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IN THE CIRCUIT COURT O) W WHH EE ' 9TH JUDICDVL
CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASENO: 2008-CA-O 10850-O
HSBC BANK USA, NA AS TRUSTEE FOR
NOMURA ASSET ACCEPTANCE
CORPORATION, MORTGAGE PASS-
THROUGH CERTIFICATES, SERIES 2006-AR2
PLAINTIFF
VS.
ANA CRISTINA NAVAS; UNKNOWN
SPOUSE OF ANA CRISTINA NAVAS EF ANY;
ANY AND ALL UNKNOWN PARTIES
CLAIMING BY, THROUGH, UNDER, AND
AGAINST THE HEREIN NAMED
INDIVIDUAL DEFENDANT(S) WHO ARE
NOT KNOWN TO BE DEAD OR ALIVE, CDrr-;
WHETHER SAID UNKNOWN PARTIES MAY 5?:^- ^ iso
CLAIM AN INTEREST AS SPOUSES, HEIRS, '
DEVISEES, GRANTEES OR OTHER r-Z^y ^ '
CLAIMANTS; CENTRAL PARK LV
CONDOMINIUM ASSOCLATION, INC.;
SUNTRUST BANK; JOHN DOE AND JANE
DOE AS UNKNOWN TENANTS IN
POSSESSION,
DRFENDANT(S')
MOTION FOR SUMMARY FINAL JUDGMENT OF FORECLOSURE
AND TAXATION OF ATTORNEY'S FEES AND COSTS
Plamtiff, HSBC BANK USA, NA AS TRUSTEE FOR NOMURA ASSET ACCEPTANCE
CORPORATION, MORTGAGE PASS-THROUGH CERTEFICATES, SERIES 2006-AR2, files this Motion
and states:
1. This Motion for Summary Final Judgment of Foreclosure is filed pursuant to Rule 1.510, Florida Rules of
Civil Procedure. The particular grounds upon which the Plaintiffs Motion for Summary Final Judgment is
based are set forth below.
2. Plaintiff filed a Complaint to Foreclose the Mortgage on real property located in Orange County, Florida.
The legal description ofthe property is set forth in the mortgage attached to the Complaint.
3. The Promissory Note (Mortgage Note) held by the Plaintiffhas not been paid, and the Mortgage securing
said note are in default.The Plaintiffs Mortgage constitutes a valid lien on the property which is superior
to any right, title interest or claim of all said defendants and all persons or entities claiming by, through, or
under them.
4. There is a default tmder the terms and conditions ofthe Note and Mortgage. The entire indebtedness has
been accelerated and is immediately due and payable (see Plaintiffs Affidavit in Support of Motion for
Summary Judgment, attached hereto as Exhibit "A"). Moreover, Plaintiff is entitled to recover its principal,
interest, late charges, costs, attomey's fees and other expenses (see Affidavit
of Costs, attached hereto as
Exhibit "B"; Affidavit ofPlaintiffs Counsel as to Attomey's Fees, attached hereto as Exhibit "C; and
Affidavit in Support ofPlaintiffs Attoraey's Time, attached hereto as Exhibit "D").
5. The Obligor(s) have made no valid tender ofpayment ofthe Mortgage Note and Mortgage and have not
reinstated the Mortgage Note and Mortgage.
6. Because of the above grounds. Plaintiff is entitled to a Summary Final Judgment as a matter of law.
a. The interest ofthe owner of record for the property described herein is inferior and subordinate to the
interest ofthe Plaintiff Jordan v. Savre, 24 Fla. 1, 3 So. 329 (1888).
b. Plaintiffs lien takes priority over any subsequent claims or liens attaching to the property through the
Mortgagors, their successors, assigns and tenants Lee v. Slemons. 112 Fla. 675, 150 So. 792 (1933);
Bullard v. Fender. 140 Fla. 448, 192 So. 167 (Fla. 1939); ahd Countv of Pinellas v. Clearwater Fed. Sav. &
L. Ass'n. 214 So. 2d 525 (Fla. 2d DCA 1968).
c As a matter of law, the J ^ ^ e
indebtedness sectired by the Mortgage held b;^Riiitiff is due ahd collectable.
