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Filing # 96063287 E-Filed 09/20/2019 03:23:10 PM
IN THE CIRCUIT COURT OF THE SEVENTH JUDICIAL
CIRCUIT IN AND FOR FLAGLER COUNTY, FLORIDA.
CIVIL DIVISION
CASE NO. 2018 CA 000691
U.S. BANK NATIONAL ASSOCIATION, NOT IN ITS
INDIVIDUAL CAPACITY BUT SOLELY AS TRUSTEE
FOR THE RMAC TRUST, SERIES 2016-CTT,
Plaintiff,
vs.
MARTIN E, MCCARRICK A/K/A MARTIN
MCCARRICK; GRAND HAVEN MASTER
ASSOCIATION, INC.; CITIBANK (SOUTH DAKOTA),
N.Aj MELISSA CAPUTI, QUIK CAPITAL LLC D/B/A
STERLING FUNDING; STATE OF FLORIDA,
DEPARTMENT OF REVENUE; UNITED STATES OF
AMERICA; BROADCAST MUSIC, INC.; UNKNOWN
TENANT NO. 1; UNKNOWN TENANT NO. 2; and 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,
Defendant(s).
/
MOTION FOR SUMMARY FINAL JUDGMENT AND ATTORNEYS' FEES AND COSTS
Plaintiff, U.S. BANK NATIONAL ASSOCIATION, NOT IN ITS INDIVIDUAL
CAPACITY BUT SOLELY AS TRUSTEE FOR THE RMAC TRUST, SERIES 2016-CTT (hereinafter
referred to as “Plaintiff") by and through its undersigned counsel, moves this Court, pursuant to Florida
Rule of Civil Procedure 1.510, to enter a Summary Final Judgment against each of the Defendants in the
above-styled action. There exists no genuine issues as to any material fact and Plaintiff is entitled to
judgment as a matter of law based on the pleadings and affidavits filed in this action.
1. FORECLOSURE: This is an action by the holder of a mortgage, U.S. BANK NATIONAL
ASSOCIATION, NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS TRUSTEE FOR THE
RMAC TRUST, SERIES 2016-CTT, to foreclose the mortgage on real property situated in Flagler County,
Florida.
Electronically Received in the Office of the Clerk of the Circuit Court - Flagler County, Florida - 09/23/2019 10:14 AM2. HOLDER OF NOTE: The Plaintiff holds the promissory note and mortgage.
3. DEFAULT: The Note is due for November 1, 20 v7, and all subsequent payments. This
has resulted in a default of the note and mortgage.
4, PROPERTY: The legal description of the subject property is set forth in the Lis Pendens.
5. SERVICE: All Defendants have been served with notice of this action.
6. LIEN: Plaintiff's mortgage constitutes a valid lien on the subject property and is superior
to any right, title, interest or claim of all Defendants and all persons or-entities claiming by, through or
under them.
7. EVIDENCE: Plaintiff adopts and incorporates into this motion the affidavit of
indebtedness, Plaintiff's affidavit of attorneys' fees and costs, affidavit of reasonableness of fees, the
mortgage, the promissory note. Plaintiff has attached a copy of the original note as Exhibit “A”.
8. MEMORANDUM OF LAW: The substantial matters of law upon which this motion is
based are as follows:
a. A mortgage is presumed to have been validly executed and delivered on
the date recited in the mortgage if the mortgage is’proven of record and recorded according to the law.
Atlantic Land and Improvement Company v. Lee, 112 So. 549, 550 (Fla- 1927).
b. Where. a note secured by a mortgage is transferred without any formal
assignment of the mortgage, the mortgage in equity passes as an incident to the debt, unless there is some
plain and clear agreement to the contrary. Johns v. Gillian, 184 So. 140 (Fla. 1938). "A mere delivery of a
note and mortgage, with intention to pass the title, upon a proper consideration, will vest the equitable
interest in the person to whom it is so delivered." Zd., at 143. "Because the lien follows the debt, there was
no requirement of attachment of a written and recorded assignment of the mortgage in order for the
appellant to maintain the foreclosure action." Chemical Residential Mortgage v. Rector, 742 So.2d. 300
@la. 1* DCA, 1998), rev. denied 727 So.2d 910 (1999). To foreclose upon a promissory note, the plaintiff
must be the "holder" in order to be the real party in interest.. Troupe v. Redner, 652 So2d 394 (Fla 2d DCA1995), citing Withers v. Sandlin, 36 Fla. 619-18 So;-856 (1896);-Laing-v- Gainey Builders, Inc., 184 So, 2d
897 (Fla Ist DCA 1966). The "holder", with respect to a negotiable instrument, means the person in
possession if the instrument is payable to bearer or, in the case of an instrument payable to an identified
person, if the identified person is in possession. § 671.201(20), Fla. Stat. (2002). "Bearer" means the person
in possession of an instrument, document of title, or certificated security payable to bearer or indorsed in
blank. § 671.201(5), Fla. Stat. (2002).
c. In the event a formal assignment is delivered to the Plaintiff, Florida Law
has established that the “effective date” is the date of transfer of interest in the mortgage as opposed to the
date the assignment document was executed. WA Specialty Mortgage. LLC v. Salomon, 874 So2d. 680
(Fla 4" DCA 2004); Citing: Johns v Gillian, 184 So. 140, 143 (Fla 1938).
d. The interest of the owner of record in the property described herein is
inferior. and subordinate to the interest of the Plaintiff, the mortgagee. Jordan v. Sayre, 3 So. 329 (Fla.
