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IN THE THIRD DISTRICT COURT OF APPEALSTATE OF FLORIDA
________________________
No. 3D10-2270 Lower Tribunal No. 08-57109 ________________________
GROVE ONE REALTY, LLC, GROVE ONE MANAGEMENT, LLC,
GUY MITCHELL, and AMELIA MITCHELL,
Appellants,
vs.
OCEAN BANK,
Appellee.
___________________________________________________
APPELLANTS’ INITIAL BRIEF ___________________________________________________
Daniel A. Bushell Florida Bar No. 43442 Bushell Appellate Law, P.A. 2000 Glades Road, Suite 110 Boca Raton, Florida 33431 Phone: 561-368-8400 Fax: 561-368-8403 Email: [email protected]
Counsel for Appellants
ii
TABLE OF CONTENTS
Page:
TABLE OF CITATIONS………………………………………………………...iv
I. INTRODUCTION……………………………………………………... 1
II. STATEMENT OF THE CASE AND FACTS……………………….. 2
A. The Lending Transactions……………………………………………...2
1. September 19, 2003 Loan to Realty………………………………..3 2. November 26, 2003 Loan to Management……………………… 3 3. December 12, 2005 Loan to Realty……………………………… 4 4. Personal Guaranties ……………………………………………… 4
B. The Bank’s Asserted Basis for Accelerating the Loans………………5
C. The Mortgages’ Notice and Cure Requirements …………………….6
D. The Notes’ Default Interest Provisions………………………………. 8
E. Ocean Bank’s Correspondence to Realty and Management………..9
F. Proceedings Below ………………………………………………… 10
G. Ocean Bank’s Motion of Summary Judgment …………………… 12
III. SUMMARY OF ARGUMENT……………………………………… 15
IV. ARGUMENT ………………………………………………………… 17
A. Standard of Review ………………………………………………….. 17
B. The Court Erred in Finding A Default Under Paragraph 21/22…..19
C. The Trial Court Erred in Failing to Require Ocean Bank to Show That it Satisfied Paragraph 8’s Conditions Precedent………23
iii
1. The Bank Was Required to Give Notice and Allow Time to Cure Before Declaring a Default…………………………… 24
2. The Bank Did Not Establish That It Complied Withthe Notice and Cure Requirement……………………………… 25
3. The Bank’s Contention That It Was Not Required to Give Notice and Cure Was Erroneous………………………….. 26
4. Under Florida Law, the Mortgages’ Notice andCure Requirements Must Be Given Effect………………………27
D. The Trial Court’s Order Erroneously Calculates the Amountand Apportionment of Damages……………………………………..30
V. CONCLUSION………………………………………………………..32
CERTIFICATE OF SERVICE…………………………………………………33
CERTIFICATE OF COMPLIANCE………………………………………… 33
iv
TABLE OF CITATIONS
Cases
Abichandani v. Related Homes of Tampa, Inc.,
696 So. 2d 802 (Fla. 2d DCA 1997) ........................................................................ 20
Alejandre v. Deutsche Bank Trust Co.,
44 So. 3d 1288 (Fla. 4th DCA 2010) ................................................................. 18,23
August Tobler, Inc. v. Goolsby, 67 So.2d 537 (Fla. 1953) ................................ 26,27
Auto-Owners Ins. Co. v. Anderson, 756 So. 2d 29 (Fla. 2000) ............................... 28
Belamy v. Hawkins, 17 Fla. 750 (1886) ................................................................... 21
Bergeron Land Development, Inc. v. Knight,
307 So. 2d 240 (Fla. 4th DCA 1975) ................................................................. 20-21
Delandro v. America’s Mortg. Servicing, Inc.,
674 So. 2d 184 (Fla. 3d DCA1996) ......................................................................... 19
Discover Property & Cas. Ins. Co. v. Beach Cars of West Palm, Inc.,
929 So. 2d 729 (Fla. 4th DCA 2006) ................................................................. 28,29
DSL Internet Corp. v. TigerDirect, Inc., 907 So. 2d 1203 (Fla. 3d DCA 2005) ..... 29
E. Qualcom Corp. v. Global Commerce Center Ass’n,
59 So. 3d 347 (Fla. 4th DCA 2011) ......................................................................... 23
Excelsior Ins. Co. v. Pomona Park Bar & Package Store,
369 So. 2d 938 (Fla. 1979) ....................................................................................... 29
v
Frost v. Regions Bank, 15 So. 3d 905 (Fla. 4th DCA 2009) ................................... 24
Hotel 71 Mezz Lender LLC v. Falor, 926 N.E. 2d 698 (N.Y. 2010) ................ 14, 22
Konsulian v. Busey Bank, N.A., 61 So.3d 1283 (Fla. 2d DCA 2011) ................ 21,23
LRB Holding Corp. v. Bank of Am., N.A.,
944 So. 2d 1113 (Fla. 3d DCA 2006) ................................................................ 26,27
Moore v. Morris, 475 So. 2d 666 (Fla. 1985) .......................................................... 18
Novack v. Novack, 196 So. 2d 499 (Fla. 3d DCA 1967) ......................................... 21
Rocamonde v. Marshalls of Ma, Inc., 56 So. 3d 863 (Fla. 3d DCA 2011) ....... 17,18
Schrank v. Pearlman, 683 So. 2d 559 (Fla. 3d DCA 1996) .................................... 19
Servedio v. U.S. Bank, N.A., 46 So. 3d 1105 (Fla. 4th DCA 2010) ......................... 19
Terra Firma Holdings v. Fairwinds Credit Union,
15 So. 3d 885 (Fla. 2d DCA 2009) .......................................................................... 19
TRG-Brickell Point NE, Ltd v. Wajsblat, 34 So. 3d 53 (Fla. 3d DCA 2010) .......... 19
Tropical Glass & Constr. Co. v. Gitlin, 13 So.3d 156 (Fla. 3d DCA 2009)). ... 17,18
Valencia v. Deutsche Bank Nat’l Trust Co., No. 4D09-3297, --- So. 3d ----,
2011 WL 2462673 (Fla. 4th DCA June 22, 2011) .................................................. 18
Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000) ...... 17
Statutes and Rules
Rule 1.510(c) of the Florida Rules of Civil Procedure………………………… 19
1
I. INTRODUCTION
This is an appeal from a $9 million final summary judgment of foreclosure
entered against two commercial borrowers and two individuals. Although the trial
court treated it is as if it were a typical residential foreclosure case, this case bears
little resemblance to the standard cases making their way through the system. For
one, the Bank did not file suit in response to a mortgagor’s failure to make loan
payments. The borrowers here were current on their loan payments while they
were operating “the Car Wash,” a successful local business, on the foreclosed
properties. Instead, it is before this Court because Ocean Bank panicked when one
of the individual Appellants was accused (although never convicted) of
improprieties in a wholly unrelated matter. When the Bank found a technicality it
believed it could use to foreclose, it quickly moved to file suit, disregarding the
conditions precedent it had written into the Mortgages. It then took over running
the Car Wash, speeding it from profitability to losses.
