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Filing # 90182414 E-Filed 05/28/2019 03:21:16 PM
IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY, FLORIDA
VINCENZO DEPAU GENERAL JURISDICTION DIVISION
Plaintiff, CASE NO.: 2017-01893 1-CA-01
vs.
MICHAEL STERN, LAYNE HARRIS
STERN, ET. AL.,
Defendants,
/
VERIFIED MOTION TO VACATE COURT DEFAULT
COMES NOW, Defendant, COLLEGE HEALTH II GP, INC. (“Defendant”), by and
through its undersigned counsel, and pursuant to 1.500(d) and 1.540(b) of the Florida Rules of
Civil Procedure hereby moves this court for an order vacating the Court’s Default against
Defendant entered on or about April 29, 2019 and any other further relief it believes is just and
equitable. As grounds therefor, movant states as follows:
BACKGROUND FACTS
1 Plaintiff commenced this action on or about August 4, 2017, alleging breaches of
multiple promissory notes.
2 On or about September 4, 2018, Plaintiff filed his Third Amended Complaint in
this matter.
3 On or about April 29, 2019, the Clerk of Courts entered its Entry of Default by the
Clerk Against Defendant College Health II GP Inc. (the “Default’).
4 On or about May 13, 2019, Plaintiff subsequently moved the Court for entry of a
Default Final Judgment against Defendant (the “Motion’).
Jesse Dean-Kluger, P.A.
1550 Biscayne Boulevard, Suite 201 Miami, Florida 33132 Phone: 305-534-3460 Fax: 786-206-30755 The hearing on Plaintiffs Motion is set to be heard by this Court on May 30, 2019.
6. Defendant was not given any notice of the Default, the Motion, nor notice of the
hearing thereon.
7. Although the Plaintiff claims to have effected substitute service via publication,
Defendant was completely unaware of the existence of this action until a related matter (in which
Defendant is also a party) was transferred to this division in April of 2019.
8. Indeed, Plaintiff only made a single attempt to serve Defendant’s registered agent.
9 Upon learning of this action, Defendant immediately sought out and expeditiously
retained the undersigned to represent it in this matter.
10. Defendant has meritorious defenses to the claims asserted by Plaintiff.
11 It is Defendant’s position that its claims against the property, which is the subject
of this lawsuit, have priority over Plaintiffs claims. Indeed, Plaintiff admits in his Third Amended
Complaint that the debt instruments underlying his claims in this action may have been forged or
otherwise improperly obtained. (Complaint §{ 37, 39, 43.) In addition, Plaintiffs forged mortgage
is void on its face as it reflects that one of the mortgagors also notarized the instrument.
12. Defendant, on the other hand, has a valid, binding judgment against the owners of
the subject property, which would necessarily take priority over the forged and facially void debt
instruments sued upon by Plaintiff.
LEGAL ARGUMENT
Florida Courts Disfavor Defaults and Favor Adjudication on the Merits
“Florida’s Courts have a longstanding policy favoring the adjudication of lawsuits on the
merits.” Markowski y. Attel Bank Intern., 701 So.2d 416, 417 (Fla. 3d DCA 1997); see also North
Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla. 1962). Thus “if there be any reasonable doubt
Jesse Dean-Kluger, P.A.
1550 Biscayne Boulevard, Suite 201, Miami, Florida 33132 Phone: 305-534-3460 Fax: 786-206-3075in the matter [of vacating a default], it should be resolved in favor of granting the application and
allowing a trial upon the merits of the case.” Edwards v. Najjar, 748 So.2d 1101, 1103 (Fla. 2d
DCA 2000)(quoting North Shore Hospital, 143 So.2d at 853).
To set aside a default judgment, a movant “must show that: (1) the failure to file a timely
responsive pleading or paper was the result of excusable neglect; (2) the defaulting party has a
meritorious defense; and, (3) the defaulted party has been reasonably diligent in seeking to vacate
the default after it was discovered.” 205 Jacksonville, LLC v. A-Affordable Air, LLC, 16 So.3d
974, 975 Fla. 3d DCA 2009; see also Hill v. Murphy, 872 So.2d 919 (Fla. 2d DCA 2003)(To set
aside a default, the defaulted party has the burden or establishing due diligence in moving to set
aside the default, excusable neglect in failing to respond to the complaint and a meritorious defense
to the allegation of the complaints)(citing Coquina Coquina Beach Club Condo, Ass'n, Inc. v.
Wagner, 813 So.2d 1061, 1063(Fla. 2d DCA 2002); Venero v. Balbuena, 652 So.2d 1271, 1272
(Fla. 3d DCA 1995); and Markowski v. Attel Bank Intern., 701 So.2d 416, (Fla. 3d DCA 1997).
