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Filing # 66330313 E-Filed 01/09/2018 09:57:13 PM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL
CIRCUIT_IN AND FOR CHARLOTTE COUNTY
FLORIDA OPPORTUNITY REAL ESTATE
INVESTMENT, LLC,
Plaintiff(s),
v. Case No.: 17-000587-CA.
WILFREDO MILAN; LISSETTE REIGOSA;
ALL UNKNOWN PARTIES CLAIMING
INTERESTS BY, THROUGH, UNDER OR
AGAINST A NAMED DEFENDANT TO THIS
ACTION, OR HAVING OR CLAIMING TO
HAVE ANY RIGHT, TITLE OR INTEREST IN
THE PROPERTY HEREIN DESCRIBED;
UNKNOWN TENANT #1; UNKNOWN
TENANT #2,
Defendant(s).
/
DEFENDANTS’ WILFRDEO MILAN AND LISSETTE REIGOSA MOTION FOR
LEAVE TO AMEND ANSWER AND AFFIRMATIVE DEFENSES
Defendants, Wilfredo Milan and Lissette Reigosa, by and through undersigned counsel,
and in accordance with Rule 1.190 Florida Rules of Civil Procedure, hereby move this Court to
enter an order allowing the requested amendments and as grounds state:
1. This residential mortgage foreclosure case was filed on or about June 28, 2017, a
Motion to Dismiss was filed in response and denied.
2. Undersigned counsel filed an Answer to the Complaint on December 6, 2017 on behalf
of both parties.
3. Since the Answer and Affirmative Defenses were filed, both parties have engaged in
202:
This pleading ser Hangfira. org,Discovery.
4. Additionally, various scriveners errors have been identified and require revision.
5. Certain amendments to the Answer and the Affirmative Defenses have become
necessary as a result of the aforementioned.
6. The proposed Amended Answer and Affirmative Defenses are attached here as Exhibit
A
7. There will be substantial prejudice to the Defendants if the Motion to Amend is not
granted because of the issues revealed by the discovery produced by Plaintiff.
8. In Green v. JP Morgan Chase Bank, the court held that “all doubts must be resolved in
favor of allowing amendment, and “[p]ublic policy...favors the liberal granting of leave
to amend where the failure to do so will likely prevent the cause from being resolved
on its merits.” 109 So.3d 1285, 1287, citing Crown v. Chase Home Fin., 41 So.3d 978,
980 (Fla. 5th DCA 2010).
9. Defendant has not previously sought leave to amend to date, and Plaintiff will not be
prejudiced by the granting of this motion. Thompson v. Bank of New York, 862 So.2d
768, 770 (Fla.4" DCA 2003)(“As a general rule, ‘[IJeave to amend should not be
denied unless the privilege has been abused, there is prejudice to the opposing party, or
amendment would be futile.’ ” )(citations omitted)
WHEREFORE, Defendants respectfully requests that this Honorable Court enter an order
granting their Motion for Leave to amend their Answer and Affirmative Defenses attached hereto
and deem it filed.
/s/ Jacqulyn Mack
Mack Law Fim
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This pleading serv uacklanfira. org,Jacqulyn Mack-Majka, Esquire
Florida Bar No.: 0134902
MACK LAW FIRM CHARTERED
Primary: eservicel@macklawfirm.org
Secondary: eservice2@macklawfirm.org
2022 Placida Road
Englewood, Florida 34224-5204
(941) 475-7966
(941) 475-0729 fax
Attorney for Defendant
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished
by e-mail to all counsel of record via the Florida Courts E-Filing Portal on January 09, 2018.
/s/ Jacqulyn Mack
Jacqulyn Mack, Esquire
Tripp Scott, P.A.
H. Michael Solloa, Jr.
110 SE 6th Street
15th floor
Ft. Lauderdale, FL 33301
954-765-2918
mxs@trippscott.com
Mack Law Firm Chartered
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944) 156 T (O41)
n.org anti esery
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This pleading ser
Hangfira. org,IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR
CHARLOTTE COUNTY
FLORIDA OPPORTUNITY REAL ESTATE
INVESTMENT, LLC
Plaintiff(s), Page| 1
Vs. CASE NO.: 17-000587-CA
WILFREDO MILAN; LISSETTE REIGOSA;
ALL UNKNOWN PARTIES CLAIMING
INTERESTS BY, THROUGH, UNDER OR
AGAINST A NAMED DEFENDANT TO THIS
ACTION, OR HAVING OR CLAIMING TO
HAVE ANY RIGHT, TITLE OR INTEREST IN
THE PROPERTY HEREIN DESCRIBED;
UNKNOWN TENANT #1; UNKNOWN
TENANT #2
Defendant(s).
DEFENDANTS’ ANSWER AND FIRST AMENDED AFFIRMATIVE DEFENSES
Defendants Wilfredo Milan and Lissette Reigosa (“Defendants”), by and through the
undersigned attorney, hereby answer Plaintiffs Foreclosure Complaint and state:
ANSWER
1, Denied, and demand strict proof thereof.
2. Without knowledge, therefore denied.
3. Without knowledge, therefore denied.
4, Admit that MR. Milan signed a Note on or about April 4, 2005, deny remainder of
sentence. Admit attachment A is entitled Plaintiff's Certification of Possession of
202:
This pleading ser Hangfira. org,10.
11.
12.
13.
14,
15.
16.
18.
19.
20.
21.
Original Promissory Note. Without knowledge as to whether the Note attached to Exhibit
A is an exact replication of the wet ink Note signed by the maker.
Admitted that such Mortgage was executed. Otherwise without knowledge and therefore pagel?
denied.
Without knowledge and therefore denied.
Without knowledge, therefore denied as to conditions precedent. Deny that Exhibit D is
entitled “Notice of Demand”.
Without knowledge, therefore denied.
This is not a statement that requires admission or denial.
Without knowledge and therefore denied.
Without knowledge, therefore denied.
Admitted.
Without knowledge and therefore denied.
Without knowledge and therefore denied.
Without knowledge and therefore denied.
Without knowledge and therefore denied.
. Without knowledge and therefore denied.
Without knowledge and therefore denied.
Without knowledge and therefore denied.
Without knowledge, therefore denied.
Without knowledge, therefore denied.
Mack Law Fim
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This pleading serv uacklanfira. org,AFFIRMATIVE DEFENSES
First Affirmative Defense: Statute of Limitations
Plaintiff filed the instant action on June 28, 2017, concerning a Note and Mortgage made
payable to Equifirst Corporation. According to Plaintiffs Verified Complaint, Defendants
defaulted on the Note and Mortgage because “the payment due for July, and all subsequent
payments have not been made.” Plaintiff's Complaint alleges that Plaintiff is due $125,687.50 in
principal under the Note and Mortgage in addition to interest from June 1, 2012 and “unpaid taxes,
insurance premiums, accumulated late charges, and inspection fees” (PI. Complaint, § 8).
In addition to foreclosure of the subject Note and Mortgage, Plaintiff is requesting a
deficiency judgment against Defendants for any amounts allegedly owed in excess of the proceeds
of a court-ordered sale, Pursuant to Fla. Stat. § 95.281, an action to foreclose a mortgage must be
commenced within five (5) years of the default under the terms of said note and mortgage. Further,
the law is well settled that the statute of limitations begins to run against a mortgage at the time
the right to foreclose accrues. Travis v. Mayes, 36 so. 2d 264, 265 (Fla. 1948). “[W]ith each
subsequent default, the statute of limitations runs from the date of each new default providing
mortgagee the right, but not the obligation, to accelerate all sums then due under the note and
mortgage. Bartram v. U.S. Bank Nat. Ass'n, 211 So. 3d 1009, 1019 (Fla. 2016). The court in
Bartram affirmed its reasoning from Singleton that the installment nature of a mortgage continues
after dismissal of a prior foreclosure action, and that each default presents a separate and distinct
issue. /d. (citing Singleton v. Greymar Assoc., 882 So. 2d 1004 (Fla. 2004).
In the present action, the accelerated balance claimed in the Plaintiff's Complaint includes
payments that were allegedly defaulted on more than five years to the filing of this action. In
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Page |3addition, it is believed and therefore alleged that Plaintiff is seeking to recover interest due beyond
the five-year statute of limitations, and the “unpaid taxes, insurance premiums, accumulated
charges, and inspection fees” include costs, interest and other default charges that were incurred
more than five years prior to the filing of the instant action. Therefore, Plaintiff is not entitled to
recover any sums due beyond the applicable limitations period.
Second Affirmative Defense: Failure to State a Cause of Action
The instant lawsuit is not the first foreclosure attempt on the subject property. On February
5, 2008, US Bank National Association as Trustee, Plaintiffs alleged predecessor in interest, filed
a foreclosure action in this Court against these Defendants. The case number for that action is
2008-000612-CA (“2008 foreclosure”). That action was ultimately dismissed without prejudice
on April 27, 2009. True and correct copies of the Complaint and dismissal order in that prior action
are attached as Exhibit A hereto and incorporated herein.
On January 30, 2009, U.S. Bank National Association as Trustee for RAMP 2005 EFC2
filed a second foreclosure lawsuit involving the same Note, Mortgage and Defendants as in this
case and the 2008 foreclosure. The case number for that action is 2009-000528-CA (“2009
foreclosure”). That action was ultimately dismissed without prejudice on April 21, 2010. True and
correct copies of the Complaint and dismissal order in that prior action are attached as Exhibit B
hereto and incorporated herein.
During this time period the Milan’s were involved in a Chapter 7 bankruptcy case, filed on
February 6, 2009, discharge granted on August 26, 2009 and terminated on February 27, 2012.
See Exhibit C, bankruptcy court documents. The Voluntary Petition Schedule D, identified
Homecomings as the owner of the mortgage and note that is the subject of this action. (Page 13 of
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Page | 4Petition). The Defendants actually surrendered the property to the Trustee, but it was abandoned
back to them by the Trustee pursuant to 11 U.S.C. §554(c). (E- Trustee Final Account, page 6).
The claim made by Homecomings in the bankruptcy was valued at $126,000.00. Jd.
The instant action filed on June 28, 2017 is based upon an alleged default that allegedly
occurred on July 1, 2012. The accelerated amount demanded by Plaintiff, $125,687.50, is identical
to the amount, $125,687.50, claimed by Homecomings in its successful Motion for Relief from
Stay filed in the 2009 Bankruptcy, (F- Motion for Relief from Stay page two). Therefore, it is
Defendants position that the amount(s) Plaintiff seeks in this case is/are barred by the Statute of
Limitations.
Third Affirmative Defense: Lack of Standing
“A crucial element in any mortgage foreclosure proceeding is that the party seeking
foreclosure must demonstrate that it has standing to foreclose. To establish standing, the party
seeking to enforce the note must present evidence that it owns and holds the note and mortgage in
question. Additionally, a party must have standing to file suit at its inception and may not remedy
this defect by subsequently obtaining standing. Figueroa v. Federal Nat. Mortg. Ass'n, 180 So. 3d
1110, 1115 (Fla. 5° DCA 2015). (internal quotations and citation marks omitted) (“The allonge,
which contains an undated endorsement to SunTrust from SunTrust as power of attorney for
Global Mortgage, Inc., would not have been sufficient had it been introduced into evidence as
there was no evidence or testimony presented to establish the existence of a power of attorney
relationship between SunTrust and Global.”)
