Party Discovery: BOAN, JOSPEH M V LITVAK, ANDREW

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                                Filing # 34967711 E-Filed 11/30/2015 04:39:31 PM

IN THE CIRCUIT COURT OF THE 15"
JUDICIAL CIRCUIT IN AND FOR
PALM BEACH COUNTY, FLORIDA
CIRCUIT CIVIL DIVISION

CASE NO.: 50-2014 CA 000475 XXXX MB (AN)
JOSEPH BOAN,

Plaintiff,
vs.

ANDREW LITVAK and HARTMAN,
SIMONS & WOOD, LLP,

Defendants.
/

DEFENDANTS’ RESPONSE IN OPPOSITION TO
PLAINTIFF’S OBJECTIONS TO DEFENDANTS’ NOTICE OF INTENT
N- NA F PRODUCTION OF. Cc N
The Defendants, ANDREW LITVAK (‘“LITVAK’) and HARTMAN SIMONS &
WOOD, LLP (“HSW’) (collectively “Defendants”), by and through their undersigned
counsel, hereby respond, pursuant to the Florida Rules of Civil Procedure and
applicable Florida law, in opposition to Plaintiffs, JOSEPH M. BOAN (‘Plaintiff’),
“Objection to Defendant’s (sic) Request for Production Directed to Third Parties,
Records Custodian or Jeffrey F. Berin, Esq., Records Custodian or Steven M. Selz,
Esq., Records Custodian of Bank of New York Mellon and Record Custodian of Bank of
America, N.A.” tn support thereof, Defendants state as follows:

1. On January 14, 2014, Plaintiff initiated the above styled action by filing a

Complaint for Damages against Defendants asserting a claim for legal malpractice.

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2. Since then, Plaintiff has amended his original Complaint on two occasions;
the operative pleading is Plaintiffs Second Amended Complaint for Damages. A copy
of the Second Amended Complaint is attached hereto as Exhibit A.

3. Plaintiff alleges that LITVAK represented him in connection with a
potential short sale of the property located at 3220 North Flagler Drive, West Palm
Beach, Florida (“Subject Property”) to Michael Folio, a non-party and client of LITVAK,
and/or the modification of the mortgages/loans on the Subject Property held by Bank of
New York Mellon and Bank of America. See Second Amended Complaint.

4. As a result of LITVAK’s alleged negligence, Plaintiff claims that his credit
was damaged diminishing his ability to borrow money. /d.

5. Defendants deny Plaintiff's allegations of liability and damages, including,
but not limited to, that LITVAK represented Plaintiff. In fact, Plaintiff was represented
by his own lawyers — Jeffrey F. Berrin, Esq. and Steven M. Selz, Esq.

6. In addition, Defendants affirmatively maintain that, inter alia, Plaintiff's
action is barred because it impermissibly splits causes of action and, further, because it
is res judicata.

7. In his original Complaint as well as in his First Amended Complaint,
Plaintiff alleged that his credit was damaged as a result of foreclosure proceeding
initiated by the first mortgagee, Bank of New York Mellon, in the Circuit Court for the
Fifteenth Judicial Circuit in and for Palm Beach County, Florida, and is styled Bank of
New York Mellon v. Boan, bearing Case Number 502013CA001921XXXXMB

(‘Foreclosure Action”). See Complaint and First Amended Complaint.

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8. In the Foreclosure Action, Plaintiff filed a Verified Third Party Complaint
against, inter alia, LITVAK asserting a single count of tortious interference with a
contractual relationship related to the same real estate dealings on which the instant
matter is based. See “Defendants’, Joseph M. Boan and Kelly Jett Boan’s Answer and
Affirmative Defenses to Mortgage Foreclosure Complaint,” filed and served on February
14, 2013, in the Foreclosure Action (“Third Party Complaint’), a copy of which is
attached hereto as Exhibit B.'

9. On September 4, 2015, pursuant to Fla. R. Civ. P. 1.351, Defendants filed
and served their Notice of Intent to Serve Non-Party Subpoena for Production of
Documents (“Notice of Intent”) notifying Plaintiff of their intent to serve subpoenas duces
tecum upon the Records Custodian of Plaintiffs attorneys —- Messrs. Berrin and Selz —
and the Records Custodians of Plaintiffs mortgagees — Bank of New York Mellon and
Bank of America. A copy of the Notice of Intent is attached hereto as Exhibit C.

10. On September 9, 2015, Plaintiffs filed and served his “Objection to
Defendant's (sic) Request for Production Directed to Third Parties, Records Custodian
or Jeffrey F. Berin, Esq., Records Custodian or Steven M. Selz, Esq., Records
Custodian of Bank of New York Mellon and Record Custodian of Bank of America, N.A.”
(‘Objections’). A copy of Plaintiff's Objections is attached hereto as Exhibit D.

11. As discussed in greater detail below, Plaintiffs Objections are without
merit and should be overruled.

1 Plaintiff removed the reference to the Foreclosure Action from the Second Amended Complaint to

avoid Defendants’ then pending motions to dismiss with prejudice based on the doctrines of
impermissibly splitting causes. of action and res judicata.

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12. Plaintiff first objects on the grounds that there is “no showing of the
admissibility of the material requested...nor any showing that such materials would
reasonably lead to discovery of admissible evidence.” See Plaintiffs Objections, 9.1. In
that vein, Plaintiff also claims that the subject discovery is “nothing short of a fishing
expedition.” /d., J 3.

13. Rule 1.280 states in pertinent part as follows:

Parties may obtain discovery regarding any matter, not
privileged, that is relevant to the subject matter of the
pending action, whether it relates to the claim or defense of
the party seeking discovery or the claim or defense of any
other party, including the existence, description, nature,
custody, condition, and location of any books, documents, or
other tangible things and the identity and location of persons
having knowledge of any discoverable matter. It is not
ground for objection that the information sought will be
inadmissible at the trial if the information sought
appears reasonably calculated to lead to the discovery
of admissible evidence.

Fla, R. Civ. P. 1.280(b)(1) (emphasis added).

