FILED 'OHNA.ToMAsnéo

IN THE SUPREME COURT OF FLORIDA DEC 16 2013

ctsag EME COURT

SUPREME CASE NO. SC13-1800

L.T CASE NO. 4D12 - 2831, 11 - 11023

I ''''^"'''^^'"'^"^"^"T"^"°°""'' PETITIONER

VS.

BANK UNITED

RESPONDENT

ON REVIEW FROM THE FOURTH DISTRICT COURT OF APPEAL

PETITIONER LILIA NIVIA A/K/A SAMANTHA ROUSSELL

INITIAL BRIEF

I LILIA NIVIA A/K/A SAMANTHA ROUSSELL

PETITIONER

19940 STONEBROOK ST. WESTON, FL 33332

TABLE OF CONTENTS

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I I Table of citations

Preface

Statement of the case and

Assignments of error

Summary of Argument

Argument

Conclusion

I Certificate of Service

Certificate of Compliance

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facts 3-6

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9-13

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I TABLE OF CITATIONS

1.-Directive 10-02, March 21, 2010

2.-Paragraph 2.3.2 (Non-Approval Notice) Chapter II:HAMP, MHA

I Handbooks V 3. 2 and V 4 . 3

I 3.-Paragraph 3.4.3 (Certification Prior to Foreclosure Sale)

Chapter II: HAMP, MHA Handbooks V 3.2 and V 4.3

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PREFACE

In this Brief, the Petitioner Lilia Nivia will be referred to as

"Nivia", the Respondent Bank United will be referred to as "The

I Bank".

The following symbols

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will be used:

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STATEMENT OF THE CASE AND FACTS

1.-On August 5, 2005 Nivia executed and delivered a Note and a

Mortgage for the amount of $491,700.00 Four hundred Ninety one

I Thousand Seven Hundred dollars on behalf of Bank United FSB.

The collateral of this mortgage is the property located at 19440

Stonebrook Street, Weston Florida 33332.

I 2.-That on May 21, 2009 Bank United FSB was closed by the Office

of the Thrift Supervisor ("OTS") and the Federal Deposit

Insurance Corporation ("FDIC") was appointed receiver.

3.-Subsequent to the closure of Bank United , FSB , " The Bank"

I acquired the assets and most of the liabilities of Bank United

, FSB, from the FDIC as Receiver for Bank United , FSB.

4.-On May 12, 2011 "The Bank" filed a Verified Foreclosure

Complaint in the 17th JudiCial CirCuit Of Florida, Case No.

11011023 against "Nivia".

5.-On May 12, 2011, the Clerk of the Court issued the summons

for the action above stated.

6.-"Nivia" was not served with the summons and Complaint by "The

Bank" s Process Server.

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http:491,700.00

7. - On July 6, 2011 "The Bank" notified "Nivia" of the

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Foreclosure process by a publication on the Broward

Business Review .

8.-On August 31, 2011 "The Bank" filed a Motion for

Judgment of Foreclosure.

Daily

Summary

9.-On August 31,

against "Nivia".

2011 "The Bank" filed a Motion for Default

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10.-On November 30, 2011 the Circuit Court issued a Final

Judgment of Mortgage Foreclosure, scheduling a public sale

January 26, 2012.

for

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11.-On January 23, 2012 "Nivia" filed Bankruptcy Chapter 7 in

the U.S. Bankruptcy Court Southern District of Florida (Fort

Lauderdale) Case No. 12-11627-RBR.

12.-On February 14, 2012 Nivia' s Bankruptcy case was dismissed.

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13.-On February 27, 2012

lower Court that she had

Plaintiff "The Bank".

"Nivia"

filed a

filed a Notice informing the

Modification package with

14.-On March 2, 2012 "The Bank"

Ogrodnik (Relationship Manager)

represented by Elizabeth

sent a letter to "Nivia".

On this letter "The Bank" informed

cure her mortgage delinquency. One

"Nivia" about her options

of the options was the

to

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offering of any MHA (Making Affordable)

Forbearance, and Deed in Lieu).

Program (HAMP, HAFA,

15.-On April 2, 2012 "The Bank"

Reschedule Foreclosure Sale.

filed a Plaintiff's Motion to

I 16.-On April 4,

Modification.

2012 "Nivia" filed a Motion to Finalize

I 17.-On April 4, 2012 the

Rescheduling Foreclosure

lower court issued

Sale for August 2,

an Order

2012.

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18.-On July 16, 2012 "Nivia" filed a Motion to Stop Foreclosure

Sale of 08-02-2012 and Request of 120 Days to Finalize

Modification.

19.-On July 19,

requesting more

Application.

2012 "The Bank" sent a letter

documentation to evaluate her

to "Nivia"

Loan Modification

20.-On July 31, 2012 "The Bank" delivered a

informing her that her Modification Request

her Debt Ratio was too high.

letter to "Nivia"

was denied because

I 21.-On July 31, 2012 "Nivia" sent

disputing its calculations of her

a letter to

Debt Ratio.

"The Bank"

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22.-On July 31, 2012 the Lower Court issued an Order denying

Nivia" Motion to Stop Foreclosure Sale of 08-02-2012 and

Request of 120 Days to Finalize Modification.

23.-On July 31, 2012 "Nivia" appealed the order issued by the

Lower Court denying "Nivia" Motion to Stop Foreclosure Sale of

08-02-2012 and Request of 120 Days to Finalize Modification.

24.-On

Cancel

August 1, 2012 "Nivia" filed an Emergency Motion to

Foreclosure Sale of 08-02-2012 following HAMP guidelines.

I 25.-On August 1, 2012 the Lower Court

Cancel Foreclosure Sale of 08-02-2012

Denied Nivia' s

following HAMP

Motion to

guidelines.

26.-On

opened

August 3, 2012 the Fourth District Court

the Case Number 4D12-2831.

of Appeals

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27.-On May 31, 2013 "Nivia" filed in the Fourth District Court

of Appeals filed A Notice to Invoke Discretionary Jurisdiction

of the Supreme Court.

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ASSIGNMENTS OF ERROR

1.-The Circuit Court erred when it issued the order of April 4,

2022 Re-scheduling the foreclosure Sale date for August 2, 2012.

2.-The Circuit Court erred when it issued the Order of July 31,

I 2012 denying Nivia's Motion to Stop Foreclosure Sale and Request

of 120 days to finalize Modification .

3.-The Fourth District Court of Appeals erred when on 05-22-2012

affirmed the decision of the Circuit Court denying Nivia's

Motion to Stop Foreclosure Sale and Request of 120 days to

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SUMMARY OF ARGUMENT

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The Directive of 10-02 of March 24, 2010 is complemented by

paragraphs 2.3.2 (Non-Approval Notices) and 3.4.3 (Certification

prior to Foreclosure Sale) of Chapter II-HAMP, MHA Handbook V

4.3 both clauses stipulate that prior to the foreclosure auction

the servicer must give the borrower enough time to accept an

I alternative to foreclosure consequently the order matter of this appeal should be reversed.

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ARGUMENT

FIRST ASSIGNMENT OF ERROR

The Circuit Court erred when it issued the Order of April 4,

2012 Re-scheduling the foreclosure sale date for August 2, 2012

due to the fact that Appellant requested a modification of her

loan according to the guidelines of the Making Home Affordable

Program (HAMP) .

On February 29, 2012 "Nivia" requested a modification of her

loan according to HAMP.

"The Bank" sent "Nivia" two letters: The first one dated 03-02

2012, acknowledging "Nivia " requests and the second dated 07

19-2012 stipulating that while "The Bank" was considering

Nivia's requests for HAMP (Home Affordable Modification Program)

her home will not be referred to foreclosure or if the

foreclosure process was already in progress any scheduled

foreclosure sale will not occur pending The Bank's

I determination.

Consequently the Circuit Court should halt the foreclosure

proceedings.

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SECOND ASSIGNMENT OF ERROR

The Circuit Court erred when it issued the order of July 31,

I 2012 denying Nivia's Motion to Stop Foreclosure Sale and Request

of 120 days to finalize modification.

I During the hearing "Nivia" invoke Clause 2.3.2 of V.4.3 MHA Booklet (Non-Approval Notices for borrowers) that clearly

stipulates that a servicer may not conduct a foreclosure sale

I within 30 calendar days after the date of a Non-Approval Notice or any longer period required to review supplemental material

provided by the borrower in response to a Non-Approval Notice

unless the reason for non-approval is 1) Loan originated after

January 1, 2009, not a first loan , or current unpaid balance

above the program limit 2) Loan paid off , or charged off and

borrower released from liability for repayment 3) property

condemned or has more than four dwelling units , 4) Loan subject

to involuntary transfer to s nom-participant 5) Offer not

accepted by borrower /request withdrawn.

THIRD ASSIGNMENT OF ERROR

I The Fourth District Court of Appeals erred when on 05-22-2013

affirmed the order of the Circuit Court issued on July 31, 2012

on the grounds that the Court was not obligated to stop the sale

for 30 days following the HAMP Supplemental Directive 10-02 of

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March 24, 2010 , because the directive does not require a thirty

day postponement, where the request for HAMP modification was

made after a foreclosure date have been set, and the reason for

I denial was the

requirements.

ineligibility of the mortgagor under HAMP

I It is the true the Directive of 10-02 of March 24, 2010

stipulates

or conduct

that a servicer may not

a scheduled foreclosure

refer any loan to foreclosure

sale unless and until at

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least one of the following circumstances exists: The borrower is

evaluated for HAMP and is determined to be ineligible for the

program, but the same directive provide to the borrowers the

alternative to dispute the bank' s decision (Borrower' s Response

period) .

