in the district court of appeal armando … the district court of appeal of the state of florida...
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IN THE DISTRICT COURT OF APPEAL OF THE STATEOF FLORIDA
FOURTH DISTRICT
ARMANDO RIVAS,
Plaintiff,/ APPELLANT Vs.
THE BANK OF NEW YORK MELLON, ET AL.,
Defendants./ APPELLEE
CASE NO.: 4Dl 7-2704 LTB:502012CA010633XXXXMB
NOTICE OF APPEAL TO THE FLORIDA SUPREME COURT.OR ALTERNATIVELY ,NOTICE TO INVOKE DISCRETIONARY JURISDICTION OF
THE FLORIDA SUPREME COURT.
Now comes Appellant, ARMANDO RIV AS, ("RIV AS" or "APPELLANT"), by and
through the undersigned counsel, and hereby gives this court it's NOTICE OF APPEAL ON
IT'S DECISIONS DATED NOVEMBER 2,2017 TO THE FLORIDA SUPREME COURT
IN THE ABOVE CONSOLIDATED CASES. and states factual statements as follows,
1. DECISION DENYING EMERGENCY MOTION TO SEEK STAY PENDING
APPEAL IS HEREBY APPEALED.
2. See attached, non final orders as exhibit A
DA TED: This 2No day of NOVEMBER, 2017
Page 1of3
Respectfully submitted,
IS/ ARMANDO RIV AS Armando Rivas 6568 Cobia Circle Boynton Beach, Florida 33437 [email protected] Direct Line: 561-734-9200 Direct Fax: 561-244-8875
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been served via
e-mail or U.S. Mail this 2N° day of november, 2017, on the following:
AKERMAN LLP ADAM G SCHWARTZ 777 SOUTH FLAGLER DRIVE SUITE 1100,WESTTOWER WEST PALM BEACG, FL 33401-6161 [email protected]
WILLIAM P HELLER LAS OLAS CENTRE II 350 EAST LAS OLAS BLVD.SUITE 1600 FORT LAUDERDALE, FLORIDA 33301 [email protected] [email protected]
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/s/ ARMANDO RIVAS
Armando Rivas
EXHIB TA
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT, 1525 PALM BEACH LAKES BLVD., WEST PALM BEACH, FL 33401
November 02, 2017
CASE NO.: 4D17-2704 L.T. No.: 502012CA010633XXXXMB
ARMANDO RIVAS v. BANK OF NEW YORK MELLON
Appellant I Petitioner(s) Appellee I Respondent(s)
BY ORDER OF THE COURT:
ORDERED that appellant's November 2, 2017 request for emergency treatment is denied; further,
ORDERED that appellant's November 1, 2017 second revised emergency motion to stay pending appeal is denied. This court notes that this is the third almost identical "emergency motion" and request for emergency treatment filed in this court. The appellant is reminded that an "emergency" is a matter of extreme urgency that requires IMMEDIATE action by this Court in order to avoid imminent, irreparable, and material harm. The appellant is cautioned that further frivolous filings of "emergency motions" may subject the appeal to dismissal or the court in its discretion may impose other sanctions. See USAA Gas. Ins. Co. v. Pembroke Pines MRI, Inc. 24 So. 3d 588, 589 (Fla. 4th DCA 2009) ("Pleadings filed as emergencies disrupt court procedures and interrupt work on cases that were already going. Consequently, an attorney who seeks 'emergency' review immediately loses credibility if this court discovers there is no true emergency.").
Served:
cc: William P. Heller Armando A. Rivas
Nancy M. Wallace Clerk Palm Beach
kh
LONN WEISSBLUM, Clerk Fourth District Court of Appeal
Adam Grant Schwartz
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
~- I r1 I F~URTHDISTRICT [/Jcrmrub Ndalfles cEwS'.
Appellant(s), Case No.: ~bfJ..f/YD'/
-tfe&Jof ~'fiA.?lld~n/"f/qj Appellee(s).
Date of the event that constitutes the basis for requesting emergency treatment, i.e., the deadline:
If a stay i sought, please indicate whether there was an application for relief in the lower tribunal and the date and outcome of any ruling on such motion:
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I hereby certify that this request for emergency treatment is made in good faith, and I understand that pursuant t · nistrative Order 2014-1, a party or attorney who requests emergency tre ent thout an · tively reasonable basis for doing so may be sanctio a.
Signature:
Printed Name:
Address: b -a ___ ~(::'!:'L.::.i._~~-~ftm dJ:mc.£1 /?C ~1~ 5 61- ~60: -(g~l!~Z'> ___ _
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document has been furnished to
/lk s~4JQr~.[ /luamey ~!Jrll~. ------by EWa; I on
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IN THE STA TE OF FLORIDA FOURTH DISTRICT PALM BEACH COUNTY.
ARMANDO ADAMES RIV AS,ET AL.,
Plaintiff I Appellant,
VS.
THE BANK OF NEW YORK MELLON,ET AL.
Defendant I APPELLEE.
