SUPREME COURT OF FLORIDA Case No.: SC13-849 District Case No.: 3D12-3443 Lower Tribunal No.: 10-42068 HILDA SUAREZ, ORLANDO ) Fla. Bar No.: 480400 GARCIA, JR. and LISETTE ) GARCIA, ) Defendants/Appellants, ) v. ) CITIMORTGAGE, INC., ) ) Plaintiff/Appellee, ) INITIAL BRIEF W rit of Mandamus Gary Barcus, Esq. Attorney for Hilda Suarez, Orlando Garcia, Jr. and Lisette Garcia
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SUPREME COURT OF FLORIDA
Case No.: SC13-849District Case No.: 3D12-3443Lower Tribunal No.: 10-42068
HILDA SUAREZ, ORLANDO ) Fla. Bar No.: 480400GARCIA, JR. and LISETTE )GARCIA,
)Defendants/Appellants, )
v.)
CITIMORTGAGE, INC., ))
Plaintiff/Appellee, )
INITIAL BRIEFWrit of Mandamus
Gary Barcus, Esq.Attorney for Hilda Suarez,Orlando Garcia, Jr. andLisette Garcia
TABLE OF CONTENTS
PAGE
I. Statement of the Case................................................... 1-3
II. Facts ....................................................................... 4-9
III. Issues to be Considered upon Appeal ................................. 10
1. Whether Appellee's Motion for Substitution of Party Plaintiff complieswith Fla.R.Civ.P. 1.100 requiring it to "specify with particularity thegrounds upon which the motion is based and set forth the relief ororder sought." [The Author's Comments states: "TheseRequirements are mandatory.]
2. Whether Penny Mac Loan 2012 Trust NPL-1, who purchased themortgage September, 2012, from PennyMac Mortgage Company LLC,which had purchased the mortgage from CitiMortgage, Inc. effectiveJanuary 25, 2012, may be substituted as party plaintiff in this mortgageforeclosure even though it was NOT mentioned in the Motion forSubstitution of Party Plaintiff?
3. Whether the Order ofNovember 30, 2012 denying the Motion toDismiss the foreclosure lawsuit brought by CitiMortgage, Inc. shouldhave been granted.
IV. Analysis of Law ......................................................... 11-13
V. Conclusion ............................................................... 14
Certificate of Service ........................................................... 15
Certificate of Compliance .................................................... 13
Table of Cases Cited .......................................................... il
Statutes Cited .................................................................. il
This appeal raises two important questions of law that were NOT properly
followed nor enforced at the trial level: (1) Fla.R.Civ.P. 1.260(a) limiting the time
to substitute party plaintiff to within 90 days was violated; and (2) most serious
misrepresentations by the attorneys for CitiMortgage, Inc., Brock and Scott, who
told the court on January 30, 2012, at the Motion to Dismiss hearing that
CitiMortgage, Inc. then owned and held the mortgage and note and were entitled to
enforce them against Appellants, a bald faced lie. Or, politely put, a tergiversation,
a cunard, a prevarication, but frankly put, a bald faced lie. Please take a moment to
read the one paragraph allegations in Appendix #3 "Motion for Substitution of
Party Plaintiff." In that motion, the assignee of that mortgage and note alleges that
"On or about January 27, 2012, CitMortgage transferred all of its right, title and
interest in the Garcia's loan to PNMAC." [PNMAC Mortgage Corporation., LLC.]
Oh? Do tell, because as that is the true fact, then Judge Marc Shumacher should
have granted the Appellants' Motion to Dismiss that was heard on January 30,
2012, see transcript of that hearing, attached, denying that Motion to Dismiss.
As you will see, attorneys Brock and Scott DID misrepresent to the court that
CitiMortgage,Inc. owned and held the note and mortgage as of January 30, 2012,
which it did not. Had they not misrepresented the true facts to the court, the case
would have been dismissed on January 30, 2012, and the assignee would have, and
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should have, properly filed a brand new lawsuit.
