The notice of sale must be published once a week for two consecutive weeks in a newspaper of general circulation and published in the county where the sale is to be held. The second publication must be at least five days before the sale. Florida Statute 45.031 states that the notice must contain:

(a) A description of the property to be sold.

(b) The time and place of sale.

(c) A statement that the sale will be made pursuant to the order or final judgment.

(d) The caption of the action.

(e) The name of the clerk making the sale.

(f) A statement that any person claiming an interest in the surplus from the sale, if any, other than the property owner as of the date of the lis pendens must file a claim within 60 days after the sale.

If any of these requirements are not met, the sale may be declared void. However, if no objections to the sale are filed within 10 days after filing the certificate of sale, the clerk will file a certificate of title. In addition to lack of notice of the sale or failure to comply with the notification of sale requirements, you may have other defenses that will help you in defending the foreclosure action and saving your home.

So it seems unfair that you could return home and discover that your lender has foreclosed because you fell behind in your mortgage payments.

The federal Servicemember’s Civil Relief Act (SCRA) is designed to protect servicemembers from civil lawsuits while they’re on active duty. Under the act, a foreclosure that occurs while you’re on active duty may be invalid, depending on the circumstances and the reason for the foreclosure.

In a federal court case last year, the United States District Court for the Eastern District of Michigan evaluated a servicemember’s request for relief from high interest rates and foreclosure.

The homeowner in Banaszak v. Citimortgage, Inc. was a captain in the Armed Services. In 2003, he signed a 30-year mortgage on his home, with a 6.785 percent interest rate. He served on active duty from 2004-2006, and again from 2007-2013. Both times, he claimed that his active duty status materially interfered with his ability to pay his mortgage. As a result, the lender agreed to two loan modifications in which interest, expenses and costs were added to the principal balance of the mortgage.

About a month after the second loan modification, the lender sent the homeowner a letter saying that his interest rate had been retroactively reduced to 6 percent in accordance with the SCRA, and that it would revert to 6.785 percent on October 1, 2008.

When the homeowner returned from active duty in March 2013, he discovered that the county treasurer had posted a foreclosure notice on his home for nonpayment of property taxes. He then filed a lawsuit against his lender, seeking money damages and an injunction to stop the foreclosure.

The court’s opinion cited four provisions of SCRA that were relevant to the case:

• Obligations incurred before the period of military service cannot bear an interest rate of greater than 6 percent during the time of active duty, and for a year afterward. Interest above 6 percent must be forgiven.
• A servicemember can apply for relief from collection of debts.
• A claim for SCRA protection cannot be the basis for an adverse credit report
• A servicemember’s real estate cannot be foreclosed for the purpose of paying taxes or other assessments.

The court found that the homeowner stated a claim against his lender for violation of SCRA because the lender did not adjust the interest rate to 6 percent for the period from October 2008 until a year after his active duty ended in March 2013.

Although SCRA prevents a foreclosure to pay taxes, the court ruled that the homeowner did not have a claim against the lender for improperly foreclosing. According to the mortgage, the homeowner, not the lender, was responsible for making tax payments. And in any event the lender wasn’t trying to foreclose: the foreclosure case was filed by the county.

For more information on fighting a Miami foreclosure, contact The Neustein Law Group PA at (305) 531-2545.

But a lender can also lose a foreclosure case by neglecting it.

Judges don’t like to have inactive cases sitting around on their dockets. They expect progress toward trial. If a case sits around too long with no activity, the court may just dismiss it for failure to prosecute, also known as a FWOP.

In Spencer v. EMC Mortgage Corp., a borrower had her foreclosure case dismissed not once, but twice, because of her lender’s failure to prosecute.

The borrower took out a $73,000, 15-year home mortgage in 1993. The lender originally filed a foreclosure case in 1998, but that case was eventually dismissed for lack of prosecution.

The lender filed a new foreclosure case against the borrower in November of 2002. She answered the lawsuit and raised some defenses. After some initial activity, the lender hired a new lawyer and the case went nowhere for 13 months.

The court then issued an order asking the lender’s lawyers to explain why the case should not be dismissed for lack of prosecution. In Florida, the court or a party may issue a notice of lack of prosecution if no activity has occurred in a case in 10 months and the case is not affected by a bankruptcy or some other type of stay. Once the notice goes out, if there is no activity for 60 days, the case may be dismissed for lack of prosecution.

