case no.: sc13-849 district case no.: 3d12-3443 lower ... · supreme court of florida case no.:...

SUPREME COURT OF FLORIDA

Case No.: SC13-849District Case No.: 3D12-3443Lower Tribunal No.: 10-42068

HILDA SUAREZ, ORLANDO ) Fla. Bar No.: 480400GARCIA, JR. and LISETTE )GARCIA,

)Defendants/Appellants, )

v.)

CITIMORTGAGE, INC., ))

Plaintiff/Appellee, )

INITIAL BRIEFWrit of Mandamus

Gary Barcus, Esq.Attorney for Hilda Suarez,Orlando Garcia, Jr. andLisette Garcia

TABLE OF CONTENTS

PAGE

I. Statement of the Case................................................... 1-3

II. Facts ....................................................................... 4-9

III. Issues to be Considered upon Appeal ................................. 10

1. Whether Appellee's Motion for Substitution of Party Plaintiff complieswith Fla.R.Civ.P. 1.100 requiring it to "specify with particularity thegrounds upon which the motion is based and set forth the relief ororder sought." [The Author's Comments states: "TheseRequirements are mandatory.]

2. Whether Penny Mac Loan 2012 Trust NPL-1, who purchased themortgage September, 2012, from PennyMac Mortgage Company LLC,which had purchased the mortgage from CitiMortgage, Inc. effectiveJanuary 25, 2012, may be substituted as party plaintiff in this mortgageforeclosure even though it was NOT mentioned in the Motion forSubstitution of Party Plaintiff?

3. Whether the Order ofNovember 30, 2012 denying the Motion toDismiss the foreclosure lawsuit brought by CitiMortgage, Inc. shouldhave been granted.

IV. Analysis of Law ......................................................... 11-13

V. Conclusion ............................................................... 14

Certificate of Service ........................................................... 15

Certificate of Compliance .................................................... 13

Table of Cases Cited .......................................................... il

Statutes Cited .................................................................. il

TABLE OF CASE CITED

Metcalfe v. Lee, 952 So.2d 624 (Fla. 4th DCA 2007)..................... 12

STATUTES CITED

Fla.R.Civ.P. 1.100(b) ......................................................... 6,9-11

Fla.R.Civ.P. 1.150.............................................................. 8

Fla.R.Civ.P. 1.260(a) and (c) ................................................ 1-3,6,11-14

Fla.R.Civ.P. 1.420(b).......................................................... 8

Fla.R.App.P. 9.030(a)(3)...................................................... 8

11

I. Statement of the Case

This appeal raises two important questions of law that were NOT properly

followed nor enforced at the trial level: (1) Fla.R.Civ.P. 1.260(a) limiting the time

to substitute party plaintiff to within 90 days was violated; and (2) most serious

misrepresentations by the attorneys for CitiMortgage, Inc., Brock and Scott, who

told the court on January 30, 2012, at the Motion to Dismiss hearing that

CitiMortgage, Inc. then owned and held the mortgage and note and were entitled to

enforce them against Appellants, a bald faced lie. Or, politely put, a tergiversation,

a cunard, a prevarication, but frankly put, a bald faced lie. Please take a moment to

read the one paragraph allegations in Appendix #3 "Motion for Substitution of

Party Plaintiff." In that motion, the assignee of that mortgage and note alleges that

"On or about January 27, 2012, CitMortgage transferred all of its right, title and

interest in the Garcia's loan to PNMAC." [PNMAC Mortgage Corporation., LLC.]

Oh? Do tell, because as that is the true fact, then Judge Marc Shumacher should

have granted the Appellants' Motion to Dismiss that was heard on January 30,

2012, see transcript of that hearing, attached, denying that Motion to Dismiss.

As you will see, attorneys Brock and Scott DID misrepresent to the court that

CitiMortgage,Inc. owned and held the note and mortgage as of January 30, 2012,

which it did not. Had they not misrepresented the true facts to the court, the case

would have been dismissed on January 30, 2012, and the assignee would have, and

1

should have, properly filed a brand new lawsuit.

