OCEAN BANK APPELLANTS’ INITIAL BRIEF - Bushell INITIAL BRIEF ... G. Ocean Bank’s Motion of Summary Judgment ... of the Florida Rules of Civil Procedure

IN THE THIRD DISTRICT COURT OF APPEALSTATE OF FLORIDA

________________________

No. 3D10-2270 Lower Tribunal No. 08-57109 ________________________

GROVE ONE REALTY, LLC, GROVE ONE MANAGEMENT, LLC,

GUY MITCHELL, and AMELIA MITCHELL,

Appellants,

vs.

OCEAN BANK,

Appellee.

___________________________________________________

APPELLANTS’ INITIAL BRIEF ___________________________________________________

Daniel A. Bushell Florida Bar No. 43442 Bushell Appellate Law, P.A. 2000 Glades Road, Suite 110 Boca Raton, Florida 33431 Phone: 561-368-8400 Fax: 561-368-8403 Email: [email protected]

Counsel for Appellants

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TABLE OF CONTENTS

Page:

TABLE OF CITATIONS………………………………………………………...iv

I. INTRODUCTION……………………………………………………... 1

II. STATEMENT OF THE CASE AND FACTS……………………….. 2

A. The Lending Transactions……………………………………………...2

1. September 19, 2003 Loan to Realty………………………………..3 2. November 26, 2003 Loan to Management……………………… 3 3. December 12, 2005 Loan to Realty……………………………… 4 4. Personal Guaranties ……………………………………………… 4

B. The Bank’s Asserted Basis for Accelerating the Loans………………5

C. The Mortgages’ Notice and Cure Requirements …………………….6

D. The Notes’ Default Interest Provisions………………………………. 8

E. Ocean Bank’s Correspondence to Realty and Management………..9

F. Proceedings Below ………………………………………………… 10

G. Ocean Bank’s Motion of Summary Judgment …………………… 12

III. SUMMARY OF ARGUMENT……………………………………… 15

IV. ARGUMENT ………………………………………………………… 17

A. Standard of Review ………………………………………………….. 17

B. The Court Erred in Finding A Default Under Paragraph 21/22…..19

C. The Trial Court Erred in Failing to Require Ocean Bank to Show That it Satisfied Paragraph 8’s Conditions Precedent………23

iii

1. The Bank Was Required to Give Notice and Allow Time to Cure Before Declaring a Default…………………………… 24

2. The Bank Did Not Establish That It Complied Withthe Notice and Cure Requirement……………………………… 25

3. The Bank’s Contention That It Was Not Required to Give Notice and Cure Was Erroneous………………………….. 26

4. Under Florida Law, the Mortgages’ Notice andCure Requirements Must Be Given Effect………………………27

D. The Trial Court’s Order Erroneously Calculates the Amountand Apportionment of Damages……………………………………..30

V. CONCLUSION………………………………………………………..32

CERTIFICATE OF SERVICE…………………………………………………33

CERTIFICATE OF COMPLIANCE………………………………………… 33

iv

TABLE OF CITATIONS

Cases

Abichandani v. Related Homes of Tampa, Inc.,

696 So. 2d 802 (Fla. 2d DCA 1997) ........................................................................ 20

Alejandre v. Deutsche Bank Trust Co.,

44 So. 3d 1288 (Fla. 4th DCA 2010) ................................................................. 18,23

August Tobler, Inc. v. Goolsby, 67 So.2d 537 (Fla. 1953) ................................ 26,27

Auto-Owners Ins. Co. v. Anderson, 756 So. 2d 29 (Fla. 2000) ............................... 28

Belamy v. Hawkins, 17 Fla. 750 (1886) ................................................................... 21

Bergeron Land Development, Inc. v. Knight,

307 So. 2d 240 (Fla. 4th DCA 1975) ................................................................. 20-21

Delandro v. America’s Mortg. Servicing, Inc.,

674 So. 2d 184 (Fla. 3d DCA1996) ......................................................................... 19

Discover Property & Cas. Ins. Co. v. Beach Cars of West Palm, Inc.,

929 So. 2d 729 (Fla. 4th DCA 2006) ................................................................. 28,29

DSL Internet Corp. v. TigerDirect, Inc., 907 So. 2d 1203 (Fla. 3d DCA 2005) ..... 29

E. Qualcom Corp. v. Global Commerce Center Ass’n,

59 So. 3d 347 (Fla. 4th DCA 2011) ......................................................................... 23

Excelsior Ins. Co. v. Pomona Park Bar & Package Store,

369 So. 2d 938 (Fla. 1979) ....................................................................................... 29

v

Frost v. Regions Bank, 15 So. 3d 905 (Fla. 4th DCA 2009) ................................... 24

Hotel 71 Mezz Lender LLC v. Falor, 926 N.E. 2d 698 (N.Y. 2010) ................ 14, 22

Konsulian v. Busey Bank, N.A., 61 So.3d 1283 (Fla. 2d DCA 2011) ................ 21,23

LRB Holding Corp. v. Bank of Am., N.A.,

944 So. 2d 1113 (Fla. 3d DCA 2006) ................................................................ 26,27

Moore v. Morris, 475 So. 2d 666 (Fla. 1985) .......................................................... 18

Novack v. Novack, 196 So. 2d 499 (Fla. 3d DCA 1967) ......................................... 21

Rocamonde v. Marshalls of Ma, Inc., 56 So. 3d 863 (Fla. 3d DCA 2011) ....... 17,18

Schrank v. Pearlman, 683 So. 2d 559 (Fla. 3d DCA 1996) .................................... 19

Servedio v. U.S. Bank, N.A., 46 So. 3d 1105 (Fla. 4th DCA 2010) ......................... 19

Terra Firma Holdings v. Fairwinds Credit Union,

15 So. 3d 885 (Fla. 2d DCA 2009) .......................................................................... 19

TRG-Brickell Point NE, Ltd v. Wajsblat, 34 So. 3d 53 (Fla. 3d DCA 2010) .......... 19

Tropical Glass & Constr. Co. v. Gitlin, 13 So.3d 156 (Fla. 3d DCA 2009)). ... 17,18

Valencia v. Deutsche Bank Nat’l Trust Co., No. 4D09-3297, --- So. 3d ----,

2011 WL 2462673 (Fla. 4th DCA June 22, 2011) .................................................. 18

Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000) ...... 17

Statutes and Rules

Rule 1.510(c) of the Florida Rules of Civil Procedure………………………… 19

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I. INTRODUCTION

This is an appeal from a $9 million final summary judgment of foreclosure

entered against two commercial borrowers and two individuals. Although the trial

court treated it is as if it were a typical residential foreclosure case, this case bears

little resemblance to the standard cases making their way through the system. For

one, the Bank did not file suit in response to a mortgagor’s failure to make loan

payments. The borrowers here were current on their loan payments while they

were operating “the Car Wash,” a successful local business, on the foreclosed

properties. Instead, it is before this Court because Ocean Bank panicked when one

of the individual Appellants was accused (although never convicted) of

improprieties in a wholly unrelated matter. When the Bank found a technicality it

believed it could use to foreclose, it quickly moved to file suit, disregarding the

conditions precedent it had written into the Mortgages. It then took over running

the Car Wash, speeding it from profitability to losses.

