Preview
1- 0-161
IN THE CIRCUIT COURT OF THE NINTH
JUDICIAL CIRCUIT IN AND FOR ORANGE
COUNTY, FLORIDA
CASE NO.: 2008-CA-0
SVO VISTANA VILLAGES, INC., a Florida
corporation,
Plaintiff,
vs.
n o
CD
BRUCE H. SMITH and DEBORAH L.
aN
>
rc
-
SMITH, his wife; HECTOR G. VILLEGAS, }T
a single man, -
Defendants.
=, tv.
COMPLAINT
Plaintiff, SVO VISTANA VILLAGES, INC., a Florida corporation, hereby sues Defendants,
BRUCE H. SMITH and DEBORAH L. SMITH, his wife; HECTOR G. VILLEGAS, a single man;
for causes of action states the following:
COUNT I
1. This is an in rem action against Defendants, BRUCE H. SMITH and DEBORAH L.
SMITH, his wife, to foreclose a Mortgage on real property located in Orange County, Florida.
2. On April 11, 2004, Defendants, BRUCE H. SMITH and DEBORAH L. SMITH, his
wife, executed and delivered a promissory note ("Note") issued by SVO Vistana Villages, Inc.
("SVO") to Plaintiff. A true copy of the Note is respectively attached hereto as Exhibit "A".
3. On April 11, 2004, Defendants, BRUCE H. SMITH and DEBORAH L. SMITH, his
wife, executed and delivered a Short Form Mortgage ("Mortgage") issued by Mortgage Electronic
Registration Systems, Inc. ("MERS") to Plaintiff. The Mortgage was recorded in Official Records
Book 07441 at Page 3179, Public Records of Orange County, Florida; and it incorporates herein by
reference Bella Florida Condominium Declaration ofMaster Mortgage Terms and Covenants (MERS)
("Master Mortgage"), recorded in Official Records Book 6149, Page 401, Public Records of Orange
County, Florida. True copies of the Mortgage and the Master Mortgage are respectively attached
hereto as composite Exhibit "B".
4. The Mortgage encumbers the following timeshare unit week ("Unit Week"):
Unit Week 42, in Unit 07304, an Annual Unit Week, BELLA FLORIDA
CONDOMINIUM, together with all appurtenances thereto, according and subject to
the Declaration of Condominium of Bella Florida Condominium, as recorded in
Official Records Book 6222, Page 1987, Public Records of Orange County, Florida,
and all amendments thereof and supplements thereto, if any ("Declaration"), subject
to taxes for the current year and subsequent years, and all other matters of record.
5. MERS has assigned the Mortgage to SVO, pursuant to that certain Assignment of
Mortgages being recorded in the Public Records of Orange County, Florida. A true copy ofwhich
is attached hereto as Exhibit "C".
6. Plaintiff owns and holds the Note and Mortgage.
7. Plaintiff hereby acknowledges that the Defendants BRUCE H. SMITH and
DEBORAH L. SMITH, filed a Chapter 7 bankruptcy in the United States Bankruptcy Court for the
District of Maine on November 17, 2004, Case No.: 04-12155. The automatic stay is no longer in
effect pursuant to Title 11 U.S.C., Section 727 (a) (United States Bankruptcy Code) because the
Defendants were discharged on February 14, 2005. A true copy of the Discharge of Debtor is
respectively attached hereto as Exhibit "D".
8. The Unit Week is owned by Defendants, BRUCE H. SMITH and DEBORAH L.
SMITH, his wife, who hold possession thereof.
9. Defendants, BRUCE H. SMITH and DEBORAH L. SMITH, his wife, have defaulted
under the Note and Mortgage by failing to pay the payment due June 15, 2007, and all subsequent
payments.
10. Plaintiff declares the full amount payable under the Note and Mortgage to be due.
11. A principal balance of $12,051.23 is due under the Note and Mortgage, plus interest
from June 15, 2007.
12. The following notice is provided pursuant to the Fair Debt Collection Practices Act,
15 U. S.C. § 1692: The following notice (the "Notice") is provided solely to comply with applicable
provisions of the Fair Debt Collection Practices Act ("Act'). This allegation and the Notice should
not be construed as and is not intended as an attempt by Plaintiff to violate the automatic stay
imposed by virtue of 11U.S.C. §362 or the discharge injunction imposed by virtue of 11 U.S.C. §
524 or any other provisions of Title of the United States Code. Notwithstanding the language in the
Notice, Plaintiff is not pursuing Defendants to collect the sums due; rather, the following language
is provided in order to: (a) comply with the Act; (b) provide a mechanism for Plaintiff to protect its
interest in the propertybeing foreclosed upon; and provide a breakdown of amounts owed to Plaintiff
in order to allow Plaintiff to enforce its lien against the subject property and more particularly, to
assert its full credit bid rights at any judicial sale of the subject property.
.! ,,A
The undersigned attorney is attempting to collect a debt owed to the Plaintiff, and any
information obtained will be used for that purpose. As of May 7, 2008, you owe
$14,977.94. Because of interest, late charges, and other charges that may vary from
day to day, the amount due on the day you pay may be greater. Hence, if you pay the
amount shown above, an adjustment may be necessary after we receive your check,
in which event we will inform you before depositing the check for collection. For
further information, write the undersigned or call Vistana Development, Inc. (inside
the USA) 1-800-743-7654 or (outside the USA) 1-407-903-4700. Plaintiff is the
creditor to whom the debt is owed. Unless you, within thirty (30) days after your
receipt of this notice, dispute the validity ofthe aforesaid debt or any portion thereof,
owing to the Plaintiff, the undersigned attorney will assume that said debt is valid. If
you notify the undersigned attorney in writing within the said thirty (30) day period
that the aforesaid debt, or any portion thereof, is disputed, the undersigned attorney
shall obtain written verification of the debt from the Plaintiff and mail same to debtor.
Upon written request by debtor to the undersigned attorney within said thirty (30) day
period, the undersigned attorney will provide debtor with the name and address ofthe
original creditor if different from the current creditor.
13. The Mortgage has been placed in the hands of Plaintiffs attorneys herein and Plaintiff
has agreed to pay said attorneys a reasonable fee for their services, for which amount Plaintiff is
entitled to recover pursuant to the terms of the Note and Mortgage.
