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Filing # 69339417 E-Filed 03/15/2018 04:14:42 PM
IN THE CIRCUIT COURT OF THE TWENTHETH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
U.S. BANK, NATIONAL ASSOCIATION,
Plaintiff,
Case No. 17-CA-100
Vv.
THOMAS F. LAMATRICE, et al.,
Defendants,
/
DEFENDANT’S MOTION FOR REHEARING OF FINAL JUDGMENT
AND FOR STAY PENDING APPEAL
Defendant, THOMAS F. LAMATRICE, pursuant to Fla. R. Civ. P. 1.530, hereby moves
this Court to reconsider its granting of Final Judgment entered February 28, 2018. See Fla. R. Civ.
P. 1.530(a).
1. On February 14, 2012, Defendant THOMAS F. LAMATRICE filed a Voluntary
Petition for Chapter 7 Bankruptcy, which indicated the creditor for the subject property was BAC
Home Loans Servicing.
2. On January 31, 2017, this foreclosure action was filed by US Bank, National
Association as Legal Title Trustee for Truman 2016 SC6 Title Trust asserting a default of February
1, 2012 with a Lost Note Count claiming Plaintiff was the owner of the Note and attaching
Assignments allegedly signed by Attorneys in Fact. (The first Assignment was allegedly executed
on behalf of Bank of America, N.A., by Indecomm Global Services, its Attorney in Fact. The
second Assignment was allegedly executed on behalf of Christina Trust, a Division of Wilmington
Savings Fund Society, FSB, Not in its individual capacity but as Trustee of ARLP Trust 3, by
Meridian Asset Services Inc, its Attorney in Fact.)3. On March 22, 2017, Plaintiff filed a Notice of Defendant’s Intention to Surrender
Property and Request for Judicial Notice. On April 7, 2017, Defendant filed a Motion to Dismiss.
On July 25, 2017, Defendant’s Motion to Dismiss was denied and Plaintiffs Request for Judicial
Notice was granted. On August 25, 2017, Defendant filed an Answer with Defenses. On August
29, 2017, Plaintiff filed a Motion to Strike Defenses due to Bankruptcy Surrender and a Reply to
the Affirmative Defenses alleging such lack merit due to the Bankruptcy Surrender.
4, On October 11, 2017, the Court entered an Order granting Plaintiff's Motion to
Strike Defenses and ordering “Defendant shall not oppose the Plaintiffs Right to Foreclose as held
in Failla v. Citibank, 838 F. 3d 1170 (11" Cir. 2016).”
5. On February 28, 2018, this court held a Summary Judgment hearing and concluded
with the Court entering Judgment in favor of the Plaintiff.
6. Fla. R. Civ. P. 1.530 requires that a Motion for Rehearing to be served within 15
days of rendition of the Order it seeks rehearing upon. As the judgment was rendered on February
28, 2018, Defendants timely serves this Motion.
7. The granting or denial of rehearing is a matter within discretion of the trial court,
but it is never an arbitrary decision. Holl v. Talcott, 191 So.2d 40, 46-47 (Fla. 1966)(granting
rehearing to movant).
8. Defendant is entitled to a hearing on its Motion for Rehearing. J.R. Fenton, Inc. v.
Gallery 600, Inc., 488 So. 2d 587 (Fla. 2"? DCA 1986)(There was a due process right to a hearing
on a motion for rehearing).I BANK SLEPT _ON_ITS_ RIGHTS FOR YEARS AND DID NOT
CONCLUSIVELY PROVE RELIEF IT REQUESTED WAS NOT BARRED BY WAIVER
OR LACHES
9. A “surrender” in bankruptcy should not result in an automatic foreclosure,
particularly where the lender’s subsequent actions are inconsistent with an intent to reclaim title.
“{S]urrender” is not always “a slam dunk.” For example (as articulated sua sponte by one circuit
judge who denied a lender’s “surrender” argument on similar facts), suppose there had been a
surrender in bankruptcy, and Defendant thereafter moved out of the Property and hand-delivered
adeed conveying title to the Bank, but the Bank refused to accept that deed and advised Defendant
it was not interested in the Property. Suppose further that, as a result of remaining on title,
Defendant continued to incur association dues and that squatters had taken possession, creating
personal liability in the event of accident or injury.
10. ‘If Defendant removed the squatters, re-took possession of the property, and paid
the association dues only after such events — all while the Bank was continuing to do nothing to
reclaim title — then would this Court conclude that surrender required foreclosure as a matter of
law? Undoubtedly not. See In re. Kourogenis, 539 B.R. 625 (Bankr. S.D. Fla. 2015). After all,
there can be no doubt that surrender does not always preclude foreclosure defense. Yet that is
precisely what the Bank would have this Court do, i.e. rule “surrender” in bankruptcy always
precludes foreclosure defense, no matter what transpires afterwards. The Bank’s position cannot
be the law.
11. — The foregoing example is, admittedly, just an example. Regardless, in prosecuting
if Defendant could not defend this lawsuit because of the purported Surrender and alleged
discharge in Bankruptcy, the Bank is necessarily arguing that Defendant could not defend
irrespective of what happened in the years after the purported Surrender. That begs the question:what transpired between these parties after the purport Surrender, and prior to the time the Bank
finally raised its “surrender” argument in the trial court? Did Defendant try to give title to the
Bank? Did the Bank do anything to disavow an intent to foreclose? Was Defendant continuing to
incur association dues or other liabilities associated with remaining on title? Did Defendant move
out, then move back in only after the lender refused to take title? Without such inquiry through
witness testimony and examination of the Bank by a trier of fact, there remains a genuine issue
under laches, see Kourogenis, 539 B.R. at 626-628, or that there was not some equitable reason
for the typical “surrender” rulings not to apply. See In re. Guerra, 544 B.R. 707 (Bankr. M.D. Fla.
2016).
12. In Kourogenis, a foreclosing lender argued a borrower’s “surrender” of property in
bankruptcy five years earlier precluded that borrower from defending a state court foreclosure
lawsuit. 539 B.R. at 628. Based on the lender’s failure to diligently assert that argument, the
Southern District of Florida allowed the borrower to defend his foreclosure lawsuit, explaining:
Laches is a defense sounding in equity that serves to bar suit by a plaintiff
‘whose unexcused delay, if the suit were allowed, would be prejudicial to the
defendant.’ See Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of
Engineers, 781 F.3d 1271, 1283 (11th Cir. 2015) (citing Russell v. Todd, 309
U.S. 280 (1940)). One of the most fundamental principles of equity
jurisprudence is that equity aids the vigilant, not those who sleep on their rights.
This general rule was brilliantly summarized in the late 18th century by the
English Lord Chancellor Camden in Smith v. Clay, 3 Brown CH 638:
A court of equity, which is never active in relief against conscience or public
convenience, has always refused to aid to stale demands, where the party has
slept upon his rights, and acquiesced for a great length of time. Nothing can
call forth this court into activity but conscience, good faith, and reasonable
diligence.
See Pomeroy’s Equity Jurisprudence § 419 (1905).
