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Filing # 71253923 E-Filed 04/25/2018 06:08:55 PM
IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY, FLORIDA
VINCENZO DEPAU,
Plaintiff,
v.
MICHAEL STERN
, Case No. 2017+ -CA-
LAYNE HARRIS STERN, and IVOR H. ROSE ase No. 2017-018931-CA-01
Defendants.
SECOND AMENDED COMPLAINT
Plaintiff Vincenzo DePau (“DePau”) sues Defendants Michael Stern (“Stern”), Layne
Harris (formerly known as Layne Harris Stern) (“Harris”), and Ivor H. Rose (“Rose”) (Stern and
Harris each a “Defendant” and collectively the “Defendants”)! and cumulatively and alternatively
alleges the following.
JURISDICTION AND VENUE
1. This is an action, inter alia, to foreclose a mortgage that exceeds $15,000.00 on real
property in Miami-Dade County, Florida.
2. DePau is an individual who at all times relevant hereto resided in Miami-Dade
County, Florida.
3. 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.
' Rose is not included in the definition of Defendants for purposes of this pleading.
Carey Rodriguez Milian Gonya LLP * 1395 Brickell Avenue Suite 700 * Miami, FL 33131 + Tel: (305) 372-7474 * Fax: (305) 372-7475,4. Harris is an individual who at all times relevant hereto resided in Miami-Dade
County.
5. Rose is an individual who at all times relevant hereto resided in Miami-Dade
County.
6. Rose is hereby added as a party-defendant to this action pursuant to this Court’s
April 6, 2018 Order requiring Plaintiff to amend the Amended Complaint and to add Rose as a
party defendant.
7. Venue is proper in Miami-Dade County because the causes of action in this
litigation accrued in Miami-Dade County. Fla. Stat. § 47.011. Additionally, venue is also proper
in Miami-Dade because this litigation concerns enforcement of a mortgage that is secured by
property located in Miami-Dade County. Jd. Further, venue is proper in Miami-Dade County
because Harris resides in Miami-Dade County. Id.; see also Fla. Stat. § 47.021.
8. All conditions precedent to the filing of this action, if any, have either been met,
waived, or otherwise excused.
9. DePau retained the law firm of Carey Rodriguez Milian Gonya, LLP to prosecute
this action and agreed to pay reasonable fees for its services and to cover all actual costs incurred.
SUMMARY OF FACTS
10. Together with non-party Ivor H. Rose (“Rose”), Defendants obtained title to
property commonly referred to as 1386 S. Venetian Way in Miami, Florida (the “Property”)
pursuant to a warranty deed. A true and correct copy of the warranty deed is attached hereto as
Exhibit A.
Page 2 of 1511. In exchange for valid and sufficient consideration, Defendants executed and
delivered a promissory note in favor of DePau (the “Note”). A true and correct copy of the Note
is attached hereto as Exhibit B.
12. The Note was immediately secured by a mortgage on the Property, executed and
delivered by Defendants in favor of DePau.
13. The mortgage was filed in the public records of Miami-Dade County, Florida.
14. The mortgage was recorded in Official Records Book 26185 at pages 2313-2321 of
the public records of Miami-Dade County, Florida (the “Mortgage”).
15. A true and correct copy of the Mortgage is attached hereto as Exhibit C.
16. Stern represented to DePau that Rose signed both the Note and the Mortgage.
17. DePau relied on Stern’s representation that Rose signed both the Note and the
mortgage.
18. Harris represented to DePau that the Note and Mortgage were also each executed
by Rose.
19. DePau relied on Harris’ representation that Rose signed both the Note and the
mortgage.
20. Rose signed the Mortgage and the Note.
21. Later, Stern admitted that Rose did not sign either the Note or the Mortgage
22. — Rose did not sign either the Mortgage or the Note.
23. At the time the Mortgage was executed and recorded, Harris was commissioned as
a notary public in Florida.
24. The Mortgage was notarized with a notary stamp owned by Harris.
25. Harris notarized the Mortgage.
Page 3 of 1526. Harris alleges that her notary stamp was used to execute the Mortgage without her
knowledge.
27. Harris alleges that her notary stamp was used to execute the Mortgage without her
consent.
28. — Harris alleges her signature on the Mortgage was forged.
29. Harris alleges Stern unlawfully obtained her notary stamp and used the same to
execute the Mortgage without her knowledge.
30. Harris alleges Stern unlawfully obtained her notary stamp and used the same to
execute the Mortgage without her consent.
31. Stern notarized the Mortgage using Harris’ notary stamp.
32. DePau relied on Harris’ notary stamp as it was placed on the Mortgage.
33. The obligations imposed upon Defendants by the Note are joint and several.
34. The obligations imposed upon the Defendants by Mortgage are joint and several.
35. | DePau owns the Note and Mortgage. DePau is no longer in possession of the
original Note but was entitled to enforce it when loss of possession occurred. The loss of
possession was not the result of a transfer by the DePau or anyone else and was not the result of a
lawful seizure, DePau cannot reasonably obtain possession of the original Note because it was
destroyed or its whereabouts cannot be determined. DePau’s affidavit concerning the foregoing is
attached hereto as Exhibit D.
36. At all times relevant hereto, the Property was, and still is, owned by Defendants
who hold possession thereof.
37. Asalleged in more detail below, the Defendants have been and continue to be in a
continuing state of default.
Page 4 of 1538. Defendants defaulted under the Note and Mortgage by, inter alia, failing to make
payments under the Note and failing to make all subsequent payments.
39. Defendants defaulted under the Note and Mortgage by, inter alia, failing to fulfill
material covenants and obligations imposed by the Note and Mortgage.
40. DePau declares the full amount payable under the Note and Mortgage to be due
with interest.
41. In addition to the principal amount and accrued interest due under the Note,
Defendants also owe DePau liquidated damages pursuant to the terms of the Note.
42. Stern waived all defenses to the enforcement of the Mortgage (the “Waiver”). A
true and correct copy of the Waiver is attached hereto as Exhibit E.
43. Further, Stern acknowledged that DePau is owed the monies described in the Note.
See Waiver.
CLAIMS FOR RELIEF
COUNTI
BREACH OF PROMISSORY NOTE
44. Plaintiff restates the allegations set forth in paragraphs 1 — 43 as if fully set forth
herein.
45. Defendants executed and delivered the Note in favor of DePau.
46. Defendants failed make interest payments owed pursuant to the Note when due.
47. Defendants failed to pay the principal amount owed pursuant to the Note when due.
48. The Note provides that “All past due or matured principal and interest of any kind,
or other charges payable under the terms of this Note shall bear interest after the due date or
maturity date at an interest rate elected by Holder.”
49. Defendants owe DePau the principal amount due under the Note.
Page 5 of 1550. Defendants also owe DePau all accrued past interest due under the Note.
51. Defendants also owe DePau liquidated damages.
52. | WHEREFORE, DePau demands judgment for damages against Defendants, jointly
and severally.
COUNT I
MONEY LENT
53. Plaintiff restates the allegations set forth in paragraphs 1 ~ 43 as if fully set forth
herein.
54. Defendants owe the outstanding amount due under the Note.
55. | WHEREFORE, DePau demands judgment for damages against Defendants, jointly
and severally.
COUNT IL
BREACH OF MORTGAGE (WASTE)
56. Plaintiff restates the allegations set forth in paragraphs 1 — 43 as if fully set forth
herein.
57. Section 6 of the Mortgage states that “Borrower[s] shall not destroy, damage or
impair the Property, allows the Property to deteriorate, or commit waste on the Property.”
58. Defendants have permitted the Property to remain unoccupied and vacant for a
period of years.
59. The Property has deteriorated and fallen into disrepair.
60. Defendants have committed waste on the Property.
61. Defendants continue to commit waste on the Property.
62. As a result, DePau has been damaged.
63. | WHEREFORE, DePau demands judgment as follows:
Page 6 of 15a. That a final judgment be ordered against Defendants, jointly and severally;
b. That the Property legally described in the Mortgage be set for public auction sale
with the proceeds of the sale applied to pay the indebtedness evidenced by the Note, together with
interest, costs, reasonable attorney’s fees, and the liquidated damages set forth in the Note;
c. That the Court retain jurisdiction over this action to enter further orders as
appropriate to effectuate the Court’s orders, such as issuing writs of possession; and
d. That the Court grant such other relief as it deems to be just and proper.
COUNT IV
MORTGAGE FORECLOSURE
64. Plaintiff restates the allegations set forth in paragraphs 1 — 43 as if fully set forth
herein.
65. Defendants executed and delivered the Mortgage to DePau.
66. DePau owns the Mortgage.
67. Defendants defaulted under the Note and Mortgage as described above.
68. Stern waived all defenses to enforcement of the Mortgage. See Waiver.
69. Defendants failed to make payments owed pursuant to the Note and the Mortgage.
70. Defendants are in a continuing state of default under the terms of the Mortgage by
failing to make required payments of principal and interest.
71. All conditions precedent to the relief demanded have been performed or have
otherwise been waived or excused.
72. DePau has retained the undersigned counsel as its attorneys in this matter and has
agreed to pay them a reasonable fee for their services.
73. WHEREFORE, DePau demands judgment as follows:
a. That a final judgment be ordered against Defendants, jointly and severally;
Page 7 of 15b. That the Property legally described in the Mortgage be set for public auction
sale with the proceeds of the sale applied to pay the indebtedness evidenced by the Note,
together with interest, costs, reasonable attorney’s fees, and the liquidated damages set
forth in the Note;
c. That the Court retain jurisdiction over this action to enter further orders as
appropriate to effectuate the Court’s orders, such as issuing writs of possession; and
d. That the Court grant such other relief as it deems to be just and proper.
COUNT V
BREACH OF MORTGAGE (FORFEITURE PROCEEDINGS)
74. Plaintiff restates the allegations set forth in paragraphs 1 — 43 as if fully set forth
herein.
75. Section 6 of the Mortgage states that
“Borrower shall be in default if any forfeiture action or proceeding,
whether civil or criminal, is begun that in Lender’s good faith
judgment could result in forfeiture of the Property or otherwise
materially impair the lien created by this Security Instrument or
Lender’s security interest.”
76. An Indictment (the “Indictment”) was entered against Stern. A true and correct
copy of the Indictment is attached hereto as Exhibit F.
77. The Indictment charged Stern with, among other counts, a count of federal mail
fraud under 18 U.S.C. § 1341. (the “Mail Fraud Count”). The Indictment specified that Stern’s
actions that lead to the Mail Fraud Count began before the Note and Mortgage were executed.
78. Stern entered into a Plea Agreement (the “Plea Agreement”) in which he
specifically admitted to the Mail Fraud Count. A true and correct copy of the Plea Agreement is
attached hereto as Exhibit G.
Page 8 of 1579. As a result of the Plea Agreement, U.S. District Court Judge Zloch granted the
United States an Order and Judgment of Forfeiture against Stern in the amount of Six Million
Dollars ($6,000,000) (the “Forfeiture Order”). A true and correct copy of the Forfeiture Order is
attached hereto as Exhibit H.
80. Pursuant to the Forfeiture Order, the United States may forfeit any property of
Stern, up to the value of the Forfeiture Order. See Forfeiture Order.
