Foreclosure - Motion for Rehearing Reconsideration Saxon v. Jordan

8/7/2019 Foreclosure - Motion for Rehearing Reconsideration Saxon v. Jordan

1/56

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT,IN AND FOR PASCO COUNTY, FLORIDACIVIL DIVISION

SAXON MORTGAGE SERVICES, INC., CASE NO. 2009-CA-002709-ESPLAINTIFF,

v .

BREGINIA DARLENE JORDAN ANDMICHAEL ANTHONY JORDAN,

DEFENDANTS.__________________________________________________________IDEFENDANTS' MOTION FOR REHEARINGIMOTION FOR RECONSIDERATION

COMES NOW, the Defendants BREGINIA DARLENE JORDAN and MICHAELANTHONY JORDAN (hereinafter "Defendants"), by and through undersigned counsel, andrespectfully files with this Court Defendants' MOTION FOR RECONSIDERATION, pursuantto Rules 1.530, 1.510, and 1.210(a), Fla. R. Civ. Pro., precedent case law, and this Court'sinherent authority to control its own interlocutory orders prior to final judgment, and as groundsthereof states:

FACTS1. This is an action for foreclosure of residential real property owned by the Defendants.2. The named Plaintiff in this case is SAXON MORTGAGE SERVICES, INC. (hereinafter

"Plaintiff'). The Plaintiff initiated this action when it filed its complaint on or about March 20,2009.

3. On February 15, 2011 a hearing on the Plaintiff's Motion for Summary Judgment washeld before Senior Judge Wayne L. Cobb. According to the transcript, the hearing lasting for


2/56

twelve minutes, from 9:00 a.m. until 9:12 a.m. A copy of the transcript is attached hereto andincorporated as Exhibit "A".

4. In addition to the oral argument presented by the Defendants' counsel at the Februaryis" hearing, the Defendants had also previously filed a written Objection to Summary Judgment.A copy of the Defendants' Objection to Summary Judgment is attached hereto and incorporatedas Exhibit "B".

5. While Judge Cobb ultimately ruled in favor of the Plaintiff at the February 15th hearing,the Defendants respectfully assert that his decision was in error and, therefore, this Motion forRehearingIMotion for Reconsideration follows. The facts regarding each error are explained indetail below.

Error I - Failure to Consider Improper Party Substitution6. At the February 15th hearing, the Defendants' counsel objected to an entry of summary

judgment in favor of the Plaintiff based upon an improper party substitution. See Transcript, pgs.9-11. Specifically, the original party-plaintiff to the instant lawsuit was TAYLOR, BEAN &WHITAKER MORTGAGE CORP. (hereinafter "Taylor, Bean & Whitaker").

7. The docket reveals that January 11,2010 the Plaintiff filed a Motion to Substitute PartyPlaintiff. Additionally, the docket reveals that on that same day an Order granting the Plaintiff'smotion was also entered. Therefore, no notice of hearing was ever served and no hearing wasever held on the Plaintiff's Motion to Substitute.

8. The Defendants' counsel asserted at the February 15th hearing that the failure of thePlaintiff to serve a notice of hearing along with its Motion to Substitute was a fatal error becauseit violated the explicit procedural guidelines of Fla. R. Civ. Pro. 1.260.


3/56

9. Therefore, because the Plaintiff was never properly substituted into this action, it wasimproper for the Court to grant summary judgment in favor of that purported plaintiff.

Error II - Failure to Consider Affirmative Defenses10. The Defendants' counsel also asserted at the summary judgment hearing that the

Defendants had served Affirmative Defenses on the Plaintiff which the Plaintiff never factuallydisputed or showed to be legally insufficient. See Transcript, pgs. 11-12.

11.More exactly, the Defendants eleven (11) Affirmative Defenses with this Court whichincluded such defenses as: (1) lack of capacity; (2) lack of standing; (3) unclean hands; (4) lackof notice and ability to cure; and (5) failure to show real party in interest.

12.While the Plaintiff filed a purported Reply to the Defendants' Affirmative Defenses, thisReply was nothing more than a general denial of the Defendants' Affirmative Defenses and thestatement that same amounted to nothing more than legal conclusions. However, the Plaintifffailed to show, in any way, how the Defendants' allegations in their Affirmative Defensesamounted to mere legal conclusions.

13. Therefore, because the Plaintiff failed to factually refute the Defendants' AffirmativeDefenses or show how they were legally insufficient, it was an error for the Court to grantsummaryjudgment to the Plaintiff.

Error III - Granting Summary Judgment where Capacity Had Not been Proven14.Moreover the Defendants' counsel also objected to the Plaintiff's ability to procure a

summary judgment ruling based on its lack of capacity to sue, even going so far as to state thatcapacity had been pled as an affirmative defense. See Transcript, pgs. 12-13.

15. The Plaintiff's lack of capacity is embodied in the fact that while the name of the Plaintiffof the instant lawsuit is asserted in the caption of its Complaint, nowhere in the body of


4/56

Plaintiff's Complaint does the Plaintiff set off or describe in any way its entity-status nor doesthe Plaintiff assert in what capacity does the Plaintiff contends it may avail itself to the

jurisdiction of this Court.16.Additionally, nowhere in the body of Plaintiff's Complaint, or in any other pleading,

motion, document, or affidavit, does it assert the basis for its entity-existence or explain in anyway the form of the entity that presents itself before the court.

17. Additionally, and as brought to the Court's attention by the Defendants' counsel, !search of the Florida Division of Corporations reveals that no license to practice businesshas been issued to the Plaintiff.

18.Therefore, because the Plaintiff had adequately proved it had capacity to sue, and becausethe issue of capacity was put into play in the Defendants' Affirmative Defenses, the Court erredin granting summary judgment to the Plaintiff.

Error IV - Consideration of Hearsay Affidavit over Objection

19.Despite the fact that the Court refused to allow the Defendants' counsel to review this,the Court also erred by allowing a hearsay affidavit to be admitted into evidence. SeeTranscript, pgs. 14-15.

20. The Defendants specifically objected to the introduction of the Affidavit because, uponinformation and belief: (1) the Affidavit fails to provide, with any degree of specificity, how theAffiant has any personal knowledge of the facts contained therein; (2) that because the Affiantlacks personal knowledge of the facts stated in the Affidavit, the Affidavit is entirely based uponhearsay statements; (3) that the Affiant has failed to aver that she is the custodian of certainrecords which the Affidavit was based upon; (4) that the Affiant's failure to aver that she is thecustodian of those records prohibits the Plaintiff from asserting that (a) the business records


5/56

hearsay exception applies, and (b) that the purported records referred to in the Affidavit havebeen authenticated; and (5) that the Affiant's failure to attach the purported records referred to inher Affidavit is a violation of Fla. R. Civ. Pro. 1.510(e).

21. Therefore, because the only piece of evidence offered by the Plaintiff in support of itscontention that it is entitled to judgment as a matter of law was inadmissible, summary judgmentat this stage should not have been entered.

Error V - Improper Introduction of the Original Note into Evidence22. Finally, despite Defendants' counsel repeated objections over the Court's consideration

and introduction of the purported original note, the Court improperly accepted same even thoughthe Plaintiff's Complaint pled that the subject note had been lost, stolen, or destroyed. SeeTranscript, pgs. 15-16.

23. The Court refused to show the Defendant what note was being accepted to prove thePlaintiff's case; consequently, the Defendant has no knowledge of what evidence was usedagainst them.

24. Additionally, the Plaintiff failed to amend its Complaint to drop the reestablishmentcount.

25. Even more astonishing, the docket reveals that the Plaintiff has apparently filed anaffidavit on or about June 30, 2009 which avers that the subject note had been lost, stolen,or destroyed.

26. Therefore, because the Plaintiff's Complaint was never amended to drop thereestablishment count, the Plaintiff was required to prove at summary judgment that there existedno genuine issue of material fact that the original note had been lost, stolen, or destroyed.


6/56

Consequently, the admission into evidence of the purported original note was a repugnancy tothis material allegation.

STANDARD OF REVIEW27. Fla. R. Civ. Pro. 1.530(a) provides, in pertinent part, that "[o]n a motion for a rehearing

of matters heard without a jury, including summary judgments, the court may open the judgmentif one has been entered, take additional testimony, and enter a new judgment."

28. As the Florida Supreme Court articulated in the subliminal case of Holl v. Talcott, 191So. 2d 40,46-47 (Fla. 1966).

The granting or denial of rehearing is a matter within the sound discretion of thetrial court, but it is never an arbitrary discretion. As indicated above, when themotion is filed by one against whom a summary judgment has been entered,the discretion not to grant is narrowed and every disposition should beindulged in favor of granting the motion. Only after it has been conclusivelyshown that the party moved against cannot offer proof to support hisposition on the genuine and material issues in the cause should his right totrial be foreclosed.

Emphasis added and citations omitted.29. Rather than constituting a motion for rehearing under Fla. R. Civ. Pro. 1.530, a motion

directed to a nonfmal order is termed a "Motion for Reconsideration" based upon the trial court'sinherent authority to reconsider and alter or retract orders prior to the entry of final judgment.See Bettez v. City of Miami, 510 So. 2d 1242, 1242-43 (So. 3d DCA 1987).

30. According to Trawick, a trial court has the inherent authority to reconsider its ordersprior to. rendition of the final judgment. H. Trawick, Trawick's Florida Practice and Procedure 9-2 (1985 ed.)

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS' MOTIONI. As a threshold matter, because there existed genuine issues of material fact,

summary judgment was improperly granted to the Plaintiff


7/56

a. Legal Standards31. Under Florida law, summary judgment is proper if, and only if, based on an examination

of evidence, no genuine issue of material fact exists and the movant is entitled to judgment as amatter oflaw. See The Florida Bar v. Green. 926 So. 2d 119S, 1200 (Fla. 2006); Volusia Countyv. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000).

32. Furthermore, pursuant to Rule 1.S10 of the Florida Rules of Civil Procedure, a Court maygrant summary judgment if, and only if, ''the pleadings, depositions, answers to interrogatories,and admissions on file together with the affidavits, if any, show that there is no genuine issue asto any material fact and that the moving party is entitled to a judgment as a matter of law." Fla.R. Civ. P. l.S10(c).

33. The Court must take all the facts that the non-movant states as true and must draw allreasonable inferences in favor of the non-moving party. See Bradford v. Bernstein, S10 So.2d1204 (Fla. 2d DCA 1987); Petruska v. Smartparks-Silver Springs, Inc., 914 So.2d S02 (Fla. SthDCA200S).

