Filing# 51969526 E-Filed 02/02/2017 11 :23:45 AM IN THE CIRCUIT COURT FOR THE 11th JUDICIAL CIRCUIT, IN AND FOR MIAMI-DADE COUNTY, FLORIDA CIVIL DIVISION CASE NO. 12-43649 CA 02 GEORGE I. ELSO, RECEIVED, 2/3/2017 9:49 AM, Mary Cay Blanks, Third District Court of Appeal vs. Defendant/ Appellant, ALYSSA ELSO, MICHAEL ELSO and JUAN C. ELSO Plaintiffs/ Appellees. NOTICE OF APPEAL OF FINAL ORDER NOTICE IS GIVEN that GEORGE I. ELSO, Defendant/ Appellant, pursuant to Florida Rule of Appellate Procedure 9.11 O(b ), appeals to the Third District Court of Appeal, the final Order of this Court rendered on January 4, 2017. The nature of the Order is the Final Default Judgment in Favor of Plaintiffs and against Defendant, George I. Elso Only, attached hereto as Exhibit" 1 ". Also attached as Composite Exhibit "2" are the underlying Orders Denying George I. Elso's Motion to Set Aside Order Granting Plaintiffs Motion for Judicial Default and Denying George I. Elso's Motion for Reconsideration of Order Denying His Motion to Set Aside Judicial Default. Respectfully submitted, Isl Juan C. Zorrilla Juan C. Zorrilla, Esquire Fla. Bar No. 381403 E-Mail: jzorilla@fowler-white.com SlATE. OF FLORIDA, COUNTY OF MIAMI-DADE
CASE NO. 12-43649 CA 02 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Notice of Appeal has been emailed on this 2nd day of February, 2017 to: Raphael Lopez, Esq., Courthouse Tower, 44 West Flagler Street, Suite 2075, Miami, Florida 33130, rl@lopezroca.com; Carlos De Lerman, Esq., Lerman & Whitebook, P.A., 2611 Hollywood Boulevard, Hollywood, FL 33020, carlos@lwlawfla.com; Juan C. Elso, 9520 S.W. 6th Street, Miami FL 33173, j.c.elso@aol.com; and Jorge E. Silva, Esq., 236 Valencia Avenue, Coral Gables, FL 33134, Jsilva@silvasilva.com Isl Juan C. Zorrilla Juan C. Zorrilla, Esquire Fla. Bar No. 381403 E-Mail: jzorilla@.fowler-white.com 4812-1817-8369, V. I 2
Exhibit '' 1 ''
IN THE CIRCUIT COURT FOR THE 11th JUDICIAL CIRCUIT, IN AND FOR MIAMI-DADE COUNTY, FLORIDA CIVIL DIVISION ALYSSA ELSO, MICHAEL ELSO, and JUAN C. ELSO, CASE NO.: 12-43649 CA 02 vs. Pla intiffs GEORGE I. ELSO, LUIS A. TORRENS, and XLT INVESTMENT CORP., Defendants. XLT INVESTMENT CORP., a Florida corporation, Counter-Plaintiff, vs. GEORGE I. ELSO, MIRIAM V. ELSO, ALYSSA ELSO, MICHAEL ELSO, JUAN C. ELSO and SILVERCREST LAKES ESTATES HOMEOWNERS' ASSOCIATION, Counter-Defendants. FINAL DEFAULT JUDGMENT IN FAVOR OF PLAINTIFFS AND AGAINST DEFENDANT, GEORGE I. ELSO ONLY THIS CAUSE having come before the Court on Plaintiffs Motion for Fina l Judgment Against Defendant, George I. Elsa, and the Court having reviewed the motion and record, and after considering arguments of counsel, and being otherwise fully advised in the premises: IT IS ORDERED AND ADJUDGED that:
GRANTED. 1. Plaintiffs Motion for.final Judgment Against Defendant, George I. Else is hereby 2. Final Judgment is hereby entered in favor of Plaintiffs, Alyssa Else, Michael Elso and Juan C. Elso against Defendant, George I. Elso as to Counts I, Ill, IV, V and VI of Plaintiffs Amended Complaint, and the Court hereby cancels and rescinds the Quit Claim Deed dated April 3, 2003, recorded in Official Record Book 21170, Page 2492 of the records in and for Miami Dade County, Florida, executed by Plaintiff Juan C. Else in favor of George I. Else and Miriam Elso, concerning the Property which is the subject of this action, whose legal description is: SILVERCREST LAKE ESTATES, PB 154-53 T-19778 LOT 5 BLK 1, LOT SIZE 15002 SQ FT FAU 3-2015-001-0110 0720 0730 & 0740 3. Pursuant to this Final Judgment, the recorder of deeds in and for Miami Dade County is directed to enter a notation on the margin of the Quit Claim Deed in Official Record Book 21170, Page 2492 indicating that this Deed is cancelled and rescinded. 4. As to Count Ill, the Court nullifies and sets aside the fraudulent transfer effectuated by Defendant George I. Else on February 7, 2013, pursuant to the execution of a Warranty Deed in Lieu of Foreclosure, recorded in Official Record Book 28488, Page 4271 concerning the above described property, referenced in paragraph two of this Fina l Judgment, and directs the recorder of deeds enter a notation on the margin of the Warranty Deed in Lieu of Foreclosure indicating that the Deed is hereby cancelled, rescinded, and set aside. 5. The Court finds that Plaintiffs are the prevailing party in this litigation, as to Defendant George I. Else only, and reserves jurisdiction on the issues of attorney's fees and/or court costs incurred by Pla intiffs, including any fees and costs incurred to enforce the terms of 2