But, the immediate assignee did not file a brand new lawsuit. Instead, it

chose to file an untimely and late Motion to Substitute Party Plaintiff on May 3rd

2012, see Appendix #3, in which the motion seeks to allow a SECOND assignee

of the note and mortgage from CitiMortgage, Inc. which assigned the note and

mortgage to PennyMac Loan Corporation, LLC who then assigned the note and

mortgage to PNMAC Mortgage Co., LLC. And before the Motion to Substitute

Party Plaintiffwas heard, the second assignee PNMAC Mortgage Co., LLC then

assigned the note and mortgage to a third assignee PENNYMAC LOAN TRUST

2012-NPL1. Under Fla.R.Civ.Pro. 1.260(a), the motion to substitute was not made

within 90 days of the original assignment from CitiMortgage, Inc. to PNMAC

Mortgage Co., LLC [which was in actual fact on January 25, 2012 but Appellee

conceded January 27, 2012] but not until May 3, 2012. And, the second and third

assignments were not made until September, 2012, long, long after the "within 90

days" time bar to substitute party plaintiff found in Rule 1.260(a). To add insult to

injury, the Motion to Substitute Party Plaintiff was made after the court should

have dismissed the entire case for any standing of CitiMortgage, Inc. at the January

30, 2012 Motion to Dismiss hearing.

2

More importantly, and completely violative of Fla.R.Civ.P. 1.260(a) that

requires the substitution of party plaintiff within 90 days, was the ultimate party

that Judge Marc Schumacher improperly allowed to actually substitute as party

plaintiff. Have you ever seen a "relay race" at a track meet where four runners

pass a baton between each other to run a race in segments? That is what happened

here: PennyMac Mortgage Corporation., LLC assigned the note and mortgage to to

PNMAC Mortgage Co., LLC which subsequently [but before the order granting

substitution of party plaintiff] assigned the mortgage and note to yet another party,

PENNYMAC LOAN TRUST 2012-NPLl. The assignment from the PennyMac

Loan Corporation, LLC to PNMAC Loan Co., LLC and then to PENNYMAC

LOAN TRUST 2012-NPL1 occurred in September of 2012, long after the "within

90 days" time bar of Fla.R.Civ.P. 1.260(a) had expired. Therefore, Judge Marc

Schumacher was wrong twice, first when he denied the Motion to Dismiss on

January 30, 2012 and again on November 30, 2012, see Appendix #2, when he

allowed substitution party plaintiff to the last runner of the relay race long, long

after the time to substitute party plaintiff within 90 days had expired.

Any one of these failures to enforce the rules of court constitutes a denial

of the Appellants' Constitutional rights to Due Process ofLaw under the 14th

Amendment to the US Constitution, but collectively these repeated failures to

follow the Rules of court are an abomination.

3

H. Facts:

1. This case is a mortgage foreclosure, initiated in 2010. The case was

dismissed in November of 2010, for failure to attach documents upon which a

claim could be made or a defense made. CitiMortgage, Inc. given 15 days to file an

Amended Complaint. It did not file, failed to file, an Amended Complaint for more

than a year, all in contempt of the November, 2010 court order to file an Amended

Complaint. The Clerk of Court actually closed the case. An administrative notation

was issued closing the case.

2. In late December of 2011, the now contemnor, CitiMortgage, Inc. finally

filed an Amended Complaint on an ex parte basis, and Judge Marc Schumacher,

without any hearing, permitted this case to be reopened.

3. Appellants filed a Motion to Dismiss the Amended Complaint, and set

it for a hearing on January 30, 2012. Meanwhile, on January 24, 2012, BEFORE

THE HEARING to substitute party plaintiffs, CitiMortgage, Inc. sold the mortgage

and note to PennyMac Mortgage Co., LLC, an act that completely divested

CitiMortgage, Inc. of any right to continue the lawsuit. That should have been the

end of the foreclosure lawsuit. Mortgage and note sold before the hearing on the

Motion to Dismiss divested CitiMortgage, Inc. of any standing whatsoever. Judge

Marc Schmacher should have dismissed the lawsuit then and there.

4

4. Nonetheless, CitiMortgage, Inc. opposed the Motion to Dismiss the

Amended Complaint, and won! Judge Marc Schumacher should have dismissed

the foreclosure lawsuit with prejudice. [Appellants filed the first interlocutory

appeal on the issue of divested standing, but that appeal was denied.]

