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Filing # 71796670 E-Filed 05/07/2018 08:08:18 PM
IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO.: 2017-018931 CA 01
VINCENZO DEPAU,
Plaintiff,
Vv
MICHAEL STERN, LAYNE HARRIS
STERN, and IVOR H. ROSE
Defendants.
/
DEFENDANT IVOR ROSE’S ANSWER AND AFFIRMATIVE DEFENSES AND
COUNTERCLAIM AGAINST VINCENZO DEPAU AND CROSS-CLAIM AGAINST
MICHAEL STERN AND LAYNE HARRIS STERN
AND DEMAND FOR JURY TRIAL
Defendant/Counter-Plaintiff/Cross-Plaintiff, IVOR H. ROSE (hereinafter “Defendant
Rose”), by and through the undersigned counsel, hereby files his Answer and Affirmative Defenses
and Counterclaim Against Vincenzo Depau and Cross-Claim Against Michael Stern and Layne
Harris Stern and Demand for Jury Trial, and in support states:
ANSWER
1, Defendant Rose denies paragraph 1 and demands strict proof thereof.
2 Defendant Rose is without knowledge as to paragraph 2, and therefore denies same
and demand strict proof thereof.
3 Defendant Rose is without knowledge as to paragraph 3 to the extent that it alleges
that “Stern is an individual who at all times relevant hereto resided in Miami-Dade County,” and
therefore denies same and demand strict proof thereof. The remainder of paragraph 3 is admitted.4 Defendant Rose is without knowledge as to paragraph 4, and therefore denies same
and demand strict proof thereof.
5 Paragraph 5 is admitted.
6. Paragraph 6 is admitted
7 Defendant Rose admits that venue is proper in Miami-Dade County. Defendant Rose
denies the remainder of paragraph 7 and demands strict proof thereof.
8 Defendant Rose denies paragraph 8 and demands strict proof thereof. Defendant Rose
further directs Plaintiff to the Affirmative Defenses.
9 Defendant Rose is without knowledge as to paragraph 9, and therefore denies same
and demand strict proof thereof.
10. Defendant Rose denies paragraph 10 as phrased and demands strict proof thereof.
11. Defendant Rose denies paragraph 11 and demands strict proof thereof.
12. Defendant Rose denies paragraph 12 and demands strict proof thereof.
13 Defendant Rose is without knowledge as to paragraph 13, and therefore denies same
and demand strict proof thereof.
14. Defendant Rose is without knowledge as to paragraph 14, and therefore denies same
and demand strict proof thereof.
15 Defendant Rose is without knowledge as to paragraph 15, and therefore denies same
and demand strict proof thereof.
16. Defendant Rose is without knowledge as to paragraph 16, and therefore denies same
and demand strict proof thereof.
17. Defendant Rose is without knowledge as to paragraph 17, and therefore denies same
and demand strict proof thereof.
Page 2 of 20
LAW OFFICES OF ANTHONY ACCETTA, P.A. | 135 SAN LORENZO AVENUE, PENTHOUSE 820, CORAL GABLES, FL 3314618 Defendant Rose is without knowledge as to paragraph 18, and therefore denies same
and demand strict proof thereof.
19. Defendant Rose is without knowledge as to paragraph 19, and therefore denies same
and demand strict proof thereof.
20. Defendant Rose denies paragraph 20 and demands strict proof thereof.
21. Defendant Rose is without knowledge as to paragraph 21, and therefore denies same
and demand strict proof thereof.
22. Paragraph 22 is admitted.
23 Defendant Rose is without knowledge as to paragraph 23, and therefore denies same
and demand strict proof thereof.
24. Defendant Rose is without knowledge as to paragraph 24, and therefore denies same
and demand strict proof thereof.
25. Defendant Rose is without knowledge as to paragraph 25, and therefore denies same
and demand strict proof thereof.
26. Defendant Rose is without knowledge as to paragraph 26, and therefore denies same
and demand strict proof thereof.
27. Defendant Rose is without knowledge as to paragraph 27, and therefore denies same
and demand strict proof thereof.
28. Defendant Rose is without knowledge as to paragraph 28, and therefore denies same
and demand strict proof thereof.
29. Defendant Rose is without knowledge as to paragraph 29, and therefore denies same
and demand strict proof thereof.
Page 3 of 20
LAW OFFICES OF ANTHONY ACCETTA, P.A. ! 135 SAN LORENZO AVENUE, PENTHOUSE 820, CORAL GABLES, FL 3314630 Defendant Rose is without knowledge as to paragraph 30, and therefore denies same
and demand strict proof thereof.
31 Defendant Rose is without knowledge as to paragraph 31, and therefore denies same
and demand strict proof thereof.
32 Defendant Rose is without knowledge as to paragraph 32, and therefore denies same
and demand strict proof thereof.
33 Defendant Rose denies paragraph 33 and demands strict proof thereof.
34. Defendant Rose denies paragraph 34 and demands strict proof thereof.
35. Defendant Rose is without knowledge as to paragraph 35, and therefore denies same
and demand strict proof thereof.
36 Defendant Rose denies paragraph 36 and demands strict proof thereof.
37. Defendant Rose denies paragraph 37 and demands strict proof thereof.
38. Defendant Rose denies paragraph 38 and demands strict proof thereof.
39. Defendant Rose denies paragraph 39 and demands strict proof thereof.
40. Defendant Rose is without knowledge as to paragraph 40, and therefore denies same
and demand strict proof thereof.
41. Defendant Rose is without knowledge as to paragraph 41, and therefore denies same
and demand strict proof thereof.
42. Defendant Rose is without knowledge as to paragraph 42, and therefore denies same
and demand strict proof thereof.
43. Defendant Rose is without knowledge as to paragraph 43, and therefore denies same
and demand strict proof thereof.
Page 4 of 20
LAW OFFICES OF ANTHONY ACCETTA, P.A. ! 135 SAN LORENZO AVENUE, PENTHOUSE 820, CORAL GABLES, FL 3314644. As to paragraph 44, Defendant Rose repeats his answer as to paragraphs 1-43,
including all sub-paragraphs, as fully set forth herein.
45 Defendant Rose is without knowledge as to paragraph 45, and therefore denies same
and demand strict proof thereof.
46. Defendant Rose is without knowledge as to paragraph 46, and therefore denies same
and demand strict proof thereof.
47. Defendant Rose is without knowledge as to paragraph 47, and therefore denies same
and demand strict proof thereof.
48 Defendant Rose is without knowledge as to paragraph 48, and therefore denies same
and demand strict proof thereof.
49. Defendant Rose is without knowledge as to paragraph 49, and therefore denies same
and demand strict proof thereof.
50. Defendant Rose is without knowledge as to paragraph 50, and therefore denies same
and demand strict proof thereof.
51. Defendant Rose is without knowledge as to paragraph 51, and therefore denies same
and demand strict proof thereof.
52. Defendant Rose denies paragraph 52 entitled WHEREFORE and demands strict proof
thereof.
53. As to paragraph 53, Defendant Rose repeats his answer as to paragraphs 1-43,
including all sub-paragraphs, as fully set forth herein.
54, Defendant Rose is without knowledge as to paragraph 54, and therefore denies same
and demand strict proof thereof.
Page 5 of 20
LAW OFFICES OF ANTHONY ACCETTA, P.A. ! 135 SAN LORENZO AVENUE, PENTHOUSE 820, CORAL GABLES, FL 3314655 Defendant Rose denies paragraph 55 entitled WHEREFORE and demands strict proof
thereof.
56 As to paragraph 56, Defendant Rose repeats his answer as to paragraphs 1-43,
including all sub-paragraphs, as fully set forth herein.
57 Defendant Rose is without knowledge as to paragraph 57, and therefore denies same
and demand strict proof thereof.
58 Defendant Rose is without knowledge as to paragraph 58, and therefore denies same
and demand strict proof thereof.
59. Defendant Rose is without knowledge as to paragraph 59, and therefore denies same
and demand strict proof thereof.
60. Defendant Rose is without knowledge as to paragraph 60, and therefore denies same
and demand strict proof thereof.
61. Defendant Rose is without knowledge as to paragraph 61, and therefore denies same
and demand strict proof thereof.
62. Defendant Rose is without knowledge as to paragraph 62, and therefore denies same
and demand strict proof thereof.
63. Defendant Rose denies paragraph 63 entitled WHEREFORE, including all sub-
paragraphs, and demands strict proof thereof.
64. As to paragraph 64, Defendant Rose repeats his answer as to paragraphs 1-43,
including all sub-paragraphs, as fully set forth herein.
65. Defendant Rose is without knowledge as to paragraph 65, and therefore denies same
and demand strict proof thereof.
Page 6 of 20
LAW OFFICES OF ANTHONY ACCETTA, P.A. ! 135 SAN LORENZO AVENUE, PENTHOUSE 820, CORAL GABLES, FL 3314666. Defendant Rose is without knowledge as to paragraph 66, and therefore denies same
and demand strict proof thereof.
67. Defendant Rose is without knowledge as to paragraph 67, and therefore denies same
and demand strict proof thereof.
68 Defendant Rose is without knowledge as to paragraph 68, and therefore denies same
and demand strict proof thereof.
69. Defendant Rose is without knowledge as to paragraph 69, and therefore denies same
and demand strict proof thereof.
70 Defendant Rose is without knowledge as to paragraph 70, and therefore denies same
and demand strict proof thereof.
71 Defendant Rose denies paragraph 71 and demands strict proof thereof. Defendant
Rose further directs Plaintiff to the Affirmative Defenses.
72. Defendant Rose is without knowledge as to paragraph 72, and therefore denies same
and demand strict proof thereof.
BB. Defendant Rose denies paragraph 73 entitled WHEREFORE, including all sub-
paragraphs, and demands strict proof thereof.
74. As to paragraph 74, Defendant Rose repeats his answer as to paragraphs 1-43,
including all sub-paragraphs, as fully set forth herein.
75. Defendant Rose is without knowledge as to paragraph 75, and therefore denies same
and demand strict proof thereof.
76. Paragraph 76 is admitted.
71. Paragraph 77 is admitted.
78. Paragraph 78 is admitted.
Page 7 of 20
LAW OFFICES OF ANTHONY ACCETTA, P.A. ! 135 SAN LORENZO AVENUE, PENTHOUSE 820, CORAL GABLES, FL 3314679. Paragraph 79 is admitted.
80. Paragraph 80 is admitted.
81 Defendant Rose is without knowledge as to paragraph 81, and therefore denies same
and demand strict proof thereof.
82 Defendant Rose is without knowledge as to paragraph 82, and therefore denies same
and demand strict proof thereof.
83 Defendant Rose denies paragraph 83 entitled WHEREFORE, including all sub-
paragraphs, and demands strict proof thereof.
84. As to paragraph 84, Defendant Rose repeats his answer as to paragraphs 1-43,
including all sub-paragraphs, as fully set forth herein.
85. Defendant Rose is without knowledge as to paragraph 85, and therefore denies same
and demand strict proof thereof.
86. Defendant Rose is without knowledge as to paragraph 86, and therefore denies same
and demand strict proof thereof.
87. Defendant Rose is without knowledge as to paragraph 87, and therefore denies same
and demand strict proof thereof.
88. Defendant Rose is without knowledge as to paragraph 88, and therefore denies same
and demand strict proof thereof.
89. Defendant Rose is without knowledge as to paragraph 89, and therefore denies same
and demand strict proof thereof.
90. Defendant Rose is without knowledge as to paragraph 90, and therefore denies same
and demand strict proof thereof.
Page 8 of 20
LAW OFFICES OF ANTHONY ACCETTA, P.A. ! 135 SAN LORENZO AVENUE, PENTHOUSE 820, CORAL GABLES, FL 3314691 Defendant Rose is without knowledge as to paragraph 91, and therefore denies same
and demand strict proof thereof.
92 Defendant Rose denies paragraph 92 entitled WHEREFORE, including all sub-
paragraphs, and demands strict proof thereof.
93 As to paragraph 93, Defendant Rose repeats his answer as to paragraphs 1-43,
including all sub-paragraphs, as fully set forth herein.
