Preview
Filing # 15293681 Electronically Filed 06/26/2014 04:01:19 PM
IN THE CIRCUIT COURT OF THE 9th JUDICIAL CIRCUIT
IN AND FOR ORANGE COUNTY, FLORIDA
CIVIL ACTION
THE BANK OF NEW YORK, FOR THE
BENEFIT OF THE CERTIFICATE
HOLDERS, CWALT, INC.,
ALTERNATIVE LOAN TRUST
2007-0A4 MORTGAGE PASS
THROUGH CERTIFICATES, SERIES
2007-0A4,
CASE NO. 48-2008-CA-011681
Plaintiff, DIVISION A
VS
JULIO C. AGUIRRE A/K/A JUILIO AGUIRRE:
et al.,
Defendant.
PMI MORTGAGE INSURANCE COMPANY'S MOTION FOR SUMMARY JUDGMENT
FOR DEFICIENCY BALANCE AS SUBROGEE OF THE BANK OF NEW YORK,
FOR THE BENEFIT OF THE CERTIFICATE HOLDERS, CWALT, INC.,
ALTERNATIVE LOAN TRUST 2007-0A4 MORTGAGE PASS THROUGH
CERTIFICATES, SERIES 2007-0A4
COMES NOW, PMI MORTGAGE INSURANCE COMPANY (hereinafter "PMI"),
by and through its undersigned counsel, and files its Motion for Summary Judgment,
and in support thereof states.
1. On May 27, 2014, this Honorable Court entered an Order Granting
PMI MORTGAGE INSURANCE COMPANY'S (hereafter "PMI") Motion to Intervene
in this action.
2. The undisputed facts are as follows.
a. PMI is a mortgage insurance company engaged in the business of
insuring payment of mortgages on real property.
b. The Defendant, JULIO C. AGUIRRE A/K/A JULIO AGUIRRE, executed
and delivered a promissory note and mortgage to the original mortgage lender, Pulte
Mortgage LLC (hereinafter "Lender") The note and mortgage were subsequently
assigned to THE BANK OF NEW YORK, FOR THE BENEFIT OF THE
CERTIFICATE HOLDERS, CWALT, INC., ALTERNATIVE LOAN TRUST 2007-0A4
MORTGAGE PASS THROUGH CERTIFICATES, SERIES 2007-OA4 (hereinafter
BNY"). True and correct copies of the note, mortgage and assignment of mortgage
are attached hereto as Exhibit "A".
c. After approving the mortgage of the Defendant, the Lender entered
into a contract with PMI to insure Lender and its assigns repayment of the mortgage
in the event of default. A copy of the First Lien Master Policy is attached as Exhibit
d. The property subject to the note and mortgage was sold in foreclosure.
A copy of the final judgment of foreclosure is attached hereto as Exhibit "C".
e. After applying the proceeds of the foreclosure sale and applicable
interest were calculated, the deficiency balance due under the note and mortgage
was $195,376.68.
f. BNY, through its servicer Countrywide Home Loans, submitted a claim
to PMI for reimbursement of the loss sustained as a result of the default.
g. PMI paid the cash settlement portion of $39,103.69 toward the loss
sustained as a resuit of the default. Copies of the Claim for Loss Settlement Form
and electronic fund transfer are attached hereto as Exhibit "D".
h. By virtue of the Defendant's default and PMI's payment, PMI is now
the Subrogee of BNY's rights against the Defendant for the amount of the claim
payment paid. Additionally, the Defendant will be unjustly enriched by the PMI's
payment toward the deficiency balance, unless PMI is reimbursed for said payment.
Copies of the Deficiency Calculation and Broker's Price Opinion are attached hereto
as Exhibit "E."
PMI has demanded reimbursement from the Defendant of the amount
it paid to BNY: however. the Defendant has failed or refused to pay.
The note and mortgage from which this claim arises provides for the
recovery of reasonable attorneys' fees from the Defendant.
3. An Affidavit in support of PMI's Motion for Summary Judgment is
attached hereto as Exhibit "1."
WHEREFORE, PMI respectfully requests this Court to: (1) enter an Order
granting PMI's Motion for Summary Judgment (2) awarding damages in the
amount of $39.103.69 plus interest, costs, attorney's fees, and such other relief as this
Court shall deem proper and just
/s/Walter L. Sanders
WALTER L. SANDERS, ESQ.
FLA BAR NO. 0288690
WALTER L. SANDERS. P.A.
6936 W. Linebaugh Avenue. Suite 101
Tampa, FL 33625
(813) 908-4183
(813) 388-4912 (FAX)
Attorney for PMI
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
served via U.S. Mail to the following parties on this ail /lAc--'lay of June. 2014.
/s/Walter L. Sanders
WALTER L. SANDERS, ESQ.
Julio C. Aguirre
435 Opal Court
Altamonte Springs, FL 32714-5403
Edward B. Pritchard, Esq.
Kass Schuler, P.A.
PO Box 800
Tampa, FL 33601-0800
epritcha@kasslaw.corn
rmi (.(.13-coisv
IN THE CIRCUIT COURT OF THE 9th JUDICIAL CIRCUIT
IN AND FOR ORANGE COUNTY, FLORIDA
CIVIL ACTION
THE BANK OF NEW YORK. FOR THE
BENEFIT OF THE CERTIFICATE
HOLDERS, CWALT, INC.,
ALTERNATIVE LOAN TRUST
2007-0A4 MORTGAGE PASS
THROUGH CERTIFICATES, SERIES
2007-0A4,
CASE NO. 48-2008-CA-011681
Plaintiff, DIVISION A
VS.
JULIO C. AGUIRRE A/K/A JUILIO AGUIRRE,
et al,
Defendant
AFFIDAVIT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
,BEFORE ME, the undersigned authority, personally appeared
\\NAhl., who, upon
I 01)4(
being duly sworn, deposes and says:
1. I am the
\VV143kii011.S for PMI Mortgage Insurance
Cornpany.
2. I have personal knowledge of the matters set forth herein.
3. This Affidavit is based upon the payment records of the PMI. These
records are regularly maintained in the course of business of PMI and it isregular
practice to make and maintain these records. These records reflect payments that are
noted in the records at the time of receipt by persons whose regular duties include
recording this information. I maintain these records, and regularly use and rely upon
them in the performance of my duties.