CitiMortgage, Inc. subsequently filed a Motion for Substitution of Party Plaintiff,

Appendix #3, in which it requested that PNMAC Mortgage Co., LLC be permitted

to substitute as party plaintiff for CitiMortgage, Inc. However, from the time of the

filing of the initial Motion to Substitute Party Plaintiff to be PNMAC Mortgage,

LLC for CitiMortgage, Inc., the mortgage and note were sold two more times to

two subsequent owners, neither of which were named in the original Motion to

Substitute Party Plaintiff that was set for a hearing November 30, 2012. Ifyou are

keeping score, here is how your scorecard should read for the four different parties

who owned the mortgage and note (maybe):

a. CitiMortgage, Inc. alleged that it originally owned and holds themortgage and note (although they never properly filed ownership proofdespite being ordered to do so for more than a year). Then CitiMortgage,Inc. announces that it sold the mortgage and note on January 25, 2012, to

b. PNMAC Mortgage Corporation., LLC, but there was no proofof sale orassignments filed by PNMAC Mortgage Corporation., LLC. [That is twopurported owners if for you scorekeepers as of January 25, 2012.]

c. PNMAC Mortgage Corporation., LLC allegedly sold the mortgage andnote to PNMAC Mortgage Co., LLC. [That is three purported owners.]

5

d. PNMAC Mortgage Co., LLC purportedly sold the mortgage and note toPENNYMAC LOAN TRUST 2012-NPL1. [Now four purportedowners.]

5. No mention was made by CitiMortgage, Inc. in its original (filed AFTER

it had sold the mortgage and note) Motion for Substitution of Party Plaintiff of

PNMAC Mortgage Co., LLC, the motion was set for hearing on November 30,

2012. The trial Judge, Marc Schumacher, more than ten months after the original

motion, (when Fla.R.Civ.P. 1.100 and R. 1.260(a)( c) only allow 90 days to make

substitution ofparty plaintiff), in violation of the rule nonetheless allowed

substitution of the fourth purported assignee as party plaintiff.

6. Keep in mind that the Motion for Substitution ofParty Plaintiffwas made

May 3rd, 2012, and PennyMac Loan Trust 2012-NPL-1 did not own the mortgage

and note (if at all)until September, 5, 2012, so it was impossible for it to be

named and specified in the original Motion for Substitution of Party Plaintiff

within the 90 day requirement of the Rule 1.260(a) and (c). And so it was

impossible for appellee to properly comply with the strict and "mandatory"

requirements of filing their motion pursuant to Fla.R.Civ.P. 1.100(b) to name at the

time of the filing the party that is to be named as substitute plaintiff. And therefore

the court order ofNovember 30, 2012, [Appendix #2] that substitutes a party not

named in the motion should have been denied. That court order should now be

reversed as to permitting substitution of party plaintiff to deny it, and the part of

6

the order that denies the Motion to Dismiss [Appendix #2] should be reversed to

grant that Motion to Dismiss. Otherwise, Appellants have been denied their

constitutional rights to Due Process of Law pursuant to the 14th Amendment of the

U.S. Constitution. Whoever now owns the mortgage and note should file a new

foreclosure lawsuit with the clerk.

7. CitiMortgage, Inc. filed a foreclosure lawsuit on August 4, 2010. That

complaint was dismissed on November 16, 2010, with specific instructions to file

an Amended Complaint in 15 days, by December 1, 2010.

8. For more than a year, CitiMortgage, Inc. ignored, defied, and was in

contempt of the court by not filing the Amended Complaint as ordered. In fact, the

Clerk of Court actually closed the entire case because the court order had not been

complied with and there was no record activity for more than a year. But, on

December 2, 2011, more than a year after it had been ordered to file an Amended

Complaint, plaintiff filed a "Plaintiff's Motion to Amend Complaint." The court

entered two orders on January 10, 2012 in which it actually permitted the

contemnor CitiMortgage, Inc. to file an Amended Complaint, and did also enter an

order directing the Clerk of Court to reinstate the lawsuit.

9. CitiMortgage, Inc. filed its Amended Complaint, appellants filed a

Motion to Dismiss the Amended Complaint, but before that motion could be heard,

CitiMortgage, Inc. sold the note and mortgage on January 25, 2012, an act that

7

completely divested it of any right to continue the foreclosure lawsuit. However,

lawyers for CitiMortgage, Inc. did not disclose to the court that CitiMortgage, Inc.

had sold the mortgage and note (and CitiMortgage, Inc. Notices of that sale to the

Appellants had not yet arrived), so the trial judge denied that Motion to Dismiss.

10. New counsel appeared for CitiMortgage, Inc., and filed a Motion for

Substitution of Party PlaintiffMay 3'd 2012 in which they asked that PNMAC

Mortgage Co., LLC to be substituted as party plaintiff for CitiMortgage, Inc.