94. Defendant Rose is without knowledge as to paragraph 94, and therefore denies same
and demand strict proof thereof.
95 Defendant Rose is without knowledge as to paragraph 95, and therefore denies same
and demand strict proof thereof.
96. Defendant Rose is without knowledge as to paragraph 96, and therefore denies same
and demand strict proof thereof.
97. Defendant Rose is without knowledge as to paragraph 97, and therefore denies same
and demand strict proof thereof.
98. Defendant Rose is without knowledge as to paragraph 98, and therefore denies same
and demand strict proof thereof.
99. Defendant Rose is without knowledge as to paragraph 99, and therefore denies same
and demand strict proof thereof.
100. Defendant Rose is without knowledge as to paragraph 100, and therefore denies same
and demand strict proof thereof.
101. Defendant Rose is without knowledge as to paragraph 101, and therefore denies same
and demand strict proof thereof.
Page 9 of 20
LAW OFFICES OF ANTHONY ACCETTA, P.A. ! 135 SAN LORENZO AVENUE, PENTHOUSE 820, CORAL GABLES, FL 33146102. Defendant Rose is without knowledge as to paragraph 102, and therefore denies same
and demand strict proof thereof.
103. Defendant Rose is without knowledge as to paragraph 103, and therefore denies same
and demand strict proof thereof.
104. Defendant Rose is without knowledge as to paragraph 104, and therefore denies same
and demand strict proof thereof.
105. Defendant Rose is without knowledge as to paragraph 105, and therefore denies same
and demand strict proof thereof.
106. Defendant Rose is without knowledge as to paragraph 106, and therefore denies same
and demand strict proof thereof.
107. Defendant Rose denies paragraph 107 entitled WHEREFORE, including all sub-
paragraphs, and demands strict proof thereof.
108. Defendant Rose denies each and every allegation not strictly admitted and strict proof
is demanded thereof.
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
Plaintiff's claims, Count I-V, are barred by the statute of limitations. As clearly stated
within the Promissory Note upon which the Plaintiff now sues:
On July 31, 2008, the entire amount of principal, interest and all
other sums due hereunder, if any unless sooner paid shall be due and
payable.
Accordingly, the statute of limitations has long since run on theses counts, as Plaintiff did
not initiate this action until August of 2017
Page 10 of 20
LAW OFFICES OF ANTHONY ACCETTA, P.A. ! 135 SAN LORENZO AVENUE, PENTHOUSE 820, CORAL GABLES, FL 33146Therefore, any claim to the property at issue in this case that is owned by Defendant Ivor
Rose cannot be foreclosed upon and Counts I through V must be dismissed with prejudice.
SECOND AFFIRMATIVE DEFENSE
(Statute of Repose)
Plaintiffs claims, Count I-V, are barred by the statute of repose. As clearly stated within
the Promissory Note upon which Plaintiff now sues
On July 31, 2008, the entire amount of principal, interest and all
other sums due hereunder, if any unless sooner paid shall be due and
payable.
Plaintiff did not initiate this action until August 2017. Accordingly, the Note and Mortgage
were no longer enforceable and were extinguished by operation of the statute of repose before
Plaintiff brought this claim.
Therefore, any claim to the property at issue in this case that is owned by Defendant Ivor
Rose cannot be foreclosed upon and Counts I through V must be dismissed with prejudice.
THIRD AFFIRMATIVE DEFENSE
(Failure to Join Indispensable Party)
Defendant Rose was initially not a party to this lawsuit despite the fact that he is on the
deed to the property that is the subject of this lawsuit. Defendant Rose was not aware that this
lawsuit even existed until March 22, 2018, when his lawyer, Lazaro Vazquez, Esquire, was
contacted by counsel for Co-Defendant Layne Harris who alerted Attorney Vazquez to the
existence of this lawsuit filed by the Plaintiff.
The Mortgage and Note that are being foreclosed upon were obtained through fraud and
Defendant Rose’s signature was forged. The Plaintiff is fully aware that Defendant Rose never
signed the Mortgage and Note at issue in this case. The notary and witness to the Note and
Mortgage, Defendant Layne Harris, has already admitted that her notary stamp was stolen and her
Page 11 of 20
LAW OFFICES OF ANTHONY ACCETTA, P.A. ! 135 SAN LORENZO AVENUE, PENTHOUSE 820, CORAL GABLES, FL 33146signatures on the Note and Mortgage verifying that Defendant Rose was the person signing were
forged. Therefore, the Plaintiff obtained a Final Judgment of Foreclosure based upon a Note and
Mortgage that were obtained through fraud.
Therefore, the Final Judgment of Foreclosure obtained in this action must be vacated,
because it is void. A fee simple title holder is an indispensable party in an action to foreclose a
mortgage on property. Oakland Props. Corp. v. Hogan, 117 So. 846, 848 (1928) (“One who holds
the legal title to mortgaged property is not only necessary, but is an indispensable, party defendant
in a suit to foreclose a mortgage.”); Cmty. Fed. Sav. & Loan Ass'n of Palm Beaches v. Wright.
452 So.2d 638, 640 (Fla. 4th DCA 1984). “Indispensable parties are necessary parties so essential
to a suit that no final decision can be rendered without their joinder.” Hertz Corp. v. Piccolo, 453
So.2d 12, 14 n. 3 (Fla. 1984). For centuries the Florida Supreme Court has recognized that “a
foreclosure proceeding resulting in a final decree and a sale of the mortgaged property, without
the holder of the legal title being before the court will have no effect to transfer his title to the
purchaser at said sale.” Jordan v. Sayre, 3 So. 329, 330 (1888). Therefore, any foreclosure
proceeding that fails to include the deeded owner is void. /d. (emphasis added). It is well
established in Florida that a foreclosure judgment is void for failing to join indispensable parties.
See also Lambert v. Dracos, 403 So.2d 481, 484 (Fla. 1st DCA 1981) (holding trial court erred in
denying defendants' motion to dismiss foreclosure complaint for failure to join an indispensable
party, a legal co-owner of the interest foreclosed); Citibank, N.A. v. Villanueva, 174 So. 3d 612,
613-14 (Fla. 4" DCA 2015); see also, Davanzo v. Resolute Ins. Co., 346 So. 2d 1227, 1228 (Fla
3d DCA 1977) (“One who holds legal title to mortgaged property is an indispensable party
defendant in a suit to foreclose a mortgage and a court cannot properly adjudicate the matters
involved in this suit when it appears indispensable parties are not in some proper way actually or
Page 12 of 20
LAW OFFICES OF ANTHONY ACCETTA, P.A. ! 135 SAN LORENZO AVENUE, PENTHOUSE 820, CORAL GABLES, FL 33146constructively before the court.”); Meh Byron 4 LLC vy. Fed. Nat. Mortg. Ass'n, 187 So. 3d 335
(Fla. 3d DCA 2016).
Accordingly, the Final Judgment entered by the Court on March 8, 2018, against Defendant
Michael Stern in favor of Plaintiff, must, as a matter of law and equity, be set aside and vacated and
this matter should proceed for resolution on its merits, or lack of merit, as discussed above
FOURTH AFFIRMATIVE DEFENSE
(No Consideration for the Promissory Note or Mortgage)
Defendant Rose never received any loan proceeds or any other benefit from the Mortgage
and Promissory Note at issue in this case. Therefore, this action should be dismissed with
prejudice
FIFTH AFFIRMATIVE DEFENSE
(Equitable Estoppel)
The Plaintiff in this case knew or should have known that it had no loan with Defendant
Rose and that Defendant Michael Stern was perpetuating a fraud on Rose. Defendant Rose
never applied for a loan, never received any loan proceeds, never received a loan statement,
never made a loan payment, and the Plaintiff never even met Defendant Rose. Plaintiff should
be equitably estopped from claiming Defendant Rose is a mortgagor or borrower on the loan.
Therefore, this action should be dismissed with prejudice.
SIXTH AFFIRMATIVE DEFENSE
(Mortgage Fraud by Michael Stern)
Plaintiff also sued Defendant Michael A. Stern who is a co-Defendant in this action.
Defendant Michael A. Stern has already accepted full responsibility for fraudulently obtaining
mortgages on Rose and his wife, Rita Starr’s properties. He also admitted to stealing all of the
loan proceeds that were obtained by using Rose and his wife, Rita Starr’s properties as collateral.
Page 13 of 20
LAW OFFICES OF ANTHONY ACCETTA, P.A. ! 135 SAN LORENZO AVENUE, PENTHOUSE 820, CORAL GABLES, FL 33146Specifically, on September 24, 2014, Defendant Michael A. Stern voluntarily plead guilty
to Count II in his Indictment which included mortgages. Furthermore, at the sentencing hearing,
the victims Rita Starr (wife of Defendant Rose) testified that Michael A. Stern obtained several
mortgages that totaled approximately Nineteen Million Dollars ($19,000,000) including
mortgages that were obtained through fraud. The title insurer’s attorney advised the Federal Court
that they had already paid out in excess of Ten Million Dollars ($10,000,000) as a result of
Defendant Michael A. Stern's mortgage fraud.
At the conclusion of the sentencing hearing, Defendant Stern was sentenced to ninety-two
(92) months in Federal Prison plus the five-year sentence he was already serving for defrauding
another victim out of millions of dollars. The Federal Court also held an evidentiary hearing to
determine the restitution amount that Defendant Michael A. Stern would be responsible to pay to
all of the victims including the Roses and the Plaintiff in this case. A true and correct copy of the
Restitution transcript held before the Honorable Judge Zloch is attached hereto as EXHIBIT "A".
At the restitution hearing, Defendant Stern’s criminal actions used to obtain the fraudulent
mortgages were detailed by the AUSA, Roger Cruz, Esquire on behalf of the U.S. Government
through Rita Starr’s identity (the Defendant/Counter-Plaintiff in this case). The government
identified each fraudulent mortgage including the mortgage that is at issue in this case. See
Restitution Transcript (EXHIBIT "A").
In addition to the testimony provided by Defendant Rose’s wife, Mrs. Starr, the AUSA
introduced WITHOUT objection a detailed chart that described each of the fraudulent notes and
mortgages obtained by Defendant Stern without the consent or knowledge of the Roses. A true
and correct copy of the detailed chart entered into evidence at the restitution hearing is attached
hereto as EXHIBIT "B".
Page 14 of 20
LAW OFFICES OF ANTHONY ACCETTA, P.A. ! 135 SAN LORENZO AVENUE, PENTHOUSE 820, CORAL GABLES, FL 33146After Defendant Rose’s wife Ms. Starr had finished testifying and was subject to extensive
cross examination by Defendant Michael A. Stern's Defense attorney, the Federal Court inquired
of Defendant Michael A. Stern whether he would like to present any evidence or testify on his
behalf. Defendant Michael A. Stern responded “NO.” Therefore, because the sworn testimony
of Defendant Rose’s wife, Mrs. Starr, and the other evidence submitted by the Government was
unrebutted. Defendant Michael A. Stern was ordered to pay the total amount of all of the
fraudulent mortgages identified in the detailed chart referenced above.
Defendant Michael A. Stern was ordered by the Honorable Judge Zloch to pay restitution
for the horrible crimes he committed against the Rose and his wife, Rita Starr. Attached and
incorporated herein as EXHIBIT “C” is a true and correct copy of the restitution order. Rose and
his wife, Rita Starr, have been awarded $9,172,113.49.
Therefore, Rose has a superior lien then the Plaintiff in this action to any proceeds that may
be paid as a result of the sale of the subject property in any foreclosure action.
