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Filing #58553958 E- Filed 07/03/2017 01:04:38 PM
IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT
IN AND FOR HILLSBOROUGH COUNTY FLORIDA
GREENTREE SERVICING, LLC,
Plaintiff,
Vv. CASE NO.: 2010-CA-023642
Division: M-I
GEORGE MCKELVIN, III, JACQUELYN .
MCKELVIN, HUNTERS GREEN COMMUNITY
ASSOCIATION, INC., ET AL,
Defendants.
/
MOTION FOR SANCTIONS PURSUANT TO FLA. STAT. § 57.105
COME NOW, Defendants, GEORGE & JACQUELYN MCKELVIN, nominally only for
use and benefit of MDTR, LLC, as Trustee, real party in interest and owner of the subject property,
by and through undersigned counsel, and files this Motion for Sanctions pursuant to Fla. Stat. §
57.105 against Plaintiff, and as grounds therefore would show as follows:
1 MDTR, LLC purchased the subject property by way of a bankruptcy trustee’s Deed,
which included an assignment of all rights of GEORGE & JACQUELYN MCKELVIN to defend
the instant cause of action.' Such a sale is specifically sanctioned by the bankruptcy Court. The
bankruptcy Court had the authority to sell the subject property and to assign all rights to defend
the action. See, In Re. Failla, 838 F.3d 1170 (USCA 11" Cir. 2016)? The undersigned counsel is
* Specifically, the language contained within the Deed, which is of public record, and which Defendant has attached
to their Request for Judicial Notice dated October 6, 2016, states as follows: “.. . does hereby assign unto Grantee
any defense available to Grantor, debtor or to the debtor’s bankruptcy estate as. against any other entity other than the
estate, including statutes of limitation, statutes of fraud, usury, standing, negotiability, conditions precedent
to
foreclosure and all other personal defenses. The intent of the Grantor shall include the rights of the Grantor with
respect to any rights the Grantor has. A waiver of such defense by the Grantor, debtor or by the estate after the date
of this Trustee’s Deed does not bind the Grantee or its successors or assigns.”
? Contrast this holding with /n. Re Larkin, 468 BR 431 (2012), where a Bankruptcy Trustee did not have the authority
to dispose of a borrower’s right to defend a foreclosure action. The key difference between the two cases is the fact
that In Re Larkin, borrowers did not surrender the property and the right to defend the subject property to the
bankruptcy trustee, whereas, in Fail/a the borrower surrendered all rights to the property. In the case before this Court,
.
7/3/2017 1:04 PM Electronically Filed: Hillsborough County/13thJ udicial Circuit Page 1
aware of no legal authority distinguishing the Failla case or in any other way limiting the federal
courts from assigning the right to defend a foreclosure action, nor any case law whereby state law
is to be given preference over federal law regarding the assignment of the tight to defend a
foreclosure action.
2 Florida law is clear that an entity who is not a party to an agreement cannot attack
the terms of that agreement. In this case, Greentree was not a party to the trustee’s Deed, and was
not a party to the assignment of the rights of the McKelvins. Greentree has no standing to
challenge the assignment of rights to defend the instant cause of action.
3 More correctly, Greentree cannot challenge the applicability of the assignment of
tights in a state court action. Such challenge is limited to the federal courts. See, In Re. MMH
.
Automotive Group, LLC, 385 B.R. 347 (U.S.B.C. Southern District, FL 2008). More accurately,
Greentree is aware that the state court is not the proper venue to challenge the assignment of rights,
as evidenced by the fact that they did challenge the transfer in federal Court (See, Request for
Judicial Notice dated October 6, 2016 attachment 2), and by Order of the Bankruptcy Court Judge
Catherine Peek McEwen on December 17, 2013; See, Request for Judicial Notice dated October
6, 2016 attachment 3), where the federal Court specifically rejected the same argument Greentree
is making before this Court.
the McKelvins surrendered their rights to the bankruptcy trustee, who in accord with
Failla, liquidated the asset by
selling it to MDTR, LLC. Based on the Fail/a holding, it is questioned whether the McKelvins
are even proper parties
to this action, as they hold no possession of the subject property, nor any rights in the subject property,
and have been
relieved of all duties with respect to the subj ject Note that is being enforced against the property. It seems contrary to
the purpose of the bankruptcy proceedings to give the borrowers a “fresh start,” and yet
subject these people who
complied with all bankruptcy requirements to a possible foreclosure judgment reported
on their credit years after their
surrender.