this Fina l Judgment aga inst George I. Elsa, and to enter further orders that are proper to compel compliance with this Final Judgment. 6. Th is Judgment does not adjudicate claims, defenses or counterclaims between Plaintiffs and XLT Investment Corp. DONE AND ORDERED in Chambers at Miami-Dade County, Florida, on 01/04/17. No Further Judicial Action Required on THIS MOTION CLERK TO RECLOSE CASE IF POST JUDGMENT The parties served with this Order are indicated in the accompanying 11th Circuit email confirmation which includes all emails provided by the submitter. The movant shall IMMEDIATELY serve a true and correct copy of this Order, by mail, facsimile, email or hand-delivery, to all parties/counsel of record for whom service is not indicated by the accompanying 11th Circuit confirmation, and file proof of service with the Clerk of Court. Signed original order sent electronically to the Clerk of Courts for filing in the Court file. Copies furnished to: All counsel of record. 3
Composite Exhibit ''2 ''
IN THE CIRCUIT COURT FOR THE 11th JUDICIAL CIRCUIT, IN AND FOR MIAMI-DADE COUNTY, FLORIDA CIVIL DIVISION ALYSSA ELSO, MICHAEL ELSO, and JUAN C. ELSO, CASE NO.: 12-43649 CA 02 vs. Plaintiffs GEORGE I. ELSO, LUIS A. TORRENS, and XLT INVESTMENT CORP., Defendants. XLT INVESTME NT CORP., a Florida corporation, vs. Counter-Plaintiff, GEORGE I. ELSO, MIRIAM V. ELSO, ALYSSA ELSO, MICHAEL ELSO, JUAN C. ELSO and SILVERCREST LAKES ESTATES HOMEOWNERS' ASSOCIATION, Counter-Defendants. ORDER DENYING DEFENDANT GEORGE I. EL.SO'S MOTION TO SET ASIDE ORDER GRANTING PLAINTIFF'S MOTION FOR JUDICIAL DEFAULT THIS CAUSE came before the Court on August 4, 2016 on Defendant George I. Elsa's Motion to Set Aside Order Granting Pla intiff's Motion for Judicia l Default, and the Court having reviewed the motion, affidavits, the response in opposition, and other pertinent portions of the file, and after considering arguments of counsel, and being otherwise fully advised of the
pleadings of record and case law cited by the parties, upon review and cons ideration of the above, the Cou rt makes t he foll owing findings of fact and conclusions of law: 1. Plaintiffs fi led suit aga inst Defendant, George I. Elso, on November 6, 2012. 2. Defendant, George I. Elsa, subsequently filed two sepa rate motions, a Motion to Quas h Service of Process and a Motion t o Dism iss the Complaint based on Pla intiffs' failure to j oin XLT INVESTMENT CORP., which Defendant cla imed was an indispensible pa rty based on their having filed an action for foreclosure with respect to the property which is the subject of this action. 3. On January 11, and February 20, 2013, respective ly, this Honorable Court entered Orders denying Defendant George I. Elsa's Motion to Quash Service of Process and Motion to Dism iss. This Court directed the Defendant to submit an answer within five (5) days from the entry of t he Order. 4. On March 7, 2013, 15 days after the court ordered him to answer within 5 days, Defenda nt George I. Elsa, through counsel, filed an answer and affirmative defenses to the complaint; however, his answer fa iled to apprise the Court and/or Pla int iffs that on or about Februa ry 7, 2013, Defendant George I. Elsa had executed a Warranty Deed in Lieu of Foreclosu re, and transf erred his purported interest in the property which is t he subject of this action, to XLT Investment Corp. Moreover, this was not disclosed duri ng oral argument before t his Court on February 20, 2013. 5. After learning of the aforementioned Warranty Deed that Defendant George I. Elsa had executed in lieu of foreclosure, on June 12, 2013, Plaintiffs filed a Motion for Leave to Amend their Complaint, attached their proposed amended complaint, and scheduled the 2
