Hearing Transcript - Deutsch+v.+Dage

8/6/2019 Hearing Transcript - Deutsch+v.+Dage

1/47

727-847-4000PARLIAMENTARY REPORTING, INC.

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUITIN AND FOR PASCO COUNTY, FLORIDA

CIVIL DIVISION

CASE NO. 51-2008-CA-10287-WS

DEUTSCHE BANK NATIONALTRUST COMPANY AS TRUSTEEFOR THE MLMI TRUST SERIES2007-MLN1,

Plaintiff,

vs

RAYMOND E. DAGE;JACQUELINE G. DAGE, et al.,

Defendants.________________________________/

BEFORE: THE HONORABLE WALTER SCHAFER, JR.

DATE: May 11, 2011

TIME: Commencing at 1:30 p.m.

PLACE: West Pasco Judicial Center

7530 Little Road

New Port Richey, Florida

BEFORE: SHARON K. RUBY

Stenographic Court Reporter

and Notary Public - State

of Florida at Large


2/47


APPEARANCES

TANYA SIMPSON, ESQUIRE

Smith, Hiatt & Diaz, P.A.

2691 E. Oakland Park Boulevard

#303

Fort Lauderdale, Florida 33301

Attorney for Plaintiff

DANIEL P. ROCK, ESQUIRE

Daniel Rock, P.A.

5426 Crafts Street

New Port Richey, Florida 34652-3963

Attorney for Defendants


3/47


Page 3

1 P R O C E E D I N G S

2 THE COURT: We're here on file No.

3 51-2008-CA-10287-WS, Deutsche Bank versus Raymond Dage,

4 D-a-g-e. Did I pronounce that correctly?

5 MR. ROCK: You did.

6 THE COURT: We have Mr. Rock here. And your name

7 for the record, please.

8 MS. SIMPSON: Tanya Simpson for the Plaintiff.

9 THE COURT: Okay.

10 MS. SIMPSON: That's T-a-n-y-a, S-i-m-p-s-o-n.

11 THE COURT: Okay. Mr. Rock, this is --

12 MR. ROCK: Actually this is their motion.

13 THE COURT: It's their motion for protective

14 order.

15 MS. SIMPSON: And a bunch of other things.

16 THE COURT: I've got a few things here so go right

17 ahead.

18 MS. SIMPSON: Yes, sir. I'm going to start --

19 I've given a copy of this to opposing counsel. This is just

20 for reference so that when I reference the cases --

21 THE COURT: Thank you very much. I always

22 appreciate that.

23 MS. SIMPSON: -- I can have you take a look at it.

24 THE COURT: Thank you.

25 MS. SIMPSON: I know we reserved a whole bunch of


4/47


Page 4

1 time. We've talked a little bit beforehand. I don't think

2 it's going to take quite as much time as we thought. I do

3 want to take a few minutes here just to sort of lay out

4 where we are in terms of the facts of the case, and then I'm

5 going to go straight to the law that I think is dispositive

6 of all of this and work backwards from there if we need to,

7 but I think that we can save some of the Court's time if we

8 just go straight to the crux of the matter.

9 So I'll just start by stating that procedurally in

10 this case judgment has already been entered. Prior to

11 judgment being entered the Defendants were defaulted. The

12 default was entered back in January of 2009. Judgment was

13 entered back in June of 2009. We're now here addressing --

14 one of the items that I moved to strike is the Defendant's

15 motion to vacate the summary final judgment, and that motion

16 was filed back in February of 2011. So that was outside the

17 year after the judgment was entered and a little bit over

18 two years after they were defaulted.

19 A hearing was already had on that motion and that

20 hearing was continued for the purposes of having an

21 evidentiary hearing. Once that order was entered we

22 received a notice of production to ask us to produce

23 documents for the evidentiary hearing. After having

24 reviewed both of those I filed the motion that you have

25 before you. I actually filed an original motion, but the


5/47


Page 5

1 amended motion that you have before you is the Plaintiff's

2 motion for protective order --

3 THE COURT: What tab?

4 MS. SIMPSON: I'm sorry. No. Tab 26, the first

5 one.

6 THE COURT: Is 26 where we're starting?

7 MS. SIMPSON: Yes. And for the record I have tabs

8 26 through 46. This is just because I didn't have any 1

9 through 25's in the office. So we start with 26.

10 THE COURT: Okay. That's fine. Thank you.

11 MS. SIMPSON: So Tab No. 26 is my motion, and I'll

12 just read into the record it's Plaintiff's amended motion

13 for protective order as to discovery, motion to strike,

14 notice of production of documents, post-judgment answer and

15 affirmative defenses and notice of hearing and memorandum of

16 law in opposition to Defendant's emergency motion to vacate

17 foreclosure judgment for fraud.

18 If you turn to Tab No. 29, that's Defendant's

19 emergency motion to vacate foreclosure judgment. And

20 reading through this motion, and opposing counsel will have

21 a chance to state his position on this, but I think we both

22 agree that he's moving under Florida Statute 702.07 to

23 vacate the Florida judgment and is specifically not moving

24 under Florida Rule of Civil Procedure 1.540(b) and that

25 distinction is what brings us to the table today.


6/47


Page 6

1 I want to turn to Tab No. 35. I want to just read

2 Florida Statute 702.07 so we'll know what we're talking

3 about here. This is a statute that was enacted back in

4 1927. It's entitled power of courts and judges to set aside

5 foreclosure decrees at any time before the sale, and we are

6 presently before the sale. This is the statute that defense

7 counsel is invoking.

8 The circuit courts of this state -- I'm reading

9 the statute now -- and the judges thereof at chambers shall

10 have jurisdiction, power and authority to rescind, vacate

11 and set aside a decree of foreclosure of a mortgage of

12 property at any time before the sale thereof has been

13 actually made pursuant to the terms of such decree and to

14 dismiss the foreclosure proceeding upon the payment of all

15 court costs.

16 The Defendant is specifically relying on this

17 statute and is not relying on Rule 1.540(b). I want to turn

18 back to Tab No. 34, which is Florida Rule of Civil Procedure

19 1.540, and the relevant portion of this rule -- and then

20 I'll be comparing this rule against the statute and arguing

21 how they can be read together. The relevant portion of this

22 rule under Florida Rule of Civil Procedure 1.540(b), on

23 motion and upon such terms as are just the court may relieve

24 a party or party's legal representative from a final decree,

25 order or proceeding for the following reasons, and one of


7/47


Page 7

1 the reasons stated is fraud. After that -- after the list

2 of reasons it says the motion shall be filed not more than

3 one year after the judgment.

