Filing# 51969526 E-Filed 02/02/2017 11 :23:45 AM

IN THE CIRCUIT COURT FOR THE 11th JUDICIAL CIRCUIT, IN AND FOR MIAMI-DADE COUNTY, FLORIDA

GEORGE I. ELSO,

Defendant/ Appellant,

vs.

ALYSSA ELSO, MICHAEL ELSO and JUAN C. ELSO

Plaintiffs/ Appellees.

CIVIL DIVISION

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NOTICE OF APPEAL OF FINAL ORDER

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NOTICE IS GIVEN that GEORGE I. ELSO, Defendant/Appellant, pursuant to Florida Rule

of Appellate Procedure 9.110(b), appeals to the Third District Court of Appeal, the final Order of

this Court rendered on January 4, 2017. The nature of the Order is the Final Default Judgment in

Favor of Plaintiffs and against Defendant, George I. Elsa Only, attached hereto as Exhibit "1". Also

attached as Composite Exhibit "2" are the underlying Orders Denying George I. Elsa's Motion to Set

Aside Order Granting Plaintiffs Motion for Judicial Default and Denying George I. Elsa's Motion

for Reconsideration of Order Denying His Motion to Set Aside Judicial Default.

Respectfully submitted,

Is/ Juan C. Zorrilla Juan C. Zorrilla, Esquire Fla. Bar No. 381403 E-Mail: jzorilla(ii),fowler-white.com

FOWLER WHITE BURNETT, P.A. Brickell Arch, Fourteenth Floor 1395 Brickell Avenue Miami, Florida 33131 Telephone: (305) 789-9200 Facsimile: (305) 789-9201 Attorneys for George I. Elso

CASE NO. 12-43649 CA 02

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Notice of Appeal has been emailed on this 2nd day of February, 2017 to: Raphael Lopez, Esq., Courthouse Tower, 44 West Flagler Street, Suite 2075, Miami, Florida 33130, rl@lopezroca.com; Carlos De Lerman, Esq., Lerman & Whitebook, P.A., 2611 Hollywood Boulevard, Hollywood, FL 33020, carlos@lwlawi1a.com; Juan C. Elso, 9520 S.W. 6th Street, Miami FL 33173, j.c.elso@aol.com; and Jorge E. Silva, Esq., 236 Valencia Avenue, Coral Gables, FL 33134, Jsilva@silvasilva.com

Is/ Juan C. Zorrilla Juan C. Zorrilla, Esquire Fla. BarNo. 381403 E-Mail: jzorilla@fowler-white.com

4812-1817-8369, v. I

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Exhibit '' 1 ''

ALYSSA ELSO, MICHAEL ELSO, and JUAN C. ELSO,

Plaintiffs vs.

GEORGE I. ELSO, LUIS A. TORRENS, and XLT INVESTMENT CORP.,

Defendants.

XLT INVESTMENT CORP., a Florida corporation,

Counter-PI ai ntiff,

vs.

GEORGE I. ELSO, MIRIAM V. ELSO, ALYSSA ELSO, MICHAEL ELSO, JUAN C. ELSO and SILVERCREST LAKES ESTATES HOMEOWNERS' ASSOCIATION,

' Counter-Defendants.

IN THE CIRCUIT COURT FOR THE nth

JUDICIAL CIRCUIT, IN AND FOR MIAMI-DADE COUNTY, FLORIDA

CIVIL DIVISION

CASE NO.: 12-43649 CA 02

FINAL DEFAULT JUDGMENT IN FAVOR OF PLAINTIFFS AND AGAINST DEFENDANT, GEORGE I. ELSO ONLY

THIS CAUSE having come before the Court on Plaintiffs Motion for Final Judgment Against

Defendant, George I. Elso, and the Court having reviewed the motion and record, and after

considering arguments of counsel, and being otherwise fully advised in the premises:

IT IS ORDERED AND ADJUDGED that:

1. Plaintiffs Motion for Final Judgment Against Defendant, George I. Elso is hereby

GRANTED.