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...the servicer may not conduct a foreclosure sale within30

calendar days after the date of a Non-Approval notice or any

longer period required to review supplemental material provided

by the borrower in response to a non-approval notice unless the

reason for non-approval is 1) Ineligible mortgage, 2) Ineligible

property, 3) Offer not accepted by borrower/request withdrawn or

4) the loan was previously modified under HAMP.

Furthermore the Directive 10-02 of March 21, 2010 is

complemented with paragraphs 2.3.2 (Non-Approval Notices) and

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3.4.3 (Certification prior to foreclosure sale) of Chapter II

I HAMP, MHA Handbooks V 3.2 and V 4.3.

I 2.3.2 Non-Approval Notices

For borrowers not approved for a TPP or permanent HAMP

modification, the Non-Approval

I Notice provides the primary reason(s) for the non-approval. In

addition to the information listed in Section 2.3.1, any Non-

Approval Notice must also: Include a description of other

I foreclosure alternatives for which the borrower may be eligible,

if any, including but not limited to other modification

programs, short sale and/or deed in lieu of foreclosure.

I Identify the steps the borrower must take in order to be

considered for those options. If the servicer has already

approved the borrower for a foreclosure alternative program,

I information necessary to participate in or complete the

alternative should be included.

Whenever a non-government foreclosure prevention option is

I discussed, the notice should be clear that the borrower was

considered but is not eligible for HAMP.

The servicer may not conduct a foreclosure sale within the 30

calendar days after the date of a Non-Approval Notice or any

longer period required to review supplemental material provided

by the borrower in response to a Non-Approval Notice unless the

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reason for non-approval is (1) ineligible mortgage, (2)

ineligible property, (3) offer not accepted by borrower /request

withdrawn, or (4) the loan was previously modified under HAMP.

3.4.3 Certification Prior to Foreclosure Sale

I Servicers must develop and implement written procedures

applicable to all loans that are potentially eligible for HAMP

(and are subject to Section 2.2) that require the servicer to

I provide to the foreclosure attorney/trustee a written

certification that (i) one of the circumstances under Section

3.1 exists, and (ii) all other available loss mitigation

I alternatives have been exhausted and a non-foreclosure outcome

could not be reached. This certification must be provided no

sooner than seven business days prior to the scheduled

foreclosure sale date (the Deadline) or any extension thereof.

In addition, if the servicer is subject to section 4 of Chapter

I, the servicer must consult the relationship manager and obtain

affirmation via e.mail or other writing that, to the best of the

relationship manager's knowledge, all available loss mitigation

alternatives have been exhausted and a non-foreclosure outcome

I could not be reached.

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I CONCLUSION

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The Circuit Court order of 07-31-2012 Denying Nivia' s Motion

Stop Foreclosure Sale and Request of 120 days to Finalize

Modification should be reversed and this matter should be

remanded for further proceedings.

to

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I CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing

has been served by U.S. mail to Kahane and Associates, P.A at

8201 Peters Road , Suite 3OOO, Plantation, Florida 33324 this

November 15 , 2013 .

IL VIA A/K/A SAMANTHA ROUSSELL

I PETITIONER

19940 STONEBROOK ST .

WESTON, FL. 33332

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I I I CERTIFICATE OF COMPLIANCE I I hereby certify that this petition complies with the font

requirements of Rule 9.210 of the Florida Rules of Appellate

procedure.

I I 4L1A4IvIA A/K/A SAMANTHA ROUSSELL

I PETITIONER

19940 STONEBROOK ST.

WESTON, FL. 33332

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IN THE SUPREME COURT OF FLORIDA

SUPREME CASE NO. SC13 - 1800

L.T CASE NO.: 4D12 - 2831, 11 - 11023

I LILIA NIVIA A/K/ A SAMANTHA ROUSSELL

I APPELLANT

VS.

BANK UNITED

APPELLEE

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APPENDIX TO BRIEF OF APPELLANT

I I LILIA NIVIA A/K/A SAMANTHA ROUSSELL KAHANE & ASSOCIATES, PA

APPELLANT 8201 Peters Road, Suite 3000 19940 Stonebrook Street Plantation, F133324 Weston, FL 33332

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I I INDEX TO APPENDIX TO BRIEF OF APPELLANT

I ITEM PAGE

SUPPLEMENTAL DIRECTIVE 10-02 OF MARCH 24, 2010 1-11

I "^"'"°"°"'^""°"°^"'"""°°"^""""''°"®·'"^°''''^"°'° "'' VERIFIED COMPLAINT 16-44

MOTION FOR SUMMARY FINAL JUDGMENT OF FORECLOSURE 45-47

I "'"^''"°°"""'°'"°"'°^°''°""'°®""" ** MOTION TO STOP FORECLOSURE SALE OF 08-02-2012 AND REQUEST OF 120

DAYS TO FINALIZE MODIFICATION 53-54

NOTICE OF HEARING (GENERAL) 55-56

BANK UNITED LETFER 57

ORDER OF JULY 31, 2012 58

I ""'''''^''°''^' EMERGENCY MOTION TO CANCEL FORECLOSURE SALE OF 08-02-12

FOLLOWING HAMP GUIDELINES 60-64

MOTION TO OBJECT SALE OF 08-02-12, TO VACATE CERTIFICATE OF

SALE AND OPPOSSITION TO ISSUANCE OF CERTIFICATE OF TITLE 65-66

VERIFIED STATEMENT AS TO MILITARY STATUS 67-69

I CERTIFICATE OF TITLE 70

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Help for America's HomeownerS MAKING HOME AFFORDABLE

Supplemental Directive 10-02 March 24, 2010

Home Affordable Modification Program - Borrower Outreach and Communication

Background

In Supplemental Directive 09-01, the Treasury Department (Treasury) announced the eligibility, underwriting and servicing requirements for the Home Affordable Modification Program (HAMP). Under HAMP, servicers apply a uniform loan modification process to provide eligible borrowers with sustainable monthly payments for their first lien mortgage loans. This Supplemental Directive represents an ongoing effort to improve program effectiveness by amending policies and procedures related to borrower outreach and communication, especially with respect to the initiation and continuation of foreclosure actions and extending HAMP benefits to borrowers who have filed for bankruptcy court protection. These changes become effective on June 1, 2010. The changes set forth herein do not abridge a servicer's ability to service delinquent loans in accordance with industry standards.

The significant changes described in this Supplemental Directive include:

�042Clarification of the requirement to solicit proactively all borrowers whose first mortgage loans are potentially eligible for HAMP and who have two or more payments due and unpaid. Reasonable solicitation efforts are defined.

�042 (i) a borrower has been evaluatedProhibition against referral to foreclosure until either: and determined to be ineligible for HAMP; or (ii) reasonable solicitation efforts have failed.

�042A requirement that a servicer, in certain specific circumstances, allow a 30-day borrower response period following issuance of a Non-Approval Notice before a foreclosure sale may be conducted.

�042A requirement that a servicer provide a written certification to the foreclosure attorney or trustee stating that a borrower is not HAMP-eligible before a foreclosure sale may be conducted.

�042A requirement that servicers must consider borrowers in active bankruptcy for HAMP if a request is received from the borrower, borrower's counsel or bankruptcy trustee.

�042Clarification of the requirement that servicers use reasonable efforts to obtain approval from investors to participate in HAMP.

EXHIBIT A BORROWER RESPONSE PERIOD

The model clause in this exhibit provides sample language that may be used to explain the I borrower response period that exists after a borrower is issued a Non-Approval Notice unless the

reason for non-approval is (1) ineligible mortgage, (2) ineligible property, (3) offer not accepted by borrower/request withdrawn or (4) the loan was previously modified under HAMP. Use of the model clause is optional; however, it illustrates a level of specificity that is deemed to be in compliance with language requirements of this Supplemental Directive.

I You have 30 calendar days from the date of this notice to contact [name of servicer] to discuss the reason for non-approval for a HAMP modification or to discuss alternative loss mitigation options that may be available to you. Your loan may be referred to foreclosure during this time, or any pending foreclosure action may continue. However, no foreclosure sale will be conducted and you will not lose your home during this 30-day period [or any longer period required for us to review supplemental material you may provide in response to this Notice].

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I Supplemental Directive 10-02 Page A-1

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This Supplemental Directive provides guidance to servicers of first lien mortgage loans that are not owned or guaranteed by Fannie Mae or Freddie Mac (Non-GSE Mortgages). Servicers of first lien mortgage loans that are owned or guaranteed by Fannie Mae or Freddie Mac should refer to the related HAMP guidelines issued by the applicable GSE.

Borrower Communication

Borrower Solicitation Each servicer must have clear and comprehensive internal written policies for identification and solicitation of borrowers who are potentially eligible for HAMP based on information in the servicer's possession. These procedures should follow investor guidelines and comply with all contractual restrictions and with applicable laws, rules and regulations, including, but not limited to, the Fair Debt Collection Practices Act.

