Motion to Set Aside Summary Judgment
IN THE CIRCUIT COURT OF THE
17TH JUDICIAL CIRCUIT IN AND
FOR BROWARD COUNTY, FLORIDA
FEDERAL NATIONAL MORTGAGE ASSOCIATION, CASE NO: CACE 11-02xxxx (11)
A.C. and D.C., et. al.
DEFENDANT’S, D.C., MOTION TO SET ASIDE FINAL SUMMARY JUDGMENT OF FORECLOSURE DATED SEPTEMBER 18, 2012 AND MOTION TO CANCEL
SALE DATE OF JANUARY 16, 2013
Defendant, D.C., files this Motion Set Aside Final Summary Judgment of Foreclosure dated September 18, 2012 and Motion to Cancel Sale Date of January 16, 2013 and as grounds therefore states:
1. This is a mortgage foreclosure action. The Plaintiff scheduled its motion for summary judgment for hearing or September 18, 2012.
2. Defendant, D.C., was intending on seeking a continuance of the hearing in order to file a counterclaim.
3. However, on the day of the hearing counsel for Plaintiff, Russell Hall, offered the Defendant, D.C., a proposal to the effect as follows:
a) If Defendant agreed to the summary judgment, then Plaintiff would agree to an extended sale date of one hundred and twenty (120) days. Plaintiff would agree to a mediation which would occur within sixty (60) days at which time the Plaintiff would offer the Defendant a foreclosure alternative, assuming Defendant provided documents to Plaintiff in a timely manner.
4. After considerable thought and due to the fact that it had been conveyed to Defendant, D.C., that there would be a foreclosure alternative offered (including, a deed-in-lieu of foreclosure), Defendant agreed to forego any defenses to the foreclosure action and to forego bringing her potential counterclaim(s) against the Plaintiff and its servicer, Seterus. Ms. D.C. agreed to the final summary judgment of foreclosure with the understanding that a mediation would occur when a foreclosure alternative would be offered to her.
5. On the date of the scheduled hearing, September 18, 2012, the Court entered the final summary judgment of foreclosure (which was not contested due to the agreement) and also entered an order on a Motion for Mediation (although it states “Defendant’s” Motion for Mediation, it was essentially an agreed ore tenus motion for mediation).
6. Thereafter, Defendant timely produced all requested documents to the servicer, Seterus, so that the servicer could evaluate the foreclosure alternative it would offer the Defendant..
7. The mediation occurred on November 7, 2012. Although the Plaintiff’s representative appeared by telephone as per the order of mediation, no firm foreclosure alternative (including modification or a deed-in-lieu of foreclosure/waiver of deficiency) was offered at the mediation. However, it was Ms. D.C.’s understanding that a modification offer would be forthcoming after the mediation.
8. Frustrated with no response from Plaintiff, undersigned counsel sent an email to attorney Venkata S. Paturi, counsel for Plaintiff, who attended the mediation, asking the status of the promised modification or other foreclosure alternative. On November 26, 2012, attorney Paturi, emailed the undersigned as follows: (A copy of the email is attached as Exhibit “1” to this motion).
Good afternoon, Alan:
Hope you had a nice Thanksgiving. I contacted my client to inquire about the loan modification last week. She responded that due to the holiday weekend, the office has been short staffed. My client has asked me to follow up with her on Wednesday afternoon for the status. I will contact her then, and then will let you know the status. If you have any questions or concerns, please do not hesitate to contact me.
Very truly yours,
Venkata S. Paturi, Esq.
9. On the same date, November 26, 2012, the Plaintiff, through its servicer, Seterus, sent Defendant, D.C., a letter advising that it had received the required financial documentation to review the loss mitigation request but that it had not made a final determination on the request. That letter is attached as Exhibit “2”.
10. Plaintiff, through its servicer, Seterus, has failed to act in good faith with respect to its treatment of Defendant, D.C.. Ms. D.C. agreed to forego her rights, including defenses and potential counterclaims against the Plaintiff in exchange for a foreclosure alternative.
11. Based upon the foregoing, it would be unfair and inequitable to allow the foreclosure sale scheduled for January 16, 2013 to proceed. Rather, the Final Summary Judgment of Foreclosure dated September 18, 2012, should be vacated and Defendant allowed to pursue whatever defenses and counterclaims she might have had. She was induced by the promise of a foreclosure alternative to agree to the summary judgment.
12. Rule 1.540(b)(3) authorizes relief from judgments where there is misrepresentation, fraud, or other misconduct of an adverse party. Here, Plaintiff’s promise of a foreclosure alternative induced Defendant, D.C., to forego her claims and defenses in the foreclosure action.
WHEREFORE Defendant, D.C., respectfully requests that this court enter an order granting this Motion Set Aside Final Summary Judgment of Foreclosure dated September 18, 2012 and Motion to Cancel Sale Date of January 16, 2013.
CERTIFICATE OF SERVICE
IT IS HEREBY CERTIFIED that on December 19, 2012, a true and correct copy of the foregoing was Faxed to: 954-420-5187 and E-Mailed to: Brian L. Rosaler, Esq., at firstname.lastname@example.org and Venkata S. Paturi, Esq. at email@example.com, Law Offices of Popkin & Rosaler, P.A. located at 1701 W. Hillsboro Blvd., Ste.400, Deerfield, Florida 33442.
SACKRIN & TOLCHINSKY, P.A.
Attorney for Defendant(s)
2100 East Hallandale Beach Blvd./Suite 200
Hallandale Beach, FL 33009
Telephone: (954) 458-8655
Facsimile: (954) 455-9649
ALAN D. SACKRIN, ESQ. Florida Bar No. 349070
LARRY TOLCHINSKY, ESQ. Florida Bar No 021997
This is a sample document related to a specific set of facts and circumstances and should not be used or relied upon if any foreclosure, deficiency judgment, short sale or any other real estate matter. We recommend and urge you to consult with an experienced lawyer for professional advice as each case is unique.