APPELLATE :4Dl 7-2704 LTB:Case No.: 2012CA010633XXXMB
APPELLANT'S SECOND REVISED EMERGENCY MOTION TO STAY PENDING APPEAL
Comes now The Appellant Armando Rivas and respectfully moves this Honorable Appellate
Court for a stay of proceedings in this action. including a stay and cancellation of the sale
scheduled for November 27 . 2017. pending the resolution of the appeal in the Fourth District
Court of Appeal. In support of this Motion, Defendants states as follows:
A final judgment was entered on August 25TH , 2017. An appeal was filed on August
25,2017 in Fourth DCA case number 4D 17-2704. The appeal involves LACK OF STANDING
AND WRONGFUL FORECLOSURE THE APPELLANT HAS DOZENS OF DISTRICT
COURT CASES FROM THE 4DCA ON ALL THE ISSUES INVOLVED THAT WILL
REQUIRE REVERSAL BY LAW this case is similar and on point with so many case law from
this court including the latest "JUSTIN FRlEDLE V. THE BANK OF NEW YORK MELLON
4D 15-1750 The homeowner now moves for a stay pending resolution of the appeal.
A trial court has discretion in deciding whether to grant a stay or not. In deciding, courts
can look to the appellate rules to determine if a stay is appropriate. A trial court can grant a stay
under Florida Rule of Appellate Procedure 9.310 for the purpose of preserving the status quo
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during an appellate proceeding. See Hirsch v. Hirsch, 309 So. 2d 47 (Fla. 3d DCA 1975); Fla. R.
App. R. 9.31 O(a) (courts have discretion in deciding whether to grant a stay pending appellate
review). Factors to be considered include the moving party's likelihood of success on appeal and
the likelihood of harm should a stay not be granted. State ex rel. Price v. McCord, 380 So. 2d
I 037 (Fla. 1980); Perez v. Perez, 769 So. 2d 389, n. 4 (Fla. 3d DCA 1999); Sunbeam Television
v. Clear Channel Metroplex, Inc., Case No. 3D 12-21423 (Fla. 3d DCA 2012). ·
Argument goes hear.
To weight the harm to Mr. Rivas should the stay not be granted, there will be little harm
to the Appellee I DEFENDANT. The property is fully secured at this point so there is no risk of
losing equity. the debt is now secured up to $840,000.00. and the Appellant is willing to post a
Bond for an additional $1,000.00 dollars if required and ordered by the court as further good
faith. Further, the APPELLANT is likely to succeed based on the recent Florida Supreme Court
decision in Bartram v U.S. Bank National Association, Case No. SC14-1265, (Fla. November 3,
2016), reh 'g pending, extended Singleton v. Greymar Associates, 882 2d 1004 (Fla. 2014) to
provide the framework on how courts should treat statute of limitations regarding mortgage
foreclosures. The Bartram court, in answering the certified question, held that an earlier
dismissal is a revocation of acceleration and that only post dismissal defaults can be used to
foreclose in a future case, a lender is "not precluded by the statute of limitations from filing a
subsequent foreclosure action based on payment defaults occurring subsequent to the dismissal
4 the first j(Jreclosure action, as long as the alleged subsequent default occurred within five
years of the subsequent foreclosure action. When a mortgage foreclosure action is involuntarily
dismissed pursuant to Rule l.420(b), either with or without prejudice, the effect of the
involuntary dismissal is revocation of the acceleration, which then reinstates the mortgagor's
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right to continue to make payments on the note and the right of the mortgagee, to seek
acceleration and foreclosure based on the mortgagor's subsequent defaults." Bartram, at 3
(emphasis added). Even the bank in Bartram acknowledged that only post-dismissal defaults
could trigger a new default to foreclose in a subsequent proceeding:
The Bank acknowledged, however, that it could not seek to foreclose the Mortgage based on Bartram's defaults prior to the first foreclosure action, but could seek foreclosure based on defaults occurring subsequent to the dismissal of the first.foreclosure action.
Id. at 6 (emphasis added). In explaining its conclusion the Florida Supreme Court again made
mention of the requirement that defaults be post-dismissal to foreclose, "it is entirely consistent
with, and follows from, our reasoning in Singleton that each subsequent de.fault accruing after
the dismissal <~lan earlier ji.1redosure action creates a new cause of action, regardless of whether
that dismissal was entered with or without prejudice." Bartram at 11-12 (emphasis added). Just
in case the Florida Supreme Court was not clear enough it went on to apply the post-dismissal
language to the Bartram case specifically by explaining:
[I]f, in the month after the dismissal of the foreclosure action, Bartram began to make monthly payments on the note, the Bank could not have subsequently accelerated the entire note until there were future defaults. Once there were future defaults, however, the Bank had the right to file a subsequent foreclosure actionand to seek acceleration of all sums due under the note-so long as the foreclosure action was based on a subsequent default, and the statute of limitations had not run on that particular default.
Bartram. at 13. Therefore, the Florida Supreme Court has made it clear that pre-dismissal
defaults should not be used to default a homeowner in a subsequent proceeding.
***Defendant also requests for this court to respectfully issue an opinion on its order as this
order is without any opinion needed for the supreme court to take Jurisdiction over any appeals
and as is required by law. ***
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WHEREFORE, given that Appellant has shown a high likelihood of success on appeal
and that Appellant will suffer irremediable harm if the foreclosure auction is allowed to proceed
on NOVEMBER 27,20 I 7. as opposed to the lack of harm the Appellee will suffer, Appellant
PRAYS and respectfully moves the Court to stay the case while the appeal is pending as the
Appellee in conspiracy with the clerk have also maliciously delayed the docket to be sent over to
this honorable of court.