14. The proposed non-party subpoenas duces tecum directed at Messrs.
Berrin and Selz similarly sought their representation agreement with Plaintiff as well as
their respective communications with the following persons: LITVAK; HSW; Michael
Folio?; Cheryl Levin n/k/a Cheryl Levin-Folio?; Bank of New York Mellon; Bank of
America; Bast Amron LLP‘; Plaintiff, Kelly Jett a/k/a Kelly Jett Boan; with each other,
with credit reporting agencies; with debt collection agencies; with Residential Credit

2 Michae! Folio was the intended purchaser of the Subject Property in the short sale transaction
Plaintiff was attempted to effectuate to avoid foreclosure. See Third Party Complaint (Exhibit B).

7 Cheryl Levin n/k/a Cheryl Levin-Folio was, at first, Michael Folio’s girlfriend and, later, his wife;
she was also involved in the aforementioned potential short sale transaction. Id.

: Bast Amron is a law firm that represented LITVAK against Plaintiff's Third Party Complaint. /d.

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Solutions, Inc.®; and their invoices and timesheets related to the legal services provided
to Plaintiff. The foregoing was limited to issues concerning the Subject Property.

15. | The proposed non-party subpoenas duces tecum directed at Bank of New
York Melion and Bank of America similarly sought their respective file related to Plaintiff
and the Subject Property as well as their respective communications with the following
persons: LITVAK; HSW; Michael Folio; Cheryl Levin n/k/a Chery! Levin-Folio; with each
other; Bast Amron LLP; Plaintiff; Kelly Jett a/k/a Kelly Jett Boan; Mr. Selz; Mr. Berrin;
with credit reporting agencies; with debt collection agencies; and with Residential Credit
Solutions, Inc. Again, the foregoing was limited to issues concerning the Subject
Property.

16. In light of the Plaintiff's allegations — that LITVAK represented him, gave
him bad advice, and that he suffered damage to his credit as a result -— and
Defendants’ affirmative defenses — res judicata, impermissible splitting of causes of
action and that Plaintiff was represented by his own attorneys (not LITVAK) — the
documents sought are narrowly tailored to the issues framed herein and are clearly
relevant and reasonably calculated to lead to the discovery of admissible evidence.
They certainly are not a “fishing expedition.”

17. Next, Plaintiff objects on the grounds that “[t]he requested information
under the subpoenas on their face improperly include attorney-client privileged and
attorney work product materials regarding communications between Plaintiff and his
current counsel and...his prior counsel...” See Plaintiff's Objections, {| 2.

7 Plaintiff sued Residential Credit Solutions, Inc. in the Foreclosure Action alleging illegal debt
collection practices.

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18. The representation agreements between Plaintiff and Mr. Berrin and
between Plaintiff and Mr. Selz are not protected from disclosure under either the
attorney-client privilege or the work product doctrine. See, Jensen v. Sierra Grill, Inc.,
876 So. 2d 1264, 1266 (Fla. 3d DCA 2004).

19. Moreover, the attorney-client privilege and the work product doctrine do
not attach to communications between the attorney and a third party, or between the
client and a third party. § 90.502, Fla. Stat. Thus, communications with LITVAK; HSW;
Michael Folio; Cheryl Levin n/k/a Cheryl Levin-Folio; Bank of New York Mellon; Bank of
America; Bast Amron LLP; Kelly Jett a/k/a Kelly Jett Boan; with credit reporting
agencies; with debt collection agencies; and with Residential Credit Solutions, Inc. are
not protected from disclosure under either the attorney-client privilege or the work
product doctrine.

20. As far as communications between Messrs. Berrin and Selz as well as
their respective communications with Plaintiff, any such claim of privilege has been
waived.

21. ‘First, to date, Plaintiff has refused to prepare a privilege log as required
under Fla. R. Civ. P. 1.280. Defendants acknowledge that waiver of the attorney-client
privilege and work-product doctrine is not favored in Florida; however, where Plaintiff
willfully and contumaciously refuses to comply with his mandatory obligation to prepare
a privilege log, the finding of waiver is appropriate. T/IG Ins. Corp. of America v.
Johnson, 799 So. 2d 339, 341-42 (Fla. 4" DCA 2001).

22. Second, Plaintiff waived the attorney-client privilege by his voluntary
disclosure of his communications with Messrs. Berrin and Selz. § 90.507, Fla. Stat. (“[a]

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person who has a privilege against the disclosure of a confidential matter or
communication waives the privilege if the person...voluntarily discloses or makes the
communication when he or she does not have a reasonable expectation of privacy, or
consents to disclosure of, any significant part of the matter or communication.”) See,
e.g., the email communications Bates Stamped HSW 000137 — 000141, HSW 000200,
HSW 000215 — 000218, HSW 000280 — 000283, HSW 000288 — 000291, and HSW
000292 - 000293, a copy of which is attached hereto as Composite Exhibit E.

23. Assuming arguendo that the Court determines that the representation
agreement is privileged, Plaintiff voluntarily disclosed the representation agreement
between him and Mr. Selz thus waiving any privilege that may have attached to it. See,
Bates Stamped HSW 000280 — 000000283 (Composite Exhibit D).

24. Plaintiff additionally objects to the non-party subpoenas because they
contain “settlement discussions with the lenders holding the now satisfied underlying
loans on the subject real property,” which Plaintiff claims is also protected from
disclosure pursuant to the attorney-client privilege and attorney work product doctrine.
See Plaintiff's Objections, { 2.

25. Here, again, Plaintiff has failed to produce a privilege log in contravention
of Fla. R. Civ. P. 1.280; therefore, any privilege that may attach to these
communications has been waived. Johnson, supra. Further, having injected the issue
of his credit worthiness, these communications are relevant, material and discoverable.

26. Finally, Plaintiff maintains that, “some or all of the information regarding
the underlying loans are protected from disclosure by banking laws controlling the
actions of those national banking entities.” See Plaintiffs Objections, | 2. However,

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Plaintiff fails to identify these “banking laws.” That said, this information is relevant,
material and discoverable inasmuch as Plaintiff has voluntarily injected the issue
concerning his credit worthiness following his default under these loans.

