Motion-Secondary: FIRST-CITIZENS BANK & TRUST COMPANY V TURNPIKE RESTAURANT PARCEL LLC

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                                Filing # 47615525 E-Filed 10/14/2016 10:21:53 AM

IN THE CIRCUIT COURT OF THE 1578
JUDICIAL CIRCUIT, IN AND FOR PALM

BEACH COUNTY, FLORIDA
CASE NO.: 50 2012 CA 012360 XXXXMB AN
FIRST-CITIZENS BANK & TRUST

COMPANY, a North Carolina banking
Corporation,

Plaintiff,
Vv.

TURNPIKE RESTAURANT PARCEL,
LLC, a Florida Corporation; FRANCIS T.
PANTALEO, individually; DENISE L.
PANTALEO, individually; EDWARD
McCABE, individually; and DONNA

McCABE, individually,
Defendants.
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PLAIj iD

Guarantors, FRANCIS T. PANTALEO and DENISE L. PANTALEO (“Guarantors”), by
and through their undersigned counsel move to dismiss the deficiency claim against them;
and Defendant, TURNPIKE RESTAURANT PARCEL, LLC (“Borrower”) hereby submits its
opposition to Plaintiff, FIRST-CITIZENS BANK & TRUST COMPANY’s (“Plaintiff”) Motion for
Deficiency Judgment, and said defendants collectively state:

L Plaintiff initiated this action on January 2, 2012, with the filing of its Verified
Complaint for Foreclosure and Other Relief (“Complaint”). The Complaint sought to
foreclose a Mortgage on commercial realty and asserted five (5) Counts: (1) Foreclosure of

Mortgage against Borrower; (2) Breach of Note by Borrower; (3) Breach of Guaranty -
1

FILED: PALM BEACH COUNTY, FL, SHARON R. BOCK, CLERK, 10/14/2016 10:21:53 AMFrancis Pantaleo; (4) Breach of Guaranty:=. Denise Pantaleo; and (5) Foreclosure of a
Security Interest - UCC1.

2. On January 29, 2013, by consent of all parties, this Court entered a Final
Judgment of Foreclosure and Damages (“Judgment”). Exhibit “A. Pursuant to Paragraph
19 of the Judgment, the parties agreed for the Court tor reserve jurisdiction, but only ina
limited fashion:

Jurisdiction of this action is retained to enter further orders that are proper

including, without limitation, orders establishing Plaintiff's liability to

Defendants, Plaintiff's attorneys’ fees, writs of possession and deficiency

judgment or surplus, if any.
(bold emphasis added).

3. The Judgment was subsequently amended on February 11, 2013 (“Amended
Judgment”) to attach certain exhibits, but the jurisdiction retention clause of Paragraph 19
remained unchanged. Exhibit “B.”

4, The security for the loan included both real and personal property.
Judgment at $10 and 11. This mortgaged property was sold on April 30, 2014 to the
Plaintiff, and a Certificate of Title was issued to the Plaintiff on May 20, 2013. Exhibit “C.”
However, the Certificate of Title transfers only the real property and does not convey the
personal property that was also foreclosed by the Judgment. Id. Nonetheless, Plaintiff
obtained possession of both the real and personal property following the sale.

5. Apparently, unsatisfied with having swiftly taken all of the Borrower's assets
by the AGREED Judgment, on April 16, 2014, the Plaintiff filed its Motion for Deficiency

Judgment against all Defendants (“Deficiency Motion”). By way of the Deficiency Motion,the Plaintiff seeks not only a deficiency judgment against the Borrower!, which may be
accorded in equity following foreciosure, but aiso a judgment under it's legal (contract of
guaranty) claims against the Guarantors by virtue of their personal guarantees.
However, the guaranty claim has already reached a final adjudication and been reduced to
Judgment, and this Court has since been divested of jurisdiction over the legal guaranty
claim by virtue of the Judgment.

6. Thus as an initial matter, the Plaintiff has conflated the right to pursue an
equitable “deficiency judgment” (singular) against the Borrower as a facet of the
foreciosure proceedings, with the separate and distinct iegai ciaim against the guarantors
for a money damages governed by contract law. While this Court certainly retained
jurisdiction to enter a deficiency judgment against the Borrower under Count I (the
equitable count for foreclosure), this Court lacks jurisdiction to enter a judgment for money
damages on the Plaintiff's legal contract claims under the guaranties. While an action on
the guaranties was previously set forth within Counts 3 and 4 of the Complaint, entry of the
Judgment divested this Court of further jurisdiction over said counts.

7. When the judgment was agreed upon, the Court solely retained jurisdiction
to enter “orders” including: (1) “establishing Plaintiff's liability to Defendants:” (2)
“Plaintiff's attorneys fees; (3) writs of possession; or and (4) deficiency judgment [singular]
or surplus, if any.” Judgment and Amended Judgment at 119. Notably, whether by error or

actually being reflective of the parties’ agreement, there is no reservation for the Court to

1 Throughout this Motion, reference to the “Borrower” is exclusively a reference to Turnpike Restaurant
Parcel, LLC, the Mortgagor. Borrower should in no way be construed to refer to either Guarantor. Guarantors
are not parties to the Mortgage or the foreclosure action.

3consider either the amount of money damages under the guaranty counts (Counts 3 and 4)
or “Defendants’ liability to Plaintiff”

8. Rather, the only “judgment” in favor of the Plaintiff for which jurisdiction was
retained was for a “deficiency judgment” (singular), which is an equitable claim against the
mortgagor and attendant to foreclosure proceedings tried in equity. The Plaintiffs right to
seek a deficiency, which is within the Court’s equitable discretion, is a claim separate and
apart from the legal claim to money damages Plaintiff previously asserted against the
guarantors, but which was removed from this Court’s jurisdiction when the agreed
Judgment became finai.

9. Accordingly, the Guarantors are entitled to an order dismissing them or
otherwise striking any claims against them as being beyond this Court’s jurisdiction.

10. Plaintiff's Motion also is insufficient on its face with respect to the foreclosed
Borrower. Indeed, the amount sought for the deficiency judgment is specifically contested
and subject to equitable considerations that must be considered at an evidentiary
hearing. Specifically, in Borrower's opinion—competent as owner of the real and personal
property foreclosed—the Plaintiff's appraisal is understated and Borrower intends to
present testimonial evidence of same.

