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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDAFIFTH DISTRICT
CASE NO. 5D13-OO11
L.T. Case No. 08-CA-020207-O
FRANKLIN J. NERO, SR.,
Appellant,
vs.
MAYAN MAINSTREET INVESTORS I, LLC, ET. AL.,
App ellees.
On Appeal from the Circuit Court of the Ninth Judicial Circuitin and for Orange County, Florida
APPELLEE'S ANSWER BRIEF
EDWARD J. O'SHEEHANFlorida Bar No. 0056790eosheehan@shutts . corn
ERIC C. REEDFlorida Bar No. 0557161
ereed@shutts . cornDAVID J. MARKESE
Florida Bar No. 0105041drnarkese@shutts . corn
SHUTTS & BOWEN LLP300 South Orange Avenue, Suite 1000
Orlando, Florida 32801Tel. : (407) 835-6790; Fax: (407) 849-7259
Counsel for Appellee Mayan Mainstreet Investors I, LLC
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDAFIFTH DISTRICT
CASE NO. 5D13-0011
L.T. Case No. 08-CA-020207-0
FRANKLIN J. NERO, SR.,
Appellant,
vs.
MAYAN MAINSTREET INVESTORS I, LLC, ET. AL.,
Appellees.
On Appeal from the Circuit Court of the Ninth Judicial Circuitin and for Orange County, Florida
APPELLEE'S ANSWER BRIEF
EDWARD J. O'SHEEHANFlorida Bar No. [email protected]
ERIC C. REEDFlorida Bar No. 0557161
[email protected] J. MARKESE
Florida Bar No. [email protected]
SHUTTS A BOWEN LLP300 South Orange Avenue, Suite 1000
Orlando, Florida 32801Tel.: (407) 835-6790; Fax: (407) 849-7259
Counsel for Appellee Mayan Mainstreet Investors I, LLC
E-Copy Received Jun 10, 2013 3:53 PM
TABLE OF CONTENTS
PRELIMINARY STATEMENT .1
PROCEDURALHISTORY ..................................................................................... i
SUMMARYOF ARGUMENT ................................................................................ 3
ARGUMENT........................................................................................................... 5
I. STANDARD OF REVIEW ........................................................................... 5
II. COMPETENT SUBSTANTIAL EVIDENCE SUPPORTS THECIRCUIT COURT'S FACTUAL FINDINGS THAT SUPPORT THERULINGON RESCISSION .......................................................................... 5
A. RESCISSION - MARGARET NERO .......................................................... 5
B. RESCISSION - FRANKLIN NERO............................................................. 6
III. THE CIRCUIT COURT DID NOT ABUSE ITS DISCRETION INMAKING ITS EVIDENTIARY RULINGS ................................................ i i
IV. THE CIRCUIT COURT DID NOT ERR IN DISMISSING ORDIRECTING A VERDICT AS TO CERTAIN OF NERO'SCOUNTERCLAIMS .................................................................................... i 6
V. THE CIRCUIT COURT DID NOT ERR IN STRIKING NERO'SCLAIMS FOR TREBLE DAMAGES AND PUNITIVE DAMAGES,FOR NOT AWARDING ATTORNEYS' FEES, FOR AWARDINGINTEREST, AND FOR FAILING TO APPLY JUDICIALESTOPPEL.................................................................................................. 20
VI. CONCLUSION ............................................................................................ 22
CERTIFICATE OF SERVICE ............................................................................... 24
CERTIFICATE OF COMPLIANCE ..................................................................... 25
TABLE OF CONTENTS
PRELIMINARY STATEMENT
PROCEDURAL HISTORY.
SUMMARY OF ARGUMENT
ARGUMENT ..I. STANDARD OF REVIEW
II. COMPETENT SUBSTANTIAL EVIDENCE SUPPORTS THECIRCUIT COURT'S FACTUAL FINDINGS THAT SUPPORT THERULING ON RESCISSION.
A. RESCISSION —MARGARET NERO
B. RESCISSION —FRANKLIN NERO
III. THE CIRCUIT COURT DID NOT ABUSE ITS DISCRETION IN
MAKING ITS EVIDENTIARY RULINGS.
IV. THE CIRCUIT COURT DID NOT ERR IN DISMISSING ORDIRECTING A VERDICT AS TO CERTAIN OF NERO'SCOUNTERCLAIMS 16
V. THE CIRCUIT COURT DID NOT ERR IN STRIKING NERO'SCLAIMS FOR TREBLE DAMAGES AND PUNITIVE DAMAGES,FOR NOT AWARDING ATTORNEYS'EES, FOR AWARDING
INTEREST, AND FOR FAILING TO APPLY JUDICIALESTOPPEL 20
VI. CONCLUSION.
CERTIFICATE OF SERVICE.
22
24
CERTIFICATE OF COMPLIANCE . 25
TABLE OF CITATIONS
Cases
Borda y. East Coast Entertainment, Inc., 950 So. 2d 488 (Fia. 4th DCA 2007) ...... 5
Brown & Brown, Inc. y� School Bd. ofHamilton County, 97 So. 3d 918 (Fia. 5thDCA2O12) ......................................................................................................... 21-22
Castor y State, 365 So. 2d 701 (Fia. 1978) ............................................................ 12
Clegg y Chipola Aviation, Inc., 458 So. 2d i 186 (Fia. ist DCA 1984) .................. 5
Dove y. McCormick, 698 So. 2d 585 (Fia. 5th DCA 1997) ................................... 16
Duest y. Dugger, 555 So. 2d 849 (Fia. 1990) ..................................................... 13-14
Florida Emergency Physicians-Kang and Associates, M.D., P.A. y. Parker, 800 So.2d 631 (Fia. 5th DCA 2001) .................................................................................... 14
Florida Hometown Democracy, Inc. y. Cobb, 953 So. 2d 666 (Fia. i st DCA 2007).13-14, 17, 18, 19
Garsh y. Wells Fargo Bank, N.A., 2012 WL 1207220 (Bkrtcy. D. N.J. April 9,2012) ........................................................................................................................ 10
H & H Eiec., Inc. y. Lopez, 967 So. 2d 345 (Fia. 3d DCA 2007) ............................ 5
Iroanyah y. Bank ofAmerica, N.A., 851 F. Supp. 2d 1 1 15 (N. D. Iii. 2012) ........... 9
McCollem y. Chidnese, 832 So. 2d 194 (Fia. 4th DCA 2002) ................................. 7
Parry y. Nationwide Mutual Fire Insurance Co., 407 So. 2d 936 (Fia. 5th DCA1981) ........................................................................................................................ 12
Pezzimenti y. Cirou, 466 So. 2d 274 (Fia. 2d DCA 1985) ....................................... 7
R.C. y. Dep't ofChildren and Family Svcs. and Guardian Ad Litern Program, 33So. 3d 710 (Fia. 2d DCA 2010) .......................................................................... 12-13
11
TABLE OF CITATIONS
Cases
Borda v. East Coast Entertainment„ Inc., 950 So. 2d 488 (Fla. 4th DCA 2007) ......5
Brown k, Brown„ Inc. v. School Bd. of Hamilton County, 97 So. 3d 918 (Fla. 5th
DCA 2012) . 21-22
Castor v. State, 365 So. 2d 701 (Fla. 1978)
Clegg v. Chipola Aviation„ Inc., 458 So. 2d 1186 (Fla. 1st DCA 1984) ....
Dove v, McCormick, 698 So. 2d 585 (Fla. 5th DCA 1997) .
Duest v. Dugger, 555 So. 2d 849 (Fla. 1990).
12
16
13-14
Florida Emergency Physicians-Kang and Associates„M.D.„P.A. v. Parker, 800 So.2d 631 (Fla. 5th DCA 2001). 14
Florida Hometown Democracy, Inc. v. Cobb, 953 So. 2d 666 (Fla. 1st DCA 2007).13-14, 17, 18, 19
Garsh v. Wells Fargo Bank, N.A., 2012 WL 1207220 (Bkrtcy. D. N.J. April 9,2012). 10
H A. H Elec.„ Inc. v. Lopez, 967 So. 2d 345 (Fla. 3d DCA 2007)
Iroanyah v. Bank of America„N.A., 851 F. Supp. 2d 1115 (N. D. Ill. 2012)....,
McCollem v. Chidnese, 832 So. 2d 194 (Fla. 4th DCA 2002)
Parry v. Nationwide Mutual Fire Insurance Co., 407 So. 2d 936 (Fla. 5th DCA1981). 12
Pezzimenti v. Cirou, 466 So. 2d 274 (Fla. 2d DCA 1985)
R.C. v. Dep't of Children and Family Svcs. and Guardian Ad Litem Program, 33So. 3d 710 (Fla. 2d DCA 2010) 12-13
Riopta y. Amresco Residential Mortgage Corp., 101 F. Supp. 2d 1326 (D. Hawaii
1999) ..................................................................................................................... 9-10
Ross y. Phillips, 913 So. 2d 771 (Fia. 2d DCA 2005) .............................................. 3
Sanford y. Rubin, 237 So. 2d 134 (Fia. 1970) ................................................... 12-13
Singer y� Borbua, 497 So. 2d 372 (Fia. 3d DCA 1986) .......................................... 14
Southern Baptist Hospital ofFla., Inc. y� Weiker, 908 So. 2d 317 (Fia. 2005) ........ 5
Uniyersai Insurance Co. ofNorth America y Warfel, 82 So. 3d 47 (Fia. 2012) .......