81. The obligations imposed by the Mortgage are joint and several in accordance with
section 12 of the Mortgage.
82. Because of the foregoing, Defendants have materially breached the terms of the
Mortgage and as a result DePau has been damaged.
83. | WHEREFORE, DePau demands judgment as follows:
a. That a final judgment be ordered against Defendants, jointly and severally;
b. That the Property legally described in the Mortgage be set for public auction
sale with the proceeds of the sale applied to pay the indebtedness evidenced by the Note,
together with interest, costs, reasonable attorney’s fees, and the liquidated damages set
forth in the Note;
c. That the Court retain jurisdiction over this action to enter further orders as
appropriate to effectuate the Court’s orders, such as issuing writs of possession; and
d. That the Court grant such other relief as it deems to be just and proper
COUNT VI
FRAUD IN THE INDUCEMENT
84. Plaintiff restates the allegations set forth in paragraphs 1 — 43 as if fully set forth
herein.
Page 9 of 1585. | The Note states that the Defendants expressly represent and warrant that the
undersigned have not committed any act or omission that would afford the Federal Government or
any state or local government the right or remedy of forfeiture as against the Property or any part
thereof.
86. This is a material representation and warranty made to induce DePau to purchase
the Note.
87. This representation and warranty was false and known by Stern to be false at the
time it was made.
88. At the time this representation and warranty was made, Stern had already
committed at least some of the acts and omissions that would ultimately lead to his imprisonment
and the entry of the Forfeiture Order.
89. Indeed, Stern admits that prior to execution of the Note and Mortgage he had
already taken the actions that would ultimately lead to the Mail Fraud Count and the Forfeiture
Order, See Plea Agreement. This was before either the Note or the Mortgage were executed and
before Stern made the express representation and warranty that he had not committed any acts or
omissions that would afford the Federal Government right of forfeiture.
90. This representation and warranty induced DePau to purchase the Note.
91. As a result, DePau’s mortgage does not have the value DePau anticipated and
DePau has been damaged.
92. WHEREFORE, DePau demands judgment as follows:
a. That a final judgment be ordered against Defendants;
Page 10 of 15db. That the Court impose a constructive trust on Defendants’ interest in the
Property to the extent necessary to prevent an unjust enrichment of the Defendants at the
expense of DePau;
c. That the Court retain jurisdiction over this action to enter further orders as
appropriate to effectuate the Court’s orders, such as issuing writs of possession; and
d. That the Court grant such other relief as it deems to be just and proper.
COUNT VII
FRAUD IN THE INDUCEMENT
93. Plaintiff restates the allegations set forth in paragraphs 1 — 43 as if fully set forth
herein.
94. Defendants represented that both the Note and Mortgage were executed by Rose.
95. In April 2017 Stern told DePau’s counsel that Rose did not sign either the Note or
the Mortgage.
96. The Mortgage was notarized by Harris.
97. Fla. Stat. § 117.05(5) states that
“Ta] notary public may not notarize a signature on a document unless
he or she personally knows, or has satisfactory evidence, that the
person whose signature is notarized is the individual who is
described in an who is executing the instrument.”
98. Fla. Stat. § 117.05(5) goes on to say that “[a] notary public shall certify in the
certificate of acknowledgment or jurat the type of identification, either based on personal
knowledge or other form of identification, upon which the notary public is relying.”
99. Harris certified in the Mortgage’s acknowledgement that the instrument was
acknowledged before by each Rose, Stern and Harris.
Page 11 of 15100. Fla. Stat. 117.105 states that “[a] notary public who falsely or fraudulently takes an
acknowledgement of an instrument as a notary public or who falsely or fraudulently makes a
certificate as a notary public or who falsely takes or receives an acknowledgement of the signature
on a written instrument is guilty of a felony of the third degree ...”
101. DePau relied on the fact that both the Note and the Mortgage were actually signed
by each Stern, Harris and Rose.
102. DePau further relied on Harris’ representation that she was a duly commissioned
notary public in Florida.
103. Naturally, that she would execute her obligations consistent with the requirements
imposed upon her by law seemed to be a foregone conclusion.
104. Harris fraudulently and falsely acknowledged the Mortgage in order to trick DePau
into thinking the Mortgage was actually executed by Rose and thereby to induce him to lend the
Defendant’s money.
105. Further, Stern knew that DePau would rely on Harris’ presentation that she was a
duly commissioned notary public in Florida and intentionally failed to inform DePau that Rose did
not execute and deliver either the Note or the Mortgage.
106. Asaresult, DePau has been damaged.
107. WHEREFORE, DePau demands judgment as follows:
a. That a final judgment be ordered against Stern and Harris, jointly and
severally;
b. That the Court impose a constructive trust on each Stern’s and Harris’
interests in the Property to the extent necessary to prevent an unjust enrichment of the
Defendants at the expense of DePau;
Page 12 of 15c That the Court retain jurisdiction over this action to enter further orders as
appropriate to effectuate the Court’s orders, such as issuing writs of possession; and
d. That the Court grant such other relief as it deems to be just and proper.
COUNT VII
NEGLIGENCE
108. Plaintiff restates the allegations set forth in paragraphs 1 — 43 as if fully set forth
herein.
109. Florida Statutes require that a “notary public official seal ... must be kept under
the direct and exclusive control of the notary public.” Fla. Stat. § 117.05(3)(b).
110. Harris failed to comply with the requirements of Florida law that are intended to
protect members of the public.
111. As aresult, DePau has been damaged.
112. WHEREFORE, DePau demands judgment as follows:
a. That a final judgment be ordered against Harris; and
b. That the Court grant such other relief as it deems to be just and proper.
COUNT Ix
FRAUD IN THE INDUCEMENT
113. Plaintiff restates the allegations set forth in paragraphs 1 — 43 as if fully set forth
herein.
114. DePau relied on the fact that the Mortgage was notarized by Harris.
115. Instead, the Mortgage was notarized by Stern.
116. Asaresult, DePau has been damaged.
117. WHEREFORE, DePau demands judgment as follows:
a. That a final judgment be ordered against Stern;
Page 13 of 15b. That the Court impose a constructive trust on Stern’s interest in the Property
to the extent necessary to prevent an unjust enrichment of Stern at the expense of DePau;
c That the Court retain jurisdiction over this action to enter further orders as
appropriate to effectuate the Court’s orders, such as issuing writs of possession; and
d. That the Court grant such other relief as it deems to be just and proper.
[remainder of page intentionally left blank]
Page 14 of 15Respectfully submitted,
April 25, 2018 CAREY RODRIGUEZ MILIAN GONYA, LLP
By: /s/ Ruben Conitzer, Esq.
Ruben Conitzer, Esq. (Fla. Bar No. 100907)
Email: rconitzer@careyrodriguez.com
Secondary: cperez@careyrodriguez.com
David P. Milian, Esq. (Fla. Bar No. 844421)
Email: dmilian@careyrodriguez.com
David M. Levine, Esq. (Fla. Bar No. 84431)
Email: dlevine@careyrodriguez.com
1395 Brickell Avenue, Suite 700
Miami, FL 33131
Telephone: (305) 372-7474
Facsimile: (305) 372-7475
Attorneys for Vincenzo DePau
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on April 25, 2018 a true and correct copy of the foregoing was
filed with the Florida E-Courts Portal and thereby served on all parties to this action (except 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.
By: /s/ Ruben Conitzer
Ruben Conitzer (Fla. Bar No. 100907)
Page 15 of 15EXHIBIT AHEE HEC EOE EE EEE
CEN 2007R0108221
OR Bk 2532¢ Pas 4263 - 43647 (2ess)
RECORDED 01/31/2007 09:10:08
. EED DOC TAX 237529.00
This Instrument Prepared By HARVEY RUVIHs CLERK OF COURT
and Return To: MIAMI-DADE COUNTY FLORIDA
Mark S. Meland, Esq.
Meland, Russin & Budwick, P.A.
3000 Wachovia Financial Center
200 South Biscayne Boulevard
Miami, Florida 33131
‘Tax Folio No, 01-3232-001-0240
WARRANTY DEED
THIS WARRANTY DEED made this 25" day of January, 2007, by Venetian Estates, LC,
a Florida limited liability company ("Grantor"), whose address is P.O, Box 190924, Miami Beach,
Florida 33119-0924 to Ivor H. Rose, a single man, Micheel Stem and Layne Harris Stern, husband
and wife, whose address is 1766 Michigan Avenue, Miami Beach, Florida 33139 ("Grantee");
Grantor" and "Grantee" are used for singular and plural, as context requires.
WITNESSETH: that the Grantor, for and in consideration of the sum of Ten ($10.00) Dollars
and other good and valuable considerations receipt of which is hereby acknowledged, hereby grant,
bargain, sell, alien, remise, release, convey and confirm unto the Grantee, all that certain land,
situate, lying and being in the County of Miami-Dade, State of Florida, to-wit (Property):
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 comer 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 Lot3, produced Southeasterly 8 feet;
thence Northeasterly along the circumference ofa 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 comer 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.
Subject to:
a ‘Taxes for the year 2007 and subsequent years;
2 Zoning and other matters imposed by governmental authority,
3. Conditions, Restrictions, Limitations, end Bascments of Record, if any which shalt not be reimposed.
TOGETHER with all the tenements, hereditaments and appurtenances thereto belonging or
anywise appertaining.
TO HAVE AND TO HOLD the same in fee simple forever. AND the Grantor does hereby
fully warrant the title to said land and will defend the same against the lawful claims of all persons
whomsoever.
3: \DOCS\REAL\2388\2389-69\00230652.WED- 1
RAnLORQAIDARnnA2R? CORFINNATNANQINA Danan 4 nf 9OR BK 25324 FG 4364
LAST PAGE
IN WITNESS WHEREOR, the said Grantor has signed and sealed these presents the day and
year first above written.
Signed, sealed and delivered
in the presence of:
Venetian Estates, LC, a Florida
‘Witess Print Name: Deena Rostant
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
The foregoing instrument was acknowledged before me this 25" day of January, 2007, by
Luis Dominguez, as Managing Member of Venetian Estates, LC, a Florida limited liability
company, on behalf of the company. He is personally known to me and did (did not) take an
oath.
rint Name: Deena Rostani
NOTARY PUBLIC STATE. Notary Public, State of Florida
Deena Ros My Commission Expires:
‘Commission #DD52309
Bonded: Tepes: FE HEB. 28, 2020
‘3: \DOCS\REAL\2389\2389~69\00230652 HED, 2
RanlOR29AIDanadA2BA CENHINNTNANQI9NG Dana 9 nf 9EXHIBIT Ba
- DOLLAR per month, ‘The frst of such monthly payments of interest only
Vb - 000417
: PROMISSORY NOTE,
USS1,400,000,00 . . Miami-Dade County,
. . "+ December 9 ane}
ROSE, a married man aad
° and wife we
mailing address are respectively 1810 Michigan Avenue, Miami, FL 310 ees the
Avenue, Miami Beach, FL 33139 Promises to pay to the Order of VICENZO DE PAU, its
+ Successors and/oy assigns CLender/tolder"), whose mailing address ig 335 §, Biscayne,
Boulevard # 3703., Miami, BL 33131, or at such other place Holder aay fiom time fo ime
designate, the Punelpal som of ONE MILLION FOUR TOND)
' RED THOUSAND -.....--
wenn ee ws Noro $1,400,000.00) DOLLARS, in laws] money
America, and to bay interest therein fiom the date hereof,
hot exceed the maximum rate of interest permitted bylaw. Atno time, shal} interest rate be
Tess than Twenty One (18.0%) Percent, Interest shall be calcul Over a three hundred sixty
(360) day year, but ROE fo exceed the Tmoeximum rate of interest permitted by law, Interest shall *
be prepaid for each consecutive month, . .