As noted above, 1) Plaintiff's failure to provide adequate notice to Defendant resulting in
Defendant’s lack of knowledge regarding even the existence of this lawsuit shows excusable
neglect; 2) Defendant has meritorious defenses, including, but not limited to, its claim of priority
in front of Plaintiff; and, 3) Defendant has been diligent in seeking to vacate the default
immediately after learning of the instant action.
WHEREFORE, Defendant, COLLEGE HEALTH II GP, INC. respectfully moves this
court for an order vacating the Default, and for other and further relief as this Court deems just and
proper.
Jesse Dean-Kluger, P.A.
1550 Biscayne Boulevard, Suite 201, Miami, Florida 33132 Phone: 305-534-3460 Fax: 786-206-3075VERIFICATION
BEFORE ME, the undersigned Samuel Burstyn, Manager of College Health If GP, Inc.
personally appeared and who after being duly sworn deposes and says that the contents of this
Verified Motion to Vacate Court Default.are true and correct,
——
STATE OF FLAY ACG oS
county or Niows, byte
SAMUEL BURSTYN 77
St
The foregoing instrument was acknowledged before me this & day of May, 2019 by
Suda} who is personally known to.me or has produced
:
as identification.
sausitertibuattbonadins Notary Public
ALEXANDRA GALT
Notary Public - State of Florida
Commission # FF 9D50B2
yy Gon, Expires Aug 3, 2019
Rounded through Notary Asso.
Es tO et
Jesse Dean-Kluger, P.A.
15506 Biscayne Boulevard, Suite 201, Miami, Florida 33132 Phone: 305-534-3460 Fax: 736-206-3075Respectfully submitted,
JESSE DEAN-KLUGER, P.A.
Counsel for Defendant
1550 Biscayne Boulevard, Suite 201
Miami, Florida 33132
Phone: (305) 534-3460
Fax: (786) 206-3075
By:_/s/ Jesse Dean-Kluger
JESSE DEAN-KLUGER
Fla. Bar No. 0062201
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was filed via E-Filing
and served to all counsel of record via an automatic email generated by the Florida E-Filing Portal
this 28" day of May, 2019.
/s/ Jesse Dean-Kluger
Jesse Dean-Kluger, Esq.
Jesse Dean-Kluger, P.A.
1550 Biscayne Boulevard, Suite 201, Miami, Florida 33132 Phone: 305-534-3460 Fax: 786-206-3075
Preview
Filing # 90182414 E-Filed 05/28/2019 03:21:16 PM IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA VINCENZO DEPAU GENERAL JURISDICTION DIVISION Plaintiff, CASE NO.: 2017-01893 1-CA-01 vs. MICHAEL STERN, LAYNE HARRIS STERN, ET. AL., Defendants, / VERIFIED MOTION TO VACATE COURT DEFAULT COMES NOW, Defendant, COLLEGE HEALTH II GP, INC. (“Defendant”), by and through its undersigned counsel, and pursuant to 1.500(d) and 1.540(b) of the Florida Rules of Civil Procedure hereby moves this court for an order vacating the Court’s Default against Defendant entered on or about April 29, 2019 and any other further relief it believes is just and equitable. As grounds therefor, movant states as follows: BACKGROUND FACTS 1 Plaintiff commenced this action on or about August 4, 2017, alleging breaches of multiple promissory notes. 2 On or about September 4, 2018, Plaintiff filed his Third Amended Complaint in this matter. 3 On or about April 29, 2019, the Clerk of Courts entered its Entry of Default by the Clerk Against Defendant College Health II GP Inc. (the “Default’). 4 On or about May 13, 2019, Plaintiff subsequently moved the Court for entry of a Default Final Judgment against Defendant (the “Motion’). Jesse Dean-Kluger, P.A. 1550 Biscayne Boulevard, Suite 201 Miami, Florida 33132 Phone: 305-534-3460 Fax: 786-206-30755 The hearing on Plaintiffs Motion is set to be heard by this Court on May 30, 2019. 6. Defendant was not given any notice of the Default, the Motion, nor notice of the hearing thereon. 7. Although the Plaintiff claims to have effected substitute service via publication, Defendant was completely unaware of the existence of this action until a related matter (in which Defendant is also a party) was transferred to this division in April of 2019. 8. Indeed, Plaintiff only made a single attempt to serve Defendant’s registered agent. 9 Upon learning of this action, Defendant immediately sought out and expeditiously retained the undersigned to represent it in this matter. 10. Defendant has meritorious defenses to the claims asserted by Plaintiff. 