Ocean Bank refused to cooperate with discovery, prompting the trial court to

say that summary judgment would be postponed if the Bank did not comply with

Appellant’s deposition notice. It did not, but the trial court refused to postpone the

summary judgment hearing, despite its earlier promise.

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After a short hearing, the trial court entered a form order of Final Summary

Judgment as prescribed by Eleventh Judicial Circuit Administrative Order No. 09-

09 for residential mortgage foreclosures, not commercial cases. The trial court

granted summary judgment for Appellee Ocean Bank without requiring the Bank

to submit competent evidence of any default under the mortgages at issue. In

addition, the trial court refused to enforce the plain language of the mortgages,

which required the Bank to provide notice and an opportunity for cure before

declaring a default. As explained more fully below, the trial court’s Final

Judgment of Foreclosure should be reversed.

II. STATEMENT OF THE CASE AND FACTS

A. The Lending Transactions

This case involves three separate lending transactions: two between

Appellant Grove One Realty, LLC (“Realty”) and Appellee Ocean Bank, and one

between Appellant Grove One Management, LLC (“Management”) and the Bank.

The individual Appellants were sued as alleged guarantors: Appellant Guy

Mitchell for all three of the loans, and Appellant Amelia Mitchell with respect to

two of the three.

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1. September 19, 2003 Loan to Realty

Realty executed a Promissory Note in favor of Ocean Bank dated September

19, 2003, in the amount of $4,600,000 (“9/03 Note”). See R. 1260-631. On the

same date, Realty executed a purchase money mortgage memorialized in a

Mortgage Deed and Security Agreement (“9/03 Mortgage”), pledging, as security

for the 9/03 Note, real property referred to as Lot 1 of the Herbert L. Stevens

Subdivision (the “Car Wash Property”). See R. 1268-82.

Realty also entered into a Security Agreement, pledging Realty’s personal

property as collateral for the loan, R. 550-53, as well as an Assignment of Leases,

Rents and Profits, R. 559-64, with respect to the Car Wash business that Realty

operated on that real property.

2. November 26, 2003 Loan to Management

On November 26, 2003, Management executed a Promissory Note (the

“11/03 Note”) in favor of Ocean Bank in the amount of $357,000. R. 1298-1301.

Management concurrently entered into a first money mortgage memorialized in a

Mortgage Deed and Security Agreement (the “11/03 Mortgage”) granting a

security interest in favor of the Bank in certain real property referred to as the

South 50 feet of the North 60 feet of Lots 19 and 20, Palmhurst and North 120 feet

1 “R.____” citations refer to the page number(s) in the Record on Appeal.

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of Lot 18, and the North 120 feet of the West 10 feet of Lot 17, less the North 10

feet thereof, Palmhurst. R. 1302-1316.

On the same date, Management also executed a Security Agreement granting

the Bank a security interest in personal property owned by Management, R. 593-

596, as well as an Assignment of Leases, Rents and Profits related to that property,

R. 601-606. Also in connection with the 11/03 loan, Realty and Management, as

well as Guy and Amelia Mitchell, entered into a Cross-Collateralization and Cross-

Default Agreement with Ocean Bank, allowing cross-collateralization and cross-

default between the 9/03 Note and the 11/03 Note. R. 608-615.

3. December 12, 2005 Loan to Realty

Realty executed a second Promissory Note in favor of Ocean Bank on

December 12, 2005, in the amount of $1,570,000.00 (“12/05 Note”). See R. 1264-

1267. On the same date, Realty executed a Mortgage Deed and Security

Agreement (“12/05 Mortgage”) granting Ocean Bank a second security interest in

the Car Wash Property, R. 1283-1297, and an Assignment of Leases, Rents and

Profits, R. 521-526, in favor of Ocean Bank.

4. Personal Guaranties

Guy Mitchell executed personal guaranties as to all three loans, but Amelia

Mitchell only guarantied two of them. For the 9/03 Note, Guy Mitchell executed

an Unlimited Guaranty of Realty’s obligations under that Note on September 19,

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2003, R. 104, as did Amelia Mitchell, R. 108. Similarly, on November 26, 2003,

Guy Mitchell and Amelia Mitchell both executed an Unlimited Guaranty of

Management’s obligations under the 11/03 Note. See R. 156-157 & R. 159-160.

In connection with the 12/05 Note, Guy Mitchell was required to, and did,

execute an Unlimited Guaranty of Realty’s obligations under the 12/05 Note. R.

66-67. However, Ocean Bank never claimed that Amelia Mitchell guarantied

Realty’s obligations under the 12/05 Note, and never produced any evidence that

an Unlimited Guaranty was executed by Amelia Mitchell with respect to Realty’s

obligations under the 12/05 Note. See R. 1125 (asserting only that “Amelia

Mitchell is individually liable for the full amount owed to Ocean Bank by

Borrowers on the Realty Note Two [the 9/03 Note] and Management Note [the

11/03 Note],” but not the 12/05 Note).

B. The Bank’s Asserted Basis for Accelerating the Loans

Ocean Bank maintained from the outset, and contended in its original

complaint, that all three loans were in default as a result “of the appointment of a

receiver over Grove One Realty” and “the appointment of a receiver over Grove

One Management.” See R. 17-19, ¶¶34, 40 & 46. It made the same assertion in its

motion for summary judgment. See R. 1118, ¶¶4-5.