WHEREFORE, the Defendants, ANDREW LITVAK and HARTMAN, SIMONS &
WOOD, LLP, respectfully requests that his Honorable Court enter an Order overruling
Plaintiff's, JOSEPH M. BOAN, “Objection to Defendant's (sic) Request for Production
Directed to Third Parties, Records Custodian or Jeffrey F. Berin, Esq., Records
Custodian or Steven M. Selz, Esq., Records Custodian of Bank of New York Mellon and
Record Custodian of Bank of America, N.A.,” and awarding such further relief as the
Court deems just and proper.

CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished via E-Mail Only (Primary: selzmuvdi@aol.com) on this A“ day of
November, 2015, to Steven M. Selz, Esq., Selz & Muvdi Selz, P.A., Counsel for
Plaintiff, 500 University Boulevard, Suite 110, Jupiter, Florida 33458.

DEMAHY LABRADOR DRAKE VICTOR & CABEZA
Attorney for the Defendants, Andrew Litvak and

Hartman, Simons & Wood, LLP
150 an Circle

  
    

Pete L. DeMahy
Florida Bar No.: 241822
E-Mail: pdemahy@dldlawyers.com
Orlando D. Cabeza

Florida Bar No.: 933521

E-Mail: odcabeza@didlawyers.com

DEMAHY F LABRADOR E DRAKE # VICTOR fF ROJAS 1 CABEZA
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(

; “ling # 28818164 E-Filed 06/23/2015 12:10:41 PM

IN THE CIRCUIT COURT OF THE 15"!
JUDICIAL CIRCUIT IN AND FOR PALM
BEACH COUNTY, FLORIDA

JOSEPH M. BOAN, CASE NO: 502014CA000475XXXXMB

Plainitiff,
vs.

ANDREW LITVAK and HARTMAN
SIMONS & WOOD, LLP,

Defendants.
/

SECOND AMENDED COMPLAINT FOR DAMAGES

Plaintiff, JOSEPH M. BOAN, hereby sues Defendants, ANDREW LITVAK,
and HARTMAN SIMONS & WOOD, LLP and hereby filed this, his Second
Amended Complaint for Damages and alleges as follows:

1. This is an action for legal malpractice within the subject matter
jurisdiction of this Court.

2. Plaintiff, JOSEPH M. BOAN (hereinafter “BOAN?” or “Plaintiff’) is a sui
juris resident of Palm Beach County, Florida.

3. Defendant, ANDREW LITVAK, (hereinafter “LITVAK”) is an attomey
licensed in the State of Florida.

4. That at all times relevant hereto, LITVAK was an employee, partner and
agent for the Defendant, HARTMAN SIMON & WOODS, LLP, (“HARTMAN”)

which is a law firm doing business in the State of Florida by virtue of therepresentation of clients within the State of Florida.

5. That in the later part of 2011 LITVAK commenced the representation of
BOAN as to real property at that time owned by BOAN and located at 3220 N.
Flagler Drive, West Palm Beach, Palm Beach County, Florida, (the “Real
Property”).

6. BOAN understood and agreed that LITVAK would be paid for his work
in representing the interests of BOAN regarding the Real Property upon the sale or
short sale of the Real Property.

7. Relying upon communications with LITVAK, wherein LITVAK agreed
that he would represent BOAN’s interests in the sale or a short sale of the Real
Property, BOAN employed LITVAK, was in privity with LITVAK and sought and
received legal advice and services from LITVAK.

8. As part and parcel of the legal work performed by LITVAK for the benefit
of BOAN, BOAN provided LITVAK with personal and confidential financial
information and other documentation necessary for the processing of a potential
short sale on the Real Property.

9. LITVAK’s legal advice to BOAN took the form of both telephone
discussions and written communications, which included various email

communications, a portion thereof being attached hereto as composite Exhibit “A”.10. That as part and parcel of his representation of BOAN’s interests
LITVAK edited and revised a hardship letter for BOAN, which was intended to be
delivered to BOAN’s lender as part of the short sale process.

ll. That additionally, LITVAK, provided BOAN with legal advice
regarding the impact of debt forgiveness.

12. That in following LITVAK’s advice, BOAN’s credit was damaged,
resulting in a loss of BOAN’s ability to borrow funds necessary for BOAN’s work
as areal estate developer and businessman.

13. Having provided legal advice to BOAN, on which BOAN reasonably
relied, LITVAK had a duty to protect the interests of BOAN in the Real Property
and to exercise reasonable care in representing and protecting BOAN’s interests and
in such matters.

14. LITVAK failed to exercise reasonable care and diligence and neglected
LITVAK’s reasonable duty to BOAN by: (1) failing to warn BOAN of the risks
associated with course of action regarding the Real Property recommended by
LITVAK, including the fact that such actions would damage to BOAN’s credit; (2)
affirmatively misrepresenting his role to BOAN by representing that LITVAK was
assisting BOAN in the short sale of the Real Property and then subsequently

changing that position.15. That as a direct and proximate result of the conduct of LITVAK, both
individually and as an employee of HARTMAN, BOAN has been damaged by the
curtailment and loss of BOAN’s ability to borrow funds, the losses associated with
the short sale of the Real Property and other consequential damages arising in this
matter.

WHEREFORE, BOAN demands judgment for damages as against the
Defendants, LITVAK and HARTMAN together with such other relief as this Court
deems proper.

I HEREBY CERTIFY that a true and correct copy of the foregoing was

provided this 2400 day of June, 2015 by Eservice/Email/US Mail to: Pete L.
DeMahy, Esq., Demahy, Labrador, Drake, et al., 150 Alhambra Circle, Coral

Gables, FL 33134 {Email- Pdemahy@didlawyers.com,
odcabeza@didlawyers.com]

SELZ & MUVDI SELZ, P.A.
Attofheys for Plaintiff

   
    

Florida Bar No. 0777420* JOSEPH BOAN 
Re: Short sale for West Palm Beach B of A
December 15, 2011 5:17:38 PM EST
‘Litvak, Andrew M." 
Michael Folio , Cheryl Levin 

 

Andy, I'm going to fonward you my financials and hardship letter by fax. | read the Addendum and we'll add language at the
end of Section 3 that states that the Buyer has a subordinate Morigage interest in the subject .

