Preview
Filing # 104277761 E-Filed 03/03/2020 04:45:28 PM
IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA
FREEDOM MORTGAGE CORPORATION CASE NO.: CACE 19-021666
Plaintiff,
VS.
ANDRE ST STEVE KIFFIN
Defendant.
AMENDED MOTION TO VACATE DEFAULT
COMES NOW, Defendant, ANDRE ST STEVE KIFFIN, by and through his
undersigned counsel, and pursuant to Fla. R. Civ. P. 1.540(b) hereby files this Amended Motion to
Vacate Default and in support thereof, states as follows:
1 On October 18, 2019, Plaintiff filed this Complaint for Foreclosure of Mortgage.
2 On or about November 4, 2019, Defendant, ANDRE ST STEVE KIFFIN, was
allegedly served with Plaintiff's Complaint.
3 However, Defendant does not remember been served with the Summons and
Complaint on November 4, 2019.
4 Per Affidavit attached to this Motion, Defendant is 28 years old, 5°10 and weighs
220 pounds. See Exhibit “A”.
5 The description of the person served on the Return of Service does not match the
characteristics of the Defendant. The Return of Service describes the person as follows: Age:40,
Height S°9, and Weight 160 Ibs. See Exhibit “B”.
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 03/03/2020 04:45:27 PM.****
6 Thus, it appears that Defendant was in fact never served personally with the
Summons and Complaint.
7
Defendant has received all pleadings and correspondence pertaining to this lawsuit
by regular U.S. mail.
8 When Defendant found out about the lawsuit, he called the bank to ask for more
time in order to negotiate a settlement, possibly a short sale.
9. Defendant did not know he had to answer the complaint because he thought the bank
had given him more time to settle the case.
10. Defendant suffers from a mental condition that prevents him from understanding
legal or complex documents. Due to time constraints, undersigned counsel does not have any
medical records regarding Defendant’s condition. But will provide if this Court determines such
document is needed.
11. Due to a misunderstanding or lack of understanding thereof, Defendant was unable
to respond to Complaint.
12. As a result, a default was entered on December 4, 2019 against the Defendant.
13. Immediately thereafter, on December 19, 2019, this Court issued an Order setting
case for trial on March 4, 2020.
14. Undersigned counsel has recently been retained by Defendant to represent him in
this matter.
15. Fla. R. Civ. P. 1.540(b) states, in relevant part: “On motion and upon such terms as
are just, the court may relieve a party or a party's legal representative from a final judgment, decree,
order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable
neglect.”
Page 2 of 5
16. In order for the Court to grant a motion to set aside a default, the moving party is
required to show the trial court three things: 1) the party’s failure to file a responsive pleading was
due to excusable neglect; 2) the movant has a meritorious defense to the underlying action; and 3)
the moving party acted “with due diligence in seeking relief from the default.” See Lazcar
International vy. Caraballo, 957 So.2d 1191 (Fla.3™ DCA 2007).
17. It is undisputed that trial courts in this state apply principles of "liberality" when
considering a motion to set aside a default. Rosenblatt v. Rosenblatt, 528 So.2d 74, 75-76 (Fla. 4th
DCA 1988).
18. Default judgments are generally not favored by the courts, and a court's discretion
should be liberally exercised and all reasonable doubt resolved in favor of granting applications for
relief so as to permit a determination of the controversy upon the merits. Paul v. Wells Fargo Bank,
N.A., 68 So.3d 979, 985 (Fla. 2d DCA 2011).
19, Per Richards v. Crowder, 191 So.3d 524 (Fla. 4" DCA 2016), “Florida courts have
recognized that illness or psychological conditions, as well as difficulties with reading and
comprehending, can form the basis of a finding of excusable neglect warranting relief from
judgment.” See also, Paul v. Wells Fargo Bank, N.A., 68 So.3d 979, 985 (Fla. 2d DCA 2011) ;
Franklin v. Franklin, 573 So.2d 401, 403 (Fla. 3d DCA 1991) ; Rosenblatt v. Rosenblatt, 528 So.2d
74, 75-76 (Fla. 4th DCA 1988).
20. In Noel v. James Nutter & Company, 232 So.3d 1112 (Fla. 3d DCA 2017), the Third
DCA stated, in relevant part:
Rule 1.540(b)(1)" ‘envisions an honest mistake made during the regular course of
litigation, including those that result from oversight, neglect, or accident. on Ocwen
Loan Servicing, 185 So.3d at 629 (quoting Paladin Props. v. Family Inv. Enters.,
952 So.2d 560, 562 (Fla. 2d DCA 2007)). "Excusable neglect is found ‘where
inaction results from clerical or secretarial error, reasonable misunderstanding, a
system gone awry or any other of the foibles to which human nature is heir.’ " Elliott
Page 3 of 5
v. Aurora Loan Servs. LLC, 31 So.3d 304, 307 (Fla. 4th DCA 2010) (quoting
Somero v. Hendry Gen, Hosp., 467 So.2d 1103, 1106 (Fla. 4th DCA 1985)).
21. Defendant contacted the bank and requested more time to allow him to negotiate a
settlement with the bank. Defendant was under the impression that by contacting the bank and
requesting more time, he had acted with due diligence and no further action was required on his
part.
22. Defendant’s inexperience with the legal proceedings and difficulty with reading and
understanding the pleadings due to his mental condition can form a basis of finding of excusable
neglect.
23. Defendant’s failure to timely file a responsive pleading was due to excusable
neglect.
24. Defendant is currently attempting to settle this case with Plaintiff. Defendant has
submitted a short sale package to Plaintiff on February 20, 2020.
25. Defendant has meritorious defenses to the underlying action and will file an Answer
and Affirmative Defenses accordingly.
26. Defendant has acted with due diligence in seeking relief from the default by
retaining the undersigned to represent him in this lawsuit prior to trial. After discovering that a
default had been entered against him, the Defendant acted quickly in filing the Motion to Vacate
Default.
