FLORIDA SUPREME COURT JEAN ANN KOLINCHAK and GERARD BERNOTAS O Appellants, 2DCA Case No. 2D11-4598 v. SCG l 509 FIRST FEDERAL BANK OF FLORIDA, Appellee BRIEF AND TABLE OF CONTENTS OF APPELLANTS JEAN ANN KOLINCHAK AND GERARD BERNOTAS On Appeal from the Second District Court of Appeals Lakeland, Florida Submitted by Appellants: Jean Ann Kolinchak and Gerard A. Bernotas P.O. Box 1501 Bradenton, FL 34206 Phone: 941-920-1903 TABLE OF CONTENTS PRELIMINARY STATEMENT...2 STATEMENT OF THE CASE AND FACTS...2 ARGUMENT...3 CONCLUSION...6 CERTIFICATE OF SERVICE...9 CERTIFICATE OF FONT COMPLIANCE...10 Page 1 of 10
PRELIMINARY STATEMENT The Appellants filed a Motion for Enlargement of Time to file this Brief on June 12, 2012. This is due by Friday July 6, 2012. Appellants, Jean Ann Kolinchak and Gerard A Bernotas, invoke the discretionary jurisdiction of the Florida Supreme Court to review the decision of the lower court, rendered and dated May 4, 2012 (see attached) The decision passes on a question certified to be of great public importance due to the massive number of foreclosure filings throughout Florida and well publicized fraud and foreclosure misconduct associated with these. STATEMENT OF THE CASE AND FACTS Refer to Case File. REMAINDER OF PAGE INTENTIONALLY LEFT BLANK Page 2 of 10
ARGUMENT The Appellants / Defendants have been denied Due Process in the Lower Courts. The Appellants have not been allowed to access company or loan records, Discovery, despite numerous attempts prior to, during and since the Summary Judgment in Appeal. The court order granting Receivership dated November 29, 2010 provides for access to records by all parties: (b) Records. The Receiver shall maintain a comprehensive system of office records, books, and accounts concerning the expenses related to maintaining the Property and the collection of rents, issues, proceeds, profits, revenue, and income as set forth in paragraph 7 herein. Upon reasonable notice, and at all reasonable times, the parties to this action and its representatives shall have reasonable access to such records, accounts, and books and to all vouchers, files, and all other material pertaining to the operation of the Property, all of which the Receiver agrees to keep sage, available, and separate from any records not having to do with the operation of the Property. The standard of review for an order granting a motion for summary judgment is de novo and requires a two-pronged analysis. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). Summary judgment is proper only if (1) no genuine issue of material fact exists, viewing every possible inference in favor of the party against whom summary judgment has Page 3 of 10
been entered, Huntington Nat'l Bank v. Merrill Lynch Credit Corp., 779 So. 2d 396, 398 (Fla. 2d DCA 2000), and (2) the moving party is entitled to a judgment as a matter of law, Aberdeen at Ormond Beach, 760 So. 2d at 130. "If the record reflects the existence of any genuine issue of material fact or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper." Holland v. Verheul, 583 So. 2d 788, 789 (Fla. 2d DCA 1991). The Appellee /Plaintiff has operated in a cloak of secrecy and refused to disclose or make any records accessible for us so we can Discover and examine any actual records that will support or disprove their claims of actual damages, if any, that the Appellee / Plaintiff has incurred AFTER the foreclosure sale and Federal Deposit Insurance Corporation (FDIC) loan reimbursements. The fact that the Appellee refuses to disclose these records certainly raise doubt that any actual damages exists after the foreclosure sale proceeds and loan insurance reimbursements and therefore a Summary Judgment is improper. The Appellee /Plaintiff does not deny these loans are insured, nor have they denied receiving loan insurance reimbursements. In fact, our loans are FDIC insured for 80% of their value. Combined with the foreclosure sale proceeds, which is about 50% of our total loan amount and loan insurance proceeds, the total proceeds exceed the total amount of their claims of damages. Had this information been made available for the court's review or records accessible to the Appellants so that we could Page 4 of 10
present these to the lower tribunal court, we assert that there would not be any actual damages in existence after the foreclosure sale and insurance proceeds. A trial court also "has broad discretion to grant a rehearing of a summary judgment when the party seeking rehearing submits matters that would have created an issue precluding summary judgment if they had been raised prior to the hearing on the motion." Fatherly v. Cal. Fed. Bank, FSB, 703 So. 2d 1101, 1102 (Fla. 2d DCA 1997). The case records prove we did raise this and other issues prior to Summary Judgment, at the Summary Judgment Hearing and since then. All attempts by the Appellants to access records or require the Appellee to provide such records have failed. Therefore, Due Process has been denied to the Appellants as these company and loan records including full reimbursement disclosure and records would provide factual information as to actual damages after all proceeds, if any, that the Appellee claims to have suffered as a result of our inability to pay our loans after the subsequent foreclosure sale and loan insurance reimbursement proceeds rather than just taking their word for it. No sworn affidavits were submitted by the Appellee as to actual damages except for an affidavit by Kemper Hetzler, who attests he can testify. He should be required to do so as we dispute their claim of any deficiency and damages or that any such actual damages exists after the total of all proceeds. Page 5 of 10
