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Filing # 70520836 E-Filed 04/10/2018 04:55:57 PM
IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
CIVIL DIVISION
FLORIDA OPPORTUNITY REAL
ESTATE INVESTMENT, LLC, CASE NO: 17000587CA
Plaintiff,
vs.
WILFREDO MILAN; LISSETTE
REIGOSA, et al.,
Defendant(s).
MOTION FOR SUMMARY FINAL JUDGMENT
AND ATTORNEY’S FEES
Plaintiff, FLORIDA OPPORTUNITY REAL ESTATE INVESTMENT, LLC
(hereinafter referred to as “Plaintiff’) its successors and assigns by and through its undersigned
counsel, moves this Court, pursuant to Florida Rule of Civil Procedure 1.510, to enter Summary
Final Judgment against each of the Defendants in the above-styled action. There exists no
genuine issue as to any material fact and Plaintiff is entitled to judgment as a matter of law based
on the pleadings and affidavits filed in this action.
1. Plaintiff submits the following documentary evidence in support of its Motion for
Summary Final Judgment:
a.) Any and Plaintiff's Affidavit Supporting Plaintiff's Motion for Summary Final
Judgment, filed on or about April 10, 2018;
b.) Any and Affidavits relating to time and costs filed, including, but not limited to
Affidavit of Costs, filed on or about April 10, 2018, and Affidavit of Attorney’s Fees, filed on or
about April 10, 2018;
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MTN FOR SUMMARY JDMT Page 1 of 22c.) Any and all Affidavits as to Reasonable Attorney’s Fees, to be filed under
separate cover;
d.) Plaintiff's Answers and Objections to interrogatories served on October 30, 2017,
and attached hereto as Exhibit “A”;
e) Plaintiff's Request for Judicial Notice of Bankruptcy, filed on or about April 9,
2018, and Request for Judicial Notice attached hereto as Exhibit “B”;
f.) Notice of Filing Original Note, Original Allonges, and Original Mortgage filed on
or about April 9, 2018.
2. FORECLOSURE: This is an action by Plaintiff, to foreclose the mortgage on
real property situated in COLUMBIA County, Florida.
3. STANDING: Plaintiff is the owner and holder of the note and mortgage with
authority to pursue the present action.
4. DEFAULT: The Note is due for July 1, 2012, and all subsequent payments,
which has resulted in a default of the Note and Mortgage.
5. PROPERTY: The legal description of the subject property is set forth in the Lis
Pendens filed with the Complaint.
6. SERVICE: All Defendants have been served with notice of this action.
7. LIEN: Plaintiffs mortgage constitutes a valid lien on the subject property and is
superior to any right, title, interest or claim of all Defendants and all persons or entities claiming
by, through or under them.
8. MEMORANDUM OF LAW: The substantial matters of law upon which the
motion is based are as follows:
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MTN FOR SUMMARY JDMT Page 2 of 22a. A mortgage is presumed to have been validly executed and delivered on the date
recited in the mortgage if the mortgage is proven of record and recorded according to the law.
Atlantic Land and Improvement Company v. Lee, 112 So. 549, 550 (Fla. 1927).
b. Where a note secured by a mortgage is transferred without any formal assignment
of the mortgage, the mortgage in equity passes as an incident to the debt, unless there is some
plain and clear agreement to the contrary. Johns y. Gillian, 184 So. 140 (Fla. 1938). “A mere
delivery of a note and mortgage, with intention to pass the title, upon a proper consideration, will
vest the equitable interest in the person to whom it is so delivered.” Jd., at 143. “Because the
lien follows the debt, there was no requirement of attachment of a written and recorded
assignment of the mortgage in order for the appellant to maintain the foreclosure action.”
Chemical Residential Mortgage v. Rector, 742 So, 2d 300 (Fla. 1st DCA, 1998), rev. denied 727
So.2d 910 (1999). To foreclose upon a promissory note, the plaintiff must be the “holder” in
order to be the real party in interest. Troupe v. Redner, 652 So.2d 394 (Fla. 2d DCA, 1995),
citing Withers v. Sandlin, 36 Fla. 619, 18 So. 856 (1896); Laing v. Gainey Builders, Inc., 184 So.
2d 897 (Fla. 1st DCA, 1966). The “holder”, with respect to a negotiable instrument, means the
person in possession of the instrument is payable to bearer or, in the case of an instrument
payable to an identified
person, if the identified person is in possession. § 671.201(20), Fla. Stat. (2002). “Bearer”
means the person in possession of an instrument, document of title, or certificated security
payable to bearer or indorsed in blank. § 671.201(5), Fla. Stat. (2002).
c. In the event a formal assignment is delivered to Plaintiff, Florida Law has
established that the “effective date” is the date of transfer of interest in the mortgage as opposed
TS# 17-029998 CASE NO. 17000587CA.
MTN FOR SUMMARY JDMT Page 3 of 22to the date the assignment document was executed. WM Specialty Mortgage, LLC y. Salomon,
874 So.2d 680 (Fla. 4th DCA, 2004), citing Johns v. Gillian, 184 So. 140, 143 (Fla. 1938).
d. The interest of the owner of record in the property described herein is inferior and
subordinate to the interest of the Plaintiff, the mortgagee. Jordan v. Sayre, 3 So. 329 (Fla. 1888).
e The owner and holder of a valid recorded mortgage encumbering real property
has a lien superior in dignity and right to any subsequently recorded mortgage, claim or lien
attaching to the property through the mortgagors, their successors, assigns and tenants. Lee v.
Slemons, 150 So. 792, 794 (Fla. 1933); Bullard v. Fender, 192 So. 167, 171 (Fla. 1939); County
of Pinellas y. Clearwater Federal Savings and Loan Association, 214 So.2d 525, 526 (Fla. 2d
DCA 1968). Therefore, the lien of Plaintiff's mortgage takes priority over the subsequently
recorded claims or liens of the Defendants in this action. United States v. First Federal Savings
and Loan Association of St. Petersburg, 155 So.2d 192, 193 (Fla. 2d DCA 1963).
f. As a matter of law, the entire indebtedness secured by the mortgage held by
Plaintiff is due and collectible. Van Huss v. Prudential Insurance Company of America, 165 So.
896 (Fla. 1936); Baader v. Walker, 153 So.2d 51, 54 (Fla. 2d DCA 1963).
g. As to any Defendant that is a Homeowners Association as defined under Florida
Statute §720.301, said Defendant’s interest is fully forecloseable as a matter of law. Florida
Statute §720.3085 does not prevent foreclosure of any past due assessments claims of a
Defendant Home Owners Association, as Plaintiff's rights are determined by the Homeowner’s
Association’s Declaration of Covenants. Florida Statute §720.3085, does not retroactively apply
to mortgages or assessments recorded
prior to its enactment. To the contrary, the §720.3085(1) specifically states that the
Association’s assessments are inferior to the Plaintiff. Any application of the statute to the
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MTN FOR SUMMARY JDMT Page 4 of 22contrary is unconstitutional. Sarasota County v. Andrews, et. al., 573 So.2d 113 (Fla. 2d DCA,
1991); Silver Blue Lake Apartments, Inc. v. Silver Blue Lake Home Owners Association, Inc.,
245 So.2d 609, 611 (Fla. 1971); Palm Point Property Owners’ Association v. Pisarksi, 626 So.2d
195 (Fla. 1993); Holly Lake Association v. Federal National Mortgage Association, 660 So.2d
266, 269 (Fla. 1995); Park Benziger & Co., Inc. v. Southern Wine & Spirits, Inc., 391 So.2d 681,
683 (Fla. 1980); David v. Sun Federal Savings & Loan Ass'n, 461 So.2d 93 (Fla. 1984);
Metropolitan Dade County y. Chase Federal Housing Corp., et. al., 737 So0.2d 494, 500 (Fla.
1999).
h. As to Defendants against whom a default has been entered, final judgment may be
entered by the Court at any time. Rule 1.500(e) Florida Rule of Civil Procedure.
i. This court must enter a summary final judgment of foreclosure where there exists
no genuine issue as to any material fact; this Court may, however, reserve jurisdiction to
determine the amount and priority of the claims. Mack Industries, Inc. v. Donald W. Nelson,
Inc., 134 So.2d 821 (Fla. 2d DCA 1961).
j. Where the note and mortgage so provide, a mortgagee is entitled to recover costs,
a reasonable fee for its attorneys in the prosecution of a foreclosure action, and any sums
advanced to prevent he impairment of its security. American Securities Co. v. Goldsberry, 67
So. 862, 866 (Fla. 1915).
k. Summary judgment may be entered whenever the pleadings, affidavits,
depositions, or other factual showings, reveal that there exists no genuine issue of material fact
and that movant is entitled to judgment as matter of law. Volusia County v. Aberdeen at Ormond
‘TS# 17-029998 CASE NO. 17000587CA
MTN FOR SUMMARY JDMT Page 5 of 22Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000); citing, Menendez v. Palms West Condominium
Ass'n, 736 So. 2d 58 (Fla. Ist DCA 1999), Manjrin v. Auto Owners Insurance Company, 805 So.
2d 973 (Fla. 2nd DCA 2001); Wills v. Sears Roebuck & Co., 351 So. 2d 29 (Fla. 1977).
1. Even though all reasonable inferences must be drawn in favor of the opposing
party, once the movant tenders competent evidence to support its motion, the opposing party
must come forward with counterevidence sufficient to reveal a genuine issue, and it is not
sufficient for opposing party merely to assert that an issue exists or to raise paper issues.
Johnson v. Gulf Insurance Co., 429 So. 2d 744 (Fla. 3d DCA 1983); landers v. Milton, 370 So.
2d 368 (Fla. 1979). The term "genuine issue" means a real, as distinguished from a false or
colorable issue. Harrison v. Consumers Mortg. Co., 154 So. 2d 194, 195 (Fla. Ist DCA 1963).
"Genuine issues" of "material fact" do not arise merely because the non-moving party disagrees
with the facts established by competent evidence submitted by the moving party nor merely
because the non-moving party would like the opportunity of having a jury pass upon such facts
and make an independent determination as to the correctness thereof. F & R Builders v, Lowell
Dunn, 364 So. 2d 826, 828 (Fla. 3d DCA 1978).
m. The substantive law that applies to a given case determines which facts are
material. Anderson v, Liberty Lobby, Inc. (1986), 477 U.S. 242. Therefore, only those factual
disputes which are supported by evidence and significant enough to affect the outcome of the
lawsuit will preclude the entry of summary judgment. Anderson, supra. Even construing the
evidence most strongly in favor of Defendants, Plaintiff is entitled to summary judgment as a
matter of law.
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MTN FOR SUMMARY JDMT. Page 6 of 22n. In order to secure the indebtedness arising under the promissory note dated April
4, 2005 the Defendants executed and delivered a mortgage to EquiFirst Corporation, which was
subsequently assigned to Plaintiff.
0. The subject mortgage is a valid lien against the property under §702.09, F.S.,
which provides that a mortgage is "any instrument securing the payment of money or advances".
p. The mortgage constitutes a lien prior and superior to any right, title, or interest of
any of the Defendants herein.
q. Plaintiff now owns and holds the note and mortgage and is entitled to enforce
same under Florida Statute §673.3011.
r The mortgage is and has been in default due to the failure of the Defendants to
make timely payments pursuant to the terms of the note and mortgage.
Ss. Plaintiff has satisfied all conditions precedent to bringing this action, including
sending a notice of default informing the Defendants of the default, what action is required to
cure the default, provided 30 days in which to cure the default, informed them of that failure to
cure the default may result in acceleration of the sums, foreclosure by judicial proceeding and
sale of the property. The notice of default also informed the Defendants of their right to reinstate
and the right to assert in the foreclosure proceeding the non-existence of a default or any other
defense to acceleration. Green Tree ‘Servicing v. Milam, 2015 WL 4549200 (Fla. 2nd DCA
2015), US. Bank National Association as Trustee, etc. v. Jose Busquets, 135 So.3d 488, Astoria
Federal Savings and Loan Association v. Kaufman, 2015 WL 2379672 (5th DCA 2015),
Federal National Mortgage Association v. Wenzel, 2015 WL 2379672 (Twelfth Judicial Circuit
Trial Order).