‘
‘This Note is Payable in the following manner, to wit:
‘The Borrower shall have a fixed rate of interest of 18.0% with a fixed monthly payment of
interest only in the amount of TWENTY ONE THOUSAND AND oariog 21,000.00)
shall become due md
Payable on the first day of January 1, 2008, and subsequent monthly payments of interest only
shall become due and Payable on the first day of each calendar month thereafter, until July 31,
2008, where the entire amount of principal, interest and all other sums die hereunder, if any unless
sooner paid shall be due and payable,
In all, there shalt be 6 payments of interest only with 8 Balloon Payment at the end of the 6
months, Interest shall be prepaid for each ‘consecative month.
On July 31, 2008, the éntire amount of principal, imerest end all other sums. duc hereunder,
ifany unless sooner paid shall be due and payable. .
‘This Note is secured without limitations by « Mortgage and Security Agreement (herein
called “Mortgage") of even date herewith, executed by the undersigned for the benefit of the
Holder hereof, and covering that certain Property being more fully described in the sald
Mortgage, For purposes of this Note, the term "Property" shall mean the collateral securing the
obligations of this Note,
‘The undersigned shall have the Option to prepay this Note at any time. There shall beno
prepayment penalty for any prepayments made at anytime,
uhLu
VD - 000118
shall bear interest after the. due date or maturity at an interest rate elected by Holder, which may *
be up Io but not execeding the maximum pate of interest permitted by law (hereinafter called
"Past Due Interest, except as otherwise provided herein, All bayments received prior to
maturity hereof shall first be applied to advances and such other charges, if, any; secondly lafe
charges due, if any; thirdly to accented interest and Past Due Interest, if any, and the balance, if
Lender shall Provide Borrower with ten (20) days notice, to cure 4 default prior to
holding same in defult. Each maker, surety arid endorser hereon waives grace, noice, notice of
default, notice of intent to uccelerate, notice of acceleration, Protest, demand, presentment for
payment and dilipence in the collection of this Note, and in the filing of suit hereon, and
that its liability and the lability of its heirs, pessonal representatives, executors, administrators,
trustees, benefiojaries, Successors, and assigns, for the payment hereof shall not be affected or
than the amonnt then due hereunder shall be deeined an ‘acceptance on account only, and the
failure to pay the entire amount then due shall be, and continued tobe, a defimit,
any Security Document, or in case default is made in the performance or observance of any
covenant, agreement, ten or condition contained in any Security Document, then in either
event, Holder hereof shall have the option, without demand or Notice, to declare the ‘unpaid
Hher 1 accrued interest and Other sums Secured by any Seen
immediately de ang payable without HOtice, and to ie ity
interest Securing the Payment of same, * Sele Se en or “rniy
The Undersigned Agrees that in the event OF any default ag herein before set Pollo
by an acceleration Of maturity, as id, & tender of payment Of the enone re
satisfy the entire indebtedness hereof, de if or by any,
undersigned, Shall be deemed to be Voluntary Prepayment hereunder. Any sui
Payment, to the extent Pemnitted by law, Shall therefi le
the Prepayment in ful} Privilege hereof or i Payment occurs uring eny period in which
Prepayment in fill ig not alowed. hereunder, then the maximum in full prem
Provided hereunder shall be included in the amount of any such tender. The inclusion of such
Premiums in Any such tender OF payment ig tO compensate Holder for employing its finds for
pred ined period of time, and the ‘undersi; grees that the @nount $60 fachuded isa
amount o; ages, in that Holder's actual damave for loss of ity
investment are difficult or Impossible to aScertain,
Jtis firther agreed that the undersiened shal Pay alll costs and Expenses, including cout
. tm i
* Incurred by Holder OF anyone acting on Holder's behalf in
connection with Collection of the indebtedness evidenced hereby,
Notice ‘ovided oy Rired to be Biven under this note must bein Writing an
be served shall be dora to bane been served 1) by deposits same in the United States
mail, addressed to the party to be. notified, Doslage prepaid 2) by delivering pat
or agent of. ‘such Paty, in person or by commercial courier; or 3) by ficsimile or by depositing
the same into the Custody of a nationally Tecognized Overnight very si .
ress Corporation, Aisling Express, Ein * OF Purolator, addressed tp the party tp be notified,
The patties addresses Provided in the firs Paragraph of this Note. A
» any amount in excess of the
maxing is i ic law, md in the event Holder ever
rate of interest Parmitted to be charged by applicable hy f
receive, wolfe or applies as interest any such inst all ost wih fee eee srcese
i lication has been made against N S, 0 8
cee ome te undetsigned, be deemed a partial Prepayment of Principal withoutVD - 000120
. Any failure by Holder to insist upon, or any election by Holder not to insist pon, stict
performance by the undersigted of any of the covenants, agreements, terms, conditions, ad
. Obligations heréof shall not create any estoppel at the Holder's future tight to insist upon strict
performance, and shall not be deemed to be a waiver of same or of any other covenant, tem,
provision or condition hereof, and Holder shall have the right at any time or times thereafter to
insist upon strict performance by the undersigned of any and all of such Covenants; agreements,
terms, conditions, end obligations.
Holder specifically reserves fhe right to seek a money judpment against the undersigned
for any or all of the amounts due herein with any Attomey’s fees and costs that may be incured
by Holder (through litigation and all appeals), independent of its tight and remedies under the
Seonrity Documents, Additionally, Holder shall have the right to offset against any fimds held
by Holder incloding, without limitations, escrows for taxes and insorance under the Seowity
Documents. This provision, limiting the personal liability of tie undersigned, shall not limitor
t- impair the rights of Holder fo pursue those other remedies which itmay have hereunder or wider
any Security Document, including but not limited to, the’ right to take possession of such
property and collect collateral, fo foreclose and to sell such property, and fo obtain appointment
ofa receiver, Jn the event a receiver is appointed under the tens of the said Mortgage, the
provisions of this Note shall in now way impafr or restrict the right of the receiver to take my
notion whatsoever to preserve or to obtain or recover possession of any assets or property of dny
Kind secusing or collateralizing the indebtedness evidenced hereby.
The undersigned hereby further expressly represents and warrants to Holder that the
nodersigned has not committed any act or omission affordin; ig the Federal Goverment or any
|} ‘tafe orlocal goverment the sigit andlor remedy of farflture as apatnst the Property orany wt
p gations © oruader Secmily
16 undessigned hereby covenants and agrees not to cotumif, peamif, ar sufite fo
exist Siy act or omission affording sock right and/or remedy of forfeitme, In furtherance
thereof, fhe undersigned hereby fies Holder and agrees to defend and hold Holder
bauuless from and against any loss, damage or other expenses, and-all other costs and expenses~
. incuned by Holder in preserving its lien, security interest and ofher rights and interests in the
. “Property and in any proceeding or other govermmental action assecting forfeiture thereof, by
i reason of, or in any manner resulting from the breach of the covenants and agreements contained
in the preceding sentence. ‘Without limiting the generality of the foregving, the filing of formal
charges or the additional collateral under any of the Securify Documents or all or any part of the
Property under any Federal or Stete Law for whicirforftiture of the Property orany pat theres
; or of any monies paid in performance of the undersigned's obligations under the Seonity
Documents is a potential result shall, at the election of the Holder, constitute of defiailt heremder
without notice or opportunity to cure.
In the event that-any provisions of any Security Document or this Note conflicts with
applicable law, such conflict shall not affect ofher provisions of any Seontity Documents or this
Note which can be giveti effect without the contlicting provisions, ‘To this end, the provisions of
z any Security Docoment and this Note are declared to be severable,
an Dutt | vyVD - 000121
®
Upon demand of any Party hereto, whether made before or after institution ofany judicial
Proceeding, any claim or controversy axising ont of ar relating to the Loan Documents between
Patios hereto (a "Dispnte") shall be fesolved by binding arbitration conducted under and
Soverned by the Commercial Financial Disputes Axbitration Rules (the “Arbitration Roles") of
fhe American Aubitration Association (fhe "AAA" and the Federal Arbitration Act. Disputes
appointment of receiver and filing an involmtary bankeuptey Proceeding; and fiv) when
applicable, a judgment by confession of fudement, Any claim or controversy With regard fo any
. party's entitlement to such remedies is a Dispute,
‘The parties agree that they shell not have a remedy of punitive or exemplary damages
against other parties in any Dispute and hereby waive any right or claim to punitive or exemplary
damages thoy have now or Which-may arise in the firture in connection with any Dispute whether
the Dispute is resolved by acbitration or judicially,
THE PARTIES ACKNOWLEDGE THAT BINDING
LH THA.VD - 000422
.
THE UNDERSIGNED iEeEBy WAIVES ANY AND ALL PROTECTION UND ,
THE BANKRUPTCY LAWS AND HEREBY AND FOREVER EXEMPTS THIS PROPERTY
FROM, ANY FUTURE BANKRUPTCY. FILINGS,
CONSENT To JURISDICTION AND VENUR, TRE UNDERSIGNED HEREBY
- CONSENTS AND SUBJECT IrserF TO THR JURISDICTION OF Courts ‘oF THE
“STATE oF FLORIDA Ag WELL AS To ANY FEDERAL COURT, AND (our
ING THE GENERALITY op THE FO: OF. sucH
COURTS IN THE COUNTY INWHICH THR PROPERTY Is LOCATED,
CONSTRUCTION, INTERPRETATION, AND PERFORMANCE OF THs
NOTE SHALL. GOVERNED py THE LAWS OF THE UNITED STATES OF CA,
AND TO THE EXTENT THAT STATE LAW WOULD APPLY UNDER APPLICAB)
FEDERAL LA\ 4 OF THE sTaTR WHERE THE PROPERTY IS Locarzp,
APPLICATION OF THIS SECTION syary, BE MAD) TO
LICTS OF LAW PRINCIPALS,
‘2AReal EsuteStes, Resend Harsio{ Vestn hy Reh om Dect carat StadeEXHIBIT CRrepieen “MI?
Los
WA Gollg Cer
wregean|
LH
Opeguerd
TARE AEH HE AOE UE AEE
CFN 200eR0076069
OR Bk 26185 Pss 2313 - 23215 (Peas)
Aran Pq 33199 RECORDED C1721 2008 13242225
HYG DDC TAX 4700,
INTAHG TAX 2800.00
HARVEY RUVIN CLERK OF COURT
HIAMI-DADE COUNTY: FLORIDA
THIS IS A BALLOON MORTGAGE AND THE FINAL PRINCIPAL PAYMENT OR
THE PRINCIPAL BALANCE DUE UPON MATURITY IS $1,400,000.00
TOGETHER WITH ACCRUED INTEREST, IF ANY, AND ALL ADVANCEMENTS
MADE BY THE MORTGAGEE UNDER TBE TERMS OF THIS MORTGAGE.