This case was filed on October 22, 2009. On February 3, 2010, this Court
entered an order discharging the Debtor, thereby effecting stay relief to Green
Tree. More than 5 years later, Green Tree seeks to reopen this bankruptcy case
4because the Debtor allegedly did not “perform her intention with respect to the
real property” within 30 days of her statement of intention. Green Tree and its
predecessors have slept on their rights. This Court, as a court of equity, will
not assist it. A fundamental premise of the bankruptcy premise of the
bankruptcy system is to give honest debtors a fresh start. This Debtor
completed her Chapter 7 bankruptcy and was issued a discharge on February 3,
2010. If this Court were to grant Green Tree’s Motion to Reopen, the Debtor’s
fresh start would be undone, the Debtor would be dragged back into a
bankruptcy that ended more than 5 years ago, and every aspect of the Debtor’s
intervening financial life would be subject to being scrutinized after the fact.
Green Tree’s Motion to Reopen secks relief that could have been sought
long ago. Reopening this case would prejudice the Debtor. Accordingly, the
elements of the defense of laches are met and Green Tree is barred from the
relief it seeks.
Id.
13. The first decision to address the concept of surrender precluding foreclosure
defense was, to the undersigned’s knowledge, In re. Metzler, 530 B.R. 894 (M.D. Fla. 2015).
Judge Williamson, the author of Metzler, did not follow his own decision when presented with a
lender who sat on its rights for years. To illustrate, In re. Guerra, Judge Williamson followed the
rationale from Kourogenis, explaining how the lender’s delay precluded the court from granting
the relief it requested.! 544 B.R. 707 (Bankr. M.D. Fla. 2016).
14, Judge Williamson began Guerra by explaining how the facts were different than
those in Metzler:
What went unstated in Metzler, but was the rationale behind the Court’s
decision, was that the short time between the time the debtors received the relief
they sought in bankruptcy, on the one hand, and opposed foreclosure contrary
to their statement of intentions, on the other hand, led the Court to infer the
debtors had no intention of surrendering their property, i.c., they had misled this
Court.
The same is not true here. For one thing, the Bank did not even file its
foreclosure action until more than two years after the Debtor received her
' The undersigned was not counsel in Metzler and was not involved in that case/decision any way. The
undersigned was counsel, however, at the dispositive hearing in Guerra and advanced the laches argument
upon which Judge Williamson ruled.
5discharged. The record is unclear why the Bank waited so long to foreclose its
mortgage. But what is clear is that it was not until nearly three years after she
received her chapter 7 discharge that the Debtor first took some affirmative
action to impede the Bank’s foreclosure efforts. And then the Bank waited
another year before seeking to reopen this case. Judge Olson confronted similar
facts in In re. Kourogenis.
544 B.R. at 709. Even for the judge who authored Metzler, “surrender” in bankruptcy does not
preclude foreclosure defense as a matter of law where so much time passed between the discharge
in bankruptcy and the lender advancing this argument. Id. The Bank waited more than two years
after the Petition to file the request for judicial notice.
15. To be fair, the Guerra court, unlike Kourogenis, did not rule in favor of the debtor;
it merely left the question to the state court to decide. Id. at 711. Regardless, Guerra makes clear,
as does Kourogenis, that a borrower cannot be precluded from defending a state court foreclosure
lawsuit based on a “surrender” effectuated in bankruptcy years earlier without an extensive, fact-
intensive analysis. 544 B.R. at 711; 539 B.R. at 628. In the court’s own words:
The record is unclear why the Bank delayed in seeking to foreclose its mortgage
in this case or to seek relief from this case once the Debtor first opposed its
foreclosure efforts. ... the Court is not convinced, like Judge Olson was in
Kourogenis, that the Debtor here will be prejudiced by reopening the case ...
Here, years passed between the time the Debtor swore she would surrender her
home and the first time she opposed the state court foreclosure action. Given
that intervening lapse of time, the Court cannot conclude the Debtor intended
to perpetrate a fraud on this Court or make a mockery of the bankruptcy system.
Perhaps circumstances have since changed that would allow the Debtor to make
the required mortgage payments. ...
Td. at 711.
16. The Guerra court does not expressly require an evidentiary hearing where a lender
delays in advancing a “surrender” argument, nor does Kourogenis. That said, Metzler was decided
after an evidentiary hearing, and these decisions plainly show there are several facts a state court
must consider in adjudicating the question at bar, including: (i) the length of time that lapsed, post-
6discharge, before the lender files its foreclosure lawsuit; (ii) the length of time that lapsed, post-
discharge, before the lender raises the “surrender” argument; (iii) whether the borrower acted with
an intent to defraud the bankruptcy court; (iv) whether the borrower has been prejudiced by the
delay; and (v) whether the borrower’s circumstances have changed during the delay such that, for
example, the borrower could resume making payments. 544 B.R. at 711; 539 B.R. at 628.
I. PLAINTIFF IS NOT THE SAME _ ENTITY TO WHICH DEFENDANT
“SURRENDERED” THE PROPERTY, SO JUDICIAL ESTOPPEL DOES NOT.
APPLY.
17. The argument that “surrender” in bankruptcy precludes foreclosure defense is
presented in terms of judicial estoppel.2 See Kourogenis, 539 B.R. at 628. Tellingly, that is
precisely the vehicle in which Plaintiff sought relief, i.e. the request for judicial notice. (R. 79-
150.) Absent “special fairness and policy considerations,” however, judicial estoppel requires
mutuality of parties. See Blumberg v. USAA Casualty Ins. Co., 790 So. 2d 1061 (Fla. 2001);
Zeeuw v. BFI Waste Systems of N. America, Inc., 997 So, 2d 1218, 1221 (Fla. 2d DCA 2008);
Grau v. Provident Life and Acc. Ins. Co., 899 So. 2d 396 (Fla. 4th DCA 2005).
18. Inthe Bankruptcy, Defendant identified BAC Home Loans Servicing, not Plaintiff,
as the secured creditor of the Property. For purposes of applying judicial estoppel, the record is
bereft of any evidence proving an entity relationship between BAC Home Loans Servicing and
Plaintiff. Sanchez v. SunTrust Bank, 179 So. 3d 538, 541-542 (Fla. 4th DCA 2015) (holding that
a subsidiary owned by the lender does not prove standing; lender must introduce evidence of an
agreement of the subsidiary, or other entity relationship); Wright v. JPMorgan Chase Bank, N.A.,
169 So. 3d 251, 251-52 (Fla. 4th DCA 2015) (holding a “parent corporation and its wholly-owned
? Absent a doctrine such as judicial estoppel, it is hard to fathom why, absent the lawful entry of a default,
a defendant in a civil lawsuit would be precluded from defending himself.
7subsidiary are separate and distinct legal entities. ... As a separate legal entity, a parent corporation
. .. cannot exercise the rights of its subsidiary” . . . Thus, ownership of the note by subsidiary
Chase Bank does not give parent corporation JPMorgan Chase the right to enforce the note, absent
evidence that JPMorgan Chase acquired such a right”) (citations omitted); Accord Am. Int’]
Group, Inc. v. Cornerstone Bus., Inc., 872 So. 2d 333, 336 (Fla. 2d DCA 2004); see also Federated
Title Insurers, Inc. v. Ward, 538 So. 2d 890, 891 (Fla. 4th DCA 1989); Fiorito v. JPMorgan Chase
Bank Nat’! Assoc., 174 So. 3d 519, 521 (Fla. 4th DCA 2015).