1888).
e. The owner and holder of a valid recorded mortgage encuinbering real
property has a lien superior in dignity and right to any subsequently recorded mortgage, claim or lien
attaching to the property through the mortgagors, their successors, assigns and tenants. Lee v. Slemons, 150
So. 792, 794 (Fla. 1933); Bullard v. Fender, 192 So. 167, 171 (Fla. 1939); County of Pinellas v. Clearwater
Federal Savings and Loan Association, 214 So.2d 525, $26 (Fla. 2d DCA 1968). Therefore, the lien of
Plaintiff's mortgage takes priority over the subsequently recorded claims or liens of the Defendants in this
action. United States v. First Federal Savings and Loan Association of St. Petersburg, 155 So.2d 192, 193
(Fla. 2d DCA 1963).
f As a inatter of Jaw the entire indebtedness secured by the mortgage held
by Plaintiff is due and collectible. Van Huss v. Prudential Insurance Company of America, 165 So. 896
(Fla. 1936); Baader v. Walker, 153 So.2d 51, 54 (Fla. 2d DCA 1963).
g As to any Defendant that is a Homeowners Association as definedunder Florida Statute §720.301; said Defendant’s interest is'fully foreclosable as a matter of law. Florida:
Statute §720.3085 does not prevent foreclosure of any past due assessment claims of a Defendant Home
Owners Association, as Plaintiff's rights are determined by the Homeowner’s Association’s Declaration of
Covenants. Florida Statute §720.3085, does not retroactively apply to mortgages or assessments recorded
prior to its enactment. To the contrary the §720.3085(1) specifically states.that the Association's
assessments are inferior to the Plaintiff. Any application of the statute to the contrary is unconstitutional.
Sarasota County v, Andrews, et al. 573 $o.2d 113 (2™ DCA, 1991);Silver Blue Lake Apartments, Inc. v.
Silver Blue Lake Home Owners Association, Inc., 245 So. 2d 609, 611 (Fla 1971); Palm Point Property
Owners’ Association of Charlotte County, Inc. v. Pisarski (626 So. 2d 195 (Fla 1993); Holly Lake
Association v. Federal National Mortgage Association, 660 So. 2d 266, 269 (Fla. 1995); Park Benziger &
Co., Inc. v. Southern Wine & Spirits, Inc. 391 So. 2d 681, 683 (Fla. 1980); David v. Sun Federal Savings
& Loan Ass'n, 463 So,.2d 93 (Fla 1984); Metropolitan Dade County v. Chase Federal Housing Corp., et
al. 737 So, 2d 494, 500 (Fla 1999);
h. As to Defendants against whom a default has been entered, final judgment
may be entered by the Court at any time. Rule 1.500(e) Florida Rule of Civil Procedure.
i, This court must enter a summary final judgment.of foreclosure where there
exists no genuine issue as to any inaterial fact; this Court may, however, reserve jurisdiction to determine
the amount and priority of the claims. Mack Industries, Inc. v. Donald W. Nelson, Inc., 134 So.2d 821 (Fla.
2d DCA 1961).
je Where the note and mortgage so provide, a mortgagee is entitled to recover
costs, a reasonable fee for its attorneys in the prosecution of a foreclosure action, and any sums advanced
to prevent the impairment of its security. American Securities Co. v. Goldsberry, 67 So. 862, 866 (Fla.
1915).
9. ENTITLEMENT TO JUDGMENT: Plaintiff is entitled to recover its principal, interest,
late charges, costs, attorneys’ fees, and other expenses, all of which are more fully set forth in the affidavits
attached hereto.10. NO ISSUE OF LAW OR FACTS; -The: pleadings of file, together with-the affidavits—-
attached hereto, demonstrate that there is no dispute as to any material fact. Accordingly, Plaintiff is entitled
to Summary Final Judgment as a matter of law.
WHEREFORE, the Plaintiff respectfully requests that this Court enter Summary Final Judgment
in its favor as to the total amount sought in its Complaint, and grant Plaintiff's motion for attormeys' fees
and costs and such other and further relief as this Court deems just, including the issuance of writs of
possession against any parties that may be in possession of the property.
CERTIFICATE OF SERVICE
THEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by regular
yeh c
U.S. Mail, Facsimile, or electronic mail this OP =e ( k 2019 to all parties on the attached
service list. All parties for whom an e-mail address has not been designated or a mailing address is not
available are hereby notified that a copy of the served document may be obtained, on request, from the clerk
of the court or from the party serving the document.