14. In order to determine the necessary and proper parties to this suit, it has been
necessary for the Plaintiff to purchase evidence of the status of title of the subject property, the cost
of which Plaintiff is entitled to recover pursuant to the terms of the Note and Mortgage.
15. All conditions precedent to the bringing of this action have occurred or been waived.
WHEREFORE, Plaintiff demands judgment against Defendants, BRUCE H. SMITH and
DEBORAH L. SMITH, his wife foreclosing the Mortgage, awarding attorneys' fees and costs.
J
COUNT II
16. This is an in rem action against Defendant, HECTOR G. VILLEGAS, a single man,
to foreclose a Mortgage on real property located in Orange County, Florida.
17. On June 28, 2006, Defendant, HECTOR G. VILLEGAS, a single man, executed and
delivered a promissory note ("Note") issued by SVO Vistana Villages, Inc. ("SVO") to Plaintiff. A
true copy of the Note is respectively attached hereto as Exhibit "E".
18. On June 28, 2006, Defendant, HECTOR G. VILLEGAS, a single man, executed and
delivered a Short Form Mortgage ("Mortgage") issued byMortgage Electronic Registration Systems,
Inc. ("MERS") to Plaintiff. The Mortgage was recorded in Official Records Book 08766 at Page
4558, Public Records of Orange County, Florida; and it incorporates herein by reference BellaFlorida
Condominium Declaration ofMaster Mortgage Terms and Covenants (MERS) ("Master Mortgage"),
recorded in Official Records Book 6149, Page 401, Public Records of Orange County, Florida. True
copies of the Mortgage and the Master Mortgage are respectively attached hereto as composite
Exhibit "F".
19. The Mortgage encumbers the following timeshare unit week ("Unit Week"):
Unit Week 37, in Unit 03105, an Annual Unit Week, and Unit Week 18 in Unit 03204, an
Annual Unit Week, BELLA FLORIDA CONDOMINIUM, together with all appurtenances
thereto, according and subject to the Declaration of Condominium of Bella Florida
Condominium, as recorded in Official Records Book 6222, Page 1987, Public Records of
Orange County, Florida, and all amendments thereof and supplements thereto, if any
("Declaration"), subject to taxes for the current year and subsequent years, and all other
matters of record.
20. MERS has assigned the Mortgage to SVO, pursuant to that certain Assignment of
Mortgages being recorded in the Public Records of Orange County, Florida. A true copy of which
is attached hereto as Exhibit "G".
21. Plaintiff owns and holds the Note and
'
Mortgage.
22. Plaintiff hereby acknowledges that the Defendant HECTOR G. VILLEGAS a/k/a
HECTOR GIL VILLEGAS RIVERA, filed a Chapter 13 bankruptcy in the United States Bankruptcy
Court for the District of Puerto Rico on November 25, 2007, Case No.: 07-06876-SEK. The
automatic stay is no longer in effect pursuant to the Chapter 13 plan dated November 25, 2007, and
the Order confirming the plan dated February 5, 2008, in which the subject timeshare is being
surrendered. A true copy of the Chapter 13 Plan and Order confirming the plan is respectively
attached hereto as Exhibit "H".
23. The Unit Week is owned by Defendant, HECTOR G. VILLEGAS, a single man, who
holds possession thereof.
24. Defendant, HECTOR G. VILLEGAS, a single man, has defaulted under the Note and
Mortgage by failing to pay the payment due September 1, 2007, and all subsequent payments.
25. Plaintiff declares the full amount payable under the Note and Mortgage to be due.
26. A principal balance of $25,505.57 is due under the Note and Mortgage, plus interest
from September 1,2007.
27. The following notice is provided pursuant to the Fair Debt Collection Practices Act,
15 U.S.C. § 1692: The following notice (the "Notice") is provided solely to comply with applicable
provisions of the Fair Debt Collection Practices Act ("Act"). This allegation and the Notice should
not be construed as and is not intended as an attempt by Plaintiff to violate the automatic stay
imposed by virtue of I IU.S.C. §362 or the discharge injunction imposed by virtue of 11 U.S.C. §
524 or any other provisions of Title of the United States Code. Notwithstanding the language in the
Notice, Plaintiff is not pursuing Defendant to collect the sums due; rather; the following language
is provided in order to: (a) comply with the Act; (b) provide a mechanism for Plaintiff to protect its
interest in the property being foreclosed upon; and provide a breakdown of amounts owed to Plaintiff
in order to allow Plaintiff to enforce its lien against the subject property and more particularly, to
assert its full credit bid rights at any judicial sale of the subject property.
The undersigned attorney is attempting to collect a debt owed to the Plaintiff, and any
information obtained will be used for that purpose. As of May 7, 2008, you owe
$32,093.49. Because of interest, late charges, and other charges that may vary from
day to day, the amount due on the day you pay may be greater. Hence, if you pay the
amount shown above, an adjustment may be necessary after we receive your check,
in which event we will inform you before depositing the check for collection. For
further information, write the undersigned or call Vistana Development, Inc. (inside
the USA) 1-800-743-7654 or (outside the USA) 1-407-903-4700. Plaintiff is the
creditor to whom the debt is owed. Unless you, within thirty (30) days after your
receipt of this notice, dispute the validity ofthe aforesaid debt or any portion thereof,
owing to the Plaintiff, the undersigned attorney will assume that said debt is valid. If
you notify the undersigned attorney in writing within the said thirty (30) day period
that the aforesaid debt, or any portion thereof, is disputed, the undersigned attorney
shall obtain written verification of the debt from the Plaintiff and mail same to debtor.
Upon written request by debtor to the undersigned attorney within said thirty (30) day
period, the undersigned attorney will provide debtor with the name and address ofthe
original creditor if different from the current creditor.
28. The Mortgage has been placed in the hands of Plaintiff s attorneys herein and Plaintiff
has agreed to pay said attorneys a reasonable fee for their services, for which amount Plaintiff is
entitled to recover pursuant to the terms of the Note and Mortgage.
29. In order to determine the necessary and proper parties to this suit, it has been
necessary for the Plaintiff to purchase evidence of the status of title of the subject property, the cost
of which Plaintiff is entitled to recover pursuant to the terms of the Note and Mortgage.