Van Huss v. Pradential Ins. Co.. 123 Fla. 20, 165 So. 896 (1936); and Baader v. Walker. 153 So. 2d 51
(Fla. 2d DCA 1963), cert, denied, 156 So. 2d 858 (Fla. 1963).
d. As a matter oflaw, no valid tender ofpayment ofthe Mortgage Note and Mortgage has been made by ahy
Defendant or person otherwise obligated to make payments. Chandler v. Wright 16 Fla. 510 (1878); and
Jacobs V. Automotive Repair Center. 137 So. 2d 263, (Fla. 1st DCA 1962).
e. As a matter of law, the Mortgage Note is valid and is not usurious. See Fla. Stat. Section 665.007 (formeriy
Fla Stat. Section 665.394); see also Fla. Stat. Section 687.12.
f As a matter of law and pursuant to the Mortgage securing the Mortgage Note, Plainttff is entitled to collect
costs and attoraey's fees incident to the collection of indebtedness and any sutiis advanced to prevent the
impairment ofits security. Ritch v. Eichelberger. 13 Fla. 169 (1869-71); American Securities Co. v.
Goldsberrv. 69 Fla. 104, 67 So. 862 (1915); and Raskin v. Often. 273 So. 2d 433 (Fla. 3d DCA 1973).
g. The provisions ofthe Note and Mortgage being sued upon in this action confer upon Plaintiffthe right tb
accelerate all sums due thereunder upon default of those Defendants who hold title to the subject property
and/or are otherwise obligated to pay the required monthly installments.Campbell v. Weraer. 232 So. 2d
252, (Fla. 3d DCA 1970).
7. The pleadings and admissions together with the Affidavits attached hereto ahd those which may be filed
hereinafter, along with any and all depositions which may be hereinafter taken, ifany, show that there are
no genuine issues as to any material facts.Accordingly, Plaintiffis entitled to Simmiary Final Judgment of
Foreclosure as a matter oflaw upon its claim.
8. The pleadings and exhibits filed herein as well as Plaintiffs Affidavitin support hereof, establish that
Plaintiffs Mortgage was recorded prior to the recording ofthe instraments creating the lien in favor of those
Defendant(s) who claim an interest in the real property encumbered by the Mortgage. Therefore, any such
interest which may be vested in the aforesaid defendants is subordinate and inferior to the lienofthe
PlaintiffsMortgage. United States v. First Fed. Sav. & L. Ass'a 155 So. 2d 192 (Fla. 2d DCA 1963).
WHEREFORE, Plaintiff moves the CoUrt to enter Summary Final Judginent for the Plaintiff.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a trae and correct copy ofthe foregoing Motion for Sunmiary Judgment, along
with supporting affidavits attached as exhibits, was mailed this 2Zj- day of January, 2009 to the following:
ANA CRISTINA NAVAS
UNKNOWN SPOUSE OF ANA CRISTINA NAVAS
2236 THREE RIVERS DR
ORLANDO, FL 32828
CENTRAL PARK LV CONDOMINIUM ASSOCLATION, INC.