SHD Legal Group P.A.
Attorneys for Plaintiff
499 NW 70th Ave., Suite 309
Fort Lauderdale, FL 33317
Telephone: (954) 564-0071
Facsimile: (954) 564-9252
Service E-mail: answers@shdlegalgroup.com
By: ( Mah, A
Mehwish A Yeusuf,
Florida Bar No. 171
Roy Diaz, Attorney of Record
Florida Bar No. 767700
1460-171066 / JB1EXHIBIT “A”FIXED RATE NOTE
FEBRUARY 25, 2908 DAYTONA BEACH FLORIDA
Date City Biate
7 SHINNECOCK COURT, PALM COAST, FL_32137
(Property Address)
1. BORROWER'S PROMISE TO PAY
In return for a loan that | have received, | promise to pay U.S.$ — 405,500.00 (this amount is
called "Principal"), plus interest, to the order of the Lender. The Lender is
FARGO BANK, NLA
i will make all payments under this Note In the form of cash, check or money order.
{ understand that the Lender may transfer this Note. The-Lender or anyone who takes this Note
by transfer and who is entitled to receive payments under this Nole is called the "Note Holder."
2. INTEREST
Interest will be charged on unpaid principal until the full amount of Principal has been paid. |
will pay interest at a yearly rate of 6.000 %.
The interest rate required by this Section 2 is the rate | will pay both before and after any default
described in Section 6(B) of this Note.
3. PAYMENTS
(A) Time and Place of Payments
{will pay principal and interest by making a payment every month.
| will make my monthly payment on the first day of each month beginning on APRIL 1, 2008
| will make these payments every month until | have paid all of the principal and interest and
any other charges described below that | may owe under this Note. Each monthly payment will be
applied as-of its scheduled due date and will be applied to interest before Principal.
I, on MARCH 1, 2038 ; Pstil owe amounts under this Note, | will pay those amounts in full
on that date, which is called the "Maturity Date."
t will make my monthly payments at WELLS FARGO BANK, N.A.
P.O, BOX 11701, NEWARK, NJ_07101-4701
or al a different place if required by the Note Holder.
({B) Amount of Monthly Payments
My monthly payment will be in the amount of U.S. $ 2,431.18
4. BORROWER'S RIGHT TO PREPAY
| have the right to make payments of Principal at any time before they are due. A payment of
Principal only is known as a “Prepayment.” When | make a Prepayment, | will tell the Note Holder in
writing that | am doing so. | may not designate a payment as a Prepayment if! have not made all
the monthly payments due under the Note
| may make a full Prepayment or partial Prepayments without paying a Prepayment charge. The
Note Holder will use all of my Prepayments to reduce the amount of Principal that | owe under this
Note, However, the Note Holder may apply my Prepayment to the accrued and unpaid interest on
the Prepayment amount, before applying my Prepayment to reduce the Principal amount of the
Note. If { make a partial Prepayment, there will be no changes in the due date or in the amount of
my monthly payment unless the Note Holder agrees in writing to those changes.
MULTISTATE FIXED NOTE - Single Family - FNMAPFHLMC UNIFORM INSTRUMENT FORM 3200 1101
tof CON REV. o4n9/025. LOAN CHA OGES . .
{fa law, whict appes to this !oan and which sets maximum loan charges, is finally interpreted so that
the interest o:. yr loan charges collected or to be collected in connection with this loan exceed the
permitted limi, hen: (a) any such loan charge shall be reduced by the amount necessary to reduce
the charge tc; ¢p¢ permitted limit; and (b) any sums already collected from me which exceeded
Permitted liryis will be refunded to me. The Note Holder may choose to make this refund by reducing
the Principa: 1 owe under this Note or by making a direct payment to me. If a refund reduces Principal,
the reduction will be treated as a partial Prepayment.
6. BORROWER'S FAILURE TO PAY AS REQUIRED
{A) Late Charge for Overdue Payments
Ifthe Note Holder has not received the full amount of any monthly payment by the end of 15
calendar days after the date it is due, | will pay a late charge to the Note Holder. The
amount of the charge will be 5.000% of my overdue payment of principal and interest. | will
pay this late charge promptly but only once on each late payment.
(B) Default
if | do not. pay the full amount of each monthly payment on the date it is due, | will be in default.
(C) Notice of Default
If am in default, the Note Holder may send me a written notice telling me that if | do not pay the
overdue amount by a certain date, the Note Holder may require me to pay immediately the full
amount of Principal which has not been paid and aif the interest that | owe on that amount. That
date must be at least 30 days after the date on which the notice is mailed to me or delivered by
other means.
(D) No Waiver By Note Holder
Even if, at a time when ! am in default, the Note Holder does not require me to pay immediately in
full as described above, the Note Holder will still have the right to do so if | am in default at a later
time.