Pursuant to Fla. Stat. § 673.3011, the “person entitled to enforce” an instrument can be (1)
the holder of the instrument, (2) a nonholder in possession who has the rights of a holder, or (3) a
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Page | 5person not in possession who is entitled to enforce the instrument pursuant to § 673.3091 (lost,
destroyed, or stolen instrument) or § 673.4181(4) (payment or acceptance by mistake). Plaintiff
claims that it is “entitled to foreclosure” of the mortgage; however, Plaintiff states it is “owner and
holder” of the subject note and cites Fla. Stat. § 673.3011in support. Plaintiffs attorney has
submitted a Certification of Physical Possession of Original Promissory Note (see attachments to
Pl. Complaint); therefore, Plaintiff alleges that it possesses the original note and is therefore a
holder or a non-holder in possession with rights of a holder.
The subject Mortgage and Note have purportedly been assigned three times since their
creation. Plaintiff attached three assignments and three allonges to its Complaint, which purport to
demonstrate the chain of title giving Plaintiff standing to foreclose. However, a close, review of
the allonges reveals that there is no evidence that the indorsers had the requisite authority to indorse
the note for each transferee. See Figueroa at 1115, supra.
The first allonge fails to negotiate the Note because the signer purports to be acting as an
attorney in fact for the holder, “U.S. Bank National Association, as Trustee”! Because Plaintiff did
not include power of attorney documents, thus failing to establish the authority from “U.S. Bank
National Association, as Trustee”, by which Residential Funding Company, LLC through its
authorized officer Alison Cameron, could purportedly negotiate the transfer of the subject note to
Residential Funding Company, LLC, the endorsement is anomalous. See, Florida Statutes §
673.2051(4); Buckingham v. Bank of America, N.A., 2017 WL 4798594, at *1 (Fla.2d DCA 2017)
(“In the present case, the note did not contain an endorsement in favor of the plaintiff bank.
' The words “as trustee” are superfluous due to failure to identify the trust for which U.S. Bank
National Association served as trustee. See, Florida Statutes §§ 673.1101(3) (b) (1).
Mack Law Finn Chartered
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Page | 6Although the note was ultimately endorsed in blank by the bank as a successor by merger to
LaSalle Bank, there was no evidence establishing the merger, let alone that the bank acquired all
of LaSalle Bank's assets....On the present record, the endorsement in blank by the bank appears
to be an anomalous endorsement.”)(internal citations omitted); PennyMac Corp. v. Frost, 214
So.3d 686, 689 (Fla.4" DCA 2017)(“Stated another way, the presumption that a signature on
an indorsement is “authentic and authorized” does not mean we must presume that JPMorgan was
a holder of the note or that JPMorgan's indorsement negotiated the note. To the contrary, the note
on its face demonstrates that JPMorgan's indorsement was an anomalous indorsement, rather than
a blank indorsement.”)
The failure to attach the powers of attorney to show the authority for the indorsements’
signatories is compounded by the fact that Alison Cameron was both: a purported “authorized
officer” for “Residential Funding Company, LLC as attorney in fact for U.S. Bank National
Association, as Trustee”; in effectuating the alleged negotiation to “Residential Funding Company,
LLC” and was an “authorized officer” for “Residential Funding Company, LLC” in effectuating
the Note’s alleged negotiation to “GLAV Fund I Trust”. Likewise the Allonge from “GLAV Fund
I Trust” to “NOTEZ, LLC” does not negotiate the Note because 1) of nemo dat quod non habet
a/k/a the “Shelter Rule” and, 2) GLAV FUND I TRUST does not endorse the note rather the
endorsement is from its purported Trust Administrator, “Granite Loan Solutions LLC” See, Florida
Statutes § 673.2051(4); Robelto v. U.S. Bank Trust, N.A., 194 So.3d 429, 433 (Fla.4" DCA
2016)(“Moreover, even if we were to suppose that Wells Fargo somehow was a servicer and in
the chain of title, the evidence is insufficient to show the chain of transfers through the two
allonges. They purport to show first a transfer from HSBC to U.S. Bank and then a blank
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Page |7endorsement from U.S. Bank. However, both are signed by a representative of Caliber, and there
is nothing in the record to show by what authority Caliber could make either assignment. At best,
it might be inferred that Caliber was the servicer for U.S. Bank. But no servicing agreements were
entered to show that Caliber had authority from HSBC to act as its attorney-in-fact to assign the
loan toU.S.Bank. There is simply no competent evidence to support a finding
that U.S. Bank acquired the note from a person who had the right to enforce it when the note was
lost.”)
For the aforesaid reasons, the Plaintiff has not demonstrated that it has standing to enforce
the subject note and mortgage.
Fourth Affirmative Defense —
Two Dismissal Rule, Res Judicata & collateral Estoppel
Claims in this matter were previously adjudicated and are barred by the “two dismissal
rule”, the doctrine of res judicata and/or collateral estoppel due to the two prior foreclosures
involving the same note and mortgage.
Fifth Affirmative Defense- 12 USC § 2605 and Florida Statute §559.715 Violation(s)
Plaintiff and its alleged predecessors in interest have failed to comply with 12 USC § 2605
and Florida Statute §559.715. Plaintiff has not given the debtor(s) written notice of assignment
of the debt, or in the alternative, has given written notice on a date which was less than 30 days
before this action was initiated. Plaintiffs alleged predecessors in interest have likewise
violated these statutes.
Sixth Affirmative Defense- Lack of Standing
According to Article 9 of the Uniform Commercial Code (codified as Florida Statute
Chapter 679) and other applicable law, Plaintiff did not attach or perfect its security interest in
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Page | 8the subject Note and does not have priority in it. Therefore, even if Plaintiff and Defendants
are parties to an operative contract, Plaintiff does not have standing to enforce the Note or
foreclose the Mortgage.
Seventh Affirmative Defense- Failure to State a Cause of Action
Plaintiff lacks standing and fails to state a cause of action for mortgage foreclosure because the
note is not endorsed and consideration paid to transferor by Plaintiff has not been pled. See,
Florida Statute § 673.2031 (3) “Unless otherwise agreed, if an instrument is transferred for value
and the transferee does not become a holder because of lack of indorsement by the transferor, the
transferee has a specifically enforceable right to the unqualified indorsement of the transferor, but
negotiation of the instrument does not occur until the indorsement is made.”
Eighth Affirmative Defense Bankruptcy —Defendant’s debt discharged in 2009 Bankruptcy
The subject Note and any and all corresponding debt associated therewith has been
discharged in bankruptcy.
Attorney Fees per 57.105
Defendants pray that this Court award them reasonable attorneys’ fees and costs if they are
prevailing party in this case.
WHEREFORE, Defendants herein, pray that this Court enter judgment in their favor,
award them attorney’s fees and costs and all other relief to which they are entitled.
/s/ Jacqulyn Mack-Majka
Jacqulyn Mack-Majka, Esquire
Florida Bar No.: 0134902
MACK LAW FIRM CHARTERED
Primary: eservicel@macklawfirm.org
Mack Law Finn Chartered
2022 Placida Road *? Englewood Florida 3
This pleading serves as designation of e-service ese?
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Til)
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Page |92022
This pleading serv
Mack Law Finn
Secondary: eservice2@macklawfirm.org
2022 Placida Road
Englewood, Florida 34224-5204
(941) 475-7966
(941) 475-0729 fax
Attorney for Milan and Reigosa Page | 10
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished
by e-mail to all counsel of record via the Florida Courts E-Filing Portal on
> Englewood
/s/ Jacqulyn Mack-Majka
Jacqulyn Mack-Majka, Esquire
uacklanfira. org,TN THE CIRCUIT COURT OF THE 20TH JUDICIAL
CIRCUIT, IN AND FOR CHARLOTTE COUNTY,
FLORIDA
GENERAL JURISDICTION DIVISION
CASENO: OS esac
US BANK NATIONAL ASSOCIATION AS
TRUSTEE
PLAINTIFF
VS.
WILFREDO MILAN; LISSETTE REIGOSA,;
ANY AND ALL UNKNOWN PARTIES
CLAIMING BY, THROUGH, UNDER, AND
AGAINST THE HEREIN NAMED
INDIVIDUAL DEFENDANT(S) WHO ARE
NOT KNOWN TO BE DEAD OR ALIVE,
WHETHER SAID UNKNOWN PARTIES MAY
CLAIM AN INTEREST AS SPOUSES, HEIRS,
DEVISEES, GRANTEES OR OTHER
CLAIMANTS; JOHN DOE AND JANE DOE AS
UNKNOWN TENANTS IN POSSESSION.
ee
COMPLAINT TO FORECLOSE MORTGAGE
AND TO ENFORCE LOST LOAN DOCUMENTS
Plaintiff, sues the Defendant(s) and alleges:
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v2-219000-80 |
SO SHS) B0/SO/Z0
COUNTI
1, THIS IS AN ACTION to foreclose a Mortgage on real property in CHARLOTTE County, Florida.
2. This Court has jurisdiction over the subject matter herein.
3. On APRIL 4, 2005 WILFREDO MILAN AND LISSETTE REIGOSA, HUSBAND AND WIFE
executed and delivered a Promissory Note and a Mortgage securing payment of the Note to the Payee
named thereon.
4. The Mortgage was recorded on APRIL 13, 2005 in Official Records Book 2679 at page 159, of the Public
Records of CHARLOTTE County, Florida, and mortgaged the property described in it, then owned by and
possessed by the Mortgagors, a copy of the Mortgage IS attached hereto as "Exhibit "A". Said mortgage
was subsequently assigned to US BANK NATIONAL ASSOCIATION AS TRUSTEE by virtue of an
assignment to be recorded.
5. The Plaintiff owns and holds the Note and Mortgage.
6. The property is now owned by the Defendant(s), WILFREDO MILAN AND LISSETTE REIGOSA , if
living and if dead, the unknown spouses, heirs and beneficiaries of WILFREDO MILAN AND LISSETTE
REIGOSA who hold(s) possession.
7. There is a default under the terms of the note and mortgage for the OCTOBER 1, 2007 payment and all
payments due thereafter.
8. All conditions precedent to the acceleration of this Mortgage Note and to foreclosure of the Mortgage have
been fulfilled or have occurred.
9. The Plaintiff declares the full amount payable under the Note and Mortgage to be due.
Exhibit A10. The borrowers owe Plaintiff $127,250.34 that is due in principal on the Mortgage Note and Mortgage,
together with interest from SEPTEMBER 1, 2007, late charges, and all costs of collection including title
search expenses for ascertaining necessary parties to this action and reasonable attorney's fees.
ll. Plaintiff is obligated to pay its attorney a reasonable fee for his services rendered.
12. Defendants, John Doe and Jane Doe, may claim an interest in the property described in the Mortgage as
tenants pursuant to a lease agreement, either written or oral. Said interest is subject, subordinate, and
inferior to the lien of the Mortgage held by Plaintiff.
13. In addition to all other named defendants, the unknown spouses, heirs, devisees, grantees, assignees,
creditors, trustees, successors in interest or other parties claiming an interest in the subject property by,
through under or against any of said defendants, whether natural or corporate, who are not known to be
alive or dead, dissolved or existing, are joined as defendants herein. The claims of any of said parties are
subject, subordinate, and inferior to the interest of Plaintiff.