Weill give ft our best shot and see how they respond. Please give me call once you review the financials so we can discuss in
alitie more detail, PEEeE reer . :

Thanks for the help today.

Joseph M. Boau, CCIM : :

Commercial Property Analysts, LLC.

3220 North Flagler Drive

West Palm Beach, FL 33407
STUNT?

 

On Dec 15, 2011, at 3:39 PM, Litvak, Andrew M. wrote:

Here is the standard BOA addendum. Paragraph 3 is what | referenced in our call regarding the “arms length” nature of
the transaction.

Andy
SHSW -Attormey .
Andrew AM. Litvak P
Attorney at Law Litvak. Andy)
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MARTMAN SIBONS & WOOD HP

6400 Powers Ferry Road NW + Suite PHONE 7rosso4a11
400 FAX 678.291.9957
Ailonto, Georgio 30339 + MOBILE 404.406.1414
770,955.3555 ‘sngtesAlvokShermonsmons.com

Altoineysle — Y-Cord

it

 

From: Litvak, Andrew M.

Sent Thursday, December 15, 2011 210 PM

To: ‘mfolio@coddisno.com’; ‘boani@mac.com’

Cez Wood, Charles L.

Subject: RE: Short sale for West Palm Beach B of A i

Mike end Joe: Buzz has copied me on the recent emails, and it sounds like both of you are available to speak this afternoon

Lets dial inte the call-in line below at 3:00 pm this aftemoon:——Original Message——

From: Joseph Boan [mailto:boanj@bellsouth net]
Sent: Friday, January 13, 2012 9:22 AM

To: Litvak, Andrew M.

Subject: 3220 North Flagler, West Paim Beach, FL

Andy, might it be more advantageous for my credit standing if we were to
go for a loan modification with a principal reduction as opposed to a
short sale?

We could then just do a straight purchase and sale once we obtained the
modification. 7

Please let me know your thoughts on this.

Thanks, Joe ,

Joseph M. Boan, CCIM
Commercial Property Analysts, LLC.
3220 North Flagler Drive

West Paim Beach, FL 33407

Tel: 561 374 1772

Fax: 561 842 0994

Email: boanj@pbellsouth.netFrom: "Litvak, Andrew M." 
Subject: Re: Fwd: West Palm Beach Property

Date: March 2, 2012 8:26:34 PM EST

To: boani@me.com

Ce: mfolio@cpddispo.com

Joe,

{'m sorry that we missed each other. | was swamped with a variety of things preparing to leave town next
week,

There are several details and nuances associated with the existing options. We can discuss those in more
detail when | am back in the office at the end of next week.

Thanks,

Andy

Andrew M. Litvak
Hartman Simons and Wood LLP
Tel: 770-980-4411

andrew. litvak@hartmansimons.com

TREASURY DEPARTMENT CIRCULAR 230 DISCLOSURE: To ensure compliance with requirements.
imposed by the Treasury Department, we inform you that any U.S. federal tax advice contained in this
communication (including any attachments) is not intended or written to be used, and cannot be used, for the
purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or
recommending to another party any transaction or matter addressed herein.

NOTICE: This e-mail message and all attachments transmitted with it may contain legally privileged and
confidential information intended solely for the use of the addressee. If the reader of this message is not the
intended recipient, you are hereby notified that any reading, dissemination, distribution, copying, or other use of
this message or its attachments is strictly prohibited. If you have received this message in error, please notify
the sender immediately by telephone (770-955-3555) or by electronic mail and then delete this message and
all copies and backups thereof. Thank you.EXHIBIT BIN THE CIRCUIT COURT OF THE 15™
JUDICIAL CIRCUIT IN AND FOR
PALM BEACH COUNTY, FLORIDA

THE BANK OF NEW YORK MELLON, _Case No.: 502013CA001921XXXMB

Division AW
Plaintiff,
vs.
JOSEPH M. BOAN, KELLY JETT,
a/k/a KELLY JETT BOAN, et al,
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Defendants. Be 8 S
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JOSEPH M. BOAN, Sto
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Cross-Plaintiff, se" =
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vs. =a of:
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MICHAEL FOLIO, et.al., oi
Cross-Defendants.

/

DEFEND, 'S’, JOS) M. BOAN and KELLY JETT BOAN’s ANSWER AND
AFFIRM, DEFENSES T: AGE FORE! Ci AINT

COMES NOW, ihe Defendants, JOSEPH M. BOAN and KELLY JETT BOAN

qa

(hereinafter collectively “Defendant”), by and through their undersigned counsel, and hereby

answer the allegations contained in the consecutively numbered paragraphs of the Plaintiff's
Mortgage Foreclosure Complaint and responds to the remaining allegations of such Mortgage
Foreclosure Complaint as follows:

1, Defendant hereby admits the allegations contained in Paragraphs 1, 2, 3, 6, 7, 13 and
14,

2. Defendant hereby denies the allegations contained in Paragraphs 5, 9, 10, 12:and 16.

13, Defendant is without knowledge as to the allegations as contained in Paragraphs 8, 11,
and 15, inclusive of sub-parts thereof, and therefore can neither admit nor deny same and demands
strict proof thereof for all purposes.

4. Defendant admits the allegations as contained in Paragraph 4 to the extent that same
reference publically recorded documents, which speak for themselves and without admission as to
the authenticity or correctness of same. All other and remaining allegations of such Paragraph 3
are hereby denied in their entirety.

5. Defendant hereby denies each and every remaining allegation of the Plaintiff's
Complaint to the extent not specifically responded to herein, including, without limitation, any
matters set. forth in any subsections, prayers for relief or un-numbered or mis-numbered
paragraphs of the Plaintiff's.