7/3/2017 1:04 PM Electronically Filed: Hillsborough County/13thJ udicial Circuit Page 2
4 Greentree’s actions in running from court to court with the same argument is
disrespectful to the judicial system in general, as it is nothing more than forum shopping at its
worst.
5 The fact that Greentree is raising the same tired argument with this Court as they
did in bankruptcy Court is made worse by the fact that they have accompanied this effort with an
attempt to sanction the undersigned counsel pursuant to § 57.105, Fla. Stat.
.
6 The fact that Greentree knows the right method of contesting the trustee’s
assignment of defenses in this action, availed themselves to that procedure, failed in their attempt,
then brought the same tired argument to this Court, and attempted to sanction a good standing
member of the Florida Bar for simply asserting legal defenses - - the standing to maintain and
defend this cause of action by virtue of a federal bankruptcy court’s trustee’s Deed and assignment
- - warrants the imposition of sanctions against Greentree.
7 Plaintiff has filed, and Defendant demands the withdraw of, a Flat. Stat. § 57.105
Motion for Sanctions against Defendant, where Plaintiff knows or should know that their position
is not supported by law or fact, but rather is intentionally attempting to alter the facts in this case
to support a legal argument, after attempting to seek redress in federal Court.
8. Defendant will serve this motion on Plaintiff, but will not file same until such time
as the 21-day period has elapsed such that Plaintiff may withdraw their Motion for Sanctions.
WHEREFORE, Defendant requests this Honorable Court enter an Order granting sanctions
against Plaintiff and Plaintiff's counsel pursuant to Fla. Stat. § 57.105, and granting any such
further relief this Court deems just and proper under the circumstances.
7/3/2017 1:04 PM Electronically Filed: Hillsborough County/13thJ udicial Circuit Page 3
CERTIFICATE OF SERVICE
THEREBY CERTIFY that a true and correct copy of the foregoing has been forwarded via
electronic mail this @ day of June 2017 to the following: Andrea Tromberg, Esquire
(eservice@gladstonelawgroup.com); (algomez@morsegomez.com);
(dessa. willson@consuegralaw.com); (eservice@clegalgroup.co
GREGORY K. MAI ER, ESQ
Florida Bar no.: 08: 84
The Law Office of egory K. Mausser P.A.
5224 West State Road 46, PMB 343
Sanford, Florida 32771
Telephone: (407) 330-9976
Primary: gkm@mausserlaw.com
7/3/2017 1:04 PM Electronically Filed: Hillsborough County/13thJ udicial Circuit Page 4
Preview
Filing #58553958 E- Filed 07/03/2017 01:04:38 PM IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY FLORIDA GREENTREE SERVICING, LLC, Plaintiff, Vv. CASE NO.: 2010-CA-023642 Division: M-I GEORGE MCKELVIN, III, JACQUELYN . MCKELVIN, HUNTERS GREEN COMMUNITY ASSOCIATION, INC., ET AL, Defendants. / MOTION FOR SANCTIONS PURSUANT TO FLA. STAT. § 57.105 COME NOW, Defendants, GEORGE & JACQUELYN MCKELVIN, nominally only for use and benefit of MDTR, LLC, as Trustee, real party in interest and owner of the subject property, by and through undersigned counsel, and files this Motion for Sanctions pursuant to Fla. Stat. § 57.105 against Plaintiff, and as grounds therefore would show as follows: 1 MDTR, LLC purchased the subject property by way of a bankruptcy trustee’s Deed, which included an assignment of all rights of GEORGE & JACQUELYN MCKELVIN to defend the instant cause of action.' Such a sale is specifically sanctioned by the bankruptcy Court. The bankruptcy Court had the authority to sell the subject property and to assign all rights to defend the action. See, In Re. Failla, 838 F.3d 1170 (USCA 11" Cir. 2016)? The undersigned counsel is * Specifically, the language contained within the Deed, which is of public record, and which Defendant has attached to their Request for Judicial Notice dated October 6, 2016, states as follows: “.. . does hereby assign unto Grantee any defense available to Grantor, debtor or to the debtor’s bankruptcy estate as. against any other entity other than the estate, including statutes of limitation, statutes of fraud, usury, standing, negotiability, conditions precedent to foreclosure and all other personal defenses. The intent of the Grantor shall include the rights of the Grantor with respect to any rights the Grantor has. A waiver of such defense by the Grantor, debtor or by the estate after the date of this Trustee’s Deed does not bind the Grantee or its successors or assigns.” ? Contrast this holding with /n. Re Larkin, 468 BR 431 (2012), where a Bankruptcy Trustee did not have the authority to dispose of a borrower’s right to defend a foreclosure action. The key difference between the two cases is the fact that In Re Larkin, borrowers did not surrender the property and the right to defend the subject property to the bankruptcy trustee, whereas, in Fail/a the borrower surrendered all rights to the property. In the case before this Court, . 