THIS IS A MORTGAGE ON 1386 S. Venetian Way , Miami, FL 33139.
THIS IS AN INVESTMENT PROPERTY BALLOON MORTGAGE,
THIS MORTGAGE IS NOT ASSUMABLE.
THIS MORTGAGE ("Security Instrument") is given on this q day of
December , 2008. The mortgagor is YVOR H. ROSE, a married man and MICHAEL
STERN and LAYNE HARRIS STERN, husband and wife ("Borrowes"). This Security
Instrument is given to VICENZO DE PAU, its successors and/or assigns ("Lender/Holder"),
whose mailing address is 335 S. Biscayne, Boulevard # 3703., Miami, FL 33131 (“Lender”).
Borrower owes Lender the principal sum of ONE MILLION FOUR HUNDRED
THOUSAND ----------------4 NO/100 ($1,400,000.00) DOLLARS. This debt is
evidenced by Borrower's note dated the same date as this Security Instrument ("Note"), which
provides for monthly payments, with the full debt, if not paid earlier, due and payable on July
31, 2008. This Security Instrument secures to Lender: (a) the repayment of the debt by the Note,
with interest, and all renewals, extensions and modifications of the Note; (b) the payment of all
other sums, with interest, advanced under paragraph 7 to protect the security of this Security
Instrument; and (c) the performance of Borrower's covenants and agreements under this Security
Instrument and the Note. For this purpose, Borrower does hereby mortgage, grant and convey to
Lender the following described properties located in Miami-Dade County, Florida:
Lot 3 Block 3 of SAN MARCO ISLAND, according to the Plat thereof, as recorded in Plat Book
9 Page 21 of the Public Records of Miami-Dade County, Florida and commence at an iron pipe
maridng the most southerly corner Lot 3, Block 3, SAN MARCO. ISLAND, according to the Plat
thereof, as recorded in Plat Book 9 Page 21 of the Public Records of Miami-Dade County,
Florida; thence Southeasterly along the Southwest boundary of Lot 3, produced Southeasterly &
feet; thence Northeasterly along the circumference of a circular curve having a radius of 358 feet,
paralle} 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 comer of said Lot 3, Block 3, SAN MARCO ISLAND; thence Southwesterly
along the Southeasterly boundary of said Lot 3, 103.96 fect to the Point of ‘Beginning.
alk/a 1386 S. Venetian Way, Miami, FL 33139
TOGETHER WITH all the improvements now or hereafter erected on the property, and
all easements, appurtenances, and fixtures now or hereafter a part of the property. All
ear
I
RanbR4 QEIDan2I921% COMHIANRANTANRO Dana 4 nforeplacements and additions shall also be covered by this Security Instrument. All of the
foregoing is referred to in this Security Instrument as the “Property.”
BORROWER COVENANTS that Borrower is lawfully seised of the estate hereby
conveyed and has the right to mortgage, grant and convey the Property and that the Property is
unencumbered, except for encumbrances of record. Borrower warrants and will defend generally
the title to the Property against all claims and demands, subject to any encumbrances of record.
THIS SECURITY INSTRUMENT combines uniform covenants for national use non-
uniform covenants with limited variations by jurisdiction to constitute a uniform security
instrument covering real property.
UNIFORM COVENANTS. Borrower and Lender covenant and agree as follows:
1, Payment of Principal and Interest; Prepayment and Late Charges. Borrower shall
promptly pay when due the principal of and interest on the debt evidenced by the Note and any
prepayment and late charges due under the Note.
2, Funds for Taxes and Insurance. Borrower is required to keep all taxes and insurance
premiums current at all times, and failure to do wilt become an immediate default. Lender
reserves the right to require the Borrower to begin escrowing for insurance and/or taxes at any
time. Subject to applicable law or to a written waiver by Lender, Borrower may be required to
pay to Lender on the day monthly payments are due under the Note, until the Note is paid in
full, a sum ("Funds") for: (a) yearly taxes and assessments which may attain priority over this
Security Instrument as a lien on the Property; (b) yearly leasehold payments or ground rents on
the Property, if any; (c) yearly hazard or Property insurance premiums; (d) yearly flood insurance
premiums, if any; (e) yearly mortgage insurance premiums, if any; and (f) any sums payable by
Borrower to Lender, in accordance with the provisions of paragraph 8, in lieu of the payment of
mortgage insurance premiums. These items are called "Escrow Items." Lender may, at any time,
collect and hold Funds in an amount not to exceed the maximum amount 2 lender for a federally
related mortgage loan may require for Borrower's escrow account under the federal Real Estate
Settlement Procedures Act of 1974 as amended from time to time, 12 U.S.C. 2601 et seq.
CRESPA”), unless another law that applies to the Funds sets a lesser amount. If so, Lender may,
at any time, collect and hold Funds in an amount not to exceed the lesser amount. Lender may
estimate the amount of Funds due on the basis of current data and reasonable estimates of
expenditures of fature Escrow Items or otherwise in accordance with applicable law.
‘The Funds shall be held in an institution whose deposits are insured by a federal agency,
instrumentality, or entity (including Lender, if Lender is such an institution) or in any Federal
Home Loan Bank, Lender shall apply the Funds to pay the Escrow Items. Lender may not charge
Borrower for holding and applying the Funds, annually analyzing the escrow account, or
verifying the Escrow Items, unless Lender pays Borrower interest on the Funds and applicable
law permits Lender to make such a charge. However, Lender may require Borrower to pay a one-
time charge for an independent real estate tax Teporting service used by Lender in connection
with this loan, unless applicable law provides otherwise. Unless an agreement is made ‘or
applicable law requires interest to be paid, Lender shall not be required to pay Borrower any
interest or earnings on the Funds. Borrower and Lender may agree in writing, however, that
interest shall be paid on the Funds. Lender shall give to Borrower, without charge, an annual
lH sur , . NAN
RaAnLORAREIDanaI241A CERH#ONARNNTANGO Dana 2 nf 0accounting of the Funds, showing credits and debits to the Funds and the purpose for which each
debit to the Funds was made, The Funds are pledged as additional security for all sums secured
by this Security Instrument.
If the Funds held by Lender exceed the amounts to be held by applicable law, Lender
shall account to Borrower for the excess Funds in accordance with the requirements of applicable
law. If the amount of the Funds held by Lender at any time is not sufficient to pay the Escrow
Ttems when due, Lender may so notify Borrower in writing, and, in such case Borrower shall pay
to Lender the amount necessary to make up the deficiency. Borrower shall make up the
deficiency in more than twelve monthly payments, at Lender's sole discretion,
Upon payment in fall of all sums secured by this Security Instrument, Lender shall
promptly refund to Borrower any Funds held by Lender. If, under paragraph 2], Lender shall
acquire or sell the Property, Lender, prior to the acquisition or sale of the Property, shall apply
any Funds held by Lender at the time of acquisition or sale as a credit against the sums secured
by this Security Instrument.
3. Application of Payments. Unless applicable law provides otherwise, all payments
received by Lender under paragraphs 1 and 2 shall be applied: first, to any prepayment charges
due under the Note; second, to amounts payable under paragraph 2; third, to interest due; fourth,
to principal due; and last, to any late charges due under the Note.
.4. Charges; Liens. Borrower shall pay all taxes, assessments, charges, fines and
impositions attributable to the Property which may attain priority over this Security Instrument,
and leasehold payments or ground rents, if any. Borrower shall pay these obligations in the
manner provided in paragraph 2, or if not paid in that manner, Borrower shall pay them on time
directly to the person owed payment. Borrower shall promptly furnish to Lender all notices of
amounts to be paid under this paragraph. If Borrower makes these payments directly, Borrower
shall promptly furnish to Lender receipts evidencing the payments.
Borrower shall promptly discharge any lien which has priority over this Security
Instrument unless Borrower: (a) agrees in writing to the payment of the obligation secured by the
lien in a manner acceptable to Lender; (b) contests in good faith the lien by, or defends against
enforcement of the lien in, legal proceedings which in the Lender's opinion operate to prevent
the enforcement of the lien; or (c) secures from the holder of the lien an agreement satisfactory to
Lender subordinating the lien to this Security Instrument. If Lender determines that any part of
the Property is subject to a lien which may attain priority over this Security Instrument, Lender
may give Borrower a notice identifying the lien. Borrower shall satisfy the lien or take one or
more of the actions set forth above within 10 days of the giving of notice.
5. Hazard or Property Insurance, Borrower shall keep the improvements now existing
or hereafter erected on the Property insured ‘against loss by fire, hazards included within the term
“extended coverage" and any other hezards, including floods or flooding, for which Lender
requires insurance, This insurance shall be maintained in the amounts and for the periods that
Lender requires. The insurance carrier providing the insurance shall be chosen by Borrower
subject to Lender's approval which shall not be unreasonably withheld. If Borrower fails to
maintain coverage described above. Leader may, at Lenders option, obtain coverage to protect
Lender's rights in the Property in accordance with paragraph 7.
All insurance policies and renewals shall be acceptable to Lender and shall include a
standard mortgage clause. Lender shall have the Tight to hold the policies and renewals. If
Lender requires, Borrower shall promptly give to Lender all receipts of paid premiums and
LH pur ‘ A
DanbOR4 Qh IDaneI41 CEM#OnNaNATANRA Dana 2@nfkOrenewal notices. In the event of loss, Borrower shall give prompt notice to the insurance carrier
and Lender. Lender may make proof of loss if not made promptly by Borrower.
Unless Lender and Borrower otherwise agree in writing, insurance proceeds shall be
applied to restoration or repair of the Property damaged, if the restoration or repair is
economically feasible and Lenders security is not lessened. If the restoration or Tepair is not
economically feasible or Lender's security would be lessened, the insurance proceeds shall be
applied to the sums secured by this Security Instrument, whether or not then due, with any excess
paid to Borrower. If Borrower abandons the Property, or does not answer within 30 days a notice
from Lender that the insurance carrier has offered to settle a claim, then Lender may collect the
insurance proceeds. Lender may use the proceeds to repair or restore the Propesty or to pay sums
secured by this Security Instrument, whether or not then due. The 30-day period will begin when
the notice is given.
Unless Lender and Borrower otherwise agree in writing, any application of proceeds to
Principal shall not extend or postpone the due date of the monthly payments referred to in
paragraphs 1 and 2 or change the amount of the payments. If under paragraph 21 the Property is
acquired by Lender, Borrower's right to any insurance policies and proceeds resulting from
damage to the Property prior to the acquisition shall pass to Lender to the extent of the sums
secured by this Security Instrument immediately prior to the acquisition,
6. Preservation, Maintenance and Protection of the Property; Borrower's Loan
Application; Leaseholds. Borrower shall not destroy, damage or impair the Property, allow the
Property to deteriorate, or commit waste on the Property. Borrower shall be in default if any
forfeiture action or proceeding, whether civil or criminal, is begun that in Lender's good faith
judgment could result in forfeiture of the Property or otherwise materially impair the lien created
by this Security Instrument or Lender's security interest. Borrower may cure such a default and
- Teinstate, as provided in paragraph 18 by causing the action or proceeding to be dismissed with a
tuling that, in Lender's good faith determination, precludes forfeiture of the Borrower's interest in
the Property or other material impairment of the lien created by this Security Instrument or
Lender's security interest, Borrower shall also be in default if Borrower, during the loan
application process, gave materially false or inaccurate information or statements to Lender (or
failed to provide Lender with any material information) in connection with the loan evidenced by
the Note, including, but not limited to, representations concerning Borrower's occupancy of the
Property as a principal residence. If this Security Instrument is on a leasehold, Borrower shall
comply with all the provisions of the lease. If Borrower acquires fee title to the Property, the
leasehold and the fee title shall not merge unless Lender agrees to the merger in writing.