TENTH AFFIRMATIVE DEFENSE
(Lack of Standing)
The Plaintiff does not have standing to file the instant foreclosure lawsuit. A party seeking
to foreclose on a note and mortgage must prove it has standing to do so. To have standing, the
Plaintiff must prove it owned the note and mortgage prior to filing the foreclosure action to enforce
said note and mortgage. Lloyd v. Bank of New York Mellon, 2015 WL 1334292 (Fla. 4" DCA
2015). Furthermore, any assignment of a promissory note or mortgage or the right to enforce such,
must pre-date the filing of the foreclosure action. Mathews v. Federal Nat'l Mortgage Assoc., 2015
WL 1334310 (Fla. 4" DCA 2015). It is undisputed that the Mortgage and Note that are the subject
of this action were obtained through fraud and Rose has never consented to said Note or Mortgage
Therefore, this action should be dismissed with prejudice
Page 15 of 20
LAW OFFICES OF ANTHONY ACCETTA, P.A. ! 135 SAN LORENZO AVENUE, PENTHOUSE 820, CORAL GABLES, FL 33146DEMAND FOR JURY TRIAL
Defendant Rose demand a trial by jury on all issues so triable
COUNTERCLAIM AGAINST VICENZO DEPAU AND CROSS-CLAIM AGAINST
DEFENDANT LAYNE HARRIS AND DEFENDANT MICHAEL STERN
Counter-Plaintiff/Cross-Plaintiff, Ivor H. Rose, by and through his undersigned
counsel, file his Counterclaim against Counter-Defendant VINCENZO DEPAU (“DePau”)
and Cross-Claim Against Cross-Defendant LAYNE HARRIS (“Harris”) and Cross-
Defendant MICHAEL STERN (“Stern”), and in support states as follows:
JURISDICTION AND VENUE
1 DePau is an individual who at all times relevant hereto resided in Miami-Dade
County, Florida.
2 Stern is an individual who at all times relevant hereto resided in Miami-Dade
County. Stern is currently incarcerated and in the custody of the Federal Bureau of Prisons.
Until recently, Stern was in a Federal Prison in Miami-Dade County, Florida.
3 Harris is an individual who at all times relevant hereto resided in Miami-Dade
County.
4 Rose is an individual who at all times relevant hereto resided in Miami-Dade
County.
5 Venue is proper in Miami-Dade County, because the property at issue in this
case is located in Miami-Dade County, Florida
6. All conditions precedent to the filing of this action, if any, have either been met,
waived, or otherwise excused
7. Rose retained the undersigned to prosecute this action and agreed to pay
reasonable fees for its services and to cover all actual costs incurred.
Page 16 of 20
LAW OFFICES OF ANTHONY ACCETTA, P.A. ! 135 SAN LORENZO AVENUE, PENTHOUSE 820, CORAL GABLES, FL 331468. The amount in controversy exceeds Fifteen Thousand Dollars ($15,000.00), and
concerns both legal and equitable actions relating to real estate and other causes.
FACTUAL BACKGROUND
9 Defendant Rose is the victim of fraudulent mortgages that were placed on the
Roses’ properties by Stern
10. Stern is currently serving a twelve (12) year prison sentence in Federal Prison
after pleading guilty and admitting to all of the fraud involving the above-referenced mortgages.
11. Stern admitted that Rose and his wife Rita Starr were not aware of the mortgage
and promissory note in his plea agreement and was ordered to pay restitution for these mortgages
and promissory notes to the Roses.
12 Stern is a career criminal and was already serving a five (5) year prison sentence
for using a false identity to defraud another victim out of millions of dollars when he decided to
plead guilty to placing fraudulent mortgages on the Roses’ property. !
13 The Roses received nothing from all the mortgages that were placed on their
properties, and the record is devoid of any authorization for Stern or any other third parties
to receive proceeds from those loans. The mortgages were part of a fraudulent scheme
initiated by Stern to misappropriate the equity in the Roses’ properties.
14. All of the mortgages were concealed from the Roses.
COUNTI
QUIET TITLE UNDER §65.061, FLORIDA STATUTES
1 Michael A. Stern admitted in open court that he was in fact guilty of placing fraudulent
mortgages on the Roses' property and stealing all of the monies. Then decided to appeal the Court's sentence.
He now claims otherwise, despite his admission of guilt under oath and his acceptance of the Restitution Order
submitted at the restitution hearing, Stern appealed his sentence and guilty plea. As expected, all of his motions
and appeals to set aside his plea, the restitution orders and prison sentence have all been denied and dismissed
with prejudice.
Page 17 of 20
LAW OFFICES OF ANTHONY ACCETTA, P.A. ! 135 SAN LORENZO AVENUE, PENTHOUSE 820, CORAL GABLES, FL 3314615. Rose re-alleges paragraphs 1-14, as if fully set forth herein
16. This is an action to quiet title with respect to land located in Miami-Dade County,
Florida described as
Lot 3, in Block 3, of SAN MARCO ISLAND, according to the Plat
thereof, recorded in Plat Book 9, Page 21, of the Public Records of
Miami-Dade County, Florida, and commence at an iron pipe
marking the most southerly corner of Lot 3, Block 3, San Marco
Island, according to the Plat Book 9, Page 21, Public Records of
Miami-Dade County, Florida; thence Southeasterly along the
Southwest boundary of Lot 3, produced Southeasterly 8 feet; thence
Northeasterly along the circumference of a circular curve having a
radius of 358 feet, parallel to the Southeasterly boundary of said Lot
3, 106.47 feet to the Point of Intersection of the Northeasterly
boundary of Lot 3 produced Southeasterly; thence Northwesterly 8
feet to the most Easterly corner of said Lot 3, Block 3, San Marco
Island; thence Southwesterly along the Southeasterly boundary of
said Lot 3, 103.96 feet to the point of beginning.
(Also known as: 1386 S. Venetian Way, Miami, FL 33139)
17. The mortgage being foreclosed upon by the Plaintiff in this action is null and void
as a matter of law. The Mortgage was obtained fraudulently and no monies or benefit(s) were
ever given to Rose in exchange for said Mortgage.
18. Therefore, the Mortgage cannot be foreclosed upon by the Plaintiff for the reasons
set forth herein and should be stricken from the public record.
WHEREFORE, the Counter-Plaintiff VOR H. ROSE, demands Judgment against the
Counter-Defendant VICENZO DEPAU and requests the Court order the Miami-Dade Clerk of the
Courts, to strike the note and mortgage recorded against the above described property in favor of
Counter-Defendant VICENZO DEPAU, Cross-Defendant MICHAEL STERN, Cross-Defendant
LAYNE HARRIS and enter any other order necessary to clear the title of said property and such
other and further relief as this Court deems just and proper.
Page 18 of 20
LAW OFFICES OF ANTHONY ACCETTA, P.A. ! 135 SAN LORENZO AVENUE, PENTHOUSE 820, CORAL GABLES, FL 33146COUNT
SLANDER OF TITLE
19. The Roses re-allege paragraphs 1 through 14, as if fully set forth herein.
20. The mortgage in the subject transaction was a falsehood and was knowingly
prepared by Stern.
21. The false mortgage was published when recorded in the public records and attached
to the current lawsuit along with the recording of a lis pendens.
22. The false mortgage was recorded in the public records in and for Miami-Dade
County, Florida against the subject property with Plaintiff's full knowledge and direction.
23. | When the false mortgage was recorded, Plaintiff knew or reasonably should have
known that it would create a cloud on the title that would prevent Rose from re-financing,
developing or selling the property.
24. — Furthermore, the false, recorded mortgage played a material and substantial part in
inducing others not to deal with Rose including but not limited to buyers, renters, and lenders:
25. Rose has suffered consequential damages and special damages that include but are
not limited to attorney fees and costs in attempting to remove the cloud on title and damages that
have resulted from Rose’s inability to develop, sell, or re-finance the property.
WHEREFORE, Counter-Plaintiff/Cross-Plaintiff 1VOR H. ROSE demands that judgment
be entered against the Counter-Defendant VINCENZO DEPAU, Cross-Defendant MICHAEL
STERN, Cross-Defendant LAYNE HARRIS for his damages and special damages including but
not limited to attorney fees and costs expended to remove the cloud on title together with interest,
and such other further relief as this Court deems just and proper.
DEMAND FOR JURY TRIAL
Defendant Rose demands a trial by jury on all issues so triable.
Page 19 of 20
LAW OFFICES OF ANTHONY ACCETTA, P.A. ! 135 SAN LORENZO AVENUE, PENTHOUSE 820, CORAL GABLES, FL 33146CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing document was filed
with the Clerk of the Courts and served via e-mail through the Florida Courts e-Filing Portal on
this 7° day of May, 2018 in accordance with Rule 2.516 of the Florida Rules of Judicial
Administration upon counsel of record (except Michael Stern) and sent via U.S. Mail to co-
Defendant Michael Stern (Register No. 97980-04) c/o Federal Butner Medical Facility, 3000 Old
North Carolina Highway 75, Butner, NC 27509.
RESPECTFULLY SUBMITTED,
LAW OFFICES OF ANTHONY ACCETTA, P.A.
135 San Lorenzo Avenue, PH 820
Coral Gables, FL 33146
Telephone: (305) 448-4529
By: /s/Anthony Accetta
ANTHONY ACCETTA, ESQUIRE
Florida Bar No.: 148318
law@anthonyaccetta.com
paralegal@anthonyaccetta.com
/s/Brian A. Concepcion
BRIAN A. CONCEPCION, ESQUIRE
Florida Bar No.: 124064
brian@anthonyaccetta.com
LAW OFFICE OF LAZARO VAZQUEZ
Counsel for Ivor Rose
145 Almeria Avenue
Coral Gables, Florida 33134
Telephone: (305) 456-1784
By: /s/ Lazaro Vazquez
LAZARO VAZQUEZ, ESQ.
Fla Bar No.: 57812
Page 20 of 20
LAW OFFICES OF ANTHONY ACCETTA, P.A. ! 135 SAN LORENZO AVENUE, PENTHOUSE 820, CORAL GABLES, FL 33146EXHIBIT “A”
LAW OFFICES OF ANTHONY ACCETTA, P.A. | 135 SAN LORENZO AVENUE, PENTHOUSE 820, CORAL GABLES, FL 33146 § (305) 448-452910
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 12-20683-CR-ZLOCH
UNITED STATES OF AMERICA,
Fort Lauderdale, Florida
Plaintiff(s),
February 17, 2015
vs.
MICHAEL A. STERN,
Defendant(s).
RESTITUTION HEARING
BEFORE THE HONORABLE WILLIAM J. ZLOCH
UNITED STATES DISTRICT JUDGE
APPEARANCES:
FOR THE PLAINTIFF(S): Roger Cruz, Esquire
United States Attorney's Office
500 East Broward Boulevard
Seventh Floor
Fort Lauderdale, Florida 33301
FOR THE DEFENDANT(S): Daryl Wilcox, Esquire
Public Defender's Office
One East Broward Boulevard
Suite 1100
Fort Lauderdale, FL 33301
REPORTED BY: Tammy Nestor, RMR
Official Court Reporter
299 East Broward Boulevard
Fort Lauderdale, Florida 33301
tammynestor@yahoo.com10
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WITNESS
RITA STARR
BY MR. CRUZ
BY MR. WILCOX
GOVERNMENT'S EXHIBITS
1
DEFENDANT'S EXHIBITS
1
I-N-D-E-X
DIRECT CROSS
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REDIRECT
60
RECROSS
65
PAGE
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Thereupon,
the following proceedings began at 10:33 a.m.:
THE COURT: Good morning. Please be seated.
Calling case No. 12-20683-Criminal. Counsel, would
you note your appearances.
MR. CRUZ: Your Honor, good morning. Roger Cruz for
the United States. Judge, I am here with the case agent, Brian
Omen from the FBI.
THE COURT: Good morning.
MR. WILCOX: Good morning, Your Honor. Daryl Wilcox,
Assistant Federal Public Defender, on behalf of the defendant,
Michael Stern. He's seated next to me at defense table.
THE COURT: Good morning, Counsel.
Let the record reflect that Michael Alan Stern is
present and in the courtroom.
Can I have the representative from the probation
office state her appearance.
THE PROBATION OFFICER: Frances Weisberg on behalf of
probation. Good morning, Your Honor.
THE COURT: Good morning.
We are here for a restitution hearing. Let me ask the
government before we begin, aren't there still some properties
that might be considered relevant conduct that are involved in
legal actions elsewhere?