19. As such, the mutuality of parties requirement is not satisfied here. In this case,
Plaintiff blindly proceeded under a theory of judicial estoppel arguing that Defendant’s Petition
“surrendered” the property, yet there is no evidentiary support of an entity relationship. See
Kourogenis, Zeeuw, Grau, supra. There remains a genuine issue of material fact on mutuality of
the parties and the applicability of this defense in that regard.
20. Plaintiff may point to the “special fairness and policy considerations” exception in
Blumberg, but Grau shows that exception is limited and does not apply on the facts at bar. 899
So. 2d at 401; see also Montes v. Mastec North America, Inc., 132 So. 3d 1195 (Fla. 3d DCA
2014); Zeeuw, 997 So. 2d at 1221 (reversing summary judgment based on judicial estoppel,
concluding the “special fairness and policy considerations” exception in Blumberg did not apply).
21. The essence of “judicial estoppel” is a litigant making a “mockery” of the judicial
system by taking inconsistent positions in different forums. See Blumberg and Grau, supra.
«
Defendant’s “surrender” of the Property to BAC Home Loans Servicing and subsequent defense
of a foreclosure lawsuit by Plaintiff are not inconsistent, much less a mockery of the system. After
all, Defendant may well have believed BAC Home Loans Servicing had the requisite standing toforeclose, but that Plaintiff did not. The Bank certainly failed to prove Defendant’s intended to
create a mockery or mutuality of the parties.
22. In Kourogenis, the Southern District of Florida echoed this logic, noting how
“surrender” in bankruptcy “cannot possibly mean that a party who ... does not own the note and
mortgage can nonetheless foreclose on the property, without the debtor being heard.” 539 B.R. at
629. This rationale applies on the facts at bar. Defendant’s “surrender” of the Property in the
Bankruptcy, identifying BAC Home Loans Servicing as the secured creditor, should not preclude
him from challenging Plaintiff's standing.
23. Further, the Plaintiff's main contention is regarding the decision of In Re Failla,
838 F.3d 1170 (11™ Cir. 2016) in which the Eleventh Circuit made a broad sweeping statement,
without any exceptions or consideration for alternative issues, that “section 521(a)(2) requires
debtors who file a statement of intent to surrender to surrender the property to both the trustee and
to the creditor.” (emphasis added),
24. The Failla court goes on to acknowledge a strong factor of analysis for our case
regarding lienholders in the surrender context, the Court states that:
Granted, a creditor must take some legal action to recover real property—namely, a
foreclosure action. See Fla. Stat. Ann. §§ 702.01-702.11. Foreclosure proceedings
ensure that debtors do not have to determine unilaterally issues of priority if there are
multiple creditors or surplus if the value of the property exceeds the liability. See
Plummer, 513 B.R. at 144. Debtors who surrender property must get out of the
creditor’s way. “[I]n order for surrender to mean anything in the context of § 521(a)(2),
it has to mean that ... debtor[s] ... must not contest the efforts of the lienholder to
foreclose on the property.” In re Elowitz, 550 B.R. 603, 607 (Bankr. S.D. Fla. 2016).
Otherwise, debtors could obtain a discharge in bankruptcy based, in part, on their sworn
statement to surrender and “enjoy possession of the collateral indefinitely while
hindering and prolonging the state court process.
Id. (quoting In re Metzler, 530 B.R. 894, 900 (Bankr. M.D. Fla. 2015)). (emphasis added)
25, The key wording here is that the “creditor” must still take legal action to acquire the
9property, This means that the creditor must prove their case, which encompasses their ability to
enforce the obligation, i.e. standing at the inception and at the time of trial in the foreclosure court.
Corrigan v. Bank of America, N.A., 189 So. 3d 187 (Fla. 2d DCA 2016) (en banc). Additionally, the
Defendant may not contest the efforts of the “lienholder” to foreclose the property, with the term
lienholder being the operative word. Id.
The Court Must Examine if the Plaintiff is the Creditor or Lienholder
26. Various courts that dealt with the issue of requiring surrender stressed the importance
of the issue of who was the lienholder that the property was being surrendered to.
27. Judge John K. Olsen in the Southern District of Florida in, In re Kourogenis, 539 B.R.
625 (Bankr. SDFL 2015), opined, as argued above, that surrender does not equal turning over the
property. He opined this specifically because “[w]hatever the meaning of “surrender” under Section
521, it cannot possibly mean that a party who, for instance, does not own the note and mortgage can
nonetheless foreclose on the property, without the Debtor being heard, solely because the Debtor
indicated an intent to surrender.” This quote and rationale is extremely relevant and pertinent in the
light of the overarching generalization by the Failla court that a Debtor may not be heard in any respect
during the foreclosure process.
A Blanket Injunction, Without Exceptions, From Debtors Post Discharge Defense to
Foreclosure is Contrary to Law and Equity
28. First and foremost, Judge Olsen in Kourogenis hit the nail on the head when he
expressly opined his concerns that a Debtor couldn’t be barred from being heard on the issue regarding
if the lienholder was truly the lienholder that surrender should be made to. This is further backed up
from the plain language in the Failla decision and the progeny of cases it string cited to that surrender
is to the creditor/lienholder.
29, After Failla was decided, Judge Robert Faris opined his abhorrence towards the
10decision and addressed this Court’s concern regarding the overreach of the broad blanket statement
that all Debtors who surrender could not defend foreclosure actions in In Re Ryan, 560 B.R. 339
(Bankr, Hawaii 2016)
30. Judge Faris attacked various rationales of the Failla court that are on point in our
matter.
31. First, Judge Faris attacked Failla’s decision that surrender must mean solely that
debtor must get out of the creditor’s way, without exception, because:
“... [T]he court assumes that the debtor’s right to a discharge is contingent
upon the debtor’s surrender of the collateral. ... The debtor’s failure to state his
intention, or failure to carry out his stated intention, has no effect on the debtor’s
right to a discharge”
32. However a critical distinction that Judge Faris contests is the “hanging paragraph”
analysis by the Failla court by asserting:
[The Failla Court’s] “reasoning assumes that the debtor’s only “bankruptcy
rights” in the collateral are the protection of the automatic stay. This assumption is
not correct. Among a great many other rights, debtors have the right to object to the
secured creditor’s claim and challenge liens. A party in interest, including the
debtor, can challenge secured claims on any ground available under nonbankruptcy
law. There is no good reason to construe the savings clause as limiting the debtor’s
post-bankruptcy rights and defenses.”
(emphasis added)
33. Finally, Judge Faris articulates why the substantive rights of the Debtors, such as
challenging who the creditor is, i.e. the standing of the foreclosing party, is not extinguished by
selecting surrender. Judge Faris examined rationale with the code and case law and stated:
“Surrender should not affect a debtor’s substantive rights for a number of
reasons.
First, the Code spells out the consequences of a stated intention to
surrender: in certain circumstances, the automatic stay is terminated. If Congress
intended that “surrender” would have the far-reaching consequences described in
Failla, Congress could and would have said so.
11Second, the Code gives only the trustee the authority to compel a debtor to
file the statement of intention and to carry out the stated intention. The fact that
Congress did not give creditors the power to enforce the debtor’s stated intention
emphasizes the limited effect of “surrender.”