7/3/2017 1:04 PM Electronically Filed: Hillsborough County/13thJ udicial Circuit Page 1 aware of no legal authority distinguishing the Failla case or in any other way limiting the federal courts from assigning the right to defend a foreclosure action, nor any case law whereby state law is to be given preference over federal law regarding the assignment of the tight to defend a foreclosure action. 2 Florida law is clear that an entity who is not a party to an agreement cannot attack the terms of that agreement. In this case, Greentree was not a party to the trustee’s Deed, and was not a party to the assignment of the rights of the McKelvins. Greentree has no standing to challenge the assignment of rights to defend the instant cause of action. 3 More correctly, Greentree cannot challenge the applicability of the assignment of tights in a state court action. Such challenge is limited to the federal courts. See, In Re. MMH . Automotive Group, LLC, 385 B.R. 347 (U.S.B.C. Southern District, FL 2008). More accurately, Greentree is aware that the state court is not the proper venue to challenge the assignment of rights, as evidenced by the fact that they did challenge the transfer in federal Court (See, Request for Judicial Notice dated October 6, 2016 attachment 2), and by Order of the Bankruptcy Court Judge Catherine Peek McEwen on December 17, 2013; See, Request for Judicial Notice dated October 6, 2016 attachment 3), where the federal Court specifically rejected the same argument Greentree is making before this Court. the McKelvins surrendered their rights to the bankruptcy trustee, who in accord with Failla, liquidated the asset by selling it to MDTR, LLC. Based on the Fail/a holding, it is questioned whether the McKelvins are even proper parties to this action, as they hold no possession of the subject property, nor any rights in the subject property, and have been relieved of all duties with respect to the subj ject Note that is being enforced against the property. It seems contrary to the purpose of the bankruptcy proceedings to give the borrowers a “fresh start,” and yet subject these people who complied with all bankruptcy requirements to a possible foreclosure judgment reported on their credit years after their surrender. 7/3/2017 1:04 PM Electronically Filed: Hillsborough County/13thJ udicial Circuit Page 2 4 Greentree’s actions in running from court to court with the same argument is disrespectful to the judicial system in general, as it is nothing more than forum shopping at its worst. 5 The fact that Greentree is raising the same tired argument with this Court as they did in bankruptcy Court is made worse by the fact that they have accompanied this effort with an attempt to sanction the undersigned counsel pursuant to § 57.105, Fla. Stat. . 6 The fact that Greentree knows the right method of contesting the trustee’s assignment of defenses in this action, availed themselves to that procedure, failed in their attempt, then brought the same tired argument to this Court, and attempted to sanction a good standing member of the Florida Bar for simply asserting legal defenses - - the standing to maintain and defend this cause of action by virtue of a federal bankruptcy court’s trustee’s Deed and assignment - - warrants the imposition of sanctions against Greentree. 7 Plaintiff has filed, and Defendant demands the withdraw of, a Flat. Stat. § 57.105 Motion for Sanctions against Defendant, where Plaintiff knows or should know that their position is not supported by law or fact, but rather is intentionally attempting to alter the facts in this case to support a legal argument, after attempting to seek redress in federal Court. 8. Defendant will serve this motion on Plaintiff, but will not file same until such time as the 21-day period has elapsed such that Plaintiff may withdraw their Motion for Sanctions. WHEREFORE, Defendant requests this Honorable Court enter an Order granting sanctions against Plaintiff and Plaintiff's counsel pursuant to Fla. Stat. § 57.105, and granting any such further relief this Court deems just and proper under the circumstances. 7/3/2017 1:04 PM Electronically Filed: Hillsborough County/13thJ udicial Circuit Page 3 CERTIFICATE OF SERVICE THEREBY CERTIFY that a true and correct copy of the foregoing has been forwarded via electronic mail this @ day of June 2017 to the following: Andrea Tromberg, Esquire (eservice@gladstonelawgroup.com); (algomez@morsegomez.com); (dessa. willson@consuegralaw.com); (eservice@clegalgroup.co GREGORY K. MAI ER, ESQ Florida Bar no.: 08: 84 The Law Office of egory K. Mausser P.A. 5224 West State Road 46, PMB 343 Sanford, Florida 32771 Telephone: (407) 330-9976 Primary: gkm@mausserlaw.com 7/3/2017 1:04 PM Electronically Filed: Hillsborough County/13thJ udicial Circuit Page 4