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Filing # 86104347 E-Filed 03/08/2019 01:54:36 PM
IN THE CIRCUIT COURT OF THE 15TH
JUDICIAL CIRCUIT, IN AND FOR
PALM BEACH COUNTY, FLORIDA
6654 NW 27 AVENUE, LLC,
Case No: 17CA13348 MB AH
Plaintiff,
Vv.
PINCUS CAPITAL LLC and MARK
BENUN,
Defendants.
/
NOTICE OF FILING CORRESPONDENCE TO THE COURT
The Defendant, PINCUS CAPITAL LLC and MARK BENUN, by and through the
undersigned counsel, hereby files this Notice of Filing Correspondence to the Court with
supporting letters as attached hereto.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing has been served this 8 day of
March, 2019 via email upon Andrew G. Elliott, Randall K. Roger & Associates PA, 621 NW
53rd Street, Suite 300, Boca Raton, FL 33487, aelliott@randallkroger.com; Katherine C.
Nuckolls, Randall K. Roger & Associates PA, 621 NW 53rd Street, Suite 300, Boca Raton, FL
33487, Knuckolis@randalikroger.com; marie@randaiikroger.com; Ronaid M Gache, Shapiro
Fishman & Gache, 2424 N Federal Hwy, Suite 360, Boca Raton, FL 33431, rgache@logs.com;
Scott A. Simon, Shapiro, Fishman & Gache LLP, 2424 N Federal Hwy, Suite 360, Boca Raton,
FL 33431, ssimon@logs.com.
SHIR LAW GROUP, P.A.
2295 N.W. Corporate Blvd. Suite 140
Boca Raton, Florida 33431
Phone: 561-999-5999
Fax: 561-893-0999
By: Stuart Y. Boberg, Eeg.,
Stuart J. Zoberg, Esq., Fla Bar No. 611891
szoberg@shirlawgroup.com
Service Email: Office@shirlawgroup.com
1224.005
CHEN. DAIAARCACUAAIINTY Cl CHADAND ANFY FI EDY nainainnians-£4.2e DAA
HILLY. PAL BLAU VUUINE TT, FL, OHI. DUUN, ULLIAN, Youu ig Ut. ou vtPlease note our new address below
Stuart J. Zoberg, Esq.
Roard Cartified Attorney Candamin:
‘Admitted i in Florida and New York (Board Certification i in Florida only),
szoberg@shirlawgroup.com
Shir Law Group
2295 NW Corporate Blvd Suite 140 Boca Raton, FL 33431
Phone: (561) 999-5999 Fax: (561) 893-0999 Fax
im and Planned Develonment Tau
From: Joni Cosner
Cante Wadnacdau March NE N10 6-96 DNA
Sones weuntcsuay, Wialcr UU, 2Uag 3.20 FIVE
_ To: CAD-DivisionAD@pbcgov.org
Ce: Ronald M. Gaché ; Stuart Zoberg ; Joni Cosner
Subject: 6654 NW 27th Avenue vs. Pincus 2017-CA-013348
Good afternoon Maria,
Pursuant to Judge Goodman’s specific instructions at the hearing this morning, March 6, 2019,
attached is the email string which Judge Goodman instructed Mr. Gaché send.
Please feel free to call or email should Judge Goodman have any questions or require additional
information.
Thank you.
Joni Cosner
icosner@ LOGS.com www.shapirofishmanandgache.com
Supervisory Contact
rvelo@logs.com
Pursuant to the Fair Debt Collection Practices Act, you are advised that this office may be doomed a debt collector and any
Information obtained may be used for that purposo.
This email, an
andine cant:
or copying of this e-mail, and any attachments thereto. is Strictly prohibited. If you have received this e- "mall in error. please immediately
notify me at 561-287-5599 x5595 and permanently delete the original and any copy of any e-mail and any printout thereof.From: Stuart Zoberg
Date: March 6, 2019 at 9:51:38 PM EST
To: joni Cosner , *CAD-DivisionAD @pbcgov.org™
Ce: "Ronald M. Gaché"
Subject: RE: 6654 NW 27th Avenue vs. Pincus 2017-CA-013348
Ms. Vasil:
Similarly, pursuant to Judge Goodman’s permission, | am allowed to submit documents in rebuttal. |
attach a letter Mr. Gache wrate to me, and mv rasnanse to sama,
Honorable Judge Goodman:
The attached letters deal with the similar issue but in relation to similar comments my client made
following the punitive damages hearing. The letters also reference the comments the Court found
concerning. The attached and the below details much of the reason that | feel my comments and my
client’s similar comments were justified and permitted under the very unique circumstances present
here. Similarly, the comments were not gratuitous; and they have a very legitimate purpose---convincing
the Plaintiff to accept what in my (admittedly biased) view are very reasonable settlement
offers. However, without Mr. Gache waiving the settlement privilege, the specific settlement offers
cannot be discussed, but they are generous.
In any event, the letters (which are now months old) also evidence that | have invited Mr. Gache on
multiple occasions dating back to October 2018 to file an injunction and have the Court decide the issue
before it ripens. However, despite filing multiple summary judgment motions, he has yet to do so. In
my opinion, Mr. Gache has not done so because it would highlight to the Court facts that are very
unfavorable to his client. To be clear, my client is currently residing in the home as his second home,
and so long as he continues to reside there, the issue is not ripe. Similarly, of course, my client has no
intention of altering the home while he resides there. Whether or not he has the right to do so should
he lose the case (a possibility | recognize but do not expect) is a point of dispute between the parties,
which there is plenty of time to resolve in a judicial forum.
To provide some additional context, (which are referenced in the attached letters), there have been
multiple litigations between the parties regarding this same house. Previous to the most recent
agreement, the parties entered into a rent to own agreement (and there were agreements prior tothat). Therefore, Mr. Benun has been living in the house (as his Fl residence) for years as either a
tenant or an owner; currently as an owner. Ms. Clark knows that my client lives primarily in NY and that
the home is used so that Mr. Benun can care for his son when Mr. Benun visits him here. However, after
an alleged default of one of the prior agreements, Ms. Clark locked my client out claiming he abandoned
ide}, Ms, Clark also refused to return
the nranerty (natuwithetanding that all af hic nnceaccinne ware
Cite PrOporey (roewregeartanig tras ae or ie pose <
my client’s possessions, which Ms. Clark placed into storage and was ordered to return.
