IN THE CIRCUIT COURT OF THE 15TH CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO CA XXXX MB

Transcription

1 9708 IN THE CIRCUIT COURT OF THE 15TH CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO CA XXXX MB THE BANK OF NEW YORK TRUST COMPANY, N.A., AS TRUSTEE FOR CHASEFLEX TRUST SERIES , -vs- Plaintiff, DAVID J. MOSQUERA; ELIZABETH MOSQUERA; ANY AND ALL UNKNOWN PARTIES CLAIMING Y, THROUGH, UNDER, AND AGAINST THE HEREIN NAMED INDIVIDUAL DEFENDANT(S) WHO ARE NOT KNOWN TO BE DEA OR ALIVE WHETHER SAID UNKNOWN PARTIES MAY CLAIM AN INTEREST AS SPOUSES, HEIRS, DEVISEES, GRANTEES, OR OTHER CLAIMANTS; JP MORGAN CHASE BANK, N.A.; POSTLEY VILLAGE HOMEOWNERS ASSOCIATION, INC,; OLYMPIA MASTER ASSOCIATION, INC., TENANT #1, TENANT #2, TENANT #3, and TENANT #4 the names being fictitious to account for parties in possession, Defendants. / HEARING BEFORE THE HONORABLE HOWARD H. HARRISON, JR. Tuesday, June 29, 2010 Palm Beach County Courthouse 6J West Palm Beach, Florida 3:20 p.m. - 3:01 p.m.

2 Reported By: DAWN S. McCONNELL, Court Reporter Notary Public, State of Florida Consor & Associates Reporting and Transcription APPEARANCES: On behalf of the Plaintiff: JONATHAN C. CHANE, ESQ. Greenberg Traurig, P.A. 777 South Flagler Drive - Suite 300 East West Palm Beach, FL On behalf of the Defendant: DUSTIN ZACKS, ESQ. Ice Legal, P.A N. State Road 7 - Suite D Royal Palm Beach, FL, THE COURT: Good afternoon. MR. CHANE: Jonathan Chane, I represent the plaintiff of the Bank of New York versus David Mosquera. We're here on our motion for summary judgement. THE COURT: Okay. MR. ZACKS: And, Judge, if I may, Dustin Zacks on behalf of David Mosquera. This is a

3 cross notice for our motion for summary judgment, if I can hand you that. THE COURT: Okay. You're representing? MR. ZACKS: I represent the homeowners David and Elizabeth Mosquera who are in the courtroom today. Again, we did cross notice that. THE COURT: Are you folks here? MS. MOSQUERA: Yes. THE COURT: Did you want to come up? MS. MOSQUERA: Sure. MR. JOHNSON: This my four-corner checklist. I'll send a copy up of the summary judgement, Your Honor. THE COURT: Mr. And Mrs. Mosquera? MS. MOSQUERA: Yes. THE COURT: Yeah, hi. Did you want to be heard on these motions for summary judgment? MR. ZACKS: I'll be representing them. THE COURT: I'm sorry. I thought you were representing the homeowners. I'm sorry. I put an A on the homeowners association. All right. I'm with you now. MR. ZACKS: Okay. So, Judge, the reasons -- THE COURT: There's two mortgages, is that it? MR. CHANE: Well, Judge, there's two -- THE COURT: There's like a line of credit or something that went along with it. MR. CHANE: No, Your Honor. There's actually two cases. There is a -- first there's a mortgage with Bank of New York, a million dollar note. And then there's a second Mosquera matter that's being foreclosed and also set for summary judgement at 2:50 this afternoon. THE COURT: What's being heard now? MR. CHANE: The Bank of New York. THE COURT: Okay. MR. CHANE: Your Honor, if you need a copy of my motion for summary judgement, I have a copy. THE COURT: No, that's okay. Your defense

