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Filing # 64319192 E-Filed 11/16/2017 05:40:46 PM
IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY, FLORIDA
VINCENZO DEPAU,
Plaintiff,
Vv.
MICHAEL STERN and LAYNE HARRIS STERN —_| Case No, 2017-018931-CA-01
Defendants.
AMENDED COMPLAINT
Plaintiff Vincenzo DePau (“DePau”) sues Defendants Michael Stern (“Stern”) and Layne
Harris (formerly known as Layne Harris Stern) (“Harris”) (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.
4. Harris is an individual who at all times relevant hereto resided in Miami-Dade
County.
Carey Rodriguez Milian Gonya LLP * 1395 Brickell Avenue Suite 700 + Miami, FL 33131 * Tel: (305) 372-7474 * Fax: (305) 372-74755. 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.
6. All conditions precedent to the filing of this action, if any, have either been met,
waived, or otherwise excused.
7. 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
8. 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.
9. 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.
10. The Note was immediately secured by a mortgage on the Property, executed and
delivered by Defendants in favor of DePau.
11. The mortgage was filed in the public records of Miami-Dade County, Florida.
12. The mortgage was recorded in Official Records Book 26185 at pages 2313-2321 of
the public records of Miami-Dade County, Florida (the “Mortgage”.
13. A true and correct copy of the Mortgage is attached hereto as Exhibit C.
Page 2 of 1414.
15.
mortgage.
16.
by Rose.
17.
mortgage.
18.
19.
20.
21.
Stern represented to DePau that Rose signed both the Note and the Mortgage.
DePau relied on Stern’s representation that Rose signed both the Note and the
Harris represented to DePau that the Note and Mortgage were also each executed
DePau relied on Harris’ representation that Rose signed both the Note and the
Rose signed the Mortgage and the Note.
Later, Stern admitted that Rose did not sign either the Note or the Mortgage
Rose did not sign either the Mortgage or the Note.
At the time the Mortgage was executed and recorded, Harris was commissioned as
a notary public in Florida.
22.
23.
24.
knowledge.
25.
consent.
26.
27.
The Mortgage was notarized with a notary stamp owned by Harris.
Harris notarized the Mortgage.
Harris alleges that her notary stamp was used to execute the Mortgage without her
Harris alleges that her notary stamp was used to execute the Mortgage without her
Harris alleges her signature on the Mortgage was forged.
Harris alleges Stern unlawfully obtained her notary stamp and used the same to
execute the Mortgage without her knowledge.
28.
Harris alleges Stern unlawfully obtained her notary stamp and used the same to
execute the Mortgage without her consent.
Page 3 of 1429. — Stern notarized the Mortgage using Harris’ notary stamp.
30. Stern relied on Harris’ notary stamp as it was placed on the Mortgage.
31. The obligations imposed upon Defendants by the Note are joint and several.
32. The obligations imposed upon the Defendants by Mortgage are joint and several.
33. 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.
34. At all times relevant hereto, the Property was, and still is, owned by Defendants
who hold possession thereof.
35. As alleged in more detail below, the Defendants have been and continue to be in a
continuing state of default.
36. Defendants defaulted under the Note and Mortgage by, inter alia, failing to make
payments under the Note and failing to make all subsequent payments.
37. Defendants defaulted under the Note and Mortgage by, inter alia, failing to fulfill
material covenants and obligations imposed by the Note and Mortgage.
38. DePau declares the full amount payable under the Note and Mortgage to be due
with interest.
39. 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.
Page 4 of 1440. 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.
41. Further, Stern acknowledged that DePau is owed the monies described in the Note.
See Waiver.
CLAIMS FOR RELIEF
COUNT I
BREACH OF PROMISSORY NOTE
42. Plaintiff restates the allegations set forth in paragraphs 1 — 41 as if fully set forth
herein.
43. Defendants executed and delivered the Note in favor of DePau.
44. Defendants failed make interest payments owed pursuant to the Note when due.
45. Defendants failed to pay the principal amount owed pursuant to the Note when due.
46. 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.”
47. Defendants owe DePau the principal amount due under the Note.
48. Defendants also owe DePau all accrued past interest due under the Note.
49. Defendants also owe DePau liquidated damages.
50. | WHEREFORE, DePau demands judgment for damages against Defendants, jointly
and severally.
COUNT II
MONEY LENT
51. Plaintiff restates the allegations set forth in paragraphs 1 — 41 as if fully set forth
herein.
Page 5 of 1452. Defendants owe the outstanding amount due under the Note.
53. | WHEREFORE, DePau demands judgment for damages against Defendants, jointly
and severally.
COUNT III
BREACH OF MORTGAGE (WASTE)
54. Plaintiff restates the allegations set forth in paragraphs 1 — 41 as if fully set forth
herein.
55. 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.”
56. Defendants have permitted the Property to remain unoccupied and vacant for a
period of years.
57. The Property has deteriorated and fallen into disrepair.
58. Defendants have committed waste on the Property.
59. Defendants continue to commit waste on the Property.
60. Asaresult, DePau has been damaged.
61. | 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.
Page 6 of 14COUNT IV
MORTGAGE FORECLOSURE
62. Plaintiff restates the allegations set forth in paragraphs 1 — 41 as if fully set forth
herein.
63. Defendants executed and delivered the Mortgage to DePau.
64. | DePau owns the Mortgage.
65. Defendants defaulted under the Note and Mortgage as described above.
66. Stern waived all defenses to enforcement of the Mortgage. See Waiver.
67. Defendants failed to make payments owed pursuant to the Note and the Mortgage.
68. Defendants are in a continuing state of default under the terms of the Mortgage by
failing to make required payments of principal and interest.
69. All conditions precedent to the relief demanded have been performed or have
otherwise been waived or excused.
70. DePau has retained the undersigned counsel as its attorneys in this matter and has
agreed to pay them a reasonable fee for their services.
71. 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;
Cc. 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.
Page 7 of 14COUNT V
BREACH OF MORTGAGE (FORFEITURE PROCEEDINGS)
72. Plaintiff restates the allegations set forth in paragraphs 1 — 41 as if fully set forth
herein.