After a several hour emergency evidentiary hearing (and stating that he rarely grants emergency
hearings, much less enters orders granting the relief requested), Judge Artau (in the absence of Judge
Rowe) rejected the abandonment claim by Ms. Clark. Judge Artau entered an emergency injunction
requiring my client to be let back into the premises. Ms. Clark then complained to the City of Boca
regarding the condition of the home, and the City red tagged the home. Ms. Clark also refused to agree
to sign permits, so the home could not be repaired. Ms Clark's signature on the permits was necessary
because shé owned the home at thé time. In addition, despite Judge Artau’s order; Ms. Clark refused to
let my client back in or return his possessions. This resulted in a second emergency motion, anda
second emergency hearing.
By this time, Judge Rowe had returned from the Judicial conference and presided over the second
emergency injunction hearing as Judge Rowe was the assigned Judge. Ms. Clark claimed ignoring Judge
Artau’s injunction was justified because the house was unsafe for human habitation, a fact she claimed
she only learned after the first hearing. Ms. Clark also claimed that she was concerned for the safety of
my client’s son, which is why she refused to obey the first injunction. Judge Rowe granted a second
emergency injunction, and ordered Ms. Clark to cooperate with the permits and allow the home to be
repaired. Judge Rowe then reserved on sanctions. Thereafter, the parties agreed to dismiss all cases,
and Ms, Clark transferred the home to my client and issued the mortgage, which is at issue in this
action. My client then renovated the home and put it in pristine condition. In any event, while the
cause of the destruction pre transfer is disputea, one of tne Tew points of agreement between the
parties is that the home was in shambles at the time of transfer. At her recent deposition, Ms. Clark
testified that the home was “destroyed,” which is consistent with her prior testimony.
As the Court is aware (and leaving aside the counterclaims related to Ms. Clark’s collection efforts,
which included having a known member of the Italian Mafia call my client to collect), my arguments in
this case are primarily 1) that Ms. Clark transferred the loan, and therefore has no standing to bring this
race in acenrdance with hlark lattar Florida ctanding law and 2\ in anu avant the laan ie
eee ant SCOOT SSMS Wreet saan roeeer sacrtuer seaeter NE ayy tet Gy Cwetey Cte HORT tS.
andin
excess of the 25% threshold because the price listed in the agreement (to avoid delineating the actual
usury) is a fraud. Indeed, despite having an expired real estate license, Ms. Clark claims she never
checked the value of the home and her prior lawyer also claimed he had no knowledge of the value. In
fact, the value was inflated to hide the illegal usury because the sale price is grossly in excess of actual
value even had the home been in good condition, which it clearly was not.
In addition, during the 14 month balloon usurious mortgage, Ms. Clark represented to my client that the
loan was sold. As a result, Mr. Benun paid someone else (Mr. Shapiro, who is now a third party
defendant). Ms. Clark now claims that (despite the fact she stopped depositing money in her account at
the same time she previously asserted she transferred the loan) that she lied then and in fact never
transferred the note. It is undisputed by Plaintiffs counsel that if she wasn’t lying then, there is a fatal
standing defect. However, Plaintiffs counsel claims there is no standing defect because she was lying
then, but not now, and now she swears she never transferred the note. (Florida law does not allow
standing to be cured post filing, although dismissals based on standing do not bar subsequent
foreclosures).
In any event, despite the fact that I truly believe my client should win on either usury, standing or both, |
am well aware that litigation is a roll of the dice. Further, Ms. Clark likes to make many mentions thatmy client has a criminal past. My client does have a criminal past, but he has rehabilitated himself.
Nevertheless, due to his criminal past, he has limited options of where to live as most condominium or
homeowner's associations will not grant anyone with a criminal record approval to purchase or
lease. For whatever reason, (probably an error) Mr. Benun was approved to live in Broken Sound and
therefore the home has value to him that it has to no one else. and whv he agreed to the illegal
usury. (My client’s agreement is irrelevant, the mortgage is still void as criminal usury under ‘Florida
law).
In short, in light of the fact that the home was transferred in a destroyed condition, (an undisputed fact),
| do not believe my client has to return it in any condition other than the way it was transferred,
regardless of the outcome of this case. With that said, he does not plan to destroy the home, but yes,
he does plan to remove the upgrades and whatever else he installed. | also believe it is entirely proper
to discuss the possible outcomes in the event Ms. Clark does not accept the settlement. Indeed, | feel it
was required as part of the répresentation of my client and is no different than when mediators say “if
you don’t settle, you will have to spend tens in thousands in attorneys fees.” In any event, Mr. Gache
has been on notice of my position on this legal issue since at least October 2018. Other than take the
comments out of context, and threaten my client after my client made similar comments, (see
attached), Mr. Gache has not taken any action to have this matter heard by the Court in any proper
fashion. Same is unsurprising because the full story described above does not bear well on Ms. Clark’s
credibility or her case. Indeed, credibility is crucial to this case as delineated above.
| know this goes beyond my comments, but it is important to give the Court the full picture and the
history and the Court did say | could submit whatever | thought appropriate in rebuttal. Most
importantly, | have clearly stated that the property is in no risk now, and if Mr. Gache believes | am
wrong on the law, Mr. Gache should file an injunction. However, Mr. Gache and/or his client made a
Strategic saan not to raise the issue properly with the Court. Instead {in my view improperly}, Mr.
Gactie ton fi Gtort w Guia pease hearing. Wi ally event, 107
the reasons above, and as evidenced by the attached, | do not feel there was anything wrong with what
\ said, or what my client said regarding the condition the home if (and only if), my client loses this
case. Admittedly bias, | do not think my client will lose, and the comment was simply an attempt to
convince the Plaintiff to settle.