4 to this is? MR. ZACKS: Yes, Judge, and I've handed you our motion for summary judgement, because I think that procedurally it might be, I guess, quicker if we go through that one first -- THE COURT: Okay. MR. ZACKS: -- because if, Your Honor, wants to rule for us on that issue, we will dispense on the needs to rule on -- MR. CHANE: Your Honor, my motion was noticed first based on the cross notice of their motion on top of mine. I think procedurally we're entitled to go first. This is our motion. It was first noticed prior to the defendant's motion. And frankly, Judge, I think you're going to find that there's simply no real defenses here to the foreclosure action. And we can deal subsequently with their motion for summary judgment once we're completed. MR. ZACKS: Judge, may I respond to that. Your Honor, I would simply say our motion summary judgement is quite a bit less apprehensive than their motion for summary judgement I think would be appropriate -- THE COURT: We'll take you first. MR. ZACKS: Okay. I have handed it to you. You have a copy. THE COURT: Oh, yes you did. MR. ZACKS: And, Judge, the basis for our motion today is that at the time plaintiff filed this complaint, they were not the mortgagee. And what I mean by that is -- again, going through our motion, they signed the mortgage was executed on December 30th, but the case was filed prior to that. There was an assignment of the mortgage. So what you have here is faced with even though the language of the assignment of the mortgage alleges a prior transfer, what we would argue today is that based on all of the facts before Your Honor, there is no evidence that that prior transfer occurred. And just a couple of things to hand you

5 real quick. First is their response to request for admissions. We submitted discover -- MR. CHANE: Your Honor, object. They have not produced any of these documents two days ahead of hearing as the Rule requires. The only thing they've provided to us that they're relying on at this hearing on the motion for summary judgement is an affidavit that they filed and served on Thursday. They are required by rule, Rule to provide any evidence that they're relying upon at summary judgement two business days delivered ahead of the hearing. They haven't delivered any of that information to me Your Honor ahead of the hearing. MR. ZACKS: Judge, I would simply say that number 1 the assignment of the mortgage was filed by plaintiff. The responses to the discovery are in the court file, as well as the request to produce. MR. CHANE: Your Honor that's irrelevant. The Rule is clear, states the adverse party shall identify by notice and mailed to the movements attorney at least five days prior to the hearing, or delivered no later than two business days prior to the date of the hearing any summary judgment evidence upon which he relies. Judge, this hasn't been provided to my ahead of the hearing. At no time did they ever indicate they were relying upon these documents ahead of the hearing, which is why, Judge, my motion for summary judgement needs to go first. This is a straightforward foreclosure action that I think Your Honor can dispose of quickly. There is simply no defense that's been provided to the Court to the foreclosure action, which was the first filed action. There's is simply piggybacking on my motion, was which noticed months ago. And I think Your Honor can see that it's a straight foreclosure action and I would ask that it be heard. And Your Honor they haven't provided any defenses to that motion. This is what they're simply trying to do is jump ahead and

6 argue they did plead some defenses when, in fact, they did not. THE COURT: Was there answers filed? MR. CHANE: To the motion for summary judgement, no, there was not. THE COURT: How about to the complaint? MR. ZACKS: Yes, Judge. MR. CHANE: There was an answer to the complete, yes, that's correct. MR. ZACKS: And, again, to respond to the allegations that we didn't provide anything, it's very clear on our motion that we are relying on the assignment of the mortgage, and this admission which, again, should be in the Court file, Judge. It's not prejudice to the plaintiff on this issue and there's case law to the effect. MR. CHANE: And Your Honor request for admissions are not evidence that can be used at summary judgement. That is the whole point of them having to provide this information to me ahead of the hearing. A request for admissions is not evidence. It's not an affidavit. It's not testimony. It's not a deposition. It's not evidence that can be relied upon here Your Honor. And once again, Judge, I would ask my motion for summary judgment was first filed and it should be heard first. And it's straightforward, Judge. There's simply no -- there's simply no evidence in opposition to the motion for summary judgment. If they want to hear their motion for summary judgement after mine, Your Honor, that's fine. But mine should be heard first and then we can determine if there's any basis to go forward on their motion for summary judgment. So it doesn't change the fact that mine was filed first. THE COURT: Okay. All right. Anything else -- MR. ZACKS: On our motion -- going on our motion to dismiss here, -- again, which was clearly relied on in our motion, which was this response, the request for admissions. And to