73. 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.”
74. An Indictment (the “Indictment”) was entered against Stern. A true and correct
copy of the Indictment is attached hereto as Exhibit F.
75. 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.
76. 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.
77. 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.
78. 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.
79. The obligations imposed by the Mortgage are joint and several in accordance with
section 12 of the Mortgage.
Page 8 of 1480. Because of the foregoing, Defendants have materially breached the terms of the
Mortgage and as a result DePau has been damaged.
81. | 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
82. Plaintiff restates the allegations set forth in paragraphs 1 — 41 as if fully set forth
herein.
83. 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.
84. This is a material representation and warranty made to induce DePau to purchase
the Note.
85. This representation and warranty was false and known by Stern to be false at the
time it was made.
Page 9 of 1486. 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.
87. 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.
88. This representation and warranty induced DePau to purchase the Note.
89. As a result, DePau’s mortgage does not have the value DePau anticipated and
DePau has been damaged.
90. WHEREFORE, DePau demands judgment as follows:
a. That a final judgment be ordered against Defendants;
b. 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
91. Plaintiff restates the allegations set forth in paragraphs 1 — 41 as if fully set forth
herein.
92. Defendants represented that both the Note and Mortgage were executed by Rose.
Page 10 of 1493. In April 2017 Stern told DePau’s counsel that Rose did not sign either the Note or
the Mortgage.
94. The Mortgage was notarized by Harris.
95. Fla. Stat. § 117.05(5) states that
“[a] 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.”
96. 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.”
97. Harris certified in the Mortgage’s acknowledgement that the instrument was
acknowledged before by each Rose, Stern and Harris.
98. 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 ...”
99. DePau relied on the fact that both the Note and the Mortgage were actually signed
by each Stern, Harris and Rose.
100. DePau further relied on Harris’ representation that she was a duly commissioned
notary public in Florida.
101. Naturally, that she would execute her obligations consistent with the requirements
imposed upon her by law seemed to be a foregone conclusion.
Page 11 of 14102. 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.
103. 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.
104. As aresult, DePau has been damaged.
105. 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;
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 VU
NEGLIGENCE
106. Plaintiff restates the allegations set forth in paragraphs 1 — 41 as if fully set forth
herein.
107. 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).
108. Harris failed to comply with the requirements of Florida law that are intended to
protect members of the public.
Page 12 of 14herein.
109. Asaresult, DePau has been damaged.
110. 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
111. Plaintiff restates the allegations set forth in paragraphs 1 — 41 as if fully set forth
112. DePau relied on the fact that the Mortgage was notarized by Harris.
113. Instead, the Mortgage was notarized by Stern.
114, Asaresult, DePau has been damaged.
115. WHEREFORE, DePau demands judgment as follows:
a. That a final judgment be ordered against Stern;
b. 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 13 of 14Respectfully submitted,
Dated: November 16, 2017 CAREY RODRIGUEZ MILIAN GONYA, LLP
By: /s/ Ruben Conitzer, Esq.
Ruben Conitzer, Esq.
Florida Bar No. 100907
Email: rconitzer@careyrodriguez.com
Secondary: service@careyrodriguez.com
David M. Levine, Esq.
Florida 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 a true and correct copy of the foregoing was served upon all
parties in this action listed below.
Service List:
1. Defendant Michael Stern (Register No. 97980-04) c/o Federal Butner Medical
Facility, 3000 Old North Carolina Highway 75, Butner, NC 27509 via U.S. mail;
2. Defendant Layne Harris Stern, 927 Lincoln Road Miami Beach, FL 33139 via
email to iminatlast@aol.com.
/s/ Ruben Conitzer, Esq.
Ruben Conitzer, Esq.
Page 14 of 14EXHIBIT A{VEU ETE TE EVEL EET
CEFN 2007R0108221
OR Bk 25324 Pas 4363 - 43647 (ess)
RECORDED 91/31/2007 09:10:08
This Instrument Prepared By HARVEY RUVINs CLERE’ GF COURT
and Return To: MIEAMI-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, Michael Stern 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);
Lot3, 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 of 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:
1 ‘Taxes for the year 2007 and subsequent years;
2. Zoning and other matters imposed by governmental authority.
3. Conditions, Restrictions, Limitations, and Easements of Record, if any which shall not be relmposed.
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.
J: \DOCS\REALA2389\2389-69\00230652.NPD. 1
BanLlLORQAlDanndA2er CCORHINNTNANQI94 Danan 4 af oOR BK 25324 FPG 43564
LAST PAGE
IN WITNESS WHEREOE, 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
limited Ravilit
By:,
ithess Print Na LAD Luis Dominguez, Managing Member
‘Witness 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.
rintName: Deena Rostani
NOTARY PUBLIC.STATE. Notary Public, State of Florida
Deena Rosen My Commission Expires:
Expires: TED oe ae
Bonded Tau lane Bond er ee
Jz \DOCS\REAL\2389\2389-69\00230652 HED. 2
RanlIRAVAIDanadA2BAa CEMHOANTAINRINA Dana 9 nf 9EXHIBIT BVD - 000417
. PROMISsoRY NOTE,
US51,400,000,00 . . Miami-Dade County,
. . ~ my December_9 9007 .
. FOR VALUE RECEIVED, the undersigned: [VOR B. ROSE, a matried man and
MICHAEL STERN ang ; wa
LAYNE HARRIS STERN, husband and wife, (Borowers") y)
mailing address are Tespectively 1810 Michigan Avenue, Miami, FL 33139, 1766 ta i
Avenue, Miami Beach, FL, 33139 promises to pay to the Order of VICENZO DE PAU, its
+ Successors and/of a igns ("LendewHolder” ), Whose mailing address is 335 g. Biscayne,
Boulevard # 3703, Miami, FL 33131, or at such other place Holder may fiom time to time
designate, the principal sum of ONE UR RUNDRED lOUSAND
ION FO TH anew
Apeag, 27 NOMA0 $1,406,000, 00) DOLLARS, in Jawfal money of the United States of
Atmerica, and to pay i m the date
+ Atao time, shall the interestrate be
Iess than Twenty One (18.0%) Percent, Interest chal} be calculated Over a three himdred sixty
* G60) day-year, But not fo exceed the Tmaximun rate of interest Petmitted by law, Interest shall *
be prepaid for each consecutive month. .