11. Furthermore, although the Plaintiff received a Certificate of Title on May 20,

2013 for the real property, for unknown reasons Plaintiff failed to obtain a Certificate of

Title that additionally conveyed the foreclosed personal property. Consequently, because

? Again, whether by mistake, or by the parties’ agreement the Judgment and the Amended Judgment referred
to retaining jurisdiction to “establish Plaintiffs liability to Defendant” but not to establish Defendants’ liability
to Plaintiff.

4the record demonstrates that Plaintiff has been utilizing the Borrower’s personal property
from the 2014 to the present—without conveyance of title—Turnpike Restaurant Parcel
LLC is entitled to credit not only the value of the personal property, but additional credit
for the reasonable rental value of the personal property from 2014 until title is lawfully
conveyed,

12. Finally, the circumstances surrounding Plaintiff's recovery from a third party
insurer may justify an equitable reduction or elimination of the deficiency judgment
sought.

13. For the foregoing reasons, the Guarantors should be dismissed, and the claim
to a deficiency judgment solely against the borrower should be scheduled for trial to the
extent Plaintiff intends to pursue same in light of the absence of jurisdiction over the
Guarantors.

MEMORANDUM OF LAW

A. The Court Did Not Reserve Jurisdiction to Adjudicate Guaranty
Damages

It is axiomatic that unless a reservation of jurisdiction is specifically authorized in a
final judgment, a lower tribunal’s attempt to do more than enforce the judgment according
to its strict terms is disallowed and constitutes a nullity. See, e.g., HSBC Bank USA, N.A. v.
Reed, 76 So.3d 965, 966 (Fla. 1st DCA 2012) (trial court in foreclosure action is without
jurisdiction to enforce a post-judgment settlement agreement); Lucas v. Barnett Bank of Lee
County, 705 So.2d 115, 116 (Fla. 2d DCA 1998) (a court cannot reform the foreclosing
plaintiff's mortgage post-judgment); Patin v. Popino, 459 So.2d 435, 436 (Fla. 3d DCA 1984)

(trial court is without jurisdiction to entertain a motion for award of attorney's fees, or to
5declare a charging lien); Ross v. Damas, 31 So.3d 201, 203 (Fla. 3d DCA 2010) (trial court in
a foreclosure action loses jurisdiction unless reserved for the specific issue or authorized
under the Florida Rules of Civil Procedure); and Sienna Ridge Homeowners’ Ass'n, Inc. v. Asia
Pac. Sovereign Fund, LLC, 2013 WL 4525407 (Fla. 4th DCA 2013) (final judgment of
foreclosure does not confer jurisdiction on trial court to determine amount of assessments
owed post-sale). There is simply no question that the Judgment submitted to this Court—
by agreement—did not retain jurisdiction to try the amount of damages otherwise
recoverable under Counts 3 and 4 (the guaranty claims).

it cannot be ignored here that the judgment was entered by parties’ consent and in
an effort to avoid further litigation over a non-performing loan secured by assets sitting
idle. But both common sense and the language employed in the Judgment demonstrate

that Defendants did not agree to the Plaintiff essentially obtaining its best day in Court for

absolutely nothing in return. Rather, the terms of the Judgment confirm the Defendants’
collectively agreed only that the Court would reserve jurisdiction to entertain a (single)
“deficiency judgment” and “Plaintiff's liability to Defendants?.” No language in the
judgment supports a finding of jurisdiction by the court to evaluate the “Guarantors’
liability to the Plaintiff” to pay the Borrower's deficiency under the guaranties sued upon in

Counts 3 and 4.

* To the extent the Plaintiff argues this was a clerical error rather than the narties’ aereemant the time to
correct same has long since passed. “A trial court may correct a clerical error "at any time on its own
initiative" pursuant to Florida Rule of Civil Procedure 1.540(a), but judicial errors, which include errors that
affect the substance of a judgment, must be corrected within ten days after entry of the judgment pursuant to
Florida Rule of Civil Procedure 1.530, or by appellate review.” Bolton v. Bolton, 787 So, 2d 237, 238-39 (Fla.
2d DCA 2001); Meyer v. Meyer, 525 So. 2d 462, 464 (Fla. 4th DCA 1988) (trial court loses jurisdiction to
amend final order when motion for rehearing not filed within time afforded by Fla. R. Civ. P. 1.530). Here,
reversing the words to reserve jurisdiction over the liability of Defendants to Plaintiff clearly changes the
“substance” of the retention, and is therefore prohibited.

6Without question, the Guarantors were entitled to rely upon the language of the
proposed agreed judgment draited by the Piaintiff, and Piaintiff is not now entitied to
rewrite same years later. The Judgment’s retention clause is limited unlike the myriad of
cases this Court may be familiar with that have allowed post judgment consideration of a
guarantors’ liability. This case is different because the Judgment’s retention clause does
not contain the almost universally* employed language of reservation for “such other and
further RELIEF as may be appropriate.” L.A.D. Prop. Ventures, Inc. v. First Bank, 19 So. 3d
1126, 1128 (Fla. 2d DCA 2009)(deficiency under guaranty is reserved if judgment retains
jurisdiction “for the purpose of . . . granting such other and further relief as may be
appropriate."). Whether by agreement, from the Defendant's perspective, or oversight or
lawyer error, the fact remains that the Judgment fails to include in its retention clause the
“magic language” used in almost all reservation judgments where there remains a category
of damages unresolved by the judgment but for which subsequent adjudication is
contemplated,