In GOODMAN v. ALDRICH & RAMSEY ENTERPRISES INC., Case No. 2D00-3604, opinion states "the Goodmans were not given a full and fair opportunity to defend themselves in the foreclosure action on all of the claims now brought by Aldrich & Ramsey against them individually, nor were these claims actually litigated to a resolution." These issues prior to the Summary Judgment hearing as evidenced by the case records and during the Summary Judgment hearing and we were denied Discovery and Due Process. We, the Appellants, adamantly dispute and continue to dispute the amount of the alleged damages and claims of such. The Appellee has litigated damages in a cloak of secrecy and refused to allow access to our company and loan records and related reimbursements in violation of the court order dated November 29, 2010. They refuse to disclose any information whatsoever regarding their FDIC loan insurance claims and reimbursements, again reimbursements and claims buried in a cloak of secrecy. The case record clearly evidences the Appellants numerous motions to "Discover" these facts and records which would certainly alter the amount of the Summary Judgment or result in a complete reversal. CONCLUSION Our loans were insured by the FDIC for 80% of their value. The foreclosure sale proceeds were about 50% of the total loan amounts. The rush to Summary Page 6 of 10
Judgment, instead of allowing us to proceed with Discovery and an Evidentiary Hearing if necessary, is a violation of Due Process as we, as alleged debtors who dispute their claim of actual damages after all proceeds, have the legal right to Discover that includes any and all company and loan records including loan insurance proceeds that has been received or will be received by the Appellee regarding our loans and their claims of damages and deficiencies. The rush to Final Summary Judgment is based only on the Appellee's self submitted statements, not actual records or any sworn affidavits attesting any such deficiency actually exists after all proceeds. We assert the amount of damages is grossly inflated if, in fact, any such deficiency damages actually exist as the records will prove or disprove if these were made available to the courts or to us to present to court. If the Summary Judgment amount is allowed to stand without Due Process for the Appellants, the Appellants will be damaged and forced to file bankruptcy on what will ultimately prove to be false and fraudulent deficiency and damage claims. The courts and laws have not caught up with the times. Florida has experienced and continues to face massive foreclosures. It is paramount to justice that foreclosure Plaintiffs are required to fully disclose any and all records regarding claims of damages, costs of such and all reimbursements WITH FULL Page 7 of 10
TRANSPARENCY, when in dispute, in order to prevent fraud in the form of falsely inflated judgments and unjust enrichment of foreclosure Plaintiffs. If we were wrong, we assert that the Appellee would have willfully disclosed these records to put this to bed. We contend that total proceeds from sales and insurance reimbursements actually exceed the total amounts of claims of damages which is fraud and unjust enrichment from fraud. A car accident victim with damages cannot collect the full amount of damages from the person at fault and then make a duplicate claim with their own insurance and get reimbursed again, double reimbursements totaling more than the actual damages, and lenders should not be allowed to due to loopholes in our courts and laws or violation of Due Process. The Appellants request this Court reverse the Lower Court's Order and require Due Process for all future proceedings. Signed by Appellants: ean Ann Kolinchak Gerard A. Bernotas Date REMAINDER OF PAGE INTENTIONALLY LEFT BLANK Page 8 of 10
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U. S. mail; postage pre-paid this 1st day of July, 2012 to: Andrew Rosin, Esquire Counsel for the Appellee First Federal Bank, et al. Law Office of Andrew Rosin, P.A. 1966 Hillview Street Sarasota, FL 34239 4An Jean Ann Kolinchak and Gerard A. Bernotas Appellants PO Box 1501 Bradenton, FL 34206 Submitted to the Florida Supreme Court via email to e-file@f1courts.org and USPS mail, Certified Return Receipt: 7010 1060 0000 5794 0101. Florida Supreme Court case number not yet assigned per Whitney. REMAINDER OF PAGE INTENTIONALLY LEFT BLANK Page 9 of 10
FLORIDA SUPREME COURT BRADENTON PALM TERRACE APARTMENTS, LLC, ET AL. 2DCA#: 2D11-4598 Appellants, Vs. FIRST FEDERAL BANK OF FLORIDA, ET AL. Appellee. PETITIONER'S/APPELLANT'S CERTIFICATE FONT COMPLIANCE F I hereby certify that the lettering in this brief is Times New Roman 14-point Font and complies with the font requirements of Florida Rule of Appellate Procedure 9.210(a)(2). Jean Ann Kolinchak and Gerard A. Bernotas Date Appellants PO Box 1501 Bradenton, FL 34206 Phone: 941-920-1903 REMAINDER OF PAGE INTENTIONALLY LEFT BLANK Page 10 of 10