INTRODUCTION

This Brief is filed on behalf of Appellant, Cody Diamond, referred to herein

as APPELLANT and Appellee, Bank of America Corporation will be referred to as

APPELLEE.

The Appendix to Appellant’s Brief will be referred to as (App.I) for

pleadings followed by a document number and (App.II) for the transcript of the

hearing followed by a page and line number.

I. STANDARD OF REVIEW

The order granting a motion to vacate a default judgment is reviewed under

a gross abuse of discretion standard. Rivera vs. Southland Painting Corp., 478

So.2d 892 (3d DCA, 1985).

SUMMARY OF THE ARGUMENT

According to Rules 1.500(d) and 1.540(b) of the Florida Rules of Civil

Procedure relief from default and default final judgment may be granted as a result

of mistake, inadvertence, surprise, excusable neglect, newly discovered evidence

which by due diligence could not have been discovered in time to move for a new

trial or rehearing, fraud, misrepresentation, misconduct of an adverse party,

satisfaction, release, reversed vacated or void judgment, or that the judgment is no

longer equitable.

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In order to be successful to set aside a clerk’s default a party must show that: 1)

the failure to file a responsive pleading was the result of excusable neglect 2) the

party has a meritorious defense, and 3) the party has been reasonably diligent in

seeking to vacate the default after it was discovered. Johnson v. Johnson, 845

So.2d 217 (Fla. 2nd DCA 2003); Hunt Exterminating Co., Inc v. Crum, 598 So.2d

113 (Fla. 2nd DCA 1992); Ponderosa, Inc. v. Stephens, 549 So.2d 1162 (Fla. 2nd

DCA 1989); Bland v. Viking Fire Protection Inc., 454 So.2d 763 (Fla 2nd DCA

1984).

Failure of Appellee to satisfy any one of these elements must result in a denial

of motion to set aside default judgment.

The Appellee, Bank of America Corporation has failed to satisfy the

requirements as to excusable neglect, a meritorious defense and acting reasonably

diligent in seeking to vacate the default after it was discovered.

II. Statement of the Case

The Appellant filed a complaint on December 15th, 2010 in the Circuit Court

of the 11th Judicial Circuit in and for Miami-Dade County, Florida. The complaint

alleges, in three counts the facts to support a temporary and permanent injunction

of the filing foreclosure against the Appellant by the Appellee due to lack of

standing, declaratory relief declaring that the Appellee, Bank of America

Corporation has no legal or equitable rights in the Note or Mortgage for purposes

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of foreclosure and that the Appellee has no legal standing to institute or maintain

foreclosure on the property, and wrongful collection by the Appellee of a debt not

owed wherein the Appellee collected TWO THOUSAND, SEVEN HUNDRED

EIGHTY-EIGHT DOLLARS TWENTY SEVEN CENTS ($2,788.27) interest only

monthly payments from August 2007 through November 2010 for the total amount

of ONE HUNDRED NINE THOUSAND, SEVEN HUNDRED FOUR DOLLARS

($109,704.00).

On the same day the Clerk of the Court duly issued a Summons in a Civil

Action which, in part, notified the Appellee that it must, within twenty days after

service of the Summons, file with the Clerk of the Court, and serve upon the

attorney for the Appellant, an Answer to the Complaint.

By the expiration of the twenty-day period specified on the Summons, the

Appellee had not filed a response to the Complaint with the Clerk of this Court,

nor had it served a copy of a response upon the Appellant.

On January 12th, 2011 the Appellant notified the Appellee that it intended to

petition the court for a judgment by default. The Appellant received no response

from the Appellee to this Motion for Clerk’s Default.

On December 15th, 2010 the Appellant filed a Demand for Jury Trial of any

and all issues triable by a jury. The only count that could legally be tried by jury is

Count III, titled Wrongful Collection of a Debt Not Owed. The Appellant is

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therefore required to submit evidence to a jury on as to the unliquidated damages

from the Appellee’s wrongful collection of the amount of ONE HUNDRED NINE

THOUSAND, SEVEN HUNDRED FOUR DOLLARS ($109,704.00).