And there can be no question that the claim to a deficiency judgment against the
Borrower is distinct from the Piaintiff's previousiy heid separate and independent right to
sue the Guarantors as a legal contract claim. For example, language used in a decision from
Fifth District illustrates that the Guarantors’ liability to pay Plaintiff the “amount” of a
deficiency judgment was a distinct obligation from the Borrower's: “Fairwinds continues to
“To the extent Plaintiff contends it never intended to fail to reserve jurisdiction over Counts 3 and 4, a
confirmation that jurisdiction is lacking despite Plaintiff's unilateral mistake would not leave Plaintiff without
remedy. For example, if it were not a tactical decision but a mistake, it would have a malpractice claim
against its attorneys. Additionally, Plaintiff (upon information and belief) has been paid in full on this loan
and otherwise made whole by the FDIC, leaving no compelling reason to depart from clear legal precedent in

an effort to remedy Plaintiffs mistake.
7have a right to pursue a deficiency judgment against the obligors and to demand the
remaining indebtedness from the Marulandas under the guaranty agreements.” Weston
Orlando Park, Inc. v. Fairwinds Credit Union, 86 So. 3d 1186, 1187 (Fla. Sth DCA
2012). Accepting the Plaintiffs position that retaining the right to pursue a deficiency
judgment in foreclosure inherently subsumes a separate legal claim would give no
meaning to the second half of the quoted language; the Fifth District would have just
stated “right to pursue a deficiency judgment against the obligors and the guarantors.”
Weston Orlando Park is additionally instructive in that both its holding and the
underlying judgment iiiustrate the requisite jurisdiction retention janguage necessary to
go back for a legal judgment against a guarantor in addition to seeking a deficiency
judgment against a borrower. In that case, the Fifth District disallowed the professed
retention of jurisdiction on the promissory note claims after the foreclosure of the
mortgage because “the debt represented by the notes had merged into the final
judgment.” 86 So. 2d at 1187. Instead, it did what the Plaintiff would have this Court do
and affirmed the Plaintiff lender's rights to seek the deficiency judgment, as well as a legal
judgment against the guarantors under their guaranty agreements. Jd, But the Plaintiff in
this case does not have the benefit of the retention language utilized in Weston Orlando
Park. To understand precisely what is absent in the instant case, the Court must review the
retention clause Weston Orlando Park, which provided:
The Court reserves jurisdiction over the claims raised by the Plaintiff in
Counts I, III, V and VI of the Verified Amended Complaint, reserves
jurisdiction to award the Plaintiff attorney’s fees and reserves jurisdiction to

enter further orders that are proper, including, without limitation, writs of
possession and deficiency judgment.Final Judgment of Foreclosure dated June 17, 2011, Off. Rec. Orange Cty., FL DOC
#20110327085; BK: 10230, PG: 2722, attached hereto as Exhibit “D.” Upon remand, the
final judgment in Weston Orlando Park was amended to exclude the retention of
jurisdiction over Counts I and III (the promissory notes that had merged into the
foreclosure judgment), but the amended judgment of foreclosure continued to reserve
jurisdiction over both: “Counts V and VI [guaranties]. . . and Deficiency
Judgment.” Amended Final Judgment of Foreclosure rendered May 31, 2012 attached
hereto as Exhibit “E.” As is demonstrated by both the language employed by the appellate
court and within the actual final judgments in Weston Orlando Park, retention for both the
“Deficiency Judgment” and the counts seeking judgment on the guaranties were explicitly
and separately retained. Doing so was not merely “surplusage,” but rather necessary to
vest this Court with the right to continue to adjudicate claims after entry of the final
Judgment.

Even if the Plaintiff always intended to pursue the Guarantors under Counts 3 and 4,
it lost that right when it submitted a final judgment resolving those claims without
providing for an amount of damages for which execution could issue. Instructive on this
issue is the case of Bailey v. Brickell Key Centre-FBEC, L.L.C, wherein the Third District
pronounced “that a trial court loses jurisdiction to address damage issues that should have
been, but were not, resolved prior to entry of a "final" judgment.” 778 So. 2d 386, 386 (Fla.
3d DCA 2001).

In Bailey, a landlord brought an action for possession, damages and recovery on a

guaranty. Id. The trial Court issued a final judgment of eviction and ordered a writ of

9possession to issue, reserving jurisdiction on collateral matters that included, but were not
limited to, attorney's fees. Id. The landlord later requested and was granted a judgment
for damages against the tenant's guarantor. /d. Reversing the damages award on the
guaranty, the Third District found that the original judgment was final as to damages
because there was no reservation of jurisdiction on that precise issue. /d. There, as here,
once a trial court issued that final judgment, it lost jurisdiction to hold a trial and award
further damages on any claim absent an explicit reservation which is lacking here. All the
Plaintiff in the instant case had to do was add language reserving jurisdiction as to the
“amount due under Counts [iI and IV’ or “for the legal claims under the guaranty” or even
“further and other relief against Guarantors” Plaintiffs failure to do so is fatal to its pursuit
of the Guarantors for the same reason it was fatal to the landlord in Bailey, 778 So. 2d 386.

Seeking a deficiency decree against the Borrower attendant to the foreclosure
judgment is a right embodied with Florida law. § 702.06, Fla. Stat, (2016) (“In all suits for
the foreclosure of mortgages heretofore or hereafter executed the entry of a deficiency
decree for any portion of a deficiency, should one exist, shall be within the sound discretion
of the court”). Thus, motions for deficiency are “part and parcel to the foreclosure
proceedings.” Timmers v. Harbor Fed. Sav, & Loan Assoc. 548 So. 2d 282, 283-84 (Fla. 1st
DCA 1989). And, unlike guaranty claims, a “necessary predicate for a deficiency is an
adjudication of foreclosure.” Singleton v. Greymar Assocs, 882 So. 2d 1004, 1007 (Fla.
2004).

By contrast Plaintiffs claim against the guarantors is not interconnected with the

equitable foreclosure claims and Plaintiff was never required to pursue foreclosure in

10order to sue the Guarantors; doing so was voluntary. “[A] guarantor of a mortgage note
who has no interest in the mortgaged property, although a proper party, is not a necessary
party to an action to foreclose the mortgage.” Cukierman v. BankAtlantic, 89 So. 3d 250,
252 (Fla. 3d DCA 2012) See § 46.041(1), Fla. Stat. (holder can choose to sue guarantor in
the same action as maker); § 673.416(1), Fla. Stat. (holder can choose to sue guarantor
separately); see also, Gottschamer v, August, Thompson, Sherr, Clark & Shaffer, P.C., 438 So.
2d 408, 409 (Fla. 2d DCA 1983) ("[A] suit on a guaranty and an action to foreclose a
mortgage are not inconsistent remedies, and pursuing either action without satisfaction
does not bar the pursuit of the other."); Mullins v. Sunshine State Service Corp., 540 So. 2d
222, 223 (Fla. 5th DCA 1989) ("Where the guarantee is absolute, the guarantor becomes
liable upon non-payment by the principal, and the person in who's favor the guaranty runs
has no duty to first pursue the principal before resorting to the guarantors.").