6. Defendant hereby demands trial by jury on all such issues so triable.

‘E DEFENSES

7. As the first affirmative defense, Defendant states that the Plaintiff has prior to the filing
failed to satisfy a condition precedent to the bringing of this action, to wit: the Plaintiff has failed to
provide the Defendant with the notice required by Section 22 of the Mortgage in this matter. Asa
result thereof, this action is prematurely filed and not ripe as the notice contemplated by the
provisions of the above-cited Section 2 of the Mortgage is a required contractual condition
precedent to Plaintiff seeking to accelerate the sums under the alleged Mortgage and Note, which
Plaintiff claims as currently due in their entirety.

8. As the second affirmative defense, Defendant states that the Plaintiff is not the holder in
interest of the promissory note in this matter and therefore lacks standing to pursue such matter in
that the allegations of the complaint fail to establish the Plaintiff's ownership of the note, and

2mortgage. which “general allegations” are negated by the documents attached to the Complaint,
and/or which show that the alleged assignment of the note is on its face legally insufficient as the
named Plaintiff fails to plead the chain of title and custody sufficient to prove up standing,

10. As the third affirmative defense, Defendant states that the Plaintiff fails to state a cause
of action for foreclosure of the mortgage in this matter as the named Plaintiff, by the exhibits to its
own pleadings, is not a holder in due course-of the promissory note and mortgage nor has such
Plaintiff set forth any evidence of the alleged “trust” which would form the basis for the Plaintiffs
standing in this matter.

11. As the fourth affirmative defense, Defendant states that the Plaintiff has come to this
action with unclean hands and therefore the Plaintiff is not entitled to relief in equity.

12. As the fifth affirmative defense, without waiver of any potential counter-claims arising
from same, Defendant state that the Plaintiff has failed to comply with the requirements of the Fair
Debt Collection Practices Act and as such is barred from its current attempts to collect the debt in
question.

13, As the sixth affirmative defense, Defendant states that the Plaintiff has failed to
comply with the requirements of the Real Estate Settlement Procedures Act and is therefore barred
from seeking enforcement and collection of the sums sought under the complaint in this matter.

14. As the seventh. affirmative defense, Defendant ‘states that the Plaintiff has failed to
post the cost bond required by law in this matter and therefore same.is subject to dismissal or
abatement until the Plaintiff has posted such bond.

CROSS CLAIM FOR DAMAGES A! | PARTY CO) IN’
IERAL ALLEGATIONS COMMO ALL COUNTS
1. This is-an action for damages and equitable relief within the subject matter jurisdiction

3of this Court.

2. Cross-Plaintiff/Third Party Plaintiff, JOSEPH M. BOAN (hereinafter “BOAN” or
“Cross-Plaintiff’) isa sui juris resident of Palm Beach County, Florida,

3. Cross-Defendant, MICHAEL FOLIO (hereinafter “FOLIO”) is a sui juris resident
Highland Park, Illinois and by virtue of conduct in Palm Beach County, Florida, subject to the
jurisdiction of this Court.

4. Third-Party Defendant, ANDREW LITVAK, (hereinafter “LITVAK”) is by virtue of
his conduct in the State of Florida and directed to Cross-Plaintiff in the State of Florida, is subject
to the jurisdiction of this Court.

5. Third-Party Defendant, BAST AMRON ATTORNEYS AT LAW, (hereinafter
“B&A”) is an unincorporated association of professional associations, doing business in Palm
Beach County, Florida.

6. Third-Party Defendant, CHERYL LEVIN, (hereinafter “LEVIN”) is a sui juris resident
Highland Park, Illinois and by virtue of conduct in Palm Beach County, Florida, subject to the
jurisdiction of this Court.

7. That in the latter part of October 2009, Cross-Plaintiff and FOLIO, who had been a
business partners for more than ten years, discussed various ways in which FOLIO could
potentially create a new homestead interest in the State of Florida so as to protect some of
FOLIO’s assets and allow for a protected investment interest.

8. That Cross-Plaintiff and FOLIO’s discussions and agreement as to such matter was
memorialized in an email, as dated October 7, 2009 from Cross-Plaintiff to FOLIO, a true and

correct copy of same being attached hereto and made a part hereof as Exhibit “A” (the “Email

Agreement”).9. That Cross-Plaintiff at that time and at the time of the filing of this action was the legal
owner of that certain valuable real property located in Palm Beach County, Florida, being located
at 3220 North Flagler Drive, West Palm Beach, Florida and having a legal description as follows:

The South 40.64 feet of Lot 24 and the North 37.03 feet of Lot 25, Block 1,

NORTH SHORE TERRACE PLAT NO. 2, according to the plat thereof, recorded in
Plat Book 14, Page 71, Public Records, Palm Beach County, Florida. (the “Real

Property”).

10. Consistent with the Email Agreement, FOLIO funded to the Cross-Plaintiff the sum of
$500,000.00 as his “buy-in” on the Real Property. For the purposes of evidencing FOLIO’s
investment in the Real Property, Cross-Plaintiff and FOLIO prepared a non-recourse mortgage
(the “Mortgage”), as recorded in Official Records Book 23667 at Page 0599, together with a
promissory note, (the “Note”) in the sum of $500,000.00, a true and correct copy of the Mortgage
and Note being attached hereto and made a part hereof as composite Exhibit “B”.

1}. That additionally, as consistent with the agreement of Cross-Plaintiff and FOLIO,
FOLIO was to contribute a monthly sum equal to one-half of the debt burden on the Real Property
as well as one-half of the average monthly expenses, in the approximate monthly sum of
$7,500.00, as set forth in Exhibit “C” hereto.

12, That from the time of the entry of the Email Agreement until a date on or about April
26, 2012, FOLIO honored the Email Agreement and made monthly payments equal to
approximately one-half (1/2) of the monthly expenses for the maintenance and upkeep of the Real
Property.