In conclusion, | take my ethical obligations very seriously and do not think | said anything wrong. For the
first time in 2018. the Florida Bar created a Board Certification for mv snecialty, candominium and
planned development law. In 2018, | took the exam and passed and ‘also was board certified not just
because | passed, but because my colleagues agreed | was ethical. | have never been sanctioned by a
court for any serious matter. Further, the two times a court sanctioned me at UMC for being late with
discovery in one case and an answer in another, the sanction orders were later vacated by the same trial
judge who entered them after | explained following the UMC hearings. | am also very proud of the fact
that | have never been sanctioned or found to have done anything improper by the Florida Bar. |
therefore take very seriously the court’s suggestion at this morning’s UMC that it believed the
comments in the email attached to Plaintiff's motion where improper. However, | blame same on how
Mr. Gache submitted them to Your Honor, which did not tell the full story. Indeed, despite having a very
full week (and starting my day early due to the 8:30 UMC in WPB), it was important to me to respond
immediately although Your Honor gave me ten days. | thank the Court for taking the time to consider
the above and the attached. In addition, to the extent the Court still disagrees and thinks the comments
were inappropriate, | apologize.
Very Truly Yours,
Stuart ZobergSHAPIRO, FISHMAN & GACHE, LLP
ATTORNEYS AT LAW
Ronald M, Gaché, P.A
Managing Litigation Partner
2424 North Federal Highway ~ Suite 360
Boca Raton, FL-33431
Telephone: (561) 287-5599
Facsimile: (561) 287-5589
November 29, 2018 Email: rgache@LOGS,com
VIA U.S. MAIL AND EMAIL szoberg@shirlawgroup.com
Stuart J. Zoberg, Esq.
Shir Law Group, P.A.
2295 NW. Corporate Blvd, Suite 140
Boca Raton, FL 33431
Re: 6654 NW 27 Avenue LLC y. Pincus Capital LLC, et al
Palm Beach Circuit Case No. 50-2017-CA-013348-XXXX-MB (AD)
Dear Stuart:
I was very troubled by the comment your client, Mark Benun (“Mark”), made to my client,
Deana Clark (“Deana”), outside the elevator bank on the 9" floor of the courthouse following the
conclusion of the hearing that was held on Tuesday of this week on your motion to amend your
counterclaim to add a claim for punitive damages.' Although the conversation started with Mark
making a settlement proposal to Deana (the substance of which I will not repeat here), the
conversation soon turned into one that would not in any fashion be considered a “settlement
discussion.” When Deana rejected Mark’s offer, both Deana and I (and presumably you since you
were standing right there), as well as Judge Cox (who just happened to be standing at the elevator
bank) and an unidentified gentlemen who had been sitting in the back of the courtroom during the
hearing, heard Mark specificaily threaten Deana that if she did not accept his settlement proposal,
“She would never get the house back in the same condition that it is currently in.” This'threat, that
Mark would destroy the interior of the house before he would allow Deana to foreclose her
collateral and take the house from him, could in no way be considered a “settlement proposal,”
and if Mark were to take such action, it would clearly violate the terms of his mortgage which
prohibits the intentional. waste of the property by the mortgagor. Deana is also concerned that
Mark’s threat to intentionally do damage to her collateral might be criminal in nature and she is
consulting wiin a criminai attorney io determine if that is the case. i would aiso note that this is
not the first time that Mark (nor you) has threatened Deana that if she does not capitulate to his
demands to settle this case for much less than the face value of the loan, he would be sure that she
never gets the house back “in the condition it is currently in,” as I recall him saying the same thing
to her off the record during the taking of his deposition back in September, and:you also implying
as much in an email you sent me dated October 2, 2018.
' The court had just denied your request to add a claim for punitive damages and it appeared Mark was not happy
with that ruling, .November 29, 2018
Page 2
This letter shall serve as formal notice to both you and Mark that his threat to damage
Deana’s collateral will not be tolerated and that she is contemplating bringing the matter to the
court’s attention, either in the form of a request for injunctive relief, or by some other legally
proper fashion. In any event, at a minimum we intend to introduce this correspondence in a future
court proceeding (or possibly even at trial) as it has been written at or about the time Mark’s last
threat was made.
In sum, we expect Mark to honor the terms of the mortgage he signed, including not to
commit any waste on the property, and if he does, Deana will take all appropriate legal action
available to her, be it in the form of seeking injunctive relief, compensation from him or otherwise.
Please advise Mark to govern himself accordingly.
Sincerely,
CLIADIDA TIOLINsANT & AAMT TTD
DILALINU, PIOFUVIAW © UALOL, Lur
foe Ronald M. Gaché, P.A.
RMG/jc
ce: Ms. Deana Clark
*Boca Raton Jacksonville *Miami
-Tampa2295 N. W. Corporate Blvd
Boca Raton, Florida 33431 Ss H IR
Office: (561) 999-5999
FAX: 561-893-0999
LAW GROUP
SHIR LAW GROUP, P.A
ATTORNEYS AT LAW
December 5, 2018
STUART J. ZOBERG, ESQ.
SZOBERG@SHIRLAWGROUP.COM
VIA EMAIL ONLY rgache@logs.com
Ronald M Gache, Esq.
Managing Litigation Partner
2494 North Federal Hiohway Suite 260
CGCrds uiguway Sune 20U
Boca Raton, Fl 33431
Re: Pincus Capital adv. 6654 NW 27 Avenue LLC
Dear Mr. Gache:
This letter resnonds to vour November 29 2018 letter, which is entirely without merit,
Further, as explained below, your letter comes close to crossing an ethical line. I will now
respond to each part of your letter.
First, you state that you were troubled by a comment made by my client following the
hearing. You also suggested the comment was made by my client in anger after losing. Your
statement that my client lost the hearing (while technically accurate) is a pure spin. In fact, the
Court first determined that an evidentiary hearing was not set. I thought it was set as an
evidentiary hearing, and I advised the court that my client was there to testify. However, I
wasn’t certain, and regardless, Judge Goodman concluded that an evidentiary hearing was not set
and that he would not take testimony. As a result, Judge Goodman asked me if I agreed he
should deny it without prejudice, signaling that is what he planned to do. I wanted the Court to
hear some of the argument he would be hearing the next time, when it would be clearly set as an
evidentiary hearing, and Judge Goodman graciously obliged.
