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Filing # 136594392 E-Filed 10/14/2021 04:47:34 PM
IN THE CIRCUIT COURT OF THE 14TH JUDICIAL CIRCUIT
IN AND FOR WASHINGTON COUNTY, FLORIDA
U.S. BANK, N.A., AS TRUSTEE, SUCCESSOR CASE NO.: 19-000168-CA
IN INTEREST TO WACHOVIA BANK
NATIONAL ASSOCIATION, AS TRUSTEE,
SUCCESSOR BY MERGER TO FIRST UNION
NATIONAL BANK AS TRUSTEE, FOR MID-
STATE TRUST X,
Plaintiff,
v.
BOBBY G. TILLIS; WILMA E. TILLIS; JOHN
DOE,
Defendants.
/
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT OF FORECLOSURE AND
REQUEST FOR ATTORNEYS’ FEES
The Plaintiff, U.S. BANK, N.A., AS TRUSTEE, SUCCESSOR IN INTEREST TO
WACHOVIA BANK NATIONAL ASSOCIATION, AS TRUSTEE, SUCCESSOR BY
MERGER TO FIRST UNION NATIONAL BANK AS TRUSTEE, FOR MID-STATE TRUST
X, pursuant to Fla. R. Civ. P. 1.510, moves this court for the entry of a Summary Judgment of
Foreclosure and, in support thereof states as follows:
Introduction
1. Plaintiff initiated this action by filing a Complaint to foreclose a mortgage encumbering
the real property located at 4214 Douglas Ferry, Caryville, FL 32427, Caryville, FL 32427
on or about September 16, 2019.
2. This action is based on a default due to non-payment of promissory note, and mortgage
securing same, executed on May 20, 2000, by BOBBY G. TILLIS and WILMA E. TILLIS
Electronically Filed Washington Case # 19000 1B8&SAA0fIX 10/14/2021 03:47:34 PM
File No.: M2000138-JMV Case No.: 19-000168-CAin favor of JIM WALTER HOMES, INC. The note and mortgage are held, and/or have
been subsequently assigned, to Plaintiff.
3. Defendant-borrower(s) have failed to make the payment due March 5, 2018, and all
subsequent payments.
4. Defendant(s), BOBBY G. TILLIS; WILMA E. TILLIS; CAPITAL ONE NA AS COLL
TLGF, did not file a responsive pleading in this action, and accordingly, were defaulted by
the clerk and/or this Court.
5. As there are no genuine issues of material fact in this case, no viable pending affirmative
defenses, and Plaintiff can demonstrate it is entitled to judgment as a matter of law, Plaintiff
respectfully seeks entry of summary judgment in its favor.
Memorandum of Law
6. The Supreme Court of Florida recently amended Florida Rule of Civil Procedure 1.510 to
“align Florida’s summary judgment standard with that of the federal courts and of the
supermajority of states that have already adopted the federal summary judgment standard.”
In re Amends. to Fla. Rule of Civ. Pro. 1.510, 309 So. 3d 192, 192 (Fla. 2020). 1
7. New Rule 1.510(a) specifically states that, “[t]he summary judgment standard provided for
in this rule shall be construed and applied in accordance with the federal summary
judgment standard.”
8. Mote particularly, “...the federal summary judgment standard articulated in Celotex Corp.
v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); and
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)” also known as
the Celotex trilogy. In re Amends. to Fla. Rule of Civ. Pro. 1.510, 309 So. 3d at 196.
1 The new standard was adopted on December 1, 2020 but effective on May 1, 2021.
Page 2 of 6
File No.: M2000138-JMV_ Case No.: 19-000168-CA.9. Unlike the old Florida standard, the new standard allows a movant to satisfy its burden of
production in two ways: “[I]f the nonmoving party must prove X to prevail [at trial], the
moving party at summary judgment can either produce evidence that X is not so or point
out that the nonmoving party lacks the evidence to prove X.” Bedford v. Doe, 880 F.3d
993, 996-97 (8th Cir. 2018).
