Preview
Filing # 133951574 E-Filed 09/02/2021 02:50:16 PM
IN THE CIRCUIT COURT OF THE SEVENTEENTHJUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA
CASE NO: CACE 19-21666
DIVISION: 11
FREEDOM MORTGAGE CORPORATION,
Plaintiff,
VS
ANDRE ST. STEVE KIFFIN, et. al.
Defendant i
DEFENDANT'S VERIFIED MOTION FOR REHEARING
COMES NOW the Defendant, ANDRE ST. STEVE KIFFIN and pursuant to
Florida Rules of Civil Procedures 1.530, files this Verified Motion for Rehearing of the
Court's August 18, 2021 Final Judgment of Foreclosure and as grounds thereof states
that:
Background
As admitted by Plaintiff, this matter arises out of an FHA Note and Mortgage
ind
originatedby Defendant Andre St. Steve Kiffin for the property located at 2126 N. 32
Avenue, Hollywood, Florida 33021.
On March 1, 2020, the President o f the United States proclaimed that the COVID-
19 outbreak in the United States constitutes a national emergency. In addition, this
pandemic impeded the ability of Americans to work and provide for their families. This
directlyimpacted the financial wellbeing of individuals, families, and businesses.
Therefore, on March 18, 2020 the Secretary of HUD issued Mortgagee Letter
2020-04 which authorized a national moratorium on foreclosuresin the United States.
1
***
FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 09/02/2021 02:50:16 PM.****
On March 27, 2020, the United States Congress enacted the Coronavirus Aid,
Reliefand Economic Security Act of 2020 ("CARES Act"), which provides for financial
relief due to the COVID-19 Virus Pandemic.
On December 23,2020, Plaintiff filed a status report acknowledging that "this is
an FHA loan subject to a moratorium issued by the U.S. Department of Housing and
Urban Development." Clearly however, in that same paragraph (10) of its December 23,
2020 status report, Plaintiff also requested that the Court set this case for trial -
sometime
after February 28,2021. In most Florida foreclosure cases, "moving" for, or requesting a
Court for a "trial" date is equivalent to moving for or requesting the Court for a final
judgment of foreclosure date.
Shortly thereafter, the Court essentially granted Plaintiff's request for a trial/final
judgment date by entering a January 6, 2021 order scheduling this FHA foreclosure case
for a May 5, 2021 trial date. As Plaintiff's attorney is well aware, the completion of the
May 5, 2021 foreclosure trial, would have directly resulted into the entry of a final
judgment of foreclosure.
On April 22, 2021, Plaintiff made a more formal "move" towards a final
judgment of foreclosure by filing a motion to "continue" (or reschedule) the May 5, 2021
trial/final judgment date. Surely, Plaintiff's attorneys Robertson, Anschutz, Schneid,
Crane & Partners, PLLC, a seasoned and well experienced law firm (exclusively
representing foreclosure Plaintiffs), knows that a more prudent "move" would have been
to file a motion to strike (or vacate) the original trial order. Instead, Plaintiff specifically
ask the Court to schedule another trial/final judgment date.
2
On May 5,2021 the Court scheduled another final judgment/trial date (as Plaintiff
requested) -
this time, for August 17,2021.
Plaintiff filed a second motion to continue/reschedule the trial/final judgment date
on August 11, 2021.
On August 18, 2021, the Court entered an order denying Plaintiff's August 11,
2021 motion to reschedule the August 17, 2021 trial/final judgment date. The Court
thereafter entered an August 18, 2021 final judgment of foreclosure.
Argument
As earlier stated, on March 27, 2020, Congress enacted the Coronavirus Aid,
Reliefand Economic Security Act of 2020 ("CARES Act"), which provides for financial
relief due to the COVID-19 Virus Pandemic. As argued below, Section 4022 of the
CARES Act provided a moratorium on residential foreclosures from March 27, 2020
until its expiration date which was July 31,2021.
Under the Act (and the extensions thereof), mortgage servicers of any federally
backed 1 -4 family mortgage loan is prohibited from taking certain steps in any judicial or
non-judicialforeclosure process.
Section 4022 of the CARES Act defines the term "federally backed mortgage
loan" to include any loan which is secured by a first or subordinate lien on residentialreal
property that is "insured by the Federal Housing Administration under title II of the
National Housing Act" (12 U.S.C. 1707 et seq.)(EmphasisAdded)
Additionally, subsection (c)(2) of Section 4022 provides that with the exception
of vacant or abandoned properties, a servicer of a federally backed mortgage loan (such
as Plaintiff, Freedom Mortgage), may not: 1) initiate any judicial or non-judicial
3
foreclosure process; 1) move for a
forectosurejudgment or order of sale; or 3) execute a
foreclosure-related eviction or foreclosure sale. (Emphasis added).