4. The Defendant, JULIO C. AGUIRRE A/K/A JULIO AGUIRRE. executed
and delivered a promissory note and mortgage to the original mortgage lender. Pulte
EXHIBIT
Mortgage LLC (hereinafter "Lende(). The note and mortgage were subsequently
assigned to THE BANK OF NEW YORK, FOR THE BENEFIT OF THE
CERTIFICATE HOLDERS, CWALT, INC., ALTERNATIVE LOAN TRUST 2007-0A4
MORTGAGE PASS THROUGH CERTIFICATES, SERIES 2007-0A4 (hereinafter
"BNY"). True and correct copies of the note, mortgage and assignment of mortgage
are attached hereto as Exhibit "A".
5. After approving the mortgage of the Defendant, the Lender entered
into a contract with PMI to insure Lender and its assigns repayment of the mortgage
in the event of default. A copy of the First Lien Master Policy is attached as Exhibit
6. The property subject to the note and mortgage was sold in foreclosure.
A copy of the final judgment of foreclosure is attached hereto as Exhibit
7. After applying the proceeds of the foreclosure sale and applicable
interest were calculated, the deficiency balance due under the note and mortgage
was $195,376.68.
8. BNY, through itsservicer Countrywide Home Loans, submitted a claim
to PMI for reimbursement of the loss sustained as a result of the default.
9. PMI paid the cash settlement portion of $39,103.69 toward the loss
sustained as a result of the default. Copies of the Claim for Loss Settlement Form
and electronic fund transfer are attached hereto as Exhibit "D".
10. By virtue of the Defendant's default and PMI's payment, PMI is now
the Subrogee of BNY's rights against the Defendant for the amount of the claim
payment paid. Additionally, the Defendant will be unjustly enriched by the PMI's
payment toward the deficiency balance, unless PMI is reimbursed for said payment.
Copies of the Deficiency Calculation and Broker's Price Opinion are attached hereto
as Exhibit "E."
11. PMI has demanded reimbursement from the Defendant of the amount
itpaid to BNY: however, the Defendant has failed or refused to pay.
12. The note and mortgage from which this claim arises provides for the
recovery of reasonable attorneys' fees from the Defendant.
13. The Defendant owes PMI the sum of $39,103.69, together with
interest, court costs and attorney's fees.
14. PMI has retained the firm of Walter L. Sanders, P.A. to represent
it inthis cause and has agreed to pay a reasonable attorney's fee for services.
FURTHER AFFIANT SAYETH NAUGHT
BY:
COU TY OF
STATE OF,
I HERERTIFY that on this day, before me, an officer duly authorized to
take acknowledgments, personally appeared, to me personally
known to be the person described inand who executed the foregoing instrument and
he/she acknowledged before rn,,e that he/she executed the same.
SWORN TO AND SUBSCRIgEore me this day of
2014.
NOTARY PUBLIC -
STATE 0
My Commission Expires:
CALIFORNIA
JURAT CERTIFICATE
State of California
County of .01kik\-\aN Q9,)
(2
Subsaibed and (or affirmed) before this day of
•
sworn to me on
20, by
proved to me on the basis of satisfactory evidence to be the person0 who appeared before me.
M. SCOTT
o tmaormnytirsPuaibsoclonics: C aI9015uit0no5try6n i7a
WIT, ESS MY D AND OFFICIAL SEAL.
NC
4. cz
My Comm. Expires Sep
29.2015
Signatur•
otary Public (No tary Sea 1)
OPTIONAL INFORMATION
Any affidavit subscribed and swom to before a notanj shall
The jurat contained within this document is in accordance with California law. use
similar to Code
Civil 1189
sections and8202.Ajurat cannot be affixed
certificate
the
preceding wording
orsubstantially wording pursuant
document sent
to a including electronic means, whereby the signer did not
by mail or otherwise delivered to a notary public,
before
personally appear thenotary public:,
even the
if signerisknown by the notary public. The seal and signature cannot be
As an additional option an affiant can produce an affidavit on the
affixed to a document without the correct notarial wording.
same document as the notarial certificate wording to eliminate the use ofadditional docwnentation.
DESCRIPTION OF ATTACHED DOCUMENT CAPACHY CLAIMED BY THE SIGNER
Ot0,\11 ED1r VMt totpl1'p9s1 Individual
(Title of document) Corporate Officer
Partner
Number of PagesLi (Including jurat) Attorney-In-Fact
Trustee
Document Date
61-1-5-12_01y Other
v\'\o Acio{ve-
(Add iti onal %formation)
MMX V. BAN2 510.409.1334 www.BayAreallotary.com
(PR7C1 of r17)
3-185941A
0 111111Uft
-141N1
1-815-679-6377
I
W4110002998187
0 v...
ADJUSTABLE RATE NOTE
_
Cb 6:4 Je.
(MTA-Twelve Month Average Index -
Payment Caps) 424-rfle._„,.
THIS NOTE CONTAINS PROVISIONS THAT WILL CHANGE THE INTE '4 ST
Rg9,—E94.,
THA "0
AND THE MONTHLY PAYMENT. THERE MAY BE A UNLIT ON THE AMOUIN
THE MONTHLY PAYMENT CAN INCREASE OR DECREASE, THE HUN P -
AMOUNT TO REPAY COULD BE GREATER THAN THE AMOUNT ORIGIN YA
1
•
BORROWED, BUT NOT MORE THAN THE MAXIMUM LIMIT STATED IN THIS NOTE. If
November 20, 2006 Orlando Florida
(Date) (City) (State)
3332 Robert Trent Jones Dr Unit 306
Orlando, FL 32835
(Property Address)
1. BORROWER'S PROMISE TO PAY
222,300.00
In return for a loan that I have received, I promise to pay U.S. $ (thisamount is called "Principal"), plus
The Principal amount may increase as
interest, to the order of Lender. providedunder the terms of this Note but will never
This is called the "Maximum
exceed one hundred fifteen percent (1I 5.00%) of the Principal amount I originally borrowed.
Limit." Lender is Pulte Mortgage LLC. I will make all payments under this Note. in the form of cash, check or money
order.
