Party Notice: DECELLE, CAROLE vs MILLER, MICHAEL L II

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                                Filing # ME E -Filed 08/04/2021 01:44:46 PM

IN THE CIRCUIT COURT OF THE EIGHTH JUDICIAL CIRCUIT
IN AND FOR BRADFORD COUNTY, FLORIDA

CAROLE DECELLE, as Personal CASE NUMBER: 04-2019-CA-000649-CAAM
Representative of the Estate of
BENJAMIN F. DICKERSON, deceased
Plaintiff,
Vv.

MICHAEL L. MILLER, II,

Defendant.

PLAINTIFE’S MEMORANDUM IN SUPPORT OF HER OBJECTIONS TO
DEFENDANT’S EXCEPTIONS

COMES NOW, Plaintiff, and pursuant to this Court’s Report of Findings and
Recommendations of General Magistrate, files this Memorandum in opposition to the Defendant’s
exceptions, as follows.

Defendant’s Exceptions Should be Overruled as They do not Comply with Florida Law

This simple foreclosure action was filed in December 2019. The evidence before the
Magistrate demonstrated that the Defendant and the Plaintiff's decedent (“Mr. Dickerson”) had a
prior business relationship that began when Defendant purchased a piece of real property from Mr.
Dickerson. Transcript, testimony of Jessica Genhold, page 106, lines 12-24. At some point, the
Defendant decided that he wanted to buy the neighboring property from Mr. Dickerson. /d., page
108, lines 2-11. Defendant signed a contract to purchase that property in March 2019. Id., page
110, lines 15-23; Exhibit 11, attached as Exhibit C.

On the day of the closing, Defendant ran late and did not make it to Mr. Dickerson’s attorney’s
office on time. Mr. Dickerson executed the closing documents, which were then taken to CB

Isaac’s office for Defendant’s convenience. J/d., page 115, lines 4-23; Exhibit 12, attached as

1
Electronically Filed Bradford Case # 19000649CAAXMX 08/04/2021 01:44:46 PMExhibit D. Defendant then deposited the funds required to close to Mr. Dickerson’s attorney’s
trust account and went to CB Isaac’s office, where he executed the closing documents, including
the note and mortgage at issue. /d.

After the closing, the Defendant failed to make any further payments. Transcript, Defendant’s
testimony, page 201, line 20 - page 207, line 4. However, he indicated that he would do so.
Transcript, testimony of Jessica Genhold, page 117, lines 7-11, page 118, lines 20-23. He did not
deny his intent to purchase the property, or question whether he validly signed the mortgage to
anyone until this litigation commenced.

However, throughout the course of the litigation, Defendant has attempted to delay it, first by
evading service, by failing to timely answer the complaint, by failing to timely answer discovery,
by failing to timely obtain discovery, by alleging a motor vehicle accident and hospital admission
on the date the trial was first set and now by failing to properly file exceptions.

This case was tried on March 26, 2021. The Report of the Magistrate was filed on May 7,
2021. Literally, at the eleventh hour (11:40 pm), Defendant filed incomplete Exceptions which
fail to meet the law’s requirements for them. An Amended Report (to correct a scrivener’s error)
was filed on May 20, 2021. See attached as Exhibit A. Similarly vague exceptions to that Report
were filed on June 1, 2021. See attached as Exhibit B. As the Exceptions fail to comply with the
Report, with Rule 1.490, Fla. R. Civ. Pro., and Florida law, they should be denied.

The Record Supports the Magistrate’s Findings

While it is difficult to determine on what grounds Defendant’s Exceptions are based, it is clear
that the evidence fully supports each of the Magistrate’s findings. With respect to each Paragraph

referenced in Defendant’s Exceptions, Plaintiff states as follows:

vuParagraph 7: This Paragraph contains an irrelevant typographical error. It states that “Mr.
Miller wired the closing funds to Mr. Newell’s trust account...” Actually, Mr. Miller deposited a
check to Mr. Newell’s trust account; he didn’t wire the closing funds.' See Plaintiff's Exhibit 13,
attached as Exhibit E. The remaining statements in Paragraph 7 were supported by the testimony
of Mr. Newell, on page 80 of the transcript, who testified that he knew that check was deposited.
Testimony of Newell, page 80, lines 13-24. Additionally, the Defendant admitted depositing the
check into Mr. Newell’s trust account for “the deposit towards the — that was the first payment and
deposit towards purchasing the building.” Transcript, Defendant’s testimony, page 184, lines 7-
12.

Paragraphs 26 through 29: These exceptions take exception to the Magistrates denial of the
Defendant’s defense that the mortgage was invalid because it was notarized by the real estate
broker. Mr. Blake did not have any interest in the mortgage under any circumstances, and is not
entitled to any funds from the note or the mortgage. Transcript, testimony of Mr. Blake, page 161,
lines 3-15. The mortgage is not invalid simply because it was notarized by the broker, since he
has no interest in how the purchaser pays for the property. As the law cited by the Magistrate is
correct, this exception should be overruled.

Paragraphs 30 through 34: These exceptions find fault with the Magistrate’s finding that the
Defendant’s allegations of blindness do not absolve him of responsibility for the mortgage he
signed. Paragraph 30 is a correct statement of the testimony Mr. Miller gave and the arguments

of his counsel. Transcript, Defendant's testimony, page 172, line 22-24. However, as is noted in

Ron Blake testified, on page 139, lines 15-18, of the transcript that he assumed Mr. Miller
wired the down payment, which is likely where the error arose. Nevertheless, since the
Defendant’s testimony supports the finding that he paid a deposit for the property, the import of
Paragraph 7 is a correct reflection of the testimony.

3Paragraph 31, the record is devoid of any other evidence that Mr. Miller is actually blind, and it is
clear from his own testimony that he was able to drive to the closing. /d., page 173, lines 7-8. In
fact, it was clear from his testimony that he was driving when he was supposed to be attending the
zoom trial. Transcript, page 173, line 14 through page 175, line 1.