Ocean Bank refused to cooperate with discovery, prompting the trial court to
say that summary judgment would be postponed if the Bank did not comply with
Appellant’s deposition notice. It did not, but the trial court refused to postpone the
summary judgment hearing, despite its earlier promise.
2
After a short hearing, the trial court entered a form order of Final Summary
Judgment as prescribed by Eleventh Judicial Circuit Administrative Order No. 09-
09 for residential mortgage foreclosures, not commercial cases. The trial court
granted summary judgment for Appellee Ocean Bank without requiring the Bank
to submit competent evidence of any default under the mortgages at issue. In
addition, the trial court refused to enforce the plain language of the mortgages,
which required the Bank to provide notice and an opportunity for cure before
declaring a default. As explained more fully below, the trial court’s Final
Judgment of Foreclosure should be reversed.
II. STATEMENT OF THE CASE AND FACTS
A. The Lending Transactions
This case involves three separate lending transactions: two between
Appellant Grove One Realty, LLC (“Realty”) and Appellee Ocean Bank, and one
between Appellant Grove One Management, LLC (“Management”) and the Bank.
The individual Appellants were sued as alleged guarantors: Appellant Guy
Mitchell for all three of the loans, and Appellant Amelia Mitchell with respect to
two of the three.
3
1. September 19, 2003 Loan to Realty
Realty executed a Promissory Note in favor of Ocean Bank dated September
19, 2003, in the amount of $4,600,000 (“9/03 Note”). See R. 1260-631. On the
same date, Realty executed a purchase money mortgage memorialized in a
Mortgage Deed and Security Agreement (“9/03 Mortgage”), pledging, as security
for the 9/03 Note, real property referred to as Lot 1 of the Herbert L. Stevens
Subdivision (the “Car Wash Property”). See R. 1268-82.
Realty also entered into a Security Agreement, pledging Realty’s personal
property as collateral for the loan, R. 550-53, as well as an Assignment of Leases,
Rents and Profits, R. 559-64, with respect to the Car Wash business that Realty
operated on that real property.
2. November 26, 2003 Loan to Management
On November 26, 2003, Management executed a Promissory Note (the
“11/03 Note”) in favor of Ocean Bank in the amount of $357,000. R. 1298-1301.
Management concurrently entered into a first money mortgage memorialized in a
Mortgage Deed and Security Agreement (the “11/03 Mortgage”) granting a
security interest in favor of the Bank in certain real property referred to as the
South 50 feet of the North 60 feet of Lots 19 and 20, Palmhurst and North 120 feet
1 “R.____” citations refer to the page number(s) in the Record on Appeal.
4
of Lot 18, and the North 120 feet of the West 10 feet of Lot 17, less the North 10
feet thereof, Palmhurst. R. 1302-1316.
On the same date, Management also executed a Security Agreement granting
the Bank a security interest in personal property owned by Management, R. 593-
596, as well as an Assignment of Leases, Rents and Profits related to that property,
R. 601-606. Also in connection with the 11/03 loan, Realty and Management, as
well as Guy and Amelia Mitchell, entered into a Cross-Collateralization and Cross-
Default Agreement with Ocean Bank, allowing cross-collateralization and cross-
default between the 9/03 Note and the 11/03 Note. R. 608-615.
3. December 12, 2005 Loan to Realty
Realty executed a second Promissory Note in favor of Ocean Bank on
December 12, 2005, in the amount of $1,570,000.00 (“12/05 Note”). See R. 1264-
1267. On the same date, Realty executed a Mortgage Deed and Security
Agreement (“12/05 Mortgage”) granting Ocean Bank a second security interest in
the Car Wash Property, R. 1283-1297, and an Assignment of Leases, Rents and
Profits, R. 521-526, in favor of Ocean Bank.
4. Personal Guaranties
Guy Mitchell executed personal guaranties as to all three loans, but Amelia
Mitchell only guarantied two of them. For the 9/03 Note, Guy Mitchell executed
an Unlimited Guaranty of Realty’s obligations under that Note on September 19,
5
2003, R. 104, as did Amelia Mitchell, R. 108. Similarly, on November 26, 2003,
Guy Mitchell and Amelia Mitchell both executed an Unlimited Guaranty of
Management’s obligations under the 11/03 Note. See R. 156-157 & R. 159-160.
In connection with the 12/05 Note, Guy Mitchell was required to, and did,
execute an Unlimited Guaranty of Realty’s obligations under the 12/05 Note. R.
66-67. However, Ocean Bank never claimed that Amelia Mitchell guarantied
Realty’s obligations under the 12/05 Note, and never produced any evidence that
an Unlimited Guaranty was executed by Amelia Mitchell with respect to Realty’s
obligations under the 12/05 Note. See R. 1125 (asserting only that “Amelia
Mitchell is individually liable for the full amount owed to Ocean Bank by
Borrowers on the Realty Note Two [the 9/03 Note] and Management Note [the
11/03 Note],” but not the 12/05 Note).
B. The Bank’s Asserted Basis for Accelerating the Loans
Ocean Bank maintained from the outset, and contended in its original
complaint, that all three loans were in default as a result “of the appointment of a
receiver over Grove One Realty” and “the appointment of a receiver over Grove
One Management.” See R. 17-19, ¶¶34, 40 & 46. It made the same assertion in its
motion for summary judgment. See R. 1118, ¶¶4-5.