Servicers must pre-screen all first lien mortgage loans where two or more payments are due and unpaid to determine if they meet the basic criteria for consideration under HAMP (one-to-four unit residential property, occupied by the borrower as his or her principal residence, not vacant or condemned, originated on or before January 1, 2009, unpaid principal balance does not exceed $729,7501 and not previously modified under HAMP). Servicers must proactively solicit for HAMP any borrower whose loan passes this pre-screen, unless the servicer has documented that the investor is not willing to participate in HAMP pursuant to the "Investor Solicitation" section of this Supplemental Directive.

Solicitation must include written communication clearly describing HAMP. Use of the form of solicitation letter available on www.HMPadmin.com shall satisfy this requirement. The servicer's HAMP solicitation may also identify other options potentially available to help the borrower cure the delinquency and retain homeownership. A servicer is deemed to have made a "Reasonable Effort" to solicit a borrower if over a period of at least 30 calendar days: (1) the servicer makes a minimum of four telephone calls to the last known phone numbers ofrecord, at different times of the day; and (2) the servicer sends two written notices to the last address of record by sending one letter via certified/express mail or via overnight delivery service (such as Federal Express or UPS) with return receipt/delivery confinnation and one letter via regular mail. Any contact with eligible borrowers, whether by telephone, mail or otherwise, must (1) advise borrowers that they may be eligible for HAMP; (2) clearly describe the Initial Package required to be submitted by the borrower pursuant to Supplemental Directive 10-01 and state what other information the servicer needs to complete the HAMP analysis; (3) provide a toll-free telephone number through which the borrower can reach a servicer representative; and (4) identify any unique requirements the servicer may have established for submission of an Initial Package received later than 30 calendar days prior to a scheduled foreclosure sale date. All contact attempts must be documented in the servicing file. If the servicer has documentation evidencing that it satisfied the Reasonable Effort standard for HAMP prior to the effective date of this Supplemental Directive, re-solicitation of the borrower is not required.

1Maximum loan tim t for one unit dwelling. 2 units - $934,200; 3 units - $1,129,250; 4 units - $1,403,400,

suppiemental Directive 10-02 Page 2

http:www.HMPadmin.com

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Successful efforts by a servicer to communicate with the borrower or co-borrower about resolution of the delinquency are termed "right party contact" for purposes of this Supplemental Directive. If right party contact is established and the borrower expresses an interest in HAMP, the servicer must send a written communication to the borrower via regular or electronic mail that clearly describes the Initial Package required to be submitted by the borrower to request a HAMP modification. The communication should:

�042Describe the income evidence required to be evaluated for HAMP;

�042 the for Modification and Affidavit (RMA) (or other proprietaryProvide Request financial information form substantially similar in content to the RMA and, if necessary, a Hardship Affidavit); and

�042Include an Internal Revenue Service (IRS) Form 4506T-EZ (or IRS Form 4506-T, if necessary).

The communication should also include clear language stating that during the HAMP evaluation the home will not: (i) be referred to foreclosure; or (ii) be sold at a foreclosure sale if the foreclosure process has already been initiated. In the communication, the servicer must include a specific date by which the Initial Package must be returned, which must be no less than 15 calendar days from the date ofthe communication. Electronic mail for this purpose may only be sent to an email address provided by the borrower when right party contact was made. Such email address must be documented in the servicing file.

If right party contact is established prior to satisfaction of the Reasonable Effort standard, the servicer must continue to take steps to satisfy the Reasonable Effort standard until the Initial Package is submitted by the borrower.

If right party contact is established but the borrower does not submit an Initial Package, the servicer must resend the Initial Package communication. Again, the servicer must include a specific date by which the Initial Package must be returned, which must be no less than 15 calendar days from the date of the second communication. If the borrower does not respond by providing an Initial Package within the required time period set forth in the second communication, the servicer may determine the borrower to be ineligible for HAMP.

If right party contact is established but the borrower submits an incomplete Initial Package within the required time period, the servicer must comply with the Incomplete Information Notice requirements set forth in Supplemental Directive 10-01. If the borrower does not respond to either the 30-day Incomplete Information Notice or the 15-day Incomplete Information Notice by providing a complete Initial Package within the required time period, the servicer may determine the borrower to be ineligible for HAMP.

The servicer is not required to send an Initial Package if, as a result of discussions with the borrower, the servicer determines that the borrower does not meet the basic eligibility criteria for HAMP as described in Supplemental Directive 09-01, or the servicer determines that the borrower's monthly mortgage obligation (including principal interest, taxes, insurance and

Supplemental Directive 10-02 Page 3

i homeowner's association fee, if applicable) is substantially less than 31% ofthe borrower's gross monthly income. Such decision must be documented in the applicable servicing file.

Other Borrower Communication As set forth in Supplemental Directives 09-07 and 10-01, servicers must acknowledge the Initial

I Package within 10 business days of receipt through a written communication to the borrower that includes a description of the servicer's evaluation process and timeline. Additionally, the communication must include clear language that states that during the HAMP evaluation the

I home will not: (i) be referred to foreclosure; or (ii) be sold at a foreclosure sale if the foreclosure process has already been initiated. If the Initial Package is received from the borrower via email, the servicer may email the acknowledgement to the same email address from which the Initial Package was received or other email address designated by the borrower in the Initial Package.

I Servicer communications should provide the borrower with clear written information designed to help the borrower understand the modification process in accordance with Supplemental Directive 09-01. These communications must provide a toll-free telephone number where the

I borrower can reach a representative of the servicer capable ofproviding specific details about the HAMP modification process. The hours of operation for the toll-free telephone number should be listed.

Servicers must have adequate staffing, written procedures, resources and facilities for receipt, management, retention and retrieval of borrower documents to ensure that borrowers are not required to submit multiple copies of documents. Servicers must accept the RMA and other required verification documents submitted on behalf of borrowers by HUD-approved housing counseling agencies, non-profit consumer advocacy organizations, legal guardians, powers of attorney or legal counsel when the borrower has provided written authorization or provides written authorization contemporaneously with the submission of the RMA. The borrower is considered to have provided written authorization if a copy of the power of attorney, order of guardianship, or other legal papers authorizing the third party to act on behalfofthe borrower are provided. Written authorization may be supplanted by the legal documents authorizing a third party to act more generally on behalf of the borrower in cases of disability or borrowers unavailable due to active duty military service.

Servicers must have written procedures and personnel in place to provide timely and appropriate I responses to borrower inquiries and complaints in connection with HAMP within the timelines

specified in this and previous Supplemental Directives. These procedures must include a process through which borrowers may escalate disagreements to a supervisory level, where a separate

I review of the borrower's eligibility or qualification can be performed.

Foreclosure Actions

I The following guidance replaces in its entirety the guidance set forth on page 14 of Supplemental Directive 09-01 under the heading "Temporary Suspension of Foreclosure Proceedings".

I Supplemental Directive 10-02 Page 4

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Prohibition on Referral and Sale A servicer may not refer any loan to foreclosure or conduct a scheduled foreclosure sale unless and until at least one of the following circumstances exists:

�042The borrower is evaluated for HAMP and is determined to be ineligible for the program; or

�042The borrower is offered a trial period plan, but fails to make a trial period payment by the last day ofthe month in which such payment is due; or

�042The servicer has established right party contact, has sent at least two written requests asking the borrower to supply required information in accordance with this Supplemental Directive and has otherwise satisfied the Reasonable Effort solicitation standard, and the borrower failed to respond by the dates indicated in those requests; or

�042The servicer has satisfied the establishing right party contact; or

Reasonable Effort solicitation standard without

I �042The borrower or co-borrower states he or she is not interested in pursuing a HAMP

modification and such statement is reflected by the servicer in their servicing system.

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Borrower Response Period Supplemental Directive 09-08 describes circumstances in which a written Non-Approval Notice must be provided to borrowers who have not been approved for HAMP. The servicer may not conduct a foreclosure sale within the 30 calendar days after the date of a Non-Approval Notice or any longer period required to review supplemental material provided by the borrower in response to a Non-Approval Notice unless the reason for non-approval is (1) ineligible mortgage, (2) ineligible property, (3) offer not accepted by borrower/request withdrawn or (4) the loan was previously modified under HAMP.

I A model clause describing these rights is attached as Exhibit A. Use of the model clause is optional; however, it illustrates the level of specificity that is deemed to be in compliance with the language requirements ofthis Supplemental Directive.

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Halt ofExisting Foreclosure Actions During a Trial Period Based on Verified Income With respect to a borrower who submits a request for HAMP consideration after a loan has been referred to foreclosure, the servicer shall, immediately upon the borrower's acceptance of a trial period plan based on verified income as described in Supplemental Directive 10-01 and for the duration of the trial period, take those actions within its authority that are necessary to halt further activity and events in the foreclosure process, whether judicial or non-judicial, including but not limited to refraining from scheduling a sale or causing a judgment to be entered.

I The servicer shall not be in violation of this instruction to the extent that: (a) a court with jurisdiction over the foreclosure proceeding (if any), or the bankruptcy court in a bankruptcy case, or the public official charged with carrying out the activity or event, fails or refuses to halt some or all activities or events in the matter after the servicer has made reasonable efforts to

I Supplemental Directive 10-02 Page 5

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move the court or request the public official for a cessation of the activity or event; (b) the servicer must take some action to protect the interests of the owner, investor, guarantor or servicer of the loan in response to action taken by the borrower or other parties in the foreclosure process; or (c) there is not sufficient time following the borrower's acceptance of the trial period plan for the servicer to halt the activity or event, provided that in no event shall the servicer permit a sale to go forward. The servicer must document in the servicing file if any of the foregoing exceptions to the requirement to halt an existing foreclosure action are applicable.

