of interest I have been paying for the preceding 6 months. 7
My interest rate will never be greater than 15.125 %,orlessthan 8.625 %. L
G) Effective Date of Changes
My new interest rate will become effective on cach Change Date. I will pay the amount of my new |
monthly payment. beginning-on-the-first-monthly_payment-date_after-the-Change-Date-until_the-amount-of amy —————.
monthly payment changes again.
) Notice of Changes
‘The Note Holder will deliver or mail to me a notice of any changes in my interest rate and the amount of
my monthly payment before the effective date of any change. The notice will include information required by law
to be given to me and also the title and telephone number of a person who will answer any question I may have i
regarding the notice, :
5. BORROWER’S RIGHT TO PREPAY |
Thave the right to make payments of Principal at any time before they ate due. A payment of Principal i
only is known as a “Prepayment” When I make a Prepayment, I will tell the Note Holder in writing that | am doing i
so. I may not designate a payment as a Prepayment if I have not made all the monthly payments due under the Note.
I may make a full Prepayment or partial Prepayments without paying a Prepayment charge. The Note
Holder will use my Prepayments to reduce the amount of Principal that I owe under this Note. However, the Note
‘Holder may apply my Prepayment to the accrued and unpaid interest on the Prepayment amount before applying my
Prepayment to reduce the Principal amount of the Note. If] make a partial Prepayment, there will be no changes in
the due dates of my monthly payment unless the Note Holder agrees in writing to those changes. My partial
Prepayment may reduce the amount of my monthly payments after the first Chatige Date following my partial
Prepayment. However, any reduction due to my partial Prepayment may be offset by an interest rate increase.
6 LOAN CHARGES
Ifa Jaw, which applies to this loan and which sets maximum loan charges, is finally interpreted so that the i
interest or other loan charges collected or to be collected in connection with this loan exceed the permitted limits,
then: (a) any such loan charge shall be reduced by the amount necessary to reduce the charge to the permitted limit,
and (b) any sums already collected from me which exceeded permitted limits will be refunded to me. The Note
Holder may choose to make this refund by reducing the Principal | owe under this Note or by making a direct
payment to me. Ifa refund reduces Principal, the reduction will be treated as a partial Prepayment.
7. BORROWER'S FAILURE TO PAY AS REQUIRED
(A) Late Charges for Overdue Payments
If the Note Holder has not received the full amount of any monthly payment by the end of 15 calendar
days after the date it is due, I will pay a late charge to the Note Holder. The amount of the charge willbe 5.000 %
FLORIDA ADJUSTABLE RATE NOTE ~ 6-month LIGOR Index (First Business Day Lookback) ~ Single Family ~
Page 2 of 4
Aa RTL Pc a I
AM
pocuiEs
Bocortee wx 05/23/2006.... payment of principal and interest. I will pay this late charge >on once on. each late
payment. |
®) Default
If do not pay the full amount of each monthly payment on the date it is due, I will be in default,
(C) Notice of Default
If 1 am in default, the Note Holder may send me a written notice telling me that if I do not pay the overdue
amount by a certain date, the Note Holder may require me to pay immediately the full amount of Principal which
has not been paid and all the interest that [ owe on that amount. That date must be at least 30 days after the date on
which the notice is mailed to me or delivered by other means. J
(@) No Waiver by Note Holder : !
Even if, at a time when I am in default, the Note Holder does not require me to pay immediately in fall as.
desoribed above, the Note Holder will still have the right to do so if I am in default at a later time.
(&) Payment of Note Holder’s Costs and Expenses
If the Note Holder has required me to pay immediately in full as described above, the Note Holder will
have the right to be paid back by me for all of its costs and expenses in enforcing this Note to the extent not
prohibited by applicable law. Those expenses include, for example, reasonable attomeys’ fees.
8. GIVING OF NOTICES |
Unless applicable law requires a different method, any notice that must be given to me under this Note will
be given by delivering it or by mailing it by first class mail to me at the Property Address above or at a different
address if I give the Note Holder a notice of my different address.