At the conclusion of the hearing, the Court did what he opined might be proper at the
outset, and denied the motion without prejudice. Simply put, the Court decided that Mr. Benun’s
affidavit alone (which did not mention much of what was argued) was not sufficient. Indeed, you
argued that my argument wasn’t enough, and testimony was necessary.
In any event, after you “won” this hearing, you asked whether you could now set the
matter for trial because the pleadings were closed. In response, the Court said you could do as
you pleased. However, Judge Goodman also stated that he thought setting the case for trial now
was a waste of time. Indeed, I was almost gleeful when Judge Goodman explained (after
1listening to my argument re facts that will be established through testimony next time) that he
might grant the motion, which would reopen the pleadings, making setting the trial now
premature.
In short, while I would have obviously preferred Judge Goodman grant the motion on the
spot, I was pretty happy with the Court’s comments in connection with punitive damages.
Indeed, Judge Goodman often signals what he intends to do, which is what led you to just agree
to the order on amendment. In any event, in light of what has taken place to date in this case, I
am quite certain that if Judge Goodman thought the motion was without merit, it would have
simply been denied. Instead, he went out of his way to say that he was denying it “at this
juncture” and without prejudice. Therefore, I am confident that there is a good chance punitive
damages will eventually be allowed to be pled. Same will also allow me to prove your client is
lying when she claims poverty and that this is her only asset (irrelevant lies, designed to obtain
the sympathy of the prior judges).
In any event, Mark Benun was not upset because of the result of the hearing. According
to my client, your client was the one who was livid. Indeed, my client advises that he watched
your client’s reaction throughout the hearing. Her emotions almost got the best of her when
Judge Goodman said “well, we are not on the eve of trial any more.” As a result, my client
thought your client would be thrilled with the very generous offer he made her. I also thought
your client was absolutely silly to reject it. Indeed, I will waive the settlement privilege if you
will so the Court can see how reasonable my client has been in settlement offers.
In any event, Mark Benun was not unhappy about the result of the hearing. Rather, he
was unhappy because he is spending tens of thousands on me, (not to mention time he does not
have to deal with this case) when the case should be settled. Similarly, Mark Benun was shocked
and upset that your client rejected an offer that was quite generous, despite the fact the Court
made it clear you might lose on the punitive damages issue.
Following her rejection of a very generous settlement offer, Mark advised her (in an
effort to convince her to settie, not threaten her), that (as you state in your letter), “she wouid
never get the house back in the same condition it is currently in.” Perhaps Judge Cox was
shocked because he does not know the context, but you should not have been. More specifically,
as I have also told you in the past repeatedly, your client transferred the home in shambles.
Thereafter, my client spent probably over $50,000.00 renovating it.
The fact that it was in shambles is evidenced not just by what I know from my experience
a ir
illegal self help eviction, Judge Artau (after a several hour evidentiary hearing) ordered your
client to let my client back into the property. (Judge Artau held the hearing because almost all
the judges were away at the summer judicial conference, and yet it was still deemed to be
important enough to have one of the only judges at the courthouse hear it because of how
blatantly violative of Florida law your client’s actions were).! More ridiculously, (perhaps
hoping for a second bite at the apple with the division judge), your client refused to comply with
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'T remain convinced her illegal action was timed accordingly.
2At the second emergency injunction hearing, your client testified that the home was very
unsafe and in disrepair. Judge Rowe found same was not grounds to ignore Judge Artau’s order
(albeit being concerned about the state of the home, and thus addressing certain of the repairs).
Judge Rowe also deferred on sanctions which were almost certainly going to be awarded. Same
were not addressed because the hearing was granted on an emergency basis, and sanctions are
obviously not an emergency.
In any case, as I have advised you in the past on a number of occasions, it is my opinion
that under the circumstances, (and assuming for the sake of argument only my client loses the
foreclosure), that my client has the right to remove his improvements. While this may have
sounded scandalous to Judge Cox, he obviously doesn’t know the context. However, I am also
sure Judge Cox would form a different opinion if he learned that your client contacted actual
mobsters (who the FBI was concerned were threatening judges) to “mediate” the dispute with my
client and more importantly, transferred a home that by her own testimony, was unsafe to live in.
If you disagree with my legal opinion, you certainly have plenty of time to seek whatever
relief you deem appropriate. Frankly, you have had plenty of time already. Indeed, you admit
that I wrote about this at least as far back as October 2, 2018. I think it dates back even farther.
Regardless, you have had at least 60 days since we first discussed this, and you have cited me
nothing to suggest I am incorrect, nor taken any legal action.
To avoid any request for emergency relief around the holidays, there is no imminent
threat of anything. Obviously, while my client is living there, he has no intention of doing
anything. While he does not expect to lose, should he lose, he intends to remove his
improvements because your client is entitled back to exactly what she transferred, nothing more.
To the extent you disagree, you are free to get a judge to rule on the issue in the civil courthouse.
In any event, while your threat of civil action is appropriate (albeit erroneous), the threat of
criminal prosecution is beyond the pale. I would urge you to give this letter to any criminal
attorney that she consults so that he or she is not reacting to only one side of the story.
In addition, I note that threatening to report something to the criminal authorities “solely”
to gain an advantage in a litigation is an ethical violation. More specifically, the rule prohibits the
following conduct: “ (g) present, participate in presenting, or threaten to present criminal charges
solely to obtain an advantage in a civil matter...” FL BAR Rule 4-3.4 See also The Florida Bar
yv. Committe, 136 So.3d 1111 (FI. 2014) (Attorney violated bar rule where attorney wrote to
United States Attorney, accusing the defendant of attempting to extort money from him and
a ens 4 Le
rea
attorney had an obligation to report, and attorney's filing of a baseless allegation was not
protected by First Amendment.)