........................................................................................................... 12
U.S. Bank Nat'i Ass'n y. Guiliaume, 2012 WL 603307 (N.J. Feb. 27, 2012) ........ 10
Wiiliams y. Homestake Mortgage Co., 968 F.2d 1137 (11th Cir. 1992) .............. 8-9
Statutes
15 U.S.C. � 1635(b) ............................................................................................... 4, 9
15 U.S.C. � 1635(f) ................................................................................................. 16
Rules
Fia.R.Ciy.P. 1.130(a) ....................................................................................... 10-11
Fia. R. App. P. 9.210 ............................................................................................... 25
111
Riopta v. Amresco Residential Mortgage Corp., 101 F. Supp. 2d 1326 (D. Hawaii
1999) 9-10
Ross v. Phillips, 913 So. 2d 771 (Fla. 2d DCA 2005)
Sanford v. Rubin, 237 So. 2d 134 (Fla. 1970)
Singer v. Borbua, 497 So. 2d 372 (Fla. 3d DCA 1986) .
12-13
..14
Southern Baptist Hospital of Fla.„ Inc. v. Welker, 908 So. 2d 317 (Fla. 2005) ........5
Universal Insurance Co. of North America v. Warfel, 82 So. 3d 47 (Fla. 2012) .......12
U.S. Bank Nat'1 Ass'n v. Guillaume, 2012 WL 603307 (N.J. Feb. 27, 2012) ...
Williams v. Homestake Mortgage Co., 968 F.2d 1137 (11th Cir. 1992) ...
....1 0
....8-9
Statutes
15 U.S.C. ) 1635(b).
15 U.S.C. ) 1635(f)
4 9
16
Rules
Fla. R. Civ. P. 1.130(a)
Fla. R. App. P. 9.210
10-11
25
PRELIMINARY STATEMENT
The Appellant in this appeal is FRANKLIN J. NERO, SR., and will be
referred to throughout this brief as "Nero." The Appellee in this appeal is
MAYAN MAINSTREET INVESTORS I, LLC, and will be referred to throughout
this brief as "MAYAN." The Judgment from which Nero appeals is the Circuit
Court's December 18, 2012 Judgment of Foreclosure, and will be referred to
throughout this brief as the "Judgment." Citations to the Record shall be by the
designation "R" followed by the page number, e.g. "R- i ." Citations to the trial
transcript shall be by the designation "TT" followed by the page number, e.g. "TT-
i .,'
PROCEDURAL HISTORY
Mayan (a purchaser of the Neros' loan, but not the original lender) initiated
this action by filing a residential foreclosure complaint (the "Complaint") against
Nero and his wife, Margaret Nero (R- i -40), and later filed an Amended Complaint
(R-79 i -83 8). The Neros filed their "Original Answers to Amended Complaint and
Counterclaims." (R-843-1008). Mayan filed its Motion to Dismiss the
Counterclaim. (R-1018-1039). In March 2012, the Court granted the Motion to
Dismiss, giving the Neros one final chance to file viable counterclaims. (R-1338-
1340).
i
PRELIMINARY STATKMKNT
The Appellant in this appeal is FRANKLIN J. NERO, SR., and will be
referred to throughout this brief as "Nero." The Appellee in this appeal is
MAYAN MAINSTREET INVESTORS I, LLC, and will be referred to throughout
this brief as "MAYAN." The Judgment from which Nero appeals is the Circuit
Court's December 18, 2012 Judgment of Foreclosure, and will be referred to
throughout this brief as the "Judgment." Citations to the Record shall be by the
designation "R" followed by the page number, e.g. "R-l." Citations to the trial
transcript shall be by the designation "TT" followed by the page number, e.g. "TT-
PROCEDURAL HISTORY
Mayan (a purchaser of the Neros'oan, but not the original lender) initiated
this action by filing a residential foreclosure complaint (the "Complaint" ) against
Nero and his wife, Margaret Nero (R-1-40), and later filed an Amended Complaint
(R-791-838). The Neros filed their "Original Answers to Amended Complaint and
Counterclaims." (R-843-1008). Mayan filed its Motion to Dismiss the
Counterclaim. (R-1018-1039). In March 2012, the Court granted the Motion to
Dismiss, giving the Neros one final chance to file viable counterclaims. (R-1338-
1340).
The Neros filed their Amended Counterclaim, asserting 38 separate claims.
(R-1371-1519). Mayan filed a Motion to Dismiss, in part, seeking dismissal of
certain of the Counterclaims (R-1546-1563), and an Answer and Affirmative
Defenses to the remaining Counterclaims (R-1531-1545). The Court granted the
Motion in part, but permitted 22 ofthe Counterclaims to proceed to trial. (R-1617-
1 619). The Court also struck all claims for punitive damages in the Counterclaims.
(R- i 619).
A trial was conducted on October 29-31, 2012. (See TT-1-718). The Court
conducted a bench trial on Mayan's foreclosure Complaint and the Neros'
Affirmative Defenses thereto, and a jury triai on the Neros ' i1 (
jj). Following the trial, the Court entered an Order of Conditional Rescission on
November 16, 2012 with regard to Margaret Nero, and giving 30 days to make
payment in the amount of $915,795.51 in order for the Neros to be entitled to the
relief they sought. (R-1881-1883). That same day, the Court entered a Final
Judgment on Defendants' Counterclaims ("Counterclaim Judgment"). (R-1 884-
i 885). After entry of these judgments, the Neros filed a Motion for Rehearing (R-
1886-1904), which the Court denied (R-1947-1948).
I However, a motion for directed verdict was granted as to all of the remainingcounterclaims and the only issue that went to the jury was the question of whetherMargaret Nero signed the mortgage, as she asserted her signature on the mortgagewas a forgery.
2
The Neros filed their Amended Counterclaim, asserting 38 separate claims.
(R-1371-1519). Mayan filed a Motion to Dismiss, in part, seeking dismissal of
certain of the Counterclaims (R-1546-1563), and an Answer and Affirmative
Defenses to the remaining Counterclaims (R-1531-1545). The Court granted the
Motion in part, but permitted 22 of the Counterclaims to proceed to trial. (R-1617-
1619). The Court also struck all claims for punitive damages in the Counterclaims.
(R-1619).
A trial was conducted on October 29-31, 2012. (See TT-1-718). The Court
conducted a bench trial on Mayan's foreclosure Complaint and the
Neros'ffirmative
Defenses thereto, and a jury trial on the Neros'ounterclaims.'See
id.). Following the trial, the Court entered an Order of Conditional Rescission on
November 16, 2012 with regard to Margaret Nero, and giving 30 days to make
payment in the amount of $915,795.51 in order for the Neros to be entitled to the
relief they sought. (R-1881-1883). That same day, the Court entered a Final
Judgment on Defendants'ounterclaims ("Counterclaim Judgment" ). (R-1884-
1885). After entry of these judgments, the Neros filed a Motion for Rehearing (R-
1886-1904), which the Court denied (R-1947-1948).
'owever, a motion for directed verdict was granted as to all of the remainingcounterclaims and the only issue that went to the jury was the question of whetherMargaret Nero signed the mortgage, as she asserted her signature on the mortgagewas a forgery.
On December 18, 2012, the Court entered a Final Judgment of Foreclosure
("Foreclosure Judgment"). (R-1949-1954). The Neros filed a Notice of Appeal
the same day (R-1957-1974) and a Motion for Rehearing (R-1975-1977). On
January 3, 2013, this Court held that the appeal would proceed only as to the
Counterclaim Judgment, in light of the non-finality of the Order of Conditional
Rescission. The Circuit Court denied the Motion for Rehearing on January 8,
2013. (R-1979-1980). On January 10, 2013, Nero filed a supplemental Notice of
Appeal.2 (R-2020-2027). On January 17, 2013, this Court directed that the appeal
shall proceed as to the Foreclosure Judgment. The Foreclosure Judgment brings up
for appeal all previous orders and rulings, including the Counterclaim Judgment.
Ross y. Phillips, 913 So. 2d 771, 773 (Fla. 2d DCA 2005).
SUMMARY OF ARGUMENT
Nero's primary argument throughout his Initial Briefis that he rescinded the
loan that is the subject of the underlying foreclosure action, that Mayan accepted
his rescission request, and then failed to honor it. However, the factual findings of
the Circuit Court, including that Nero waived his right to rescind and that there was
no valid offer of tender, are supported by competent, substantial evidence. While
the Court found that Margaret Nero did not waive her right to rescind, she did not
appeal.
2 Margaret Nero, a Defendant below, has not appealed any order or judgment.
3
On December 18, 2012, the Court entered a Final Judgment of Foreclosure
("Foreclosure Judgment" ). (R-1949-1954). The Neros filed a Notice of Appeal
the same day (R-1957-1974) and a Motion for Rehearing (R-1975-1977). On
January 3, 2013, this Court held that the appeal would proceed only as to the
Counterclaim Judgment, in light of the non-finality of the Order of Conditional
Rescission. The Circuit Court denied the Motion for Rehearing on January 8,
2013. (R-1979-1980). On January 10, 2013, Nero filed a supplemental Notice of
Appeal. (R-2020-2027). On January 17, 2013, this Court directed that the appeal
shall proceed as to the Foreclosure Judgment. The Foreclosure Judgment brings up
for appeal all previous orders and rulings, including the Counterclaim Judgment.