[Appendix #3] The Motion for Substitution of Party Plaintiffwas very specific,

very exacting, and specified May 3rd, 2012, that PNMAC Mortgage Co., LLC be

the party permitted to substitute as party plaintiff, and no one other than PNMAC

Mortgage Co., LLC. That May 3rd 2012, Motion for Substitution of Party Plaintiff

was specially set for hearing on November 30, 2012, and no other substitution

motion was scheduled for hearing on that date in this case, only the first Motion for

Substitution of Party Plaintiff, the one filed for PNMAC Mortgage Co., LLC. Also

set for hearing on November 30, 2012, was appellants' combined "Opposition to

Substitution ofParties and Motions to Dismiss Pursuant to Rule 1.420(b) For

Failure of CitiMortgage, Inc. to Comply with Rules of Court and Order of This

Court And Motion to Dismiss Pursuant to Rule 1.150" [Appendix #4] and

incorporated by reference into this Initial Brief.

8

11.The court issued an order November 30, 2012, [Appendix #2] on

CitiMortgage, Inc.'s May 3rd, 2012, Motion for Substitution of Party Plaintiff

and denying the Defendants' new Motion to Dismiss. The Plaintiff's Motion for

Substitution of Party Plaintiff made no mention of PennyMac Loan Trust 2012

NPL-1, and as such it did not seek to have PennyMac Loan Trust 2012 NPL-1

substituted as the party plaintiff, rather it specifically sought to have PNMAC

Mortgage Co., LLC named and substituted as the party plaintiff.

12. Allowing a party not named in the Motion for Substitution of Party

Plaintiff violates the mandatory requirements of Fla.R.Civ.P. 1.100(b) that the

relief sought "shall" be specific. The only party according to the motion that could

be substituted as party plaintiff was PNMAC Mortgage Co., LLC and not the

unnamed and unspecified PennyMac Loan Trust 2012 NPL-1. Allowing a party to

substitute as as plaintiff that was not named in the motion is a violation of the Rule

1.100(b) and reversible error.

9

III. Issues to be Considered upon Appeal

1. Whether Appellee's Motion for Substitution of Party Plaintiff complieswith Fla.R.Civ.P. 1.100(b) requiring it to "specify with particularitythe grounds upon which the motion is based and set forth the relief ororder sought." [The Author's Comment states: "Theserequirements are mandatory."]

2. Whether Penny Mac Loan 2012 Trust NPL-1, who purchased themortgage September, 2012, from PennyMac Mortgage Company LLC,which had purchased the mortgage from CitiMortgage, Inc. effectiveJanuary 25, 2012, may be substituted as party plaintiff in this mortgageforeclosure even though it was NOT mentioned in the Motion forSubstitution of Party Plaintiff?

3. Whether the Order ofNovember 30, 2012 denying the Motion toDismiss the foreclosure lawsuit brought by CitiMortgage, Inc. shouldhave been granted.

10

IV. Analysis of Law

1. The Florida Rule of Civil Procedure 1.100 Pleadings and Motions in

subpart (b) requires:

"An application to the court for an order shall be by motionwhich shall be made in writing ..., shall state with particularity theground therefor, and shall set forth the relief or order sought. ... Allnotices ofhearing shall specify each motion or other matter to beheard." [The Author's Comment states to this rule ofprocedurestates: "These requirements are mandatory."] [Appendix #5,Emphasis mine.]

A close reading of the appellee's Motion for Substitution of Party Plaintiff reveals

that the relief stated with specified particularity was to have PNMAC Mortgage

Co., LLC substituted as party plaintiff. No mention was made of PennyMac Loan

Trust 2012-NPL-1. The court order ofNovember 30, 2012, nonetheless permits

the unnamed and unspecified party PennyMac Loan Trust 2012-NPL-1 to

substitute as party plaintiff instead of the named, specified with particularity

PNMAC Mortgage Co., LLC. This shell game ofparties violates the clear

mandatory strictures of Rule 1.100(b), makes the court order a violation of Rule

1.100(b), and is reversible error requiring a reversal of that order ofNovember 30,

2012, see Appendix #6.