MR. CRUZ: Yes, Your Honor. It's true there are10
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certain properties that are still subject to some litigation
involving the main victims who are present, Your Honor, if I
may, Rita Starr and her husband Ivor Rose.
Judge, I have a document that's been submitted to the
defense as well as the probation officer listing those
properties that have either already been settled as far as no
longer encumbered or are still subject to litigation, Your
Honor.
THE COURT: The properties that are still subject to
litigation, how could the Court determine the valve regarding
those properties?
MR. CRUZ: Your Honor, I would suggest that the Court
award the victim's restitution amount that is consistent with
the amount of money encumbered by the actions of Mr. Stern. In
other words, if we were to add up the dollar figure for the
mortgages that he, without their authority, without the
victims' authority, went ahead and obtained through the course
of the conspiracy or the fraud conduct, that would be an
accurate and approximate and reasonable amount of money that
Mr. Stern should be ordered to pay.
I believe the statute that's in question that
generally is the one that we turn to in order to determine
restitution in these matters, 18 United States Code 3663(a) as
well as 3664 allow for future insurance and other it
compensation. In other words, the nature of these pending10
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actions can be adjusted at a future date should the Starrs for
some reason be made whole for these encumbered properties that
are subject to litigation.
THE COURT: Any comment, Mr. Wilcox?
MR. WILCOX: No, I don't think that's proper, Your
Honor, under the statute.
THE COURT: I'm sorry, you think what?
MR. WILCOX: I don't think what the government is
seeking is proper under the restitution statute.
THE COURT: Go ahead.
MR. WILCOX: I believe that the government -- the
victims are entitled to actual losses. And there is a question
as to -- as to the value of the property that they lost. We
can't determine the value of the property before they lose it.
I mean, they haven't lost any property, Judge. We can't award
the victims restitution based on property that they may lose or
that it may not lose.
Moreover, Judge, with respect to these properties, as
I submitted to the Court in my restitution hearing brief, we
have admitted some forgeries. We would submit to the Court
that the other properties that we have not admitted to were not
forgeries and may not have been entered into because of
fraudulent conduct by Mr. Stern.
THE COURT: How many properties are involved in other
civil litigation?10
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MR. CRUZ: Your Honor, if I am not mistaken, there are
at least 10 -- 11, Your Honor, that are still in litigation.
Judge, if I may, I would like to cite to the specific
subset, if you would like, Judge, of 3664 which again allows
for a situation involving future compensation received by a
victim.
That's J2 of the statute which is 18 United States
Code 3664.
Yes, Your Honor, to answer Your Honor's question, I do
have an exhibit that has a column that's been provided to the
defense as well as Ms. Weisberg if Your Honor would like a ——
THE COURT: All right. Pass that up.
MR. CRUZ: Yes, Your Honor.
THE COURT: And the civil litigations, are those all
foreclosures regarding those other properties?
MR. CRUZ: Absolutely, Your Honor. The exhibit I just
provided Your Honor has a column that states either settled or
in foreclosure. And the foreclosure actions all are germane to
the misconduct that we would submit to Your Honor has been
admitted by Mr. Stern in his factual proffer by incorporation
of those allegations that are contained in the indictment.
Specifically, Judge, all of these properties relate
directly to the fraud scheme that was masterminded by Mr. Stern
and that the foreclosure actions as well as the attorneys fees
that are germane to those submitted for Your Honor's10
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consideration relate exclusively to those properties that were
in the name of the two victims here, all foreclosures, Judge.
THE COURT: All right. Are you ready to proceed?
MR. CRUZ: Yes, Your Honor.
MR. WILCOX: Before we proceed, Your Honor, excuse me,
I would like to invoke the rule.
THE COURT: All right. The rule is invoked. Any
potential witnesses must remain outside and not discuss their
testimony amongst themselves.
MR. CRUZ: Judge, at counsel's table is a
representative of the FBI office, Adela Echavarria. She's a
forensic accountant in this matter that assisted the government
in its preparation of its case in chief prior to trial. I
would ask that she remain at counsel table.
THE COURT: Any objection?
MR. WILCOX: Your Honor, I know they are entitled to
one case agent, but I will not object to the forensic person
being here as well.
THE COURT: All right.
MR. CRUZ: Thank you, Your Honor.
THE COURT: Call your first witness.
MR. CRUZ: Absolutely, Judge. Judge, we call our
first witness which is Rita Starr.
THE COURT: Please step up to the witness stand.
Please remain standing and raise your right hand and be sworn.10
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RITA STARR
Having been first duly sworn on oath, was examined and
testified as follows:
THE COURT: Thank you. Please be seated. You can
adjust that microphone if you need to. I need for you to speak
directly into it so that we will all be able to hear you.
Please state your full legal name for the record and
spell your last name for the reporter.
THE WITNESS: Rita Rebecca Starr, S-T-A-R-R.
THE COURT: Thank you.
You may proceed.
MR. CRUZ: Thank you, Your Honor.
DIRECT EXAMINATION
BY MR. CRUZ:
Q Ms. Starr, where do you live?
A 110 Michigan Avenue, Miami Beach, Florida 33131.
Q Are you married?
A Yes.
Q What is your husband's name?
A Ivor Hanno Rose.
Q As briefly as possible, can you explain to the Court, did
you and your husband acquire certain real property in Miami
Beach in a few decades' time?
A Yes.
Q When did you and your husband begin acquiring these10
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properties?
A So many years ago. I mean, I know him since 1976, so I
would say probably by -- well, he started in 1960 and I met him
in '76. So probably together we bought -- started buying
properties probably in '78.
Q Do you have a brother?
A Yes.
Q What is his name?
A Steven Starr.
Q Did you and Mr. Starr also receive certain real property
through an inheritance?
A Yes.
Q Do you recall the address?
A 215 6th Street and 604 Collins Avenue.
Q Did there come a point in time in which you and your
husband ——
THE COURT: I'm sorry, what was the second address?
THE WITNESS: 604 Collins Avenue.
THE COURT: Thank you.
Those are both on Miami Beach?
THE WITNESS: Yes.
THE COURT: Thank you.
BY MR. CRUZ:
Q Did there come a point in time in which you and your
husband, in fact, acquired other properties in Miami Beach,10
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ma'am?
A Yes. Over the years since we have been together, we
bought one at a time but many years ago. It was many years
ago. But it was one at a time over some years.
Q Is there a document that you assisted the government in
preparing that memorialized a list of certain real property
that you and your husband and brother had title to?
A Yes, I helped prepare that list of the properties.
Q I'm going to show you a document that has now been marked
as Government's Exhibit 1 for identification. I am going to
ask if you recognize it. Okay?
A Okay.
MR. CRUZ: May I approach, Your Honor?
THE WITNESS: Yes —- oops.
THE COURT: Feel free to do so.
MR. CRUZ: Thank you.
THE COURT: Did you show this to Mr. Wilcox?
MR. WILCOX: I have a copy.
MR. CRUZ: Mr. Wilcox has a copy, Your Honor.
THE COURT: All right.
BY MR. CRUZ:
Q Ms. Starr, do you recognize that document that I handed to
you?
A Yes.
Q Can you explain to us what it is?10
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A It is the amount of restitution that we think is due us
for the properties that are in foreclosure that we could lose.
Q There are certain columns on this document. Do you
recognize it?
A Yes.
THE COURT: Counsel, is this the document that you
passed up to the Court earlier?
MR. CRUZ: Yes, Your Honor.
THE COURT: All right. Thank you.
BY MR. CRUZ:
Q Matam, is this a fair and accurate representation of all
of the properties that you and your husband and brother had
during the time period that you previously testified about?
A Yes.
Q Were these properties essentially free and clear of any
encumbrances before you met Mr. Michael Stern?
A Yes, they were totally free and clear of anything, any
mortgage or anything.
Q Now, matam, the Court would like to hear briefly how it is
that you met Mr. Stern.
A The first time I met him was at the Miami Beach Convention
Center, the flea market. He was selling sneakers. That might
have been 1999.
Q Later in life did you and Mr. Stern as well as your
husband develop a business relationship?10
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A Well, at the very end of '99, Michael Stern approached my
brother to see if he could rent our -- what I call our bakery
property. That's, you know, those two properties we just
mentioned 215 6th Street and 604 Collins -- to rent it from us,
those two, and renovate them. So he became our tenant.
THE COURT: And, Mrs. Starr, just so I am clear, the
properties at 215 and 604, do I understand that you and your
brother acquired those properties through inheritance?
THE WITNESS: Yes.
THE COURT: Okay. And do I understand that you and
your husband met Mr. Stern sometime in 1999?
THE WITNESS: Well, I met Mr. Stern in '99, but Ivor
met him years before because Ivor installed glass siding doors.
So he said he was once at Stern's house when Mr. Stern was
maybe a teenager and he fixed the sliding doors. So he
remembers him from there.
THE COURT: Thank you.
BY MR. CRUZ:
Q I would like to draw your attention around March of 2006
to around August of 2008. Okay?
A Yes.
Q Matam, did you and your husband and other representatives
realize that you might have been a victim of certain fraud
during that time period?
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August of '08, no, we didn't know it at all.
Q Were you, in fact, engaged in any type of nefarious
conduct involving any of these real properties, ma'am?
A No.
Q Now, did you later realize that you, in fact, as well as
your brother and your husband were a victim of fraud in
relation to these many properties listed on this exhibit?
MR. WILCOX: Objection, Judge. Calls for a legal
conclusion.
THE COURT: Just rephrase your question.
MR. CRUZ: Yes, Your Honor.
BY MR. CRUZ:
Q You stated earlier that these properties were free and
clear, right?
A Right.
Q Did there come a point in which these properties were not
free and clear?
A Yes.
Q And explain to us how you realized that all these
properties on this exhibit which I have yet to move --
MR. CRUZ: Your Honor, I would ask the government be
allowed to move this into evidence as Exhibit 1 to this
hearing.
THE COURT: Any objection?
MR. WILCOX: No objection, Your Honor.10
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THE COURT: Government's 1 is in evidence.
(Thereupon, Government's 1 received in evidence.)
MR. CRUZ: Thank you, Judge.
BY MR. CRUZ:
Q Ma'am, how is it that you realized that you became
informed that these properties in your name, your husband's
name, and your brother Steven Starr's name were encumbered by
mortgages?
A We started getting notices toward the beginning of 2009,
foreclosure notices or complaints or whatever they call them.
We starting getting them. We said who is foreclosing on our
properties, why would we be getting these. That's when we
realized.
Q Matam, did you come to learn who, in fact, obtained
multiple mortgages on these properties on Exhibit 1?
A Michael Stern orchestrated everything.
Q Matam, did you ever authorize Mr. Stern to acquire any of
these mortgages listed on this Exhibit 1?
A Never.
Q Did your husband ever allow Mr. Stern to use his means of
identification or did your husband give him any authority to
acquire the mortgages on the properties in Exhibit 1?
MR. WILCOX: Objection, Your Honor --
THE WITNESS: Never.
MR. WILCOX: -- basis of knowledge.10
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THE WITNESS: Never.
MR. WILCOX: She can't testify as to --
THE COURT: I will sustain that objection. You can
ask her about herself.
BY MR. CRUZ:
Q Matam, do you know or are you aware of any authority given
by anyone on your behalf to encumber these many properties by
Mr. Stern?
A Say it again, please.
Q Did you allow Mr. Stern the authority to encumber these
properties, ma'am?
A Never.
Q Did you have a chance to look at certain mortgages that
were executed with your name and the name of your husband?
A Yes.
Q Are you familiar with your husband's signature?
A Yes.
Q How long have you been married, by the way?
A Almost 40 years.
Q And do you know how he signs his name?
A Yes.
Q Ma'am, when you looked at these signatures on these
mortgages -- and by the way, how many mortgages approximately
were obtained on these many properties in Exhibit 1?
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know, they kept, you know, using them again and again as
collateral.
Q When you looked at the signatures on the mortgage
documents and the loan papers, did you come to find that some
of the signature were not, in fact, made by you or your
husband?
A Yes.
Q And did you later learn who, in fact, forged your
signatures?