The Bank relied on a provision (identical in all three Mortgages) that
allowed for acceleration if: (1) Realty or Management consented to the
6
appointment of a receiver; or (2) in certain circumstances, if a court entered an
order appointing a receiver over the assets of Realty or Management:
In the event that MORTGAGOR shall: (1) consent to the appointment of a receiver, trustee, or liquidator of all or a substantial part of MORTGAGOR'S assets, or . . . (7) any order, judgment, or decree shall be entered upon an application of a creditor of MORTGAGOR by a court of competent jurisdictionapproving a Petition seeking appointment of a receiver or trustee of all or a substantial part of the MORTGAGOR'S assets and such order, judgment, or decree shall continue unstayed and in effect for any period of thirty (30) consecutive days, the BANK may declare the PROMISSORY NOTES hereby secured forthwith due and payable, whereupon the principal of and the interest accrued on the PROMISSORY NOTES and all other sums hereby secured shall become forthwith due and payable as if all of the said sums of money were originally stipulated to be paid on such day; and thereupon the BANK without notice or demand may prosecute a suit at law and/or in equity as if all monies secured hereby had matured prior to its institution.
R. 1272-73 ¶21 (emphasis added) (9/03 Mortgage); R. 1289 ¶22 (emphasis added)
(12/05 Mortgage); R. 1308 ¶21 (emphasis supplied) (11/03 Mortgage).
C. Notice and Cure Requirements of Paragraph 8 of the Mortgages
Paragraph 8 in each of the Mortgages spelled out the process by which a
default was to be declared and the entire principal balance declared immediately
due, in the event that the Bank considered Realty or Management to be non-
compliant with any of the “stipulations, agreements, conditions, and covenants” of
the Mortgage. See R. 1270-71 ¶8; R. 1305 ¶8; R. 1286 ¶8. Specifically, Ocean
Bank could not declare a default until it first gave the Mortgagor notice of non-
7
compliance, and allowed ten days to cure any non-payments, or for non-
compliance with any provision other than payment, allowed 30 to 90 days for cure:
If any of the sums of money herein referred to are not promptly and fully paid within ten (10) days written notice after the same becomes due and payable, or if any of the other stipulations, agreements, conditions, and covenants contained in the PROMISSORY NOTE and this Mortgage, or either, are not fully performed, complied with and abided by after thirty (30) days written notice, same shall be considered a default of this Mortgage and the PROMISSORY NOTE (provided, however, that if such failure is not susceptible to cure within such 30-day period, MORTGAGOR shall have such additional time as reasonably necessary to complete such cure as long as MORTGAGOR has commenced such cure within such 30-day period and diligently pursues such cure to completion, but in no event longer than 90 days), and the aggregate sum set forth in the PROMISSORY NOTE then remaining unpaid, with interest accrued to that time and unpaid, and all monies secured hereby, shall become due and payable forthwith, or thereafter, at the option of the BANK, as fully and completely as if all the said sums of money were originally stipulated to be paid on such day, anything in the PROMISSORY NOTE or in this Mortgage to the contrary notwithstanding; and thereupon or thereafter, at the option of the BANK, without notice or demand, suit at law or in equity may be prosecuted as if all monies secured hereby had matured prior to its institution.
See R. 1270-71 ¶8 (9/03 Mortgage) (emphasis added); R. 1305 ¶8 (11/03
Mortgage) (emphasis added); R. 1286 ¶8 (12/05 Mortgage) (emphasis added).2
2 Paragraph 8 was identical in all three Mortgages, except that in the 12/05 Mortgage agreement, the parenthetical phrase, “(provided, however, that if such failure is not susceptible to cure within such 30-day period, MORTGAGOR shall have such additional time as reasonably necessary to complete such cure as long as MORTGAGOR has commenced such cure within such 30-day period and diligently pursues such cure to completion, but in no event longer than 90 days)” was deleted. See R. 1286 ¶8.
8
D. The Notes’ Default Interest Provisions
In addition to stating certain formulas for determining the interest rate on the
outstanding principal at various points in repayment, the 9/03 Note specified a
“Default Interest Rate” that was to apply to late payments. R. 1261. The specified
Default Interest Rate was 18% annually, which could be applied on a daily basis of
1/360 of the annual rate per day, so long as the total did not exceed “the highest
rate permitted by applicable law.” Id. The 9/03 Note further states that “[w]hile in
default, this Note shall bear interest at the lesser of (a) the Default Interest Rate and
(b) the highest rate of interest then allowed under the laws of the State of Florida.”
R. 1262 (emphasis in original).
Management’s 11/03 Note contained functionally identical provisions
regarding the “Default Interest Rate” to be charged for late payments. R. 1299.
The 12/05 Note did not state a specific interest rate to be applied to late payments,
stating only that the rate would “automatically increase to the maximum rate then
permitted by applicable law,” and accrue at 1/360 of the annual interest rate per
day, not to exceed “the highest rate permitted by applicable law.” R. 1265.
E. Ocean Bank’s Correspondence to Realty and Management
On September 5, 2008, Ocean Bank sent a letter to Realty for the stated
purpose of notifying Realty that the 9/03 Mortgage and 12/05 Mortgage were “in
default due to, among other things, the entry of two certain Orders by the Supreme
9
Court of the State of New York, County of New York appointing Albert M.
Rosenblatt… as receiver over, among other things, all or a substantial port of the
Borrower's assets and such orders have continued unstayed and in effect for a
period in excess of thirty (30) consecutive days.” R. 1147.
Ocean Bank’s letter did not state that Realty had the opportunity to avoid
acceleration of its loans and foreclosure proceedings by curing the alleged non-
compliance. See R. 1147-49. To the contrary, Ocean Bank purported to “declare
the loans immediately due and payable and demand[] that all outstanding principle
and the interest accrued on the Loans and all other sums secured by said mortgages
be immediately paid to the Bank.” Id. at 1147 (emphasis added). It further
claimed that more than $456,000.00 of “Default interest” had already accrued on
the combined principal balance of approximately $5.56 million (more than 8%) it
said Realty owed. R. 1147-48. Moreover, the letter asserted, even if Realty were
to immediately repay the entire stated principal amounts, plus interest and “Default
interest,” Realty would also be responsible for paying Ocean Bank’s “attorney fees
and costs and costs of collection[.]” Id. at 1148.
On the same day, September 5, 2008, Ocean Bank sent a letter to
Management, for the same stated reason – to notify Management that the 11/03
Note and Mortgage were in default due to the appointment of a receiver over “all
or a substantial part of the Borrower’s assets” for more than 30 days. See R. 1150-
10
51. Similar to the Bank’s letter to Realty, its letter to Management purported to
“declare the loans immediately due and payable and. demand[] that all outstanding
principle and the interest accrued on the Loans and all other sums secured by said
mortgages be immediately paid to the Bank.” Id. at 1150.