34. Finally, in Tamm v. Bradley, 696 So. 2d 816, 817 (Fla. 2d DCA 1997), the SecondDistrict was expressly clear that "Iilf the record reflects the existence of any genuine issue ofmaterial fact, or the possibility of an issue, or if the record raises even the slightest doubtthat an issuemight exist, summary judgment is improper." Bold emphasis added.

b. Argument3S. As a preliminary matter, because there existed in the record disputed issues of material of

fact, summary judgment should never have been granted.


8/56

36. Specifically, and at a minimum, the Defendants' Affirmative Defenses and Objection toSummary Judgment put into play such issues as: (1) the Plaintiffs lack of standing; (2) thePlaintiff's lack of capacity; and (3) the lack of notice and opportunity to cure.

37. Additionally, the Defendants' counsel made numerous objections at the February 15thhearing.

38. Therefore, because the record "gave even the slightest doubt" that issues of material factexisted in this case, the Plaintiff should have been precluded from an award of summaryjudgment.

II. The Plaintiff's Motion for Summary Judgment should have been denied becausethe Ex-Parte Order granting its Motion to Substitute Party Plaintiff wasimproperly entereda. Legal Standards

39. Fla. R. Civ. Pro. 1.260(c) provides, in pertinent part, that "in the case of any transfer ofinterest, the action may be continued by or against the original party, unless the court uponmotion directs the person to whom the interest is transferred to be substituted in the action orjoined with the original party."

40. However, Rule 1.260(c) concludes with the following: "[s]ervice of the motion shall bemade as provided in subdivision (a) of this rule."

41. With respect to service, subdivision (a) of Rule 1.260 provides that "Itlhe motion forsubstitution may be made by any party or by the successors or representatives of the deceasedparty and, together with the noticeof hearing, shall be served on all parties as provided in rule1.080 and upon persons not parties in the manner provided for the service of a summons."(Emphasis added).


9/56

42. Florida law "clearly holds that a trial court lacks jurisdiction to hear and to determinematters which are not the subject of proper pleading and notice ... to allow a court to rule on amatter without proper pleadings and notice is violative of a party's due process rights." Pro-ArtDental Lab, Inc. v. V-Strategic Group, LLC, 986 So. 2d 1244 (Fla. 2008) (quoting Carroll &Assocs., P.A., v. Galindo, 864 So. 2d 24 (Fla. 3d DCA 2003.

43. In Tinsley v. Mangonia, 937 So. 2d 178 (Fla. 4th DCA 2006), the original plaintiff,Vikar, attempted to substitute Tinsley in as plaintiff to a mortgage foreclosure; however, themotion was never set for hearing. The action was later dismissed and the defendant moved forattorney's fees against Vikar, the original plaintiff, and Tinsley, the "substituted" plaintiff. Onappeal, Tinsley argued that he was never substituted as plaintiff and therefore not subject to thejudgment or liability. The Fourth District agreed with Tinsley'S argument, stating, in relevant

"[b]ecause no party obtained a court substituting Tinsely for Vikar, Vikar, as therule permits, remained as the party pursuing the action, and the court waswithout jurisdiction to award fees or costs against Tinsley, anon-party."

,Id. at 180. (Emphasis added).44. The major point derived from Tinsely is that not only is an order substituting a party in as

plaintiff necessary, this order must be obtained as the rule permits and the plain language of theRule requires that there be a motion, notice of hearing, and then a subsequent order.

h . Argument45. Here, the Plaintiff's Motion for Summary Judgment should have been denied because

any order granting relief to the "substituted" is a nullity and thus a reversible error.


10/56

46. Specifically, the Plaintiffs Motion to Substitute Party Plaintiff did not follow the strictprocedural guidelines of Rule 1.260(c) in that no notice of hearing was served along with the

motion.47. Therefore, the order substituting party plaintiff is void as this Court never obtained

jurisdiction over the "substituted" party. See Ostoski v. Cianfro~ 789 So. 2d 529 (Fla. 5thDCA 2001) (providing that "a trial court has absolutely no authority to order any non-party, overwhom it has no in personam jurisdiction, to become a party plaintiff.")

48. Because the Court never obtained jurisdiction over the Plaintiff, it had no ability to rendera judgment either for or against it. As a result, the Court erred in granting summary judgment infavor of the Plaintiff.

III. The Plaintiff's Motion for Summary Judgment should have been denied becausethe Plaintiff failed to adequately respond to the Defendants' Affirmative Defensea. Legal Standard

~9. A party seeking summary judgment must not only show that there is no genuine issues ofmaterial fact, but must also factually refute any affirmative defenses or show that they are legallyinsufficient. See Morroni v. Household Fin. Corp. III, 903 So. 2d 311, 312 (Fla. 2d DCA 2005);Jones v. City of Winter Haven, 870 So. 2d 52, 55 (Fla. 2d DCA 2003). See also Lazuran v.Citimortgage, Inc., 4D09-1340 (Fla. 4th DCA 2QlO) (holding that the trial court's grant of~ummary judgment improper where the plaintiff failed to refute an affirmative defense); Frost v.Regions Bank, 15 So.3d 905 (Fla. 4th DCA 2009) (holding that because the Plaintiff did notmeet.its burden to refute the Defendant's affirmative defense oflack of notice and opportunity tocure defense, the bank is not entitled to final summary judgment of foreclosure).

b : Argument


11/56

50. Here, the Plaintiffs Motion for Summary Judgment should have been denied because thePlaintiff to factually refute any of the Defendants' Affirmative Defenses or show how they were

legally insufficient.51. Infact, during the February 15th hearing the Defendants' counsel made specific reference

to Frost v. Regions Bank, 15 So.3d 905 (Fla. 4th DCA 2009), cited supra, a case which wasfactually on-point with Defendants' Affirmative Defense X, which pled that the Plaintiff failed toprovide the Defendants with the pre-suit notice required in the mortgage. See Transcript, pg. 12.

52. Therefore, it was an error to award summary judgment in favor of the Plaintiff.

II: IV. The Plaintiff's cause must be dismissed because of its failure to plead capacity tomaintain the instant litigationa. Legal Standards

53. "Unlike the pleading requirements in the federal courts where notice pleading is theIprevailing standard, the Florida Rules of Civil Procedure require fact pleading." Ranger Contiu.v. Martin Cos., 881 So. 2d 677,680 (Fla. 5th DCA 2004).

54. "In order to state a cause of action, a complaint must allege sufficient ultimate facts toshow that the pleader is entitled to relief." Med. & Benefits Plan VoLago, 867 So. 2d 1184 (Fla.5th DCA 2004).

55. "At the outset of a suit, litigants must state their pleadings with sufficient particularity fora defense to be prepared." Horowitz vo,Laske, 855 So. 2d 169, 173 (Fla. 5th DCA 2003) (citingArky, Freed, Stearns, Watson, Greer Weaver & Harris, P.A. v. Bowmar Instrument Corp., 537So. 2d 561 (Fla. 1988)).


12/56

56. Fla. R. Civ. Pro. 1.120(a) provides that[i]t is not necessary to aver the capacity of a party to sue or be sued, the authorityof a party to sue or be sued in a representative capacity, or the legal existence ofan organized association of persons that is made a party, except to the extentrequired to show the jurisdiction of the court. Bold emphasis added. Theinitial pleading served on behalf of a minor party shall specifically aver the age ofthe minor party. When a party desires to raise an issue as to the legal existenceof any party, the capacity of any party to sue or be sued, or the authority of aparty to sue or be sued in a representative capacity, that party shall do so byspecific negative averment which shall include such supporting particulars asare peculiarly within the pleader's knowledge. Bold emphasis added.

57. Fla. R. Civ. Pro. 1.110(b) requires that a complaint include a "short and plain statementof the grounds upon which the Court's jurisdiction depends."

58. "Capacity to sue" is an absence of legal disability which would deprive a party of theright to come into court. 59 Am.Jur.2d Parties 31 (1971). This is in contrast to "standing"which requires an entity have sufficient interest in the outcome of litigation to warrant the court'sconsideration of its position. Keehn v. Joseph C. Mackey and Co., 420 So.2d 398 (Fla. 4th DCA1982).

59. The issue of capacity to sue may be raised by motion to dismiss where the defect appearson the fa~e of the complaint. See Hershel California Fhilt Products Co. v. Hunt Foods, 111 F.

,. \Supp. 603 (1975),q~oting Coburn v. Coleman 75 F. Supp. 107 (1974); Klebano v. New YorkProduce Exchange, 344 F.2d (2nd Cir. 1965).

60. The failure to adequately plead capacity has been grounds for dismissals of lawsuits inFlorida state courts. See e.g. Asociacion de Perjudiacados v. Citibank, 770 So. 2d 1267 (Fla. 3dDCA 2000) (dismissing case for lack of capacity as distinguished from lack of standing).

61. FUrthermore, the Comment to the Rule (2004 Version), states that "if a party involved ina suit in other than his individual capacity, the capacity in which he is a party should beindicated in the caption and the pleadings." Bold emphasis added.


13/56

62. "The naming of an individual or entity in the caption is not a sufficient basis towarrant inclusion in the action if the party is not mentioned in the body of the complaint."Bold emphasis added. Altamonte Hitch & Trailer Servo Inc. v. U-Haul Co. of Eastern Fla., 498So. 2d 1346 (Fla. 5th DCA 1986). See also Trawick's Florida Practice and Procedure 6-2(2010 ed.) (providing that "the caption is not a part of the pleading for purposes of motionsdirected to the pleading").

63. Finally, although the capacity issue is new, it is important to note that judges in circuitcourts across this State have routinely recognized the legitimacy of the capacity argument andare routinely granting Defendant's Motion to Dismiss based on these grounds, particularly incases for mortgage foreclosures. See e.g. HSBC v. Montgomery, Pinellas Case 52-2009-CA-005696; Wachovia v. Matacchiero, Pinellas Case No. 52-2009-16936-CI-13; Bolin v. HSBC,Pinellas Case 08-005190-CI -19.

64. Additionally, this Court should take heed of the words of the Honorable William P.

Levens, Circuit Judge of the Thirteenth Judicial Circuit, who recently ruled when confrontedwith a capacity issue in a mortgage foreclosure case that

[t]his is a very, very simple pleading matter than can be easily corrected, but mustbe correct because I am convinced that 1.120(a) the pleading of capacity andthe identification in the body of the Complaint itself is a jurisdiction requisiteto this matter going forward ... I am simply granting the motion with leave toamend to more fully and appropriately comply with 1.120(a) with the explanationin the body of the Complaint that there be a basis. Because capacity is requiredto show the jurisdiction of the Court. and that needs to be specifically pled inmy judgment. Deutsche Bank National Trust


14/56

65. Here, nowhere in any of the Plaintiff's pleadings or in any other document filed with thisCourt is the Plaintiff's entity status or capacity even pled. As a threshold matter, then, it isunclear exactlywho the Plaintiff is and how it may avail itself to the jurisdiction of this Court.