Ross v. Phillips, 913 So. 2d 771, 773 (Fla. 2d DCA 2005).
SUMMARY OF ARGUMENT
Nero's primary argument throughout his Initial Brief is that he rescinded the
loan that is the subject of the underlying foreclosure action, that Mayan accepted
his rescission request, and then failed to honor it. However, the factual findings of
the Circuit Court, including that Nero waived his right to rescind and that there was
no valid offer of tender, are supported by competent, substantial evidence. While
the Court found that Margaret Nero did not waive her right to rescind, she did not
appeal.
Margaret Nero, a Defendant below, has not appealed any order or judgment.
3
Nero also argues that the Circuit Court erred by granting conditional
rescission. However, 15 U.S.C. � 1635(b), the relevant section of the Truth in
Lending Act, gives courts discretion to condition rescission on the repayment of
the loan principal. Florida courts have affirmed and applied this statutory
principle.
Nero challenges various evidentiary rulings, including the Circuit Court
prohibiting him from discussing rescission in front of the jury since it was an
equitable claim not subject to a jury trial; the exclusion of various documents; and
the limitation of the testimony of one of his witnesses. The contemporaneous
objection rule requires litigants to object to evidentiary rulings below, giving the
lower court an opportunity to cure the error. Nero did not do so. Further, he
makes no valid arguments on appeal, and any error as to the limitation of his
examination of a witness was invited error.
The evidence at trial was insufficient to support a claim for conspiracy to
defraud. As for the dismissal of, or directed verdict as to, the other Counterclaims
Nero addresses on appeal, Nero fails to make arguments that are legally sufficient
to enable this Court to engage in meaningful appellate review.
Nero does not present valid or sufficient arguments on appeal to challenge
the Circuit Court's striking of his claims for treble and punitive damages. He is
not entitled to attorneys ' fees since he did not prevail below, and the Circuit Court
Nero also argues that the Circuit Court erred by granting conditional
rescission. However, 15 U.S.C. ) 1635(b), the relevant section of the Truth in
Lending Act, gives courts discretion to condition rescission on the repayment of
the loan principal. Florida courts have affirmed and applied this statutory
principle.
Nero challenges various evidentiary rulings, including the Circuit Court
prohibiting him from discussing rescission in front of the jury since it was an
equitable claim not subject to a jury trial; the exclusion of various documents; and
the limitation of the testimony of one of his witnesses. The contemporaneous
objection rule requires litigants to object to evidentiary rulings below, giving the
lower court an opportunity to cure the error. Nero did not do so. Further, he
makes no valid arguments on appeal, and any error as to the limitation of his
examination of a witness was invited error.
The evidence at trial was insufficient to support a claim for conspiracy to
defraud. As for the dismissal of, or directed verdict as to, the other Counterclaims
Nero addresses on appeal, Nero fails to make arguments that are legally sufficient
to enable this Court to engage in meaningful appellate review.
Nero does not present valid or sufficient arguments on appeal to challenge
the Circuit Court's striking of his claims for treble and punitive damages. He is
not entitled to attorneys'ees since he did not prevail below, and the Circuit Court
did not err in assessing interest on the amount owed to Mayan because the loan
was not rescinded. Finally, Nero's argument for judicial estoppel was not raised at
trial, and is inapplicable to this case.
ARGUMENT
I. STANDARD OF REVIEW
Nero fails to set forth a standard of review in his Initial Brief. This Court
will not set aside the factual findings in a nonjury trial unless they are totally
unsupported by competent substantial evidence. Clegg y. Chipola Aviation, Inc.,
458 So. 2d 1186, 1 187 (Fla. ist DCA i984). Evidentiary rulings are reviewed for
an abuse of discretion. H & H Elec., Inc. y. Lopez, 967 So. 2d 345, 347 (Fia. 3d
DCA 2007). This Court reviews legal conclusions 4 novo, Southern Baptist
Hosp. of Fla., Inc. y. Welker, 908 So. 2d 317, 319 (Fia. 2005), and reviews a
directed verdict de novo, Borda y. East Coast Entertainment, Inc., 950 So. 2d 488,
490 (Fia. 4th DCA 2007).
II. COMPETENT SUBSTANTIAL EVIDENCE SUPPORTS THECIRCUIT COURT'S FACTUAL FINDINGS THAT SUPPORT THERULING ON RESCISSION
A. Rescission - Margaret Nero
While the Circuit Court found that Margaret Nero did not waive her right to
rescind, and even entered an order of Conditional Rescission, Margaret Nero did
not appeal the Court's decision. By not appealing, any error related to rescission
did not err in assessing interest on the amount owed to Mayan because the loan
was not rescinded. Finally, Nero's argument for judicial estoppel was not raised at
trial, and is inapplicable to this case.
ARGUMENT
I. STANDARD OF REVIEW
Nero fails to set forth a standard of review in his Initial Brief. This Court
will not set aside the factual findings in a non-jury trial unless they are totally
unsupported by competent substantial evidence. Clem@ v. Chipola Aviation, Inc.,
458 So. 2d 1186, 1187 (Fla. 1st DCA 1984). Evidentiary rulings are reviewed for
an abuse of discretion. H A H Elec.„ Inc. v. Lopez, 967 So. 2d 345, 347 (Fla. 3d
DCA 2007). This Court reviews legal conclusions de novo, Southern Baptist
Hosp. of Fla.„ Inc. v. Welker, 908 So. 2d 317, 319 (Fla. 2005), and reviews a
directed verdict de novo, Borda v. East Coast Entertainment„ Inc., 950 So. 2d 488,
490 (Fla. 4th DCA 2007).
II. COMPETENT SUBSTANTIAL EVIDENCE SUPPORTS THECIRCUIT COURT'S FACTUAL FINDINGS THAT SUPPORT THERULING ON RESCISSION
A. Rescission —Margaret Nero
While the Circuit Court found that Margaret Nero did not waive her right to
rescind, and even entered an order of Conditional Rescission, Margaret Nero did
not appeal the Court's decision. By not appealing, any error related to rescission
and Margaret Nero is not preserved for appeal. Thus, that issue is not before this
Court.
B. Rescission - Franklin Nero
Nero's Initial Brief is rather convoluted and difficult to decipher. However,
throughout, Nero argues that he timely rescinded the loan, made an offer of tender,
and that Mayan failed to honor his rescission. (See, Initial Brief at 6-8, 26-28,
32). The Order of Conditional Rescission included the following findings of fact:
( 1) "[t]here was no bona fide offer oftender from the Neros to" Mayan;
(2) Margaret Nero signed a notice of right to cancel;
(3) the Neros signed two separate notices of right to rescind, which wereboth entered into evidence at trial;
(4) "[t]he Neros were each provided with two copies ofthe notice ofright torescind at the time of closing as acknowledged on the forms the Neros signed";
( 5) "[t]here was no evidence to prove that the payments shown after the firstfive years were wrong on the Truth in Lending Disclosure";
(6) the September 1, 2006, notice of right to rescind violated the Truth inLending Act ("TILA") in that it only gave until September 1 , 2006, to rescind;
( 7) Nero "clearly waived any right" to rescind based on his written waiverofthe right;
(8) Margaret Nero did not waive her right to rescind; and
(9) Mayan proved every element of its foreclosure claim.
(R- i 882).
and Margaret Nero is not preserved for appeal. Thus, that issue is not before this
Court.
B. Rescission —Franklin Nero
Nero's Initial Brief is rather convoluted and difficult to decipher. However,
throughout, Nero argues that he timely rescinded the loan, made an offer of tender,
and that Mayan failed to honor his rescission. (See, ~e, Initial Brief at 6-8, 26-28,
32). The Order of Conditional Rescission included the following findings of fact:
(1) "[t]here was no bona fide offer of tender from the Neros to" Mayan;
(2) Margaret Nero signed a notice of right to cancel;
(3) the Neros signed two separate notices of right to rescind, which wereboth entered into evidence at trial;
(4) "[t]he Neros were each provided with two copies of the notice of right torescind at the time of closing as acknowledged on the forms the Neros signed";
(5) "[t]here was no evidence to prove that the payments shown after the first
five years were wrong on the Truth in Lending Disclosure";
(6) the September 1, 2006, notice of right to rescind violated the Truth in
Lending Act ("TILA") in that it only gave until September 1, 2006, to rescind;
(7) Nero "clearly waived any right" to rescind based on his written waiverof the right;
(8) Margaret Nero did not waive her right to rescind; and
(9) Mayan proved every element of its foreclosure claim.
(R-1882).
While Nero challenges some of these findings in his Initial Brief, e.g., by
arguing that he made an offer of tender on April 16, 2008 (Initial Brief at 8), he
does not argue or show that the Court's findings were not supported by competent
substantial evidence, the relevant standard of review. In fact, the evidence
presented in the bench phase of the trial more than supports the Circuit Court's
findings. Nero himself testified that he signed an affidavit waiving his right to
rescind. (TT-31). No admissible evidence was presented showing any offer of
tender by Nero. ( generally TT-20- i 6 1 ). Nero simply fails to show, on appeal,
that competent, substantial evidence does not support the Circuit Court's findings
supporting the ruling on Mayan's foreclosure claim and denying that Nero proved
a defense of rescission. "The appellate court should defer to a trial court's well-
reasoned equitable findings." McCollem y. Chidnese, 832 So. 2d 1 94, 1 95 (Fia.