Ocean Bank claimed that $6,356.06 of “Default interest” had already
accrued on the stated balance of $315,303.30 (about 2%) by the time of its letter,
and that $459.81 in additional interest was accruing daily. Id. It further asserted
that even if Management immediately repaid the entire amount of the principal
claimed to be owed, plus the “Default interest” purportedly due, Management
would be required to pay Ocean Bank’s “attorney fees and costs and costs of
collection[.]” Id.
F. Proceedings Below
Despite the 30 to 90 day Notice and Cure periods the Mortgages required, on
September 24, 2008 – just 19 days after the date of its letters to Realty and
Management – Ocean Bank filed Notices of Lis Pendens, R. 161-64, and the
following day, filed this lawsuit against Realty, Management, Guy Mitchell, and
Amelia Mitchell, among others. See R. 10. In its complaint, Ocean Bank asserted
that the alleged “appointment of a receiver over Grove One Realty” and the alleged
“appointment of a receiver over Grove One Management” were events of default
that supposedly entitled it to accelerate the debts and foreclose on each of the
11
Mortgages. See R. 17 ¶34; R. 18 ¶40; R 19 ¶46. Ocean Bank’s complaint neither
mentioned the Mortgages’ Notice and Cure provisions, nor alleged that it had
satisfied them. See R. 10-33.
Appellants answered the complaint, and asserted affirmative defenses.
Among other things, Appellants asserted that no court had entered an order,
judgment or decree appointing a receiver over the assets of either Realty or
Management, and that an appellate court had vacated the New York court orders
against Guy Mitchell on which Ocean Bank apparently relied, finding that the trial
court lacked jurisdiction to enter an order affecting Mr. Mitchell’s assets outside of
the state of New York. R. 425-426 & 444. They further alleged an affirmative
defense that Ocean Bank had prematurely filed suit without complying with the
conditions precedent stated in the Notes. See R. 426 & 445.
In response, on February 19, 2009, Ocean Bank sent letters to Realty and
Management purporting to “supplement that certain September 5, 2008 Demand
and Acceleration letter” it had sent to each of them. R. 1153-55 & R. 1157-59. In
its letters to each of Realty and Management, the Bank asserted, for the first time,
that the recipient was also in default on its loans due to allegedly overdue monthly
payments to the Bank and property taxes, and allegedly having failed to provide
updated financial information to the Bank. R. 1153 & R. 1157. Like its September
5, 2008 letters, Ocean Bank’s February 19, 2009 letters afforded no opportunity for
12
Realty and Management to cure any alleged failures to comply with the loan
conditions. Id. To the contrary, like the September 5, 2008 letters, Ocean Bank
claimed that Realty and Management immediately owed the entire principal loan
balance, plus interest at a default rate accrued since the date of alleged non-
payment, and attorney fees. R. 1153-54 & R. 1157-58.
On the same day, February 19, 2009, Ocean filed a motion for leave to file
an amended complaint to include these purported additional defaults as the bases
for its claims, attaching a copy of the amended complaint to its motion. R. 468-72
& R. 473-495. Appellants answered the Amended Complaint, denying that they
were in default, and asserting affirmative defenses including that Ocean Bank had
failed to satisfy the conditions precedent to declaring a default, and filing suit
under the Mortgages and Notes. See R. 1043-63.
G. Ocean Bank’s Motion of Summary Judgment
Ocean Bank filed a motion for summary judgment on March 26, 2010. See
R. 1112. It relied on an affidavit of its Vice President, Suzayn Shearin, as the only
support for its claim that Realty and Management had defaulted. See R. 118, ¶¶4-
5. Ms. Shearin’s vague statements that the loans were in default “as a result of the
appointment of a receiver over Grove One Realty, LLC” and “the appointment of a
receiver over Grove One Management, LLC,” made up the entirety of the Bank’s
evidence in support of the supposed existence of an “order, judgment, or decree”
13
granting “a Petition seeking appointment of a receiver or trustee of all or a
substantial part of the MORTGAGOR'S assets” in violation of the Mortgages. See
id. & R. 1142, ¶¶7-8.
Ocean Bank did not submit evidence in the form of a copy – certified or
otherwise – of any “order, judgment, or decree” that would satisfy the
requirements for declaring a default under the Mortgages. And for good reason,
because no such order, judgment, or decree ever existed. Indeed, more than a
month before the Bank’s motion was filed, New York’s highest court had
emphatically stated that in entering the orders Ocean Bank relied on in filing suit
the trial court had not “approv[ed] a Petition seeking appointment of a receiver or
trustee of all or a substantial part of the MORTGAGOR'S assets.” To the contrary,
that state’s Court of Appeals had concluded that the trial court had jurisdiction to
enter the orders at issue precisely because the receivership was over Guy Mitchell’s
intangible membership interests in corporations, not over the assets of the
corporations themselves. The trial court, explained the Court of Appeals, granted a
petition seeking “receivership over [Guy Mitchell’s] ownership/ membership
interests, not the day-to-day operation of a foreign corporation” such as
Management and Realty. See Hotel 71 Mezz Lender LLC v. Falor, 926 N.E. 2d
698, 708 (N.Y. 2010).
14
On July 30, 2010, the trial court held a hearing on Ocean Bank’s motion for
summary judgment. See Transcript of July 30, 2010 Hearing, Ex. A to Appellants’
Motion to Supplement the Record, filed concurrently with this Initial Brief. At the
hearing, the Bank argued that the court should grant judgment in its favor because
“most importantly, a receiver was appointed by a New York Court on April 7,
2008 over all assets of Mr. Mitchell…” Id. at 3:18-20. It further argued that it was
not required under the Mortgages to give notice or allow cure before declaring a
default and filing suit. Id. at 4:25 – 5:10.
A few minutes into the hearing, the trial court relieved Ocean Bank from
having to argue why summary judgment was appropriate, and asked Appellants to
justify why it shouldn’t be granted. Id. at 5:19-20. In response, Appellants argued,
among other things, that the Mortgages did in fact contain 30 day notice and cure
provisions (in Paragraph 8) and that the Bank had not complied with them. Id. at
6:17-20. Appellants also pointed out to the trial court that the New York court did
not actually appoint a receiver over Realty’s or Management’s assets, and that the
person who had purported to assume receivership of them had actually been
removed. Id. at 13:6 – 14:7. But rather than requiring Ocean Bank to submit
proper evidence of the order it supposedly relied on, the trial court put the burden
on Appellants, the non-moving parties, to show that the order did not say what the
Bank asserted. Id. at 17:7 – 18:6.
