ALLEGRA FUNG, ESQUIRE · allegra fung, esquire 1 1 in the circuit court of the 15th judicial...
40
ALLEGRA FUNG, ESQUIRE 1 1 IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA 2 CASE NO.: 50 2010 CA 017058 XXXX MB AW 3 4 CITIMORTGAGE, INC., 5 Plaintiff(s), 6 vs. 7 LENNDY M. CHIQUITO-RODRIGUEZ a/k/a LENDY M. CHIQUITO a/k/a 8 LENNDY CHIQUITO a/k/a LENDY CHIQUITO and MARIO A. RODRIGUEZ, JR., 9 HER HUSBAND; ET AL.,
Transcript of ALLEGRA FUNG, ESQUIRE · allegra fung, esquire 1 1 in the circuit court of the 15th judicial...
ALLEGRA FUNG, ESQUIRE
1
1 IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
2
CASE NO.: 50 2010 CA 017058 XXXX MB AW
3
4 CITIMORTGAGE, INC.,
5 Plaintiff(s),
6 vs.
7 LENNDY M. CHIQUITO-RODRIGUEZ
a/k/a LENDY M. CHIQUITO a/k/a
8 LENNDY CHIQUITO a/k/a LENDY CHIQUITO
and MARIO A. RODRIGUEZ, JR.,
9 HER HUSBAND; ET AL.,
10 Defendant(s).
______________________________________/
11
12
13 HEARING BEFORE THE HONORABLE
HOWARD H. HARRISON, JR.
14
15 Friday, April 15, 2011
Palm Beach County Courthouse
16 West Palm Beach, Florida
2:15 p.m. - 2:30 p.m.
17
18
19
20
21
22
23
24
25
2
1 APPEARANCES:
2 On behalf of the Plaintiff:
3 SARAH R. KLEIN, ESQUIRE
SHAPIRO, FISHMAN & GACHE, LLP
4 2424 North Federal Highway
Suite 360
5 Boca Raton, Florida 33431
6 On behalf of the Defendants:
7 ALLEGRA FUNG, ESQUIRE
KORTE & WORTMAN, P.A.
8 2041 Vista Parkway
West Palm Beach, Florida 33411
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
3
1 P R O C E E D I N G S
2 - - -
3 THE COURT: Citimortgage versus Rodriguez.
4 MS. FUNG: Yes, Judge.
5 THE COURT: It says Plaintiff's motion for
6 summary judgment, right?
7 MS. KLEIN: Yes Judge.
8 THE COURT: Is the defense motion filed
9 also?
10 MS. FUNG: Judge, we have the original to
11 be filed today. A copy was provided to
12 opposing counsel I believe yesterday via
13 e-mail. I'm not sure if the Court wants me to
14 file it right now. It's just a motion in
15 opposition with the affidavit.
16 THE COURT: That hasn't made the clerk's
17 office yet. Are you here for Defendant?
18 MS. KLEIN: Plaintiff, Your Honor.
19 MS. FUNG: I'm here for the Defendant.
20 THE COURT: You're here for the Defendant.
21 MS. FUNG: Yes, Judge.
22 THE COURT: Okay. Okay.
23 MS. FUNG: Did you need a copy of our
24 motion in opposition?
25 MS. KLEIN: No. You guys e-mailed it.
4
1 MS. FUNG: She got a copy. You can keep
2 it as a souvenir.
3 THE COURT: Okay. Did you want to add to
4 the memo?
5 MS. FUNG: No, Judge. I think it's pretty
6 clear. If opposing counsel is going to argue,
7 I'll just reserve the right to rebut.
8 THE COURT: Okay. Do you wish to respond
9 to the Defendants' memorandum?
10 MS. KLEIN: Yes, Your Honor. First, the
11 affidavit in opposition in the memo, an
12 opposition was not properly served according to
13 the Rules of Civil Procedure, Rule 1.510. We
14 received a copy via e-mail late yesterday. It
15 was not even 24 hours notice. Rules of Civil
16 Procedure require a minimum of two days notice,
17 Your Honor. The memo and affidavit should not
18 be considered for today's hearing, Your Honor.