13. That at.all times relevant hereto, the Third Party Defendants, LEVIN, LITVAK and
B&A were fully aware of the terms of the Email Agreement and the prior conduct of the

Cross-Plaintiff so as to be aware of the rights and respective obligations of both Cross-Plaintiff toFOLIO and FOLIO to Cross-Plaintiff.

14, That despite such awareness and with the intent to interfere with the beneficial interest
of the Cross-Plaintiff in the Real Property and the Email Agreement, LEVIN engaged, encouraged
and collaborated with LITVAK and B&A to undertake a course of conduct designed to interfere
with the advantageous business relationship existing between Cross-Plaintiff and FOLIO visa vis
the Real Property. ,

15. That being fully aware of the relationship between Cross-Plaintiff and FOLIO and the
obligations under the Email Agreement, both LITVAK and B&A, as counsel for FOLIO, made
demands on Cross-Plaintiff for conduct knowingly inconsistent with the Email Agreement and for
which there was no legitimate basis in law or fact.

16. That such actions were undertaken, upon information and belief, at the behest and
direction of LEVIN, who due to the physical and mental decline of FOLIO, was exercising undue
influence over FOLIO in FOLIO’s business dealings, including as to the Real Property.

17. Further, consistent and in furtherance of LEVIN, LITVAK and B&A’s intentional
interference with the advantageous business relationship between Cross-Plaintiff and FOLIO, on
or about April 26, 2012, in response to the Cross-Plaintiff s request for the payment of one-half of
the overhead expenses on the Property consistent with the Email Agreement, LEVIN indicated
that “...we stopped any help towards offsetting your expenses. All future payments have stopped
and we have turned it over to Andy [Litvak] to try and resolve...”.

18. That all conditions precedent to the bringing of this action have occurred or have been
waived or otherwise excused.

19, Cross-Plaintifi/Third Party Plaintiff has retained the undersigned counsel and has
agreed to pay such counsel a reasonable fee for their services, which fees are subject to recovery

6pursuant to the provisions of Mortgage and Note.
Cc J- ACTION FOR DECLARATORY RELI

20. Cross-Plaintiff adopts and re-alleges the allegations as contained in Paragraphs 1
through 19, above, as if fully set forth herein.

21. This is an action for declaratory relief.

22. Cross-Plaintiff and FOLIO entered into the Mortgage and Note based on the
understanding that same was subject to the obligations of the parties under the Email Agreement.

23, That in fact FOLIO and Plaintiff acted in manner consistent with the Email Agreement
from the date thereof until a date on or about April of 2012.

24. That to the extent that the Email Agreement is inconsistent with the Mortgage and
Note, there is a bona fide, present and practical need for a determination of this Court as to the
effect of the later executed Mortgage and Note vis a vis the Email Agreement.

25. The tights and obligations of the Cross-Plaintiff and FOLIO, inchiding FOLIO’s right
to. demand payment under the Note, right to enforce the Mortgage and the obligations of FOLIO to

" fund one-half of the operating expenses for the Real Property is dependent on the application of the

fact to the law.

26. FOLIO and Cross-Plaintiff have actual present and antagonistic interests, whereby
FOLIO has refused to honor the obligations under the Email Agreement, has wrongfully sought to
enforce the Mortgage and Note and has chosen to ignore the long standing course of dealings as
between FOLIO and Cross-Plaintiff.

27. All parties having an interest in the controversy are before the Court and the relief
sought is not sought for the mere giving of legal advice or for curiosity but rather to resolve such
actual present and antagonistic interests as to facially conflicting documents and agreements of the

7parties.

WHEREFORE, the Cross-Plaintiff demands the following relief:

A. This Court take jurisdiction of this matter; and,

B. This Court adjudicate the respective rights of the Cross-Plaintiff and FOLIO as to the

Real Property in light of the Email Agreement and the Mortgage and Note; and,

C. That this Court direct the parties, Cross-Plaintiff and FOLIO, to comport their behavior

consistent with the agreement or agreements which this Court determines control the

conduct of Cross-Plaintiff and FOLIO in this matter; and,

D. That this Court award to the Cross-Plaintiff his reasonable attorneys fees; and,

E. Such other and further relief as this Court deems just and equitable,

col I. CH OF

28. Cross-Plaintiff adopts and re-alleges the allegations as contained in Paragraphs 1
through 19, above, as if fully set forth herein. |

29. This is an action for breach of contract.

30, FOLIO breached the Email Agreement by:

(a.) Entering into a course of conduct to enforce the Mortgage and Note
inconsistent with the terms of the Email Agreement; and,
(b.) Failing and refusing to pay one-half of the expenses and upkeep on the Real

Property in the approximate sum of $7,500 per month, for the months of April, May, June, July,
August, September, October, November, December of 2012, for the month of January and

February 2013 and all months thereafter.31. That as a direct-and proximate result of the conduct of FOLIO and his breach of the
Email Agfeement, Cross-Plaintiff has been damaged.
WHEREFORE, Cross-Plaintiff demands judgment against the Defendant, FOLIO, for the

reasonable value of his damages together with such other relief as this Court deems proper.

COUNT II. UNJUST ENRICHMENT

32. Cross-Plaintiff adopts and re-alleges the allegations as contained in Paragraphs 1
through 18, above, as if fully set forth herein. ;

33. This is an action for unjust enrichment, within the jurisdictional amount of this court,
as pled in the alternative,

34, That FOLIO was unjustly enriched by the maintenance of a one-half equity interest in
the Real Property without the necessity of equitable contribution of one-half of the expenses

Telated to same.

35. That the Cross-Plaintiff is entitled recovery of the sum equal to one-half of the
expenses for the upkeep and maintenance of the Real Property by virtue of the equity held by
FOLIO.

WHEREFORE, the Cross-Plaimtiff demands judgment against the Defendant, FOLIO, for
the reasonable value of his damages together with such other relief as this Court deems proper.

COUNT IV- SPECIFIC PERFORMANCE

36. Cross-Plaintiff adopts and re-alleges the allegations as contained in Paragraphs 1
through 19, above, as if fully set forth herein. ;

37. This is an action for specific performance of a contract, within the jurisdictional

amount of this court.38. That on or about October 7, 2009 the Cross-Plaintiff and Defendant, FOLIO, entered
into a contract as evidenced by the Email Agreement.