15
Thirty-seven minutes into the hearing, the trial court announced that it had
“fully considered the arguments of all counsel” and was “going to grant the motion
for summary judgment.” Id. at 34:9 – 11. It entered a Final Judgment of
Foreclosure prepared by Ocean Bank’s counsel in the form prescribed for
residential foreclosure cases under 11th Judicial Circuit Administrative Order 09-
09. See R. 1331-1337. Appellants timely filed their Notice of Appeal on August
30, 2010. See R. 1322.
III. SUMMARY OF ARGUMENT
Under Florida law, when a party moves for summary judgment, that party
has the burden of conclusively demonstrating through competent and admissible
evidence that the material facts are not in dispute, and that it is entitled to judgment
as a matter of law. The trial court, which treated this complex commercial case as
a standard residential foreclosure, erred in failing to hold Ocean Bank to the
burden of conclusively showing that it was entitled to judgment.
First, the trial court erred in failing to require Ocean Bank to proffer
competent and admissible evidence demonstrating that an “order, judgment, or
decree” had been “entered upon an application of a creditor of MORTGAGOR by
a court of competent jurisdiction approving a Petition seeking appointment of a
receiver or trustee of all or a substantial part of the MORTGAGOR'S assets,” as
required to trigger a default under the Mortgages. The evidence Ocean Bank
16
offered to prove the existence of such an order was incompetent and inadmissible,
and could not have carried its burden. Even if it had been admissible and
competent evidence (which it was not), the statements in Shearin’s affidavit on
which Ocean Bank relied did not show that the requirements for declaring a default
under Paragraph 21/22 of the Mortgages had been satisfied. That is because no
such order, judgment, or decree ever existed.
Second, the trial court erred in failing to require Ocean Bank to submit any
evidence showing that it had complied with Paragraph 8 of the Mortgages prior to
accelerating Realty and Management’s debts and declaring defaults. The plain
language of Paragraph 8 required the Bank to provide notice and an opportunity for
Realty and Management to cure any alleged non-compliance with the terms of the
Mortgages or Notes prior to declaring the entire principal balance of the loans to
be immediately due and payable.
Finally, even if the trial court’s grant of summary judgment as to liability
could be sustained (and it cannot), the trial court’s form Final Judgment of
Foreclosure awards to the Bank a grossly inflated, and unsupported, amount of
damages, and erroneously apportions those damages. Ocean Bank did not even
attempt to argue that Amelia Mitchell should be held liable for the amount
allegedly owed under all three Notes. Nor did Ocean Bank make any showing to
justify the extremely high interest rates used in calculating the final judgment
17
amount, which on their face conflict with the default interest rates specified in the
Mortgages.
Because Ocean Bank failed to carry its burden of conclusively showing
through competent and admissible evidence that it was entitled to judgment as a
matter of law, the trial court’s Final Judgment of Foreclosure should be reversed.
IV. ARGUMENT
As detailed below, the trial court erred in granting summary judgment for
Ocean Bank despite its failure to demonstrate that it had given Appellants notice
and the opportunity to cure, or to put on evidence that a court had ordered the
appointment of a receiver over Realty or Management. Moreover, even had the
entry of judgment been proper as to liability (and it was not), the amount of the
judgment, and the portion attributable to Amelia Mitchell were not supported by
the summary judgment evidence.
A. Standard of Review
An order granting summary judgment is reviewed de novo. Volusia Cty. v.
Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000). On review, this
Court “‘consider[s] the evidence contained in the record, including any supporting
affidavits, in the light most favorable to the non-moving party ... and if the slightest
doubt exists, the summary judgment must be reversed.’” Rocamonde v. Marshalls
of Ma, Inc., 56 So. 3d 863, 864 (Fla. 3d DCA 2011) (quoting Tropical Glass &
18
Constr. Co. v. Gitlin, 13 So.3d 156, 158 (Fla. 3d DCA 2009)). “The law is well
settled in Florida that a party moving for summary judgment must show
conclusively the absence of any genuine issue of material fact[.]” Alejandre v.
Deutsche Bank Trust Co., 44 So. 3d 1288 (Fla. 4th DCA 2010) (emphasis
supplied).
“‘If the evidence raises any issue of material fact, if it is conflicting, if it will
permit different reasonable inferences, or if it tends to prove the issues, it should be
submitted to the jury as a question of fact to be determined by it.’” Alejandre, 44
So. 3d at 1288 (quoting Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985)).
“Summary judgment should not be granted ‘unless the facts are so crystallized that
nothing remains but questions of law.’” Rocamonde, 56 So. 3d at 864-65 (quoting
Moore, 475 So. 2d at 668). The party moving for summary judgment bears the
burden of “conclusively” demonstrating “the complete absence of any genuine
issue of a material fact.” Valencia v. Deutsche Bank Nat’l Trust Co., No. 4D09-
3297, --- So. 3d ----, 2011 WL 2462673 (Fla. 4th DCA June 22, 2011). As
explained below, Ocean Bank did not come close to meeting this burden as to its
entitlement to accelerate and foreclose, the amount owed to it, or the liability of
Amelia Mitchell.
19
B. The Court Erred in Finding a Default Under Paragraph 21/22
Ocean Bank failed to conclusively demonstrate through admissible and
competent evidence that a receiver was appointed at all, much less in a manner that
would trigger a default under the Mortgages. Summary judgment for a foreclosing
mortgagee is proper only when it pleads and conclusively establishes through
evidence that the mortgagor has defaulted on its obligations under the mortgage
and promissory note, and that the mortgagee is entitled to foreclose. Terra Firma
Holdings v. Fairwinds Credit Union, 15 So. 3d 885, 886 (Fla. 2d DCA 2009);
Delandro v. America’s Mortg. Servicing, Inc., 674 So. 2d 184 (Fla. 3d DCA1996).
And as Florida Rule of Civil Procedure 1.510(c) states explicitly, the moving
party must submit admissible and competent evidence in support of each material
fact sought to be established. See TRG-Brickell Point NE, Ltd v. Wajsblat, 34 So.
3d 53, 55 (Fla. 3d DCA 2010); Schrank v. Pearlman, 683 So. 2d 559, 563 (Fla. 3d
DCA 1996). Thus, a mortgagee is not entitled to a summary judgment of
foreclosure unless it submits competent admissible evidence of its right to
foreclose on the mortgage. See, e.g., Servedio v. U.S. Bank, N.A., 46 So. 3d 1105,
1107 (Fla. 4th DCA 2010) (citing TRG-Brickell, 34 So. 3d at 55). Ocean Bank
failed to submit such evidence in support of its motion for summary judgment.