CERTIFICATE OF SERVICE
electronic mail this November 1, 2017 to the attache
SERVICE LIST
Electronically served to all parties of interests this 11/01/2017
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EXHIBITA
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT
JUSTIN FRIEDLE and SANDRA FRIEDLE, Appellants,
V.
THE BANK OF NEW YORK MELLON, f/k/a THE BANK OF NEW YORK, as successor-in-interest to JPMORGAN CHASE BANK, N.A., as trustee for STRUCTURED ASSET MORTGAGE INVESTMENTS II INC., BEAR
STEARNS ALT-A TRUST, MORTGAGE PASSTHROUGH CERTIFICATES, SERIES 2005-10,
Appellee.
No. 4015-1750
[September 27, 20171
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Kathleen D. Ireland, Judge; L.T. Case No. CACE12-32115.
Thomas Erskine Ice of Ice Appellate, Royal Palm Beach, for appellants.
William L. Grimsley and N. Mark New, II of McGlinchey Stafford, Jacksonville, for appellee.
William P. Keller of Akerman LLP, Fort Lauderdale, and Nancy M. Wallace of Akerman LLP, Tallahassee, for Amicus Curiae Mortgage Bankers Association.
ON MOTION FOR REHEARING
WARNER, J.
We grant the motions for rehearing and clarification filed by appellee and amicus, withdraw the opinion, and substitute the following opinion in its place.
Appellants challenge a final judgment of foreclosure, contending that the Bank failed to prove standing. Because the appellee did not prove that
the Bank had possession of the note and was thus a holder at the time of the filing of the complaint, we reverse.
The standard of review in determining whether a party has standing to bring an action is de novo. Boyd v. Wells Fargo Bank, N.A., 143 So. 3d 1128, 1129 (Fla. 4th DCA 2014). To prove standing in a mortgage foreclosure case, the plaintiff must prove its status as a holder of the note at the time of the filing of the complaint as well as at trial. See Rigby v. Wells Fargo Bank, N.A., 84 So. 3d 1195 (Fla. 4th DCA 2012). In this case, the foreclosing bank's witness could not testify that the Bank had possession of the note prior to filing the complaint. The Bank conceded that it presented no testimony that its present servicer or its prior servicer had possession of the note at the inception of the foreclosure action.
At trial, the Bank attempted to prove possession of the note through a Pooling and Service Agreement ("PSA"). That document purports to show the transfer of the mortgage loan to the Bank as trustee. Appellant objected to the admission of this evidence, which the court allowed on the ground that it was self-authenticating under section 90.902, Florida Statutes (2016). While it was certified by the Securities and Exchange Commission ("SEC") as being filed with that agency, and thus was selfauthenticating, there is a difference between authentication and admissibility. Charles Ehrhardt explains the difference:
Documents must be authenticated before they are admissible evidence .... Even after a document is authenticated, it will not be admitted if another exclusionary rule is applicable. For example, when a document is hearsay, it is inadmissible even if it has been properly authenticated.
Charles W. Ehrhardt, Florida Evidence§ 902.1 (2017 ed.). Here, the PSA purportedly establishes a trust of pooled mortgages, but this particular mortgage was not referenced in the documents filed with the SEC. Appellant objected that the document was hearsay, as none of the exceptions to the hearsay rule were established. The Bank did not present sufficient evidence through its witness to admit this unsigned document as its business record. While the witness testified that a mortgage loan schedule, which listed the subject mortgage, was part of the Bank's business records, the mortgage loan schedule itself does not purport to show that the actual loan was physically transferred. And it is clear from the testimony that the witness had no knowledge of the workings of the PSA or MLS, nor did any other document or testimony show that the note was transferred to the Bank in accordance with the terms of the PSA.
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Therefore, the evidence in this case does not establish that this mortgage note was within the possession of the Bank as Trustee at the time suit was filed. I
In its answer brief, the Bank also relies on Ortiz v. PNC Bank, National Ass'n, 188 So. 3d 923 (Fla. 4th DCA 2016), to support the court's rulings under a tipsy coachman analysis. In Ortiz, we created a presumption of standing if the note attached to the complaint was the same as the note introduced at trial. We said:
[I]f the Bank later files with the court the original note in the same condition as the copy attached to the complaint, then we agree that the combination of such evidence is sufficient to establish that the Bank had actual possession of the note at the time the complaint was filed and, therefore, had standing to bring the foreclosure action, absent any testimony or evidence to the contrary.
Id. at 925 (emphasis added). Here, the note attached to the complaint was not in the same condition as the original note introduced at trial, as pointed out by the appellants in their reply brief. Although the differences may seem minor, Ortiz infers possession at the time of filing suit where the copy attached to the complaint and the original are the same, as the copy must have been made from the original note at the time that the complaint was filed, without evidence to the contrary. Where the copy differs from the original, the copy could have been made at a significantly earlier time and does not carry the same inference of possession at the filing of the complaint. In this case, as Ortiz had not been decided at the time of the trial, no effort was made to explain the discrepancies in the condition of the note attached to the complaint or the original introduced into evidence. Thus, reliance on Ortiz under a tipsy coachman analysis is not appropriate on the record made in this case. Although appellate courts generally apply the law in effect at the time of the appellate court's decision, Florida East Coast Railway Co. v. Rouse, 194 So. 2d 260, 262 (Fla. 1966), the record must be sufficiently developed to support an alternative theory for affirmance. See State Farm Fire and Casualty Co v. Levine, 837 So. 2d 363
1 We have held in past cases that the PSA together with a mortgage loan schedule are sufficient to prove standing, but in those cases the witness offering the evidence appears to have been able to testify to the relationship of the various documents and their workings, or that the documents were admitted into evidence without objection. See, e.g., Boulous v. U.S. Bank Nat'[ Ass'n., 210 So. 3d 691 (Fla. 4th DCA 2016).