27. The elements of excusable neglect must be proven by sworn statement or affidavit.
DiSarrio v. Mills, 711 So.2d 1355, 1356 (Fla. 2d DCA 1998); Schauer v. Coleman, 639 So.2d 637,
638-639 (Fla.2d DCA 1994). Defendant’s Affidavit is hereby attached as Exhibit “A”.
28. The Defendant’s Answer and Affirmative Defenses has been attached with this
motion to demonstrate the meritorious defense. See Exhibit “C”.
Page 4 of 5
29. As such, Defendants respectfully request entry of an Order Vacating the Default
entered on December 4, 2019.
WHEREFORE, the Defendant hereby moves this Court for an Order vacating the default
entered on December 4, 2019 against Defendant, ANDRE ST STEVE KIFFIN, giving the
Defendant an opportunity to defend himself against the action and any other relief that this Court
deems to be just and appropriate.
RESPECTFULLY SUBMITTED,
/s/ Rosalind J. Matos, Esquire
ROSALIND J. MATOS, ESQUIRE
MATOS LEGAL, PLLC
Attorney for Defendant
2645 Executive Park Drive, Suite 676
Weston, FL 33331
rosalind@matoslegal.com
Telephone: (954) 531-5658
Florida Bar No.: 474967
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was filed with the
Clerk of the Court via E-Filing Portal and served via ePortal E-Mail to: Jonathan Meisels, Esq.
Robertson, Anschutz & Schneid, P.L., 6409 Congress Avenue, Suite 100, Boca Raton, FL 33487,
mail @rasflaw.com, on this 3" day of March 2020.
/s/ Rosalind J. Matos, Esquire
ROSALIND J. MATOS, ESQUIRE
Florida Bar No.: 474967
Page 5 of 5
JUDICIAL CIRCUIT
IN THE CIRCUIT COURT OF THE SEVENTEENTH
A
IN AND FOR BROWARD COUNTY, FLORID
FREEDOM MORTGAGE CORPORATION CASE NO.: CACE 19-021666
Plaintiff,
vs.
ANDRE ST STEVE KIFFIN
Defendant.
DR SEEVI KIF EIN IN POR
AFFID OF A
Dt NTO
who
‘BEFORE. ME the undersigned personally appeared, ANDRE ST STEVE KIFFIN,
after being duly sworn deposes and says the following:
1 Affiant states that he is a Defendant in the above-captioned case and has personal
knowledge of the facts pertaining to the above-captioned lawsuit.
2. Affiant states that he is 28 years old and was born on January 11,1992.
3 Affiant states that he is 5°10. and weighs 220Ibs.
4, s
Affiant states that he does not remember been served with the Summonand
Complaintion November 4, 2019.
5 the lawsuit, he called the Plaintiffto ask
Affiant states that once he found out about
for more time in order to negotiate a short sale with the bank.
6 Affiant states that he did not know he had to answer the complaint because he
the bank had given him more time to settle the case.
thought
EXHIBIT
A
a
AFFIANT SAYETH FURTHER NAUGHT
d.
ANDRE F SHEVE KIFFIN
STATE OF
COUNTYOF Rae ach
BEFORE ME. the undersigned authority, this ©" day-of March 2020,
personally appeared ANDRE ST STEVE KIFFIN, who is ( ) personally known or (<—~J
produced identification (type of identification produced ok LA_* O <_), and upon being
first duly sworn. according to law, depoyes and says that he/she executed the foregoing and that the
statements and allegations contained therein are true and correct to the best. of his/her knowledge and
belief.
Brian Hausteld
tM ion # FPO7I020
Apel
Bonded thru
7, 2020
Aaron Notary LR
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Commissioner stamp:
Page
2 of 2
Filing # 98730510 E-Filed 11/12/2019 12:41:21 PM
RIFIED RETURN OF RVI E
State of FL County of Broward Seventeenth Court
UNTO ll
Case Number: CACE-19-021666
Plaintiff.
FREEDOM MORTGAGE CORPORATION
vs.
Defendant:
ANDRE ST. STEVE KIFFIN; UNKNOWN SPOUSE OF ANDRE ST. STEVE KIFFIN
For:
Robertson, Anschutz & Schneid, P.L.
6409 Congress Ave., Suite 100
Boca Raton, FL 33487
Received by A Better Process on the 29th day of October, 2019 at 11:07 am to be served on ANDRE ST. STEVE KIFFIN A/K/A A.
KIFFIN, 2126 N 32ND AVE, HOLLYWOOD, FL 33021
|, Robin Pennington, do hereby affirm that on the 4th day of November, 2019 at 7:55am,
INDIVIDUALLY/PERSONALLY served in accordance with Florida Statute, Chapter 48.031 by delivering a true copy of the
SUMMONS, NOTICE OF LIS PENDENS, NOTICE OF SUBMITTING FLA.STAT. 702.015(4) CERTIFICATION, VERIFIED
COMPLAINT FOR FORECLOSURE OF MORTGAGE WITH EXHIBITS with the date and hour of service endorsed thereon by me, to:
ANDRE ST. STEVE KIFFIN A/K/A A. KIFFIN at the address of: 2126 N 32ND AVE, HOLLYWOOD, FL 33021, and informed said
person of the contents therein, in compliance with Florida Statutes, Chapter 48.031.
Military Status: Based upon inquiry of party served, Defendant is not in the military service of the United States of America
Marital Status: Based upon inquiry of party served, Defendant is not married.
Description of Person Served: Age: 40, Sex: M, Race/Skin Color: Black, Height: 5'9", Weight: 160, Hair: Black, Glasses: N
| certify that | am over the age of 18, have no interest in the above action, and am a Certified Process Server, in good standing, in the
judicial circuit in which the process was served, and have proper authority in the jurisdiction in which the service was made. Under
penalties of perjury, | declare that | have read the foregoing document and that the facts stated in it are true and correct. Notary not
required pursuant to Florida Statute 92.525 verification of documents.