As noted, Ocean Bank purported to accelerate all three notes under the
premise that an “order, judgment, or decree” had been entered that allowed it to
20
declare the entire principal balance immediately due under the terms of Paragraph
21 of the 9/03 and 11/03 Mortgages and Paragraph 22 of the 12/05 Mortgage. But
Ocean Bank did not submit the one piece of evidence that could have established
such a breach of the Mortgages: an original or certified copy of the “order,
judgment, or decree” on which it purported to rely.
Instead, the Bank offered nothing more than hearsay statements in Shearin’s
affidavit saying that the Realty Notes and Mortgages were “in default, among other
things: (i) as a result of the appointment of a receiver over Grove One Realty, LLC
and that receivership having continued unstayed an in effect for over thirty (30)
days;” and stating that the Management Note and Mortgage was “in default, among
other things: (i) as a result of the appointment of a receiver over Grove One
Management, LLC…” R. 118, ¶¶4-5 & R. 1142, ¶¶7-8.
The trial court erred in crediting those statements, which are incompetent as
a matter of law. Under long established Florida law, testimony is incompetent and
inadmissible to prove the existence of an order or judgment in another case, or that
it satisfied any of those conditions. See, e.g., Abichandani v. Related Homes of
Tampa, Inc., 696 So. 2d 802 (Fla. 2d DCA 1997) (“[F]or the trial court in the case
before us to know of the issues in the trespass suit, certified copies of the relevant
documents from the record in that case, or the court file, must have been presented
to the trial court”); Bergeron Land Development, Inc. v. Knight, 307 So. 2d 240
21
(Fla. 4th DCA 1975) (“In order to prove some matter contained in the record of a
case other than the one being litigated, a party must offer the other court file or
certified copies of portions thereof into evidence in the case then being litigated”);
accord Novack v. Novack, 196 So. 2d 499, 500 (Fla. 3d DCA 1967) (reversing
summary judgment where moving party relied on judgment in another case but did
not submit original or certified copy of the judgment). Indeed, an original or
certified copy is the only competent evidence that can show that an order or
judgment exists. See Belamy v. Hawkins, 17 Fla. 750, 760 (1886) (“The existence
of a judgment or decree, or its amount or effect, cannot be proved by the
admissions of parties, the original record being in existence and accessible”).
Moreover, even if the testimony could be considered, it did not show that the
conditions for accelerating and foreclosing under Paragraph 21 (and the identical
Paragraph 22 in the 12/05 Mortgage) were satisfied. The terms of those
paragraphs, which “must be construed in accordance with their plain meaning, as
bargained for by the parties,” Konsulian v. Busey Bank, N.A., 61 So.3d 1283, 1285
(Fla. 2d DCA 2011), required Ocean Bank to prove far more than simply “the
appointment of a Receiver over” Realty and Management. Ocean Bank could only
accelerate, declare a default, or foreclose if: (1) an “order, judgment, or decree”
was entered; (2) upon an application of a creditor of the mortgagor (Realty or
Management); (3) by a court of competent jurisdiction; (4) approving a Petition
22
seeking appointment of a receiver or trustee of all or a substantial part of the
mortgagor’s assets. The affidavit did not even attempt to show any of these
things. It simply stated that there had been an “appointment of a receiver over”
Realty and Management.
There was a good reason that Ocean Bank declined to submit the order on
which it purported to rely, and that its affidavit was so vaguely worded – because
no such order ever existed. The New York court orders on which Ocean Bank
supposedly relied do not come close to meeting the requirements of Paragraph 21
(and 22). First, the orders were not entered “upon the application of a creditor of
the mortgagor” – neither Realty nor Management was even a party to the New
York litigation. Second, the orders did not grant a petition seeking appointment of
a receiver over the mortgagors’ assets, but rather over Guy Mitchell’s assets,
including his intangible “ownership/ membership interests” (the LLC equivalent of
stock certificates) in Realty and Management. See Hotel 71 Mezz Lender LLC v.
Falor, 926 N.E. 2d 698, 708 (N.Y. 2010). Realty and Management were the
Mortgagors, not Guy Mitchell. So only an order granting the petition of a creditor
of Realty and Management, appointing a receiver over the LLCs’ assets rather than
Guy Mitchell’s, could have satisfied the conditions for declaring a default under
Paragraph 21(22).
23
Thus, because Ocean Bank did not submit admissible and competent
evidence demonstrating the existence of an “order, judgment, or decree” entitling it
to declare the entire principal amount of the Notes immediately due, it did not
conclusively show that there were no material facts in dispute. As such, the trial
court erred in granting summary judgment to Ocean Bank.
C. The Trial Court Erred in Failing to Require Ocean Bank to Show That it Satisfied Paragraph 8’s Conditions Precedent
The trial court should have denied Ocean Bank’s motion for summary
judgment for another reason as well: because the Bank failed to submit evidence
that it complied with the requirements of Paragraph 8 in each Mortgage. Whether
considered as an element of the Banks’ claims, or an affirmative defense, Ocean
Bank was required to demonstrate its compliance with Paragraph 8’s notice and
cure provisions. “In the absence of some proof contradicting an affirmative
defense, entry of summary judgment is improper.” E. Qualcom Corp. v. Global
Commerce Center Ass’n, 59 So. 3d 347, 352 (Fla. 4th DCA 2011); see also
Konsulian, 61 So.3d at 1285 (reversing grant of summary judgment where
“nothing in Busey’s complaint, motion for summary judgment, or affidavits
indicates that Busey gave Konsulian the notice which the mortgage required”);
Alejandre, 44 So. 3d at 1289. The trial court erred in granting summary judgment
because Ocean Bank did not carry its burden of negating Appellants’ affirmative
defense that the Bank was required to give them notice and the opportunity to cure
24
any alleged non-compliance with or breach of the Mortgages’ requirements. See
Frost v. Regions Bank, 15 So. 3d 905, 906-907 (Fla. 4th DCA 2009) (“Because the
bank did not meet its burden to refute the Frosts’ lack of notice and opportunity to
cure defense, the bank is not entitled to final summary judgment of foreclosure.”)
1. The Bank Was Required to Give Notice and Allow Time to Cure Before Declaring a Default
Under Paragraph 8 of the Mortgages, Ocean Bank was required to give
notice to Realty and Management and allow them a specified period of time
(ranging from 10 to 90 days depending on the alleged breach of the Mortgage or
Note) to cure any breach, before declaring the entire debt immediately due. See R.
