On August 22, 2017 a
Disclaimer
was filed
involving a dispute between
Us Bank National Association For The Rmac Trust Series 2016 Ctt Trst,
and
Alma J Smith,
Jorge Omar Dempster,
Juan A Dempster,
Louis Alberto Dempster,
Marco Tulio Dempster,
Mario Andrea Dempster,
Myriam Dilorenzo,
United States Of America Internal Revenue Service,
United States Of America The Seretary Of Housing And Urban Development Obo,
Unknown Heirs Of Margarita L Edwards,
Unknown Spouse Of Alma J Smith,
Unknown Spouse Of Jorge Omar Dempster,
Unknown Spouse Of Louis Alberto Dempster,
Unknown Spouse Of Mario Andrea Dempster,
Unknown Spouse Of Myriam Dilorenzo,
Unknown Spouse Of Zulema A Sanchez,
Zulema E Sanchez,
for CA - Nonhomestead Residential Foreclosure ($50,001-249,999)
in the District Court of Orange County.
Preview
Filing # 70636742 E-Filed 04/12/2018 03:13:38 PM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR ORANGE COUNTY, FLORIDA
U.S. BANK NATIONAL ASSOCIATION,
Plaintiff,
vs. CASE NO.: 2017-CA-007768-O
JUAN A. DEMPSTER, et al.,
Defendants,
_________________________________/
CONDITIONAL DISCLAIMER OF THE UNITED STATES OF AMERICA
COMES NOW, the defendant, United States of America, by and through the
undersigned Assistant United States Attorney, on behalf of the U.S. Department of
Housing and Urban Development, and hereby disclaims any interest in the real property
that is the subject of this litigation arising out of a Mortgage recorded in Official Records
Book 7386, Page 1467 of the Public Records of Orange County, Florida, except from any
interest in surplus proceeds arising from the sale of the subject real property referenced
in the Complaint.
1. The United States requests that the judgment provide that "The United
States of America shall not be bound by the sixty (60) day time period imposed by Fla.
Stat. Section 45.032 upon motions for distribution of surplus proceeds."
________________________
1The 60-day time limit of §§ 45.031, 45.032 is clearly in the nature of a statute of limitations, and “the United
States is not bound by state statutes of limitations . . . .” United States v. Summerlin, 310 U.S. 414, 416
(1940)(holding that Florida state statute requiring claims against an estate to be filed within eight months was
not applicable to the United States); see also id. at 417 (state statute inapplicable to United States whether
characterized as a statute of limitations or a “statute of ‘non-claim’ ”).
2. The United States requests that it remain on the service list in this case so
that it can be served with any Notice of Sale and Certificate of Disbursements.
3. Pursuant to 28 U.S.C. § 2410(c), HUD’s waiver of immunity in this litigation
for the foreclosure of its lien is conditioned on the requirement that the “action to foreclose
a mortgage, must seek judicial sale.” If the foreclosure is not in compliance with 28 U.S.C.
§ 2410(c), any sale is made subject to and without disturbing the lien of the United States.
DESIGNATION OF E-MAIL ADDRESSES PURSUANT TO RULE 2.516
The United States Attorney’s Office for the Middle District of Florida hereby designates the
following as its primary e-mail address for the purpose of service of all documents required
to be served pursuant to Rule 2.516 in this proceeding:
Primary Email: USAFLM.HUD@usdoj.gov
Secondary Email: Michalene.Y.Rowells@hud.gov
Respectfully submitted.
MARIA CHAPA LOPEZ
United States Attorney
By: s/ Colleen Murphy Davis
JOHN F. RUDY, III
Assistant United States Attorney
Florida Bar No. 0136700
COLLEEN MURPHY DAVIS
Assistant United States Attorney
USAO No. 068
Amber L. Watson, Legal Assistant
400 North Tampa Street, Suite 3200
Tampa, Florida 33602
Telephone: (813) 274-6000
Facsimile: (813) 274-6198
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on April _12th_, 2018, I electronically filed the
foregoing with the Clerk of the Court by using the E-Filing system; and a copy has been
furnished by the Florida E-Portal to:
Jennifer M. Scott, Esquire
Kass Shuler, P.A.