Third, the savings clause or “hanging paragraph” of section 521(a)(2),
fairly read, means that “surrender” does not alter any substantive rights or defenses.
Finally, there is no reason to read the ambiguous word “surrender” under
section 521(a)(2) to give secured creditors a free pass to violate the foreclosure
laws. The Failla decision implies that_a debtor’s post-discharge objection to a
foreclosure is always abusive, but this is simply incorrect, Debtors may have
perfectly legitimate reasons to defend a foreclosure case post-discharge. For
example, the property may be subject to a junior lien securing a non-dischargeable
debt, such as taxes. This is a particularly common problem in Hawaii, where
condominium ownership is prevalent and condominium assessments that are due
and payable post-petition are not dischargeable. In such a case, the debtor has a
good reason to want the senior lienholder to comply with the law and secure the
highest possible price for the property, in order to minimize the debtor’s
nondischargeable liability.
Thus, the Ryans’ statement that they intended to “surrender” the residence
and their surrender declaration do not, as a matter of bankruptcy law, preclude the
Ryans from defending against a foreclosure or asserting claims based on an
allegedly improper foreclosure.”
(emphasis added)
34. The Ryan decision is the most on point with the Debtors’ position here and would take
apart the hard line and clearly inequitable decision of Failla. First, if Congress intended for surrender
to mean a bar to defending an action, it would have stated so. Id. Further, there is no indication that
the requirement is anything other than what a trustee can assert. Id. Finally, and most on point,
allowing the bright line rule of Failla would circumvent the creditors requirement to fulfill its burden
of proof required to foreclose. Id. This most comes into play in our case as to standing, which the
Debtors have challenged since the inception of the foreclosure lawsuit, in its schedules and during the
pendency of the foreclosure action.
1235. Couple this with the fact that the Kourogenis court indicated surrender didn’t mean
the debtor could not challenge who the proper creditor lienholder was and the Failla court citing
decisions that the surrender was to the creditor or lienholder, and a Debtor, even if they did surrender
the property, should be permitted to defend the foreclosure on the basis of standing alone, if not on
other grounds.
36. Another illustrative case that goes to this premise is that of In re Elowitz, 550 B.R.
603 (Bankr. SDFL 2016). In Elowitz, Chief Judge Hyman determined the issue, and analyzed the
pre-appellate decision of Failla which opined in the manner that the 11" Circuit Court of Appeals did.
In section 3 of his opinion, Judge Hyman analyzes who the property must be surrendered to. He
articulates that it must be “to the lienholder.” Id. He further analyzes in that case that the lienholder
was the moving party due to a stipulation to such and based on the schedules where the debtors did
not contest the lien at all. He further analyzed that the law of negotiability in Florida must be followed
to determine if the movant was the proper party. Id. This is important and critical as to why Plaintiff
is not able to enforce this obligation.
37. This too illustrates why a debtor should be able to, at a minimum, challenge the
standing of the alleged creditor or lienholder in the foreclosure matter. If there was not a reason to
analyze who the lienholder is, or allow the debtor to challenge such, then the Elowitz court would not
have analyzed the issue at all and the broad blanket interpretation of Failla, at that time and currently,
that Plaintiff wishes to take would be correct. It is clearly not. Creditors cannot sidestep their
obligations to foreclosure courts, or any court, to prove they are the actual lienholder and have
standing to bring the suit and collect the collateral. All courts agree that surrender is only to the
lienholder, so that must be proven and a debtor should not be barred from contesting that unless some
stipulation occurred.
1338. To further distinguish this matter from the Debtors’ circumstances and this case,
unlike Failla and Elowitz, the Debtors in this case did not stipulate or agree that Plaintiff (or its
predecessors) where the proper parties to the lien.
39, In Elowitz, the debtor stipulated that the movant was the proper creditor and did not
list the claim as contingent, unliquidated or disputed.
40. In Failla, the creditor attempting to enforce the surrender provision was Citibank, N.A.
The Court indicated that the “Faillas admitted that they own the house, that the house was collateral
for the mortgage, that the mortgage is valid, and that the balance of the mortgage exceeds the value
of the house. They also filed a statement of intention, 11 USC 521(a)(2), to surrender the house.”
The opinion further states that “[d]uring the bankruptcy proceedings, the Faillas declared that they
would surrender the property, that the mortgage is valid, and that Citibank has the right to foreclose.”
(emphasis added). This means that in both Elowitz and Failla, the debtors admitted the creditor
seeking to enforce the lien was the party moving to compel surrender. This is clearly not what we
have in our case and the decision should not apply.
Al. Defendant here, unlike Elowitz, listed the claim to BAC Home Loans Servicing, not
the current movant. Further, there has been no stipulation by Defendant that the Plaintiffis the proper
creditor to the debt.
Il. MOTION FOR STAY PENDING APPEAL
42. In the alternative, this Court has the power to set aside the sale and control the issuance
of the Certificate of Title for any equitable reason. Arsali v. Chase Home Finance, LLC, 121 So.3d
14511 (Fla. 2013).
43, Courts have “considerable latitude in controlling the circumstances under which the
proceedings may be stayed pending review.” See Pabian v. Pabian 469 So.2d 189, 191 (4 DCA
1985).
44, “Since all land is considered unique, money damages to a [party to a contract] is an
inadequate remedy at law. Therefore, specific performance of contracts...is generally granted...”
Henry v. Ecker, 415 So. 2d 137, 140 (Fla. 5th DCA 1982); see also Bilow v. Benoit, 519 So. 2d 1114,
1117 n.1 (Fla. 1st DCA 1988) (“Because real property is considered unique, a seller of real property
is entitled to seek specific performance of the contract of sale.” (citation omitted). As such, the
uniqueness of land illustrates irreparable harm that will occur if the sale of the property occurs.
45. If the sale is permitted to proceed and a third-party purchaser is involved, Defendant
will be irreparably harmed by being forced to lose his property. This is not keeping the status quo as
is the purpose of a stay in proceedings. Sundie v. Haren, 253 So.2d 857, 858 (Fla. 1971).
46. The Plaintiff is not likely to suffer any harm pending an appeal, if necessary to file, or
resolution of the Motion for Rehearing, as it will be fully secured for their judgment as the home is
the collateral and will be the same collateral they will acquire if they execute the judgment. Further,
the property is being maintained by Defendant, thus securing the collateral’s value.
47. Therefore, the sale should be cancelled and this case should be stayed pending a ruling
on Defendant’s appeal, if necessary to file, and Motion for Rehearing. Failure to do so would result
in irreparable harm to Defendant and any potential unknowing third party purchaser, should this
Court’s ruling be overturned.
48. Ina similar mortgage foreclosure appeal, the Second District Court of Appeal entered
an order disapproving an order denying a stay pending appeal and granting a stay without bond in
15Valrie E. Colphy Williams vs. Bank of America, N.A., Case No. 2D12-6349 (order dated Jan. 17,
2013).
49. Conversely, there is no harm in granting the stay. If the appeal is denied, the
foreclosure sale could simply be rescheduled at that time.
WHEREFORE Defendant respectfully requests relief in accordance with the foregoing.
CERTIFICATE OF SERVICE
1 HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via
electronic mail to SHD Legal Group, P.A., answers@shdlegalgroup.com, 499 NW 70" Avenue,
Suite 309, Ft. Lauderdale, Florida 33317 on this 15" day of March, 2018.