(E) Payment of Note Holder's Costs and Expenses
If the Note Holder has required me to pay immediately in full as described above, the Note
Holder will have the right to be paid back by me for all of its costs and expenses in enforcing
this Note to the extent not prohibited by applicable law. Those expenses include, for example,
reasonable attorney's fees.
7. GIVING OF NOTICES
Unless applicable law requires a different method, any notice that must be given to me under this
Note will be given by delivering it or by mailing it by first class mail to me at the Property
Address above or at a different address if | give the Note Holder a notice of my different address.
Any notice that must be given to the Note Holder under this Note will be given by delivering it or by
mailing it by first class mail tothe Note Holder at the address stated in Section 3(A)} above or at a
different address if] am given a notice of that different address.
8. OBLIGATIONS OF PERSONS UNDER THIS NOTE
If more than one person signs this Note, each person is fully and personally obligated to keep all of
the promises made in this Note, including the promise to pay the full amount owed. Any person who is
a guarantor, surety or endorser of this Note is also obligated to do these things. Any person who
takes over these obligations, including the obligations of a guarantor, surety or endorser of this
Note, is also obligated to keep all of the promises made in this Note. The Note Holder may enforce
its rights under this Note against each person individually or against all of Us together. This
means that any one of us may be required to pay all of the amounts owed under this Note
9. WAIVERS
| and any other person who has obligations under this Note waive the rights of Presentment
and Notice of Dishonor. “Presentment” means the right to require the Note Holder to demand
payment of amounts due. "Notice of Dishonor’ means the right to require the Note Holder to
give notice to other persons that amounts due have not been paid.
MULTISTATE FIXED NOTE - Singie Family - FNMA/PELMG UNIFORM INSTRUMENT FORM 3260 1101
2of9 Econ. ABV. Oana?10. UNIFORM.SECURED NOTE ~~~ , . ree
This Note is a uniform instrument With limited variations in some jurisdictions. In addition to the
protections given to the Note Holder under this Note, a Mortgage, Deed of Trust or Security Deed (the
Security instrument”), dated the same date as this Note, protects the Note Holder from possible losses
which might result if | do not keep the promises which | make in this Note. That Security Instrument
describes how and under what conditions | may be required to make immediate payment in full of all
amounts that | owe under this Note. Some of those conditions are described as follows:
If all or any part of the Property or any Interest in the Property is sold or transferred (or
if Borrower ts not a natura! person and a beneficial interest in Borrower is sold or .
transferred) without Lender's prior written consent, Lender may require immediate payment in
full of all sums secured by this Security Instrument, However, this option shall not be
exercised by Lender if such exercise Is prohibited by Applicable Law.
Hf Lender exercises this option, Lender shall give Borrower notice of acceleration. The notice
shall provide a period of not less than 30 days from the date the notice is given in accordance
with Section 15 within which Borrower must pay all sums secured by this Security Instrument.
Hf Borrower fails to pa {hese sums pier to the expiration of, this. period, Lender may invoke
any remedies permitted by this SecUrity Instrument without further notice or demand on
jorrower.
11. DOCUMENTARY TAX
The state documentary tax due on this Note has been paid on the mortgage securing this indebtedness.
WITNESS THE HAND(S) AND SEAL{S) OF THE UNDERSIGNED.
(Sign Original Only)
WITHOUT RECOURSE
PAY TO THE ORDER OF
# BANK, N.A.
S VICE PRESIDENT
BY
SAMUEL C. SHELLEY, SENIOR
MULTISTATE FIXED MOTE- Single Family - FNRAAJEHLMC UNIFORRA INSTRUMENT FORM 9200 1/01
Bota OO sL REV, 4/24/02
j
rSERVICE LIST Lee
Case No. 2018 CA 000691
MARTIN E. MCCARRICK A/K/A MARTIN MCCARRICK
36 RIBBON FALLS DR
ORMOND BEACH, FL 32174
UNKNOWN TENANT NO, 1
7 SHINNECOCK COURT
PALM COAST, FL 32137
UNKNOWN TENANT NO. 2
7 SHINNECOCK COURT
PALM COAST, FL 32137
K, JOY MATTINGLY ESQ
Attorney for GRAND HAVEN MASTER ASSOCIATION, INC.
111 N ORANGE AVE SUITE 1400
ORLANDO, FL 32801
Email Address: cofoservicemail@beckerlawyers.com
CITIBANK (SOUTH DAKOTA), N.A.
c/o President, Vice-President, or any other officer authorized to accept service, R.A.
701 EAST 60TH STREET NORTH
SIOUX FALLS , SD 57104
QUIK CAPITAL LLC D/B/A STERLING FUNDING
clo clo PAUL L HUNTER, R.A.
1111. N. WESTSHORE BLVD. SUITE 650
TAMPA, FL 33607-4703
STATE OF FLORIDA, DEPARTMENT OF REVENUE
c/o JAMES ZINGALE, EXECUTIVE DIRECTOR, R.A.