The Appellee, Bank Of America Corporation filed a Motion to Set Aside

Default Judgment on August 4, 2011 supported by the affidavit of an employee of

Bank of America, NA, non party to this cause of action (App.I, 56).

The Appellant filed a response in opposition supported by affidavit (App.I,

31) on December 7, 2011 prior to the scheduled hearing of December 14, 2011. As

a result the Appellee filed a Notice of Cancellation of the hearing set for December

14, 2011.

On March 2, 2012 the Appellee reset the Motion to Vacate for hearing to

convene on April 30, 2012.

On April 24, 2012 the Appellee filed an Amended Motion To Set Aside

Default Final Judgment and three Supporting Affidavits (App. I, 78).

On April 30, 2012 the Court granted the Motion to Vacate Default Final

Judgment (App. II, P 41, L 11-15).

A timely Notice of Appeal was filed on May 25, 2012 of the non final order

granting the Motion to Vacate Default Final Judgment.

III. Statement of the Facts

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The Appellee was served with the Summons and Complaint of the 17 th of

December, 2010 yet filed no response within twenty days as required by law. On

June 8, 2011 counsel for the Appellee filed a Notice of Appearance.

However, it was not until August 4th, 2011 when a Motion to Dismiss and

Motion to Set Aside Final Judgment.

The Appellee, Bank of America Corporation was served notice of the

motions filed on March 14th, 2011 (see certificate of service in the official court

file) at the corporate address on file with the Florida Department of State, Division

of Corporations as well as the registered agent’s address.

The Appellee, Bank of America Corporation was served a copy, mailed from

the courthouse, of the Default Judgment Court order entered on May 20th, 2011,

BK2710, PG0145.

The Appellee’s first official court record activity did not take place until

June 8, 2011 when the attorney representing the Appellee filed a Notice of

appearance.

Finally, on August 4, 2011, after another 57 days the Appellee filed a

Motion to Dismiss and Motion to Set Aside Default Judgment.

There is a total of 144 days, (4 months, 22 days) from the service of the

Motion for Default Judgment until the Appellee filed its Motion to Set Aside with

no reason or excuse alleged by the Appellee for such a delay.

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There is a total of 77 days, (2 months, 16 days) since the Default Judgment

was served directly from the courthouse on the Appellee, Bank of America

Corporation until the Appellee filed its Motion to Set Aside with no reason or

excuse alleged by the Appellee for such a delay.

Clearly, the Appellee, Bank of America Corporation failed act diligently.

On October 31, 2011, the Appellee’s Motion to Set Aside the Default Final

Judgment was specially set for hearing to convene on December 14, 2011.

On December 7, 2011, the Appellant filed a Memorandum in Opposition to

the Motion to Set Aside and Affidavit In Opposition To The Motion to Set Aside

Default.

On December 12, 2011 the Appellee filed a Cancellation Notice of the

hearing scheduled for December 14, 2011.

The Motion to Set Aside the Default Final Judgment was set to be heard on

April 30, 2012.

The Appellee Amended the Motion To Set Aside the Default Final

Judgment, supported by three new affidavits. The amended pleadings were filed on

April 24, 2012.

The amended affidavits were submitted due to the insufficiency of the

original Supporting Affidavit filed on August 4, 2011. This was admitted by the

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Appellee’s counsel in court at the time of the hearing (App. II, P 32, L 8-16, P 33,

L 6-8 P 35, L 4-16, P 37, L 3-6, L 20-24).

It took a total of 13 months since the Appellee received the Default from the

Court before the Amended Motion and new Supporting Affidavits were filed with

no supporting sworn proof of due diligence. A total of 18 months since the

Appellee was originally served the Summons and Complaint.

When confronted by the Honorable Ellen Sue Venzer as to the extraordinary

length of time to file for the relief, Counsel for the Appellee proffered speculation

and excuses that are not framed in any supporting affidavits or testimony (T-P 34,

L19-24 through P 37, L 38).

The Supporting Affidavits Filed By The AppelleeAffidavit of Andrew Bott Dated August 3, 2011

The Affidavit Of Andrew Bott Support Of Motion To Vacate Default

Judgment, attached to the Bank Of America’s Motion To Set Aside Default Final

Judgment As To Counts I And II And Order Setting Jury Trial For Damages As To

Count III, dated August 3, 2011 (App. I ) fails to support or even reference due

diligence or a meritorious defense.

