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Filing # 69991995 E-Filed 03/29/2018 12:59:32 PM
IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY, FLORIDA
CASE NO.: 2017-018931 CA 59
VINCENZO DEPAU,
Plaintiff,
MICHAEL STERN and LAYNE HARRIS
STERN,
Defendants.
/
IVOR ROSE’S VERIFIED EMERGENCY MOTION TO INTERVENE, VACATE, SET
ASIDE FINAL JUDGMENT OF FORECLOSURE ENTERED ON MARCH 8, 2018 AND
MOTION TO CANCEL MORTGAGE FORECLOSURE SALE SET ON 04/19/18
COMES NOW, Intervenor IVOR ROSE by and through the undersigned counsel, and
pursuant to Fla. R. Civ. P. 1.230, Fla. R. Civ. P. 1.530, Fla. R. Civ. P. 1.540, hereby files his
Verified Emergency Motion to Intervene, Vacate and Set Aside Final Judgment of Foreclosure
entered on March 8, 2018 and Motion to Cancel Mortgage Foreclosure Sale set for 04/19/18, and
in support states the following:
1, Intervenor, IVOR ROSE, is not a party to this lawsuit despite the fact that he is on
the deed to the property that is the subject of this lawsuit.
2. Intervenor, [VOR ROSE, was not aware that this lawsuit even existed until March
22, 2018, when their lawyer, Lazaro Vazquez, Esquire, was contacted by counsel for Defendant
Layne Harris and alerted Attorney Vazquez to the existence of this lawsuit filed by the Plaintiff
Vincenzo DePau3 The Mortgage and Note that are being foreclosed upon were obtained through fraud
and Ivor Rose’s signature was forged. The Plaintiff is fully aware that Ivor Rose never signed the
Mortgage and Note at issue in this case. The notary and witness to the Note and Mortgage,
Defendant Layne Harris, has already admitted that her notary stamp was stolen and her signatures
on the Note and Mortgage verifying that Ivor Rose was the person signing were forged. These
facts are also set forth in the Defendant Layne Harris’ Motion for Summary Judgment that has
been filed in this case.
4. Therefore, the Plaintiff knowingly obtained a Final Judgment of Foreclosure based
upon a Note and Mortgage that was obtained through fraud. The signatures of Ivor Rose on the
Note and Mortgage are forgeries, and this was well known to the Plaintiff prior to obtaining the
Final Judgment of Foreclosure in this case. The undersigned cannot imagine that the Plaintiff's
attorney simply made a mistake by not including Ivor Rose as a party to this case when he is on
the Deed of the property at issue in this case
5 Furthermore, Plaintiff and his attorney were well-aware that Intervenor [VOR
ROSE and his wife, Rita Starr, have a Restitution Order against Michael Stern. Therefore, any
monies from the sale of this property would be paid toward that Restitution Order. There are
several other liens on the property that still have not been adjudicated based on the massive fraud
committed by Michael Stern, including, a first Mortgage on said property. These are also
additional parties that have not been included in the present lawsuit
6 The Complaint filed by the Plaintiff, Vincenzo DePau alleges that Intervenor,
IVOR ROSE, together with his wife RITA STARR, have a Nineteen Million Dollar
($19,000,000.00) Federal Criminal Restitution Order against Defendant Michael Stern, who is
presently incarcerated. This is the same Restitution Order that is currently a lien on the subject
Page 2 of 6
LAW OFFICES OF ANTHONY ACCETTA, P.A, 135 SAN LORENZO AVENUE, PENTHOUSE 820, CORAL GABLES, FL 33146property as it pertains to any monies that would be obtained on behalf of the co-Defendant Michael
Stern. Once again, the Plaintiff failed to include the Intervenor and his wife, Rita Starr, in this
lawsuit
7. Intervenor, IVOR ROSE, is an indispensible party to this action because he is a
deeded owner of the subject property. Therefore, the Final Judgment of Foreclosure obtained in
this action must be vacated. As this court is aware, a fee simple title holder is an indispensable
party in an action to foreclose a mortgage on property. Oakland Props. Corp. v. Hogan, 96 Fla. 40,
117 So. 846, 848 (1928) (“One who holds the legal title to mortgaged property is not only
necessary, but is an indispensable party defendant in a suit to foreclose a mortgage.”); Cmty. Fed.