4th DCA 2002). See also Pezzimenti y. Cirou, 466 So. 2d 274, 277 (Fia. 2d DCA
1 985) ("It would be improper for us to reevaluate the evidence and substitute our
judgment for that of the trial court in this instance")
Nero challenges the Circuit Court's Order of Conditional Rescission,
arguing that Mayan did not plead conditional rescission or request a "[fludicial
declaratory decision." (Initial Brief at i 0, 24-26). FIe contends that conditional
rescission may only be granted when a lender requests it in a timely manner or
shows good cause. (Ji at 28). 11e argues that conditional rescission cannot be
7
While Nero challenges some of these findings in his Initial Brief, e.g., by
arguing that he made an offer of tender on April 16, 2008 (Initial Brief at 8), he
does not argue or show that the Court's findings were not supported by competent
substantial evidence, the relevant standard of review. In fact, the evidence
presented in the bench phase of the trial more than supports the Circuit Court's
findings. Nero himself testified that he signed an affidavit waiving his right to
rescind. (TT-31). No admissible evidence was presented showing any offer of
tender by Nero. (See eenerallv TT-20-161). Nero simply fails to show, on appeal,
that competent, substantial evidence does not support the Circuit Court's findings
supporting the ruling on Mayan's foreclosure claim and denying that Nero proved
a defense of rescission. "The appellate court should defer to a trial court's well-
reasoned equitable findings." McCollem v. Chidnese, 832 So. 2d 194, 195 (Fla.
4th DCA 2002). See also Pezzimenti v. Cirou, 466 So. 2d 274, 277 (Fla. 2d DCA
1985) ("It would be improper for us to reevaluate the evidence and substitute our
judgment for that of the trial court in this instance").
Nero challenges the Circuit Court's Order of Conditional Rescission,
arguing that Mayan did not plead conditional rescission or request a "[j]udicial
declaratory decision." (Initial Brief at 10, 24-26). He contends that conditional
rescission may only be granted when a lender requests it in a timely manner or
shows good cause. (Id. at 28). He argues that conditional rescission cannot be
granted when the lender ignores or violates the law, when the security agreement is
incomplete, or when the lender files a fraudulent foreclosure action. (j‡ at 28-29).
He contends that only the "steps" of a TILA rescission may be modified, and not
the rescission itself. (Id. at 29). He asserts that the Circuit Court was never asked
to modify the steps of rescission, and never did so. (Ici. at 3 1 -32). Nero contends
that the Court confused rescission ofequity with rescission oflaw. (j at 36-37).
First, as noted above, the rescission was granted only to Margaret Nero, who
has not appealed or preserved the issue for appeal. Nero has no standing to
challenge the conditional rescission as the trial court ruled Nero has waived his
right to rescission. However, even if this Court does address Nero's arguments,
they either misperceive or misstate the law. The cases cited by the Circuit Court in
the Order of Conditional Rescission are directly on point. In Williams y.
Homestake Mortgage Co., 968 F.2d i 137, 1 142 (1 ith Cir. 1992), the Eleventh
Circuit held that "a court may impose conditions that run with the voiding of a
creditor's security interest upon terms that would be equitable and just to the
parties in view of all surrounding circumstances." The Court referenced the
relevant provision of TILA, 15 U.S.C. � 1635(b), which, after outlining the
procedure for returning money or property following rescission, provides: "The
procedures prescribed by this subsection shall apply except when otherwise
ordered by a court." The Eleventh Circuit held that "Congress, through its
granted when the lender ignores or violates the law, when the security agreement is
incomplete, or when the lender files a fraudulent foreclosure action. (Id. at 28-29).
He contends that only the "steps" of a TILA rescission may be modified, and not
the rescission itself. (Id. at 29). He asserts that the Circuit Court was never asked
to modify the steps of rescission, and never did so. (Id. at 31-32). Nero contends
that the Court confused rescission of equity with rescission of law. (Id. at 36-37).
First, as noted above, the rescission was granted only to Margaret Nero, who
has not appealed or preserved the issue for appeal. Nero has no standing to
challenge the conditional rescission as the trial court ruled Nero has waived his
right to rescission. However, even if this Court does address Nero's arguments,
they either misperceive or misstate the law. The cases cited by the Circuit Court in
the Order of Conditional Rescission are directly on point. In Williams v.
Homestake Mortgage Co., 968 F.2d 1137, 1142 (11th Cir. 1992), the Eleventh
Circuit held that "a court may impose conditions that run with the voiding of a
creditor's security interest upon terms that would be equitable and just to the
parties in view of all surrounding circumstances." The Court referenced the
relevant provision of TILA, 15 U.S.C. ) 1635(b), which, after outlining the
procedure for returning money or property following rescission, provides: "The
procedures prescribed by this subsection shall apply except when otherwise
ordered by a court." The Eleventh Circuit held that "Congress, through its
legislative history, has made it quite clear that 'the courts, at any time during the
rescission process, may impose equitable conditions to insure that the consumer
meets his obligations after the creditor has performed his obligations as required by
the act.' S.Rep. No. 368, 96th Cong., 2d Sess. 29 (1980) . . . reprinted in 1980
U.S.C.C.A.N. 236, 265." Williams, 968 F.2d at 1142. In the instant case, the
Circuit Court subtracted, from the amount to be tendered by Nero, the amounts that
would be owed to Nero by Mayan in the event of rescission. (R- i 882). This
would ensure that "the creditor has performed his obligations" prior to the required
tender by Nero. The Eleventh Circuit noted that "the plain language of � 1635(b)
leaves little room for narrowing the court's ability to modify the process of
effecting rescission . . . ." Williams, 968 F.2d at 1142.
Similarly, in Iroanyah y. Bank ofAmerica. N.A., 851 F.Supp.2d 1115, 1131
(N.D. Ill. 2012), the Northern District of Illinois conditioned rescission upon the
tender, by the borrower, of the amounts borrowed. The Court noted that "[a]
leading treatise notes that '[t]oday, the vast majority of cases appear to condition
rescission on consumer tender almost as a matter of course . . . . ' Pridgen &
Alderman, Consumer Credit and the Law � 14:27 (updated Oct. 2011) (citing
cases)." In Riopta y. Amresco Residential Mortgage Corr., 101 F.Supp.2d 1326,
1335 (D. Hawaii 1999), the District of Hawaii considered the equities of the case,
and held that the borrower "should not be allowed to retain the principal of the
legislative history, has made it quite clear that 'the courts, at any time during the
rescission process, may impose equitable conditions to insure that the consumer
meets his obligations after the creditor has performed his obligations as required by
the act.'.Rep. No. 368, 96th Cong., 2d Sess. 29 (1980)...reprinted in 1980
U.S.C.C.A.N. 236, 265." Williams, 968 F.2d at 1142. In the instant case, the
Circuit Court subtracted, from the amount to be tendered by Nero, the amounts that
would be owed to Nero by Mayan in the event of rescission. (R-1882). This
would ensure that "the creditor has performed his obligations" prior to the required
tender by Nero. The Eleventh Circuit noted that "the plain language of ) 1635(b)
leaves little room for narrowing the court's ability to modify the process of
effecting rescission...." Williams, 968 F.2d at 1142.
Similarly, in Iroanvah v. Bank of America„N.A., 851 F.Supp.2d 1115, 1131
(N.D. Ill. 2012), the Northern District of Illinois conditioned rescission upon the
tender, by the borrower, of the amounts borrowed. The Court noted that "[a]
leading treatise notes that '[t]oday, the vast majority of cases appear to condition
rescission on consumer tender almost as a matter of course Pridgen 2
Alderman, Consumer Credit and the Law ) 14:27 (updated Oct. 2011) (citing
cases)." In Riopta v. Amresco Residential Mortgage Corp., 101 F.Supp.2d 1326,
1335 (D. Hawaii 1999), the District of Hawaii considered the equities of the case,
and held that the borrower "should not be allowed to retain the principal of the
mortgage," noting that the Ninth Circuit has ruled "that the Court may exercise
equitable discretion in determining whether to require repayment of the principal."
Finally, in Garsh y. Wells Fargo Bank, N.A., 2012 WL 1207220 at *6 (Bkrtcy. D.
N.J. April 9, 2012), the Bankruptcy Court for the District of New Jersey held that
borrowers were precluded from rescinding their loan because they were unable to
tender the amount required to effectuate rescission. The Court quoted the Supreme
Court of New Jersey, in U.S. Bank Nat'l Ass'n y. Guillaume, 2012 WL 603307
(N.J. Feb. 27, 2012): "a 'court has the discretion to deny rescission under TILA if
the [borrower] . . . cannot tender the balance ofhis or her loan." Id. at *6 Thus,
the Circuit Court was well within its discretion to condition rescission upon the
Neros' repayment ofthe balance ofthe underlying loan.
Nero argues that Mayan failed to attach the TILA Disclosure to its
Complaint. (Initial Brief at i 2- 1 4). However, there is no reason why Mayan
would have needed to attach the TILA Disclosure to a residential foreclosure
complaint. Nero makes much of the fact that, at trial, counsel for Mayan pointed
out that Nero failed to attach the TILA Disclosure to his Counterclaim. (Id. at 13-
14). However, Nero's Counterclaims alleged violations of TILA based on the
failure to disclose. Florida Rule of Civil Procedure i . i 30(a) provides:
All bonds, notes, bills of exchange, contracts, accounts, or documentsupon which action may be brought or defense made, or a copy thereofor a copy of the portions thereof material to the pleadings, shall beincorporated in or attached to the pleading. No papers shall be
10
mortgage," noting that the Ninth Circuit has ruled "that the Court may exercise
equitable discretion in determining whether to require repayment of the principal."