The Bank relied on a provision (identical in all three Mortgages) that

allowed for acceleration if: (1) Realty or Management consented to the

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appointment of a receiver; or (2) in certain circumstances, if a court entered an

order appointing a receiver over the assets of Realty or Management:

In the event that MORTGAGOR shall: (1) consent to the appointment of a receiver, trustee, or liquidator of all or a substantial part of MORTGAGOR'S assets, or . . . (7) any order, judgment, or decree shall be entered upon an application of a creditor of MORTGAGOR by a court of competent jurisdictionapproving a Petition seeking appointment of a receiver or trustee of all or a substantial part of the MORTGAGOR'S assets and such order, judgment, or decree shall continue unstayed and in effect for any period of thirty (30) consecutive days, the BANK may declare the PROMISSORY NOTES hereby secured forthwith due and payable, whereupon the principal of and the interest accrued on the PROMISSORY NOTES and all other sums hereby secured shall become forthwith due and payable as if all of the said sums of money were originally stipulated to be paid on such day; and thereupon the BANK without notice or demand may prosecute a suit at law and/or in equity as if all monies secured hereby had matured prior to its institution.

R. 1272-73 ¶21 (emphasis added) (9/03 Mortgage); R. 1289 ¶22 (emphasis added)

(12/05 Mortgage); R. 1308 ¶21 (emphasis supplied) (11/03 Mortgage).

C. Notice and Cure Requirements of Paragraph 8 of the Mortgages

Paragraph 8 in each of the Mortgages spelled out the process by which a

default was to be declared and the entire principal balance declared immediately

due, in the event that the Bank considered Realty or Management to be non-

compliant with any of the “stipulations, agreements, conditions, and covenants” of

the Mortgage. See R. 1270-71 ¶8; R. 1305 ¶8; R. 1286 ¶8. Specifically, Ocean

Bank could not declare a default until it first gave the Mortgagor notice of non-

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compliance, and allowed ten days to cure any non-payments, or for non-

compliance with any provision other than payment, allowed 30 to 90 days for cure:

If any of the sums of money herein referred to are not promptly and fully paid within ten (10) days written notice after the same becomes due and payable, or if any of the other stipulations, agreements, conditions, and covenants contained in the PROMISSORY NOTE and this Mortgage, or either, are not fully performed, complied with and abided by after thirty (30) days written notice, same shall be considered a default of this Mortgage and the PROMISSORY NOTE (provided, however, that if such failure is not susceptible to cure within such 30-day period, MORTGAGOR shall have such additional time as reasonably necessary to complete such cure as long as MORTGAGOR has commenced such cure within such 30-day period and diligently pursues such cure to completion, but in no event longer than 90 days), and the aggregate sum set forth in the PROMISSORY NOTE then remaining unpaid, with interest accrued to that time and unpaid, and all monies secured hereby, shall become due and payable forthwith, or thereafter, at the option of the BANK, as fully and completely as if all the said sums of money were originally stipulated to be paid on such day, anything in the PROMISSORY NOTE or in this Mortgage to the contrary notwithstanding; and thereupon or thereafter, at the option of the BANK, without notice or demand, suit at law or in equity may be prosecuted as if all monies secured hereby had matured prior to its institution.

See R. 1270-71 ¶8 (9/03 Mortgage) (emphasis added); R. 1305 ¶8 (11/03

Mortgage) (emphasis added); R. 1286 ¶8 (12/05 Mortgage) (emphasis added).2

2 Paragraph 8 was identical in all three Mortgages, except that in the 12/05 Mortgage agreement, the parenthetical phrase, “(provided, however, that if such failure is not susceptible to cure within such 30-day period, MORTGAGOR shall have such additional time as reasonably necessary to complete such cure as long as MORTGAGOR has commenced such cure within such 30-day period and diligently pursues such cure to completion, but in no event longer than 90 days)” was deleted. See R. 1286 ¶8.

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D. The Notes’ Default Interest Provisions

In addition to stating certain formulas for determining the interest rate on the

outstanding principal at various points in repayment, the 9/03 Note specified a

“Default Interest Rate” that was to apply to late payments. R. 1261. The specified

Default Interest Rate was 18% annually, which could be applied on a daily basis of

1/360 of the annual rate per day, so long as the total did not exceed “the highest

rate permitted by applicable law.” Id. The 9/03 Note further states that “[w]hile in

default, this Note shall bear interest at the lesser of (a) the Default Interest Rate and

(b) the highest rate of interest then allowed under the laws of the State of Florida.”

R. 1262 (emphasis in original).

Management’s 11/03 Note contained functionally identical provisions

regarding the “Default Interest Rate” to be charged for late payments. R. 1299.

The 12/05 Note did not state a specific interest rate to be applied to late payments,

stating only that the rate would “automatically increase to the maximum rate then

permitted by applicable law,” and accrue at 1/360 of the annual interest rate per

day, not to exceed “the highest rate permitted by applicable law.” R. 1265.

E. Ocean Bank’s Correspondence to Realty and Management

On September 5, 2008, Ocean Bank sent a letter to Realty for the stated

purpose of notifying Realty that the 9/03 Mortgage and 12/05 Mortgage were “in

default due to, among other things, the entry of two certain Orders by the Supreme

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Court of the State of New York, County of New York appointing Albert M.

Rosenblatt… as receiver over, among other things, all or a substantial port of the

Borrower's assets and such orders have continued unstayed and in effect for a

period in excess of thirty (30) consecutive days.” R. 1147.

Ocean Bank’s letter did not state that Realty had the opportunity to avoid

acceleration of its loans and foreclosure proceedings by curing the alleged non-

compliance. See R. 1147-49. To the contrary, Ocean Bank purported to “declare

the loans immediately due and payable and demand[] that all outstanding principle

and the interest accrued on the Loans and all other sums secured by said mortgages

be immediately paid to the Bank.” Id. at 1147 (emphasis added). It further

claimed that more than $456,000.00 of “Default interest” had already accrued on

the combined principal balance of approximately $5.56 million (more than 8%) it

said Realty owed. R. 1147-48. Moreover, the letter asserted, even if Realty were

to immediately repay the entire stated principal amounts, plus interest and “Default

interest,” Realty would also be responsible for paying Ocean Bank’s “attorney fees

and costs and costs of collection[.]” Id. at 1148.

On the same day, September 5, 2008, Ocean Bank sent a letter to

Management, for the same stated reason – to notify Management that the 11/03

Note and Mortgage were in default due to the appointment of a receiver over “all

or a substantial part of the Borrower’s assets” for more than 30 days. See R. 1150-

10

51. Similar to the Bank’s letter to Realty, its letter to Management purported to

“declare the loans immediately due and payable and. demand[] that all outstanding

principle and the interest accrued on the Loans and all other sums secured by said

mortgages be immediately paid to the Bank.” Id. at 1150.