Any notice that must be given to the Note Holder under this Note will be given by delivering it or by
mailing it by first class mail to the Note Holder at the address stated in Section 3(A) above or at a different address if
Jam given a notice of that different address.
9, OBLIGATIONS OF PERSONS UNDER THIS NOTE
£- more-than-one-person-signs-this-Note,-cach person_is-fully-and personally obligated to keep all of-the —__!
promises made in this Note, including the promise to pay the full amount owed. Any person who is a guarantor,
surety or endorser of this Note is also obligated to do these things. Any person who takes over these obligations,
including the obligations of a guarantor, surety or endorser of this Note, is also obligated to keep all of the promises
made in this Note, The Note Holder may enforce its rights under this Note against each person individually or
against all of us together. This means that any one of us may be required to pay all of the amounts owed under this
Note.
10. WAIVERS
Land any other person who has obligations under this Note waive the rights of Presentment and Notice of
Dishonor. “Presentment” means the right to require the Note Holder to demand payment of amounts due. “Notice
of Dishonor” means the right to require the Note Holder to give notice to other persons that amounts due have not
been paid.
11. UNIFORM SECURED NOTE.
This Note is a uniform instrument with limited variations in some jurisdictions. In addition to the
protections given to the Note Holder under this Note, a Mortgage, Deed of Trust, or Security Deed (the “Security
Instrument”), dated the same date as this Note, protects the Note Holder from possible losses which might result if I I
do not keep the promises which I make in this Note. That Security Instrument describes how and under what
conditions I may be required to make immediate payment in full of all amounts | owe under this Note. Some of
those conditions are described as follows:
Transfer of the Property or a Beneficial Interest in Borrower. As used in this Section 18, “Interest
in the Property” means any legal or beneficial interest in the Property, including, but not limited to, those
beneficial interests transferred in a bond for deed, contract for decd, installment sales contract or escrow
agreement, the intent of which is the transfer of title by Borrower at a future date to a purchaser,
Tf all or any part of the Property or any Interest in the Property is sold or transferred (or if Borrower is
not a natural person and a beneficial interest in Borrower is sold or transferred) without Lender’s prior
written consent, Lender may require immediate payment in full of all sums secured by this Security
Instrument. However, this option shall not be exercised by Lender if such exercise is prohibited by
Applicable Law. ;
If Lender exercises the option to require immediate payment in full, Lender shall give Borrower notice
of acceleration. The notice shall provide a period of not less than 30 days from the date the notice is given
FLORIDA ADJUSTABLE RATE NOTE ~ 6-month LIBOR Index (First Business Day Lookback) ~ Single Family —
Page 3 of 4
SUL GRRL Be RLY le x
DESH wee 02/00/2006Mm accordance with Section 15 within which Borrower must pay all sums — this Security
Instrument, If Borrower fails to pay these sums prior to tho expiration of this period, Lender may invoke
any remedies permitted by this Security Instrument without further notice or demand on Borrower.
12. DOCUMENTARY TAX
‘The state documentary tax due on this Note has been paid on the mortgage securing this indebtedness.
WITNESS THE HAND(S) AND SEAL(S) OF THE UNDERSIGNED.