66. By failing to allege the grounds upon which this Court's jurisdiction depends, and byfailing toplead or specify in what capacity the Plaintiff.brings the instant lawsuit, the Plaintiffdid not plead that it has the "absence of legal disability to sue".

67. Rule 1.120(a)provides for the specific procedures defense counsel must use to challengethe issue of the Plaintiff's capacity, i.e. specific negative averment. The Defendant thereforespecifically asserted in Affirmative Defense III that the Plaintiff failed to plead any facts whichidentify its entity-status and therefore it could not claim that it had properly invoked thejurisdiction of this Court within the four corners of the Complaint.

68. Additionally, the Defendants' counsel expressly represented to the Court a search of theFlorida Division of Corporations reveals that no license to practice business has been issued

-, '. . \ :to the Plaintiff.\69. Therefore, because the Plaintiff had adequately proved it had capacity to sue, and because

I, ,the issue of capacity was put into play in the Defendants' Affirmative Defenses, the Court erredin granting summaryjudgment to the Plaintiff.

v. The Plaintiff's Motion for Summary Judgment should have been denied becausethe Court relied upon an inadmissible hearsay affidavit over objection of counsela. Leg8;1Stan~a1rd~

70. ~s a threshold matter, the admissibility of .anaffidavit rests upon the affiant havingpersonal knowledge as to the matters stated therein. See Fla. R. Civ. Pro. 1.510(e) (reading, inpertinent part, that "affidavits shall be made on personal knowledge"); Enterprise Leasing Co. v.DemartiI~o~15 So. 3d 711 (Fla. 2d DCA 2009); West Edge II v. Kunderas, 910 So. 2d 953 (Fla.


15/56

2d DCA 2005); In re Forefeiture of 1998 Ford Pickup, Identification No.IFTZX1767WNA34547, 779 So. 2d 450 (Fla. 2d DCA 2000).

71. Additionally, a corporate officer's affidavit which merely states conclusions or opinion isnot sufficient, even if it is based on personal knowledge. Nour v. All State Supply Co., So. 2d1204, 1205 (Fla. 1st DCA 1986).

72. Most importantly. an affiant should state in detail the facts showing that the affianthas personal knowledge. See Hoyt v. St. Lucie County, Bd. Of County Comm'rs, 705 So. 2d119 (Fla. 4th DCA 1998) (holding an affidavit legally insufficient where it failed to reflect facts

.,_. . ..i.L~

demonstrating how the affiant would possess personal knowledge of the matters at issue in thecase); Carter v. Cessna Fin. Corp., 498 So. 2d 1319 (Fla. 4th DCA 1986) (holding an affidavit, . \ . , ' . ~ 1 " ; _ ' . ~ .legally insufficient where the affiant failed to set out a factual basis to support a claim ofpersonal knowledge of matter at issue in the case and failed to make assertions based on personalknowledge. )

73. The Third District, in Alvarez v. Florida Ins. Guaranty Association, 661 So. 2d 1230 (Fla ..3d DCA 1995), noted that "the purpose of the personal knowledge requirement is to prevent thetrial court from relying on hearsay when ruling ona motion for summary judgment and to ensurethat there is an admissible evidentiary basis for the case rather than mere supposition or belief."Id at 1232 (quoting Pawlik v. Barnett Bank of Columbia County, 528 So. 2d 965, 966 (Fla. 1stDCA 1988.

74. This opposition to hearsay evidence has deep roots in Florida common law. In Capello v.Flea Market U.S.A., Inc., 625 So. 2d 474 (Fla. 3d DCA 1993), the Third District affirmed anorder of summary judgment in favor of Flea Market U.S.A as Capello's affidavit in oppositionwas not based upon personal knowledge and therefore contained inadmissible hearsay evidence.


16/56

See also Doss v. Steger & Steger, P.A., 613 So. 2d 136 (Fla. 4th DCA 1993); Mullan v. Bishopof Diocese of Orlando, 540 So. 2d 174 (Fla. 5th DCA 1989); Crosby v. Paxson ElectricCompany, 534 So. 2d 787 (Fla. 1st DCA 1988); Page v. Stanley, 226 So. 2d 129 (Fla. 4th DCA1969). Thus, there is ample precedent for striking affidavits in full which are not based upon theaffiant's personal knowledge.

75. Fla. R. Civ. Pro. 1.510(e) also provides, in pertient part, that "[s]wom or certified copiesof all papers or parts thereof referred to in an affidavit shall be attached thereto or servedtherewith. "

76. Failure to attach such papers is grounds for reversal of summary judgment decisions. InCSX Transp., Inc. v. Pasco County, 660 So. 2d 757 (Fla. 2d DCA 1995) the Second Districtreversed summary judgment granted below, in part, because the affiant based his statements onreports but failed to attach same to the affidavit.

77. The Second District noted that because these statements were based upon said reports,

they were consequently not based upon the affiant's personal knowledge, and were thereforeinadmissible hearsay statements. Id at 759.

78. Florida Statue 90.901 (1989) states, 11 1 pertinent part, that "[a]uthentication oridentification of evidence is required as a condition precedent to its admissibility."

79. The failure to authenticate documents referred to in affidavits renders the affiantincompetent to testify as to the matters referred to in the affidavit. See Fla. R. Civ. Pro. 1.51O ( e)(which reads, in pertinent part, that "affidavits ... shall show affirmatively that the affiant iscompetent to testify to the matters stated therein"); Zoda v. Hedden, 596 So. 2d 1225, 1226 (Fla.2d DCA 1992) (holding, in part, that failure to attach certified copies of public records rendered


17/56

affiant, who was not a custodian of said records, incompetent to testify to the matters stated inhis affidavit as affiant was unable to authenticate the documents referred to therein).

80. A "custodian" is identified "a person or institution that has charge or custody(of... papers)." See Black's Law Dictionary, 8th ed. 2004, custodian.

81. Finally, this Court must note that Circuit Courts in the Sixth Judicial Circuit havegranted Motions for Rehearing and vacated (mal judgments in contested foreclosure caseswhere the affidavit relied upon contained inadmissible hearsay. See e.g. GMAC Mortgage,LLC v. Debbie Visicaro, CaseNo. 07-013084-CI-13 (Fla. 6th Jud.Cir., Pinellas County, 2010).

l:I~ "b. Argument82. Here, despite the fact that the Defendants' counsel objected to its introduction, the Court

admitted into evidence an inadmissible hearsay affidavit. As such, awarding the Plaintiffs~ary Judgment constitutes a reversible error.

8 3 . S~piy' put, the Affiant's barebones s~tem~nt that the Affidavit is made upon theAilikt'~ personal knowledge is not enough to meet the requirements for factually determiningpersonal knowledge as articulated by various Florida'case law. See e.g. Hoyt v. St. LucieCounty, Bd. Of County Comm'rs, supra; Carter v. Cessna Fin. Corp., supra.

84. At best, then, the Affiant only averred that the Affiant had examined some recordsprepared by someone other than himself. Thus, the Affiant has failed to state in detail thefacts showing that he has personal knowledge as required by the Florida case law.


18/56

85. Because the Affiant has no personal knowledge of the underlying transaction between thePlaintiff and the Defendants, any statement he gives which references this underlying transaction

is, by its very nature, hearsay.86. The Florida Rules of Evidence define hearsay as "a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in evidence to prove the truth of thematter asserted." Fla. Stat. 90.801(1)(c) (2007).

87. Here the Affiant is averring to a statement (that the Plaintiff is allegedly owed sums ofmoney) which was made by someone other than himself (namely, the individuals who createdthe purported records) and is offering this as proof of the matter asserted (that the Plaintiff isentitled to summaryjudgment).

I~r. ~.;. ,_. ; , , \ ~ .. t . . . . i ',. ,: . l c . .; . . ~ . . ~:f' ..':88. The Plaintiff may argue that while the Affiant's statements may be hearsay, they should _ Im!~etlheless be admitted un:der the "Records' ~f .R~~~ly Conducted Business Activity"exception. Fla. Stat. 90.803(6) (2007).

89. This rule provides that notwithstanding the provision of 90.802 (which renders hearsay. '. . "" ., ,t_ .. . ' .statements inadmissible), hearsay statements are nevertheless admissible, even though the

declarant is available as a witness, if the statement isral memorandum, report, record, or data compilation, in any form, of acts,events, conditions; opinion, or diagnosis, made at or near the time by, or frominformation transmitted by, a person with knowledge, if kept in the course of aregularly conducted business activity and if it was the regular practice of thatbusiness activity to make such memorandum, report, record, or data compilation,all as shown by the testimony of the custodian or other qualified witness, or asshown by a certification or declaration that complies with paragraph (c) and s.'.' 90.902(11), unless the sources .ofinfodaatioii 'orother circumstances showlack,of trustworthiness. Bold emphasis added. .'

90. There are, however, several problems with this argument. To begin, no memorandums,reports, records, or data compilations have been offered by the Plaintiff.


19/56

91. Additionally, the Affiant's failure to attach any of the documents he refers to shows alack of trustworthiness.

92. The Affiant has also failed to attach a certification made under penalty of perjury andpursuant to Fla. Stat. 90.902(11) that the records she referred to are in fact business records.See also Yisrael v. State, 993 So. 2d 952, 957 (Fla. 2008) (providing that the proponent of abusiness record may establish a business record predicate through a certification or declaration,under penalty of perjury, that complies with Fla. Stat. 90.902(11)).

93. Furthermore, on information and belief, the Affiant has failed to identify himself as thecustodian of the records or aver to any specific facts which shows he is a qualified witness asrequired by the Statute.

94. As such, the Affidavit was based entirely on inadmissible hearsay statements. Grantingthe PI~tiff's Motion for Summary Judgment was therefore improper pursuant to the authorityof Capello, supra and its progeny.

: ". ,95. As if this was not enough, the Affiant failed to attach the purported records were tothe Affidavit.

96. Therefore, 'theAffiant, just a s the affiant inCSX Transp., Inc., was relying oninadmissible hearsay statements. Admission of such an affidavit, then, is grounds for reversal of

- r ' { ; ~ ' ! . summaryjudgment. , .

97. Even further, because, upon information and belief, the Affiant was not the custodian ofthe purported business records, she failed to authenticate them within meaning of Fla. Stat.90.901.