WHEREFORE, Plaintiff prays: That an accounting may be had and taken under the direction of this Court
of what is due the Plaintiff for principal and interest on said Mortgage and Mortgage Note, and for the costs, charges
and expenses, including attorney's fees and title search costs, and advancements which Plaintiff may be put to or
incur in and about this suit, and that the Defendants found responsible for same be ordered to pay the Plaintiff herein
the amounts so found to be due it; that in default of such payments, all right, title, interest, claim, demand, or equity
of redemption of the Defendants and all other persons claiming by, through, under or against said Defendants since
the filing of the Lis Pendens herein be absolutely barred and foreclosed and that said mortgage property be sold
under the direction of this Court; that out of the proceeds of said sale, the amounts due the Plaintiff may be paid so
far as same will suffice; and that a deficiency judgment be entered if applicable and only in the event no Order of
Discharge of Personal Liability in Bankruptcy has been entered as to any of the Defendants who signed the subject
Note and Mortgage and a Writ of Possession be issued.
Cc TT
14. This is an action to enforce a lost, destroyed or stolen promissory note and Mortgage under
Fla.Stat.§673.3091.
15. On APRIL 4, 2005, WILFREDO MILAN AND LISSETTE REIGOSA, HUSBAND AND WIFE,
executed and delivered a Promissory Note and a Mortgage securing payment of the Note to the payee
named thereon.
16. The Mortgage was recorded on APRIL 13, 2005 in Official Records Book 2679 at page 159, of the Public
Records of CHARLOTTE County, Florida, a substantial copy of the Mortgage being attached hereto as
composite Exhibit “A” to the Plaintiff's original Complaint herein.
17. The Plaintiff is not presently in possession of original Note and Mortgage. However,
a) the Plaintiff was in possession of the Note and Mortgage and was entitled to enforce THEM when
the loss of possession occurred;
b) the loss of possession was not the result of a transfer by Plaintiff or lawful seizure; and
c) the Plaintiff cannot reasonably obtain possession of the Note and Mortgage because THEIR.
whereabouts cannot be determined. a
18. The terms of the Note are shown on the attached ledger of loan marked as Exhibit “19, The Plaintiff will agree to entry of a Final Judgment of Foreclosure wherein it will be required to indemnify
and hold harmless Defendant(s), WILFREDO MILAN AND LISSETTE REIGOSA, from any
loss they may incur by reason of a claim by another person to enforce the lost Note and Mortgage.
WHEREFORE, Plaintiff requests entry of judgment confirming its right to enforce the lost Note and
Mortgage under Fla. Stat.§673.3091.
TO ALL DEFENDANTS: PLEASE NOTE EFFECTIVE OCTOBER 13, 2006, 15 U.S.C. §1692G OF THE
FAIR DEBT COLLECTION PRACTICES ACT HAS BEEN AMENDED AS FOLLOWS:
(a) LEGAL PLEADINGS -- Section 809 of the Fair Debt Collection Practices Act (15 U.S.C. 1692g) is
amended by adding at the end the following new subsection:
"(d) Legal Pleadings -- A communication in the form of a formal pleading in a civil action shall not
be treated as an initial communication for purposes of subsection (a)."
e—
KARINA M. MUSELLA 004369”
Law Offices of David J. Stern, P.A.
Attorney for Plaintiff
801 S. University Drive Suite 500
Plantation, FL 33324
(954) 233-8000
08-28172(HCNW) Bar #: 30527
F \GROUPS\FCDOCS\COMPL AIN\08\08-28172, CMPIMAGEO] : FL-08-662-2 01/10/2008 12:26:31pm DOC: OR 2679/159 Page | of 18
BARBARA T. SCOTT, CLERK
Return To: CHARLOTTE COUNTY
EquiFirst Corporation OR BOOK 02679
Attn: Collateral M PGS 0159-9176 (18 Pg(s))
500 Forest Point Circle FILE NUMBER 1367627
Charlotte, NC 28273 RECORDED 64/13/2085 11:38:18 AM
RECORDING FEES 154.58
STG DOC 456.75
This document was prepared by: INTANGIBLE 261.06
April Vane
500 Forest Point Circle,
Charlotte, NC 28273
#1 ey RETURN To: 705-018
RIDA [Space Above This Line For Recording Data}————————_________—
pony GHARLOTTE. FL 23082 MORTGAGE
DEFINITIONS
Words used in multiple sections of this document are defined below and other words are defined in
Sections 3, 11, 13, 18, 20 and 21. Certain rules regarding the usage of words used in this document are
also provided in Section 16.
(A) "Security Instrument" means this document, which is dated April 4, 2005 .
together with all Riders to this document.
(B) "Borrower" is Wilfredo Milan, joined by his wife Lissette Reigosa
Borrower is the mortgagor under this Security Instrument.
(C) "MERS"” is Mortgage Electronic Registration Systems, Inc. MERS is a separate corporation that is
acting solely as a nominee for Lender and Lender's successors and assigns. MERS is the mortgagee
under this Security Instrument. MERS is organized and existing under the laws of Delaware, and has an
address and telephone number of P.O. Box 2026, Flint, MI 48501-2026, tel. (888) 679-MERS.
(D) "Lender" is EquiFirst Corporation
FLORIDA-Single Femily-Fannie Mae/Freddie Mac UNIFORM INSTRUMENT WITH MERS Form 3010 1104
Qa co008).01
meats va WA_ XZ
\VMP MORTGAGE FORMS - (800)521-7291
(MAGED IN MURDOCK
EXH "9 $
~Book2679/Page159 CFN#1367627 Page 1 of 18IMAGE01 :
FL-08-662-2 01/10/2008 12:26:31pm DOC: OR 2679/159
Lender is a Corporation
organized and existing under the laws of North Carolina
Lender's address is 500 Forest Point Circle, Charlotte, NC 28273
(E) "Note" means the promissory note signed by Borrower and dated April 4, 2005
The Note states that Borrower owes Lender one hundred thirty thousand five hundred
and 00/100 Dollars
(U.S. $130,500.00 ) plus interest. Borrower has promised to pay this debt in regular Periodic
Payments and to pay the debt in full not later than May 1, 2035
(F) "Property" means the property that is described below under the heading "Transfer of Rights in the
Property."
(G) "Loan" means the debt evidenced by the Note, plus interest, any prepayment charges and late charges
due under the Note, and all sums due under this Security Instrument, plus interest.
(H) "Riders" means all Riders to this Security Instrument that are executed by Borrower. The following
Riders are to be executed by Borrower [check box as applicable]:
Adjustable Rate Rider [—] Condominium Rider Second Home Rider
Balloon Rider {J Planned Unit Development Rider [_] 1-4 Family Rider
[J va Rider [1] Biweekly Payment Rider [xc] Other(s) [specify]
PrePaynent Penalty Rider
(D “Applicable Law” means all controlling applicable federal, state and local statutes, regulations,
ordinances and administrative rules and orders (that have the effect of law) as well as all applicable final,
non-appealable judicial opinions.
(J) "Community Association Dues, Fees, and Assessments” means all dues, fees, assessments and other
charges that are imposed on Borrower or the Property by a condominium association, homeowners
association or similar organization.
(K) "Electronic Funds Transfer" means any transfer of funds, other than a transaction originated by
check, draft, or similar paper instrument, which is initiated through an electronic terminal, telephonic
instrument, computer, or magnetic tape so as to order, instruct, or authorize a financial institution to debit
or credit an account. Such term includes, but is not limited to, point-of-sale transfers, automated teller
machine transactions, transfers initiated by telephone, wire transfers, and automated clearinghouse
transfers.
(L) "Escrow Items" means those items that are described in Section 3.
{M) "Miscellaneous Proceeds" means any compensation, settlement, award of damages, or proceeds paid
by any third party (other than insurance proceeds paid under the coverages described'in Section 5) for: @
damage to, or destruction of, the Property; (ii) condemnation or other taking of all or any part of the
Property; (iii) conveyance in lieu of condemnation; or (iv) misrepresentations of, or omissions as to, the
value and/or condition of the Property.
» “Mortgage Insurance” means insurance protecting Lender against the nonpayment of, or default on,
Loan.
(O) "Pertodic Payment” means the regularly scheduled amount due for (i) principal and interest under the
Note, plus (ii) any amounts under Section 3 of this Security Instrument.
7 won WAKE
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(P) "RESPA" means the Real Estate Settlement Procedures Act (12 U.S.C. Section 2601 et seq.) and its
implementing regulation, Regulation X (24 C.F.R. Part 3500), as they might be amended from time to
time, or any additional or successor legislation or regulation that governs the same subject matter. As used
in this Security Instrument, "RESPA" refers to all requirements and restrictions that are imposed in regard
to a “federally related mortgage loan” even if the Loan does not qualify as a "federally related mortgage
loan” under RESPA.
(Q) "Successor in Interest of Borrower" means any party that has taken title to the Property, whether or
not that party has assumed Borrower’ s obligations under the Note and/or this Security Instrument.
TRANSFER OF RIGHTS IN THE PROPERTY
This Security Instrument secures to Lender: (i) the repayment of the Loan, and all renewals, extensions and
modifications of the Note; and (ii) the performance of Borrower's covenants and agreements under this
Security Instrument and the Note. For this purpose, Borrower does hereby mortgage, grant and convey to
MERS (solely as nominee for Lender and Lender's successors and assigns) and to the successors and
assigns of MERS, the following described property located in the County —_[Type of Recording Jurisdiction}
ofCharlotte [Name of Recording Jurisdiction):
See Attached Exhibit A
Parcel ID Number: 00048360000002 which currently has the address of
3063 Pellam Boulevard {Street}
Port Charlotte [City], Florida 33952 [Zip Code]
("Property Address"):
TOGETHER WITH all the improvements now or hereafter erected on the property, and all
easements, , and fixtures now or hereafter a part of , All replacements and
additions shall also be covered by this Security Instrument. all of the pong cing is referred t9 in this
i as the "Property." Borrower understands and agrees that
es nomine fo Lee nd Lente sce an sug) as he : to exercise any
custom, MERS
or all of those interests, including, but not limited to, the right to foreclose and sell Property; and to
take any action required of Lender including, but not limited to, releasing and canceling this Security
we WA LL
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BORROWER COVENANTS that Borrower is lawfully seised of the estate hereby conveyed and has
the right to mortgage, grant and convey the Property and that the Property is unencumbered, except for
encumbrances of record. Borrower warrants and will defend generally the title to the Property against all
claims and demands, subject to any encumbrances of record.
THIS SECURITY INSTRUMENT combines uniform covenants for national use and non-uniform
covenants with limited variations by jurisdiction to constitute a uniform security instrument covering real
UNIFORM COVENANTS. Borrower and Lender covenant and agree as follows:
1. Payment of Principal, Interest, Escrow Items, Prepayment Charges, and Late Charges.
Borrower shall pay when due the principal of, and interest on, the debt evidenced by the Note and any
prepayment charges and late charges due under the Note. Borrower shall also pay funds for Escrow Items
pursuant to Section 3. Payments due under the Note and this Security Instrument shall be made in U.S.
currency. However, if any check or other instrument received by Lender as payment under the Note or this.
Security Instrument is returned to Lender unpaid, Lender may require that any or all subsequent payments
due under the Note and this Security Instrument be made in one or more of the following forms, as
selected by Lender: (a) cash; (b) money order; (c) certified check, bank check, treasurer's check or
cashier's check, provided any such check is drawn upon an institution whose deposits are insured by a
federal agency, instrumentality, or entity; or (d) Electronic Funds Transfer.