In the Spencer case, the lender’s lawyers did nothing for 82 days. Then, three days before the hearing was scheduled, they filed a motion asking the court to decide the foreclosure case in their favor based only on written evidence. They claimed they never received the notice of lack of prosecution.

The trial court ruled in the lender’s favor. It didn’t dismiss the case because the lender’s attorney explained that the time limit had expired for filing a new foreclosure case. The court granted a foreclosure judgment, even though the lender’s lawyers didn’t submit a sworn statement and its court papers grossly overstated the amount Ms. Spencer owed.

The Florida Court of Appeal overturned this ruling and dismissed the case. It found that dismissal was justified because there was no activity in the case for more than 10 months, and there also was no activity during the 60 days after the notice went out. Although the lender’s lawyer claimed he didn’t receive the notice, records showed that he learned of the notice within a month after it was sent, and therefore had over a month to take some action in the case and prevent dismissal.

The result of this case, one of the judges noted, is that the borrower was able to remain in her home for over 15 years after defaulting on her mortgage.

Foreclosure cases don’t usually have these dramatic scenes. In fact, many foreclosure suits are resolved without a trial, in a procedure known as “summary judgment.”

Lenders often file summary judgment motions in hopes of resolving the case quickly. As a borrower, you should understand that if the court grants a summary judgment motion, the case is decided in the lender’s favor, and a foreclosure judgment will be entered against you and a foreclosure sale date will be set by the court (usually in 30 days).

Summary judgment proceedings begin when one party to a lawsuit files a written motion for summary judgment with the court. The motion asks the court to decide two things: (1) that there are no factual issues in dispute; and (2) that based on the undisputed facts, the party making the motion is legally entitled to a judgment in his or her favor.

The motion will include legal arguments and supporting evidence. For example, in a foreclosure case, the lender’s evidence might include the promissory Note, the default letter that was sent to the borrower, and a payment history. The motion will also typically include affidavits establishing that the documents are authentic and admissible as evidence.

The lender must send opposing parties a copy of the motion and information about the date and time of the hearing. Borrowers and other parties to the lawsuit can file written responses to the motion. A response will usually raise factual issues, attack the lender’s evidence, or make a legal argument.

When a borrower doesn’t respond to the motion, the court will usually grant summary judgment in the lender’s favor. But in one recent case, a homeowner who was unable to attend a summary judgment hearing won reversal of a foreclosure judgment.

In Hubsch v. Howell Creek Reserve Community, a homeowner’s association had filed a lawsuit to foreclose based on unpaid association dues. The unfortunate homeowner was in prison, but she did file an answer denying the claims in the lawsuit. When the lender filed a motion for summary judgment, the homeowner asked to continue the hearing to a later date or to appear at the hearing by telephone.

The court denied the motion to continue but ignored the motion to appear by phone. The homeowner’s daughter then showed up at the hearing and – without her mother’s consent — agreed to a foreclosure judgment. The court entered judgment in the lender’s favor. Not surprisingly, the homeowner appealed.

The Court of Appeal said that prisoners are entitled to defend themselves in lawsuits, but must let the court know their intentions. In this case, the homeowner told the court she wanted to appear in court and raise a defense, and asked to appear by phone. When the court ignored the request, it denied the homeowner her due process rights. Because of this, the appeals court overturned the foreclosure judgment.

And then the lender breaks up with you. It takes your mortgage, bundles it with some others, and sells it. Pretty soon, you get a letter in the mail saying that some other company you never heard of will now be servicing your loan. For some mortgages, this happens more than once.

As a homeowner, it’s annoying. But if you’re facing foreclosure, those assignments from one lender to another may give you a great defense.

The defense hinges on the legal concept of “standing.” Having standing means having a legal right to bring a lawsuit. In the case of lawsuits involving mortgages and other contracts, the parties who signed the contract have standing. If a contract was assigned or transferred to someone else, then the assignee or transferee has standing. Other people do not.

So, if you have a mortgage with Bank A, then Bank A has standing to file a foreclosure suit. If Bank A assigned the mortgage to Bank B, then Bank B could file foreclosure if it could prove that there was an assignment. Because mortgages are so frequently transferred from one lender or servicer to another, a lender may have trouble producing documents to prove that assignments occurred.

In Seffar v. Residential Credit Solutions, Inc. a borrower recently won dismissal of a foreclosure case because the lender didn’t prove it had standing.