20/56

98. Finally, the facts at issue here are also directly on point with the facts of the GMACMortgage, LLC v. Debbie Visicaro, supra. Granting Summary Judgment in favor of the Plaintiffwas therefore improper.

VI. Summary Judgment was improperly entered because the Plaintiff did not amendits Complainta. Legal Standards

99. Fla. R. Civ. Pro. 1.190(a) provides, in pertinent part, that "[a] party may amend apleading once as a matter of course at any time before a responsive pleading isserved ... [0]therwise, a party may amend a pleading only by leave of court or by written consentof the adverse party."

W O o , Moreover, "[tlhe proper metho~ of f.le~eting less than all counts from apleading is amendment of the pleading pursuant to Fla.R.Civ.P. 1.190." Deseret Ranches ofl; ': i.

Floriga, Inc. V. Bowman, 340 So.2d 1232, 1233 (Fla. 4th DCA 1976) cert. denied, 349 So.2d 155(Fla. 1977). Bold emphasis added.

101. This is because "it is well-settled that only an entire action may be voluntarilydismissed under Fla.R.Civ.P. 1.420(a)(I); there can be no partial dismissal, no dismissal of lessthan all causes of action." Marine Contractors, Inc. V. Armco, Inc., 452 So.2d 77, 80 (Fla. 2dDCA 1984).

i02. Finally, any attempt to voluntarily dismiss less than an entire action is a nullity.See Murillo V. Tri-State Employment Services, Inc., 925 So.2d 376 (Fla. 1st DCA 2006); PerezV. Wimi-Dixie, 639 80.2d 109'(Fla: 1st DCA 1994r ' S ee 'alsogenerally Marine Contractors, Inc.~ : " A tmdo , Ih~.,452 So.Zd 77, 80 (Fla. 2d DCA'198~t); Deseret Ranches of Florida, Inc. V.I. , .B()Wman,340 So.2d 1232, 1233 (Fla. 4th DCA 1976) cert. denied, 349 So.2d 155 (Fla. 1977).

b. Argument


21/56


22/56

I HEREBY CERUFY that a true and correct copy of the foregoing has been furnished by,.~..U.S. Mail on this i r .day of February, 2011 to KELLY A. CRAMER, Law Offices of DanielC. Consuegra, 9204 King Palm Drive, Tampa, FL 33619-1328.

Attorney for Defendants1229 Central Avenues t. Petersburg, FL 33705(727) 894-3159FBN: 0185957

t ~


23/56

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUITOF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

SAXON MORTGAGE SERVICES,INC.,Plaintiff,

vs. Case No.: 2009-CA-002709-ESBREGINIA DARLEN~ JORDAN,et al.,

Defendants.________________________ 1

PROCEEDINGS: Hearing held before theHONORABLE SR. JUDGE WAYNE L. COBB

DATE: February 15, 2011

TIME: 9:00 a.m. to 9:12 a.m.

PLACE: Pasco County Courthouse38053 Live Oak AvenueDade City, Florida

REPORTED BY: Judy A. Anderson, RPR~ FPRNotary PublicState of Florida at Large

ANDERSON COURT REPORTING14150 Third StreetP. O. Box 2426Dade City, FL 33526-2426Phone (352) 567-5484 Fax (352) 567-9151

HIBIT. A II

1


24/56

21 APPEARANCES:

2 KELLEY A. CRAMER, ESQUIRELaw Offices of Daniel C. Consuegra, P.L.3 9204 King Palm DriveTampa, Florida 33619-13284 (813) 915-8660Attorney for Plaintiff5 Appearing Via Telephone

6 MATTHEW D. WEIDNER, ESQUIREMatthew D. Weidner, P.A.7 1229 Central AvenueSt. Petersburg, Florida 337058 (727) 213-6235Attorney for Defendants910 I N D E X11 Page12 Certificate of Reporter 1913

E X H I BIT S14 (None)1516171819202122232425


25/56

PRO C E E DIN G S123456789

101112131415161718

19202122232425

THE COURT: Hello?MS. CRAMER: Hi. Good morning, Your Honor.THE COURT: Good morning. You are?MS. CRAMER: Kelley Cramer from the Law

Offices of Daniel Consuegra.THE COURT: Okay. Mr. Weidner is here.MS. CRAMER: Okay.THE COURT: There's not -- Pasco County's not

really involved, are they anymore?MR. WEIDNER: I'm not aware, Your Honor. In

what manner?THE COURT: Well, they were named a defendant.MR. WEIDNER: If we haven't gotten service on

them, then I don't think we can proceed.THE COURT: Well, I think there was service.

They filed an answer. But I'm just wondering if wecan go ahead.

MR. WEIDNER: I don't -- Do we have notice onthem?

THE COURT: Ms. Kelley, is Pasco County stillinvolved in this case?

MS. CRAMER: I'm looking at their -- Theyfiled an answer.

THE COURT: Right.

3


26/56

MS. CRAMER: They just have a -- They justhave a judgment against the defendant.

THE COURT: Okay. So I assume they won't be

123456789

1011121314

15161718

19202122232425

here.This is your motion for summary judgment; is

that correct?MS. CRAMER: Yes.THE COURT: Mr. Weidner, do the Jordans have

objection to that?MR. WEIDNER: Oh, yes, sir, Your Honor, we do.THE COURT: Okay.MR. WEIDNER: May I make some initial

objections I'd like to get on before plaintiff goesforward?

THE COURT: Okay.MR. WEIDNER: The initial objection that I

make regard to the senior judge division and theimplementation of it in contested matters.

The Florida Supreme Court has issued severalopinions. The two controlling ones are PhysiciansHealthcare and Dozier. The primary problem thatwe have, Your Honor, is that the Constitutioncontemplates that decisions will be made byelected judges and that when we enter intomatters that are contested, they can be done only

4


27/56

123456789

1011121314

1516171819202122232425

under a very limited circumstance by the seniorjudge system.

What's happened now is the senior judge systemthat has expanded across the state I believeexceeds the parameters allowed by the Constitutionas defined and described in Florida Physicians.The primary arguments raised in Florida Physiciansare under article five, again, a citizen isentitled to suffrage or the right to have adecision made by an elected judge.

In examining whether or not the senior judgedesignation exceeds those constitutional parametersthere are three factors. The first one is thenature of the assignment, the second is the type of

cases covered, and the practical effect of theassignment.

Now, the only real safe harbor is thetemporary nature, but we have legislation that'sbeen introduced now in front of the legislaturewhich would expand the senior judge system to allowa different class, so that eliminates thatargument. I just want to state that for the recordand I want the record to be clear about that thatunder the factors that are articulated inPhysicians Healthcare, that's 846 So.2d 1129, and

5


28/56

123456789

10111213141516171819202122232425

in Wild versus Dozier, that's 6772 So.2d 16,there's a problem I think with hearing contestedmatters. I believe there's a place, obviously, butI think the place is uncontested.

Having said that, the second structuralobjection that I want to raise is the fact thatplaintiff's counsel is appearing by telephone.NOw, I'm going to be objecting to everything thatplaintiff might attempt to introduce into recordhere. In order for this plaintiff to proceed inthis case, they have to propone their evidence, andas the proponent of the evidence they must be hereto physically perform that act.

The problem that we have here is to the extent

that plaintiff is going to assert that they'reentitled to judgment, they're going to makeassertions based upon evidence that they don'thave. They're gonna ask presumably the court to bethe proponent of the evidence or to assist them inthat. It's another one of the structural problemswith what we have before us.

I had to drive here in order to protect myclients' rights, in order to ensure that my clienthad their due process rights. The propositionbefore the court is that if this plaintiff wants

6


29/56

123456789

101112131415161718

19202122232425

this court sitting at equity to grant it judgment,this plaintiff should be here with their evidenceand this plaintiff should be moving the evidenceand proponing the evidence, not relying on thecourt to sit here and interpret what might be inthat file.

With all due respect, counsel sitting in anoffice wherever she is has no idea what's in frontof the judge, so how can counsel assert that thisjudge should grant judgment to her?

THE COURT: Anything else?MR. WEIDNER: As those initial objections, I

will just state the standing objection to anythingthey'll introduce.

THE COURT: Okay. I'm gonna deny those.MR. WEIDNER: Yes, Your Honor.(Brief off-the-record discussion with an

attorney on the speaker phone who was notassociated with this case.)

THE COURT: Ms. Kelley?MS. CRAMER: Yes, Your Honor.THE COURT: You want to argue your motion?MS. CRAMER: Yes,. Your Honor. I just wanted

to state that all of our pleadings and our evidenceare in the court file. We did file the original

7


30/56

note and the original mortgage with the court, andthose should be in the file.

The default date on this loan is April 1,2008. We filed all of our affidavits as to costsand attorney's fees as well as our motion forsummary judgment. Our client affidavit was filedin July of last year. All defendants were properlynoticed and served. They were either defaulted ordropped. And we are seeking final judgment in theamount of $300,252.37. That includes $1,200 inattorney's fees.

Additionally, Your Honor, there is a -- Ispoke to opposing counsel yesterday on this file,and there is a pending short sale on the property.

So I would be willing to extend the sale date, youknow, maybe 120 days just to get -- just to getthat, you know, taken care of and dismiss it ifthis short sale goes through.

THE COURT: Okay. Mr. Weidner?MR. WEIDNER: Please the court, Your Honor. I

would again restate my objection to counsel'srepresentation about anything that's in the courtfile. Counsel, isn't here. Counsel does not knowwhat's in --

1

234567.89

1011

121314

15161718

19202122232425 THE COURT: I've already overruled that.

8


31/56

123456789

101112131415161718

19202122232425

MR. WEIDNER: Okay. The next issue we'regonna get to is exactly who is the plaintiff that'sbefore the court. The style on this case isTaylor, Bean and Whitaker Mortgage Corporation.However, at some point in time there was animproper attempt to substitute in another party.