Sav. & Loan Ass'n of Palm Beaches v. Wright, 452 So.2d 638, 640 (Fla. 4th DCA 1984).
“Indispensable parties are necessary parties so essential to a suit that no final decision can be
rendered without their joinder.” Hertz Corp. v. Piccolo, 453 So.2d 12, 14 n. 3 (Fla.1984).
8. For centuries, the Florida Supreme Court has recognized that “a foreclosure
proceeding resulting in a final decree and a sale of the mortgaged property, without the
holder of the legal title being before the court will have no effect to transfer his title to the
purchaser at said sale.” Jordan v. Sayre, 24 Fla. 1, 3 So. 329, 330 (1888). Therefore, any
foreclosure proceeding that fails to include the deeded owner is void. /d. (emphasis added).
9 Therefore, it is well establised in Florida that a foreclosure judgment is void for
failing to join indispensable parties. See also, Lambert v. Dracos, 403 So.2d 481, 484 (Fla. Ist
DCA 1981) (holding trial court erred in denying defendants' motion to dismiss foreclosure
complaint for failure to join an indispensable party, a legal co-owner of the interest foreclosed).
Citibank, N.A. v. Villanueva, 174 So. 3d 612, 613-14 (Fla. 4"" DCA 2015); see also, Davanzo v
Resolute Ins. Co., 346 So. 2d 1227, 1228 (Fla. 3d DCA 1977) (“One who holds legal title to
Page 3 of 6
LAW OFFICES OF ANTHONY ACCETTA, P.A. 3135 SAN LORENZO AVENUE, PENTHOUSE 820, CORAL GABLES, FL 33146mortgaged property is an indispensable party defendant in a suit to foreclose a mortgage and a
court cannot properly adjudicate the matters involved in this suit when it appears indispensable
parties are not in some proper way actually or constructively before the court.”); Meh Byron 4
LLC v. Fed. Nat. Mortg. Ass'n, 187 So. 3d 335 (Fla. 3d DCA 2016).
10. _Intervenor [VOR ROSE’s motion to intervene is clearly meritorious, given the
undisputed fact that Intervenor [VOR ROSE is on the deed to the subject property. Accordingly,
the Final Judgment entered by the Court on March 8, 2018 against Defendant Michael Stern in favor
of Plaintiff Vincenzo DePau, must, as a matter of law and equity, be set aside and vacated, and this
matter and should proceed for resolution on its merits, or lack of merit, as discussed above.
11 Intervenor IVOR ROSE was never provided any notice by the Plaintiff that this
lawsuit was filed and more importanrtly, a Final Judgment was entered on March 8, 2018, based
upon a Note and Mortgage that contains his forged signature. However, upon learning of the
existence of the Final Judgment, Intervenor [VOR ROSE has taken immediate steps to set it aside
and otherwise vacate it, including the filing of the instant Motion
12. The undersigned has been unable to confer with Plaintiff's counsel prior to the
filing of this Emergency Motion due to the limited time the undersigned had to prepare and file
the instant Motion. However, the undersigned counsel will reach out to Plaintiff's counsel after
this Motion is filed to see if a resolution can be reached without further intervention by this Court.
13 However, the undersigned believes this matter must be addressed by this Court
because if the undersigned was not alerted by the co-Defendant’s attorney, a grave injustice would
have been committed and may have resulted in irreparable harm to Intervenor Ivor Rose and his
wife Rita Starr.
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LAW OFFICES OF ANTHONY ACCETTA, P.A. 3135 SAN LORENZO AVENUE, PENTHOUSE 820, CORAL GABLES, FL 33146WHEREFORE, Intervenor [VOR ROSE respectfully requests that this Honorable Court
vacate and set aside the Final Judgment of Foreclosure entered on March 8, 2018, and cancel the
mortgage foreclosure sale of 04/19/18 and enter an Order granting Intervenor [VOR ROSE’s
motion to intervene in this matter, and award IVOR ROSE his reasonable attorney’s fees and costs,
and for any further relief this Court deems just and proper.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was filed with the
Clerk of the Courts and served via e-mail through the Florida Courts e-Filing Portal on this 29
day of March, 2018 in accordance with Rule 2.516 of the Florida Rules of Judicial Administration
upon: David P. Millian, Esq. and Ruben Conitzer, Esq., ¢
gperez(@carevrodrisuez, fmillan@careyrodriguez.com: efmi. iguez com,
Glen H. Waldman, Esquire, litservice@s manbarmett. com.