In that case, the borrower had signed a mortgage with ABN Amro Mortgage Group (ABN) and had been notified that servicing of his loan was being transferred from Citimortgage to Residential Credit Solutions, Inc. (RCS). When the borrower defaulted, RCS filed a foreclosure lawsuit.

RCS attached the original mortgage to the lawsuit, as well as another document that did not establish that ABN had assigned the mortgage. RCS then moved to substitute Bayview Loan Servicing as the plaintiff because servicing of the mortgage had been transferred to Bayview.

A litigation manager for Bayview testified at trial, but he didn’t have any evidence that Bayview or RCS had standing. He didn’t know anything about the prior loan servicers’ records or whether they were accurate. He said he believed Bayview was the owner of the Note, but he hadn’t seen any agreement between Bayview and the prior owner, RCS. He did not know who owned the note at the time RCS sent the borrower a notice of intent to take legal action.

On appeal, the Florida Court of Appeal found that Bayview had failed to prove standing. As a result, the court dismissed the foreclosure case.

In any foreclosure case, it’s important to remember that the lender must prove it has standing to file the lawsuit. Sometimes this is just a formality, but sometimes a lender or loan servicer doesn’t have documents to show how it acquired the mortgage. When that happens, the case may be dismissed.

The Mortgage Forgiveness Debt Relief Act provides a critical exemption to taxable income that banks attribute to borrowers after a successful foreclosure settlement (i.e – a short sale, deed-in-lieu of foreclosure, consent Final Judgment of Foreclosure with waiver of deficiency or a loan modification). This federal law is what has enabled millions of homeowners to enter into a settlement with the bank on their delinquent mortgage without a major tax penalty. This Federal Law was enacted incentivize home owners to avoid the lengthy foreclosure process. If this law did not exist, the home owner would be liable for the taxes on the amount forgiven on the loan. For example, if the homeowner owed the bank $200,000 and completed a Deed-in-Lieu of Foreclosure (or short sale) on their home valued at only $150,000, then the original homeowner would have to pay income tax on the $50,000 difference, as if it had been received as regular income. Mortgage lenders and Bank almost always generate and mail out a 1099 form to the Borrower outlining the amount of the “debt forgiveness” income resulting from the “successful” short sale, loan modification, deed-in-lieu of foreclosure or Consent In Rem Judgment with Deficiency Waiver. The attorneys at the Neustein Law Group (www.stopforeclosurelawyer.com) are very pleased to share this excellent news to our homeowner clients who we helped execute a short sale, deed-in-lieu, loan modification or consented to a final judgment with waiver of deficiency. Unfortunately, Congress has not yet extended the Mortgage (Debt) Forgiveness Relief Act to include 2015. We will keep you posted.

This law indicates there is a five-year statute of limitations on action to foreclose a mortgage. But Miami foreclosure defense lawyers understand the question was when that statute of limitations begins ticking.

In Bartram, the plaintiff alleged that it started when the bank first filed a foreclosure action against him in 2006. The case was dismissed in 2011, and the bank chose not to seek a rehearing or appeal of that order. When the bank again filed for foreclosure, the plaintiff asserted that the bank’s right to enforce its claim was barred by the statute of limitations.

However, the bank countered that dismissal of the prior case effectively allowed it to reset the clock on its ability to file a new lawsuit. Put another way, losing the case the first time gave the bank an additional five years in which to file a new lawsuit. If that lawsuit were to be dismissed, the bank would have another five years to bring an additional lawsuit.

This type of unlimited re-filing of old cases that have already been dismissed seems ludicrous, particularly given the fact that Florida courts are clogged with a backlog of old cases. It seems that allowing such action, with essentially no limits as to how many times a bank can file, or the time in which the filing must be accomplished, would create an undue burden on the courts (to say nothing of struggling homeowners).

And yet, that was the decision reached by the Fifth District Court of Appeal in Bartram.

There is a possibility that the decision could be reversed, however, as the appellate court has certified it to the Florida Supreme Court for review. The high court could choose to affirm the ruling, or toss it, tossed or ultimately find some middle ground.

At this point, both parties have the opportunity to provide the high court with more documentation to offer further argument for review.

This decision is particularly important for homeowners who have already had their prior foreclosures dismissed. Many believed they were safely beyond that five-year mark, because of the statute of limitations under Florida law.