19 THE COURT: Response to Plaintiff.
20 MS. FUNG: Yes, Judge. If the Court is
21 inclined to strike the motion in opposition, as
22 well as the affidavit, there's still grounds to
23 deny the motion for summary judgment. First
24 and foremost, the Defendants have asserted the
25 affirmative defense to the Plaintiff,
5
1 Citimortgage, not the actual holder of the
2 note, which is a question of fact making this
3 motion for summary judgment inappropriate and
4 untimely.
5 The note which is actually attached to the
6 complaint was actually issued by ABN AMRO. ABN
7 was I guess merged with Citimortgage. And the
8 only additional documentation that the
9 Plaintiff attached to the complaint was the
10 merger documents. And the merger documents,
11 which I have a copy of the complaint with the
12 merger documents, do not indicate whether or
13 not the assets of ABN, including this note were
14 actually transferred to Citimortgage or if it
15 was just the servicing rights.
16 Judge, we have sent out additional
17 discovery to the point trying to determine
18 whether or not Citimortgage actually owned the
19 note or the servicing rights. And, Judge,
20 here's a copy of the complaint and the answer
21 and affirmative defenses that show the merger
22 documents and the affirmative defense in which
23 the Defendant alleges that Citimortgage did not
24 hold the note.
25 And the case law is pretty clear, Judge,
6
1 that a party -- Rule 1.510, Subsection C,
2 states that a party moving for summary judgment
3 must conclusively show the absence of any
4 genuine issue of material fact and obligate the
5 trial court to draw every reasonable inference
6 in favor of the non-moving party.
7 At this time, Judge, we would just assert
8 that this is a big question of fact that has
9 not yet been determined, as well as the fact
10 that discovery is still ongoing. The complaint
11 was only filed I believe in July. July 1st,
12 2010. The case is only nine months old. The
13 Defendant has not properly had the opportunity
14 to fully explore the discoverable issues in
15 this matter. And that's another reason, Judge,
16 why we would argue that the motion for summary
17 judgment is inappropriate and untimely.
18 THE COURT: Has the Plaintiff responded to
19 the January 27th request for admissions?
20 MS. FUNG: Yes, Judge, they have.
21 MS. KLEIN: Your Honor, I'm sorry to
22 interrupt. I don't believe the responses made
23 the docket. But the responses were filed on
24 January 27th.
25 MS. FUNG: Judge, at this time though we
7
1 have also requested that the -- on March 29th,
2 which is after the notice of hearing for this
3 motion for summary judgment, we did request the
4 deposition of the person with the most
5 knowledge regarding the affidavit in support
6 for the motion for final judgment, which is a
7 Ms. -- I believe her name is Janet Latisa, who
8 is actually an employee of Citimortgage, not
9 ABN. She actually does not have actual
10 knowledge of the transaction agreement between
11 ABN and the Defendant. Nor does her affidavit
12 attached to the motion for summary judgment
13 address the affirmative defense regarding
14 whether or not Citimortgage assumed the note or
15 if it was transferred. There was never any
16 transfer recorded or assignment recorded
17 regarding this particular note.
18 MS. KLEIN: Your Honor, may I respond?
19 THE COURT: You may.
20 MS. KLEIN: Your Honor, I'd like to
21 address each of the instances defense counsel
22 just brought up. Defense counsel alleged that
23 there's a issue of fact. Your Honor, the
24 original note endorsed in blank by the
25 originator of the loan, ABN as referred to by
8
1 defense counsel was filed with the Court in
2 October. And in Riggs v. Aurora it states that
3 the possession of the original note endorsed in
4 blank was sufficient under Florida's Uniform
5 Commercial Code to establish lawful owner of
6 the note entitled to enforce its term. The
7 fact that it was endorsed in blank made the
8 note payable to the bearer and allowed the note
9 to be negotiated by transfer possession alone.
10 Your Honor, the fact that there was a
11 merger, there is no assignment needed; the note
12 endorsed in blank by ABN. And if there is some
13 kind of problem alleged by defense counsel of
14 the merger, that would be something that
15 Citimortgage, the Plaintiff, would have to deal
16 with ABN, and it would not affect the borrower
17 in this case as it's a third party contract and
18 has nothing to do with this case whatsoever.
19 In addition, the knowledge -- the request
20 for deposition was made after this notice of
21 hearing was sent out. And there is case law,
22 Your Honor, that says that additional discovery
23 that's sent after the notice of hearing was set
24 and coordinated for summary judgment. It was
25 just to thwart summary judgment and should not
9
1 be used for purposes of stopping summary
2 judgment.