To be clear, I have no intention of reporting you to the Florida Bar because I am going to
give you the benefit of the doubt. As stated above, the rule requires you to threaten criminal
prosecution “solely” to gain an improper advantage. I am going to assume that this was not the
aala vancnn Unwavar teand aavafally, and mala onra 2 aaneidar tha har enlas hafara war
SG TeasSon. OWeVEr, UCau CarCiuny, atu Mane Sure you ComsiGer Wie var Tues oCLore youmake such outrageous and baseless threats in the future. I trust my position is clear, as it should
have been over sixty days ago when we discussed it in detail on the telephone.
Preview
Filing # 86104347 E-Filed 03/08/2019 01:54:36 PM IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA 6654 NW 27 AVENUE, LLC, Case No: 17CA13348 MB AH Plaintiff, Vv. PINCUS CAPITAL LLC and MARK BENUN, Defendants. / NOTICE OF FILING CORRESPONDENCE TO THE COURT The Defendant, PINCUS CAPITAL LLC and MARK BENUN, by and through the undersigned counsel, hereby files this Notice of Filing Correspondence to the Court with supporting letters as attached hereto. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been served this 8 day of March, 2019 via email upon Andrew G. Elliott, Randall K. Roger & Associates PA, 621 NW 53rd Street, Suite 300, Boca Raton, FL 33487, aelliott@randallkroger.com; Katherine C. Nuckolls, Randall K. Roger & Associates PA, 621 NW 53rd Street, Suite 300, Boca Raton, FL 33487, Knuckolis@randalikroger.com; marie@randaiikroger.com; Ronaid M Gache, Shapiro Fishman & Gache, 2424 N Federal Hwy, Suite 360, Boca Raton, FL 33431, rgache@logs.com; Scott A. Simon, Shapiro, Fishman & Gache LLP, 2424 N Federal Hwy, Suite 360, Boca Raton, FL 33431, ssimon@logs.com. SHIR LAW GROUP, P.A. 2295 N.W. Corporate Blvd. Suite 140 Boca Raton, Florida 33431 Phone: 561-999-5999 Fax: 561-893-0999 By: Stuart Y. Boberg, Eeg., Stuart J. Zoberg, Esq., Fla Bar No. 611891 szoberg@shirlawgroup.com Service Email: Office@shirlawgroup.com 1224.005 CHEN. DAIAARCACUAAIINTY Cl CHADAND ANFY FI EDY nainainnians-£4.2e DAA HILLY. PAL BLAU VUUINE TT, FL, OHI. DUUN, ULLIAN, Youu ig Ut. ou vtPlease note our new address below Stuart J. Zoberg, Esq. Roard Cartified Attorney Candamin: ‘Admitted i in Florida and New York (Board Certification i in Florida only), szoberg@shirlawgroup.com Shir Law Group 2295 NW Corporate Blvd Suite 140 Boca Raton, FL 33431 Phone: (561) 999-5999 Fax: (561) 893-0999 Fax im and Planned Develonment Tau From: Joni Cosner Cante Wadnacdau March NE N10 6-96 DNA Sones weuntcsuay, Wialcr UU, 2Uag 3.20 FIVE _ To: CAD-DivisionAD@pbcgov.org Ce: Ronald M. Gaché ; Stuart Zoberg ; Joni Cosner Subject: 6654 NW 27th Avenue vs. Pincus 2017-CA-013348 Good afternoon Maria, Pursuant to Judge Goodman’s specific instructions at the hearing this morning, March 6, 2019, attached is the email string which Judge Goodman instructed Mr. Gaché send. Please feel free to call or email should Judge Goodman have any questions or require additional information. Thank you. Joni Cosner icosner@ LOGS.com www.shapirofishmanandgache.com Supervisory Contact rvelo@logs.com Pursuant to the Fair Debt Collection Practices Act, you are advised that this office may be doomed a debt collector and any Information obtained may be used for that purposo. This email, an andine cant: or copying of this e-mail, and any attachments thereto. is Strictly prohibited. If you have received this e- "mall in error. please immediately notify me at 561-287-5599 x5595 and permanently delete the original and any copy of any e-mail and any printout thereof.From: Stuart Zoberg Date: March 6, 2019 at 9:51:38 PM EST To: joni Cosner , *CAD-DivisionAD @pbcgov.org™ Ce: "Ronald M. Gaché" Subject: RE: 6654 NW 27th Avenue vs. Pincus 2017-CA-013348 Ms. Vasil: Similarly, pursuant to Judge Goodman’s permission, | am allowed to submit documents in rebuttal. | attach a letter Mr. Gache wrate to me, and mv rasnanse to sama, Honorable Judge Goodman: The attached letters deal with the similar issue but in relation to similar comments my client made following the punitive damages hearing. The letters also reference the comments the Court found concerning. The attached and the below details much of the reason that | feel my comments and my client’s similar comments were justified and permitted under the very unique circumstances present here. Similarly, the comments were not gratuitous; and they have a very legitimate purpose---convincing the Plaintiff to accept what in my (admittedly biased) view are very reasonable settlement offers. However, without Mr. Gache waiving the settlement privilege, the specific settlement offers cannot be discussed, but they are generous. In any event, the letters (which are now months old) also evidence that | have invited Mr. Gache on multiple occasions dating back to October 2018 to file an injunction and have the Court decide the issue before it ripens. However, despite filing multiple summary judgment motions, he has yet to do so. In my opinion, Mr. Gache has not done so because it would highlight to the Court facts that are very unfavorable to his client. To be clear, my client is currently residing in the home as his second home, and so long as he continues to reside there, the issue is not ripe. Similarly, of course, my client has no intention of altering the home while he resides there. Whether or not he has the right to do so should he lose the case (a possibility | recognize but do not expect) is a point of dispute between the parties, which there is plenty of time to resolve in a judicial forum. To provide some additional context, (which are referenced in the attached letters), there have been multiple litigations between the parties regarding this same house. Previous to the most recent agreement, the parties entered into a rent to own agreement (and there were agreements prior tothat). Therefore, Mr. Benun has been living in the house (as his Fl residence) for years as either a tenant or an owner; currently as an owner. Ms. Clark knows that my client lives primarily in NY and that the home is used so that Mr. Benun can care for his son when Mr. Benun visits him here. However, after an alleged default of one of the prior agreements, Ms. Clark locked my client out claiming he abandoned ide}, Ms, Clark also refused to return the nranerty (natuwithetanding that all af hic nnceaccinne ware Cite PrOporey (roewregeartanig tras ae or ie pose < my client’s possessions, which Ms. Clark placed into storage and was ordered to return. After a several hour emergency evidentiary hearing (and stating that he rarely grants emergency hearings, much less enters orders granting the relief requested), Judge Artau (in the absence of Judge Rowe) rejected the abandonment claim by Ms. Clark. Judge Artau entered an emergency injunction requiring my client to be let back into the premises. Ms. Clark then complained to the City of Boca regarding the condition of the home, and the City red tagged the