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IN THE CIRCUIT OF THE 9th JUDICIAL CIRCUIT
OF FLORIDA, IN AND FOR ORANGE COUNTY
%
Wells Fargo Bank, National Association, as
Custodian for Morgan Stanley, MSAC 2007-
HE5,
Case #: 2008-CA-O 103 72
Plaintiff, Division #: 35 ^'a^:x. 'cP
-vs.- UNC:
Mima M. Gotera and Jose G. Gotera, Wife
and Husband; Mortgage Electronic
Registration Systems, Inc., as nominee for
WMC Mortgage Corp.; Unknown Parties in
Possession #1; Unknown Parties in Possession
#2; If living, and all Unknown Parties
claiming by, through, under and against the
above named Defendant(s) who are not
known to be dead or alive, whether said
Unknown Parties may claim an interest as
Spouse, Heirs, Devisees, Grantees, or Other
Claimants
Defendant(s).
MOTION FOR SUMMARY JUDGMENT
COMES NOW the Plaintiff, Wells Fargo Bank, National Association, as Custodian for
Morgan Stanley, MSAC 2007-HE5, pursuant to Fla.R.Civ.P. 1.510, and moves this Court for the
entry ofa Summary Judgment ofForeclosure, and in support thereof would state as follows:
1. There is no genuine issue of material fact and the Plaintiffis entitled to the entry
of a Summary Judgment of Foreclosure as a matter of law.
2. That under Florida Law when a mortgage contains an acceleration clause, upon
breach of a mortgagor's covenant to make the required payments, a mortgagee may sue to
foreclose the mortgage before the due date. Treb Trading Companv v. Green, 102 Fla. 238, 135
So. 510,(1931).
3. That one purpose ofa foreclosure is to subject the security to the payment ofthe
obligation involved. Bobbv Jones Garden Apartments v. Connecticut Mutual Life Insurance,
202 So. 2d. 226 (Fla. 2d D.C.A. 1967).
4. That the institution of a foreclosure suit is the exercise ofa mortgagee's option to
declare the remaining principal sum and interest due there on. Kreiss Potassium Phosphate Co. v.
NighL 98 Fla. 1004, 124 So. 751 (1929).
5. That a mortgagee has a right to accelerate upon default in conditions ofthe
security agreement, such as payment ofinterest, installments ofprincipal, taxes and insurance.
Clark V. Lachenmeier. 237 So. 2d 583 (Fla. 2d D.C.A. 1970).
6. That an acceleration clause in an installment note and mortgage confers a contract
right on the note and mortgage holder which holder may elect to invoke upon default and to seek
enforcement, thereof. Federal Home Loan Mortgage Corp. v. Tavlor, 318 So. 2d 203 (Fla. 1st
D.C.A. 1975).
7. The mortgage ofthe plaintiffis a purchase money mortgage being a lien superior
in dignity to any prior or subsequent right, title, claim, lien or interests arising out of mortgagor
or the mortgagor's predecessors in interest. Sarmiento v. Stockton, Whatlev, Davin & Companv,
399 So. 2d 1057 (3 D.C.A. 1081).
8. Attached hereto and made a part hereof are affidavits in connection with this
motion.
WHEREFORE, the Plaintiff moves this Court for the entry of Summary Judgment of
Foreclosure.
CERTIFICATE OF SERVICE
THIS IS TO CERTIFY that a tme and correct copy ofthe foregoing Motion for Summary
Judgment and all supporting affidavits were mailed to the following on <^^ day of
S G ^ ? / , 2008 to wit:
MIRNA M. GOTERA, 149 WINDROSE DRIVE, ORLANDO, FL 32824
JOSE G. GOTERA, 149 WINDROSE DRIVE, ORLANDO, FL 32824
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE FOR WMC
MORTGAGE CORP., ELECTRONIC DATA SYSTEMS CORPORATION, 3300 SW 34TH
AVENUE, SUITE 101, OCALA, FL 34474
OCCUPANTS, 149 WINDROSE DRIVE, ORLANDO, FL 32824
By:
JOSEPH N. DAYAN - Q B E R T C L ^
L Bar #0125660 KV«>««i' ,^^,^^--
PL BAR #803®'*
SHAPIRO & FISHMAN, LLP
Attomeys for Plaintiff
10004 N. Dale Mabry Highway, Suite 112
Tampa, FL 33618
Telephone: (813) 880-8888
Fax:(813)880-8800
08-097425
This is an attempt to collect a debt and any information obtained will be used for that purpose.