(/ Mark P.Stopa
Mark P. Stopa, Esquire
FBN: 550507
STOPA LAW FIRM
2202 N. Westshore Blvd.
Suite 200
Tampa, FL 33607
Telephone: (727) 851-9551
foreclosurepleadings@stopalawfirm.com
ATTORNEY FOR DEFENDANT(S)
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Filing # 69339417 E-Filed 03/15/2018 04:14:42 PM IN THE CIRCUIT COURT OF THE TWENTHETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA U.S. BANK, NATIONAL ASSOCIATION, Plaintiff, Case No. 17-CA-100 Vv. THOMAS F. LAMATRICE, et al., Defendants, / DEFENDANT’S MOTION FOR REHEARING OF FINAL JUDGMENT AND FOR STAY PENDING APPEAL Defendant, THOMAS F. LAMATRICE, pursuant to Fla. R. Civ. P. 1.530, hereby moves this Court to reconsider its granting of Final Judgment entered February 28, 2018. See Fla. R. Civ. P. 1.530(a). 1. On February 14, 2012, Defendant THOMAS F. LAMATRICE filed a Voluntary Petition for Chapter 7 Bankruptcy, which indicated the creditor for the subject property was BAC Home Loans Servicing. 2. On January 31, 2017, this foreclosure action was filed by US Bank, National Association as Legal Title Trustee for Truman 2016 SC6 Title Trust asserting a default of February 1, 2012 with a Lost Note Count claiming Plaintiff was the owner of the Note and attaching Assignments allegedly signed by Attorneys in Fact. (The first Assignment was allegedly executed on behalf of Bank of America, N.A., by Indecomm Global Services, its Attorney in Fact. The second Assignment was allegedly executed on behalf of Christina Trust, a Division of Wilmington Savings Fund Society, FSB, Not in its individual capacity but as Trustee of ARLP Trust 3, by Meridian Asset Services Inc, its Attorney in Fact.)3. On March 22, 2017, Plaintiff filed a Notice of Defendant’s Intention to Surrender Property and Request for Judicial Notice. On April 7, 2017, Defendant filed a Motion to Dismiss. On July 25, 2017, Defendant’s Motion to Dismiss was denied and Plaintiffs Request for Judicial Notice was granted. On August 25, 2017, Defendant filed an Answer with Defenses. On August 29, 2017, Plaintiff filed a Motion to Strike Defenses due to Bankruptcy Surrender and a Reply to the Affirmative Defenses alleging such lack merit due to the Bankruptcy Surrender. 4, On October 11, 2017, the Court entered an Order granting Plaintiff's Motion to Strike Defenses and ordering “Defendant shall not oppose the Plaintiffs Right to Foreclose as held in Failla v. Citibank, 838 F. 3d 1170 (11" Cir. 2016).” 5. On February 28, 2018, this court held a Summary Judgment hearing and concluded with the Court entering Judgment in favor of the Plaintiff. 6. Fla. R. Civ. P. 1.530 requires that a Motion for Rehearing to be served within 15 days of rendition of the Order it seeks rehearing upon. As the judgment was rendered on February 28, 2018, Defendants timely serves this Motion. 7. The granting or denial of rehearing is a matter within discretion of the trial court, but it is never an arbitrary decision. Holl v. Talcott, 191 So.2d 40, 46-47 (Fla. 1966)(granting rehearing to movant). 8. Defendant is entitled to a hearing on its Motion for Rehearing. J.R. Fenton, Inc. v. Gallery 600, Inc., 488 So. 2d 587 (Fla. 2"? DCA 1986)(There was a due process right to a hearing on a motion for rehearing).I BANK SLEPT _ON_ITS_ RIGHTS FOR YEARS AND DID NOT CONCLUSIVELY PROVE RELIEF IT REQUESTED WAS NOT BARRED BY WAIVER OR LACHES 9. A “surrender” in bankruptcy should not result in an automatic foreclosure, particularly where the lender’s subsequent actions are inconsistent with an intent to reclaim title. “{S]urrender” is not always “a slam dunk.” For example (as articulated sua sponte by one circuit judge who denied a lender’s “surrender” argument on similar facts), suppose there had been a surrender in bankruptcy, and Defendant thereafter moved out of the Property and hand-delivered adeed conveying title to the Bank, but the Bank refused to accept that deed and advised Defendant it was not interested in the Property. Suppose further that, as a result of remaining on title, Defendant continued to incur association dues and that squatters had taken possession, creating personal liability in the event of accident or injury. 10. ‘If Defendant removed the squatters, re-took possession of the property, and paid the association dues only after such events — all while the Bank was continuing to do nothing to reclaim title — then would this Court conclude that surrender required foreclosure as a matter of law? Undoubtedly not. See In re. Kourogenis, 539 B.R. 625 (Bankr. S.D. Fla. 2015). After all, there can be no doubt that surrender does not always preclude foreclosure defense. Yet that is precisely what the Bank would have this Court do, i.e. rule “surrender” in bankruptcy always precludes foreclosure defense, no matter what transpires afterwards. The Bank’s position cannot be the law. 11. — The foregoing example is, admittedly, just an example. Regardless, in prosecuting if Defendant could not defend this lawsuit because of the purported Surrender and alleged discharge in Bankruptcy, the Bank is necessarily arguing that Defendant could not defend irrespective of what happened in the years after the purported Surrender. That begs the question:what transpired between these parties after the purport Surrender, and prior to the time the Bank finally raised its “surrender” argument in the trial court? Did Defendant try to give title to the Bank? Did the Bank do anything to disavow an intent to foreclose? Was Defendant continuing to incur association dues or other liabilities associated with remaining on title? Did Defendant move out, then move back in only after the lender refused to take title? Without such inquiry through witness testimony and examination of the Bank by a trier of fact, there remains a genuine issue under laches, see Kourogenis, 539 B.R. at 626-628, or that there was not some equitable reason for the typical “surrender” rulings not to apply. See In re. Guerra, 544 B.R. 707 (Bankr. M.D. Fla. 2016). 12. In Kourogenis, a foreclosing lender argued a borrower’s “surrender” of property in bankruptcy five years earlier precluded that borrower from defending a state court foreclosure lawsuit. 539 B.R. at 628. Based on the lender’s failure to diligently assert that argument, the Southern District of Florida allowed the borrower to defend his foreclosure lawsuit, explaining: Laches is a defense sounding in equity that serves to bar suit by a plaintiff ‘whose unexcused delay, if the suit were allowed, would be prejudicial to the defendant.’ See Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Engineers, 781 F.3d 1271, 1283 (11th Cir. 2015) (citing Russell v. Todd, 309 U.S. 280 (1940)). One of the most fundamental principles of equity jurisprudence is that equity aids the vigilant, not those who sleep on their rights. This general rule was brilliantly summarized in the late 18th century by the English Lord Chancellor Camden in Smith v. Clay, 3 Brown CH 638: A court of equity, which is never active in relief against conscience or public convenience, has always refused to aid to stale demands, where the party has slept upon his rights, and acquiesced for a great length of time. Nothing can call forth this court into activity but conscience, good faith, and reasonable diligence. See Pomeroy’s Equity Jurisprudence § 419 (1905). This case was filed on October 22, 2009. On February 3, 2010, this Court entered an order discharging the Debtor, thereby effecting stay relief to Green Tree. More than 5 years later, Green Tree seeks to reopen this bankruptcy case 4because the Debtor allegedly did not “perform her intention with respect to the real property” within 30 days of her statement of intention. Green Tree and its predecessors have slept on their rights. This Court, as a court of equity, will not assist it. A fundamental premise of the bankruptcy premise of the bankruptcy system is to give honest debtors a fresh start. This Debtor completed her Chapter 7 bankruptcy and was issued a discharge on February 3, 2010. If this Court were to grant Green Tree’s Motion to Reopen, the Debtor’s fresh start would be undone, the Debtor would be dragged back into a bankruptcy that ended more than 5 years ago, and every aspect of the Debtor’s intervening financial life would be subject to being scrutinized after the fact. Green Tree’s Motion to Reopen secks relief that could have been sought long ago. Reopening this case would prejudice the Debtor. Accordingly, the elements of the defense of laches are met and Green Tree is barred from the relief it seeks. Id. 13. The first decision to address the concept of surrender precluding foreclosure defense was, to the undersigned’s knowledge, In re. Metzler, 530 B.R. 894 (M.D. Fla. 2015). Judge Williamson, the author of Metzler, did not follow his own decision when presented with a lender who sat on its rights for years. To illustrate, In re. Guerra, Judge Williamson followed the rationale from Kourogenis, explaining how the lender’s delay precluded the court from granting the relief it requested.! 