‘TSH 17-029998 CASE NO. 17000587CA
MTN FOR SUMMARY JDMT Page 7 of 22t. Defendants cannot establish prejudice as a result of any alleged non-compliance
with any contractual condition precedent. See Adie! Gorel, et al. vy. The Bank of New York
Mellon, etc, 5th DCA Appellate Case No. 5D13-3172; Yefim Vasilevskiy v. Wachovia Bank, N.A.
Sth DCA Appellate Case No, 5D13-3468.
u. Florida statute §559.715 does not constitute a statutory condition precedent. First,
there is nothing in §559.715 that indicates that the written notice is required as a condition
precedent to filing a foreclosure action. Certainly, if the Legislature intended this provision to
operate as a condition precedent to a foreclosure action, it could have drafted language indicating
this intention, as it has done in other statutory provisions. Moreover, filing a foreclosure lawsuit
is not a "debt collection practice under §559.72 of the FCCPA." See Trent v. MERS, 618
F.Supp.2d 1356 (MD Fla. 2007); Dyer v. Choice Legal Group PA, 2015 WL 3650925 (MD. Fla.
2015); Summerlin Asset Mgmt. V Trust v. Jackson, 2015 WL 4065372; Brindise v. United States
Bank N.A., 2016 Fla. App. LEXIS 653 (FLA. 2nd DCA 2016).
v. Additionally, Florida statute §559.715 does not provide for a private cause of
action. Ramos v. Cach, LLC, 2015 WL 9491850 (Sth DCA 2015). As such, §559.715 does not
constitute a legally valid defense. See First Specialty Insurance Corp. v. GRS Management
Associates, Inc., 2009 WL 2169869 (SD Fla. 2009)(finding that a regulatory statute that does not
create a private cause of action cannot form the basis for an affirmative defense.).
w. Even presuming that Florida statute §559.715 is a condition precedent or
affirmative defense, Plaintiff is still entitled to summary judgment as a matter of law, and further,
paragraph 20 of the mortgage states that the “Note or a partial interest in the Note (together with
this Security Instrument) can be sold one or more times without prior notice to Borrower.”
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MTN FOR SUMMARY JDMT Page 8 of 22x. The record owner of the property is the only indispensable party to a foreclosure
action. Davanzo v. Resolute Insurance Co., 346 So.2d 1227 (Fla. 3rd DCA 1977). The interest
of the owner is inferior and subordinate to the interest of the Plaintiff. Jordan v. Sayre, 3 So. 329
(1888). Defendants own the property subject to this suit. As such, all necessary parties have
been joined and properly served in this cause.
y. A lender has a legal right to foreclose on its security interest in a borrower's
property when the borrower fails to meet her obligations to the lender. Lunn Woods v. Lowery,
577 So. 2d 705, 707 (Fla. 2d DCA 1991). A lender may establish standing to foreclose on its
security instrument by presenting evidence that it is the holder of the note or a nonholder in
possession of the note with rights of the holder. Taylor v. Deutsche Bank National Trust
Company, 44 So.3d 618 (Fla. Sth DCA 2010). A lender's possession of the original promissory
note, endorsed into Plaintiff, is sufficient under the UCC to establish that it is the lawful holder
and entitled to enforce its terms as provided by Florida Statute §673.3011. Riggs v. Aurora Loan
Services, LLC, 36 So.3d 932 (Fla. 4th DCA 2010). In this case, Plaintiff is the current owner and
holder of the Note.
Z. The Defendants failed to satisfy their obligations under the security instruments.
In the Note, Defendant, Wilfredo Milan, promised, among other things, to repay the principal,
which was lent to him in good faith, in monthly payments, plus interest, beginning on June 1,
2005, and every first day of the month thereafter. Defendant agreed that, if he did not pay the
full amount of each payment on the date that it was due, or if he did not fulfill any of his other
promises under the Note or Mortgage, he would be in breach of his duties. He agreed that, if he
breached his duties Lender would be entitled to foreclose on the Property.
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MTN FOR SUMMARY JDMT Page 9 of 22aa. Borrower's failure to pay the monthly payments required by the Note entitles
Lender to a judgment of foreclosure. .See David v. Sun Fed. Savings & Loan Assoc., 461 So. 2d
93, 95 (Fla 1984) (finding that, "[i]t is well established in this state that an acceleration clause or
promise in a mortgage confers a contract right upon the note or mortgage holder which he may
elect to enforce upon default"). Defendants have not disputed the fact that they failed to make
payments as required by the terms of the Note and Mortgage. It is undisputed that Defendants
did not tender any monies to the Plaintiff in an attempt to cure the default, nor has ever attempted
to reinstate the loan. Instead, Defendants filed for bankruptcy protection, surrendered the
Property and received a discharge of their obligation. Accordingly, Plaintiff is entitled to a final
judgment of foreclosure as a matter of law.
bb. Plaintiff is entitled to collect its advances to protect the collateral, and its costs
and attorney's fees incident to collection. Raskin v. Otten, 273 So.2d 433 (Fla. 3rd DCA 1973).
The Note and Mortgage provide for payment by Defendants of Plaintiff's reasonable attorney's
fees and costs of court if suit is filed to foreclose the Mortgage. Plaintiff relies on the affidavits
on file as proof of its reasonable attorney's fees, and said affidavits are incorporated herein by
reference herein. It is undisputed that Plaintiff has been damaged by Defendants’ failure to
satisfy their obligations under the Note and Mortgage.
ce. Where a defendant's defenses are limited to one or more affirmative defenses and
there is no triable issue of fact as to any of them, or they are legally insufficient, the case is ripe
for summary judgment. Tippett v. Frank, 238 So.2d 671 (Fla. 3rd DCA 1970); Pavolini v.
Williams, 915 So.2d 251 (Fla. 5th DCA 2005). In this matter Defendants are judicially estopped
from impeding the foreclosure based on their representations, including their Stated Intentions,
and actions taken in the Bankruptcy Proceeding. See generally State of New Hampshire v.
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MTN FOR SUMMARY JDMT Page 10 of 22Maine, 532 U.S. 742, (2001), Blumberg v. USAA Casualty Insurance Company, 790 So. 2d 1061
(Fla. 2001), Keyes Company v. Bankers Real Estate Partners, Inc., 881 So. 2d (3rd DCA 2004);
see also Souza vy. Bank of America, 2013 WL 3457185 (D. Mass. 2013), Ibanez v. US. Bank
National Association, 856 F. Supp. 2d 273 (D. Mass. 2012); Jn re Plummer, 513 B.R. 135 (M.D.
Fla. 2014); In re Failla, 2014 WL 8663569 (S.D. 2014); Failla v. Citibank, 2015 WL 7422337
(S.D. Florida 2015); Jn Re: Kourogenis, 09-bk-32936-JKO; In re: Metzler and Patel, Case No.
8:12-bk-16792-MGW at EFC 59, 8:13-bk-09736-MGW; Jn re: Cecelia Guerra, Case No. 8:11-
bk-15663-MGW.
dd. "Judicial estoppel is an equitable doctrine that precludes a party from ‘asserting a
claim in a legal proceeding that is inconsistent with a claim taken by that party in a previous
proceeding.’ State of New Hampshire v. Maine, 532 U.S. 742, (2001); Barger v. City of
Cartersville, Ga., 348 F.3d 1289, 1293 (11th Cir. 2003) citing to Burnes v. Pemco Aeroplex,
Inc.,291 F.3d 1282, 1284 (11th Cir.2002); Blumberg v. USAA Casualty Insurance Company, 790
So. 2d 1061 (Fla. 2001), Keyes Company v. Bankers Real Estate Partners, Inc., 881 So. 2d 605
(rd DCA 2004). Judicial estoppel "protects the integrity of the judicial process and prevents
m
parties from 'making a mockery of justice." Blumberg v. USAA Casualty Insurance Company,
790 So.2d 1061 (Fla. 2001 ). The Court must invoke the equitable doctrine of judicial estoppel
in this matter because Defendants have and continue to actively defend the foreclosure
proceeding thereby contradicting their Stated Intentions and violating Section 521(a) of the
Bankruptcy Code by failing to "Surrender" the Property.
ee, While the term "surrender" is not defined by the Bankruptcy Code, the Courts
should look to their ordinary, dictionary definition. Jn re Plummer, 513 B.R. 135 (M.D. Fla.
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MTN FOR SUMMARY JDMT Page 11 of 222014) Numerous Federal Bankruptcy Courts and at least one Federal District Court in Florida
have defined 'surrender' to mean that a debtor cannot impede the creditor's efforts to take
possession of its collateral by available legal means. 513 B.R. at 143-44. (emphasis added), see
also In re Failla, 2014 WL 8663569 (S.D.BK 2014); Failla v. Citibank, 2015 WL 7422337 (S.D.
Florida 2015); In Re: Kourogenis, 09-bk-32936-JKO; In Re: Metzler and Patel, Case No 8:12-
bk-16792-MGW at EFC 59, 8:13-bk-09736-MGW; Jn re: Cecelia Guerra, Case No. 8:11-bk-
15663-MGW; In re: Carlos Lapeyre, Case No. 13-17069-RAM (Federal Bankruptcy Court
ordered the Debtors to withdraw affirmative defenses and withdraw counterclaim within 14
days.).
ff. Several federal courts have applied the doctrine of judicial estoppel when a party
surrenders a property in bankruptcy. In Souza v. Bank of America, 2013 WL 3457185 (D. Mass.
2013) and Ibanez v. US. Bank National Association, 856 F. Supp. 2d 273 (D. Mass. 2012), the
courts held that the doctrine of judicial estoppel bars the party from bringing claims in the
foreclosure process when the property is surrendered in bankruptcy. In Souza, the borrower
sued the lender alleging that the lender did not comply with statutory condition precedents,
lacked standing, violated the duty of good faith and reasonable diligence and was negligent when
it failed to adhere to HAMP guidelines. The lender filed a motion to dismiss arguing, in part,
that the borrower was judicially estopped from challenging the validity of the foreclosure
because she received a discharge of her debt and surrendered the property. The court agreed and
granted the lenders motion to dismiss the borrower's complaint.
gg. In Florida, a majority of the federal courts analyzing the issue of surrender in the
context of judicial foreclosures have implicitly applied the doctrine of judicial estoppel. In the
matter of Failla v. Citibank the District Court for the Southern District of Florida upheld the
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MTN FOR SUMMARY JDMT Page 12 of 22Bankruptcy Court's Order in Jn Re: Failla granting the creditor's motion and ordered the
borrower to cease and desist from taking any action to defend or oppose the foreclosure and sale
of the property. In Jn Re. Failla, the borrower executed a promissory note and mortgage with
the creditor, subsequently defaulted, and filed a Chapter 7 Voluntary Petition. As part of their
petition, the borrowers declared that they owned the property, that the property was encumbered
by the mortgage, that the mortgage was a valid lien, that the amount they owed exceeded the
value of the property, and they intended to surrender the property. /d. The borrowers received
an order of discharge on December 16, 2011. The Failla court specifically noted in its opinion
the borrowers continued possession of the property and opposition to the foreclosure matter for
more than three years. Jd. In its analysis the court explicitly rejected the debtor's definition of
surrender, i.e. that surrender does not include relinquishment to the mortgagee. /d. The Failla
court relying upon the Eleventh Circuit Appellate Court's interpretation, as well as other district
bankruptcy courts, held that "Debtors do not have an absolute 'right' to defend in a foreclosure
action because the Debtors explicitly admitted the validity of the debt and stated their
intention...to surrender the Property." /d.
bh. Federal law preempts state law, and the state Courts are bound to enforce federal
law and interpretation of federal law by the federal courts... The Bankruptcy Code was
created by Congress "to create a whole system under federal control which is designed to bring
together and adjust all of the rights and duties of creditors and embarrassed debtors alike." MSR
Exploration, Ltd. v. Meridian Oil, Inc. 74 F.3d 910, 914. Preemption exists so that parties cannot
"circumvent the remedial scheme of the [c]ode under which Congress struck a balance between
the interests of debtors and creditors." Walls v. Wells Fargo Bank, N.A. 276 F.3d 93, 96.