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Deadline for Suspension ofForeclosure Sales When a borrower submits a request for HAMP consideration after a foreclosure sale date has been scheduled and the request is received no later than midnight of the seventh business day prior to the foreclosure sale date (the "Deadline"), the servicer must suspend the sale as necessary to evaluate the borrower for HAMP. Servicers are not required to suspend a foreclosure sale when: (1) a request for HAMP consideration is received after the Deadline; (2) a borrower received a HAMP modification and lost good standing; (3) a borrower received a HAMP offer and failed to make one or more payments under the trial period plan by the last day of the month in which it was due; or (4) a borrower was evaluated based upon an Initial Package and determined to be ineligible under HAMP requirements.

The servicer shall not be in violation of this instruction to the extent that a court with jurisdiction over the foreclosure proceeding (if any), or the bankruptcy court in a bankruptcy case, or the public official charged with carrying out the activity or event, fails or refuses to halt the sale after the servicer has made reasonable efforts to move the court or request the public official for a cessation of the sale. The servicer must document in the servicing file if the foregoing exception to the requirement to suspend an existing foreclosure sale is applicable.

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A borrower will be deemed to have requested consideration for HAMP when a complete Initial Package (i.e., RMA, Form 4506T-EZ, required evidence of income) is received by the servicer or its foreclosure attorney/trustee prior to the Deadline. However, the servicer may establish additional requirements for requests received later than 30 calendar days prior to a scheduled foreclosure sale date, including, for example, a requirement that a complete Initial Package be delivered through certified/express delivery mail with return receipt/delivery confirmation to either the servicer or the foreclosure attorney/foreclosure trustee. These requirements must be posted on the servicer's website and communicated to the borrower in writing in accordance with the Borrower Solicitation requirements of this Supplemental Directive or through other written communication.

8 If the borrower contacts the servicer prior to the Deadline, the servicer must inform the borrower of the Deadline and any submission requirements.

I Mitigating Foreclosure Impact The servicer must take the following action to mitigate foreclosure impact:

I •042Simultaneous Trial Period Plan and Foreclosure Explanation. When a borrower is simultaneously in foreclosure and is either being evaluated for HAMP or is in a trial period plan, the servicer must provide the borrower with a written notification that

supplemental Directive 10-02 Page 6

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explains, in clear language, the concurrent modification and foreclosure processes and that states that even though certain foreclosure activities may continue, the home will not be sold at a foreclosure sale while the borrower is being considered for HAMP or while the borrower is making payments under a trial period plan. Model language for this notification is attached as Exhibit B. Use of the model language is optional; however, it illustrates the level of specificity that is deemed to be in compliance with the language requirements of this Supplemental Directive.

�042Foreclosure Attorney/Trustee Communication. Servicers must develop and implement written policies and procedures to provide notification to their foreclosure attorney/trustee regarding a borrower's HAMP status, including whether the borrower is potentially eligible for HAMP (and is subject to the Borrower Solicitation requirements of this Supplemental Directive), and whether the borrower is being evaluated for, or is currently in, a HAMP trial period plan. Servicers must ensure that their foreclosure attorney/trustee adheres to all of the requirements of this Supplemental Directive with respect to referral to foreclosure, stay of foreclosure actions and suspension of foreclosure sales.

�042 Servicers must develop and implement writtenCertification Prior to Foreclosure Sale. procedures applicable to all loans that are potentially eligible for HAMP (and are subject to the Borrower Solicitation requirements of this Supplemental Directive) that require the servicer to provide to the foreclosure attorney/trustee a written certification that (i) one of the five circumstances under the "Prohibition on Referral and Sale" section of this Supplemental Directive exists, and (ii) all other available loss mitigation alternatives have been exhausted and a non-foreclosure outcome could not be reached. This certification must be provided no sooner than seven business days prior to the scheduled foreclosure sale date (the Deadline) or any extension thereof.

Borrowers in Bankruptcy

Borrowers in active Chapter 7 or Chapter 13 bankruptcy cases must be considered for HAMP if the borrower,2 borrower's counsel or bankruptcy trustee submits a request to the servicer. With the borrower's permission, a bankruptcy trustee may contact the servicer to request a HAMP modification. Servicers are not required to solicit these borrowers proactively for HAMP. Borrowers who are in a trial period plan and subsequently file for bankruptcy may not be denied a HAMP modification on the basis of the bankruptcy filing. The servicer and its counsel must work with the borrower or borrower's counsel to obtain any court and/or trustee approvals required in accordance with local court rules and procedures. Servicers should extend the trial period plan as necessary to accommodate delays in obtaining court approvals or receiving a full remittance of the borrower's trial period payments when they are made to a trustee, but they are not required to extend the trial period beyond two months, resulting in a total five-month trial

2 Where the borrower filed the bankruptcy pro se, (without an attorney), it is recommended that the servicer provide information relating to the availability of a HAMP modification to the borrower with a copy to the bankruptcy trustee. This communication should not imply that it is in any way an attempt to collect a debt. Servicers must consult their legal counsel for appropriate language.

supplemental Directive 10-02 Page 7

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period. In the event of a trial period extension, the borrower shall make a trial period payment for each month of the trial period, including any extension month.

When a borrower in an active Chapter 13 bankruptcy is in a trial period plan and the borrower has made post-petition payments on the first lien mortgage in the amount required by the trial period plan, a servicer must not object to confinnation of a borrower's Chapter 13 plan, move for relief from the automatic bankruptcy stay, or move for dismissal of the Chapter 13 case on the basis that the borrower paid only the amounts due under the trial period plan, as opposed to the non-modified mortgage payments.

Borrowers who have received a Chapter 7 bankruptcy discharge in a case involving the first lien mortgage who did not reaffirm the mortgage debt under applicable law are eligible for HAMP. The following language must be inserted in Section 1 of the Home Affordable Modification Agreement:

"I was discharged in a Chapter 7 bankruptcy proceeding subsequent to the execution of the Loan Documents. Based on this representation, Lender agrees that I will not have personal liability on the debt pursuant to this Agreement."

Substitution of Income Documents When a borrower is in an active Chapter 7 or Chapter 13 bankruptcy, the servicer may accept copies of the bankruptcy schedules and tax returns (if returns are required to be filed) in lieu of the RMA and Form 4506T-EZ, and may use this information to determine borrower eligibility (with the income documentation). Servicers should request the schedules and tax returns from the borrower, borrower's counsel or bankruptcy court. If the bankruptcy schedules are greater than 90 days old as of the date that such schedules are received by the servicer, the borrower must provide updated evidence of income to determine HAMP eligibility. Additionally, either directly or through counsel, borrowers must provide a completed and executed Hardship Affidavit (or RMA).

Waiver ofTrial Period Plan Pending development of systems capability, and at the discretion of the servicer, borrowers in an active Chapter 13 bankruptcy who are determined to be eligible for HAMP may be converted to a permanent modification without completing a trial period plan if:

�042The borrower makes all post-petition payments on their first lien mortgage loan due prior to the effective date of the Home Affordable Modification Agreement, and at least three ofthose payments are equal to or greater than the proposed modified payment;

�042The modification is approved by the bankruptcy court, if required; and

�042The trial period plan waiver is permitted by the applicable investor guidelines.

When payments under a bankruptcy plan are used in lieu of a trial period in accordance with these guidelines, the servicer and borrower will be eligible to accrue "pay for success" and "pay for performance" incentives for the length of a standard HAMP trial period.

supplemental Directive 10-02 Page 8

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Changes to several data reporting attributes under HAMP will be required to enable servicers to report a bankruptcy plan in lieu of a HAMP trial period. Servicers should look for a full description and detail of the data attributes for bankruptcy reporting to be posted on www.HMPadmin.com. Servicers may not exercise this waiver authority until the data elements are posted and the system capability exists to support this policy change.

Continued HAMP Eligibility

Servicers are reminded of those situations when a borrower may seek reconsideration for a HAMP modification. As stated in Supplemental Directive 10-01, a borrower who has been evaluated for HAMP but does not meet the minimum eligibility criteria described in the "HAMP Eligibility" section of Supplemental Directive 09-01 or who meets the minimum eligibility criteria but is not qualified for HAMP by virtue of a negative NPV result, excessive forbearance or other financial reason, may request reconsideration for HAMP at any time prior to the Deadline if they experience a change in circumstance. In these cases, the servicer is obligated to consider the borrower's request pursuant to its obligations under the Servicer Participation Agreement (SPA).

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A servicer's SPA obligation to offer the borrower a HAMP modification is considered satisfied, and the borrower is not eligible for a subsequent HAMP offer, if the borrower either (1) received a HAMP modification and lost good standing, or (2) the borrower received a HAMP offer and either failed to make one or more payments under trial period plan by the last day of the month in which it was due, or if applicable, failed to provide (i) all required documents by the end of the trial period; or (ii) the Home Affordable Loan Modification Agreement and all related documents by the last day ofthe month in which the Modification Effective Date occurs.