4 So we have here -- and what defense counsel seems

5 to be pointing out is apparently a conflict between the

6 statute and the Rule of Civil Procedure, where the statute

7 says at any time before the sale, but the Rule of Civil

8 Procedure says not more than one year before a judgment.

9 And so the dilemma that's before the Court today is how to

10 read that statute and that rule such that one is not in

11 conflict with the other and such that neither violates the

12 Florida Constitution.

13 I'm going to walk you through a case. It's under

14 Tab No. 42. It's a Florida Supreme Court case, Parker

15 versus Parker -- it was heard by the Florida Supreme Court

16 on February 1st of 2007. That's at 950 So.2d, Page 389 --

17 that really has pretty well sliced and diced how the statute

18 works, how the rule works when one is to be applied and when

19 the other one is to be applied. And I think the Supreme

20 Court has already done the heavy lifting that will lead to a

21 decision of how this all will work out.

22 And the reason that I'm going to this issue first

23 rather than talking about the notice of production and the

24 evidentiary hearing and such is that if we determine that --

25 or if Your Honor determines that the Supreme Court has


8/47


Page 8

1 already decided whether or not this motion is time barred or

2 is not time barred based on Rule 1.540(b), Defendant's

3 motion is time barred or is not time barred, if Your Honor

4 determines that that motion is time barred then there will

5 be no evidentiary hearing.

6 If there is no evidentiary hearing, then no

7 discovery would be relevant because discovery would only be

8 relevant if it either came up with evidence that could be

9 admitted or anything that could lead to admissible evidence.

10 And if there is no hearing, there is no evidentiary hearing,

11 then there is no additional evidence to be admitted, so the

12 discovery wouldn't be relevant either.

13 So once we take care of this issue that should be

14 dispositive of all the others. And I want to just walk

15 through Parker. I want to walk through a whole lot of this

16 case because I really think the Supreme Court has done a

17 good job at laying this out. I'm going to start with if you

18 look at the bottom right-hand corner here -- actually hang

19 on just a second. Page four of the -- page four. It's

20 actually 392 of the case but page four in what you have in

21 your binder. I'm going to read from the very first

22 paragraph here, and then I'm going to backtrack a little bit

23 as to how we got here.

24 This paragraph reads that where fraud is extrinsic

25 it is deemed independent of the action and therefore must be


9/47


Page 9

1 attacked independent of the action. However, where fraud is

2 intrinsic it is deemed to have occurred in the current

3 action and must be attached by a Rule 1.540(b) motion

4 directed at the current action, and because Rule 1.540(b)

5 seeks to achieve finality the motion must be filed within

6 one year of the final judgment.

7 So the question before the Court today is whether

8 or not we're talking about extrinsic fraud or intrinsic

9 fraud, and this case walks you right through what that is

10 and how that applies and when a motion must be brought under

11 1.540(b) or when it can be brought some other way. So I

12 want to go back to the beginning of Parker. Actually it's

13 going to be page two in your binder under Roman Numeral II,

14 discussion.

15 The factual scenario in Parker -- let me just go

16 back here. The factual scenario in Parker is that this is a

17 divorce case in which the wife had allegedly misled the

18 Court as to the paternity of the father and was therefore

19 awarded -- the paternity of the child and was therefore

20 awarded child support. Later on the father came back and

21 said I just did a DNA test and I'm not the dad, I don't have

22 to pay this.

23 And here is how the court determined this issue.

24 Under Roman Numeral II, the conflict in issue is whether the

25 wife's representation of paternity in dissolution of


10/47


Page 10

1 marriage -- now, again, we're not in a dissolution of

2 marriage case but the conflict is whether this

3 misrepresentation is extrinsic or intrinsic fraud. This

4 distinction is important because of the one year limitation

5 for filing a motion for relief from judgment under Florida

6 Rule of Civil Procedure 1.540(b), and the court goes on to

7 dissect what extrinsic fraud is and what intrinsic fraud is

8 and when it's to be applied and how that determines whether

9 the motion must be brought under 1.540(b) or whether the

10 relief can be sought some other way.

11 If you go on the right side of page two, the third

12 full paragraph, under Rule 1.540(b) relief from a judgment

13 based on intrinsic fraud must be sought by motion within one

14 year of its entry. However, this one year time limit does

15 not apply to extrinsic fraud because extrinsic fraud is

16 considered fraud on the court. Defense counsel's motion has

17 been brought as fraud on the court or extrinsic fraud.

18 That's what he purports his motion to be under.

19 We continue. Rule 1.540(b) specifically provides

20 that this rule does not limit the power of a court to

21 entertain an independent action to relieve a party from a

22 judgment, decree, order or proceeding to set aside a

23 judgment or decree for fraud upon the court, which is

24 extrinsic fraud. Rule 1.540(b) clearly preserves the

25 equitable remedy of independent action where extrinsic fraud


11/47


Page 11

1 is established.

2 Now I want to turn over to the next page. I'm

3 going to read a lot of this, but the Supreme Court really

4 brings it well together and I'm not going to try to outdo

5 them. I'm just going to let them speak for themselves. The

6 next page, page three, on the top -- the beginning of the

7 first full paragraph. Extrinsic fraud involves conduct

8 which is collateral to the issues tried in the case. This

9 court, that means the Supreme Court, has defined extrinsic

10 fraud as the prevention of an unsuccessful party from

11 presenting his case.

12 If you skip down to the next paragraph, the last

13 part of that next paragraph, in other words extrinsic fraud

14 occurs where a defendant has somehow been prevented from

15 participating in a cause. Intrinsic fraud on the other hand

16 applies to fraudulent conduct that arises within a

17 proceeding and pertains to the issues in the case that have

18 been tried or could have been tried.

19 Skip to the next paragraph. If a judgment was

20 obtained upon false testimony or fraudulent instrument --

21 and those two things are going to be key. We'll come back

22 to that. If judgment was obtained upon false testimony or

23 fraudulent instrument and the parties were heard, the

24 evidence submitted to and received consideration by the

25 court, then it may be said that the matter has been actually


12/47


Page 12

1 tried or was so in issue that it might have been tried.

2 Skip down to the very bottom of that page still on

3 the left side. Extrinsic fraud is conduct which prevents a

4 party from trying an issue before the cart, and the

5 prevention itself becomes a collateral issue to the cause.

6 Whereas intrinsic fraud is the presentation of misleading

7 information on an issue before the court that was tried or

8 could have been tried.

9 Skip down a couple more paragraphs right after the

10 italics. This is where we're getting into the distinction

11 between the rule and the statute. Prior to the adoption of

12 Florida Rule of Civil Procedure 1.540(b) -- and I'm going to

13 stop right there. Prior to the adoption. What existed

14 prior to the adoption of the rule? The statute. The

15 statute came about in 1927. The statute 720.07 was in

16 existence prior to the adoption of Rule 1.540(b). So prior

17 to the adoption of that rule only what was defined as

18 extrinsic fraud could in reality form the basis for relief

19 from a judgment.