But, the immediate assignee did not file a brand new lawsuit. Instead, it
chose to file an untimely and late Motion to Substitute Party Plaintiff on May 3rd
2012, see Appendix #3, in which the motion seeks to allow a SECOND assignee
of the note and mortgage from CitiMortgage, Inc. which assigned the note and
mortgage to PennyMac Loan Corporation, LLC who then assigned the note and
mortgage to PNMAC Mortgage Co., LLC. And before the Motion to Substitute
Party Plaintiffwas heard, the second assignee PNMAC Mortgage Co., LLC then
assigned the note and mortgage to a third assignee PENNYMAC LOAN TRUST
2012-NPL1. Under Fla.R.Civ.Pro. 1.260(a), the motion to substitute was not made
within 90 days of the original assignment from CitiMortgage, Inc. to PNMAC
Mortgage Co., LLC [which was in actual fact on January 25, 2012 but Appellee
conceded January 27, 2012] but not until May 3, 2012. And, the second and third
assignments were not made until September, 2012, long, long after the "within 90
days" time bar to substitute party plaintiff found in Rule 1.260(a). To add insult to
injury, the Motion to Substitute Party Plaintiff was made after the court should
have dismissed the entire case for any standing of CitiMortgage, Inc. at the January
30, 2012 Motion to Dismiss hearing.
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More importantly, and completely violative of Fla.R.Civ.P. 1.260(a) that
requires the substitution of party plaintiff within 90 days, was the ultimate party
that Judge Marc Schumacher improperly allowed to actually substitute as party
plaintiff. Have you ever seen a "relay race" at a track meet where four runners
pass a baton between each other to run a race in segments? That is what happened
here: PennyMac Mortgage Corporation., LLC assigned the note and mortgage to to
PNMAC Mortgage Co., LLC which subsequently [but before the order granting
substitution of party plaintiff] assigned the mortgage and note to yet another party,
PENNYMAC LOAN TRUST 2012-NPLl. The assignment from the PennyMac
Loan Corporation, LLC to PNMAC Loan Co., LLC and then to PENNYMAC
LOAN TRUST 2012-NPL1 occurred in September of 2012, long after the "within
90 days" time bar of Fla.R.Civ.P. 1.260(a) had expired. Therefore, Judge Marc
Schumacher was wrong twice, first when he denied the Motion to Dismiss on
January 30, 2012 and again on November 30, 2012, see Appendix #2, when he
allowed substitution party plaintiff to the last runner of the relay race long, long
after the time to substitute party plaintiff within 90 days had expired.
Any one of these failures to enforce the rules of court constitutes a denial
of the Appellants' Constitutional rights to Due Process ofLaw under the 14th
Amendment to the US Constitution, but collectively these repeated failures to
follow the Rules of court are an abomination.
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H. Facts:
1. This case is a mortgage foreclosure, initiated in 2010. The case was
dismissed in November of 2010, for failure to attach documents upon which a
claim could be made or a defense made. CitiMortgage, Inc. given 15 days to file an
Amended Complaint. It did not file, failed to file, an Amended Complaint for more
than a year, all in contempt of the November, 2010 court order to file an Amended
Complaint. The Clerk of Court actually closed the case. An administrative notation
was issued closing the case.
2. In late December of 2011, the now contemnor, CitiMortgage, Inc. finally
filed an Amended Complaint on an ex parte basis, and Judge Marc Schumacher,
without any hearing, permitted this case to be reopened.
3. Appellants filed a Motion to Dismiss the Amended Complaint, and set
it for a hearing on January 30, 2012. Meanwhile, on January 24, 2012, BEFORE
THE HEARING to substitute party plaintiffs, CitiMortgage, Inc. sold the mortgage
and note to PennyMac Mortgage Co., LLC, an act that completely divested
CitiMortgage, Inc. of any right to continue the lawsuit. That should have been the
end of the foreclosure lawsuit. Mortgage and note sold before the hearing on the
Motion to Dismiss divested CitiMortgage, Inc. of any standing whatsoever. Judge
Marc Schmacher should have dismissed the lawsuit then and there.
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4. Nonetheless, CitiMortgage, Inc. opposed the Motion to Dismiss the
Amended Complaint, and won! Judge Marc Schumacher should have dismissed
the foreclosure lawsuit with prejudice. [Appellants filed the first interlocutory
appeal on the issue of divested standing, but that appeal was denied.]
CitiMortgage, Inc. subsequently filed a Motion for Substitution of Party Plaintiff,
Appendix #3, in which it requested that PNMAC Mortgage Co., LLC be permitted
to substitute as party plaintiff for CitiMortgage, Inc. However, from the time of the
filing of the initial Motion to Substitute Party Plaintiff to be PNMAC Mortgage,
LLC for CitiMortgage, Inc., the mortgage and note were sold two more times to
two subsequent owners, neither of which were named in the original Motion to
Substitute Party Plaintiff that was set for a hearing November 30, 2012. Ifyou are
keeping score, here is how your scorecard should read for the four different parties
who owned the mortgage and note (maybe):
a. CitiMortgage, Inc. alleged that it originally owned and holds themortgage and note (although they never properly filed ownership proofdespite being ordered to do so for more than a year). Then CitiMortgage,Inc. announces that it sold the mortgage and note on January 25, 2012, to
b. PNMAC Mortgage Corporation., LLC, but there was no proofof sale orassignments filed by PNMAC Mortgage Corporation., LLC. [That is twopurported owners if for you scorekeepers as of January 25, 2012.]
c. PNMAC Mortgage Corporation., LLC allegedly sold the mortgage andnote to PNMAC Mortgage Co., LLC. [That is three purported owners.]