Payments are deemed received by Lender when received at the location designated in the Note or at
such other location as may be designated by Lender in accordance with the notice provisions in Section 15,
Lender may return sny payment or partial payment if the payment or partial payments are insufficient to
bring the Loan current. Lender may accept any payment or partial payment insufficient to bring the Loan
current, without waiver of any rights hereunder or prejudice to its rights to refuse such payment or partial
payments in the future, but Lender is not obligated to apply such payments at the time such payments are
accepted. If each Periodic Payment is applied as of its scheduled due date, then Lender need not pay
interest on unapplied funds. Lender may hold such unapplied funds until Borrower makes payment to bring
the Loan current. If Borrower does not do so within a reasonable period of time, Lender shall either apply
such funds or return them to Borrower. If not applied earlier, such funds will be applied to the outstanding
principal balance under the Note immediately prior to foreclosure. No offset or claim which Borrower
might have now or in the future against Lender shall relieve Borrower from making payments due under
the Note and this Security Instrument or performing the covenants and agreements secured by this Security
Instrument,
2, Application of Payments or Proceeds. Except as otherwise described in this Section 2, all
Payments accepted and applied by Lender shall be applied in the following order of priority: (a) interest
due under the Note; (b) principal due under the Note; (c) amounts due under Section 3. Such payments
shall be applied to each Periodic Payment in the order in which it became due. Any remaining amounts
shall be applied first to late charges, second to any other amounts due under this Security Instrument, and
then to reduce the principal balance of the Nate.
If Lender receives a payment from Borrower for a delinquent Periodic Payment which includes a
sufficient amount to pay any late charge due, the payment may be applied to the delinquent payment and
the late charge. If more than one Periodic Payment is outstanding, Lender may apply any payment received
from Borrower to the repayment of the Periodic Payments if, and to the extent that, each payment
= win WA KE
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can be paid in full. To the extent that any excess exists after the payment is applied to the full payment of
one or more Periodic Payments, such excess may be applied to any late charges due. Voluntary
prepayments shal] be applied first to any prepayment charges and then as described in the Note.
Any application of payments, insurance proceeds, or Miscellaneous Proceeds to principal due under
the Note shall not extend or postpone the due date, or change the amount, of the Periodic Payments.
3. Funds for Escrow Items. Borrower shall pay to Lender on the day Periodic Payments are due
under the Note, until the Note is paid in full, a sum (the "Funds") to provide for payment of amounts due
for: (a) taxes and assessments and other items which can attain priority over this Security Instrument as a
lien or encumbrance on the Property; (b) leasehold payments or ground rents on the Property, if any; (c)
premiums for any and all insurance required by Lender under Section 5; and (d) Mortgage Insurance
premiums, if any, or any sums payable by Borrower to Lender in lieu of the payment of Mortgage
Insurance premiums in accordance with the provisions of Section 10. These items are called “Escrow
Items." At origination or at any time during the term of the Loan, Lender may require that Community
Association Dues, Fees, and Assessments, if any, be escrowed by Borrower, and such dues, fees and
assessments shall be an Escrow Item. Borrower shall promptly furnish to Lender all notices of amounts to
be paid under this Section. Borrower shall pay Lender the Funds for Escrow Items unless Lender waives
Borrower's obligation to pay the Funds for any or all Escrow Items. Lender may waive Borrower's
obligation to pay to Lender Funds for any or all Escrow Items at any time. Any such waiver may only be
in writing. In the event of such waiver, Borrower shall pay directly, when and where payable, the amounts
due for any Escrow Items for which payment of Funds has been waived by Lender and, if Lender requires,
shall furnish to Lender receipts evidencing such payment within such time period as Lender may require.
Borrower's obligation to make such payments and to provide receipts shall for all purposes be deemed to
be a covenant and agreement contained in this Security Instrument, as the phrase "covenant and agreement"
is used in Section 9. If Borrower is obligated to pay Escrow Items directly, pursuant to a waiver, and
Borrower fails to pay the amount due for an Escrow Item, Lender may exercise its rights under Section 9
and pay such amount and Borrower shall then be obligated under Section 9 to repay to Lender any such
amount. Lender may revoke the waiver as to any or all Escrow Items at any time by a notice given in
accordance with Section 15 and, upon such revocation, Borrower shall pay to Lender all Funds, and in
such amounts, that are then required under this Section 3.
Lender may, at any time, collect and bold Funds in an amount (a) sufficient to permit Lender to apply
the Funds at the time specified under RESPA, and (b) not to exceed the maximum amount a lender can
require under RESPA. Lender shall estimate the amount of Funds due on the basis of current data and
reasonable estimates of expenditures of future Escrow Items or otherwise in accordance with Applicable
Law.
The Funds shall be held in an institution whose deposits are insured by a federal agency,
instrumentality, or entity (including Lender, if Lender is an institution whose deposits are so insured) or in
any Federal Home Loan Bank. Lender shall apply the Funds to pay the Escrow Items no later than the time
specified under RESPA. Lender shall not charge Borrower for holding and applying the Funds, annually
analyzing the escrow account, or verifying the Escrow Items, unless Lender pays Borrower interest on the
Funds and Applicable Law permits Lender to make such a charge. Unless an agreement is made in writing
or Applicable Law requires interest to be paid on the Funds, Lender shall not be required to pay Borrower
any interest or earnings on the Funds. Borrower and Lender can agree in writing, however, that interest
= va WA A
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shall be paid on the Funds. Lender shall give to Borrower, without charge, an annual accounting of the
Funds as required by RESPA.
If there is a surplus of Funds held in escrow, as defined under RESPA, Lender shall account to
Borrower for the excess funds in accordance with RESPA. If there is a shortage of Funds held in escrow,
as defined under RESPA, Lender shall notify Borrower as required by RESPA, and Borrower shall pay to
Lender the amount necessary to make up the shortage in accordance with RESPA, but in no more than 12
monthly payments, If there is a deficiency of Funds held in escrow, as defined under RESPA, Lender shall
notify Borrower as required by RESPA, and Borrower shall pay to Lender the amount necessary to make
up the deficiency in accordance with RESPA, but in no more than 12 monthly payments.
Upon payment in full of all sums secured by this Security Instrument, Lender shall promptly refund
to Borrower any Funds held by Lender.
4. Charges; Lies. Borrower shall pay all taxes, assessments, charges, fines, and impositions
attributable to the Property which can attain priority over this Security Instrument, leasehold payments or
ground rents on the Property, if any, and Community Association Dues, Fees, and Assessments, if any. To
the extent that these items are Escrow Items, Borrower shall pay them in the manner provided in Section 3.
Borrower shall promptly discharge any lien which has priority over this Security Instrument unless
Borrower: (a) agrees in writing to the payment of the obligation secured by the lien in a manner acceptable
to Lender, but only so long.as Borrower is performing such agreement; (b) contests the lien in good faith
by, or defends against enforcement of the lien in, legal proceedings which in Lender's opinion operate to
prevent the enforcement of the lien while those proceedings are pending, but only until such proceedings
are concluded; or (c) secures from the holder of the lien an agreement satisfactory to Lender subordinating
the lien to this Security instrument. If Lender determines that any part of the Property is subject to a lien
which can attain priority over this Security Instrument, Lender may give Borrower a notice identifying the
lien. Within 10 days of the date on which that notice is given, Borrower shall satisfy the lien or take one or
more of the actions set forth above in this Section 4.
Lender may require Borrower to pay a one-time charge for a real estate tax verification and/or
reporting service used by Lender in connection with this Loan.
5. Property Insurance. Borrower shall keep the improvements now existing or hereafter erected on
the Property insured against loss by fire, hazards included within the term "extended coverage," and any
other hazards inctuding, but not limited to, earthquakes and floods, for which Lender requires insurance.
This insurance shall be maintained in the amounts (including deductible levels) and for the periods that
Lender requires. What Lender requires pursuant to the preceding sentences can change during the term of
the Loan, The insurance carrier providing the insurance shall be chosen by Borrower subject to Lender's
right to disapprove Borrower's choice, which right shall not be exercised unreasonably. Lender may
require Borrower to pay, in connection with this Loan, either: (a) a one-time charge for flood zone
determination, certification and tracking services; or (b) a one-time charge for flood zone determination
and certification services and subsequent charges each time remappings or similar changes occur which
reasonably might affect such determination or certification. Borrower shall also be responsible for the
payment of any fees imposed by the Federal Emergency Management Agency in connection with the
review of any flood zone determination resulting from an objection by Borrower.
7 wom WA XZ
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If Borrower fails to maintain any of the coverages described above, Lender may obtain insurance
coverage, at Lender's option and Borrower's expense. Lender is under no obligation to purchase any
particular type or amount of coverage. Therefore, such coverage shall cover Lender, but might or might
not protect Borrower, Borrower's equity in the Property, or the contents of the Property, against any risk,
hazard or liability and might provide greater or lesser coverage than was previously in effect. Borrower
acknowledges that the cost of the insurance coverage so obtained might significantly exceed the cost of
insurance that Borrower could have obtained. Any amounts disbursed by Lender under this Section 5 shalt
become additional debt of Borrower secured by this Security Instrument. These amounts shall bear interest
at the Note rate from the date of disbursement and shall be payable, with such interest, upon notice from
Lender to Borrower requesting payment.
All insurance policies required by Lender and renewals of such policies shall be subject to Lender's
tight to disapprove such policies, shall include a standard mortgage clause, and shall name Lender as
mortgagee and/or as an additional loss payee. Lender shall have the right to hold the policies and renewal
certificates. If Lender requires, Borrower shall promptly give to Lender all receipts of paid premiums and
renewal notices. If Borrower obtains any form of insurance coverage, not otherwise required by Lender,
for damage to, or destruction of, the Property, such policy shall include a standard mortgage clause and
shall name Lender as mortgagee and/or as an additional loss payee.