20 Further such relief could be obtained only by an

21 independent action in equity. There was no practical basis

22 for relief from a judgment obtained by intrinsic fraud.

23 That independent action is what is allowed under 702.07.

24 That's what was in existence prior to 1.540(b).

25 The Supreme Court said prior to that rule the only


13/47


Page 13

1 way to get a relief based on fraud on the court, which is

2 extrinsic fraud, is to go under things that existed prior to

3 the enactment of the rule. What existed prior to the

4 enactment of the rule? 702.07. You could only do that

5 under extrinsic fraud and you could only do that in a

6 separate action.

7 Now we have a rule, and I want to go back to the

8 rule. The rule is -- keep your finger here, but the rule is

9 Tab No. 34. Rule 1.540(b)(3) now allows an action for

10 fraud, whether intrinsic or extrinsic, to be brought by

11 motion in the case. So now you have two different ways to

12 bring extrinsic fraud. You can bring it under the rule or

13 you can bring it outside of the rule in a separate action

14 under the statute, but there is only one way to bring

15 intrinsic fraud and that's under the rule.

16 I'm going to go back to the case where we just

17 left off. I'm going to reread that last little bit that I

18 did and then go on. Prior to the adoption of Florida Rule

19 of Civil Procedure 1.540(b), that's when the statute existed

20 by itself without the rule, only what was defined as

21 extrinsic fraud could in reality form the basis for relief

22 from a judgment. Further such relief could -- I'm sorry,

23 further such relief could be obtained only by an independent

24 action in equity. There was no practical basis for relief

25 from a judgment obtained by intrinsic fraud.


14/47


Page 14

1 Skip down to the last paragraph on this page. It

2 should clearly be understood that Rule 1.540(b) broadened

3 the grounds upon which a final judgment could be attacked.

4 How did it broaden it? It added intrinsic as a ground but

5 created a one year limitation period within which such an

6 attack must be made. The rule does not change the existing

7 definition of intrinsic and extrinsic fraud or change the

8 type of conduct which constitutes fraud on the court.

9 And then we get back to where we started, and this

10 is the holding in this part of the case. Thus, where fraud

11 is extrinsic it is deemed independent of the action and,

12 therefore, must be attacked independent of the action. Now,

13 again, the rule allows it to be brought under 1.540(b) in

14 the same case, but it's an independent type of a motion.

15 It's not based on things that happen intrinsically. It can

16 be brought under 1.540(b) or it can be brought under the

17 statute.

18 In reading on, however, where fraud is intrinsic

19 it is deemed to have occurred in the current action and must

20 be attacked by a Rule 1.540(b) motion. In other words,

21 intrinsic fraud may not be attacked any other way. It must

22 be attacked by a 1.540(b) motion directed at the current

23 action, and because Rule 1.540(b) seeks to achieve finality

24 the motion must be filed within one year of the final

25 judgment. So that is the law.


15/47


Page 15

1 Now we need to apply the facts of the case to the

2 law. Is the motion alleging extrinsic fraud or intrinsic

3 fraud? For that we're going to look at the motion itself.

4 That's under Tab 29, I believe. Yes, Tab No. 29 is

5 Defendant's motion. And I'm going to ask you -- it might be

6 too late now, but I'm going to ask you to keep a finger on

7 page three under Tab 42 because we're going to flip back and

8 forth for a minute.

9 Defendant's motion -- and this motion is not set

10 today except to the extent that I'm moving to strike it. So

11 we do need to look at it so we can talk about what we're

12 moving to strike. The first eighteen of the twenty-one

13 pages of the Defendant's motion go to issues of standing and

14 whether or not an allegedly erroneous or false or fraudulent

15 assignment of mortgage means that Plaintiff's standing in

16 the case was fraud on the court.

17 Pages nineteen to twenty of the Defendant's motion

18 go to the affidavit of indebtedness that Plaintiff filed in

19 the case when it was seeking summary judgment, whether there

20 were mathematical errors, whether there were payments that

21 were somehow not included in the affidavit. So we have two

22 things. We have an instrument, the assignment of mortgage,

23 and we have testimony, the affidavit of indebtedness.

24 We're going to turn back to page three of the

25 Parker case, on the left side on the bottom, the third to


16/47


Page 16

1 last paragraph. If a judgment was obtained upon false

2 testimony, that's the affidavit, if it were false, or a

3 fraudulent instrument, that's the assignment of mortgage, if

4 it were false, and the parties were heard, there is no

5 allegation that the parties were not noticed for the summary

6 judgment hearing, then the evidence submitted and

7 received -- and the evidence submitted and received by

8 consideration of the court was the affidavit and assignment

9 of mortgage submitted and received and considered by the

10 court -- yes -- if all those things are true, then it may be

11 said that the matter has been actually tried or was so in

12 issue that it might have been tried. In other words, that

13 makes it intrinsic fraud that's being alleged, not extrinsic

14 fraud.

15 And while he's titled his motion fraud on the

16 court, which is another definition, another word, another

17 term for the same thing, extrinsic fraud, while he's

18 entitled it that, he has pled the elements of intrinsic

19 fraud, and intrinsic fraud may not be brought more than one

20 year after the action and may not be brought under anything

21 other than 1.540(b).

22 The elements of extrinsic fraud, flipping back to

23 that page three, extrinsic fraud occurs where a defendant

24 has somehow been prevented from participating in a cause.

25 Nowhere is that alleged in the motion. So this entire


17/47


Page 17

1 motion to vacate is time barred by the passage of time under

2 Rule 1.540(b). Because the motion is time barred, no

3 hearing is appropriate. Because no hearing is appropriate,

4 no evidence will be presented. Because no evidence will be

5 presented, no additional discovery is appropriate.

6 THE COURT: Thank you. Mr. Rock.

7 MR. ROCK: Thank you, Your Honor. I have a brief.

8 It looks thick but that's only because I've got copies of

9 the cases. It's basically a five page response to that

10 motion. And I guess what we're hearing is -- if I can

11 clarify this is the motion to strike or motion to not go

12 forward, because we haven't really discussed whether or not

13 any discovery or what discovery she's trying to or documents

14 she's trying to prevent.

15 MS. SIMPSON: All discovery just to clarify.

16 MR. ROCK: Okay. Well, first of all, Your Honor,

17 let me try to refresh your recollection when we were here

18 back on March 31st and I presented to you a copy of the

19 transcript and to opposing counsel's office probably a week

20 or ten days ago. These arguments were made. And if just to

21 look at this one case which I believe is the -- 41 or 42,

22 the Parker case.

23 MS. SIMPSON: 42.

24 MR. ROCK: Okay. I'm just going to briefly point

25 out the differences between this case and -- the case at bar


18/47


Page 18

1 and the Parker case. If you look at the bottom of page two,

2 after determining that the petitioner's action will be

3 treated as a motion under Rule 1.540(b), the Fourth District

4 revisited this court's explanation of the substantive

5 distinctions between intrinsic and extrinsic fraud or

6 intrinsic and extrinsic in DeClaire versus Yohanan.