Robi Penningt
SPS 727
A Better Process
1095 NW BROKEN SOUND PARKWAY
Suite 203
Boca Raton, FL 33487
(561) 981-6436
Our Job Serial Number: ABR-2019029981
Ref: 19-376234
EXHIBIT
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Copyright© 1992-2019 Database Services, inc. - Process Server's Toolbox V8.0
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Case Number: CACE-19-021666 Division: 11
Filing # 97519994 E-Filed 10/18/2019 01:40:20 PM
IN THE CIRCUIT COURT OF THE SEVENTEENTH
JUDICIAL CIRCUIT, IN AND FOR BROWARD
COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO:
FREEDOM MORTGAGE CORPORATION,
Plaintiff,
ANDRE ST. STEVE KIFFIN A/K/A A. KIFFIN,
etal.
Defendant(s).
balls 8NoatuteINIT48.0374
L.DYWBADGI
Tune”
(5)
MARRIED (¥) (Ny MILITARY (Y) «N)
SUMMONS
To all and singular the Sheriffs of the state:
YOU ARE COMMANDED to serve this summons and a copy of the complaint in this action on defendant(s):
ANDRE ST. STEVE KIFFIN A/K/A A. KIFFIN
2126 N 32ND AVE
HOLLYWOOD, FL 33021
A lawsuit has been filed against you. You have 20 calendar days after this cummons is served on you to file a
written response to the attached complaint with the clerk of this court. A phone call will not protect you. Your
written response, including the case number given above and the names of the parties, must be filed if you want the
court to hear your side of the case. If you do not file your response on time, you may lose the case, and your wages,
money, and property may thereafter be taken without further warning from the court. There are other legal
requirements. You may want to call an attorney right away. If you do not know an attorney, you may call an
attorney referral service or a legal aid office (listed in the phone book). If you choose to file a written response
yourself, at the same time you file your written response to the court you must also mail or take a copy of your
written response to the “Plaintiff's/ Plaintiff's Atomey” named below,
Robertson, Anschutz & Schneid, P.L.
Jonathan Meisels, Esquire
Service Email: mail@rasflaw.com
Attomey for Plaintiff
6409 Congress Avenue, Suite 100
Boca Raton, Florida 33487
Telephone: 561-241-6901
Fax: 561-997-6909
Aull
% rane
CLERK OF THE CIR\
OCT 24 2019 ge
+8}
Dated: a
Deputy Clerk of
BRENDAD. FORMAN
LUE YAU TEAR OLEATE LUA
PAGE 1
19-376234
*** FILED; BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 10/18/2019 01:40:18 PM.**#*
2
Usted ha sido demandado legalmente. Tiene 20 dias contados a partir del recibo de esta notificacion pura contestar ta
demanda adjunta, par escrito, y presentarle ante este tribunal. Una Hamada tclefonica no lo protegera. Si usted desea
que el tribunal considere su defensa, debe presentar su respuesta por escrito, incluyendo ef numero de caso y los
nombres de las partes interesadas. Si usted no contesta la demanda a tiempo. pudiese perder el caso y podria ser
despojado de sus ingresos y propiedades a privado de sus derechos, sin previo aviso del tribunal. Existen otros
requisitos legales. Si lo desea puede used consukar a un abogado inmediatemente. Si no conoce a un abugado, puede
amar @.una de las oficinas de asistencia legal que aparencen en la guia telefonica.
Si desea responder a la demanda por su cucnta, al mismo ticmpo en que presenta su respuesta ante el tribunal debera
usied enviar par correo 0 entregar una copia de su respuesta a la persona demoninada abajo como "Plaintiff / Plantiff
Attorney" (Demandante 0 Abogado del Demandante).
Des poursuites judiciares ont ete enreprises contre vous. Vous avez 20 jours consecutifs a partir de la date de
Passignation de cette citation pour deposer une response ecrite a ta plainte ci-jointe aupres de ce tribunal. Un simple
coup de telephone est insuffisent pour vous proteger. Vous etes obliges de deposer votre reponse ecrite, avec
mention du numero de dossier ci-dessus et du nom des parties nommees ici, si vouse souhaitez que Je tribunal
entende votre cause. Si vous ne deposez pas votre reponse ecrite dans le delai requis, vous risquez de perdre la cause
ainsi que votre salaire, votre argent., et vos blens peuvent etre saisis par la suite, sans aucun preavis ulterieur du
tribunal. II y a d'autres obligations juriduques et vous pouvez requerir les services immediates.d' un avocat, Si vous
ne connaiassez pas d'avocate. vous pourriez telephoner a un service de reference d'avocats ou @ un bureau
assistance juridique (figurant a !annuaire de telephones).
If you are a person with a disability who needs any accommodation in order
to participate in third proceeding, you are entitled, at no cost to you, to the
provision of certain assistance. Please contact the ADA Coordinator, Room
WW20140, 201 S.E. Sixth Street, Fort Lauderdale, Florida 33301, 954-831-
7721 at least 7 days before your scheduled court appearance, or immediately
upon receiving this notification if the time before the scheduled appearance is
less than 7 days; if you are hearing or voice impaired, call 711.
De acuerdo-cun el Acta de los Americanos con Inpedimentas, aquellas personas que necesiten de algun servicio
especial para participar cn este proceso 4 tener acceso a servicios, programas o actividades de La Cone deberan,
dentro de un periodo rasonable antes de cualquier proceso o de tener necesidad de acceso a servicios, programas 0
actividades, ponerse en contacto con La Oficina Administrativa de La Corte, que esti situada en el BROWARD, 0 8
los telefonos 407-665-4411 0 1-800-955-8771 (IDD) y Si usa el servicio Florida Relay Service al $-800-955-8770
(WV).
OLE .
Diapre' ako kite fet avek Akt Pou Amerikin ki Infim, tout moun ki genyen yon bezwen espesyal pou akomodasyon
Pou yo patisipe nan pwose obyen pou gin aks. Sevis, pwogram ak aktivite tibinal-la, dwe nan yon tan rezonab anvan
‘okin pwose oubyen bezwen akse scvis, pwogram oubyen aktivite ret, yo dwe konta Ofis Tribinal-la ki nan
BROWARD, nimero telefonn-nanse 407-665-4411, ou byen 1-800-955-8771 (IDD) ou byen 1-800-955-8770 (V) an.
pasan pa Florida Relay Service.