I understand that Lender may transfer this
Note. Lender or anyone who takes this Note by transferand who is
entitled to receive payments under this Note is called the "Note Holder."
2. INTEREST
(A) Interest Rate
3will
Interest will be charged on unpaid principal until the fa amount of Principal has been paid. pay interest at a
yearlyrateof 2.250 %. The interestrateIwillpay may change.
Tbe interest rate required by this Section 2 is the rate I will pay both before and after any default descnbed in Section
7(B) of this Note.
-
(B) Interest Rate Change Dates
The interest rate I will pay may change on January I, 2007, and on that day every month thereafter.
Each date on
which could
interest rate change is calledan 'Interest RateChange Date." The new rateof interestwillbecome
my
effectiveon each InterestRate Change Date. The interestrate may change monthly, but the monthly payment is
recalculated in accordance with Section 3.
(C) Index
the Rate Change
first Interest Date, my adjustable interest will be based on an Index. The
Beginning with rate
"Index" is the "Twelve-Month Average" of the annual yields On actively traded United States Treasury Securities adjusted
Reserve Statistical Release
to a constant maturity of one year as published by the Federal Reserve Board in the Federal
entitled"SelectedInterestRates (HAS)" (the "Monthly yields").The Twelve Month Average is determined by adding
together theMonthly Yields forthe most recentlyavailabletwelve months and dividing by 12. The most recentIndex
figure available as of the date IS days before each Interest Rate Change Date is called the "Current Index".
If the Index is no longer available,the Note Holder will choose a new index that is based upon comparable
information. The Note Holder will give me notice of this choice.
(D) Calculation of Interest Rate Changes
Three And
Before each Interest Rate Change Date, the Note Holder will calculate my new interest rate by adding
Two-hundred Seventy-five Thousaudth(s) percentage point(s) (3.275 %) ("Margin") to the Current Index.The Note
to of
the nearest one-eighth
Holder will then round the result of this addition one percentage point (0.125%).This rounded
amount will be my new interest rate until
the next Interest Rate
Change Date. My greater than
interest will never be
9.95%. Beginning with the first Interest Rate Change Date, my interest rate will never be lower than the Margin.
3. PAYMENTS
(A) Time and Place of Payments
I will make a payment every month.
I will make my monthly payments on the first day of each month beginning on Januarv I, 2007.I will make these
month untilI have paid allthePrincipaland Interestand any other charges describedbelow that I may
payments every
owe under this Note. Each monthly payment will be applied as of its scheduled due date and will] be applied to Interest
before Principal.If, on December 1, 2036 I still owe amounts under this Note, I will pay those amounts in full on that
date, which is called the "Maturity Date."
MTA Index 10/04
Pay0pfion ARM Note
-
PV-531.201)
(0511)
(key. (Wo) ifi4
11.85A Pagc I 01'4
EXHIBIT
(Page of 57)
33-I85941A
I willmake my monthly payments at 7475 South JolietStreet Englewood, CO 80112 or at a differentplace if
required by the Note Holder,
(B) Amount of My Initial Monthly Payments
Each of my initial monthly payments until the first Payment Change Date will be in the amount of U.S. $849.74 unless
adjusted under Section 3 (17).
(C) Payment Change Dates
My monthly payment may change as required by Section 3(D) below beginning the first day of January I, 2008, and
My monthly payment also
Each of these dates is called a "Payment Change Date."
on that day every 12th month thereafter.
will change at any time Section 3(F) or 3(G) below requiresme to pay a different monthly payment. The "Minimum
Paymene isthe minimum amount the Note Holder will acceptfor my monthly payment which isdetermined at the last
If is notsufficientto cover the
Payment Change Date oras providedin Section 3(F)or 3(0) below. thc Minimum Payment
amount of the interest due then negative amortization will occur.
I will pay the amount of my new Minimum Payment each month beginning on each Payment Change Date or as
provided in Section 3(F) or 3(0) below.
(D) Calculation of Monthly Payment Changes
At least 30 days before each Payment Change Date, the Note Holder will calculate the amount of the monthly payment
that would be sufficient to repay the unpaid Principal that I am expected to owe at,the Payment Change Date in full on the
maturity date in substantially equal payments at the interest rate effective during the month preceding the Payment Change
Date. Unless Section 3(F) or 3(G) apply, the amount of my new
The result of this calculation is called the "Full Payment."
monthly payment effective on aPayment Change Date, will not increase ,by more than 7.5% of my prior monthly payment.
"Payment Cap."
This 7.5% limitation is called the This Payment Cap applies only to the Principal and Interest payment and
does not escrow payments Lender may require under the Security Instrument.
apply to any The Note Holder will apply the
Payment Cap by taking the amount of my Minimum Payment due the month preceding the Payment Change Date and
multiplying by
it thenumber 1.075. The resultof this is
calculation calledthe "LimitedPayment2 Unless Section 3(F) or
3(0) below requires me to pay a different amount, my new Minimum Payinent will be the lesser of the Limited Payment and
the Full Payment. I also have the option to pay the Full Payment for my monthly payment.
(E) Additions to My Unpaid Principal
Since my monthly payment amount changes less the monthly payment
frequently than the interest rate, and since is
in Section 3 (D), my Minimum Payment could be less than or greater than the
subject to the payment limitations described
amount the unpaid
of the interest portion of the monthly payment that would be sufficient to repay Principal I owe atthe
monthly payment date infullon the Maturity Date in equal
substantially payments. For each month thatmy monthly
the amount
payment is less than the interest portion; the Note Holder will subtract the amount of my monthly payment from
of the interest portion and
willadd thedifference to my unpaid Principal,and interest will
accrue on the amount of this
For each month that the monthly payment is greater than the interest
difference at the interest rate required by Section 2.
portion,theNote Holder will applythe payment as provided in Section 3 (A).
(F) Limit on My Unpaid Principal; Increased Monthly Payment
My unpaid Principal can never exceed the Maximum Limit equal to one hundred (115.00%)
fifteen percent of the
My unpaid principal
Principal amount I originally borrowed. couldexceed thatMaximum Limit due toMinimum Payments
In that event, on the date that my paying my monthly payment would cause me to exceed that
and interest rate increases.
limit, I will instead pay a new monthly payment.This means that my monthly payment may change more frequently than
The new Minimum Payment will be in an
annually and such payment changes will not be limited by the 7.5% Payment Cap.
amount that would be sufficientto repay my then unpaid Principal in fullon the Maturity Date in substantiallyequal
payments atthe current interest rate.