In this case, Plaintiff Freedom Mortgage (acting as its own servicer) violated
"
section 4022(c)(2) of the CARES Act when it "moved for a foreclosure judgment' on
April 22, 2021. It is without dispute that Plaintiff's April 22, 2021 motions for a
foreclosure judgment/trial, was clearly filed after March 27,2020 and before July 31,
2021.
Although Defendant disagrees with Plaintiff that a motion for continuance was
the appropriate action to ensure Plaintiff's compliance with the CARES Act, Defendant
agrees with Plaintiff that there are three elements that the trial court should consider when
ruling on a motion to continue are. And those are: (1) whether the movant suffers
injustice from the denial of the motion; (2) whether the underlying cause for the motion
was unforeseen by the movant and whether the motion is based on dilatory tactics; and
(3) whether prejudice and injustice will befall the opposing party if the motion is granted.
Vollmer v. Key Dev. Properties, Inc., 966 So.2d 1022 (Fla. 2nd DCA 2007).
Here, Plaintiff could have easily avoided the requirement of the trial court to
consider the elements as outlined in Follmer, if it would had requested the Court to strike
or vacate the trial order -
instead, Plaintiff chose to specifically ask the Court to schedule
a new trial/final judgment date.
WHEREFORE, I, the Defendant Andre St. Steve Kiffin prays that this
Honorable Court grant this motion for rehearing and deny Plaintiff a final judgment of
Foreclosureand for such other relief this Court deems necessary and just.
4
Verification
Under penalty of perjury, I declare that I have read the foregoing, and the facts
alleged therein are true and correct to the best of my knowledge and belief.
/s/ Andre St. Steve Kiffin
Andre St. Steve Kiffin
2126 N. 32nd Avenue
Hollywood, Florida 33021
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
provided by U.S. Mail, electronic mail and/or Florida's e-Filing Portal on this 2nd day of
September, 2021 to the Plaintiff's Attorney at:
ROBERTSON, ANSCHUTZ &
SCHNEID, P.L.
6409 Congress Avenue, Suite 100
Boca Raton, Florida 33487
Telephone: (561) 241-6901
Fax: (561) 997-6909
Email: mail@rasflaw.com
/s/ Andre St. Steve Kiffin
Andre St. Steve Kiffin
5
Preview
Filing # 133951574 E-Filed 09/02/2021 02:50:16 PM IN THE CIRCUIT COURT OF THE SEVENTEENTHJUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO: CACE 19-21666 DIVISION: 11 FREEDOM MORTGAGE CORPORATION, Plaintiff, VS ANDRE ST. STEVE KIFFIN, et. al. Defendant i DEFENDANT'S VERIFIED MOTION FOR REHEARING COMES NOW the Defendant, ANDRE ST. STEVE KIFFIN and pursuant to Florida Rules of Civil Procedures 1.530, files this Verified Motion for Rehearing of the Court's August 18, 2021 Final Judgment of Foreclosure and as grounds thereof states that: Background As admitted by Plaintiff, this matter arises out of an FHA Note and Mortgage ind originatedby Defendant Andre St. Steve Kiffin for the property located at 2126 N. 32 Avenue, Hollywood, Florida 33021. On March 1, 2020, the President o f the United States proclaimed that the COVID- 19 outbreak in the United States constitutes a national emergency. In addition, this pandemic impeded the ability of Americans to work and provide for their families. This directlyimpacted the financial wellbeing of individuals, families, and businesses. Therefore, on March 18, 2020 the Secretary of HUD issued Mortgagee Letter 2020-04 which authorized a national moratorium on foreclosuresin the United States. 1 *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 09/02/2021 02:50:16 PM.**** On March 27, 2020, the United States Congress enacted the Coronavirus Aid, Reliefand Economic Security Act of 2020 ("CARES Act"), which provides for financial relief due to the COVID-19 Virus Pandemic. On December 23,2020, Plaintiff filed a status report acknowledging that "this is an FHA loan subject to a moratorium issued by the U.S. Department of Housing and Urban Development." Clearly however, in that same paragraph (10) of its December 23, 2020 status report, Plaintiff also requested that the Court set this case for trial - sometime after February 28,2021. In most Florida foreclosure cases, "moving" for, or requesting a Court for a "trial" date is equivalent to moving for or requesting the Court for a final judgment of foreclosure date. Shortly thereafter, the Court essentially granted Plaintiff's request for a trial/final judgment date by entering a January 6, 2021 order scheduling this FHA foreclosure case for a May 5, 2021 trial date. As Plaintiff's attorney is well aware, the completion of the May 5, 2021 foreclosure trial, would have directly