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MTN FOR SUMMARY JDMT Page 13 of 22ii, Similarly in this matter the Defendants, as required under §521(a) of the
Bankruptcy Code, specifically declared that: ( 1) they maintained an interest in the Property; (2)
the original plaintiff maintained a valid first mortgage on the Property that represents a non-
contingent, liquidated, and undisputed secured claim further, in the principal amount of
$126,000.00; (3) that the amount they owe on the Property exceeds the value of the Property; (4)
that Property was not exempt; and (5) Defendants intended to surrender the Property pursuant to
11 U.S.C, §521(a)(2)(A). The bankruptcy trustee and creditors relied upon the Defendants'
schedules in making decisions with regard to administration of claims and property of the estate.
The Defendants’ representations that the Property had no value to the estate and would be
tendered to the creditor(s) likely dissuaded the trustee from attempting to administer the Property
or object to any additional exemption claimed by Defendants. As a result of their declarations,
Defendants received the benefit of a Discharge. Despite the adjudication and discharge,
Defendants have taken active measures to impede the foreclosure process in an attempt to remain
in the Property indefinitely without recourse or risk relating to the Property's diminishing value.
Like Souza, Ibenez, and Fallia, Defendants do not have any rights to defend this action as their
claims are barred by the doctrine of judicial estoppel. Since Defendants’ claims are barred and
there are no triable issues of fact, Plaintiff is entitled to Judgment as a matter of law.
jj. Alternatively, there are no issues of material fact as to any affirmative
defenses raised by Defendants because (1) the defense is legally insufficient as a matter of
law, or (2) the evidence conclusively establishes that there are no issues of material fact
relating to the affirmative defenses to be tried.
1. Defendants allege in their first affirmative defense that the Plaintiff is barred by
the Statute of Limitations, because the accelerated balance in Plaintiff's Complaint includes
‘TS# 17-029998 CASE NO. 17000587CA
MTN FOR SUMMARY JDMT Page 14 of 22payments that were allegedly defaulted on more than five years to the filing of this action.
Defendants argue that Plaintiff should not be able to recover interest due beyond the five year
statute of limitations, including unpaid taxes, insurance premiums, accumulated charges,
inspections fees, etc. Plaintiff's Complaint, paragraph 15, properly included the unpaid principal
balance and aforementioned fees and costs, however, discovered a scrivener’s error regarding the
month (June 1, 2012) included in the sentence referencing “outstanding and accrued interest
from June 1, 2012...” Plaintiff inadvertently included the month of June 2012, when it should
have included the month of July 2012 (same as the default date). Nevertheless, not only will
Plaintiff not be seeking any fees or charges that accrued prior to July 2012, Plaintiff will not be
seeking any unpaid taxes, insurance premiums, accumulated charges, inspection fees (other than
attorney’s fees and costs related to the current action), as evidenced in the Affidavit Supporting
Plaintiff's Motion for Summary Final Judgment, filed with the court on or about April 9, 2018.
As such, Defendants’ first affirmative defense fails as a matter of law, entitling Plaintiff to entry
of summary final judgment.
2. Defendants allege in their second affirmative defense that Plaintiff has failed to
state a cause of action. Defendants believe that the current unpaid principal balance of the
subject note and mortgage, included in Plaintiff's Complaint, should not be identical to an
amount previously provided for, namely, within Defendants’ 2009 bankruptcy action. However,
Defendants are mistaken in that the unpaid principal balance can and shall remain the same if no
further payments have been applied to the balance since the original date of default. Plaintiff
shall not collect on intcrest, fees, and other related costs that incurred beyond the five year statute
of limitations, however, Plaintiff is entitled to collect on the unpaid principal balance due on the
note, which is not subject to change, regardless of prior actions brought forth regarding the same
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MTN FOR SUMMARY JDMT Page 15 of 22note and mortgage. “The court’s analysis in Singleton recognizes that a note securing a
mortgage creates liability for a total amount of principal and interest, and that the lender’s
acceptance of payments in installments does not eliminate the borrower’s ongoing liability for
the entire amount of the indebtedness.” Nationstar Mortgage, LLC v. Germaine R. Brown, 175
So.3d 833 (Fla. 1 DCA 2015). See also Singleton v. Greymar Associates, 882 So.2d 1004 (Fla.
2004). As such, Defendants’ second affirmative defense fails as a matter of law, entitling
Plaintiff to entry of summary final judgment.
3. Defendants allege in their third affirmative defense that Plaintiff lacks standing.
Specifically, Defendants are disputing the authority of the signatures within the Note
endorsements and allonges. Florida law does not allow the Defendants to challenge Plaintiff's
ability to enforce the note. Fla. Stat. § 673.3051 instructs as follows:
[In an action to enforce the obligation of a party to pay the instrument, the obligor may
not assert against the person entitled to enforce the instrument a defense, claim in
recoupment, or claim to the instrument (s. 673.3061) of another person, but the other
person’s claim to the instrument may be asserted by the obligor if the other person is
joined in the action and personally asserts the claim against the person entitled to enforce
the instrument. An obligor is not obliged to pay the instrument if the person seeking
enforcement of the instrument does not have rights of a holder in due course and the
obligor proves that the instrument is a lost or stolen instrument.
Fla. Stat. § 673.3051(3) (emphasis added).
Pursuant to Section § 673.3051, the Defendant-obligor may not assert another entity’s
claim to the note. Florida law is clear that unless Defendant proves that (1) Plaintiff is not a
holdcr in duc course, and (2) that the note is lost or stolen, then Defendant may not challenge the
Plaintiff's right to enforce the note. Defendant cannot provide evidence in support of either of
these two points, and Florida law thus prohibits his challenging Plaintiff's right to enforce the
TS# 17-029998 CASE NO. 17000587CA
MTN FOR SUMMARY JDMT Page 16 of 22note. Further, Plaintiff is the owner and holder of the subject Note and Mortgage. As such,
Plaintiff is in possession of the original Note and Mortgage and has filed same with the Court on
or about April 9, 2018. Pursuant to 673.3091(1), a person not in possession of an instrument is
entitled to enforce the instrument upon fulfilling the requirements outlined in said Statute. In
fact, Defendants’ third affirmative defense is not a proper affirmative defense, but instead a
denial of Count I in Plaintiff's Complaint. Affirmative defenses do not simply deny the facts of
the opposing party’s claim; they raise some new matter that defeats an otherwise apparently valid
claim. Wiggins v. Portmay, 430 So.2d 541 at 542 (Fla. Ist DCA 1983). This affirmative defense
is not supported by any fact or allegation. See Bliss v. Carmona, 418 So.2d 1017 at 1019 (Fla.
3d DCA 1982). As such, Defendants’ third affirmative defense fails as a matter of law, entitling
Plaintiff to entry of summary final judgment.
4, Defendants allege in their fourth affirmative defense that Plaintiff's action is
barred by the “two dismissal rule,” the doctrine of res judicata and/or collateral estoppel due to
two prior foreclosures involving the same note and mortgage. The Florida Supreme Court has
addressed this very issue in the case of Bartram v. U.S. Bank Nat. Ass’n., 160 So.3d 892 (Fla.
2014). “Relying on Singleton, the court noted that ‘each payment default that is less than five
o>
years old creates a basis for a subsequent foreclosure or acceleration action.”” Bartram citing
Singleton v. Greymar Associates, 882 So.2d 1004 (Fla. 2004). Also “[i]f res judicata prevented a
mortgagee from acting on a subsequent default even after an earlier claimed default could not be
established, the mortgagor would have no incentive to make future timely payments on the
note...[c]lcarly, justice would not be served if the mortgagee was barred from challenging the
subsequent default payment solely because he failed to prove the earlier alleged default.” Jd. at
‘TS# 17-029998 CASE NO. 17000587CA.
MTN FOR SUMMARY JDMT Page 17 of 221007-08. As such, Defendants’ fourth affirmative defense fails as a matter of law, entitling
Plaintiff to entry of summary final judgment.
5. Defendants allege in their fifth affirmative defense that Plaintiff failed to comply
with 12 USC § 2605 and Florida Statute § 559.715, in that the Plaintiff has not given the
debtor(s) written notice of assignment of the debt. As a complete avoidance, Florida Statute §
559.715 is not a condition precedent to residential foreclosure. “Section 559.715 simply does
not apply to holders of notes secured by mortgages on real property. Neither is it an affirmative
defense to foreclosure actions; it does not establish a condition precedent and in no other way
avoids the claims to foreclose a mortgage and enforce a note.” Deutsche Bank Nat'l Tr. Co. v.
Hagstrom, 2D14-5254, 11 (Fla. 2d DCA 2016). Similarly, “providing the notice described in
section 559,715 is not a condition precedent to foreclosure.” Bank of N.Y. Mellon v. Welker,
2D14-5613, 3 (Fla. 2d DCA 2016) citing Brindise v. U.S. Bank Nat'l Ass’n., 183 So.3d 1215,
1221 (Fla. 2d DCA 2016). Further, the Defendants have signed the mortgage and agreed to the
terms. The subject mortgage provides, in paragraph 20, that “[t]he Note or a partial interest in
the Note (together with this Security Instrument) can be sold one or more times without prior
notice to Borrower.” As such, Defendants’ fifth affirmative defense fails as a matter of law,
entitling Plaintiff to entry of summary final judgment.
6. Defendants allege in their sixth affirmative defense that the Plaintiff lacks
standing, for the reason that Plaintiff did not attach or perfect its security interest in the subject
Note and does not have priority in it. As a complete avoidance, the Florida Rules of Civil
Procedure do not mandate that all proofs be attached to a Complaint for foreclosure. Only the
allegations as to the ownership of the subject note and mortgage are required. Plaintiff has made
those representations in the Complaint. Moreover, Plaintiff has been in possession of the
‘TS# 17-029998 CASE NO. 17000587CA
MTN FOR SUMMARY JDMT Page 18 of 22original note and mortgage, for several years now, and undoubtedly possessed same prior to the
filing of the instant action. Plaintiff has filed the original Note and Mortgage with the court on
or about April 9, 2018. As such, Plaintiffis entitled to enforce the note and mortgage. Where a
note secured by a mortgage in equity passes as an incident to the debt. Johns v. Gillian, 184 So.
140 (Fla. 1938). To foreclose upon a promissory note, the plaintiff must be the “holder” in order
to be the real party in interest. Troupe v. Redner, 652 So.2d 394 (Fla. 2d DCA 1995), citing
Withers v. Sandlin, 36 Fla. 619, 18 So. 856 (1896), Laing v. Gainey Builders, Inc., 184 So.2d
897 (Fla. 1 DCA 1966). The “holder”, with respect to a negotiable instrument, means the
person in possession, if the instrument is payable to bearer. § 671.201(20), Fla. Stat. (2002).
“Bearer” means the person in possession of an instrument, document of title, or certificated
security payable to bearer or endorsed in blank. § 671.201(5), Fla. Stat. (2002). In this case, the
original note is in possession of the Plaintiff, and is endorsed into the Plaintiff. Plaintiff id
therefore entitled to enforce the mortgage and as such, Defendants’ sixth affirmative defense
fails as a matter of law, entitling Plaintiff to entry of summary final judgment.