(G) Required Full Payment
On the fifth Payment Change Date and on each succeeding fifth Payment Change Date thereafter,I will begin paying
the Full Payment as my Minimum Payment untilmy monthly payment changes again. I also-willbegin paying the Full
Payment asmy Minimum Payment on thefinalPayment Change Date.
(H) Payment Options
After the first Interest Rate Change Date, Lender may provide me with up to three (3) additional payment options that
aregreater than the Minimum Payment, which are called "Payment Options." I may be given the following Payment
Options:
Interest thc amount that would pay the of the monthly payment at
interest portion the
(i) Only Payment:
The
current interest rate. Principalbalance will notbe decreased by thisPayment Option and itis onlyavailable if
the interest portion exceeds the Minimum Payment.
(ii) Fully Amortized Payment: theamount necessary to pay theloan pff (Principaland the
Interest),. at
Maturity Date insubstantially equal payments.
MIA Index 10H34
?ay/Option ARM Noth
(0511)
FE-5312(FL)
F1-85B l':qc 2 of 4 ThJIIIS
(Page 3 of 57)
• -
15 Year Amortized Payment: the amount necessary the loan
411. 33-185941A
off (Principal andinterest) within a
(iii) to pay
fifteen(15)year term from the firstpayment due date in equal
substantially payments. This monthly payment
amount is calculated on the assumption that the current rate will remain in effect for the remaining term.
These Payment Options are only applicable if they are greater than the Minimum Payment.
4. NOTICE OF CHANGES
The Note Holder will deliver or mail to me a notice of any changes in the amount of my monthly payment before the
The notice will include information required by law to be given to me and also the title and
effective date of any change.
telephone number of aperson who will answer any question I may have regarding the notice.
5. BORROWER'S RIGHT TO PREPAY
I have the right to make payments of Principal at any time before they are due.
A payment of Principal only is known
as a "Prepayment." When I make a Prepayment, Iwill telltheNote Flolderin writingthat Iam doing so. I may not
litignatea payment as aPrepayment ifIhave not made allthe monthly payments due under thisNote.
I may make a full Prepayment or partial Prepayments without paying any Prepayment charge.The Note Holder will
use my Prepayments to reduce the amount of Principal that I
owe under this Note. If I make a partial Prepayment, there
will be no changes in the due dates of my monthly payments. My partial Prepayment may reduce the amount of my
monthly payments afterthefirstPayment Change Date following my partialPrepayment. However, any reductiondue to
my partial Prepayment may be offset by an interest rate increase.
6. LOAN CHARGES
If a law, which applies to this loan and which sets maximum loan charges, is finally interpreted so that the interest or
(a) any such
other loan charges collected or to be collected in connection with this loan exceed the permitted limits, then;
and (b) any sums already
loan charge shall be reduced by the amount necessary to reduce the charge to the permitted limit;
exceeded limitswill be refunded The Note Holder may choose to make this
collectedfrom me that permitted tome.
making a direct payment to me.
refund by reducing the Principal I owe under this Note or by If a refund reduces Principal,
the reduction will be treated as a partial Prepayment.
7. BORROWER'S FAILURE TO PAY AS REQUIRED
(A) Late Charges for Overdue Payments
If the Note Holder has not received the full amount of any monthly payment by the end of 15 calendar days after the
date it is due, I will pay a late charge to the Note Holder.
The amount of the charge willbe 5.000 % of my overdue
I will pay this late charge promptly but only once on each late payment.
payment of Principal and interest.
(B) Default
If I do not pay the full amount of each monthly payment on the date it is due, I will be in default,
(C) Notice of Default
If I am in default, the Note Holder may send me a written notice telling me that if I do not pay the overdue amount by
a certain date, the Note Holder may require me to pay immediately the full amount of Principal that has not been paid and
That date must be at least 30 days after the date on which the notice is mailed to
all the interest that I owe on that amount.
tne or delivered by other means.
(D) No Waiver By Note Holder
full as described
Even if, at a time when I am in default, the Note Holder does not require me to pay immediately in
above, the Note Holder will still have the right to do so if I am in default at a later time.
(E) Payment of Note Holder's Costs and Expenses
If the Note Holder has required me to pay immediately in full as described above, the Note Holder will have the right
to be paid back by me for all of its costs and expenses in enforcing this Note to the extent not prohibited by applicable law.
These expenses include, for example, reasonable attorneys' fees.
8. GIVING OF NOTICES
Unless applicable law requires a different method, any notice that must be given to me under this Note will be given
by delivering it or by mailing it by first class mail to me at the Property Addrcss above or at a different address if I give the
Note Holder a notice of my different address.
Unless the Note Holder requiresa different method, any notice that must be given to the Note Holder under this Note
will begiven by deliveringitor by mailing it by first class mail to the Note Holder at the address stated in Section 3(A)
above or at a different address if I am given a notice of that different address.
9. OBLIGATIONS OF PERSONS UNDER THIS NOTE
If more than one person signs this Note,each person isfully and personally obligated
to keep all of the promises
Any person who is a guarantor, surety or endorser
made in this Note, including the promise to pay the full amount owed.
Any person who takes over these obligations, including the obligations of
of this Note is also obligated to do these things.
is also
a guarantor, surety or endorser of this Note, obligated to keepall of the promises made inthis Note. The Note
Holder may enforce its rights under this Note against each person individually or against ail of us together.
This means
that any one of us may be required to pay all of the amounts owed under this Note.
MTA index
PayOption ARM Note
-
10:04
FE-5312(EL)
(0511)
FL85C Page 3
of 4
(Page 4 of 57)
le 33-185941A
10. WAIVERS
I and any other person who hasobligations under this Note waive the rights of Presentment and Notice of Dishonor.
"Presentment" means the rightto require theNote Holder to demand payment of amounts due. "Notice of Dishonor"
means the right to require the Note Holder to give notice to other persons that amounts due have not been paid.