1270-71 ¶8 (9/03 Mortgage); R. 1305 ¶8 (11/03 Mortgage); R. 1286 ¶8 (12/05
Mortgage). For any failure to make a timely payment, a default could be declared
only if the Mortgagor did not cure its non-payment “within ten (10) days” after
“written notice after the same becomes due and payable[.]” R. 1270 ¶8; R. 1305
¶8; R. 1286 ¶8. For non-compliance or breach of “any of the other stipulations,
agreements, conditions, and covenants,” a default could not be declared unless the
Bank provided “written notice” to the Mortgagor, and the Mortgagor was given 30
days to cure its breach or non-compliance. R. 1271 ¶8; R. 1305 ¶8; R. 1286 ¶8.
Moreover, under the 9/03 Mortgage and the 12/03 Mortgage, “if such failure [was]
not susceptible to cure within such 30-day period,” Ocean Bank was required to
25
give the mortgagor “additional time as reasonably necessary to complete such
cure” up to 90 days. R. 1271 ¶8; R. 1305 ¶8.
2. The Bank Did Not Establish That It Complied With the Notice and Cure Requirement
Ocean Bank submitted no evidence that it gave written notice to either
Realty or Management that their debts would be declared immediately due if they
did not cure any alleged non-compliance or breach by means of the appointment of
a receiver. Indeed, the only evidence of correspondence to Realty and
Management that Ocean Bank submitted were copies of letters dated September 5,
2008 stating that Ocean Bank was immediately declaring “all outstanding
principle” plus penalty interest and attorneys’ fees to be due, without any
opportunity, much less 90 days, for cure. R. 1147-51.
Similarly, the only evidence Ocean Bank submitted that it gave notice to
Appellants of any alleged failure to make monetary payments under the Notes or
Mortgage are February 19, 2009 letters to Realty and Management sent months
after the Bank filed suit – and on the same day it filed an amended complaint –
asserting that it had already declared defaults as a result of alleged non-payment.
See R. 1153-55 & R. 1157-59. And like its September 5, 2008 letters, these letters
did not afford the mortgagors the required time (10 days) to cure non-payment, but
rather purported to declare immediately due the entire outstanding principal
26
amount, plus penalty interest retroactive to the asserted date of non-payment and
attorney fees. See id.
Because they declared immediate defaults and acceleration of the debts, and
afforded no opportunity whatsoever for cure, these letters could not possibly
satisfy the Bank’s notice and cure obligations under Paragraph 8. As such, Ocean
Bank failed to carry its burden of conclusively showing that it complied with the
Mortgages’ conditions precedent before declaring a default and filing suit.
3. The Bank’s Contention That It Was Not Required to Give Notice and Cure Was Erroneous
Although the trial court’s order does not mention this issue, it appears that
the trial court credited the Bank’s argument that it was not required to give notice
or an opportunity to cure before declaring a default. See 7/30/10 Trans. at 9:25 –
10:13. Citing LRB Holding Corp. v. Bank of Am., N.A., 944 So. 2d 1113, 1114
(Fla. 3d DCA 2006) and August Tobler, Inc. v. Goolsby, 67 So.2d 537 (Fla. 1953),
Ocean Bank argued that it could simply file suit and its filing of the suit was
sufficient to give the mortgagors notice. 7/30/10 Trans. at 9:2-11. According to
the Bank, as a matter of law, it simply was not required to afford the mortgagors
notice and an opportunity to cure any alleged non-compliance with the terms of the
Notes and Mortgages before declaring a default and filing suit. See id.
But neither LRB Holding nor Goolsby, which interpreted the requirements of
different mortgage documents, supports the Bank’s contention that it did not have
27
to comply with Paragraph 8. In LRB Holding, unlike in this case, the bank did
send the borrower notice of its intent to accelerate before declaring the entire
principal balance immediately due. LRB Holding, 944 So. 2d at 1114. And as this
Court observed in LRB Holding, the court in Goolsby did not hold that notice-and-
cure provisions are satisfied as a matter of law when a mortgagor is served with a
mortgagee’s foreclosure complaint. To the contrary, Goolsby stands for the
unremarkable proposition that “absent [a] notice requirement in [the] contract,
notice was accomplished by filing suit[.]” LRB Holding, 944 So. 2d at 1114-1115
(emphasis supplied). But the Mortgages here did have a notice and cure
requirement – set forth in Paragraph 8.
4. Under Florida Law, the Mortgages’ Notice and Cure Requirements Must Be Given Effect
Moreover, although Paragraph 21 of the 9/03 and 11/03 Mortgages
(Paragraph 22 of the 12/05 Mortgage), which state that certain orders appointing
receivers can be a default, itself does not provide for a notice-and-cure opportunity
(it is silent on the issue), Paragraph 8, by its terms, is applicable to any breach or
non-compliance under the Mortgage. And it mandates that notice and an
opportunity for cure be given prior to declaring any default under any provision of
the Mortgages.
28
In addition, and contrary to Ocean Bank’s argument in the trial court,
Paragraph, 8, by its own terms, is controlling over any conflicting provision,
stating explicitly that it applies, “anything in the PROMISSORY NOTE or in this
Mortgage to the contrary notwithstanding[.]” R. 1271 ¶8; R. 1305 ¶8; R. 1286 ¶8.
This specification, like every other provision in a contract, must be given “its full
meaning and operative effect.” Auto-Owners Ins. Co. v. Anderson, 756 So. 2d 29,
34 (Fla. 2000).
Ocean Bank’s proffered reading of the Mortgages is also untenable for
another reason. Under Florida law, “if possible, conflicting provisions of a
contract are to be read in such a way as to give a reasonable interpretation and
effect to all provisions.” Discover Property & Cas. Ins. Co. v. Beach Cars of West
Palm, Inc., 929 So. 2d 729, 732 (Fla. 4th DCA 2006). Ocean Bank’s assertion --
that no notice and cure period was required prior to declaring the Mortgages in
default and all sums immediately due – violates that principle, by depriving
Paragraph 8 of its meaning.