7 direct your attention to Number 1, which was admitted to and this is clearly referred to in our motion. What we asked is on Number 1, admit that the plaintiffs held legal title until that assignment was executed on December 30th. And Judge that was admitted. So at this point that's the only evidence before you today. There's been no counter affidavit to our motion for summary judgement. MR. CHANE: Your Honor, there's no affidavit. THE COURT: Let him finish. MR. ZACKS: Judge, again, clearly they're relied upon clearly in our motion that Number 1, on the face of the assignment it's clearly executed after the filing of the complaint. There's been no evidence to the contrary. And that admission, you know, we believe is fatal. And to the extent that Your Honor wants to I suppose give them the benefit of the doubt that even though they've admitted that the assignor held legal title to the mortgage, until that assignment was executed there is case law to the effect that we are entitled to an evidentiary hearing on the issue of whether they obtained rights to that mortgage, prior to the case being filed. And today, again, on our motion for summary judgment, there's been no counter affidavits filed. There's been no counter evidence filed that would show anything that they obtained this mortgage prior to the filing of this complaint. Therefore, they didn't have standing when they filed the complaint. We need to re-file this case, Your Honor. THE COURT: The defendant's motion for summary judgement is denied. Go with the plaintiff. MR. CHANE: Thank you. Your Honor, as I said earlier, Jonathan Chane, Greenberg Traurig. I represent the plaintiff's in this matter. This is a straightforward mortgage foreclosure, Judge.

8 The claims are undisputed that the plaintiffs are in default of this note. They have not paid on this note, which is a million dollar note in several years. Judge, we filed our motion, we filed an affidavit in support of the motion for summary judgment. The original note and mortgage was filed in the court record on April 13, There have been no opposition to the motion to the summary judgement filed. The only evidence, if you will call it that, that was filed in opposition to the motion for summary judgment, was an affidavit by an attorney by the name of -- pardon me if I butcher the name, Lynn Semoniak, which was filed on Thursday of this past week. And, Your Honor, that is simply the only affidavit or anything that was filed in opposition to the motion for summary judgment. Now, address specifically Ms. Semoniak's affidavit, which I don't think is admissible and I move to strike her affidavit on a variety of different reasons. But based upon the plain language of the note and mortgage and the originals which were filed in the Court, and the lack of any opposition filed by the defendant's in this action, summary judgment has to be granted. There's simply been nothing presented which would counter the affidavit of my client or the evidence in the record that was attached to the motion for summary judgment. Now, I can -- to extent that Your Honor has any specific questions or issues with the motion for summary judgment, I can certainly address them. But to date, there's been nothing filed by -- there's been no deposition, no affidavit other than Ms. Semoniak that have been filed, which I'm ore tenuis move to strike and there's simply no record evidence in opposition to the motion for summary judgment. And I would ask the Court grant summary judgment as to the plaintiff's complaint. Now, Your Honor, there are some affirmative

9 defenses that were pled in the complaint, none of which have been supported by any evidence whatsoever. They are simply legal conclusion that simply do not admit and then avoid plaintiff's cause of action and they're simply unsustainable as a matter of law. Now, I would ask Your Honor to enter summary judgment as to plaintiff's complaint based on the affidavit of Tom Reardon, which is attached to this motion for summary judgment. Based on my affidavit attached to the motion for summary judgement. And the fact that there's simply, as a said before, no evidence in opposition to the motion for summary judgment. And Your Honor just briefly I don't know if you have a copy of the affidavit that was purportedly filed. THE COURT: No, I don't. MR. CHANE: I have a copy of it, Your Honor. THE COURT: It wouldn't be in the file court file yet. MR. ZACKS: Judge, I have it. You have the affidavit. MR. CHANE: Your Honor, this is an -- plaintiffs -- or what defendants purport to call an expert affidavit. And what you will see in this affidavit that Ms. Semoniak is offering her expert opinion, that based upon her review of hundreds and thousands of the other assignments in other cases unrelated to the instant matter, that based on upon her review of those affidavits and her review solely of the assignment in this action, that it's fraudulent. And, Your Honor, I would submit that that is first of all not an appropriate basis for expert testimony. And, again, I repeat that I would move to strike this affidavit. But there are tests that are appropriate for the admission of expert testimony. And none of which have been -- have been met Your Honor. And I can go to that Judge, but I think