11. SECURED NOTE
In addition to the protections given to the Note Holder under this Note, a Mortgage, Deed of Trust, or Security Deed
(the "Security Instrument"),
dated the same date as this Note, protects the Note Holder front possible
losses that might
resultif I do not keep the promises that I makeinthis Note. That Security Instrument describeshow and under what
conditions I may be required to make immediate payment in fullof all amounts Iowe under this Note. Some of these
conditions are described as follows:
Transfer of the Property or a Beneficial interest in Borrower.
As used in this Section18, "Interest in the
Property" means any legal or beneficialinterest in
the Property,including,but not limitedto, thosebeneficial
in a bond for deed,
interests transferred contractfor deed,installment sales contract or escrowagreement, the
int
Preview
Filing # 15293681 Electronically Filed 06/26/2014 04:01:19 PM IN THE CIRCUIT COURT OF THE 9th JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA CIVIL ACTION THE BANK OF NEW YORK, FOR THE BENEFIT OF THE CERTIFICATE HOLDERS, CWALT, INC., ALTERNATIVE LOAN TRUST 2007-0A4 MORTGAGE PASS THROUGH CERTIFICATES, SERIES 2007-0A4, CASE NO. 48-2008-CA-011681 Plaintiff, DIVISION A VS JULIO C. AGUIRRE A/K/A JUILIO AGUIRRE: et al., Defendant. PMI MORTGAGE INSURANCE COMPANY'S MOTION FOR SUMMARY JUDGMENT FOR DEFICIENCY BALANCE AS SUBROGEE OF THE BANK OF NEW YORK, FOR THE BENEFIT OF THE CERTIFICATE HOLDERS, CWALT, INC., ALTERNATIVE LOAN TRUST 2007-0A4 MORTGAGE PASS THROUGH CERTIFICATES, SERIES 2007-0A4 COMES NOW, PMI MORTGAGE INSURANCE COMPANY (hereinafter "PMI"), by and through its undersigned counsel, and files its Motion for Summary Judgment, and in support thereof states. 1. On May 27, 2014, this Honorable Court entered an Order Granting PMI MORTGAGE INSURANCE COMPANY'S (hereafter "PMI") Motion to Intervene in this action. 2. The undisputed facts are as follows. a. PMI is a mortgage insurance company engaged in the business of insuring payment of mortgages on real property. b. The Defendant, JULIO C. AGUIRRE A/K/A JULIO AGUIRRE, executed and delivered a promissory note and mortgage to the original mortgage lender, Pulte Mortgage LLC (hereinafter "Lender") The note and mortgage were subsequently assigned to THE BANK OF NEW YORK, FOR THE BENEFIT OF THE CERTIFICATE HOLDERS, CWALT, INC., ALTERNATIVE LOAN TRUST 2007-0A4 MORTGAGE PASS THROUGH CERTIFICATES, SERIES 2007-OA4 (hereinafter BNY"). True and correct copies of the note, mortgage and assignment of mortgage are attached hereto as Exhibit "A". c. After approving the mortgage of the Defendant, the Lender entered into a contract with PMI to insure Lender and its assigns repayment of the mortgage in the event of default. A copy of the First Lien Master Policy is attached as Exhibit d. The property subject to the note and mortgage was sold in foreclosure. A copy of the final judgment of foreclosure is attached hereto as Exhibit "C". e. After applying the proceeds of the foreclosure sale and applicable interest were calculated, the deficiency balance due under the note and mortgage was $195,376.68. f. BNY, through its servicer Countrywide Home Loans, submitted a claim to PMI for reimbursement of the loss sustained as a result of the default. g. PMI paid the cash settlement portion of $39,103.69 toward the loss sustained as a resuit of the default. Copies of the Claim for Loss Settlement Form and electronic fund transfer are attached hereto as Exhibit "D". h. By virtue of the Defendant's default and PMI's payment, PMI is now the Subrogee of BNY's rights against the Defendant for the amount of the claim payment paid. Additionally, the Defendant will be unjustly enriched by the PMI's payment toward the deficiency balance, unless PMI is reimbursed for said payment. Copies of the Deficiency Calculation and Broker's Price Opinion are attached hereto as Exhibit "E." PMI has demanded reimbursement from the Defendant of the amount it paid to BNY: however. the Defendant has failed or refused to pay. The note and mortgage from which this claim arises provides for the recovery of reasonable attorneys' fees from the Defendant. 3. An Affidavit in support of PMI's Motion for Summary Judgment is attached hereto as Exhibit "1." WHEREFORE, PMI respectfully requests this Court to: (1) enter an Order granting PMI's Motion for Summary Judgment (2) awarding damages in the amount of $39.103.69 plus interest, costs, attorney's fees, and such other relief as this Court shall deem proper and just /s/Walter L. Sanders WALTER L. SANDERS, ESQ. FLA BAR NO. 0288690 WALTER L. SANDERS. P.A. 6936 W. Linebaugh Avenue. Suite 101 Tampa, FL 33625 (813) 908-4183 (813) 388-4912 (FAX) Attorney for PMI CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been served via U.S. Mail to the following parties on this ail /lAc--'lay of June. 2014. /s/Walter L. Sanders WALTER L. SANDERS, ESQ. Julio C. Aguirre 435 Opal Court Altamonte Springs, FL 32714-5403 Edward B. Pritchard, Esq. Kass Schuler, P.A. PO Box 800 Tampa, FL 33601-0800 epritcha@kasslaw.corn rmi (.(.13-coisv IN THE CIRCUIT COURT OF THE 9th JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA CIVIL ACTION THE BANK OF NEW YORK. FOR THE BENEFIT OF THE CERTIFICATE HOLDERS, CWALT, INC., ALTERNATIVE LOAN TRUST 2007-0A4 MORTGAGE PASS THROUGH CERTIFICATES, SERIES 2007-0A4, CASE NO. 48-2008-CA-011681 Plaintiff, DIVISION A VS. JULIO C. AGUIRRE A/K/A JUILIO AGUIRRE, et al, Defendant AFFIDAVIT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT ,BEFORE ME, the undersigned authority, personally appeared \\NAhl., who, upon I 01)4( being duly sworn, deposes and says: 1. I am the \VV143kii011.S for PMI Mortgage Insurance Cornpany. 2. I have personal knowledge of the matters set forth herein. 3. This Affidavit is based upon the payment records of the PMI. These records are regularly maintained in the course of business of PMI and it isregular practice to make and maintain these records. These records reflect payments that are noted in the records at the time of receipt by persons whose regular duties include recording this information. I maintain these records, and regularly use and rely upon them in the performance of my duties. 4. The Defendant, JULIO C. AGUIRRE A/K/A JULIO AGUIRRE. executed and delivered a promissory note and mortgage to the original mortgage lender. Pulte EXHIBIT Mortgage LLC (hereinafter "Lende(). The note and mortgage were subsequently assigned to THE BANK OF NEW YORK, FOR THE BENEFIT OF THE CERTIFICATE HOLDERS, CWALT, INC., ALTERNATIVE LOAN TRUST 2007-0A4 MORTGAGE PASS THROUGH CERTIFICATES, SERIES 2007-0A4 (hereinafter "BNY"). True and correct copies of the note, mortgage and assignment of mortgage are attached hereto as Exhibit "A". 