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IN THE CIRCUIT OF THE 9th JUDICIAL CIRCUIT OF FLORIDA, IN AND FOR ORANGE COUNTY % Wells Fargo Bank, National Association, as Custodian for Morgan Stanley, MSAC 2007- HE5, Case #: 2008-CA-O 103 72 Plaintiff, Division #: 35 ^'a^:x. 'cP -vs.- UNC: Mima M. Gotera and Jose G. Gotera, Wife and Husband; Mortgage Electronic Registration Systems, Inc., as nominee for WMC Mortgage Corp.; Unknown Parties in Possession #1; Unknown Parties in Possession #2; If living, and all Unknown Parties claiming by, through, under and against the above named Defendant(s) who are not known to be dead or alive, whether said Unknown Parties may claim an interest as Spouse, Heirs, Devisees, Grantees, or Other Claimants Defendant(s). MOTION FOR SUMMARY JUDGMENT COMES NOW the Plaintiff, Wells Fargo Bank, National Association, as Custodian for Morgan Stanley, MSAC 2007-HE5, pursuant to Fla.R.Civ.P. 1.510, and moves this Court for the entry ofa Summary Judgment ofForeclosure, and in support thereof would state as follows: 1. There is no genuine issue of material fact and the Plaintiffis entitled to the entry of a Summary Judgment of Foreclosure as a matter of law. 2. That under Florida Law when a mortgage contains an acceleration clause, upon breach of a mortgagor's covenant to make the required payments, a mortgagee may sue to foreclose the mortgage before the due date. Treb Trading Companv v. Green, 102 Fla. 238, 135 So. 510,(1931). 3. That one purpose ofa foreclosure is to subject the security to the payment ofthe obligation involved. Bobbv Jones Garden Apartments v. Connecticut Mutual Life Insurance, 202 So. 2d. 226 (Fla. 2d D.C.A. 1967). 4. That the institution of a foreclosure suit is the exercise ofa mortgagee's option to declare the remaining principal sum and interest due there on. Kreiss Potassium Phosphate Co. v. NighL 98 Fla. 1004, 124 So. 751 (1929). 5. That a mortgagee has a right to accelerate upon default in conditions ofthe security agreement, such as payment ofinterest, installments ofprincipal, taxes and insurance. Clark V. Lachenmeier. 237 So. 2d 583 (Fla. 2d D.C.A. 1970). 6. That an acceleration clause in an installment note and mortgage confers a contract right on the note and mortgage holder which holder may elect to invoke upon default and to seek enforcement, thereof. Federal Home Loan Mortgage Corp. v. Tavlor, 318 So. 2d 203 (Fla. 1st D.C.A. 1975). 7. The mortgage ofthe plaintiffis a purchase money mortgage being a lien superior in dignity to any prior or subsequent right, title, claim, lien or interests arising out of mortgagor or the mortgagor's predecessors in interest. Sarmiento v. Stockton, Whatlev, Davin & Companv, 399 So. 2d 1057 (3 D.C.A. 1081). 8. Attached hereto and made a part hereof are affidavits in connection with this motion. WHEREFORE, the Plaintiff moves this Court for the entry of Summary Judgment of Foreclosure. CERTIFICATE OF SERVICE THIS IS TO CERTIFY that a tme and correct copy ofthe foregoing Motion for Summary Judgment and all supporting affidavits were mailed to the following on <^^ day of S G ^ ? / , 2008 to wit: MIRNA M. GOTERA, 149 WINDROSE DRIVE, ORLANDO, FL 32824 JOSE G. GOTERA, 149 WINDROSE DRIVE, ORLANDO, FL 32824 MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE FOR WMC MORTGAGE CORP., ELECTRONIC DATA SYSTEMS CORPORATION, 3300 SW 34TH AVENUE, SUITE 101, OCALA, FL 34474 OCCUPANTS, 149 WINDROSE DRIVE, ORLANDO, FL 32824 By: JOSEPH N. DAYAN - Q B E R T C L ^ L Bar #0125660 KV«>««i' ,^^,^^-- PL BAR #803®'* SHAPIRO & FISHMAN, LLP Attomeys for Plaintiff 10004 N. Dale Mabry Highway, Suite 112 Tampa, FL 33618 Telephone: (813) 880-8888 Fax:(813)880-8800 08-097425 This is an attempt to collect a debt and any information obtained will be used for that purpose.