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(Fla. 2002) (ruling that the court could not affirm a decision based on an alternative legal theory where the alternate ground had not been developed in the record, stating "The key to applying the tipsy coachman doctrine, permitting a reviewing court to affirm a decision from a lower tribunal that reaches the right result for the wrong reasons, is that the record before the trial court must support the alternative theory or principle oflaw.").
Because the Bank failed to prove its standing at the filing of suit, the court erred in entering the final judgment of foreclosure. We reverse and remand for vacation of the final judgment and entry of an involuntary dismissal of the complaint.
TAYLOR and LEVINE, JJ., concur.
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT
MIGUEL TILUS, ALTA TILUS, ROSE A. JOASEUS and KESNER JOASEUS, Appellants,
v.
AS MICHAi LLC, Appellee.
No. 4013-3616
[March 11, 2015]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Kenneth Stern, Senior Judge; L.T. Case No. 5020 l 2CAO l 6433XXXXMB.
Siam J. Joseph, Greenacres, for appellants.
J. Andrew Baldwin and Gabriel Pinilla of The Solomon Law Group, P.A., Tampa, for appellee.
PER CURIAM.
The defendants appeal a final judgment of foreclosure entered after the trial court granted the plaintiffs motion for summary judgment. We reverse because a genuine issue of material fact remains as to whether the plaintiff had standing at the inception of the lawsuit.
The standard of review of an order granting summary judgment is de novo. Fla. Atl. Univ. Bd. of Trs. v. Lindsey, 50 So. 3d 1205, 1206 (Fla. 4th DCA 2010).
"The party seeking foreclosure must present evidence that it owns and holds the note and mortgage in question in order to proceed with a foreclosure action." Lizio v. McCullom, 36 So. 3d 927, 929 (Fla. 4th DCA 2010). The plaintiff must prove that it had standing to foreclose at the time the lawsuit was filed. McLean v. JP Morgan Chase Bank Nat'l Ass'n, 79 So. 3d 170, 173 (Fla. 4th DCA 2012).
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Reversed and Remanded.
GROSS, TAYLOR and LEVINE, JJ., concur.
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Not final until disposition of timely filed motion for rehearing.
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TERRY A. KELLY AND LISA LOVINGOOD KELLY,
Appellants,
v.
BANK OF NEW YORK MELLON, FKA THE BANK OF NEW YORK AS TRUSTEE FOR CWALT INC., ALTERNATIVE LOAN TRUST 2007-25 MORTGAGE PASS THROUGH, CERTIFICATE SERIES 2007-25,
Appellee. I ------··-·-······-·-
Opinion filed July 14, 2015.
IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
CASE NO. 1013-2778
An appeal from the Circuit Court for Duval County. Aaron K. Bowden, Judge.
Lisa Lovingood Kelly, prose, for Appellants.
Nancy M. Wallace of Akerman, LLP, Tallahassee, William P. Heller of Akerman, LLP, Fort Lauderdale, and Joseph S. Troendle of Akerman, LLP, Jacksonville, for Appellee.
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complaint. 5'Wl:l~r~ the .plaintiff files. the origina:Lnm~.'.~eisJlli:
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT
MANUEL C. PEREZ and THERESA PEREZ, Appellants,
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE FOR HARBOR VIEW MORTGAGE LOAN TRUST MORTGAGE LOAN PASS
THROUGH CERTIFICATES SERIES 2006-7, Appellee.
No. 4013-4812
[August 19, 2015]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Cynthia G. Imperato, Judge; L.T. Case No. 08-037886 (18).
Bruce Botsford of Bruce Botsford, P.A., Fort Lauderdale, for appellants.
Eve A. Cann of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Fort Lauderdale, for appellee.
LEVINE, J.
A:p,f>eil~f;:::;a:l!>p.eal·,a ~final ·j:udgtnent .. Of ·fclf~~io$J:t~~~~::~~~~:at:]~ e@~':lac~d{~~djng to fQr~lois.e,., w~ :$e.e::~:t,:~;~~g;~ that it ·haci s:tWiClirtg at the time it filed'th~::e~pl~lt flt~~ reverse;
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Not final until disposition of timely filed motion for rehearing.
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EXHIBITB.
IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA
CASE NO.: 502012CA010633XXXXMBAN
THE BANK OF NEW YORK MELLON. t/k/a THE BANK OF NEW YORK, AS TRUSTEE FOR nm CERTlFICATEHOLDERS OF THE CWALT. INC. ALTERNATIVE LOAN TRUST 2006-33CB. MORTGAGE PASS-THROUGH CERTIFICA. TES. SERIES 2006-33CB
Plaintiff. vs. ARMANDO RIVAS, et al.,
Defendants.