In this case, the Guarantors’ obligations under the guaranties are, by their own
terms, wholly independent of the Note and Mortgage. They provide, inter alia, that the
“liability of the Guarantor under this Guaranty shall be primary, direct and immediate and
not conditional or contingent upon pursuit by the Bank .. . of any remedies it may have
against Borrower....” In other words, the Plaintiff was entitled to seek a judgment for the
full amount of the debt against the Guarantors - the counts against the Guarantors did not
involve any “deficiency.” But Guarantors understandably did not agree to same. Instead,
in order to obtain a quick judgment of foreclosure, the Plaintiff's pursuit of a judgment of
dubious collectability against Guarantors was abandoned ~ either intentionally or through

neglect-- and Plaintiff received substantial repayment as a result of the agreed foreclosure.

11And there can be no question that Plaintiff is asking this Court to hold a trial over
claims that were previously adjudicated. Pages 8 and 9 of Plaintiffs Motion discuss in
detail and attempt to dismiss the efficacy of the Guarantors’ Affirmative Defenses. The only
reason to consider a parties’ affirmative defenses is in order to try the claims pleaded. But
here, those claims have already been disposed of by the Judgment and without an award of
damages subject to execution. Because, jurisdiction over the wholly independent guaranty
claims was never reserved, the request for this Court to consider same is a nullity and
Guarantors are entitled to an order dismissing them from these proceedings.

B. The Deficiency Judgment Against the Borrower is Discretionary and
Requires an Evidentiary Hearing

"[T]he party seeking a deficiency judgment has the burden of proving that the fair
market value of the property foreclosed upon was less than the total mortgage debt owed.”
Estepa v. Jordan, 678 So. 2d 876, 878 (Fla. 5th DCA 1996). And, “[t]he critical date the fair
market value of the real estate must be established for such purpose is the date of the
foreclosure sale." Estepa, 678 So. 2d at 878 (reversing in part because the “opinion of value
was 27 days after the date of the foreclosure.”).

Here, the valuation advanced by the Plaintiff was based on an inspection that did not
include interior access until December 19, 2013, which was over seven months after the
sale. See Appraisal. Furthermore, the owner of the property, Borrower, contests this
valuation as understated and inaccurate. An “owner is qualified to testify as to the market
value of his property.” Vickers v. State, 303 So. 2d 700, 701 (Fla. 1st DCA 1974). “Generally,
one who owns property may testify concerning its value without having special

expertise.” Foley v. Dick, 436 So. 2d 139, 141 (Fla. 2d DCA 1983). The entry of a deficiency
12decree is within the sound judicial discretion of the court [§ 702.06, Fla. Stat.], and the
exercise of that discretion allows the court to inquire into the reasonable and fair market
value of the property, the reasonableness of the price at the foreclosure sale, and other
equitable considerations. FDIC v. Hy Kom Dev. Co., 603 So. 2d 59, 61 (Fla. 2d DCA
1992). Based on the facts of this case, further consideration of the myriad of equitable and
legal concerns is mandated and can only be undertaken with a full and fair hearing
accorded Borrower.

For example, and without limitation, Borrower would point out that although the
Notice of Sale in this action included the personal property in addition to the reaity, the
personal property was never conveyed to Plaintiff within the Certificate of Title. Exhibit
“C.” Where real and personal property are foreclosed simultaneously, the Certificate of
Title should be drafted to convey both. E.g., Mae v. Windward Apts. of Orlando, 2010 Fla.
Cir. LEXIS 8355, *16 (Fla. 9th Cir. Ct. Dec. 20, 2010), a copy of which is attached as Exhibit
“F.” Whether yet another error by the Plaintiff or inadvertence by the Clerk, the fact
remains that title to the Borrower’s personal property has remained vested in Turnpike
despite it having been within the Plaintiff's care custody and control since the foreclosure
was consummated in 2014. No accounting for the Plaintiffs use or rental value for over the
past two years is provided in the valuation offered to this Court.

Ultimately, Borrower contends that little or no deficiency judgment is warranted
based upon the Plaintiffs showing, and to the extent Plaintiff intends to pursue same
against Borrower despite the lack of jurisdiction over Guarantors, an evidentiary hearing is
mandated.

13c. Further Discovery on any Insurance Payment and or Potential
Subrogation Should be Considered in Equity.

Borrower has reason to believe that the FDIC may have compensated Plaintiff for
any deficiency with respect to the subject loan. There remains case law that suggests such
matters should be, at minimum, considered in equity. Specifically, an Arizona court
reversed the dismissal of a complaint, stating payment from the FDIC “may” reduce

liability based on a UCC provision:

While the alleged insurance payments are indeed speculative and
unsupported, the assertion that the FDIC has already reimbursed OneWest
for Steinberger's default is not unsupported, based on the fact the Shared-
Loss Agreement does appear to authorize such reimbursement. Under ARS.
§ 47-3602, "an instrument is paid to the extent payment is made by or on
behalf of a party obliged to pay the instrument and to a person entitled to
enforce the instrument.” Thus, if it is true that the FDIC has already
reimbursed OneWest for all or part of Steinberger’s default, OneWest may not
be entitled to recover that amount from Steinberger.

Steinberger v. McVey, 234 Ariz. 125, 145, 318 P.3d 419, 439 (Ct. App. 2014). Florida’s UCC
has a similar provision providing: “an instrument is paid to the extent payment is made by

or on behalf of a party obliged to pay the instrument and to a person entitled to enforce the

instrument.” § 673.6021, Fla. Stat.
In addition, “to the extent an insurance payment has been made,” then Plaintiff may

lack standing to seek the deficiency absent showing of an assignment back by the subrogee.

nifilling ite dutw of candor to the trihynal Dafondants identify the contrary cace lau of Branch Banking 2
+ RUMIMACUELS HAGEIMLLY MIG COLLEY CAGE KEYY OL MT URCEL BPEL OC

Trust Co. v. Kraz, “LLG 1 114 § So. 34 273, 276 ‘Fla, 2a DCA 2013) (reversing trial court and holding that any
recovery under the shared loss agreement with the FDIC would not reduce the debt owed by the borrower).

Notwithstanding the holding of this case, however, Defendants would distinguish the holding based upon a
lack of a complete record in this case due to Plaintiff's objections, but furthermore nothing in Xraz purports to
divest this Court of its equitable discretion when contemplating a deficiency award. Even if the debt here is
not reduced, this Court still holds equitable discretion to refuse to award the Plaintiff relief where it may lack
standing, or where the recovery from the Borrower would be inequitable when considering all the
circumstances—which here likely include the Plaintiff's debt having been satisfied by the FDIC.