It is also clear that the Defendant did not inform Mr. Dickerson, Mr. Newell or anyone at CB
Isaac of his alleged blindness. Transcript, testimony of Mr. Newell, page 73, lines 14-25;
testimony of Mr. Blake, page 136, line 16 ~ page 137, line 7; testimony of Ms. Raymond, page
164, lines 13-21: testimony of Ms. Genhold, page 107, lines 8-19. The statement that it is not
logical to require a notary to make inquiry into every signor’s reading capacity is supported by
Florida law. See Etting v. Regents Park at Aventura, Inc., 891 So. 24.558 (Fla. 3d DCA 2005).
Furthermore, the Defendant's alleged blindness does not exonerate him from contracts he willingly
enters. Jd.

Paragraph 37: This is a correct statement of Florida law. Furthermore, Mr. Miller never
testified that he did nor intend to deliver the note, and he did testify that he intended to purchase
the property at issue on the very terms reflected in the note. Transcript, Defendant’s testimony,
page 200, lines 1-17. In fact, the note was delivered to Mr. Newell, Mr. Dickerson’s agent.
Transcript, Mr. Newell’s testimony, page 82, lines 7-10. Furthermore, the plain language of the
Mortgage supports this Paragraph. The Mortgage clearly states that it is a “Purchase Money First
Mortgage” on the same property deeded to Defendant in June 2019 and_ recorded
contemporaneously with that Deed. Transcript, Mr. Newell’s testimony, page 76, lines 1-12;

Exhibit 12.As the Magistrate’s complete and well-reasoned Report is supported by the evidence and
testimony at trial, Defendant’s Exceptions should be overruled and the Report adopted in its
entirety.

CERTIFICATE OF SERVICE

I hereby certify on August 4. 2021, I filed the foregoing with the Clerk of the Court using
Florida’s E-Portal System, which will provide electronic notice to the following:
Felecia L. Walker, Esquire, 6620 Southpoint Drive S, Suite 200, Jacksonville, FL 32216-0961,
fwalker@edwardsedwardslaw.com, mfisher@edwardsedwardslaw.com, and co-counsel for
Plaintiff, Larry E. Ciesla, Iciesla@larryciesla-law.com, jhall@larryciesla-law.com, 4400 N.W.
23" Avenue, Suite A, Gainesville, FL 32606.

AVERA & SMITH, L

pores

Floritla Bar Number: 0945810
Avera & Smith, LLP
2814.S.W. 13" Street
Gainesville, FL 32608
Telephone: (352) 372-9999
Facsimile: (352) 375-2526
jlester@avera.com
sdewey@avera.com

Co-Counsel for PlaintiffFiling # MRS «E-Filed 05/20/2021 11:59:28 AM

IN THE CIRCUIT COURT
OF THE EIGHTH JUDICIAL CIRCUIT
IN AND FOR BRADFORD COUNTY, FLORIDA
CASE NUMBER: 04-2019-CA-000649
Circuit Civil Division MG (Foreclosures)

CAROLE DECELLE, as Personal Representative of
the Estate of Benjamin F. Dickerson, deceased,
Plaintiff,

-VS-

MICHAEL L. MILLER I,
Defendant.

(AMENDED TO CORRECT SCRIVENER’S ERROR) REPORT AND
RECOMMENDATION OF THE GENERAL MAGISTRATE RECOMMENDING ENTRY
OF FINAL JUDGMENT OF FORECLOSURE AND FINDING ENTITLEMENT TO

ATTORNEY FEE:

THIS CAUSE came before the undersigned General Magistrate on March 26, 2021 for a Non-
Jury Trial. Plaintiff and Defendant were present with counsel via video teleconferencing. The
Magistrate having taken testimony, reviewed the record and being otherwise fully advised in the
premises, makes the following findings of fact:

PROCEDURAL HISTORY:

A. The General Magistrate and the Court have jurisdiction over the subject matter and the
parties have consented to the Magistrate hearing this case.

B. This action was initiated on December 5, 2019 by Plaintiff, Carole Decelle, as personal
representative of the Estate of Benjamin Dickerson, filing a Verified Complaint to
foreclose a mortgage and to reestablish a lost note (“Original Complaint”).

C. A mortgage from Michael L. Miller, II to Benjamin F. Dickerson, along with a
conformed copy of a promissory note, from Michael L. Miller, II made payable to
Benjamin F. Dickerson, was attached to the complaint.

D. An affidavit of compliance was also attached to the complaint stating that the subject note
was lost and could not be located after diligent search. The affidavit also included the
conformed copy of the note but not a copy of the original executed note.

E. On July 20, 2020 Plaintiff filed a notice of voluntary dismissal of the count to reestablish
a lost note.

F. On July 21, 2020 Plaintiff filed an original promissory note.

G. On August 27, 2020 Plaintiff filed an Amended Complaint for mortgage foreclosure,
along with a certificate of possession of original note.

EXHIBIT _)_H. On October 26, 2020 Defendant filed an Answer and Affirmative Defenses to the
Amended Complaint raising the affirmative defenses of standing, estoppel and failure to
properly apply payments.

I. On February 18, 2021 an order was entered scheduling this Non-Jury Trial.

J. The following witnesses testified at this trial: Carol Decelle, Paul Newell, Jessica
Genhold, Ashley Raymond, Ronald Blake and Michael Miller.