‘This Noteis Payable in the following manner, to wit:
ayment of
interest only in the amount of ONE THOUSAND AND oos00 21,000.00)
Di ber month. The first of such monthly payments of interest only shall become due and
inal, there shall be 6 payments oF interest only with 2 Balloon Payment atthe end of the 6
months, Interest shall be prepaid for each consecative mont,
On July 34, 2008, the éntire amount of principal, interest and all other sums due hereunder,
if any unless sooner paid shail be dueand payable. *
is Note is secured without limitations by & Mortgage and Security Agreement (herein
called "Motes of even date herewith, executed by the undersigned for the benefit of the
Holder hereof, and Covering that certain Property being more fally described in the sald
Mortgage. For purposes of this Note, the term " sperty" shell mean the collateral seouring
obligations of this Nots,
‘The undersigned shall have the Sption to prepay this Note at any time. There shall be no
Prepayment penalty for any Prepayments made al any time, .
fant
a™,
Lu
VB - 000118
.
In the event Holder dces noi receive any payment of interest, or principal and interest or
any other ch; e due under the terms hereof within ten (20) days after the dne date for payment
thereof, then the undersigned shall Pay, Upon demand, an amount of ten percent (10.0%) of the
amount of any such past due payment ag liquidated damages for the loss of use of such
and as handling and collection ®xpenses to compensate Holder for the expenses and costs of
collection and handling of any ‘such delinquent Payment, and the undersigned agrees that the
amount so charged is q Teasonable amonnt of liquidated damages, in that Holder's actual
"Past Due Interest", except as otherwise provided herein, AN Payments received prior to
maturity hereof shall first be applied to advances and such other charges, iFeny; secondly late
due, if any; thirdly to acenied interest and Past Due Interest, if eny, and the balance, if
any, shall be applied to the ‘Payment of principal, .
Lender shalt provide Borrower with ten (10) days notice, to cure a default prior to
holding same in default, Each maker, surety arid endorser hereon waives grace, Aolice, notice of
default, notice of intent uccelerate, notice of acceleration, Protest, demand, presentment for
the event default is made in the yment of any part of the principal or interest of this
Note osm becomes due and payable, orofany sums duc and payable pursuant fo the terms of
any Security Document, or in case default ig made in the performance or observance of any
covenant, agreement, ten ar condition contained in any Security Document, then in cither
event, Holder hereof shall have the option, without demand OF nofice, to declare the ‘unpaid
PnPuncipal of this Note, together With all sums by y Security
immediately due Payable without ROtice, and to foreclose the Hien or Seputity
mnt Lint necessary fp
entire fi lereok, und ; on behalf of t the
Undersign Shall be eemed to be vol Prepayment her Any such tender of
Payment, to the exten itted by law, sha therefore inchide the Prembim then required?
1 Prepayment in Fill priviy, e hereof. or ch payment Scows duri SY period in which
Prepayment in fall ig NOt allowed he, h then the my In fill premium,
Provided hereimder shall be included in the Snount of any gach tender. The inclusion of such
Premiums in any such tender of paym
§ ler of | ent is compensate Holder for employing its fonds for g
etermined period of time, and the undersigned grees that the S0unt £6 included isa
Teasoneble amount Of liquidated damages, in that ‘S acta}
es, Holder damage for loss of its
investment are difficult or Impossible ty ascertain, me
t :
It is farther apreed that the undetsigned shall nay all costs expenses, includin, court
. ‘costs and teasonable incurred by Holder OF anyone acting of Holder's behalf in
Connection with, collection of the indebtedness evidenced hereby,
Any Notice Provided oy Tequired to be Biven under th
pe S=°Ved end sll be deemed to Res served 1) by dep siting same in the United States
mail, addressed to the party to be notified, slage Prepaid lelivering same
07 as Federal
ot ress ion, Airline Express, Emery, or Purolator, addressed to the party to be notified,
. The pa eto, we pv mie er From time to tine either
: party may designate another address for all purposes oF this Note by Biving the other no
less than ten (10) days advance notice of such change of address in accordance with the
i ling any provision Of this Note or any Security Documents to the Contrary, it
‘ is the itt oe ea os Holder. ‘hereof that Holder shal) Dever bo, entitled to receive,
collect, or apply, as interest on principal of the indebtedness, S0y amount in excess of the
maxinoum rate of interest parmitted fo be charged by applicable law, and in the plder ever
: Teceive, collects or applies as interest any such Sxcess, such amount which would Sroess
interest shall, after application has been made against all outstanding Penalties, 2 on
: charges owed by the undersigned, be deemed a partial peat erage! tio ut
application of 8 prepaynient Premium, and treated hereunder ag such, an fe princi
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gVD - 000120
Any fai by Holder to insist upon, or aay eleuton by Holder no o insist upon, iit
performance by the undessigried of any of the covenants, agreements, terms, conditions, ad
. Obligations hereof shall not create any estoppel at the Holder's fitture right fo insist wpon strict
performance, and shall not be deemed to be a waiver of same or of any other covenant, fem,
provision or condition hereof, aud 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 reseryes the right to seek a money judement against ‘the undersigned
for any or all of the amounts it with eny Attomey's fees and costs that may be incured
by Holder (through litigation and all appeals), independent of its tight and remedies under the
Security Documents. Additionally, Holder shall have the right to offset against any fimds held
by Holder including, without Smitations, escrows for taxes and insprance under the Security
Docaments, This provision, limiting the personal liability of tie undersigned, shal! not limit or
impair the rights of Holder fo pursue those other remedies which it may bave hereunder or wniler
any Security Document, including but not limited to, the’ right to take possession of such
property and collect collateral, to foreclose and to sell such property, and fo obtain appointment
ofa receiver, In the eveat a seceiver is appointed under the tems of the said Mortgage, the
provisions of this Nofe shall in now way impair or restrict the right of the receiver to take any
action whatsoever to préserve or to obtain or recover possession of any assets or property of ény
Kind securing or collateralizing the indebtedness evidenced hereby,
‘The uadersigned hereby further expressly represents and warrants to Holder that the
nodersigned has not committed any act or omission affording the Federal Goverambnt Or my
pa ex for ea a fhis or under Secuity
thereof, the undemigned hereby ies Hol to defend and hold Holder
bemuless from and against any loss, damage or other expenses, and-all other cosis and expenses
incomed by Holder in presesving fis Hen, security interest and other rights and intezests in the
"” Property and in any proceeding or other governmental action ascecting finfeiture thereof, by
reason of, or in any mannts resulting fiom the breach of the covenants and agreements contained
in the preceding sentence. Without limiting the generality of the foregoing, the fling of formal
Charges or the additional collateral under any of the Security Documents or ell or any patt of the
Property under any Federal or State Law for whit it
or of any monies paid in performance of the undersigned's obligations under the Seeaity
Documents is a potential resnit shell, at the election of the Holder, constitute of defiailt heremder
without notices or opportunity to cure. .