2. Final Judgment is hereby entered in favor of Plaintiffs, Alyssa Elso, Michael Elso

and Juan C. Elso against Defendant, George I. Elso as to Counts I, Ill, IV, V and VI of Plaintiffs

Amended Complaint, and the Court hereby cancels and rescinds the Quit Claim Deed dated April

3, 2003, recorded in Official Record Book 21170, Page 2492 of the records in and for Miami Dade

County, Florida, executed by Plaintiff Juan C. Elso in favor of George I. Elso and Miriam Elso,

concerning the Property which is the subject of this action, whose legal description is:

SILVERCREST LAKE ESTATES, PB 154-53 T-19778 LOT 5 BLK 1, LOT SIZE 15002 SQ FT FAU 3-2015-001-0110 0720 0730 & 0740

3. Pursuant to this Final Judgment, the recorder of deeds in and for Miami Dade

County is directed to enter a notation on the margin of the Quit Claim Deed in Official Record

Book 21170, Page 2492 indicating that this Deed is cancelled and rescinded.

4. As to Count Ill, the Court nullifies and sets aside the fraudulent transfer

effectuated by Defendant George I. Elsa on February 7, 2013, pursuant to the execution of a

Warranty Deed in lieu of Foreclosure, recorded in Official Record Book 28488, Page 4271

concerning the above described property, referenced in paragraph two of this Final Judgment,

and directs the recorder of deeds enter a notation on the margin of the Warranty Deed in Lieu of

Foreclosure indicating that the Deed is hereby cancelled, rescinded, and set aside.

5. The Court finds that Plaintiffs are the prevailing party in this litigation, as to

Defendant George I. Elsa only, and reserves jurisdiction on the issues of attorney's fees and/or

court costs incurred by Plaintiffs, including any fees and costs incurred to enforce the terms of

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this Final Judgment against George I. Else, and to enter further orders that are proper to compel

compliance with this Final Judgment.

6. This Judgment does not adjudicate claims, defenses or counterclaims between

Plaintiffs and XLT Investment Corp.

DONE AND ORDERED in Chambers at Miami-Dade County, Florida, on 01/04/17.

No Further Judicial Action Required on THIS MOTION

CLERK TO RECLOSE CASE IF POST JUDGMENT

The parties served with this Order are indicated in the accompanying 11th Circuit email confirmation which includes all emails provided by the submitter. The movant shall IMMEDIATELY serve a true and correct copy of this Order, by mail, facsimile, email or hand-delivery, to all parties/counsel of record for whom service is not indicated by the accompanying 11th Circuit confirmation, and file proof of service with the Clerk of Court.

Signed original order sent electronically to the Clerk of Courts for filing in the Court file.

Copies furnished to: All counsel of record.

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Composite Exhibit ''2 ''

ALYSSA ELSO, MICHAEL ELSO, and

JUAN C. ELSO,

Plaintiffs

vs.

GEORGE l. ELSO, LUIS A. TORRENS,

and XLT INVESTMENT CORP.,

Defendants.

XLT INVESTMENT CORP., a Florida

corporation,

Counter-Plaintiff,

vs.

GEORGE I. ELSO, MIRIAM V. ELSO,

ALYSSA ELSO, MICHAEL ELSO,

JUAN C. ELSO and SILVERCREST LAKES

ESTATES HOMEOWNERS' ASSOCIATION,

Counter-Defendants.

IN THE CIRCUIT COURT FOR THE 11th

JUDICIAL CIRCUIT, IN AND FOR MIAMI-DADE

COUNTY, FLORIDA

CIVIL DIVISION

CASE NO.: 12-43649 CA 02

ORDER DENYING DEFENDANT GEORGE I. ElSO'S MOTION TO SEf ASIDE ORDER GRANTING PLAINTIFF'S MOTION FOR JUDICIAL DEFAULT

THIS CAUSE came before the Court on August 4, 2016 on Defendant George I. Elso's

Motion to Set Aside Order Granting Plaintiff's Motion for Judicial Default, and the Court having

reviewed the motion, affidavits, the response in opposition, and other pertinent portions of the

file, and after considering arguments of counsel, and being otherwise fully advised of the

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pleadings of record and case law cited by the parties, upon review and consideration of the

above, the Court makes the following findings of fact and conclusions of law:

1. Plaintiffs filed suit against Defendant, George I. Elso, on November 6, 2012.

2. Defendant, George I. Elso, subsequently filed two separate motions, a Motion to

Quash Service of Process and a Motion to Dismiss the Complaint based on Plaintiffs' failure to

join XLT INVESTMENT CORP., which Defendant claimed was an indispensible party based on their

having filed an action for foreclosure with respect to the property which is the subject of this

action.