K. The following documents were accepted into evidence, without objection:

¢ Plaintiff's Exhibit 1-death certificate for Benjamin Dickerson

e Plaintiff's Exhibit 2-letter of administration appointing Carole Decelle a personal
representative of the estate of Benjamin Dickerson

° Plaintiff's Composite Exhibit 3-bank statements for Dickerson Broadcasting, Inc.
d/b/a WEAG FM/AM from 11/20/2018-5/31/2019

¢ Plaintiff's Composite Exhibit 4-personal bank statements for Benjamin Dickerson
from 6/2019-5/2020

* Plaintiff's Composite Exhibit 5-bank statements for the estate of Benjamin

Dickerson (Mary Margaret Kramer) from 12/3/2019-8/2020

Plaintiff's Exhibit 6-title search report

Plaintiff's Exhibit 7-charge for title search

Plaintiff's Exhibit 8-invoice from American Locksmith

Plaintiff's Composite Exhibit 9-invoices from Law Office of Larry Ceisla and

Salter-Feiber Attorneys at Law from 1/21/2020-12/28/2020

¢ Plaintiff's Composite Exhibit 10-Hud-1 settlement statement, proceeds check to
seller, note and contract for property located at 1601 N. Temple Avenue, Starke,
FL

¢ Plaintiff's Exhibit 11-commercial contract for sale of property located at 1605 N.
Temple Avenue, Starke, FL

* Plaintiff's Composite Exhibit 12-warranty deed, mortgage and note for property
located at 1605 N. Temple Avenue, Starke, FL

¢ Plaintiff's Exhibit 13-copy of check in the amount of $15,450.67 from Big House
of Vapors, Inc. to Paul Newell, P.A. for purchase of 1605 N. Temple Avenue,
Starke, FL.

¢ Plaintiff's Composite Exhibit 14-text messages between Defendant and Jessica
Genhold

e Plaintiff's Exhibit 15-Hud-1 settlement statement for property located at 1605 N.
Temple Avenue, Starke, FL

¢ Defendant's Composite Exhibit 1-emails between Defendant and Jessica Genhold

¢ Defendant's Exhibit 2-copy of sale proceeds check from Paul D, Newell, P.A.
Trust Account to Benjamin F. Dickerson in the amount of $4,591.92

¢ Defendant's Composite Exhibit 3-duplicate of Defendant’s Exhibit 1

e¢ ~Defendant’s Exhibit 4-duplicate of Plaintiff’s Exhibit 15

GENERAL FINDINGS OF FACT:

1. This foreclosure action involves real property located at 1605 N. Temple Avenue, Starke,
FL (“1605”).11.

12.

13.
14,

15.

Defendant, Michael Miller previously leased real property located at 1601 N. Temple
Avenue, Starke, Florida (“1601”) from Benjamin Dickerson. During the lease Mr. Miller
agreed to purchase, and Mr. Dickerson agreed to sell, 1601. Mr. Dickerson took back a
purchase money mortgage on the property, which secured a promissory note executed by
Mr. Miller.

At some point, Mr. Miller expressed an interest in purchasing 1605 from Mr. Dickerson.
A contract was executed by Mr. Miller and Mr. Dickerson, which included an agreement
for Mr. Dickerson to take back a purchase money mortgage to secure a promissory note.
The terms of repayment of the note were included in the contract. (See Plaintiff’s Exhibit
iL)

CB Isaac Realty was the real estate broker and Paul Newell was the closing agent for
both transactions. During the relevant time period Ronald Blake was the real estate
broker and Jessica Genhold was a real estate agent for CB Isaac Realty.

The closing for 1605 was scheduled on June 28, 2019.

Mr. Miller was unable to attend the closing as planned. As a result, Mr. Dickerson signed
his closing documents on June 28, 2019 at Mr. Newell’s office. Mr. Miller wired the
closing funds to Mr. Newell’s trust account and arrangements were made for Mr. Miller
to sign his closing documents the next day at CB Isaac Realty, with Mr. Blake.

Closing documents were executed by Mr. Miller and Mr. Dickerson, including a hud-1
settlement statement, (See Plaintiff’s Exhibit 15), a deed from Mr. Dickerson to Mr.
Miller and a mortgage and note from Mr. Miller to Mr. Dickerson. The deed and the
mortgage, along with a conformed copy of the note, were recorded in the Public Records
of Bradford County, Florida on July 3, 2019. (See Plaintiff's Composite Exhibit 12.)

On October 21, 2019 Mr. Dickerson passed away. (See Plaintiff's Exhibit 1.)

. On November 6, 2019 Carole Decelle was appointed as the personal representative of

Mr. Dickerson’s estate. (See Plaintiff’s Exhibit 2.)

Ms. Decelle took an inventory of Mr. Dickerson’s estate assets and determined that the
Mortgage on 1601 had been paid in full. Ms. Decelle therefore recorded a satisfaction of
the mortgage on 1601 in the public records of Bradford County, Florida.

Ms. Decelle determined that the mortgage on 1605 was in default and retained counsel
and this suit was initiated.

FINDINGS SPECIFIC TO THE NOTE AND MORTGAGE:

Mr. Miller denies having signed the subject contract, note or mortgage on 1605.

In support thereof, Mr. Miller testified that he and Mr. Dickerson were still working out
the details of the repayment terms and that he only signed the hud-1 settlement statement
and wired closing proceeds because he was being “aggressively” pressured to do so. Mr.
Miller asserts that as far as he was concerned, the actual closing never happened because
they were continuing to work out the repayment terms. Mr. Miller does not however
dispute the validity of the deed giving him ownership of the subject property.

The undersigned finds Mr. Miller’s testimony to be lacking in credibility. Mr. Miller’s
assertion that a closing never took place and that he was being “aggressively” pressured
to close is contradicted by his text messages with Ms. Genhold regarding the coordination
of the closing. It is clear from the text messages that a closing date was scheduled for16.

17.

18.

19.
20.
21.

22.

23.

June 28" and that the date was chosen by Mr. Miller to accommodate when he wanted the
payments to begin. (See Plaintiff's Composite Exhibit 14.)

Mr. Miller’s assertion that a closing never happened is further belied by his testimony
that he is an experienced businessman who conducts millions of dollars in real estate
transactions, yet he purports to have executed a settlement statement, which notably
reflects a mortgage, and taxes and recording fees thereto, for a mortgage that he claims
did not exist, and paid over fifteen thousand dollars in closing proceeds to Mr. Dickerson,
for a transaction for which the terms had not yet been determined. Additionally, Mr.
Miller never made any attempts to coordinate a closing after June 28" despite having paid
the closing proceeds to Mr. Dickerson and recording fees and taxes on the mortgage.