7, Protection of Lender's Rights in the Property. If Borrower fa
Preview
Filing # 71253923 E-Filed 04/25/2018 06:08:55 PM IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA VINCENZO DEPAU, Plaintiff, v. MICHAEL STERN , Case No. 2017+ -CA- LAYNE HARRIS STERN, and IVOR H. ROSE ase No. 2017-018931-CA-01 Defendants. SECOND AMENDED COMPLAINT Plaintiff Vincenzo DePau (“DePau”) sues Defendants Michael Stern (“Stern”), Layne Harris (formerly known as Layne Harris Stern) (“Harris”), and Ivor H. Rose (“Rose”) (Stern and Harris each a “Defendant” and collectively the “Defendants”)! and cumulatively and alternatively alleges the following. JURISDICTION AND VENUE 1. This is an action, inter alia, to foreclose a mortgage that exceeds $15,000.00 on real property in Miami-Dade County, Florida. 2. DePau is an individual who at all times relevant hereto resided in Miami-Dade County, Florida. 3. 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. ' Rose is not included in the definition of Defendants for purposes of this pleading. Carey Rodriguez Milian Gonya LLP * 1395 Brickell Avenue Suite 700 * Miami, FL 33131 + Tel: (305) 372-7474 * Fax: (305) 372-7475,4. Harris is an individual who at all times relevant hereto resided in Miami-Dade County. 5. Rose is an individual who at all times relevant hereto resided in Miami-Dade County. 6. Rose is hereby added as a party-defendant to this action pursuant to this Court’s April 6, 2018 Order requiring Plaintiff to amend the Amended Complaint and to add Rose as a party defendant. 7. Venue is proper in Miami-Dade County because the causes of action in this litigation accrued in Miami-Dade County. Fla. Stat. § 47.011. Additionally, venue is also proper in Miami-Dade because this litigation concerns enforcement of a mortgage that is secured by property located in Miami-Dade County. Jd. Further, venue is proper in Miami-Dade County because Harris resides in Miami-Dade County. Id.; see also Fla. Stat. § 47.021. 8. All conditions precedent to the filing of this action, if any, have either been met, waived, or otherwise excused. 9. DePau retained the law firm of Carey Rodriguez Milian Gonya, LLP to prosecute this action and agreed to pay reasonable fees for its services and to cover all actual costs incurred. SUMMARY OF FACTS 10. Together with non-party Ivor H. Rose (“Rose”), Defendants obtained title to property commonly referred to as 1386 S. Venetian Way in Miami, Florida (the “Property”) pursuant to a warranty deed. A true and correct copy of the warranty deed is attached hereto as Exhibit A. Page 2 of 1511. In exchange for valid and sufficient consideration, Defendants executed and delivered a promissory note in favor of DePau (the “Note”). A true and correct copy of the Note is attached hereto as Exhibit B. 12. The Note was immediately secured by a mortgage on the Property, executed and delivered by Defendants in favor of DePau. 13. The mortgage was filed in the public records of Miami-Dade County, Florida. 14. The mortgage was recorded in Official Records Book 26185 at pages 2313-2321 of the public records of Miami-Dade County, Florida (the “Mortgage”). 15. A true and correct copy of the Mortgage is attached hereto as Exhibit C. 16. Stern represented to DePau that Rose signed both the Note and the Mortgage. 17. DePau relied on Stern’s representation that Rose signed both the Note and the mortgage. 18. Harris represented to DePau that the Note and Mortgage were also each executed by Rose. 19. DePau relied on Harris’ representation that Rose signed both the Note and the mortgage. 20. Rose signed the Mortgage and the Note. 21. Later, Stern admitted that Rose did not sign either the Note or the Mortgage 22. — Rose did not sign either the Mortgage or the Note. 23. At the time the Mortgage was executed and recorded, Harris was commissioned as a notary public in Florida. 24. The Mortgage was notarized with a notary stamp owned by Harris. 25. Harris notarized the Mortgage. Page 3 of 1526. Harris alleges that her notary stamp was used to execute the Mortgage without her knowledge. 27. Harris alleges that her notary stamp was used to execute the Mortgage without her consent. 28. — Harris alleges her signature on the Mortgage was forged. 29. Harris alleges Stern unlawfully obtained her notary stamp and used the same to execute the Mortgage without her knowledge. 30. Harris alleges Stern unlawfully obtained her notary stamp and used the same to execute the Mortgage without her consent. 31. Stern notarized the Mortgage using Harris’ notary stamp. 32. DePau relied on Harris’ notary stamp as it was placed on the Mortgage. 33. The obligations imposed upon Defendants by the Note are joint and several. 34. The obligations imposed upon the Defendants by Mortgage are joint and several. 35. | DePau owns the Note and Mortgage. DePau is no longer in possession of the original Note but was entitled to enforce it when loss of possession occurred. The loss of possession was not the result of a transfer by the DePau or anyone else and was not the result of a lawful seizure, DePau cannot reasonably obtain possession of the original Note because it was destroyed or its whereabouts cannot be determined. DePau’s affidavit concerning the foregoing is attached hereto as Exhibit D. 36. At all times relevant hereto, the Property was, and still is, owned by Defendants who hold possession thereof. 37. Asalleged in more detail below, the Defendants have been and continue to be in a continuing state of default. Page 4 of 1538. Defendants defaulted under the Note and Mortgage by, inter alia, failing to make payments under the Note and failing to make all subsequent payments. 39. Defendants defaulted under the Note and Mortgage by, inter alia, failing to fulfill material covenants and obligations imposed by the Note and Mortgage. 40. DePau declares the full amount payable under the Note and Mortgage to be due with interest. 41. In addition to the principal amount and accrued interest due under the Note, Defendants also owe DePau liquidated damages pursuant to the terms of the Note. 42. Stern waived all defenses to the enforcement of the Mortgage (the “Waiver”). A true and correct copy of the Waiver is attached hereto as Exhibit E. 43. Further, Stern acknowledged that DePau is owed the monies described in the Note. See Waiver. CLAIMS FOR RELIEF COUNTI BREACH OF PROMISSORY NOTE 44. Plaintiff restates the allegations set forth in paragraphs 1 — 43 as if fully set forth herein. 45. Defendants executed and delivered the Note in favor of DePau. 46. Defendants failed make interest payments owed pursuant to the Note when due. 47. Defendants failed to pay the principal amount owed pursuant to the Note when due. 48. The Note provides that “All past due or matured principal and interest of any kind, or other charges payable under the terms of this Note shall bear interest after the due date or maturity date at an interest rate elected by Holder.” 49. Defendants owe DePau the principal amount due under the Note. Page 5 of 1550. Defendants also owe DePau all accrued past interest due under the Note. 51. Defendants also owe DePau liquidated damages. 52. | WHEREFORE, DePau demands judgment for damages against Defendants, jointly and severally. COUNT I MONEY LENT 53. Plaintiff restates the allegations set forth in paragraphs 1 ~ 43 as if fully set forth herein. 54. Defendants owe the outstanding amount due under the Note. 55. | WHEREFORE, DePau demands judgment for damages against Defendants, jointly and severally. COUNT IL BREACH OF MORTGAGE (WASTE) 56. Plaintiff restates the allegations set forth in paragraphs 1 — 43 as if fully set forth herein. 57. Section 6 of the Mortgage states that “Borrower[s] shall not destroy, damage or impair the Property, allows the Property to deteriorate, or commit waste on the Property.” 58. Defendants have permitted the Property to remain unoccupied and vacant for a period of years. 59. The Property has deteriorated and fallen into disrepair. 60. Defendants have committed waste on the Property. 61. Defendants continue to commit waste on the Property. 62. As a result, DePau has been damaged. 63. | WHEREFORE, DePau demands judgment as follows: Page 6 of 15a. That a final judgment be ordered against Defendants, jointly and severally; b. That the Property legally described in the Mortgage be set for public auction sale with the proceeds of the sale applied to pay the indebtedness evidenced by the Note, together with interest, costs, reasonable attorney’s fees, and the liquidated damages set forth in the Note; c. That the Court retain jurisdiction over this action to enter further orders as appropriate to effectuate the Court’s orders, such as issuing writs of possession; and d. That the Court grant such other relief as it deems to be just and proper. COUNT IV MORTGAGE FORECLOSURE 64. Plaintiff restates the allegations set forth in paragraphs 1 — 43 as if fully set forth herein. 65. Defendants executed and delivered the Mortgage to DePau. 66. DePau owns the Mortgage. 67. Defendants defaulted under the Note and Mortgage as described above. 68. Stern waived all defenses to enforcement of the Mortgage. See Waiver. 69. Defendants failed to make payments owed pursuant to the Note and the Mortgage. 70. Defendants are in a continuing state of default under the terms of the Mortgage by failing to make required payments of principal and interest. 71. All conditions precedent to the relief demanded have been performed or have otherwise been waived or excused. 72. DePau has retained the undersigned counsel as its attorneys in this matter and has agreed to pay them a reasonable fee for their services. 73. WHEREFORE, DePau demands judgment as follows: a. That a final judgment be ordered against Defendants, jointly and severally; Page 7 of 15b. That the Property legally described in the Mortgage be set for public auction sale with the proceeds of the sale applied to pay the indebtedness evidenced by the Note, together with interest, costs, reasonable attorney’s fees, and the liquidated damages set forth in the Note; c. That the Court retain jurisdiction over this action to enter further orders as appropriate to effectuate the Court’s orders, such as issuing writs of possession; and d. That the Court grant such other relief as it deems to be just and proper. COUNT V BREACH OF MORTGAGE (FORFEITURE PROCEEDINGS) 74. Plaintiff restates the allegations set forth in paragraphs 1 — 43 as if fully set forth herein. 75. Section 6 of the Mortgage states that “Borrower shall be in default if any forfeiture action or proceeding, whether civil or criminal, is begun that in Lender’s good faith judgment could result in forfeiture of the Property or otherwise materially impair the lien created by this Security Instrument or Lender’s security interest.” 76. An Indictment (the “Indictment”) was entered against Stern. A true and correct copy of the Indictment is attached hereto as Exhibit F. 77. The Indictment charged Stern with, among other counts, a count of federal mail fraud under 18 U.S.C. § 1341. (the “Mail Fraud Count”). The Indictment specified that Stern’s actions that lead to the Mail Fraud Count began before the Note and Mortgage were executed. 78. Stern entered into a Plea Agreement (the “Plea Agreement”) in which he specifically admitted to the Mail Fraud Count. A true and correct copy of the Plea Agreement is attached hereto as Exhibit G. Page 8 of 1579. As a result of the Plea Agreement, U.S. District Court Judge Zloch granted the United States an Order and Judgment of Forfeiture against Stern in the amount of Six Million Dollars ($6,000,000) (the “Forfeiture Order”). A true and correct copy of the Forfeiture Order is attached hereto as Exhibit H. 80. Pursuant to the Forfeiture Order, the United States may forfeit any property of Stern, up to the value of the Forfeiture Order. See Forfeiture Order. 81. The obligations imposed by the Mortgage are joint and several in accordance with section 12 of the Mortgage. 82. Because of the foregoing, Defendants have materially breached the terms of the Mortgage and as a result DePau has been damaged. 