Ocean Bank claimed that $6,356.06 of “Default interest” had already

accrued on the stated balance of $315,303.30 (about 2%) by the time of its letter,

and that $459.81 in additional interest was accruing daily. Id. It further asserted

that even if Management immediately repaid the entire amount of the principal

claimed to be owed, plus the “Default interest” purportedly due, Management

would be required to pay Ocean Bank’s “attorney fees and costs and costs of

collection[.]” Id.

F. Proceedings Below

Despite the 30 to 90 day Notice and Cure periods the Mortgages required, on

September 24, 2008 – just 19 days after the date of its letters to Realty and

Management – Ocean Bank filed Notices of Lis Pendens, R. 161-64, and the

following day, filed this lawsuit against Realty, Management, Guy Mitchell, and

Amelia Mitchell, among others. See R. 10. In its complaint, Ocean Bank asserted

that the alleged “appointment of a receiver over Grove One Realty” and the alleged

“appointment of a receiver over Grove One Management” were events of default

that supposedly entitled it to accelerate the debts and foreclose on each of the

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Mortgages. See R. 17 ¶34; R. 18 ¶40; R 19 ¶46. Ocean Bank’s complaint neither

mentioned the Mortgages’ Notice and Cure provisions, nor alleged that it had

satisfied them. See R. 10-33.

Appellants answered the complaint, and asserted affirmative defenses.

Among other things, Appellants asserted that no court had entered an order,

judgment or decree appointing a receiver over the assets of either Realty or

Management, and that an appellate court had vacated the New York court orders

against Guy Mitchell on which Ocean Bank apparently relied, finding that the trial

court lacked jurisdiction to enter an order affecting Mr. Mitchell’s assets outside of

the state of New York. R. 425-426 & 444. They further alleged an affirmative

defense that Ocean Bank had prematurely filed suit without complying with the

conditions precedent stated in the Notes. See R. 426 & 445.

In response, on February 19, 2009, Ocean Bank sent letters to Realty and

Management purporting to “supplement that certain September 5, 2008 Demand

and Acceleration letter” it had sent to each of them. R. 1153-55 & R. 1157-59. In

its letters to each of Realty and Management, the Bank asserted, for the first time,

that the recipient was also in default on its loans due to allegedly overdue monthly

payments to the Bank and property taxes, and allegedly having failed to provide

updated financial information to the Bank. R. 1153 & R. 1157. Like its September

5, 2008 letters, Ocean Bank’s February 19, 2009 letters afforded no opportunity for

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Realty and Management to cure any alleged failures to comply with the loan

conditions. Id. To the contrary, like the September 5, 2008 letters, Ocean Bank

claimed that Realty and Management immediately owed the entire principal loan

balance, plus interest at a default rate accrued since the date of alleged non-

payment, and attorney fees. R. 1153-54 & R. 1157-58.

On the same day, February 19, 2009, Ocean filed a motion for leave to file

an amended complaint to include these purported additional defaults as the bases

for its claims, attaching a copy of the amended complaint to its motion. R. 468-72

& R. 473-495. Appellants answered the Amended Complaint, denying that they

were in default, and asserting affirmative defenses including that Ocean Bank had

failed to satisfy the conditions precedent to declaring a default, and filing suit

under the Mortgages and Notes. See R. 1043-63.

G. Ocean Bank’s Motion of Summary Judgment

Ocean Bank filed a motion for summary judgment on March 26, 2010. See

R. 1112. It relied on an affidavit of its Vice President, Suzayn Shearin, as the only

support for its claim that Realty and Management had defaulted. See R. 118, ¶¶4-

5. Ms. Shearin’s vague statements that the loans were in default “as a result of the

appointment of a receiver over Grove One Realty, LLC” and “the appointment of a

receiver over Grove One Management, LLC,” made up the entirety of the Bank’s

evidence in support of the supposed existence of an “order, judgment, or decree”

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granting “a Petition seeking appointment of a receiver or trustee of all or a

substantial part of the MORTGAGOR'S assets” in violation of the Mortgages. See

id. & R. 1142, ¶¶7-8.

Ocean Bank did not submit evidence in the form of a copy – certified or

otherwise – of any “order, judgment, or decree” that would satisfy the

requirements for declaring a default under the Mortgages. And for good reason,

because no such order, judgment, or decree ever existed. Indeed, more than a

month before the Bank’s motion was filed, New York’s highest court had

emphatically stated that in entering the orders Ocean Bank relied on in filing suit

the trial court had not “approv[ed] a Petition seeking appointment of a receiver or

trustee of all or a substantial part of the MORTGAGOR'S assets.” To the contrary,

that state’s Court of Appeals had concluded that the trial court had jurisdiction to

enter the orders at issue precisely because the receivership was over Guy Mitchell’s

intangible membership interests in corporations, not over the assets of the

corporations themselves. The trial court, explained the Court of Appeals, granted a

petition seeking “receivership over [Guy Mitchell’s] ownership/ membership

interests, not the day-to-day operation of a foreign corporation” such as

Management and Realty. See Hotel 71 Mezz Lender LLC v. Falor, 926 N.E. 2d

698, 708 (N.Y. 2010).

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On July 30, 2010, the trial court held a hearing on Ocean Bank’s motion for

summary judgment. See Transcript of July 30, 2010 Hearing, Ex. A to Appellants’

Motion to Supplement the Record, filed concurrently with this Initial Brief. At the

hearing, the Bank argued that the court should grant judgment in its favor because

“most importantly, a receiver was appointed by a New York Court on April 7,

2008 over all assets of Mr. Mitchell…” Id. at 3:18-20. It further argued that it was

not required under the Mortgages to give notice or allow cure before declaring a

default and filing suit. Id. at 4:25 – 5:10.

A few minutes into the hearing, the trial court relieved Ocean Bank from

having to argue why summary judgment was appropriate, and asked Appellants to

justify why it shouldn’t be granted. Id. at 5:19-20. In response, Appellants argued,

among other things, that the Mortgages did in fact contain 30 day notice and cure

provisions (in Paragraph 8) and that the Bank had not complied with them. Id. at

6:17-20. Appellants also pointed out to the trial court that the New York court did

not actually appoint a receiver over Realty’s or Management’s assets, and that the

person who had purported to assume receivership of them had actually been

removed. Id. at 13:6 – 14:7. But rather than requiring Ocean Bank to submit

proper evidence of the order it supposedly relied on, the trial court put the burden

on Appellants, the non-moving parties, to show that the order did not say what the

Bank asserted. Id. at 17:7 – 18:6.