7. Defendants allege in their seventh affirmative defense that the Plaintiff has
failed to state a cause of action, because the note is not endorsed and consideration paid to
transferor by Plaintiff has not been paid. Please see Plaintiff's response to Defendants’ third
affirmative defense, provided above in paragraph c.), regarding their allegations pertaining to the
endorsement of the note. Now, regarding Defendants’ allegation concerning lack of
consideration, “The holder of a negotiable instrument, taken before due, is prima facia rightful
owner of it, and he need not prove consideration, except circumstances of suspicion appear...the
endorsee, when Plaintiff, need not prove a bona fide consideration paid by himself, until some
suspicion is cast upon his title.” White v. Camp (1 Fla. 94, Fla 1846). Further, as evidenced in
TS# 17-029998 CASE NO. 17000587CA
MTN FOR SUMMARY JDMT Page 19 of 22the Assignment of Mortgage, attached to Plaintiffs Complaint, from Notez, LLC to Plaintiff, it
provides that the Assignor (Notez, LLC) “does hereby grant, bargain, sell, assign, transfer and
set over unto Florida Opportunity Real Estate Investment, LLC...all of Assignor’s right, title and
interest in and to that certain Mortgage....” Emphasis added. As such, Defendants’ seventh
affirmative defense fails as a matter of law, entitling Plaintiff to entry of summary final
judgment.
8. Defendants allege in their eighth affirmative defense that the Defendants’ debt
was discharged in their 2009 bankruptcy, and thus the subject Note and any and all
corresponding debt associated therewith has been discharged as well. Defendants mistakenly
believe that their bankruptcy discharge not only prevents the Plaintiff from pursuing personal
liability against the Defendants, however, that it also precludes the Plaintiff from obtaining title
to the property which was used as collateral for the subject note and mortgage. As such,
Defendants’ eighth affirmative defense fails as a matter of law, entitling Plaintiff to entry of
summary final judgment.
kk. Defendants have not and cannot come forward with any competent evidence
in support of their alleged defenses that would preclude the entry of summary judgment in
favor of Plaintiff. Equity dictates that this Court enter an order granting final summary
judgment in favor of Plaintiff on all counts in the Complaint.
9, ENTITLEMENT TO JUDGMENT: Plaintiff is entitled to recover its principal,
costs, attorneys’ fees, and other expenses.
10. NOISSUE OF LAW OR FACTS: _ The pleadings of file, together with the
affidavits in support of the Complaint, demonstrate that there is no dispute as to any material
fact. Accordingly, Plaintiff is entitled to Summary Final Judgment as a matter of law.
TS# 17-029998 CASE NO. 17000587CA
MTN FOR SUMMARY JDMT Page 20 of 22WHEREFORE, the Plaintiff respectfully requests that this Court enter Summary Final
Judgment in its favor to the amount sought in its Complaint, grant Plaintiff's motion for
attorneys’ fees and such other and further relief as this Court deems just, including the issuance
of writs of possession against any parties that may be in possession of the property, and that such
order would permit Plaintiff to assign the judgment to the owner without further order of the
Court.
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished
via e-mail and/or first class mail, as appropriate, on this 10 day of Apr | L >
2018, to the parties on the attached service list.
TRIPP SCOTT, P.A.
Attorneys for Plaintiff
110S.E. Sixth St., 15th Floor
Fort Lauderdale, FL 33301
Telephone (954) 765-
Facsimile(954) 761
By.
H. MICHAEL SOLLOA, JR., ESQ.
Florida Bar No. 37854
mxs@trippscott.com
nds@trippscott.com
‘TS# 17-029998 CASE NO. 17000587CA
MTN FOR SUMMARY JDMT Page 21 of 22SERVICE LIST
Case Number: 17000587CA
JACQULYN MACK-MAJKA, ESQ.
ATTORNEY FOR DEFENDANTS
WILFREDO MILAN & LISSETTE REIGOSA
MACK LAW FIRM CHARTERED
2022 PLACIDA ROAD
ENGLEWOOD, FL 34224
eservicel @macklawfirm.org
eservice2@macklawfirm.org
UNKNOWN TENANT #1 N/K/A ABLE MILAN
3063 PELLAM BLVD
PORT CHARLOTTE, FL 33952
CURRENT TENANT(S)
3063 PELLAM BLVD.
PORT CHARLOTTE, FL 33952
TS# 17-029998
MTN FOR SUMMARY JDMT
CASE NO. 17000587CA
Page 22 of 22Filing # 63509115 E-Filed 10/30/2017 04:38:40 PM
IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
CIVIL DIVISION
FLORIDA OPPORTUNITY REAL
ESTATE INVESTMENT, LLC, CASE NO: 17000587CA
Plaintiff,
vs.
WILFREDO MILAN, LISSETTE
REIGOSA, et al.,
Defendant(s).
/
PLAINTIFF’S NOTICE OF SERVICE OF ANSWERS TO DEFENDANT’S
FIRST SET OF INTERROGATORIES
Plaintiff, FLORIDA OPPORTUNITY REAL ESTATE INVESTMENT, LLC
(“Plaintiff”), by and through its undersigned counsel and pursuant to 1.340, Fla. R. Civ. P.,
hereby gives notice that it has served its Answers to the First Request for Interrogatory
numbered | through 10 propounded by Defendants, WILFREDO MILAN and LISSETTE
REIGOSA (“Defendant” or “Defendants”).
CERTIFICATE OF SERVICE
] HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished
via e-mail and/or first class mail, as appropriate, on this 30" day of October, 2017, to
JACQULYN MACK-MAJKA, ESQ., MACK LAW FIRM CHARTERED, 2022 PLACIDA
ROAD, ENGLEWOOD, FL 34224, Served via email at: eservicel @macklawfirm.org
and eservice2@macklawfirm.org.
TRIPP SCOTT, P.A.
Attorneys for Plaintiff
410 S.E. Sixth St., 15th Floor
Fort Lauderdale, FL 33301
Telephone (954) 765-29
2 Esq.
Fla. Bar No. 0037854
mxs@trippscott.com
17-029998 Florida Opportunity Real Estate Investment, LLC v. Wilfredo Milan; Lissette Reigosa, et al.
Case no.: 17000587CA
Plaintiff's Responses to Defendant’s First Interrogatories
EXHIBITFiling # 63509115 E-Filed 10/30/2017 04:38:40 PM
IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
CIVIL DIVISION
FLORIDA OPPORTUNITY REAL
ESTATE INVESTMENT, LLC, CASE NO: 17000587CA
Plaintiff,
vs,
WILFREDO MILAN; LISSETTE
REIGOSA, et al.,
Defendant(s).
PLAINTIFF’S RESPONSES TO DEFENDANT’S FIRST SET OF
INTERROGATORIES
Plaintiff, FLORIDA OPPORTUNITY REAL ESTATE INVESTMENT, LLC, by and
through the undersigned counsel, hereby serves its response to Defendants’, WILFREDO
MILAN and LISSETTE REIGOSA’s, First Set of Interrogatories on Plaintiff numbered 1
through 15.
PRELIMINARY STATEMENT
These responses have been prepared from information obtained from expected and
reasonably available sources by Plaintiff through reasonably diligent inquiry. To the extent that
any of these interrogatories purport to require more, however, Plaintiff objects to each of them
on the ground that it imposes undue burden or expense.
The information provided in these responses is based upon such information as is
reasonably available to Plaintiff, and Plaintiff expressly reserves the right, without assuming
any duty of disclosure not required under the Florida Rules of Civil Procedure or order of this
Court, to revise, amend, correct, add or clarify any of these responses if and when additional
information or documentation comes to its attention.
Whether responding to each interrogatory by answer or objection, Plaintiff does not
concede the evidentiary relevance, materiality, or admissibility of any of these interrogatorics,
the responses thereto, or the subject matter to which they relate.
17-029998 Florida Opportunity Real Estate Investment, LLC v, Wilfiedo Milan; Lissette Reigosa, et al,
Case no.: 17000587CA
Plaintiff's Responses to Defendant’s First InterrogatoriesPlaintiff expressly reserves the right to supplement or amend these objections and
responses upon, among other things: further investigation; discovery of additional facts;
discovery of persons with knowledge of relevant information; and developments in this action
or in any other proceedings.
GENERAL OBJECTIONS
Without in any way limiting the force or application of the Preliminary Statement,
Plaintiff asserts the following general objections (hereinafter referred to as “General
Objections”):
1. Plaintiff objects to the Interrogatories to the extent that Defendants seek information
that constitutes attorney work product or that was prepared in anticipation of legal
action and thus protected by attorney-client privilege.
2. Plaintiff objects to the Interrogatories to the extent that Defendants require Plaintiff
to provide information not within the scope of discovery permitted by the Florida
Rules of Civil Procedure.
3. Plaintiff objects to the Interrogatories to the extent that Defendants seek
information, documents, or responses to matters that are not asserted in the
pleadings on the grounds that the information is not relevant to any issue
legitimately raised in this action and not reasonably calculated to lead to the
discovery of admissible evidence.
4, Plaintiff objects to the Interrogatories to the extent that Defendants seek information
that is not within Plaintiff’s possession, custody, or control and/or is uniquely within
the knowledge of Defendants or other third parties with knowledge relevant to this
action,
5, Plaintiff objects to the Interrogatories to the extent that Defendants seek information
that is vague, ambiguous, overly broad, unduly burdensome, oppressive, vexatious,
or not reasonably calculated to lead to the discovery of admissible evidence.
SPECIFIC OBJECTIONS AND ANSWERS
Without in any way limiting the force or application of the Preliminary Statement and
General Objections, Plaintiff asserts these specific objections (hereinafter referred to as
17-029998 Florida Opportunity Real Estate Investment, LLC v, Wilfredo Milan; Lissette Reigosa, et al.
Case no.: 17000587CA
Plaintiff’s Responses to Defendamt’s First Interrogatories“Specific Objections”) and responds to the correspondingly numbered Interrogatory requests,
as follows:
1. What is the name and address, job title, employer, business address and phone number of
the person answering these interrogatories and explain in detail the relationship of the
person answering these interrogatories to the Plaintiff in this case.
ANSWER: Plaintiff objects as overly broad, unduly burdensome, it is irrelevant,
immaterial, appears calculated to harass, and is not reasonably calculated to lead to
the discovery of admissible evidence in this foreclosure action, and not within the
scope of discovery pursuant to Fla. R. Civ. P. 1.280. Subject to and without waiving
these objections, please see signature line below. In addition, counsel of record has
assisted with the preparation of the Responses to Defendant’s interrogatories,
2. Please state all details known by Plaintiff to support the statement in Plaintiff's
Certification Regarding Original Promissory Note of the CERTIFICATION OF
POSSESSION PURSUANT TO FLA. STAT. 702.015(4), “On June 21, 2017, I obtained
the original Note document at 5:18 p.m. and personally verified that the law firm of Tripp
Scott, P.A. is in possession of the Note on Behalf of the Plaintiff.”.
ANSWER: Plaintiff objects as overly broad, unduly burdensome, it is irrelevant,
immaterial, appears calculated to harass, and is not reasonably calculated to lead to
the discovery of admissible evidence in this foreclosure action, and not within the
scope of discovery pursuant to Fla. R. Civ. P. 1.280. Subject to and without waiving
these objections, Plaintiff sent the original Note to its counsel and counsel certified
that he received and reviewed the actual original note, prior to filing the Complaint.
3. Please state all details known by Plaintiff regarding the indorsement, placed on the original
Note in question. Include the date said indorsement was placed on the Note, who
authorized the indorser to place the indorsement on the note, what authority the indorser
had to make the indorsement, and whether any subsequent indorsements were placed on
the note.
ANSWER: Plaintiff objects on the basis that this is irrelevant, overbroad, and not
reasonably calculated to lead to the discovery of relevant, admissible evidence in this
foreclosure action, and not within the scope of discovery pursuant to Fla. R. Civ. P.
1,280. In re Balderrama, 451 B.R. 185, 187 (Bankr, M.D, Fla. 2100) (any requests
for information regarding the prior ownership history of the note or mortgage are
irrelevant and overbroad under Florida law.”). Pursuant to Florida law, Courts will
not look beyond the holder of the Note to identify the proper Plaintiff. Booker v.
Sarasota, Inc., 707 So.2d 886 (Fla, Ist DCA 1998), To the extent this Interrogatory is
not objectionable, Plaintiff is the owner and holder of the Note, indorsed into
Plaintiff. A copy of the Note, Mortgage and Assignments of Mortgage were filed with
the Complaint.