30. All conditions precedent to the bringing of this action have occurred or been waived.
WHEREFORE, Plaintiff demands judgment against Defendant, HECTOR G. VILLEGAS,
a single man foreclosing the Mortgage, awarding attorneys' fees and costs.
VALERIE N. BROWN
Florida Bar No. 0010193
Lowndes, Drosdick, Doster,
Kantor & Reed, P.A.
Post Office Box 2809
Orlando, Florida 32802-2809
Telephone: (407) 843-4600
Facsimile: (407) 843-4444
Attorneys for Plaintiff
PAdocs\2008\SVO\Bella\BELLA FL 224\complaint.wpd -
jir
015-02-605378
NOTE SECURED BY SHORT FORM MORTGAGE
f')
07304-42A-15-02-605378
US$ 14.310.00 Date: April 11, 2004
(Amount Financed)
FOR VALUE RECEIVED, the undersigned (and, if more than one, jointly and severally) ("Borrower") promise(s) to pay to the
order of SVO Vistana Villages, Inc., a Florida corporation, or its assigns ("Holder"), P.O. Box 22197, Lake Buena Vista, Florida
32820, the principal sum of U.S. $14. 310.00, plus interest at the rate of 16.9 % annually, at the
Holder's address set forth above or at such other place as the Holder may designate from time to time,
in 120
consecutive monthly installments of U.S.
$ 247.80 installment being due and
each, with the first such
payable on May 15, 2004 and each successive installment being due and payable on the
15th day of
each month thereafter until the entire indebtedness evidenced by this Note is fully paid.
Interest at the above rate will begin to
accrue 30 days prior to the date the first installment is due.
This Note is secured by
a Short FormMortgage ofeven date ("Short Form Mortgage") to
SVO Vistana Villages. Inc. as
creating
trustee, a lienon the ("Property")
property described therein purchased by Borrower pursuant to a Purchase
Agreement ("Purchase Agreement"). The Short Form Mortgage (including, without limitation, its acceleration, collection and
allocation of payment provisions) is incorporated herein by reference.
At the option of Holder, the entire principal balance outstanding and accrued interest thereon will become immediately due and
payable without further notice upon: (a) the failure of Borrower to pay when due any monthly installment under this Note; (b) the
failure of Borrower to comply with any other term or provision of this Note,
the Purchase Agreement or the Short Form
Mortgage within 10 days following written notice thereof from Holder to Borrower (in the manner specified in the Short Form
Mortgage); (c) the insolvency (however evidenced) of or the institution of proceedings in bankruptcy by or against Borrower; or
(d) the discovery by Holder of a misrepresentation made on behalf of Borrower to obtain credit or an extension of credit.
Holder may exercise its option to accelerate during any default by Borrower regardless of any prior forbearance.
If any sums
due under this Note are not paid when due, whether at maturity or by acceleration, the Holder will be entitled to collect all
reasonable costs and expenses of collection, including, but not limited to, reasonable attorneys fees, including,
without
limitation, those incurred in all bankruptcy and probate proceedings, and regardless of whether any suit or proceeding is filed
and reasonable collection agency fees.
Borrower will pay Holder (i) the monthly installments stated above,
(ii)
a one-time late charge of $5.00
for each monthly
installment not received by Holder within 10 days after the due date, and
(iii) a reasonable charge for each
occurrenceof the
return to Holder for any reason of any check, draft or order..
Borrower may prepay this Note in whole or in part at any time without penalty. -Any partial prepayment will be applied against
the principal balance outstanding and will not postpone the due date or change the amount of any subsequent monthly
installments.
Presentment, notice of dishonor and protest are waived by all makers, sureties, guarantors and endorsers hereof. This Note is
thejoint and several obligation of all makers, sureties, guarantors and endorsers, and will be binding upon them and their
successors and assigns.
THIS NOTE IS GOVERNED BY, CONSTRUED UNDER AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF FLORIDA.
SIGNATURE(S)
,
I
RUCE H SMITH DEBORAH L SMITH
Documentary stamp taxes on the principal balance of this Note are being paid in
connection with the recording of the Mortgage securing this Note among the Public
Records of Orange County, Florida.
{Rev. 102"3)
VV!DA061
15-02-605378
S\/V II 1'IMAIIIId1 Q1U IlU1
07304-42A-605378
I STR 20040302160
THIS SHORT FORM MORTGAGE is made this11th day o0 BK 07441 PG 3179 PGS=1
April. 2004, between 0.
AH
MARTHA HAYNIE, COMPTROLLER
B 1('R H SMITH & D BO ,SMITH. HIS WIFE
ORANGE COUNTY, FL
05/18/2004 01:14:59 PM
r tax purposes is Post office Box, Lake Bue
whose post office address Vista, Florida
32830-2051 e Electronic
and Mortgage ic Registration Systems,
is Inc., a
MTG DOC TAX 50.40
(hereinafter 'Borrower),
Delaware corporation, whose post office address is Post Office
Box 2026,Flint, MichiganINTANG TAX 28.62
48501-2026 (hereinafter 'MERS'), as nominee for and for the benefit of SVO Vistana Villages,
REC FEE 6.00
whose address is Post Office Box 22197, Lake Buena Vista, Florida
Inc., a Florida corporation,
32830, its successors and assigns (hereinafter 'Lender"). LAST PAGE
WHEREAS, Boower is indebted to Lender in the principal sum of
Fourteen thousandrr three hundred ten and 007T -
Dollars (
14.310.00 ), which indebtedness is evidenced by Borrowers Note
(herein `Note'),
of even date herewith for monthly installments of principal and
providing
interest,
withthebalanceof Indebtedness,
rfnotsoonerpaid,due and payable
on
April 15. 2014
Space above
reserveorrecording-in-5-0
TO SECURE to Lender (a) the repayment of the indebtedness evidenced by the Note,
with interest thereon, the payment of all other sums. with interest thereon, advanced in accordance herewith to protect the security of this Mortgage,
and the performance of the covenants and agreements of Borrower herein contained, and (b) the repayment of any future advances, with interest
thereon, made to Borrower by Lender pursuant to this Mortgage (herein "Future Advances'), Borrower does hereby mortgage, grant and Convey to
MERS (solely as nominee for Lender and Lender's successors and assigns) and to the successors and assigns of MERS the following described
property located in the County of Orange, State of Florida:
Unit Week 42 in Unit 07304 an Anmral Unit Week,
Unit Week --
in Unit ----
,an ------ Unit Week,
Bella Florida Declaration of
CONDOMINIUM, together with all appurtenances thereto, according and subject to the
Condominium ofBella F1Oridd Condominium, as recorded in Official Records Book
6222, Page 1987
Public Records of Orange County, Florida, and all amendments thereof and supplements thereto, if any (`Declaration"), subject to taxes for the current
year and subsequent years, and all other matters of record.