hearing on the motion to amend for June 24, 2013. 6. Defendant George I. -Elsa, through counsel, acknowledged in writing having received a copy of Plaintiffs Motion for Leave to Amend, the proposed amended complaint, as well as t he notice of hearing schedu led for June 24, 2013. 7. The record further evidences that on June 17, 2013, Pla intiffs filed a Motion to Strike Defendant George I. Elsa's Answer and Affirmative Defenses and for Entry of Judgment based on Defendant George I. Elsa's purported fraud upon the Court. Defenda nt George I. Elsa also acknowledges receipt of said motion to strike. This Motion, however, was held in abeyance as a resu lt of Defendant George I. Elsa's pro se bankruptcy fil ing which occurred on June 18, 2013. 8. On June 24, 2013, the Honorable Spencer Eig entered an Order granting Plaintiffs' Motion For Leave to Fil e an Amended Complaint, which added two parties, and included add it iona l counts aga inst Defendant George I. Elsa. Based on Defendant George I. Elsa's filing of a bankruptcy petition, Judge Eig stayed the pending action as to Defendant George I. Elsa and ordered pursuant to the applicable rules of civil procedure, that Defendant George I. Elsa would have twenty (20) days after the bankruptcy stay is lifted to fi le a responsive pleading to the amended complaint. 9. It is undisputed that Defendant George I. Elsa received notice of the entry of Judge Eig's Order. 10. The record revea ls and Defendant George I. Elsa acknowledges that on March 27, 2014, George I. Elsa's bankruptcy petition was dismissed, and on April 28, 2014 the bankruptcy case was closed. 3
11. Although Plaintiffs, pu rsuant to Judge Eig's Order of June 24, 2013 could have moved for a Judicial Default sooner, they waited until June 4, 2014 to fi le a Motion for Jud icial Default based on Defendant George I. Elsa's fa ilure to t imely fi le a responsive pleading w ithin twenty (20) days after the termination of his bankruptcy case. 12. On July 24, 2014, Judge Spencer Eig entered a Judicial Default against Defendant George I. Elsa for failure to appear or fi le any answer or other pleading to the amended compla int as required by law. 13. On or about July 10, 2015, the Defendant George I. Elsa filed this Motion to Set As ide Default. 14. The Court held a full hearing and finds that there is no evidence that Defendant George I. Elsa exercised due dil igence in contacting or attempting to contact his attorney or take other defensive measures to respond to the amended complaint, nor does the record demonstrate that Defendant George I. Elsa made any effort to hire a new attorney or to otherwise update his address with the Clerk of Cou rt. Defendant Elsa was fully aware of the case and that his bankruptcy case was dism issed. 15. The record shows no record activity being taken on behalf of Defendant George I. Elsa until Ju ly 10, 2015, approxi mately one year after t he ent ry of the subject j udicial default, at which time the Defendant submitted a Motion to Set Aside Jud icial Default. To date, Defendant George I. Elsa has not filed an answer to the amended complaint. As a matter of law the Court finds that he has failed to provide sufficient evidence to show a meritorious defense. 4
16. In order for the Court to set aside a Judicial Default as requested by Defendant George Elso, pursuant to Rule 1.540, the burden of proof is on the Defendant to establish that t he Defendant's failure to timely respond resulted from mistake, inadvertence, surprise, or excusable neglect. 