I Servicing Transfers of Loans in Foreclosure

i The servicer may transfer a loan free and clear of all HAMP-related obligations under the SPA if one of the five circumstances under the "Prohibition on Referral and Sale" section of this Supplemental Directive exists with respect to such loan, and any applicable response period has elapsed, unless a borrower with continued HAMP eligibility requests consideration prior to the effective date of the servicing transfer. Such loans are not required to be transferred pursuant to the form of Assignment and Assumption Agreement attached as Exhibit D to the Servicer Participation Agreement. Servicers should refer to the "Transfers of Servicing" section of Supplemental Directive 09-01 for guidance regarding servicing transfers of loans modified pursuant to HAMP.

Investor Solicitation

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Within 90 days of executing a Servicer Participation Agreement (SPA), the servicer must review all servicing agreements to determine investor participation in the program. Within 30 days of identifying an investor as a non-participant, the servicer will contact the investor in writing at least once, encouraging the investor to permit modifications under HAMP.

I Supplemental Directive 10-02 Page 9

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Within 60 calendar days following the effective date of this Supplemental Directive, participating servicers must, if they have not already done so, provide to Fannie Mae, as Treasury's Program Administrator: (1) the number of investors for whom it services loans; (2) a list of those investors who do not participate in HAMP; and (3) the number of loans serviced for each investor that does not participate in HAMP. Servicers that execute a SPA after the date of

I this Supplemental Directive must provide the investor participation list to Fannie Mae, as Treasury's program administrator, within 120 days of SPA execution.

Servicers are required to notify Fannie Mae, as Treasury's Program Administrator, of changes to the Investor Participation List within 30 calendar days of any change.

Documentation

Servicers are required to maintain appropriate documentary evidence of their HAMP-related activities, and to provide that documentary evidence upon request to Freddie Mac as the Compliance Agent for Treasury. As Compliance Agent, Freddie Mac will incorporate the additional requirements articulated in this Supplemental Directive into its compliance program. Servicers must maintain documentation in well-documented servicer system notes or in loan files for all HAMP activities addressed in this Supplemental Directive, including, but not limited to, the following:

�042All HAMP related communications, whether verbal or written, with or to the borrower or I trusted advisor (including but not limited to the dates of communications, names of

contact person(s), and a summary of the conversation), including any email correspondence to or from the borrower.

�042Pre-screening of loans for HAMP prior to referring any loan to foreclosure or conducting scheduled foreclosure sales.

�042Postponement of scheduled foreclosure sales in applicable scenarios.

I �042 or Chapter 13Substitution of income documents for borrowers in active Chapter 7 bankruptcy.

�042Waiver ofthe trial period plan for borrowers in active Chapter 13 bankruptcy.

�042Policies and procedures required by this Supplemental Directive.

�042Certification prior to foreclosure sale.

�042Evidence of assessment of investor willingness to participate in HAMP and any specific outreach to investors on either a portfolio or loan-by-loan basis, including copies of any contracts with investors relied upon in denying HAMP modifications. This should include, where applicable, documentation relating to specific parameters or limitations on participation required by investors for steps in the waterfall.

�042Evidence of receipt of the Initial Package from a borrower.

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MAKING HOME AF FORDABLE I

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Making Home Affordable~ Program Handbook for Servicers of Non-GSE Mortgages

A of June 1, 20 1

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MAKING HOME AF FORDABLE

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Chapter ||

Home Affordable Modification Program (HAMP)

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and can request assistance in understanding the Borrower Notice by asking for MHA Help.

Any information, disclosures or notices required by the borrower's mortgage documents and applicable federal, state and local law.

2.3.2 Non-Approval Notices

For borrowers not approved for a TPP or permanent HAMP modification, the Non-Approval Notice provides the primary reason(s) for the non-approval. In addition to the information listed in Section 2.3.1, any Non-Approval Notice must also:

�042Include a description of other foreclosure alternatives for which the borrower may be eligible, if any, including but not limited to other modification programs, short sale and/or deed in lieu of foreclosure.

�042Identify the steps the borrower must take in order to be considered for those options.

�042If the servicer has already approved the borrower for a foreclosure altemative program, information necessary to participate in or complete the alternative should be included.

Whenever a non-government foreclosure prevention option is discussed, the notice should be clear that the borrower was considered but is not eligible for HAMP.

The servicer may not conduct a foreclosure sale within the 30 calendar days after the date of a Non-Approval Notice or any longer period required to review supplemental material provided by the borrower in response to a Non-Approval Notice unless the reason for non-approval is (1) ineligible mortgage, (2) ineligible property, (3) offer not accepted by borrower / request withdrawn, or (4) the loan was previously modified under HAMP.

A model clause describing these rights is provided in Exhibit A. Use of the model clause is optional; however, it illustrates the level of specificity that is deemed to be in compliance with the language requirements of this Handbook.

in addition, effective February 1, 2011, if the servicer has performed an NPV evaluation, regardless of whether a negative NPV result was the actual reason for the non-approval of the borrower, the Non-Approval Notice must list the NPV Data Input Fields and Values used in the NPV evaluation as listed in Exhibit A. The purpose of providing this information is to allow a borrower who is ineligible because the transaction is NPV negative the opportunity to correct values that may impact the analysis of the borrower's eligibility. All Non-Approval Notices must include an e-mail address and mailing address for communicating with the servicer if the borrower wishes to dispute the reasons for a non-approval determination and to submit written evidence. Because the NPV Data input Fields and Values must be disclosed to a borrower declined for HAMP whenever an NPV evaluation is performed, regardless of whether a negative NPV result was the reason for non-approval, servicers are encouraged to assess all other borrower eligibility criteria before performing an NPV evaluation in order to reduce instances in which NPV Data input Fields and Values must be disclosed when a negative NPV result is not the reason for non-approval. In fact, if NPV Data Input Fields and Values are included in a Non-Approval Notice but the reason the for the non-approval was not a negative NPV result, the Non-Approval Notice must include a statement that the borrower is not entitled to dispute the NPV Data input Fields and Values.

A Non-Approval Notice must be mailed no later than 10 business days following the date of the servicer's determination that a TPP or a permanent HAMP modification will not be offered.

I Chapter 11: HAMP MHA Handbook v3.2 54

3.4.2 ForeciosureAttorney/Trustee Communication

Servicers must develop and implement written policies and procedures to provide notification to their foreclosure attorney/trustee regarding a borrower's HAMP status, including whether the borrower is potentially eligible for HAMP (and is subject to Section 2.2), and whether the borrower is being evaluated for, or is currently in, a TPP. Servicers must ensure that their foreclosure attorney/trustee adheres to all of the requirements of Section 3.1, Section 3.2 and Section 3.3 with respect to referral to foreclosure, stay of foreclosure actions and suspension of foreclosure sales.

3.4.3 Certification Prior to Foreciosure Sale

I Servicers must develop and implement written procedures applicable to all loans that are potentially eligible for HAMP (and are subject to Section 2.2) that require the servicer to provide to the foreclosure attorney/trustee a written certification that (i) one of the circumstances under Section 3.1 exists, and (ii) all other available loss mitigation altematives have been exhausted and a non-foreclosure outcome could not be reached. This certification must be provided no sooner than seven business days prior to the scheduled foreclosure sale date (the Deadline) or any extension thereof.

4 Request forModifiCation For all TPPs with effective dates on or after June 1, 20ìØ, a servicer may evaluate a borrower for HAMP only after the servicer receives the following documents, subsequently referred to as the "Initial Package". Throughout this Handbook, unless otherwise indicated, all references to the "borrower" include any and all co-borrowers. The Initial Package includes:

1 •042RMA Form, •042IRS Form 4506-T or 4506T-EZ, •042Evidence of income, and •042Dodd-Frank Certification.

For all documents required by Treasury (other than for IRS Form 4506-T/4506T-EZ), electronic submission and signatures are acceptable.

4.1 Request for Modification and Affidavit (RMA) Form

E The RMA provides the servicer with borrower financial information, including the cause of the borrower's hardship. The financial information and hardship sections of the RMA must be completed and executed by the borrower and, if applicable, any co-borrower. The RMA is available on www.HMPadmin.com.

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Servicers may require use of the RMA by all borrowers requesting consideration for HAMP or may use other proprietary financial information forms that are substantially similar in content to the RMA. When provided by or on behalf of the borrower, the RMA form must be accepted by servicers in lieu of any servicer-specific form(s). When the RMA is not used, servicers must obtain an executed MHA Hardship Affidavit, which is available on www.HMPadmin.com. Servicers may also incorporate all of the information on this standalone affidavit into their proprietary form. Throughout this Handbook, the term RMA is used to indicate both the HAMP RMA form and servicer proprietary forms substituted for the RMA.

4. i.1 HardshipAffidavit

E Included in the RMA is a Hardship Affidavit. Every borrower seeking a modification, regardless of delinquency status must sign a Hardship Affidavit that attests that the borrower is unable to continue making full mortgage payments and describes one or more of the following types of hardship:

I chapter 11: HAMP MHA Handbook v3.2 60

15

CIVIL DIVISION CASE NO.