RESPECTFULLY SUBMITTED,
LAW OFFICES OF ANTHONY ACCETTA, P.A.
135 San Lorenzo Avenue, PH 820
Coral Gables, FL 33146
Telephone: (305) 448-4529
By: /s/Anthony Accetta
ANTHONY ACCETTA, ESQUIRE
Florida Bar No.: 148318
law@anthonyaccetta.com
paralegal@anthonyaccetta.com
/s/Brian A. Concepcion
BRIAN A. CONCEPCION, ESQUIRE
Florida Bar No.: 124064
brian@anthonyaccetta.com
Law Office of Lazaro Vazquez P.A.
145 Almeria Avenue
Coral Gables, FL 33134
Telephone 305.456.1784
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LAW OFFICES OF ANTHONY ACCETTA, P.A. 3135 SAN LORENZO AVENUE, PENTHOUSE 820, CORAL GABLES, FL 33146By:___/4s Lazaro Vazquez, Esq.
Lazaro Vazquez, Esq.
Fla. Bar. 57812
Under penalty of perjury, I declare that I have read the foregoing, and the facts alleged
herein are true and correct to the best of my knowledge and belief.
Executed on this March > 2018.
IVOR ROSE
STATE OF FLORIDA
COUNTY OF MIAMI DADE
Swoptrt6 67 affirmed and signed before me on (Veh 24 22 es by IVOR ROSE
TARY PUBLIC or DEPUTY CLERK.
(eSle hA Canales
[Print, type, or stamp commissioned name of notary or deputy clerk.]
Personal ly known
__Produced identification Leslie M. Canales
Type of identification produced COMMISSION #FF233017
EXPIRES: May 21, 2018
www. AARONNOTARY.COM
Page 6 of 6
LAW OFFICES OF ANTHONY ACCETTA, P.A. 1135 SAN LORENZO AVENUE, PENTHOUSE 820, CORAL GABLES, FL 33146
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Filing # 69991995 E-Filed 03/29/2018 12:59:32 PM IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA CASE NO.: 2017-018931 CA 59 VINCENZO DEPAU, Plaintiff, MICHAEL STERN and LAYNE HARRIS STERN, Defendants. / IVOR ROSE’S VERIFIED EMERGENCY MOTION TO INTERVENE, VACATE, SET ASIDE FINAL JUDGMENT OF FORECLOSURE ENTERED ON MARCH 8, 2018 AND MOTION TO CANCEL MORTGAGE FORECLOSURE SALE SET ON 04/19/18 COMES NOW, Intervenor IVOR ROSE by and through the undersigned counsel, and pursuant to Fla. R. Civ. P. 1.230, Fla. R. Civ. P. 1.530, Fla. R. Civ. P. 1.540, hereby files his Verified Emergency Motion to Intervene, Vacate and Set Aside Final Judgment of Foreclosure entered on March 8, 2018 and Motion to Cancel Mortgage Foreclosure Sale set for 04/19/18, and in support states the following: 1, Intervenor, IVOR ROSE, is not a party to this lawsuit despite the fact that he is on the deed to the property that is the subject of this lawsuit. 2. Intervenor, [VOR ROSE, was not aware that this lawsuit even existed until March 22, 2018, when their lawyer, Lazaro Vazquez, Esquire, was contacted by counsel for Defendant Layne Harris and alerted Attorney Vazquez to the existence of this lawsuit filed by the Plaintiff Vincenzo DePau3 The Mortgage and Note that are being foreclosed upon were obtained through fraud and Ivor Rose’s signature was forged. The Plaintiff is fully aware that Ivor Rose never signed the Mortgage and Note at issue in this case. The notary and witness to the Note and Mortgage, Defendant Layne Harris, has already admitted that her notary stamp was stolen and her signatures on the Note and Mortgage verifying that Ivor Rose was the person signing were forged. These facts are also set forth in the Defendant Layne Harris’ Motion for Summary Judgment that has been filed in this case. 4. Therefore, the Plaintiff knowingly obtained a Final Judgment of Foreclosure based upon a Note and Mortgage that was obtained through fraud. The signatures of Ivor Rose on the Note and Mortgage are forgeries, and this was well known to the Plaintiff prior to obtaining the Final Judgment of Foreclosure in this case. The undersigned cannot imagine that the Plaintiff's attorney simply made a mistake by not including Ivor Rose as a party to this case when he is on the Deed