2. Another dispositive procedural rule in effect here is Florida R.

Civ. P. 1.260 Survivor; Substitution ofParties. That Rule in subparts (a) and (c)

deal with situations where there has been a Transfer of Interest. These subparts

11

instruct the party who has received a transfer of interest to serve a motion to

substitute party plaintiff in 90 days. CitiMortgage, Inc. sold its interest in the

mortgage and note to PennyMac Mortgage Co., LLC on January 25, 2012. The

Motion for Substitution of Party Plaintiff [Appendix 3] was not filed until May 3rd

2012, a full 98 days after the transfer of interest by CitiMortgage, Inc. to

PennyMac Mortgage Co., LLC. This is outside of the time bar limits ofRule

1.260(a) and dispositive of the issue of substituting party plaintiff. Late again, and

too late, the Motion for Substitution ofParty Plaintiff should have been denied as

time barred. CitiMortgage, Inc. was over one year late in filing its leave to file an

Amended Complaint after being in contempt of the order dismissing its original

complaint more than a year. Now, it filed its Motion for Substitution of Party

Plaintiff too late, also. And that motion that it did file did not seek the relief that

the court subsequently did order. Violation by CitiMortgage, Inc. of the rules and

time limits over and over and over; this lawsuit should be dismissed with

prejudice.

3. Please consider the case ofMetcalfe v. Lee, 952 So.2d 624, at 628

(Fla. 4th DCA 2007), a tutorial on construing Fla.R.Civ.P. 1.260, where the goal is

to "strictly construe provisions of rules of civil procedure to create rules that apply

that are clear-cut and easy to apply." Supra at 628. Regarding Rule 1.260:

12

"Unless the motion for substitution is made within 90 days after thedeath [or transfer of interest] ... the action shall be dismissed as to thedeceased party [or transferee]. A notice of hearing must accompanythe motion." Supra at 629.

According to the strict time limits of Rule 1.260(a) and (c) which CitiMortgage,

Inc. failed to comply with, the trial judge should have dismissed the lawsuit.

13

V. Conclusion

The judge erred in granting the tardily filed Motion for Substitution of Party

Plaintiff and denying the appellant's Motion to Dismiss for several reasons. The

appellee's substitution motion filed May 3rd, 2012, was filed fatally late, a violation

of the clear-cut 90 day deadline of Fla.R.Civ.P. 1.260(a) and (c). The appellee's

substitution motion specified the substituted party was to be PNMAC Mortgage

Co., LLC. Rule 1.100 requires and makes "mandatory" that the motion shall be

alleged with "particularity" and the relief sought and parties shall be "specific."

The court order named a party not in the substitution motion as new party plaintiff,

a violation of both Rule 1.100 and Rule 1.260(a) and (c). If CitiMortgage, Inc.

said that PennyMac Loan Trust 2012-NPL-1 was entitled to be substituted as party

plaintiff on or before April 25th, 2012, the deadline for the substitution motion, that

is and would be a lie. Nowhere within that critical time period from January 25,

2012 and April 25th, 2012, the 90 day window, was PennyMac Loan Trust 2012-

NPL-1 involved in any of these transactions. And after September, 2012,

PennyMac Mortgage Co., LLC was completely divested of any right or actionable

interest against the appellants. The November 30th, 2012 court order should be

reversed to deny the motion for substitution and grant the motion to dismiss with

instructions to whoever or whatever entity owns, holds, services, or has an open

indorsement to file a brand new lawsuit at the clerk's office to enforce their rights.14

Certificate of Mailing

I HEREBY CERTIFY that a true copy of the foregoing Initial Briefwith a copy of the Appendix were emailed / , 2013, to: Ms. Nancy Wallace,Esq., [email protected], Akerman Senterfitt, 106 East CollegeAvenue, Suite 1200, Tallahassee, Florida 32301.

Gary Barcus, Esq.Fla. Bar No.: 480400Attorney for AppellantsHilda SuarezOrlando Garcia, Jr. andLisette Garcia1689 SW 158 AvenuePembroke Pines, Florida 33027(954) 438-4222 Office(954) 618-9530 [email protected]

/s/ Ga Barcus, Esq.Electronic Signature

Certificate of Compliance

I HEREBY CERTIFY that this Initial Brief complies with the Times NewRoman 14-point font requirements as detailed in Rule 9.210.

Gary Barcus, Esq.Fla. Bar No.: 480400Attorney for Appellants1689 SW 158 AvenuePembroke Pines, Florida 33027(954) 438-4222 Office(953) 618-9530 Cellbare sgab@a 1.com

/s/ Ga Barcus, Esq.Electronic Signature

15

IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUITIN AND FOR MIAMI-DADE COUNTY, FLORIDA

CASE NO. 10-42068 CA 05

CITIMORTGAGE, INC.,

Plaintiff, ..

vs.

HILDA SUAREZ and ORLANDOGARCIA, JR. a/k/a ORLANDOGARCIA and LISETTE GARCIA,Husband and Wife, et al

Defendants.

Hearing Before the HonorableMARC SCHUMACHER

Monday, January 30, 20129:00 A.M. to 9:25 A.M.