BANKUNITED, u

Plaintiff,

I - 11- ULIA NIVIA A/K/A ULIA ALCIRA NIV1A;1TNKNOWN SPOUSE OF L1L1A NPilA A/K/A UUA ALCIRA NIVIA;

-lSLES AT WESTON llOMEOWNERS' ASSOC1ATION, INC.;sUNKNOWN PERSON(S) IN POSSESSION OF THE SUBJECT PROPERTY;

Defendants. . .. '

yERIF1ED COMPLAINT

The Plaintiff, BANKUNITED, sues the Defendants named in the caption hereofand alleges:

1. This is an action to foreclose a mortgage on real property in BROWARD County, Florida.

2. On Auguai 5, 2005, LILIA NIVIA cxecuted and delivered a promissory note and UUA NIVIA executed

and delivered a purchase money mortgage securing payment of the same. Said mortgage was recorded in

OfFtcial Records Book 40625, Page 884, of the Public Records of BROWARD County, Florida, and which

mortgaged the property described therem, then owned by and in possession of anid mortgagor. The Note

was negotiated and/or transferred to the Plaintiff. A copy of the noic, mortgage, and assigmnent of

mortgage are attached hereto and made a part bereof.

The payee of the note and originator of this mortgage loan, BankUmied, FSB, Plaintiff's predecessor in 3.

interest, was closed on May 2L 2009, by the Ofnce of the Thrift Supervision ("OTS") and the Federal

Deposit Insurance Corporation ("FDIC") was appointed Receiver.

Subsequent to the closure ofBankUnited, FSB, Plaintiff BankUnited, a newly chartered federal savings4.

bank, acquired the assets and most of the liabilities of BankUnited, FSB from the FDIC as Receiver for

BankUnited, FSB. 5. The subject Mortgage was transferred from BankUnited, FSB to Plaintiff. BankUnited.

I licensed by the State of Florida. Moreover, its principal place of business is m the state ofFlorida;

therefore, it is not a foreign entity pursuant to Fla. Stat. § 665 1011 that can be required to post a cost bone.

'l. Plaintig is a person entitled to enforce the note and mortgage.

8. Defendant(s), LILIA NTVIA A/K/A LILIA ALCllLA N1VIA, own(s) the property..

9. There has been a default under the note and mortgage held by Plaintiff in that the payment due luly 1, 2010,

and all subsequent payments have not been made. Plaintiff declares the full amount due under the note and

mortgage to be now due.

10. All conditions precedent to the filing of this action have been performed or have occurred.

I 1. There is now due, owing and unpaid to Plaintiff herem $563,335.03 on principal of said note and mortgage,

§ plus interest from June 1, 2010, and title search expenses for ascertaining necessary parties to this suit,

esemw shortage, advances, late fees, costs and attorneys fees.

I 12. Plaintiff has obligated itself to pay the undersigned attorneys a reasonable fee for their services herein.

13. UNKNOWN SPOUSE OF LlLIA NIVIA A/K!A LILIA ALCIRA NIVIA may claim some mierest or lien

upon the subject property. Said interest, if any, is subject and inferior to the hen ofPlaintiffs mortgage.

14. ISLES AT WESTON HOMEOWNERS' ASSOCIATlON, INC. may claim some interest in or lien upon the

subject property by virtue of UNPAID ASSESSMENTS AND MAINTENANCE FEES. Said interest, if

any, is subject and inferior to the lien of Plaintiff s mortgage.

15. Defendant, Unknown Person(s) m Possession of the Subject Property, may claim an interest in the subject

property by virtue of being in actual posession uf &une or by virtue of c ten:mcy at will, hur the intemt if

any, is subject and inferior to the lien of Plaintiff s mortgage, or is otherwise terminable as provided by law.

WH EREFORE, Plaintiff prays as follows:

(a.) That this Court will take jurisdiction of this cause. of the subject matter and the parties hereto.

(b.) That this Court ascertain and determine die sums of money due and payable to the Plaintiff from

the Defendants.

(c.) That the sum ofmoney found to be due as aforesaid be decreed by this Court to be a lien upon the

lands described in Plaintiff s mortgagc.

(d.) That such lien be foreclosed in accordance with the rules and established practice of this Court,

and upon failure of the Defendants to pay the amount of money found to be due by them to the

Plaintiff, the said land be sold to satisfy said lien.

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of the Defendants herein or any person or parties claiming by, through or under them since the

institution of this suit,

(f.) That all right, title or interest of the Defendams or any person claiming by, through or under them

be forever barred and foreclosed.

(g.) That the Court retain jurisdiction of this cause to grant further relief as the Court deems just and

proper including. but not hmited to, deficiency judgmentfs) if the proceeds of the sale are

insufficient to pay Plainuffs claim. Reservation of jurisdiction pertaining to deficiency judgments

shall not apply to matters wherein the debt has been properly scheduled and discharged m

bankruptcy,

Kahane & Associates. P.A. 8201 Peters Road, Ste. 3000 Plantation, Florida 33324 Telephone: (954)382-3486 Telefacsunile. (954) 382-5380

Dy Courtney Rilbourne. Esq. Bar. No.: 44349

Wendy C. MäDSWC FBN 1202

i VERfFICATION OF COMPLAINT

I Uuder penalty of perjury, I declare that I have read the foregoing Complaint, and the facts alleged therein ar ue and correct to the best of my knowledge and bel ef.

Dared: of Wu 2011.

Ban Un d -

Print Name and Title

Hollywood, FL 33021 alww BANKUNITED, FSB

7815 NW 148 ST, MIAMI LAKES, FL 33016 DEPA Cl ER #2 18 Pages

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BANKUNITED, FSB ATTN: POST CLOSING 7815 NW 148 STREET MIAMI LAKES, FL 33016

DEFINITIONS

~ [Space Al>ove Thl

MORTGAGE Line For Recording Dataj · - · -- ,

Words used n multiple scenons of ilus document are defined below and other v.ords are defined in Sections A 1 L 13 and 21. Ceriam ndes regarding the usage of uords used m this documem are also provided m Scenon ¼

18,. 20

(A) "Security Instrument" means this document, which is dated August 05, 2005 Riders lo this document (B) "Borrower"is LlLIA NIVIA, A SINGLE WOMAN

, together with all

8

Borrower is the mortgapor under this Securiiv Instrument (C) "Lender"isBankUnited,FSB

Lender is a CORPORATION the laws of UNITED STATES OF AMERICA

7815 NW 148 STREET, MIAMI LAKES, Florida 33016

orpamzed and exisimp under

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. 1,endei is the morleauce under uns Securiiv Insuument. (D) "Note"means the pron»ssory noic signed bs Honower and daiej August 05, 20Ö5 states that Borrower owes Lender Four Hundreif Ninety One Thousand Seven Hundred and nol100

Dollars n!.S. $491,700.00 ) plus mierest. Borrower has in omised to pay this debt in regular Periodic Payments and to pay the debt in fuh not later than September 01, 2035

(E) "Property" means the propeny that is described below under the headmg 'l ransfer of Rights in the Properi (F) "Loan" means the debi evidenced by the Note. plus interest any prepayment charges and hac charges due under the Note, and all sums due undes this Security Instrument plus interesi.

(G) "Riders" means all Riders to this Securiiv Instrument that are executed bv Porrower. The following Riders are to be executed by Borrower [check box as applicablel

2

Adjustable Rate Rider Condannmum Rider 1 second llome Rider

Halloon Rider Planned I:nit Development Rider |_ Other(s) [specifyl

j 1 -4 Fannly Rider Biweekly Payment Rider

1 FLORIDA-Siugle l·amily-Fannie Mae/Freddie Mac UNIFORM INSTRUMENT

»EM 41M1 $1! MFFL3112 il* i "! ll /"& '

000458364-7 Form 3010 1/01 uMLATLAND E

°°''''°°" "°°°**°* 3 ''' "'4°"''''

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(H) "Applicable Law" means all controlling applicable federal state and loca! statutes. regulatna. ordiLawe admimstrative roles and orders (that have the eiTect of law) as well as all applicable final, nowappeulable judicial opunota

(I) "Community Association Dues, Fees, and Assessments" means all dues, fees. assessmenu and other charges that are imposed on Horrower or the Property by a condoininiuni a»ociwion. honieuwners association or sinnlar organization.

(J) "Electronic Funds Transfer" means any transfei of funds, other than a transaction originated by cheel draft or

similar paper nistn»nent. which is initiated ihrough an electronic ternünal telephonic ins1rument, computer, or magnetic tape

so as to order. instruct, on authorize a finaticial msntunon to dehn or creda an account Such term includes. but is not limited

to. ixunt-of4ale transfers. automated teller machine transactions, tr:msfers mitmwd by ielephone. wire transfers and

automated clearinghouse transfers.

(K) "Escrow Items" means those items that are described in Section 3. (L) "Miscellaneous Proceeds" means any compensatioti, settlement, awmd of damages- or proceeds pmd by any third party tother than insurance proceeds paid under the coverages described in Section 5) for: ti) daniage to. or destruction of, the

Property; (ii) condemnation or other taking of all or any part of the Property; (iii) conveyance in lieu of condeinnatioti: or

liv i udsrepresentations of, or omissions as to. the value and/or condiuon of the Property. (M) "Mortgage Insurance" means insurance protecting Lender against the nonpayment of. or defauh on. the Loan. (N) "Periodle Payment" means the regularly schednkxl amouni due fm ri) principal mal interest under the Note. plus

tii) any amounts under Section 3 ol'ihis Seenrity Instrumen1. (O) "RESPA" means the l«eal hstate Settlemen1 Procedures Act i12 UXC k2601 ei sep ami its implementing repulation. Regulaiion X (2-1 C1'.R. Part 3500). as they nnght he amended from time to time, or any addilional or successor legislation

or regulation thai governs the same subject tuaner. As used in this Security Instrument. "RESPA" refers to all requirements and restrictions that arc imposed in regard to a "feclerally related mortgage loan" even if the Loan does not qualify as a

"federally related mortgage loan" under RESPA.