7 I did not bring this motion under 1.540. I

8 brought it purely pursuant to a statute that has no time bar

9 on it except the sale. 702.07 is the dispositive statute.

10 It doesn't say anything about in accordance with the Rules

11 of Civil Procedure and before a sale. It just says before a

12 sale. And when the statute is -- when you look at a statute

13 can you look at the statute and give the statute meaning

14 without looking at the Rule of Procedure? Absolutely. It

15 doesn't have anything to do with the Rule of Procedure.

16 There are two cases and they're both cited in

17 my -- I attached it and counsel I think has -- actually

18 argued or she has cited Sterling Factors.

19 MS. SIMPSON: I can give you the number so you can

20 look that up, Your Honor. It's No. 45.

21 MR. ROCK: Sterling Factors is a case where the

22 court said we follow Taylor, which was a Supreme Court case,

23 and they're both actually in the -- attached to mine and

24 certainly the Sterling Factors case is here, where it said,

25 you know, when you're dealing with foreclosures and


19/47


Page 19

1 equitable actions we're -- the Supreme Court is even

2 suggesting in Taylor that if you can show fraud it's not

3 necessarily going to be limited. In other words, you could

4 ask for relief after the sale. If a sale takes place and

5 it's still a void judgment or an invalid judgment there is

6 no time bar on it, and that was Northcutt and Villanti in

7 the concurring opinion on Sterling Factors. I believe Judge

8 Altenbernd -- or Justice Altenbernd wrote the opinion for

9 the court.

10 So what counsel is again arguing, like it argued

11 back in March, and I don't know if it was --

12 MS. SIMPSON: It was a different attorney.

13 MR. ROCK: I thought it was a different attorney

14 who argued the same thing that we're hearing today. This is

15 a 1.540 motion. It's outside of a year. Well, I would

16 agree that if I brought it under 1.540(b) it would be

17 barred. However, the statute which creates the form for

18 relief is prior to sale. And even the Sterling Factors and

19 the Taylor case suggest that for certain types of fraud on

20 the court you can, in fact, bring that even after sale, but

21 suffice it to say that I am within the time -- clearly

22 within the time specified in the statute.

23 THE COURT: What is the time specified in the

24 statute?

25 MR. ROCK: Prior to sale. That's it. And there


20/47


Page 20

1 has -- and that would be in --

2 MS. SIMPSON: Statutes. Tab 35.

3 MR. ROCK: -- 35. Very, very -- you know, like a

4 four sentence statute. The circuit courts and the judges

5 thereof shall have jurisdiction, power and authority to

6 rescind, vacate and set aside a decree of a foreclosure of a

7 mortgaged property at any time before the sale thereof has

8 actually been made.

9 Now, one could argue, well, if it was a sale and I

10 made this objection within the ten days has there been a

11 sale completed. We don't even have to go that far. We're

12 not saying a valid sale. There hasn't even been the

13 ministerial thing of an auction. So counsel is trying to

14 categorize all the fraud as intrinsic.

15 When I go back to the motion that was filed, and,

16 again, I do appreciate counsel providing the Court this, if

17 you look at paragraph -- is it Tab 29 or --

18 MS. SIMPSON: 29.

19 MR. ROCK: Tab 29, page eighteen of twenty-one,

20 Your Honor, paragraph two.

21 THE COURT: What section?

22 MR. ROCK: I'm sorry. Section six, paragraph two,

23 which would be page eighteen, bottom of page eighteen,

24 Arabic Numberal II. The Defendants were in a process of a

25 loan modification based on the wife's poor health and sudden


21/47


Page 21

1 loss of income. They had submitted their payments. In

2 other words, my clients made post petition payments to the

3 servicer, which was Wilshire, before, during and after the

4 Plaintiff filed its foreclose action. That's one of the

5 reasons why they were not fighting the foreclosure, because

6 they were told by the servicer you don't need to hire a

7 lawyer, we're going to work this out, we're going to give

8 you a loan modification.

9 And then I cite this Chaties versus US Bank, NA,

10 as trustee, which the court found that the plaintiff

11 homeowner stated a cause of action for promissory estoppel

12 where the plaintiff decided to forgo a Chapter 13 to her

13 detriment due to the trustee's representation and

14 justifiable reliance that they were going to get a loan

15 modification.

16 THE COURT: So they were dealing directly with the

17 person who could make that decision?

18 MR. ROCK: Yes, Your Honor.

19 THE COURT: Well, if you're a servicing agent,

20 what authority do they have to do a mortgage modification?

21 MR. ROCK: Well, that explains why they didn't

22 act, because they're the ones that collect their payments.

23 They tell you where to make them and when to make them.

24 THE COURT: But they have no authority to make

25 modification agreements.


22/47


Page 22

1 MR. ROCK: Your Honor, I wouldn't disagree with

2 you, but that's their -- the servicer is the agent for the

3 Plaintiff, and the Plaintiff's agent misled them.

4 THE COURT: But the Plaintiff's agent for what

5 purpose? It's limited to collect the payments and remit

6 them to the lender.

7 MR. ROCK: Well, that's true. They also tell you

8 how much more you have to pay or how much less you have to

9 pay when there is escrow issues on taxes and insurance.

10 THE COURT: Do you have any affidavit from the

11 servicing agent that they told these people that?

12 MR. ROCK: No. But I have affidavits from both

13 clients that they -- and they are with part of the original

14 motion. So, again, for us to say we're going to shoot you

15 down because you can't even hear it, I'm not -- in other

16 words, the argument is if it is outside of the 1.540 one

17 year period you are dead, and that is a legal decision that

18 you have to make.

19 That's why counsel and I discussed that it would

20 sure be cleaner if you were going to shoot us down without

21 the evidentiary hearing because you feel that there is a one

22 year limit and 1.540 applies and is going to be superimposed

23 on 702.07. I have found absolutely no cases and have

24 actually made this argument in other circuit court cases

25 where the court said, well, if it's not limited it's prior


23/47


Page 23

1 to sale so it's a good motion. Now let's talk about the

2 merits. We're not here to talk about the merits today.

3 We're just here to talk about is the rug pulled out from me

4 to make the motion under 702.07 if it is outside the year of

5 the judgment.

6 THE COURT: Well, based on Plaintiff's argument

7 then do you have any fraud that was extrinsic?

8 MR. ROCK: Well, Your Honor, I think what you have

9 to do is you have to look at the fraud that we alleged that

10 we are going to show.

11 THE COURT: You listed how many issues of fraud,

12 six?

13 MR. ROCK: Well, fundamentally --

14 THE COURT: Which one would be considered

15 extrinsic, i.e., it's not intrinsic, which one was -- had an

16 opportunity to be brought before the court.