Finally, in Garsh v. Wells Fargo Bank, N.A., 2012 WL 1207220 at *6 (Bkrtcy. D.
N.J. April 9, 2012), the Bankruptcy Court for the District of New Jersey held that
borrowers were precluded from rescinding their loan because they were unable to
tender the amount required to effectuate rescission. The Court quoted the Supreme
Court of New Jersey, in U.S. Bank Nat'1 Ass'n v. Guillaume, 2012 WL 603307
(N.J. Feb. 27, 2012): "a 'court has the discretion to deny rescission under TILA if
the [borrower]... cannot tender the balance of his or her loan.'" Id. at *6. Thus,
the Circuit Court was well within its discretion to condition rescission upon the
Neros'epayment of the balance of the underlying loan.
Nero argues that Mayan failed to attach the TILA Disclosure to its
Complaint. (Initial Brief at 12-14). However, there is no reason why Mayan
would have needed to attach the TILA Disclosure to a residential foreclosure
complaint. Nero makes much of the fact that, at trial, counsel for Mayan pointed
out that Nero failed to attach the TILA Disclosure to his Counterclaim. (Id. at 13-
14). However, Nero's Counterclaims alleged violations of TILA based on the
failure to disclose. Florida Rule of Civil Procedure 1.130(a)provides:
All bonds, notes, bills of exchange, contracts, accounts, or documents
upon which action may be brought or defense made, or a copy thereofor a copy of the portions thereof material to the pleadings, shall beincorporated in or attached to the pleading. No papers shall be
10
unnecessarily annexed as exhibits. The pleadings shall contain nounnecessary recitals of deeds, documents, contracts, or other
instruments.
Because Nero's claims were based upon the alleged failure to make TILA
disclosures, as reflected in the TILA Disclosure provided at closing, Nero was
required by Rule i .130(a) to attach a copy of that document. Mayan's foreclosure
claim, on the other hand, was not based upon that document; thus, it did not need
to be attached to the Complaint. The documents upon which the Complaint were
based, namely the relevant loan documents, were attached thereto as required.
The Circuit Court's rulings related to the affirmative defense of rescission
were based upon competent, substantial evidence. Further, the Court did not err in
conditioning such rescission on the repayment of the principal amount borrowed.
Accordingly, this Court should affirm both the Order of Conditional Rescission
and the subsequent Foreclosure Judgment.
III. THE CIRCUIT COURT DID NOT ABUSE ITS DISCRETION INMAKING ITS EVIDENTIARY RULINGS
Nero challenges several of the Circuit Court's evidentiary rulings. Nero
argues that the Court erred in precluding him from mentioning rescission in the
presence of the jury, and in excluding documents he attempted to introduce.
(Initial Briefat 8-9). He states that
the court refused to allow us to mention rescission in front of the Jurystating it was only in front of her this greatly deprived us fromproperly presenting our counter claims when the court refused to
11
unnecessarily annexed as exhibits. The pleadings shall contain no
unnecessary recitals of deeds, documents, contracts, or other
instruments.
Because Nero's claims were based upon the alleged failure to make TILA
disclosures, as reflected in the TILA Disclosure provided at closing, Nero was
required by Rule 1.130(a)to attach a copy of that document. Mayan's foreclosure
claim, on the other hand, was not based upon that document; thus, it did not need
to be attached to the Complaint. The documents upon which the Complaint were
based, namely the relevant loan documents, were attached thereto as required.
The Circuit Court's rulings related to the affirmative defense of rescission
were based upon competent, substantial evidence. Further, the Court did not err in
conditioning such rescission on the repayment of the principal amount borrowed.
Accordingly, this Court should affirm both the Order of Conditional Rescission
and the subsequent Foreclosure Judgment.
III. THE CIRCUIT COURT DID NOT ABUSE ITS DISCRETION IN
MAKING ITS EVIDENTIARY RULINGS
Nero challenges several of the Circuit Court's evidentiary rulings. Nero
argues that the Court erred in precluding him from mentioning rescission in the
presence of the jury, and in excluding documents he attempted to introduce.
(Initial Brief at 8-9). He states that
the court refused to allow us to mention rescission in front of the Jury
stating it was only in front of her this greatly deprived us from
properly presenting our counter claims when the court refused to
11
(ji).
allow us to put into evidence any of our records that where [sic] givento me during the closing and by the court not allowing us to discussrescission with the jury also hampered our entire case.
First, Nero did not object to the Circuit Court's rulings at trial and did not
preserve the issue for appeal. Pursuant to the "contemporaneous objection" rule,
an objection to a ruling on an evidentiary issue must be timely raised below.
The requirement of a contemporaneous objection is based on practicalnecessity and basic fairness in the operation of a judicial system. Itplaces the trial judge on notice that error may have been committed,and provides him an opportunity to correct it at an early stage of theproceedings. Delay and an unnecessary use of the appellate processresult from a failure to cure early that which must be cured eventually.
Castor y. State, 365 So.2d 701, 703 (Fla. 1978). The contemporaneous objection
rule has been applied to evidentiary rulings. Parry y. Nationwide Mutual Fire
Insurance Co., 407 So.2d 936, 937 (Fla. 5th DCA 1981) (holding that the failure to
object to testimony at trial waived the argument on appeal). "Under the test
articulated in [Castor], an objection must be specific enough 'to apprise the trial
judge of the putative error and to preserve the issue for intelligent review on
appeal." Universal Insurance Co. of North America y. Warfel, 82 So. 3d 47, 64
(Fla. 2012) (quoting Castor, 365 So. 2d at 703). "In the absence of an objection,
the error must be fundamental in order to receive appellate review. Fundamental
error is error that 'goes to the foundation of the case or goes to the merits of the
cause of action. ' An appellate court ' should exercise its discretion under the
12
allow us to put into evidence any of our records that where [sicj givento me during the closing and by the court not allowing us to discussrescission with the jury also hampered our entire case.
(Id.).
First, Nero did not object to the Circuit Court's rulings at trial and did not
preserve the issue for appeal. Pursuant to the "contemporaneous objection" rule,
an objection to a ruling on an evidentiary issue must be timely raised below.
The requirement of a contemporaneous objection is based on practicalnecessity and basic fairness in the operation of a judicial system. Itplaces the trial judge on notice that error may have been committed,and provides him an opportunity to correct it at an early stage of theproceedings. Delay and an unnecessary use of the appellate processresult from a failure to cure early that which must be cured eventually.
Castor v. State, 365 So.2d 701, 703 (Fla. 1978). The contemporaneous objection
rule has been applied to evidentiary rulings. See Parrv v. Nationwide Mutual Fire
Insurance Co., 407 So.2d 936, 937 (Fla. 5th DCA 1981) (holding that the failure to
object to testimony at trial waived the argument on appeal). "Under the test
articulated in [Castor], an objection must be specific enough 'to apprise the trial
judge of the putative error and to preserve the issue for intelligent review on
appeal.'" Universal Insurance Co. of North America v. Warfel, 82 So. 3d 47, 64
(Fla. 2012) (quoting Castor, 365 So. 2d at 703). "In the absence of an objection,
the error must be fundamental in order to receive appellate review. Fundamental
error is error that 'goes to the foundation of the case or goes to the merits of the
cause of action.'n appellate court 'should exercise its discretion under the
12
doctrine of fundamental error very guardedly." R.C. y. Dep't of Children and
Family Svcs. and Guardian Ad Litern Program, 33 So. 3d 710, 714 (Fia. 2d DCA
2010) (internal citations omitted) (quoting Sanford y. Rubin, 237 So. 2d 134, 137
(Fia. 1970)).
Here, the Circuit Court determined that the question of rescission, an
equitable issue, was not entitled to be tried by the jury, but that Nero's claim for
damages could. (TT-271). Mayan made a motion in lirnine to exclude evidence of
rescission before the jury, and the Court held that, because Nero could present his
damages claims to the jury, he would likely need to mention the word "rescission,"
and that she would have to "see how the evidence shapes out." (TT-272). Mayan
objected numerous times to Nero's reference to rescission before the jury, which
objections were sustained. At no time did Nero lodge an objection to the Circuit
Court's ruling on the matter. The Court's ruling does not constitute fundamental
error, nor does Nero so argue on appeal. Thus, Nero's argument has been waived.
Even if this Court determines that Nero ' s evidentiary argument has not been
waived, he does not present sufficient argument on appeal. "The point of an
appellate brief is to present arguments in support of the points on appeal, and
without further elucidation on the arguments, this court may not engage in
meaningful appellate review." Florida Hometown Democracy, Inc. y. Cobb, 953
So.2d 666, 672 (Fla. ist DCA 2007) (citing Duest y. Dugger, 555 So.2d 849, 852
13
doctrine of fundamental error very guardedly.'" R.C. v. Dep't of Children and
Familv Svcs. and Guardian Ad Litem Program, 33 So. 3d 710, 714 (Fla. 2d DCA
2010) (internal citations omitted) (quoting Sanford v. Rubin, 237 So. 2d 134, 137
(Fla. 1970)).