The affiant is an employee of Bank Of America, N.A., not the Appellee, and

merely discusses the electronic process of accessing court documents that have

been filed and served on the registered agent, CT Corporation.

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The affidavit only discusses the negligent actions of Bank Of America, N.A.

in failing to “route[d]” the matter appropriately (App. I paragraph 6 & 7).

The affidavit is clearly an attempt to prove excusable neglect and offers no

evidence supporting due diligence or a meritorious defense.

The Amended Affidavit of Andrew Bott Support of Motion to Vacate Default Judgment, Dated April 23, 2012

The Amended Affidavit of Andrew Bott, dated April 23, 2012 (App. I, )

adds little information from the affidavit executed by Mr. Bott dated August 3,

2011 referenced above.

However, the amended affidavit does acknowledge that the registered agent

did in fact receive the Default Final Judgment on May 25, 2011. Subsequently, on

June 3, 2011, Karina Buitrago, an employee of a non party forwarded the

complaint to in house counsel for assignment to Florida counsel. (App. I , Para. 9-

11).

Once again there is no supporting evidence or explanation supporting due

diligence in failing to file a reasonable timely, legally sufficient motion for relief

pursuant to Florida Statute of Civil Procedure 1.540 for a period in excess of

eleven months since receipt of the Default Final Judgment.

Furthermore, the amended affidavit fails to establish a reasonable

explanation supporting due diligence from the date of receipt of the Default Final

Judgment to the filing of the original Motion to Vacate which was not filed for

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approximately two and one half months and was conceded by Appellee counsel to

be lacking information for the court to properly dispose of the motion (App. II, P

32, L 8-16, P 33, L 6-8 P 35, L 4-16, P 37, L 3-6, L 20-24).

Affidavit Of J. Warren Wright In Support Of Motion To Vacate Default, Dated April 23, 2012

The Affidavit of J. Warren Wright, dated April 23, 2012 (App. I ) fails to

provide any facts or information with regards to due diligence by the Appellee in

filing the motion for relief or establishing a meritorious defense.

Mr. Wright is an employee of a non party to this cause of action, Bank of

America, N.A. with information limited to December 2010 through September

2011. The affidavit sets forth the procedures which are in place as to the assign of

court pleadings served on the registered agent in furtherance of assigning

responsibility (App. I , Para. 1-7).

Additionally, the affidavit sets forth hearsay information as conclusory

statements of the failure of certain employees in properly executing their

responsibilities as to the “Stewart matter” (App. I , Para. 8-13).

The most revealing statement of the affidavit is paragraph #13, which states

“that there are no records available that reflect what occurred” after Ms. Mutka

failed to forward the case for assignment (App.I , Para.13)

This affidavit is clearly filed to show excusable neglect and although

insufficient to base a finding of excusable neglect by the Appellee, contains no

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evidentiary or supporting information relevant to due diligence and/or a

meritorious defense.

Affidavit Of Ashley Pipes In Support Of Motion To Vacate Default Judgment, Dated April 23, 2012

The Affidavit Of Ashley Pipes In Support Of Motion To Vacate Default

Judgment, dated April 23, 2012 (App. I ) discusses the process of CT Corporation

the registered agent for the Appellee (App. I ,Para. 2).

Ashley Pipes is an employee of CT Corporation and an Assistant Team

Leader. The affidavit proves the Summons and Complaint were served on CT

Corporation on December 17, 2010 and was miscoded. (Para. 6&7).

Additionally, the affidavit supports proof that the default Final Judgment

was received by CT Corporation on May 25, 2011 and subsequently forwarded to

Andrew Bott who is employed by the nonparty Bank of America, N.A. (Para.

7&8).

This information goes to neglect by a third non party to the cause of action,

but has no relevancy in proving due diligence or a meritorious defense.

The Amended Motion to Set Aside The Default Judgment was granted on

April 30, 2012 without any sworn testimony being offered by the Appellee to

prove up due diligence, a meritorious defense and excusable neglect.