Miami Dade County Courthouse73 West Flagler Street, Miami, Fl

Stenographically Reported By:

LOURDES M. RESTREPO, RPR

Registered Professional Reporter

Boss Certified Realtime Reporting954-467-6867

1 APPEARANCES

2 On Behalf of the Plaintiff:BROCK & SCOTT, PLLC

3 1501 NW 49th Street, Suite 200Fort Lauderdale, FL 33309

4 (954) [email protected]

5 BY: KATHY ASCHILLE, ESQUIRE

6

7 On Behalf of the Defendant:GARY BARCUS, ESQUIRE

8 GRAND PALMS1689 S.W. 158th Avenue.

9 Pembroke Pines, F1 33027(954) 438-4222

10 [email protected]: GARY BARCUS, ESQUIRE.

11

12

13

14

15

16

17

18

19

20

21

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24

25


1 Hearing taken before LOURDES M. RESTREPO, Registered

2 Professional Reporter and Notary Public in and for the

3 State of Florida at Large in the above cause.

4 (Thereupon, the following proceedings were had)

5 THE COURT: Good morning. We are here regarding

6 Citimortgage v Suarez. Counsel, please state your

7 appearances, for the record.

8 MR. BARCUS: Gary Barcus, Your Honor, for The

9 Defendants, Hilda Suarez, Orlando Garcia, Jr. and his

10 wife, Lisette Garcia.

11 THE COURT: Thank you.

12 MS. ASCHILLE: Kathy Aschille. A- S - C - H - I - L -

13 L - E on behalf of The Plaintiff.

14 THE COURT: Okay. We are here on The Defendant's

15 Motion to Strike and Dismiss.

16 MR. BARCUS: Yes, sir.

17 THE COURT: Okay. Please proceed, counsel.

18 MR. BARCUS: Your Honor, the posture of this case is

19 that it was dismissed in November of 2010. I attached a

20 copy of that order to the motion, and that was November

21 16th, 2010. Citimortgage was given fifteen days to amend

22 its complaint to conform with the Supreme Court form

23 1.944, and it was required to contain a verification by

24 Plaintiff that it does, in fact, own and hold the

25 promissory note and mortgage. Florida Superior Court


1 foreclosing properties verify that they own and hold the

2 note. The fifteen days expired, Your Honor, and the

3 attorneys for Citimortgage, at that time, Shapiro Fishman

4 did not file an Amended Complaint within the constraints

5 of the order.

6 They subsequently filed an Amended Complaint, which

7 alleged that they owned and held the mortgage and note,

8 but the verification was not forming that it was after the

9 attorneys' signature, and it was not in front of the

10 attorneys' signature.

11 Now, Shapiro and Fishman is no longer in the case.

12 Brock & Scott has made an appearance. They filed an

13 Amended Complaint, in which they are not the owner.

14 They're not the owner. And in their Verified Amended

15 Complaint in paragraph three (indicating), it says --and

16 this is a big deviation from the Supreme Court Form 1.944

17 that you ordered them to comply with, which requires --it

18 says: Plaintiff holds said note and mortgage and is

19 entitled to force the sale. We don't have agency

20 foreclosures in Florida.

21 Further, on paragraph five (indicating), they say

22 there's been a default under the note and mortgage held by

23 Plaintiff in that the payment due, et cetera -- So, we

24 have a purported holder not an owner of the Citimortgage

25 original mortgage trying to come in and foreclose very


1 late, very, very late.

2 Now, Your Honor I will state, essentially, the

3 tightest details involving this motion are in paragraph

4 eleven and twelve of my motion (indicating). It says, the

5

6

10

11

12

13

14

15

new counsel appears for plaintiff and filed its proposed

separate Amended Complaint more than one year after This

Court had ordered an Amended Complaint be filed; that The

Court required specific wording in the Amended Complaint

to verify to The Court that Citimortgage does, in fact,

own and hold the note.

THE COURT: You have a court reporter. Just slow

down a little bit.

MR. BARCUS: Yes, sir. The newly filed Amended

Complaint violates the order of the Florida Supreme Court,

and This Court's order of November 16th, but in paragraph

16 twelve of my motion (indicating) it says since

17 Citimortgage has alleged that they own and hold the note

18 and mortgage but fails to attach any documents to its most

19 recently Amended Complaint, that would evidence that it

20 hasn't any right as a holder to foreclose. They violated

21 Florida Rule of Civil Procedure 1.30A by failing to attach

22 necessary documents upon which we could file a defense, if

23 we need to go that far. They are 406 days late in filing

24 this Amended Complaint, as Your Honor had instructed them

25 to get it filed by December 1st of 2010, and what they did


1 file doesn't conform to what you told them they have to

2 file.