17-029998 Florida Opportunity Real Estate Investment, LLC v. Wilfredo Milan; Lissette Reigosa, et al,
Case no.: 17000587CA.
Plaintiff's Responses to Defendant’s First Interrogatories4, Please state all details known by Plaintiff regarding how it first received possession of the
note. Include when Plaintiff received the note, who delivered the note to Plaintiff, who
received the note, whether Plaintiff only received certain rights in the note, if so, what
rights, the location the note was stored
Preview
Filing # 70520836 E-Filed 04/10/2018 04:55:57 PM IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA CIVIL DIVISION FLORIDA OPPORTUNITY REAL ESTATE INVESTMENT, LLC, CASE NO: 17000587CA Plaintiff, vs. WILFREDO MILAN; LISSETTE REIGOSA, et al., Defendant(s). MOTION FOR SUMMARY FINAL JUDGMENT AND ATTORNEY’S FEES Plaintiff, FLORIDA OPPORTUNITY REAL ESTATE INVESTMENT, LLC (hereinafter referred to as “Plaintiff’) its successors and assigns by and through its undersigned counsel, moves this Court, pursuant to Florida Rule of Civil Procedure 1.510, to enter Summary Final Judgment against each of the Defendants in the above-styled action. There exists no genuine issue as to any material fact and Plaintiff is entitled to judgment as a matter of law based on the pleadings and affidavits filed in this action. 1. Plaintiff submits the following documentary evidence in support of its Motion for Summary Final Judgment: a.) Any and Plaintiff's Affidavit Supporting Plaintiff's Motion for Summary Final Judgment, filed on or about April 10, 2018; b.) Any and Affidavits relating to time and costs filed, including, but not limited to Affidavit of Costs, filed on or about April 10, 2018, and Affidavit of Attorney’s Fees, filed on or about April 10, 2018; TS# 17-029998 CASE NO. 17000587CA_ MTN FOR SUMMARY JDMT Page 1 of 22c.) Any and all Affidavits as to Reasonable Attorney’s Fees, to be filed under separate cover; d.) Plaintiff's Answers and Objections to interrogatories served on October 30, 2017, and attached hereto as Exhibit “A”; e) Plaintiff's Request for Judicial Notice of Bankruptcy, filed on or about April 9, 2018, and Request for Judicial Notice attached hereto as Exhibit “B”; f.) Notice of Filing Original Note, Original Allonges, and Original Mortgage filed on or about April 9, 2018. 2. FORECLOSURE: This is an action by Plaintiff, to foreclose the mortgage on real property situated in COLUMBIA County, Florida. 3. STANDING: Plaintiff is the owner and holder of the note and mortgage with authority to pursue the present action. 4. DEFAULT: The Note is due for July 1, 2012, and all subsequent payments, which has resulted in a default of the Note and Mortgage. 5. PROPERTY: The legal description of the subject property is set forth in the Lis Pendens filed with the Complaint. 6. SERVICE: All Defendants have been served with notice of this action. 7. LIEN: Plaintiffs mortgage constitutes a valid lien on the subject property and is superior to any right, title, interest or claim of all Defendants and all persons or entities claiming by, through or under them. 8. MEMORANDUM OF LAW: The substantial matters of law upon which the motion is based are as follows: TS# 17-029998 CASE NO. 17000587CA MTN FOR SUMMARY JDMT Page 2 of 22a. A mortgage is presumed to have been validly executed and delivered on the date recited in the mortgage if the mortgage is proven of record and recorded according to the law. Atlantic Land and Improvement Company v. Lee, 112 So. 549, 550 (Fla. 1927). b. Where a note secured by a mortgage is transferred without any formal assignment of the mortgage, the mortgage in equity passes as an incident to the debt, unless there is some plain and clear agreement to the contrary. Johns y. Gillian, 184 So. 140 (Fla. 1938). “A mere delivery of a note and mortgage, with intention to pass the title, upon a proper consideration, will vest the equitable interest in the person to whom it is so delivered.” Jd., at 143. “Because the lien follows the debt, there was no requirement of attachment of a written and recorded assignment of the mortgage in order for the appellant to maintain the foreclosure action.” Chemical Residential Mortgage v. Rector, 742 So, 2d 300 (Fla. 1st DCA, 1998), rev. denied 727 So.2d 910 (1999). To foreclose upon a promissory note, the plaintiff must be the “holder” in order to be the real party in interest. Troupe v. Redner, 652 So.2d 394 (Fla. 2d DCA, 1995), citing Withers v. Sandlin, 36 Fla. 619, 18 So. 856 (1896); Laing v. Gainey Builders, Inc., 184 So. 2d 897 (Fla. 1st DCA, 1966). The “holder”, with respect to a negotiable instrument, means the person in possession of the instrument is payable to bearer or, in the case of an instrument payable to an identified person, if the identified person is in possession. § 671.201(20), Fla. Stat. (2002). “Bearer” means the person in possession of an instrument, document of title, or certificated security payable to bearer or indorsed in blank. § 671.201(5), Fla. Stat. (2002). c. In the event a formal assignment is delivered to Plaintiff, Florida Law has established that the “effective date” is the date of transfer of interest in the mortgage as opposed TS# 17-029998 CASE NO. 17000587CA. MTN FOR SUMMARY JDMT Page 3 of 22to the date the assignment document was executed. WM Specialty Mortgage, LLC y. Salomon, 874 So.2d 680 (Fla. 4th DCA, 2004), citing Johns v. Gillian, 184 So. 140, 143 (Fla. 1938). d. The interest of the owner of record in the property described herein is inferior and subordinate to the interest of the Plaintiff, the mortgagee. Jordan v. Sayre, 3 So. 329 (Fla. 1888). e The owner and holder of a valid recorded mortgage encumbering real property has a lien superior in dignity and right to any subsequently recorded mortgage, claim or lien attaching to the property through the mortgagors, their successors, assigns and tenants. Lee v. Slemons, 150 So. 792, 794 (Fla. 1933); Bullard v. Fender, 192 So. 167, 171 (Fla. 1939); County of Pinellas y. Clearwater Federal Savings and Loan Association, 214 So.2d 525, 526 (Fla. 2d DCA 1968). Therefore, the lien of Plaintiff's mortgage takes priority over the subsequently recorded claims or liens of the Defendants in this action. United States v. First Federal Savings and Loan Association of St. Petersburg, 155 So.2d 192, 193 (Fla. 2d DCA 1963). f. As a matter of law, the entire indebtedness secured by the mortgage held by Plaintiff is due and collectible. Van Huss v. Prudential Insurance Company of America, 165 So. 896 (Fla. 1936); Baader v. Walker, 153 So.2d 51, 54 (Fla. 2d DCA 1963). g. As to any Defendant that is a Homeowners Association as defined under Florida Statute §720.301, said Defendant’s interest is fully forecloseable as a matter of law. Florida Statute §720.3085 does not prevent foreclosure of any past due assessments claims of a Defendant Home Owners Association, as Plaintiff's rights are determined by the Homeowner’s Association’s Declaration of Covenants. Florida Statute §720.3085, does not retroactively apply to mortgages or assessments recorded prior to its enactment. To the contrary, the §720.3085(1) specifically states that the Association’s assessments are inferior to the Plaintiff. Any application of the statute to the TS# 17-029998 CASE NO. 17000587CA MTN FOR SUMMARY JDMT Page 4 of 22contrary is unconstitutional. Sarasota County v. Andrews, et. al., 573 So.2d 113 (Fla. 2d DCA, 1991); Silver Blue Lake Apartments, Inc. v. Silver Blue Lake Home Owners Association, Inc., 245 So.2d 609, 611 (Fla. 1971); Palm Point Property Owners’ Association v. Pisarksi, 626 So.2d 195 (Fla. 1993); Holly Lake Association v. Federal National Mortgage Association, 660 So.2d 266, 269 (Fla. 1995); Park Benziger & Co., Inc. v. Southern Wine & Spirits, Inc., 391 So.2d 681, 683 (Fla. 1980); David v. Sun Federal Savings & Loan Ass'n, 461 So.2d 93 (Fla. 1984); Metropolitan Dade County y. Chase Federal Housing Corp., et. al., 737 So0.2d 494, 500 (Fla. 1999). h. As to Defendants against whom a default has been entered, final judgment may be entered by the Court at any time. Rule 1.500(e) Florida Rule of Civil Procedure. i. This court must enter a summary final judgment of foreclosure where there exists no genuine issue as to any material fact; this Court may, however, reserve jurisdiction to determine the amount and priority of the claims. Mack Industries, Inc. v. Donald W. Nelson, Inc., 134 So.2d 821 (Fla. 2d DCA 1961). j. Where the note and mortgage so provide, a mortgagee is entitled to recover costs, a reasonable fee for its attorneys in the prosecution of a foreclosure action, and any sums advanced to prevent he impairment of its security. American Securities Co. v. Goldsberry, 67 So. 862, 866 (Fla. 1915). k. Summary judgment may be entered whenever the pleadings, affidavits, depositions, or other factual showings, reveal that there exists no genuine issue of material fact and that movant is entitled to judgment as matter of law. Volusia County v. Aberdeen at Ormond ‘TS# 17-029998 CASE NO. 17000587CA MTN FOR SUMMARY JDMT Page 5 of 22Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000); citing, Menendez v. Palms West Condominium Ass'n, 736 So. 2d 58 (Fla. Ist DCA 1999), Manjrin v. Auto Owners Insurance Company, 805 So. 2d 973 (Fla. 2nd DCA 2001); Wills v. Sears Roebuck & Co., 351 So. 2d 29 (Fla. 1977). 1. Even though all reasonable inferences must be drawn in favor of the opposing party, once the movant tenders competent evidence to support its motion, the opposing party must come forward with counterevidence sufficient to reveal a genuine issue, and it is not sufficient for opposing party merely to assert that an issue exists or to raise paper issues. Johnson v. Gulf Insurance Co., 429 So. 2d 744 (Fla. 3d DCA 1983); landers v. Milton, 370 So. 2d 368 (Fla. 1979). The term "genuine issue" means a real, as distinguished from a false or colorable issue. Harrison v. Consumers Mortg. Co., 154 So. 2d 194, 195 (Fla. Ist DCA 1963). "Genuine issues" of "material fact" do not arise merely because the non-moving party disagrees with the facts established by competent evidence submitted by the moving party nor merely because the non-moving party would like the opportunity of having a jury pass upon such facts and make an independent determination as to the correctness thereof. F & R Builders v, Lowell Dunn, 364 So. 2d 826, 828 (Fla. 3d DCA 1978). m. The substantive law that applies to a given case determines which facts are material. Anderson v, Liberty Lobby, Inc. (1986), 477 U.S. 242. Therefore, only those factual disputes which are supported by evidence and significant enough to affect the outcome of the lawsuit will preclude the entry of summary judgment. Anderson, supra. Even construing the evidence most strongly in favor of Defendants, Plaintiff is entitled to summary judgment as a matter of law. TS# 17-029998 CASE NO. 17000587CA MTN FOR SUMMARY JDMT. Page 6 of 22n. In order to secure the indebtedness arising under the promissory note dated April 4, 2005 the Defendants executed and delivered a mortgage to EquiFirst Corporation, which was subsequently assigned to Plaintiff. 