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IV. LEGAL ARGUMENT

DUE DILIGENCE

It is well-established that issues of "due diligence" and "reasonable time," in

common with all questions relating to the issue of whether defaults and default

judgments should stand, must be evaluated in terms of the particular facts of the

case under consideration. See Techvend, Inc. v. Phoenix Network, Inc.   564 So.2d

1145 ( Fla. 3d DCA 1991); Rosenblatt v. Rosenblatt, 528 So.2d 74, 76 (Fla. 4th

DCA 1988); B.C. Builders Supply Co. v. Maldonado,   405 So.2d 1345 (Fla. 3d

DCA 1981).

In World’s Finest Products, Inc. v Carpenter, 564 So.2d 626 (Fla. 4DCA

1990), Carpenter failed to exercise due diligence in seeking relief. Forty-eight days

passed before Carpenter took any action after learning of the default. Moreover, he

offered no reasonable explanation for the forty-eight day delay. See Fischer v.

Barnett Bank of South Florida, N.A., 511 So.2d 1087 (Fla. 3d DCA

1987); Bayview Towers Condo. Assoc., Inc. v. Schweitzer,   475 So.2d 982 (Fla. 3d

DCA 1985) and Westinghouse Credit Corp. v. Steve Lake Masonry, Inc.,356 So.2d

1329 (Fla. 4th DCA 1978).

Additionally, in the Carpenter case the Court stated:

“the Defendants have failed to establish, as required by Florida law, that they acted with due diligence in seeking to set aside the final declaratory

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decree. The Defendants obtained the final judgment against them shortly after they returned to Venezuela from Europe; yet it inexplicably took them five weeks thereafter to contact their counsel in Miami to look into the matter. Although counsel promptly acted upon being so contacted and immediately filed a motion to vacate the final declaratory decree herein, the prior five-week delay by the Defendants was entirely inexcusable. See Bayview Tower Condominium Ass'n v. Schweizer, 475 So.2d 982, 983 (Fla. 3d DCA 1985); Westinghouse Credit Corp. v. Steven Lake Masonry, Inc., 356 So.2d 1329, 1330 (Fla. 4th DCA 1978); Cal-U-Sonic v. Metric Sys. Corp., 330 So.2d 63, 64 (Fla. 1st DCA), cert. denied, 339 So.2d 1167 (Fla. 1976).”

The Third District Court of Appeals stated:

“the Defendant herein waited a month after its insurance company was informed of the default herein before moving below to vacate the said default. This delay showed a lack of due diligence in seeking relief after learning of the default and was fatal to the subject motion to vacate filed below. See B.C. Builders Supply Co. v. Maldonado, 405 So.2d 1345, 1347 (Fla. 3d DCA 1981).”

The issue and record before this Honorable Court is extremely similar to

Lazcar International. Inc. v. Caraballo, 957. So.2d 1191 (Fla. 3d DCA 2007).

Caraballo waited at least six weeks after learning of the entry of the

judgment before moving for relief through a sworn Motion to Vacate Default and

Default Final Judgment.

In Lazcar International, Inc. infra., the Plaintiff, appealed, asserting the trial

court erred as a matter of law in vacating the Default Final Judgment. The Third

District reversed the trial court’s order on the basis that absent competent

substantial evidence of some exceptional circumstance explaining the delay...a six

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week delay in filing a motion to vacate a default after receiving notice constitutes a

lack of due diligence as a matter of law.

The Court stated, “It is also well settled in this state that evidence advanced

to support the due diligence prong of a motion to vacate a default must be sworn.

Church of Christ Written in Heaven v. Church of Christ Written in Heaven, 947

So. 2d 557, 559 (Fla. 3d DCA 2006) (pointing out that a motion to vacate default

must be supported by sworn statements or affidavits)”.

In the Lazcar International, Inc., infra., the only explanation offered to

excuse the six-week delay found in the record is in the form of unsworn

representations of counsel made at the hearing on the motion.

Unsworn argument of counsel is insufficient to satisfy the due diligence

element of a motion to vacate a default final judgment. Polygram Latino U.S. v.