3 THE COURT: Okay. Let's now hear from counsel, and

4 I'll get back to you in just a moment.

5 MR. BARCUS: Yes, sir.

6 MS. ASCHILLE: Judge, good morning. Kathy Aschille

7 on behalf of The Plaintiff. First, I'd just like to start

8 at the rule, the Supreme Court's amended to rule 1.110.

9 As Mr. Barcus was speaking, I'm reading the rule

10 (indicating). I don't find anywhere in the rule, where it

11 requires that The Plaintiff hold and own the note. It has

12 been long established a holder of a note is entitled to

13 enforce it. Reading from rule 1.110, subsection B

14 specifically says, when filing an action for foreclosure

15 of a mortgage on residential real property, The Complaint

16 shall be verified, when verification of the document is

17 required. The document filed shall include an oath

18 affirmation or the following statement: I declare that I

19 have read the foregoing, and the facts alleged therein are

20 true and correct to the best of my knowledge and belief.

21 Nowhere in the rule, nowhere in the rule, nowhere in the

22 Uniform Commission Code does it mandate that The Plaintiff

23 actually plead that it owns and holds the note.

24 As The Court well knows, there are many cases that

25 come before The Court where The Plaintiff actually holds


1 the note; is in possession of the note, which is one of

2 the main reasons why rule 1.110 was amended to actually

3 force Plaintiff's to go out and look for the note and not

4 plea a count two, which is reinforcement of the lost

5 instrument. If The Plaintiff holds the note, which

6 Citimortgage does --

7 THE COURT: Under the mortgage, but --

8 MS. ASCHILLE: The mortgage follows the note.

9 THE COURT: The mortgage hasn't been assigned, and

10 they say that they don't own the mortgage.

11 MS. ASCHILLE: Your Honor, an Assignment of Mortgage

12 is not necessary, as long as The Plaintiff actually holds

13 the note, which is the instrument that the borrower signed

14 obligating them to repay the money that they borrowed. An

15 Assignment of Mortgage is actually superfluous.

16 In this particular case, Citimortgage actually holds

17 is in possession of the note. Secondly, I filed a

18 response to Mr. Barcus' initial Motion to Dismiss an

19 Amended Complaint. I just received, on Friday afternoon,

20 another Motion to Strike and to Dismiss. I guess, it is

21 directed at our newly filed Amended Complaint, and then,

22 my response --

23 THE COURT: Was there leave to file a -- is this a

24 second Amended Complaint?

25 MR. BARCUS: Yes.


1 MS. ASCHILLE: Yes. There was leave.

2 THE COURT: There was leave.

3 MS. ASCHILLE: Yes. There was leave granted. What

4 happened is when Brock & Scott substituted into the case,

5 we ran a title examination and determined an additional

6 defense had to be added.

7 THE COURT: That was done by agreed order, a court

8 order.

9 MS. ASCHILLE: Court order. Yes, sir.

10 THE COURT: Okay.

11 MS. ASCHILLE: In my response to Mr. Barcus's Motion

12 to Strike and Motion to Dismiss, actually cites Beauchamp

13 v Collins. That's cited at 500 So 2d 294. That's a 3d

14 District case from 1986, where The Court in that case

15 states dismissal is an extreme sanction and should not be

16 imposed in the absence of a showing that the opposing side

17 was prejudiced in a meaningful way by Plaintiff's

18 tardiness.

19 In this particular case, we have an Amended Complaint

20 from the previous law firm that was filed, I believe, a

21 month late. Mr. Barcus, in his motion, has not alleged,

22 in any way, that his clients were prejudiced by the tardy

23 complaint.

24 In fact, this is a residential foreclosure case,

25 where The Defendants have not made any payments since July


1 1st 2009. So, now we're going into the third year, where

2 they haven't made any payments on this money that they

3 borrowed and promised to repay.

4 Additionally, in the interim, a Suggestion of

5 Bankruptcy was filed, which stayed the case in any event.

6 I believe, Orlando Garcia filed a Suggestion of

7 Bankruptcy. So, there is no showing, whatsoever, which

8 under this 3d DCA case, which is controlling authority for

9 The Court that there was any prejudice to Mr. Barcus'

10 clients.