544 B.R. 707 (Bankr. M.D. Fla. 2016). 14, Judge Williamson began Guerra by explaining how the facts were different than those in Metzler: What went unstated in Metzler, but was the rationale behind the Court’s decision, was that the short time between the time the debtors received the relief they sought in bankruptcy, on the one hand, and opposed foreclosure contrary to their statement of intentions, on the other hand, led the Court to infer the debtors had no intention of surrendering their property, i.c., they had misled this Court. The same is not true here. For one thing, the Bank did not even file its foreclosure action until more than two years after the Debtor received her ' The undersigned was not counsel in Metzler and was not involved in that case/decision any way. The undersigned was counsel, however, at the dispositive hearing in Guerra and advanced the laches argument upon which Judge Williamson ruled. 5discharged. The record is unclear why the Bank waited so long to foreclose its mortgage. But what is clear is that it was not until nearly three years after she received her chapter 7 discharge that the Debtor first took some affirmative action to impede the Bank’s foreclosure efforts. And then the Bank waited another year before seeking to reopen this case. Judge Olson confronted similar facts in In re. Kourogenis. 544 B.R. at 709. Even for the judge who authored Metzler, “surrender” in bankruptcy does not preclude foreclosure defense as a matter of law where so much time passed between the discharge in bankruptcy and the lender advancing this argument. Id. The Bank waited more than two years after the Petition to file the request for judicial notice. 15. To be fair, the Guerra court, unlike Kourogenis, did not rule in favor of the debtor; it merely left the question to the state court to decide. Id. at 711. Regardless, Guerra makes clear, as does Kourogenis, that a borrower cannot be precluded from defending a state court foreclosure lawsuit based on a “surrender” effectuated in bankruptcy years earlier without an extensive, fact- intensive analysis. 544 B.R. at 711; 539 B.R. at 628. In the court’s own words: The record is unclear why the Bank delayed in seeking to foreclose its mortgage in this case or to seek relief from this case once the Debtor first opposed its foreclosure efforts. ... the Court is not convinced, like Judge Olson was in Kourogenis, that the Debtor here will be prejudiced by reopening the case ... Here, years passed between the time the Debtor swore she would surrender her home and the first time she opposed the state court foreclosure action. Given that intervening lapse of time, the Court cannot conclude the Debtor intended to perpetrate a fraud on this Court or make a mockery of the bankruptcy system. Perhaps circumstances have since changed that would allow the Debtor to make the required mortgage payments. ... Td. at 711. 16. The Guerra court does not expressly require an evidentiary hearing where a lender delays in advancing a “surrender” argument, nor does Kourogenis. That said, Metzler was decided after an evidentiary hearing, and these decisions plainly show there are several facts a state court must consider in adjudicating the question at bar, including: (i) the length of time that lapsed, post- 6discharge, before the lender files its foreclosure lawsuit; (ii) the length of time that lapsed, post- discharge, before the lender raises the “surrender” argument; (iii) whether the borrower acted with an intent to defraud the bankruptcy court; (iv) whether the borrower has been prejudiced by the delay; and (v) whether the borrower’s circumstances have changed during the delay such that, for example, the borrower could resume making payments. 544 B.R. at 711; 539 B.R. at 628. I. PLAINTIFF IS NOT THE SAME _ ENTITY TO WHICH DEFENDANT “SURRENDERED” THE PROPERTY, SO JUDICIAL ESTOPPEL DOES NOT. APPLY. 17. The argument that “surrender” in bankruptcy precludes foreclosure defense is presented in terms of judicial estoppel.2 See Kourogenis, 539 B.R. at 628. Tellingly, that is precisely the vehicle in which Plaintiff sought relief, i.e. the request for judicial notice. (R. 79- 150.) Absent “special fairness and policy considerations,” however, judicial estoppel requires mutuality of parties. See Blumberg v. USAA Casualty Ins. Co., 790 So. 2d 1061 (Fla. 2001); Zeeuw v. BFI Waste Systems of N. America, Inc., 997 So, 2d 1218, 1221 (Fla. 2d DCA 2008); Grau v. Provident Life and Acc. Ins. Co., 899 So. 2d 396 (Fla. 4th DCA 2005). 18. Inthe Bankruptcy, Defendant identified BAC Home Loans Servicing, not Plaintiff, as the secured creditor of the Property. For purposes of applying judicial estoppel, the record is bereft of any evidence proving an entity relationship between BAC Home Loans Servicing and Plaintiff. Sanchez v. SunTrust Bank, 179 So. 3d 538, 541-542 (Fla. 4th DCA 2015) (holding that a subsidiary owned by the lender does not prove standing; lender must introduce evidence of an agreement of the subsidiary, or other entity relationship); Wright v. JPMorgan Chase Bank, N.A., 169 So. 3d 251, 251-52 (Fla. 4th DCA 2015) (holding a “parent corporation and its wholly-owned ? Absent a doctrine such as judicial estoppel, it is hard to fathom why, absent the lawful entry of a default, a defendant in a civil lawsuit would be precluded from defending himself. 7subsidiary are separate and distinct legal entities. ... As a separate legal entity, a parent corporation . .. cannot exercise the rights of its subsidiary” . . . Thus, ownership of the note by subsidiary Chase Bank does not give parent corporation JPMorgan Chase the right to enforce the note, absent evidence that JPMorgan Chase acquired such a right”) (citations omitted); Accord Am. Int’] Group, Inc. v. Cornerstone Bus., Inc., 872 So. 2d 333, 336 (Fla. 2d DCA 2004); see also Federated Title Insurers, Inc. v. Ward, 538 So. 2d 890, 891 (Fla. 4th DCA 1989); Fiorito v. JPMorgan Chase Bank Nat’! Assoc., 174 So. 3d 519, 521 (Fla. 4th DCA 2015). 19. As such, the mutuality of parties requirement is not satisfied here. In this case, Plaintiff blindly proceeded under a theory of judicial estoppel arguing that Defendant’s Petition “surrendered” the property, yet there is no evidentiary support of an entity relationship. See Kourogenis, Zeeuw, Grau, supra. There remains a genuine issue of material fact on mutuality of the parties and the applicability of this defense in that regard. 20. Plaintiff may point to the “special fairness and policy considerations” exception in Blumberg, but Grau shows that exception is limited and does not apply on the facts at bar. 899 So. 2d at 401; see also Montes v. Mastec North America, Inc., 132 So. 3d 1195 (Fla. 3d DCA 2014); Zeeuw, 997 So. 2d at 1221 (reversing summary judgment based on judicial estoppel, concluding the “special fairness and policy considerations” exception in Blumberg did not apply). 