0. The subject mortgage is a valid lien against the property under §702.09, F.S., which provides that a mortgage is "any instrument securing the payment of money or advances". p. The mortgage constitutes a lien prior and superior to any right, title, or interest of any of the Defendants herein. q. Plaintiff now owns and holds the note and mortgage and is entitled to enforce same under Florida Statute §673.3011. r The mortgage is and has been in default due to the failure of the Defendants to make timely payments pursuant to the terms of the note and mortgage. Ss. Plaintiff has satisfied all conditions precedent to bringing this action, including sending a notice of default informing the Defendants of the default, what action is required to cure the default, provided 30 days in which to cure the default, informed them of that failure to cure the default may result in acceleration of the sums, foreclosure by judicial proceeding and sale of the property. The notice of default also informed the Defendants of their right to reinstate and the right to assert in the foreclosure proceeding the non-existence of a default or any other defense to acceleration. Green Tree ‘Servicing v. Milam, 2015 WL 4549200 (Fla. 2nd DCA 2015), US. Bank National Association as Trustee, etc. v. Jose Busquets, 135 So.3d 488, Astoria Federal Savings and Loan Association v. Kaufman, 2015 WL 2379672 (5th DCA 2015), Federal National Mortgage Association v. Wenzel, 2015 WL 2379672 (Twelfth Judicial Circuit Trial Order). ‘TSH 17-029998 CASE NO. 17000587CA MTN FOR SUMMARY JDMT Page 7 of 22t. Defendants cannot establish prejudice as a result of any alleged non-compliance with any contractual condition precedent. See Adie! Gorel, et al. vy. The Bank of New York Mellon, etc, 5th DCA Appellate Case No. 5D13-3172; Yefim Vasilevskiy v. Wachovia Bank, N.A. Sth DCA Appellate Case No, 5D13-3468. u. Florida statute §559.715 does not constitute a statutory condition precedent. First, there is nothing in §559.715 that indicates that the written notice is required as a condition precedent to filing a foreclosure action. Certainly, if the Legislature intended this provision to operate as a condition precedent to a foreclosure action, it could have drafted language indicating this intention, as it has done in other statutory provisions. Moreover, filing a foreclosure lawsuit is not a "debt collection practice under §559.72 of the FCCPA." See Trent v. MERS, 618 F.Supp.2d 1356 (MD Fla. 2007); Dyer v. Choice Legal Group PA, 2015 WL 3650925 (MD. Fla. 2015); Summerlin Asset Mgmt. V Trust v. Jackson, 2015 WL 4065372; Brindise v. United States Bank N.A., 2016 Fla. App. LEXIS 653 (FLA. 2nd DCA 2016). v. Additionally, Florida statute §559.715 does not provide for a private cause of action. Ramos v. Cach, LLC, 2015 WL 9491850 (Sth DCA 2015). As such, §559.715 does not constitute a legally valid defense. See First Specialty Insurance Corp. v. GRS Management Associates, Inc., 2009 WL 2169869 (SD Fla. 2009)(finding that a regulatory statute that does not create a private cause of action cannot form the basis for an affirmative defense.). w. Even presuming that Florida statute §559.715 is a condition precedent or affirmative defense, Plaintiff is still entitled to summary judgment as a matter of law, and further, paragraph 20 of the mortgage states that the “Note or a partial interest in the Note (together with this Security Instrument) can be sold one or more times without prior notice to Borrower.” TS# 17-029998 CASE NO. 17000587CA MTN FOR SUMMARY JDMT Page 8 of 22x. The record owner of the property is the only indispensable party to a foreclosure action. Davanzo v. Resolute Insurance Co., 346 So.2d 1227 (Fla. 3rd DCA 1977). The interest of the owner is inferior and subordinate to the interest of the Plaintiff. Jordan v. Sayre, 3 So. 329 (1888). Defendants own the property subject to this suit. As such, all necessary parties have been joined and properly served in this cause. y. A lender has a legal right to foreclose on its security interest in a borrower's property when the borrower fails to meet her obligations to the lender. Lunn Woods v. Lowery, 577 So. 2d 705, 707 (Fla. 2d DCA 1991). A lender may establish standing to foreclose on its security instrument by presenting evidence that it is the holder of the note or a nonholder in possession of the note with rights of the holder. Taylor v. Deutsche Bank National Trust Company, 44 So.3d 618 (Fla. Sth DCA 2010). A lender's possession of the original promissory note, endorsed into Plaintiff, is sufficient under the UCC to establish that it is the lawful holder and entitled to enforce its terms as provided by Florida Statute §673.3011. Riggs v. Aurora Loan Services, LLC, 36 So.3d 932 (Fla. 4th DCA 2010). In this case, Plaintiff is the current owner and holder of the Note. Z. The Defendants failed to satisfy their obligations under the security instruments. In the Note, Defendant, Wilfredo Milan, promised, among other things, to repay the principal, which was lent to him in good faith, in monthly payments, plus interest, beginning on June 1, 2005, and every first day of the month thereafter. Defendant agreed that, if he did not pay the full amount of each payment on the date that it was due, or if he did not fulfill any of his other promises under the Note or Mortgage, he would be in breach of his duties. He agreed that, if he breached his duties Lender would be entitled to foreclose on the Property. TS# 17-029998 CASE NO. 17000587CA MTN FOR SUMMARY JDMT Page 9 of 22aa. Borrower's failure to pay the monthly payments required by the Note entitles Lender to a judgment of foreclosure. .See David v. Sun Fed. Savings & Loan Assoc., 461 So. 2d 93, 95 (Fla 1984) (finding that, "[i]t is well established in this state that an acceleration clause or promise in a mortgage confers a contract right upon the note or mortgage holder which he may elect to enforce upon default"). Defendants have not disputed the fact that they failed to make payments as required by the terms of the Note and Mortgage. It is undisputed that Defendants did not tender any monies to the Plaintiff in an attempt to cure the default, nor has ever attempted to reinstate the loan. Instead, Defendants filed for bankruptcy protection, surrendered the Property and received a discharge of their obligation. Accordingly, Plaintiff is entitled to a final judgment of foreclosure as a matter of law. bb. Plaintiff is entitled to collect its advances to protect the collateral, and its costs and attorney's fees incident to collection. Raskin v. Otten, 273 So.2d 433 (Fla. 3rd DCA 1973). The Note and Mortgage provide for payment by Defendants of Plaintiff's reasonable attorney's fees and costs of court if suit is filed to foreclose the Mortgage. Plaintiff relies on the affidavits on file as proof of its reasonable attorney's fees, and said affidavits are incorporated herein by reference herein. It is undisputed that Plaintiff has been damaged by Defendants’ failure to satisfy their obligations under the Note and Mortgage. ce. Where a defendant's defenses are limited to one or more affirmative defenses and there is no triable issue of fact as to any of them, or they are legally insufficient, the case is ripe for summary judgment. Tippett v. Frank, 238 So.2d 671 (Fla. 3rd DCA 1970); Pavolini v. Williams, 915 So.2d 251 (Fla. 5th DCA 2005). In this matter Defendants are judicially estopped from impeding the foreclosure based on their representations, including their Stated Intentions, and actions taken in the Bankruptcy Proceeding. See generally State of New Hampshire v. TS# 17-029998 CASE NO. 17000587CA MTN FOR SUMMARY JDMT Page 10 of 22Maine, 532 U.S. 742, (2001), Blumberg v. USAA Casualty Insurance Company, 790 So. 2d 1061 (Fla. 2001), Keyes Company v. Bankers Real Estate Partners, Inc., 881 So. 2d (3rd DCA 2004); see also Souza vy. Bank of America, 2013 WL 3457185 (D. Mass. 2013), Ibanez v. US. Bank National Association, 856 F. Supp. 2d 273 (D. Mass. 2012); Jn re Plummer, 513 B.R. 135 (M.D. Fla. 2014); In re Failla, 2014 WL 8663569 (S.D. 2014); Failla v. Citibank, 2015 WL 7422337 (S.D. Florida 2015); Jn Re: Kourogenis, 09-bk-32936-JKO; In re: Metzler and Patel, Case No. 8:12-bk-16792-MGW at EFC 59, 8:13-bk-09736-MGW; Jn re: Cecelia Guerra, Case No. 8:11- bk-15663-MGW. dd. "Judicial estoppel is an equitable doctrine that precludes a party from ‘asserting a claim in a legal proceeding that is inconsistent with a claim taken by that party in a previous proceeding.’ State of New Hampshire v. Maine, 532 U.S. 742, (2001); Barger v. City of Cartersville, Ga., 348 F.3d 1289, 1293 (11th Cir. 2003) citing to Burnes v. Pemco Aeroplex, Inc.,291 F.3d 1282, 1284 (11th Cir.2002); Blumberg v. USAA Casualty Insurance Company, 790 So. 2d 1061 (Fla. 2001), Keyes Company v. Bankers Real Estate Partners, Inc., 881 So. 2d 605 (rd DCA 2004). Judicial estoppel "protects the integrity of the judicial process and prevents m parties from 'making a mockery of justice." Blumberg v. USAA Casualty Insurance Company, 790 So.2d 1061 (Fla. 2001 ). The Court must invoke the equitable doctrine of judicial estoppel in this matter because Defendants have and continue to actively defend the foreclosure proceeding thereby contradicting their Stated Intentions and violating Section 521(a) of the Bankruptcy Code by failing to "Surrender" the Property. ee, While the term "surrender" is not defined by the Bankruptcy Code, the Courts should look to their ordinary, dictionary definition. Jn re Plummer, 513 B.R. 135 (M.D. Fla. TS# 17-029998 CASE NO. 17000587CA MTN FOR SUMMARY JDMT Page 11 of 222014) Numerous Federal Bankruptcy Courts and at least one Federal District Court in Florida have defined 'surrender' to mean that a debtor cannot impede the creditor's efforts to take possession of its collateral by available legal means. 513 B.R. at 143-44. (emphasis added), see also In re Failla, 2014 WL 8663569 (S.D.BK 2014); Failla v. Citibank, 2015 WL 7422337 (S.D. Florida 2015); In Re: Kourogenis, 09-bk-32936-JKO; In Re: Metzler and Patel, Case No 8:12- bk-16792-MGW at EFC 59, 8:13-bk-09736-MGW; Jn re: Cecelia Guerra, Case No. 8:11-bk- 15663-MGW; In re: Carlos Lapeyre, Case No. 13-17069-RAM (Federal Bankruptcy Court ordered the Debtors to withdraw affirmative defenses and withdraw counterclaim within 14 days.). ff. Several federal courts have applied the doctrine of judicial estoppel when a party surrenders a property in bankruptcy. In Souza v. Bank of America, 2013 WL 3457185 (D. Mass. 2013) and Ibanez v. US. Bank National Association, 856 F. Supp. 2d 273 (D. Mass. 2012), the courts held that the doctrine of judicial estoppel bars the party from bringing claims in the foreclosure process when the property is surrendered in bankruptcy. In Souza, the borrower sued the lender alleging that the lender did not comply with statutory condition precedents, lacked standing, violated the duty of good faith and reasonable diligence and was negligent when it failed to adhere to HAMP guidelines. The lender filed a motion to dismiss arguing, in part, that the borrower was judicially estopped from challenging the validity of the foreclosure because she received a discharge of her debt and surrendered the property. The court agreed and granted the lenders motion to dismiss the borrower's complaint. gg. In Florida, a majority of the federal courts analyzing the issue of surrender in the context of judicial foreclosures have implicitly applied the doctrine of judicial estoppel. In the matter of Failla v. Citibank the District Court for the Southern District of Florida upheld the TS# 17-029998 CASE NO. 17000587CA MTN FOR SUMMARY JDMT Page 12 of 22Bankruptcy Court's Order in Jn Re: Failla granting the creditor's motion and ordered the borrower to cease and desist from taking any action to defend or oppose the foreclosure and sale of the property. In Jn Re. Failla, the borrower executed a promissory note and mortgage with the creditor, subsequently defaulted, and filed a Chapter 7 Voluntary Petition. As part of their petition, the borrowers declared that they owned the property, that the property was encumbered by the mortgage, that the mortgage was a valid lien, that the amount they owed exceeded the value of the property, and they intended to surrender the property. /d. The borrowers received an order of discharge on December 16, 2011. The Failla court specifically noted in its opinion the borrowers continued possession of the property and opposition to the foreclosure matter for more than three years. Jd. In its analysis the court explicitly rejected the debtor's definition of surrender, i.e. that surrender does not include relinquishment to the mortgagee. /d. The Failla court relying upon the Eleventh Circuit Appellate Court's interpretation, as well as other district bankruptcy courts, held that "Debtors do not have an absolute 'right' to defend in a foreclosure action because the Debtors explicitly admitted the validity of the debt and stated their intention...to surrender the Property." /d. bh. Federal law preempts state law, and the state Courts are bound to enforce federal law and interpretation of federal law by the federal courts... The Bankruptcy Code was created by Congress "to create a whole system under federal control which is designed to bring together and adjust all of the rights and duties of creditors and embarrassed debtors alike." MSR Exploration, Ltd. v. Meridian Oil, Inc. 74 F.3d 910, 914. Preemption exists so that parties cannot "circumvent the remedial scheme of the [c]ode under which Congress struck a balance between the interests of debtors and creditors." Walls v. Wells Fargo Bank, N.A. 276 F.3d 93, 96. TS# 17-029998 CASE NO. 17000587CA MTN FOR SUMMARY JDMT Page 13 of 22ii, Similarly in this matter the Defendants, as required under §521(a) of the Bankruptcy Code, specifically declared that: ( 1) they maintained an interest in the Property; (2) the original plaintiff maintained a valid first mortgage on the Property that represents a non- contingent, liquidated, and undisputed secured claim further, in the principal amount of $126,000.00; (3) that the amount they owe on the Property exceeds the value of the Property; (4) that Property was not exempt; and (5) Defendants intended to surrender the Property pursuant to 11 U.S.C, §521(a)(2)(A). The bankruptcy trustee and creditors relied upon the Defendants' schedules in making decisions with regard to administration of claims and property of the estate. The Defendants’ representations that the Property had no value to the estate and would be tendered to the creditor(s) likely dissuaded the trustee from attempting to administer the Property or object to any additional exemption claimed by Defendants. As a result of their declarations, Defendants received the benefit of a Discharge. Despite the adjudication and discharge, Defendants have taken active measures to impede the foreclosure process in an attempt to remain in the Property indefinitely without recourse or risk relating to the Property's diminishing value. Like Souza, Ibenez, and Fallia, Defendants do not have any rights to defend this action as their claims are barred by the doctrine of judicial estoppel. Since Defendants’ claims are barred and there are no triable issues of fact, Plaintiff is entitled to Judgment as a matter of law. jj. Alternatively, there are no issues of material fact as to any affirmative defenses raised by Defendants because (1) the defense is legally insufficient as a matter of law, or (2) the evidence conclusively establishes that there are no issues of material fact relating to the affirmative defenses to be tried. 