Torres, 751 So. 2d 90 (Fla. 3d DCA 1999)(ruling that the trial court abused its

discretion in granting Defendant’s motion to vacate default judgment “[s]ince the

motion seeking relief consisted of merely unsworn to representations of counsel,

unsupported by proof showing any excusable neglect, and the only evidence

before the court actually refuted these representations”); see also Daughtrey v.

Daughtrey, 944 So. 2d 1145, 1148 (Fla. 2d DCA 2006)(“[a]s this court has

previously observed, unsworn representations by counsel about factual matters do

not have any evidentiary weight in the absence of a stipulation”); State v. Bauman,

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425 So. 2d 32, 35 n.3 (Fla. 4th DCA 1982) (“We say again that facts are not

established for consideration by the trial court or by appellate review when

attorneys make representations in their arguments before the trial court. Facts are

established by testimony, affidavits and stipulations. It is of no moment in

establishing facts that attorneys are ‘officers of the court’ as we so often read when

an unsworn representation is made.”).

The Third Court of Appeals held in Lazcar International. Inc. v. Caraballo,

957 So.2d 1191 (Fla. 3d DCA 2007):

Absent competent substantial evidence of some exceptional circumstance explaining the delay, Westinghouse Credit Corp., 356 So. 2d at 1330, a six-week delay in filing a motion to vacate a default after receiving notice constitutes a lack of due diligence as a matter of law. See, e.g., Trinka v. Struna, 913 So. 2d 626, 628 (Fla. 4th DCA 2005)(finding “[t]hat Appellee’s attorney ignored his duty to act with all due diligence” where “more than a month passed between the discovery of the default and the entry of the final judgment without any attempt to vacate the default”); Fischer v. Barnett Bank of S. Fla., N.A., 511 So. 2d 1087, 1088 (Fla. 3d DCA 1987)(finding a “five week delay by the Appellees [in filing motion to vacate] entirely inexcusable”); Bayview Tower Condo. Ass’n v. Schweizer, 475 So. 2d 982, 983 (Fla. 3d DCA 1985)(finding a delay of one month “showed a lack of due diligence in seeking relief after learning of the default and was fatal to the subject motion to vacate filed below”); see also Allstate Floridian Ins. Co. v. Ronco Inventions, LLC, 890 So. 2d 300, 304 (Fla. 2d DCA 2004)(concluding “that the seven-week delay here was unreasonable”). Of course, here, there is no competent evidence of any circumstance, exceptional or not, explaining the delay. However, even if the unsworn argument of defense counsel at the hearing on the motion to vacate is considered, the order under review still fails.

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Unquestionably, the Appellee, Bank of America Corporation’s failure to act

in an effective and sufficient manner, with due diligence, as well as having filed no

explanation at all as to why it failed to act after being served the Motion for

Default and/or the failure to act within a total of 77 days, (2 months, 16 days)

since the Default Judgment was served directly from the courthouse on the

Appellee, Bank of America Corporation until the Appellee filed its Motion to Set

Aside requires the Court to deny the Motion to Set Aside Default Judgment.

Even more disturbing is the failure to establish why, after realizing the

insufficiency of the initial motion to set aside, it took until April 24, 2012, with the

hearing only six days away set to amend the pleadings and supporting affidavits.

EXCUSABLE NEGLECT

Affidavits In Support of Motion to Vacate Are Legally Insufficient

"Excusable neglect must be proven by sworn statements or affidavits.

Unsworn assertions of excusable neglect are insufficient." Geer v. Jacobsen, 880

So.2d 717, 720 (Fla. 2d DCA 2004); see also Steinhardt v. Intercondominium

Group, Inc.,   771 So.2d 614, 614 (Fla. 4th DCA 2000).

Legally sufficient affidavits in support of the motion to vacate must show

excusable neglect by the Appellee in failing to respond to the complaint. The

failure to submit a legally sufficient affidavit is fatal to the motion to vacate. Sherer

15

v. The Club, Inc., 328 So.2d 532 (Fla. 3d DCA), cert. dismissed, 334 So.2d 604

(Fla. 1976).

The Appellee, Bank of America Corporation relies solely on the Affidavits

of Andrew Bott, J. Warren Wright and Ashley Pipes in Support of the Amended

Motion to Vacate Default Judgment, which is legally insufficient.