21. The essence of “judicial estoppel” is a litigant making a “mockery” of the judicial system by taking inconsistent positions in different forums. See Blumberg and Grau, supra. « Defendant’s “surrender” of the Property to BAC Home Loans Servicing and subsequent defense of a foreclosure lawsuit by Plaintiff are not inconsistent, much less a mockery of the system. After all, Defendant may well have believed BAC Home Loans Servicing had the requisite standing toforeclose, but that Plaintiff did not. The Bank certainly failed to prove Defendant’s intended to create a mockery or mutuality of the parties. 22. In Kourogenis, the Southern District of Florida echoed this logic, noting how “surrender” in bankruptcy “cannot possibly mean that a party who ... does not own the note and mortgage can nonetheless foreclose on the property, without the debtor being heard.” 539 B.R. at 629. This rationale applies on the facts at bar. Defendant’s “surrender” of the Property in the Bankruptcy, identifying BAC Home Loans Servicing as the secured creditor, should not preclude him from challenging Plaintiff's standing. 23. Further, the Plaintiff's main contention is regarding the decision of In Re Failla, 838 F.3d 1170 (11™ Cir. 2016) in which the Eleventh Circuit made a broad sweeping statement, without any exceptions or consideration for alternative issues, that “section 521(a)(2) requires debtors who file a statement of intent to surrender to surrender the property to both the trustee and to the creditor.” (emphasis added), 24. The Failla court goes on to acknowledge a strong factor of analysis for our case regarding lienholders in the surrender context, the Court states that: Granted, a creditor must take some legal action to recover real property—namely, a foreclosure action. See Fla. Stat. Ann. §§ 702.01-702.11. Foreclosure proceedings ensure that debtors do not have to determine unilaterally issues of priority if there are multiple creditors or surplus if the value of the property exceeds the liability. See Plummer, 513 B.R. at 144. Debtors who surrender property must get out of the creditor’s way. “[I]n order for surrender to mean anything in the context of § 521(a)(2), it has to mean that ... debtor[s] ... must not contest the efforts of the lienholder to foreclose on the property.” In re Elowitz, 550 B.R. 603, 607 (Bankr. S.D. Fla. 2016). Otherwise, debtors could obtain a discharge in bankruptcy based, in part, on their sworn statement to surrender and “enjoy possession of the collateral indefinitely while hindering and prolonging the state court process. Id. (quoting In re Metzler, 530 B.R. 894, 900 (Bankr. M.D. Fla. 2015)). (emphasis added) 25, The key wording here is that the “creditor” must still take legal action to acquire the 9property, This means that the creditor must prove their case, which encompasses their ability to enforce the obligation, i.e. standing at the inception and at the time of trial in the foreclosure court. Corrigan v. Bank of America, N.A., 189 So. 3d 187 (Fla. 2d DCA 2016) (en banc). Additionally, the Defendant may not contest the efforts of the “lienholder” to foreclose the property, with the term lienholder being the operative word. Id. The Court Must Examine if the Plaintiff is the Creditor or Lienholder 26. Various courts that dealt with the issue of requiring surrender stressed the importance of the issue of who was the lienholder that the property was being surrendered to. 27. Judge John K. Olsen in the Southern District of Florida in, In re Kourogenis, 539 B.R. 625 (Bankr. SDFL 2015), opined, as argued above, that surrender does not equal turning over the property. He opined this specifically because “[w]hatever the meaning of “surrender” under Section 521, it cannot possibly mean that a party who, for instance, does not own the note and mortgage can nonetheless foreclose on the property, without the Debtor being heard, solely because the Debtor indicated an intent to surrender.” This quote and rationale is extremely relevant and pertinent in the light of the overarching generalization by the Failla court that a Debtor may not be heard in any respect during the foreclosure process. A Blanket Injunction, Without Exceptions, From Debtors Post Discharge Defense to Foreclosure is Contrary to Law and Equity 28. First and foremost, Judge Olsen in Kourogenis hit the nail on the head when he expressly opined his concerns that a Debtor couldn’t be barred from being heard on the issue regarding if the lienholder was truly the lienholder that surrender should be made to. This is further backed up from the plain language in the Failla decision and the progeny of cases it string cited to that surrender is to the creditor/lienholder. 29, After Failla was decided, Judge Robert Faris opined his abhorrence towards the 10decision and addressed this Court’s concern regarding the overreach of the broad blanket statement that all Debtors who surrender could not defend foreclosure actions in In Re Ryan, 560 B.R. 339 (Bankr, Hawaii 2016) 30. Judge Faris attacked various rationales of the Failla court that are on point in our matter. 31. First, Judge Faris attacked Failla’s decision that surrender must mean solely that debtor must get out of the creditor’s way, without exception, because: “... [T]he court assumes that the debtor’s right to a discharge is contingent upon the debtor’s surrender of the collateral. ... The debtor’s failure to state his intention, or failure to carry out his stated intention, has no effect on the debtor’s right to a discharge” 32. However a critical distinction that Judge Faris contests is the “hanging paragraph” analysis by the Failla court by asserting: [The Failla Court’s] “reasoning assumes that the debtor’s only “bankruptcy rights” in the collateral are the protection of the automatic stay. This assumption is not correct. Among a great many other rights, debtors have the right to object to the secured creditor’s claim and challenge liens. A party in interest, including the debtor, can challenge secured claims on any ground available under nonbankruptcy law. There is no good reason to construe the savings clause as limiting the debtor’s post-bankruptcy rights and defenses.” (emphasis added) 33. Finally, Judge Faris articulates why the substantive rights of the Debtors, such as challenging who the creditor is, i.e. the standing of the foreclosing party, is not extinguished by selecting surrender. Judge Faris examined rationale with the code and case law and stated: “Surrender should not affect a debtor’s substantive rights for a number of reasons. First, the Code spells out the consequences of a stated intention to surrender: in certain circumstances, the automatic stay is terminated. If Congress intended that “surrender” would have the far-reaching consequences described in Failla, Congress could and would have said so. 11Second, the Code gives only the trustee the authority to compel a debtor to file the statement of intention and to carry out the stated intention. The fact that Congress did not give creditors the power to enforce the debtor’s stated intention emphasizes the limited effect of “surrender.” Third, the savings clause or “hanging paragraph” of section 521(a)(2), fairly read, means that “surrender” does not alter any substantive rights or defenses. Finally, there is no reason to read the ambiguous word “surrender” under section 521(a)(2) to give secured creditors a free pass to violate the foreclosure laws. The Failla decision implies that_a debtor’s post-discharge objection to a foreclosure is always abusive, but this is simply incorrect, Debtors may have perfectly legitimate reasons to defend a foreclosure case post-discharge. For example, the property may be subject to a junior lien securing