39. Cross-Plaintiff has fully performed at all times his obligations under the Email
Agreement; however, FOLIO has, commencing April of 2012, failed and refused to provide his
payment of one-half of the overhead and expense related to the Real Property.

WHEREFORE, the Cross-Plaintiff demands judgment for specific performance of the
Email Agreement as against FOLIO together with such other relief as this Court’ deems proper:

‘OUNT V- TO) Tl TIONS)

40. Third Party Plaintiff adopts and re-alleges the allegations as contained in Paragraphs 1
through 19, above, as if fully set forth herein,

41. This is an action for interference with a contractual relationship, damages for which are
within the jurisdiction of this Court.

42, Third Party Plaintiff Plaintiff has business relationship with FOLIO as to and related to
the ownership and equitable interests of FOLIO and Plaintiff in the Real Property commencing
October of 2009, in which Third Party Plaintiff has legal rights, including the right to have FOLIO
contribute to the upkeep and maintenance of the Real Property.

43, Third Party Defendants, LEVIN, LITVAK and B&A were aware of the Email
Agreement and the respective contractual rights and obligations of Plaintiff and FOLIO,

44, Third Party Defendants, LEVIN, LITVAK and B&A intentionally undertook an
unjustified interference with the contractual relationship between Third Party Plaintiff and FOLIO

so.as to persuade FOLIO to abandon his obligations under the Email Agreement with Third Party

Plaintiff.

1045. That asa result of the unjustified interference LEVIN, LITVAK and B&A, FOLIO
disavowed the Email Agreement and breached same to the damage and detriment of the Third
Party Plaintiff.

WHEREFORE, the Third Party Plaintiff demands judgment against LEVIN, LITVAK and
B&A for the reasonable value of his damages together with such other relief as this Court deems
proper.

CO - TION AS AGAIN:
46. Third Party Plaintiff adopts and re-alleges the allegations as contained in Paragraphs 1

through 19, above, as if fully set forth herein.

47. This is an action for defamation, damages for which are within the jurisdiction of this
Court.

48. Third Party Defendant, LEVIN, prior to FOLIO disavowing the Email Agreement,
made a series of false and slanderous statements to FOLIO as to the effect that BOAN was
“dishonest”, “could not be trusted” and otherwise not a suitable business parmer for FOLIO
despite the fact that BOAN and FOLIO had been business partners for numerous profitable
business transactions.

49. LEVIN’s statements were intended to hold BOAN in scorn, hatred and contempt in
FOLIO’s eyes and to otherwise harm BOAN’s reputation by portraying BOAN as dishonest.

50. LEVIN’s publication of such false and defamatory statements was calculated and
designed to destroy the reputation of BOAN in FOLIO’s eyes and to effectively ruin any goodwill
between BOAN and FOLIO, which actions were undertaken as part and parcel of LEVIN’s
attempts to assert undue influence over FOLIO, whose mental and physical health was

deteriorating. LEVIN undertook such action for the specific purpose of driving a wedge between
11BOAN and FOLIO so as to prevent any interference with her plans to control FOLIO’s substancial
personal fortune and his business operations prior to LEVIN’s marriage to FOLIO.

51. LEVIN published the defamatory communications against BOAN with actual malice
and wrongful and willful intent to injure BOAN and with the intent to: destroy BOAN’s character,
name and reputation in the eyes of FOLIO.

52. That as a direct and proximate result of the defamatory statements of LEVIN, BOAN
has been damaged.

WHEREFORE, the BOAN demands judgment against LEVIN for the reasonable value of
his damages together with such other relief as this Court deems proper.

CA’ VICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was provided by U.S.
Mail/Email transmittal this We day of February, 2013 to: Gregg Dreilinger, Esq., 100 Cypress

Creek Road, Suite 1045, Fort Lauderdale, FL 33309 [Email: servicefl@mlg-defaultlaw.com and
servicefl2@mlg-defaultlaw.com
SELZ & MUVDI SELZ, P.A.

  
  

.: 777420

12VERIFICATION OF CROSS CLAIM AND THIRD PARTY COMPLAINT

The undersigned, for himself, under oath; declares:
1am the Plaintiff in the above-styled action. I have read the foregoing cross claim and third

party complaint and know the contents of same. With respect to the causes of action alleged by

    

myself, and the facts set forth in the cross claim and amty complaint, the same are true to my

 

JOSEPH M. BOAN
Sworn and subscribed before me, the undersigned authority, duly authorized to take oaths

and acknowledgments on this [244 day of Feb: , 2013, by Joseph M. Boan as
Cross-Plaintiff/Third Party Plaintiff, who is efarsenaly eer me or who produced
as identification and who took an oath.

 

 

13From: JOSEPH BOAN 
‘Sublect: Fwd: 3220 North Flagler
Date: January 20, 2012.9:40:36 AM EST
Tor Michael Folio , “cheryl.s.fevin@chase.com Levin" 

Mike/Cheryl,
I wanted both of you to see this so you can both better understand what | was telling you. Here itis in writing from October of

2009, This was the deal.
Thanks, Joe

Begin forwarded message:

From: Joe Boan 
Subject: 3220 North Flagler

Date: October 7, 2009 3:58:58 PM EDT

To: Mike Fotio ;

Bee: *boanj@belisouth:net® 

Mike, thought about deal on house. (While | had a couple of beers, which is to your advantage) In essence, you would pay
{$500,000 to “buy in". We would then collectively have 2mm in debt against it and own it 50/50. We would split the expenses
(approx $160,000) 50/50. Upon sale, any profit over the 2mm in debt would be split 50/50. So, for example, if we sold, we
would pay off the 2mm and split the balance 50/50. At a net sale price of 4mm, we would pay off the 2mm and split the
remaining 2am 50/50.

I think that ‘would make it an atractive deal for you and a fair deal for me.