I'm gonna quote for the court the standardregarding substitution under 1.260(c), but I wantto state for the court the standard for summaryjudgment that is applicable in this circuit isTamm versus Bradley. It's a 1997 case out of thesecond. And Tamm is very clear. It says that ifthe record reflects the existence of any genuineissue of material fact, or the possibility of

issue, or if the record raises even the slightestdoubt that an issue might exist, summary judgmentis improper. And I think that's important to keepin mind. Anytime that we have any question aboutfacts, summary judgment just is not even proper.I'm gonna roll down a whole slew of facts here anyone of which leads us that we must not grantsummary judgment. But again I'm gonna tick off awhole bunch of them. So, again, there's thestandard, Tarnrnversus Bradley. It's thecontrolling case on the jurisdiction. Do you care

9


32/56,---------

1 for it?2 THE COURT: (Shook head.)3 MR. WEIDNER: Thank you, sir.4 Next again getting to this issue of the5 improper attempt to substitute a party plaintiff.6 At some point in time some motion was filed where7 counsel asserted that the named plaintiff Taylor,8 Bean and Whitaker was no longer the proper party.9 It's important to note from the docket that no

10 hearing was held on that matter. I'm gonna quote11 the Rule 1.260 which asserts the proposition that a12 motion for substitution may be made by any party or13 deceased party, and together with the notice of14 hearing shall be served on all parties. Again,

15 together with the notice of hearing.16 The key issue here, Your Honor, is there was17 an improper attempt to substitute party plaintiff.18 There was no notice of hearing. A case that I'll19 cite for that is Pro-Art Dental Lab versus20 V-Strategic. That's 986 So.2d 1244. The quote21 that's important out of there is Florida law22 clearly holds the trial court lacks jurisdiction to23 hear and to determine matters which are not the24 subject of proper pleading and notice, and to allow25 a court to rule on a matter without proper

10


33/56

123456789

10111213141516171819202122232425

pleadings and notice is a violation of a party'sdue process rights.

The second case that I want to cite for that,Your Honor, is Mangonia -- Tinsley versus MangoniaResidence. That case again, 937 So.2d 178, there'san improper attempt to substitute. However, themotion was not called up for hearing. This caseagain cites the Rule 1.260 and the filing of motionand the rule that it's supposed to follow and thatincludes notice of hearing.

The point here is, Your Honor, we really don'tknow who the plaintiff is. The only properplaintiff before the court is Taylor, Bean andWhitaker, and somehow we got an interloper in hereimproperly.

But getting now to more of the substancebefore the court, the plaintiff propones to goforward and asserts that there's no issue ofmaterial fact. However, we've got an affidavit inthere which counters the suggestions that they'vemade in their affidavit and they have not counteredour affidavit.

Moreover, we have affirmative defenses, whichalthough they have filed a response to affirmativedefenses, they have not factually refuted

11


34/56

1234

56789

101112131415161718

19202122232425

affirmative defenses. Therefore, based on Frostversus Regions Bank, which is a relatively recentcase that's 15 So.3d 905, it says summary judgmentcannot be granted unless the pleadings,depositions, answers to interrogatories andaffidavits, if any, conclusively show that there isno genuine issue of material fact and moving partyis entitled to summary judgment as a matter of law.They simply have not even gotten close to that.

An earlier case that's Morroni versusHousehold Finance, again it stands for theproposition that if the plaintiff doesn't factuallyrefute the affirmative defenses, summary judgmentis .not proper. They have not done that in this

case, Your Honor, and it's not proper.Let's talk about another one of the

significant affirmative defenses that's raised inthis case, Your Honor. It's pled both as anaffirmative defense and as part of our objection tosummary judgment and that is the capacity of theparty to bring this action.

If we're standing in a county courtroom and aforeign corporation's suing on a credit card and Isay, "Your Honor, Nevada corporation. They're notregistered here in the state of Florida," that case

12


35/56

123456789

1011121314

15161718

19202122232425

gets dismissed until they register. Well, the verysame thing applies in circuit court and everycourt, Your Honor. Party must have proper capacityto unlock the doors of the courthouse. Capacityrefers both to their legal authority to proceed onbehalf of whomever they're proceeding but alsotheir ability to invoke the jurisdiction of thecourt.

I don't know whether we're dealing withTaylor, Bean and Whitaker or whether it's Saxon,but apparently they're moving for summary judgmenton behalf of Saxon, and I've got a printout herefrom the Division of Corporations and there is noSaxon Mortgage Services that is registered to do

business in the state of Florida. So, and theymight assert that perhaps they don't need toregister or whatever~ but the fact of the matter isthis is a pleading matter and pleading is athreshold matter. If they have not pled theirright to invoke the jurisdiction of the court, thenthey may not invoke the jurisdiction of court. Ifcounsel is going to assert some sort of exception,preemption or ;exemption from federal law which theydo sometimes, they must plead within the complaint,(A) their capacity, and (B) their entitlement to

13


36/56

travel under the exemption that they try.As they get into the evidence that they

purport to introduce, I've got a problem herebecause I don't know what their evidence is. I amentitled to know what is in the court file. She'smade

123456789

1011121314

1516171819202122232425

THE COURT: You could have looked at courtfile anytime you wanted, Mr. Weidner.

MR. WEIDNER: Okay. So at this point intime

THE COURT: You know that.MR. WEIDNER: Understood. But at this point

in time we're in the trial and she's proponedevidence that I haven't had the benefit of seeing.

THE COURT: Sure you could. You could havelooked at it anytime.

MR. WEIDNER: Okay. Well, I'd like to look atit nowr or even without even looking at it I willassert that the affidavit does not meet thestandard for summary judgment under 1.510. I'llobject to that on hearsay, but I'll also object toit based on the fact that the books and recordsthat are required tobe attached to that affidavitunder the standard for summary judgment are notattached there. So, again, they haven't met a

14


37/56

threshold which is quite clearly black and whiteunder the rules of summary procedure, if they'regoing to rely on an affidavit and support judgment,they must attach the records. Not just the recordsbut sworn or certified copies of the records. Theyhaven't done so. Not entitled even under theaffidavit they have. So they don't even haveadmissible evidence upon which you can grantsummary judgment if you wanted to.

Second element regarding the note, now, Idon't see an original note. Is there an originalnote there?

123456789

1011121314

1516171819202122232425

THE COURT: Yes.MS. CRAMER: Yes, there is an original note.

It was filed on --MR. WEIDNER: May I see it? Because, again,

this gets to the problem'that --THE COURT: You've had plenty of time to look

at it.MR. WEIDNER: Well, I'm here now, and if the

court is considering evidence that's beingpresented by somebody over the phone, I am entitledto see it because I've got an objection to makeabout that.

MS. CRAMER: All the pleadings were sent to

,

15


38/56

all parties.MR. WEIDNER: It's not the pleading, Your

Honor. It's the original document. Under theuniform

123456789

1011121314

151617

18

19202122232425

MS. CRAMER: Copies were sent to allparties --

THE COURT: Mr. Weidner, are you through?MS. CRAMER: of everything that we filed

with the court.MR. WEIDNER: The next objection I'm going to

make is the presentation or asserted entitlement toattorney's fees based on affidavit. They may notdo that when I won't accept affidavit. So I'mchallenging their ability to assert entitlement to

attorney's fees without having a witness here totestify as,to the propriety of those attorney'sfees.

THE COURT: Anything else?MR. WEIDNER: If counsel is gonna respond,

will I have an opportunity to respond after counselmakes argument?

THE COURT: I find that there's not any factsin dispute, and I'm gonna grant the motion forsummary judgment, Mr. Weidner.

MR. WEIDNER: Yes, sir.

16


39/56

THE COURT: I will grant the 120 days.MR. WEIDNER: I haven't even seen an original

document, Your Honor.THE COURT: Well, you could have.MR. WEIDNER: I have. I mean, I've looked at

the file. I'm talking about in these proceedings.I'm here as a proponent for my witness, for myclient asking to see the evidence that the court isrelying on, and I'm not being able to see thatevidence. I find that improper, Your Honor. Idon't know what the affidavit is that's beingrelied 'on by,the court. I don't know whatdocuments are being relied on by the court.

THE COURT: Okay. Well, you can look at the

file, Mr. Weidner. It will be up in the clerk'soffice about -- this afternoon probably.

123456789

1011121314

1516171819202122232425

MR. WEIDNER: Thank you, Your Honor.,MS. CRAMER: Thank you, Your Honor.THE COURT: So I granted the 120 days,

Ms. Kelley.MS. CRAMER: Thank you, Your Honor.MR. WEIDNER: I haven't even seen the judgment

that's being entered.'THE COURT: It will be up there too, and

you'll get a copy probably week after next.i ,.

17


40/56

MR. WEIDNER: I need to get it within tendays.

THE COURT: Then go to the clerk's office.MR. WEIDNER: Thank you, Your Honor.MS. CRAMER: The copy was sent to you,

123456789

1011121314

15161718

19202 J . .222324

25

Mr. Weidner, of the proposed final judgment.MR. WEIDNER: I don't know what the judge has

signed, Counsel.MS. CRAMER: It's the same one we sent to the

judge.THE COURT: Okay. Thank you.{Whereupon, the hearing concluded at

9:12 a.m.)

i l.

18


41/56

CERTIFICATE OF REPORTER23 STATE OF FLORIDA)4 COUNTY OF PASCO )56 I, Judy A. Anderson, Registered Professional7 Reporter, Florida Professional Reporter, certify that I8 was authorized to and did stenographically report the9 foregoing proceedings and that the transcript is a true

10 and complete record of my stenographic notes.11 Dated this 15th day of February, 2011.121314

JUDY A. ANDERSON, RPR, FPR

15161~1819202122232425

I;

19


42/56

Page 20

A authority 13:5 complete 19:10 DARLENE 1:6 6:197:2,3,4,24ability 13:7 16:14 authorized 19:8 concluded 18:12 date 1:12 8:3,15 14:2,4,14 15:8,21able 17:9 Avenue 1:162:7 conclusively 12:6 Dated 19:11 17:8,10accept 16:13 aware 3:11 considering 15:21 day 19:11 exactly 9:2act 6:13 a.m 1:14,1418:13 Constitution 4:22 days8:1617:1,19 examining 5: 11action 12:21 5:5 18:2 exceeds 5:5,12Additionally 8:12 B constitutional 5:12 dealing 13:9 exception 13:22admissible 15:8 B 2:1313:25 Consuegra 2:2 3:6 deceased 10:13 exemption 13:23affidavit 8:6 11:19 Bank 12:2 contemplates 4:23 decision 5:10 14:111:21,22 14:19,23 based 6:17 12:1 contested 4:18,25 decisions 4:23 exist 9:1615:3,716:12,13 14:2216:12 6:2 default 8:3 existence 9:1317:11 Bean 9:4 10:8 11:13 controlling 4:20 defaulted 8:8 expand 5:20affidavits 8:4 12:6 13:10 9:25 defendant 3:13 4:2 expanded 5:4affirmative 11:23 behalf 13:6,12 copies 15:5 16:5 defendants 1:8 2:8 extend 8:1511:24 12:1,13,17 believe 5:4 6:3 copy 17:25 18:5 8:7 extent 6:1412:19 benefit 14:14 corporation 9:4 defense 12:19afternoon 17:16 black 15:1 12:24 defenses 11:23,25 Fahead 3:18 books 14:22 Corporations 13:13 12:1,13,17 fact 6:6 9:1411:19all:7 Box 1:23 corporation's 12:23 defined 5:6 12:7 13:17 14:22