A Well, the one who was getting all the money was Michael
Stern so you could conclude easily that, you know, it was him.
Q That was actually my next question, ma'am. Do you know
approximately how much money in mortg
Preview
Filing # 71796670 E-Filed 05/07/2018 08:08:18 PM IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA GENERAL JURISDICTION DIVISION CASE NO.: 2017-018931 CA 01 VINCENZO DEPAU, Plaintiff, Vv MICHAEL STERN, LAYNE HARRIS STERN, and IVOR H. ROSE Defendants. / DEFENDANT IVOR ROSE’S ANSWER AND AFFIRMATIVE DEFENSES AND COUNTERCLAIM AGAINST VINCENZO DEPAU AND CROSS-CLAIM AGAINST MICHAEL STERN AND LAYNE HARRIS STERN AND DEMAND FOR JURY TRIAL Defendant/Counter-Plaintiff/Cross-Plaintiff, IVOR H. ROSE (hereinafter “Defendant Rose”), by and through the undersigned counsel, hereby files his Answer and Affirmative Defenses and Counterclaim Against Vincenzo Depau and Cross-Claim Against Michael Stern and Layne Harris Stern and Demand for Jury Trial, and in support states: ANSWER 1, Defendant Rose denies paragraph 1 and demands strict proof thereof. 2 Defendant Rose is without knowledge as to paragraph 2, and therefore denies same and demand strict proof thereof. 3 Defendant Rose is without knowledge as to paragraph 3 to the extent that it alleges that “Stern is an individual who at all times relevant hereto resided in Miami-Dade County,” and therefore denies same and demand strict proof thereof. The remainder of paragraph 3 is admitted.4 Defendant Rose is without knowledge as to paragraph 4, and therefore denies same and demand strict proof thereof. 5 Paragraph 5 is admitted. 6. Paragraph 6 is admitted 7 Defendant Rose admits that venue is proper in Miami-Dade County. Defendant Rose denies the remainder of paragraph 7 and demands strict proof thereof. 8 Defendant Rose denies paragraph 8 and demands strict proof thereof. Defendant Rose further directs Plaintiff to the Affirmative Defenses. 9 Defendant Rose is without knowledge as to paragraph 9, and therefore denies same and demand strict proof thereof. 10. Defendant Rose denies paragraph 10 as phrased and demands strict proof thereof. 11. Defendant Rose denies paragraph 11 and demands strict proof thereof. 12. Defendant Rose denies paragraph 12 and demands strict proof thereof. 13 Defendant Rose is without knowledge as to paragraph 13, and therefore denies same and demand strict proof thereof. 14. Defendant Rose is without knowledge as to paragraph 14, and therefore denies same and demand strict proof thereof. 15 Defendant Rose is without knowledge as to paragraph 15, and therefore denies same and demand strict proof thereof. 16. Defendant Rose is without knowledge as to paragraph 16, and therefore denies same and demand strict proof thereof. 17. Defendant Rose is without knowledge as to paragraph 17, and therefore denies same and demand strict proof thereof. Page 2 of 20 LAW OFFICES OF ANTHONY ACCETTA, P.A. | 135 SAN LORENZO AVENUE, PENTHOUSE 820, CORAL GABLES, FL 3314618 Defendant Rose is without knowledge as to paragraph 18, and therefore denies same and demand strict proof thereof. 19. Defendant Rose is without knowledge as to paragraph 19, and therefore denies same and demand strict proof thereof. 20. Defendant Rose denies paragraph 20 and demands strict proof thereof. 21. Defendant Rose is without knowledge as to paragraph 21, and therefore denies same and demand strict proof thereof. 22. Paragraph 22 is admitted. 23 Defendant Rose is without knowledge as to paragraph 23, and therefore denies same and demand strict proof thereof. 24. Defendant Rose is without knowledge as to paragraph 24, and therefore denies same and demand strict proof thereof. 25. Defendant Rose is without knowledge as to paragraph 25, and therefore denies same and demand strict proof thereof. 26. Defendant Rose is without knowledge as to paragraph 26, and therefore denies same and demand strict proof thereof. 27. Defendant Rose is without knowledge as to paragraph 27, and therefore denies same and demand strict proof thereof. 28. Defendant Rose is without knowledge as to paragraph 28, and therefore denies same and demand strict proof thereof. 29. Defendant Rose is without knowledge as to paragraph 29, and therefore denies same and demand strict proof thereof. Page 3 of 20 LAW OFFICES OF ANTHONY ACCETTA, P.A. ! 135 SAN LORENZO AVENUE, PENTHOUSE 820, CORAL GABLES, FL 3314630 Defendant Rose is without knowledge as to paragraph 30, and therefore denies same and demand strict proof thereof. 31 Defendant Rose is without knowledge as to paragraph 31, and therefore denies same and demand strict proof thereof. 32 Defendant Rose is without knowledge as to paragraph 32, and therefore denies same and demand strict proof thereof. 33 Defendant Rose denies paragraph 33 and demands strict proof thereof. 34. Defendant Rose denies paragraph 34 and demands strict proof thereof. 35. Defendant Rose is without knowledge as to paragraph 35, and therefore denies same and demand strict proof thereof. 36 Defendant Rose denies paragraph 36 and demands strict proof thereof. 37. Defendant Rose denies paragraph 37 and demands strict proof thereof. 38. Defendant Rose denies paragraph 38 and demands strict proof thereof. 39. Defendant Rose denies paragraph 39 and demands strict proof thereof. 40. Defendant Rose is without knowledge as to paragraph 40, and therefore denies same and demand strict proof thereof. 41. Defendant Rose is without knowledge as to paragraph 41, and therefore denies same and demand strict proof thereof. 42. Defendant Rose is without knowledge as to paragraph 42, and therefore denies same and demand strict proof thereof. 43. Defendant Rose is without knowledge as to paragraph 43, and therefore denies same and demand strict proof thereof. Page 4 of 20 LAW OFFICES OF ANTHONY ACCETTA, P.A. ! 135 SAN LORENZO AVENUE, PENTHOUSE 820, CORAL GABLES, FL 3314644. As to paragraph 44, Defendant Rose repeats his answer as to paragraphs 1-43, including all sub-paragraphs, as fully set forth herein. 45 Defendant Rose is without knowledge as to paragraph 45, and therefore denies same and demand strict proof thereof. 46. Defendant Rose is without knowledge as to paragraph 46, and therefore denies same and demand strict proof thereof. 47. Defendant Rose is without knowledge as to paragraph 47, and therefore denies same and demand strict proof thereof. 48 Defendant Rose is without knowledge as to paragraph 48, and therefore denies same and demand strict proof thereof. 49. Defendant Rose is without knowledge as to paragraph 49, and therefore denies same and demand strict proof thereof. 50. Defendant Rose is without knowledge as to paragraph 50, and therefore denies same and demand strict proof thereof. 51. Defendant Rose is without knowledge as to paragraph 51, and therefore denies same and demand strict proof thereof. 52. Defendant Rose denies paragraph 52 entitled WHEREFORE and demands strict proof thereof. 53. As to paragraph 53, Defendant Rose repeats his answer as to paragraphs 1-43, including all sub-paragraphs, as fully set forth herein. 54, Defendant Rose is without knowledge as to paragraph 54, and therefore denies same and demand strict proof thereof. Page 5 of 20 LAW OFFICES OF ANTHONY ACCETTA, P.A. ! 135 SAN LORENZO AVENUE, PENTHOUSE 820, CORAL GABLES, FL 3314655 Defendant Rose denies paragraph 55 entitled WHEREFORE and demands strict proof thereof. 56 As to paragraph 56, Defendant Rose repeats his answer as to paragraphs 1-43, including all sub-paragraphs, as fully set forth herein. 57 Defendant Rose is without knowledge as to paragraph 57, and therefore denies same and demand strict proof thereof. 58 Defendant Rose is without knowledge as to paragraph 58, and therefore denies same and demand strict proof thereof. 59. Defendant Rose is without knowledge as to paragraph 59, and therefore denies same and demand strict proof thereof. 60. Defendant Rose is without knowledge as to paragraph 60, and therefore denies same and demand strict proof thereof. 61. Defendant Rose is without knowledge as to paragraph 61, and therefore denies same and demand strict proof thereof. 62. Defendant Rose is without knowledge as to paragraph 62, and therefore denies same and demand strict proof thereof. 63. Defendant Rose denies paragraph 63 entitled WHEREFORE, including all sub- paragraphs, and demands strict proof thereof. 64. As to paragraph 64, Defendant Rose repeats his answer as to paragraphs 1-43, including all sub-paragraphs, as fully set forth herein. 65. Defendant Rose is without knowledge as to paragraph 65, and therefore denies same and demand strict proof thereof. Page 6 of 20 LAW OFFICES OF ANTHONY ACCETTA, P.A. ! 135 SAN LORENZO AVENUE, PENTHOUSE 820, CORAL GABLES, FL 3314666. Defendant Rose is without knowledge as to paragraph 66, and therefore denies same and demand strict proof thereof. 67. Defendant Rose is without knowledge as to paragraph 67, and therefore denies same and demand strict proof thereof. 68 Defendant Rose is without knowledge as to paragraph 68, and therefore denies same and demand strict proof thereof. 69. Defendant Rose is without knowledge as to paragraph 69, and therefore denies same and demand strict proof thereof. 70 Defendant Rose is without knowledge as to paragraph 70, and therefore denies same and demand strict proof thereof. 71 Defendant Rose denies paragraph 71 and demands strict proof thereof. Defendant Rose further directs Plaintiff to the Affirmative Defenses. 72. Defendant Rose is without knowledge as to paragraph 72, and therefore denies same and demand strict proof thereof. BB. Defendant Rose denies paragraph 73 entitled WHEREFORE, including all sub- paragraphs, and demands strict proof thereof. 74. As to paragraph 74, Defendant Rose repeats his answer as to paragraphs 1-43, including all sub-paragraphs, as fully set forth herein. 75. Defendant Rose is without knowledge as to paragraph 75, and therefore denies same and demand strict proof thereof. 76. Paragraph 76 is admitted. 71. Paragraph 77 is admitted. 78. Paragraph 78 is admitted. Page 7 of 20 LAW OFFICES OF ANTHONY ACCETTA, P.A. ! 135 SAN LORENZO AVENUE, PENTHOUSE 820, CORAL GABLES, FL 3314679. Paragraph 79 is admitted. 80. Paragraph 80 is admitted. 81 Defendant Rose is without knowledge as to paragraph 81, and therefore denies same and demand strict proof thereof. 82 Defendant Rose is without knowledge as to paragraph 82, and therefore denies same and demand strict proof thereof. 83 Defendant Rose denies paragraph 83 entitled WHEREFORE, including all sub- paragraphs, and demands strict proof thereof. 84. As to paragraph 84, Defendant Rose repeats his answer as to paragraphs 1-43, including all sub-paragraphs, as fully set forth herein. 85. Defendant Rose is without knowledge as to paragraph 85, and therefore denies same and demand strict proof thereof. 86. Defendant Rose is without knowledge as to paragraph 86, and therefore denies same and demand strict proof thereof. 87. Defendant Rose is without knowledge as to paragraph 87, and therefore denies same and demand strict proof thereof. 88. Defendant Rose is without knowledge as to paragraph 88, and therefore denies same and demand strict proof thereof. 89. Defendant Rose is without knowledge as to paragraph 89, and therefore denies same and demand strict proof thereof. 90. Defendant Rose is without knowledge as to paragraph 90, and therefore denies same and demand strict proof thereof. Page 8 of 20 LAW OFFICES OF ANTHONY ACCETTA, P.A. ! 135 SAN LORENZO AVENUE, PENTHOUSE 820, CORAL GABLES, FL 3314691 Defendant Rose is without knowledge as to paragraph 91, and therefore denies same and demand strict proof thereof. 92 Defendant Rose denies paragraph 92 entitled WHEREFORE, including all sub- paragraphs, and demands strict proof thereof. 93 As to paragraph 93, Defendant Rose repeats his answer as to paragraphs 1-43, including all sub-paragraphs, as fully set forth herein. 94. Defendant Rose is without knowledge as to paragraph 94, and therefore denies same and demand strict proof thereof. 95 Defendant Rose is without knowledge as to paragraph 95, and therefore denies same and demand strict proof thereof. 96. Defendant Rose is without knowledge as to paragraph 96, and therefore denies same and demand strict proof thereof. 