10 what's more important here is the substance of what she's testifying to is essentially propensity evidence, which is barred by the Florida Rules of Evidence, specifically Section A, which states that similar fact evidence of other crimes, wrongs or acts is inadmissible when the evidence is really relevant, solely to proof bad character or propensity. Now, there was just served on Thursday at the end of day. They filed no motion nothing at all in which to explain the relevance of Ms. Semoniak's testimony. But what's important is Number 1 she only reviews the assignment of the mortgage. She doesn't review the note. She doesn't review the mortgage. She doesn't review the Pulling and Servicing Agreement, which was produced to the other side. She simply provides her expert testimony that based upon all these other cases out there, this assignment here is fraudulent as well. And I would submit that that's -- that testimony is inadmissible for purposes of a motion for summary judgment. Now, that doesn't even get to her qualifications. While she states that she has this background in mortgage foreclosure, doesn't provide her education, doesn't provide her certifications, doesn't provide any publications necessarily that she's written or at least copies of publications that she's written. No CV attached on this, Your Honor. And simply the statements contained within the affidavit that we're supposed to rely upon. And coupled with the fact that if she simply only relied upon the assignment of the mortgage in all these other cases, it's simply unreliable expert opinion that shouldn't be admissible here today. Your Honor, I can keep going on this particular issue. It seems obvious to me that this is inadmissible and she's testifying first as to hearsay and also the prejudice outweighs the probative nature of this affidavit. But I can continue if Your Honor would like as to why this affidavit is simply inappropriate. But I don't

11 want to be cumulative. THE COURT: Let me hear some responses. MR. ZACKS: Sure, Judge. Can I start with the other issues in plaintiff's? THE COURT: Sure. MR. ZACKS: He made a lot of statements that there was no other issues in the case. THE COURT: Right. MR. ZACKS: Judge, first of all attached to their own motion for summary judgment, which he's pointed you to is the affidavit of Tom Reardon and I'm inclined to argue before Your Honor that that affidavit is deficient. So I do believe -- THE COURT: Who's Tom Reardon? MR. ZACKS: Tom Reardon is an employee -- THE COURT: Do you have the affidavit? MR. CHANE: Your Honor attached to my motion for summary judgment. THE COURT: I don't have your motion here. MR. CHANE: I have a copy of it right here. MR. ZACKS: It's Exhibit A to their -- MR. CHANE: May I approach. THE COURT: It will be in the Court file some day. MR. ZACKS: Now, Judge, the reason I've handed you the Rule that was cited to you earlier by Mr. Chane, is that Rule 1.510E requires that sworn or certified copies of all documents referred to in an affidavit be attached. They must be attached. They shall be attached. It does not say, plaintiff has the option to attach it. This is mandatory. What you can see here that Mr. Reardon has stated, is a bunch of essentially hearsay. And directly relevant would be Paragraph 11 where he's, of course, he's trying to set forth amounts allegedly due and owing. When we took the deposition of Mr. Reardon which, again, was only a week or two ago, so we haven't had the opportunity to have that deposition printed and filed with the Court. But what I can proffer to the Court is what he said under deposition --

12 MR. CHANE: Your Honor, I object to this. This deposition took place over a week ago. They had more than enough time to submit the testimony of Mr. Reardon if it was appropriate here. For Mr. Zacks to testify as to what he testified to is simply inappropriate here at a motion for summary judgment. The Rule is clear that they needed to provide any record evidence two business days in advance in opposition to the motion for summary judgement and they have not done that. Mr. Reardon's affidavit is opposed. MR. ZACKS: And, Judge, if I may be permitted to finish. THE COURT: Overruled. Go ahead. MR. ZACKS: Again, in Paragraph 11, what he purported to state is there's certain amounts due and owing. Now, he said he got these from certain records, and the problem is we don't have sworn or certified copies of anything. We don't have proof of where these numbers came from. We, in fact, have no idea where these numbers came from. It's hearsay evidence. The only point I was going to get to which, again, on its face the affidavit is deficient under Rule 1.510E, which mandates that if they're going to come up with numbers like that, they have to attach sworn or certified copies of records where he's getting the stuff from. But as to the deposition the only thing I was going to offer is if they want to overcome this hearsay objection and this clearly is hearsay, these were records produced by other people, Mr. Reardon does met the qualifications to overcome that hearsay objection. Based on the fact that he doesn't come in contact with any of these records until the case is in litigation. Therefore, he's not a supervisor of these records. He's not a custodian of these records. He can't testify before Your Honor as to the veracity of these numbers that are contained in these records. So what they're telling you is they're pointing to other records outside of this