5. After approving the mortgage of the Defendant, the Lender entered into a contract with PMI to insure Lender and its assigns repayment of the mortgage in the event of default. A copy of the First Lien Master Policy is attached as Exhibit 6. The property subject to the note and mortgage was sold in foreclosure. A copy of the final judgment of foreclosure is attached hereto as Exhibit 7. After applying the proceeds of the foreclosure sale and applicable interest were calculated, the deficiency balance due under the note and mortgage was $195,376.68. 8. BNY, through itsservicer Countrywide Home Loans, submitted a claim to PMI for reimbursement of the loss sustained as a result of the default. 9. PMI paid the cash settlement portion of $39,103.69 toward the loss sustained as a result of the default. Copies of the Claim for Loss Settlement Form and electronic fund transfer are attached hereto as Exhibit "D". 10. By virtue of the Defendant's default and PMI's payment, PMI is now the Subrogee of BNY's rights against the Defendant for the amount of the claim payment paid. Additionally, the Defendant will be unjustly enriched by the PMI's payment toward the deficiency balance, unless PMI is reimbursed for said payment. Copies of the Deficiency Calculation and Broker's Price Opinion are attached hereto as Exhibit "E." 11. PMI has demanded reimbursement from the Defendant of the amount itpaid to BNY: however, the Defendant has failed or refused to pay. 12. The note and mortgage from which this claim arises provides for the recovery of reasonable attorneys' fees from the Defendant. 13. The Defendant owes PMI the sum of $39,103.69, together with interest, court costs and attorney's fees. 14. PMI has retained the firm of Walter L. Sanders, P.A. to represent it inthis cause and has agreed to pay a reasonable attorney's fee for services. FURTHER AFFIANT SAYETH NAUGHT BY: COU TY OF STATE OF, I HERERTIFY that on this day, before me, an officer duly authorized to take acknowledgments, personally appeared, to me personally known to be the person described inand who executed the foregoing instrument and he/she acknowledged before rn,,e that he/she executed the same. SWORN TO AND SUBSCRIgEore me this day of 2014. NOTARY PUBLIC - STATE 0 My Commission Expires: CALIFORNIA JURAT CERTIFICATE State of California County of .01kik\-\aN Q9,) (2 Subsaibed and (or affirmed) before this day of • sworn to me on 20, by proved to me on the basis of satisfactory evidence to be the person0 who appeared before me. M. SCOTT o tmaormnytirsPuaibsoclonics: C aI9015uit0no5try6n i7a WIT, ESS MY D AND OFFICIAL SEAL. NC 4. cz My Comm. Expires Sep 29.2015 Signatur• otary Public (No tary Sea 1) OPTIONAL INFORMATION Any affidavit subscribed and swom to before a notanj shall The jurat contained within this document is in accordance with California law. use similar to Code Civil 1189 sections and8202.Ajurat cannot be affixed certificate the preceding wording orsubstantially wording pursuant document sent to a including electronic means, whereby the signer did not by mail or otherwise delivered to a notary public, before personally appear thenotary public:, even the if signerisknown by the notary public. The seal and signature cannot be As an additional option an affiant can produce an affidavit on the affixed to a document without the correct notarial wording. same document as the notarial certificate wording to eliminate the use ofadditional docwnentation. DESCRIPTION OF ATTACHED DOCUMENT CAPACHY CLAIMED BY THE SIGNER Ot0,\11 ED1r VMt totpl1'p9s1 Individual (Title of document) Corporate Officer Partner Number of PagesLi (Including jurat) Attorney-In-Fact Trustee Document Date 61-1-5-12_01y Other v\'\o Acio{ve- (Add iti onal %formation) MMX V. BAN2 510.409.1334 www.BayAreallotary.com (PR7C1 of r17) 3-185941A 0 111111Uft -141N1 1-815-679-6377 I W4110002998187 0 v... ADJUSTABLE RATE NOTE _ Cb 6:4 Je. (MTA-Twelve Month Average Index - Payment Caps) 424-rfle._„,. THIS NOTE CONTAINS PROVISIONS THAT WILL CHANGE THE INTE '4 ST Rg9,—E94., THA "0 AND THE MONTHLY PAYMENT. THERE MAY BE A UNLIT ON THE AMOUIN THE MONTHLY PAYMENT CAN INCREASE OR DECREASE, THE HUN P - AMOUNT TO REPAY COULD BE GREATER THAN THE AMOUNT ORIGIN YA 1 • BORROWED, BUT NOT MORE THAN THE MAXIMUM LIMIT STATED IN THIS NOTE. If November 20, 2006 Orlando Florida (Date) (City) (State) 3332 Robert Trent Jones Dr Unit 306 Orlando, FL 32835 (Property Address) 1. BORROWER'S PROMISE TO PAY 222,300.00 In return for a loan that I have received, I promise to pay U.S. $ (thisamount is called "Principal"), plus The Principal amount may increase as interest, to the order of Lender. providedunder the terms of this Note but will never This is called the "Maximum exceed one hundred fifteen percent (1I 5.00%) of the Principal amount I originally borrowed. Limit." Lender is Pulte Mortgage LLC. I will make all payments under this Note. in the form of cash, check or money order. I understand that Lender may transfer this Note. Lender or anyone who takes this Note by transferand who is entitled to receive payments under this Note is called the "Note Holder." 2. INTEREST (A) Interest Rate 3will Interest will be charged on unpaid principal until the fa amount of Principal has been paid. pay interest at a yearlyrateof 2.250 %. The interestrateIwillpay may change. Tbe interest rate required by this Section 2 is the rate I will pay both before and after any default descnbed in Section 7(B) of this Note. - (B) Interest Rate Change Dates The interest rate I will pay may change on January I, 2007, and on that day every month thereafter. Each date on which could interest rate change is calledan 'Interest RateChange Date." The new rateof interestwillbecome my effectiveon each InterestRate Change Date. The interestrate may change monthly, but the monthly payment is recalculated in accordance with Section 3. (C) Index the Rate Change first Interest Date, my adjustable interest will be based on an Index. The Beginning with rate "Index" is the "Twelve-Month Average" of the annual yields On actively traded United States Treasury Securities adjusted Reserve Statistical Release to a constant maturity of one year as published by the Federal Reserve Board in the Federal entitled"SelectedInterestRates (HAS)" (the "Monthly yields").The Twelve Month Average is determined by adding together theMonthly Yields forthe most recentlyavailabletwelve months and dividing by 12. The most recentIndex figure available as of the date IS days before each Interest Rate Change Date is called the "Current Index". If the Index is no longer available,the Note Holder will choose a new index that is based upon comparable information. The Note Holder will give me notice of this choice. (D) Calculation of Interest Rate Changes Three And Before each Interest Rate Change Date, the Note Holder will calculate my new interest rate by adding Two-hundred Seventy-five Thousaudth(s) percentage point(s) (3.275 %) ("Margin") to the Current Index.The Note to of the nearest one-eighth Holder will then round the result of this addition one percentage point (0.125%).This rounded amount will be my new interest rate until the next Interest Rate Change Date. My greater than interest will never be 9.95%. Beginning with the first Interest Rate Change Date, my interest rate will never be lower than the Margin. 