83. | WHEREFORE, DePau demands judgment as follows: a. That a final judgment be ordered against Defendants, jointly and severally; b. That the Property legally described in the Mortgage be set for public auction sale with the proceeds of the sale applied to pay the indebtedness evidenced by the Note, together with interest, costs, reasonable attorney’s fees, and the liquidated damages set forth in the Note; c. That the Court retain jurisdiction over this action to enter further orders as appropriate to effectuate the Court’s orders, such as issuing writs of possession; and d. That the Court grant such other relief as it deems to be just and proper COUNT VI FRAUD IN THE INDUCEMENT 84. Plaintiff restates the allegations set forth in paragraphs 1 — 43 as if fully set forth herein. Page 9 of 1585. | The Note states that the Defendants expressly represent and warrant that the undersigned have not committed any act or omission that would afford the Federal Government or any state or local government the right or remedy of forfeiture as against the Property or any part thereof. 86. This is a material representation and warranty made to induce DePau to purchase the Note. 87. This representation and warranty was false and known by Stern to be false at the time it was made. 88. At the time this representation and warranty was made, Stern had already committed at least some of the acts and omissions that would ultimately lead to his imprisonment and the entry of the Forfeiture Order. 89. Indeed, Stern admits that prior to execution of the Note and Mortgage he had already taken the actions that would ultimately lead to the Mail Fraud Count and the Forfeiture Order, See Plea Agreement. This was before either the Note or the Mortgage were executed and before Stern made the express representation and warranty that he had not committed any acts or omissions that would afford the Federal Government right of forfeiture. 90. This representation and warranty induced DePau to purchase the Note. 91. As a result, DePau’s mortgage does not have the value DePau anticipated and DePau has been damaged. 92. WHEREFORE, DePau demands judgment as follows: a. That a final judgment be ordered against Defendants; Page 10 of 15db. That the Court impose a constructive trust on Defendants’ interest in the Property to the extent necessary to prevent an unjust enrichment of the Defendants at the expense of DePau; c. That the Court retain jurisdiction over this action to enter further orders as appropriate to effectuate the Court’s orders, such as issuing writs of possession; and d. That the Court grant such other relief as it deems to be just and proper. COUNT VII FRAUD IN THE INDUCEMENT 93. Plaintiff restates the allegations set forth in paragraphs 1 — 43 as if fully set forth herein. 94. Defendants represented that both the Note and Mortgage were executed by Rose. 95. In April 2017 Stern told DePau’s counsel that Rose did not sign either the Note or the Mortgage. 96. The Mortgage was notarized by Harris. 97. Fla. Stat. § 117.05(5) states that “Ta] notary public may not notarize a signature on a document unless he or she personally knows, or has satisfactory evidence, that the person whose signature is notarized is the individual who is described in an who is executing the instrument.” 98. Fla. Stat. § 117.05(5) goes on to say that “[a] notary public shall certify in the certificate of acknowledgment or jurat the type of identification, either based on personal knowledge or other form of identification, upon which the notary public is relying.” 99. Harris certified in the Mortgage’s acknowledgement that the instrument was acknowledged before by each Rose, Stern and Harris. Page 11 of 15100. Fla. Stat. 117.105 states that “[a] notary public who falsely or fraudulently takes an acknowledgement of an instrument as a notary public or who falsely or fraudulently makes a certificate as a notary public or who falsely takes or receives an acknowledgement of the signature on a written instrument is guilty of a felony of the third degree ...” 101. DePau relied on the fact that both the Note and the Mortgage were actually signed by each Stern, Harris and Rose. 102. DePau further relied on Harris’ representation that she was a duly commissioned notary public in Florida. 103. Naturally, that she would execute her obligations consistent with the requirements imposed upon her by law seemed to be a foregone conclusion. 104. Harris fraudulently and falsely acknowledged the Mortgage in order to trick DePau into thinking the Mortgage was actually executed by Rose and thereby to induce him to lend the Defendant’s money. 105. Further, Stern knew that DePau would rely on Harris’ presentation that she was a duly commissioned notary public in Florida and intentionally failed to inform DePau that Rose did not execute and deliver either the Note or the Mortgage. 106. Asaresult, DePau has been damaged. 107. WHEREFORE, DePau demands judgment as follows: a. That a final judgment be ordered against Stern and Harris, jointly and severally; b. That the Court impose a constructive trust on each Stern’s and Harris’ interests in the Property to the extent necessary to prevent an unjust enrichment of the Defendants at the expense of DePau; Page 12 of 15c That the Court retain jurisdiction over this action to enter further orders as appropriate to effectuate the Court’s orders, such as issuing writs of possession; and d. That the Court grant such other relief as it deems to be just and proper. COUNT VII NEGLIGENCE 108. Plaintiff restates the allegations set forth in paragraphs 1 — 43 as if fully set forth herein. 109. Florida Statutes require that a “notary public official seal ... must be kept under the direct and exclusive control of the notary public.” Fla. Stat. § 117.05(3)(b). 110. Harris failed to comply with the requirements of Florida law that are intended to protect members of the public. 111. As aresult, DePau has been damaged. 112. WHEREFORE, DePau demands judgment as follows: a. That a final judgment be ordered against Harris; and b. That the Court grant such other relief as it deems to be just and proper. COUNT Ix FRAUD IN THE INDUCEMENT 113. Plaintiff restates the allegations set forth in paragraphs 1 — 43 as if fully set forth herein. 114. DePau relied on the fact that the Mortgage was notarized by Harris. 115. Instead, the Mortgage was notarized by Stern. 116. Asaresult, DePau has been damaged. 117. WHEREFORE, DePau demands judgment as follows: a. That a final judgment be ordered against Stern; Page 13 of 15b. That the Court impose a constructive trust on Stern’s interest in the Property to the extent necessary to prevent an unjust enrichment of Stern at the expense of DePau; c That the Court retain jurisdiction over this action to enter further orders as appropriate to effectuate the Court’s orders, such as issuing writs of possession; and d. That the Court grant such other relief as it deems to be just and proper. [remainder of page intentionally left blank] Page 14 of 15Respectfully submitted, April 25, 2018 CAREY RODRIGUEZ MILIAN GONYA, LLP By: /s/ Ruben Conitzer, Esq. Ruben Conitzer, Esq. (Fla. Bar No. 100907) Email: rconitzer@careyrodriguez.com Secondary: cperez@careyrodriguez.com David P. Milian, Esq. (Fla. Bar No. 844421) Email: dmilian@careyrodriguez.com David M. Levine, Esq. (Fla. Bar No. 84431) Email: dlevine@careyrodriguez.com 1395 Brickell Avenue, Suite 700 Miami, FL 33131 Telephone: (305) 372-7474 Facsimile: (305) 372-7475 Attorneys for Vincenzo DePau CERTIFICATE OF SERVICE I HEREBY CERTIFY that on April 25, 2018 a true and correct copy of the foregoing was filed with the Florida E-Courts Portal and thereby served on all parties to this action (except 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. By: /s/ Ruben Conitzer Ruben Conitzer (Fla. Bar No. 100907) Page 15 of 15EXHIBIT AHEE HEC EOE EE EEE CEN 2007R0108221 OR Bk 2532¢ Pas 4263 - 43647 (2ess) RECORDED 01/31/2007 09:10:08 . EED DOC TAX 237529.00 This Instrument Prepared By HARVEY RUVIHs CLERK OF COURT and Return To: MIAMI-DADE COUNTY FLORIDA Mark S. Meland, Esq. Meland, Russin & Budwick, P.A. 3000 Wachovia Financial Center 200 South Biscayne Boulevard Miami, Florida 33131 ‘Tax Folio No, 01-3232-001-0240 WARRANTY DEED THIS WARRANTY DEED made this 25" day of January, 2007, by Venetian Estates, LC, a Florida limited liability company ("Grantor"), whose address is P.O, Box 190924, Miami Beach, Florida 33119-0924 to Ivor H. Rose, a single man, Micheel Stem and Layne Harris Stern, husband and wife, whose address is 1766 Michigan Avenue, Miami Beach, Florida 33139 ("Grantee"); Grantor" and "Grantee" are used for singular and plural, as context requires. WITNESSETH: that the Grantor, for and in consideration of the sum of Ten ($10.00) Dollars and other good and valuable considerations receipt of which is hereby acknowledged, hereby grant, bargain, sell, alien, remise, release, convey and confirm unto the Grantee, all that certain land, situate, lying and being in the County of Miami-Dade, State of Florida, to-wit (Property): 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 comer 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 Lot3, produced Southeasterly 8 feet; thence Northeasterly along the circumference ofa 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 comer 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. Subject to: a ‘Taxes for the year 2007 and subsequent years; 2 Zoning and other matters imposed by governmental authority, 3. Conditions, Restrictions, Limitations, end Bascments of Record, if any which shalt not be reimposed. TOGETHER with all the tenements, hereditaments and appurtenances thereto belonging or anywise appertaining. TO HAVE AND TO HOLD the same in fee simple forever. AND the Grantor does hereby fully warrant the title to said land and will defend the same against the lawful claims of all persons whomsoever. 3: \DOCS\REAL\2388\2389-69\00230652.WED- 1 RAnLORQAIDARnnA2R? CORFINNATNANQINA Danan 4 nf 9OR BK 25324 FG 4364 LAST PAGE IN WITNESS WHEREOR, the said Grantor has signed and sealed these presents the day and year first above written. Signed, sealed and delivered in the presence of: Venetian Estates, LC, a Florida ‘Witess Print Name: Deena Rostant STATE OF FLORIDA COUNTY OF MIAMI-DADE The foregoing instrument was acknowledged before me this 25" day of January, 2007, by Luis Dominguez, as Managing Member of Venetian Estates, LC, a Florida limited liability company, on behalf of the company. He is personally known to me and did (did not) take an oath. rint Name: Deena Rostani NOTARY PUBLIC STATE. Notary Public, State of Florida Deena Ros My Commission Expires: ‘Commission #DD52309 Bonded: Tepes: FE HEB. 28, 2020 ‘3: \DOCS\REAL\2389\2389~69\00230652 HED, 2 RanlOR29AIDanadA2BA CENHINNTNANQI9NG Dana 9 nf 9EXHIBIT Ba - DOLLAR per month, ‘The frst of such monthly payments of interest only Vb - 000417 : PROMISSORY NOTE, USS1,400,000,00 . . Miami-Dade County, . . "+ December 9 ane} ROSE, a married man aad ° and wife we mailing address are respectively 1810 Michigan Avenue, Miami, FL 310 ees the Avenue, Miami Beach, FL 33139 Promises to pay to the Order of VICENZO DE PAU, its + Successors and/oy assigns CLender/tolder"), whose mailing address ig 335 §, Biscayne, Boulevard # 3703., Miami, BL 33131, or at such other place Holder aay fiom time fo ime designate, the Punelpal som of ONE MILLION FOUR TOND) ' RED THOUSAND -.....