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d. PNMAC Mortgage Co., LLC purportedly sold the mortgage and note toPENNYMAC LOAN TRUST 2012-NPL1. [Now four purportedowners.]
5. No mention was made by CitiMortgage, Inc. in its original (filed AFTER
it had sold the mortgage and note) Motion for Substitution of Party Plaintiff of
PNMAC Mortgage Co., LLC, the motion was set for hearing on November 30,
2012. The trial Judge, Marc Schumacher, more than ten months after the original
motion, (when Fla.R.Civ.P. 1.100 and R. 1.260(a)( c) only allow 90 days to make
substitution ofparty plaintiff), in violation of the rule nonetheless allowed
substitution of the fourth purported assignee as party plaintiff.
6. Keep in mind that the Motion for Substitution ofParty Plaintiffwas made
May 3rd, 2012, and PennyMac Loan Trust 2012-NPL-1 did not own the mortgage
and note (if at all)until September, 5, 2012, so it was impossible for it to be
named and specified in the original Motion for Substitution of Party Plaintiff
within the 90 day requirement of the Rule 1.260(a) and (c). And so it was
impossible for appellee to properly comply with the strict and "mandatory"
requirements of filing their motion pursuant to Fla.R.Civ.P. 1.100(b) to name at the
time of the filing the party that is to be named as substitute plaintiff. And therefore
the court order ofNovember 30, 2012, [Appendix #2] that substitutes a party not
named in the motion should have been denied. That court order should now be
reversed as to permitting substitution of party plaintiff to deny it, and the part of
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the order that denies the Motion to Dismiss [Appendix #2] should be reversed to
grant that Motion to Dismiss. Otherwise, Appellants have been denied their
constitutional rights to Due Process of Law pursuant to the 14th Amendment of the
U.S. Constitution. Whoever now owns the mortgage and note should file a new
foreclosure lawsuit with the clerk.
7. CitiMortgage, Inc. filed a foreclosure lawsuit on August 4, 2010. That
complaint was dismissed on November 16, 2010, with specific instructions to file
an Amended Complaint in 15 days, by December 1, 2010.
8. For more than a year, CitiMortgage, Inc. ignored, defied, and was in
contempt of the court by not filing the Amended Complaint as ordered. In fact, the
Clerk of Court actually closed the entire case because the court order had not been
complied with and there was no record activity for more than a year. But, on
December 2, 2011, more than a year after it had been ordered to file an Amended
Complaint, plaintiff filed a "Plaintiff's Motion to Amend Complaint." The court
entered two orders on January 10, 2012 in which it actually permitted the
contemnor CitiMortgage, Inc. to file an Amended Complaint, and did also enter an
order directing the Clerk of Court to reinstate the lawsuit.
9. CitiMortgage, Inc. filed its Amended Complaint, appellants filed a
Motion to Dismiss the Amended Complaint, but before that motion could be heard,
CitiMortgage, Inc. sold the note and mortgage on January 25, 2012, an act that
7
completely divested it of any right to continue the foreclosure lawsuit. However,
lawyers for CitiMortgage, Inc. did not disclose to the court that CitiMortgage, Inc.
had sold the mortgage and note (and CitiMortgage, Inc. Notices of that sale to the
Appellants had not yet arrived), so the trial judge denied that Motion to Dismiss.
10. New counsel appeared for CitiMortgage, Inc., and filed a Motion for
Substitution of Party PlaintiffMay 3'd 2012 in which they asked that PNMAC
Mortgage Co., LLC to be substituted as party plaintiff for CitiMortgage, Inc.
[Appendix #3] The Motion for Substitution of Party Plaintiffwas very specific,
very exacting, and specified May 3rd, 2012, that PNMAC Mortgage Co., LLC be
the party permitted to substitute as party plaintiff, and no one other than PNMAC
Mortgage Co., LLC. That May 3rd 2012, Motion for Substitution of Party Plaintiff
was specially set for hearing on November 30, 2012, and no other substitution
motion was scheduled for hearing on that date in this case, only the first Motion for
Substitution of Party Plaintiff, the one filed for PNMAC Mortgage Co., LLC. Also
set for hearing on November 30, 2012, was appellants' combined "Opposition to
Substitution ofParties and Motions to Dismiss Pursuant to Rule 1.420(b) For
Failure of CitiMortgage, Inc. to Comply with Rules of Court and Order of This
Court And Motion to Dismiss Pursuant to Rule 1.150" [Appendix #4] and
incorporated by reference into this Initial Brief.