Mr. Miller’s assertion that he never signed a note or mortgage is also contradicted by his
admissions to Ms. Genhold that he owed the debt via text messages as follows:

a. On July 29, 2019: “I was hoping the seller would take $10,000.00 this month and
the next two months. I will make up the balance by the end of the agreed
payments”.

b. On September 20, 2019: “....we are really behind and trying not to lose our feet.

I know regardless Ben has to get paid and he will. We are late. But we are
recovering. I will be on track this month. Please send me his number. This was
not our goal. We could not control the outcome. But, will make it right”.

c. On December 4, 2019: “......... As you know my industry to (sic) a hard hit and
so did my income. I have only dropped off a $5,000.00 check to the radio station
in October, Till (sic) date it has not been cashed... If it is possible I would like to
adjust the payment options and pay for the building. If not I will self surrender
the building for the debt cleared”. (See Plaintiff’s Composite Exhibit 14.)

On the other hand, Plaintiff presented two credible witnesses, Ronald Blake and Ashley
Raymond, who each testified that they personally witnessed Mr. Miller execute the
subject mortgage. Mr. Blake also testified that he witnessed Mr. Miller sign the note.

As a result, the undersigned finds that Mr. Miller executed the subject note and mortgage.
Mr. Miller argues that the note filed on July 21, 2020 is not an original.

In support thereto, Mr. Miller denies signing a note and argues that the facts surrounding
the production of the note support this assertion. Mr. Miller also argues that the fact that
the note that was recorded with the original mortgage and filed with the Original
Complaint did not have his signature bolsters his argument that he never signed a note.
Plaintiff presented the testimony of two witnesses regarding the lost note. Ms. Decelle
testified that upon taking inventory of the estate assets she located the mortgage on 1605
but could not locate the original note after conducting a diligent search. As a result, the
Original Complaint was filed with a count to reestablish a lost note.

Paul Newell, the closing agent, testified that about a year after closing, counsel for
Plaintiff requested that he look in his file for the original note. Mr. Newell testified that
although it is not his regular practice to retain any original documents, he must have
inadvertently done so in the instant case, because the original note was in his file. Mr.
Newell additionally testified that it is his practice to record a conformed copy, and not the
executed copy of a note, with a mortgage.24,

25.

26.

27.

28.

29.

30.

31.

32.

33.

The undersigned finds that Plaintiff has provided credible, competent, substantial
evidence regarding the production of the original note.

For the foregoing reasons, the undersigned finds that Plaintiff has presented the court
with the original note.

FINDINGS AS TO THE VALIDITY OF THE NOTARIZATION OF THE
MORTGAGE

Mr. Miller argues that the mortgage is void Pursuant to Florida Statute Section
117.107(12) because the statute prohibits a notary from notarizing a signature when they
have a “financial interest in the underlying transaction”. Defendant argues that Mr. Blake
had a “financial interest in the underlying transaction” because he was the real estate
broker who received a commission on the transaction.

The undersigned finds that Defendant’s argument is without merit. The case relied on by
Defendant, Summa Investing Corp. vs. McClure, 569 So.2d 500 (Fla. 5" DCA 1990), is
distinguishable from the instant action because that case involved the notarization of a
mortgage by the mortgagee who derived a direct benefit in the mortgage itself. In the
instant case, Mr. Blake has no interest in the mortgage. Although Mr. Blake received a
commission for facilitating the transaction, he had no interest in the mortgage itself. Mr.
Blake would have received his commission regardless of the manner in which Mr. Miller
chose to pay for the property.

Furthermore, the wording in the statute makes a similar distinction between receiving a
fee for services rendered and having a “financial interest in the underlying transaction”.
Fla. Stat. See. 117.107 provides in relevant part: “For purposes of this subsection, a
notary public who is an attorney does not have a financial interest in and is not a party to
the underlying transaction evidenced by a notarized document if he or she notarizes a
signature on that document for a client for whom he or she serves as an attorney of record
and he or she has no interest in the document other than the fee paid to him or her
for legal services and the fee authorized by law for services as a notary public."
(emphasis added.)

The undersigned sees no distinction between a real estate agent, receiving a commission
for facilitating a transaction, and an attorney or closing agent who receives fees for
services rendered.

Mr. Miller states that he is legally blind and therefore required assistance to understand
what he was signing. In support of this Mr. Miller argues that there are special notarial
requirements in such circumstances that Mr. Blake did not follow.

The undersigned finds this argument unpersuasive. As an initial matter, Mr. Miller
asserts that he is legally blind, however he did not present any proof that he is legally
blind. Notably, Mr. Miller does not dispute that his visual impairment does not prevent
him from legally operating a motor vehicle or obtaining a license to do so.

If Mr. Miller is legally blind, case law in Florida is clear that a contract signed by a blind
person is valid. Etting v. Regents Park at Aventura, Inc., 891 So.2d 558 (Fla. 3 DCA
2005).

With respect to the special notarial requirement, it is undisputed that Mr. Miller never
told Mr. Blake or anyone else that he required reading assistance, for either the 1601 orthe 1605 transaction. To suggest that a notary must make inquiry as to every signor’s
reading capacity, without some indication that assistance is necessary, is not logical.

34. As a result, the undersigned finds that the mortgage is not void due to Mr. Blake’s
notarization or due to Mr. Miller’s visual impairments.

FINDINGS AS TO THE AFFIRMATIVE DEFENSE OF LACK OF STANDING

35. Mr. Miller raises the affirmative defense of standing and argues that Plaintiff does not
have standing. First, Defendant argues that Plaintiff has not proven that Mr. Dickerson
was the holder or the owner of the note at the time of death and that even if he was, Ms.
Decelle, as the personal representative for the Estate of Benjamin Dickerson is not the
proper Plaintiff. Second, Defendant argues that because the original note was not
delivered to Mr. Dickerson the note is not a negotiable instrument, which defeats
standing.

36. The undersigned finds that the note was made payable to Mr. Dickerson and therefore he
was the owner of the note at the time of his death. The undersigned further finds that
Carol Decelle, as the personal representative of Mr. Dickerson’s estate, is the proper
plaintiff in this action pursuant to Florida Statute Section 733.608(1).