However, even if the decision stands it doesn’t necessarily mean homeowners are out-of-luck. For one thing, application of this opinion might be rather limited, and there are other statutes that may provide relief.

Additionally, there is a portion of the language in this ruling that indicates that even when a bank files a new foreclosure lawsuit, it can’t recovery individual payments that are overdue by more than five years.

Given the evolving landscape of foreclosure law in Florida, it’s imperative that homeowners seek counsel from an experienced lawyer.

Appellate courts in Florida recently reversed a number of foreclosure actions on the grounds that the bank offered inadequate notice of default to borrowers, and thereby failed to provide them with adequate time to remedy the situation before proceeding with Florida foreclosure dismissals.

Our Miami foreclosure attorneys know in recent years Florida courts have grown increasingly strict when it comes to procedural requirements that must be met by banks, whether that is physical possession of the mortgage and note or simply adhering to statutory timelines.

Increasingly, failure of banks to provide proper notice of default is cited as a reason for dismissal of the case. We understand that while this may not permanently shut down the foreclosure process if the borrower is delinquent, it can serve to buy time because it may force the bank to refile. This gives the borrower some leverage in negotiating a reasonable home-loan modification.

One example of a recent case involving this issue is that of Haberl v. 21^st Mortgage Corp., reviewed by Florida’s Fifth District Court of Appeal.

Here, the borrower appealed a summary final judgment in favor of the bank, arguing the notice of default attached to the affidavit in support of the summary judgment didn’t comply with pre-acceleration notice requirements spelled out in the mortgage. This is the portion of the mortgage agreement that allows the bank to speed up the amount of time under which full payment is due. It’s a precursor to most foreclosure actions, but borrowers have to be provided with ample notice. Usually, the deadlines are spelled out in the contract. However, it appears too often that banks aren’t reading their own fine print.

The notice of default in the Haberl case did not include information on the borrower’s right to reinstate after acceleration or the right to assert the non-existence of default (or other defenses) in the foreclosure proceeding.

The Fifth District had just reached a similar conclusion in Samaroo v. Wells Fargo in March.

More recently, Florida’s Fourth District Court of Appeal ruled similarly in Patel v. Aurora Loan Services LLC. Here, the borrowers successfully harkened back to the 2009 ruling in Frost v. Regions Bank, where the bank failed to refute the defendant’s affirmative defense of lack of notice and opportunity to cure. Essentially, the bank failed to properly notify the borrower of the impending foreclosure action and potential remedies he or she might seek to abate it.

The appellate court determined the pertinent language in the two cases was nearly identical. A similar reversal was granted in the 2013 case of Kurian v. Wells Fargo.

The court chided the bank for its approach, noting that in response to the borrower’s assertions the bank provided defendants with a letter of default dated in 2009. “Therefore, the plaintiff denies this affirmative defense, and demands strict proof thereof.” The court indicated that this “bare, ‘because I said so’ allegation” was the extent to which the plaintiff sought to refute the borrower’s affirmative defense. In fact, the alleged default letter was never submitted to the appellate court.

Based on this, the court determined the bank hadn’t sufficiently established that there was no genuine issue of material fact regarding its lack of adequate notice and borrower opportunity to cure. Therefore, the final judgment in favor of the bank was reversed and remanded.

Foreclosure cases are often more complex than they appear. An experienced foreclosure lawyer can help you determine the best strategy to fight back.

The Neustein Law Group PA, Miami foreclosure attorneys, can be reached at (305) 531-2545.

The 11^th Circuit Court of Appeals in Florida recently issued a decision affirming the foreclosure in Bloch v. Wells Fargo Home Mortgage , where a couple sought to challenge the bank’s denial of the federal Home Affordable Modification Program.

The problem with HAMP eligibility is that while the basic requirements are spelled out by the government, the ultimate decision of whether to grant a modification rests with the mortgage servicer. Over the last few years, there have been many complaints about wrongful denial of home loan modifications.

In cases of HAMP denials, our South Florida foreclosure lawyers want to make sure borrowers understand they have only 30 days in which to challenge a denial. If you haven’t already involved an attorney by that point, now is the time to do so.

There are many reasons why a borrower could be denied a loan modification. Those reasons could include:

• Failure to send requested documents in a manner considered timely.
• Debt-to-income ratio is too high.
• Insufficient income to make even an affordable mortgage payment.
• Negative NPV (Net Present Value).
• Modification outside investor guidelines.