13 document purporting to represent the truthfulness of those documents. Classic hearsay. It doesn't purport with Rule 1.510E to deficient affidavit. Next, Judge, again this is a loan that was securitized in this Chase Flex Trust. And, again, we have put out discovery on this issue. And what we asked for was Number 3 was a certification. And when these loans are certified -- MR. CHANCE: Your Honor, I'm going to object to this again. This was not provided two days prior to the hearing in violation of Judge, this is a classic situation of ambush at a hearing. MR. ZACKS: Judge, this is -- MR. CHANE: They needed to disclose if they intended to rely upon this, the Rule couldn't be clearer, Your Honor. It could not be clearer. MR. ZACKS: Let me finish. MR. CHANE: And to provide this to us today and allege that his is somehow evidence in contradiction of the affidavit motion for summary judgement is simply inappropriate. They've had since March, Your Honor, to file an opposition, to file an affidavit. They've taken the deposition of Mr. Reardon as opposing counsel stated. Your Honor, and for them to come in now and state that there's somehow record evidence in opposition is simply inappropriate. The Rule is clear. This is unopposed, Judge, I mean it's classic no opposition. THE COURT: You're telling me he's unopposed. MR. CHANE: When I say unopposed, there is no record evidence in opposition that has been filed. Nothing. MR. ZACKS: Judge, if I may, again, on a motion for summary judgement you have to take the evidence most in favor of me. And quite frankly the reason why I'm raising all these issues and as to the Rule it doesn't apply when the stuff is already in the file. They haven't been prejudice by this and there's case law to that

14 effect. MR. CHANE: Where? Judge, there's not a case on that. That's simply not accurate. This is been set for several months and the Rule is clear -- THE COURT: Okay. Without going into anything else, I'm not about to enter a motion -- granting a motion for summary judgement based on an affidavit of Mr. Reardon. MR. CHANE: Your Honor, there is simply no -- there's no basis to -- THE COURT: I'm sorry. It's just -- it basically just says he looked at some records. I don't know what he looked at and he plugged some numbers in. MR. CHANE: Your Honor, it's based on his personal knowledge. That's all he needs to do according to the Rule. THE COURT: Well, motion denied. MR CHANE: On what basis, Judge? THE COURT: On the basis that the Court fears that there are many issues of fact to be determined. This is not a matter in which everything is undisputed. MR. CHANE: What issues of fact? THE DEPUTY: Sir, the Judge ruled. The hearing is over. MR. CHANE: I need it for the record. THE COURT: I just told you I don't feel the affidavit of Mr. Reardon is sufficient. MR. CHANE: Your Honor, we have another hearing for a motion for summary judgement and it's similar -- THE COURT: Do you want to continue it? If you're proceeding on the same affidavit -- MR. CHANE: Similar affidavit, Your Honor -- THE COURT: It's the Court's position that, you know, you're going to have to produce the documents that they're relying upon. MR. CHANE: Okay.

15 THE COURT: If they're not contested, that's fine. But where somebody just basically says I looked at the records, this is it. That's not enough for me to agree. MR. CHANE: I understand, Your Honor. Thank you. Your Honor, how would you like to handle the second one? I'm happy to -- THE COURT: I'd reschedule so that you can produce the -- produce the records that he looked at and you can proof the other things that you think Mr. Reardon's testimony at deposition and we'll get it and then we will get a correct ruling on the case. MR. ZACKS: Thank you. And if I can, just for the record, we also had our motion for summary judgement set -- THE COURT: Your motion is denied. MR. ZACKS: -- and I just wanted to bring that to your attention. THE COURT: I suggest that we do orders on these. MR. CHANE: I don't have a blank order. THE COURT: You can submit and just run it by counsel. MR. CHANE: Just say denying without prejudice? THE COURT: The problem is that we don't have the file here, so nothing goes in the record. We have had that come up on some other cases in front of other judges where orally they were granted or denied and there was never any orders entered. MR. CHANE: Your Honor, shall I order the file be brought here or is it actually ever brought up. THE COURT: We just don't bring them up, you know, there's 2 or 300 of them a day. MR. CHANE: Should I take anything back. THE COURT: I'd like to give you-all of this back.

16 (The hearing concluded at 3:01 p.m.) C E R T I F I C A T E I, DAWN S. McCONNELL, Court Reporter, State of Florida at Large, certify that I was authorized to and did stenographically report the foregoing proceedings and that the transcript is a true and complete record of my stenographic notes. Dated this 7th day of July, DAWN S. McCONNELL, Court Reporter