Ale lan bw eld On. ut )>i|oe
= Borrower — ALEJANDRA MAYORGA - Daile
[Sign Original Only}
FLORIDA ADJUSTABLE RATE NOTE - 6-month LIBOR Index (First Business Day Lookback) ~ Single Family —
pocusts Page of ¢
Suasaaaaaaaas UU REGSERVICE LIST
Case No. CACE1]4-16662-11
UCN: 062014CA016662XXXXXX
DENISE M BLACK WELL-PINEDA, ESQ |
Attorney For VISCONTI CONDOMINIUM ASSOCIATION, INC. fr
2915 BISCAYNE BLVD, STE 300 H
MIAMI, FL 33137 |
Email Address: denise@rzllaw.com i
MERS :
C. T. Corporation i
1200 South Pine Island Road
Plantation, FL 33324 |
{
CACH, LLC |
C. T. Corporation |
1200 South Pine Island Road |
Plantation, FL 33324 |
|
i
PORTFOLIO RECOVERY ASSOCIATES, LLC i
CORPORATION SERVICE COMPANY i
1201 HAYES STREET
TALLAHASSEE, FL 32301
PARADISE CONSTRUCTION ENTERPRISES, INC
DOVE FURER
7910 HIBISCUS CIRCLE
TAMARAC, FL 33321 |
|
|
{
ALEJANDRA MAYORGA
9288 W Atlantic Blvd Apt 1112
CORAL SPGS, FL 33071
Preview
Filing # 26266505 E-Filed 04/20/2015 09:44:54 AM IN THE SEVENTEENTH CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA. CIVIL DIVISION CASE NO. CACEI4-16662-11 UCN: 062014CA016662XXXXXX DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE, IN TRUST FOR THE REGISTERED HOLDERS OF MORGAN STANLEY ABS CAPITAL I INC TRUST 2007-HE6, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007- HE6, Plaintiff, vs. ALEJANDRA MAYORGA; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC AS NOMINEE FOR WMC MORTGAGE CORPORATION MIN NO. 100136300117713684; VISCONTI CONDOMINIUM ASSOCIATION, INC.; CACH, LLC; PORTFOLIO RECOVERY ASSOCIATES, LLC; PARADISE CONSTRUCTION ENTERPRISES, INC.; UNKNOWN TENANT NO. 1; UNKNOWN TENANT NO. 2; and ALL, UNKNOWN PARTIES CLAIMING INTERESTS BY, THROUGH, UNDER OR AGAINST A NAMED DEFENDANT TO THIS ACTION, OR HAVING OR CLAIMING TO HAVE ANY RIGHT, TITLE OR INTEREST IN THE PROPERTY HEREIN DESCRIBED, Defendants. MOTION FOR SUMMARY FINAL JUDGMENT AND ATTORNEY'S FEES AND COSTS Plaintiff, DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE, IN TRUST FOR THE REGISTERED HOLDERS OF MORGAN STANLEY ABS CAPITAL I INC TRUST 2007-HE6, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007- HE6 by and through its undersigned counsel, moves this Court, pursuant to Florida Rule of Civil Procedure 1.510, to enter a Summary Final Judgment against each of the Defendants in the above-styled action. There exists no genuine issues as to any material fact and Plaintiff is entitled to judgment as a matter of law based on the *** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 4/20/2015 9:44:53 AM.****pleadings and affidavits filed in this action. 1. FORECLOSURE: This is an action by the holder of a mortgage, DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE, IN TRUST FOR THE REGISTERED HOLDERS OF MORGAN STANLEY ABS CAPITAL I INC TRUST 2007-HE6, MORTGAGE PASS-THROUGH CERTIFICATES, SERJES 2007- HE6, to foreclose the mortgage on real property situated in Broward County, Florida. 2. HOLDER OF NOTE: The Plaintiff holds the promissory note and mortgage. 3. DEERAULT: This has resulted in a default of the note and mortgage. 4, PROPERTY: The legal description of the subject property is set forth in the Lis Pendens. 5. SERVICE: All Defendants have been served with notice of this action. 6. LIEN: Plaintiff's mortgage constitutes a valid lien on the subject property and is superior to any right, title, interest or claim of all Defendants and all persons or entities claiming by, through or under them. 7. EVIDENCE: Plaintiff adopts and incorporates into this motion the affidavit of indebtedness, Plaintiffs affidavit of attorneys fees and costs, affidavit of reasonableness of fees, the mortgage,the promissory note. Plaintiff has attached a copy of the original note as Exhibit "A". 