17. The affidavit of the Defendant fails to establish the existence of any mistake, inadvertence, surprise, or excusable neglect. Although there appears to be neglect of this lawsuit by t he Defendant, the record evidence and affidavits filed in this matter reveal a knowing or intentional neglect as opposed to an excusable neglect. A. Relief From Judgment, Decrees, or Orders Generally Rule 1.SOO(d) and 1.540(b) of the Florida Rules of Civil Procedure provide this Court with the discretionary power to set aside an entry of defau lt ; however, the authority under Rule 1.540 may only be invoked when very specific criteria have been met. Florida law requ ires the pa rty who moves to vacat.e the entry of a default to demonstrate excusable neglect, a meritorious defense, and due diligence in order for the trial cou rt to vacate a default. See North Shore Hosp., Inc. v. Barber, 143 So.2d 849 (Fla. 1962); Church of Christ Written in Heaven of Georgia v. Church of Christ Written in Heaven of Miami, 94 7 So.2d 557 (Fla. 3d DCA 2006); B.C. Builders Supply Co., Inc. v. Maldonado, 405 So.2d 1345 (Fla. 3d DCA 1981). The requirement that the defendant demonstrate excusable neglect requ ires more than a conclusory statement. A party moving to vacate a default must set forth facts expla ining or justifying the mistake or inadvertence by affidavit or other sworn statement,... and fai lure to do so will prevent the appellate court from finding a gross abuse of discretion. 5
Id. at 1348. Defendant George I. Else's answer to the original complaint did not carry over as a response to the amended complaint and there is no evidence setting forth a meritorious defense. Geer v. Jacobsen, 880 So.2d 717, 720 (Fla.2d DCA 2004) (Defendant's previous ly filed notice and motion did not carry over as a response to the amended comp laint, and Defendant did not otherwise respond to amended complaint). In this case, the defendant rather than making an effort to comply with the requirements of Rule 1.540 or the progeny of cases which require a party present evidence of excusable neglect and a meritorious defense, instead asserted in a conclusory manner that the default was improperly obtained, thus rel ieving the defendant from the requirement of establishing a meritorious defense and inadvertence or excusable neglect. Although courts fav or the disposition of cases on their merits, it is axiomatic that a trial court abuses its discretion when it sets aside a default based on a legal ly insufficient motion to vacate. See Geer, 880 So.2d at 720. B. The Court's June 24, 2013 Order Granting Plaintiffs' Motion for Leave to Amend Complaint was Properly Entered. Although Defendant suggested that Judge Eig's June 24, 2013 Order was improperly entered in violation of the bankruptcy court's automatic stay, on the contrary, the record evidence demonstrates that the Court took affirmative steps to protect Defendant George I. Elsa's interests and notified Plaintiffs, as per the Order, that no action could be taken against Defendant/Debtor George I. Elsa until such time as the bankruptcy stay was lifted. The Court finds that bankruptcy proceedings do not, merely by virtue of their ma intenance, terminate an action already pending in a non-bankruptcy court, to which the bankrupt is a party, Conner v. Walker, 291 U.S. 1, 54 S.Ct. 257, 78 L.Ed. 613 (1934), the action simply rema ins dormant 6
with respect to the bankrupt debtor only and is revived by the lifting of the stay or dismissal of the bankruptcy action. See Barton-Ma/ow Co. v. Gorman Co. of Ocala, Inc., 558 So.2d 519, 521 (Fla. 5th DCA 1990) (citing Baker v. Bloom, 146 A.D.2d 859, 536 N.Y.S.2d 267 (A.O. 3rd Dept. 1989). The Court further finds that the June 24, 2013 Order granting Pla intiffs Motion for Leave to Amend the Complaint did not authorize any act in furtherance of the case aga inst Defendant George I. Elso, but did authorize Plaintiffs to simply add two defendants, XLT Investment Corp., and Luis Torrens. Notwithstanding the broad scope of 11 U.S.C. 362, the automatic stay does not protect non-debtors from litigation, even from ob ligations that involve the debtor. See In Re Colony Beach, 2015 WL 1281825 (M.D. Fla. 3/18/15). Here, Plaintiffs were amending their complaint to pursue cla ims regarding the subject property aga inst XLT Investment Corp. and Luis Torrens, Esq., and the Order entered by Judge Eig specifically prohibited Plaintiffs from taking any action, during the pendency