3. On January 11, and February 20, 2013, respectively, this Honorable Court entered

Orders denying Defendant George I. Elsa's Motion to Quash Service of Process and Motion to

Dismiss. This Court directed the Defendant to submit an answer within five (5} days from the

entry of the Order.

4. On March 7, 2013, 15 days after the court ordered him to answer within 5 days,

Defendant George I. Elso, through counsel, filed an answer and affirmative defenses to the

complaint; however, his answer failed to apprise the Court and/or Plaintiffs that on or about

February 7, 2013, Defendant George I. Elso had executed a Warranty Deed in Lieu of

Foreclosure, and transferred his purported interest in the property which is the subject of this

action, to XLT Investment Corp. Moreover, this was not disclosed during oral argument before

this Court on February 20, 2013.

5. After learning of the aforementioned Warranty Deed that Defendant George I.

Elso had executed in lieu of foreclosure, on June 12, 2013, Plaintiffs filed a Motion for Leave to

Amend their Complaint, attached their proposed amended complaint, and scheduled the

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hearing on the motion to amend for June 24, 2013.

6. Defendant George I. -Eiso, through counsel, acknowledged in writing having

received a copy of Plaintiffs Motion for Leave to Amend, the proposed amended complaint, as

well as the notice of hearing scheduled for June 24, 2013.

7. The record further evidences that on June 17, 2013, Plaintiffs filed a Motion to

Strike Defendant George I. Elso's Answer and Affirmative Defenses and for Entry of Judgment

based on Defendant George I. Elso's purported fraud upon the Court. Defendant George I. Elso

also acknowledges receipt of said motion to strike. This Motion, however, was held in abeyance

as a result of Defendant George I. Elso's pro se bankruptcy filing which occurred on June 18,

2013.

8. On June 24, 2013, the Honorable Spencer Eig entered an Order granting

Plaintiffs' Motion For Leave to File an Amended Complaint, which added two parties, and

included additional counts against Defendant George I. Elso. Based on Defendant George I. Elso's

filing of a bankruptcy petition, Judge Eig stayed the pending action as to Defendant George I.

Elso and ordered pursuant to the applicable rules of civil procedure, that Defendant George I.

E/so would have twenty (20} days after the bankruptcy stay is lifted to file a responsive pleading

to the amended complaint.

9. It is undisputed that Defendant George I. Elso received notice of the entry of

Judge Eig's Order.

10. The record reveals and Defendant George I. Elso acknowledges that on March

27, 2014, George I. Elso's bankruptcy petition was dismissed, and on April 28, 2014 the

bankruptcy case was closed.

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11. Although Plaintiffs, pursuant to Judge Eig's Order of June 24, 2013 could have

moved for a Judicial Default sooner, they waited until June 4, 2014 to file a Motion for Judicial

Default based on Defendant George I. Elsa's failure to timely file a responsive pleading within

twenty (20) days after the termination of his bankruptcy case.

12. On July 24, 2014, Judge Spencer Eig entered a Judicial Default against

Defendant George I. Elsa for failure to appear or file any answer or other pleading to the

amended complaint as required by law.

13. On or about July 10, 2015, the Defendant George I. Elsa filed this Motion to Set

Aside Default.

14. The Court held a full hearing and finds that there is no evidence that

Defendant George I. Elsa exercised due diligence in contacting or attempting to contact his

attorney or take other defensive measures to respond to the amended complaint, nor does

the record demonstrate that Defendant George I. Elsa made any effort to hire a new attorney

or to otherwise update his address with the Clerk of Court. Defendant Elsa was fully aware of

the case and that his bankruptcy case was dismissed.

15. The record shows no record activity being taken on behalf of Defendant

George I. Elsa until July 10, 2015, approximately one year after the entry of the subject

judicial default, at which time the Defendant submitted a Motion to Set Aside Judicial Default.

To date, Defendant George I. Elsa has not filed an answer to the amended complaint. As a

matter of law the Court finds that he has failed to provide sufficient evidence to show a

meritorious defense.

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16. In order for the Court to set aside a Judicial Default as requested by Defendant

George Elso, pursuant to Rule 1.540, the burden of proof is on the Defendant to establish that

the Defendant's failure to timely respond resulted from mistake, inadvertence, surprise, or

excusable neglect.