11 I also cite Nezelec N - E - Z - E - L - E - C v

12 Sunbeam Television Corporation. That's cited 413 So 2d,

13 another 3d DCA case from 1982. And in that case, the 3d

14 DCA said that a failure to amend after being given leave

15 to amend was not disobedience of The Court order, but is

16 merely a continuing failure to state a cause of action.

17 Again, Your Honor, it is The Plaintiff's position

18 that there is no threshold showing that there's been no

19 prejudice to The Defendant. There's been no showing or

20 anything on The Court docket to suggest that The

21 Plaintiffs have not intended all along to prosecute this

22 case.

23 Finally, I cite Kozel, K O Z E L v Ostendorf, O - S -

24 T - E - N - D - O - R - F, 629 So 2d 817 from 1993. In

25 that case, the Supreme Court said the purpose of the


1 Florida Rule of Civil Procedure is to encourage the

2 orderly movement of the litigation. There has to be a

3 finding that a dismissal or even something less harsh is

4 even appropriate.

5 Again, even with the Suggestion of Bankruptcy filed,

6 I believe, maybe about a week before the Amended Complaint

7 was finally filed by Shapiro Fishman, the case would have

8 been on a stay anyway from bankruptcy. I lied. There is

9 more cases that I want to cite. North Shore Hospital v

10 Barber (phonetic), another Supreme Court case from 1962

11 said that Florida Law favors adjudication on the merits

12 and not procedural default.

13 So for all of these reasons, I would ask that you

14 deny The Defendants' Motion to Strike, Motion to Dismiss,

15 Motion for Sanctions, and actually, make them show that

16 there was some prejudice to them in the fact that the

17 complaint was filed a month late by Shapiro Fishman. And

18 I also ask The Court to be mindful of the rule, which

19 doesn't state anywhere that The Plaintiff must plead that

20 it owns and holds the note. As long as The Plaintiff is

21 in possession of the note, it is entitled to enforce it.

22 THE COURT: Counsel.

23 MR. BARCUS: Your Honor, opposing counsel's argument

24 seems to be based on whether it is permissible to amend,

25 and Florida Courts leave is given liberally to amend. In


1 fact, this case has been closed by the clerk for lack of

2 prosecution for more than a year, and The Court ordered it

3 to be re-opened. We're not here to decide today whether

4 they have the right to amend or not. What I'm objecting

5 to is the Amended Complaint that they did, in fact, file.

6 Her entire argument ignores Florida Supreme Court

7 Form 1.944, in paragraph three (indicating), which

8 specifically requires any mortgage foreclosure to allege

9 that Plaintiff owns and holds the note and mortgage, which

10 they have failed to do. A holder in due course cannot

11 prosecute a mortgage foreclosure. So, they're in absolute

12 violation of this very specific wording of the November

13 16th 2010 court order. They were told to --

14 THE COURT: It says, holds and owns.

15 MS. ASCHILLE: This is what the proposed form says.

16 However again, the Uniform Commission Code is very clear

17 that a plaintiff does not have to actually own and hold

18 the note. Many times, a servicer brings the action for

19 The Plaintiff, and they are the ones that actually hold

20 the note. And a lot of these Fannie Mae cases, Freddie

21 Mac cases, when the lawsuit is brought in their names,

22 they are not actually the ones who own the note, but

23 they're the ones who hold the note.

24 So, what Mr. Barcus was referring to is a suggestive

25 form. I'm looking at the actual rule, where it doesn't


1 mandate that The Plaintiff has --

2 THE COURT: If the rule doesn't mandate, the form

3 really takes a back seat to the rule. Therefore, the

4 Motion to Dismiss, at this time, is denied. What else was

5 filed? Motion to Dismiss. What else?

6 MS. ASCHILLE: Motion to Strike and Motion for

7 Sanctions.

8 THE COURT: Motion to Strike is denied. Motion for

9 sanctions is denied. Twenty days to file an answer.

10 Thank you.

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13 (Thereupon, the proceedings were concluded.)

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1 CERTIFICATE

2 STATE OF FLORIDA :

3 COUNTY OF DADE :

4

5 I, LOURDES M. RESTREPO, Court Reporter, hereby

6 certify that the foregoing transcript, numbered 1 to and

7 including 13, is a true and correct transcription of my

8 stenographic notes of the proceedings had in the

9 aforementioned cause, heard before MARC SCHUMACHER on the

10 30th day of January, 2012.

11

12 WITNESS my hand, this 7th day of February, 2012.

Court Reporter15 EE 053916

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