C/O VICKIE MENIFEE
9101 LEEVISTABLVD
ORLANDO, FL 32829
SUNTRUST BANK
ATTN: NILSA HERNANDEZ
200 S. ORANGE AVE
ORLANDO, FL 32801
UNKNOWN TENANTS
9093 LEEVISTA BLVD, #910
ORLANDO, FL 32829
s/MIRLAM MENDIETA
Miriam Mendieta
Bar Number: 0866880
Attomey for Plaintiff
Law Offices of David J. Stem, P.A
900 South Pine Island Road #400
Plantation, Florida 33324-3920
(954) 233-8000
08-49132 (ASCF) Email: OrangeECF@dstem.com
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IN THE CIRCUIT COURT O) W WHH EE ' 9TH JUDICDVL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA GENERAL JURISDICTION DIVISION CASENO: 2008-CA-O 10850-O HSBC BANK USA, NA AS TRUSTEE FOR NOMURA ASSET ACCEPTANCE CORPORATION, MORTGAGE PASS- THROUGH CERTIFICATES, SERIES 2006-AR2 PLAINTIFF VS. ANA CRISTINA NAVAS; UNKNOWN SPOUSE OF ANA CRISTINA NAVAS EF ANY; ANY AND ALL UNKNOWN PARTIES CLAIMING BY, THROUGH, UNDER, AND AGAINST THE HEREIN NAMED INDIVIDUAL DEFENDANT(S) WHO ARE NOT KNOWN TO BE DEAD OR ALIVE, CDrr-; WHETHER SAID UNKNOWN PARTIES MAY 5?:^- ^ iso CLAIM AN INTEREST AS SPOUSES, HEIRS, ' DEVISEES, GRANTEES OR OTHER r-Z^y ^ ' CLAIMANTS; CENTRAL PARK LV CONDOMINIUM ASSOCLATION, INC.; SUNTRUST BANK; JOHN DOE AND JANE DOE AS UNKNOWN TENANTS IN POSSESSION, DRFENDANT(S') MOTION FOR SUMMARY FINAL JUDGMENT OF FORECLOSURE AND TAXATION OF ATTORNEY'S FEES AND COSTS Plamtiff, HSBC BANK USA, NA AS TRUSTEE FOR NOMURA ASSET ACCEPTANCE CORPORATION, MORTGAGE PASS-THROUGH CERTEFICATES, SERIES 2006-AR2, files this Motion and states: 1. This Motion for Summary Final Judgment of Foreclosure is filed pursuant to Rule 1.510, Florida Rules of Civil Procedure. The particular grounds upon which the Plaintiffs Motion for Summary Final Judgment is based are set forth below. 2. Plaintiff filed a Complaint to Foreclose the Mortgage on real property located in Orange County, Florida. The legal description ofthe property is set forth in the mortgage attached to the Complaint. 3. The Promissory Note (Mortgage Note) held by the Plaintiffhas not been paid, and the Mortgage securing said note are in default.The Plaintiffs Mortgage constitutes a valid lien on the property which is superior to any right, title interest or claim of all said defendants and all persons or entities claiming by, through, or under them. 4. There is a default tmder the terms and conditions ofthe Note and Mortgage. The entire indebtedness has been accelerated and is immediately due and payable (see Plaintiffs Affidavit in Support of Motion for Summary Judgment, attached hereto as Exhibit "A"). Moreover, Plaintiff is entitled to recover its principal, interest, late charges, costs, attomey's fees and other expenses (see Affidavit of Costs, attached hereto as Exhibit "B"; Affidavit ofPlaintiffs Counsel as to Attomey's Fees, attached hereto as Exhibit "C; and Affidavit in Support ofPlaintiffs Attoraey's Time, attached hereto as Exhibit "D"). 5. The Obligor(s) have made no valid tender ofpayment ofthe Mortgage Note and Mortgage and have not reinstated the Mortgage Note and Mortgage. 6. Because of the above grounds. Plaintiff is entitled to a Summary Final Judgment as a matter of law. a. The interest ofthe owner of record for the property described herein is inferior and subordinate to the interest ofthe Plaintiff Jordan v. Savre, 24 Fla. 1, 3 So. 329 (1888). b. Plaintiffs lien takes priority over any subsequent claims or liens attaching to the property through the Mortgagors, their successors, assigns and tenants Lee v. Slemons. 