of the property at issue in this case 5 Furthermore, Plaintiff and his attorney were well-aware that Intervenor [VOR ROSE and his wife, Rita Starr, have a Restitution Order against Michael Stern. Therefore, any monies from the sale of this property would be paid toward that Restitution Order. There are several other liens on the property that still have not been adjudicated based on the massive fraud committed by Michael Stern, including, a first Mortgage on said property. These are also additional parties that have not been included in the present lawsuit 6 The Complaint filed by the Plaintiff, Vincenzo DePau alleges that Intervenor, IVOR ROSE, together with his wife RITA STARR, have a Nineteen Million Dollar ($19,000,000.00) Federal Criminal Restitution Order against Defendant Michael Stern, who is presently incarcerated. This is the same Restitution Order that is currently a lien on the subject Page 2 of 6 LAW OFFICES OF ANTHONY ACCETTA, P.A, 135 SAN LORENZO AVENUE, PENTHOUSE 820, CORAL GABLES, FL 33146property as it pertains to any monies that would be obtained on behalf of the co-Defendant Michael Stern. Once again, the Plaintiff failed to include the Intervenor and his wife, Rita Starr, in this lawsuit 7. Intervenor, IVOR ROSE, is an indispensible party to this action because he is a deeded owner of the subject property. Therefore, the Final Judgment of Foreclosure obtained in this action must be vacated. As this court is aware, a fee simple title holder is an indispensable party in an action to foreclose a mortgage on property. Oakland Props. Corp. v. Hogan, 96 Fla. 40, 117 So. 846, 848 (1928) (“One who holds the legal title to mortgaged property is not only necessary, but is an indispensable party defendant in a suit to foreclose a mortgage.”); Cmty. Fed. Sav. & Loan Ass'n of Palm Beaches v. Wright, 452 So.2d 638, 640 (Fla. 4th DCA 1984). “Indispensable parties are necessary parties so essential to a suit that no final decision can be rendered without their joinder.” Hertz Corp. v. Piccolo, 453 So.2d 12, 14 n. 3 (Fla.1984). 8. For centuries, the Florida Supreme Court has recognized that “a foreclosure proceeding resulting in a final decree and a sale of the mortgaged property, without the holder of the legal title being before the court will have no effect to transfer his title to the purchaser at said sale.” Jordan v. Sayre, 24 Fla. 1, 3 So. 329, 330 (1888). Therefore, any foreclosure proceeding that fails to include the deeded owner is void. /d. (emphasis added). 9 Therefore, it is well establised in Florida that a foreclosure judgment is void for failing to join indispensable parties. See also, Lambert v. Dracos, 403 So.2d 481, 484 (Fla. Ist DCA 1981) (holding trial court erred in denying defendants' motion to dismiss foreclosure complaint for failure to join an indispensable party, a legal co-owner of the interest foreclosed). Citibank, N.A. v. Villanueva, 174 So. 3d 612, 613-14 (Fla. 4"" DCA 2015); see also, Davanzo v Resolute Ins. Co., 346 So. 2d 1227, 1228 (Fla. 3d DCA 1977) (“One who holds legal title to Page 3 of 6 LAW OFFICES OF ANTHONY ACCETTA, P.A. 3135 SAN LORENZO AVENUE, PENTHOUSE 820, CORAL GABLES, FL 33146mortgaged property is an indispensable party defendant in a suit to foreclose a mortgage and a court cannot properly adjudicate the matters involved in this suit when it appears indispensable parties are not in some proper way actually or constructively before the court.”); Meh Byron 4 LLC v. Fed. Nat. Mortg. Ass'n, 187 So. 3d 335 (Fla. 3d DCA 2016). 