14Citicorp Mortg., Inc. v. Younger, 856 P.2d 52, 53 (Colo. App. 1993) (“while federal mortgage

insurance is not an alternate mechanism for the repayment of defaulted loans, without
assigning the notes to HUD, the lender cannot collect on the default and later assign the
proceeds to HUD because the lender is not a real party in interest. Applying that principle
here, we conclude that, since Citicorp is the party in interest here, and collected insurance
proceeds, it is not entitled to further recovery because it has recovered its damages.”).
Given the Court has discretion whether to subject the Borrower to a deficiency decree, it

certainly should receive evidence as to Plaintiffs standing as well as the existence of any

actual loss before rendering any decision in the matter.
CONCLUSION
For the foregoing reasons, the Guarantors should be dismissed and the Court should
deny the deficiency judgment sought on the pleadings, scheduling same for evidentiary

hearing should the Plaintiff elect to proceed in the Guarantor’s absence.

Zs/BRETT |, HOROWITZ
BRETT J. HOROWITZ, ESQUIRE
FL BAR NO.: 494860

WEINER & THOMPSON, P.A.

10 SE 15T Avenue
Delray Beach, FL 33444

Email: bhorowitz@zonelaw.com
Telephone: 561-265-2666
Fax: 561945-8779

CERTIFICATE OF SERVICE
1 HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished
by email on this \ | day of October, 2016 to: Alison K. Brown, Esquire, Holland & Knight,

222 Lakeview Avenue, Suite 1000, West Palm Beach, Florida 33401; Eleni C. Pantaridis,
15Esquire, Eleni C. Pantaridis, P.A., 2385 N.W. Executive Center Drive, Suite 100, Boca Raton,

Florida 33431; and Linda A. Conahan, Esquire, Gunster, Yoakley & Stewart, P.A, 450 E. Las

Olas Blvd., Suite 1400, Fort Lauderdale, Florida 33301.

16

Zs/BRETT J, HOROWITZ
BRETT J. HOROWITZ, ESQUIRE
FL BAR NO.: 494860

WEINER & THOMPSON, P.A.

10 SE 157 Avenue

Delray Beach, FL 33444

Email: bhorowitz@zonelaw.com
Telephone: 561-265-2666

Fax: 561945-8779EXHIBIT “A”IN THE CIRCUIT COURT OF THE
FIR H JUDICIAL CIRCUIT IN AND
FOR PALM BEACH COUNTY, FLORIDA

 

   
  
  

 

‘CITIZENS BANK & TRUST Case No.: 502012CA012360XXXXMB
Ce , a North Carolina banking
ol n, Division: AN
o .
Reif,
ree. wean.
TURNPIKE KESTAURANT PARCEL, oe B c :
LLC.,, a Flori oration; FRANCIS T. Eon 3
PANTALEO, inividually; DENISE L. 230 7 m
PANTALEO, indit lly; EDWARD 2385. = o ;
McCABE, individu: ONNA FEa F
McCABE, individual oan E ,
a
on

CY
THIS CAUSE comes Ge? the Court upon agreement of the Plaintiff, Turnpike

Restaurant Parcel LLC, Francis P: and Denise Pantaleo. Having reviewed the evidence
and being otherwise fully advised in ises, it is hereby,
ORDERED and ADJUDGED:

1, Final Judgment of Foreclosure and Damages against Defendants on all counts is hereby
GRANTED.

2, Final judgment of foreclosure is hereby entered,

3, Due and legal service of process were made upon Defendants, This Court has

 
 

t Aten morree Bin act wad sta methine mentee fe dn Vata Aa elatne

JMNSOIGUON SVET WS PAIUGS BiG Ue SUOJSCL MANET in Wie Veruca Compan.

4, The Mortgage sued upon by First Citizens Bank & Trust Company (“First Citizens”)
constitutes a valid lien upon the property hereafter described and this Court finds that the

Mortgage is in default as alleged in the Verified Complaint.

EXHIBIT °,*

CFN 20130048698, OR BK 25758 PG 1501,RECORDED 01/31/2013 14:47:08
Sharon R. Bock,CLERK & COMPTROLLER, Palm Beach County, NUM OF PAGES 95. First Citizens, located at 1200 N Federal Hwy, Ste 111A, Boca Raton, FL 33432, is due

the following amounts under the note and mortgage sued on in this action:
a. $1,481,503.19 as principal,
° ». $100,482.20 as regular interest,
ee $3,880.99 in late charges,

sions in forced placed insurance,

e (@}}50.00 as appraisal fees,
f. $1 ca as default interest from July 2, 2012 until December 26, 2012

fale nt OFAN IEVEDE mane Aine’,
(CaO G Sp Bt 9 14. 191070 per UIE),

g& $357.50 le search expenses,
°

hb, $1,906.00 in’ e3,
i, $9.80 fee to pee ‘pendens,
j. $50.00 to issue the Sémmons,
k. $150.00 to serve all Dei ts, and
1. $22,001.40, in reasonab! ey’s fees incurred in bringing this action,
m. Total sum of $1,768,608.40
Post judgment interest on the total sum shall be in accordance with Florida Statute

§55.03.

6. The law firms of Gunster, Yoakley & Stewart, P.A. and Holland & Knight LLP have
reasonably exnended 83.1 hours for legal services nrovided to First Citizens in this action
and the hourly rates charged by those firms of $252.00, $261.00, $247.50 for Alison

Brown, for Linda Conahan, $184.50 and $175.50 for Terri Clark, $220.50 and $207.00

Page 2

‘©F81 20190048808 BOOK 25760 PADE 1602, 20F 0for Michelle Raab, $189.00 for Mark Workman, $234.00 for Dustin Robinson, $225.00
Jane Ricker, and $468.00 for Brian Hole were reasonable.
‘irst Citizens is due the total amounts identified in paragraph five, jointly and severally,
om Tumpike Restaurant Parcel LLC (“Tumpike”) located at 8221 Lake Worth Road,
Tale Worth, Florida 33467, Francis T. Pantaleo ("Francis") and Denise L. Pantaleo
aig ") both located at 1655 Breakers West Blvd., West Palm Beach, Florida 33411.
The due and owing from Francis and Denise is subject to their right of sct-off if

the Prope Sp Personal Property is sold at foreclosures ale, for greater of the sum which

de hidd nt tha KIA fae sin athe aan od Tete men
iS Uiup at uc eeiyassuie Sale ior ins Fioperty ana Peisonar Fioperty, or tig fair market

   

under oath, the on Civil Procedure Form 1,977 Fact Information Sheet

including all required atti nts and serve the completed Fact Information Sheets on

the Plaintiffs attomey oe within 45 days for the date of this final judgment,
unless final judgment is satisfi¢d Tor/post-judgment discovery is stayed. The form to be
completed by Turnpike is attached as Exhibit A. The form to be completed by Francis
and separately by Denise is attached as Exhibit B.