37. The undersigned additionally finds that the failure to deliver the executed note to Mr.
Dickerson does not defeat standing. Defendant’s reliance on City of National Bank of
Miami, NA v. Wernick, 368 So.2d 934 (Fla, 1979), for this proposition is misplaced. In
Wernick, the payor of the negotiable instrument in question executed the instrument but
retained possession of it at all times. In the instant action, Mr. Miller executed the note
and relinquished possession to the closing agent, which constitutes delivery. The court in
Wernick makes this very distinction noting that delivery occurs when a maker in some
way “evinced an intention to make it an enforceable obligation against himself, according
to its terms, by surrendering control over it and intentionally placing it under the power of
the payee or some other person for his use”. Id. at 937. See also City of New Port
Richey v. Fidelity & Deposit Co., 105 F.2d 348 (5" Cir. 1939), stating in relevant part that
“where the instrument is no longer in the possession of a party whose signature appears
thereon, a valid and intentional delivery by him is presumed until the contrary is proved”.

38. The undersigned therefore finds that Mr. Newell’s failure to forward the note to Mr.
Dickerson does not defeat standing and that Plaintiff has proven standing in this action.
Therefore, this affirmative defense fails.

FINDINGS AS TO THE AFFIRMATIVE DEFENSE OF FAILURE TO PROPERLY
APPLY PAYMENTS

39. Mr. Miller raises the affirmative defense of failure to properly apply payments.

40. Mr. Miller presented no evidence to corroborate that he made any payments for which he
has not been provided credit. The only evidence presented was a text message from Mr.
Miller to Ms. Genhold on December 4, 2019 stating that he sent a check in October 2019
in the amount of $5,000.00. Mr. Miller presented no evidence of this check’s existence
and admits that the check was never cashed. (See Plaintiff’s Composite Exhibit 14.)41.

42.

43,

45.

46.

47.

On the other hand, Ms. Decelle testified that she reviewed all of Mr. Dickerson’s bank
accounts, both business and personal, and determined that no payments had been made
by Mr. Miller. Plaintiff provided evidence corroborating Ms. Decelle’s testimony in the
form of the bank records for Mr. Dickerson’s estate, as well as his business and personal
back statements. (See Plaintiff’s Composite Exhibits 3, 4 and 5.)

The undersigned finds that Mr. Miller did not provide competent substantial evidence
that he made any payments to Mr. Dickerson, or to his estate, for which he has not been
given credit and therefore this affirmative defense fails.

FINDINGS AS TO THE AFFIRMATIVE DEFENSE OF ESTOPPEL

Mr. Miller raises the affirmative defense of estoppel claiming that Plaintiff changed the
payment terms and deadlines of the parties’ agreement, without Defendant’s consent and
have fraudulently produced documents.

For the reasons stated above the undersigned finds that Plaintiff has not fraudulently
produced documents and that the documents produced are true and accurate originals.
Mr. Miller’s assertion that Plaintiff changed the payment terms and deadlines without his
consent contradicts his assertion that there was no agreement or note and mortgage
because the repayment terms were still being worked out.

Additionally, Defendant presented no evidence that any representations were actually
made by Plaintiff or his agents, or that Mr. Miller relied on any alleged representations
which led him to act in a way he would not have acted had he known Plaintiff would
require strict performance under the terms of the agreement/mortgage/note.

Therefore, the undersigned finds that Mr. Miller did not provide competent substantial
evidence that Plaintiff or his agents made any misrepresentations that Mr. Miller relied on
to his detriment and therefore this affirmative defense fails.

Conclusion

48. Based on the evidence provided the undersigned finds that Plaintiff is entitled to entry of

final judgment of foreclosure.

49. The undersigned further finds that Plaintiff is entitled to an award of attorney’s fees but

reserves on making a finding as to amount.

50. All parties have not waived the ten-day period in which to file exceptions to the Report

and Recommendations of the General Magistrate.

IT IS THEREFORE RECOMMENDED that:

1.

2.

Final Judgment of Foreclosure is entered after the determination of attorney’s fees has
been made and a foreclosure sale is scheduled 60 days after entry of Final Judgment.
A hearing is scheduled to determine the amount of attorney’s fees to which Plaintiff is
entitled.EXCEPTIONS: IF YOU WISH TO SEEK REVIEW OF THIS REPORT AND
RECOMMENDATION, YOU MUST FILE EXCEPTIONS IN ACCORDANCE
WITH FLORIDA RULE OF CIVIL PROCEDURE 1.490. YOU WILL BE
REQUIRED TO PROVIDE THE COURT WITH A RECORD SUFFICIENT TO
SUPPORT YOUR EXCEPTIONS OR YOUR EXCEPTIONS WILL BE DENIED.
A RECORD INCLUDES A WRITTEN TRANSCRIPT OF ALL RELEVANT
PROCEEDINGS. THE PERSON SEEKING REVIEW MUST HAVE THE
TRANSCRIPT PREPARED IF NECESSARY FOR THE COURT’S REVIEW.

ALL PROCEEDINGS BEFORE THE MAGISTRATE WERE
ELECTRONICALLY RECORDED. AN ELECTRONIC COPY OF THE
PROCEEDINGS MAY BE REQUESTED FROM COURT REPORTING AT
http://circuit8.org/transcripts. ALL COSTS FOR ANY ELECTRONIC COPIES
WILL BE PAID BY THE REQUESTING PARTY. AFTER OBTAINING AN
ELECTRONIC COPY, IT IS THE RESPONSIBILITY OF THE PERSON
SEEKING REVIEW TO HAVE A WRITTEN TRANSCRIPT PREPARED BY A
CERTIFIED COURT REPORTER FOR DELIVERY TO THE COURT.