home. Ms. Clark also refused to agree to sign permits, so the home could not be repaired. Ms Clark's signature on the permits was necessary because shé owned the home at thé time. In addition, despite Judge Artau’s order; Ms. Clark refused to let my client back in or return his possessions. This resulted in a second emergency motion, anda second emergency hearing. By this time, Judge Rowe had returned from the Judicial conference and presided over the second emergency injunction hearing as Judge Rowe was the assigned Judge. Ms. Clark claimed ignoring Judge Artau’s injunction was justified because the house was unsafe for human habitation, a fact she claimed she only learned after the first hearing. Ms. Clark also claimed that she was concerned for the safety of my client’s son, which is why she refused to obey the first injunction. Judge Rowe granted a second emergency injunction, and ordered Ms. Clark to cooperate with the permits and allow the home to be repaired. Judge Rowe then reserved on sanctions. Thereafter, the parties agreed to dismiss all cases, and Ms, Clark transferred the home to my client and issued the mortgage, which is at issue in this action. My client then renovated the home and put it in pristine condition. In any event, while the cause of the destruction pre transfer is disputea, one of tne Tew points of agreement between the parties is that the home was in shambles at the time of transfer. At her recent deposition, Ms. Clark testified that the home was “destroyed,” which is consistent with her prior testimony. As the Court is aware (and leaving aside the counterclaims related to Ms. Clark’s collection efforts, which included having a known member of the Italian Mafia call my client to collect), my arguments in this case are primarily 1) that Ms. Clark transferred the loan, and therefore has no standing to bring this race in acenrdance with hlark lattar Florida ctanding law and 2\ in anu avant the laan ie eee ant SCOOT SSMS Wreet saan roeeer sacrtuer seaeter NE ayy tet Gy Cwetey Cte HORT tS. andin excess of the 25% threshold because the price listed in the agreement (to avoid delineating the actual usury) is a fraud. Indeed, despite having an expired real estate license, Ms. Clark claims she never checked the value of the home and her prior lawyer also claimed he had no knowledge of the value. In fact, the value was inflated to hide the illegal usury because the sale price is grossly in excess of actual value even had the home been in good condition, which it clearly was not. In addition, during the 14 month balloon usurious mortgage, Ms. Clark represented to my client that the loan was sold. As a result, Mr. Benun paid someone else (Mr. Shapiro, who is now a third party defendant). Ms. Clark now claims that (despite the fact she stopped depositing money in her account at the same time she previously asserted she transferred the loan) that she lied then and in fact never transferred the note. It is undisputed by Plaintiffs counsel that if she wasn’t lying then, there is a fatal standing defect. However, Plaintiffs counsel claims there is no standing defect because she was lying then, but not now, and now she swears she never transferred the note. (Florida law does not allow standing to be cured post filing, although dismissals based on standing do not bar subsequent foreclosures). In any event, despite the fact that I truly believe my client should win on either usury, standing or both, | am well aware that litigation is a roll of the dice. Further, Ms. Clark likes to make many mentions thatmy client has a criminal past. My client does have a criminal past, but he has rehabilitated himself. Nevertheless, due to his criminal past, he has limited options of where to live as most condominium or homeowner's associations will not grant anyone with a criminal record approval to purchase or lease. For whatever reason, (probably an error) Mr. Benun was approved to live in Broken Sound and therefore the home has value to him that it has to no one else. and whv he agreed to the illegal usury. (My client’s agreement is irrelevant, the mortgage is still void as criminal usury under ‘Florida law). In short, in light of the fact that the home was transferred in a destroyed condition, (an undisputed fact), | do not believe my client has to return it in any condition other than the way it was transferred, regardless of the outcome of this case. With that said, he does not plan to destroy the home, but yes, he does plan to remove the upgrades and whatever else he installed. | also believe it is entirely proper to discuss the possible outcomes in the event Ms. Clark does not accept the settlement. Indeed, | feel it was required as part of the répresentation of my client and is no different than when mediators say “if you don’t settle, you will have to spend tens in thousands in attorneys fees.” In any event, Mr. Gache has been on notice of my position on this legal issue since at least October 2018. Other than take the comments out of context, and threaten my client after my client made similar comments, (see attached), Mr. Gache has not taken any action to have this matter heard by the Court in any proper fashion. Same is unsurprising because the full story described above does not bear well on Ms. Clark’s credibility or her case. Indeed, credibility is crucial to this case as delineated above. | know this goes beyond my comments, but it is important to give the Court the full picture and the history and the Court did say | could submit whatever | thought appropriate in rebuttal. Most importantly, | have clearly stated that the property is in no risk now, and if Mr. Gache believes | am wrong on the law, Mr. Gache should file an injunction. However, Mr. Gache and/or his client made a Strategic saan not to raise the issue properly with the Court. Instead {in my view improperly}, Mr. Gactie ton fi Gtort w Guia pease hearing. Wi ally event, 107 the reasons above, and as evidenced by the attached, | do not feel there was anything wrong with what \ said, or what my client said regarding the condition the home if (and only if), my client loses this case. Admittedly bias, | do not think my client will lose, and the comment was simply an attempt to convince the Plaintiff to settle. In conclusion, | take my ethical obligations very seriously and do not think | said anything wrong. For the first time in 2018. the Florida Bar created a Board Certification for mv snecialty, candominium and planned development law. In 2018, | took the exam and passed and ‘also was board certified not just because | passed, but because my colleagues agreed | was ethical. | have never been sanctioned by a court for any serious matter. Further, the two times a court sanctioned me at UMC for being late with discovery in one case and an answer in another, the sanction orders were later vacated by the same trial judge who entered them after | explained following the UMC hearings. | am also