9. Judgment is entered foreclosing the Property and Personal Property, establishing the
superiority of First Citizen's interest in the Property and Personal Property over and

above anv interest claimed by Defendants, and all nersnne claiming an interest in the
a

CAGIInIng Gin Gaceiwoe ana uw

Property and Personal Property by or through Defendants.

Page 3

(GFW 20130048688 BOOK 26760 PAGE 1809, 30F 210. First Citizens holds a lien for the total sum superior to any right, title or interest of
Defendants or anyone who claims thereunder, on the following described Property in
alm Beach County, Florida.

roel A (Fee Simple)

A poftion of Parcel “A” of Exit 93 LLC M.U.P.D., according to the Plat thereof as
din Plat Book 104, Pages 160, 161,162 and 163 of the Public Records of Palm
Beach ity, Florida, being more particularly described as follows:

Begin northwest corner of Parcel “B” of aforesaid Plat; thence South 89° 22’ 27”
West for f3¥.47 feet to the west line of said Parcel “A”; thence South 00° 37° 24” East
along the line of said Parcel “A” for 227.34 feet to the southwest comer of said
Parcel “A” ;uthence North 89° 22’ 27” East along the south line of said Parcel “A” for

127 £0 foot tn KEAuthanst anmnar nf anid Daenal (AM, thanna Macth ANG 209 1199 Wank alan
date ICO eoyuuivase COrier Gi SciU Paice, A UIGHOG INUIUL YU 97 11) WOSL GONE

an east line of arcel “A”, also being the west line of said Parcel “B” for 227.34 feet

   
  

Easement recorded in O ‘ds Book 16416, Page 166, as clarified in Official
Records Book 21040, Paé~1470 all of the Public Records of Palm Beach County,
Florida.

8221 Lake Worth Road, Lake & Florida 33467

11. First Citizens holds a lien for Lota sum superior to any right, title or interest of

Non-Exclusive cari Ingress/Egress as set forth in that Declaration of Access

Defendants or anyone who ciaims thereunder, on the foliowing described Personal
Property in Palm Beach County, Florida.

(a) Improvements - All buildings, structures, betterments, and other improvements of any
nature now or hereinafter situated in whole or in part upon the property located upon

vacant land at Lake Worth Road and Florida Turnpike, Lake Worth, Florida, as more
particularly described in Exhibit "A" attached hereto thereafter the "Pronertv")

scribe MEes 79
regardless” of whether physically affixed thereto or severed or capable of severance
therefrom.

(b) Appurtenances - The benefit of all easements and all other rights of nature whatsoever
appurtenant to the Property or the improvements, or both, and all rights of way, streets,

alleys, passages, drainage rights, sewer rights, and rights of ingress and egress to the
Property, and all other adjoining property, whether now existing or hereafter arising,

Page 4

(GFN 70130048008 HOOK 25768 PAGE 1604,40F 3together with the revision or reversion, remainder or remainders, rents, issues, incomes,
alia pront OF aay Of wis Toregoing.

(c) Contract Rights - All of the Mortgagor's right, title, and interest in and to any and all
ontracts, written or oral, express or implied, now existing or hereafter entered into or
ising, in any manner related to the improvement, use, operation, sale, conversion, or
er disposition of any interest in the Mortgaged Property, or any combination,
luding any and to become due thereunder, and including construction contracts,
geepife contracts, advertising contracts, purchase orders, and equipment leases.

WG
Pua i or Rents - Ail rents, issues, incomes, and profits in any manner arising from
the erty, Improvements, or Tangible Property, or any combination, including
Mortg; Interest in and to all (eases, including leases for all units owned, licensed,
franchist id concessions of, or relating to, all or any portion of the Property,
Improvem: Tangible Property or Intangible Collateral, other Intangibles, whether
now existing or h 7 hereafter made, including all amendments, modifications, replacements,

 

 
   

the Florida Unifo: juercial Code, in any manner related to the use operation, sale,
conversion, or the di¥ tion (voluntary or involuntary) of the Property, Improvements,
Tangible Property, THE@Bible Collateral or Rents, including all permits, licenses,
insurance policies, right oradedon, and other choices of action.

 

(f) Proceeds - All proceeds(@Pthe conversion, voluntary or involuntary, of any of the
Property into cash or other li ited claims, or that are otherwise payable for injury to,
or the taking or requisitiony any such property, including all insurance and

condemnation proceeds. nD

(g) Secondary Financing - All Mortgagor's right, power, or privilege to further encumber
any of the Mortgaged Property for debt without the Mortgagee's consent.

(h) Tangible Property - All of the Mortgagor’s Interest in all fixtures, equipment, and
tangible personal property of any nature whatsoever now or hereafter (i) attached or
affixed to the Property or the Improvements, or both, or (ii) situated upon or about the
Property or the Improvements, or both, regardless or whether physically affixed thereto
or severed or capable of severance therefrom. The foregoing includes: all plants and

Hi 1 torial: all cinne: all tanta
landscaping; all advertising and promotional material; all signs; all tools; security

equipment ‘and uniforms,; al] heating, air-conditioning, lighting, incinerating, and power
equipment; all engines, compressors, pipes, pumps, tanks, motors, conduit, wiring, and
switchboards; all plumbing, lifting, cleaning, fire prevention, fire extinguishing,
refrigerating, ventilating, and vacuum cleaning systems, elevators, and escalators; all
stoves, ovens, ranges, disposal units, dishwashers, water heaters, exhaust systems,
tefrigerators, cabinets, and patricians; all rugs and carpets; all laundry equipment; all
building material; all furniture; furnishings, office equipment, and office supplies

 

 