8. MEMORANDUM OF LAW: The substantial matiers of law upon which this motion is based are as follows: a. A mortgage is presumed to have been validly executed and delivered on the date recited in the mortgage if the mortgage is proven of record and recorded according to the law. Ailantic Land and Improvement Company v. Lee, 112 So, 549, 550 (Fla. 1927). b. Where a note secured by a mortgage is transferred without any formal assignment of the mortgage, the mortgage in equity passes as an incident to the debt, unless there is some plain and clear agreement to the contrary. Johns v. Gillian, 184 So. 140 (Fla. 1938). "A mere delivery of a note and mortgage, with intention to pass the title, upon a proper consideration, will vest the equitableinterest in the person to whom it is so delivered.” /d., at 143. “Because the lien follows the debt, there was no requirement of attachment of a written and recorded assignment of the mortgage in order for the appellant to maintain the foreclosure action." Chemical Residential Mortgage v. Rector, 742 So.2d. 300 (Fla. 1" DCA, 1998), rev. denied 727 So.2d 910 (1999). To foreclose upon a promissory note, the plaintiff must be the "holder" in order to be the real party in interest. Troupe v. Redner, 652 Sold 394 (Fla 2d DCA 1995), citing Withers v. Sandlin, 36 Fla. 619, 18 So, 856 (1896); Laing v. Gainey Builders, Inc., 184 So, 2d 897 (Fla Ist DCA 1966). The “holder, with respect to a negotiable instrument, means the person in possession if the instrument is payable to bearer or, in the case of an instrument payable to an identified person, if the identified person is in possession. § 671.201(20), Fla. Stat. (2002). "Bearer” means the person in possession of an instrument, document of title, or certificated security payable to bearer or indorsed in blank. § 671.201(5), Fla. Stat. (2002). c. In the event a formal assignment is delivered to the Plaintiff, Florida Law has established that the “effective date” is the date of transfer of interest in the mortgage as opposed to the date the assignment document was executed. 1M Specialty Mortgage. LLC v. Salomon, 874 So2d. 680 (Fla 4" DCA 2004); Citing: Johns v Gillian, 184 So. 140, 143 (Fla 1938). . The interest of the owner of record in the property described herein is inferior and subordinate to the interest of the Plaintiff, the mortgagee. Jordan v. Sayre, 3 So. 329 (Fla. 1888). e. The owner and holder of a valid recorded mortgage encumbering real property has a lien superior in dignity and right to any subsequently recorded mortgage, claim or lien attaching to the property through the mortgagors, their successors, assigns and tenants. Lee y. Slemons, 150 So. 792, 794 (Fla. 1933); Bullard v. Fender, 192 So. 167, 171 (Fla. 1939); County of Pinellas v. Clearwater Federal Savings and Loan Association, 214 So.2d 525, 526 (Fla. 2d DCA 1968). Therefore, the lien of Plaintiff's mortgage takes priority over the subsequently recorded claims or liens of the Defendants in this action. United States v. First Federal Savings and Loan Association of St. Petersburg, 155 So.2d 192, 193 (Fla. 2d DCA 1963).£ As a matter of law the entire indebtedness secured by the mortgage held by Plaintiff is due and collectible. Van Huss v. Prudential Insurance Company of America, 165 So. 896 (Fla. 1936); Baader v. Walker, 153 So.2d 51, 54 (Fla. 2d DCA 1963). & As to any Defendant that is a Homeowners Association as defined under Florida Statute §720.301, said Defendant’s interest is fully forecloseable as a matter of law. Florida Statute §720.3085 does not prevent foreclosure of any past due assessment claims of a Defendant Home Owners Association, as Plaintiff's rights are determined by the Homeowner’s Association’s Declaration of Covenants, Florida Statute §720.3085, does not retroactively apply to mortgages or assessinents recorded prior to its enactment. To the contrary the §720.3085(1) specifically states that the Association's assessments are inferior to the Plaintiff. Any application of the statute to the contrary is unconstitutional. Sarasota County v. Andrews, et al. 573 So.2d 113 (2" DCA, 1991);Silver Blue Lake Apartments, Inc. v. Silver Blue Lake Home Owners Association, Inc.,245 So. 2d 609, 611 (Fla 1971); Palm Point Property Owners’ Association of Charlotte County, Inc. v. Pisarski (626 So. 2d 195 (Fla 1993); Holly Lake Association v. Federal National Mortgage Association, 660 So. 2d 266, 269 (Fla. 1995); Park Benziger & Co., Inc, v. Southern Wine & Spirits, Inc. 391 So. 2d 68}, 683 (Fla. 1980); David