As stated in the affidavits in question, each and every affidavit is an

employee of Bank of America, N.A. or CT Corporation. The Affidavit is void of

any statement of fact, directly or indirectly, which goes towards establishing

excusable neglect, due diligence or a meritorious defense by the Appellee, Bank of

America Corporation.

The supporting affidavits discuss actions and/or inactions which may or may

constitute neglect in behalf of Bank of America, N.A. or CT Corporation.

However, the neglect of Bank of America, N.A. and/or CT Corporation is

irrelevant as to the issue of excusable neglect, due diligence and a meritorious

defense of the Appellee, Bank of America Corporation.

In Bayview Tower Condominium Association, Inc. v Schweizer, 475 So.2d

982 (Fla. 3DCA, 1985) the court ruled the affidavits in support of the motion to

vacate were legally insufficient because they make no reference to the aforesaid

Appellee in this case; instead, they refer entirely to the Appellee's insurance

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company and its agents. This being so, there was utterly no showing of excusable

neglect by the Appellee in failing to respond to the Appellant's complaint — which

failure of proof was fatal to the subject motion to vacate.  Sherer v. The Club,

Inc.,   328 So.2d 532 (Fla. 3d DCA), cert. dismissed, 334 So.2d 604 (Fla. 1976).

The Affidavits Are Non Specific Conclusory Statements Which Fails to Establish Excusable Neglect

The Appellee, Bank of America Corporations supporting affidavits fails to

factual state with any specificity acts of excusable neglect by the Appellee.

Additionally, the affidavit fails to state any specificity with regards to Bank of

America, N.A.’s actions in reference to excusable neglect. The affidavit is merely

conclusory statements with absolutely no probative value.

There are no qualifications as to time of action or inaction, the party

responsible for failing to act; all blame is placed on a location of an office as

opposed to an actual office. The affidavit is incredible vague and sparse as to a

factual basis making it nearly, if not totally, impossible to verify any conclusions

drawn by the affiant.

The Appellant has filed affidavits which clearly demonstrate that the

allegations submitted by the Appellee are untrue and fails to supprt a plausible

basis of excusable neglect. The delay is clearly inexcusable, taking in to

consideration the timeline and the Appellant’s affidavit as well as the Appellee

failure to explain why it had failed to answer the complaint in a timely manner.

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In Bayview Tower Condominium Association, Inc. v Schweizer, 475 So.2d

982 (Fla. 3DCA, 1985) the Court stated:

the record shows totally inexcusable delays on the part of the Appellee's insurance company in losing, and failing to discover after fair notice, the insurance adjuster's file in this case. Indeed, the affidavits show that the said company took five months to discover the file after being informed of the necessity to have the Appellee file an answer herein. This inexcusable neglect was fatal to the subject motion to vacate filed below. See Schwab & Co. v. Breezy Bay, Inc., 360 So.2d 117 (Fla. 3d DCA 1978).

The case before this Honorable Court is no different and the Motion must be

denied.

MERITORIOUS DEFENSE

To entitle the Appellee to have the default set aside, in addition to a showing

of excusable neglect, it was incumbent upon the Appellee to show it had a

meritorious defense, and a mere statement to that effect in an unsworn motion was

not sufficient. The existence of a meritorious defense should be disclosed in

tendering a defensive pleading showing the defense, or by a sworn motion or

affidavit stating facts which if proved would be a meritorious defense, where a

factual defense is relied on, or by showing legal grounds constituting a meritorious

defense where a legal rather than a factual defense is to be relied on. See State

Bank of Eau Gallie v. Raymond,   103 Fla. 649, 138 So. 40, 42-43 (1931); Florida

Inv. Enterprises, Inc. v. Kentucky Co., 160 So.2d 733, 735 (Fla. 1st DCA

18

1964); Butler v. Butler, 172 So.2d 899, 901 (Fla. 3d DCA 1965); Metcalf v.

Langston,   296 So.2d 81 (Fla. 1st DCA 1974); Grimsely v. Florida Universal

Financial Corp.,   339 So.2d 721, 722 (Fla. 1st DCA 1976).