ORDER ON BONYM'S1 MOTION TO RESET SAL.E
TllIS MATTER having come before the Court for review on November 1, 2017, upon
BONYM's motion Lo reset sale. Based upon review of that motion, having heard argument of
counsel. and the Court being otherwise folly advised in the premises, it is.
ORDERED /\ND ADJUDGED that:
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I. BONYM's motion to reset sale ise.~.·~-~~p!DENIED.
2. The foreclosure sale as to the above-referenced action is reset to
\J c~~--~-~-·---·-I----· 2017. I
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DONE AND ORDERED in West Palm Beach, Palm Beach County, Florida, this
" t / dnv of __ \\) i:1~ __ , 2017.
Copies furnished to parties on attached Service List:
1 BoNYM means plaintiff The Rank of New York 'vlcllon, as Trustee for CW ALT Mortgage Loan Asset· Backed Ccrtilic.;.alt'~, Series 2006-JJCB.
SERVICE LIST
Adam G. Schwartz, Esq. William P. Heller, Esq. !\kcrman LLP 777 South Flagler Drive Suit~· 1100. West Tower West Palm Beach, Florida 3 340 I T clcphonc: 561 -653-5000 Facsimile: 561-659-6313 Primary E-mail: adam.schwartz@;akcrman.com Secondary E-mail: elisa.waitcs('i~akerman.com Primary E-mail: wi lliam.hel [email protected] Secondary I ~-mai I: l_Qrrni!1c_c_<.;_~)-'~'!11~~1Ji:akew.rn!hl,'l>J1}
l .ourdes Sanchez Barcia, Esq. Jessica Pierce Quiggle, Esq. Robertson, 1\nschutz & Schneid, P.L 6409 Congress A venue, Suite I 00 Boca Raton, Florida 33487 L'im1chqJx1rcia ii'Tasllaw.com 111qi_l~!trn~!IY'' ,c_~i_m
Estates or Boynton Waters West Homeowners' Association, Inc. cio .lohn S. Kennelly, Registered Agent 6849 Cobia Circle Boynton Beach, Florida 3343 7
Mortgage Electronic Registration Systems. Inc .. as nominee for Countrywide Bank, FSB c/o CT Corporation System, R.A. 1200 S. Pinc Island Road Plantation. rtorida 33324
43242778: I
;\rmundo Rivas 6568 Cobia Circle Boynton Beach. Florida 33437 E-Mail: Arivas@:gmfgi.com
Luz Rivas 6568 Cobia Circle Boynton Beach, Florida 33437
Filing# 63591851E-Filed11/01/2017 10:57:45 AM
IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA
CASE NO.: 502012CA010633XXXXMB
THE BANK OF NEW YORK MELLON F/K/ A THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF THE CWALT, INC .• ALTERNATIVE LOAN TRUST 2006-33CB, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-33CB,
Plaintiff, VS.
ARMANDO RIVAS; LUZ C. RIVAS; ANY AND ALL UNKNOWN PARTIES CLAIMING BY, THROUGH, UNDER, AND AGAINST THE HEREIN NAMED INDIVIDUAL DEFENDANT(S) WHO ARE NOT KNOWN TO BE DEAD OR ALIVE, WHETHER SAID UNKNOWN PARTIES MAY CLAIM AN INTEREST AS SPOUSES. HEIRS, DEVISEES, GRANTEES, OR OTHER CLAIMANTS; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS. INC., AS NOMINEE FOR COUNTRYWIDE BANK, FSB; ESTATES OF BOYNTON WATERS WEST HOMEOWNERS' ASSOCIATION, INC.; TENANT.
Defendants.
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NOTICE OF SALE (To be published in the Palm Beach Daily Business Review)
NOTICE IS HEREBY GIVEN pursuant to the Order on BONYM's Motion to Reset
Sale dated November 1, 2017, (Order) entered in Civil Case No. 502012CAOI0633XXXXMB
of the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida, in
which THE BANK OF NEW YORK MELLON F/K/A THE BANK OF NEW YORK, AS
TRUSTEE FOR THE CERTIFICATEHOLDERS OF TllE CWALT. INC .• ALTERNATIVE
P.dge I of 4 42721563; I
LOAN TRUST 2006-33CB, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-
33CB. is Plaintiff; and ARMANDO RIVAS. LUZ C. RIVAS, MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS. INC .. AS NOMINEE FOR COUNTRYWIDE BANK. FSB, and
ESTATES OF BOYNTON WATERS WEST HOMEOWNERS' ASSOCIATION, INC. are
Defendants.
The Clerk of the Court will sell the Property as defined in the Final Judgment of
Foreclosure and as set forth below at a public sale on November 27, 2017, at 10:00 a.m .• to the
"highest bidder," for cash, at the following location for the on-line judicial foreclosure sale, in
accordance with Section 45.031(I0)(2009), Florida Statutes:
www.mypalmbcachclerk.clerkauction.com
The "highest bidder" for purposes of this Notice of Sale, is defined as the party who bids
the largest amount of money to purchase the Property and who completes the sale in a timely
fashion, as hereinafter set out. The one who bids the largest amount of money to purchase the
Property shall be permitted to complete the sale by delivering to the Clerk, via wire transfer, the
balance of such bid, over and above the deposit, by 12:00 p.m. on the next business day after the
sale and clearly indicate the case number for which payment is being made. The following
Property located in Palm Beach County, Florida, is the subject of this Notice of Sale:
LOT 74A, BOYNTON WATERS WEST 1-A, ACCORDING TO THE PLAT THEREOF, RECORDED IN PLAT BOOK 94, PAGE 110, OF THE PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA.