3. PAYMENTS (A) Time and Place of Payments I will make a payment every month. I will make my monthly payments on the first day of each month beginning on Januarv I, 2007.I will make these month untilI have paid allthePrincipaland Interestand any other charges describedbelow that I may payments every owe under this Note. Each monthly payment will be applied as of its scheduled due date and will] be applied to Interest before Principal.If, on December 1, 2036 I still owe amounts under this Note, I will pay those amounts in full on that date, which is called the "Maturity Date." MTA Index 10/04 Pay0pfion ARM Note - PV-531.201) (0511) (key. (Wo) ifi4 11.85A Pagc I 01'4 EXHIBIT (Page of 57) 33-I85941A I willmake my monthly payments at 7475 South JolietStreet Englewood, CO 80112 or at a differentplace if required by the Note Holder, (B) Amount of My Initial Monthly Payments Each of my initial monthly payments until the first Payment Change Date will be in the amount of U.S. $849.74 unless adjusted under Section 3 (17). (C) Payment Change Dates My monthly payment may change as required by Section 3(D) below beginning the first day of January I, 2008, and My monthly payment also Each of these dates is called a "Payment Change Date." on that day every 12th month thereafter. will change at any time Section 3(F) or 3(G) below requiresme to pay a different monthly payment. The "Minimum Paymene isthe minimum amount the Note Holder will acceptfor my monthly payment which isdetermined at the last If is notsufficientto cover the Payment Change Date oras providedin Section 3(F)or 3(0) below. thc Minimum Payment amount of the interest due then negative amortization will occur. I will pay the amount of my new Minimum Payment each month beginning on each Payment Change Date or as provided in Section 3(F) or 3(0) below. (D) Calculation of Monthly Payment Changes At least 30 days before each Payment Change Date, the Note Holder will calculate the amount of the monthly payment that would be sufficient to repay the unpaid Principal that I am expected to owe at,the Payment Change Date in full on the maturity date in substantially equal payments at the interest rate effective during the month preceding the Payment Change Date. Unless Section 3(F) or 3(G) apply, the amount of my new The result of this calculation is called the "Full Payment." monthly payment effective on aPayment Change Date, will not increase ,by more than 7.5% of my prior monthly payment. "Payment Cap." This 7.5% limitation is called the This Payment Cap applies only to the Principal and Interest payment and does not escrow payments Lender may require under the Security Instrument. apply to any The Note Holder will apply the Payment Cap by taking the amount of my Minimum Payment due the month preceding the Payment Change Date and multiplying by it thenumber 1.075. The resultof this is calculation calledthe "LimitedPayment2 Unless Section 3(F) or 3(0) below requires me to pay a different amount, my new Minimum Payinent will be the lesser of the Limited Payment and the Full Payment. I also have the option to pay the Full Payment for my monthly payment. (E) Additions to My Unpaid Principal Since my monthly payment amount changes less the monthly payment frequently than the interest rate, and since is in Section 3 (D), my Minimum Payment could be less than or greater than the subject to the payment limitations described amount the unpaid of the interest portion of the monthly payment that would be sufficient to repay Principal I owe atthe monthly payment date infullon the Maturity Date in equal substantially payments. For each month thatmy monthly the amount payment is less than the interest portion; the Note Holder will subtract the amount of my monthly payment from of the interest portion and willadd thedifference to my unpaid Principal,and interest will accrue on the amount of this For each month that the monthly payment is greater than the interest difference at the interest rate required by Section 2. portion,theNote Holder will applythe payment as provided in Section 3 (A). (F) Limit on My Unpaid Principal; Increased Monthly Payment My unpaid Principal can never exceed the Maximum Limit equal to one hundred (115.00%) fifteen percent of the My unpaid principal Principal amount I originally borrowed. couldexceed thatMaximum Limit due toMinimum Payments In that event, on the date that my paying my monthly payment would cause me to exceed that and interest rate increases. limit, I will instead pay a new monthly payment.This means that my monthly payment may change more frequently than The new Minimum Payment will be in an annually and such payment changes will not be limited by the 7.5% Payment Cap. amount that would be sufficientto repay my then unpaid Principal in fullon the Maturity Date in substantiallyequal payments atthe current interest rate. (G) Required Full Payment On the fifth Payment Change Date and on each succeeding fifth Payment Change Date thereafter,I will begin paying the Full Payment as my Minimum Payment untilmy monthly payment changes again. I also-willbegin paying the Full Payment asmy Minimum Payment on thefinalPayment Change Date. (H) Payment Options After the first Interest Rate Change Date, Lender may provide me with up to three (3) additional payment options that aregreater than the Minimum Payment, which are called "Payment Options." I may be given the following Payment Options: Interest thc amount that would pay the of the monthly payment at interest portion the (i) Only Payment: The current interest rate. Principalbalance will notbe decreased by thisPayment Option and itis onlyavailable if the interest portion exceeds the Minimum Payment. (ii) Fully Amortized Payment: theamount necessary to pay theloan pff (Principaland the Interest),. at Maturity Date insubstantially equal payments. MIA Index 10H34 ?ay/Option ARM Noth (0511) FE-5312(FL) F1-85B l':qc 2 of 4 ThJIIIS (Page 3 of 57) • - 15 Year Amortized Payment: the amount necessary the loan 411. 