Here, the Circuit Court determined that the question of rescission, an
equitable issue, was not entitled to be tried by the jury, but that Nero's claim for
damages could. (TT-271). Mayan made a motion in limine to exclude evidence of
rescission before the jury, and the Court held that, because Nero could present his
damages claims to the jury, he would likely need to mention the word "rescission,"
and that she would have to "see how the evidence shapes out." (TT-272). Mayan
objected numerous times to Nero's reference to rescission before the jury, which
objections were sustained. At no time did Nero lodge an objection to the Circuit
Court's ruling on the matter. The Court's ruling does not constitute fundamental
error, nor does Nero so argue on appeal. Thus, Nero's argument has been waived.
Even if this Court determines that Nero's evidentiary argument has not been
waived, he does not present sufficient argument on appeal. "The point of an
appellate brief is to present arguments in support of the points on appeal, and
without further elucidation on the arguments, this court may not engage in
meaningful appellate review." Florida Hometown Democracv, Inc. v. Cobb, 953
So.2d 666, 672 (Fla. 1st DCA 2007) (citing Duest v. Dumpier, 555 So.2d 849, 852
13
(Fia. 1990)). In Florida Emergency Physicians-Kang and Associates, M.D., P.A.
y. Parker, 800 So.2d 631, 636 (Fia. 5th DCA 2001), this Court held: "{i]n order to
obtain appellate review, alleged errors relied upon for reversal must be raised
clearly, concisely, and separately as points on appeal" (quoting Singer y. Borbua,
497 So.2d 372, 376 (FIa. 3d DCA 1986)).
Nero's contention that the Circuit Court's ruling "deprived [him] from
properly presenting" his claims, and "hampered [his] entire case" present no legal
argument whatsoever. This Court is unable to engage in meaningful appellate
review of the alleged errors, and should affirm the Circuit Court's ruling on the
evidence of rescission.
Nero argues that the Court's exclusion of a letter from Mayan's in-house
counsel, dated May 9, 2008, was erroneous in that the letter was not related to
settlement, as ruled by the Court. (Initial Brief at 9). While Nero does not
reference the page in the Record where this letter appears, it begins at page 22 1 of
his 687-page Appendix that accompanied his Initial Brief. A cursory review of
that letter indicates that it constitutes settlement discussions, as Mr. Freeman, the
author, states "I am hopeful this matter can still be resolved . . . ." The Court's
exclusion was correct under section 90.408, Florida Statutes.
Nero attempts to challenge the Circuit Court's exclusion of certain
documents, stating that:
14
(Fla. 1990)). In Florida Emergencv Phvsicians-Kana and Associates„M.D.„P.A.
v. Parker, 800 So.2d 631, 636 (Fla. 5th DCA 2001), this Court held: "'[i]n order to
obtain appellate review, alleged errors relied upon for reversal must be raised
clearly, concisely, and separately as points on appeal'" (quoting Singer v. Borbua,
497 So.2d 372, 376 (Fla. 3d DCA 1986)).
Nero's contention that the Circuit Court's ruling "deprived [him] from
properly presenting" his claims, and "hampered [his] entire case" present no legal
argument whatsoever. This Court is unable to engage in meaningful appellate
review of the alleged errors, and should affirm the Circuit Court's ruling on the
evidence of rescission.
Nero argues that the Court's exclusion of a letter from Mayan's in-house
counsel, dated May 9, 2008, was erroneous in that the letter was not related to
settlement, as ruled by the Court. (Initial Brief at 9). While Nero does not
reference the page in the Record where this letter appears, it begins at page 221 of
his 687-page Appendix that accompanied his Initial Brief. A cursory review of
that letter indicates that it constitutes settlement discussions, as Mr. Freeman, the
author, states "I am hopeful this matter can still be resolved
exclusion was correct under section 90.408, Florida Statutes.
The Court's
Nero attempts to challenge the Circuit Court's exclusion of certain
documents, stating that:
14
the court refuse [sic] to allow the Nero's [sic] to admit their recordssince they were not a record keeping company. This sounds ridicules[sic] how could a party not be allowed to admit there [sic] copies thatwere given at closing to rebut the documents the mortgage companyclaims were real. Why cannot an individual keep their own copies oftheir own transaction and why would it not be admitted.
(j at 15). Again, this statement contains no valid legal response whatsoever to
the Circuit Court's ruling that the documents were not properly authenticated.
Similarly, Nero argues that the Court erred by not admitting certain unidentified
documents, claiming that "THEY ARE CLEARLY EXCEPTION [sic] TO THE
HERESAY [sic] RULE IF THEY ARE CONSIDERED HERESAY [sic] AT
ALL." (Initial Brief at 37). Again, this is not a valid legal argument.
Nero next argues that the Court erred by limiting his direct examination of
Bradley Weiss to 2 areas of inquiry, and by limiting it to 30 minutes. (Initial Brief
at 24). First, Mr. Weiss had already testified before the jury. (TT-306-344). Nero
wished to recall him on the final day of trial after Mr. Weiss had been dismissed as
a witness. (TT-519). The Court asked that Mr. Weiss be recalled, but instructed
Nero that he would not be permitted to discuss issues that had already been
discussed before the jury. (TT-522). As cumulative testimony, the trial court did
not abuse its discretion by disallowing such testimony. Further, Nero himself
confirmed with the Court the two areas that he wished to inquire of Mr. Weiss.
(TT-525). As for the time limit, Nero himself offered to the Court that the
testimony would take "five, ten minutes or less." (TT-523). Clearly, Nero not
15
the court refuse [sic] to allow the Nero's [sic] to admit their records
since they were not a record keeping company. This sounds ridicules
[sic] how could a party not be allowed to admit there [sic] copies that
were given at closing to rebut the documents the mortgage company
claims were real. Why cannot an individual keep their own copies oftheir own transaction and why would it not be admitted.
(Id. at 15). Again, this statement contains no valid legal response whatsoever to
the Circuit Court's ruling that the documents were not properly authenticated.
Similarly, Nero argues that the Court erred by not admitting certain unidentified
documents, claiming that "THEY ARE CLEARLY EXCEPTION [sic] TO THE
HERESAY [sic] RULE IF THEY ARE CONSIDERED HERESAY [sic] AT
ALL." (Initial Brief at 37). Again, this is not a valid legal argument.
Nero next argues that the Court erred by limiting his direct examination of
Bradley Weiss to 2 areas of inquiry, and by limiting it to 30 minutes. (Initial Brief
at 24). First, Mr. Weiss had already testified before the jury. (TT-306-344). Nero
wished to recall him on the final day of trial after Mr. Weiss had been dismissed as
a witness. (TT-519). The Court asked that Mr. Weiss be recalled, but instructed
Nero that he would not be permitted to discuss issues that had already been
discussed before the jury. (TT-522). As cumulative testimony, the trial court did
not abuse its discretion by disallowing such testimony. Further, Nero himself
confirmed with the Court the two areas that he wished to inquire of Mr. Weiss.
(TT-525). As for the time limit, Nero himself offered to the Court that the
testimony would take "five, ten minutes or less." (TT-523). Clearly, Nero not
15
only failed to object, but agreed with, and even provided himself, a timeframe
much less than the limits he now challenges on appeal. Thus, any error was invited
and no issue preserved for appellate purposes.
The Circuit Court did not abuse its discretion in any of its evidentiary
rulings, and this Court should affirm.
Iv. THE CIRCUIT COURT DID NOT ERR IN DISMISSING ORDIRECTING A VERDICT AS TO CERTAIN OF NERO'SCOUNTERCLAIMS
On July 31, 2012, the Circuit Court granted Mayan's Motion to Dismiss, in
Part, Nero's Amended Counterclaim. (R-1617-1619). On appeal, Nero argues that
the Court erred in dismissing his 30th Counterclaim for failing to honor a TILA
rescission request. (Initial Brief at 35). In fact, the Court did not dismiss the 30th
Counterclaim, but struck certain paragraphs of it. (R- i 6 1 8). The Court directed a
verdict on the damages portion all of the TILA claims based on the expiration of
the statute of limitations. (TT-617). The Court cited Dove y. McCormick, 698
So.2d 585, 588 (Fia. 5th DCA 1997), which held that 15 U.S.C. � 1635(f) provides
that an affirmative claim for rescission expires three years after closing. Here, the
loan closed on September 1 , 2006, and Nero did not bring his first Counterclaim
until January 18, 201 1. (R-843-1008). Thus, the damages portion of the 30th
Counterclaim is clearly barred by the statute of limitations.
16
only failed to object, but agreed with, and even provided himself, a timeframe
much less than the limits he now challenges on appeal. Thus, any error was invited
and no issue preserved for appellate purposes.
The Circuit Court did not abuse its discretion in any of its evidentiary
rulings, and this Court should affirm.
IV. THE CIRCUIT COURT DID NOT ERR IN DISMISSING ORDIRECTING A VERDICT AS TO CERTAIN OF NERO'SCOUNTERCLAIMS
On July 31, 2012, the Circuit Court granted Mayan's Motion to Dismiss, in
Part, Nero's Amended Counterclaim. (R-1617-1619). On appeal, Nero argues that
the Court erred in dismissing his 30th Counterclaim for failing to honor a TILA
rescission request. (Initial Brief at 35). In fact, the Court did not dismiss the 30th
Counterclaim, but struck certain paragraphs of it. (R-1618). The Court directed a
verdict on the damages portion all of the TILA claims based on the expiration of
the statute of limitations. (TT-617). The Court cited Dove v. McCormick, 698
So.2d 585, 588 (Fla. 5th DCA 1997), which held that 15 U.S.C. ( 1635(fj provides
that an affirmative claim for rescission expires three years after closing. Here, the
loan closed on September 1, 2006, and Nero did not bring his first Counterclaim
until January 18, 2011. (R-843-1008). Thus, the damages portion of the 30th
Counterclaim is clearly barred by the statute of limitations.