Property address: 6568 Cobia Circle, Boynton Beach, Florida 33437
together with all existing or subsequently erected or affixed buildings, improvements. and
fixtures (Property).
Page 2 of4 42721563; I
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.
To be published in: The Palm Beach Daily Business Review.
42721563~ I
AKERMAN LLP
;:,; Adam _Ci. Schwartz ADAM G. SCHWARTZ Fla. Bar No. 026978 Primary E-Mail: [email protected] Secondary E-Mail: [email protected] 777 South Flagler Drive Suite 1100. West Tower West Palm Beach, Florida 33401-6161 561-671-3618 (ph)/561-659-6313 (fax)
-and-
WILLIAM P. HELLER Fla. Bar No. 987263 Primary E-Mail: [email protected] Secondary E-Mai I: [email protected] Las Olas Centre II 350 East Las Olas Blvd. Suite 1600 Fort Lauderdale, Florida 3330 I 954-759-8945(ph)/954-463-2224 (fax)
Counsef./or BONYM
Pagt 3 ot'4
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been served via e-
mail or U.S. Mail this I st day of November 2017, on the following:
Estates of Boynton Waters West Homeowners' Association, Inc. c/o John S. Kennelly, Registered Agent 6849 Cobia Circle Boynton Beach, Florida 33437
Annando Rivas 6568 Cobia Circle Boynton Beach, Florida 33437 E-Mail: [email protected]
Mortgage Electronic Registration Systems, Inc., as nominee for Countrywide Bank, FSB c/o CT Corporation System, R.A.
Luz Rivas 6568 Cobia Circle Boynton Beach, Florida 33437
1200 S. Pine Island Road Plantation. Florida 33324
/.~/A dam G. Schwartz Adam G. Schwartz
Page 4 of4
42721563.1
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EXHIBIT c.
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DATE: October 26, 2017
TO: ARMONDO RIV AS [email protected]
FROM: Catherine Markisen - Deputy Clerk Circuit Civil Division
RE: Circuit Court Case Number: S02012CA010633 Fourth DCA Case Number: 4017-2704
Attached please find the original Payment Plan application and your check# 1001. Please fill out the attached Payment Plan application:
1. Total balance due today $2,240.00 2. Agree to pay $25.00 today 3. Followed by the first payment {this is the amount you agree to pay every month) 4. Due 30 days from receipt of $25.00 processing fee 5. Until the balance of $2,215.00 is paid in full
Please sign and return with your $25.00 check.
Please forward to: Sharon R. Bock Clerk & Comptroller, to my attention at the following address:
Sincerely,
Sharon R. Bock, Clerk & Comptroller Palm Beach County Post Office Box 3597
West Palm Beach, FL 33402
By: Catherine R. Markisen, as Deputy Clerk
CIRCUIT CIVIL COURT P.O. Box 4667
West Palm Beach, FL 33401
SHARON R. BOCK Clerk & Comptroller Palm Beach County
F·f~·:::_:;p: T ,.- I f;i.•:::.> T c:J~ r-1.ss 1 f_) ... ··:.~:::1.::J .. ·~ 1 l~~
ARMANDO RIVAS
6568 COBRA CIRCLE
BOYNTON BEACH, FL 33437
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ARMANDO RIVAS 6568 COBIA CIRCLE BOYNTON BEACH, FL 33437
MEMO
1001 63-5151670
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SHARON R. BOCK Clerk & Comptroller Palm Beach County
Jk ~nko~t()'f)fel~ ~-ftk~otis Respondent
OFFICE OF THE CLERK AND COMPTROLLER PALM BEACH COUNTY, FLORIDA
:CASE#: 5(:)90/ QC fl~ l b6 ~? ~6 !DIVISION: A Y\'J
PAYMENT PLAN
(Pctitioncr(Respo11de111) is entering into a payment plan .with the Clerk of Court for deferred payment of costs in
the aforementioned civil court case. (Pctilioncr/Rcspond~nt) was found indigenl or allowed by the Court to enter
into a payment plan \111 (date) ~n.~ ,~ '~orQ;. J
(Petitioner/Respondent) agrees lo pay an administrative Fee of S 25.00 to set up a payment plan, which will be
administered by the Clerk of the Circuit Court. The total :balance due today is {0. (inclusive of$25}.
(Petitioner/Respondent) agrees to pay$ ©~today\ followed by a first payment of$ Oc:t:> due on
\\'.lf M 2017, and on the first of each month (or otheridate) thereafter (or$ 0,()() due each month on the
first of the month) until the balance of$ Q, ()() is pa~d in full.
( f>ctitioncr/Rcspondcnt) agrees to pay any additional charges for checks returned unpaid by the bank {F.S. 68.065].