The Appellee, Bank America Corporation relies on a Motion to Dismiss

alleging that the improper party has been sued as a meritorious defense. There is no

supporting affidavit or disclosure of tendering a defensive pleading which if

proved would constitute a meritorious defense.

The only evidence in an attempt to support the allegation that wrong party

has been sued is the submission of an allonge.

The allegation as the meritorious defense of the Appellee is that it is merely

a holding company. However, this in and of itself is not a defense or an immunity

from being sued for wrong doing. The lawsuit is not seeking to hold it liable for

subsidiary liability. In fact the Appellee has not even alleged that a subsidiary is

responsible for any of the acts constituting the circumstances and events which are

the basis for the lawsuit.

It is unfathomable that corporate governance based on “they say so” would

constitute a meritorious defense to a well plead lawsuit. Clearly the assertion that

the wrong party has been sued necessarily requires the filing of an affirmative

defense and subject to the production of credible evidence.

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Ownership of Countrywide Bank

From the Appellee, Bank of America Corporation’s website the purchaser of

Countrywide is in fact the Appellee as evidenced by the Newsroom announcement

as well as the SEC Form S-4 filing confirming the purchase transaction

(Appellant’s Affidavit in Opposition, Exhibit Composite 17). This information was

downloaded from the Bank of America website named bankofamerica.com which

is registered to the Appellee.

The Appellant, Renee Stewart Transacted Business Through the Appellee, Bank of America Corporation’s Owned Streams of Commerce

Despite the unverified allegation from the Appellee, Bank of America

Corporation is the wrong party, there exists overwhelming documentary evidence

that in fact the Appellant did conduct business with the party Appellee served and

named in the Complaint.

The affidavit in opposition clearly establishes that the Appellee, Bank of

America Corporation was the only authorized entity lawfully conducting business

in the State of Florida as a foreign company which dealt with the Appellant.

Additionally the stationery bares the logo that is trademarked and owned by

the Appellee. Letters from the Appellee with their logo and name printed on the

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communications were mailed to the Appellant’s residence. Including, but not

limited to, the Qualified Written Response which was sent to the Appellant stating

that the note and mortgage was owned by CitiMortgage.

The website utilized by the Appellant to conduct business transactions

regarding the subject mortgage is the property of the Appellee and the portal for

account information is controlled and the [property of the Appellee.

The Appellant, Renee Stewart had factual and legal reasons to believe that

her business dealings were with the Appellee, Bank of America Corporation. (See

Affidavit in Opposition to Motion to Vacate, paragraph’s 6 through 10, and

attached Exhibits 2 through 8).

Bank of America Corporation controlled and owned all streams of

commerce necessary to conduct it business with the Appellant. The contracting

party, Renee Stewart (deceased Plaintiff) relied on the representations made by the

Appellee, Bank of America Corporation as affirmatively stated on the stationery,

the websites, and logo.

V. CONCLUSION

Based upon the foregoing, the trial Court grossly abused its discretion in

granting the Amended Motion To Vacate The Final Default Judgment. The

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Appellee failed to satisfy the requirements as to excusable neglect, a meritorious

defense and acting reasonably diligent in seeking to vacate the default after it was

discovered.

WHEREFORE, the Appellant respectfully requests this Honorable Court

reverse the Order of the Trial Court vacating the Default Final Judgment dated

April 30, 2012 and reinstate the Default Final Judgment and assess Attorneys fees

and costs.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the Initial Brief has been furnished via U.S. Mail this 11th day of July 2012, to J. RANDOLPH LIEBER, Esq., Lieber, Gonzalez & Portuondo, P.A., Attorneys for the Appellee, Courthouse Tower -25th Floor, 44 West Flagler Street, Miami, FL 33130.

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY I the Initial Brief complies with the font requirements (Times New Roman 14 pt.) set forth in Rule 9.21(a)(2), Florida Rules of Appellate Procedure.

_________________________Rolando Casais Jr., Esq.Florida Bar No.: 25797Casais & Prias, PLLC444 Brickell Ave., Suite 721Miami, Florida 33131305 722 8015

305 722 8016 fax

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