REPORTED AND RECOMMENDED on Wednesday, May 19, 2021

Qe ott C i

Jodi Cagon, General Magistrate / Hearing Officer
04-2019-CA-000649-CAAM 05/19/2021 12:33:18 PM

CERTIFICATE OF SERVICE

LARRY E CIESLA Felecia L Walker
Iciesla@larryciesla-law.com FWalker @EdwardsEdwardsLaw.com
jhall@larryciesta-law.com MFisher @EdwardsEdwardsLaw.com

Jennifer Cates Lester
jennifer! @salterlaw.net

shannond @salterlaw.net

K-R. B. Janous, Cakd Manager
04-2019-CA-000649-CAAM 05/20/2021 11:57:16 AMFiling # ME E-Filed 06/01/2021 11:25:57 PM

IN THE CIRCUIT COURT, EIGTH
JUDICIAL CIRCUIT, IN AND FOR
BRADFORD COUNTY, FLORIDA

CASE NO.: 04-2019-CA-00649
DIVISION: MG
CAROLE DECELLE, as Personal
Representative of the Estate of
BENJAMIN F. DICKERSON, deceased,
Plaintiff,
vs.
MICHAEL L, MILLER, H,
Defendant.

/

DEFENDANT’S EXCEPTIONS TO THE (AMENDED TO CORRECT
SCRIVENER’S ERROR) REPORT OF FINDINGS AND
RECOMMENDATIONS OF THE GENERAL MAGISTRATE

COMES NOW, Defendant, MICHAEL L. MILLER, II, by and through the undersigned
counsel and files his Exceptions to the (Amended to Correct Scrivener’s Error) Report of Findings
and Recommendations of General Magistrate and states as follows:

1. On March 26, 2021, a trial was held on Plaintiff's Amended Complaint for
Foreclosure before Magistrate Jodi Cason. The Plaintiff appeared with her counsel, Jennifer Cates,
Esq. and Defendant appeared with his counsel Felecia Leann Walker, Esq. After trial, the Court
entered a Report and Recommendation of the General Magistrate dated May 7, 2021 (hereinafter
“Report”).

2. The General Magistrate made findings of fact, conclusions of law, and
recommendations contained in the Repot and Findings and Recommendations of the General

Magistrate dated May 6, 2021 which was served upon Defendant on May 7, 2021.

EXHIBIT =3. Defendant files exceptions to the findings contained in paragraph seven (7) of the
Report as the finding is not based upon competent substantial evidence. There was no testimony
or evidence presented to support the findings.

4. Defendant files exceptions to the findings and conclusions of law made in
paragraphs 26 through 34 and paragraph 37. The Magistrate misunderstood or misapplied the law
and the Court must not accept the recommendations.

5. The undersigned is required to provide the Court with a record which includes a
transcript of the hearing. The undersigned requests she be given a reasonable time to obtain said
transcript.

6. The undersigned requests a hearing on these exceptions.

WHEREFORE, the Defendant, respectfully requests that this Honorable Court:

a. Strike the Report and Recommendation of the General Magistrate dated May 6,
2021, because the Magistrate’s findings are an abuse of discretion and not supported by competent
substantial evidence and further that the findings and conclusions of law were misunderstood or
misapplied by the Magistrate.

b. Grant such other and further relief this Court deems just and proper.

EDWARDS & EDWARDS, P.A.

Attorneys for Defendant

6620 Southpoint Drive S., Ste 200
Jacksonville, Florida 32216
Telephone: (904) 222-0829

/s/ Felecia Leann Walker

FELECIA LEANN WALKER
Florida Bar No.: 0022356
FEWalker@EdwardsEdwardsLaw.comCERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was filed via the
Electronic Filing Portal to LARRY E. CIESLA, ESQUIRE, Iciesla@larrycieslalaw.com and
JENNIFER CATES LESTER, ESQUIRE, jenniferl@salterlaw.net this the 1“ day of June 2021.

/s/ Felecia Leann Walker

FELECIA LEANN WALKERCommercial Contract

41. PARTIES AND PROPERTY: Michael L Miller II ("Buyer”)
agrees to buy and Benjamin F Dickerson ("Seller")
agrees to sell the property at: a wo oe ce

Street Address: 4605 N Temple Ave + Starke, FL32091__

Legal Description: 02428-0-00101 Bradford

and the following Personal Property:

{all collectively referred to as the “Property”) on the terms and conditions set forth below.
2. PURCHASE PRICE: $ 150,000.00

(a) Deposit held in escrow by: CB Isaac Realty $ 4,500.00
(Escrow Agent”) (checks are subject to actual and final collection)

Escrow Agent's address: _ 2518 SR 21+ Melrose, FL.32656__Phone:_252.475-2199,

(b) Additional deposit to be made to Escrow Agent

Qwithin days (3 days, if left blank) after completion of Due Diligence Period or

Owithin days after Effective Date $.

(c) Additional deposit to be made to Escrow Agent

Owithin days (3 days, if left blank) after completion of Due Diligence Period or

Owithin days after Effective Date

(d) Total financing (see Paragraph 5) Owner $ 148,500.00
(e) Other $

(f) All deposits will be credited to the purchase price at closing.
Balance to close, subject to adjustments and prorations, to be paid
via wire transfer. $.

For the purposes of this paragraph, “completion” means the end of the Due Diligence Period or upon delivery of
Buyer's written notice of acceptability.

3. TIME FOR ACCEPTANCE; EFFECTIVE DATE; COMPUTATION OF TIME: Unless this offer is signed by Seller
and Buyer and an executed copy delivered to all parties on or before , this offer
will be withdrawn and the Buyer’s deposit, if any, will be returned. The time for acceptance of any counter offer will be
3days from the date the counter offer is delivered. The “Effective Date” of this Contract is the date on which the
last one of the Seller and Buyer has signed or initialed and delivered this offer or the final counter offer or

. Calendar days will be used when computing time periods, except time periods of 5
days or less. Time periods of 5 days or less will be computed without including Saturday, Sunday, or national legal
holidays. Any time period ending on a Saturday, Sunday, or national tegal holiday will extend until 5:00 p.m. of the next
business day. Time is of the essence in this Contract.