97. Defendant Rose is without knowledge as to paragraph 97, and therefore denies same and demand strict proof thereof. 98. Defendant Rose is without knowledge as to paragraph 98, and therefore denies same and demand strict proof thereof. 99. Defendant Rose is without knowledge as to paragraph 99, and therefore denies same and demand strict proof thereof. 100. Defendant Rose is without knowledge as to paragraph 100, and therefore denies same and demand strict proof thereof. 101. Defendant Rose is without knowledge as to paragraph 101, and therefore denies same and demand strict proof thereof. Page 9 of 20 LAW OFFICES OF ANTHONY ACCETTA, P.A. ! 135 SAN LORENZO AVENUE, PENTHOUSE 820, CORAL GABLES, FL 33146102. Defendant Rose is without knowledge as to paragraph 102, and therefore denies same and demand strict proof thereof. 103. Defendant Rose is without knowledge as to paragraph 103, and therefore denies same and demand strict proof thereof. 104. Defendant Rose is without knowledge as to paragraph 104, and therefore denies same and demand strict proof thereof. 105. Defendant Rose is without knowledge as to paragraph 105, and therefore denies same and demand strict proof thereof. 106. Defendant Rose is without knowledge as to paragraph 106, and therefore denies same and demand strict proof thereof. 107. Defendant Rose denies paragraph 107 entitled WHEREFORE, including all sub- paragraphs, and demands strict proof thereof. 108. Defendant Rose denies each and every allegation not strictly admitted and strict proof is demanded thereof. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE Plaintiff's claims, Count I-V, are barred by the statute of limitations. As clearly stated within the Promissory Note upon which the Plaintiff now sues: On July 31, 2008, the entire amount of principal, interest and all other sums due hereunder, if any unless sooner paid shall be due and payable. Accordingly, the statute of limitations has long since run on theses counts, as Plaintiff did not initiate this action until August of 2017 Page 10 of 20 LAW OFFICES OF ANTHONY ACCETTA, P.A. ! 135 SAN LORENZO AVENUE, PENTHOUSE 820, CORAL GABLES, FL 33146Therefore, any claim to the property at issue in this case that is owned by Defendant Ivor Rose cannot be foreclosed upon and Counts I through V must be dismissed with prejudice. SECOND AFFIRMATIVE DEFENSE (Statute of Repose) Plaintiffs claims, Count I-V, are barred by the statute of repose. As clearly stated within the Promissory Note upon which Plaintiff now sues On July 31, 2008, the entire amount of principal, interest and all other sums due hereunder, if any unless sooner paid shall be due and payable. Plaintiff did not initiate this action until August 2017. Accordingly, the Note and Mortgage were no longer enforceable and were extinguished by operation of the statute of repose before Plaintiff brought this claim. Therefore, any claim to the property at issue in this case that is owned by Defendant Ivor Rose cannot be foreclosed upon and Counts I through V must be dismissed with prejudice. THIRD AFFIRMATIVE DEFENSE (Failure to Join Indispensable Party) Defendant Rose was initially not a party to this lawsuit despite the fact that he is on the deed to the property that is the subject of this lawsuit. Defendant Rose was not aware that this lawsuit even existed until March 22, 2018, when his lawyer, Lazaro Vazquez, Esquire, was contacted by counsel for Co-Defendant Layne Harris who alerted Attorney Vazquez to the existence of this lawsuit filed by the Plaintiff. The Mortgage and Note that are being foreclosed upon were obtained through fraud and Defendant Rose’s signature was forged. The Plaintiff is fully aware that Defendant Rose never signed the Mortgage and Note at issue in this case. The notary and witness to the Note and Mortgage, Defendant Layne Harris, has already admitted that her notary stamp was stolen and her Page 11 of 20 LAW OFFICES OF ANTHONY ACCETTA, P.A. ! 135 SAN LORENZO AVENUE, PENTHOUSE 820, CORAL GABLES, FL 33146signatures on the Note and Mortgage verifying that Defendant Rose was the person signing were forged. Therefore, the Plaintiff obtained a Final Judgment of Foreclosure based upon a Note and Mortgage that were obtained through fraud. Therefore, the Final Judgment of Foreclosure obtained in this action must be vacated, because it is void. A fee simple title holder is an indispensable party in an action to foreclose a mortgage on property. Oakland Props. Corp. v. Hogan, 117 So. 846, 848 (1928) (“One who holds the legal title to mortgaged property is not only necessary, but is an indispensable, party defendant in a suit to foreclose a mortgage.”); Cmty. Fed. Sav. & Loan Ass'n of Palm Beaches v. Wright. 452 So.2d 638, 640 (Fla. 4th DCA 1984). “Indispensable parties are necessary parties so essential to a suit that no final decision can be rendered without their joinder.” Hertz Corp. v. Piccolo, 453 So.2d 12, 14 n. 3 (Fla. 1984). For centuries the Florida Supreme Court has recognized that “a foreclosure proceeding resulting in a final decree and a sale of the mortgaged property, without the holder of the legal title being before the court will have no effect to transfer his title to the purchaser at said sale.” Jordan v. Sayre, 3 So. 329, 330 (1888). Therefore, any foreclosure proceeding that fails to include the deeded owner is void. /d. (emphasis added). It is well established in Florida that a foreclosure judgment is void for failing to join indispensable parties. See also Lambert v. Dracos, 403 So.2d 481, 484 (Fla. 1st DCA 1981) (holding trial court erred in denying defendants' motion to dismiss foreclosure complaint for failure to join an indispensable party, a legal co-owner of the interest foreclosed); Citibank, N.A. v. Villanueva, 174 So. 3d 612, 613-14 (Fla. 4" DCA 2015); see also, Davanzo v. Resolute Ins. Co., 346 So. 2d 1227, 1228 (Fla 3d DCA 1977) (“One who holds legal title to mortgaged property is an indispensable party defendant in a suit to foreclose a mortgage and a court cannot properly adjudicate the matters involved in this suit when it appears indispensable parties are not in some proper way actually or Page 12 of 20 LAW OFFICES OF ANTHONY ACCETTA, P.A. ! 135 SAN LORENZO AVENUE, PENTHOUSE 820, CORAL GABLES, FL 33146constructively before the court.”); Meh Byron 4 LLC vy. Fed. Nat. Mortg. Ass'n, 187 So. 3d 335 (Fla. 3d DCA 2016). Accordingly, the Final Judgment entered by the Court on March 8, 2018, against Defendant Michael Stern in favor of Plaintiff, must, as a matter of law and equity, be set aside and vacated and this matter should proceed for resolution on its merits, or lack of merit, as discussed above FOURTH AFFIRMATIVE DEFENSE (No Consideration for the Promissory Note or Mortgage) Defendant Rose never received any loan proceeds or any other benefit from the Mortgage and Promissory Note at issue in this case. Therefore, this action should be dismissed with prejudice FIFTH AFFIRMATIVE DEFENSE (Equitable Estoppel) The Plaintiff in this case knew or should have known that it had no loan with Defendant Rose and that Defendant Michael Stern was perpetuating a fraud on Rose. Defendant Rose never applied for a loan, never received any loan proceeds, never received a loan statement, never made a loan payment, and the Plaintiff never even met Defendant Rose. Plaintiff should be equitably estopped from claiming Defendant Rose is a mortgagor or borrower on the loan. Therefore, this action should be dismissed with prejudice. SIXTH AFFIRMATIVE DEFENSE (Mortgage Fraud by Michael Stern) Plaintiff also sued Defendant Michael A. Stern who is a co-Defendant in this action. Defendant Michael A. Stern has already accepted full responsibility for fraudulently obtaining mortgages on Rose and his wife, Rita Starr’s properties. He also admitted to stealing all of the loan proceeds that were obtained by using Rose and his wife, Rita Starr’s properties as collateral. Page 13 of 20 LAW OFFICES OF ANTHONY ACCETTA, P.A. ! 135 SAN LORENZO AVENUE, PENTHOUSE 820, CORAL GABLES, FL 33146Specifically, on September 24, 2014, Defendant Michael A. Stern voluntarily plead guilty to Count II in his Indictment which included mortgages. Furthermore, at the sentencing hearing, the victims Rita Starr (wife of Defendant Rose) testified that Michael A. Stern obtained several mortgages that totaled approximately Nineteen Million Dollars ($19,000,000) including mortgages that were obtained through fraud. The title insurer’s attorney advised the Federal Court that they had already paid out in excess of Ten Million Dollars ($10,000,000) as a result of Defendant Michael A. Stern's mortgage fraud. At the conclusion of the sentencing hearing, Defendant Stern was sentenced to ninety-two (92) months in Federal Prison plus the five-year sentence he was already serving for defrauding another victim out of millions of dollars. The Federal Court also held an evidentiary hearing to determine the restitution amount that Defendant Michael A. Stern would be responsible to pay to all of the victims including the Roses and the Plaintiff in this case. A true and correct copy of the Restitution transcript held before the Honorable Judge Zloch is attached hereto as EXHIBIT "A". At the restitution hearing, Defendant Stern’s criminal actions used to obtain the fraudulent mortgages were detailed by the AUSA, Roger Cruz, Esquire on behalf of the U.S. Government through Rita Starr’s identity (the Defendant/Counter-Plaintiff in this case). The government identified each fraudulent mortgage including the mortgage that is at issue in this case. See Restitution Transcript (EXHIBIT "A"). In addition to the testimony provided by Defendant Rose’s wife, Mrs. Starr, the AUSA introduced WITHOUT objection a detailed chart that described each of the fraudulent notes and mortgages obtained by Defendant Stern without the consent or knowledge of the Roses. A true and correct copy of the detailed chart entered into evidence at the restitution hearing is attached hereto as EXHIBIT "B". Page 14 of 20 LAW OFFICES OF ANTHONY ACCETTA, P.A. ! 135 SAN LORENZO AVENUE, PENTHOUSE 820, CORAL GABLES, FL 33146After Defendant Rose’s wife Ms. Starr had finished testifying and was subject to extensive cross examination by Defendant Michael A. Stern's Defense attorney, the Federal Court inquired of Defendant Michael A. Stern whether he would like to present any evidence or testify on his behalf. Defendant Michael A. Stern responded “NO.” Therefore, because the sworn testimony of Defendant Rose’s wife, Mrs. Starr, and the other evidence submitted by the Government was unrebutted. Defendant Michael A. Stern was ordered to pay the total amount of all of the fraudulent mortgages identified in the detailed chart referenced above. Defendant Michael A. Stern was ordered by the Honorable Judge Zloch to pay restitution for the horrible crimes he committed against the Rose and his wife, Rita Starr. Attached and incorporated herein as EXHIBIT “C” is a true and correct copy of the restitution order. Rose and his wife, Rita Starr, have been awarded $9,172,113.49. Therefore, Rose has a superior lien then the Plaintiff in this action to any proceeds that may be paid as a result of the sale of the subject property in any foreclosure action. TENTH AFFIRMATIVE DEFENSE (Lack of Standing) The Plaintiff does not have standing to file the instant foreclosure lawsuit. A party seeking to foreclose on a note and mortgage must prove it has standing to do so. To have standing, the Plaintiff must prove it owned the note and mortgage prior to filing the foreclosure action to enforce said note and mortgage. Lloyd v. Bank of New York Mellon, 2015 WL 1334292 (Fla. 4" DCA 2015). Furthermore, any assignment of a promissory note or mortgage or the right to enforce such, must pre-date the filing of the foreclosure action. Mathews v. Federal Nat'l Mortgage Assoc., 2015 WL 1334310 (Fla. 4" DCA 2015). It is undisputed that the Mortgage and Note that are the subject of this action were obtained through fraud and Rose has never consented to said Note or Mortgage Therefore, this action should be dismissed with prejudice Page 15 of 20 LAW OFFICES OF ANTHONY ACCETTA, P.A. ! 