of the bankruptcy proceedings, against Defendant/Debtor George Elso. Indeed, the claims against George Elsa did not proceed until his stay ended by virtue of the dismissal of his bankruptcy filing, and thereafter he had 20 days to respond. The Court specifically f inds that it was not divested of jurisdiction to permit the civil action to proceed against the non-debtor defendants in th is case, Defendants XLT Investment Corp. and Luis Torrens, Esq., or to enter administrative and substantive orders, so long as the orders not adversely affect or jeopardize the bankruptcy proceed ings and/or estate. See Shop in the Grove, LTD., v. Union Federal Sav. and Loan..., 425 So.2d 1138 (Fla. 3d DCA 1982); Goldstein v. Harris, 768 So.2d 1146 (Fla. 4th DCA 2000) (Trial court did not err in finding that automatic stay in bankruptcy proceeding, 7
even if it were in effect, did not strip court of power to enforce civil contempt order through writ of bodily attachment, as contempt order did not require payment of money but on ly production of financial records, and thus did not affect bankruptcy estate). C. Defendant George I. Elsa's Default was Willful. In order to establish willfulness, Plaintiff need not show bad faith on the part of Defendant, but must show more than mere negligence or carelessness. Courts have found defaults willful where the conduct of the adversary was egregious and was not satisfactorily explained. See Commonwealth Fed. Sav. and Loan Ass'n v. Tubero, 569 So.2d 1271 (Fla 1990); Mercer v. Raine, 443 So.2d 944 (Fla. 1983); Dage v. Deutsche Bank Nat. Trust Co., 95 So.3d 1021, 1023 (Fla. 2d DCA 2012). In the instant case, Defendant argues that he was surprised to learn in May of 2015 that a default had been entered on July 24, 2014, despite the fact that he was fully cognizant that his federal bankruptcy petition had been dismissed on March 27, 2014. Defendant's motion and affidavit fail to set forth any due diligence and frivolously asserts that George I. Elsa should not be required to comply with the mandates of Rule 1.540 in establ ishing due diligence and a meritorious defense because the default arose from lack of notice. For the reasons aforementioned and the record before the Court, this Court finds those arguments unpersuasive. ORDERED AND ADJUDGED as follows: Defendant's Motion to Set Aside Default and For Related Relief is hereby DENIED. DONE AND ORDERED in Chambers at Miami-Dade County, Florida, on 08/22/16.
MONICA GORDO CIRC::UIT COURT JUDGE No Further Judicial Action Required on THIS MOTION CLERK TO RECLOSE CASE IF POST JUDGMENT The parties served with this Order are indicated in the accompanying 11th Circuit email confirmation which includes all emails provided by the submitter. The movant shall IMMEDIATELY serve a true and correct copy of this Order, by mail, facsimile, email or hand-delivery, to all parties/counsel of record for whom service is not indicated by the accompanying 11th Circuit confirmation, and file proof of service with the Clerk of Court. Signed original order sent electronically to the Clerk of Courts for filing in the Court file. Copies furnished to: Juan C. Zorrilla, Esq. jzorrilla@fowler-white.com Raphael Lopez, Esq. rl@lopezroca.com Carlos Lerman, Esq. carlos@lwlawfla.com 9
IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA CIRCUIT CIVIL DIVISION CASE NO. 2012-043649-CA Ol SECTION: 02 Elso, Alyssa; Elso, Michael; Elso, Juan C Plaintiff, vs. Elso, George I; Torrens, Luis A; Xlt Investment Corp Defendant. ORDER DENYING DEFENDANT, GEORGE I. ELSO'S MOTION FOR RECONSIDERATION OF ORDER DENYING HIS MOTION TO SET ASIDE JUDICIAL DEFAULT THIS CAUSE having come before the court, and the court having reviewed Defendant, George I. Elsa's Motion for Reconsideration of Order Denying his Motion to Set Aside Judicial Default, Plaintiff's Opposition, and being fully advised in the premises it is hereby: ORDERED that defendant's motion is DENIED. DONE and ORDERED in Chambers at Miami-Dade County, Florida this 30th day of November, 2016. cc: All counsel of Record MONICA GORDO CIRCUIT COURT JUDGE