allow 5:20 10:24 Bradley 9:11,24 correct 4:6 Dental 10:19 factors 5:13,24allowed 5:5 BREGINIA 1:6 costs 8:4 deny 7:15 facts 9:19,20 16:22amount 8:10 Brief7:17 counsel 6:7 7:7,9 depositions 12:5 factually 11:25Anderson 1:18,22 bring 12:21 8:13,23,23 10:7 described 5:6 12:12.19:6,13 bunch 9:23 13:22 16:19,20 designation 5:12 Fax 1:24answer 3:17,24 business 13:15 18:8 determine 10:23 February 1:12answers 12:5 counsel's 8:21 different 5:21 19:11anymore 3:10 C countered 11:21 discussion 7:17 federal 13:23anytime 9:18 14:8 C 2:2 3:1 counters 11:20 d i sm i s s 8:17 fees 8:5,1116:12,15,14:16 called 11:7 county 1:1,15 3:21 dismissed 13:1 16:17apparently 13:11 capacity 12:20 13:3 12:2219:4 dispute 16:23 me 7:6,25,258:2,13APrPEARANCES 13:4,25 County's 3:9 division4:1713:13 8:2314:5,817:62:1 card 12:23 court 1:1,223:2,4,7 docket 10:9 17:15appearing 2:5 6:7 care 8: 17 9:25 3:9,13,16,21,25 document 16:317:3 med 3:17,24 8:4,6applicable 9:10 case 1:5 3:22 6:11 4:3,8,11,15,19 documents 17:13 10:6 11:24 15:15applies 13:2 7:199:3,11,25 6:18,257:1,5,11 doors 13:4 16:8April 8:3 10:1811:3,5,7 7:15,20,22,258:1 doubt 9:16 filing 11:8argue 7:22 12:3,10,15,18,25 8:19,20,22,25 9:3 Dozier 4:21 6:1 final 8:9 18:6argument 5:22 cases 5:15 9:7,910:2,22,25 drive 2:3 6:22 Finance 12:1116:21 Central 2:7 11:13,1713:2,3,8 dropped 8:9 find 16:2217:10arguments 5:7 Certificate 2:12 13:20,2114:5,7,7 due 6:24 7:7 11:2 first 5:13article 5:8 19:1 14:11,1515:13,18 five 5:8articulated 5:24 certified 15:5 15:21 16:7,9,18 E FL 1:23asking 17:8 certify 19:7 16:2217:1,4,8,12 E 2:10,13 3:1,1 Florida 1:1,16,19assert 6:157:9 challenging 16:14 17:13,14,19,24 earlier 12:10 2:3,74:195:6,7: 13:16,22 14:19 circuit 1:1,1 9:10 18:3,11 effect 5:15 10:2112:2513:1516:14 13:2 courthouse 1:15 either 8:8 19:3,7~1O:716:11 circumstance 5:1 13:4 elected 4:24 5:10 follow 11:9assertions 6:17 cite 10:19 11:3 courtroom 12:22 element 15:10 foregoing 19:9asserts 10:1111:18 cites 11:8 covered 5:15 eliminates 5:21 foreign 12:23a$signment 5:14,16 citizen 5:8 Cramer 2:2 3:3,5,5 ensure 6:23 forward 4:14 11:18assist 6:19 Qty 1:16,23 3:8,234:1,77:21 enter 4:24 FPR 1:1819:13associated 7:19 class 5:21 7:2315:14,25 entered 17:23 front 5:197:8assume 4:3 clear 5:239:12 16:5,817:18,21 entitled 5:96: 16 Frost 12:1attach 15:4 clearly 10:22 15:1 18:5,9 12:8 14:5 15:6,22attached 14:23,25 clerk's 17:15 18:3 credit 12:23 entitlement 13:25 Gattempt 6:9 9:6 client 6:23 8:6 17:8 16:11,14 G3:110:5,1711:6 clients 6:23 D equity 7:1 genuine 9:1312:7aftprney2:4,8 7:18 close 12:9 D 2:6,6,10 3:1 ESQUIRE 2:2,6 getting 10:4 11:16attorney's 8:5,11 COBB 1:11 Dade 1:16,23 et 1:7 go3:1811:1718:316:12,15,16 complaint 13:24 Daniel 2:2 3:6 evidence 6:11,12,17 goes 4:13 8:18.

I


43/56

\ : :I Page 21going 6:8,15,16 10:4,16 11:18 12:7 original 7:25 8:1 17:619:913:22 15:3 16:10 12:7 matter 10:10,25 15:11,11,1416:3 process 6:24 11:2gonna 6:187:159:2 issued 4:19 12:813:17,18,19 17:2 Professional 19:6,79:7,20,2210:10 matters 4:18,25 6:3 overruled 8:25 proper 9:19 10:8,2416:19,23 J 10:23 10:25 11:1212:14Good 3:3,4 JORDAN 1:6 Matthew 2:6,6 P 12:15 13:3gotten 3:14 12:9 Jordans4:8 mean 17:5 P 1:23 3:1 properly 8:7grant 7:1,10 9:21 judge 1:11 4:17 5:2 meet 14:19 Page 2:11 property 8:1415:816:23 17:1 5:3,10,11,207:9 met 14:25 Palm 2:3 propone 6:11granted 12:417:19 7:10 18:7,10 mind 9:18 parameters 5:5,12 proponed 14:13judges 4:24 morning 3:3,4 part 12:19 proponent 6:12,19H judgment 4:2,5 Morroni 12:10 parties 10:1416:1,6 17:7H2:13 6:167:1,108:6,9 mortgage 1:38:1 party 9:6 10:5,8,12 propones 11:17happened 5:3 9:10,16,19,22 9:413:14 10:13,17 12:7,21 proponiog 7:4harbor 5:17 12:3,8,13,20 motion 4:5 7:22 8:5 13:3 proposed 18:6head 10:2 13:11 14:20,24 10:6,12 11:7,8 party's 11:1 proposition 6:24Healthcare 4:21 15:3,9 16:24 16:23 Pasco 1:1,153:9,21 10:11 12:125:25 17:2218:6 moving 7:3 12:7 19:4 propriety 16:16hear 10:23 JUDICIAL 1:1 13:11 pending 8:14 protect 6:22hearing 1:106:2 Judy 1:18 19:6,13 perform 6:13 Pro-Art 10:1910:10,14,15,18 July 8:7 N Petersburg 2:7 Public 1:1811:7,10 18:12 jurisdiction 9:25 N2:103:1 phone 1:247:18 purport 14:3hearsay 14:21 10:22 13:7,20,21 named 3:13 10:7 15:22 P.A2:6held 1:10 10:10 nature 5:14,18 physically 6:13 P.L2:2He1Io3:2 K need 13:16 18:1 Physicians 4:205:6Hi,3:3 keep 9:17 Nevada 12:24 5:7;25 Qholds 10:22 Kelley 2:2 3:5,21 Notary 1:18 place 1:156:3,4 question 9:18Honor 3:3,114:10 7:2017:20 note 8:1 10:915:10 plaintiff 1:4 2:4 qnite 15:14:227:16,21,23 key 10:16 15:11,12,14 4:13 6:9,10,15,25 quote 9:7 10:10,208:12,2010:16 King 2:3 notes 19:10 7:2,39:210:5,7, P:4,1112:15,18 knoW ~:16,17,23 noqce~:19 10:13 10:17 11:12,13,17 R12:2413:3 16:3 11:1213:914:4,5 10:15,18,24 11:1 12:12 R3:1.1,7:3,10,17,18,21 14;11 17:11,12 11:10 plaintiff's 6:7 raise 6:618:4 18:7 noticed 8:8 plead 13:24 raised5:712:17~ONORABLE pleading 10:24 raises 9:151:11 L 0 13:18,18 16:2 real 5:17Household 12:11 L 1:11 01:233:1 pleadings 7:24 11:1 really 3:10 11:11

; . Lab 10:19 Oak,l;~~ , .,12:4 15:25 record 5:22,23 6:9I lacks 10:22 object 14:21,21 Please 8:20 9:13,15 19:10iJ,.;a7:8 Large 1:19 objec1;ing 6:8 pled 12:18 13:19 records 14:22 15:4implementation law 2:2 3:5 10:21 objection 4:9,166:6 plenty 15:18 15:4,5.4:18 12:813:23 7:13 8:2112:19 point 9:5 10:6 11:11 refers 13:5important 9:17 10:9 leads 9:21 15:2316:10 14:9,12 reflects 9:1310:21 legal 13:5 objections 4: 13 possibility 9:14 refute 12:13iIpproper 9:6,17 legislation 5:18 7:12 practical 5:15 refuted 11:2510:5,1711:6 legislature 5:19 obviously 6:3 preemption 13:23 regard 4:1717:10 Let's 12:~6 office7:817:16 presentation 16:11 regarding 9:8 15:10improperly 11:15 limited 5:1 \8:3 presented 15:22 Regions 12:2Includes 8:10 11:10 Live 1:16 Offices 2:2 3:6 presumably 6:18 register 13:1,17initial 4:12,16 7:12 loan 8:3 off-the-record 7:17 primary 4:21 5:7 registered 12:25tnterloper 11:14 longer 10:8 Oh4:10 printout 13:12 13:1419:6in~rpret 7:5 look 14:17 15:18 Okay3:7,84:3,11 probably 17:16,25 relatively 12:2interrogatories 17:14 4:157:158:199:1 problem 4:21 6:2 relied 17:12,13\2:5 looked 14:7,1617:5 14:9,.1717:14 6:1414:315:17 rely 15:3introduce 6:9 7:14 looking 3:2314:18 18:11 problems 6:20 relying 7:4 17:9l4:3 one$4:20 procedure 15:2 report 19:8introduced 5:19 M opinions 4:20 proceed 3:156:10 REPORTED 1:18invoke 13:7,20,21 Mangonia 11:4,4 opportunity 16:20 13:5 Reporter 2:12 19:1involved 3:10,22 manner 3:12 opposing 8:13 proceeding 13:6 19:7,7issue 9:1,14,15,16 material 9:14 11:19 order 6: 10,22,23 proceedings 1:10 REPORTING 1:22

i,,- ------ -------- --


44/56

representation 8:22 state 1:1,19 5:4,22 try 14:1 1.51014:20required 14:23 7:13,249:9 12:25 two 4:20 11295:25Residence 11:5 13:15 19:3 type 5:14 1208:16 17:1,19respect 7:7 stenographic 19:10 12292:7respond 16:19,20 stenographically U 124410:20response 11:24 19:8 uncontested 6:4 141501:22restate 8:21 Street 1:22 Understood 14:12 151:1212:3right 3:25 5:9 13:20 structural 6:5,20 uniform 16:4 15th 19:11rights 6:23,2411:2 style 9:3 unlock 13:4 166:1roll 9:20 subject 10:24 17811:5RPR 1:1819:13 substance 11:16 V 192:12rule 10:11,25 11:8,9 substitute 9:6 10:5 versus 6:19 :11,24 19979:11rules 15:2 10:17 11:6 10:1911:412:2substitution 9:8 12:10 2S 10:12 violation 11:1 20088:4S2:13 3:1 suffrage 5:9 vs 1:5 2009-CA-002709- safe 5:17 suggestions 11:20 V-Strategic 10:20 1:5sale 8:14,15,18 suing 12:23 20111:1219:11Saxon 1:3 13:10,12 summary 4:5 8:6 W 213-62352:813:14 9:9,16,19,22 12:3 want 5:22,23 6:6 24261:23says 9:1212:3 12:8,13,2013:11 7:229:8 11:3second 5:146:5 14:20,24 15:2,9 wanted 7:23 14:8 39:1211:3 15:10 16:24 15:9 33526-24261:23see 15:11,16,2317:8 support 15:3 wants 6:25 33619-1328 2:3'17:9 supposed 11:9 WAYNE 1:11 337052:7