10. The correct test in Florida for the existence of a genuine factual dispute will no longer
allow for “the existence of any competent evidence creating an issue of fact, however
credible or incredible, substantial or trivial, [that will stop] the inquiry and precludes
summary judgment, so long as the ‘slightest doubt’ is raised.” Bruce J. Berman & Peter D.
Webster, Berman’s Florida Civil Procedure § 1.510:5 (2020 ed.) (describing Florida’s pre-
amendment summary judgment standard).
11. By contrast, the Supreme Court has described the federal test as whether “the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477
US. at 248. “If the evidence is merely colorable, or is not significantly probative, summary
judgment may be granted.” Id. at 249-50.
12. The U.S. Supreme Court has explained, “[w]hen opposing parties tell two different stories,
one of which is blatantly contradicted by the record, so that no reasonable jury could
believe it, a court should not adopt that version of the facts for purposes of ruling on a
motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007).
13. Further adding, “[o]ne of the principal purposes of the summary judgment rule is to isolate
and dispose of factually unsupported claims or defenses, and we think it should be
interpreted in a way that allows it to accomplish this purpose.” Celotex, 477 U.S. at 323-
324.
Page 3 of 6
File No.: M2000138-JMV_ Case No.: 19-000168-CA.14.
15.
16.
17.
The summary judgment rule “must be construed with due regard not only for the rights of
persons asserting claims and defenses that are adequately based in fact to have those claims
and defenses tried to a jury, but also for the rights of persons opposing such claims and
defenses to demonstrate in the manner provided by the Rule, prior to trial, that the claims
and defenses have no factual basis.” Celotex, 477 U.S. at 327.
Similarly, in Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574
(1986), the Supreme Court held that the court reviewing a summary judgment motion was
required to weigh the evidence to the limited extent necessary to determine if the inferences
relied upon by the nonmoving party were plausible in the context of the litigation.
Thus, “[a] motion for summary judgment forces the nonmoving party to produce evidence
on any issue for which that party bears the burden of production at trial.” Wing v. Anchor
Media, Ltd of Texas, 59 Ohio St. 3d 108, 111,570 N.E.2d 1095 (1991), modified sub nom.
Dresher vy. Burt, 75 Ohio St. 3d 280, 662 N.E.2d 264 (1996).
Under the Celotex rationale, summary judgment is mandated against a party who, after
adequate time for discovery and on motion, fails to make a showing sufficient to establish
the existence of an element essential to that party's case, and on which that party will bear
the burden of proof at trial.
In such a situation, there can be ‘no genuine issue as to any material fact,” since a complete
failure of proof concerning an essential element of the nonmoving party's case necessarily
renders all other facts immaterial. The moving party is ‘entitled to a judgment as a matter
of law’ because the nonmoving party has failed to make a sufficient showing on an essential
element of her case with respect to which she has the burden of proof.” Celotex, 477 U.S.
at 322-323.
Page 4 of 6
File No.: M2000138-JMV Case No.: 19-000168-CA19.
20.
21.
22.
23.
24.
25.
26.
27.
There is no genuine issue of fact raised in the instant matter that would ever allow for “a
reasonable jury to believe it” as the nonmoving party has not made any sufficient showing
on any essential element of the case. Accordingly, the Plaintiff is entitled to a judgment as
a matter of law for the relief sought in the Complaint.
A mortgagee has the right to accelerate upon default in conditions of the security
agreement, such as payment of interest, installments of principal, taxes and insurance. See
eg ,Clark v. Lachenmeier, 237 So.2d 583 (Fla. 2d DCA 1970); Federal Home Loan
Mortgage Corp v. Taylor, 318 So.2d 203 (Fla 1‘ DCA 1975).