11 It is Defendant’s position that its claims against the property, which is the subject of this lawsuit, have priority over Plaintiffs claims. Indeed, Plaintiff admits in his Third Amended Complaint that the debt instruments underlying his claims in this action may have been forged or otherwise improperly obtained. (Complaint §{ 37, 39, 43.) In addition, Plaintiffs forged mortgage is void on its face as it reflects that one of the mortgagors also notarized the instrument. 12. Defendant, on the other hand, has a valid, binding judgment against the owners of the subject property, which would necessarily take priority over the forged and facially void debt instruments sued upon by Plaintiff. LEGAL ARGUMENT Florida Courts Disfavor Defaults and Favor Adjudication on the Merits “Florida’s Courts have a longstanding policy favoring the adjudication of lawsuits on the merits.” Markowski y. Attel Bank Intern., 701 So.2d 416, 417 (Fla. 3d DCA 1997); see also North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla. 1962). Thus “if there be any reasonable doubt Jesse Dean-Kluger, P.A. 1550 Biscayne Boulevard, Suite 201, Miami, Florida 33132 Phone: 305-534-3460 Fax: 786-206-3075in the matter [of vacating a default], it should be resolved in favor of granting the application and allowing a trial upon the merits of the case.” Edwards v. Najjar, 748 So.2d 1101, 1103 (Fla. 2d DCA 2000)(quoting North Shore Hospital, 143 So.2d at 853). To set aside a default judgment, a movant “must show that: (1) the failure to file a timely responsive pleading or paper was the result of excusable neglect; (2) the defaulting party has a meritorious defense; and, (3) the defaulted party has been reasonably diligent in seeking to vacate the default after it was discovered.” 205 Jacksonville, LLC v. A-Affordable Air, LLC, 16 So.3d 974, 975 Fla. 3d DCA 2009; see also Hill v. Murphy, 872 So.2d 919 (Fla. 2d DCA 2003)(To set aside a default, the defaulted party has the burden or establishing due diligence in moving to set aside the default, excusable neglect in failing to respond to the complaint and a meritorious defense to the allegation of the complaints)(citing Coquina Coquina Beach Club Condo, Ass'n, Inc. v. Wagner, 813 So.2d 1061, 1063(Fla. 2d DCA 2002); Venero v. Balbuena, 652 So.2d 1271, 1272 (Fla. 3d DCA 1995); and Markowski v. Attel Bank Intern., 701 So.2d 416, (Fla. 3d DCA 1997). As noted above, 1) Plaintiff's failure to provide adequate notice to Defendant resulting in Defendant’s lack of knowledge regarding even the existence of this lawsuit shows excusable neglect; 2) Defendant has meritorious defenses, including, but not limited to, its claim of priority in front of Plaintiff; and, 3) Defendant has been diligent in seeking to vacate the default immediately after learning of the instant action. WHEREFORE, Defendant, COLLEGE HEALTH II GP, INC. respectfully moves this court for an order vacating the Default, and for other and further relief as this Court deems just and proper. Jesse Dean-Kluger, P.A. 1550 Biscayne Boulevard, Suite 201, Miami, Florida 33132 Phone: 305-534-3460 Fax: 786-206-3075VERIFICATION BEFORE ME, the undersigned Samuel Burstyn, Manager of College Health If GP, Inc. personally appeared and who after being duly sworn deposes and says that the contents of this Verified Motion to Vacate Court Default.are true and correct, —— STATE OF FLAY ACG oS county or Niows, byte SAMUEL BURSTYN 77 St The foregoing instrument was acknowledged before me this & day of May, 2019 by Suda} who is personally known to.me or has produced : as identification. sausitertibuattbonadins Notary Public ALEXANDRA GALT Notary Public - State of Florida Commission # FF 9D50B2 yy Gon, Expires Aug 3, 2019 Rounded through Notary Asso. Es tO et Jesse Dean-Kluger, P.A. 15506 Biscayne Boulevard, Suite 201, Miami, Florida 33132 Phone: 305-534-3460 Fax: 736-206-3075Respectfully submitted, JESSE DEAN-KLUGER, P.A. Counsel for Defendant 1550 Biscayne Boulevard, Suite 201 Miami, Florida 33132 Phone: (305) 534-3460 Fax: (786) 206-3075 By:_/s/ Jesse Dean-Kluger JESSE DEAN-KLUGER Fla. Bar No. 0062201 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was filed via E-Filing and served to all counsel of record via an automatic email generated by the Florida E-Filing Portal this 28" day of May, 2019. /s/ Jesse Dean-Kluger Jesse Dean-Kluger, Esq. Jesse Dean-Kluger, P.A. 1550 Biscayne Boulevard, Suite 201, Miami, Florida 33132 Phone: 305-534-3460 Fax: 786-206-3075