16
The Court did not direct a verdict as to the rescission claim, but addressed it
herself as an equitable claim. (TT-6 17). Nero simply argues that the rescission
request was timely made. (Initial Brief at 36). In fact, the Court granted
conditional rescission based upon Margaret Nero's rights. Thus, this argument
does not assign any error.
Nero argues that the Court erred in dismissing his 3 1 st Counterclaim for
conversion. (Initial Brief at 38). The argument, in its entirety, states: "THE
LOWER COURT ERRED WHEN IT DISMISSED THE NERO'S [sic]
COUNTERCLAIM 3 1 FOR CONVERSION AS ALL PARTS NEEDED FOR A
VIABLE CLAIM OF RELIEF ARE WITH [sic] THE 4 CORNERS OF THE
COMPLAINT." (Id.). This is a bald, unsupported statement, and does not
constitute sufficient argument for this Court to engage in meaningful appellate
review. Cobb, 953 So.2d at 672.
Nero contends that the Circuit Court erred in dismissing his 32nd
Counterclaim for wrongful foreclosure. (Initial Brief at 39). Nero again states
baldly that all necessary elements for such claim were in the Complaint. ().
Nero then cites to evidence presented at trial. (ji). Clearly, any evidence
presented at trial cannot form the basis for an argument that the claim was
wrongfully dismissed nearly three months prior to trial. There is insufficient legal
argument in support ofthis point on appeal. Cobb, 953 So.2d at 672.
17
The Court did not direct a verdict as to the rescission claim, but addressed it
herself as an equitable claim. (TT-617). Nero simply argues that the rescission
request was timely made. (Initial Brief at 36). In fact, the Court granted
conditional rescission based upon Margaret Nero's rights. Thus, this argument
does not assign any error.
Nero argues that the Court erred in dismissing his 31st Counterclaim for
conversion. (Initial Brief at 38). The argument, in its entirety, states: "THE
LOWER COURT ERRED WHEN IT DISMISSED THE NERO'S [sic]
COUNTERCLAIM 31 FOR CONVERSION AS ALL PARTS NEEDED FOR A
VIABLE CLAIM OF RELIEF ARE WITH [sic] THE 4 CORNERS OF THE
COMPLAINT." (Id.). This is a bald, unsupported statement, and does not
constitute sufficient argument for this Court to engage in meaningful appellate
review. See Cobb, 953 So.2d at 672.
Nero contends that the Circuit Court erred in dismissing his 32nd
Counterclaim for wrongful foreclosure. (Initial Brief at 39). Nero again states
baldly that all necessary elements for such claim were in the Complaint. (Id.).
Nero then cites to evidence presented at trial. (Id.). Clearly, any evidence
presented at trial cannot form the basis for an argument that the claim was
wrongfully dismissed nearly three months prior to trial. There is insufficient legal
argument in support of this point on appeal. See Cobb, 953 So.2d at 672.
17
Nero argues that the Circuit Court erred in dismissing his 33rd Counterclaim
for violation of civil RICO, again arguing baldly that all elements were set forth in
the Complaint. Again, this is insufficient to obtain appellate review. Cobb,
953 So.2d at 672.
Nero argues that the Circuit Court erred in directing a verdict on his 35th
Counterclaim for violation of the Florida Deceptive and Unfair Trade Practices Act
("FDUTPA"), arguing that "AS THE NERO'S [sic] STATED DURING THE
TRIAL THAT A [sic] ASSIGNEE IS LIABLE UNDER THIS SINCE THE LOAN
WAS AQURIED [sic] WHILE THEY ASSUMED IT WAS IN DEFUALT [sic].
(Initial Brief at 39). First, the Court did not direct a verdict on this claim, but
dismissed it. (R-1618). Second, Nero's argument does not even begin to
adequately challenge the conclusion that Nero's 35th Counterclaim failed to state a
cause of action for violation of the FDUTPA, and improperly cites evidence
presented at trial to challenge the prior dismissal.
Nero argues that the Circuit Court erred in directing a verdict on his 36th
Counterclaim for slander of title, arguing that, because he legally rescinded the
loan, the lien, title, and security agreement were voided. (Initial Brief at 40). Nero
does not explain what action constituted slander of title, but at trial, he argued that
the filing of the assignments of the mortgage and the lis pendens constituted
slander of title. (TT-623). The Court found that the lis pendens is subject to
Nero argues that the Circuit Court erred in dismissing his 33rd Counterclaim
for violation of civil RICO, again arguing baldly that all elements were set forth in
the Complaint. Again, this is insufficient to obtain appellate review. See Cobb,
953 So.2d at 672.
Nero argues that the Circuit Court erred in directing a verdict on his 35th
Counterclaim for violation of the Florida Deceptive and Unfair Trade Practices Act
("FDUTPA"), arguing that "AS THE NERO'S [sic] STATED DURING THE
TRIAL THAT A [sic] ASSIGNEE IS LIABLE UNDER THIS SINCE THE LOAN
WAS AQURIED [sic] WHILE THEY ASSUMED IT WAS IN DEFUALT [sic].
(Initial Brief at 39). First, the Court did not direct a verdict on this claim, but
dismissed it. (R-1618). Second, Nero's argument does not even begin to
adequately challenge the conclusion that Nero's 35th Counterclaim failed to state a
cause of action for violation of the FDUTPA, and improperly cites evidence
presented at trial to challenge the prior dismissal.
Nero argues that the Circuit Court erred in directing a verdict on his 36th
Counterclaim for slander of title, arguing that, because he legally rescinded the
loan, the lien, title, and security agreement were voided. (Initial Brief at 40). Nero
does not explain what action constituted slander of title, but at trial, he argued that
the filing of the assignments of the mortgage and the lis pendens constituted
slander of title. (TT-623). The Court found that the lis pendens is subject to
18
litigation privileges (TT-618), and that the assignments did nothing more than
change the owner of a mortgage that had not been satisfied. (TT-619-20). Nero
presents no argument on appeal to challenge these conclusions. ( generally
Initial Brief at 40). See Cobb, 953 So.2d at 672.
Nero argues that the Circuit Court erred in directing a verdict on his 38th
Counterclaim for conspiracy to defraud. (Initial Brief at 4 1 -42). He argues that
Mayan, UBS, a prior owner of the loan, and a law firm conspired to file a
foreclosure action rather than rescinding the loan, as Mayan had previously agreed
to do. (Id.). Nero provides no authority for the proposition that filing a lawsuit
may constitute fraud. Further, he references a May 9, 2008 letter that was
excluded at trial. The evidence admitted at trial simply was not sufficient to
present the claim to a jury, and the Court did not err in directing a verdict on this
claim.
Nero argues that the Circuit Court erred in directing a verdict on his 39th
Counterclaim for grand larceny "DO [sic] TO ITS MISINTERPITATION [sic] OF
THE CASE[.]" (Initial Brief at 42). There simply is no argument presented.
Cobb, 953 So.2d at 672. Nero contends that the Circuit Court erred by directing a
verdict on his 37th Counterclaim for civil remedies for criminal practices. (a).
Nero offers no argument whatsoever. Cobb, 953 So.2d at 672.
19
litigation privileges (TT-618), and that the assignments did nothing more than
change the owner of a mortgage that had not been satisfied. (TT-619-20). Nero
presents no argument on appeal to challenge these conclusions. (See generallv
Initial Brief at 40). See Cobb, 953 So.2d at 672.
Nero argues that the Circuit Court erred in directing a verdict on his 38th
Counterclaim for conspiracy to defraud. (Initial Brief at 41-42). He argues that
Mayan, UBS, a prior owner of the loan, and a law firm conspired to file a
foreclosure action rather than rescinding the loan, as Mayan had previously agreed
to do. (Id.). Nero provides no authority for the proposition that filing a lawsuit
may constitute fraud. Further, he references a May 9, 2008 letter that was
excluded at trial. The evidence admitted at trial simply was not sufficient to
present the claim to a jury, and the Court did not err in directing a verdict on this
claim.
Nero argues that the Circuit Court erred in directing a verdict on his 39th
Counterclaim for grand larceny "DO [sic] TO ITS MISINTERPITATION [sic] OF
THE CASE[.]" (Initial Brief at 42). There simply is no argument presented. See
Cobb, 953 So.2d at 672. Nero contends that the Circuit Court erred by directing a
verdict on his 37th Counterclaim for civil remedies for criminal practices. (Id.).
Nero offers no argument whatsoever. See Cobb, 953 So.2d at 672.
19
As d•scussed above, the Circuit Court did not err in dismissing any
Counterclaims or in directing a verdict as to any Counterclaims, and this Court
should affirm the Counterclaim Judgment.