(Pctitioner/Respondcnt)'s failure to make r1aymcnls pur$uant to this collcclion agreement may result ill:
I. The Court may enter a judgment for the unpaid palancc.
2. The defaulled account may be selll to a collecllo? agency and may be charged up to 40%
in additional fees. [F.S. 28.246(6)].
Petitioner/Respondent submits the following in format b :
(a) Name and Address of Employer (j1ru2!2Jicablc):
(b) Work phone number (if apnlicJ!ble): __......,.~~-'-"L.~..-~------r-;;..,r--~-....... ...--:::--:::-:~~-.
( c) llome address: -W!.:::r£..Ul..l--.J..__,.....u.>J.1..3'!\.--3.....::.-LL--"""'<>L,,,,._.~iq..i'--''rl""""'~"""""-¥_.... __ ""'"'.-.......,_
(d) Home phone number: :
(e) Cell phone number: 5_6l:.7J6F~O---; --~=~------_---_--_-__ (t) Email addrm: ____ -------------
(g) Driver's License number, include state if not FL:-~IH~-b._OQ-'>S:f)D 3:0
Date: _____ _ ----------------·-·-----.....,_ ..... _. ______ ··---·-
~MruN ~~
SHARON R. BOCK Clerk & Comptroller Palm Beach County
Circuit Civil
DATE:
TO:
FROM:
RE:
INVOICE
October I0,2Ql7
ARMONl>O .i{JVAS arlvas@dmfgi;com
Catherine Markisen - Deputy Clerk Circuit Civil D,ivlslon
Clrcull Court Case Number: 502012CAOI0633 Fourth DCA Case Number: 4017-2704
A Notice of Appeal was receive~ for filing in the above referenced action on August 25, 2017. Please be advised however, that payment of costs {not filing fees) is due in the amounc of $2,21 S.00 for the Pregaratlon or the Record on Apoettl, required pursuant to F.S. 28.24(2).
A copy of the Index to the Record' on Appeal is included with this invoice.
Please forward your payment of $2.21 S.00 payable to: Sharon R. Bock Clerk & Comptroller, to my attention at th~ following address:
-OR-
Sharon R. Bock. Clerk & Comptroller Palm Beach County Post Office Box 3597
Wesc Palm Beach, FL 33402
You were detennined indigenc pur$uant to the Affidavit of indigent status dated May 10, 2017. J
Therefore, pursuant to f'.S. 57.0&4, although filing fees are waived in Jhe amount of$JOO for thl! appellate court and $100 in the trial court, if you do not prepay the costs (including record on appeal, etc.)j you must enroll in a payment plan to make monthly pnyrncncs with u one-tirne processing charge of S2S.OO (see also F.S. 28.246) A copy of the Paymenl Plan is at\ached. If you choose to use the Payment Plan, please contact our office as soon as possible at 355-6091. Upon receiving the signed plan, we will upload your record on appeal to the Founh District Court of Appeals.
P.O. Box 3597 Please include a copy of this invoice wilh your payment. Wrst Palm Be,1d1, FL 33402
Phon(': %1 ·355-2%6 1'.1x. 561-355-4643
Sincerely,
SHARON R. BOCK Clerk & Comptroller
DATE:
TO:
INVOICE
Oclober I 0, 2017
ARMONDO RIVAS [email protected]
Palm Beach County FROM: Calherine Markisen - Deputy Clerk Circuit Civil Division
Circuit Civil P.O. Box 3597
l'Yt»I Palr1 f:lc•adt FL 33402
f'h•JIH' 5bi ·35.5·2986
Fax 561-355-'1643
www.mypnlmbt\'!chderk.m1n
RE: Circuit Court Case Number: S020J2CA010633 Fourth DCA Case Number: 4017-2704
A Notice of Appeal was received for filing in the above referenced action on August 25, 2017. Please be advised however, that payment of costs (not filing fees) is due in the amount of $2,215.00 for the Preraration of the Record on Appeal, required pursuant to F.S. 28 24(2). A copy of the· Index to the Record on Appeal is included with this invoice.
Please forward your payment of $2,215.00 payable to: Sharon R. Bock Clerk & Comptroller, to my attention at the following address:
-OR-
Sharon R. Bock, Clerk & Comptroller Palm Beach County Post Office Box 3597
West Palm Beach, FL 33402
You were detennined indigent pursuant to the Affidavit of indigent status dated May IO, 2017. Therefore, pursuant to F.S. 57.082, althoughfllingflies are waived in the amount of $300
for the appellate court and S 100 in the trial court, if you do not prepay the costs (including record on appeal, etc.), you must enroll in a payment plan to make monthly p;i; m·:•1!~ 'vith a one·t!llw pnH:essmg charge of$25 00 (sec also F'.S. 28.246) A copy of the Payment Plan is anachcd. If you choose to use the Payment Pian, please contact our office as soon as possible at 355-6091. Upon receiving the signed plan, we will upload your record on appeal to the Fourth District Court of Appeals.
Please include a copy of this invoice with your payment.
Sincei-ely.
SHARON R. BOCK Oerk & Comptroller Palm Beach County
Petitioner v.