v. Sun Federal Savings & Loan Ass’n, 461 So. 2d 93 (Fla 1984); Metropolitan Dade County v. Chase Federal Housing Corp., et al. 737 So. 2d 494, 500 (Fla 1999); h. As to Defendants against whom a default has been entered, final judgment may be entered by the Court at any time. Rule 1.500(e) Florida Rule of Civil Procedure. i This court must enter a summary final judgment of foreclosure where there exists no genuine issue as to any material fact; this Court may, however, reserve jurisdiction to determine the amount and priority of the claims. Mack Industries, Inc. v. Donald W. Nelson, Inc., 134 So.2d 821 (Fla. 2d DCA 1961). j. Where the note and mortgage so provide, a mortgagee is entitled to recover costs, a reasonable fee for its attorneys in the prosecution of a foreclosure action, and any sums advanced to prevent the impairment of its security. American Securities Co. v. Goldsberry, 67 So. 862,866 (Fla. 1915). 9. ENTITLEMENT TO JUDGMENT: Plaintiff is entitled to recover its principal, interest, late charges, costs, attorneys’ fees, and other expenses, all of which are more fully set forth in the affidavits attached hereto. Plaintiff is entitled to recover its principal, interest, late charges, costs, and other expenses, all of which are more fully set forth in the affidavits attached hereto. 10. NO ISSUE OF LAW OR FACTS: The pleadings of file, together with the affidavits attached hereto, demonstrate that there is no dispute as to any material fact. Accordingly, Plaintiff is entitled to Summary Final Judgment as a matter of law. WHEREFORE, the Plaintiff respectfully requests that this Court enter Summary Final Judgment in its favor as to the total amount sought in its Complaint , grant Plaintiffs motion for attorney's fees and costs and such other and further relief as this Court deems just, including the issuance of writs of possession against any parties that may be in possession of the property note and mortgage. 1 HEREBY CERTIFY that copies of the foregoing Motion for Summary Final Judgment, together with Affidavits referred to herein, have been mailed to the parties on the attached Service List this I aay of ul ,2015. SHD Legal Group P.A. Attorneys for Plaintiff PO BOX 11438 Fort Lauderdale, FL 33339-1438 Telephone: (954) 564-0071 Facsimile: (954) 564-9252 Service E-mail: answers@shdlegalgroup.com 7 By: : Yashmin F Chen-Alexis Florida Bar No, <8 / 1162-143268 SAH.EXHIBIT “A”ADJUSTABLE RAY (6-Month LIBOR Index - Rate Caps) (First Business Day of Preceding Month Lookback) MAYORGA — oan #. iam ies ‘THIS NOTE CONTAINS PROVISIONS ALLOWING FOR CHANGES IN MY INTEREST RATE AND MY MONTHLY PAYMENT. THIS NOTE LIMITS THE AMOUNT MY INTEREST RATE CAN CHANGE AT ANY ONE TIME AND THE MAXIMUM RATE I MUST PAY. November 21, 2006 WESTON Florida [Date] (City) [State] 9288 WEST ATLANTIC BOULVARD 1112 CORAL SPRINGS, FI. 33071 [Property Address] 1, BORROWER'S PROMISE TO PAY In retumn for a Joan that I have received, I promise to pay U.S. $ 168,000.00 (this amount is called “Principal”), plus interest, to the order of the Lender. The Lender is WMC MORTGAGE CORP. Iwill make all payments under this Note in the form of cash, check or money order. Tunderstand that the Lender may transfer this Note. The Lender or anyone who takes this Note by transfer and who is entitled to receive payments under this Note is called the “Note Holder.” 2. INTEREST Interest will be charged on unpaid principal until the full amount of Principal has been paid. I will pay ——titeresrara yearly rite ot —8-625-—— %-- The interest rane Twill pay will change itr accordance witht Section of this Note. ‘The interest rate required by this Section 2 and Section 4 of this Note is the rate I will pay both before and afier any default described in Section 7(B) of this Note. 3, PAYMENTS fs (A) Time and Place of Payments I will pay principal and interest by making payment every month. I will make my monthly payment onthe 1st day of each month beginningon January 1, 2007 . I will make these payments every month until I have paid all of the principal and interest and any other charges described below that I may owe under