£n accordance avec I'Acte Pour Jes Americains Incapacites’, les personnes en besoin d'une accommodation special
pour participer a ees procedures, ou bien pour avoir acces au service, progamme, ou activite de la Coun doivent,
dans un temps raisonable, avant aucune procedures ou besoin d’acces de service, programme ou activiie, contacter
VOrtice Administrative de La Court, situe au numero BROWARD. le numero de telephone 407-665-441 1, ou 1-800-
955-8771 (TOO), ou 1-800-955-8770 (V)ou par Florida Relay Service.
PAGE 2
IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA
FREEDOM MORTGAGE CORPORATION CASE NO.: CACE 19-021666
Plaintiff,
vs.
ANDRE ST STEVE KIFFIN
Defendant.
ANSWER AND AFFIRMATIVE DEFENSES
COMES NOW, Defendant, ANDRE ST STEVE KIFFIN, by and through his undersigned
counsel, hereby files this Answer and Affirmative Defenses to Plaintiff's Complaint to Foreclose
Mortgage and states as follows:
1 Defendants admit the allegations of Paragraph | for jurisdictional purposes only.
2 Defendants admit the allegations of Paragraph 2 for jurisdictional purposes only.
3 Defendants deny the allegations of Paragraph 3 and demand strict proof thereof.
Defendants deny the allegations of Paragraph 4 and demand strict proof thereof.
Defendants deny the allegations of Paragraph 5 and demand strict proof thereof.
Defendants deny the allegations of Paragraph 6 and demand strict proof thereof.
Defendants deny the allegations of Paragraph 7 and demand strict proof thereof.
Defendants deny the allegations of Paragraph 8 and demand strict proof thereof.
Defendants deny the allegations of Paragraph 9 and demand strict proof thereof.
10. Defendants admit the allegations of Paragraph 10.
EXHIBIT
C
g
2
3
11 Defendants deny the allegations of Paragraph 11 and demand strict proof thereof.
12 Defendants deny the allegations of Paragraph 12 for lack of knowledge.
13 Defendants deny the allegations of Paragraph 13 for lack of knowledge.
14 Defendants deny the allegations of Paragraph 14 for lack of knowledge.
FIRST AFFIRMATIVE DEFENSE
PLAINTIFF IS NOT THE REAL, RTY IN INTEREST /
LACK OF STANDING
15. Plaintiff is not the real party in interest and is not authorized to bring this suit. Under
Florida Rule of Civil Procedure 1.210 (a) only the “real party in interest” has standing to bring suit.
Standing requires that the party prosecuting the action have a sufficient stake in the outcome and that the
party bringing the claim be recognized in the law as being a real party in interest entitled to bring the
claim.
16. It is well established law that a plaintiff seeking to foreclose on a mortgage loan must
establish that it had standing to foreclose at the time it filed the complaint. McLean v. JP Morgan Chase
Bank Na.t’l, 79 So. 3 170, 173 (Fla.4th DCA 2012).
17. From the face of the complaint and its attachments, it is clear that Plaintiff lacks standing.
Plaintiff is not the owner and holder of the original note secured by the Mortgage.
18. Plaintiff, FREEDOM MORTGAGE CORPORATION, is not the original lender. The
original lender is PARAMOUNT RESIDENTIAL MORTGAGE GROUP, INC. The copy of the note
attached to the complaint has a blank endorsement from Freedom Mortgage Corporation, not Paramount
Residential Mortgage Group, Inc. Said blank endorsement appears on a separate page.
Page 2 of 4
19. Additionally, there is an Allonge attached to the Complaint from Paramount Residential
Mortgage to Freedom Mortgage Corporation. Said Allonge is not dated and its authenticity is
questionable.
20. In conclusion, Plaintiff
has failed to set forth facts showing entitlement to enforce note and
ownership. Thus, Plaintiff does not have standing to bring this lawsuit and as such complaint must be
dismissed.
SECOND AFFIRMATIVE DEFENSE
FAILURE TO ESTABLISH CONDITION PRECEDENT
21. Plaintiff failed to comply with a contractual condition precedent to filing this foreclosure.
The plaintiff failed to provide the Defendant with either notice of breach or adequate notice of breach as
required by the Note and Mortgage and as required by 24 C.F. R. 3500.21 and 24 C.F.R. 203.604.
22. A default notice from the “lender” is a condition precedent prior to filing a complaint.
Dominko v. Wells Fargo, 102 So.3d 696 (4th DCA 2012) and Rashid v. Newberry Federal Savings and
Loan Association, 502 So.2d 1316 (Fla. 3rd DCA 1987).
23. As a result, Defendant has been denied a good faith opportunity, pursuant to the mortgage
and the servicing obligations of the Plaintiff, to avoid acceleration and this foreclosure.
24. Therefore, Plaintiff is estopped or waived its right to foreclose based on failure to properly
accelerate according to the terms of the mortgage.
25. Defendant expressly denies that Plaintiff sent them any version of the required notice.
Moreover, any relevant correspondence that Plaintiff may claim was sent, would likely be insufficient as
a matter of law.
Page 3 of 4
RESERVATION OF RIGHT TO AMEND AFFIRMATIVE DEFENSES
Defendant reserves the right to amend theses affirmative defenses upon receipt of discovery and
as otherwise allowed under the Florida Rules of Civil Procedure.
WHEREFORE, Defendant, ANDRE ST STEVE KIFFIN, prays that this Honorable Court take
jurisdiction of this case; dismiss Plaintiffs Complaint, with prejudice, award Defendant court costs and
reasonable attorney fees as provided by Note and Mortgage sued upon; and grant other relief as this Court
deems just and proper under the circumstances.
RESPECTFULLY SUBMITTED,
/s/ Rosalind J. Matos, Esquire
ROSALIND J. MATOS, ESQUIRE
Matos Legal, PLLC
Attorney for Defendant
2645 Executive Park Drive, Suite 676
Weston, FL 33331
rosalind@matoslegal.com
Telephone: (954) 531-5658
Florida Bar No.: 474967
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was filed with the Clerk of the
Court via E-Filing Portal and served via ePortal E-Mail to: Jonathan Meisels, Esq. Robertson, Anschutz &
Schneid, P.L., 6409 Congress Avenue, Suite 100, Boca Raton, FL 33487, mail@rasflaw.com, on this 34
day of March 2020.