TOGETHER with all the improvements now or hereafter erected on the property, and all easements, rights, appurtenances, rents, royalties,
mineral, oil and gas rights and profits, water, water rights, and water stock, and all fixtures now or hereafter attached to the property, and all insurance
all of which, including all replacements and additions thereto, and
policies and proceeds therefrom, and all condemnation awards and funds, all
proceeds therefrom, shall be deemed to be and remain part of the property covered by this Mortgage; and all of the foregoing, together with said
property are herein referred to as the 'Property".
Borrower covenants that Borrower is lawfully seized of the estate hereby conveyed and has the right to mortgage, grant and convey the
Property, that the Property is unencumbered, and that Borrower will warrant and defend generally the title to the Property against all claims and
demands, subject to any declarations, easements or restrictions listed in a schedule of exceptions to coverage in any title insurance policy insuring
MFRS' and/or Lender's interest in the Property.
Borrower and Lender covenant and agree as follows:
1. Master Mort a
e Inco This instrument is a short forth mortgage which incorporates by reference as if fully set
rated Herein.
forthherein
each an everyone o e provisions,
terms, covenantsand conditions
as aremore fully
set forthinthatcertain
Bella Flos ida Condominium Declaration
of MasterMortgageTerms and Covenants(MERS) recorded
ecem er 4-zuOU in aal Records Book14 Page 401 of the Public Records of Orange County, Florida
(the -Master Mortgage-), whi rR MasterMortgage and this Short Fo BORROWER
a shall be together referred to herein as the "Mortgage".
HEREBY ACKNOWLEDGES THAT BORROWER HAS BEEN PROVIDED A COMPLETE COPY OF THE MASTER MORTGAGE AT OR PRIOR TO
THE TIME OF THE EXECUTION OF THIS SHORT FORM MORTGAGE AND THAT BORROWER HAS EXECUTED AND DELIVERED THIS SHORT
FORM MORTGAGE WITH THE KNOWLEDGE AND UNDERSTANDING THAT EACH AND EVERY TERM,PROVISION, CONDITION AND
COVENANT SET FORTH IN THE MASTER MORTGAGE IS AND SHALL BE A PART OF THIS MORTGAGE, IT BEING THE EXPRESS INTENTION
OF BORROWER AND LENDER THAT THISSHORT FORM MORTGAGE AND THE MASTER MORTGAGE BE CONSTRUED TOGETHER AS A
SINGLE DOCUMENT, THE TOGETHER BINDING UPON AND INURE TO THE BENEFIT OF BORROWER AND
LENDER.
MORTGAGE(Borrower's Initials)
4..3
(Borrower's initials)
2. Acknowledment of Restrictions on Transfer.
Borrower hereby expressly acknowledges that, as more particularly set forth in
Paragraph 18 of the
aster mortgage, it small
e a e u t un er this Mortgage it the interest of Borrower in the Property is conveyed, sold or
transferred other than
as permitted under Paragraph 18 of the Master Mortgage.
3. WAIVER OF JURY TRIAL. BORROWER AND LENDER HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY
WAIVE THE RIGH TRIAL BY JURY WITH RESPECT TO ANY LITIGATION BASED HEREON OR ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS MORTGAGE OR THE NOTE SECURED HEREBY, OR IN ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS OF EITHER PARTY. THISPROVISION IS A MATERIAL
INDUCEMENT FOR LENDER IN MAKING THE LOAN SECURED BY THIS MORTGAGE.
4. EntireAgreement. The Note, this Short Forth Mortgage and the Master Mortgage referenced herein contain the entire agreement
between the parties rega 4nrd' g this
transaction.
Any prior agreements, whether oral or written, are superseded by the Note, this Short Form Mortgage
and the Master Mortgage.
IN WITNESS
WHEREOF, Borrower has executed this Short Form Mortgage on the day and year first written above.
and delivere
in the of:
nce
Signed,71ed
orrower orrowe
Print Name:
BRUCE H SMITH Print Name: DEBORAH L SMITH
State of Florida
County
o
Orange Witness
Print Name:
This Mortgage was acknowledged before me this
11th day of April, 2004 y
BRUCE H SMITH & DEBORAH L SMITH, HIS WIFE -
A
-
who is/are known to me or-who has/have
personally produced IL 1,4" .. as
Public's
_ -
This document prepared by: Notary Public, State of
Heather Brandow Commission No.:
Vacation Title Services, Inc. My Commission Expires:
8801 Vistana Centre Drive (SEAL)
Orlando, Florida 32821 ESTHERLJEROME
MY COMMISSION # DD 264276
Return t0:
(/'
fl7 11
EXPIRES! Nowmbar15.2007
American Pioneer Title Insurance Bo:betl nru ttwary Pomec UriCenriters
VO Division
489 E. Semoran Blvd. #109-A
Casselberry, Florida 32707
MIN 100058000002108081 VV!DA031
(Rev. 1-3-03)
Orange Co FL 2000-0523764
Itcll:l ( ' lunch c+nldoounllun III.M.
l 1 c11/ 1!102: 56: 59 p a
(MERS) OR BV & 1 4 9 pg 4(=t 1.
Prepared by and
return lo: ReC 33. 01 )
I. tames GKauclnlann. I•sgrnrc
Losvndcs, Drosdlck, Dostcr,
Kantor R Reed. P.A.
215 Noon Eola Dnrc
1, 0- Box 2809
Orlando, Florida 32802
BELLA FLORIDA CONDOMINIUN.I DECLARATION
OF hIASTER MORTGAGE TERMS AND COVENANTS (MERS)
TI IIS BE•LLA FLORIDA CONDOMINIUM DECLARATION OF MASTER MORTGAGE TERMS
AND COVENANTS (MERS) (the "Master Mortgage") is made this I I th day of December, 2000, by SVO
VISTANA VILLAGES, INC., a Florida corporation, whose address is Post Office Box 22197,
Lake Buena
Vista, Florida 32830, its successors and assigns (hereinafter "Lender'').