this Note. Bach monthly payment will be applied as of its scheduled duc date and will be applied to interest before Principal If,on December 1, 2036 +I still owe amounts under this Note, will pay those amounts in full on that date, which is called the “Maturity Date.” I will make my monthly payments at 4828 Loop Central Drive, Houston, TX 77081-2226 or at a different place if required by the Note Holder. (B) Amount of My Initial Monthly Payments Each of my initial monthly payments will be in the amount of US. $ 1,224.16 . This amouat may change. (C) Monthly Payment Changes Changes in my monthly payment will reflect changes in the unpaid principal of my loan and in the interest rate that I must pay. The Note Holder will detennine my new interest rate and the changed amount of my monthly payment in accordance with Section 4 of this Note. 4, INTEREST RATE AND MONTHLY PAYMENT CHANGES (A) Change Dates The interest rate I will pay may change on the first day of December, 2008 , and may change on that day every 6th — month thereafter. Each date on which my interest rate could change is called a “Change Date.” (B) The Index Beginning with the first Change Date, my interest rate will be based on an Index. The “Index” is the six month London Interbank Offered Rate (“LIBOR”) which is the average of interbank offered rates for six-month US. dollar-denominated deposits in the London market, as published in The Wall Street Journal. The most recent FLORIDA ADJUSTABLE RATE NOTE - 6-month LIBOR Index (First Business Day Lookhack) ~ Single Family ~ Page | of + pogun st Bocesini.vsx 0z/0u/z006 EU BRASS RY BS A (INU aa a=. available as of the first business day of the month immediately preceding the month in which the Change Date occurs is called the “Current Index.” If the Index is no longer available, the Note Holder will choose a new index which is based upon comparable information. The Note Holder will give me notice of this choice. | (©) Calculation of Changes : Before each Change Date, the Note Holder will calculate my new interest rate by adding * six and Two Tenths percentage point(s)( 6.200 %) to the Current Index. The Note Holder will then round the result of this addition to the nearest one-cighth of one ~ percentage point (0.125%). Subject to the limits stated in Section 4(D) below, this rounded amount will be my new interest rate until the next Change Date. : ‘The Note Holder will then determine the amount of the monthly payment that would be sufficient to repay the unpaid principal that I am expected to owe at the Change Date in full on a date thal is 20 years after the Maturity Date (such date being referred to herein as the “Amortization Date”) at my new interest rate in substantially equal payments. The result of this calculation will be the new amount of my monthly payment. T understand that as a result of the Amortization Date being after the Maturity Date, I will have a balloon payment on the Maturity Date. ©) Limits on Interest Rate Changes ‘The interest rate I am required to pay at the first Change Date will not be greater than 11.625. % or Jess than 8,625 %. Thereafter, my interest rate will never be increased or decreased on any single Change Date by more than One percentage point(s) ( 1.000 ‘%) from the rate of interest I have been paying for the preceding 6 months. 7 My interest rate will never be greater than 15.125 %,orlessthan 8.625 %. L G) Effective Date of Changes My new interest rate will become effective on cach Change Date. I will pay the amount of my new | monthly payment. beginning-on-the-first-monthly_payment-date_after-the-Change-Date-until_the-amount-of amy —————. monthly payment changes again. ) Notice of Changes ‘The Note Holder will deliver or mail to me a notice of any changes in my interest rate and the amount of my monthly payment before the effective date of any change. The notice will include information required by law to be given to me and also the title and telephone number of a person who will answer any question I may have i regarding the notice, : 5. BORROWER’S RIGHT TO PREPAY | Thave the right to make payments of Principal at