17 MR. ROCK: Well, number one, counsel stated that

18 the assignment was received by the court prior to the

19 judgment. In point of fact, Your Honor, that's not true.

20 The notice of assignment was presented to the court, Judge

21 Mills, with the entry of the order of the final judgment.

22 It was not filed with the court prior to that. In honesty,

23 in all candor and respect to Judge Mills, he didn't either

24 review it carefully or it was not to where he looked at it

25 and said, gee, isn't this interesting, it's a week after the


24/47


Page 24

1 case was filed, when in point of fact that's their only

2 basis to claim to be before the court was the assignment of

3 mortgage. The assignment of mortgage postdated the filing

4 by over a week.

5 THE COURT: But wasn't the note endorsed in blank

6 to the Plaintiff?

7 MS. SIMPSON: Yes, sir, on the back of page four.

8 THE COURT: And the mortgage follows the note, and

9 they recorded an assignment of mortgage to protect the

10 lender.

11 MR. ROCK: That would be true if, in fact, they

12 were in possession of the note at the time the action was

13 commenced. However, they also filed a count to reestablish

14 a lost or destroyed note. So they did not have possession

15 of the note when the action was filed. But be that as it

16 may --

17 THE COURT: But the complaint is deemed to be true

18 on its four corners.


20 THE COURT: Unless you go to court to object to it

21 otherwise.

22 MR. ROCK: But when you submit admissible evidence

23 that defeats your own -- your exhibits defeat your own

24 allegations the exhibits control. For example, and I'm sure

25 perhaps that the Plaintiff --


25/47


Page 25

1 THE COURT: What was the exhibit that --

2 MR. ROCK: The assignment which is attached to --

3 THE COURT: The assignment says the mortgage was

4 signed.

5 MR. ROCK: Correct, eight days after the case was

6 filed.

7 THE COURT: Okay.

8 MR. ROCK: And there is no -- in this particular

9 case there was no relation back or relation back with a

10 previous effective date, which might make it arguable that

11 it preexisted -- the assignment preexisted the filing.

12 THE COURT: Let me ask a question. Was the note

13 subsequently found?

14 MS. SIMPSON: Yes, and it was submitted to the

15 court at summary judgment, the notice endorsed in blank.

16 THE COURT: So they alleged in their complaint

17 that they were the holder of the note and mortgage.

18 MR. ROCK: They said that they were owner and the

19 holder of the mortgage. They also alleged at the same

20 time --

21 THE COURT: You say there is a distinction between

22 what you said and I said?


24 THE COURT: They're the owner or the holder.

25 MR. ROCK: The owner --


26/47


Page 26

1 THE COURT: -- or the holder.

2 MR. ROCK: They claim to be both the owner and the

3 holder.

4 THE COURT: I think that falls within the rules.

5 MR. ROCK: That's exactly what the rule of

6 procedure says.

7 THE COURT: Right. So they said they had it.

8 MR. ROCK: That's correct. But their evidence

9 that they submitted at the summary final judgment hearing

10 disputed that on their own allegation.

11 THE COURT: How did it dispute it?

12 MR. ROCK: Because it showed their interest in the

13 mortgage came up a week after they filed the case.

14 THE COURT: But what is the date on the assignment

15 of the note?

16 MR. ROCK: It's not dated.

17 THE COURT: Okay. So --

18 MR. ROCK: The instrument -- the assignment would

19 control, because the assignment that's attached to the

20 motion, Exhibit A, it says I hereby assign the note and the

21 mortgage. Your Honor, if you look in my thing, the pile

22 that I just gave you --

23 THE COURT: Okay.

24 MR. ROCK: -- Exhibit A. That's it. And it says

25 I hereby assign the note and mortgage, and it's post filing.


27/47


Page 27

1 THE COURT: I'm trying to find out why that is a

2 problem, because if they alleged that they owned the note

3 and mortgage and they had the note -- the purpose of doing

4 the assignment of mortgage is for to protect the lender.

5 They don't have to -- you don't have to assign the mortgage.

6 You own the mortgage. If you have the note and -- the

7 mortgage follows the note.

8 MR. ROCK: But, Your Honor, they didn't have the

9 note. That's why they had a count for lost or destroyed

10 note. They subsequently secured it.

11 THE COURT: I don't want to argue their case, but

12 a lot of these cases they always add in the alternative lost

13 note because they can't find it at the time they file it.

14 Did they not file a copy of the note with the complaint?

15 MR. ROCK: I don't believe they did, Your Honor.

16 MS. SIMPSON: There was no copy of the note filed

17 with the complaint; but, Your Honor, this is all going --

18 these are all going to issues that were already before the

19 court at trial.

20 MR. ROCK: Well, and, Your Honor, that's why --

21 THE COURT: So these are all what she would refer

22 to as intrinsic issues.

23 MR. ROCK: I agree if that rule -- which we're not

24 here under 1.540, and as I indicated the Parker case --

25 THE COURT: Well, you're arguing you're not. She


28/47


Page 28

1 argues --

2 MR. ROCK: That's correct.

3 THE COURT: -- that we should be.

4 MR. ROCK: Correct. Well, she says that this rule

5 of procedure is out there for all cases regardless of --

6 correct me if I'm wrong, Counsel -- this would apply whether

7 the statute says and in conjunction with Rule 1.540 and etc.

8 The statute is clear that it does not have any such

9 limitation and that --

10 THE COURT: It does, but what about Parker which

11 interpreted it?

12 MR. ROCK: Because they agreed -- they argue that

13 they brought their case under 1.540. I did not bring this

14 under 1.540. I had no intention of bringing it under 1.540.

15 I brought it exclusively under the statute.

16 THE COURT: Well, help me out here because I

17 thought I understood from Plaintiff's counsel that

18 Parker v Parker was such that there was an explanation of

19 1.540(b) and the statute --

20 MR. ROCK: Your Honor --

21 THE COURT: -- and why one would be looked at or

22 the other and that's how they did it. One was established

23 in 1927. The rule was established somewhat later.

24 MR. ROCK: Your Honor, unfortunately you're the

25 one that has this, as I call it, a case of first impression


29/47


Page 29

1 where you're going to say by court decree this court

2 interprets that when that rule which is -- should be used to

3 assist the court should now supersede a statute. That

4 statute -- and I pointed out in my argument, Your Honor,

5 that when rules conflict with statutes, statutes supersede,

6 and that case is the --

7 THE COURT: That's in what you gave me?

8 MR. ROCK: Yes, Your Honor, that's the -- not the

9 Sterling Factors case. I want to say -- just a second, Your

10 Honor.

11 MS. SIMPSON: While you're looking I won't

12 interrupt, but I do want an opportunity to rebut that

13 particular point.