resulted into the entry of a final judgment of foreclosure. On April 22, 2021, Plaintiff made a more formal "move" towards a final judgment of foreclosure by filing a motion to "continue" (or reschedule) the May 5, 2021 trial/final judgment date. Surely, Plaintiff's attorneys Robertson, Anschutz, Schneid, Crane & Partners, PLLC, a seasoned and well experienced law firm (exclusively representing foreclosure Plaintiffs), knows that a more prudent "move" would have been to file a motion to strike (or vacate) the original trial order. Instead, Plaintiff specifically ask the Court to schedule another trial/final judgment date. 2 On May 5,2021 the Court scheduled another final judgment/trial date (as Plaintiff requested) - this time, for August 17,2021. Plaintiff filed a second motion to continue/reschedule the trial/final judgment date on August 11, 2021. On August 18, 2021, the Court entered an order denying Plaintiff's August 11, 2021 motion to reschedule the August 17, 2021 trial/final judgment date. The Court thereafter entered an August 18, 2021 final judgment of foreclosure. Argument As earlier stated, on March 27, 2020, Congress enacted the Coronavirus Aid, Reliefand Economic Security Act of 2020 ("CARES Act"), which provides for financial relief due to the COVID-19 Virus Pandemic. As argued below, Section 4022 of the CARES Act provided a moratorium on residential foreclosures from March 27, 2020 until its expiration date which was July 31,2021. Under the Act (and the extensions thereof), mortgage servicers of any federally backed 1 -4 family mortgage loan is prohibited from taking certain steps in any judicial or non-judicialforeclosure process. Section 4022 of the CARES Act defines the term "federally backed mortgage loan" to include any loan which is secured by a first or subordinate lien on residentialreal property that is "insured by the Federal Housing Administration under title II of the National Housing Act" (12 U.S.C. 1707 et seq.)(EmphasisAdded) Additionally, subsection (c)(2) of Section 4022 provides that with the exception of vacant or abandoned properties, a servicer of a federally backed mortgage loan (such as Plaintiff, Freedom Mortgage), may not: 1) initiate any judicial or non-judicial 3 foreclosure process; 1) move for a forectosurejudgment or order of sale; or 3) execute a foreclosure-related eviction or foreclosure sale. (Emphasis added). In this case, Plaintiff Freedom Mortgage (acting as its own servicer) violated " section 4022(c)(2) of the CARES Act when it "moved for a foreclosure judgment' on April 22, 2021. It is without dispute that Plaintiff's April 22, 2021 motions for a foreclosure judgment/trial, was clearly filed after March 27,2020 and before July 31, 2021. Although Defendant disagrees with Plaintiff that a motion for continuance was the appropriate action to ensure Plaintiff's compliance with the CARES Act, Defendant agrees with Plaintiff that there are three elements that the trial court should consider when ruling on a motion to continue are. And those are: (1) whether the movant suffers injustice from the denial of the motion; (2) whether the underlying cause for the motion was unforeseen by the movant and whether the motion is based on dilatory tactics; and (3) whether prejudice and injustice will befall the opposing party if the motion is granted. Vollmer v. Key Dev. Properties, Inc., 966 So.2d 1022 (Fla. 2nd DCA 2007). Here, Plaintiff could have easily avoided the requirement of the trial court to consider the elements as outlined in Follmer, if it would had requested the Court to strike or vacate the trial order - instead, Plaintiff chose to specifically ask the Court to schedule a new trial/final judgment date. WHEREFORE, I, the Defendant Andre St. Steve Kiffin prays that this Honorable Court grant this motion for rehearing and deny Plaintiff a final judgment of Foreclosureand for such other relief this Court deems necessary and just. 4 Verification Under penalty of perjury, I declare that I have read the foregoing, and the facts alleged therein are true and correct to the best of my knowledge and belief. /s/ Andre St. Steve Kiffin Andre St. Steve Kiffin 2126 N. 32nd Avenue Hollywood, Florida 33021 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been provided by U.S. Mail, electronic mail and/or Florida's e-Filing Portal on this 2nd day of September, 2021 to the Plaintiff's Attorney at: ROBERTSON, ANSCHUTZ & SCHNEID, P.L. 6409 Congress Avenue, Suite 100 Boca Raton, Florida 33487 Telephone: (561) 241-6901 Fax: (561) 997-6909 Email: mail@rasflaw.com /s/ Andre St. Steve Kiffin Andre St. Steve Kiffin 5