any time before they ate due. A payment of Principal i only is known as a “Prepayment” When I make a Prepayment, I will tell the Note Holder in writing that | am doing i so. I may not designate a payment as a Prepayment if I have not made all the monthly payments due under the Note. I may make a full Prepayment or partial Prepayments without paying a Prepayment charge. The Note Holder will use my Prepayments to reduce the amount of Principal that I owe under this Note. However, the Note ‘Holder may apply my Prepayment to the accrued and unpaid interest on the Prepayment amount before applying my Prepayment to reduce the Principal amount of the Note. If] make a partial Prepayment, there will be no changes in the due dates of my monthly payment unless the Note Holder agrees in writing to those changes. My partial Prepayment may reduce the amount of my monthly payments after the first Chatige Date following my partial Prepayment. However, any reduction due to my partial Prepayment may be offset by an interest rate increase. 6 LOAN CHARGES Ifa Jaw, which applies to this loan and which sets maximum loan charges, is finally interpreted so that the i interest or other loan charges collected or to be collected in connection with this loan exceed the permitted limits, then: (a) any such loan charge shall be reduced by the amount necessary to reduce the charge to the permitted limit, and (b) any sums already collected from me which exceeded permitted limits will be refunded to me. The Note Holder may choose to make this refund by reducing the Principal | owe under this Note or by making a direct payment to me. Ifa refund reduces Principal, the reduction will be treated as a partial Prepayment. 7. BORROWER'S FAILURE TO PAY AS REQUIRED (A) Late Charges for Overdue Payments If the Note Holder has not received the full amount of any monthly payment by the end of 15 calendar days after the date it is due, I will pay a late charge to the Note Holder. The amount of the charge willbe 5.000 % FLORIDA ADJUSTABLE RATE NOTE ~ 6-month LIGOR Index (First Business Day Lookback) ~ Single Family ~ Page 2 of 4 Aa RTL Pc a I AM pocuiEs Bocortee wx 05/23/2006.... payment of principal and interest. I will pay this late charge >on once on. each late payment. | ®) Default If do not pay the full amount of each monthly payment on the date it is due, I will be in default, (C) Notice of Default If 1 am in default, the Note Holder may send me a written notice telling me that if I do not pay the overdue amount by a certain date, the Note Holder may require me to pay immediately the full amount of Principal which has not been paid and all the interest that [ owe on that amount. That date must be at least 30 days after the date on which the notice is mailed to me or delivered by other means. J (@) No Waiver by Note Holder : ! Even if, at a time when I am in default, the Note Holder does not require me to pay immediately in fall as. desoribed above, the Note Holder will still have the right to do so if I am in default at a later time. (&) Payment of Note Holder’s Costs and Expenses If the Note Holder has required me to pay immediately in full as described above, the Note Holder will have the right to be paid back by me for all of its costs and expenses in enforcing this Note to the extent not prohibited by applicable law. Those expenses include, for example, reasonable attomeys’ fees. 8. GIVING OF NOTICES | Unless applicable law requires a different method, any notice that must be given to me under this Note will be given by delivering it or by mailing it by first class mail to me at the Property Address above or at a different address if I give the Note Holder a notice of my different address. Any notice that must be given to the Note Holder under this Note will be given by delivering it or by mailing it by first class mail to the Note Holder at the address stated in Section 3(A) above or at a different address if Jam given a notice of that different address. 