WITNESSETH:
L c:
EU-
WIII:REAS, Lender isthe owner of certain in
property located Orange County, Florida more
particularly described
on Exhibit "A" attached hereto (the "Property"); and
C3
U WHEREAS, Lender may, at its option, develop all or a portion of the Property as BELLA FLORIDA
Preview
1- 0-161 IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA CASE NO.: 2008-CA-0 SVO VISTANA VILLAGES, INC., a Florida corporation, Plaintiff, vs. n o CD BRUCE H. SMITH and DEBORAH L. aN > rc - SMITH, his wife; HECTOR G. VILLEGAS, }T a single man, - Defendants. =, tv. COMPLAINT Plaintiff, SVO VISTANA VILLAGES, INC., a Florida corporation, hereby sues Defendants, BRUCE H. SMITH and DEBORAH L. SMITH, his wife; HECTOR G. VILLEGAS, a single man; for causes of action states the following: COUNT I 1. This is an in rem action against Defendants, BRUCE H. SMITH and DEBORAH L. SMITH, his wife, to foreclose a Mortgage on real property located in Orange County, Florida. 2. On April 11, 2004, Defendants, BRUCE H. SMITH and DEBORAH L. SMITH, his wife, executed and delivered a promissory note ("Note") issued by SVO Vistana Villages, Inc. ("SVO") to Plaintiff. A true copy of the Note is respectively attached hereto as Exhibit "A". 3. On April 11, 2004, Defendants, BRUCE H. SMITH and DEBORAH L. SMITH, his wife, executed and delivered a Short Form Mortgage ("Mortgage") issued by Mortgage Electronic Registration Systems, Inc. ("MERS") to Plaintiff. The Mortgage was recorded in Official Records Book 07441 at Page 3179, Public Records of Orange County, Florida; and it incorporates herein by reference Bella Florida Condominium Declaration ofMaster Mortgage Terms and Covenants (MERS) ("Master Mortgage"), recorded in Official Records Book 6149, Page 401, Public Records of Orange County, Florida. True copies of the Mortgage and the Master Mortgage are respectively attached hereto as composite Exhibit "B". 4. The Mortgage encumbers the following timeshare unit week ("Unit Week"): Unit Week 42, in Unit 07304, an Annual Unit Week, BELLA FLORIDA CONDOMINIUM, together with all appurtenances thereto, according and subject to the Declaration of Condominium of Bella Florida Condominium, as recorded in Official Records Book 6222, Page 1987, Public Records of Orange County, Florida, and all amendments thereof and supplements thereto, if any ("Declaration"), subject to taxes for the current year and subsequent years, and all other matters of record. 5. MERS has assigned the Mortgage to SVO, pursuant to that certain Assignment of Mortgages being recorded in the Public Records of Orange County, Florida. A true copy ofwhich is attached hereto as Exhibit "C". 6. Plaintiff owns and holds the Note and Mortgage. 7. Plaintiff hereby acknowledges that the Defendants BRUCE H. SMITH and DEBORAH L. SMITH, filed a Chapter 7 bankruptcy in the United States Bankruptcy Court for the District of Maine on November 17, 2004, Case No.: 04-12155. The automatic stay is no longer in effect pursuant to Title 11 U.S.C., Section 727 (a) (United States Bankruptcy Code) because the Defendants were discharged on February 14, 2005. A true copy of the Discharge of Debtor is respectively attached hereto as Exhibit "D". 8. The Unit Week is owned by Defendants, BRUCE H. SMITH and DEBORAH L. SMITH, his wife, who hold possession thereof. 9. Defendants, BRUCE H. SMITH and DEBORAH L. SMITH, his wife, have defaulted under the Note and Mortgage by failing to pay the payment due June 15, 2007, and all subsequent payments. 10. Plaintiff declares the full amount payable under the Note and Mortgage to be due. 11. A principal balance of $12,051.23 is due under the Note and Mortgage, plus interest from June 15, 2007. 12. The following notice is provided pursuant to the Fair Debt Collection Practices Act, 15 U. S.C. § 1692: The following notice (the "Notice") is provided solely to comply with applicable provisions of the Fair Debt Collection Practices Act ("Act'). This allegation and the Notice should not be construed as and is not intended as an attempt by Plaintiff to violate the automatic stay imposed by virtue of 11U.S.C. §362 or the discharge injunction imposed by virtue of 11 U.S.C. § 524 or any other provisions of Title of the United States Code. Notwithstanding the language in the Notice, Plaintiff is not pursuing Defendants to collect the sums due; rather, the following language is provided in order to: (a) comply with the Act; (b) provide a mechanism for Plaintiff to protect its interest in the propertybeing foreclosed upon; and provide a breakdown of amounts owed to Plaintiff in order to allow Plaintiff to enforce its lien against the subject property and more particularly, to assert its full credit bid rights at any judicial sale of the subject property. .! ,,A The undersigned attorney is attempting to collect a debt owed to the Plaintiff, and any information obtained will be used for that purpose. As of May 7, 2008, you owe $14,977.94. Because of interest, late charges, and other charges that may vary from day to day, the amount due on the day you pay may be greater. Hence, if you pay the amount shown above, an adjustment may be necessary after we receive your check, in which event we will inform you before depositing the check for collection. For further information, write the undersigned or call Vistana Development, Inc. (inside the USA) 1-800-743-7654 or (outside the USA) 1-407-903-4700. Plaintiff is the creditor to whom the debt is owed. Unless you, within thirty (30) days after your receipt of this notice, dispute the validity ofthe aforesaid debt or any portion thereof, owing to the Plaintiff, the undersigned attorney will assume that said debt is valid. If you notify the undersigned attorney in writing within the said thirty (30) day period that the aforesaid debt, or any portion thereof, is disputed, the undersigned attorney shall obtain written verification of the debt from the Plaintiff and mail same to debtor. Upon written request by debtor to the undersigned attorney within said thirty (30) day period, the undersigned attorney will provide debtor with the name and address ofthe original creditor if different from the current creditor. 13. The Mortgage has been placed in the hands of Plaintiffs attorneys herein and Plaintiff has agreed to pay said attorneys a reasonable fee for their services, for which amount Plaintiff is entitled to recover pursuant to the terms of the Note and Mortgage. 