2450 SHUMARD OAK BLVD. BUILDING 1, FLOOR 2
TALLAHASSEE, FL 32399
JOHN F RUDY IIIT ESQ
Attomey for UNITED STATES OF AMERICA
400 NORTH TAMPA STREET STE 3200
TAMPA, FL 33602
Email Address: USAFLM.State.Foreclosures@usdoj.gov
BROADCAST MUSIC, INC.
c/o CORPORATION SERVICE COMPANY, R.A.
100 Shockoe Slip, 2nd Floor
Richmond, VA 23219
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Filing # 96063287 E-Filed 09/20/2019 03:23:10 PM IN THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT IN AND FOR FLAGLER COUNTY, FLORIDA. CIVIL DIVISION CASE NO. 2018 CA 000691 U.S. BANK NATIONAL ASSOCIATION, NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS TRUSTEE FOR THE RMAC TRUST, SERIES 2016-CTT, Plaintiff, vs. MARTIN E, MCCARRICK A/K/A MARTIN MCCARRICK; GRAND HAVEN MASTER ASSOCIATION, INC.; CITIBANK (SOUTH DAKOTA), N.Aj MELISSA CAPUTI, QUIK CAPITAL LLC D/B/A STERLING FUNDING; STATE OF FLORIDA, DEPARTMENT OF REVENUE; UNITED STATES OF AMERICA; BROADCAST MUSIC, INC.; UNKNOWN TENANT NO. 1; UNKNOWN TENANT NO. 2; and 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, Defendant(s). / MOTION FOR SUMMARY FINAL JUDGMENT AND ATTORNEYS' FEES AND COSTS Plaintiff, U.S. BANK NATIONAL ASSOCIATION, NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS TRUSTEE FOR THE RMAC TRUST, SERIES 2016-CTT (hereinafter referred to as “Plaintiff") by and through its undersigned counsel, moves this Court, pursuant to Florida Rule of Civil Procedure 1.510, to enter a Summary Final Judgment against each of the Defendants in the above-styled action. There exists no genuine issues as to any material fact and Plaintiff is entitled to judgment as a matter of law based on the pleadings and affidavits filed in this action. 1. FORECLOSURE: This is an action by the holder of a mortgage, U.S. BANK NATIONAL ASSOCIATION, NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS TRUSTEE FOR THE RMAC TRUST, SERIES 2016-CTT, to foreclose the mortgage on real property situated in Flagler County, Florida. Electronically Received in the Office of the Clerk of the Circuit Court - Flagler County, Florida - 09/23/2019 10:14 AM2. HOLDER OF NOTE: The Plaintiff holds the promissory note and mortgage. 3. DEFAULT: The Note is due for November 1, 20 v7, and all subsequent payments. This has resulted in a default of the note and mortgage. 4, PROPERTY: The legal description of the subject property is set forth in the Lis Pendens. 5. SERVICE: All Defendants have been served with notice of this action. 6. LIEN: Plaintiff's mortgage constitutes a valid lien on the subject property and is superior to any right, title, interest or claim of all Defendants and all persons or-entities claiming by, through or under them. 7. EVIDENCE: Plaintiff adopts and incorporates into this motion the affidavit of indebtedness, Plaintiff's affidavit of attorneys' fees and costs, affidavit of reasonableness of fees, the mortgage, the promissory note. Plaintiff has attached a copy of the original note as Exhibit “A”. 8. MEMORANDUM OF LAW: The substantial matters of law upon which this motion is based are as follows: a. A mortgage is presumed to have been validly executed and delivered on the date recited in the mortgage if the mortgage is’proven of record and recorded according to the law. Atlantic Land and Improvement Company v. Lee, 112 So. 549, 550 (Fla- 1927). b. Where. a note secured by a mortgage is transferred without any formal assignment of the mortgage, the mortgage in equity passes as an incident to the debt, unless there is some plain and clear agreement to the contrary. Johns v. Gillian, 184 So. 140 (Fla. 1938). "A mere delivery of a note and mortgage, with intention to pass the title, upon a proper consideration, will vest the equitable interest in the person to whom it is so delivered." Zd., at 143. "Because the lien follows the debt, there was no requirement of attachment of a written and recorded assignment of the mortgage in order for the appellant to maintain the foreclosure action." Chemical Residential Mortgage v. Rector, 742 So.2d. 300 @la. 1* DCA, 1998), rev. denied 727 So.2d 910 (1999). To foreclose upon a promissory note, the plaintiff must be the "holder" in order to be the real party in interest.. Troupe v. Redner, 652 So2d 394 (Fla 2d DCA1995), citing Withers v. Sandlin, 36 Fla. 619-18 So;-856 (1896);-Laing-v- Gainey Builders, Inc., 184 So, 2d 897 (Fla Ist DCA 1966). The "holder", with respect to a negotiable instrument, means the person in possession if the instrument is payable to bearer or, in the case of an instrument payable to an identified person, if the identified person is in possession. § 671.201(20), Fla. Stat. (2002). "Bearer" means the person in possession of an instrument, document of title, or certificated security payable to bearer or indorsed in blank. § 671.201(5), Fla. Stat. (2002). c. In the event a formal assignment is delivered to the Plaintiff, Florida Law has established that the “effective date” is the date of transfer of