There are other possible reasons too, but it’s important to at the very least have the loan modification denial reviewed by a foreclosure attorney, who can help you determine whether there is anything improper about it.

In the Bloch case, the plaintiff argued that the denial of the modification amounted to a negligent misrepresentation by the mortgage servicer, insisting they had been “promised” that they were eligible. Had they known that the bank, in this case Wells Fargo, had not intended to modify their loan, they would have worked more aggressively to sell their home at the outset, or sought a bankruptcy in the alternative. This, they said, would have saved them the trouble of enduring the modification process.

The couple in this case had taken out a $324,000 loan in 2002, and Wells Fargo was the servicer. In 2007, the couple defaulted by failing to make payments. A foreclosure action was filed the following year, but when the couple entered a mortgage restructure/loan modification, the foreclosure action as voluntarily dismissed by the bank.

Within a year, the couple had defaulted on that loan as well. At that time, the bank sent a letter to the couple inviting them to apply to participate in HAMP. The couple completed the application and submitted it a short time later.

The two then made four trial payments of $2,200 each while awaiting a decision regarding whether they qualified for HAMP. However, after reviewing the information, the bank determined that they did not qualify for assistance under HAMP.

The four payments the couple had made were credited to the outstanding balance they owed to the bank.

The borrowers entered into a forbearance agreement, but that didn’t mean the bank waived the right to collect the remaining balance of the loan. The couple never made any further payments.

They then sued the bank, alleging that the bank had misrepresented their chances of obtaining a modification, causing them to lose out on the opportunity to seek another alternative.

However, the 11^th Circuit ruled that the letter sent by the bank offering a modification clearly indicated that they might be eligible under HAMP, and as such, this was not a binding promise. Further, the court found no evidence of false representation by the bank, and in any case, the alleged injury was speculative. In these cases, the alleged injury has to be concrete – not based on conjecture.

Challenges to HAMP denials must be handled swiftly and carefully. We can help.

For some people, this can result in payments of hundreds of thousands of dollars. A judgment against you could mean that the bank could seek to demand payment of the remaining balance through your personal assets or other means.

In the wake of the housing crisis, our Broward County foreclosure defense attorneys in Fort Lauderdale know that banks haven’t made this a top priority in a lot of cases because, frankly, not many people could have afforded to pay anyway. In cases where deficiency judgments were pursued in the past, it was more likely the case that debtors had substantial other assets that could have been targeted to satisfy the remaining debt.

Now that the winds of the crisis are settling, banks are more frequently pursuing deficiency judgments, though as of July 1, 2013, per a new state law, they have just one year to do so from the time of foreclosure.

Recently, the Florida Fourth District Court of Appeals ruled in favor of a bank seeking to collect deficiency judgments against three borrowers, reversing an earlier finding that the sale price and appraiser affidavits did not establish the fair market value of the property.

The case, Vantium Capital, Inc. v. Hobson, stemmed from the final foreclosure judgments in three cases. In the first case, the foreclosure judgment indicated the homeowner owed $200,000, though the home only sold at auction for $163,000. The second foreclosure judgment was entered for $276,000, though the home only sold in a foreclosure auction for $21,000. In the third case, the judgment was granted for $200,000, but the home only sold at auction for $22,000.

None of the three debtors appeared at the hearings for the deficiency judgments. This is a critical mistake many homeowners make. They assume that because the foreclosure action is finalized, there is nothing more about which they need to be concerned. This is absolutely not true, and it can end up being an expensive lesson.

Here, the bank established the foreclosure amounts for each property, and then offered appraiser affidavits that it said indicated the fair market value of the properties. Only one of the three homeowners had submitted a separate independent appraisal, which indicated the home was worth more than the bank-stated appraisal indicated.

The trial court denied the deficiency judgment, indicating that the bid price had been the only thing established. Further, the court said affidavits of appraisers would not be accepted in lieu of live testimony.

The court subsequently denied the bank’s motion for a rehearing.

The bank appealed, arguing that the trail court failed to follow state law and abused its discretion.

The appellate court agreed.

Pointing to the 2000 decision in Ahmad v. Cobb Corner, Inc., the appellate court held that when the total amount of debt secured by a property lien is more than the fair market value on the property at the time of a foreclosure sale, the grant of a deficiency judgment should be considered the rule rather than the exception.