In the event of loss, Borrower shall give prompt notice to the insurance carrier and Lender. Lender
may make proof of loss if not made promptly by Borrower. Unless Lender and Borrower otherwise agree
in writing, any insurance proceeds, whether or not the underlying insurance was required by Lender, shall
be applied to restoration or repair of the Property, if the restoration or repair is economically feasible and
Lender's security is not lessened, During such repair and restoration period, Lender shall have the right to
hold such insurance proceeds until Lender has had an opportunity to inspect such Property to ensure the
work bas been completed to Lender’s satisfaction, provided that such inspection shall be undertaken
Promptly. Lender may disburse proceeds for the repairs and restoration in a single payment or in a series
of progress payments as the work is completed. Unless an agreement is made in writing or Applicable Law
requires interest to be paid on such insurance proceeds, Lender shall not be required to pay Borrower any
interest or earnings on such proceeds. Fees for public adjusters, or other third parties, retained by
Borrower shall not be paid out of the insurance proceeds and shall be the sole obligation of Borrower. If
the restoration or repair is not economically feasible or Lender's security would be lessened, the insurance
proceeds shall be applied to the sums secured by this Security Instrument, whether or not then due, with
the excess, if any, pai
Preview
Filing # 66330313 E-Filed 01/09/2018 09:57:13 PM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT_IN AND FOR CHARLOTTE COUNTY FLORIDA OPPORTUNITY REAL ESTATE INVESTMENT, LLC, Plaintiff(s), v. Case No.: 17-000587-CA. WILFREDO MILAN; LISSETTE REIGOSA; ALL UNKNOWN PARTIES CLAIMING INTERESTS BY, THROUGH, UNDER OR AGAINST A NAMED DEFENDANT TO THIS ACTION, OR HAVING OR CLAIMING TO HAVE ANY RIGHT, TITLE OR INTEREST IN THE PROPERTY HEREIN DESCRIBED; UNKNOWN TENANT #1; UNKNOWN TENANT #2, Defendant(s). / DEFENDANTS’ WILFRDEO MILAN AND LISSETTE REIGOSA MOTION FOR LEAVE TO AMEND ANSWER AND AFFIRMATIVE DEFENSES Defendants, Wilfredo Milan and Lissette Reigosa, by and through undersigned counsel, and in accordance with Rule 1.190 Florida Rules of Civil Procedure, hereby move this Court to enter an order allowing the requested amendments and as grounds state: 1. This residential mortgage foreclosure case was filed on or about June 28, 2017, a Motion to Dismiss was filed in response and denied. 2. Undersigned counsel filed an Answer to the Complaint on December 6, 2017 on behalf of both parties. 3. Since the Answer and Affirmative Defenses were filed, both parties have engaged in 202: This pleading ser Hangfira. org,Discovery. 4. Additionally, various scriveners errors have been identified and require revision. 5. Certain amendments to the Answer and the Affirmative Defenses have become necessary as a result of the aforementioned. 6. The proposed Amended Answer and Affirmative Defenses are attached here as Exhibit A 7. There will be substantial prejudice to the Defendants if the Motion to Amend is not granted because of the issues revealed by the discovery produced by Plaintiff. 8. In Green v. JP Morgan Chase Bank, the court held that “all doubts must be resolved in favor of allowing amendment, and “[p]ublic policy...favors the liberal granting of leave to amend where the failure to do so will likely prevent the cause from being resolved on its merits.” 109 So.3d 1285, 1287, citing Crown v. Chase Home Fin., 41 So.3d 978, 980 (Fla. 5th DCA 2010). 9. Defendant has not previously sought leave to amend to date, and Plaintiff will not be prejudiced by the granting of this motion. Thompson v. Bank of New York, 862 So.2d 768, 770 (Fla.4" DCA 2003)(“As a general rule, ‘[IJeave to amend should not be denied unless the privilege has been abused, there is prejudice to the opposing party, or amendment would be futile.’ ” )(citations omitted) WHEREFORE, Defendants respectfully requests that this Honorable Court enter an order granting their Motion for Leave to amend their Answer and Affirmative Defenses attached hereto and deem it filed. /s/ Jacqulyn Mack Mack Law Fim > Englewcod 2022 This pleading serv uacklanfira. org,Jacqulyn Mack-Majka, Esquire Florida Bar No.: 0134902 MACK LAW FIRM CHARTERED Primary: eservicel@macklawfirm.org Secondary: eservice2@macklawfirm.org 2022 Placida Road Englewood, Florida 34224-5204 (941) 475-7966 (941) 475-0729 fax Attorney for Defendant CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by e-mail to all counsel of record via the Florida Courts E-Filing Portal on January 09, 2018. /s/ Jacqulyn Mack Jacqulyn Mack, Esquire Tripp Scott, P.A. H. Michael Solloa, Jr. 110 SE 6th Street 15th floor Ft. Lauderdale, FL 33301 954-765-2918 mxs@trippscott.com Mack Law Firm Chartered www MackLawFirm ore 944) 156 T (O41) n.org anti esery 202 This pleading ser Hangfira. org,IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY FLORIDA OPPORTUNITY REAL ESTATE INVESTMENT, LLC Plaintiff(s), Page| 1 Vs. CASE NO.: 17-000587-CA WILFREDO MILAN; LISSETTE REIGOSA; ALL UNKNOWN PARTIES CLAIMING INTERESTS BY, THROUGH, UNDER OR AGAINST A NAMED DEFENDANT TO THIS ACTION, OR HAVING OR CLAIMING TO HAVE ANY RIGHT, TITLE OR INTEREST IN THE PROPERTY HEREIN DESCRIBED; UNKNOWN TENANT #1; UNKNOWN TENANT #2 Defendant(s). DEFENDANTS’ ANSWER AND FIRST AMENDED AFFIRMATIVE DEFENSES Defendants Wilfredo Milan and Lissette Reigosa (“Defendants”), by and through the undersigned attorney, hereby answer Plaintiffs Foreclosure Complaint and state: ANSWER 1, Denied, and demand strict proof thereof. 2. Without knowledge, therefore denied. 3. Without knowledge, therefore denied. 4, Admit that MR. Milan signed a Note on or about April 4, 2005, deny remainder of sentence. Admit attachment A is entitled Plaintiff's Certification of Possession of 202: This pleading ser Hangfira. org,10. 11. 12. 13. 14, 15. 16. 18. 19. 20. 21. Original Promissory Note. Without knowledge as to whether the Note attached to Exhibit A is an exact replication of the wet ink Note signed by the maker. Admitted that such Mortgage was executed. Otherwise without knowledge and therefore pagel? denied. Without knowledge and therefore denied. Without knowledge, therefore denied as to conditions precedent. Deny that Exhibit D is entitled “Notice of Demand”. Without knowledge, therefore denied. This is not a statement that requires admission or denial. Without knowledge and therefore denied. Without knowledge, therefore denied. Admitted. Without knowledge and therefore denied. Without knowledge and therefore denied. Without knowledge and therefore denied. Without knowledge and therefore denied. . Without knowledge and therefore denied. Without knowledge and therefore denied. Without knowledge and therefore denied. Without knowledge, therefore denied. Without knowledge, therefore denied. Mack Law Fim > Englewcod 2022 This pleading serv uacklanfira. org,AFFIRMATIVE DEFENSES First Affirmative Defense: Statute of Limitations Plaintiff filed the instant action on June 28, 2017, concerning a Note and Mortgage made payable to Equifirst Corporation. According to Plaintiffs Verified Complaint, Defendants defaulted on the Note and Mortgage because “the payment due for July, and all subsequent payments have not been made.” Plaintiff's Complaint alleges that Plaintiff is due $125,687.50 in principal under the Note and Mortgage in addition to interest from June 1, 2012 and “unpaid taxes, insurance premiums, accumulated late charges, and inspection fees” (PI. Complaint, § 8). In addition to foreclosure of the subject Note and Mortgage, Plaintiff is requesting a deficiency judgment against Defendants for any amounts allegedly owed in excess of the proceeds of a court-ordered sale, Pursuant to Fla. Stat. § 95.281, an action to foreclose a mortgage must be commenced within five (5) years of the default under the terms of said note and mortgage. Further, the law is well settled that the statute of limitations begins to run against a mortgage at the time the right to foreclose accrues. Travis v. Mayes, 36 so. 2d 264, 265 (Fla. 1948). “[W]ith each subsequent default, the statute of limitations runs from the date of each new default providing mortgagee the right, but not the obligation, to accelerate all sums then due under the note and mortgage. Bartram v. U.S. Bank Nat. Ass'n, 211 So. 3d 1009, 1019 (Fla. 2016). The court in Bartram affirmed its reasoning from Singleton that the installment nature of a mortgage continues after dismissal of a prior foreclosure action, and that each default presents a separate and distinct issue. /d. (citing Singleton v. Greymar Assoc., 882 So. 2d 1004 (Fla. 2004). In the present action, the accelerated balance claimed in the Plaintiff's Complaint includes payments that were allegedly defaulted on more than five years to the filing of this action. In Mack Law Fim > Englewcod 2022 This pleading serv uacklanfira. org, Page |3addition, it is believed and therefore alleged that Plaintiff is seeking to recover interest due beyond the five-year statute of limitations, and the “unpaid taxes, insurance premiums, accumulated charges, and inspection fees” include costs, interest and other default charges that were incurred more than five years prior to the filing of the instant action. Therefore, Plaintiff is not entitled to recover any sums due beyond the applicable limitations period. Second Affirmative Defense: Failure to State a Cause of Action The instant lawsuit is not the first foreclosure attempt on the subject property. On February 5, 2008, US Bank National Association as Trustee, Plaintiffs alleged predecessor in interest, filed a foreclosure action in this Court against these Defendants. The case number for that action is 2008-000612-CA (“2008 foreclosure”). That action was ultimately dismissed without prejudice on April 27, 2009. True and correct copies of the Complaint and dismissal order in that prior action are attached as Exhibit A hereto and incorporated herein. On January 30, 2009, U.S. Bank National Association as Trustee for RAMP 2005 EFC2 filed a second foreclosure lawsuit involving the same Note, Mortgage and Defendants as in this case and the 2008 foreclosure. The case number for that action is 2009-000528-CA (“2009 foreclosure”). That action was ultimately dismissed without prejudice on April 21, 2010. True and correct copies of the Complaint and dismissal order in that prior action are attached as Exhibit B hereto and incorporated herein. During this time period the Milan’s were involved in a Chapter 7 bankruptcy case, filed on February 6, 2009, discharge granted on August 26, 2009 and terminated on February 27, 2012. See Exhibit C, bankruptcy court documents. The Voluntary Petition Schedule D, identified Homecomings as the owner of the mortgage and note that is the subject of this action. (Page 13 of Mack Law Fim > Englewcod 2022 This pleading serv uacklanfira. org, Page | 4Petition). The Defendants actually surrendered the property to the Trustee, but it was abandoned back to them by the Trustee pursuant to 11 U.S.C. §554(c). (E- Trustee Final Account, page 6). The claim made by Homecomings in the bankruptcy was valued at $126,000.00. Jd. The instant action filed on June 28, 2017 is based upon an alleged default that allegedly occurred on July 1, 2012. The accelerated amount demanded by Plaintiff, $125,687.50, is identical to the amount, $125,687.50, claimed by Homecomings in its successful Motion for Relief from Stay filed in the 2009 Bankruptcy, (F- Motion for Relief from Stay page two). Therefore, it is Defendants position that the amount(s) Plaintiff seeks in this case is/are barred by the Statute of Limitations. Third Affirmative Defense: Lack of Standing “A crucial element in any mortgage foreclosure proceeding is that the party seeking foreclosure must demonstrate that it has standing to foreclose. To establish standing, the party seeking to enforce the note must present evidence that it owns and holds the note and mortgage in question. Additionally, a party must have standing to file suit at its inception and may not remedy this defect by subsequently obtaining standing. Figueroa v. Federal Nat. Mortg. Ass'n, 180 So. 3d 1110, 1115 (Fla. 5° DCA 2015). (internal quotations and citation marks omitted) (“The allonge, which contains an undated endorsement to SunTrust from SunTrust as power of attorney for Global Mortgage, Inc., would not have been sufficient had it been introduced into evidence as there was no evidence or testimony presented to establish the existence of a power of attorney relationship between SunTrust and Global.”) Pursuant