-- wenn ee ws Noro $1,400,000.00) DOLLARS, in laws] money America, and to bay interest therein fiom the date hereof, hot exceed the maximum rate of interest permitted bylaw. Atno time, shal} interest rate be Tess than Twenty One (18.0%) Percent, Interest shall be calcul Over a three hundred sixty (360) day year, but ROE fo exceed the Tmoeximum rate of interest permitted by law, Interest shall * be prepaid for each consecutive month, . . ‘ ‘This Note is Payable in the following manner, to wit: ‘The Borrower shall have a fixed rate of interest of 18.0% with a fixed monthly payment of interest only in the amount of TWENTY ONE THOUSAND AND oariog 21,000.00) shall become due md Payable on the first day of January 1, 2008, and subsequent monthly payments of interest only shall become due and Payable on the first day of each calendar month thereafter, until July 31, 2008, where the entire amount of principal, interest and all other sums die hereunder, if any unless sooner paid shall be due and payable, In all, there shalt be 6 payments of interest only with 8 Balloon Payment at the end of the 6 months, Interest shall be prepaid for each ‘consecative month. On July 31, 2008, the éntire amount of principal, imerest end all other sums. duc hereunder, ifany unless sooner paid shall be due and payable. . ‘This Note is secured without limitations by « Mortgage and Security Agreement (herein called “Mortgage") of even date herewith, executed by the undersigned for the benefit of the Holder hereof, and covering that certain Property being more fully described in the sald Mortgage, For purposes of this Note, the term "Property" shall mean the collateral securing the obligations of this Note, ‘The undersigned shall have the Option to prepay this Note at any time. There shall beno prepayment penalty for any prepayments made at anytime, uhLu VD - 000118 shall bear interest after the. due date or maturity at an interest rate elected by Holder, which may * be up Io but not execeding the maximum pate of interest permitted by law (hereinafter called "Past Due Interest, except as otherwise provided herein, All bayments received prior to maturity hereof shall first be applied to advances and such other charges, if, any; secondly lafe charges due, if any; thirdly to accented interest and Past Due Interest, if any, and the balance, if Lender shall Provide Borrower with ten (20) days notice, to cure 4 default prior to holding same in defult. Each maker, surety arid endorser hereon waives grace, noice, notice of default, notice of intent to uccelerate, notice of acceleration, Protest, demand, presentment for payment and dilipence in the collection of this Note, and in the filing of suit hereon, and that its liability and the lability of its heirs, pessonal representatives, executors, administrators, trustees, benefiojaries, Successors, and assigns, for the payment hereof shall not be affected or than the amonnt then due hereunder shall be deeined an ‘acceptance on account only, and the failure to pay the entire amount then due shall be, and continued tobe, a defimit, any Security Document, or in case default is made in the performance or observance of any covenant, agreement, ten or condition contained in any Security Document, then in either event, Holder hereof shall have the option, without demand or Notice, to declare the ‘unpaid Hher 1 accrued interest and Other sums Secured by any Seen immediately de ang payable without HOtice, and to ie ity interest Securing the Payment of same, * Sele Se en or “rniy The Undersigned Agrees that in the event OF any default ag herein before set Pollo by an acceleration Of maturity, as id, & tender of payment Of the enone re satisfy the entire indebtedness hereof, de if or by any, undersigned, Shall be deemed to be Voluntary Prepayment hereunder. Any sui Payment, to the extent Pemnitted by law, Shall therefi le the Prepayment in ful} Privilege hereof or i Payment occurs uring eny period in which Prepayment in fill ig not alowed. hereunder, then the maximum in full prem Provided hereunder shall be included in the amount of any such tender. The inclusion of such Premiums in Any such tender OF payment ig tO compensate Holder for employing its finds for pred ined period of time, and the ‘undersi; grees that the @nount $60 fachuded isa amount o; ages, in that Holder's actual damave for loss of ity investment are difficult or Impossible to aScertain, Jtis firther agreed that the undersiened shal Pay alll costs and Expenses, including cout . tm i * Incurred by Holder OF anyone acting on Holder's behalf in connection with Collection of the indebtedness evidenced hereby, Notice ‘ovided oy Rired to be Biven under this note must bein Writing an be served shall be dora to bane been served 1) by deposits same in the United States mail, addressed to the party to be. notified, Doslage prepaid 2) by delivering pat or agent of. ‘such Paty, in person or by commercial courier; or 3) by ficsimile or by depositing the same into the Custody of a nationally Tecognized Overnight very si . ress Corporation, Aisling Express, Ein * OF Purolator, addressed tp the party tp be notified, The patties addresses Provided in the firs Paragraph of this Note. A » any amount in excess of the maxing is i ic law, md in the event Holder ever rate of interest Parmitted to be charged by applicable hy f receive, wolfe or applies as interest any such inst all ost wih fee eee srcese i lication has been made against N S, 0 8 cee ome te undetsigned, be deemed a partial Prepayment of Principal withoutVD - 000120 . Any failure by Holder to insist upon, or any election by Holder not to insist pon, stict performance by the undersigted of any of the covenants, agreements, terms, conditions, ad . Obligations heréof shall not create any estoppel at the Holder's future tight to insist upon strict performance, and shall not be deemed to be a waiver of same or of any other covenant, tem, provision or condition hereof, and Holder shall have the right at any time or times thereafter to insist upon strict performance by the undersigned of any and all of such Covenants; agreements, terms, conditions, end obligations. Holder specifically reserves fhe right to seek a money judpment against the undersigned for any or all of the amounts due herein with any Attomey’s fees and costs that may be incured by Holder (through litigation and all appeals), independent of its tight and remedies under the Seonrity Documents, Additionally, Holder shall have the right to offset against any fimds held by Holder incloding, without limitations, escrows for taxes and insorance under the Seowity Documents. This provision, limiting the personal liability of tie undersigned, shall not limitor t- impair the rights of Holder fo pursue those other remedies which itmay have hereunder or wider any Security Document, including but not limited to, the’ right to take possession of such property and collect collateral, fo foreclose and to sell such property, and fo obtain appointment ofa receiver, Jn the event a receiver is appointed under the tens of the said Mortgage, the provisions of this Note shall in now way impafr or restrict the right of the receiver to take my notion whatsoever to preserve or to obtain or recover possession of any assets or property of dny Kind secusing or collateralizing the indebtedness evidenced hereby. The undersigned hereby further expressly represents and warrants to Holder that the nodersigned has not committed any act or omission affordin; ig the Federal Goverment or any |} ‘tafe orlocal goverment the sigit andlor remedy of farflture as apatnst the Property orany wt p gations © oruader Secmily 16 undessigned hereby covenants and agrees not to cotumif, peamif, ar sufite fo exist Siy act or omission affording sock right and/or remedy of forfeitme, In furtherance thereof, fhe undersigned hereby fies Holder and agrees to defend and hold Holder bauuless from and against any loss, damage or other expenses, and-all other costs and expenses~ . incuned by Holder in preserving its lien, security interest and ofher rights and interests in the . “Property and in any proceeding or other govermmental action assecting forfeiture thereof, by i reason of, or in any manner resulting from the breach of the covenants and agreements contained in the preceding sentence. ‘Without limiting the generality of the foregving, the filing of formal charges or the additional collateral under any of the Securify Documents or all or any part of the Property under any Federal or Stete Law for whicirforftiture of the Property orany pat theres ; or of any monies paid in performance of the undersigned's obligations under the Seonity Documents is a potential result shall, at the election of the Holder, constitute of defiailt heremder without notice or opportunity to cure. In the event that-any provisions of any Security Document or this Note conflicts with applicable law, such conflict shall not affect ofher provisions of any Seontity Documents or this Note which can be giveti effect without the contlicting provisions, ‘To this end, the provisions of z any Security Docoment and this Note are declared to be severable, an Dutt | vyVD - 000121 ® Upon demand of any Party hereto, whether made before or after institution ofany judicial Proceeding, any claim or controversy axising ont of ar relating to the Loan Documents between Patios hereto (a "Dispnte") shall be fesolved by binding arbitration conducted under and Soverned by the Commercial Financial Disputes Axbitration Rules (the “Arbitration Roles") of fhe American Aubitration Association (fhe "AAA" and the Federal Arbitration Act. Disputes appointment of receiver and filing an involmtary bankeuptey Proceeding; and fiv) when applicable, a judgment by confession of fudement, Any claim or controversy With regard fo any . party's entitlement to such remedies is a Dispute, ‘The parties agree that they shell not have a remedy of punitive or exemplary damages against other parties in any Dispute and hereby waive any right or claim to punitive or exemplary damages thoy have now or Which-may arise in the firture in connection with any Dispute whether the Dispute is resolved by acbitration or judicially, THE PARTIES ACKNOWLEDGE THAT BINDING LH THA.VD - 000422 . THE UNDERSIGNED iEeEBy WAIVES ANY AND ALL PROTECTION UND , THE BANKRUPTCY LAWS AND HEREBY AND FOREVER EXEMPTS THIS PROPERTY FROM, ANY FUTURE BANKRUPTCY. FILINGS, CONSENT To JURISDICTION AND VENUR, TRE UNDERSIGNED HEREBY - CONSENTS AND SUBJECT IrserF TO THR JURISDICTION OF Courts ‘oF THE “STATE oF FLORIDA Ag WELL AS To ANY FEDERAL COURT, AND (our ING THE GENERALITY op THE FO: OF. sucH COURTS IN THE COUNTY INWHICH THR PROPERTY Is LOCATED, CONSTRUCTION, INTERPRETATION, AND PERFORMANCE OF THs NOTE SHALL. GOVERNED py THE LAWS OF THE UNITED STATES OF CA, AND TO THE EXTENT THAT STATE LAW WOULD APPLY UNDER APPLICAB) FEDERAL LA\ 4 OF THE sTaTR WHERE THE PROPERTY IS Locarzp, APPLICATION OF THIS SECTION syary, BE MAD) TO LICTS OF LAW PRINCIPALS, ‘2AReal EsuteStes, Resend Harsio{ Vestn hy Reh om Dect carat StadeEXHIBIT CRrepieen “MI? Los WA Gollg Cer wregean| LH Opeguerd TARE AEH HE AOE UE AEE CFN 200eR0076069 OR Bk 26185 Pss 2313 - 23215 (Peas) Aran Pq 33199 RECORDED C1721 2008 13242225 HYG DDC TAX 4700, INTAHG TAX 2800.00 HARVEY RUVIN CLERK OF COURT HIAMI-DADE COUNTY: FLORIDA THIS IS A BALLOON MORTGAGE AND THE FINAL PRINCIPAL PAYMENT OR THE PRINCIPAL BALANCE DUE UPON MATURITY IS $1,400,000.00 TOGETHER WITH ACCRUED INTEREST, IF ANY, AND ALL ADVANCEMENTS MADE BY THE MORTGAGEE UNDER TBE TERMS OF THIS MORTGAGE. THIS IS A MORTGAGE ON 1386 S. Venetian Way , Miami, FL 33139. THIS IS AN INVESTMENT PROPERTY BALLOON MORTGAGE, THIS MORTGAGE IS NOT ASSUMABLE. THIS MORTGAGE ("Security Instrument") is given on this q day of December , 2008. The mortgagor is YVOR H. ROSE, a married man and MICHAEL STERN and LAYNE HARRIS STERN, husband and wife ("Borrowes"). This Security Instrument is given to VICENZO DE PAU, its successors and/or assigns ("Lender/Holder"), whose mailing address is 335 S. Biscayne, Boulevard # 3703., Miami, FL 33131 (“Lender”). Borrower owes Lender the principal sum of ONE MILLION FOUR HUNDRED THOUSAND ----------------4 NO/100 ($1,400,000.00) DOLLARS. This debt is evidenced by Borrower's note dated the same date as this Security Instrument ("Note"), which provides for monthly payments, with the full debt, if not paid earlier, due and payable on July 31, 2008. This Security Instrument secures to Lender: (a) the repayment of the debt by the Note, with interest, and all renewals, extensions and modifications of the Note; (b) the payment of all other sums, with interest, advanced under paragraph 7 to protect the security of this Security Instrument; and (c) the performance of Borrower's covenants and