Talk to you tomorrow. ;

Sent from Joe's iPhone
Please excuse typos and brevityee CO

will Call
~ 3 CFN 201800237335
f OR BK 23667 PG 0599
RECORDED 01/29/2010 08:14:31
Palm Beach County, Florida

; ANT 5QQ, 000. 00
‘This Instrument Prepared By: Deed Doc 1, 75¢. 00
John D, Kurz Intang 1,000.00
1280.N. Congress Ave. #107 Sharon R. Bock, CLERK & CONPTROLLER
West Palin Beach, Fla, 33409 Pgs @599 - 604; (6pge)

NON-RECOURSE MORTGAGE
‘THIS MORTGAGE ("Security Instrument") is given on January 13%, 2010

The Morigagor (Borrower) is Joseph M. Boan and Kelly Jett Boan, husband and wife, whose
Address is 3220 N. Flagler Drive, West Palm Beach Fl. 33407

‘The mortgagee (Lender) is Michael Folio, whose address is 300 Galleria Parkway, 12" Floor,
Adlanta, Ga, 30339,

Borrower owes Lender the principal sum of FIVE HUNDED THOUSAND and XX/100
DOLLARS (550,000.00). This debt is evidenced by Borrower's note dated the same date as this
Security Instrument ("Note"), which provides for full payment of the debt, if not paid earlier, due
and payable on December 31,2014

‘This Security Instrument secures to Lender: (a) the repayment of the debt evidenced by
the Note, with interest, and all renewals, extensions and modifications of the Note; (b) the
payment of ail other sums, with interest, advanced under paragraph 6 to protect the security of
this Security Instrument; and (c) the performance of Borrower's Covenants and agreements under
this Security Instrument and the Note. For this purpose, Borrower does hereby Mortgage, grant
and convey to Lender the following desoribed property localed in the County of Palm Beach,
State of Florida, to wit:

‘The South 40.64 feet of Lot 24 and the North 37.30 feet of Lot 25, Block
1, NORTH SHORE TERRACE PLAT NO. 2, according to the plat
thereof, recorded in Plat Book 14, page 71, Public Records, Palm Beach
County, Florida.

‘TOGETHER WITH all the improvements now or hereafter erected on the property, and
all easements, appurtenances, and fixtures now or hereafter a part of the property. All
replacements and additions shall also be covered by this Security Instrument. All of the
foregoing is referred to in this Security Instrument as the "Property."

BORROWER COVENANTS that Borrower is lawfully seized of the estate hereby
conveyed and has the right to mortgage grant and convey the Property and that the Property is
unencumbered, except for encumbrances of record. Borrower warrants and will defend generally
the title to the Property against all claims:and demands, subject to any encumbrances of record.

Borrower and Lender covenant and agree as follows:

1, Payment of Principal and Interest; Prepayment and Late Charges. Borrower shall
Promptly. pay when due the principal of and interest on the debt evidenced by the Note and any
Jate charges due under the Note,

2. Application of Payments. Uniess applicable law provides otherwise, all payments
received by Lender under paragraph 1 shall be applied: first: to prepayment charges due under
the Note, if any; second: to interest due; third, to principal due; and Jast, to any late charges duc
under the Note.

3. Charges; Liens. Borrower shal! pay all taxes, ‘assessments, charges, fines and
impositions attributable to the Property which may attain priority over this Security Instrument,

WW
»and leasehold payments or ground rents, if any. Borrower shall pay them on time directly to the
person owed payment. Borrower shall promptly furnish to Lender all notices of amounts to be.
paid under this paragraph. Borrower shall promptly fumish to Lender receipts evidencing the
payments.

Borrower shall promptly discharge any lien which has priority over this Security
Anstrument unless Borrower: (a) agrees in writing to the payment of the obligation secured by the
lien in a manner a¢ceptable to Lender; (b) contests in good faith the lien by, or defends against
enforcement of the lien in, legal proceedings which in the Lender's opinion operate to prevent the
enforcement of the lien; or (c) secures from the holder of the lien an agreement satisfactory to.
Lender subordinating the lien to:this Security Instrument. If Lender determines that any part of
the Property is subject to a lien which may attain priority over this Security Instrument, Lender
may give Borrower.a notice identifying the lien, Borrower shall satisfy the lien or take one or
‘more of the actions set forth above within 10 days of the giving of notice.

4. Hazard or Property Insurance. Borrower shall keep the improvements now existing
or hereafter erected on the Property insured against loss by fire, hazards included within the term
"extended coverage" and any other hazards, including floods or flooding, for which Lender
requires insurance. This insurance shail be maintained in the amounts and for the periods that
Lender. requires. The insurance carrier providing the insurance shell be chosen by Borrower
subject to Lender's approval which shall not be unreasonably withheld. If Borrower fails to
maintain coverage described above, Lender may, at Lender's option, obtain coverage to protect
Lender's rights in the Property in accordance with paragraph 6.

‘All insurance policies and renewals shall be acceptable to Lender and. shall include a
standard mortgage clause. Lender shall have the right to hold the policies: and renewals. If
Lender requires, Borrower shall promptly give to Lender all receipts of paid premiums and
renewal notices, In the event of loss, Borrower shall give prompt notice to the insurance carrier
and Lender, Lendes may make proof of Joss if not made promptly by Borrowes.

‘Unless Lender and Borrower otherwise. agree in writing, insurance proceeds shall be
applied to restoration or repair of. the Property damaged, if the restoration or is is
economically feasible and Lender's security. is not lessened. If the restoration or repair is not
economically feasible or Lender's security would be lessened, the insurance proceeds shall be
‘applied to the sums secured by this Security Instrument, whether or not then due, with any excess
paid to Borrower, If Borrower abandons the Property, or does not answer with in 30 days a
notice from Lender that the insurance carrier has offered t settle a claim, then Lender may
collect the insurance proceeds. Lender may use the proceeds to repair or restore the Property or
{0 pay sums secured by this Security Instrument, whether or not then duc. The 30-day period will
begin when the notice is given.

‘Unless Lend