1. Defendants allege in their first affirmative defense that the Plaintiff is barred by the Statute of Limitations, because the accelerated balance in Plaintiff's Complaint includes ‘TS# 17-029998 CASE NO. 17000587CA MTN FOR SUMMARY JDMT Page 14 of 22payments that were allegedly defaulted on more than five years to the filing of this action. Defendants argue that Plaintiff should not be able to recover interest due beyond the five year statute of limitations, including unpaid taxes, insurance premiums, accumulated charges, inspections fees, etc. Plaintiff's Complaint, paragraph 15, properly included the unpaid principal balance and aforementioned fees and costs, however, discovered a scrivener’s error regarding the month (June 1, 2012) included in the sentence referencing “outstanding and accrued interest from June 1, 2012...” Plaintiff inadvertently included the month of June 2012, when it should have included the month of July 2012 (same as the default date). Nevertheless, not only will Plaintiff not be seeking any fees or charges that accrued prior to July 2012, Plaintiff will not be seeking any unpaid taxes, insurance premiums, accumulated charges, inspection fees (other than attorney’s fees and costs related to the current action), as evidenced in the Affidavit Supporting Plaintiff's Motion for Summary Final Judgment, filed with the court on or about April 9, 2018. As such, Defendants’ first affirmative defense fails as a matter of law, entitling Plaintiff to entry of summary final judgment. 2. Defendants allege in their second affirmative defense that Plaintiff has failed to state a cause of action. Defendants believe that the current unpaid principal balance of the subject note and mortgage, included in Plaintiff's Complaint, should not be identical to an amount previously provided for, namely, within Defendants’ 2009 bankruptcy action. However, Defendants are mistaken in that the unpaid principal balance can and shall remain the same if no further payments have been applied to the balance since the original date of default. Plaintiff shall not collect on intcrest, fees, and other related costs that incurred beyond the five year statute of limitations, however, Plaintiff is entitled to collect on the unpaid principal balance due on the note, which is not subject to change, regardless of prior actions brought forth regarding the same TS# 17-029998 CASE NO, 17000587CA MTN FOR SUMMARY JDMT Page 15 of 22note and mortgage. “The court’s analysis in Singleton recognizes that a note securing a mortgage creates liability for a total amount of principal and interest, and that the lender’s acceptance of payments in installments does not eliminate the borrower’s ongoing liability for the entire amount of the indebtedness.” Nationstar Mortgage, LLC v. Germaine R. Brown, 175 So.3d 833 (Fla. 1 DCA 2015). See also Singleton v. Greymar Associates, 882 So.2d 1004 (Fla. 2004). As such, Defendants’ second affirmative defense fails as a matter of law, entitling Plaintiff to entry of summary final judgment. 3. Defendants allege in their third affirmative defense that Plaintiff lacks standing. Specifically, Defendants are disputing the authority of the signatures within the Note endorsements and allonges. Florida law does not allow the Defendants to challenge Plaintiff's ability to enforce the note. Fla. Stat. § 673.3051 instructs as follows: [In an action to enforce the obligation of a party to pay the instrument, the obligor may not assert against the person entitled to enforce the instrument a defense, claim in recoupment, or claim to the instrument (s. 673.3061) of another person, but the other person’s claim to the instrument may be asserted by the obligor if the other person is joined in the action and personally asserts the claim against the person entitled to enforce the instrument. An obligor is not obliged to pay the instrument if the person seeking enforcement of the instrument does not have rights of a holder in due course and the obligor proves that the instrument is a lost or stolen instrument. Fla. Stat. § 673.3051(3) (emphasis added). Pursuant to Section § 673.3051, the Defendant-obligor may not assert another entity’s claim to the note. Florida law is clear that unless Defendant proves that (1) Plaintiff is not a holdcr in duc course, and (2) that the note is lost or stolen, then Defendant may not challenge the Plaintiff's right to enforce the note. Defendant cannot provide evidence in support of either of these two points, and Florida law thus prohibits his challenging Plaintiff's right to enforce the TS# 17-029998 CASE NO. 17000587CA MTN FOR SUMMARY JDMT Page 16 of 22note. Further, Plaintiff is the owner and holder of the subject Note and Mortgage. As such, Plaintiff is in possession of the original Note and Mortgage and has filed same with the Court on or about April 9, 2018. Pursuant to 673.3091(1), a person not in possession of an instrument is entitled to enforce the instrument upon fulfilling the requirements outlined in said Statute. In fact, Defendants’ third affirmative defense is not a proper affirmative defense, but instead a denial of Count I in Plaintiff's Complaint. Affirmative defenses do not simply deny the facts of the opposing party’s claim; they raise some new matter that defeats an otherwise apparently valid claim. Wiggins v. Portmay, 430 So.2d 541 at 542 (Fla. Ist DCA 1983). This affirmative defense is not supported by any fact or allegation. See Bliss v. Carmona, 418 So.2d 1017 at 1019 (Fla. 3d DCA 1982). As such, Defendants’ third affirmative defense fails as a matter of law, entitling Plaintiff to entry of summary final judgment. 4, Defendants allege in their fourth affirmative defense that Plaintiff's action is barred by the “two dismissal rule,” the doctrine of res judicata and/or collateral estoppel due to two prior foreclosures involving the same note and mortgage. The Florida Supreme Court has addressed this very issue in the case of Bartram v. U.S. Bank Nat. Ass’n., 160 So.3d 892 (Fla. 2014). “Relying on Singleton, the court noted that ‘each payment default that is less than five o> years old creates a basis for a subsequent foreclosure or acceleration action.”” Bartram citing Singleton v. Greymar Associates, 882 So.2d 1004 (Fla. 2004). Also “[i]f res judicata prevented a mortgagee from acting on a subsequent default even after an earlier claimed default could not be established, the mortgagor would have no incentive to make future timely payments on the note...[c]lcarly, justice would not be served if the mortgagee was barred from challenging the subsequent default payment solely because he failed to prove the earlier alleged default.” Jd. at ‘TS# 17-029998 CASE NO. 17000587CA. MTN FOR SUMMARY JDMT Page 17 of 221007-08. As such, Defendants’ fourth affirmative defense fails as a matter of law, entitling Plaintiff to entry of summary final judgment. 5. Defendants allege in their fifth affirmative defense that Plaintiff failed to comply with 12 USC § 2605 and Florida Statute § 559.715, in that the Plaintiff has not given the debtor(s) written notice of assignment of the debt. As a complete avoidance, Florida Statute § 559.715 is not a condition precedent to residential foreclosure. “Section 559.715 simply does not apply to holders of notes secured by mortgages on real property. Neither is it an affirmative defense to foreclosure actions; it does not establish a condition precedent and in no other way avoids the claims to foreclose a mortgage and enforce a note.” Deutsche Bank Nat'l Tr. Co. v. Hagstrom, 2D14-5254, 11 (Fla. 2d DCA 2016). Similarly, “providing the notice described in section 559,715 is not a condition precedent to foreclosure.” Bank of N.Y. Mellon v. Welker, 2D14-5613, 3 (Fla. 2d DCA 2016) citing Brindise v. U.S. Bank Nat'l Ass’n., 183 So.3d 1215, 1221 (Fla. 2d DCA 2016). Further, the Defendants have signed the mortgage and agreed to the terms. The subject mortgage provides, in paragraph 20, that “[t]he Note or a partial interest in the Note (together with this Security Instrument) can be sold one or more times without prior notice to Borrower.” As such, Defendants’ fifth affirmative defense fails as a matter of law, entitling Plaintiff to entry of summary final judgment. 6. Defendants allege in their sixth affirmative defense that the Plaintiff lacks standing, for the reason that Plaintiff did not attach or perfect its security interest in the subject Note and does not have priority in it. As a complete avoidance, the Florida Rules of Civil Procedure do not mandate that all proofs be attached to a Complaint for foreclosure. Only the allegations as to the ownership of the subject note and mortgage are required. Plaintiff has made those representations in the Complaint. Moreover, Plaintiff has been in possession of the ‘TS# 17-029998 CASE NO. 17000587CA MTN FOR SUMMARY JDMT Page 18 of 22original note and mortgage, for several years now, and undoubtedly possessed same prior to the filing of the instant action. Plaintiff has filed the original Note and Mortgage with the court on or about April 9, 2018. As such, Plaintiffis entitled to enforce the note and mortgage. Where a note secured by a mortgage in equity passes as an incident to the debt. Johns v. Gillian, 184 So. 140 (Fla. 1938). To foreclose upon a promissory note, the plaintiff must be the “holder” in order to be the real party in interest. Troupe v. Redner, 652 So.2d 394 (Fla. 2d DCA 1995), citing Withers v. Sandlin, 36 Fla. 619, 18 So. 856 (1896), Laing v. Gainey Builders, Inc., 184 So.2d 897 (Fla. 1 DCA 1966). The “holder”, with respect to a negotiable instrument, means the person in possession, if the instrument is payable to bearer. § 671.201(20), Fla. Stat. (2002). “Bearer” means the person in possession of an instrument, document of title, or certificated security payable to bearer or endorsed in blank. § 671.201(5), Fla. Stat. (2002). In this case, the original note is in possession of the Plaintiff, and is endorsed into the Plaintiff. Plaintiff id therefore entitled to enforce the mortgage and as such, Defendants’ sixth affirmative defense fails as a matter of law, entitling Plaintiff to entry of summary final judgment. 