in the event thet any provisions of any Security Document or this Note conflicts with
applicable law, such conflict shall not afftot ofher provisions of any Security Documents or this
Note which cat be giveti effect without the contlicting provisions, To this end, the provisions of
any Security Docoment and this Note are declared to be severable,
WwVD - 000121
e
2
Upon demand of any ‘Party hereto, whether made ‘before or after institution of ‘any judicial
Proceeding, fy claim or controversy axsing ont of or relating to the Loan Documents between
parties hereto (a “Dispute") shall be fesolved by binding arbitration conducted under and
governed by the Commercial Financial Disputes Axbitration Roles (the “Arbitration Roles') of
fhe American Abtration Association (the “AAA') and the Federal Arbitration Act. Disputes
inay incinde, withont limita! tion, tort claims, counterelaims, a dispute as fo whether a matter is
subject to arbitration, claims broughtas elass actions, or claims arising from documents exeented
in the fature, zie pret upon Ge svatd may be étsred in any cout fet eae
Noteithstanding the Horegoing, this arbitration provision does not apply fo disputes under or
related to svrap agreements, .
The expedited Procedures set forth in Rule 51 St seq. of the Arbitration Rules shall be applicable
to ‘claims of less than $1,500,000.00, Arbitrators Shall be licensed alfomeys veleced fhe
i Financial Dispute Arbitration Panel of the AAA. The parties do not waive
oth pais in thy chal not inv a remey of patie or enpey danas
against other patiies in any Dispute and hereby waive any right or claim to punitive or exemplary
damapes they have now ox Which-may arise in the firture in connection with any Dispute whether
the Dispute is resolved by axbitration ‘ox judicially,
. THE PARTIES ACKNOWLEDGE THAT HY_AGREEING TO BINDING
TOT ant aay HAVE IRREVOCABLY WAIVED ANY RIGHT THiS oS
TO JURY TRIAL WITH REGARD TO A DISPUTE, ‘THE UNDERSIGNED AND HOLDER
NOTE Of eae RIGHT OF A JURY TRIAL.IN EACH AND EVERY aoe ee
NOTE OR ANY OF THE OTHER SECURITY DOCUMENTS,
LH THA: "WD - 000422
oa .
Toy UNDERSIGNED: HEREBY w, ALL PROTECTION
7 THE B, LAWS AND yy ‘OREVER EXEMPTS THIS PROPERTY
‘ FROM ANY FUTURE BANKRUPTCY FILINGS,
YOR Roa
Ma STERN
Doce Moms:
LAYNERARRG say ———EXHIBIT CRerepyney OG”
TEP AEA AE TOE AE EEA
Loren Qworet? CFM 2008R0076069
Wes ates neue pee cal
urtgemy Brae P4333 4 NTG DOC TAX 4:900.00
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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 THE TERMS OF THIS MORTGAGE:
THIS IS A MORTGAGE ON 1386 S. Venetian Way , Miami, FL 33139.
THIS 1S AN INVESTMENT PROPERTY BALLOON MORTGAGE:
THIS MORTGAGE JS NOT ASSUMABLE.
THIS MORTGAGE ("Security Instrument") is given on this q day of
December , 2008. The mortgagor is 1VOR H. ROSE, a married man and MICHAEL
STERN and LAYNE HARRIS STERN, husband and wife (Borrower"). 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
marking the most southerly comer 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 8
feet; thence Northeasterly along the circumference of a circular curve having a radius of 358 feet,
parallel to the Southeasterly boundary of said Lot 3, 106.47 feet to the Point of Intersection of
the Northeasterly boundary of Lot 3 produced Southeasterly; thence Northwesterly 8 feet to the
most Easterly 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
Dare
I
RanbOR4QRIDaneI212 ecnHaanann7eanasa Dana 1 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: (2) 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 a 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 future 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 Jaw 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 , | NAN
RanbORARRIDanaI241A OCRAHONNANNTANGO Dana 2 nf Oaccounting 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
Jaw. If the amount of the Funds held by Lender at any time is not sufficient to pay the Escrow
Items 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 full of all sums secured by this Security Instrument, Lender shall
Promptly refund to Borrower any Funds held by Lender. Hf, under paragraph 21, 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 Biving 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 hazards, 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 Lender's 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 right to hold the policies and renewals. If
Lender requires, Borrower shall promptly give to Lender all receipts of paid premiums and
LH pak ° A
BanbNBiQRhiDanoI41 kh ecnonnann7eansa Dana 2nfOrenewal 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 Lender's security is not lessened. If the restoration or repair 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 Property 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
LH
ruling 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 fails to perform the
covenants and agreements contained in this Security Instrument, or there is a legal proceeding
that may significantly affect Lender's rights in the Property (such as a proceeding in bankruptcy,
probate, for condemnation or forfeiture or to enforce laws or regulations), then Lender may do
and pay for whatever is necessary to protect the value of the Property and Lender's rights in the
Property. Lender's actions may include paying any sums secured by a lien which has priority
over this Security Instrument, appearing in court, paying reasonable attorney's fees and entering
on the Property to make repairs. Although Lender may take action under this paragraph 7,
Lender does not have to do so.