~14:14 Supreme 4:19 week 17:25 3521:24,24seeking 8:9 Sure 14:15 Weidner 2:6,63:7 380531:16seen 17:2,22 sworn 15:5 3:11,14,194:8,10seQior4:175:1,3,11 system 5:2,3,20 4:12,167:12,16 55:20 8:19,209:1 10:3 567-54841:24~t 15:25 16:5 18:5 T 14:8,9,12,17 567~91511:2418:9 T2:13 15:16,20 16:2,7served 8:8 10:14 taken 8:17 16:10,19,24,25 6sernce 3:14,16 talk 12:16 17:2,5,15,17,22 67726:1Services 1:3 13:14 talking 17:6 18:1,4,6,7Shook 10:2 Tamm 9:11,12,24 we're9:112:22 7short 8:14,18 Tampa 2:3 13:914:13 7272:8~wI2:6 Taylor 9:4 10:7 we've 11:19signed 18:8 11:1313:10 Whitaker 9:4 10:8 8significant 12:17 tel~phone 2:5 6:7 11:1413:10 8132:4simply 12:9 temporary 5:18 white 15:1 8465:25sir.4:10 10:3 16:25 ten 18:1 WUd6:1sit 7:5 testify 16:16 willing 8:15 9sitting 7:1,7 Thank 10:317:17 witness 16:15 17:7 9:00 1:14SIJ:TH 1:1 17:18,2118:4,11 won~~3:17 ~:121:14 18:13slew 9:20 thing 13:2 90512:3slightest 9:15 think 3:15,166:2,4 X 915-8660 2:4somebody 15:22 9:17 X 2:10,13 92042:3sort 13:22 Third 1:22 93711:5So;2d 5:256:1 three 5:13 .. -..y 98610:20':1,0:2011:5 threshold 13:19 year 8:7SQ.3dJ2:3 15:1 yesterday 8:13speaker 7:18 tick 9:225pfke8:13 ~1:149:5 10:6 ~S~ 1:11 14:10,13 15:18 $1,200 8:10S J ; , ? - : 7 Tinsley 11:4 $300,252.37 8:10~dard 9:7,9,24 transcript 19:9.14:20,24 travel 14:1 istaD(ling7:13 12:22 trial 10:22 14:13 18:3stands 12:11 true 19:9 1.260 10:11 11:8ff.' 1.260(c) 9:8

f r y

Page 22


45/56

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT,IN AND FOR PASCO COUNTY, FLORIDACIVIL DIVISIONSAXON MORTGAGE SERVICES, INC., CASE NO. 2009-CA-002709-ES

PLAINTIFF,v .

BREGINIA DARLENE JORDAN ANDMICHAEL ANTHONY JORDAN,DEFENDANTS.______________________________ ~I

DEFENDANTS' OBJECTION TO PLAINTIFF'S MOTION FOR SUMMARYJUDGMENTCOMES NOW, the Defendants BREGINIA DARLENE JORDAN and MICHAEL

ANTHONY JORDAN (hereinafter "Defendants"), by and through the undersigned counselMATIHEW D. WEIDNER, and respectfully files this OBJECTION TO PLAINTIFF'SMOTION FOR SUMMARY JUDGMENT, pursuant to Fla. R. Civ. Pro. 1.510 and precedentcase law, and in support thereof states as follows:

FACTS1. This is an action for foreclosure of residential real property owned by the Defendants,2. The named Plaintiff in this case is SAXON MORTGAGE SERVICES, INC. (hereinafter

"Plaintiff"). However, the instant action was initiated by another party, namely TAYLOR,BEAN & WHITAKER MORTGAGE CORPORATION (hereinafter "Taylor, Bean &Whitaker").

3. Taylor. Bean &Whitaker is the original mortgagee of the subject mortgage.4. On or about August 7, 2009 the State of Florida, Office of Financial Regulation, pursuant

to Fla. Stat. 494, filed an Emergency Order to Cease and Desist and Notice of Rights

EXHIBIT .~B.........II


46/56

(hereinafter "Office of Financial Regulation's Order") against Taylor, Bean & Whitaker. SeeEmergency Order to Cease and Desist and Notice of Rights, attached hereto and incorporated asExhibit "A".

5. The Office of Financial Regulation's Order provided that the emergency cease and desistwas being levied against Taylor, Bean & Whitaker because the Office of Financial Regulation"found that an immediate and serious danger to the public welfare flows from the unlawfulactivities of Taylor Bean & Whitaker Mortgage Corp." Bold emphasis added. SeeEmergency Order to Cease and Desist and Notice of Rights at 1.

6. The findings of fact articulated in the Office of Financial Regulation'S Order included,amongst other things, the following:

a. That on August 4, 2009 the Federal Housing Administration (hereinafter "FHA") hadsuspended Taylor, Bean &Whitaker from originating loans insured by the FHA;

b. That on August 4, 2009 the Government National Mortgage Association (hereinafter

"Ginnie Mae") was defaulting and terminating Taylor, Bean & Whitaker as an issuerin Ginnie Mae's mortgage backed security program as well as Taylor, Bean &Whitaker's ability to continue to service Ginnie Mae securities;

c. That on August 4, 2009 the Mortgage Review Board of the U.S. Department ofHousing and Urban Development notified Taylor, Bean & Whitaker of the immediatesuspension of its originating and underwriting approval;

d. That several state agencies that regulate banking and mortgage lenders have enteredadverse administrative orders acting against the licenses held by Taylor, Bean &Whitaker; and finally


47/56

e. That the Office of Financial Regulation found it necessary to take emergency andimmediate action against Taylor, Bean & Whitaker to avoid irreparable harm toFlorida consumers resulting from "[Taylor, Bean & Whitaker's] ongoing inabilityto fund agreements that it has entered into with Florida consumers. includingloans that have already dosed." Bold emphasis added. See Emergency Order toCease and Desist and Notice of Rights at 1.

7. The Office of Financial Regulation ultimately stripped Taylor, Bean &Whitaker of itslicense to engage in business in the State of Florida based upon the fraudulent actions perpetratedby it in originating loans to consumers such as the Defendants.

8. Finally, with respect to the current named Plaintiff, while Plaintiffs name is asserted inthe caption of several recent court filings, nowhere in the body of Plaintiffs complaint or in anyother pleading or filing does the Plaintiff set off or describe in any way the structure of the entityso described nor does the Plaintiff assert in what capacity does the Plaintiff contend it may availitself to the jurisdiction of this Court. Nowhere in the body of Plaintiff s complaint does it assertthe basis for its entity-existence or explain in any way the form of the entity that presents itselfbefore the court. Moreover, a search of the Florida Division of Corporations reveals that nolicense, either active or inactive, has ever been issued to the Plaintiff. It is therefore unclear whothe Plaintiff even is.

STANDARD OF REVIEW9. Under Florida law, summary judgment is proper if, and only if, based on an examination

of evidence, no genuine issue of material fact exists and the movant is entitled to judgment as amatter of law. See The Florida Bar v. Green. 926 So. 2d 1195, 1200 (Fla. 2006); Volusia Countyv. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000).


48/56

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT,IN AND FOR PASCO COUNTY, FLORIDACIVIL DIVISIONSAXON MORTGAGE SERVICES, INC., CASE NO. 2009-CA-002709-ES

PLAINTIFF,v .

BREGINIA DARLENE JORDAN ANDMICHAEL ANTHONY JORDAN,DEFENDANTS.______________________________ ~I

DEFENDANTS' OBJECTION TO PLAINTIFF'S MOTION FOR SUMMARYJUDGMENTCOMES NOW, the Defendants BREGINIA DARLENE JORDAN and MICHAEL

ANTHONY JORDAN (hereinafter "Defendants"), by and through the undersigned counselMAITHEW D. WEIDNER, and respectfully files this OBJECTION TO PLAINTIFF'SMOTION FOR SUMMARY JUDGMENT, pursuant to Fla. R. Civ. Pro. 1.510 and precedentcase law, and in support thereof states as follows:

FACTSI. This is an action for foreclosure of residential real property owned by the Defendants,2. The named Plaintiff in this case is SAXON MORTGAGE SERVICES, INC. (hereinafter

"Plaintiff"). However, the instant action was initiated by another party, namely TAYLOR,BEAN & WHITAKER MORTGAGE CORPORATION (hereinafter "Taylor, Bean &Whitaker").

3. Taylor. Bean &Whitaker is the original mortgagee of the subject mortgage.4. On or about August 7, 2009 the State of Florida, Office of Financial Regulation, pursuant

to Fla. Stat. 494, filed an Emergency Order to Cease and Desist and Notice of Rights


49/56

(hereinafter "Office of Financial Regulation's Order") against Taylor, Bean & Whitaker. SeeEmergency Order to Cease and Desist and Notice of Rights, attached hereto and incorporated asExhibit "A".

5. The Office of Financial Regulation's Order provided that the emergency cease and desistwas being levied against Taylor, Bean & Whitaker because the Office of Financial Regulation"found that an immediate and serious danger to the public welfare flows from the unlawfulactivities of Taylor Bean & Whitaker Mortgage Corp." Bold emphasis added. SeeEmergency Order to Cease and Desist and Notice of Rights at I.