to Fla. Stat. § 673.3011, the “person entitled to enforce” an instrument can be (1) the holder of the instrument, (2) a nonholder in possession who has the rights of a holder, or (3) a Mack Law Fim > Englewcod 2022 This pleading serv uacklanfira. org, Page | 5person not in possession who is entitled to enforce the instrument pursuant to § 673.3091 (lost, destroyed, or stolen instrument) or § 673.4181(4) (payment or acceptance by mistake). Plaintiff claims that it is “entitled to foreclosure” of the mortgage; however, Plaintiff states it is “owner and holder” of the subject note and cites Fla. Stat. § 673.3011in support. Plaintiffs attorney has submitted a Certification of Physical Possession of Original Promissory Note (see attachments to Pl. Complaint); therefore, Plaintiff alleges that it possesses the original note and is therefore a holder or a non-holder in possession with rights of a holder. The subject Mortgage and Note have purportedly been assigned three times since their creation. Plaintiff attached three assignments and three allonges to its Complaint, which purport to demonstrate the chain of title giving Plaintiff standing to foreclose. However, a close, review of the allonges reveals that there is no evidence that the indorsers had the requisite authority to indorse the note for each transferee. See Figueroa at 1115, supra. The first allonge fails to negotiate the Note because the signer purports to be acting as an attorney in fact for the holder, “U.S. Bank National Association, as Trustee”! Because Plaintiff did not include power of attorney documents, thus failing to establish the authority from “U.S. Bank National Association, as Trustee”, by which Residential Funding Company, LLC through its authorized officer Alison Cameron, could purportedly negotiate the transfer of the subject note to Residential Funding Company, LLC, the endorsement is anomalous. See, Florida Statutes § 673.2051(4); Buckingham v. Bank of America, N.A., 2017 WL 4798594, at *1 (Fla.2d DCA 2017) (“In the present case, the note did not contain an endorsement in favor of the plaintiff bank. ' The words “as trustee” are superfluous due to failure to identify the trust for which U.S. Bank National Association served as trustee. See, Florida Statutes §§ 673.1101(3) (b) (1). Mack Law Finn Chartered 2022 Placida Road *? Englewood Florida 3 This pleading serves as designation of e-service ese? pursuont to Fle, R. Jud. Admi vw, MackLaw Firm org Til) sm.org and eserr Page | 6Although the note was ultimately endorsed in blank by the bank as a successor by merger to LaSalle Bank, there was no evidence establishing the merger, let alone that the bank acquired all of LaSalle Bank's assets....On the present record, the endorsement in blank by the bank appears to be an anomalous endorsement.”)(internal citations omitted); PennyMac Corp. v. Frost, 214 So.3d 686, 689 (Fla.4" DCA 2017)(“Stated another way, the presumption that a signature on an indorsement is “authentic and authorized” does not mean we must presume that JPMorgan was a holder of the note or that JPMorgan's indorsement negotiated the note. To the contrary, the note on its face demonstrates that JPMorgan's indorsement was an anomalous indorsement, rather than a blank indorsement.”) The failure to attach the powers of attorney to show the authority for the indorsements’ signatories is compounded by the fact that Alison Cameron was both: a purported “authorized officer” for “Residential Funding Company, LLC as attorney in fact for U.S. Bank National Association, as Trustee”; in effectuating the alleged negotiation to “Residential Funding Company, LLC” and was an “authorized officer” for “Residential Funding Company, LLC” in effectuating the Note’s alleged negotiation to “GLAV Fund I Trust”. Likewise the Allonge from “GLAV Fund I Trust” to “NOTEZ, LLC” does not negotiate the Note because 1) of nemo dat quod non habet a/k/a the “Shelter Rule” and, 2) GLAV FUND I TRUST does not endorse the note rather the endorsement is from its purported Trust Administrator, “Granite Loan Solutions LLC” See, Florida Statutes § 673.2051(4); Robelto v. U.S. Bank Trust, N.A., 194 So.3d 429, 433 (Fla.4" DCA 2016)(“Moreover, even if we were to suppose that Wells Fargo somehow was a servicer and in the chain of title, the evidence is insufficient to show the chain of transfers through the two allonges. They purport to show first a transfer from HSBC to U.S. Bank and then a blank Mack Law Fim > Englewcod 2022 This pleading serv uacklanfira. org, Page |7endorsement from U.S. Bank. However, both are signed by a representative of Caliber, and there is nothing in the record to show by what authority Caliber could make either assignment. At best, it might be inferred that Caliber was the servicer for U.S. Bank. But no servicing agreements were entered to show that Caliber had authority from HSBC to act as its attorney-in-fact to assign the loan toU.S.Bank. There is simply no competent evidence to support a finding that U.S. Bank acquired the note from a person who had the right to enforce it when the note was lost.”) For the aforesaid reasons, the Plaintiff has not demonstrated that it has standing to enforce the subject note and mortgage. Fourth Affirmative Defense — Two Dismissal Rule, Res Judicata & collateral Estoppel Claims in this matter were previously adjudicated and are barred by the “two dismissal rule”, the doctrine of res judicata and/or collateral estoppel due to the two prior foreclosures involving the same note and mortgage. Fifth Affirmative Defense- 12 USC § 2605 and Florida Statute §559.715 Violation(s) Plaintiff and its alleged predecessors in interest have failed to comply with 12 USC § 2605 and Florida Statute §559.715. Plaintiff has not given the debtor(s) written notice of assignment of the debt, or in the alternative, has given written notice on a date which was less than 30 days before this action was initiated. Plaintiffs alleged predecessors in interest have likewise violated these statutes. Sixth Affirmative Defense- Lack of Standing According to Article 9 of the Uniform Commercial Code (codified as Florida Statute Chapter 679) and other applicable law, Plaintiff did not attach or perfect its security interest in Mack Law Finn Chartered 2022 Placida Road *? Englewood Florida 3 This pleading serves as designation of e-service ese? pursuont to Fle, R. Jud. Admi vw, MackLaw Firm org Til) sm.org and eserr Page | 8the subject Note and does not have priority in it. Therefore, even if Plaintiff and Defendants are parties to an operative contract, Plaintiff does not have standing to enforce the Note or foreclose the Mortgage. Seventh Affirmative Defense- Failure to State a Cause of Action Plaintiff lacks standing and fails to state a cause of action for mortgage foreclosure because the note is not endorsed and consideration paid to transferor by Plaintiff has not been pled. See, Florida Statute § 673.2031 (3) “Unless otherwise agreed, if an instrument is transferred for value and the transferee does not become a holder because of lack of indorsement by the transferor, the transferee has a specifically enforceable right to the unqualified indorsement of the transferor, but negotiation of the instrument does not occur until the indorsement is made.” Eighth Affirmative Defense Bankruptcy —Defendant’s debt discharged in 2009 Bankruptcy The subject Note and any and all corresponding debt associated therewith has been discharged in bankruptcy. Attorney Fees per 57.105 Defendants pray that this Court award them reasonable attorneys’ fees and costs if they are prevailing party in this case. WHEREFORE, Defendants herein, pray that this Court enter judgment in their favor, award them attorney’s fees and costs and all other relief to which they are entitled. /s/ Jacqulyn Mack-Majka Jacqulyn Mack-Majka, Esquire Florida Bar No.: 0134902 MACK LAW FIRM CHARTERED Primary: eservicel@macklawfirm.org Mack Law Finn Chartered 2022 Placida Road *? Englewood Florida 3 This pleading serves as designation of e-service ese? pursuont to Fle, R. Jud. Admi vw, MackLaw Firm org Til) sm.org and eserr Page |92022 This pleading serv Mack Law Finn Secondary: eservice2@macklawfirm.org 2022 Placida Road Englewood, Florida 34224-5204 (941) 475-7966 (941) 475-0729 fax Attorney for Milan and Reigosa Page | 10 CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by e-mail to all counsel of record via the Florida Courts E-Filing Portal on > Englewood /s/ Jacqulyn Mack-Majka Jacqulyn Mack-Majka, Esquire uacklanfira. org,TN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT, IN AND FOR CHARLOTTE COUNTY, FLORIDA GENERAL JURISDICTION DIVISION CASENO: OS esac US BANK NATIONAL ASSOCIATION AS TRUSTEE PLAINTIFF VS. WILFREDO MILAN; LISSETTE REIGOSA,; ANY AND ALL UNKNOWN PARTIES CLAIMING BY, THROUGH, UNDER, AND AGAINST THE HEREIN NAMED INDIVIDUAL DEFENDANT(S) WHO ARE NOT KNOWN TO BE DEAD OR ALIVE, WHETHER SAID UNKNOWN PARTIES MAY CLAIM AN INTEREST AS SPOUSES, HEIRS, DEVISEES, GRANTEES OR OTHER CLAIMANTS; JOHN DOE AND JANE DOE AS UNKNOWN TENANTS IN POSSESSION. ee COMPLAINT TO FORECLOSE MORTGAGE AND TO ENFORCE LOST LOAN DOCUMENTS Plaintiff, sues the Defendant(s) and alleges: *209465 629% IO paliy v2-219000-80 | SO SHS) B0/SO/Z0 COUNTI 1, THIS IS AN ACTION to foreclose a Mortgage on real property in CHARLOTTE County, Florida. 2. This Court has jurisdiction over the subject matter herein. 3. On APRIL 4, 2005 WILFREDO MILAN AND LISSETTE REIGOSA, HUSBAND AND WIFE executed and delivered a Promissory Note and a Mortgage securing payment of the Note to the Payee named thereon. 4. The Mortgage was recorded on APRIL 13, 2005 in Official Records Book 2679 at page 159, of the Public Records of CHARLOTTE County, Florida, and mortgaged the property described in it, then owned by and possessed by the Mortgagors, a copy of the Mortgage IS attached hereto as "Exhibit "A". Said mortgage was subsequently assigned to US BANK NATIONAL ASSOCIATION AS TRUSTEE by virtue of an assignment to be recorded. 5. The Plaintiff owns and holds the Note and Mortgage. 6. The property is now owned by the Defendant(s), WILFREDO MILAN AND LISSETTE REIGOSA , if living and if dead, the unknown spouses, heirs and beneficiaries of WILFREDO MILAN AND LISSETTE REIGOSA who hold(s) possession. 7. There is a default under the terms of the note and mortgage for the OCTOBER 1, 2007 payment and all payments due thereafter. 8. All conditions precedent to the acceleration of this Mortgage Note and to foreclosure of the Mortgage have been fulfilled or have occurred. 9. The Plaintiff declares the full amount payable under the Note and Mortgage to be due. Exhibit A10. The borrowers owe Plaintiff $127,250.34 that is due in principal on the Mortgage Note and Mortgage, together with interest from SEPTEMBER 1, 2007, late charges, and all costs of collection including title search expenses for ascertaining necessary parties to this action and reasonable attorney's fees. ll. Plaintiff is obligated to pay its attorney a reasonable fee for his services rendered. 12. Defendants, John Doe and Jane Doe, may claim an interest in the property described in the Mortgage as tenants pursuant to a lease agreement, either written or oral. Said interest is subject, subordinate, and inferior to the lien of the Mortgage held by Plaintiff. 13. In addition to all other named defendants, the unknown spouses, heirs, devisees, grantees, assignees, creditors, trustees, successors in interest or other parties claiming an interest in the subject property by, through under or against any of said defendants, whether natural or corporate, who are not known to be alive or dead, dissolved or existing, are joined as defendants herein. The claims of any of said parties are subject, subordinate, and inferior to the interest of Plaintiff. WHEREFORE, Plaintiff prays: That an accounting may be had and taken under the direction of this Court of what is due the Plaintiff for principal and interest on said Mortgage and Mortgage Note, and for the costs, charges and expenses, including attorney's fees and title search costs, and advancements which Plaintiff may be put to or incur in and about this suit, and that the Defendants found responsible for same be ordered to pay the Plaintiff herein the amounts so found to be due it; that in default of such payments, all right, title, interest, claim, demand, or equity of redemption of the Defendants and all other persons claiming by, through, under or against said Defendants since the filing of the Lis Pendens herein be absolutely barred and foreclosed and that said mortgage property be sold under the direction of this Court; that out of the proceeds of said sale, the amounts due the Plaintiff may be paid so far as same will suffice; and that a deficiency judgment be entered if applicable and only in the event no Order of Discharge of Personal Liability in Bankruptcy has been entered as to any of the Defendants who signed the subject Note and Mortgage and a Writ of Possession be issued. Cc TT 14. This is an action to enforce a lost, destroyed or stolen promissory note and Mortgage under Fla.Stat.