Paragraphs 8 and 21 (22 in the 12/05 Mortgage) can be given “a reasonable
interpretation” that gives effect to both of them. Paragraph 21 (22) can be read to
simply set out some of the “stipulations, agreements, conditions, and covenants”
that if “not fully performed, complied with and abided by after thirty (30) days
written notice,” are “considered a default” under Paragraph 8. In other words, if a
29
receiver were to be appointed over a mortgagor’s assets in a manner that breached
the terms of Paragraph 21(22), the mortgagor was to be given notice of a potential
default and a 30 to 90 day period to cure any non-compliance. If – and only if –
the mortgagor failed to cure within the period allowed after written notice, Ocean
Bank had the right to declare a default and all sums immediately due.3
Because Ocean Bank presented no evidence that it gave Realty and Grove
written notice and allowed the required time periods (10 days for non-payments, 30
to 90 days for other non-compliance) for cure, it did not conclusively establish that
there were no material facts in dispute as to its right to accelerate the Mortgages
and foreclose on them. As such, the trial court erred in entering summary
judgment in Ocean Bank’s favor.
D. The Trial Court’s Order Erroneously Calculates the Amount and Apportionment of Damages
Even putting aside Ocean Bank’s failure to submit evidence conclusively
demonstrating that it was entitled to declare all principal, plus penalty interest and
3 If these provisions could not be reconciled, that would simply create an ambiguity in the contract, Beach Cars, 929 So. 2d at 732, and “Florida law requires that a contract be interpreted against the drafter when the contract contains ambiguous terms.” DSL Internet Corp. v. TigerDirect, Inc., 907 So. 2d 1203, 1205 (Fla. 3d DCA 2005) (citing Excelsior Ins. Co. v. Pomona Park Bar & Package Store, 369 So. 2d 938, 942 (Fla. 1979)). Ocean Bank was the drafter of the Mortgage documents, so any conflict between Paragraph 8 and Paragraph 21(22) must be interpreted against the Bank and in favor of requiring notice and cure.
30
attorney fees, immediately due, the order entered by the trial court awarded Ocean
Bank greater damages than it was entitled to, and apportioned a larger share of the
liability to Amelia Mitchell than Ocean Bank even requested.
First, the trial court’s order erroneously finds Amelia Mitchell liable for the
full amount of the judgment attributable to all three Notes, R. 1332, ¶3. But, as
Ocean Bank’s own motion for summary judgment admitted, Amelia Mitchell did
not personally guaranty the 12/05 Note. See R. 1125 (arguing that “Guy Mitchell
is individually liable for the full amount owed to Ocean Bank by Borrowers on
all three Notes;” but asserting only that “Amelia Mitchell is individually liable
for the full amount owed to Ocean Bank by Borrowers on the Realty Note Two
[the 9/03 Note] and Management Note [the 11/03 Note]”). And for good
reason, for as noted, Ocean Bank submitted no evidence showing that Amelia
Mitchell executed a personal guaranty with respect to the 12/05 Note. As
such, the trial court erred in finding Amelia Mitchell liable for the full
amount allegedly owed on all three Notes, including the 12/05 Note.
Second, Ocean Bank made no showing to justify the amount of interest
added to the principal balance in the trial court’s order, other than pro forma
statements in Shearin’s affidavit that such amounts were owed. On their face,
however, the interest amounts stated in the order are in conflict with the
provisions of the Notes. For example, the 9/03 Note called for an 18%
31
Default interest rate. R. 1261. Even if the Bank had been entitled (and it was
not) to charge the Default rate during the period of 4/30/08 to 3/11/10 as stated in
the trial court’s order, the amount of interest for this one year and 315 day period
of time should have been ($4,043,545.37)(.18) = $727,838.17 for the year from
4/30/08 – 4/30/09, and ($4,043,545.37)(.18)(315/360)=$636,858.40 for the 315
remaining days, for a total of $1,364,696.57. Yet the trial court’s order states the
interest owed on the 9/03 Note as $2,262,027.06 – a difference of almost $900,000.
See R. 1332, ¶3(b).
Similarly, the 11/03 Note stated a Default interest rate of 18%. R. 1299. So
even if the Bank had been entitled to charge that rate from 8/6/08 – 3/11/10 as
stated in the order (and it was not), the interest should have accrued as follows:
($315,303.30)(.18) = $56,754.59 for the one year period from 8/6/08 through
8/5/09, plus ($315,303.30)(.18)(217/360)= $34,210.41 for the 217 days from
8/6/09 through 3/11/10, for a total of $90,965.00. The trial court ordered
Appellants to pay $110,968.90 in interest accrued during that time period. See R.
1333, ¶3(c).4
Thus, for this additional reason, even if Ocean Bank had submitted sufficient
evidence to conclusively demonstrate the absence of disputed material facts as to
liability, the trial court’s order should be reversed as a result of its erroneous
4 The stated amount of interest owed on the 12/05 Note is similarly flawed.
32
damage calculations and apportionment of greater liability to Amelia Mitchell than
Ocean Bank even attempted to justify.
V. CONCLUSION
This complex commercial dispute should not have been treated like a
standard, pro forma residential foreclosure case. The trial court erred in failing to
require Appellee Ocean Bank to conclusively demonstrate through admissible and
competent evidence the non-existence of disputed issues of material fact as to the
Bank’s entitlement to declare a default, and its satisfaction of the conditions
precedent for doing so. The trial court further erred in failing to require Ocean
Bank to justify the amount of interest it awarded, and the way in which damages
were apportioned. For all of these reasons, the trial court’s Final Judgment of
Foreclosure should be reversed.
Dated: July 20, 2011 Respectfully submitted,
_______________________ Daniel A. Bushell BUSHELL APPELLATE LAW, P.A.
2000 Glades Road, Suite 110 Boca Raton, Florida 33431 Phone: 561-368-8400 Fax: 561-368-8403
33
Email: [email protected] Florida Bar No. 43442
Counsel for Appellants
CERTIFICATE OF SERVICE
I hereby certify that on this 20th day of July, 2011, a true and correct copy of the foregoing was served via email and First Class U.S. Mail on the following:
Jack R. Reiter CARLTON FIELDS, P.A. 110 SE Second St., Suite 3900 Miami, FL 33131 Phone: 305-530-0050 Fax: 305-530-0055 Email: [email protected]
Jorge J. Perez (Receiver) GORDON & REES, LLP 200 S. Biscayne Blvd., Suite 4300 Miami, FL 33131 Phone: (305) 668-4433 Fax: (877) 634-7245 Email: [email protected]
________________________ Daniel A. Bushell
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief satisfies the font requirements of Rule 9.210(a)(2) of the Florida Rules of Appellate Procedure. It was generated in Times New Roman 14 point font.
__________________________ Daniel A. Bushell