Page 5

‘er 20130048808 BOOK 25765 PAGE 1605,50F(including Stationery, letterheads, billheads, and all building and items of similar nature);

awd oN
anu ai aaaiuoas, ACCESSIONS, renewais, replacements, aid substitutions oF any or ail or

the foregoing.
the total sum with interest at the rate described in paragraph 4 and all costs accrued
Bsequent to this judgment are not paid, the clerk of this court shall sell the Property and
Pessofal Property at public sale on APRIL 1, 20/3, wx, 2
a.m.fp-m-to the highest bidder for cash, except as prescribed in paragraph
8, at 2 rth Dixie Highway, in Palm Beach County, in West Palm Beach, Florida, in

aecordance ass} section 45.031, Florida Statutes, using the following method:

     

13. Such sale shall be régehedpled if Plaintiff or its designee does not appear at the sale. The

Clerk may reschedule Ko eclosure sale upon the request of Plaintiff without further
77>

order of the Court. 7

14, Plaintiff shall advance all Boren costs of this action and shall be reimbursed for
them by the Clerk if Plaintiff ong the purchaser of the property for sale, provided,
however, that the purchaser of the property for sale shall be responsible for the
documentary stamps payable on the certificate of title. If Plaintiff is the purchaser, the
clerk shall credit Plaintiffs bid with the total sum with interest and costs accruing
subsequent to this judgment, or such part of it, as is necessary to pay the bid in full.

thi artifinate af title tha alae ahell Aintethes Am at __9_ 2
15, On filing the certificate of title the clerk shall distribute the PIOCCEUS GT thE Sale, 50 Tar as

they are sufficient, by paying: (1) all of the Plaintiff's costs; (2) documentary stamps
affixed to the certificate; (3) Plaintiff's attorneys’ fees; (4) the total sum due to Plaintiff,

less the items paid, plus interest at the rate prescribed in paragraph 4 from this date to the
Page 6

‘]71 20190048090 BOOK 25788 PAGE 1808, $F 9date of the sale; and (5) retaining any remaining amount pending the further order of this

Court.
mn filing the certificate of sale Turnpike and all persons claiming under or against
Gmpike since the filing of the notice of lis pendens shall be foreclosed of all right, title
and>ifterest in the property or personal property, except as to claims or rights under

Gr
Chapter,718 or Chapter 720, Florida Statues, if any, and the purchaser at the sale shall be

Jet int (DByession of the Property and Personal Property.
17, If any Defg es t fails to relinquish possession of the Property, First Citizens shall be
éfiitied to a weet possession without further order of the Court.

@

further order of the &

18, Plaintiff may as s final judgment or bid, if the successful bidder at the sale, without

    
   
 

19, Jurisdiction of this ac' @s retained to enter further orders that are proper including,
without limitation, ordessZetblishing Plaintiff's liability to Defendants, Plaintiff's
attorneys fees, writs of possess(@p)and deficiency judgment or surplus, if any.

IF THIS PROPERTY IS AT PUBLIC AUCTION, THERE MAY BE
ADDITIONAL MONEY FROM THE SALE AFTER PAYMENT OF PERSONS
WHO ARE ENTITLED TO BE PAID FROM THE SALE PROCEEDS
PURSUANT TO THE FINAL JUDGMENT.

IF YOU ARE A SUBORDINATE LIENHOLDER CLAIMING A RIGHT TO

BTINNS DEMAINING APTED TIT CATE VATIMTTICT GIT DA OT ATA WTO
2 Uses BAMUIACAML AUNT PRY RAIN ADU OE AU UU PRs Ok UC VA

Page 7

‘CR zet20040608 BOOK 25758 PAGE 1007, 70F 8THE CLERK NO LATER THAN’60 DAYS AFTER THE SALE. IF YOU FAIL
TO FILE A CLAIM, YOU WILL NOT BE ENTITLED TO ANY REMAINING
'UNDS.
{ONE AND ORDERED at Palm Beach County, Florida, on A day of

hev_, 2013.

 

Page 8

‘eFv1 20190048698 BOOK 25758 PAOE 1675, 90F 9COPIES FURNISHED TO:

 

Alison K Brown, Esq.
land & Knight, 222 Lakeview Avenue, Suite 1000, West Palm Beach, FL 33401 7

E . Pantaridis, Esq.
Ffice of Eleni C. Pantaridis, PA, 2385 NW Executive Center Dr., Ste. 100, Boca Raton,

F10@93343 1
>?

Carla e, Esq.
Archer Bay R A., 7901 Kingspointe Pkwy., Ste. 8, Orlando, Florida 32819

Edward Mc!
8221 Lake eetbRoad, Lake Worth, FL 33467

Donna McCabe ©

ONAL T at. Wr aes Tot Yanan
OL41 LEK WOT Nae LEG WOTUL, PL 3940/

Ss,
e,

“@
B
Ls

Page 9

FRO TSDOTIESS BOOK 25768 PAGE 1509, 9 OF 9EXHIBIT “B”IN THE CIRCUIT COURT OF THE
FIFTEENTH JUDICIAL CIRCUIT IN AND
FOR PALM BEACH COUNTY, FLORIDA

TZENS BANK & TRUST CaseNo.: — 502012C.A012360XXXXMB-

Col ’, 8 North Carolina banking
Division: AN

     
 
 

 

MoCABE, individually7}ONNA
Cee

MoCARE individnall
sraunes neracy ceeee rnmrereneey,

    

m4)

 
 

AMENDE

(Amended to include Exhibits Xp

THIS CAUSE comes befoxsthe Court upon agreement of the Plaintiff. Tumnike

S25)
Restaurant Parcel LLC, Francis fxd Denise Pantaleo, Having reviewed the evidence
¥
and being otherwise fully advised in the pices, itis hereby,
ORDERED and ADJUDGED:

1, Final Judgment of Foreclosure and Damages against Defendants on al) counts is hereby

GRANTED,

2. Final judgment of foreclosure is hereby entered.

3. Due and legal service of process were made upon Defendants. This Court has
jurisdiction over the parties and the subject matter in the Verified Complaint.