The court also pointed to previous case law indicating that there is a legal presumption that the foreclosure sale price equals the fair market value of a property, and the onus is on the homeowner to prove otherwise.

Of course, we all know that in actuality, foreclosures sell for far less than a home might actually be worth. But homeowners are still going to be stuck paying the difference. So the bottom line is that unless you make it a point to fight back in a deficiency judgment case, you will likely end up paying a larger sum than you might otherwise.

A bank cannot secure a deficiency judgment without first taking the matter to court. This means you have the opportunity to fight back. We encourage you to avail yourself of that right.

One of the best ways to fight off a foreclosure is to stop it before it’s ever filed.
Foreclosure filings are initiated for non-payment of the mortgage. But the reasonsbehind the default are varied. It’s not always a matter of an inability to pay. In some cases, the foreclosure proceeding is initiated following disputes over escrow, property taxes, force-placed insurance or even homeowner association disagreements.
Our Miami foreclosure defense lawyers recognize that addressing these issues promptly and properly can prevent a case from reaching the foreclosure stage. The recent case of JPMorgan Chase Bank v. Skoda, reviewed by the North Dakota Supreme Court, illustrates the point.
Here, according to court records, the dispute arose shortly after the mortgage was re-assigned from one lender to another, the latter being JPMorgan Chase. That mortgage included several provisions for payment of principal, interest and payment in escrow for property taxes.
However, the homeowner continued to make payments as he had to the previous lender. Those payments were light roughly $170 a month in escrow for the property taxes, as had been stipulated under the mortgage provision. But the reason the homeowner didn’t pay was because he had already paid his property taxes on his own.
Despite this fact, the bank refused to accept the borrower’s reduced payments. Soon after, the bank issued notices of intent to foreclose on the property on the basis that the homeowner had defaulted on the promissory note by failing to pay the full monthly installments due under the mortgage provisions.
There was some back-and-forth between the two parties in court, but in the end, the homeowner failed to formally deny the bank’s claim or raise any issue of genuine fact that would prevent the summary judgment from being entered in the bank’s favor. This was despite being granted an extension to do so. For this reason, the court granted the bank the summary judgment it requested, effectively foreclosing on the home.
The homeowner appealed, arguing the grant of summary judgment was improper because of material facts in the case. Specifically, he contended that the bank had no right to collect escrow for the property tax because the previous mortgage holder had waived that right and he had paid the taxes directly. He sent full principle and interest payments, and therefore, he argued, the bank had no right to request a foreclosure.
He further alleged that the bank had violated the Fair Credit Reporting Act because it had reported him to the credit bureaus as having a delinquent payment history, despite the fact that it was the bank’s decision to stop accepting his payments.
However, in reviewing the claim, the state supreme court found no reversible error. The homeowner didn’t formally dispute the bank’s claims, giving him little recourse to appeal the issue. Further, with regard to his claim of FCRA violations, the homeowner didn’t provide any evidence that the bank had reported him as having a delinquent payment history. It may very well have been true, but the homeowner had failed to assert his rights to prove it in court.
This case shows how a very simple legal matter snowballed into a foreclosure that cost a homeowner his property because he failed to seek experienced legal advice in a timely fashion.
For more information on fighting a Miami foreclosure, contact The Neustein Law Group PA at (305) 531-2545.

CASE NO.: CACE12035126
SECTION: 11

VPH NPL JKC 57 TRUST,
Plaintiff,
vs.
ALEX MANUEL DUENO, et al.,
Defendants

SUMMARY FINAL JUDGMENT FOR DEFENDANT, ALEX M. DUENO AND QUIETING TITLE AND CANCELLING NOTE

THIS CAUSE came to be heard before the undersigned Judge in open Court on January 6, 2014 upon Defendant’s Verified Motion for Summary Judgment.