/s/ Rosalind J. Matos, Esquire
ROSALIND J. MATOS, ESQUIRE
Florida Bar No.: 474967
Page 4 of 4
Preview
Filing # 104277761 E-Filed 03/03/2020 04:45:28 PM IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA FREEDOM MORTGAGE CORPORATION CASE NO.: CACE 19-021666 Plaintiff, VS. ANDRE ST STEVE KIFFIN Defendant. AMENDED MOTION TO VACATE DEFAULT COMES NOW, Defendant, ANDRE ST STEVE KIFFIN, by and through his undersigned counsel, and pursuant to Fla. R. Civ. P. 1.540(b) hereby files this Amended Motion to Vacate Default and in support thereof, states as follows: 1 On October 18, 2019, Plaintiff filed this Complaint for Foreclosure of Mortgage. 2 On or about November 4, 2019, Defendant, ANDRE ST STEVE KIFFIN, was allegedly served with Plaintiff's Complaint. 3 However, Defendant does not remember been served with the Summons and Complaint on November 4, 2019. 4 Per Affidavit attached to this Motion, Defendant is 28 years old, 5°10 and weighs 220 pounds. See Exhibit “A”. 5 The description of the person served on the Return of Service does not match the characteristics of the Defendant. The Return of Service describes the person as follows: Age:40, Height S°9, and Weight 160 Ibs. See Exhibit “B”. *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 03/03/2020 04:45:27 PM.**** 6 Thus, it appears that Defendant was in fact never served personally with the Summons and Complaint. 7 Defendant has received all pleadings and correspondence pertaining to this lawsuit by regular U.S. mail. 8 When Defendant found out about the lawsuit, he called the bank to ask for more time in order to negotiate a settlement, possibly a short sale. 9. Defendant did not know he had to answer the complaint because he thought the bank had given him more time to settle the case. 10. Defendant suffers from a mental condition that prevents him from understanding legal or complex documents. Due to time constraints, undersigned counsel does not have any medical records regarding Defendant’s condition. But will provide if this Court determines such document is needed. 11. Due to a misunderstanding or lack of understanding thereof, Defendant was unable to respond to Complaint. 12. As a result, a default was entered on December 4, 2019 against the Defendant. 13. Immediately thereafter, on December 19, 2019, this Court issued an Order setting case for trial on March 4, 2020. 14. Undersigned counsel has recently been retained by Defendant to represent him in this matter. 15. Fla. R. Civ. P. 1.540(b) states, in relevant part: “On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, decree, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect.” Page 2 of 5 16. In order for the Court to grant a motion to set aside a default, the moving party is required to show the trial court three things: 1) the party’s failure to file a responsive pleading was due to excusable neglect; 2) the movant has a meritorious defense to the underlying action; and 3) the moving party acted “with due diligence in seeking relief from the default.” See Lazcar International vy. Caraballo, 957 So.2d 1191 (Fla.3™ DCA 2007). 17. It is undisputed that trial courts in this state apply principles of "liberality" when considering a motion to set aside a default. Rosenblatt v. Rosenblatt, 528 So.2d 74, 75-76 (Fla. 4th DCA 1988). 18. Default judgments are generally not favored by the courts, and a court's discretion should be liberally exercised and all reasonable doubt resolved in favor of granting applications for relief so as to permit a determination of the controversy upon the merits. Paul v. Wells Fargo Bank, N.A., 68 So.3d 979, 985 (Fla. 2d DCA 2011). 19, Per Richards v. Crowder, 191 So.3d 524 (Fla. 4" DCA 2016), “Florida courts have recognized that illness or psychological conditions, as well as difficulties with reading and comprehending, can form the basis of a finding of excusable neglect warranting relief from judgment.” See also, Paul v. Wells Fargo Bank, N.A., 68 So.3d 979, 985 (Fla. 2d DCA 2011) ; Franklin v. Franklin, 573 So.2d 401, 403 (Fla. 3d DCA 1991) ; Rosenblatt v. Rosenblatt, 528 So.2d 74, 75-76 (Fla. 4th DCA 1988). 20. In Noel v. James Nutter & Company, 232 So.3d 1112 (Fla. 3d DCA 2017), the Third DCA stated, in relevant part: Rule 1.540(b)(1)" ‘envisions an honest mistake made during the regular course of litigation, including those that result from oversight, neglect, or accident. on Ocwen Loan Servicing, 185 So.3d at 629 (quoting Paladin Props. v. Family Inv. Enters., 952 So.2d 560, 562 (Fla. 2d DCA 2007)). "Excusable neglect is found ‘where inaction results from clerical or secretarial error, reasonable misunderstanding, a system gone awry or any other of the foibles to which human nature is heir.’ " Elliott Page 3 of 5 v. Aurora Loan Servs. LLC, 31 So.3d 304, 307 (Fla. 4th DCA 2010) (quoting Somero v. Hendry Gen, Hosp., 467 So.2d 1103, 1106 (Fla. 4th DCA 1985)). 21. Defendant contacted the bank and requested more time to allow him to negotiate a settlement with the bank. Defendant was under the impression that by contacting the bank and requesting more time, he had acted with due diligence and no further action was required on his part. 22. Defendant’s inexperience with the legal proceedings and difficulty with reading and understanding the pleadings due to his mental condition can form a basis of finding of excusable neglect. 23. Defendant’s failure to timely file a responsive pleading was due to excusable neglect. 24. Defendant is currently attempting to settle this case with Plaintiff. Defendant has submitted a short sale package to Plaintiff on February 20, 2020. 25. Defendant has meritorious defenses to the underlying action and will file an Answer and Affirmative Defenses accordingly. 