interest in the mortgage as opposed to the date the assignment document was executed. WA Specialty Mortgage. LLC v. Salomon, 874 So2d. 680 (Fla 4" DCA 2004); Citing: Johns v Gillian, 184 So. 140, 143 (Fla 1938). d. The interest of the owner of record in the property described herein is inferior. and subordinate to the interest of the Plaintiff, the mortgagee. Jordan v. Sayre, 3 So. 329 (Fla. 1888). e. The owner and holder of a valid recorded mortgage encuinbering real property has a lien superior in dignity and right to any subsequently recorded mortgage, claim or lien attaching to the property through the mortgagors, their successors, assigns and tenants. Lee v. Slemons, 150 So. 792, 794 (Fla. 1933); Bullard v. Fender, 192 So. 167, 171 (Fla. 1939); County of Pinellas v. Clearwater Federal Savings and Loan Association, 214 So.2d 525, $26 (Fla. 2d DCA 1968). Therefore, the lien of Plaintiff's mortgage takes priority over the subsequently recorded claims or liens of the Defendants in this action. United States v. First Federal Savings and Loan Association of St. Petersburg, 155 So.2d 192, 193 (Fla. 2d DCA 1963). f As a inatter of Jaw the entire indebtedness secured by the mortgage held by Plaintiff is due and collectible. Van Huss v. Prudential Insurance Company of America, 165 So. 896 (Fla. 1936); Baader v. Walker, 153 So.2d 51, 54 (Fla. 2d DCA 1963). g As to any Defendant that is a Homeowners Association as definedunder Florida Statute §720.301; said Defendant’s interest is'fully foreclosable as a matter of law. Florida: Statute §720.3085 does not prevent foreclosure of any past due assessment claims of a Defendant Home Owners Association, as Plaintiff's rights are determined by the Homeowner’s Association’s Declaration of Covenants. Florida Statute §720.3085, does not retroactively apply to mortgages or assessments recorded prior to its enactment. To the contrary the §720.3085(1) specifically states.that the Association's assessments are inferior to the Plaintiff. Any application of the statute to the contrary is unconstitutional. Sarasota County v, Andrews, et al. 573 $o.2d 113 (2™ DCA, 1991);Silver Blue Lake Apartments, Inc. v. Silver Blue Lake Home Owners Association, Inc., 245 So. 2d 609, 611 (Fla 1971); Palm Point Property Owners’ Association of Charlotte County, Inc. v. Pisarski (626 So. 2d 195 (Fla 1993); Holly Lake Association v. Federal National Mortgage Association, 660 So. 2d 266, 269 (Fla. 1995); Park Benziger & Co., Inc. v. Southern Wine & Spirits, Inc. 391 So. 2d 681, 683 (Fla. 1980); David v. Sun Federal Savings & Loan Ass'n, 463 So,.2d 93 (Fla 1984); Metropolitan Dade County v. Chase Federal Housing Corp., et al. 737 So, 2d 494, 500 (Fla 1999); h. As to Defendants against whom a default has been entered, final judgment may be entered by the Court at any time. Rule 1.500(e) Florida Rule of Civil Procedure. i, This court must enter a summary final judgment.of foreclosure where there exists no genuine issue as to any inaterial fact; this Court may, however, reserve jurisdiction to determine the amount and priority of the claims. Mack Industries, Inc. v. Donald W. Nelson, Inc., 134 So.2d 821 (Fla. 2d DCA 1961). je Where the note and mortgage so provide, a mortgagee is entitled to recover costs, a reasonable fee for its attorneys in the prosecution of a foreclosure action, and any sums advanced to prevent the impairment of its security. American Securities Co. v. Goldsberry, 67 So. 862, 866 (Fla. 1915). 9. ENTITLEMENT TO JUDGMENT: Plaintiff is entitled to recover its principal, interest, late charges, costs, attorneys’ fees, and other expenses, all of which are more fully set forth in the affidavits attached hereto.10. NO ISSUE OF LAW OR FACTS; -The: pleadings of file, together with-the affidavits—- attached hereto, demonstrate that there is no dispute as to any material fact. Accordingly, Plaintiff is entitled to Summary Final Judgment as a matter of law. WHEREFORE, the Plaintiff respectfully requests that this Court enter Summary Final Judgment in its favor as to the total amount sought in its Complaint, and grant Plaintiff's motion for attormeys' fees and costs and such other and further relief as this Court deems just, including the issuance of writs of possession against any parties that may be in possession of the property. CERTIFICATE OF SERVICE THEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by regular yeh c U.S. Mail, Facsimile, or electronic mail this OP =e ( k 2019 to all parties on the attached service list. All parties for whom an e-mail address has not been designated or a mailing address is not available are hereby notified that a copy of the served document may be obtained, on request, from the clerk of the court or from the party serving the document. SHD Legal Group P.A. Attorneys for Plaintiff 499 NW 70th Ave., Suite 309 Fort Lauderdale, FL 33317 Telephone: (954) 564-0071 Facsimile: (954) 564-9252 Service E-mail: answers@shdlegalgroup.com By: ( Mah, A Mehwish A Yeusuf, Florida Bar No. 171 Roy Diaz, Attorney of Record Florida Bar No. 767700 1460-171066 / JB1EXHIBIT “A”FIXED RATE NOTE FEBRUARY 25, 2908 DAYTONA BEACH FLORIDA Date City Biate 7 SHINNECOCK COURT, PALM COAST, FL_32137 (Property Address) 1. BORROWER'S PROMISE TO PAY In return for a loan that | have received, | promise to pay U.S.