The Court finds that the following facts are undisputed:

1. Plaintiff’s predecessor, Nomura Credit & Capital, Inc. (hereafter, “Nomura”) filed an action to foreclose on the Note and Mortgage sued upon herein on December 27, 2006 under Case No: CACE 06-021183 in the Circuit Court of Broward County, Florida (hereafter, “2006 lawsuit”).
2. Coincidental thereto, Normura filed an recorded a Notice of Lis Pendens in Public Records of Broward County, Florida.
3. Both filings of the 2006 lawsuit and the recording of the Lis Pendens are a matter of public record.
4. Paragraph five (5) of the 2006 complaint accelerated the Note and Mortgage.
5. During the course of litigation, Normura filed two (2) Motions for Summary Judgment and two (2) Affidavits in Support of the Motions wherein they confirmed the acceleration of the Note and Mortgage and demanded the full balance due.
6. On April 30, 2008, this Court through the Honorable Patti Englander Henning entered a Final Judgment for Defendant, Alex M. Dueno.
7. That as a result of the filing of the 2006 lawsuit wherein the Note and Mortgage were accelerated and the filing of the two (2) Affidavits confirming same, Nornura placed these documents in the public record.
8. The Court further finds as a matter of law that when a lender elects to accelerate payment on a Note and Mortgage, the lender accelerates the maturity of same. Casino Espanol de la Havana, Inc. v. Bussel, 566 So. 2d 1313, 1314 (Fla. 3d DCA 1990). Thus, the Note and Mortgage sued upon were accelerated and the debt matured on December 27, 2006 by the ming of 2006 lawsuit and recording of the Lis Pendens, both of which are in the public records.
9. The action filed herein occurred on December 20, 2012 more than five (5) years from the date of the maturity of the Note and Mortgage, which date is easily ascertainable from the public records.
10. Five years have lapsed since the date of maturity. Therefore, pursuant to Florida Statute 95.281, the language of which is clear and unambiguous, the Mortgage and Note have terminated.

It is here by ORDERED and ADJUDGED

1. That the Mortgage sued upon herein under CFN#105765637 and 0.R. Book 41416, page 1943, and recorded on 02/07/06 in the Public Records of Broward County, Florida is hereby declared to be void and unenforceable, and the fixed/adjustable rate Note sued upon herein wherein the Defendant Alex Manuel Dueno agreed to pay Peoples Choice Home Loan, Inc. the sum of $388,800.00 on January 10, 2006 is hereby cancelled and declared to be nun and void and the lien on the following described property:

Lot 46 Village 7 Towngate being more particularly described as follows: A portion of Parcel “B” Towngate according to the plat thereof as recorded in Plat Book 156 at Page 11 of the public records of Btoward County, Florida, being more particularly described as follows: Commencing at the SW comer of Parcel “E” of said plat of Towngate said pint behind the arc of a curve at which a radial line bears South 810 38’51” East (bearing based on the record plat); thence southerly along the arc of a curve to the right, (this and the next described course being on the easterly right of way line of NW 155th Avenue)having a radius of 880.00 feet and a center angle of 260 03’53” for 400.32 feet to a point of tangency; thence South 340 25’02” West for 346.21 feet; thence South 58000’00” East fir 336.33 feet to a point of curvature; thence easterly along the arc of a curve to the left, having a radius of 415.00 feet and a central angle of 58o 00’00” for 420.10 feet to a point of tangency; thence North 640 East for 579.49 feet to a point of curvature; thence easterly, southeasterly and southerly along the arc of a curve to the right, having a radius of 70.00 feet and a central angle of 88o 33’51” for 108.20 feet to a point of tangency; thence South 27’09” East for 40.41 feet to a Point of Beginning; thence North 620 33’51” East for 130.00 feet thence South 270 26’09” East for 50.00 feet thence South 62o 33’51” West for 130.00 feet; thence North 270 26’09” West for 50.00 feet to the Point of Beginning.

a/k/a 675 N.W. l5lst Avenue, Pembroke Pines, Florida 33028 by virtue of the above described Note and Mortgage is hereby declared to be terminated, extinguished, void, and of no affect and the Note set forth above is hereby declared to be cancelled, void and of no affect and it is further

ORDERED and ADJUDGED

2. That the Defendant, ALEX M. DUENO is hereby entitled to a Judgment against the Plaintiff VPH NPL JKC 57 TRUST on both the Complaint filed by the Plaintiff herein and the Counterclaim filed by the Defendant herein to quiet title and the Plaintiff shall go hence without day. The Court reserves jurisdiction on the issue of entitlement and reasonableness of attorneys’ fees.

DONE AND OREDERED in Chambers, Fort Lauderdale, Broward County this 22^nd day of January, 2014.

Signed
JUDGE JOEL T LAZARUS

Copies furnished to:
Nicole R. Moskowitz, Esq.. – nlglaw@yahoo.com
Ira Swtt Silverstein, Esq. – ira@isslawyer.com