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11.The court issued an order November 30, 2012, [Appendix #2] on
CitiMortgage, Inc.'s May 3rd, 2012, Motion for Substitution of Party Plaintiff
and denying the Defendants' new Motion to Dismiss. The Plaintiff's Motion for
Substitution of Party Plaintiff made no mention of PennyMac Loan Trust 2012
NPL-1, and as such it did not seek to have PennyMac Loan Trust 2012 NPL-1
substituted as the party plaintiff, rather it specifically sought to have PNMAC
Mortgage Co., LLC named and substituted as the party plaintiff.
12. Allowing a party not named in the Motion for Substitution of Party
Plaintiff violates the mandatory requirements of Fla.R.Civ.P. 1.100(b) that the
relief sought "shall" be specific. The only party according to the motion that could
be substituted as party plaintiff was PNMAC Mortgage Co., LLC and not the
unnamed and unspecified PennyMac Loan Trust 2012 NPL-1. Allowing a party to
substitute as as plaintiff that was not named in the motion is a violation of the Rule
1.100(b) and reversible error.
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III. Issues to be Considered upon Appeal
1. Whether Appellee's Motion for Substitution of Party Plaintiff complieswith Fla.R.Civ.P. 1.100(b) requiring it to "specify with particularitythe grounds upon which the motion is based and set forth the relief ororder sought." [The Author's Comment states: "Theserequirements are mandatory."]
2. Whether Penny Mac Loan 2012 Trust NPL-1, who purchased themortgage September, 2012, from PennyMac Mortgage Company LLC,which had purchased the mortgage from CitiMortgage, Inc. effectiveJanuary 25, 2012, may be substituted as party plaintiff in this mortgageforeclosure even though it was NOT mentioned in the Motion forSubstitution of Party Plaintiff?
3. Whether the Order ofNovember 30, 2012 denying the Motion toDismiss the foreclosure lawsuit brought by CitiMortgage, Inc. shouldhave been granted.
10
IV. Analysis of Law
1. The Florida Rule of Civil Procedure 1.100 Pleadings and Motions in
subpart (b) requires:
"An application to the court for an order shall be by motionwhich shall be made in writing ..., shall state with particularity theground therefor, and shall set forth the relief or order sought. ... Allnotices ofhearing shall specify each motion or other matter to beheard." [The Author's Comment states to this rule ofprocedurestates: "These requirements are mandatory."] [Appendix #5,Emphasis mine.]
A close reading of the appellee's Motion for Substitution of Party Plaintiff reveals
that the relief stated with specified particularity was to have PNMAC Mortgage
Co., LLC substituted as party plaintiff. No mention was made of PennyMac Loan
Trust 2012-NPL-1. The court order ofNovember 30, 2012, nonetheless permits
the unnamed and unspecified party PennyMac Loan Trust 2012-NPL-1 to
substitute as party plaintiff instead of the named, specified with particularity
PNMAC Mortgage Co., LLC. This shell game ofparties violates the clear
mandatory strictures of Rule 1.100(b), makes the court order a violation of Rule
1.100(b), and is reversible error requiring a reversal of that order ofNovember 30,
2012, see Appendix #6.
2. Another dispositive procedural rule in effect here is Florida R.
Civ. P. 1.260 Survivor; Substitution ofParties. That Rule in subparts (a) and (c)
deal with situations where there has been a Transfer of Interest. These subparts
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instruct the party who has received a transfer of interest to serve a motion to
substitute party plaintiff in 90 days. CitiMortgage, Inc. sold its interest in the
mortgage and note to PennyMac Mortgage Co., LLC on January 25, 2012. The
Motion for Substitution of Party Plaintiff [Appendix 3] was not filed until May 3rd
2012, a full 98 days after the transfer of interest by CitiMortgage, Inc. to
PennyMac Mortgage Co., LLC. This is outside of the time bar limits ofRule
1.260(a) and dispositive of the issue of substituting party plaintiff. Late again, and
too late, the Motion for Substitution ofParty Plaintiff should have been denied as
time barred. CitiMortgage, Inc. was over one year late in filing its leave to file an
Amended Complaint after being in contempt of the order dismissing its original
complaint more than a year. Now, it filed its Motion for Substitution of Party
Plaintiff too late, also. And that motion that it did file did not seek the relief that
the court subsequently did order. Violation by CitiMortgage, Inc. of the rules and
time limits over and over and over; this lawsuit should be dismissed with
prejudice.