17. The affidavit of the Defendant fails to establish the existence of any mistake,

inadvertence, surprise, or excusable neglect. Although there appears to be neglect of this

lawsuit by the Defendant, the record evidence and affidavits filed in this matter reveal a

knowing or intentional neglect as opposed to an excusable neglect.

A. Relief From Judgment, Decrees, or Orders Generally

Rule 1.SOO(d) and 1.540(b) of the Florida Rules of Civil Procedure provide this Court

with the discretionary power to set aside an entry of default; however, the authority under

Rule 1.540 may only be invoked when very specific criteria have been met. Florida law

requires the party who moves to vacat.e the entry of a default to demonstrate excusable

neglect, a meritorious defense, and due diligence in order for the trial court to vacate a

default. See North Shore Hasp., Inc. v. Barber, 143 So.2d 849 (Fla. 1962); Church of Christ

Written in Heaven of Georgia v. Church of Christ Written in Heaven of Miami, 94 7 So.2d 557

(Fla. 3d DCA 2006); B.C. Builders Supply Co., Inc. v. Maldonado, 405 So.2d 1345 (Fla. 3d DCA

1981). The requirement that the defendant demonstrate excusable neglect requires more

than a conclusory statement. A party moving to vacate a default must set forth facts

explaining or justifying the mistake or inadvertence by affidavit or other sworn statement, ...

and failure to do so will prevent the appellate court from finding a gross abuse of discretion.

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/d. at 1348. Defendant George I. Elsa's answer to the original complaint did not carry over as a

response to the amended complaint and there is no evidence setting forth a meritorious

defense. Geer v. Jacobsen, 880 So.2d 717, 720 (Fia.2d DCA 2004) (Defendant's previously filed

notice and motion did not carry over as a response to the amended complaint, and Defendant

did not otherwise respond to amended complaint).

In this case, the defendant rather than making an effort to comply with the

requirements of Rule 1.540 or the progeny of cases which require a party present evidence of

excusable neglect and a meritorious defense, instead asserted in a conclusory manner that

the default was improperly obtained, thus relieving the defendant from the requirement of

establishing a meritorious defense and inadvertence or excusable neglect. Although courts

favor the disposition of cases on their merits, it is axiomatic that a trial court abuses its

discretion when it sets aside a default based on a legally insufficient motion to vacate. See

Geer, 880 So.2d at 720.

B. The Court's June 24, 2013 Order Granting Plaintiffs' Motion for Leave to Amend Complaint was Properly Entered.

Although Defendant suggested that Judge Eig's June 24, 2013 Order was improperly

entered in violation of the bankruptcy court's automatic stay, on the contrary, the record

evidence demonstrates that the Court took affirmative steps to protect Defendant George I.

Elsa's interests and notified Plaintiffs, as per the Order, that no action could be taken against

Defendant/Debtor George I. Elsa until such time as the bankruptcy stay was lifted. The Court

finds that bankruptcy proceedings do not, merely by virtue of their maintenance, terminate

an action already pending in a non-bankruptcy court, to which the bankrupt is a party, Conner

v. Walker, 291 U.S. 1, 54 S.Ct. 257, 78 L.Ed. 613 (1934), the action simply remains dormant

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with respect to the bankrupt debtor only and is revived by the lifting of the stay or dismissal

of the bankruptcy action. See Barton-Malow Co. v. Gorman Co. of Ocala, Inc., 558 So.2d 519,

521 (Fla. 5th DCA 1990) (citing Boker v. Bloom, 146 A.D.2d 859, 536 N.Y.S.2d 267 {A.D. 3rd

Dept. 1989).

The Court further finds that the June 24, 2013 Order granting Plaintiffs Motion for

Leave to Amend the Complaint did not authorize any act in furtherance of the case against

Defendant George I. Elsa, but did authorize Plaintiffs to simply add two defendants, XLT

Investment Corp., and Luis Torrens. Notwithstanding the broad scope of 11 U.S.C. § 362, the

automatic stay does not protect non-debtors from litigation, even from obligations that

involve the debtor. See In Re Colony Beach, 2015 WL 1281825 (M.D. Fla. 3/18/15). Here,

Plaintiffs were amending their complaint to pursue claims regarding the subject property

against XLT Investment Corp. and Luis Torrens, Esq., and the Order entered by Judge Eig

specifically prohibited Plaintiffs from taking any action, during the pendency of the

bankruptcy proceedings, against Defendant/Debtor George Elso. Indeed, the claims against