1505 N. Florida Avenue
P.O. Box 800
Tampa, Florida 33601-0800
Primary Email: ForeclosureService@kasslaw.com
Ms. Gail Ash Dotson, Associate Regional Counsel
U.S. Department of Housing and Urban Development
Office of General Counsel, Florida Southern State Office
Attn: Michalene Rowells, Paralegal Specialist
909 SE First Avenue, Room 500
Miami, Florida 33131-3042
Primary Email: Michalene.Y.Rowells@hud.gov
s/ Colleen Murphy Davis
COLLEEN MURPHY DAVIS
Assistant United States Attorney
Document Filed Date
April 12, 2018
Case Filing Date
August 22, 2017
Category
CA - Nonhomestead Residential Foreclosure ($50,001-249,999)
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Filing # 70636742 E-Filed 04/12/2018 03:13:38 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA U.S. BANK NATIONAL ASSOCIATION, Plaintiff, vs. CASE NO.: 2017-CA-007768-O JUAN A. DEMPSTER, et al., Defendants, _________________________________/ CONDITIONAL DISCLAIMER OF THE UNITED STATES OF AMERICA COMES NOW, the defendant, United States of America, by and through the undersigned Assistant United States Attorney, on behalf of the U.S. Department of Housing and Urban Development, and hereby disclaims any interest in the real property that is the subject of this litigation arising out of a Mortgage recorded in Official Records Book 7386, Page 1467 of the Public Records of Orange County, Florida, except from any interest in surplus proceeds arising from the sale of the subject real property referenced in the Complaint. 1. The United States requests that the judgment provide that "The United States of America shall not be bound by the sixty (60) day time period imposed by Fla. Stat. Section 45.032 upon motions for distribution of surplus proceeds." ________________________ 1The 60-day time limit of §§ 45.031, 45.032 is clearly in the nature of a statute of limitations, and “the United States is not bound by state statutes of limitations . . . .” United States v. Summerlin, 310 U.S. 414, 416 (1940)(holding that Florida state statute requiring claims against an estate to be filed within eight months was not applicable to the United States); see also id. at 417 (state statute inapplicable to United States whether characterized as a statute of limitations or a “statute of ‘non-claim’ ”). 2. The United States requests that it remain on the service list in this case so that it can be served with any Notice of Sale and Certificate of Disbursements. 3. Pursuant to 28 U.S.C. § 2410(c), HUD’s waiver of immunity in this litigation for the foreclosure of its lien is conditioned on the requirement that the “action to foreclose a mortgage, must seek judicial sale.” If the foreclosure is not in compliance with 28 U.S.C. § 2410(c), any sale is made subject to and without disturbing the lien of the United States. DESIGNATION OF E-MAIL ADDRESSES PURSUANT TO RULE 2.516 The United States Attorney’s Office for the Middle District of Florida hereby designates the following as its primary e-mail address for the purpose of service of all documents required to be served pursuant to Rule 2.516 in this proceeding: Primary Email: USAFLM.HUD@usdoj.gov Secondary Email: Michalene.Y.Rowells@hud.gov Respectfully submitted. MARIA CHAPA LOPEZ United States Attorney By: s/ Colleen Murphy Davis JOHN F. RUDY, III Assistant United States Attorney Florida Bar No. 0136700 COLLEEN MURPHY DAVIS Assistant United States Attorney USAO No. 068 Amber L. Watson, Legal Assistant 400 North Tampa Street, Suite 3200 Tampa, Florida 33602 Telephone: (813) 274-6000 Facsimile: (813) 274-6198 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on April _12th_, 2018, I electronically filed the foregoing with the Clerk of the Court by using the E-Filing system; and a copy has been furnished by the Florida E-Portal to: Jennifer M. Scott, Esquire Kass Shuler, P.A. 1505 N. Florida Avenue P.O. Box 800 Tampa, Florida 33601-0800 Primary Email: ForeclosureService@kasslaw.com Ms. Gail Ash Dotson, Associate Regional Counsel U.S. Department of Housing and Urban Development Office of General Counsel, Florida Southern State Office Attn: Michalene Rowells, Paralegal Specialist 909 SE First Avenue, Room 500 Miami, Florida 33131-3042 Primary Email: Michalene.Y.Rowells@hud.gov s/ Colleen Murphy Davis COLLEEN MURPHY DAVIS Assistant United States Attorney