Any amounts disbursed by Lender under this paragraph 7 shall become additional debt of
Borrower secured by this Security Instrument. Un
Preview
Filing # 64319192 E-Filed 11/16/2017 05:40:46 PM IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA VINCENZO DEPAU, Plaintiff, Vv. MICHAEL STERN and LAYNE HARRIS STERN —_| Case No, 2017-018931-CA-01 Defendants. AMENDED COMPLAINT Plaintiff Vincenzo DePau (“DePau”) sues Defendants Michael Stern (“Stern”) and Layne Harris (formerly known as Layne Harris Stern) (“Harris”) (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. 4. Harris is an individual who at all times relevant hereto resided in Miami-Dade County. Carey Rodriguez Milian Gonya LLP * 1395 Brickell Avenue Suite 700 + Miami, FL 33131 * Tel: (305) 372-7474 * Fax: (305) 372-74755. 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. 6. All conditions precedent to the filing of this action, if any, have either been met, waived, or otherwise excused. 7. 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 8. 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. 9. 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. 10. The Note was immediately secured by a mortgage on the Property, executed and delivered by Defendants in favor of DePau. 11. The mortgage was filed in the public records of Miami-Dade County, Florida. 12. The mortgage was recorded in Official Records Book 26185 at pages 2313-2321 of the public records of Miami-Dade County, Florida (the “Mortgage”. 13. A true and correct copy of the Mortgage is attached hereto as Exhibit C. Page 2 of 1414. 15. mortgage. 16. by Rose. 17. mortgage. 18. 19. 20. 21. Stern represented to DePau that Rose signed both the Note and the Mortgage. DePau relied on Stern’s representation that Rose signed both the Note and the Harris represented to DePau that the Note and Mortgage were also each executed DePau relied on Harris’ representation that Rose signed both the Note and the Rose signed the Mortgage and the Note. Later, Stern admitted that Rose did not sign either the Note or the Mortgage Rose did not sign either the Mortgage or the Note. At the time the Mortgage was executed and recorded, Harris was commissioned as a notary public in Florida. 22. 23. 24. knowledge. 25. consent. 26. 27. The Mortgage was notarized with a notary stamp owned by Harris. Harris notarized the Mortgage. Harris alleges that her notary stamp was used to execute the Mortgage without her Harris alleges that her notary stamp was used to execute the Mortgage without her Harris alleges her signature on the Mortgage was forged. Harris alleges Stern unlawfully obtained her notary stamp and used the same to execute the Mortgage without her knowledge. 28. Harris alleges Stern unlawfully obtained her notary stamp and used the same to execute the Mortgage without her consent. Page 3 of 1429. — Stern notarized the Mortgage using Harris’ notary stamp. 30. Stern relied on Harris’ notary stamp as it was placed on the Mortgage. 31. The obligations imposed upon Defendants by the Note are joint and several. 32. The obligations imposed upon the Defendants by Mortgage are joint and several. 33. 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. 34. At all times relevant hereto, the Property was, and still is, owned by Defendants who hold possession thereof. 35. As alleged in more detail below, the Defendants have been and continue to be in a continuing state of default. 36. Defendants defaulted under the Note and Mortgage by, inter alia, failing to make payments under the Note and failing to make all subsequent payments. 37. Defendants defaulted under the Note and Mortgage by, inter alia, failing to fulfill material covenants and obligations imposed by the Note and Mortgage. 38. DePau declares the full amount payable under the Note and Mortgage to be due with interest. 39. 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. Page 4 of 1440. 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. 41. Further, Stern acknowledged that DePau is owed the monies described in the Note. See Waiver. CLAIMS FOR RELIEF COUNT I BREACH OF PROMISSORY NOTE 42. Plaintiff restates the allegations set forth in paragraphs 1 — 41 as if fully set forth herein. 43. Defendants executed and delivered the Note in favor of DePau. 44. Defendants failed make interest payments owed pursuant to the Note when due. 45. Defendants failed to pay the principal amount owed pursuant to the Note when due. 46. 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.” 47. Defendants owe DePau the principal amount due under the Note. 48. Defendants also owe DePau all accrued past interest due under the Note. 49. Defendants also owe DePau liquidated damages. 50. | WHEREFORE, DePau demands judgment for damages against Defendants, jointly and severally. COUNT II MONEY LENT 51. Plaintiff restates the allegations set forth in paragraphs 1 — 41 as if fully set forth herein. Page 5 of 1452. Defendants owe the outstanding amount due under the Note. 53. | WHEREFORE, DePau demands judgment for damages against Defendants, jointly and severally. COUNT III BREACH OF MORTGAGE (WASTE) 54. Plaintiff restates the allegations set forth in paragraphs 1 — 41 as if fully set forth herein. 55. 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.” 56. Defendants have permitted the Property to remain unoccupied and vacant for a period of years. 57. The Property has deteriorated and fallen into disrepair. 58. Defendants have committed waste on the Property. 59. Defendants continue to commit waste on the Property. 60. Asaresult, DePau has been damaged. 61. | 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. Page 6 of 14COUNT IV MORTGAGE FORECLOSURE 62. Plaintiff restates the allegations set forth in paragraphs 1 — 41 as if fully set forth herein. 63. Defendants executed and delivered the Mortgage to DePau. 64. | DePau owns the Mortgage. 65. Defendants defaulted under the Note and Mortgage as described above. 66. Stern waived all defenses to enforcement of the Mortgage. See Waiver. 67. Defendants failed to make payments owed pursuant to the Note and the Mortgage. 68. Defendants are in a continuing state of default under the terms of the Mortgage by failing to make required payments of principal and interest. 69. All conditions precedent to the relief demanded have been performed or have otherwise been waived or excused. 70. DePau has retained the undersigned counsel as its attorneys in this matter and has agreed to pay them a reasonable fee for their services. 71. 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; Cc. 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. Page 7 of 14COUNT V BREACH OF MORTGAGE (FORFEITURE PROCEEDINGS) 72. Plaintiff restates the allegations set forth in paragraphs 1 — 41 as if fully set forth herein. 73. 