(P) "Successor in Interest of Borrower" means any party that has taken iiile to the Property, whether or noi that party has assumed Borrowcr's obligations under the Noie and/or 1bis Security histrmnent.

TR ANSFER OF RIGHTS IN THE PROPERTY

Tlus Security Instrument secures to 1.ender:

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y ..Applicable Law" means all controlling applicable federal stwe and local statutes. regulations. orperty by a condominium asweianon. hoineowners associatum or simihir orpamzation.

(J) "Electronle Funds Transfer" means any transfer of 1onds. other than a transaction originated by cheek. lustrmnent and the Note. For

this purpose. Borrower does hereby moricace, grant and convey io Lender. the followine described property located m theCOUNTY - �042 BROWARD

11ype dRecordmp.turbdicúon) |Nmm of Recoidmg Jurisdacnon!

LOT 26, BLOCK 6, ISLES AT WESTON, ACCORDING TO THE PLAT THEREOF, RECORDED IN PLAT BOOK 171, PAGE (S) 40-56, OF THE PUBLIC RECORDS OF BROWARD COUNTY, FLORIDA

19440STONEBROOKSTREET which cunently has the address of

WESTON . Fh>rnia 33332 rProperty Address"): Icuyl F/4 úM

TOGETHER WITH all the improvements now or hereafter erected on the property, and all casements, appurtenances, and fixtures now or hereafter a part of the property. All replacements and additions shall also be covered by this Security instrument. All of the foregoing is referred to in this Security Instrument as the "Property

FLORi1MÄingle innsDy Fannie Mue/Freddle Ms UNRFORM INSTR| FMENT orX)4s9364.7 Forza .7010 1892

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BORROWER COVENANTS that Borrower is lawfulk seised of the estate hereby conveyed and has the nghi to umrtgage. grant and convey the Property and that the Properry is imencmnhered. excepi lor enemnbrances of record Borrower warrauis and wiH defend pencrally ihe hile io the Propery ayans wl clanns and demands. subjeci io any encumbrances of record

THIS SbCURITY INSTRUMENT combines uniform covenants for na1ional use and non-uniform covenants with Innned variations by jurisdiction to constitute a uniform security instrument covermg real property.

UNIFORM COVENANTS. Borrower and Lender covenant and aprec as follows:

1. Payment of Principal, Interest, Escrow ltems, Prepayment Charges, and Late Charges. Borrower shall pav when due the pr ucipal of, and interest on. the debt evidenced b3 the Note and any prepayment charges and late charges due

under the Note. Rorrower shall also pay funds for l¼crow ltems pursuani to Seelion R Payments due under the Note and this

Securii> lustrumeni shall he made in ILS currency. However, if any chech or other instrument received by Lender as payinent under the Note or this Security Instrument is returned to Lender unpajd, Lender may require that any or all

subsequent payments due under the Note and this Security Instrument be made in one or more of the following forms, as

selected hv Lender: (a) cash: (b) money order: cc) certified check, bank check, treasurer's check or cashier's check. provided any such check is drawn upon an insinntion whose deposits are insured by a federal agency. instrumentality. or entity; or id) Electronic Funds Transfer .

Payments are deemed received by Lender when received at the location designated in the Note or at such othei k3canon as may he designaled by Lender in accordance with the notice provisions in Seenon 15. Lender may return any paymeni or partial payment if the payment or partial payments are msulTicicm to brmg the Loan enrrent. Lender may accept any payment

or panial payment msufhcient to bring the 1.oan curreni. withoin wmver of any rights hereunder or prejudice to as rights to

refuse such payment or partial payments m the future. but Lender is not obhpated in apply such payments at the inne such payments are accepted. If each Periodic payment is applied as of us scheduled due date. then Lender need not pay micrcsi on unapplied funds. Lender may hold such unapplied funds until Rorrower makes payment to brmy the Loxu current. If

Borrower does not do so wnhin a reasonable period of inne, Lender shall eaber apply such funds or return them to Rorrower. If no1 applied earlier, such funds will he applied to the ouis1anding principal balance under the Note nmnediately prior to

foreclosure. No offsei or claim which Borrower might have now or in the inture agains1 Lender shall reheve Borrower from

making payments due undet the Note and this Security Instrument or perfomung the covenants and apeements secured by this Security lustnunent.

2. Application of Payments or Proceeds. Incep1 as otherwise described in this Section 2, all payments accepted and applied by Lender shall he applied m the following order ol priority; (a) interest due nuder the Note: (b) principal due

under the Note: ic) amounts due under Section 4 Swh payments shall be applied to each Periodic Pnynicnt in the orden in wluch n becenne due. Any remaintug amounts shall be applied first to late charges, second to any other announts due under this Sceuruy instrument, and then to reduce the principal balance of the Note.

If Lender receives a payment from Borrower for a delinqueni Periodic Payment which includes a sullicien1 amoum in

pay any late charge due, the payment may be applied to the dehnquent payment and the late charge. If more than oise Periodic Payment is outstanding, Lender may apply any payment received from Borrowei to the repayment of the Periodic Payments

i . and to the exteni that, each payment can be paid in full. To the ex tent that any excess exists aftei the payment is applied to t i payment of one or more Periodic payments, such excess may be applied to any late charges due. Volumaryprepayments shall be applied first to any prepayment charges and then as described in the Noie.

Any application of payments. msurance proceeds. or Mmeellancons Proceeds to principal due under the Note shall extend or postpone the due dale, or change the amount. of the Periodic Payments

3. Funds for Escrow Items. Borrower shall >ay to L i | | 3 . >until the Note is paid in full, a sum ithe "Fun is" 1 em er on i ie c ay I crioda I ayments are due unden the Note,

other items which can attain priority over this S ur t h n e nent ol amounts due for: (a) taxes and assessnients and payments or ground rents on the Property if a - ( a ien or encumbrance on the Property; (b) leasehold and (d) Mortgage Insurance premiums if n3; el premiums for any and all msurance required by Lender under Section 5:

Mortgage Insurance premiums in accordane th tfimy surns payable by Borrower to Lcnder m lieu of the payment of origination or at any time durine the term of the L ie pr sions of Seehon 10. These iicm3 are called "Escrow Items." Ai

Assessments, if any, he escrowed by Borrower ancl orm ender may require that connnnnity Association Dues. Fees. and

promptly furnish to Lender all notices of tunoti sue i dues, fees and assessments shall be an Eserow Item. Borrower shall nts io be paid under this Section. Borrower shall pay Lender the Funds for

FLORIDA.-Singk Family_. Fannie Mae/Freddle Mac UNIFORM INSTR I rMENT ITEM misucou!U MFFL3112 000458364-7 FormJoloIA)1

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Fscrow licms unless I ender waives Borrower s obbgation to pay the Funds for mn or ali incrow heno. I.ende, may g mve

Borrower's ohhganon to pay to Lendet Funds for any or all Escrow licms at any tinic. Any such wmer may onl3 be in writmp in the cient of such waiver. Borrower shall pay directly, when and where payable. the amoums due for anv Escrou

hems foi which payment of Funds has been waited by Lender and. if Lender requires, shall furnish to Lendes receipis evidenemy such payment withm such time periotl as lander may require. Borrower's obligation to make such payments and

to provide receipts shall f or all purposes be deemed to be a covenant and agreement contained in ibis Seenrity Instrument. as the phrase "covenant and agreemen1" is nsed m Seen»n 9 If Borrower is obhgated to pay Escrow items directly. puisuant to a waivet and Borrower fails to pay the amoum due for an Eserow item. Lender ma3 cxercise its rights under Section 9 and

pay such amount and Borrower shall then he obligated tmder Secuon 9 to repay to Lender any such amount. Lender nmy rev oke the waiver us to any or aH Esenm hems at an> time by a nonce given in accordance with Section 15 and. upon such

revocation. Horrower shall pay to Lendcr all 1-nnds and m such iunoonts that are ilien required under this Seeiion 3. hender may, at any time, collect and hold Funds m an amouni ta) suffiaent to pennit Lender to up ly the Funds at the

tinie speedied umler RliSPA. and (b d 11 i noi to excee le maximinn amount a lender can require under RESPA. Lender shall

estimate the amount of Funds due on the basis of current data and reasonable estimates of expenditures of future Escrow hems on otherwise in accordance with Applicable Law.

1he Funds shall be held in an institulion whose deposits are insured h3 a federal agency, instrinnentality, or enliti (mc u ingFLender, if I.ender is an instunhon whose deposib in so insured) or in any Federal Honie Loan Bank. 1 ender shalÍ app 3 e mids to pay the Escrow items no laser than the time specified under RESPA. Lemier shall not charge Borrower for holdmg and applymg the F.nnds. annually analy4mg the escrow account. or ventying the F.scrow Items. miless Lender pays

Borrower mierest on the l'unds ami Applicable 1.au pernnts Lender to nutke such a charge. (Inless an agreement is made in wnling or Applicable I,aw requires interest to be paid on the Funds. Leialer shall noi be required to pav Borrower an) tuterest or earnmgs on the I-tmds. Borrower and Lender can agree in wrning, however, ihal niterest shall be paid on the Funds Lender shall give to Borrower, without charge, an annual accounting of the Funds as reipureel by RESPA.