14 MR. ROCK: Let's see. Just a moment. Amazon

15 versus State, which is 5 So.3rd 798. I'm just not sure what

16 exhibit it is. I'm sorry. They labeled it Exhibit D. It's

17 Exhibit D, Your Honor, where -- and here they're talking

18 about an administrative rule being deemed -- the rules serve

19 the statutes, not the statutes serve the rules.

20 And I believe it's on page five of six. On the

21 top of page five it says, which is in -- Page 801 of the

22 official reporting, but on the top of page five it says to

23 the extent that the State relies on an administrative rule

24 to enlarge the wildlife officer's authority beyond that

25 granted by the statute we would reject such a broad


30/47


Page 30

1 interpretation of the rule. It is axiomatic that an

2 administrative rule cannot enlarge, modify or contravene the

3 provisions of a statute.

4 So what counsel is saying -- suggesting is that

5 the rule by some sort of a judicial fiat somehow completely

6 circumvented a rule which the court -- the Supreme Court

7 obviously knew what it was talking about, the statute, in

8 Taylor versus Day, which is found at 102 Florida 1006. It's

9 Exhibit C in the attachments, Your Honor, where the court

10 looked at 702.07 and said, you know, this type of relief can

11 even be brought, believe it or not, post sale, but I didn't

12 argue that because we're not post sale.

13 So if the Supreme Court says that this type of

14 statute can be raised post sale then how much more should I

15 be permitted to argue the same statute pre-sale. I think

16 that I would submit that we have actually two forms of fraud

17 and misrepresentation to present to the court, both

18 intrinsic and extrinsic.

19 THE COURT: Which one is extrinsic?

20 MR. ROCK: Where they were prevented from

21 participating because of the representations made to them by

22 the servicer.

23 THE COURT: How were they -- how were they not

24 able to participate? That was a decision they made based on

25 representations you said, but I mean not only that they


31/47


Page 31

1 weren't otherwise --

2 MR. ROCK: Your Honor, that was the sufficient

3 misrepresentation to be recognized by other courts to allow

4 people to be estopped from asserting that we're coming in

5 here like a bulldozer and we're going to take away your

6 house when we've been trying -- when you've been cooperating

7 with us and submitting us HAMP application after HAMP

8 application and we're giving you a modification, we're

9 giving you a modification, and then there is a judgment.

10 And that's what we suggest their affidavits say and that's

11 what they will testify to.

12 But I'm saying that you -- this Court should not

13 make a determination at this point in time -- however it may

14 be doing us both some sort of a time-saving maneuver if you

15 say they didn't file it within a year, I'm ruling that 1.540

16 rules in addition to 702.07, and then we know exactly what

17 the Court has to decide on.

18 THE COURT: Well, let me ask you a question. I'm

19 assuming your client was not represented at the time of the

20 motion for summary judgment. They got notice of summary

21 judgment.

22 MR. ROCK: Correct.

23 THE COURT: Could they not have come to the

24 hearing and -- did they come to the hearing? And if they

25 did, did they say wait a minute, the servicing agent is


32/47


Page 32

1 telling us that we're working on a mortgage modification

2 agreement and we don't understand why this is going forward.

3 MR. ROCK: Stranger things have happened in

4 modification requests and servicers, Your Honor, and I think

5 you hit the nail on the head without even having them to

6 testify; but what they've already testified to in their

7 affidavits, this is the exact conduct that the servicer was

8 engaged in, and that's why they didn't participate until

9 they realized something isn't right, and that's when I got

10 involved.

11 And fortunately we're not post sale because then

12 this would really be a tough decision if it was post sale,

13 because then I would have to argue the Taylor case and the

14 Sterling Factors case to say it could even be post sale and

15 you could bring this motion under 702.07. And I realize

16 this is a very peculiar statute dealing with mortgage

17 foreclosures. Maybe we have a very peculiar state that we

18 live in that gives such broad protection for homeowners and

19 their homestead property, and this is their homestead

20 property. It's not a stretch, but it is there.

21 THE COURT: You said you wanted to respond?

22 MS. SIMPSON: Yes, briefly as to Sterling Factors.

23 And counsel did represent it correctly that Sterling Factors

24 did hold that 702.07 did not bar a motion for fraud post

25 sale. It should be noted that the Sterling Factors case was


33/47


Page 33

1 within one year of judgment. So, yes, we're post sale but

2 we're still pre-one year. It doesn't really address that

3 issue.

4 So the question then becomes how to read the rule

5 and the statute together. And I would like to draw Your

6 Honor's attention to the Canon of Constitutional Avoidance.

7 You may or may not be familiar, but I'll just bring you

8 briefly to page eight of my motion, which is

9 Tab 26, and then we'll look at the constitution and we'll

10 look at a case that lays this out.

11 But on page eight of my motion I cited to a United

12 States Supreme Court case which I didn't bring but I just

13 cited to it here in case Your Honor wants to review it at a

14 later time to become more familiar with the Canon of

15 Constitutional Avoidance. But that canon basically says

16 that the court must interpret statutes so that it does not

17 conflict with the Constitution wherever possible.

18 So let's now go look at Tab No. 46. Tab No. 46 is

19 Hanzelik versus Grottoli -- and, Madam Court Reporter, I'll

20 give you my copy of this binder afterwards so you can have

21 all of this -- it's out of the Fourth District in 1997. And

22 we're going to turn to page three here. This case addresses

23 what happens if you don't follow the Canon of Constitutional

24 Avoidance. It's the second paragraph on the left side about

25 half way through that paragraph. Under Article V, Section 2


34/47


Page 34

1 of the Florida Constitution the Legislature is not permitted

2 to set forth any enactment which would govern procedure in

3 the courts of this state.

4 Next paragraph, matters of practice and procedure

5 in state courts are solely the province of the Supreme

6 Court, Article V, Section 2, Florida Constitution. Powers

7 constitutionally bestowed on the courts may not be exercised

8 by the Legislature, Article II, Section 3 of the Florida

9 Constitution. Thus it's been held that a statute which

10 purports to create or modify procedural rule of the court is

11 constitutionally infirm.

12 Now we certainly don't want to have to ask this

13 court to rule that Florida Statute 702.07 is

14 unconstitutional, but under the Canon of Constitutional

15 Avoidance we don't have to do that so long as those two, the

16 statute and the constitutional provision, can be read

17 together in such a way that neither -- the statute is not

18 rendered unconstitutional.

19 Skip down to the last full paragraph on the left

20 side of the page. A rule of procedure prescribes the method

21 or order by which a party enforces substantive rights or

22 obtains redress for their invasion. Substantive law creates

23 those rights. Practice and procedure are the machinery of

24 the judicial process as opposed to the product thereof. And

25 the next paragraph again reiterates that rights are


35/47


Page 35

1 substantive. Timing is procedural.