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Thirty-seven minutes into the hearing, the trial court announced that it had

“fully considered the arguments of all counsel” and was “going to grant the motion

for summary judgment.” Id. at 34:9 – 11. It entered a Final Judgment of

Foreclosure prepared by Ocean Bank’s counsel in the form prescribed for

residential foreclosure cases under 11th Judicial Circuit Administrative Order 09-

09. See R. 1331-1337. Appellants timely filed their Notice of Appeal on August

30, 2010. See R. 1322.

III. SUMMARY OF ARGUMENT

Under Florida law, when a party moves for summary judgment, that party

has the burden of conclusively demonstrating through competent and admissible

evidence that the material facts are not in dispute, and that it is entitled to judgment

as a matter of law. The trial court, which treated this complex commercial case as

a standard residential foreclosure, erred in failing to hold Ocean Bank to the

burden of conclusively showing that it was entitled to judgment.

First, the trial court erred in failing to require Ocean Bank to proffer

competent and admissible evidence demonstrating that an “order, judgment, or

decree” had been “entered upon an application of a creditor of MORTGAGOR by

a court of competent jurisdiction approving a Petition seeking appointment of a

receiver or trustee of all or a substantial part of the MORTGAGOR'S assets,” as

required to trigger a default under the Mortgages. The evidence Ocean Bank

16

offered to prove the existence of such an order was incompetent and inadmissible,

and could not have carried its burden. Even if it had been admissible and

competent evidence (which it was not), the statements in Shearin’s affidavit on

which Ocean Bank relied did not show that the requirements for declaring a default

under Paragraph 21/22 of the Mortgages had been satisfied. That is because no

such order, judgment, or decree ever existed.

Second, the trial court erred in failing to require Ocean Bank to submit any

evidence showing that it had complied with Paragraph 8 of the Mortgages prior to

accelerating Realty and Management’s debts and declaring defaults. The plain

language of Paragraph 8 required the Bank to provide notice and an opportunity for

Realty and Management to cure any alleged non-compliance with the terms of the

Mortgages or Notes prior to declaring the entire principal balance of the loans to

be immediately due and payable.

Finally, even if the trial court’s grant of summary judgment as to liability

could be sustained (and it cannot), the trial court’s form Final Judgment of

Foreclosure awards to the Bank a grossly inflated, and unsupported, amount of

damages, and erroneously apportions those damages. Ocean Bank did not even

attempt to argue that Amelia Mitchell should be held liable for the amount

allegedly owed under all three Notes. Nor did Ocean Bank make any showing to

justify the extremely high interest rates used in calculating the final judgment

17

amount, which on their face conflict with the default interest rates specified in the

Mortgages.

Because Ocean Bank failed to carry its burden of conclusively showing

through competent and admissible evidence that it was entitled to judgment as a

matter of law, the trial court’s Final Judgment of Foreclosure should be reversed.

IV. ARGUMENT

As detailed below, the trial court erred in granting summary judgment for

Ocean Bank despite its failure to demonstrate that it had given Appellants notice

and the opportunity to cure, or to put on evidence that a court had ordered the

appointment of a receiver over Realty or Management. Moreover, even had the

entry of judgment been proper as to liability (and it was not), the amount of the

judgment, and the portion attributable to Amelia Mitchell were not supported by

the summary judgment evidence.

A. Standard of Review

An order granting summary judgment is reviewed de novo. Volusia Cty. v.

Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000). On review, this

Court “‘consider[s] the evidence contained in the record, including any supporting

affidavits, in the light most favorable to the non-moving party ... and if the slightest

doubt exists, the summary judgment must be reversed.’” Rocamonde v. Marshalls

of Ma, Inc., 56 So. 3d 863, 864 (Fla. 3d DCA 2011) (quoting Tropical Glass &

18

Constr. Co. v. Gitlin, 13 So.3d 156, 158 (Fla. 3d DCA 2009)). “The law is well

settled in Florida that a party moving for summary judgment must show

conclusively the absence of any genuine issue of material fact[.]” Alejandre v.

Deutsche Bank Trust Co., 44 So. 3d 1288 (Fla. 4th DCA 2010) (emphasis

supplied).

“‘If the evidence raises any issue of material fact, if it is conflicting, if it will

permit different reasonable inferences, or if it tends to prove the issues, it should be

submitted to the jury as a question of fact to be determined by it.’” Alejandre, 44

So. 3d at 1288 (quoting Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985)).

“Summary judgment should not be granted ‘unless the facts are so crystallized that

nothing remains but questions of law.’” Rocamonde, 56 So. 3d at 864-65 (quoting

Moore, 475 So. 2d at 668). The party moving for summary judgment bears the

burden of “conclusively” demonstrating “the complete absence of any genuine

issue of a material fact.” Valencia v. Deutsche Bank Nat’l Trust Co., No. 4D09-

3297, --- So. 3d ----, 2011 WL 2462673 (Fla. 4th DCA June 22, 2011). As

explained below, Ocean Bank did not come close to meeting this burden as to its

entitlement to accelerate and foreclose, the amount owed to it, or the liability of

Amelia Mitchell.

19

B. The Court Erred in Finding a Default Under Paragraph 21/22

Ocean Bank failed to conclusively demonstrate through admissible and

competent evidence that a receiver was appointed at all, much less in a manner that

would trigger a default under the Mortgages. Summary judgment for a foreclosing

mortgagee is proper only when it pleads and conclusively establishes through

evidence that the mortgagor has defaulted on its obligations under the mortgage

and promissory note, and that the mortgagee is entitled to foreclose. Terra Firma

Holdings v. Fairwinds Credit Union, 15 So. 3d 885, 886 (Fla. 2d DCA 2009);

Delandro v. America’s Mortg. Servicing, Inc., 674 So. 2d 184 (Fla. 3d DCA1996).

And as Florida Rule of Civil Procedure 1.510(c) states explicitly, the moving

party must submit admissible and competent evidence in support of each material

fact sought to be established. See TRG-Brickell Point NE, Ltd v. Wajsblat, 34 So.

3d 53, 55 (Fla. 3d DCA 2010); Schrank v. Pearlman, 683 So. 2d 559, 563 (Fla. 3d

DCA 1996). Thus, a mortgagee is not entitled to a summary judgment of

foreclosure unless it submits competent admissible evidence of its right to

foreclose on the mortgage. See, e.g., Servedio v. U.S. Bank, N.A., 46 So. 3d 1105,

1107 (Fla. 4th DCA 2010) (citing TRG-Brickell, 34 So. 3d at 55). Ocean Bank

failed to submit such evidence in support of its motion for summary judgment.