a non-dischargeable debt, such as taxes. This is a particularly common problem in Hawaii, where condominium ownership is prevalent and condominium assessments that are due and payable post-petition are not dischargeable. In such a case, the debtor has a good reason to want the senior lienholder to comply with the law and secure the highest possible price for the property, in order to minimize the debtor’s nondischargeable liability. Thus, the Ryans’ statement that they intended to “surrender” the residence and their surrender declaration do not, as a matter of bankruptcy law, preclude the Ryans from defending against a foreclosure or asserting claims based on an allegedly improper foreclosure.” (emphasis added) 34. The Ryan decision is the most on point with the Debtors’ position here and would take apart the hard line and clearly inequitable decision of Failla. First, if Congress intended for surrender to mean a bar to defending an action, it would have stated so. Id. Further, there is no indication that the requirement is anything other than what a trustee can assert. Id. Finally, and most on point, allowing the bright line rule of Failla would circumvent the creditors requirement to fulfill its burden of proof required to foreclose. Id. This most comes into play in our case as to standing, which the Debtors have challenged since the inception of the foreclosure lawsuit, in its schedules and during the pendency of the foreclosure action. 1235. Couple this with the fact that the Kourogenis court indicated surrender didn’t mean the debtor could not challenge who the proper creditor lienholder was and the Failla court citing decisions that the surrender was to the creditor or lienholder, and a Debtor, even if they did surrender the property, should be permitted to defend the foreclosure on the basis of standing alone, if not on other grounds. 36. Another illustrative case that goes to this premise is that of In re Elowitz, 550 B.R. 603 (Bankr. SDFL 2016). In Elowitz, Chief Judge Hyman determined the issue, and analyzed the pre-appellate decision of Failla which opined in the manner that the 11" Circuit Court of Appeals did. In section 3 of his opinion, Judge Hyman analyzes who the property must be surrendered to. He articulates that it must be “to the lienholder.” Id. He further analyzes in that case that the lienholder was the moving party due to a stipulation to such and based on the schedules where the debtors did not contest the lien at all. He further analyzed that the law of negotiability in Florida must be followed to determine if the movant was the proper party. Id. This is important and critical as to why Plaintiff is not able to enforce this obligation. 37. This too illustrates why a debtor should be able to, at a minimum, challenge the standing of the alleged creditor or lienholder in the foreclosure matter. If there was not a reason to analyze who the lienholder is, or allow the debtor to challenge such, then the Elowitz court would not have analyzed the issue at all and the broad blanket interpretation of Failla, at that time and currently, that Plaintiff wishes to take would be correct. It is clearly not. Creditors cannot sidestep their obligations to foreclosure courts, or any court, to prove they are the actual lienholder and have standing to bring the suit and collect the collateral. All courts agree that surrender is only to the lienholder, so that must be proven and a debtor should not be barred from contesting that unless some stipulation occurred. 1338. To further distinguish this matter from the Debtors’ circumstances and this case, unlike Failla and Elowitz, the Debtors in this case did not stipulate or agree that Plaintiff (or its predecessors) where the proper parties to the lien. 39, In Elowitz, the debtor stipulated that the movant was the proper creditor and did not list the claim as contingent, unliquidated or disputed. 40. In Failla, the creditor attempting to enforce the surrender provision was Citibank, N.A. The Court indicated that the “Faillas admitted that they own the house, that the house was collateral for the mortgage, that the mortgage is valid, and that the balance of the mortgage exceeds the value of the house. They also filed a statement of intention, 11 USC 521(a)(2), to surrender the house.” The opinion further states that “[d]uring the bankruptcy proceedings, the Faillas declared that they would surrender the property, that the mortgage is valid, and that Citibank has the right to foreclose.” (emphasis added). This means that in both Elowitz and Failla, the debtors admitted the creditor seeking to enforce the lien was the party moving to compel surrender. This is clearly not what we have in our case and the decision should not apply. Al. Defendant here, unlike Elowitz, listed the claim to BAC Home Loans Servicing, not the current movant. Further, there has been no stipulation by Defendant that the Plaintiffis the proper creditor to the debt. Il. MOTION FOR STAY PENDING APPEAL 42. In the alternative, this Court has the power to set aside the sale and control the issuance of the Certificate of Title for any equitable reason. Arsali v. Chase Home Finance, LLC, 121 So.3d 14511 (Fla. 2013). 43, Courts have “considerable latitude in controlling the circumstances under which the proceedings may be stayed pending review.” See Pabian v. Pabian 469 So.2d 189, 191 (4 DCA 1985). 44, “Since all land is considered unique, money damages to a [party to a contract] is an inadequate remedy at law. Therefore, specific performance of contracts...is generally granted...” Henry v. Ecker, 415 So. 2d 137, 140 (Fla. 5th DCA 1982); see also Bilow v. Benoit, 519 So. 2d 1114, 1117 n.1 (Fla. 1st DCA 1988) (“Because real property is considered unique, a seller of real property is entitled to seek specific performance of the contract of sale.” (citation omitted). As such, the uniqueness of land illustrates irreparable harm that will occur if the sale of the property occurs. 45. If the sale is permitted to proceed and a third-party purchaser is involved, Defendant will be irreparably harmed by being forced to lose his property. This is not keeping the status quo as is the purpose of a stay in proceedings. Sundie v. Haren, 253 So.2d 857, 858 (Fla. 1971). 46. The Plaintiff is not likely to suffer any harm pending an appeal, if necessary to file, or resolution of the Motion for Rehearing, as it will be fully secured for their judgment as the home is the collateral and will be the same collateral they will acquire if they execute the judgment. Further, the property is being maintained by Defendant, thus securing the collateral’s value. 47. Therefore, the sale should be cancelled and this case should be stayed pending a ruling on Defendant’s appeal, if necessary to file, and Motion for Rehearing. Failure to do so would result in irreparable harm to Defendant and any potential unknowing third party purchaser, should this Court’s ruling be overturned. 48. Ina similar mortgage foreclosure appeal, the Second District Court of Appeal entered an order disapproving an order denying a stay pending appeal and granting a stay without bond in 15Valrie E. Colphy Williams vs. Bank of America, N.A., Case No. 2D12-6349 (order dated Jan. 17, 2013). 49. Conversely, there is no harm in granting the stay. If the appeal is denied, the foreclosure sale could simply be rescheduled at that time. WHEREFORE Defendant respectfully requests relief in accordance with the foregoing. CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via electronic mail to SHD Legal Group, P.A., answers@shdlegalgroup.com, 499 NW 70" Avenue, Suite 309, Ft. Lauderdale, Florida 33317 on this 15" day of March, 2018. (/ Mark P.Stopa Mark P. Stopa, Esquire FBN: 550507 STOPA LAW FIRM 2202 N. Westshore Blvd. Suite 200 Tampa, FL 33607 Telephone: (727) 851-9551 foreclosurepleadings@stopalawfirm.com ATTORNEY FOR DEFENDANT(S) 16