14. In order to determine the necessary and proper parties to this suit, it has been necessary for the Plaintiff to purchase evidence of the status of title of the subject property, the cost of which Plaintiff is entitled to recover pursuant to the terms of the Note and Mortgage. 15. All conditions precedent to the bringing of this action have occurred or been waived. WHEREFORE, Plaintiff demands judgment against Defendants, BRUCE H. SMITH and DEBORAH L. SMITH, his wife foreclosing the Mortgage, awarding attorneys' fees and costs. J COUNT II 16. This is an in rem action against Defendant, HECTOR G. VILLEGAS, a single man, to foreclose a Mortgage on real property located in Orange County, Florida. 17. On June 28, 2006, Defendant, HECTOR G. VILLEGAS, a single man, executed and delivered a promissory note ("Note") issued by SVO Vistana Villages, Inc. ("SVO") to Plaintiff. A true copy of the Note is respectively attached hereto as Exhibit "E". 18. On June 28, 2006, Defendant, HECTOR G. VILLEGAS, a single man, executed and delivered a Short Form Mortgage ("Mortgage") issued byMortgage Electronic Registration Systems, Inc. ("MERS") to Plaintiff. The Mortgage was recorded in Official Records Book 08766 at Page 4558, Public Records of Orange County, Florida; and it incorporates herein by reference BellaFlorida Condominium Declaration ofMaster Mortgage Terms and Covenants (MERS) ("Master Mortgage"), recorded in Official Records Book 6149, Page 401, Public Records of Orange County, Florida. True copies of the Mortgage and the Master Mortgage are respectively attached hereto as composite Exhibit "F". 19. The Mortgage encumbers the following timeshare unit week ("Unit Week"): Unit Week 37, in Unit 03105, an Annual Unit Week, and Unit Week 18 in Unit 03204, an Annual Unit Week, BELLA FLORIDA CONDOMINIUM, together with all appurtenances thereto, according and subject to the Declaration of Condominium of Bella Florida Condominium, as recorded in Official Records Book 6222, Page 1987, Public Records of Orange County, Florida, and all amendments thereof and supplements thereto, if any ("Declaration"), subject to taxes for the current year and subsequent years, and all other matters of record. 20. MERS has assigned the Mortgage to SVO, pursuant to that certain Assignment of Mortgages being recorded in the Public Records of Orange County, Florida. A true copy of which is attached hereto as Exhibit "G". 21. Plaintiff owns and holds the Note and ' Mortgage. 22. Plaintiff hereby acknowledges that the Defendant HECTOR G. VILLEGAS a/k/a HECTOR GIL VILLEGAS RIVERA, filed a Chapter 13 bankruptcy in the United States Bankruptcy Court for the District of Puerto Rico on November 25, 2007, Case No.: 07-06876-SEK. The automatic stay is no longer in effect pursuant to the Chapter 13 plan dated November 25, 2007, and the Order confirming the plan dated February 5, 2008, in which the subject timeshare is being surrendered. A true copy of the Chapter 13 Plan and Order confirming the plan is respectively attached hereto as Exhibit "H". 23. The Unit Week is owned by Defendant, HECTOR G. VILLEGAS, a single man, who holds possession thereof. 24. Defendant, HECTOR G. VILLEGAS, a single man, has defaulted under the Note and Mortgage by failing to pay the payment due September 1, 2007, and all subsequent payments. 25. Plaintiff declares the full amount payable under the Note and Mortgage to be due. 26. A principal balance of $25,505.57 is due under the Note and Mortgage, plus interest from September 1,2007. 27. The following notice is provided pursuant to the Fair Debt Collection Practices Act, 15 U.S.C. § 1692: The following notice (the "Notice") is provided solely to comply with applicable provisions of the Fair Debt Collection Practices Act ("Act"). This allegation and the Notice should not be construed as and is not intended as an attempt by Plaintiff to violate the automatic stay imposed by virtue of I IU.S.C. §362 or the discharge injunction imposed by virtue of 11 U.S.C. § 524 or any other provisions of Title of the United States Code. Notwithstanding the language in the Notice, Plaintiff is not pursuing Defendant to collect the sums due; rather; the following language is provided in order to: (a) comply with the Act; (b) provide a mechanism for Plaintiff to protect its interest in the property being foreclosed upon; and provide a breakdown of amounts owed to Plaintiff in order to allow Plaintiff to enforce its lien against the subject property and more particularly, to assert its full credit bid rights at any judicial sale of the subject property. The undersigned attorney is attempting to collect a debt owed to the Plaintiff, and any information obtained will be used for that purpose. As of May 7, 2008, you owe $32,093.49. Because of interest, late charges, and other charges that may vary from day to day, the amount due on the day you pay may be greater. Hence, if you pay the amount shown above, an adjustment may be necessary after we receive your check, in which event we will inform you before depositing the check for collection. For further information, write the undersigned or call Vistana Development, Inc. (inside the USA) 1-800-743-7654 or (outside the USA) 1-407-903-4700. Plaintiff is the creditor to whom the debt is owed. Unless you, within thirty (30) days after your receipt of this notice, dispute the validity ofthe aforesaid debt or any portion thereof, owing to the Plaintiff, the undersigned attorney will assume that said debt is valid. If you notify the undersigned attorney in writing within the said thirty (30) day period that the aforesaid debt, or any portion thereof, is disputed, the undersigned attorney shall obtain written verification of the debt from the Plaintiff and mail same to debtor. Upon written request by debtor to the undersigned attorney within said thirty (30) day period, the undersigned attorney will provide debtor with the name and address ofthe original creditor if different from the current creditor. 28. The Mortgage has been placed in the hands of Plaintiff s attorneys herein and Plaintiff has agreed to pay said attorneys a reasonable fee for their services, for which amount Plaintiff is entitled to recover pursuant to the terms of the Note and Mortgage. 