26. Defendant has acted with due diligence in seeking relief from the default by retaining the undersigned to represent him in this lawsuit prior to trial. After discovering that a default had been entered against him, the Defendant acted quickly in filing the Motion to Vacate Default. 27. The elements of excusable neglect must be proven by sworn statement or affidavit. DiSarrio v. Mills, 711 So.2d 1355, 1356 (Fla. 2d DCA 1998); Schauer v. Coleman, 639 So.2d 637, 638-639 (Fla.2d DCA 1994). Defendant’s Affidavit is hereby attached as Exhibit “A”. 28. The Defendant’s Answer and Affirmative Defenses has been attached with this motion to demonstrate the meritorious defense. See Exhibit “C”. Page 4 of 5 29. As such, Defendants respectfully request entry of an Order Vacating the Default entered on December 4, 2019. WHEREFORE, the Defendant hereby moves this Court for an Order vacating the default entered on December 4, 2019 against Defendant, ANDRE ST STEVE KIFFIN, giving the Defendant an opportunity to defend himself against the action and any other relief that this Court deems to be just and appropriate. RESPECTFULLY SUBMITTED, /s/ Rosalind J. Matos, Esquire ROSALIND J. MATOS, ESQUIRE MATOS LEGAL, PLLC Attorney for Defendant 2645 Executive Park Drive, Suite 676 Weston, FL 33331 rosalind@matoslegal.com Telephone: (954) 531-5658 Florida Bar No.: 474967 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was filed with the Clerk of the Court via E-Filing Portal and served via ePortal E-Mail to: Jonathan Meisels, Esq. Robertson, Anschutz & Schneid, P.L., 6409 Congress Avenue, Suite 100, Boca Raton, FL 33487, mail @rasflaw.com, on this 3" day of March 2020. /s/ Rosalind J. Matos, Esquire ROSALIND J. MATOS, ESQUIRE Florida Bar No.: 474967 Page 5 of 5 JUDICIAL CIRCUIT IN THE CIRCUIT COURT OF THE SEVENTEENTH A IN AND FOR BROWARD COUNTY, FLORID FREEDOM MORTGAGE CORPORATION CASE NO.: CACE 19-021666 Plaintiff, vs. ANDRE ST STEVE KIFFIN Defendant. DR SEEVI KIF EIN IN POR AFFID OF A Dt NTO who ‘BEFORE. ME the undersigned personally appeared, ANDRE ST STEVE KIFFIN, after being duly sworn deposes and says the following: 1 Affiant states that he is a Defendant in the above-captioned case and has personal knowledge of the facts pertaining to the above-captioned lawsuit. 2. Affiant states that he is 28 years old and was born on January 11,1992. 3 Affiant states that he is 5°10. and weighs 220Ibs. 4, s Affiant states that he does not remember been served with the Summonand Complaintion November 4, 2019. 5 the lawsuit, he called the Plaintiffto ask Affiant states that once he found out about for more time in order to negotiate a short sale with the bank. 6 Affiant states that he did not know he had to answer the complaint because he the bank had given him more time to settle the case. thought EXHIBIT A a AFFIANT SAYETH FURTHER NAUGHT d. ANDRE F SHEVE KIFFIN STATE OF COUNTYOF Rae ach BEFORE ME. the undersigned authority, this ©" day-of March 2020, personally appeared ANDRE ST STEVE KIFFIN, who is ( ) personally known or (<—~J produced identification (type of identification produced ok LA_* O <_), and upon being first duly sworn. according to law, depoyes and says that he/she executed the foregoing and that the statements and allegations contained therein are true and correct to the best. of his/her knowledge and belief. Brian Hausteld tM ion # FPO7I020 Apel Bonded thru 7, 2020 Aaron Notary LR ZgleE™ bi Commissioner stamp: Page 2 of 2 Filing # 98730510 E-Filed 11/12/2019 12:41:21 PM RIFIED RETURN OF RVI E State of FL County of Broward Seventeenth Court UNTO ll Case Number: CACE-19-021666 Plaintiff. FREEDOM MORTGAGE CORPORATION vs. Defendant: ANDRE ST. STEVE KIFFIN; UNKNOWN SPOUSE OF ANDRE ST. STEVE KIFFIN For: Robertson, Anschutz & Schneid, P.L. 6409 Congress Ave., Suite 100 Boca Raton, FL 33487 Received by A Better Process on the 29th day of October, 2019 at 11:07 am to be served on ANDRE ST. STEVE KIFFIN A/K/A A. KIFFIN, 2126 N 32ND AVE, HOLLYWOOD, FL 33021 |, Robin Pennington, do hereby affirm that on the 4th day of November, 2019 at 7:55am, INDIVIDUALLY/PERSONALLY served in accordance with Florida Statute, Chapter 48.031 by delivering a true copy of the SUMMONS, NOTICE OF LIS PENDENS, NOTICE OF SUBMITTING FLA.STAT. 702.015(4) CERTIFICATION, VERIFIED COMPLAINT FOR FORECLOSURE OF MORTGAGE WITH EXHIBITS with the date and hour of service endorsed thereon by me, to: ANDRE ST. STEVE KIFFIN A/K/A A. KIFFIN at the address of: 2126 N 32ND AVE, HOLLYWOOD, FL 33021, and informed said person of the contents therein, in compliance with Florida Statutes, Chapter 48.031. Military Status: Based upon inquiry of party served, Defendant is not in the military service of the United States of America Marital Status: Based upon inquiry of party served, Defendant is not married. Description of Person Served: Age: 40, Sex: M, Race/Skin Color: Black, Height: 5'9", Weight: 160, Hair: Black, Glasses: N | certify that | am over the age of 18, have no interest in the above action, and am a Certified Process Server, in good standing, in the judicial circuit in which the process was served, and have proper authority in the jurisdiction in which the service was made. Under penalties of perjury, | declare that | have read the foregoing document and that the facts stated in it are true and correct. Notary not required pursuant to Florida Statute 92.525 verification of documents. Robi Penningt SPS 727 A Better Process 1095 NW BROKEN SOUND PARKWAY Suite 203 Boca Raton, FL 33487 (561) 981-6436 Our Job Serial Number: ABR-2019029981 Ref: 19-376234 EXHIBIT wee ne nee aa earn Copyright© 1992-2019 Database Services, inc. - Process Server's Toolbox V8.0 we ne nnn at bese ae 1 . Case Number: CACE-19-021666 Division: 11 Filing # 97519994 E-Filed 10/18/2019 01:40:20 PM IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA GENERAL JURISDICTION DIVISION CASE NO: FREEDOM MORTGAGE CORPORATION, Plaintiff, ANDRE ST. STEVE KIFFIN A/K/A A. KIFFIN, etal. Defendant(s). balls 8NoatuteINIT48.0374 L.DYWBADGI Tune” (5) MARRIED (¥) (Ny MILITARY (Y) «N) SUMMONS To all and singular the Sheriffs of the state: YOU ARE COMMANDED to serve this summons and a copy of the complaint in this action on defendant(s): ANDRE ST. STEVE KIFFIN A/K/A A. KIFFIN 2126 N 32ND AVE HOLLYWOOD, FL 33021 A lawsuit has been filed against you. You have 20 calendar days after this cummons is served on you to file a written response to the attached complaint with the clerk of this court. A phone call will not protect you. Your written response, including the case number given above and the names of the parties, must be filed if you want the court to hear your side of the case. If you do not file your response on time, you may lose the case, and your wages, money, and property may thereafter be taken without further warning from the court. There are other legal requirements. You may want to call an attorney right away. If you do not know an attorney, you may call an attorney referral service or a legal aid office (listed in the phone book). If you choose to file a written response yourself, at the same time you file your written response to the court you must also mail or take a copy of your written response to the “Plaintiff's/ Plaintiff's Atomey” named below, Robertson, Anschutz & Schneid, P.L. Jonathan Meisels, Esquire Service Email: mail@rasflaw.com Attomey for Plaintiff 6409 Congress Avenue, Suite 100 Boca Raton, Florida 33487 Telephone: 561-241-6901 Fax: 561-997-6909 Aull % rane CLERK OF THE CIR\ OCT 24 2019 ge +8} Dated: a Deputy Clerk of BRENDAD. FORMAN LUE YAU TEAR OLEATE LUA PAGE 1 19-376234 *** FILED; BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 10/18/2019 01:40:18 PM.**#* 2 Usted ha sido demandado legalmente. Tiene 20 dias contados a partir del recibo de esta notificacion pura contestar ta demanda adjunta, par escrito, y presentarle ante este tribunal. Una Hamada tclefonica no lo protegera. Si usted desea que el tribunal considere su defensa, debe presentar su respuesta por escrito, incluyendo ef numero de caso y los nombres de las partes interesadas. Si usted no contesta la demanda a tiempo. pudiese perder el caso y podria ser despojado de sus ingresos y propiedades a privado de sus derechos, sin previo aviso del tribunal. Existen otros requisitos legales. Si lo desea puede used consukar a un abogado inmediatemente. Si no conoce a un abugado, puede amar @.una de las oficinas de asistencia legal que aparencen en la guia telefonica. Si desea responder a la demanda por su cucnta, al mismo ticmpo en que presenta su respuesta ante el tribunal debera usied enviar par correo 0 entregar una copia de su respuesta a la persona demoninada abajo como "Plaintiff / Plantiff Attorney" (Demandante 0 Abogado del Demandante). Des poursuites judiciares ont ete enreprises contre vous. Vous avez 20 jours consecutifs a partir de la date de Passignation de cette citation pour deposer une response ecrite a ta plainte ci-jointe aupres de ce tribunal. Un simple coup de telephone est insuffisent pour vous proteger. Vous etes obliges de deposer votre reponse ecrite, avec mention du numero de dossier ci-dessus et du nom des parties nommees ici, si vouse souhaitez que Je tribunal entende votre cause. Si vous ne deposez pas votre reponse ecrite dans le delai requis, vous risquez de perdre la cause ainsi que votre salaire, votre argent., et vos blens peuvent etre saisis par la suite, sans aucun preavis ulterieur du tribunal. II y a d'autres obligations juriduques et vous pouvez requerir les services immediates.d' un avocat, Si vous ne connaiassez pas d'avocate. vous pourriez telephoner a un service de reference d'avocats ou @ un bureau assistance juridique (figurant a !annuaire de telephones). If you are a person with a disability who needs any accommodation in order to participate in third proceeding, you are entitled, at no cost to you, to the provision of certain assistance. Please contact the ADA Coordinator, Room WW20140, 201 S.E. Sixth Street, Fort Lauderdale, Florida 33301, 954-831- 7721 at least 7 days before your scheduled court appearance, or immediately upon receiving this notification if the time before the scheduled appearance is less than 7 days; if you are hearing or voice impaired, call 711. De acuerdo-cun el Acta de los Americanos con Inpedimentas, aquellas personas que necesiten de algun servicio especial para participar cn este proceso 4 tener acceso a servicios, programas o actividades de La Cone deberan, dentro de un periodo rasonable antes de cualquier proceso o de tener necesidad de acceso a servicios, programas 0 actividades, ponerse en contacto con La Oficina Administrativa de La Corte, que esti situada en el BROWARD, 0 8 los telefonos 407-665-4411 0 1-800-955-8771 (IDD) y Si usa el servicio Florida Relay Service al $-800-955-8770 (WV). OLE . Diapre' ako kite fet avek Akt Pou Amerikin ki Infim, tout moun ki genyen yon bezwen espesyal pou akomodasyon Pou yo patisipe nan pwose obyen pou gin aks. Sevis, pwogram ak aktivite tibinal-la, dwe nan yon tan rezonab anvan ‘okin pwose oubyen bezwen akse scvis, pwogram oubyen aktivite ret, yo dwe konta Ofis Tribinal-la ki nan BROWARD, nimero telefonn-nanse 407-665-4411, ou byen 1-800-955-8771 (IDD) ou byen 1-800-955-8770 (V) an. pasan pa Florida Relay Service. £n accordance avec I'Acte Pour Jes Americains Incapacites’, les personnes en besoin d'une accommodation special pour participer a ees procedures, ou bien pour avoir acces au service, progamme, ou activite de la Coun doivent, dans un temps raisonable, avant aucune procedures ou besoin d’acces de service, programme