33-185941A off (Principal andinterest) within a (iii) to pay fifteen(15)year term from the firstpayment due date in equal substantially payments. This monthly payment amount is calculated on the assumption that the current rate will remain in effect for the remaining term. These Payment Options are only applicable if they are greater than the Minimum Payment. 4. NOTICE OF CHANGES The Note Holder will deliver or mail to me a notice of any changes in the amount of my monthly payment before the The notice will include information required by law to be given to me and also the title and effective date of any change. telephone number of aperson who will answer any question I may have regarding the notice. 5. BORROWER'S RIGHT TO PREPAY I have the right to make payments of Principal at any time before they are due. A payment of Principal only is known as a "Prepayment." When I make a Prepayment, Iwill telltheNote Flolderin writingthat Iam doing so. I may not litignatea payment as aPrepayment ifIhave not made allthe monthly payments due under thisNote. I may make a full Prepayment or partial Prepayments without paying any Prepayment charge.The Note Holder will use my Prepayments to reduce the amount of Principal that I owe under this Note. If I make a partial Prepayment, there will be no changes in the due dates of my monthly payments. My partial Prepayment may reduce the amount of my monthly payments afterthefirstPayment Change Date following my partialPrepayment. However, any reductiondue to my partial Prepayment may be offset by an interest rate increase. 6. LOAN CHARGES If a law, which applies to this loan and which sets maximum loan charges, is finally interpreted so that the interest or (a) any such other loan charges collected or to be collected in connection with this loan exceed the permitted limits, then; and (b) any sums already loan charge shall be reduced by the amount necessary to reduce the charge to the permitted limit; exceeded limitswill be refunded The Note Holder may choose to make this collectedfrom me that permitted tome. making a direct payment to me. refund by reducing the Principal I owe under this Note or by If a refund reduces Principal, the reduction will be treated as a partial Prepayment. 7. BORROWER'S FAILURE TO PAY AS REQUIRED (A) Late Charges for Overdue Payments If the Note Holder has not received the full amount of any monthly payment by the end of 15 calendar days after the date it is due, I will pay a late charge to the Note Holder. The amount of the charge willbe 5.000 % of my overdue I will pay this late charge promptly but only once on each late payment. payment of Principal and interest. (B) Default If I do not pay the full amount of each monthly payment on the date it is due, I will be in default, (C) Notice of Default If I am in default, the Note Holder may send me a written notice telling me that if I do not pay the overdue amount by a certain date, the Note Holder may require me to pay immediately the full amount of Principal that has not been paid and That date must be at least 30 days after the date on which the notice is mailed to all the interest that I owe on that amount. tne or delivered by other means. (D) No Waiver By Note Holder full as described Even if, at a time when I am in default, the Note Holder does not require me to pay immediately in above, the Note Holder will still have the right to do so if I am in default at a later time. (E) Payment of Note Holder's Costs and Expenses If the Note Holder has required me to pay immediately in full as described above, the Note Holder will have the right to be paid back by me for all of its costs and expenses in enforcing this Note to the extent not prohibited by applicable law. These expenses include, for example, reasonable attorneys' fees. 8. GIVING OF NOTICES Unless applicable law requires a different method, any notice that must be given to me under this Note will be given by delivering it or by mailing it by first class mail to me at the Property Addrcss above or at a different address if I give the Note Holder a notice of my different address. Unless the Note Holder requiresa different method, any notice that must be given to the Note Holder under this Note will begiven by deliveringitor by mailing it by first class mail to the Note Holder at the address stated in Section 3(A) above or at a different address if I am given a notice of that different address. 9. OBLIGATIONS OF PERSONS UNDER THIS NOTE If more than one person signs this Note,each person isfully and personally obligated to keep all of the promises Any person who is a guarantor, surety or endorser made in this Note, including the promise to pay the full amount owed. Any person who takes over these obligations, including the obligations of of this Note is also obligated to do these things. is also a guarantor, surety or endorser of this Note, obligated to keepall of the promises made inthis Note. The Note Holder may enforce its rights under this Note against each person individually or against ail of us together. This means that any one of us may be required to pay all of the amounts owed under this Note. MTA index PayOption ARM Note - 10:04 FE-5312(EL) (0511) FL85C Page 3 of 4 (Page 4 of 57) le 33-185941A 10. WAIVERS I and any other person who hasobligations under this Note waive the rights of Presentment and Notice of Dishonor. "Presentment" means the rightto require theNote Holder to demand payment of amounts due. "Notice of Dishonor" means the right to require the Note Holder to give notice to other persons that amounts due have not been paid. 11. SECURED NOTE In addition to the protections given to the Note Holder under this Note, a Mortgage, Deed of Trust, or Security Deed (the "Security Instrument"), dated the same date as this Note, protects the Note Holder front possible losses that might resultif I do not keep the promises that I makeinthis Note. That Security Instrument describeshow and under what conditions I may be required to make immediate payment in fullof all amounts Iowe under this Note. Some of these conditions are described as follows: Transfer of the Property or a Beneficial interest in Borrower. As used in this Section18, "Interest in the Property" means any legal or beneficialinterest in the Property,including,but not limitedto, thosebeneficial in a bond for deed, interests transferred contractfor deed,installment sales contract or escrowagreement, the int