3 In addition, defense counsel says there
4 hasn't been time for discovery, Your Honor.
5 Discovery started on or about July 15th, 2010.
6 Defense counsel filed requests for production,
7 interrogatories, both of which were responded
8 to by Plaintiff. Defendant filed additional --
9 filed motions to compel better interrogatories
10 later that year in November. Also filed
11 requests for admissions that we previously
12 talked about today, Your Honor. There's been
13 time for discovery from the Defendants'
14 appearance in this case through the notice of
15 summary judgment. Discovery was complete as of
16 the date the notice of the hearing went out on
17 March 17th, 2011.
18 MS. FUNG: Judge, if I may.
19 THE COURT: And your deposition of
20 Ms. Latisa is for what purpose?
21 MS. FUNG: To determine, Judge, if she
22 actually has any knowledge regarding the
23 transfer of this note from ABN to Citimortgage.
24 Judge, if I may address the issue of I
25 guess the blank endorsement to which opposing
10
1 counsel was referring to.
2 THE COURT: Yes.
3 MS. FUNG: Judge, the note itself was
4 actually signed as well as the mortgage in
5 2002. I believe it was November 27th of 2002.
6 The merger occurred I believe in 2007. Let me
7 double-check on that. The merger documents
8 themselves actually do not -- yeah, it occurred
9 in August of 2007. The merger documents
10 actually do not refer to any of the assets of
11 ABN being transferred to Citimortgage. This
12 blank endorsement does not have an actual date
13 as to when it was actually stamped on the note.
14 So there's no way to tell whether or not the
15 blank endorsement was to Citimortgage or
16 another third party.
17 We just would again reiterate that it's a
18 factual issue that needs to be determined by
19 the jury, making this motion for summary
20 judgment untimely and inappropriate.
21 THE COURT: Motion for summary judgment is
22 granted. The sale date? Anyone want to be
23 heard on the sale date?
24 MS. KLEIN: Plaintiff's request 35 days,
25 Your Honor.
11
1 MS. FUNG: Judge, we'd request 60.
2 THE COURT: Can I have a mediation order.
3 Is the client still living in the property?
4 MS. FUNG: I am not sure, Judge.
5 THE COURT: Is the property homesteaded?
6 MS. FUNG: That I'm not sure of either,
7 Judge. I apologize.
8 THE COURT: Do you see this client?
9 MS. FUNG: Judge, seeing how I started
10 with this firm a week and a half ago, I can
11 honestly say no.
12 THE COURT: I guess we'll just do
13 conciliation.
14 MS. FUNG: Judge, may I ask the reason for
15 the granting of the motion for summary
16 judgment? Was it the late --
17 THE COURT: The Circuit Court feels that
18 the merger document clearly shows that any and
19 all assets from ABN were to Plaintiff.
20 MS. FUNG: Thank you, Judge.
21 THE COURT: Because of the amount here,
22 the Court is setting the sale date for
23 August 15th and ordering the parties to
24 conciliation. This should be a case that you
25 should be able to work out for the amount of
12
1 money involved here. There's only, what,
2 $29,000?
3 MS. KLEIN: Yes, Your Honor.
4 THE COURT: This should be able to be
5 worked out.
6 MS. KLEIN: When do the parties need to
7 have the conciliation by, Your Honor?
8 THE COURT: Within 60 days.
9 MS. KLEIN: Thank you, Your Honor.
10 MS. FUNG: Thank you, Judge.
11 (Thereupon, the proceedings concluded.)
12
13
14
15
16
17
18
19
20
21
22
23
24
25
13
1 CERTIFICATE
2
3 STATE OF FLORIDA )
4 COUNTY OF PALM BEACH )
5
6 I, TRACY LYN FAZIO, Court Reporter and
7 Notary Public within and for the State of Florida at
8 Large, duly commissioned and qualified, do hereby
9 certify that pursuant to a notice to take said hearing
10 heretofore filed, the examination was reduced to
11 writing under my supervision; and that the transcript
12 is a true record of my stenographic notes.
13 IN WITNESS WHEREOF, I have hereunto set my
14 hand and affixed my official seal this 21st day of
15 April, 2011.
16
17
18 _______________________
TRACY LYN FAZIO
19 Court Reporter and
Notary Public, State of
20 Florida at Large
21
22
23
24
25