2 Now I want to go back to the constitutional

3 provisions which are under Tab No. 33. I will point out

4 under Article V, Section 2(a), the Supreme Court shall adopt

5 rules for the practice and procedure in all courts. Right

6 above that, Article II, Section 3, no person belonging to

7 one branch shall exercise any powers appertaining to either

8 of the other branches. So we're going to have to interpret

9 this statute in such a way that it's not unconstitutional.

10 We don't want to find 702.07 unconstitutional if we can

11 possibly avoid having to do that. And I believe Parker

12 allows us to read the two cases in such a way that they

13 don't -- avoid us having to do that.

14 Back on page -- or Tab No. 42, I won't read again

15 the things that I've read before, but on pages three and

16 four, the right column on page three and the left column on

17 page four, get to the holding that the Supreme Court has

18 sliced and diced extrinsic fraud and intrinsic fraud, so

19 that under the statute -- and if you just keep a finger

20 there I'm going to scroll back to the statute under

21 Tab 35 -- the statute allows the court to retain

22 jurisdiction in a mortgage foreclose case as to fraud at any

23 time prior to the sale.

24 So, yes, Court, you have jurisdiction for fraud at

25 any time prior to the sale, but that's not the end of it


36/47


Page 36

1 because they have to be read such that the statute is not

2 unconstitutional, such as the statute is not creating a

3 procedural rule. The procedural rule says, okay, the

4 Supreme Court has jurisdiction at any time prior to the

5 sale, but what kind of fraud.

6 Extrinsic fraud has to be brought -- or intrinsic

7 fraud has to be brought under 1.540(b) within one year.

8 Extrinsic fraud can still be brought at any time outside

9 that one year. There is nothing that says extrinsic fraud

10 can't be brought unto 702.07. They still have jurisdiction.

11 But the rule as to timing of when that motion must be filed

12 if it is intrinsic fraud, that is being alleged is 1.540(b).

13 And I'm going to close with the top of page four

14 on the left side. Again, the holding by the Florida Supreme

15 Court as recently as 2007, thus where fraud is extrinsic

16 it's deemed independent of the action and, therefore, must

17 be attacked independent of the action. However, where fraud

18 is intrinsic it is deemed to have occurred in the current

19 action and must be attacked by a Rule 1.540(b) motion.

20 That does not conflict with the statute saying

21 that the court still has jurisdiction. It just says if

22 you're going to go intrinsic fraud, which on page three was

23 not available until this rule was enacted at all, if you're

24 going to go intrinsic fraud that's got to be under the rule.

25 And I'll close with that, Your Honor.


37/47


Page 37

1 THE COURT: Thank you.

2 MR. ROCK: May I briefly respond?

3 THE COURT: Certainly.

4 MR. ROCK: Your Honor, there is an affidavit that

5 I would ask this Court to consider, and that's the affidavit

6 of Michael Gort that's been filed with the Court. I believe

7 a notice of filing indicates that essentially speaking and

8 again for the record he talks about the securitized trust

9 and how this claim of ownership of it is likely fraudulent.

10 So I would ask the Court to consider -- I can't

11 change the fact that this motion wasn't made within a year

12 of the judgment. I'm also suggesting that when -- what

13 courts look at when you're talking about sale of a person's

14 property, that person's property is their property and it

15 isn't a final disposition of that property until the sale.

16 So to that extent I would say that in mortgage foreclosure

17 cases the Legislature has indicated that it ain't over until

18 it's over and the sale makes it over and this is within a

19 year of the sale that hasn't even taken place.

20 And then -- so, you know, maybe the fact that a

21 summary judgment appears to be interlocutory because it

22 hasn't -- there has been no sale, I'm not -- I don't have

23 cases to suggest that one way or the other. All I know is

24 that this is the type of a bifurcated proceeding -- a

25 mortgage foreclosure envisions conduct up until the time of


38/47


Page 38

1 the -- of the decision. Then you have where all things can

2 go be discovered or go crazy between the point of the

3 judgment and the sale, which creates a second window of

4 opportunity.

5 And I'm sure when the Legislature even back in

6 1927 knew what they were doing there would be situations

7 where it would not be appropriate or we're going to make a

8 special exception for this. And counsel has no case law

9 that says that this statute is now abrogated by this rule of

10 procedure, and I understand that's the position she has to

11 take.

12 She has to say, well, when this rule of procedure

13 was created it automatically statutorily changed the

14 statute. Now the statute has to be read prior to sale and

15 within one year of the final judgment, and that's not what

16 the statute says, and I'm suggesting that's what the

17 Legislature needs to create or to correct in order -- if

18 this is an unfair procedure to plaintiffs, then the

19 Legislature can and should fix it, not the courts where it's

20 going to, you know -- to me we're talking about this

21 judicial construction is when you have -- I'll call it

22 things of equal dignity, and the rule of procedure does not

23 have equal dignity of the statute.

24 The statute if it says what it says you can't

25 trump it with a rule of procedure even though it's by the


39/47


Page 39

1 Supreme Court, and that statute seems to create a special

2 category or a special situation when you're dealing with

3 sale of property. You know, maybe that's because common law

4 and we have such special rights out of England where

5 property is dealt with separately.

6 We're not talking about a personal property right.

7 We're talking about a right in real estate, a right in a

8 person's homestead, where this is -- you can fight for your

9 property and prove what you can prove before a sale. And

10 that's what I'm suggesting that we have in this particular

11 case, and there is no case in Florida that construes that

12 statute the way counsel is requesting this Court to construe

13 it, and I don't have anything else.

14 THE COURT: Is there any case that construes it

15 otherwise?

16 MR. ROCK: No.

17 THE COURT: Okay. Question. When your clients

18 allegedly spoke with the servicing agent and said they were

19 going to do a mortgage modification agreement, did they have

20 a mortgage payment amount that was given to them?

21 MR. ROCK: I think it was $1,400.

22 THE COURT: Was that money ever escrowed or paid

23 or --

24 MR. ROCK: It was never asked for. They said --

25 THE COURT: Did they escrow it aside so that money


40/47


Page 40

1 would be available at this time?

2 MR. ROCK: I think they were doing that for a

3 while and then it came that they had to hire a lawyer

4 because nothing was coming. I know they did that for

5 awhile.

6 THE COURT: All right. Let's take a 15 minute

7 recess and we'll come back and finish.

8 MR. ROCK: Thank you, Your Honor.

9 (Whereupon, a break was had.)

10 MR. ROCK: Your Honor, may I put something else on

11 the record?

12 THE COURT: We're back on the record. Go right

13 ahead.