3. Please consider the case ofMetcalfe v. Lee, 952 So.2d 624, at 628
(Fla. 4th DCA 2007), a tutorial on construing Fla.R.Civ.P. 1.260, where the goal is
to "strictly construe provisions of rules of civil procedure to create rules that apply
that are clear-cut and easy to apply." Supra at 628. Regarding Rule 1.260:
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"Unless the motion for substitution is made within 90 days after thedeath [or transfer of interest] ... the action shall be dismissed as to thedeceased party [or transferee]. A notice of hearing must accompanythe motion." Supra at 629.
According to the strict time limits of Rule 1.260(a) and (c) which CitiMortgage,
Inc. failed to comply with, the trial judge should have dismissed the lawsuit.
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V. Conclusion
The judge erred in granting the tardily filed Motion for Substitution of Party
Plaintiff and denying the appellant's Motion to Dismiss for several reasons. The
appellee's substitution motion filed May 3rd, 2012, was filed fatally late, a violation
of the clear-cut 90 day deadline of Fla.R.Civ.P. 1.260(a) and (c). The appellee's
substitution motion specified the substituted party was to be PNMAC Mortgage
Co., LLC. Rule 1.100 requires and makes "mandatory" that the motion shall be
alleged with "particularity" and the relief sought and parties shall be "specific."
The court order named a party not in the substitution motion as new party plaintiff,
a violation of both Rule 1.100 and Rule 1.260(a) and (c). If CitiMortgage, Inc.
said that PennyMac Loan Trust 2012-NPL-1 was entitled to be substituted as party
plaintiff on or before April 25th, 2012, the deadline for the substitution motion, that
is and would be a lie. Nowhere within that critical time period from January 25,
2012 and April 25th, 2012, the 90 day window, was PennyMac Loan Trust 2012-
NPL-1 involved in any of these transactions. And after September, 2012,
PennyMac Mortgage Co., LLC was completely divested of any right or actionable
interest against the appellants. The November 30th, 2012 court order should be
reversed to deny the motion for substitution and grant the motion to dismiss with
instructions to whoever or whatever entity owns, holds, services, or has an open
indorsement to file a brand new lawsuit at the clerk's office to enforce their rights.14
Certificate of Mailing
I HEREBY CERTIFY that a true copy of the foregoing Initial Briefwith a copy of the Appendix were emailed / , 2013, to: Ms. Nancy Wallace,Esq., [email protected], Akerman Senterfitt, 106 East CollegeAvenue, Suite 1200, Tallahassee, Florida 32301.
Gary Barcus, Esq.Fla. Bar No.: 480400Attorney for AppellantsHilda SuarezOrlando Garcia, Jr. andLisette Garcia1689 SW 158 AvenuePembroke Pines, Florida 33027(954) 438-4222 Office(954) 618-9530 [email protected]
/s/ Ga Barcus, Esq.Electronic Signature
Certificate of Compliance
I HEREBY CERTIFY that this Initial Brief complies with the Times NewRoman 14-point font requirements as detailed in Rule 9.210.
Gary Barcus, Esq.Fla. Bar No.: 480400Attorney for Appellants1689 SW 158 AvenuePembroke Pines, Florida 33027(954) 438-4222 Office(953) 618-9530 Cellbare sgab@a 1.com
/s/ Ga Barcus, Esq.Electronic Signature
15
Page 1
IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUITIN AND FOR MIAMI-DADE COUNTY, FLORIDA
CASE NO. 10-42068 CA 05
CITIMORTGAGE, INC.,
Plaintiff, ..
vs.
HILDA SUAREZ and ORLANDOGARCIA, JR. a/k/a ORLANDOGARCIA and LISETTE GARCIA,Husband and Wife, et al
Defendants.
Hearing Before the HonorableMARC SCHUMACHER
Monday, January 30, 20129:00 A.M. to 9:25 A.M.
Miami Dade County Courthouse73 West Flagler Street, Miami, Fl
Stenographically Reported By:
LOURDES M. RESTREPO, RPR
Registered Professional Reporter
Boss Certified Realtime Reporting954-467-6867
Page 2
1 APPEARANCES
2 On Behalf of the Plaintiff:BROCK & SCOTT, PLLC
3 1501 NW 49th Street, Suite 200Fort Lauderdale, FL 33309