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.” 74. An Indictment (the “Indictment”) was entered against Stern. A true and correct copy of the Indictment is attached hereto as Exhibit F. 75. 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. 76. 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. 77. 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. 78. 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. 79. The obligations imposed by the Mortgage are joint and several in accordance with section 12 of the Mortgage. Page 8 of 1480. Because of the foregoing, Defendants have materially breached the terms of the Mortgage and as a result DePau has been damaged. 81. | 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 82. Plaintiff restates the allegations set forth in paragraphs 1 — 41 as if fully set forth herein. 83. 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. 84. This is a material representation and warranty made to induce DePau to purchase the Note. 85. This representation and warranty was false and known by Stern to be false at the time it was made. Page 9 of 1486. 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. 87. 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. 88. This representation and warranty induced DePau to purchase the Note. 89. As a result, DePau’s mortgage does not have the value DePau anticipated and DePau has been damaged. 90. WHEREFORE, DePau demands judgment as follows: a. That a final judgment be ordered against Defendants; b. 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 91. Plaintiff restates the allegations set forth in paragraphs 1 — 41 as if fully set forth herein. 92. Defendants represented that both the Note and Mortgage were executed by Rose. Page 10 of 1493. In April 2017 Stern told DePau’s counsel that Rose did not sign either the Note or the Mortgage. 94. The Mortgage was notarized by Harris. 95. Fla. Stat. § 117.05(5) states that “[a] 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.” 96. 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.” 97. Harris certified in the Mortgage’s acknowledgement that the instrument was acknowledged before by each Rose, Stern and Harris. 98. 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 ...” 99. DePau relied on the fact that both the Note and the Mortgage were actually signed by each Stern, Harris and Rose. 100. DePau further relied on Harris’ representation that she was a duly commissioned notary public in Florida. 101. Naturally, that she would execute her obligations consistent with the requirements imposed upon her by law seemed to be a foregone conclusion. Page 11 of 14102. 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. 103. 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. 104. As aresult, DePau has been damaged. 105. 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; 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 VU NEGLIGENCE 106. Plaintiff restates the allegations set forth in paragraphs 1 — 41 as if fully set forth herein. 107. 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). 108. Harris failed to comply with the requirements of Florida law that are intended to protect members of the public. Page 12 of 14herein. 109. Asaresult, DePau has been damaged. 110. 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 111. Plaintiff restates the allegations set forth in paragraphs 1 — 41 as if fully set forth 112. DePau relied on the fact that the Mortgage was notarized by Harris. 113. Instead, the Mortgage was notarized by Stern. 114, Asaresult, DePau has been damaged. 115. WHEREFORE, DePau demands judgment as follows: a. That a final judgment be ordered against Stern; b. 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 13 of 14Respectfully submitted, Dated: November 16, 2017 CAREY RODRIGUEZ MILIAN GONYA, LLP By: /s/ Ruben Conitzer, Esq. Ruben Conitzer, Esq. Florida Bar No. 100907 Email: rconitzer@careyrodriguez.com Secondary: service@careyrodriguez.com David M. Levine, Esq. Florida 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 a true and correct copy of the foregoing was served upon all parties in this action listed below. Service List: 1. Defendant Michael Stern (Register No. 97980-04) c/o Federal Butner Medical Facility, 3000 Old North Carolina Highway 75, Butner, NC 27509 via U.S. mail; 2. Defendant Layne Harris Stern, 927 Lincoln Road Miami Beach, FL 33139 via email to iminatlast@aol.com. /s/ Ruben Conitzer, Esq. Ruben Conitzer, Esq. Page 14 of 14EXHIBIT A{VEU ETE TE EVEL EET CEFN 2007R0108221 OR Bk 25324 Pas 4363 - 43647 (ess) RECORDED 91/31/2007 09:10:08 This Instrument Prepared By HARVEY RUVINs CLERE’ GF COURT and Return To: MIEAMI-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, Michael Stern 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); Lot3, 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 of 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: 1 ‘Taxes for the year 2007 and subsequent years; 2. Zoning and other matters imposed by governmental authority. 3. Conditions, Restrictions, Limitations, and Easements of Record, if any which shall not be relmposed. 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. J: \DOCS\REALA2389\2389-69\00230652.NPD. 1 BanLlLORQAlDanndA2er CCORHINNTNANQI94 Danan 4 af oOR BK 25324 FPG 43564 LAST PAGE IN WITNESS WHEREOE, 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 limited Ravilit By:, ithess Print Na LAD Luis Dominguez, Managing Member ‘Witness 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. rintName: Deena Rostani NOTARY PUBLIC.STATE. Notary Public, State of Florida Deena Rosen My Commission Expires: Expires: TED oe ae Bonded Tau lane Bond er ee Jz \DOCS\REAL\2389\2389-69\00230652 HED. 2 RanlIRAVAIDanadA2BAa CEMHOANTAINRINA Dana 9 nf 9EXHIBIT BVD - 000417 . PROMISsoRY NOTE, US51,400,000,00 . . Miami-Dade County, . . ~ my December_9 9007 . . FOR VALUE RECEIVED, the undersigned: [VOR B. ROSE, a matried man and MICHAEL STERN ang ; wa LAYNE HARRIS STERN, husband and wife, (Borowers") y) mailing address are Tespectively 1810 Michigan Avenue, Miami, FL 33139, 1766 ta i Avenue, Miami Beach, FL, 33139 promises to pay to the Order of VICENZO DE PAU, its + Successors and/of a igns ("LendewHolder” ), Whose mailing address is 335 g. Biscayne, Boulevard # 3703, Miami, FL 33131, or at such other place Holder may fiom time to time designate, the principal sum of ONE UR RUNDRED lOUSAND ION FO TH anew Apeag, 27 NOMA0 $1,406,000, 00) DOLLARS, in Jawfal money of the United States of Atmerica, and to pay i m the date + Atao time, shall the interestrate be Iess than Twenty One (18.0%) Percent, Interest chal} be calculated Over a three himdred sixty * G60) day-year, But not fo exceed the Tmaximun rate of interest Petmitted by law, Interest shall * be prepaid for each consecutive month. . ‘This