4. CLOSING DATE AND LOCATION:
(a) Closing Date: This transaction will be closed on On or Before 6/1/2019 (Closing Date), unless
specifically extended by other provisions of this Contract. The Closing Date will prevail over all other time periods
including, but not limited to, Financing and Due Diligence periods. in the event insurance underwriting is suspended

Buyer 245 ( ) and Seller lip d¢ ) acknowledge receipt of a copy of this page, which is Page 1 of 8 Pages.
CC-5 Rev. 9/17 ©2017 Florida Realtors®

Pl's Exhibit C for ID V bel $6

EXHIBIT Co und A41
42

on Closing Date and Buyer is unable to obtain property insurance, Buyer may postpone closing up to 5 days after
the insurance underwriting suspension is lifted.

(b) Location: Closing will take place in__Bradford__ County, Florida. (If left blank, closing will take place in the
county where the property is located.) Closing may be conducted by mail or electronic means.

5. THIRD PARTY FINANCING:

BUYER'S OBLIGATION: On or before days (5 days if left blank) after Effective Date, Buyer will apply for third
party financing in an amount not to exceed % of the purchase price or $. with a fixed
interest rate not to exceed % per year with an initial variable interest rate not to exceed %, with points or
commitment or loan fees not to exceed % of the principal amount, for a term of years, and amortized
over years, with additional terms as follows:

Buyer will timely provide any and all credit, employment, financial and other information reasonably required by any
lender. Buyer will use good faith and reasonable diligence to (i) obtain Loan Approval within days (45 days if left
blank) from Effective Date (Loan Approval Date). (ii) satisfy terms and conditions of the Loan Approval, and (iil) close
the loan. Buyer will keep Seller and Broker fully informed about loan application status and authorizes the mortgage
broker and lender to disclose all such information to Seller and Broker. Buyer will notify Seller immediately upon
obtaining financing or being rejected by a lender. CANCELLATION: If Buyer, after using good faith and reasonable
diligence, fails to obtain Loan Approval by Loan Approval Date, Buyer may within days (3 days if left blank)
deliver written notice to Seller stating Buyer either waives this financing contingency or cancels this Contract.

if Buyer does neither, then Seller may cancel this Contract by delivering written notice to Buyer at any time thereafter.
Unless this financing contingency has been waived, this Contract shall remain subject to the satisfaction, by closing, of
those conditions of Loan Approval related to the Property. DEPOSIT(S) (for purposes of Paragraph 5 only): If Buyer
has used good faith and reasonable diligence but does not obtain Loan Approval by Loan Approval Date and
thereafter either party elects to cancel this Contract as set forth above or the lender fails or refuses to close on or
before the Closing Date without fault on Buyer’s part, the Deposit(s) shall be returned to Buyer, whereupon both
parties will be released from all further obligations under this Contract, except for obligations stated herein as surviving
the termination of this Contract. If neither party elects to terminate this Contract as set forth above or Buyer fails to use
good faith or reasonable diligence as set forth above, Seller will be entitled to retain the Deposit(s) if the transaction
does not close. For purposes of this Contract, “Loan Approval" means a statement by the lender setting forth the terms
and conditions upon which the lender is willing to make a particular mortgage loan to a particular buyer. Neither a pre-
approval letter not a prequalification letter shall be deemed a Loan Approval for purposes of this Contract.

6. TITLE: Seller has the legal capacity to and will convey marketable title to the Property by DOstatutory warranty
deed 0 special warranty deed O other free of liens, easements and
encumbrances of record or known to Seller, but subject to property taxes for the year of closing; covenants,
restrictions and public utility easements of record; existing zoning and governmental regulations; and (list any other
matters to which title will be subject).

provided there exists at closing no violation of the foregoing and none of them prevents Buyer’s intended use of the
Property as

(a) Evidence of Title: The party who pays the premium for the title insurance policy will select the closing agent
and pay for the title search and closing services. Seller will, at (check one) & Seller's ( Buyer's expense and
within days after Effective Date or at least days before Closing Date deliver to Buyer (check one)
0 (i) atitle insurance commitment by a Florida licensed title insurer setting forth those matters to be discharged by
Seller at or before Closing and, upon Buyer recording the deed, an owner's policy in the amount of the purchase
price for fee simple title subject only to exceptions stated above. If Buyer is paying for the evidence of title and
Seller has an owner's policy, Seller will deliver a copy to Buyer within 15 days after Effective Date. o (li.) an
abstract of title, prepared or brought current by an ‘existing abstract firm or certified as correct by an existing firm.
However, if such an abstract is not available to Seller, then a prior owner's title policy acceptable to the proposed
insurer as a base for reissuance of coverage may be used. The prior policy will include copies of all policy
exceptions and an update in a format acceptable to Buyer from the policy effective date and certified to Buyer or

Buyer 22 (___) and Seller tps ( acknowledge receipt of a copy of this page, which is Page 2 of 8 Pages.
CCS Rev. 9/17 ©2017 Florida Realtors®Buyer’s closing agent together with copies of all documents recited in the prior policy and in the update. If such
an abstract or prior policy is not available to Seller then (j.) above will be the evidence of title.

{b) Title Examination: Buyer will, within 15 days from receipt of the evidence of title deliver written notice to Seller
Of title defects. Title will be deemed acceptable to Buyer if (1) Buyer fails to deliver proper notice of defects or (2)
Buyer delivers proper written notice and Seller cures the defects within days from receipt of the notice
(‘Curative Period”). Seller shall use good faith efforts to cure the defects. If the defects are cured within the
Curative Period, closing will occur on the latter of 10 days after receipt by Buyer of notice of such curing or the
scheduled Closing Date. Seller may elect not to cure defects if Seller reasonably believes any defect cannot be
cured within the Curative Period. If the defects are not cured within the Curative Period, Buyer will have 10 days
from receipt of notice of Seller's inability to cure the defects to elect whether to terminate this Contract or accept
title subject fo existing defects and close the transaction without reduction in purchase price.