agreements under this Security Instrument and the Note. For this purpose, Borrower does hereby mortgage, grant and convey to Lender the following described properties located in Miami-Dade County, Florida: Lot 3 Block 3 of SAN MARCO ISLAND, according to the Plat thereof, as recorded in Plat Book 9 Page 21 of the Public Records of Miami-Dade County, Florida and commence at an iron pipe maridng the most southerly corner Lot 3, Block 3, SAN MARCO. ISLAND, according to the Plat thereof, as recorded in Plat Book 9 Page 21 of the Public Records of Miami-Dade County, Florida; thence Southeasterly along the Southwest boundary of Lot 3, produced Southeasterly & feet; thence Northeasterly along the circumference of a circular curve having a radius of 358 feet, paralle} 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 comer of said Lot 3, Block 3, SAN MARCO ISLAND; thence Southwesterly along the Southeasterly boundary of said Lot 3, 103.96 fect to the Point of ‘Beginning. alk/a 1386 S. Venetian Way, Miami, FL 33139 TOGETHER WITH all the improvements now or hereafter erected on the property, and all easements, appurtenances, and fixtures now or hereafter a part of the property. All ear I RanbR4 QEIDan2I921% COMHIANRANTANRO Dana 4 nforeplacements and additions shall also be covered by this Security Instrument. All of the foregoing is referred to in this Security Instrument as the “Property.” BORROWER COVENANTS that Borrower is lawfully seised of the estate hereby conveyed and has the right to mortgage, grant and convey the Property and that the Property is unencumbered, except for encumbrances of record. Borrower warrants and will defend generally the title to the Property against all claims and demands, subject to any encumbrances of record. THIS SECURITY INSTRUMENT combines uniform covenants for national use non- uniform covenants with limited variations by jurisdiction to constitute a uniform security instrument covering real property. UNIFORM COVENANTS. Borrower and Lender covenant and agree as follows: 1, Payment of Principal and Interest; Prepayment and Late Charges. Borrower shall promptly pay when due the principal of and interest on the debt evidenced by the Note and any prepayment and late charges due under the Note. 2, Funds for Taxes and Insurance. Borrower is required to keep all taxes and insurance premiums current at all times, and failure to do wilt become an immediate default. Lender reserves the right to require the Borrower to begin escrowing for insurance and/or taxes at any time. Subject to applicable law or to a written waiver by Lender, Borrower may be required to pay to Lender on the day monthly payments are due under the Note, until the Note is paid in full, a sum ("Funds") for: (a) yearly taxes and assessments which may attain priority over this Security Instrument as a lien on the Property; (b) yearly leasehold payments or ground rents on the Property, if any; (c) yearly hazard or Property insurance premiums; (d) yearly flood insurance premiums, if any; (e) yearly mortgage insurance premiums, if any; and (f) any sums payable by Borrower to Lender, in accordance with the provisions of paragraph 8, in lieu of the payment of mortgage insurance premiums. These items are called "Escrow Items." Lender may, at any time, collect and hold Funds in an amount not to exceed the maximum amount 2 lender for a federally related mortgage loan may require for Borrower's escrow account under the federal Real Estate Settlement Procedures Act of 1974 as amended from time to time, 12 U.S.C. 2601 et seq. CRESPA”), unless another law that applies to the Funds sets a lesser amount. If so, Lender may, at any time, collect and hold Funds in an amount not to exceed the lesser amount. Lender may estimate the amount of Funds due on the basis of current data and reasonable estimates of expenditures of fature Escrow Items or otherwise in accordance with applicable law. ‘The Funds shall be held in an institution whose deposits are insured by a federal agency, instrumentality, or entity (including Lender, if Lender is such an institution) or in any Federal Home Loan Bank, Lender shall apply the Funds to pay the Escrow Items. Lender may not charge Borrower for holding and applying the Funds, annually analyzing the escrow account, or verifying the Escrow Items, unless Lender pays Borrower interest on the Funds and applicable law permits Lender to make such a charge. However, Lender may require Borrower to pay a one- time charge for an independent real estate tax Teporting service used by Lender in connection with this loan, unless applicable law provides otherwise. Unless an agreement is made ‘or applicable law requires interest to be paid, Lender shall not be required to pay Borrower any interest or earnings on the Funds. Borrower and Lender may agree in writing, however, that interest shall be paid on the Funds. Lender shall give to Borrower, without charge, an annual lH sur , . NAN RaAnLORAREIDanaI241A CERH#ONARNNTANGO Dana 2 nf 0accounting of the Funds, showing credits and debits to the Funds and the purpose for which each debit to the Funds was made, The Funds are pledged as additional security for all sums secured by this Security Instrument. If the Funds held by Lender exceed the amounts to be held by applicable law, Lender shall account to Borrower for the excess Funds in accordance with the requirements of applicable law. If the amount of the Funds held by Lender at any time is not sufficient to pay the Escrow Ttems when due, Lender may so notify Borrower in writing, and, in such case Borrower shall pay to Lender the amount necessary to make up the deficiency. Borrower shall make up the deficiency in more than twelve monthly payments, at Lender's sole discretion, Upon payment in fall of all sums secured by this Security Instrument, Lender shall promptly refund to Borrower any Funds held by Lender. If, under paragraph 2], Lender shall acquire or sell the Property, Lender, prior to the acquisition or sale of the Property, shall apply any Funds held by Lender at the time of acquisition or sale as a credit against the sums secured by this Security Instrument. 3. Application of Payments. Unless applicable law provides otherwise, all payments received by Lender under paragraphs 1 and 2 shall be applied: first, to any prepayment charges due under the Note; second, to amounts payable under paragraph 2; third, to interest due; fourth, to principal due; and last, to any late charges due under the Note. .4. Charges; Liens. Borrower shall pay all taxes, assessments, charges, fines and impositions attributable to the Property which may attain priority over this Security Instrument, and leasehold payments or ground rents, if any. Borrower shall pay these obligations in the manner provided in paragraph 2, or if not paid in that manner, Borrower shall pay them on time directly to the person owed payment. Borrower shall promptly furnish to Lender all notices of amounts to be paid under this paragraph. If Borrower makes these payments directly, Borrower shall promptly furnish to Lender receipts evidencing the payments. Borrower shall promptly discharge any lien which has priority over this Security Instrument unless Borrower: (a) agrees in writing to the payment of the obligation secured by the lien in a manner acceptable to Lender; (b) contests in good faith the lien by, or defends against enforcement of the lien in, legal proceedings which in the Lender's opinion operate to prevent the enforcement of the lien; or (c) secures from the holder of the lien an agreement satisfactory to Lender subordinating the lien to this Security Instrument. If Lender determines that any part of the Property is subject to a lien which may attain priority over this Security Instrument, Lender may give Borrower a notice identifying the lien. Borrower shall satisfy the lien or take one or more of the actions set forth above within 10 days of the giving of notice. 5. Hazard or Property Insurance, Borrower shall keep the improvements now existing or hereafter erected on the Property insured ‘against loss by fire, hazards included within the term “extended coverage" and any other hezards, including floods or flooding, for which Lender requires insurance, This insurance shall be maintained in the amounts and for the periods that Lender requires. The insurance carrier providing the insurance shall be chosen by Borrower subject to Lender's approval which shall not be unreasonably withheld. If Borrower fails to maintain coverage described above. Leader may, at Lenders option, obtain coverage to protect Lender's rights in the Property in accordance with paragraph 7. All insurance policies and renewals shall be acceptable to Lender and shall include a standard mortgage clause. Lender shall have the Tight to hold the policies and renewals. If Lender requires, Borrower shall promptly give to Lender all receipts of paid premiums and LH pur ‘ A DanbOR4 Qh IDaneI41 CEM#OnNaNATANRA Dana 2@nfkOrenewal notices. In the event of loss, Borrower shall give prompt notice to the insurance carrier and Lender. Lender may make proof of loss if not made promptly by Borrower. Unless Lender and Borrower otherwise agree in writing, insurance proceeds shall be applied to restoration or repair of the Property damaged, if the restoration or repair is economically feasible and Lenders security is not lessened. If the restoration or Tepair is not economically feasible or Lender's security would be lessened, the insurance proceeds shall be applied to the sums secured by this Security Instrument, whether or not then due, with any excess paid to Borrower. If Borrower abandons the Property, or does not answer within 30 days a notice from Lender that the insurance carrier has offered to settle a claim, then Lender may collect the insurance proceeds. Lender may use the proceeds to repair or restore the Propesty or to pay sums secured by this Security Instrument, whether or not then due. The 30-day period will begin when the notice is given. Unless Lender and Borrower otherwise agree in writing, any application of proceeds to Principal shall not extend or postpone the due date of the monthly payments referred to in paragraphs 1 and 2 or change the amount of the payments. If under paragraph 21 the Property is acquired by Lender, Borrower's right to any insurance policies and proceeds resulting from damage to the Property prior to the acquisition shall pass to Lender to the extent of the sums secured by this Security Instrument immediately prior to the acquisition, 6. Preservation, Maintenance and Protection of the Property; Borrower's Loan Application; Leaseholds. Borrower shall not destroy, damage or impair the Property, allow the Property to deteriorate, or commit waste on the Property. Borrower shall be in default if any forfeiture action or proceeding, whether civil or criminal, is begun that in Lender's good faith judgment could result in forfeiture of the Property or otherwise materially impair the lien created by this Security Instrument or Lender's security interest. Borrower may cure such a default and - Teinstate, as provided in paragraph 18 by causing the action or proceeding to be dismissed with a tuling that, in Lender's good faith determination, precludes forfeiture of the Borrower's interest in the Property or other material impairment of the lien created by this Security Instrument or Lender's security interest, Borrower shall also be in default if Borrower, during the loan application process, gave materially false or inaccurate information or statements to Lender (or failed to provide Lender with any material information) in connection with the loan evidenced by the Note, including, but not limited to, representations concerning Borrower's occupancy of the Property as a principal residence. If this Security Instrument is on a leasehold, Borrower shall comply with all the provisions of the lease. If Borrower acquires fee title to the Property, the leasehold and the fee title shall not merge unless Lender agrees to the merger in writing. 7, Protection of Lender's Rights in the Property. If Borrower fa