Noteis Payable in the following manner, to wit: ayment of interest only in the amount of ONE THOUSAND AND oos00 21,000.00) Di ber month. The first of such monthly payments of interest only shall become due and inal, there shall be 6 payments oF interest only with 2 Balloon Payment atthe end of the 6 months, Interest shall be prepaid for each consecative mont, On July 34, 2008, the éntire amount of principal, interest and all other sums due hereunder, if any unless sooner paid shail be dueand payable. * is Note is secured without limitations by & Mortgage and Security Agreement (herein called "Motes of even date herewith, executed by the undersigned for the benefit of the Holder hereof, and Covering that certain Property being more fally described in the sald Mortgage. For purposes of this Note, the term " sperty" shell mean the collateral seouring obligations of this Nots, ‘The undersigned shall have the Sption to prepay this Note at any time. There shall be no Prepayment penalty for any Prepayments made al any time, . fant a™, Lu VB - 000118 . In the event Holder dces noi receive any payment of interest, or principal and interest or any other ch; e due under the terms hereof within ten (20) days after the dne date for payment thereof, then the undersigned shall Pay, Upon demand, an amount of ten percent (10.0%) of the amount of any such past due payment ag liquidated damages for the loss of use of such and as handling and collection ®xpenses to compensate Holder for the expenses and costs of collection and handling of any ‘such delinquent Payment, and the undersigned agrees that the amount so charged is q Teasonable amonnt of liquidated damages, in that Holder's actual "Past Due Interest", except as otherwise provided herein, AN Payments received prior to maturity hereof shall first be applied to advances and such other charges, iFeny; secondly late due, if any; thirdly to acenied interest and Past Due Interest, if eny, and the balance, if any, shall be applied to the ‘Payment of principal, . Lender shalt provide Borrower with ten (10) days notice, to cure a default prior to holding same in default, Each maker, surety arid endorser hereon waives grace, Aolice, notice of default, notice of intent uccelerate, notice of acceleration, Protest, demand, presentment for the event default is made in the yment of any part of the principal or interest of this Note osm becomes due and payable, orofany sums duc and payable pursuant fo the terms of any Security Document, or in case default ig made in the performance or observance of any covenant, agreement, ten ar condition contained in any Security Document, then in cither event, Holder hereof shall have the option, without demand OF nofice, to declare the ‘unpaid PnPuncipal of this Note, together With all sums by y Security immediately due Payable without ROtice, and to foreclose the Hien or Seputity mnt Lint necessary fp entire fi lereok, und ; on behalf of t the Undersign Shall be eemed to be vol Prepayment her Any such tender of Payment, to the exten itted by law, sha therefore inchide the Prembim then required? 1 Prepayment in Fill priviy, e hereof. or ch payment Scows duri SY period in which Prepayment in fall ig NOt allowed he, h then the my In fill premium, Provided hereimder shall be included in the Snount of any gach tender. The inclusion of such Premiums in any such tender of paym § ler of | ent is compensate Holder for employing its fonds for g etermined period of time, and the undersigned grees that the S0unt £6 included isa Teasoneble amount Of liquidated damages, in that ‘S acta} es, Holder damage for loss of its investment are difficult or Impossible ty ascertain, me t : It is farther apreed that the undetsigned shall nay all costs expenses, includin, court . ‘costs and teasonable incurred by Holder OF anyone acting of Holder's behalf in Connection with, collection of the indebtedness evidenced hereby, Any Notice Provided oy Tequired to be Biven under th pe S=°Ved end sll be deemed to Res served 1) by dep siting same in the United States mail, addressed to the party to be notified, slage Prepaid lelivering same 07 as Federal ot ress ion, Airline Express, Emery, or Purolator, addressed to the party to be notified, . The pa eto, we pv mie er From time to tine either : party may designate another address for all purposes oF this Note by Biving the other no less than ten (10) days advance notice of such change of address in accordance with the i ling any provision Of this Note or any Security Documents to the Contrary, it ‘ is the itt oe ea os Holder. ‘hereof that Holder shal) Dever bo, entitled to receive, collect, or apply, as interest on principal of the indebtedness, S0y amount in excess of the maxinoum rate of interest parmitted fo be charged by applicable law, and in the plder ever : Teceive, collects or applies as interest any such Sxcess, such amount which would Sroess interest shall, after application has been made against all outstanding Penalties, 2 on : charges owed by the undersigned, be deemed a partial peat erage! tio ut application of 8 prepaynient Premium, and treated hereunder ag such, an fe princi s F i E 3 3 : z i i & e z E z & gVD - 000120 Any fai by Holder to insist upon, or aay eleuton by Holder no o insist upon, iit performance by the undessigried of any of the covenants, agreements, terms, conditions, ad . Obligations hereof shall not create any estoppel at the Holder's fitture right fo insist wpon strict performance, and shall not be deemed to be a waiver of same or of any other covenant, fem, provision or condition hereof, aud 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 reseryes the right to seek a money judement against ‘the undersigned for any or all of the amounts it with eny Attomey's fees and costs that may be incured by Holder (through litigation and all appeals), independent of its tight and remedies under the Security Documents. Additionally, Holder shall have the right to offset against any fimds held by Holder including, without Smitations, escrows for taxes and insprance under the Security Docaments, This provision, limiting the personal liability of tie undersigned, shal! not limit or impair the rights of Holder fo pursue those other remedies which it may bave hereunder or wniler any Security Document, including but not limited to, the’ right to take possession of such property and collect collateral, to foreclose and to sell such property, and fo obtain appointment ofa receiver, In the eveat a seceiver is appointed under the tems of the said Mortgage, the provisions of this Nofe shall in now way impair or restrict the right of the receiver to take any action whatsoever to préserve or to obtain or recover possession of any assets or property of ény Kind securing or collateralizing the indebtedness evidenced