§673.3091. 15. On APRIL 4, 2005, WILFREDO MILAN AND LISSETTE REIGOSA, HUSBAND AND WIFE, executed and delivered a Promissory Note and a Mortgage securing payment of the Note to the payee named thereon. 16. The Mortgage was recorded on APRIL 13, 2005 in Official Records Book 2679 at page 159, of the Public Records of CHARLOTTE County, Florida, a substantial copy of the Mortgage being attached hereto as composite Exhibit “A” to the Plaintiff's original Complaint herein. 17. The Plaintiff is not presently in possession of original Note and Mortgage. However, a) the Plaintiff was in possession of the Note and Mortgage and was entitled to enforce THEM when the loss of possession occurred; b) the loss of possession was not the result of a transfer by Plaintiff or lawful seizure; and c) the Plaintiff cannot reasonably obtain possession of the Note and Mortgage because THEIR. whereabouts cannot be determined. a 18. The terms of the Note are shown on the attached ledger of loan marked as Exhibit “19, The Plaintiff will agree to entry of a Final Judgment of Foreclosure wherein it will be required to indemnify and hold harmless Defendant(s), WILFREDO MILAN AND LISSETTE REIGOSA, from any loss they may incur by reason of a claim by another person to enforce the lost Note and Mortgage. WHEREFORE, Plaintiff requests entry of judgment confirming its right to enforce the lost Note and Mortgage under Fla. Stat.§673.3091. TO ALL DEFENDANTS: PLEASE NOTE EFFECTIVE OCTOBER 13, 2006, 15 U.S.C. §1692G OF THE FAIR DEBT COLLECTION PRACTICES ACT HAS BEEN AMENDED AS FOLLOWS: (a) LEGAL PLEADINGS -- Section 809 of the Fair Debt Collection Practices Act (15 U.S.C. 1692g) is amended by adding at the end the following new subsection: "(d) Legal Pleadings -- A communication in the form of a formal pleading in a civil action shall not be treated as an initial communication for purposes of subsection (a)." e— KARINA M. MUSELLA 004369” Law Offices of David J. Stern, P.A. Attorney for Plaintiff 801 S. University Drive Suite 500 Plantation, FL 33324 (954) 233-8000 08-28172(HCNW) Bar #: 30527 F \GROUPS\FCDOCS\COMPL AIN\08\08-28172, CMPIMAGEO] : FL-08-662-2 01/10/2008 12:26:31pm DOC: OR 2679/159 Page | of 18 BARBARA T. SCOTT, CLERK Return To: CHARLOTTE COUNTY EquiFirst Corporation OR BOOK 02679 Attn: Collateral M PGS 0159-9176 (18 Pg(s)) 500 Forest Point Circle FILE NUMBER 1367627 Charlotte, NC 28273 RECORDED 64/13/2085 11:38:18 AM RECORDING FEES 154.58 STG DOC 456.75 This document was prepared by: INTANGIBLE 261.06 April Vane 500 Forest Point Circle, Charlotte, NC 28273 #1 ey RETURN To: 705-018 RIDA [Space Above This Line For Recording Data}————————_________— pony GHARLOTTE. FL 23082 MORTGAGE DEFINITIONS Words used in multiple sections of this document are defined below and other words are defined in Sections 3, 11, 13, 18, 20 and 21. Certain rules regarding the usage of words used in this document are also provided in Section 16. (A) "Security Instrument" means this document, which is dated April 4, 2005 . together with all Riders to this document. (B) "Borrower" is Wilfredo Milan, joined by his wife Lissette Reigosa Borrower is the mortgagor under this Security Instrument. (C) "MERS"” is Mortgage Electronic Registration Systems, Inc. MERS is a separate corporation that is acting solely as a nominee for Lender and Lender's successors and assigns. MERS is the mortgagee under this Security Instrument. MERS is organized and existing under the laws of Delaware, and has an address and telephone number of P.O. Box 2026, Flint, MI 48501-2026, tel. (888) 679-MERS. (D) "Lender" is EquiFirst Corporation FLORIDA-Single Femily-Fannie Mae/Freddie Mac UNIFORM INSTRUMENT WITH MERS Form 3010 1104 Qa co008).01 meats va WA_ XZ \VMP MORTGAGE FORMS - (800)521-7291 (MAGED IN MURDOCK EXH "9 $ ~Book2679/Page159 CFN#1367627 Page 1 of 18IMAGE01 : FL-08-662-2 01/10/2008 12:26:31pm DOC: OR 2679/159 Lender is a Corporation organized and existing under the laws of North Carolina Lender's address is 500 Forest Point Circle, Charlotte, NC 28273 (E) "Note" means the promissory note signed by Borrower and dated April 4, 2005 The Note states that Borrower owes Lender one hundred thirty thousand five hundred and 00/100 Dollars (U.S. $130,500.00 ) plus interest. Borrower has promised to pay this debt in regular Periodic Payments and to pay the debt in full not later than May 1, 2035 (F) "Property" means the property that is described below under the heading "Transfer of Rights in the Property." (G) "Loan" means the debt evidenced by the Note, plus interest, any prepayment charges and late charges due under the Note, and all sums due under this Security Instrument, plus interest. (H) "Riders" means all Riders to this Security Instrument that are executed by Borrower. The following Riders are to be executed by Borrower [check box as applicable]: Adjustable Rate Rider [—] Condominium Rider Second Home Rider Balloon Rider {J Planned Unit Development Rider [_] 1-4 Family Rider [J va Rider [1] Biweekly Payment Rider [xc] Other(s) [specify] PrePaynent Penalty Rider (D “Applicable Law” means all controlling applicable federal, state and local statutes, regulations, ordinances and administrative rules and orders (that have the effect of law) as well as all applicable final, non-appealable judicial opinions. (J) "Community Association Dues, Fees, and Assessments” means all dues, fees, assessments and other charges that are imposed on Borrower or the Property by a condominium association, homeowners association or similar organization. (K) "Electronic Funds Transfer" means any transfer of funds, other than a transaction originated by check, draft, or similar paper instrument, which is initiated through an electronic terminal, telephonic instrument, computer, or magnetic tape so as to order, instruct, or authorize a financial institution to debit or credit an account. Such term includes, but is not limited to, point-of-sale transfers, automated teller machine transactions, transfers initiated by telephone, wire transfers, and automated clearinghouse transfers. (L) "Escrow Items" means those items that are described in Section 3. {M) "Miscellaneous Proceeds" means any compensation, settlement, award of damages, or proceeds paid by any third party (other than insurance proceeds paid under the coverages described'in Section 5) for: @ damage to, or destruction of, the Property; (ii) condemnation or other taking of all or any part of the Property; (iii) conveyance in lieu of condemnation; or (iv) misrepresentations of, or omissions as to, the value and/or condition of the Property. » “Mortgage Insurance” means insurance protecting Lender against the nonpayment of, or default on, Loan. (O) "Pertodic Payment” means the regularly scheduled amount due for (i) principal and interest under the Note, plus (ii) any amounts under Section 3 of this Security Instrument. 7 won WAKE our (o008).0% Page 2 of 18 Form 3019 1/01 ~ Book2679/Page160 CFN#1367627 Page 2 of 18 Page 2 of 18IMAGE0] : FL-08-662-2 01/10/2008 12:26:3lpm DOC: OR 2679/159 (P) "RESPA" means the Real Estate Settlement Procedures Act (12 U.S.C. Section 2601 et seq.) and its implementing regulation, Regulation X (24 C.F.R. Part 3500), as they might be amended from time to time, or any additional or successor legislation or regulation that governs the same subject matter. As used in this Security Instrument, "RESPA" refers to all requirements and restrictions that are imposed in regard to a “federally related mortgage loan” even if the Loan does not qualify as a "federally related mortgage loan” under RESPA. (Q) "Successor in Interest of Borrower" means any party that has taken title to the Property, whether or not that party has assumed Borrower’ s obligations under the Note and/or this Security Instrument. TRANSFER OF RIGHTS IN THE PROPERTY This Security Instrument secures to Lender: (i) the repayment of the Loan, and all renewals, extensions and modifications of the Note; and (ii) the performance of Borrower's covenants and agreements under this Security Instrument and the Note. For this purpose, Borrower does hereby mortgage, grant and convey to MERS (solely as nominee for Lender and Lender's successors and assigns) and to the successors and assigns of MERS, the following described property located in the County —_[Type of Recording Jurisdiction} ofCharlotte [Name of Recording Jurisdiction): See Attached Exhibit A Parcel ID Number: 00048360000002 which currently has the address of 3063 Pellam Boulevard {Street} Port Charlotte [City], Florida 33952 [Zip Code] ("Property Address"): TOGETHER WITH all the improvements now or hereafter erected on the property, and all easements, , and fixtures now or hereafter a part of , All replacements and additions shall also be covered by this Security Instrument. all of the pong cing is referred t9 in this i as the "Property." Borrower understands and agrees that es nomine fo Lee nd Lente sce an sug) as he : to exercise any custom, MERS or all of those interests, including, but not limited to, the right to foreclose and sell Property; and to take any action required of Lender including, but not limited to, releasing and canceling this Security we WA LL BAA coos 01 Page 3 of 18 Form 3010 1/04 Book2679/Page161 CFN#1367627 Page 30f 18 Page 3 of 18IMAGE0} “Book2679/Page 162 CFN#1367627 Page 4 of 18 : FL-08-662-2 01/10/2008 12:26:31pm DOC: OR 2679/159 BORROWER COVENANTS that Borrower is lawfully seised of the estate hereby conveyed and has the right to mortgage, grant and convey the Property and that the Property is unencumbered, except for encumbrances of record. Borrower warrants and will defend generally the title to the Property against all claims and demands, subject to any encumbrances of record. THIS SECURITY INSTRUMENT combines uniform covenants for national use and non-uniform covenants with limited variations by jurisdiction to constitute a uniform security instrument covering real UNIFORM COVENANTS. Borrower and Lender covenant and agree as follows: 1. Payment of Principal, Interest, Escrow Items, Prepayment Charges, and Late Charges. Borrower shall pay when due the principal of, and interest on, the debt evidenced by the Note and any prepayment charges and late charges due under the Note. Borrower shall also pay funds for Escrow Items pursuant to Section 3. Payments due under the Note and this Security Instrument shall be made in U.S. currency. However, if any check or other instrument received by Lender as payment under the Note or this. Security Instrument is returned to Lender unpaid, Lender may require that any or all subsequent payments due under the Note and this Security Instrument be made in one or more of the following forms, as selected by Lender: (a) cash; (b) money order; (c) certified check, bank check, treasurer's check or cashier's check, provided any such check is drawn upon an institution whose deposits are insured by a federal agency, instrumentality, or entity; or (d) Electronic Funds Transfer. Payments are deemed received by Lender when received at the location designated in the Note or at such other location as may be designated by Lender in accordance with the notice provisions in Section 15, Lender may return sny payment or partial payment if the payment or partial payments are insufficient to bring the Loan current. Lender may accept any payment or partial payment insufficient to bring the Loan current, without waiver of any rights hereunder or prejudice to its rights to refuse such payment or partial payments in the future, but Lender is not obligated to apply such payments at the time such payments are accepted. If each Periodic Payment is applied as of its scheduled due date, then Lender need not pay interest on unapplied funds. Lender may hold such unapplied funds until Borrower makes payment to bring the Loan current. If Borrower does not do so within a reasonable period of time, Lender shall either apply such funds or return them to Borrower. If not applied earlier, such funds will be applied to the outstanding principal balance under the Note immediately prior to foreclosure. No offset or claim which Borrower might have now or in the future against Lender shall relieve Borrower from making payments due under the Note and this Security Instrument or performing the covenants and agreements secured by this Security Instrument, 2, Application of Payments or Proceeds. Except as otherwise described in this Section 2, all Payments accepted and applied by Lender shall be applied in the following order of priority: (a) interest due under the Note; (b) principal due under the Note; (c) amounts due under Section 3. Such payments shall be applied to each Periodic Payment in the order in which it became due. Any remaining amounts shall be applied first to late charges, second to any other amounts due under this Security Instrument, and then to reduce the principal balance of the Nate. If Lender receives a payment from Borrower for a delinquent Periodic Payment which includes a sufficient amount to pay any late charge due, the payment may be applied to the delinquent payment and the late charge. If more than one Periodic Payment is outstanding, Lender may apply any payment received from Borrower to the repayment of the Periodic Payments if, and to the extent that, each payment = win WA KE Seay t9005).01 Page a ot 18 Form 3010 1/01 Page 4 of 18IMAGEOI : FL-08-662-2 01/10/2008 12:26:31pm DOC: OR 2679/159 Page 5 of 18 can be paid in full. To the extent that any excess exists after the payment is applied to the full payment of one or more Periodic Payments, such excess may be applied to any late charges due. Voluntary prepayments shal] be applied first to any prepayment charges and then as described in the Note. Any application of payments, insurance proceeds, or Miscellaneous Proceeds to principal due under the Note shall not extend or postpone the due date, or change the amount, of the Periodic Payments. 