14 MR. ROCK: Your Honor, it's contained in my

15 client's affidavits that pursuant to the servicer's request

16 they were to make payments and they did make payments, first

17 to Wilshire and then to Bank of America. And Bank of

18 America sent about $6,000 back so --

19 THE COURT: Did that represent all that they paid?

20 MR. ROCK: Pardon me.

21 THE COURT: Did that represent all that they paid?

22 MR. ROCK: No. No. It was about probably

23 40 percent of what they had paid post filing. So, you know,

24 just -- and their affidavits have the whole breakdown and

25 have all the copies of the checks attached and everything.


41/47


Page 41

1 So perhaps Your Honor, you know, needed to hear that.

2 THE COURT: I appreciate that. Thank you.

3 MR. ROCK: And secondly, Your Honor, if in fact --

4 counsel and I had spoken if you are going to do an

5 evidentiary hearing then we would like -- we've talked and

6 we would like the opportunity to mediate. So we're not in a

7 rush to come back with evidence.

8 MS. SIMPSON: We may end up being able to work it

9 out.

10 MR. ROCK: Right. We do -- we're still talking.

11 THE COURT: Well, before I make a ruling let me

12 ask you a question. Does the bank want to mediate?

13 MS. SIMPSON: The bank if today's motion is -- my

14 motion is denied we would definitely agree to mediate. If

15 my motion is granted, I am not going to contest a mediation

16 but I don't want a mediation instead of a ruling on this

17 motion.

18 THE COURT: That's fine. I understand. Okay. So

19 there is a possibility of mediation.

20 MS. SIMPSON: As I was telling counsel earlier, my

21 client is a bank. They're really good at knowing what to do

22 with money. They have no idea what to do with houses. They

23 still haven't figured that out. So if they can work out an

24 agreement on the loan to where the borrowers are able to

25 make, you know, acceptable payments and they can work that


42/47


43/47


Page 43

1 THE COURT: I guess the next move then would be a

2 repossession.

3 MR. ROCK: It would be a sale.

4 MS. SIMPSON: The next legal move that my client

5 would make is -- if we're not able to successfully come to

6 some type of modification of the loan, then the next legal

7 step for my client would be to take the house to sale, but

8 then certainly again we'd rather -- if it's at all possible

9 they'd rather modify it than end up with a house that they

10 don't know what to do with.

11 THE COURT: I understand. All right. I want to

12 first compliment both counsel for the preparation and oral

13 arguments, and this Court is not insensitive to the economic

14 situation. We may be very similar to what it was in 1926,

15 '27. But based on the oral arguments I do find that there

16 was no extrinsic evidence. I read the Rule 1.540(b) in

17 conjunction with Statute 702 and find that there is a

18 modification. They explain it very well in Snyder v Snyder.

19 Therefore I'll grant your motion.

20 MR. ROCK: You mean Parker versus Parker?

21 THE COURT: Correct. Parker versus Parker. I'm

22 sorry.

23 MS. SIMPSON: For the record as to what you're

24 granting, my motion was for a protective order to strike the

25 notice of production. That is granted?


44/47


Page 44

1 THE COURT: Yes, ma'am.

2 MS. SIMPSON: To strike the notice of hearing,

3 which counsel has essentially withdrawn, that the order is

4 there will be no hearing on that motion?

5 THE COURT: That's correct.

6 MS. SIMPSON: To strike the answer and affirmative

7 defenses that were filed post-judgment?

8 THE COURT: Correct. Made more than one year

9 post-judgment.

10 MS. SIMPSON: Yes, sir. And to deny Defendant's

11 motion in its entirety.

12 THE COURT: That is correct.

13 MS. SIMPSON: We have also requested in our

14 wherefore clause, but I'm not going to get into that today,

15 I just want to point out for the record that we did request

16 fees and costs for having to come and take care of this

17 motion.

18 THE COURT: I'll reserve on that if you're going

19 to go forward on that.

20 MS. SIMPSON: Yes, sir. We'd rather just mediate

21 and deal with this later.

22 THE COURT: I would also like to say part of my

23 ruling is based on the fact what I would say as a former tax

24 attorney is we used to call the facts and circumstances

25 test, what a reasonable person would do in the same or


45/47


Page 45

1 similar circumstances, and I think it would be such that

2 somebody would show up at a hearing and say I don't

3 understand this, you know, I'm getting two -- mixed

4 messages. And, of course, the bank is the one who makes the

5 final decision. So if you want to do a proposed order and

6 send it to Mr. Rock and then get it to me we'll go from

7 there.

8 Anything else for the record?

9 MS. SIMPSON: Yes, sir. And I'll put into this

10 order too that mediation is ordered as well.

11 THE COURT: I think that would be appropriate.

12 Mr. Rock, you don't have any objection?

13 MR. ROCK: No. No objection, Your Honor.

14 MS. SIMPSON: Prior to sale.

15 THE COURT: But we don't have a sale date,

16 correct?

17 MS. SIMPSON: Correct. But we won't set and have

18 a sale date until we get to mediation.

19 THE COURT: Can we put a date certain in there? I

20 always like to have a time when we go to mediation set.

21 MR. ROCK: I'd like it within 20 days of the

22 order.

23 MS. SIMPSON: The mediation?

24 MR. ROCK: Yes.

25 MS. SIMPSON: As long as we can coordinate that


46/47


Page 46

1 quickly. You know, I'm certainly willing to coordinate it

2 as quickly --

3 THE COURT: Well, I have a suggestion. Perhaps

4 you two can get your office on the phone and find dates

5 available and set a mediation date. I would certainly like

6 to see it within 30 days from today.

7 MR. ROCK: So would I, Your Honor.

8 MS. SIMPSON: Let's get together tomorrow. We'll

9 set a mediation date and then we'll draft the order and

10 we'll just put that date right in there.

11 MR. ROCK: Perfect.

12 MS. SIMPSON: Sound good?

13 MR. ROCK: Very good.

14 THE COURT: Thank you very much. Appreciate it.

15 (Whereupon, the hearing was concluded at 3:10 p.m.)

16 * * *

17

18

19

20

21

22

2324

25


47/47

Page 47

1 STATE OF FLORIDA

2 COUNTY OF PINELLAS

3 I, SHARON K. RUBY, Court Reporter of Parliamentary

4 Reporting, Inc. and Notary Public in and for the State of

5 Florida at Large,

6 DO HEREBY CERTIFY that the foregoing hearing was taken

7 before me at the time and place therein; that I reported

8 said hearing stenographically, and that this transcript of

9 said hearing, pages 1 through 47 inclusive, constitutes a

10 true and correct transcription of the shorthand report of

11 said hearing.

12 I FURTHER CERTIFY that I am neither related to, nor

13 employed by any counsel or party to the cause pending, nor

14 interested in the event thereof.

15 IN WITNESS WHEREOF, I have hereunto affixed my hand and

16 official seal this 20th day of June, 2011.

17

18_______________________________

19 SHARON RUBY

20

21

22

2324

25

Documents

Hearing Transcript - Deutsch+v.+Dage