29. In order to determine the necessary and proper parties to this suit, it has been necessary for the Plaintiff to purchase evidence of the status of title of the subject property, the cost of which Plaintiff is entitled to recover pursuant to the terms of the Note and Mortgage. 30. All conditions precedent to the bringing of this action have occurred or been waived. WHEREFORE, Plaintiff demands judgment against Defendant, HECTOR G. VILLEGAS, a single man foreclosing the Mortgage, awarding attorneys' fees and costs. VALERIE N. BROWN Florida Bar No. 0010193 Lowndes, Drosdick, Doster, Kantor & Reed, P.A. Post Office Box 2809 Orlando, Florida 32802-2809 Telephone: (407) 843-4600 Facsimile: (407) 843-4444 Attorneys for Plaintiff PAdocs\2008\SVO\Bella\BELLA FL 224\complaint.wpd - jir 015-02-605378 NOTE SECURED BY SHORT FORM MORTGAGE f') 07304-42A-15-02-605378 US$ 14.310.00 Date: April 11, 2004 (Amount Financed) FOR VALUE RECEIVED, the undersigned (and, if more than one, jointly and severally) ("Borrower") promise(s) to pay to the order of SVO Vistana Villages, Inc., a Florida corporation, or its assigns ("Holder"), P.O. Box 22197, Lake Buena Vista, Florida 32820, the principal sum of U.S. $14. 310.00, plus interest at the rate of 16.9 % annually, at the Holder's address set forth above or at such other place as the Holder may designate from time to time, in 120 consecutive monthly installments of U.S. $ 247.80 installment being due and each, with the first such payable on May 15, 2004 and each successive installment being due and payable on the 15th day of each month thereafter until the entire indebtedness evidenced by this Note is fully paid. Interest at the above rate will begin to accrue 30 days prior to the date the first installment is due. This Note is secured by a Short FormMortgage ofeven date ("Short Form Mortgage") to SVO Vistana Villages. Inc. as creating trustee, a lienon the ("Property") property described therein purchased by Borrower pursuant to a Purchase Agreement ("Purchase Agreement"). The Short Form Mortgage (including, without limitation, its acceleration, collection and allocation of payment provisions) is incorporated herein by reference. At the option of Holder, the entire principal balance outstanding and accrued interest thereon will become immediately due and payable without further notice upon: (a) the failure of Borrower to pay when due any monthly installment under this Note; (b) the failure of Borrower to comply with any other term or provision of this Note, the Purchase Agreement or the Short Form Mortgage within 10 days following written notice thereof from Holder to Borrower (in the manner specified in the Short Form Mortgage); (c) the insolvency (however evidenced) of or the institution of proceedings in bankruptcy by or against Borrower; or (d) the discovery by Holder of a misrepresentation made on behalf of Borrower to obtain credit or an extension of credit. Holder may exercise its option to accelerate during any default by Borrower regardless of any prior forbearance. If any sums due under this Note are not paid when due, whether at maturity or by acceleration, the Holder will be entitled to collect all reasonable costs and expenses of collection, including, but not limited to, reasonable attorneys fees, including, without limitation, those incurred in all bankruptcy and probate proceedings, and regardless of whether any suit or proceeding is filed and reasonable collection agency fees. Borrower will pay Holder (i) the monthly installments stated above, (ii) a one-time late charge of $5.00 for each monthly installment not received by Holder within 10 days after the due date, and (iii) a reasonable charge for each occurrenceof the return to Holder for any reason of any check, draft or order.. Borrower may prepay this Note in whole or in part at any time without penalty. -Any partial prepayment will be applied against the principal balance outstanding and will not postpone the due date or change the amount of any subsequent monthly installments. Presentment, notice of dishonor and protest are waived by all makers, sureties, guarantors and endorsers hereof. This Note is thejoint and several obligation of all makers, sureties, guarantors and endorsers, and will be binding upon them and their successors and assigns. THIS NOTE IS GOVERNED BY, CONSTRUED UNDER AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA. SIGNATURE(S) , I RUCE H SMITH DEBORAH L SMITH Documentary stamp taxes on the principal balance of this Note are being paid in connection with the recording of the Mortgage securing this Note among the Public Records of Orange County, Florida. {Rev. 102"3) VV!DA061 15-02-605378 S\/V II 1'IMAIIIId1 Q1U IlU1 07304-42A-605378 I STR 20040302160 THIS SHORT FORM MORTGAGE is made this11th day o0 BK 07441 PG 3179 PGS=1 April. 2004, between 0. AH MARTHA HAYNIE, COMPTROLLER B 1('R H SMITH & D BO ,SMITH. HIS WIFE ORANGE COUNTY, FL 05/18/2004 01:14:59 PM r tax purposes is Post office Box, Lake Bue whose post office address Vista, Florida 32830-2051 e Electronic and Mortgage ic Registration Systems, is Inc., a MTG DOC TAX 50.40 (hereinafter 'Borrower), Delaware corporation, whose post office address is Post Office Box 2026,Flint, MichiganINTANG TAX 28.62 48501-2026 (hereinafter 'MERS'), as nominee for and for the benefit of SVO Vistana Villages, REC FEE 6.00 whose address is Post Office Box 22197, Lake Buena Vista, Florida Inc., a Florida corporation, 32830, its successors and assigns (hereinafter 'Lender"). LAST PAGE WHEREAS, Boower is indebted to Lender in the principal sum of Fourteen thousandrr three hundred ten and 007T - Dollars ( 14.310.00 ), which indebtedness is evidenced by Borrowers Note (herein `Note'), of even date herewith for monthly installments of principal and providing interest, withthebalanceof Indebtedness, rfnotsoonerpaid,due and payable on April 15. 