If there is a surphis of Funds held in escrow. as defined under RESPA, Lcnder shall account to Borrower for the excess innds m accordance with RESPA. If there is a shortage of Funds held m escrow. as clefined tinder RESPA, Lender shall notify Bonower as required by RESPA. and Borrower shall pay to Lender the amount necessary to make up the shorta e in accor

I require Borrower to pay in connection with this 1 oan, either: (a) a one-tmie charge for flood zone detennntation.

cerufication and uackum services· or íbi a onedime charge for flood wne delenmnauon and cernítcanon services and subsequent charges each inne rernappings or sunilar changes ocem which reasonably might affect such detennmanon or certificauon, Borrower shall also be responsible for lhe payment of im) fees nnposed by the Federal Emergency Managemem

Agency in conuccoon with the reuew of any dood zone deternunauon resuliing from an ohjeerion by Borrower

If Borrower 1mis to umintain any oj ihe coverages described abme, 1,ender may oNam insurance coverayc. ai Lender option and Borrower's expense. Lendet is undei no ohhymion lo pmebase any partienhir type or amount of coverage

I Therefore such coverage shall cover Lender. but unght or miWo noi proieet Bonouer, Horrower's e

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disburse proceeds for the repairs and restoration m a sm ) conipleted If the insurance or conderunation 3rocce i y e payment or in a .,enes of promss paynients as the work is relieved of Borrower's obhpainon f or the comp erron of . n m restore the Property, Borrower is not

Lender or ns ageni may make reasonable entries upon and inspecnons of the Property . If it has reasonahie cause. Lender nwy inspect the intenor of the unprmements on the Property. Lender shWI pve Borrowei notice at the tiene of or prior to such an interior mspection specilymp such reasonable cause.

8. Borrower's Loan Application. Huronver shall be in ddanit d. durmy the Loan application process, Borrower or any persons or eninres acimg at the direction of Borrower or wilh Borrower s knowledge or consent gave materially talse,

un ng, or inaccurate information on statements to Lender (or failed to promle Lender with material inforniation) in connection with the Luan. Material representauous incinde. hoi are not hunted in. representations concerning Borrower occupancy of the Property as Borrower's prmeipal residence.

9. Protection of Lender's Interest in the Property and Rights Under this Security Instrument. If w Borrower fails in perform the covenants and agreements contained in this Security Instrument. (b) theie i>. a legal proceedmp thal might siginficantly affect Lender's mierest in ihe Property mid/or r ights under ilus Seeunty insirnment asuch as a proceeding m bankruptcy probate. for condenmation or forfeiture. for enforcenient of a lien which may attain priority over this Security Instrument or to enfurec laws or regulations), or (c) Bormwer has abandoned the Property, then Lender niay do and pay for

whatever is reasonable or appropriate to protect Ixnder's interesi in the Properly and rights under this Security lustrument, inelnding protecting and/or assessing the value of the Propert), and securing and/or repairing the Property. Lender's actions can include, but are not hmited in: (a) paying any sunis secured by a ben which Ims priority over uns Security lustrument: (h3 appearing in court; and ici paying reasonable atiorneys' fees to protect its interest in the Property and/or rights under this Scenrily Instrument. including its secured position in a bankruptcy proceedmg. Seenring the Property includes, but is not liinited to. entering the Property to make repairs, change locks, replace or boant up doors and windows. drain water from pipes, cliniinate building or other code violations or dangerons conditions, and have utilities turned on or off. Although Lender may take action under this Section 9. Lender does not have to do so imd is not under any duty or obligation to do so.

It is agreed that Lender incurs no liability for not taking any or all neiions mahorved under this Section 9. Any ainonnis disbursed by Lendei under tlus Section 9 shall become additional debt of Borrower secured by this

Security Instrument. These amoums shall hear interest at the Note rate from the date of disbursement and shall be payable. with such mierest, upon notice from Lender to Borrower requesting payment.

If this Security lustrunnent is on a leasehold, Bormwer shall comply w ith all the provisions of the lease. If Borrower acquires fee title to the Properiy, the leasehold and the fee title shall not merge unless Lender aprecs to the tuerger in writmg

10. Mortgage Insurance. If Lender required Mortgage Insurance as a condinon of making the Loan, Borrower shall pay the prennums required to maintain the Mortgage Insurance in efleet. If, f or any r eason, the Mortgage Insurance coverage

required by Lender ceases to be available froin the mortgage insurer ihat previously provided such insurance and Borrower was required to make separately designated payments toward the prennums f or Mortpage insurance, Borrower shall pay the

premiums required to obtain coverage substantially equisalent to the Morigare insurance previously in effect at a cost substantially equivalent to the cost to Borrower of the Mortgage Insurmwe previondy m ef fect. from an alternate mortgage insurer selected by Lender. If substantially eqinvalent Mortgage insurance m eiage is noi mailabic. Borrowei shall continue to pay to Lender the amount of the separately designated pay nients that were due when the msurance coverage ceased to be m effect. Lender will accept, use and retain these payments as a non-refundable loss reserve in lieu of Mortgapc Insurance. Sneh loss reserve shall be non-refundable, notwithstanding the fact that the Loan is uhimately paid in full, and Lender shall not be required to pay Borrower any interest or earnings on such loss reserve. Lender can no longer regnire loss reserve payments if Mortgage lusurance coverage (in the amotml and for the period that Lender requires) provided by an insurer selected by Lender again becomes available. is obtained. and Lender requires separately designated payments toward the prennoms for Mortgage hisurance. If Lender required Mortgage hisurance as a condition of making the Loan and Borrower was required to make separately designated payments toward the premiums for Mortgage lusurance, Borrower shall pay the premituns required to maintain Mortgage insurance in effect or to provide a non-refundable loss reserve, until Lender's reymrement for

Mortgage Insurance ends in accordance with any written agreement between Horrower and Lender providing for such termination or until termination is required by Applicable Law. Nothing in this Section 10 affects Borrower's obligation to pay interest at the rate provided m the Note.

Mortgage insurance reimburses Lender (or any entity that purchases the Note) for certain losses it may inent if

Borrower does not repay the Loan as agreed. Borrower is not a party to the Mortgage Insurance.

FLORIDA-Jinrle Fmmly - Fannie Mae/FreddieMac UNIFORM INSTRUMENT 000458304.7 Form 3010 1101

Mortgage insurers evaluate their total risk on :dl such nisurance in loice from time to tmie. and nuá enter mio agreensents with other parties that share or tuodify their risk or reduce losses These agreenents are 01. Terms and conditions tha1 are satisfactory to the inortgage insurer and the other party (or parhes) to these agreements. These agreements may

I require the mortgage insurer to make payments using any source of lands ihat the mortgage insurer tuay have .oailahk iwhich may inchide funds obtained from Moriginge liisurrtuce piciniurnu

As a result of these agreenients. Lender. any purchaser of the Note. :uiother insurer. any reinsurer. any othei ennly. or any aftthate of any of the foregoing, may receive (directly or indirectly 1 amounts that derive from (or imght he character zed

I asi a portion of Borrower's payments for Mortgage lnsurance. in exchange for sharing or modifying the mortgage insurer's risk, or rethicing losses. If such agreement provides that an alTiliate of Lender takes a share of the insurer's risk in exchange for a share of the premiums paid to the msurer. the arrangement is often ter ned "captive reinsurance " Further:

(a) Any such agreements will not affect the amounts that Borrower has agreed to pay for Mortgage Insurance, I .or any other terms of the Loan. Such agreements will not increase the amount Borrower will owe for Mortgage

Insurance, and they will not entitle Borrower to any refund. (b) Any such agreements will not affect the rights florrower has-if any-with respect to the Mortgage

Insurance under the Homeowners Protection Act of 1998 or any other law. These rights may include the right to i receive certain disclosures, to request and obtain cancellation of the Mortgage Insurance, to have the Mortgage

Insurance terminated automatically, and/or to receive a refund of any Mortgage Insurance premiums that were unearned at the time ofsuch cancellation or termination.

11. Assignment of Miscellaneous Proceeds; Forfeiture. All MisceHaneous Proceeds are hereby assigned to and shaH

be paid in Lender. It' the Property is danmged, such Miscellaneous Proceeds shall be atylied to rotoranon or repak d the Property. d the

restoration or repair is econonucally feasible and 1.ender's security is not lessened. During such repair and restoration period. Lender shall have the right to hold such Miscelhmeous Proceeds until Lender has had an opportunity to inspect such Properly

to ensure the work has been completed to Lender's sausfaction, provided that such inspection shall be undertaken promptly. I Lender may pay for the repairs and restoration in a single disbursement or m a series of progress payments as the work is

completed. Unless an agreement is made in writing or Applicable 1.aw requires intelest to be paid ou such Miscellaneous Proceeds, Lender shall not he required to pay Borrower any unerest or earnings on such Miscellaneous Proceeds. If the

restoration or repair is not economically feasible or Lender1 security would be lessened, the Miscellaneous Proceeds shall be applied to the sums secured by this Security Instrument, wheiher or not then due, with the excess, il any, paid to Borrower

Such Misecllaneous Proceeds shall be applied in the ordei provided f or in Seeihm ?. lu the event of a total taking, destruction, or loss in i alue of the Propern. the Miscellaneous Proceeds shall he applied to

the sums secured by this Security Instrument, whether or not then due. with the excess. if any, paid to Borrower.