112 Fla. 675, 150 So. 792 (1933); Bullard v. Fender. 140 Fla. 448, 192 So. 167 (Fla. 1939); ahd Countv of Pinellas v. Clearwater Fed. Sav. & L. Ass'n. 214 So. 2d 525 (Fla. 2d DCA 1968). c As a matter of law, the J ^ ^ e indebtedness sectired by the Mortgage held b;^Riiitiff is due ahd collectable. Van Huss v. Pradential Ins. Co.. 123 Fla. 20, 165 So. 896 (1936); and Baader v. Walker. 153 So. 2d 51 (Fla. 2d DCA 1963), cert, denied, 156 So. 2d 858 (Fla. 1963). d. As a matter oflaw, no valid tender ofpayment ofthe Mortgage Note and Mortgage has been made by ahy Defendant or person otherwise obligated to make payments. Chandler v. Wright 16 Fla. 510 (1878); and Jacobs V. Automotive Repair Center. 137 So. 2d 263, (Fla. 1st DCA 1962). e. As a matter of law, the Mortgage Note is valid and is not usurious. See Fla. Stat. Section 665.007 (formeriy Fla Stat. Section 665.394); see also Fla. Stat. Section 687.12. f As a matter of law and pursuant to the Mortgage securing the Mortgage Note, Plainttff is entitled to collect costs and attoraey's fees incident to the collection of indebtedness and any sutiis advanced to prevent the impairment ofits security. Ritch v. Eichelberger. 13 Fla. 169 (1869-71); American Securities Co. v. Goldsberrv. 69 Fla. 104, 67 So. 862 (1915); and Raskin v. Often. 273 So. 2d 433 (Fla. 3d DCA 1973). g. The provisions ofthe Note and Mortgage being sued upon in this action confer upon Plaintiffthe right tb accelerate all sums due thereunder upon default of those Defendants who hold title to the subject property and/or are otherwise obligated to pay the required monthly installments.Campbell v. Weraer. 232 So. 2d 252, (Fla. 3d DCA 1970). 7. The pleadings and admissions together with the Affidavits attached hereto ahd those which may be filed hereinafter, along with any and all depositions which may be hereinafter taken, ifany, show that there are no genuine issues as to any material facts.Accordingly, Plaintiffis entitled to Simmiary Final Judgment of Foreclosure as a matter oflaw upon its claim. 8. The pleadings and exhibits filed herein as well as Plaintiffs Affidavitin support hereof, establish that Plaintiffs Mortgage was recorded prior to the recording ofthe instraments creating the lien in favor of those Defendant(s) who claim an interest in the real property encumbered by the Mortgage. Therefore, any such interest which may be vested in the aforesaid defendants is subordinate and inferior to the lienofthe PlaintiffsMortgage. United States v. First Fed. Sav. & L. Ass'a 155 So. 2d 192 (Fla. 2d DCA 1963). WHEREFORE, Plaintiff moves the CoUrt to enter Summary Final Judginent for the Plaintiff. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a trae and correct copy ofthe foregoing Motion for Sunmiary Judgment, along with supporting affidavits attached as exhibits, was mailed this 2Zj- day of January, 2009 to the following: ANA CRISTINA NAVAS UNKNOWN SPOUSE OF ANA CRISTINA NAVAS 2236 THREE RIVERS DR ORLANDO, FL 32828 CENTRAL PARK LV CONDOMINIUM ASSOCLATION, INC. C/O VICKIE MENIFEE 9101 LEEVISTABLVD ORLANDO, FL 32829 SUNTRUST BANK ATTN: NILSA HERNANDEZ 200 S. ORANGE AVE ORLANDO, FL 32801 UNKNOWN TENANTS 9093 LEEVISTA BLVD, #910 ORLANDO, FL 32829 s/MIRLAM MENDIETA Miriam Mendieta Bar Number: 0866880 Attomey for Plaintiff Law Offices of David J. Stem, P.A 900 South Pine Island Road #400 Plantation, Florida 33324-3920 (954) 233-8000 08-49132 (ASCF) Email: OrangeECF@dstem.com