3. Funds for Escrow Items. Borrower shall pay to Lender on the day Periodic Payments are due under the Note, until the Note is paid in full, a sum (the "Funds") to provide for payment of amounts due for: (a) taxes and assessments and other items which can attain priority over this Security Instrument as a lien or encumbrance on the Property; (b) leasehold payments or ground rents on the Property, if any; (c) premiums for any and all insurance required by Lender under Section 5; and (d) Mortgage Insurance premiums, if any, or any sums payable by Borrower to Lender in lieu of the payment of Mortgage Insurance premiums in accordance with the provisions of Section 10. These items are called “Escrow Items." At origination or at any time during the term of the Loan, Lender may require that Community Association Dues, Fees, and Assessments, if any, be escrowed by Borrower, and such dues, fees and assessments shall be an Escrow Item. Borrower shall promptly furnish to Lender all notices of amounts to be paid under this Section. Borrower shall pay Lender the Funds for Escrow Items unless Lender waives Borrower's obligation to pay the Funds for any or all Escrow Items. Lender may waive Borrower's obligation to pay to Lender Funds for any or all Escrow Items at any time. Any such waiver may only be in writing. In the event of such waiver, Borrower shall pay directly, when and where payable, the amounts due for any Escrow Items for which payment of Funds has been waived by Lender and, if Lender requires, shall furnish to Lender receipts evidencing such payment within such time period as Lender may require. Borrower's obligation to make such payments and to provide receipts shall for all purposes be deemed to be a covenant and agreement contained in this Security Instrument, as the phrase "covenant and agreement" is used in Section 9. If Borrower is obligated to pay Escrow Items directly, pursuant to a waiver, and Borrower fails to pay the amount due for an Escrow Item, Lender may exercise its rights under Section 9 and pay such amount and Borrower shall then be obligated under Section 9 to repay to Lender any such amount. Lender may revoke the waiver as to any or all Escrow Items at any time by a notice given in accordance with Section 15 and, upon such revocation, Borrower shall pay to Lender all Funds, and in such amounts, that are then required under this Section 3. Lender may, at any time, collect and bold Funds in an amount (a) sufficient to permit Lender to apply the Funds at the time specified under RESPA, and (b) not to exceed the maximum amount a lender can require under RESPA. Lender shall estimate the amount of Funds due on the basis of current data and reasonable estimates of expenditures of future Escrow Items or otherwise in accordance with Applicable Law. The Funds shall be held in an institution whose deposits are insured by a federal agency, instrumentality, or entity (including Lender, if Lender is an institution whose deposits are so insured) or in any Federal Home Loan Bank. Lender shall apply the Funds to pay the Escrow Items no later than the time specified under RESPA. Lender shall not charge Borrower for holding and applying the Funds, annually analyzing the escrow account, or verifying the Escrow Items, unless Lender pays Borrower interest on the Funds and Applicable Law permits Lender to make such a charge. Unless an agreement is made in writing or Applicable Law requires interest to be paid on the Funds, Lender shall not be required to pay Borrower any interest or earnings on the Funds. Borrower and Lender can agree in writing, however, that interest = va WA A aay (0005).01 Page 8 of 16 Form 3010 1/01 Book2679/Page163 CFN#1367627 Page 5 of 18IMAGE01 : FL-08-662-2 01/10/2008 12:26:31pm DOC: OR 2679/159 shall be paid on the Funds. Lender shall give to Borrower, without charge, an annual accounting of the Funds as required by RESPA. If there is a surplus of Funds held in escrow, as defined under RESPA, Lender shall account to Borrower for the excess funds in accordance with RESPA. If there is a shortage of Funds held in escrow, as defined under RESPA, Lender shall notify Borrower as required by RESPA, and Borrower shall pay to Lender the amount necessary to make up the shortage in accordance with RESPA, but in no more than 12 monthly payments, If there is a deficiency of Funds held in escrow, as defined under RESPA, Lender shall notify Borrower as required by RESPA, and Borrower shall pay to Lender the amount necessary to make up the deficiency in accordance with RESPA, but in no more than 12 monthly payments. Upon payment in full of all sums secured by this Security Instrument, Lender shall promptly refund to Borrower any Funds held by Lender. 4. Charges; Lies. Borrower shall pay all taxes, assessments, charges, fines, and impositions attributable to the Property which can attain priority over this Security Instrument, leasehold payments or ground rents on the Property, if any, and Community Association Dues, Fees, and Assessments, if any. To the extent that these items are Escrow Items, Borrower shall pay them in the manner provided in Section 3. Borrower shall promptly discharge any lien which has priority over this Security Instrument unless Borrower: (a) agrees in writing to the payment of the obligation secured by the lien in a manner acceptable to Lender, but only so long.as Borrower is performing such agreement; (b) contests the lien in good faith by, or defends against enforcement of the lien in, legal proceedings which in Lender's opinion operate to prevent the enforcement of the lien while those proceedings are pending, but only until such proceedings are concluded; or (c) secures from the holder of the lien an agreement satisfactory to Lender subordinating the lien to this Security instrument. If Lender determines that any part of the Property is subject to a lien which can attain priority over this Security Instrument, Lender may give Borrower a notice identifying the lien. Within 10 days of the date on which that notice is given, Borrower shall satisfy the lien or take one or more of the actions set forth above in this Section 4. Lender may require Borrower to pay a one-time charge for a real estate tax verification and/or reporting service used by Lender in connection with this Loan. 5. Property Insurance. Borrower shall keep the improvements now existing or hereafter erected on the Property insured against loss by fire, hazards included within the term "extended coverage," and any other hazards inctuding, but not limited to, earthquakes and floods, for which Lender requires insurance. This insurance shall be maintained in the amounts (including deductible levels) and for the periods that Lender requires. What Lender requires pursuant to the preceding sentences can change during the term of the Loan, The insurance carrier providing the insurance shall be chosen by Borrower subject to Lender's right to disapprove Borrower's choice, which right shall not be exercised unreasonably. Lender may require Borrower to pay, in connection with this Loan, either: (a) a one-time charge for flood zone determination, certification and tracking services; or (b) a one-time charge for flood zone determination and certification services and subsequent charges each time remappings or similar changes occur which reasonably might affect such determination or certification. Borrower shall also be responsible for the payment of any fees imposed by the Federal Emergency Management Agency in connection with the review of any flood zone determination resulting from an objection by Borrower. 7 wom WA XZ Seay (0005).01 Pages of 10 Form 3010 1/04 Page 6 of 18 Book2679/Page164 CFN#1367627 Page 6 of 18IMAGEO1 : FL-08-662-2 01/10/2008 12:26:31pm DOC: OR 2679/159 If Borrower fails to maintain any of the coverages described above, Lender may obtain insurance coverage, at Lender's option and Borrower's expense. Lender is under no obligation to purchase any particular type or amount of coverage. Therefore, such coverage shall cover Lender, but might or might not protect Borrower, Borrower's equity in the Property, or the contents of the Property, against any risk, hazard or liability and might provide greater or lesser coverage than was previously in effect. Borrower acknowledges that the cost of the insurance coverage so obtained might significantly exceed the cost of insurance that Borrower could have obtained. Any amounts disbursed by Lender under this Section 5 shalt become additional debt of Borrower secured by this Security Instrument. These amounts shall bear interest at the Note rate from the date of disbursement and shall be payable, with such interest, upon notice from Lender to Borrower requesting payment. All insurance policies required by Lender and renewals of such policies shall be subject to Lender's tight to disapprove such policies, shall include a standard mortgage clause, and shall name Lender as mortgagee and/or as an additional loss payee. Lender shall have the right to hold the policies and renewal certificates. If Lender requires, Borrower shall promptly give to Lender all receipts of paid premiums and renewal notices. If Borrower obtains any form of insurance coverage, not otherwise required by Lender, for damage to, or destruction of, the Property, such policy shall include a standard mortgage clause and shall name Lender as mortgagee and/or as an additional loss payee. In the event of loss, Borrower shall give prompt notice to the insurance carrier and Lender. Lender may make proof of loss if not made promptly by Borrower. Unless Lender and Borrower otherwise agree in writing, any insurance proceeds, whether or not the underlying insurance was required by Lender, shall be applied to restoration or repair of the Property, if the restoration or repair is economically feasible and Lender's security is not lessened, During such repair and restoration period, Lender shall have the right to hold such insurance proceeds until Lender has had an opportunity to inspect such Property to ensure the work bas been completed to Lender’s satisfaction, provided that such inspection shall be undertaken Promptly. Lender may disburse proceeds for the repairs and restoration in a single payment or in a series of progress payments as the work is completed. Unless an agreement is made in writing or Applicable Law requires interest to be paid on such insurance proceeds, Lender shall not be required to pay Borrower any interest or earnings on such proceeds. Fees for public adjusters, or other third parties, retained by Borrower shall not be paid out of the insurance proceeds and shall be the sole obligation of Borrower. If the restoration or repair is not economically feasible or Lender's security would be lessened, the insurance proceeds shall be applied to the sums secured by this Security Instrument, whether or not then due, with the excess, if any, pai