(c) Survey: (check applicable provisions below)

(i.) 0 Seller will, within days from Effective Date, deliver to Buyer copies of prior surveys,
plans, specifications, and engineering documents, if any, and the following documents relevant to this
transaction:

prepared for Seller or in Seller's possession, which show all currently existing structures. In the event this
transaction does not close, all documents provided by Seller will be retumed to Seller within 10 days from the
date this Contract is terminated.

i Buyer will, at 1 Seller’s & Buyer's expense and within the time period allowed to deliver and examine
title evidence, obtain a current certified survey of the Property from a registered surveyor. If the survey reveals
encroachments on the Property or that the improvements encroach on the lands of another, O Buyer will
accept the Property with existing encroachments such encroachments will constitute a title defect to be
cured within the Curative Period.

(d) Ingress and Egress: Seller warrants that the Property presently has ingress and egress.

7. PROPERTY CONDITION: Seller will deliver the Property to Buyer at the time agreed in its present “as is” condition,
ordinary wear and tear excepted, and will maintain the landscaping and grounds in a comparable condition. Seller
makes no warranties other than marketability of title. In the event that the condition of the Property has materially
changed since the expiration of the Due Diligence Period, Buyer may elect to terminate the Contract and receive a
refund of any and all deposits paid, plus interest, if applicable, or require Seller to return the Property to the required
condition existing as of the end of Due Diligence period, the cost of which is not to exceed § 00.00 (1.5% of
the purchase price, if left blank). By accepting the Property “as is", Buyer waives all claims against Seller for any
defects in the Property. (Check (a) or (b))

3 (a) As Is: Buyer has inspected the Property or waives any right to inspect and accepts the Property in its “as is”
condition.

i (b) Due Diligence Period: Buyer will, at Buyer’s expense and within days from Effective Date (‘Due
Diligence Period"), determine whether the Property is suitable, in Buyer's sole and absolute discretion. During the
term of this Contract, Buyer may conduct any tests, analyses, surveys and investigations ("Inspections") which
Buyer deems necessary to determine to Buyer's satisfaction the Property's engineering, architectural,
environmental properties; zoning and zoning restrictions; flood zone designation and restrictions; subdivision
regulations; soil and grade; availability of access to public roads, water, and other utilities; consistency with local,
state and regional growth management and comprehensive land use plans; availability of permits, government
approvals and licenses; compliance with American with Disabilities Act; absence of asbestos, soil and ground
water contamination; and other inspections that Buyer deems appropriate. Buyer will deliver written notice to
Seller prior to the expiration of the Due Diligence Period of Buyer’s determination of whether or not the Property
is acceptable. Buyer’s failure to comply with this notice requirement will constitute acceptance of the Property in
its present “as is” condition. Seller grants to Buyer, its agents, contractors and assigns, the right to enter the
Property at any time during the term of this Contract for the purpose of condusting Inspections, upon reasonable
notice, at a mutually agreed upon time: provided, however, that Buyer. its agents, contractors and assigns enter
the Property and conduct Inspections at their own risk. Buyer will indemnify and hold Seller harmless from
losses, damages, costs. clairns and expenses of any nature, including attorneys’ fees at all levels, and from
liability to any person, arising from the conduct of any and all inspections or any work authorized by Buyer. Buyer
will not engage in any activity that could result in a mechanic's lien being filed against the Property without
Seller’s prior written consent. In the event this transaction does not close, (1) Buyer will repair all damages to the

Buyer (2X4 ( ) and Setter (_/r2) ( acknowledge receipt of a copy of this page, which is Page 3 of 8 Pages.

CC-5 Rev. 9/17

©2017 Florida Realtors®Property resulting from the Inspections and retum the Property to the condition it was in prior to conduct of the
Inspections, and (2) Buyer will, at Buyer's expense release to Seller all reports and other work generated as a
result of the Inspections. Should Buyer deliver timely notice that the Property is not acceptable, Seller agrees that
Buyer's deposit will be immediately retumed to Buyer and the Contract terminated.

(c) Walk-through Inspection: Buyer may, on the day prior to closing or any other time mutually agreeable to the
parties, conduct a final “walk-through” inspection of the Property to determine compliance with this paragraph and
to ensure that all Property is on the premises.

8, OPERATION OF PROPERTY DURING CONTRACT PERIOD: Seller will continue to operate the Property and any
business conducted on the Property in the manner operated prior to Contract and will take no action that would
adversely impact the Property after closing, as to tenants, lenders or business, if any. Any changes, such as renting
vacant space, that materially affect the Property or Buyer’s intended use of the Property will be permitted 01 only with
Buyer’s consent Clwithout Buyer’s consent.

9. CLOSING PROCEDURE: Unless otherwise agreed or stated herein, closing procedure shall be in accordance with
the norms where the Property is located.
(a) Possession and Occupancy: Seller will deliver possession and occupancy of the Property to Buyer at
closing. Seller will provide keys, remote controls, and any security/access codes necessary to operate all locks,
mailboxes, and security systems.

(b) Costs: Buyer will pay Buyer’s attorneys’ fees, taxes and recording fees on notes, mortgages and financing
statements and recording fees for the deed. Seller will pay Seller's attorneys’ fees, taxes on the deed and
recording fees for documents needed to cure title defects. If Seller is obligated to discharge any encumbrance at or
prior to closing and fails to do so, Buyer may use purchase proceeds to satisfy the encumbrances.

(ce) Documents: Seller will provide the deed; bill of sale; mechanic's lien affidavit; originals of those assignable
service and maintenance contracts that will be assumed by Buyer after the Closing Date and letters to each
service contractor from Seller advising each of them of the sale of the Property and, if applicable, the transfer of its
contract, and any assignable warranties or guarantees received or held by Seller from any manufacturer,
contractor, subcontractor, or material supplier in connection with the Property; current copies of the condominium
documents, if applicable; assignments of leases, updated rent roll; tenant and lender estoppels letters (if
applicable); tenant subordination, non-disturbance and attornment agreements (SNDAs) required by the Buyer or
Buye