As noted, Ocean Bank purported to accelerate all three notes under the

premise that an “order, judgment, or decree” had been entered that allowed it to

20

declare the entire principal balance immediately due under the terms of Paragraph

21 of the 9/03 and 11/03 Mortgages and Paragraph 22 of the 12/05 Mortgage. But

Ocean Bank did not submit the one piece of evidence that could have established

such a breach of the Mortgages: an original or certified copy of the “order,

judgment, or decree” on which it purported to rely.

Instead, the Bank offered nothing more than hearsay statements in Shearin’s

affidavit saying that the Realty Notes and Mortgages were “in default, among other

things: (i) as a result of the appointment of a receiver over Grove One Realty, LLC

and that receivership having continued unstayed an in effect for over thirty (30)

days;” and stating that the Management Note and Mortgage was “in default, among

other things: (i) as a result of the appointment of a receiver over Grove One

Management, LLC…” R. 118, ¶¶4-5 & R. 1142, ¶¶7-8.

The trial court erred in crediting those statements, which are incompetent as

a matter of law. Under long established Florida law, testimony is incompetent and

inadmissible to prove the existence of an order or judgment in another case, or that

it satisfied any of those conditions. See, e.g., Abichandani v. Related Homes of

Tampa, Inc., 696 So. 2d 802 (Fla. 2d DCA 1997) (“[F]or the trial court in the case

before us to know of the issues in the trespass suit, certified copies of the relevant

documents from the record in that case, or the court file, must have been presented

to the trial court”); Bergeron Land Development, Inc. v. Knight, 307 So. 2d 240

21

(Fla. 4th DCA 1975) (“In order to prove some matter contained in the record of a

case other than the one being litigated, a party must offer the other court file or

certified copies of portions thereof into evidence in the case then being litigated”);

accord Novack v. Novack, 196 So. 2d 499, 500 (Fla. 3d DCA 1967) (reversing

summary judgment where moving party relied on judgment in another case but did

not submit original or certified copy of the judgment). Indeed, an original or

certified copy is the only competent evidence that can show that an order or

judgment exists. See Belamy v. Hawkins, 17 Fla. 750, 760 (1886) (“The existence

of a judgment or decree, or its amount or effect, cannot be proved by the

admissions of parties, the original record being in existence and accessible”).

Moreover, even if the testimony could be considered, it did not show that the

conditions for accelerating and foreclosing under Paragraph 21 (and the identical

Paragraph 22 in the 12/05 Mortgage) were satisfied. The terms of those

paragraphs, which “must be construed in accordance with their plain meaning, as

bargained for by the parties,” Konsulian v. Busey Bank, N.A., 61 So.3d 1283, 1285

(Fla. 2d DCA 2011), required Ocean Bank to prove far more than simply “the

appointment of a Receiver over” Realty and Management. Ocean Bank could only

accelerate, declare a default, or foreclose if: (1) an “order, judgment, or decree”

was entered; (2) upon an application of a creditor of the mortgagor (Realty or

Management); (3) by a court of competent jurisdiction; (4) approving a Petition

22

seeking appointment of a receiver or trustee of all or a substantial part of the

mortgagor’s assets. The affidavit did not even attempt to show any of these

things. It simply stated that there had been an “appointment of a receiver over”

Realty and Management.

There was a good reason that Ocean Bank declined to submit the order on

which it purported to rely, and that its affidavit was so vaguely worded – because

no such order ever existed. The New York court orders on which Ocean Bank

supposedly relied do not come close to meeting the requirements of Paragraph 21

(and 22). First, the orders were not entered “upon the application of a creditor of

the mortgagor” – neither Realty nor Management was even a party to the New

York litigation. Second, the orders did not grant a petition seeking appointment of

a receiver over the mortgagors’ assets, but rather over Guy Mitchell’s assets,

including his intangible “ownership/ membership interests” (the LLC equivalent of

stock certificates) in Realty and Management. See Hotel 71 Mezz Lender LLC v.

Falor, 926 N.E. 2d 698, 708 (N.Y. 2010). Realty and Management were the

Mortgagors, not Guy Mitchell. So only an order granting the petition of a creditor

of Realty and Management, appointing a receiver over the LLCs’ assets rather than

Guy Mitchell’s, could have satisfied the conditions for declaring a default under

Paragraph 21(22).

23

Thus, because Ocean Bank did not submit admissible and competent

evidence demonstrating the existence of an “order, judgment, or decree” entitling it

to declare the entire principal amount of the Notes immediately due, it did not

conclusively show that there were no material facts in dispute. As such, the trial

court erred in granting summary judgment to Ocean Bank.

C. The Trial Court Erred in Failing to Require Ocean Bank to Show That it Satisfied Paragraph 8’s Conditions Precedent

The trial court should have denied Ocean Bank’s motion for summary

judgment for another reason as well: because the Bank failed to submit evidence

that it complied with the requirements of Paragraph 8 in each Mortgage. Whether

considered as an element of the Banks’ claims, or an affirmative defense, Ocean

Bank was required to demonstrate its compliance with Paragraph 8’s notice and

cure provisions. “In the absence of some proof contradicting an affirmative

defense, entry of summary judgment is improper.” E. Qualcom Corp. v. Global

Commerce Center Ass’n, 59 So. 3d 347, 352 (Fla. 4th DCA 2011); see also

Konsulian, 61 So.3d at 1285 (reversing grant of summary judgment where

“nothing in Busey’s complaint, motion for summary judgment, or affidavits

indicates that Busey gave Konsulian the notice which the mortgage required”);

Alejandre, 44 So. 3d at 1289. The trial court erred in granting summary judgment

because Ocean Bank did not carry its burden of negating Appellants’ affirmative

defense that the Bank was required to give them notice and the opportunity to cure

24

any alleged non-compliance with or breach of the Mortgages’ requirements. See

Frost v. Regions Bank, 15 So. 3d 905, 906-907 (Fla. 4th DCA 2009) (“Because the

bank did not meet its burden to refute the Frosts’ lack of notice and opportunity to

cure defense, the bank is not entitled to final summary judgment of foreclosure.”)

1. The Bank Was Required to Give Notice and Allow Time to Cure Before Declaring a Default

Under Paragraph 8 of the Mortgages, Ocean Bank was required to give

notice to Realty and Management and allow them a specified period of time

(ranging from 10 to 90 days depending on the alleged breach of the Mortgage or

Note) to cure any breach, before declaring the entire debt immediately due. See R.