$ — 405,500.00 (this amount is called "Principal"), plus interest, to the order of the Lender. The Lender is FARGO BANK, NLA i will make all payments under this Note In the form of cash, check or money order. { understand that the Lender may transfer this Note. The-Lender or anyone who takes this Note by transfer and who is entitled to receive payments under this Nole is called the "Note Holder." 2. INTEREST Interest will be charged on unpaid principal until the full amount of Principal has been paid. | will pay interest at a yearly rate of 6.000 %. The interest rate required by this Section 2 is the rate | will pay both before and after any default described in Section 6(B) of this Note. 3. PAYMENTS (A) Time and Place of Payments {will pay principal and interest by making a payment every month. | will make my monthly payment on the first day of each month beginning on APRIL 1, 2008 | will make these payments every month until | have paid all of the principal and interest and any other charges described below that | may owe under this Note. Each monthly payment will be applied as-of its scheduled due date and will be applied to interest before Principal. I, on MARCH 1, 2038 ; Pstil owe amounts under this Note, | will pay those amounts in full on that date, which is called the "Maturity Date." t will make my monthly payments at WELLS FARGO BANK, N.A. P.O, BOX 11701, NEWARK, NJ_07101-4701 or al a different place if required by the Note Holder. ({B) Amount of Monthly Payments My monthly payment will be in the amount of U.S. $ 2,431.18 4. BORROWER'S RIGHT TO PREPAY | have the right to make payments of Principal at any time before they are due. A payment of Principal only is known as a “Prepayment.” When | make a Prepayment, | will tell the Note Holder in writing that | am doing so. | may not designate a payment as a Prepayment if! have not made all the monthly payments due under the Note | may make a full Prepayment or partial Prepayments without paying a Prepayment charge. The Note Holder will use all of my Prepayments to reduce the amount of Principal that | owe under this Note, However, the Note Holder may apply my Prepayment to the accrued and unpaid interest on the Prepayment amount, before applying my Prepayment to reduce the Principal amount of the Note. If { make a partial Prepayment, there will be no changes in the due date or in the amount of my monthly payment unless the Note Holder agrees in writing to those changes. MULTISTATE FIXED NOTE - Single Family - FNMAPFHLMC UNIFORM INSTRUMENT FORM 3200 1101 tof CON REV. o4n9/025. LOAN CHA OGES . . {fa law, whict appes to this !oan and which sets maximum loan charges, is finally interpreted so that the interest o:. yr loan charges collected or to be collected in connection with this loan exceed the permitted limi, hen: (a) any such loan charge shall be reduced by the amount necessary to reduce the charge tc; ¢p¢ permitted limit; and (b) any sums already collected from me which exceeded Permitted liryis will be refunded to me. The Note Holder may choose to make this refund by reducing the Principa: 1 owe under this Note or by making a direct payment to me. If a refund reduces Principal, the reduction will be treated as a partial Prepayment. 6. BORROWER'S FAILURE TO PAY AS REQUIRED {A) Late Charge for Overdue Payments Ifthe Note Holder has not received the full amount of any monthly payment by the end of 15 calendar days after the date it is due, | will pay a late charge to the Note Holder. The amount of the charge will be 5.000% of my overdue payment of principal and interest. | will pay this late charge promptly but only once on each late payment. (B) Default if | do not. pay the full amount of each monthly payment on the date it is due, | will be in default. (C) Notice of Default If am in default, the Note Holder may send me a written notice telling me that if | do not pay the overdue amount by a certain date, the Note Holder may require me to pay immediately the full amount of Principal which has not been paid and aif the interest that | owe on that amount. That date must be at least 30 days after the date on which the notice is mailed to me or delivered by other means. (D) No Waiver By Note Holder Even if, at a time when ! am in default, the Note Holder does not require me to pay immediately in full as described above, the Note Holder will still have the right to do so if | am in default at a later time. (E) Payment of Note Holder's Costs and Expenses If the Note Holder has required me to pay immediately in full as described above, the Note Holder will have the right to be paid back by me for all of its costs and expenses in enforcing this Note to the extent not prohibited by applicable law. Those expenses include, for example, reasonable attorney's fees. 7. GIVING OF NOTICES Unless applicable law requires a different method, any notice that must be given to me under this Note will be given by delivering it or by mailing it by first class mail to me at the Property Address above or at a different address if | give the Note Holder a notice of my different address. Any notice that must be given to the Note Holder under this Note will be given by delivering it or by mailing it by first class mail tothe Note Holder at the address stated in Section 3(A)} above or at a different address if] am given a notice of that different address. 