6. The findings of fact articulated in the Office of Financial Regulation's Order included,amongst other things. the following:

a. That on August 4, 2009 the Federal Housing Administration (hereinafter "FHA") hadsuspended Taylor, Bean&Whitaker from originating loans insured by the FHA;

b. That on August 4, 2009 the Government National Mortgage Association (hereinafter"Ginnie Mae") was defaulting and terminating Taylor, Bean & Whitaker as an issuerin Ginnie Mae's mortgage backed security program as well as Taylor, Bean &Whitaker's ability to continue to service Ginnie Mae securities;

c. That on August 4, 2009 the Mortgage Review Board of the U.s. Department ofHousing and Urban Development notified Taylor, Bean & Whitaker of the immediatesuspension of its originating and underwriting approval;

d. That several state agencies that regulate banking and mortgage lenders have enteredadverse administrative orders acting against the licenses held by Taylor, Bean &Whitaker; and finally


50/56

e. That the Office of Financial Regulation found it necessary to take emergency andimmediate action against Taylor, Bean & Whitaker to avoid irreparable harm toFlorida consumers resulting from "[Taylor, Bean & Whitaker's] ongoing inabilityto fund agreements that it has entered into with Florida consumers. includingloans that have already closed." Bold emphasis added. See Emergency Order toCease and Desist and Notice of Rights at 1.

7. The Office of Financial Regulation ultimately stripped Taylor, Bean & Whitaker of itslicense to engage in business in the State of Florida based upon the fraudulent actions perpetratedby it in originating loans to consumers such as the Defendants.

8. Finally, with respect to the current named Plaintiff, while Plaintiff's name is asserted inthe caption of several recent court filings, nowhere in the body of Plaintiff's complaint or in anyother pleading or filing does the Plaintiff set off or describe in any way the structure of the entityso described nor does the Plaintiff assert in what capacity does the Plaintiff contend it may avail

itself to thejurisdiction of this Court. Nowhere in the body of Plaintiff's complaint does it assertthe basis for its entity-existence or explain in any way the form of the entity that presents itselfbefore the court. Moreover, a search of the Florida Division of Corporations reveals that nolicense, either active or inactive, has ever been issued to the Plaintiff. It is therefore unclear whothe Plaintiff even is.

STANDARD OF REVIEW9. Under Florida law, summary judgment is proper if, and only if. based on an examination

of evidence, no genuine issue of material fact exists and the movant is entitled to judgment as amatter oflaw. See The Florida Bar v. Green. 926 So. 2d 1195. 1200 (Fla. 2006); Volusia Countyv. Aberdeen at Ormond Beach. L.P., 760 So. 2d 126, 130 (Fla. 2000).


51/56

10. Furthermore. pursuant to Rule 1.510 of the Florida Rules of Civil Procedure. a Court maygrant summary judgment if. and only if. "the pleadings. depositions, answers to interrogatories.and admissions on file together with the affidavits. if any. show that there is no genuine issue asto any material fact and that the moving party is entitled to a judgment as a matter of law." Fla.R. Civ. P. 1.51O(c).

11. Finally. the Court must take all the facts that the non-movant states as true and must drawall reasonable inferences in favor of the non-moving party. See Bradford v. Bernstein, 510 So.2d1204 (Fla. 2d DCA 1987); Petruska v. Smartparks-Silver Springs. Inc . 914 So.2d 502 (Fla 5thDCA 2005).

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT'S OBJECTIONI. The Plaintiff's Motion for Summary Judgment should be denied becauseequitable defenses are available to the Defendants

a. Legal Standards12. By both statutory order and case law. foreclosure proceedings are actions in equity. See

Fla. Stat. 702.01 (2009) (providing. in pertinent part, that "[a]lI mortgages shall be foreclosed inequity." Bold emphasis addedy; Swan Landing Development. LLC v. Florida Capital Bank,N.A.. 19 So.3d 1068, 1072 (Fla. 2d DCA 2009) (providing that "[t]oreclosure of a mortgage isan equitable remedy"). See also. Singleton v. Greymar Assocs.. 882 So.2d 1004. 1008(Fla2004); Smiley v. Manufactured Hous. Assocs. IIILtd. P'ship. 679 So.2d 1229, 1232 (Fla. 2dDCA 1996).

13. In a foreclosure suit, the existence of a material issue of fact as to whether anequitable defense is available to the Defendant precludes summary judf!Dlent. Cross v.Federal Mortgage Association, 359 So.2d 464 (Fla. 4th DCA] 978). In Cross, the Fourth Districtheld that material issue of fact existed precluding summary judgment as to whether an equitable


52/56

defense was available to mortgagors for mortgagee's failure to follow Department of Housingand Urban Development guidelines. The Fourth District explicitly noted that "a mortgageforeclosure is an equitable action and thus equitable defenses are most appropriate." Id at465. Bold emphasis added.

14. Moreover, because foreclosure is an equitable remedy, "[it] may be denied if the holderof the note comes to the court with unclean hands or the foreclosure would be unconscionable."Knight Energy Services, Inc. v. Amoco Oil Co., 660 So.2d 786, 789 (Fla. 4th DCA 1995).

b. Argument15. Here, equitable defenses abound which should preclude an entry of summary judgment in

favor of the Plaintiff.16. Specifically, it is highly questionable whether Taylor, Bean & Whitaker, the original

mortgagee and Plaintiff in this case, even had the power to pursue the instant litigation basedupon the numerous abuses committed by the firm and highlighted in the Office of FinancialRegulation's Order.

17. Ultimately, Taylor, Bean & Whitaker's actions against Florida consumers forced theOffice of Financial Regulation to suspend its license to engage in business in this State.

18. As the original mortgagee of the subject mortgage, the penalties leveled against Taylor,Bean &Whitaker by both the Florida Office of Financial Regulation and various other state andfederal agencies go straight at the heart of the instant litigation which creates the existence of amaterial issue as to whether an equitable defense is available to the Defendants. The existence ofsame is grounds for the denial of summary judgment as articulated by the Fourth District inCross v. Federal Mortgage Association, supra.


53/56

19. Finally, to grant foreclosure where the original mortgagee and Plaintiff came to this Courtwith unclean hands would violate the principles laid down by the Fourth District in KnightEnergy Services, Inc. v. Amoco Oil Co., supra.

WHEREFORE, based upon the foregoing, the Defendants respectfully request thisCourt deny the Plaintiff its Motion for Summary judgment and any other relief the Court deemsjust and proper.

II. The Plaintiff's Motion for Summary Judgment Should be Denied Because of itsFailure to Pled its Capacitya. Legal Standards

20. Fla. R. Civ. Pro. I.120(a) provides that[i]t is not necessary to aver the capacity of a party to sue or be sued, the authorityof a party to sue or be sued in a representative capacity, or the legal existence ofan organized association of persons that is made a party, except to the extentrequired to show the jurisdiction of the court. (emphasis added)The initialpleading served on behalf of a minor party shall specifically aver the age of theminor party. When a party desires to raise an issue as to the legal existence ofany party, the capacity of any party to sue or be sued. or the authority of aparty to sue or be sued in a representative capacity, that party shall do so byspecific negative averment which shall include such supporting particulars asare peculiarly within the pleader's knowledge. Bold emphasis added.

21. "Capacity to sue" is an absence of legal disability which would deprive a party of theright to come into court. 59 Am.Jur.2d Parties 31 (1971). This is in contrast to "standing"which requires an entity have sufficient interest in the outcome of litigation to warrant the court'sconsideration of its position. Keehn v. Joseph C. Mackey and Co., 420 So.2d 398 (Fla. 4th DCA1982).22. The issue of capacity to sue may be raised by motion to dismiss where the defect appears

on the face of the complaint. See Hershel California Fruit Products Co. v. Hunt Foods, 111 F.


54/56

Supp. 603 (1975), quoting Coburn v. Coleman 75 F. Supp. 107 (1974); Klebano v. New YorkProduce Exchange, 344 F.2d (2nd Cir. 1965).

23. The failure to adequately plead capacity has been grounds for dismissals of lawsuits inFlorida state courts. S ee e .g . Asociacion de Periudiacados v. Citibank, 770 So. 2d 1267 (Fla, 3dDCA 2000) (dismissing case for lack of capacity as distinguished from lack of standing).

24. Furthermore, the Comment to the Rule (2004 Version), states that "if a party involved ina suit in other than his individual capacity, the capacity in which he is a party should beindicated in the caption and the pleadings." B old e m phasis a dd ed.

25. With respect to corporations, Fla. Stat. 607.0501(5) provides that "[a] corporation maynot maintain any action in a court in this state until the corporation complies with the provisionsof this section or s. 607.1507, as applicable, and pays to the Department of State a penalty of $5for each day it has failed to so comply or $500, whichever is less:'

26. Section 607.0501 requires that the corporation have and continuously maintain in Florida:

(1) a registered office; and (2) a registered agent. S e e Fla. Stat. 607.0501(1).27. Section 607.1507 requires this same rule for a foreign corporation. S e e Fla. Stat.

607.1507.28.. Furthermore, Fla Stat. 86S.09(3) provides that

a person may not engage in a business under a fictitious name unless the personfirst registers with the division by filing a sworn statement listing: (a); the name tobe registered; (b) the mailing address of the business; (c) the name and address ofeach owner and, if a corporation, its federal employer's identification number andFlorida incorporation or registration number; (d) certification by the applicant thatthe intention to register such fictitious name has been advertised at least once in anewspaper as defined in chapter 50 in the county where the principal place ofbusiness of the applicant will be located; and (e) any other information thedivision may deem necessary to adequately inform other governmental agenciesand the public as to the persons conducting business.


55/56

29. Finally, although the capacity issue is new, it is important to note that judges in thisCircuit (and presumably in other circuits) have routinely recognized the legitimacy of thecapacity argument and are routinely granting Defendant's Motion to Dismiss based on thesegrounds. See HSBC v. Montgomery, Pinellas Case 52-2009-CA-005696; Wachovia v.Matacchiero, Pinellas Case No. 52-2009-16936-CI-13; Bolin v. HSBC, Pinellas Case 09-005190-CI-19.

b. Argument30. While the current Plaintiff's name is identified in the caption of several recent court

filings, nowhere else in any of the Plaintiff's pleadings is the Plaintiff's entity status or capacityeven pled. As a threshold matter, then, it is unclear exactly who the Plaintiff even is.

31. Moreover, to the extent that the Plaintiff is a corporatio

Documents

Foreclosure - Motion for Rehearing Reconsideration Saxon v. Jordan