The Mortgage of the Plaintiff is a lien superior in dignity to any prior or subsequent right,
title, claim, lien, or interests arising out of the mortgagor or the mortgagor’s predecessors
in interest. Sarmiento v. Stockton, Whatley, Davin & Company, 399 So.2d 1057 (Fla. 3d
DCA 1981).
The Plaintiff has the right to enforce the Note which is the subject of this action and to
foreclose the Mortgage securing that Note. See Complaint.
The mortgagor(s) has (have) defaulted under the terms of the Note and Mortgage being
foreclosed.
Plaintiff's affidavits in support of the instant Motion establishes the Plaintiffs right to
summary judgment of foreclosure and an award of attorney’s fees and costs in this action.
Plaintiff's affidavits or other evidence are being filed contemporaneously with the instant
Motion
Plaintiff has satisfied all conditions precedent and the debt has been accelerated pursuant
to the covenants of the Note and Mortgage.
The Original Note and Original Mortgage have been filed with the Court or will be
Page 5 of 6
File No.: M2000138-JMV Case No.: 19-000168-CAsurrendered to the Court prior to or at the final hearing in this cause.
28. — The Original Note, Original Mortgage and Affidavits filed by the Plaintiff, and admissions
by the Defendants, if any, establish that the Plaintiff is entitled to judgment as a matter of
law because no genuine issue of material fact has been raised by the nonmoving party nor
has there been a sufficient showing of evidence on any essential element of the case.
WHEREFORE, the Plaintiff moves this court for entry of Summary Judgment of
Foreclosure and an award of attorney’s fees in connection therewith as well as for such further
relief the Court finds just and proper.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via
US. Mail and/or E-Service compliance with Rule of Judicial Administration 2.516 delivery this
14th day of October, 2021 to Bobby G. Tillis, 4214 Douglas Ferry Rd., Caryville, FL 32427;
Wilma E. Tillis, 4214 Douglas Ferry Road, Caryville, FL 32427; CAPITAL ONE NA AS COLL
TLGF, 15000 Capital One Drive, Richmond, VA 23238;..
KELLEY KRONENBERG
Attorney for Plaintiff
10360 West State Road 84
Fort Lauderdale, FL 33324
Telephone: (954) 370-9970
Service email: ftlrealprop@kelleykronenberg.com
Attorney email: leinhorn@kelleykronenberg.com
By: /s/ Lauren K, Einhorn
LAUREN K. EINHORN, ESQUIRE
Fla. Bar No.: 95198
Page 6 of 6
File No.: M2000138-JMV_ Case No.: 19-000168-CA.
Preview
Filing # 136594392 E-Filed 10/14/2021 04:47:34 PM IN THE CIRCUIT COURT OF THE 14TH JUDICIAL CIRCUIT IN AND FOR WASHINGTON COUNTY, FLORIDA U.S. BANK, N.A., AS TRUSTEE, SUCCESSOR CASE NO.: 19-000168-CA IN INTEREST TO WACHOVIA BANK NATIONAL ASSOCIATION, AS TRUSTEE, SUCCESSOR BY MERGER TO FIRST UNION NATIONAL BANK AS TRUSTEE, FOR MID- STATE TRUST X, Plaintiff, v. BOBBY G. TILLIS; WILMA E. TILLIS; JOHN DOE, Defendants. / PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT OF FORECLOSURE AND REQUEST FOR ATTORNEYS’ FEES The Plaintiff, U.S. BANK, N.A., AS TRUSTEE, SUCCESSOR IN INTEREST TO WACHOVIA BANK NATIONAL ASSOCIATION, AS TRUSTEE, SUCCESSOR BY MERGER TO FIRST UNION NATIONAL BANK AS TRUSTEE, FOR MID-STATE TRUST X, pursuant to Fla. R. Civ. P. 1.510, moves this court for the entry of a Summary Judgment of Foreclosure and, in support thereof states as follows: Introduction 1. Plaintiff initiated this action by filing a Complaint to foreclose a mortgage encumbering the real property located at 4214 Douglas Ferry, Caryville, FL 32427, Caryville, FL 32427 on or about September 16, 2019. 2. This action is based on a default due to non-payment of promissory note, and mortgage securing same, executed on May 20, 2000, by BOBBY G. TILLIS and WILMA E. TILLIS Electronically Filed Washington Case # 19000 1B8&SAA0fIX 10/14/2021 03:47:34 PM File No.: M2000138-JMV Case No.: 19-000168-CAin favor of JIM WALTER HOMES, INC. The note and mortgage are held, and/or have been subsequently assigned, to Plaintiff. 