very proud of the fact that | have never been sanctioned or found to have done anything improper by the Florida Bar. | therefore take very seriously the court’s suggestion at this morning’s UMC that it believed the comments in the email attached to Plaintiff's motion where improper. However, | blame same on how Mr. Gache submitted them to Your Honor, which did not tell the full story. Indeed, despite having a very full week (and starting my day early due to the 8:30 UMC in WPB), it was important to me to respond immediately although Your Honor gave me ten days. | thank the Court for taking the time to consider the above and the attached. In addition, to the extent the Court still disagrees and thinks the comments were inappropriate, | apologize. Very Truly Yours, Stuart ZobergSHAPIRO, FISHMAN & GACHE, LLP ATTORNEYS AT LAW Ronald M, Gaché, P.A Managing Litigation Partner 2424 North Federal Highway ~ Suite 360 Boca Raton, FL-33431 Telephone: (561) 287-5599 Facsimile: (561) 287-5589 November 29, 2018 Email: rgache@LOGS,com VIA U.S. MAIL AND EMAIL szoberg@shirlawgroup.com Stuart J. Zoberg, Esq. Shir Law Group, P.A. 2295 NW. Corporate Blvd, Suite 140 Boca Raton, FL 33431 Re: 6654 NW 27 Avenue LLC y. Pincus Capital LLC, et al Palm Beach Circuit Case No. 50-2017-CA-013348-XXXX-MB (AD) Dear Stuart: I was very troubled by the comment your client, Mark Benun (“Mark”), made to my client, Deana Clark (“Deana”), outside the elevator bank on the 9" floor of the courthouse following the conclusion of the hearing that was held on Tuesday of this week on your motion to amend your counterclaim to add a claim for punitive damages.' Although the conversation started with Mark making a settlement proposal to Deana (the substance of which I will not repeat here), the conversation soon turned into one that would not in any fashion be considered a “settlement discussion.” When Deana rejected Mark’s offer, both Deana and I (and presumably you since you were standing right there), as well as Judge Cox (who just happened to be standing at the elevator bank) and an unidentified gentlemen who had been sitting in the back of the courtroom during the hearing, heard Mark specificaily threaten Deana that if she did not accept his settlement proposal, “She would never get the house back in the same condition that it is currently in.” This'threat, that Mark would destroy the interior of the house before he would allow Deana to foreclose her collateral and take the house from him, could in no way be considered a “settlement proposal,” and if Mark were to take such action, it would clearly violate the terms of his mortgage which prohibits the intentional. waste of the property by the mortgagor. Deana is also concerned that Mark’s threat to intentionally do damage to her collateral might be criminal in nature and she is consulting wiin a criminai attorney io determine if that is the case. i would aiso note that this is not the first time that Mark (nor you) has threatened Deana that if she does not capitulate to his demands to settle this case for much less than the face value of the loan, he would be sure that she never gets the house back “in the condition it is currently in,” as I recall him saying the same thing to her off the record during the taking of his deposition back in September, and:you also implying as much in an email you sent me dated October 2, 2018. ' The court had just denied your request to add a claim for punitive damages and it appeared Mark was not happy with that ruling, .November 29, 2018 Page 2 This letter shall serve as formal notice to both you and Mark that his threat to damage Deana’s collateral will not be tolerated and that she is contemplating bringing the matter to the court’s attention, either in the form of a request for injunctive relief, or by some other legally proper fashion. In any event, at a minimum we intend to introduce this correspondence in a future court proceeding (or possibly even at trial) as it has been written at or about the time Mark’s last threat was made. In sum, we expect Mark to honor the terms of the mortgage he signed, including not to commit any waste on the property, and if he does, Deana will take all appropriate legal action available to her, be it in the form of seeking injunctive relief, compensation from him or otherwise. Please advise Mark to govern himself accordingly. Sincerely, CLIADIDA TIOLINsANT & AAMT TTD DILALINU, PIOFUVIAW © UALOL, Lur foe Ronald M. Gaché, P.A. RMG/jc ce: Ms. Deana Clark *Boca Raton Jacksonville *Miami -Tampa2295 N. W. Corporate Blvd Boca Raton, Florida 33431 Ss H IR Office: (561) 999-5999 FAX: 561-893-0999 LAW GROUP SHIR LAW GROUP, P.A ATTORNEYS AT LAW December 5, 2018 STUART J. ZOBERG, ESQ. SZOBERG@SHIRLAWGROUP.COM VIA EMAIL ONLY rgache@logs.com Ronald M Gache, Esq. Managing Litigation Partner 2494 North Federal Hiohway Suite 260 CGCrds uiguway Sune 20U Boca Raton, Fl 33431 Re: Pincus Capital adv. 6654 NW 27 Avenue LLC Dear Mr. Gache: This letter resnonds to vour November 29 2018 letter, which is entirely without merit, Further, as explained below, your letter comes close to crossing an ethical line. I will now respond to each part of your letter. First, you state that you were troubled by a comment made by my client following the hearing. You also suggested the comment was made by my client in anger after losing. Your statement that my client lost the hearing (while technically accurate) is a pure spin. In fact, the Court first determined that an evidentiary hearing was not set. I thought it was set as an evidentiary hearing, and I advised the court that my client was there to testify. However, I wasn’t certain, and regardless, Judge Goodman concluded that an evidentiary hearing was not set and that he would not take testimony. As a result, Judge Goodman asked me if I agreed he should deny it without prejudice, signaling that is what he planned to do. I wanted the Court to hear some of the argument he would be hearing the next time, when it would be clearly set as an evidentiary hearing, and Judge Goodman graciously obliged. At the conclusion of the hearing, the Court did what he opined might be proper at the outset, and denied the motion without prejudice. Simply put, the Court decided that Mr. Benun’s affidavit alone (which did not mention much of what was argued) was not sufficient. Indeed, you argued that my argument wasn’t enough, and testimony was necessary. In any event, after you “won” this hearing, you asked whether you could now set the matter for trial because the pleadings were closed. In response, the Court said you could do as you pleased. However, Judge Goodman also stated that he thought setting the case for trial now was a waste of time. Indeed, I was almost gleeful when Judge Goodman explained (after 1listening to my argument re facts that will be established through testimony next time) that he might grant the motion, which would reopen the pleadings, making setting the trial now