135 SAN LORENZO AVENUE, PENTHOUSE 820, CORAL GABLES, FL 33146DEMAND FOR JURY TRIAL Defendant Rose demand a trial by jury on all issues so triable COUNTERCLAIM AGAINST VICENZO DEPAU AND CROSS-CLAIM AGAINST DEFENDANT LAYNE HARRIS AND DEFENDANT MICHAEL STERN Counter-Plaintiff/Cross-Plaintiff, Ivor H. Rose, by and through his undersigned counsel, file his Counterclaim against Counter-Defendant VINCENZO DEPAU (“DePau”) and Cross-Claim Against Cross-Defendant LAYNE HARRIS (“Harris”) and Cross- Defendant MICHAEL STERN (“Stern”), and in support states as follows: JURISDICTION AND VENUE 1 DePau is an individual who at all times relevant hereto resided in Miami-Dade County, Florida. 2 Stern is an individual who at all times relevant hereto resided in Miami-Dade County. Stern is currently incarcerated and in the custody of the Federal Bureau of Prisons. Until recently, Stern was in a Federal Prison in Miami-Dade County, Florida. 3 Harris is an individual who at all times relevant hereto resided in Miami-Dade County. 4 Rose is an individual who at all times relevant hereto resided in Miami-Dade County. 5 Venue is proper in Miami-Dade County, because the property at issue in this case is located in Miami-Dade County, Florida 6. All conditions precedent to the filing of this action, if any, have either been met, waived, or otherwise excused 7. Rose retained the undersigned to prosecute this action and agreed to pay reasonable fees for its services and to cover all actual costs incurred. Page 16 of 20 LAW OFFICES OF ANTHONY ACCETTA, P.A. ! 135 SAN LORENZO AVENUE, PENTHOUSE 820, CORAL GABLES, FL 331468. The amount in controversy exceeds Fifteen Thousand Dollars ($15,000.00), and concerns both legal and equitable actions relating to real estate and other causes. FACTUAL BACKGROUND 9 Defendant Rose is the victim of fraudulent mortgages that were placed on the Roses’ properties by Stern 10. Stern is currently serving a twelve (12) year prison sentence in Federal Prison after pleading guilty and admitting to all of the fraud involving the above-referenced mortgages. 11. Stern admitted that Rose and his wife Rita Starr were not aware of the mortgage and promissory note in his plea agreement and was ordered to pay restitution for these mortgages and promissory notes to the Roses. 12 Stern is a career criminal and was already serving a five (5) year prison sentence for using a false identity to defraud another victim out of millions of dollars when he decided to plead guilty to placing fraudulent mortgages on the Roses’ property. ! 13 The Roses received nothing from all the mortgages that were placed on their properties, and the record is devoid of any authorization for Stern or any other third parties to receive proceeds from those loans. The mortgages were part of a fraudulent scheme initiated by Stern to misappropriate the equity in the Roses’ properties. 14. All of the mortgages were concealed from the Roses. COUNTI QUIET TITLE UNDER §65.061, FLORIDA STATUTES 1 Michael A. Stern admitted in open court that he was in fact guilty of placing fraudulent mortgages on the Roses' property and stealing all of the monies. Then decided to appeal the Court's sentence. He now claims otherwise, despite his admission of guilt under oath and his acceptance of the Restitution Order submitted at the restitution hearing, Stern appealed his sentence and guilty plea. As expected, all of his motions and appeals to set aside his plea, the restitution orders and prison sentence have all been denied and dismissed with prejudice. Page 17 of 20 LAW OFFICES OF ANTHONY ACCETTA, P.A. ! 135 SAN LORENZO AVENUE, PENTHOUSE 820, CORAL GABLES, FL 3314615. Rose re-alleges paragraphs 1-14, as if fully set forth herein 16. This is an action to quiet title with respect to land located in Miami-Dade County, Florida described as Lot 3, in Block 3, of SAN MARCO ISLAND, according to the Plat thereof, recorded in Plat Book 9, Page 21, of the Public Records of Miami-Dade County, Florida, and commence at an iron pipe marking the most southerly corner of Lot 3, Block 3, San Marco Island, according to the Plat Book 9, Page 21, Public Records of Miami-Dade County, Florida; thence Southeasterly along the Southwest boundary of Lot 3, produced Southeasterly 8 feet; thence Northeasterly along the circumference of a circular curve having a radius of 358 feet, parallel to the Southeasterly boundary of said Lot 3, 106.47 feet to the Point of Intersection of the Northeasterly boundary of Lot 3 produced Southeasterly; thence Northwesterly 8 feet to the most Easterly corner of said Lot 3, Block 3, San Marco Island; thence Southwesterly along the Southeasterly boundary of said Lot 3, 103.96 feet to the point of beginning. (Also known as: 1386 S. Venetian Way, Miami, FL 33139) 17. The mortgage being foreclosed upon by the Plaintiff in this action is null and void as a matter of law. The Mortgage was obtained fraudulently and no monies or benefit(s) were ever given to Rose in exchange for said Mortgage. 18. Therefore, the Mortgage cannot be foreclosed upon by the Plaintiff for the reasons set forth herein and should be stricken from the public record. WHEREFORE, the Counter-Plaintiff VOR H. ROSE, demands Judgment against the Counter-Defendant VICENZO DEPAU and requests the Court order the Miami-Dade Clerk of the Courts, to strike the note and mortgage recorded against the above described property in favor of Counter-Defendant VICENZO DEPAU, Cross-Defendant MICHAEL STERN, Cross-Defendant LAYNE HARRIS and enter any other order necessary to clear the title of said property and such other and further relief as this Court deems just and proper. Page 18 of 20 LAW OFFICES OF ANTHONY ACCETTA, P.A. ! 135 SAN LORENZO AVENUE, PENTHOUSE 820, CORAL GABLES, FL 33146COUNT SLANDER OF TITLE 19. The Roses re-allege paragraphs 1 through 14, as if fully set forth herein. 20. The mortgage in the subject transaction was a falsehood and was knowingly prepared by Stern. 21. The false mortgage was published when recorded in the public records and attached to the current lawsuit along with the recording of a lis pendens. 22. The false mortgage was recorded in the public records in and for Miami-Dade County, Florida against the subject property with Plaintiff's full knowledge and direction. 23. | When the false mortgage was recorded, Plaintiff knew or reasonably should have known that it would create a cloud on the title that would prevent Rose from re-financing, developing or selling the property. 24. — Furthermore, the false, recorded mortgage played a material and substantial part in inducing others not to deal with Rose including but not limited to buyers, renters, and lenders: 25. Rose has suffered consequential damages and special damages that include but are not limited to attorney fees and costs in attempting to remove the cloud on title and damages that have resulted from Rose’s inability to develop, sell, or re-finance the property. WHEREFORE, Counter-Plaintiff/Cross-Plaintiff 1VOR H. ROSE demands that judgment be entered against the Counter-Defendant VINCENZO DEPAU, Cross-Defendant MICHAEL STERN, Cross-Defendant LAYNE HARRIS for his damages and special damages including but not limited to attorney fees and costs expended to remove the cloud on title together with interest, and such other further relief as this Court deems just and proper. DEMAND FOR JURY TRIAL Defendant Rose demands a trial by jury on all issues so triable. Page 19 of 20 LAW OFFICES OF ANTHONY ACCETTA, P.A. ! 135 SAN LORENZO AVENUE, PENTHOUSE 820, CORAL GABLES, FL 33146CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing document was filed with the Clerk of the Courts and served via e-mail through the Florida Courts e-Filing Portal on this 7° day of May, 2018 in accordance with Rule 2.516 of the Florida Rules of Judicial Administration upon counsel of record (except Michael Stern) and sent via U.S. Mail to co- Defendant Michael Stern (Register No. 97980-04) c/o Federal Butner Medical Facility, 3000 Old North Carolina Highway 75, Butner, NC 27509. RESPECTFULLY SUBMITTED, LAW OFFICES OF ANTHONY ACCETTA, P.A. 135 San Lorenzo Avenue, PH 820 Coral Gables, FL 33146 Telephone: (305) 448-4529 By: /s/Anthony Accetta ANTHONY ACCETTA, ESQUIRE Florida Bar No.: 148318 law@anthonyaccetta.com paralegal@anthonyaccetta.com /s/Brian A. Concepcion BRIAN A. CONCEPCION, ESQUIRE Florida Bar No.: 124064 brian@anthonyaccetta.com LAW OFFICE OF LAZARO VAZQUEZ Counsel for Ivor Rose 145 Almeria Avenue Coral Gables, Florida 33134 Telephone: (305) 456-1784 By: /s/ Lazaro Vazquez LAZARO VAZQUEZ, ESQ. Fla Bar No.: 57812 Page 20 of 20 LAW OFFICES OF ANTHONY ACCETTA, P.A. ! 135 SAN LORENZO AVENUE, PENTHOUSE 820, CORAL GABLES, FL 33146EXHIBIT “A” LAW OFFICES OF ANTHONY ACCETTA, P.A. | 135 SAN LORENZO AVENUE, PENTHOUSE 820, CORAL GABLES, FL 33146 § (305) 448-452910 11 12 13 14 15 16 17 18 19 20 al 22 23 24 25 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 12-20683-CR-ZLOCH UNITED STATES OF AMERICA, Fort Lauderdale, Florida Plaintiff(s), February 17, 2015 vs. MICHAEL A. STERN, Defendant(s). RESTITUTION HEARING BEFORE THE HONORABLE WILLIAM J. ZLOCH UNITED STATES DISTRICT JUDGE APPEARANCES: FOR THE PLAINTIFF(S): Roger Cruz, Esquire United States Attorney's Office 500 East Broward Boulevard Seventh Floor Fort Lauderdale, Florida 33301 FOR THE DEFENDANT(S): Daryl Wilcox, Esquire Public Defender's Office One East Broward Boulevard Suite 1100 Fort Lauderdale, FL 33301 REPORTED BY: Tammy Nestor, RMR Official Court Reporter 299 East Broward Boulevard Fort Lauderdale, Florida 33301 tammynestor@yahoo.com10 11 12 13 14 15 16 17 18 19 20 al 22 23 24 25 WITNESS RITA STARR BY MR. CRUZ BY MR. WILCOX GOVERNMENT'S EXHIBITS 1 DEFENDANT'S EXHIBITS 1 I-N-D-E-X DIRECT CROSS 8 22 REDIRECT 60 RECROSS 65 PAGE 14 PAGE 5910 11 12 13 14 15 16 17 18 19 20 al 22 23 24 25 Thereupon, the following proceedings began at 10:33 a.m.: THE COURT: Good morning. Please be seated. Calling case No. 12-20683-Criminal. Counsel, would you note your appearances. MR. CRUZ: Your Honor, good morning. Roger Cruz for the United States. Judge, I am here with the case agent, Brian Omen from the FBI. THE COURT: Good morning. MR. WILCOX: Good morning, Your Honor. Daryl Wilcox, Assistant Federal Public Defender, on behalf of the defendant, Michael Stern. He's seated next to me at defense table. THE COURT: Good morning, Counsel. Let the record reflect that Michael Alan Stern is present and in the courtroom. Can I have the representative from the probation office state her appearance. THE PROBATION OFFICER: Frances Weisberg on behalf of probation. Good morning, Your Honor. THE COURT: Good morning. We are here for a restitution hearing. Let me ask the government before we begin, aren't there still some properties that might be considered relevant conduct that are involved in legal actions elsewhere? MR. CRUZ: Yes, Your Honor. It's true there are10 11 12 13 14 15 16 17 18 19 20 al 22 23 24 25 certain properties that are still subject to some litigation involving the main victims who are present, Your Honor, if I may, Rita Starr and her husband Ivor Rose. Judge, I have a document that's been submitted to the defense as well as the probation officer listing those properties that have either already been settled as far as no longer encumbered or are still subject to litigation, Your Honor. THE COURT: The properties that are still subject to litigation, how could the Court determine the valve regarding those properties? MR. CRUZ: Your Honor, I would suggest that the Court award the victim's restitution amount that is consistent with the amount of money encumbered by the actions of Mr. Stern. In other words, if we were to add up the dollar figure for the mortgages that he, without their authority, without the victims' authority, went ahead and obtained through the course of the conspiracy or the fraud conduct, that would be an accurate and approximate and reasonable amount of money that Mr. Stern should be ordered to pay. I believe the statute that's in question that generally is the one that we turn to in order to determine restitution in these matters, 18 United States Code 3663(a) as well as 3664 allow for future insurance and other it compensation. In other words, the nature of these pending10 11 12 13 14 15 16 17 18 19 20 al 22 23 24 25 actions can be adjusted at a future date should the Starrs for some reason be made whole for these encumbered