3. Defendant-borrower(s) have failed to make the payment due March 5, 2018, and all subsequent payments. 4. Defendant(s), BOBBY G. TILLIS; WILMA E. TILLIS; CAPITAL ONE NA AS COLL TLGF, did not file a responsive pleading in this action, and accordingly, were defaulted by the clerk and/or this Court. 5. As there are no genuine issues of material fact in this case, no viable pending affirmative defenses, and Plaintiff can demonstrate it is entitled to judgment as a matter of law, Plaintiff respectfully seeks entry of summary judgment in its favor. Memorandum of Law 6. The Supreme Court of Florida recently amended Florida Rule of Civil Procedure 1.510 to “align Florida’s summary judgment standard with that of the federal courts and of the supermajority of states that have already adopted the federal summary judgment standard.” In re Amends. to Fla. Rule of Civ. Pro. 1.510, 309 So. 3d 192, 192 (Fla. 2020). 1 7. New Rule 1.510(a) specifically states that, “[t]he summary judgment standard provided for in this rule shall be construed and applied in accordance with the federal summary judgment standard.” 8. Mote particularly, “...the federal summary judgment standard articulated in Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); and Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)” also known as the Celotex trilogy. In re Amends. to Fla. Rule of Civ. Pro. 1.510, 309 So. 3d at 196. 1 The new standard was adopted on December 1, 2020 but effective on May 1, 2021. Page 2 of 6 File No.: M2000138-JMV_ Case No.: 19-000168-CA.9. Unlike the old Florida standard, the new standard allows a movant to satisfy its burden of production in two ways: “[I]f the nonmoving party must prove X to prevail [at trial], the moving party at summary judgment can either produce evidence that X is not so or point out that the nonmoving party lacks the evidence to prove X.” Bedford v. Doe, 880 F.3d 993, 996-97 (8th Cir. 2018). 10. The correct test in Florida for the existence of a genuine factual dispute will no longer allow for “the existence of any competent evidence creating an issue of fact, however credible or incredible, substantial or trivial, [that will stop] the inquiry and precludes summary judgment, so long as the ‘slightest doubt’ is raised.” Bruce J. Berman & Peter D. Webster, Berman’s Florida Civil Procedure § 1.510:5 (2020 ed.) (describing Florida’s pre- amendment summary judgment standard). 11. By contrast, the Supreme Court has described the federal test as whether “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 US. at 248. “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Id. at 249-50. 12. The U.S. Supreme Court has explained, “[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007). 13. Further adding, “[o]ne of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and we think it should be interpreted in a way that allows it to accomplish this purpose.” Celotex, 477 U.S. at 323- 324. Page 3 of 6 File No.: M2000138-JMV_ Case No.: 19-000168-CA.14. 15. 16. 17. The summary judgment rule “must be construed with due regard not only for the rights of persons asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a jury, but also for the rights of persons opposing such claims and defenses to demonstrate in the manner provided by the Rule, prior to trial, that the claims and defenses have no factual basis.” Celotex, 477 U.S. at 327. Similarly, in Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986), the Supreme Court held that the court reviewing a summary judgment motion was required to weigh the evidence to the limited extent necessary to determine if the inferences relied upon by the nonmoving party were plausible in the context of the litigation. Thus, “[a] motion for summary judgment forces the nonmoving party