ou activiie, contacter VOrtice Administrative de La Court, situe au numero BROWARD. le numero de telephone 407-665-441 1, ou 1-800- 955-8771 (TOO), ou 1-800-955-8770 (V)ou par Florida Relay Service. PAGE 2 IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA FREEDOM MORTGAGE CORPORATION CASE NO.: CACE 19-021666 Plaintiff, vs. ANDRE ST STEVE KIFFIN Defendant. ANSWER AND AFFIRMATIVE DEFENSES COMES NOW, Defendant, ANDRE ST STEVE KIFFIN, by and through his undersigned counsel, hereby files this Answer and Affirmative Defenses to Plaintiff's Complaint to Foreclose Mortgage and states as follows: 1 Defendants admit the allegations of Paragraph | for jurisdictional purposes only. 2 Defendants admit the allegations of Paragraph 2 for jurisdictional purposes only. 3 Defendants deny the allegations of Paragraph 3 and demand strict proof thereof. Defendants deny the allegations of Paragraph 4 and demand strict proof thereof. Defendants deny the allegations of Paragraph 5 and demand strict proof thereof. Defendants deny the allegations of Paragraph 6 and demand strict proof thereof. Defendants deny the allegations of Paragraph 7 and demand strict proof thereof. Defendants deny the allegations of Paragraph 8 and demand strict proof thereof. Defendants deny the allegations of Paragraph 9 and demand strict proof thereof. 10. Defendants admit the allegations of Paragraph 10. EXHIBIT C g 2 3 11 Defendants deny the allegations of Paragraph 11 and demand strict proof thereof. 12 Defendants deny the allegations of Paragraph 12 for lack of knowledge. 13 Defendants deny the allegations of Paragraph 13 for lack of knowledge. 14 Defendants deny the allegations of Paragraph 14 for lack of knowledge. FIRST AFFIRMATIVE DEFENSE PLAINTIFF IS NOT THE REAL, RTY IN INTEREST / LACK OF STANDING 15. Plaintiff is not the real party in interest and is not authorized to bring this suit. Under Florida Rule of Civil Procedure 1.210 (a) only the “real party in interest” has standing to bring suit. Standing requires that the party prosecuting the action have a sufficient stake in the outcome and that the party bringing the claim be recognized in the law as being a real party in interest entitled to bring the claim. 16. It is well established law that a plaintiff seeking to foreclose on a mortgage loan must establish that it had standing to foreclose at the time it filed the complaint. McLean v. JP Morgan Chase Bank Na.t’l, 79 So. 3 170, 173 (Fla.4th DCA 2012). 17. From the face of the complaint and its attachments, it is clear that Plaintiff lacks standing. Plaintiff is not the owner and holder of the original note secured by the Mortgage. 18. Plaintiff, FREEDOM MORTGAGE CORPORATION, is not the original lender. The original lender is PARAMOUNT RESIDENTIAL MORTGAGE GROUP, INC. The copy of the note attached to the complaint has a blank endorsement from Freedom Mortgage Corporation, not Paramount Residential Mortgage Group, Inc. Said blank endorsement appears on a separate page. Page 2 of 4 19. Additionally, there is an Allonge attached to the Complaint from Paramount Residential Mortgage to Freedom Mortgage Corporation. Said Allonge is not dated and its authenticity is questionable. 20. In conclusion, Plaintiff has failed to set forth facts showing entitlement to enforce note and ownership. Thus, Plaintiff does not have standing to bring this lawsuit and as such complaint must be dismissed. SECOND AFFIRMATIVE DEFENSE FAILURE TO ESTABLISH CONDITION PRECEDENT 21. Plaintiff failed to comply with a contractual condition precedent to filing this foreclosure. The plaintiff failed to provide the Defendant with either notice of breach or adequate notice of breach as required by the Note and Mortgage and as required by 24 C.F. R. 3500.21 and 24 C.F.R. 203.604. 22. A default notice from the “lender” is a condition precedent prior to filing a complaint. Dominko v. Wells Fargo, 102 So.3d 696 (4th DCA 2012) and Rashid v. Newberry Federal Savings and Loan Association, 502 So.2d 1316 (Fla. 3rd DCA 1987). 23. As a result, Defendant has been denied a good faith opportunity, pursuant to the mortgage and the servicing obligations of the Plaintiff, to avoid acceleration and this foreclosure. 24. Therefore, Plaintiff is estopped or waived its right to foreclose based on failure to properly accelerate according to the terms of the mortgage. 25. Defendant expressly denies that Plaintiff sent them any version of the required notice. Moreover, any relevant correspondence that Plaintiff may claim was sent, would likely be insufficient as a matter of law. Page 3 of 4 RESERVATION OF RIGHT TO AMEND AFFIRMATIVE DEFENSES Defendant reserves the right to amend theses affirmative defenses upon receipt of discovery and as otherwise allowed under the Florida Rules of Civil Procedure. WHEREFORE, Defendant, ANDRE ST STEVE KIFFIN, prays that this Honorable Court take jurisdiction of this case; dismiss Plaintiffs Complaint, with prejudice, award Defendant court costs and reasonable attorney fees as provided by Note and Mortgage sued upon; and grant other relief as this Court deems just and proper under the circumstances. RESPECTFULLY SUBMITTED, /s/ Rosalind J. Matos, Esquire ROSALIND J. MATOS, ESQUIRE Matos Legal, PLLC Attorney for Defendant 2645 Executive Park Drive, Suite 676 Weston, FL 33331 rosalind@matoslegal.com Telephone: (954) 531-5658 Florida Bar No.: 474967 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was filed with the Clerk of the Court via E-Filing Portal and served via ePortal E-Mail to: Jonathan Meisels, Esq. Robertson, Anschutz & Schneid, P.L., 6409 Congress Avenue, Suite 100, Boca Raton, FL 33487, mail@rasflaw.com, on this 34 day of March 2020. /s/ Rosalind J. Matos, Esquire ROSALIND J. MATOS, ESQUIRE Florida Bar No.: 474967 Page 4 of 4