properties that are subject to litigation. THE COURT: Any comment, Mr. Wilcox? MR. WILCOX: No, I don't think that's proper, Your Honor, under the statute. THE COURT: I'm sorry, you think what? MR. WILCOX: I don't think what the government is seeking is proper under the restitution statute. THE COURT: Go ahead. MR. WILCOX: I believe that the government -- the victims are entitled to actual losses. And there is a question as to -- as to the value of the property that they lost. We can't determine the value of the property before they lose it. I mean, they haven't lost any property, Judge. We can't award the victims restitution based on property that they may lose or that it may not lose. Moreover, Judge, with respect to these properties, as I submitted to the Court in my restitution hearing brief, we have admitted some forgeries. We would submit to the Court that the other properties that we have not admitted to were not forgeries and may not have been entered into because of fraudulent conduct by Mr. Stern. THE COURT: How many properties are involved in other civil litigation?10 11 12 13 14 15 16 17 18 19 20 al 22 23 24 25 MR. CRUZ: Your Honor, if I am not mistaken, there are at least 10 -- 11, Your Honor, that are still in litigation. Judge, if I may, I would like to cite to the specific subset, if you would like, Judge, of 3664 which again allows for a situation involving future compensation received by a victim. That's J2 of the statute which is 18 United States Code 3664. Yes, Your Honor, to answer Your Honor's question, I do have an exhibit that has a column that's been provided to the defense as well as Ms. Weisberg if Your Honor would like a —— THE COURT: All right. Pass that up. MR. CRUZ: Yes, Your Honor. THE COURT: And the civil litigations, are those all foreclosures regarding those other properties? MR. CRUZ: Absolutely, Your Honor. The exhibit I just provided Your Honor has a column that states either settled or in foreclosure. And the foreclosure actions all are germane to the misconduct that we would submit to Your Honor has been admitted by Mr. Stern in his factual proffer by incorporation of those allegations that are contained in the indictment. Specifically, Judge, all of these properties relate directly to the fraud scheme that was masterminded by Mr. Stern and that the foreclosure actions as well as the attorneys fees that are germane to those submitted for Your Honor's10 11 12 13 14 15 16 17 18 19 20 al 22 23 24 25 consideration relate exclusively to those properties that were in the name of the two victims here, all foreclosures, Judge. THE COURT: All right. Are you ready to proceed? MR. CRUZ: Yes, Your Honor. MR. WILCOX: Before we proceed, Your Honor, excuse me, I would like to invoke the rule. THE COURT: All right. The rule is invoked. Any potential witnesses must remain outside and not discuss their testimony amongst themselves. MR. CRUZ: Judge, at counsel's table is a representative of the FBI office, Adela Echavarria. She's a forensic accountant in this matter that assisted the government in its preparation of its case in chief prior to trial. I would ask that she remain at counsel table. THE COURT: Any objection? MR. WILCOX: Your Honor, I know they are entitled to one case agent, but I will not object to the forensic person being here as well. THE COURT: All right. MR. CRUZ: Thank you, Your Honor. THE COURT: Call your first witness. MR. CRUZ: Absolutely, Judge. Judge, we call our first witness which is Rita Starr. THE COURT: Please step up to the witness stand. Please remain standing and raise your right hand and be sworn.10 11 12 13 14 15 16 17 18 19 20 al 22 23 24 25 RITA STARR Having been first duly sworn on oath, was examined and testified as follows: THE COURT: Thank you. Please be seated. You can adjust that microphone if you need to. I need for you to speak directly into it so that we will all be able to hear you. Please state your full legal name for the record and spell your last name for the reporter. THE WITNESS: Rita Rebecca Starr, S-T-A-R-R. THE COURT: Thank you. You may proceed. MR. CRUZ: Thank you, Your Honor. DIRECT EXAMINATION BY MR. CRUZ: Q Ms. Starr, where do you live? A 110 Michigan Avenue, Miami Beach, Florida 33131. Q Are you married? A Yes. Q What is your husband's name? A Ivor Hanno Rose. Q As briefly as possible, can you explain to the Court, did you and your husband acquire certain real property in Miami Beach in a few decades' time? A Yes. Q When did you and your husband begin acquiring these10 11 12 13 14 15 16 17 18 19 20 al 22 23 24 25 properties? A So many years ago. I mean, I know him since 1976, so I would say probably by -- well, he started in 1960 and I met him in '76. So probably together we bought -- started buying properties probably in '78. Q Do you have a brother? A Yes. Q What is his name? A Steven Starr. Q Did you and Mr. Starr also receive certain real property through an inheritance? A Yes. Q Do you recall the address? A 215 6th Street and 604 Collins Avenue. Q Did there come a point in time in which you and your husband —— THE COURT: I'm sorry, what was the second address? THE WITNESS: 604 Collins Avenue. THE COURT: Thank you. Those are both on Miami Beach? THE WITNESS: Yes. THE COURT: Thank you. BY MR. CRUZ: Q Did there come a point in time in which you and your husband, in fact, acquired other properties in Miami Beach,10 11 12 13 14 15 16 17 18 19 20 al 22 23 24 25 10 ma'am? A Yes. Over the years since we have been together, we bought one at a time but many years ago. It was many years ago. But it was one at a time over some years. Q Is there a document that you assisted the government in preparing that memorialized a list of certain real property that you and your husband and brother had title to? A Yes, I helped prepare that list of the properties. Q I'm going to show you a document that has now been marked as Government's Exhibit 1 for identification. I am going to ask if you recognize it. Okay? A Okay. MR. CRUZ: May I approach, Your Honor? THE WITNESS: Yes —- oops. THE COURT: Feel free to do so. MR. CRUZ: Thank you. THE COURT: Did you show this to Mr. Wilcox? MR. WILCOX: I have a copy. MR. CRUZ: Mr. Wilcox has a copy, Your Honor. THE COURT: All right. BY MR. CRUZ: Q Ms. Starr, do you recognize that document that I handed to you? A Yes. Q Can you explain to us what it is?10 11 12 13 14 15 16 17 18 19 20 al 22 23 24 25 11 A It is the amount of restitution that we think is due us for the properties that are in foreclosure that we could lose. Q There are certain columns on this document. Do you recognize it? A Yes. THE COURT: Counsel, is this the document that you passed up to the Court earlier? MR. CRUZ: Yes, Your Honor. THE COURT: All right. Thank you. BY MR. CRUZ: Q Matam, is this a fair and accurate representation of all of the properties that you and your husband and brother had during the time period that you previously testified about? A Yes. Q Were these properties essentially free and clear of any encumbrances before you met Mr. Michael Stern? A Yes, they were totally free and clear of anything, any mortgage or anything. Q Now, matam, the Court would like to hear briefly how it is that you met Mr. Stern. A The first time I met him was at the Miami Beach Convention Center, the flea market. He was selling sneakers. That might have been 1999. Q Later in life did you and Mr. Stern as well as your husband develop a business relationship?10 11 12 13 14 15 16 17 18 19 20 al 22 23 24 25 12 A Well, at the very end of '99, Michael Stern approached my brother to see if he could rent our -- what I call our bakery property. That's, you know, those two properties we just mentioned 215 6th Street and 604 Collins -- to rent it from us, those two, and renovate them. So he became our tenant. THE COURT: And, Mrs. Starr, just so I am clear, the properties at 215 and 604, do I understand that you and your brother acquired those properties through inheritance? THE WITNESS: Yes. THE COURT: Okay. And do I understand that you and your husband met Mr. Stern sometime in 1999? THE WITNESS: Well, I met Mr. Stern in '99, but Ivor met him years before because Ivor installed glass siding doors. So he said he was once at Stern's house when Mr. Stern was maybe a teenager and he fixed the sliding doors. So he remembers him from there. THE COURT: Thank you. BY MR. CRUZ: Q I would like to draw your attention around March of 2006 to around August of 2008. Okay? A Yes. Q Matam, did you and your husband and other representatives realize that you might have been a victim of certain fraud during that time period? A No. During that time period, from March '06 through10 11 12 13 14 15 16 17 18 19 20 al 22 23 24 25 13 August of '08, no, we didn't know it at all. Q Were you, in fact, engaged in any type of nefarious conduct involving any of these real properties, ma'am? A No. Q Now, did you later realize that you, in fact, as well as your brother and your husband were a victim of fraud in relation to these many properties listed on this exhibit? MR. WILCOX: Objection, Judge. Calls for a legal conclusion. THE COURT: Just rephrase your question. MR. CRUZ: Yes, Your Honor. BY MR. CRUZ: Q You stated earlier that these properties were free and clear, right? A Right. Q Did there come a point in which these properties were not free and clear? A Yes. Q And explain to us how you realized that all these properties on this exhibit which I have yet to move -- MR. CRUZ: Your Honor, I would ask the government be allowed to move this into evidence as Exhibit 1 to this hearing. THE COURT: Any objection? MR. WILCOX: No objection, Your Honor.10 11 12 13 14 15 16 17 18 19 20 al 22 23 24 25 14 THE COURT: Government's 1 is in evidence. (Thereupon, Government's 1 received in evidence.) MR. CRUZ: Thank you, Judge. BY MR. CRUZ: Q Ma'am, how is it that you realized that you became informed that these properties in your name, your husband's name, and your brother Steven Starr's name were encumbered by mortgages? A We started getting notices toward the beginning of 2009, foreclosure notices or complaints or whatever they call them. We starting getting them. We said who is foreclosing on our properties, why would we be getting these. That's when we realized. Q Matam, did you come to learn who, in fact, obtained multiple mortgages on these properties on Exhibit 1? A Michael Stern orchestrated everything. Q Matam, did you ever authorize Mr. Stern to acquire any of these mortgages listed on this Exhibit 1? A Never. Q Did your husband ever allow Mr. Stern to use his means of identification or did your husband give him any authority to acquire the mortgages on the properties in Exhibit 1? MR. WILCOX: Objection, Your Honor -- THE WITNESS: Never. MR. WILCOX: -- basis of knowledge.10 11 12 13 14 15 16 17 18 19 20 al 22 23 24 25 15 THE WITNESS: Never. MR. WILCOX: She can't testify as to -- THE COURT: I will sustain that objection. You can ask her about herself. BY MR. CRUZ: Q Matam, do you know or are you aware of any authority given by anyone on your behalf to encumber these many properties by Mr. Stern? A Say it again, please. Q Did you allow Mr. Stern the authority to encumber these properties, ma'am? A Never. Q Did you have a chance to look at certain mortgages that were executed with your name and the name of your husband? A Yes. Q Are you familiar with your husband's signature? A Yes. Q How long have you been married, by the way? A Almost 40 years. Q And do you know how he signs his name? A Yes. Q Ma'am, when you looked at these signatures on these mortgages -- and by the way, how many mortgages approximately were obtained on these many properties in Exhibit 1? A I don't know. It could be close to 20. I don't —- you10 11 12 13 14 15 16 17 18 19 20 al 22 23 24 25 16 know, they kept, you know, using them again and again as collateral. Q When you looked at the signatures on the mortgage documents and the loan papers, did you come to find that some of the signature were not, in fact, made by you or your husband? A Yes. Q And did you later learn who, in fact, forged your signatures? A Well, the one who was getting all the money was Michael Stern so you could conclude easily that, you know, it was him. Q That was actually my next question, ma'am. Do you know approximately how much money in mortg