to produce evidence on any issue for which that party bears the burden of production at trial.” Wing v. Anchor Media, Ltd of Texas, 59 Ohio St. 3d 108, 111,570 N.E.2d 1095 (1991), modified sub nom. Dresher vy. Burt, 75 Ohio St. 3d 280, 662 N.E.2d 264 (1996). Under the Celotex rationale, summary judgment is mandated against a party who, after adequate time for discovery and on motion, fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be ‘no genuine issue as to any material fact,” since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is ‘entitled to a judgment as a matter of law’ because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.” Celotex, 477 U.S. at 322-323. Page 4 of 6 File No.: M2000138-JMV Case No.: 19-000168-CA19. 20. 21. 22. 23. 24. 25. 26. 27. There is no genuine issue of fact raised in the instant matter that would ever allow for “a reasonable jury to believe it” as the nonmoving party has not made any sufficient showing on any essential element of the case. Accordingly, the Plaintiff is entitled to a judgment as a matter of law for the relief sought in the Complaint. A mortgagee has the right to accelerate upon default in conditions of the security agreement, such as payment of interest, installments of principal, taxes and insurance. See eg ,Clark v. Lachenmeier, 237 So.2d 583 (Fla. 2d DCA 1970); Federal Home Loan Mortgage Corp v. Taylor, 318 So.2d 203 (Fla 1‘ DCA 1975). The Mortgage of the Plaintiff is a lien superior in dignity to any prior or subsequent right, title, claim, lien, or interests arising out of the mortgagor or the mortgagor’s predecessors in interest. Sarmiento v. Stockton, Whatley, Davin & Company, 399 So.2d 1057 (Fla. 3d DCA 1981). The Plaintiff has the right to enforce the Note which is the subject of this action and to foreclose the Mortgage securing that Note. See Complaint. The mortgagor(s) has (have) defaulted under the terms of the Note and Mortgage being foreclosed. Plaintiff's affidavits in support of the instant Motion establishes the Plaintiffs right to summary judgment of foreclosure and an award of attorney’s fees and costs in this action. Plaintiff's affidavits or other evidence are being filed contemporaneously with the instant Motion Plaintiff has satisfied all conditions precedent and the debt has been accelerated pursuant to the covenants of the Note and Mortgage. The Original Note and Original Mortgage have been filed with the Court or will be Page 5 of 6 File No.: M2000138-JMV Case No.: 19-000168-CAsurrendered to the Court prior to or at the final hearing in this cause. 28. — The Original Note, Original Mortgage and Affidavits filed by the Plaintiff, and admissions by the Defendants, if any, establish that the Plaintiff is entitled to judgment as a matter of law because no genuine issue of material fact has been raised by the nonmoving party nor has there been a sufficient showing of evidence on any essential element of the case. WHEREFORE, the Plaintiff moves this court for entry of Summary Judgment of Foreclosure and an award of attorney’s fees in connection therewith as well as for such further relief the Court finds just and proper. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via US. Mail and/or E-Service compliance with Rule of Judicial Administration 2.516 delivery this 14th day of October, 2021 to Bobby G. Tillis, 4214 Douglas Ferry Rd., Caryville, FL 32427; Wilma E. Tillis, 4214 Douglas Ferry Road, Caryville, FL 32427; CAPITAL ONE NA AS COLL TLGF, 15000 Capital One Drive, Richmond, VA 23238;.. KELLEY KRONENBERG Attorney for Plaintiff 10360 West State Road 84 Fort Lauderdale, FL 33324 Telephone: (954) 370-9970 Service email: ftlrealprop@kelleykronenberg.com Attorney email: leinhorn@kelleykronenberg.com By: /s/ Lauren K, Einhorn LAUREN K. EINHORN, ESQUIRE Fla. Bar No.: 95198 Page 6 of 6 File No.: M2000138-JMV_ Case No.: 19-000168-CA.