4, The Mortgage sued upon by First Citizens Bank & Trust Company (“First Citizens")
constitutes a valid lien upon the property hereafter described and this Court finds that the

~ GFN 20130069558, OR BK 25793 PG 885,RECORDED 02/13/2013 14:36:53

Sharon R. Bock,CLERK & COMPTROLLER, Palm Beach County, NUM OF PAGES 17

EXHIBIT *'B"we

Morigage is in default as alieged in ine Verinea Complaint.
First Citizens, located at 1200 N Federal Hwy, Ste 111A, Boca Raton, FL 33432, is due
following amounts under the note and mortgage sued on in this action:
2», $1,481,503.19 0s principal,
9 $100,482.26 as regular inieresi,
880,99 in late charges,
4. “€22)504.29 in forced placed insurance,
$5, Ae ay appraisal fees,

1 3i3i, 168 as GeTauit interest trom july Z Biz una December 20, 2012

@

(calculi 740.751595 per diem),
g. $357.50 for aes h expenses,
h. $1,906.00 in fili f
i. 39.50 fee io record ine di pendens,
j. $50.00 to issue the

k, sins wv ot Gy

1, $22,001.40, in reasonable attorney's fees incurred in bringing this action.

— Put. 81 M0 eno an
Ti, (0G SUM Ol 91,700,0U0.40

Post judgment interest on the total sum shall be in accordance with Florida Statute

§55.03.
6. The law firms of Gunster, Yoakley & Stewart, P.A. and Holland & Knight LLP have

Sanennable: aunancdad 2 1 brven fae lana! sarinan menue ta Divot Mitlmane tn thie antine
Teascnauly CAP SHUGE O2.1 BOULS 1UI ivgal er sices prowiuee to 4ung) Wiuzwue os WS BOLO

and the hourly rates charged by those firms of $252.00, $261.00, $247.50 for Alison
Brown, for Linda Conahan, $184.50 and $175.50 for Terri Clark, $220.50 and $207.00

Page 2

SANA DMORNEHN BOOK TES RAGE BOG, 3 OF 17—_ enne an

 

iit mannan fovea. 1 BATA A 6 nt
Tor Michelle NBAD, DIGY.UY IOF Mark workman, 2294.yu LOT wusun Rai

 

Jone Ricker, and $468.00 for Brian Hole were reasonable.

Be Citizens is due the total amounts identified in paragraph five, jointly and severally,
or Tumpike Restaurant Parcel LLC (“Tumpike”) located at 8221 Lake Worth Road,

8.

mans a

> arin, Florida 33407, Francis 7. Faniaieo (riencis') ana Dense L. Pamaeo

("De both located at 1655 Breakers West Blvd., West Palm Beach, Florida 33411.
The amasit.due and owing from Francis and Denise is subject to their right of set-off if
the Propertyaga)Personal Property is sold at foreclosures ale, for greater of the sum which

is bidg af the Aqresiosure sale for ihe Froperiy and Personal Property, or the fair manket
value on the date forectoaurea sale as established by the Court.

Tt is further ordered ged that Turnpike, Francis and Denise shall each complete,
under oath, the Flori ( le of Civil Procedure Form 1.977 Fact Information Sheet
Including ail required ati is and serve ine compicied Fact information Sheets on
the Plaintiff's attomey identifi cB within 45 days for the date of this final judgment,

co
unless final judgment is sit 6Bpevdgment discovery is stayed. The form to be
completed by Turnpike is attached as Exhibit A. The form to be completed by Francis

hee fond mn TaeRhS2 1D
diva Sepaiatcly bY Denise is auacnea 85 AMIN B,

Judgment is entered foreclosing the Property and Personal Property, establishing the
superiority of First Citizen's interest in the Property and Personal Property over and
above any interest claimed by Defendants, and all persons claiming an intorest in the

Daveanal Dronarty hu ar thrauch Dafandante,

Deaneety ard
Plopeity ain £ Gisunml A ropuaby Uy Gr MG eps R/cAvanensiie.

Page 3

(Gr 2p atommekd ROOM 26900 Pas 7, 20F 1710 Fivot Citizens holde 2 lien for the total sum ennerinr to gnu right, title or interest of
vere

Aur oy Views muree

Defendants or anyone who claims thereunder, on the following described Property in

 

Boat Beach County, Florida.

Dro

‘A rBSinn af Darsal “A nf Ryit OU TEC MIIPD. sccordina to the Plat thereof se

roxéifind in Plat Book 104, Pages 160, 162,162 and 163 of the Public Records of Palm
BeachCaunty, Florida, being more particularly described as follows:

 
 

Begin sXilip.northwest comer of Parcel “B” of aforeseid Plat; thence South 89° 22' 27"
West for 5747 fect to the west line of said Parcel “A”; thence South 00° 37° 24” East
along the line of said Parcel “A” for 227.34 feet to the southwest comer of said
Parcel A"; tence North 89° 22” 27" East along the south line of seid Parcel “A” for

Jemithanet comer of said Parral “an thenne North one ag° na” ‘Weet alone

 

TS2 feet to
an east line of. I A", also | being t the west Tine of ‘said Parcel “B" for Dis feet
to the Point of
°
Paes] B Basement<2"53
B Re
Non-Exclusive Easement ss/Egress as set forth in that Declaration of Access
Easement recorded in O1 rds Book 16416, Page 166, as clarified in Official
Recorde R. Book 21040) Pag! all af the Public Records af Paley Reach County,
Florida, 4
&
8221 Lake Worth Road, Lake Wet) Florida 33467
1}, First Citizens holds a lien for sum superior to any right, title or interest of

Defendants or anyone who claims thereunder, on the following described Personal

Property in Palm Beach County, Florida.

(a) Improvements - All buildings, structures, betterments, and other improvements of any
nature now or hereinafter situated in whole or in part upon the property located upon
vacant land at Lake Worth Road and Florida Tumpike, Lake Worth, Florida, as more
particularly described in Exhibit "A" attached hereto (hereafter the "Property”),
regardless of whether physically affixed thereto or severed or capable of severance
therefrom.

(b) Appurtenances - The benefit of alt easements and all other rights of nature whatsoever
appurtenant to the Property or the improvements, or both, and all rights of way, streets,

alleys, passages, drainage rights, sewer rights, and rights of ingress and egress to the
Property, and all other adjoining property, whether now existing or hereafter arising,

Page 4

‘Orpen omens sooK eres PAnE Me, «077iogeiner with ihe revision or reversion, Temiainde? of remainders, TENG, issues, incoTmes,
and profit of any of the foregoing.

(c) Contract Rights - All of the Mortgagor's right, title, and interest in and to any and all
tracts, written or oral,