7. Defendants allege in their seventh affirmative defense that the Plaintiff has failed to state a cause of action, because the note is not endorsed and consideration paid to transferor by Plaintiff has not been paid. Please see Plaintiff's response to Defendants’ third affirmative defense, provided above in paragraph c.), regarding their allegations pertaining to the endorsement of the note. Now, regarding Defendants’ allegation concerning lack of consideration, “The holder of a negotiable instrument, taken before due, is prima facia rightful owner of it, and he need not prove consideration, except circumstances of suspicion appear...the endorsee, when Plaintiff, need not prove a bona fide consideration paid by himself, until some suspicion is cast upon his title.” White v. Camp (1 Fla. 94, Fla 1846). Further, as evidenced in TS# 17-029998 CASE NO. 17000587CA MTN FOR SUMMARY JDMT Page 19 of 22the Assignment of Mortgage, attached to Plaintiffs Complaint, from Notez, LLC to Plaintiff, it provides that the Assignor (Notez, LLC) “does hereby grant, bargain, sell, assign, transfer and set over unto Florida Opportunity Real Estate Investment, LLC...all of Assignor’s right, title and interest in and to that certain Mortgage....” Emphasis added. As such, Defendants’ seventh affirmative defense fails as a matter of law, entitling Plaintiff to entry of summary final judgment. 8. Defendants allege in their eighth affirmative defense that the Defendants’ debt was discharged in their 2009 bankruptcy, and thus the subject Note and any and all corresponding debt associated therewith has been discharged as well. Defendants mistakenly believe that their bankruptcy discharge not only prevents the Plaintiff from pursuing personal liability against the Defendants, however, that it also precludes the Plaintiff from obtaining title to the property which was used as collateral for the subject note and mortgage. As such, Defendants’ eighth affirmative defense fails as a matter of law, entitling Plaintiff to entry of summary final judgment. kk. Defendants have not and cannot come forward with any competent evidence in support of their alleged defenses that would preclude the entry of summary judgment in favor of Plaintiff. Equity dictates that this Court enter an order granting final summary judgment in favor of Plaintiff on all counts in the Complaint. 9, ENTITLEMENT TO JUDGMENT: Plaintiff is entitled to recover its principal, costs, attorneys’ fees, and other expenses. 10. NOISSUE OF LAW OR FACTS: _ The pleadings of file, together with the affidavits in support of the Complaint, demonstrate that there is no dispute as to any material fact. Accordingly, Plaintiff is entitled to Summary Final Judgment as a matter of law. TS# 17-029998 CASE NO. 17000587CA MTN FOR SUMMARY JDMT Page 20 of 22WHEREFORE, the Plaintiff respectfully requests that this Court enter Summary Final Judgment in its favor to the amount sought in its Complaint, grant Plaintiff's motion for attorneys’ fees and such other and further relief as this Court deems just, including the issuance of writs of possession against any parties that may be in possession of the property, and that such order would permit Plaintiff to assign the judgment to the owner without further order of the Court. I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via e-mail and/or first class mail, as appropriate, on this 10 day of Apr | L > 2018, to the parties on the attached service list. TRIPP SCOTT, P.A. Attorneys for Plaintiff 110S.E. Sixth St., 15th Floor Fort Lauderdale, FL 33301 Telephone (954) 765- Facsimile(954) 761 By. H. MICHAEL SOLLOA, JR., ESQ. Florida Bar No. 37854 mxs@trippscott.com nds@trippscott.com ‘TS# 17-029998 CASE NO. 17000587CA MTN FOR SUMMARY JDMT Page 21 of 22SERVICE LIST Case Number: 17000587CA JACQULYN MACK-MAJKA, ESQ. ATTORNEY FOR DEFENDANTS WILFREDO MILAN & LISSETTE REIGOSA MACK LAW FIRM CHARTERED 2022 PLACIDA ROAD ENGLEWOOD, FL 34224 eservicel @macklawfirm.org eservice2@macklawfirm.org UNKNOWN TENANT #1 N/K/A ABLE MILAN 3063 PELLAM BLVD PORT CHARLOTTE, FL 33952 CURRENT TENANT(S) 3063 PELLAM BLVD. PORT CHARLOTTE, FL 33952 TS# 17-029998 MTN FOR SUMMARY JDMT CASE NO. 17000587CA Page 22 of 22Filing # 63509115 E-Filed 10/30/2017 04:38:40 PM IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA CIVIL DIVISION FLORIDA OPPORTUNITY REAL ESTATE INVESTMENT, LLC, CASE NO: 17000587CA Plaintiff, vs. WILFREDO MILAN, LISSETTE REIGOSA, et al., Defendant(s). / PLAINTIFF’S NOTICE OF SERVICE OF ANSWERS TO DEFENDANT’S FIRST SET OF INTERROGATORIES Plaintiff, FLORIDA OPPORTUNITY REAL ESTATE INVESTMENT, LLC (“Plaintiff”), by and through its undersigned counsel and pursuant to 1.340, Fla. R. Civ. P., hereby gives notice that it has served its Answers to the First Request for Interrogatory numbered | through 10 propounded by Defendants, WILFREDO MILAN and LISSETTE REIGOSA (“Defendant” or “Defendants”). CERTIFICATE OF SERVICE ] HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via e-mail and/or first class mail, as appropriate, on this 30" day of October, 2017, to JACQULYN MACK-MAJKA, ESQ., MACK LAW FIRM CHARTERED, 2022 PLACIDA ROAD, ENGLEWOOD, FL 34224, Served via email at: eservicel @macklawfirm.org and eservice2@macklawfirm.org. TRIPP SCOTT, P.A. Attorneys for Plaintiff 410 S.E. Sixth St., 15th Floor Fort Lauderdale, FL 33301 Telephone (954) 765-29 2 Esq. Fla. Bar No. 0037854 mxs@trippscott.com 17-029998 Florida Opportunity Real Estate Investment, LLC v. Wilfredo Milan; Lissette Reigosa, et al. Case no.: 17000587CA Plaintiff's Responses to Defendant’s First Interrogatories EXHIBITFiling # 63509115 E-Filed 10/30/2017 04:38:40 PM IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA CIVIL DIVISION FLORIDA OPPORTUNITY REAL ESTATE INVESTMENT, LLC, CASE NO: 17000587CA Plaintiff, vs, WILFREDO MILAN; LISSETTE REIGOSA, et al., Defendant(s). PLAINTIFF’S RESPONSES TO DEFENDANT’S FIRST SET OF INTERROGATORIES Plaintiff, FLORIDA OPPORTUNITY REAL ESTATE INVESTMENT, LLC, by and through the undersigned counsel, hereby serves its response to Defendants’, WILFREDO MILAN and LISSETTE REIGOSA’s, First Set of Interrogatories on Plaintiff numbered 1 through 15. PRELIMINARY STATEMENT These responses have been prepared from information obtained from expected and reasonably available sources by Plaintiff through reasonably diligent inquiry. To the extent that any of these interrogatories purport to require more, however, Plaintiff objects to each of them on the ground that it imposes undue burden or expense. The information provided in these responses is based upon such information as is reasonably available to Plaintiff, and Plaintiff expressly reserves the right, without assuming any duty of disclosure not required under the Florida Rules of Civil Procedure or order of this Court, to revise, amend, correct, add or clarify any of these responses if and when additional information or documentation comes to its attention. Whether responding to each interrogatory by answer or objection, Plaintiff does not concede the evidentiary relevance, materiality, or admissibility of any of these interrogatorics, the responses thereto, or the subject matter to which they relate. 17-029998 Florida Opportunity Real Estate Investment, LLC v, Wilfiedo Milan; Lissette Reigosa, et al, Case no.: 17000587CA Plaintiff's Responses to Defendant’s First InterrogatoriesPlaintiff expressly reserves the right to supplement or amend these objections and responses upon, among other things: further investigation; discovery of additional facts; discovery of persons with knowledge of relevant information; and developments in this action or in any other proceedings. GENERAL OBJECTIONS Without in any way limiting the force or application of the Preliminary Statement, Plaintiff asserts the following general objections (hereinafter referred to as “General Objections”): 1. Plaintiff objects to the Interrogatories to the extent that Defendants seek information that constitutes attorney work product or that was prepared in anticipation of legal action and thus protected by attorney-client privilege. 2. Plaintiff objects to the Interrogatories to the extent that Defendants require Plaintiff to provide information not within the scope of discovery permitted by the Florida Rules of Civil Procedure. 3. Plaintiff objects to the Interrogatories to the extent that Defendants seek information, documents, or responses to matters that are not asserted in the pleadings on the grounds that the information is not relevant to any issue legitimately raised in this action and not reasonably calculated to lead to the discovery of admissible evidence. 4, Plaintiff objects to the Interrogatories to the extent that Defendants seek information that is not within Plaintiff’s possession, custody, or control and/or is uniquely within the knowledge of Defendants or other third parties with knowledge relevant to this action, 5, Plaintiff objects to the Interrogatories to the extent that Defendants seek information that is vague, ambiguous, overly broad, unduly burdensome, oppressive, vexatious, or not reasonably calculated to lead to the discovery of admissible evidence. SPECIFIC OBJECTIONS AND ANSWERS Without in any way limiting the force or application of the Preliminary Statement and General Objections, Plaintiff asserts these specific objections (hereinafter referred to as 17-029998 Florida Opportunity Real Estate Investment, LLC v, Wilfredo Milan; Lissette Reigosa, et al. Case no.: 17000587CA Plaintiff’s Responses to Defendamt’s First Interrogatories“Specific Objections”) and responds to the correspondingly numbered Interrogatory requests, as follows: 1. What is the name and address, job title, employer, business address and phone number of the person answering these interrogatories and explain in detail the relationship of the person answering these interrogatories to the Plaintiff in this case. ANSWER: Plaintiff objects as overly broad, unduly burdensome, it is irrelevant, immaterial, appears calculated to harass, and is not reasonably calculated to lead to the discovery of admissible evidence in this foreclosure action, and not within the scope of discovery pursuant to Fla. R. Civ. P. 1.280. Subject to and without waiving these objections, please see signature line below. In addition, counsel of record has assisted with the preparation of the Responses to Defendant’s interrogatories, 2. Please state all details known by Plaintiff to support the statement in Plaintiff's Certification Regarding Original Promissory Note of the CERTIFICATION OF POSSESSION PURSUANT TO FLA. STAT. 702.015(4), “On June 21, 2017, I obtained the original Note document at 5:18 p.m. and personally verified that the law firm of Tripp Scott, P.A. is in possession of the Note on Behalf of the Plaintiff.”. ANSWER: Plaintiff objects as overly broad, unduly burdensome, it is irrelevant, immaterial, appears calculated to harass, and is not reasonably calculated to lead to the discovery of admissible evidence in this foreclosure action, and not within the scope of discovery pursuant to Fla. R. Civ. P. 1.280. Subject to and without waiving these objections, Plaintiff sent the original Note to its counsel and counsel certified that he received and reviewed the actual original note, prior to filing the Complaint. 3. Please state all details known by Plaintiff regarding the indorsement, placed on the original Note in question. Include the date said indorsement was placed on the Note, who authorized the indorser to place the indorsement on the note, what authority the indorser had to make the indorsement, and whether any subsequent indorsements were placed on the note. ANSWER: Plaintiff objects on the basis that this is irrelevant, overbroad, and not reasonably calculated to lead to the discovery of relevant, admissible evidence in this foreclosure action, and not within the scope of discovery pursuant to Fla. R. Civ. P. 1,280. In re Balderrama, 451 B.R. 185, 187 (Bankr, M.D, Fla. 2100) (any requests for information regarding the prior ownership history of the note or mortgage are irrelevant and overbroad under Florida law.”). Pursuant to Florida law, Courts will not look beyond the holder of the Note to identify the proper Plaintiff. Booker v. Sarasota, Inc., 707 So.2d 886 (Fla, Ist DCA 1998), To the extent this Interrogatory is not objectionable, Plaintiff is the owner and holder of the Note, indorsed into Plaintiff. A copy of the Note, Mortgage and Assignments of Mortgage were filed with the Complaint. 17-029998 Florida Opportunity Real Estate Investment, LLC v. Wilfredo Milan; Lissette Reigosa, et al, Case no.: 17000587CA. Plaintiff's Responses to Defendant’s First Interrogatories4, Please state all details known by Plaintiff regarding how it first received possession of the note. Include when Plaintiff received the note, who delivered the note to Plaintiff, who received the note, whether Plaintiff only received certain rights in the note, if so, what rights, the location the note was stored