1270-71 ¶8 (9/03 Mortgage); R. 1305 ¶8 (11/03 Mortgage); R. 1286 ¶8 (12/05

Mortgage). For any failure to make a timely payment, a default could be declared

only if the Mortgagor did not cure its non-payment “within ten (10) days” after

“written notice after the same becomes due and payable[.]” R. 1270 ¶8; R. 1305

¶8; R. 1286 ¶8. For non-compliance or breach of “any of the other stipulations,

agreements, conditions, and covenants,” a default could not be declared unless the

Bank provided “written notice” to the Mortgagor, and the Mortgagor was given 30

days to cure its breach or non-compliance. R. 1271 ¶8; R. 1305 ¶8; R. 1286 ¶8.

Moreover, under the 9/03 Mortgage and the 12/03 Mortgage, “if such failure [was]

not susceptible to cure within such 30-day period,” Ocean Bank was required to

25

give the mortgagor “additional time as reasonably necessary to complete such

cure” up to 90 days. R. 1271 ¶8; R. 1305 ¶8.

2. The Bank Did Not Establish That It Complied With the Notice and Cure Requirement

Ocean Bank submitted no evidence that it gave written notice to either

Realty or Management that their debts would be declared immediately due if they

did not cure any alleged non-compliance or breach by means of the appointment of

a receiver. Indeed, the only evidence of correspondence to Realty and

Management that Ocean Bank submitted were copies of letters dated September 5,

2008 stating that Ocean Bank was immediately declaring “all outstanding

principle” plus penalty interest and attorneys’ fees to be due, without any

opportunity, much less 90 days, for cure. R. 1147-51.

Similarly, the only evidence Ocean Bank submitted that it gave notice to

Appellants of any alleged failure to make monetary payments under the Notes or

Mortgage are February 19, 2009 letters to Realty and Management sent months

after the Bank filed suit – and on the same day it filed an amended complaint –

asserting that it had already declared defaults as a result of alleged non-payment.

See R. 1153-55 & R. 1157-59. And like its September 5, 2008 letters, these letters

did not afford the mortgagors the required time (10 days) to cure non-payment, but

rather purported to declare immediately due the entire outstanding principal

26

amount, plus penalty interest retroactive to the asserted date of non-payment and

attorney fees. See id.

Because they declared immediate defaults and acceleration of the debts, and

afforded no opportunity whatsoever for cure, these letters could not possibly

satisfy the Bank’s notice and cure obligations under Paragraph 8. As such, Ocean

Bank failed to carry its burden of conclusively showing that it complied with the

Mortgages’ conditions precedent before declaring a default and filing suit.

3. The Bank’s Contention That It Was Not Required to Give Notice and Cure Was Erroneous

Although the trial court’s order does not mention this issue, it appears that

the trial court credited the Bank’s argument that it was not required to give notice

or an opportunity to cure before declaring a default. See 7/30/10 Trans. at 9:25 –

10:13. Citing LRB Holding Corp. v. Bank of Am., N.A., 944 So. 2d 1113, 1114

(Fla. 3d DCA 2006) and August Tobler, Inc. v. Goolsby, 67 So.2d 537 (Fla. 1953),

Ocean Bank argued that it could simply file suit and its filing of the suit was

sufficient to give the mortgagors notice. 7/30/10 Trans. at 9:2-11. According to

the Bank, as a matter of law, it simply was not required to afford the mortgagors

notice and an opportunity to cure any alleged non-compliance with the terms of the

Notes and Mortgages before declaring a default and filing suit. See id.

But neither LRB Holding nor Goolsby, which interpreted the requirements of

different mortgage documents, supports the Bank’s contention that it did not have

27

to comply with Paragraph 8. In LRB Holding, unlike in this case, the bank did

send the borrower notice of its intent to accelerate before declaring the entire

principal balance immediately due. LRB Holding, 944 So. 2d at 1114. And as this

Court observed in LRB Holding, the court in Goolsby did not hold that notice-and-

cure provisions are satisfied as a matter of law when a mortgagor is served with a

mortgagee’s foreclosure complaint. To the contrary, Goolsby stands for the

unremarkable proposition that “absent [a] notice requirement in [the] contract,

notice was accomplished by filing suit[.]” LRB Holding, 944 So. 2d at 1114-1115

(emphasis supplied). But the Mortgages here did have a notice and cure

requirement – set forth in Paragraph 8.

4. Under Florida Law, the Mortgages’ Notice and Cure Requirements Must Be Given Effect

Moreover, although Paragraph 21 of the 9/03 and 11/03 Mortgages

(Paragraph 22 of the 12/05 Mortgage), which state that certain orders appointing

receivers can be a default, itself does not provide for a notice-and-cure opportunity

(it is silent on the issue), Paragraph 8, by its terms, is applicable to any breach or

non-compliance under the Mortgage. And it mandates that notice and an

opportunity for cure be given prior to declaring any default under any provision of

the Mortgages.

28

In addition, and contrary to Ocean Bank’s argument in the trial court,

Paragraph, 8, by its own terms, is controlling over any conflicting provision,

stating explicitly that it applies, “anything in the PROMISSORY NOTE or in this

Mortgage to the contrary notwithstanding[.]” R. 1271 ¶8; R. 1305 ¶8; R. 1286 ¶8.

This specification, like every other provision in a contract, must be given “its full

meaning and operative effect.” Auto-Owners Ins. Co. v. Anderson, 756 So. 2d 29,

34 (Fla. 2000).

Ocean Bank’s proffered reading of the Mortgages is also untenable for

another reason. Under Florida law, “if possible, conflicting provisions of a

contract are to be read in such a way as to give a reasonable interpretation and

effect to all provisions.” Discover Property & Cas. Ins. Co. v. Beach Cars of West

Palm, Inc., 929 So. 2d 729, 732 (Fla. 4th DCA 2006). Ocean Bank’s assertion --

that no notice and cure period was required prior to declaring the Mortgages in

default and all sums immediately due – violates that principle, by depriving

Paragraph 8 of its meaning.