premature. In short, while I would have obviously preferred Judge Goodman grant the motion on the spot, I was pretty happy with the Court’s comments in connection with punitive damages. Indeed, Judge Goodman often signals what he intends to do, which is what led you to just agree to the order on amendment. In any event, in light of what has taken place to date in this case, I am quite certain that if Judge Goodman thought the motion was without merit, it would have simply been denied. Instead, he went out of his way to say that he was denying it “at this juncture” and without prejudice. Therefore, I am confident that there is a good chance punitive damages will eventually be allowed to be pled. Same will also allow me to prove your client is lying when she claims poverty and that this is her only asset (irrelevant lies, designed to obtain the sympathy of the prior judges). In any event, Mark Benun was not upset because of the result of the hearing. According to my client, your client was the one who was livid. Indeed, my client advises that he watched your client’s reaction throughout the hearing. Her emotions almost got the best of her when Judge Goodman said “well, we are not on the eve of trial any more.” As a result, my client thought your client would be thrilled with the very generous offer he made her. I also thought your client was absolutely silly to reject it. Indeed, I will waive the settlement privilege if you will so the Court can see how reasonable my client has been in settlement offers. In any event, Mark Benun was not unhappy about the result of the hearing. Rather, he was unhappy because he is spending tens of thousands on me, (not to mention time he does not have to deal with this case) when the case should be settled. Similarly, Mark Benun was shocked and upset that your client rejected an offer that was quite generous, despite the fact the Court made it clear you might lose on the punitive damages issue. Following her rejection of a very generous settlement offer, Mark advised her (in an effort to convince her to settie, not threaten her), that (as you state in your letter), “she wouid never get the house back in the same condition it is currently in.” Perhaps Judge Cox was shocked because he does not know the context, but you should not have been. More specifically, as I have also told you in the past repeatedly, your client transferred the home in shambles. Thereafter, my client spent probably over $50,000.00 renovating it. The fact that it was in shambles is evidenced not just by what I know from my experience a ir illegal self help eviction, Judge Artau (after a several hour evidentiary hearing) ordered your client to let my client back into the property. (Judge Artau held the hearing because almost all the judges were away at the summer judicial conference, and yet it was still deemed to be important enough to have one of the only judges at the courthouse hear it because of how blatantly violative of Florida law your client’s actions were).! More ridiculously, (perhaps hoping for a second bite at the apple with the division judge), your client refused to comply with aatinn wrhinh was alan qrantad ICUULL, WIC Was aidU Blaileu, tha iniunntinn nanancitating anathae matian far amaraanay uid MUNCH, HECESSiaung aiouier MoUGH Lor cme;rgency 'T remain convinced her illegal action was timed accordingly. 2At the second emergency injunction hearing, your client testified that the home was very unsafe and in disrepair. Judge Rowe found same was not grounds to ignore Judge Artau’s order (albeit being concerned about the state of the home, and thus addressing certain of the repairs). Judge Rowe also deferred on sanctions which were almost certainly going to be awarded. Same were not addressed because the hearing was granted on an emergency basis, and sanctions are obviously not an emergency. In any case, as I have advised you in the past on a number of occasions, it is my opinion that under the circumstances, (and assuming for the sake of argument only my client loses the foreclosure), that my client has the right to remove his improvements. While this may have sounded scandalous to Judge Cox, he obviously doesn’t know the context. However, I am also sure Judge Cox would form a different opinion if he learned that your client contacted actual mobsters (who the FBI was concerned were threatening judges) to “mediate” the dispute with my client and more importantly, transferred a home that by her own testimony, was unsafe to live in. If you disagree with my legal opinion, you certainly have plenty of time to seek whatever relief you deem appropriate. Frankly, you have had plenty of time already. Indeed, you admit that I wrote about this at least as far back as October 2, 2018. I think it dates back even farther. Regardless, you have had at least 60 days since we first discussed this, and you have cited me nothing to suggest I am incorrect, nor taken any legal action. To avoid any request for emergency relief around the holidays, there is no imminent threat of anything. Obviously, while my client is living there, he has no intention of doing anything. While he does not expect to lose, should he lose, he intends to remove his improvements because your client is entitled back to exactly what she transferred, nothing more. To the extent you disagree, you are free to get a judge to rule on the issue in the civil courthouse. In any event, while your threat of civil action is appropriate (albeit erroneous), the threat of criminal prosecution is beyond the pale. I would urge you to give this letter to any criminal attorney that she consults so that he or she is not reacting to only one side of the story. In addition, I note that threatening to report something to the criminal authorities “solely” to gain an advantage in a litigation is an ethical violation. More specifically, the rule prohibits the following conduct: “ (g) present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter...” FL BAR Rule 4-3.4 See also The Florida Bar yv. Committe, 136 So.3d 1111 (FI. 2014) (Attorney violated bar rule where attorney wrote to United States Attorney, accusing the defendant of attempting to extort money from him and a ens 4 Le rea attorney had an obligation to report, and attorney's filing of a baseless allegation was not protected by First Amendment.) To be clear, I have no intention of reporting you to the Florida Bar because I am going to give you the benefit of the doubt. As stated above, the rule requires you to threaten criminal prosecution “solely” to gain an improper advantage. I am going to assume that this was not the aala vancnn Unwavar teand aavafally, and mala onra 2 aaneidar tha har enlas hafara war SG TeasSon. OWeVEr, UCau CarCiuny, atu Mane Sure you ComsiGer Wie var Tues oCLore youmake such outrageous and baseless threats in the future. I trust my position is clear, as it should have been over sixty days ago when we discussed it in detail on the telephone.