George Elsa did not proceed until his stay ended by virtue of the dismissal of his bankruptcy

filing, and thereafter he had 20 days to respond. The Court specifically finds that it was not

divested of jurisdiction to permit the civil action to proceed against the non-debtor

defendants in this case, Defendants XLT Investment Corp. and Luis Torrens, Esq., or to enter

administrative and substantive orders, so long as the orders not adversely affect or jeopardize

the bankruptcy proceedings and/or estate. See Shop in the Grove, LTD., v. Union Federal Sov.

and Loan ... , 425 So.2d 1138 (Fla. 3d DCA 1982); Goldstein v. Harris, 768 So.2d 1146 (Fla. 4th

DCA 2000) (Trial court did not err in finding that automatic stay in bankruptcy proceeding,

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even if it were in effect, did not strip court of power to enforce civil contempt order through

writ of bodily attachment, as contempt order did not require payment of money but only

production of financial records, and thus did not affect bankruptcy estate).

C. Defendant George I. Elsa's Default was Willful.

In order to establish willfulness, Plaintiff need not show bad faith on the part of

Defendant, but must show more than mere negligence or carelessness. Courts have found

defaults willful where the conduct of the adversary was egregious and was not satisfactorily

explained. See Commonwealth Fed. Sav. and Loan Ass'n v. Tubero, 569 So.2d 1271 (Fia 1990);

Mercer v. Raine, 443 So.2d 944 (Fla. 1983); Doge v. Deutsche Bank Nat. Trust Co., 95 So.3d

1021, 1023 (Fla. 2d DCA 2012). In the instant case, Defendant argues that he was surprised to

learn in May of 2015 that a default had been entered on July 24, 2014, despite the fact that

he was fully cognizant that his federal bankruptcy petition had been dismissed on March 27,

2014. Defendant's motion and affidavit fail to set forth any due diligence and frivolously

asserts that George I. Elso should not be required to comply with the mandates of Rule 1.540

in establishing due diligence and a meritorious defense because the default arose from lack of

notice. For the reasons aforementioned and the record before the Court, this Court finds

those arguments unpersuasive.

ORDERED AND ADJUDGED as follows:

Defendant's Motion to Set Aside Default and For Related Relief is hereby DENIED.

DONE AND ORDERED in Chambers at Miami-Dade County, Florida, on 08/22/16.

MONICA GORDO CIRCUIT COURT JUDGE

No Further Judicial Action Required on THIS MOTION

CLERK TO RECLOSE CASE IF POST JUDGMENT

The parties served with this Order are indicated in the accompanying 11th Circuit email confirmation which includes all emails provided by the submitter. The movant shall IMMEDIATELY serve a true and correct copy of this Order, by mail, facsimile, email or hand-delivery, to all parties/counsel of record for whom service is not indicated by the accompanying 11th Circuit confirmation, and file proof of service with the Clerk of Court.

Signed original order sent electronically to the Clerk of Courts for filing in the Court file.

Copies furnished to: Juan C. Zorrilla, Esq. jzorrilla@fowler-white.com

Raphael Lopez, Esq. rl@lopezroca.com

Carlos Lerman, Esq. carlos@lwlawtla.com

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IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA

CIRCUIT CIVIL DIVISION

CASE NO. 2012-043649-CA-01 SECTION: 02

Elso, Alyssa; Elso, Michael; Elso, Juan C

Plaintiff, vs. Elso, George I; Torrens, Luis A; Xlt Investment Corp

Defendant.

----------------------------' ORDER DENYING DEFENDANT, GEORGE I. ELSO'S MOTION FOR RECONSIDERATION OF ORDER

DENYING HIS MOTION TO SET ASIDE JUDICIAL DEFAULT

THIS CAUSE having come before the court, and the court having reviewed Defendant,

George I. Elsa's Motion for Reconsideration of Order Denying his Motion to Set Aside Judicial

Default, Plaintiff's Opposition, and being fully advised in the premises it is hereby:

ORDERED that defendant's motion is DENIED.

DONE and ORDERED in Chambers at Miami-Dade County, Florida this 30th day of

November, 2016.

cc: All counsel of Record MONICA GORDO Cffi.CUIT COURT JUDGE

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