V. THE CIRCUIT COURT DID NOT ERR IN STRIKING NERO'SCLAIMS FOR TREBLE DAMAGES AND PUNITIVE DAMAGES, FORNOT AWARDING ATTORNEYS' FEES, FOR AWARDING INTEREST,AND FOR FAILING TO APPLY JUDICIAL ESTOPPEL
The Circuit Court struck Nero's claims for treble damages as to various of
his Counterclaims, and struck his claims for punitive damages throughout his
Counterclaim. (R-1618-19). First, since, as argued above, the Circuit Court did
not err in either dismissing or directing a verdict on all of Nero's claims, he is
entitled to no damages. Second, Nero presents no valid argument on appeal as to
how he is entitled to treble damages; in fact, he does not specify any statute that
authorizes such damages, nor does he specify which of his Counterclaims are at
issue. ( generally Initial Brief at 42). As to punitive damages, Nero argues
simply that "MAYAN DID THE ACTS WITH COMPLETE INTENT AND
ACKNOLDGEMENT [sic] OF THEIR WRONGFULL [sic] ACTS BEIND [sic]
PROHIBITED BY LAW." (Initial Brief at 42-43). Nero presents no authority to
support a claim for punitive damages, and the argument he offers on appeal does
not justify an award of punitive damages.
20
As discussed above, the Circuit Court did not err in dismissing any
Counterclaims or in directing a verdict as to any Counterclaims, and this Court
should affirm the Counterclaim Judgment.
V. THE CIRCUIT COURT DID NOT KRR IN STRIKING NERO'SCLAIMS FOR TREBLE DAMAGES AND PUNITIVE DAMAGES„FORNOT AWARDING ATTORNEYS'EES, FOR AWARDING INTEREST,AND FOR FAILING TO APPLY JUDICIAL ESTOPPEL
The Circuit Court struck Nero's claims for treble damages as to various of
his Counterclaims, and struck his claims for punitive damages throughout his
Counterclaim. (R-1618-19), First, since, as argued above, the Circuit Court did
not err in either dismissing or directing a verdict on all of Nero's claims, he is
entitled to no damages. Second, Nero presents no valid argument on appeal as to
how he is entitled to treble damages; in fact, he does not specify any statute that
authorizes such damages, nor does he specify which of his Counterclaims are at
issue. (See generally Initial Brief at 42). As to punitive damages, Nero argues
simply that "MAYAN DID THE ACTS WITH COMPLETE INTENT AND
ACKNOLDGEMENT [sic] OF THEIR WRONGFULL [sic] ACTS BEIND [sicj
PROHIBITED BY LAW." (Initial Brief at 42-43). Nero presents no authority to
support a claim for punitive damages, and the argument he offers on appeal does
not justify an award of punitive damages.
20
Nero argues that the Circuit Court erred by not awarding him attorneys' fees.
In that Nero did not prevail on any claim or defense at trial3, he is entitled to no
attorneys' fees, and the Circuit Court did not err.
Nero argues that the Circuit Court erred by awarding Mayan interest in
connection with the foreclosure, claiming that he is not liable for any interest once
the mortgage is rescinded. (Initial Brief at 43). First, because he did not tender the
principal when he first attempted to rescind, or as directed by the Order of
Conditional Rescission, the loan was not, in fact, rescinded. Mayan was
subsequently granted the relief of foreclosure in the Foreclosure Judgment.
Second, the relief of conditional rescission applied only to Margaret Nero, who has
not appealed.
Finally, Nero argues that the Circuit Court erred by not applying judicial
estoppel when the Neros informed the Court that Mayan had accepted their
rescission request and stated that it would not honor it. (Initial Brief at 43). First,
no claim for judicial estoppel was presented at trial; thus, the Circuit Court could
not err by failing to grant such relief. Second, judicial estoppel is wholly
inapplicable here. As this Court held, "[o]ne of the elements necessary to establish
judicial estoppel is that the opposing party must have successfully maintained an
3 Even to the extent Nero may argue that conditional rescission was a ruling againstMayan, that ruling only applied to Margaret Nero, who is not a party to this appeal.
21
Nero argues that the Circuit Court erred by not awarding him attorneys'ees.
In that Nero did not prevail on any claim or defense at trial', he is entitled to no
attorneys'ees, and the Circuit Court did not err.
Nero argues that the Circuit Court erred by awarding Mayan interest in
connection with the foreclosure, claiming that he is not liable for any interest once
the mortgage is rescinded. (Initial Brief at 43). First, because he did not tender the
principal when he first attempted to rescind, or as directed by the Order of
Conditional Rescission, the loan was not, in fact, rescinded, Mayan was
subsequently granted the relief of foreclosure in the Foreclosure Judgment.
Second, the relief of conditional rescission applied only to Margaret Nero, who has
not appealed.
Finally, Nero argues that the Circuit Court erred by not applying judicial
estoppel when the Neros informed the Court that Mayan had accepted their
rescission request and stated that it would not honor it. {Initial Brief at 43). First,
no claim for judicial estoppel was presented at trial; thus, the Circuit Court could
not err by failing to grant such relief. Second, judicial estoppel is wholly
inapplicable here, As this Court held, "[o]ne of the elements necessary to establish
judicial estoppel is that the opposing party must have successfully maintained an
3 Even to the extent Nero may argue that conditional rescission was a ruling againstMayan, that ruling only applied to Margaret Nero, who is not a party to this appeal.
21
inconsistent position in the prior proceeding." Brown & Brown, Inc. y. School Bd.
of Hamilton County, 97 So. 3d 918, 920 (Fia. 5th DCA 2012) (internai citation and
quotation marks omitted). There is no prior proceeding here.
VI. CONCLUSION
As set forth more fuiiy above, there is competent, substantial evidence to
support the Circuit Court's ruling on rescission, and the Court properly exercised
its discretion in granting conditional rescission. The Circuit Court did not abuse its
discretion in making any of its evidentiary rulings at trial. As to each rema‹n¡ng
point on appeal, Nero failed to object contemporaneously, failed to make sufficient
legai argument on appeal, or the Court's ruling was legally correct.
The Circuit Court did not err in dismissing certain ofNero's Counterclaims,
and did not err in directing a verdict as to the remainder ofNero's Counterclaims.
The Circuit Court did not err in striking Nero's claims for treble damages and
punitive damages, for not awarding attorneys' fees, for awarding interest, and for
failing to apply judicial estoppel. Accordingly, this Court should affirm the Circuit
Court's Final Judgment ofForeclosure, and all prior rulings ofthe Court.
22
inconsistent position in the prior proceeding." Brown k Brown, Inc. v. School Bd.
of Hamilton Countv, 97 So. 3d 918, 920 (Fla. 5th DCA 2012) (internal citation and
quotation marks omitted). There is no prior proceeding here.
VI. CONCLUSION
As set forth more fully above, there is competent, substantial evidence to
support the Circuit Court's ruling on rescission, and the Court properly exercised
its discretion in granting conditional rescission. The Circuit Court did not abuse its
discretion in making any of its evidentiary rulings at trial. As to each remaining
point on appeal, Nero failed to object contemporaneously, failed to make sufficient
legal argument on appeal, or the Court's ruling was legally correct.
The Circuit Court did not err in dismissing certain of Nero's Counterclaims,
and did not err in directing a verdict as to the remainder of Nero's Counterclaims.
The Circuit Court did not err in striking Nero's claims for treble damages and
punitive damages, for not awarding attorneys'ees, for awarding interest, and for
failing to apply judicial estoppel. Accordingly, this Court should affirm the Circuit
Court's Final Judgment of Foreclosure, and all prior rulings of the Court.
22
/s/ David J. Markese
EDWARD J. O'SHEEHANFlorida Bar No. 0056790eosheehan@shutts .cornERIC C. REEDFlorida Bar No. 0557161ereed@shutts . cornDAVID J. MARKESEFlorida Bar No. 0105041dmarkese@shutts. corn
SHUTTS & BOWEN LLP300 South Orange Ave.Suite 1000Orlando, Florida 32801Tel. : (407) 835-6790Fax: (407) 849-7259Counsel for Appellee Mayan MainstreetInvestors I, LLC
23
/s/ David J. Markese
EDWARD J. O'SHEEHANFlorida Bar No. [email protected] C. REEDFlorida Bar No. [email protected] J. MARKESEFlorida Bar No. [email protected] k BOWEN LLP300 South Orange Ave.Suite 1000Orlando, Florida 32801Tel.: (407) 835-6790FaK: (407) 849-7259Counsel for Appellee Mayan MainstreetInvestors I, LLC
23
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of Appellee's Answer
Brief has been furnished by U.S. Mail this 10th day of June, 2013, to FRANKLIN
J. NERO, SR., 11912 Airport Park Drive, Orlando, FL 32824.
Is! David J. Markese
DAVID J. MARKESE, ESQ.
24
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of Appellee's Answer
Brief has been furnished by U.S. Mail this 10th day of June, 2013, to FRANKLIN
J. NERO, SR., 11912Airport Park Drive, Orlando, FL 32824.
/s/ David J. Markese
DAVID J. MARKESE, ESQ.
24
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that Appellee's Answer Brief fully complies with the
formatting requirements prescribed by Florida Rule of Appellate Procedure 9.210.
ORLDOCS 12962334 1
si David J. Markese
DAVID J. MARKESE, ESQ.
25
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that Appellee's Answer Brief fully complies with the
formatting requirements prescribed by Florida Rule of Appellate Procedure 9.210.
/s/ David J. Markese
DAVID J. MARKESE, ESQ.
ORLDOCS 12962334 1
25