9, OBLIGATIONS OF PERSONS UNDER THIS NOTE £- more-than-one-person-signs-this-Note,-cach person_is-fully-and personally obligated to keep all of-the —__! promises made in this Note, including the promise to pay the full amount owed. Any person who is a guarantor, surety or endorser of this Note is also obligated to do these things. Any person who takes over these obligations, including the obligations of a guarantor, surety or endorser of this Note, is also obligated to keep all of the promises made in this Note, The Note Holder may enforce its rights under this Note against each person individually or against all of us together. This means that any one of us may be required to pay all of the amounts owed under this Note. 10. WAIVERS Land any other person who has obligations under this Note waive the rights of Presentment and Notice of Dishonor. “Presentment” means the right to require the Note Holder to demand payment of amounts due. “Notice of Dishonor” means the right to require the Note Holder to give notice to other persons that amounts due have not been paid. 11. UNIFORM SECURED NOTE. This Note is a uniform instrument with limited variations in some jurisdictions. In addition to the protections given to the Note Holder under this Note, a Mortgage, Deed of Trust, or Security Deed (the “Security Instrument”), dated the same date as this Note, protects the Note Holder from possible losses which might result if I I do not keep the promises which I make in this Note. That Security Instrument describes how and under what conditions I may be required to make immediate payment in full of all amounts | owe under this Note. Some of those conditions are described as follows: Transfer of the Property or a Beneficial Interest in Borrower. As used in this Section 18, “Interest in the Property” means any legal or beneficial interest in the Property, including, but not limited to, those beneficial interests transferred in a bond for deed, contract for decd, installment sales contract or escrow agreement, the intent of which is the transfer of title by Borrower at a future date to a purchaser, Tf all or any part of the Property or any Interest in the Property is sold or transferred (or if Borrower is not a natural person and a beneficial interest in Borrower is sold or transferred) without Lender’s prior written consent, Lender may require immediate payment in full of all sums secured by this Security Instrument. However, this option shall not be exercised by Lender if such exercise is prohibited by Applicable Law. ; If Lender exercises the option to require immediate payment in full, Lender shall give Borrower notice of acceleration. The notice shall provide a period of not less than 30 days from the date the notice is given FLORIDA ADJUSTABLE RATE NOTE ~ 6-month LIBOR Index (First Business Day Lookback) ~ Single Family — Page 3 of 4 SUL GRRL Be RLY le x DESH wee 02/00/2006Mm accordance with Section 15 within which Borrower must pay all sums — this Security Instrument, If Borrower fails to pay these sums prior to tho expiration of this period, Lender may invoke any remedies permitted by this Security Instrument without further notice or demand on Borrower. 12. DOCUMENTARY TAX ‘The state documentary tax due on this Note has been paid on the mortgage securing this indebtedness. WITNESS THE HAND(S) AND SEAL(S) OF THE UNDERSIGNED. Ale lan bw eld On. ut )>i|oe = Borrower — ALEJANDRA MAYORGA - Daile [Sign Original Only} FLORIDA ADJUSTABLE RATE NOTE - 6-month LIBOR Index (First Business Day Lookback) ~ Single Family — pocusts Page of ¢ Suasaaaaaaaas UU REGSERVICE LIST Case No. CACE1]4-16662-11 UCN: 062014CA016662XXXXXX DENISE M BLACK WELL-PINEDA, ESQ | Attorney For VISCONTI CONDOMINIUM ASSOCIATION, INC. fr 2915 BISCAYNE BLVD, STE 300 H MIAMI, FL 33137 | Email Address: denise@rzllaw.com i MERS : C. T. Corporation i 1200 South Pine Island Road Plantation, FL 33324 | { CACH, LLC | C. T. Corporation | 1200 South Pine Island Road | Plantation, FL 33324 | | i PORTFOLIO RECOVERY ASSOCIATES, LLC i CORPORATION SERVICE COMPANY i 1201 HAYES STREET TALLAHASSEE, FL 32301 PARADISE CONSTRUCTION ENTERPRISES, INC DOVE FURER 7910 HIBISCUS CIRCLE TAMARAC, FL 33321 | | | { ALEJANDRA MAYORGA 9288 W Atlantic Blvd Apt 1112 CORAL SPGS, FL 33071