10. _Intervenor [VOR ROSE’s motion to intervene is clearly meritorious, given the undisputed fact that Intervenor [VOR ROSE is on the deed to the subject property. Accordingly, the Final Judgment entered by the Court on March 8, 2018 against Defendant Michael Stern in favor of Plaintiff Vincenzo DePau, must, as a matter of law and equity, be set aside and vacated, and this matter and should proceed for resolution on its merits, or lack of merit, as discussed above. 11 Intervenor IVOR ROSE was never provided any notice by the Plaintiff that this lawsuit was filed and more importanrtly, a Final Judgment was entered on March 8, 2018, based upon a Note and Mortgage that contains his forged signature. However, upon learning of the existence of the Final Judgment, Intervenor [VOR ROSE has taken immediate steps to set it aside and otherwise vacate it, including the filing of the instant Motion 12. The undersigned has been unable to confer with Plaintiff's counsel prior to the filing of this Emergency Motion due to the limited time the undersigned had to prepare and file the instant Motion. However, the undersigned counsel will reach out to Plaintiff's counsel after this Motion is filed to see if a resolution can be reached without further intervention by this Court. 13 However, the undersigned believes this matter must be addressed by this Court because if the undersigned was not alerted by the co-Defendant’s attorney, a grave injustice would have been committed and may have resulted in irreparable harm to Intervenor Ivor Rose and his wife Rita Starr. Page 4 of 6 LAW OFFICES OF ANTHONY ACCETTA, P.A. 3135 SAN LORENZO AVENUE, PENTHOUSE 820, CORAL GABLES, FL 33146WHEREFORE, Intervenor [VOR ROSE respectfully requests that this Honorable Court vacate and set aside the Final Judgment of Foreclosure entered on March 8, 2018, and cancel the mortgage foreclosure sale of 04/19/18 and enter an Order granting Intervenor [VOR ROSE’s motion to intervene in this matter, and award IVOR ROSE his reasonable attorney’s fees and costs, and for any further relief this Court deems just and proper. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was filed with the Clerk of the Courts and served via e-mail through the Florida Courts e-Filing Portal on this 29 day of March, 2018 in accordance with Rule 2.516 of the Florida Rules of Judicial Administration upon: David P. Millian, Esq. and Ruben Conitzer, Esq., ¢ gperez(@carevrodrisuez, fmillan@careyrodriguez.com: efmi. iguez com, Glen H. Waldman, Esquire, litservice@s manbarmett. com. RESPECTFULLY SUBMITTED, LAW OFFICES OF ANTHONY ACCETTA, P.A. 135 San Lorenzo Avenue, PH 820 Coral Gables, FL 33146 Telephone: (305) 448-4529 By: /s/Anthony Accetta ANTHONY ACCETTA, ESQUIRE Florida Bar No.: 148318 law@anthonyaccetta.com paralegal@anthonyaccetta.com /s/Brian A. Concepcion BRIAN A. CONCEPCION, ESQUIRE Florida Bar No.: 124064 brian@anthonyaccetta.com Law Office of Lazaro Vazquez P.A. 145 Almeria Avenue Coral Gables, FL 33134 Telephone 305.456.1784 Page 5 of 6 LAW OFFICES OF ANTHONY ACCETTA, P.A. 3135 SAN LORENZO AVENUE, PENTHOUSE 820, CORAL GABLES, FL 33146By:___/4s Lazaro Vazquez, Esq. Lazaro Vazquez, Esq. Fla. Bar. 57812 Under penalty of perjury, I declare that I have read the foregoing, and the facts alleged herein are true and correct to the best of my knowledge and belief. Executed on this March > 2018. IVOR ROSE STATE OF FLORIDA COUNTY OF MIAMI DADE Swoptrt6 67 affirmed and signed before me on (Veh 24 22 es by IVOR ROSE TARY PUBLIC or DEPUTY CLERK. (eSle hA Canales [Print, type, or stamp commissioned name of notary or deputy clerk.] Personal ly known __Produced identification Leslie M. Canales Type of identification produced COMMISSION #FF233017 EXPIRES: May 21, 2018 www. AARONNOTARY.COM Page 6 of 6 LAW OFFICES OF ANTHONY ACCETTA, P.A. 1135 SAN LORENZO AVENUE, PENTHOUSE 820, CORAL GABLES, FL 33146