Paragraphs 8 and 21 (22 in the 12/05 Mortgage) can be given “a reasonable

interpretation” that gives effect to both of them. Paragraph 21 (22) can be read to

simply set out some of the “stipulations, agreements, conditions, and covenants”

that if “not fully performed, complied with and abided by after thirty (30) days

written notice,” are “considered a default” under Paragraph 8. In other words, if a

29

receiver were to be appointed over a mortgagor’s assets in a manner that breached

the terms of Paragraph 21(22), the mortgagor was to be given notice of a potential

default and a 30 to 90 day period to cure any non-compliance. If – and only if –

the mortgagor failed to cure within the period allowed after written notice, Ocean

Bank had the right to declare a default and all sums immediately due.3

Because Ocean Bank presented no evidence that it gave Realty and Grove

written notice and allowed the required time periods (10 days for non-payments, 30

to 90 days for other non-compliance) for cure, it did not conclusively establish that

there were no material facts in dispute as to its right to accelerate the Mortgages

and foreclose on them. As such, the trial court erred in entering summary

judgment in Ocean Bank’s favor.

D. The Trial Court’s Order Erroneously Calculates the Amount and Apportionment of Damages

Even putting aside Ocean Bank’s failure to submit evidence conclusively

demonstrating that it was entitled to declare all principal, plus penalty interest and

3 If these provisions could not be reconciled, that would simply create an ambiguity in the contract, Beach Cars, 929 So. 2d at 732, and “Florida law requires that a contract be interpreted against the drafter when the contract contains ambiguous terms.” DSL Internet Corp. v. TigerDirect, Inc., 907 So. 2d 1203, 1205 (Fla. 3d DCA 2005) (citing Excelsior Ins. Co. v. Pomona Park Bar & Package Store, 369 So. 2d 938, 942 (Fla. 1979)). Ocean Bank was the drafter of the Mortgage documents, so any conflict between Paragraph 8 and Paragraph 21(22) must be interpreted against the Bank and in favor of requiring notice and cure.

30

attorney fees, immediately due, the order entered by the trial court awarded Ocean

Bank greater damages than it was entitled to, and apportioned a larger share of the

liability to Amelia Mitchell than Ocean Bank even requested.

First, the trial court’s order erroneously finds Amelia Mitchell liable for the

full amount of the judgment attributable to all three Notes, R. 1332, ¶3. But, as

Ocean Bank’s own motion for summary judgment admitted, Amelia Mitchell did

not personally guaranty the 12/05 Note. See R. 1125 (arguing that “Guy Mitchell

is individually liable for the full amount owed to Ocean Bank by Borrowers on

all three Notes;” but asserting only that “Amelia Mitchell is individually liable

for the full amount owed to Ocean Bank by Borrowers on the Realty Note Two

[the 9/03 Note] and Management Note [the 11/03 Note]”). And for good

reason, for as noted, Ocean Bank submitted no evidence showing that Amelia

Mitchell executed a personal guaranty with respect to the 12/05 Note. As

such, the trial court erred in finding Amelia Mitchell liable for the full

amount allegedly owed on all three Notes, including the 12/05 Note.

Second, Ocean Bank made no showing to justify the amount of interest

added to the principal balance in the trial court’s order, other than pro forma

statements in Shearin’s affidavit that such amounts were owed. On their face,

however, the interest amounts stated in the order are in conflict with the

provisions of the Notes. For example, the 9/03 Note called for an 18%

31

Default interest rate. R. 1261. Even if the Bank had been entitled (and it was

not) to charge the Default rate during the period of 4/30/08 to 3/11/10 as stated in

the trial court’s order, the amount of interest for this one year and 315 day period

of time should have been ($4,043,545.37)(.18) = $727,838.17 for the year from

4/30/08 – 4/30/09, and ($4,043,545.37)(.18)(315/360)=$636,858.40 for the 315

remaining days, for a total of $1,364,696.57. Yet the trial court’s order states the

interest owed on the 9/03 Note as $2,262,027.06 – a difference of almost $900,000.

See R. 1332, ¶3(b).

Similarly, the 11/03 Note stated a Default interest rate of 18%. R. 1299. So

even if the Bank had been entitled to charge that rate from 8/6/08 – 3/11/10 as

stated in the order (and it was not), the interest should have accrued as follows:

($315,303.30)(.18) = $56,754.59 for the one year period from 8/6/08 through

8/5/09, plus ($315,303.30)(.18)(217/360)= $34,210.41 for the 217 days from

8/6/09 through 3/11/10, for a total of $90,965.00. The trial court ordered

Appellants to pay $110,968.90 in interest accrued during that time period. See R.

1333, ¶3(c).4

Thus, for this additional reason, even if Ocean Bank had submitted sufficient

evidence to conclusively demonstrate the absence of disputed material facts as to

liability, the trial court’s order should be reversed as a result of its erroneous

4 The stated amount of interest owed on the 12/05 Note is similarly flawed.

32

damage calculations and apportionment of greater liability to Amelia Mitchell than

Ocean Bank even attempted to justify.

V. CONCLUSION

This complex commercial dispute should not have been treated like a

standard, pro forma residential foreclosure case. The trial court erred in failing to

require Appellee Ocean Bank to conclusively demonstrate through admissible and

competent evidence the non-existence of disputed issues of material fact as to the

Bank’s entitlement to declare a default, and its satisfaction of the conditions

precedent for doing so. The trial court further erred in failing to require Ocean

Bank to justify the amount of interest it awarded, and the way in which damages

were apportioned. For all of these reasons, the trial court’s Final Judgment of

Foreclosure should be reversed.

Dated: July 20, 2011 Respectfully submitted,

_______________________ Daniel A. Bushell BUSHELL APPELLATE LAW, P.A.

2000 Glades Road, Suite 110 Boca Raton, Florida 33431 Phone: 561-368-8400 Fax: 561-368-8403

33

Email: [email protected] Florida Bar No. 43442

Counsel for Appellants

CERTIFICATE OF SERVICE

I hereby certify that on this 20th day of July, 2011, a true and correct copy of the foregoing was served via email and First Class U.S. Mail on the following:

Jack R. Reiter CARLTON FIELDS, P.A. 110 SE Second St., Suite 3900 Miami, FL 33131 Phone: 305-530-0050 Fax: 305-530-0055 Email: [email protected]

Jorge J. Perez (Receiver) GORDON & REES, LLP 200 S. Biscayne Blvd., Suite 4300 Miami, FL 33131 Phone: (305) 668-4433 Fax: (877) 634-7245 Email: [email protected]

________________________ Daniel A. Bushell

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief satisfies the font requirements of Rule 9.210(a)(2) of the Florida Rules of Appellate Procedure. It was generated in Times New Roman 14 point font.

__________________________ Daniel A. Bushell