2014 Space above reserveorrecording-in-5-0 TO SECURE to Lender (a) the repayment of the indebtedness evidenced by the Note, with interest thereon, the payment of all other sums. with interest thereon, advanced in accordance herewith to protect the security of this Mortgage, and the performance of the covenants and agreements of Borrower herein contained, and (b) the repayment of any future advances, with interest thereon, made to Borrower by Lender pursuant to this Mortgage (herein "Future Advances'), Borrower does hereby mortgage, grant and Convey to MERS (solely as nominee for Lender and Lender's successors and assigns) and to the successors and assigns of MERS the following described property located in the County of Orange, State of Florida: Unit Week 42 in Unit 07304 an Anmral Unit Week, Unit Week -- in Unit ---- ,an ------ Unit Week, Bella Florida Declaration of CONDOMINIUM, together with all appurtenances thereto, according and subject to the Condominium ofBella F1Oridd Condominium, as recorded in Official Records Book 6222, Page 1987 Public Records of Orange County, Florida, and all amendments thereof and supplements thereto, if any (`Declaration"), subject to taxes for the current year and subsequent years, and all other matters of record. TOGETHER with all the improvements now or hereafter erected on the property, and all easements, rights, appurtenances, rents, royalties, mineral, oil and gas rights and profits, water, water rights, and water stock, and all fixtures now or hereafter attached to the property, and all insurance all of which, including all replacements and additions thereto, and policies and proceeds therefrom, and all condemnation awards and funds, all proceeds therefrom, shall be deemed to be and remain part of the property covered by this Mortgage; and all of the foregoing, together with said property are herein referred to as the 'Property". Borrower covenants that Borrower is lawfully seized of the estate hereby conveyed and has the right to mortgage, grant and convey the Property, that the Property is unencumbered, and that Borrower will warrant and defend generally the title to the Property against all claims and demands, subject to any declarations, easements or restrictions listed in a schedule of exceptions to coverage in any title insurance policy insuring MFRS' and/or Lender's interest in the Property. Borrower and Lender covenant and agree as follows: 1. Master Mort a e Inco This instrument is a short forth mortgage which incorporates by reference as if fully set rated Herein. forthherein each an everyone o e provisions, terms, covenantsand conditions as aremore fully set forthinthatcertain Bella Flos ida Condominium Declaration of MasterMortgageTerms and Covenants(MERS) recorded ecem er 4-zuOU in aal Records Book14 Page 401 of the Public Records of Orange County, Florida (the -Master Mortgage-), whi rR MasterMortgage and this Short Fo BORROWER a shall be together referred to herein as the "Mortgage". HEREBY ACKNOWLEDGES THAT BORROWER HAS BEEN PROVIDED A COMPLETE COPY OF THE MASTER MORTGAGE AT OR PRIOR TO THE TIME OF THE EXECUTION OF THIS SHORT FORM MORTGAGE AND THAT BORROWER HAS EXECUTED AND DELIVERED THIS SHORT FORM MORTGAGE WITH THE KNOWLEDGE AND UNDERSTANDING THAT EACH AND EVERY TERM,PROVISION, CONDITION AND COVENANT SET FORTH IN THE MASTER MORTGAGE IS AND SHALL BE A PART OF THIS MORTGAGE, IT BEING THE EXPRESS INTENTION OF BORROWER AND LENDER THAT THISSHORT FORM MORTGAGE AND THE MASTER MORTGAGE BE CONSTRUED TOGETHER AS A SINGLE DOCUMENT, THE TOGETHER BINDING UPON AND INURE TO THE BENEFIT OF BORROWER AND LENDER. MORTGAGE(Borrower's Initials) 4..3 (Borrower's initials) 2. Acknowledment of Restrictions on Transfer. Borrower hereby expressly acknowledges that, as more particularly set forth in Paragraph 18 of the aster mortgage, it small e a e u t un er this Mortgage it the interest of Borrower in the Property is conveyed, sold or transferred other than as permitted under Paragraph 18 of the Master Mortgage. 3. WAIVER OF JURY TRIAL. BORROWER AND LENDER HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE THE RIGH TRIAL BY JURY WITH RESPECT TO ANY LITIGATION BASED HEREON OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS MORTGAGE OR THE NOTE SECURED HEREBY, OR IN ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS OF EITHER PARTY. THISPROVISION IS A MATERIAL INDUCEMENT FOR LENDER IN MAKING THE LOAN SECURED BY THIS MORTGAGE. 4. EntireAgreement. The Note, this Short Forth Mortgage and the Master Mortgage referenced herein contain the entire agreement between the parties rega 4nrd' g this transaction. Any prior agreements, whether oral or written, are superseded by the Note, this Short Form Mortgage and the Master Mortgage. IN WITNESS WHEREOF, Borrower has executed this Short Form Mortgage on the day and year first written above. and delivere in the of: nce Signed,71ed orrower orrowe Print Name: BRUCE H SMITH Print Name: DEBORAH L SMITH State of Florida County o Orange Witness Print Name: This Mortgage was acknowledged before me this 11th day of April, 2004 y BRUCE H SMITH & DEBORAH L SMITH, HIS WIFE - A - who is/are known to me or-who has/have personally produced IL 1,4" .. as Public's _ - This document prepared by: Notary Public, State of Heather Brandow Commission No.: Vacation Title Services, Inc. My Commission Expires: 8801 Vistana Centre Drive (SEAL) Orlando, Florida 32821 ESTHERLJEROME MY COMMISSION # DD 264276 Return t0: (/' fl7 11 EXPIRES! Nowmbar15.2007 American Pioneer Title Insurance Bo:betl nru ttwary Pomec UriCenriters VO Division 489 E. Semoran Blvd. #109-A Casselberry, Florida 32707 MIN 100058000002108081 VV!DA031 (Rev. 1-3-03) Orange Co FL 2000-0523764 Itcll:l ( ' lunch c+nldoounllun III.M. l 1 c11/ 1!102: 56: 59 p a (MERS) OR BV & 1 4 9 pg 4(=t 1. Prepared by and return lo: ReC 33. 01 ) I. tames GKauclnlann. I•sgrnrc Losvndcs, Drosdlck, Dostcr, Kantor R Reed. P.A. 215 Noon Eola Dnrc 1, 0- Box 2809 Orlando, Florida 32802 BELLA FLORIDA CONDOMINIUN.I DECLARATION OF hIASTER MORTGAGE TERMS AND COVENANTS (MERS) TI IIS BE•LLA FLORIDA CONDOMINIUM DECLARATION OF MASTER MORTGAGE TERMS AND COVENANTS (MERS) (the "Master Mortgage") is made this I I th day of December, 2000, by SVO VISTANA VILLAGES, INC., a Florida corporation, whose address is Post Office Box 22197, Lake Buena Vista, Florida 32830, its successors and assigns (hereinafter "Lender''). WITNESSETH: L c: EU- WIII:REAS, Lender isthe owner of certain in property located Orange County, Florida more particularly described on Exhibit "A" attached hereto (the "Property"); and C3 U WHEREAS, Lender may, at its option, develop all or a portion of the Property as BELLA FLORIDA