8. OBLIGATIONS OF PERSONS UNDER THIS NOTE If more than one person signs this Note, each person is fully and personally obligated to keep all of the promises made in this Note, including the promise to pay the full amount owed. Any person who is a guarantor, surety or endorser of this Note is also obligated to do these things. Any person who takes over these obligations, including the obligations of a guarantor, surety or endorser of this Note, is also obligated to keep all of the promises made in this Note. The Note Holder may enforce its rights under this Note against each person individually or against all of Us together. This means that any one of us may be required to pay all of the amounts owed under this Note 9. WAIVERS | and any other person who has obligations under this Note waive the rights of Presentment and Notice of Dishonor. “Presentment” means the right to require the Note Holder to demand payment of amounts due. "Notice of Dishonor’ means the right to require the Note Holder to give notice to other persons that amounts due have not been paid. MULTISTATE FIXED NOTE - Singie Family - FNMA/PELMG UNIFORM INSTRUMENT FORM 3260 1101 2of9 Econ. ABV. Oana?10. UNIFORM.SECURED NOTE ~~~ , . ree This Note is a uniform instrument With limited variations in some jurisdictions. In addition to the protections given to the Note Holder under this Note, a Mortgage, Deed of Trust or Security Deed (the Security instrument”), dated the same date as this Note, protects the Note Holder from possible losses which might result if | do not keep the promises which | make in this Note. That Security Instrument describes how and under what conditions | may be required to make immediate payment in full of all amounts that | owe under this Note. Some of those conditions are described as follows: If all or any part of the Property or any Interest in the Property is sold or transferred (or if Borrower ts not a natura! person and a beneficial interest in Borrower is sold or . transferred) without Lender's prior written consent, Lender may require immediate payment in full of all sums secured by this Security Instrument, However, this option shall not be exercised by Lender if such exercise Is prohibited by Applicable Law. Hf Lender exercises this option, Lender shall give Borrower notice of acceleration. The notice shall provide a period of not less than 30 days from the date the notice is given in accordance with Section 15 within which Borrower must pay all sums secured by this Security Instrument. Hf Borrower fails to pa {hese sums pier to the expiration of, this. period, Lender may invoke any remedies permitted by this SecUrity Instrument without further notice or demand on jorrower. 11. DOCUMENTARY TAX The state documentary tax due on this Note has been paid on the mortgage securing this indebtedness. WITNESS THE HAND(S) AND SEAL{S) OF THE UNDERSIGNED. (Sign Original Only) WITHOUT RECOURSE PAY TO THE ORDER OF # BANK, N.A. S VICE PRESIDENT BY SAMUEL C. SHELLEY, SENIOR MULTISTATE FIXED MOTE- Single Family - FNRAAJEHLMC UNIFORRA INSTRUMENT FORM 9200 1/01 Bota OO sL REV, 4/24/02 j rSERVICE LIST Lee Case No. 2018 CA 000691 MARTIN E. MCCARRICK A/K/A MARTIN MCCARRICK 36 RIBBON FALLS DR ORMOND BEACH, FL 32174 UNKNOWN TENANT NO, 1 7 SHINNECOCK COURT PALM COAST, FL 32137 UNKNOWN TENANT NO. 2 7 SHINNECOCK COURT PALM COAST, FL 32137 K, JOY MATTINGLY ESQ Attorney for GRAND HAVEN MASTER ASSOCIATION, INC. 111 N ORANGE AVE SUITE 1400 ORLANDO, FL 32801 Email Address: cofoservicemail@beckerlawyers.com CITIBANK (SOUTH DAKOTA), N.A. c/o President, Vice-President, or any other officer authorized to accept service, R.A. 701 EAST 60TH STREET NORTH SIOUX FALLS , SD 57104 QUIK CAPITAL LLC D/B/A STERLING FUNDING clo clo PAUL L HUNTER, R.A. 1111. N. WESTSHORE BLVD. SUITE 650 TAMPA, FL 33607-4703 STATE OF FLORIDA, DEPARTMENT OF REVENUE c/o JAMES ZINGALE, EXECUTIVE DIRECTOR, R.A. 2450 SHUMARD OAK BLVD. BUILDING 1, FLOOR 2 TALLAHASSEE, FL 32399 JOHN F RUDY IIIT ESQ Attomey for UNITED STATES OF AMERICA 400 NORTH TAMPA STREET STE 3200 TAMPA, FL 33602 Email Address: USAFLM.State.Foreclosures@usdoj.gov BROADCAST MUSIC, INC. c/o CORPORATION SERVICE COMPANY, R.A. 100 Shockoe Slip, 2nd Floor Richmond, VA 23219