Respondent
OFFICE OF THE CLERK AND COMPTROLLER PALM BEACH COUNTY, FLORIDA
CASE#: DIVISION:
PAYMENT PLAN
(Petitioner[R.espondent) is entering into a payment plan_ with the Clerk of Court for deferred payment of costs in
the aforementioned civil court case. (Petitioner/Respondent) was found indigent or allowed by the Court to enter
into a payment plan on (date) -------
(Petitioner/Respondent) agrees to pay an administrative fee of$ 25.00 to set up a payment plan. which will be
administered by the Clerk of the Circuit Court. The total balance due today is$ (inclusive of$25).
(Petitioner/Respondent) agrees to pay$---- today, followed by a first payment of S ____ due on
----2017, and on the first of each month (or other date) thereafter (or $ ____ due each month on the
first of the month) until the balance of$ ____ is paid in full.
(Petitioner/Respondent) agrees to pay any additional charges for checks returned unpaid by the bank [F.S. 68.065).
(Petitioner/Respondent)'s failure to make payments pursuant to this collection agreement may result in:
I. The Court may enter a judgment for the unpaid balance.
2. The defaulted account may be sent to a collection agency and may be charged up to 40%
in additional fees. [F.S. 28.246(6)).
******************************************************************************************
Petitioner/Respondent submits the following information:
(a) Name and Address of Employer (if applicable):-------------------
(b) Work phone number (if applicable):-----------------------(c) Home address: ______________________________ _
(d) Home phone number:
(e) Cell phone number: ----------------------------
(t) Email address:------------------------------
(g) Driver's License nwnber, include state if not FL: --------------------
Under penalties of perjury, I declare that I have read this collection agreement and that the facts stated in it are true. I understand the above terms and conditions of my financial obligations and I agree to comply with this collection agreement. I further understand that I am obligated to notify, in writing, the Clerk & Comptroller of the Circuit Court regarding any change of address or telephone number stated above:
Applicant: Date: _____ _ ---------------------------Signature Print
Deputy Clerk: Date:. ______ _ ---------------------------Signature Print
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT, 1525 PALM BEACH LAKES BLVD., WEST PALM BEACH, FL 33401
November 02, 2017
CASE NO.: 4D17-2704 L.T. No.: 502012CA010633XXXXMB
ARMANDO RIVAS v. BANK OF NEW YORK MELLON
Appellant I Petitioner(s) Appellee I Respondent(s)
BY ORDER OF THE COURT:
ORDERED that appellant's November 2, 2017 request for emergency treatment is denied; further,
ORDERED that appellant's November 1, 2017 second revised emergency motion to stay pending appeal is denied. This court notes that this is the third almost identical "emergency motion" and request for emergency treatment filed in this court. The appellant is reminded that an "emergency" is a matter of extreme urgency that requires IMMEDIATE action by this Court in order to avoid imminent, irreparable, and material harm. The appellant is cautioned that further frivolous filings of "emergency motions" may subject the appeal to dismissal or the court in its discretion may impose other sanctions. See USAA Gas. Ins. Co. v. Pembroke Pines MRI, Inc. 24 So. 3d 588, 589 (Fla. 4th DCA 2009) ("Pleadings filed as emergencies disrupt court procedures and interrupt work on cases that were already going. Consequently, an attorney who seeks 'emergency' review immediately loses credibility if this court discovers there is no true emergency.").
Served:
cc: William P. Heller Armando A. Rivas
Nancy M. Wallace Clerk Palm Beach
kh
LONN WEISSBLUM, Clerk Fourth Dlltrict Court of Appeal
Adam Grant Schwartz
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l hereby certify that the above and foregoing is a true copy of instrument flied in my office.
Lonn Weissblum, CLERK DISTRICT COURT OF APPEAL OF FLO~A, FOU2lH DIS.TRICT
Per p:;,mJ fJ J , Jt D Deputy Clerk
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FOURTH DISTRICT COURT OF APPEAL 1525 PALM BEACH LAKES BL VD.
WEST PALM BEACH, FLORIDA 33401 (561) 242-2000
Date: November 2. 2017
Case Name: Armando Rivas v. Bank of New York Mellon
Case No: 4D 17 4-2704 Trial Court No.: 502012CA010633XXXXMB
Trial Court Judge: Joseph George Marx
Dear Mr. Tomasino:
Attached is a certified copy of a Notice to Invoke Discretionary Jurisdiction/Notice of Appeal to the Supreme Court of Florida pursuant to Rule 9.120, Florida Rules of Appellate Procedure. Attached also is this Court's opinion or decision relevant to this case.
D The filing fee prescribed by Section 25.241(3), Florida Statutes, was received by this court and will be mailed.
D The filing fee prescribed by Section 25.241(3), Florida Statutes, was not received by this court.
[{] Petitioner/ Appellant has been previously determined insolvent by the circuit court or our court.
D Petitioner/Appellant has already filed, and this court has granted, petitioner/appellant's Motion to proceed without payment of costs in this case.
D Petitioner/Appellant filed Notice via EDCA and the fee has not been received by this court.
No filing fee is required in the underlying case in this court because it was:
D A Summary Appeal (Rule 9.141) D From the Unemployment Appeals Commission D A Habeas Corpus Proceeding D A Juvenile Case D Other-____________________ _
If there are any questions regarding this matter, please do not hesitate to contact this Office.
Sincerely,
LONN WEISSBLUM Clerk of the Court
By: /s/ Lynn Lewis Lynn Lewis
Deputy Clerk
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