Motion-Secondary: DUETSCHE BANK NATIONAL TRUST COMPANY VS AAMES FUNDING CORPORATION

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                Filing # 41433576 E-Filed 05/12/2016 04:51:54 PM

IN THE CIRCUIT COURT OF THE 11™
JUDICIAL CIRCUIT, IN AND FOR
MIAMI-DADE COUNTY, FLORIDA

CASE NO. 2013-27522 CA 58
DEUTSCHE BANK NATIONAL TRUST
COMPANY, AS TRUSTEE, IN TRUST FOR
THE REGISTERED HOLDERS OF MORGAN
STANLEY ABS CAPITAL | TRUST 2004-HE7,
MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2004-HE7,

Plaintiff,
vs.

OLGA KARAPETYAN and VADIM
KARAPETYAN, et. al.,

Defendant(s).
/

 

OBJECTION
TO THE SALE OF THE SUBJECT PROPERTY, TO CANCEL A
CERTIFICATE OF SALE IF ONE WERE ISSUED, TO PREVENT A
CERTIFICATE OF TITLE FROM BEING ISSUED

 

Defendants, OLGA KARAPETYAN and VADIM KARAPETYAN, et. al., (hereinafter
referred to as “Defendants”), by and through undersigned counsel, and pursuant to the
Florida Rules of Civil Procedure, hereby move this Honorable Court for the entry of an
Order Upholding the Objection to Sale, Cancelling the Certificate of Sale if One Were
Issued, and Preventing the Issuance of a Certificate of Title and as grounds thereof state
as follows:

4. Final Judgment was recently entered in this matter. Subsequently, a

foreclosure sale was scheduled for May 4, 2016. The May 4, 2016 sale took
place and Plaintiff was the successful bidder. The sale, however, should not

have taken place, as Plaintiff failed to comply with Federal law regulatingmortgage foreclosure sales.

Defendants had commenced the Home Affordable Modification Program
(‘HAMP”) process and were under review by Plaintiff at the time the foreclosure
sale took place. Plaintiff should never have allowed the sale to proceed and was
required to move the Court to cancel the sale based on Defendants’ application.
Federal Hamp Rule 2.3 mandates that no foreclosure sale shall be had while
there is a pending HAMP application.

Additionally, the Federal Bureau of Consumer Financial Protection states in the
amendments to the 2013 Mortgage Rules under the Equal Credit Opportunity
Act that upon receiving an application for loan modification, “the servicer must
notify the borrower within five days that the servicer acknowledges receipt of the
application, and that the servicer has determined that the loss mitigation
application is either complete or incomplete. If an application is incomplete, the
notice must stated the additional documents and information that the borrower
must submit to make the loss mitigation application complete. 12 CFR Part
1024.41(b)(2)(1). Here, Plaintiff cannot engage inloss mitigation with Defendants
while at the same time allowing a sale to proceed and then buying the subject
property. This is exactly the behavior the Federal regulations acknowledge and
prohibit,

Additionally, Plaintiff failed to file proof with the Clerk of Court that a notice
of sale was published for at least two consecutive weeks before the May 4,
2016 sale date. Florida Statute 45.031 requires that such proof, executed
under oath and penalty of perjury, be filed with the Clerk of Court. As such,

the May 4, 2016 sale must be vacated as the public was not properly put onnotice of the sale of the subject property and the resulting inadequate sale
price was severely prejudicial to Defendants.

The subject case is the second lawsuit filed by Plaintiff herein seeking to
foreclose on the subject property. The first suit was Deutsche Bank v.
Karapetyan, Miami Dade Case number 2009-66910. Said case was
dismissed and Defendants entitled to an award of attorneys fees. Plaintiff,
however, filed the instant case before the attorneys fees from the first case
were paid. In Pino v. Bank of New York, The Florida Supreme Court stated
as a measure to protect against a Plaintiff's abuse of judicial process,
payment of attorneys’ fees and costs entitled to Defendant(s) is a
precondition to the second suit. Pino, 121 So. 3d 23, 43 (Fla. 2013) (citing
F.R.C.P 1.420(d)). As such, Plaintiff improperly filed this lawsuit in the very
first place and the resulting May 4, 2016 sale date is null and void and must
be vacated.

Further, Florida has a five year statute of limitations in mortgage foreclosure
cases. The instant case is subject to the five year statute and must be
dismissed, as Plaintiff is outside the five year statutory period. The Florida
Supreme Court, in dealing with the Deutsche Bank v. Beauvais case,
submitted that cases involving the five year statute of limitations, namely
where a party is alleged to be barred from filing suit because of it, are ripe to
be stayed by State Courts; its opinion in the Bartram v. U.S. Bank matter

imminent. As such, the subject case falls squarely within these prescriptions.

WHEREFORE , Defendants respectfully request that this Honorable Court do what

oeis just, proper and fair and Grant this OBJECTION To The Sale of The Subject Property,
And Canceling the Certificate of Sale if One were Issued, and Preventing a Certificate of
Title From Being Issued, and whatever other relief this court deems just and proper to help
prevent the severe prejudice that would otherwise occur to Defendant.

CERTIFICATE OF SERVICE
| HEREBY CERTIFY that a true and correct copy hereof has been furnished to:

Kari Marsland-Pettit, Esquire, foreclosureservice@kasslaw.com, Kass, Shuler,
Solomon, Spector, Foyle & Singer, P.A., P.O. Box 800, 1505 N. Florida Ave., Tampa,
FL 33601 by e-mail on May 11, 2016

Pomeranz & Associates, P.A.
1920 East Hallandale Beach Blvd.
Suite 802

Hallandale Beach, FL 33009
(305)891-5858

{St
Mark L. Pomeranz, Esquire
FLORIDA BAR NO. 622508

Email: Pomeranzlawfirm@gmail.com

spree