hereby, ‘The uadersigned hereby further expressly represents and warrants to Holder that the nodersigned has not committed any act or omission affording the Federal Goverambnt Or my pa ex for ea a fhis or under Secuity thereof, the undemigned hereby ies Hol to defend and hold Holder bemuless from and against any loss, damage or other expenses, and-all other cosis and expenses incomed by Holder in presesving fis Hen, security interest and other rights and intezests in the "” Property and in any proceeding or other governmental action ascecting finfeiture thereof, by reason of, or in any mannts resulting fiom the breach of the covenants and agreements contained in the preceding sentence. Without limiting the generality of the foregoing, the fling of formal Charges or the additional collateral under any of the Security Documents or ell or any patt of the Property under any Federal or State Law for whit it or of any monies paid in performance of the undersigned's obligations under the Seeaity Documents is a potential resnit shell, at the election of the Holder, constitute of defiailt heremder without notices or opportunity to cure. . in the event thet any provisions of any Security Document or this Note conflicts with applicable law, such conflict shall not afftot ofher provisions of any Security Documents or this Note which cat be giveti effect without the contlicting provisions, To this end, the provisions of any Security Docoment and this Note are declared to be severable, WwVD - 000121 e 2 Upon demand of any ‘Party hereto, whether made ‘before or after institution of ‘any judicial Proceeding, fy claim or controversy axsing ont of or relating to the Loan Documents between parties hereto (a “Dispute") shall be fesolved by binding arbitration conducted under and governed by the Commercial Financial Disputes Axbitration Roles (the “Arbitration Roles') of fhe American Abtration Association (the “AAA') and the Federal Arbitration Act. Disputes inay incinde, withont limita! tion, tort claims, counterelaims, a dispute as fo whether a matter is subject to arbitration, claims broughtas elass actions, or claims arising from documents exeented in the fature, zie pret upon Ge svatd may be étsred in any cout fet eae Noteithstanding the Horegoing, this arbitration provision does not apply fo disputes under or related to svrap agreements, . The expedited Procedures set forth in Rule 51 St seq. of the Arbitration Rules shall be applicable to ‘claims of less than $1,500,000.00, Arbitrators Shall be licensed alfomeys veleced fhe i Financial Dispute Arbitration Panel of the AAA. The parties do not waive oth pais in thy chal not inv a remey of patie or enpey danas against other patiies in any Dispute and hereby waive any right or claim to punitive or exemplary damapes they have now ox Which-may arise in the firture in connection with any Dispute whether the Dispute is resolved by axbitration ‘ox judicially, . THE PARTIES ACKNOWLEDGE THAT HY_AGREEING TO BINDING TOT ant aay HAVE IRREVOCABLY WAIVED ANY RIGHT THiS oS TO JURY TRIAL WITH REGARD TO A DISPUTE, ‘THE UNDERSIGNED AND HOLDER NOTE Of eae RIGHT OF A JURY TRIAL.IN EACH AND EVERY aoe ee NOTE OR ANY OF THE OTHER SECURITY DOCUMENTS, LH THA: "WD - 000422 oa . Toy UNDERSIGNED: HEREBY w, ALL PROTECTION 7 THE B, LAWS AND yy ‘OREVER EXEMPTS THIS PROPERTY ‘ FROM ANY FUTURE BANKRUPTCY FILINGS, YOR Roa Ma STERN Doce Moms: LAYNERARRG say ———EXHIBIT CRerepyney OG” TEP AEA AE TOE AE EEA Loren Qworet? CFM 2008R0076069 Wes ates neue pee cal urtgemy Brae P4333 4 NTG DOC TAX 4:900.00 LH 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 THE TERMS OF THIS MORTGAGE: THIS IS A MORTGAGE ON 1386 S. Venetian Way , Miami, FL 33139. THIS 1S AN INVESTMENT PROPERTY BALLOON MORTGAGE: THIS MORTGAGE JS NOT ASSUMABLE. THIS MORTGAGE ("Security Instrument") is given on this q day of December , 2008. The mortgagor is 1VOR H. ROSE, a married man and MICHAEL STERN and LAYNE HARRIS STERN, husband and wife (Borrower"). 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 marking the most southerly comer 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 8 feet; thence Northeasterly along the circumference of a circular curve having a radius of 358 feet, parallel to the Southeasterly boundary of said Lot 3, 106.47 feet to the Point of Intersection of the Northeasterly boundary of Lot 3 produced Southeasterly; thence Northwesterly 8 feet to the most Easterly 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 Dare I RanbOR4QRIDaneI212 ecnHaanann7eanasa Dana 1 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: (2) 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 a 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 future 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 Jaw 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 , | NAN RanbORARRIDanaI241A OCRAHONNANNTANGO Dana 2 nf Oaccounting 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 Jaw. If the amount of the Funds held by Lender at any time is not sufficient to pay the Escrow Items 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 full of all sums secured by this Security Instrument, Lender shall Promptly refund to Borrower any Funds held by Lender. Hf, under paragraph 21, 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 Biving 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 hazards, 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 Lender's 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 right to hold the policies and renewals. If Lender requires, Borrower shall promptly give to Lender all receipts of paid premiums and LH pak ° A BanbNBiQRhiDanoI41 kh ecnonnann7eansa Dana 2nfOrenewal 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 Lender's security is not lessened. If the restoration or repair 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 Property 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 LH ruling 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 fails to perform the covenants and agreements contained in this Security Instrument, or there is a legal proceeding that may significantly affect Lender's rights in the Property (such as a proceeding in bankruptcy, probate, for condemnation or forfeiture or to enforce laws or regulations), then Lender may do and pay for whatever is necessary to protect the value of the Property and Lender's rights in the Property. Lender's actions may include paying any sums secured by a lien which has priority over this Security Instrument, appearing in court, paying reasonable attorney's fees and entering on the Property to make repairs. Although Lender may take action under this paragraph 7, Lender does not have to do so. Any amounts disbursed by Lender under this paragraph 7 shall become additional debt of Borrower secured by this Security Instrument. Un