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•
IN THE CIRCUIT COURT OF THE 7TH
JUDICIAL CIRCUIT, IN AND FOR
VOLUSIA COUNTY, fLORIDA
CIVIL DIVISION '3 1CASE NO.: dLo( 5161 gc; c(
BANK ONE, NATIONAL ASSOCIATION, AS
TRUSTEE,Plaintiff,
vs. NOTICE OF LIS PENDENS
ROBERT E. WARS; JERIL YNN L. WAtfu fiIK/A~RIL YN L.WARD; SARA SUE FUGAT,a; JOHN
DOE AND JANE DOE AS UNKNOWN
TENANT (8) IN POSSESSION OF THE SUBJECT
PROPERTY,
In Defendants,
lY-------
TO THE ABOVE STYLED DEFENDANTS AND ALL OTIIERS WHOM IT MAY CONCERN:
YOU ARE HEREBY NOTIFIED of the institution of this action by Plaintiff against you seeking to
foreclose a mortgage on the following property inVolusia County, Florida:
LOT 40, AND THE NORTHERLY 2.0 FEET OF LOT 39, TUSCA WILLA mGlll..ANDS,
ACCORDING TO TIlE PLAT THEREOF RECORDED INMAP BOOK 11, PAGE 234, PUBLIC
RECORDS OF VOLUSIA COUNTY, FLORIDA.
a/kIa 500 SOUTH SENECA BL VD. •DAYTONA BEACH, FL 32114
including the buildings, appurtenances, and fixtures located thereon.
Law Offices of Marshall C. Watson, P.A ..
1800 N.W. 49TH Street, Suite 120
Fort Lauderdale, F133309
Telephone: (954) 453-0365
Facsimile: (954) 771-6052
01-02987
c.._c:,N
U1 ~mo
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\.
IN 1RE CIRCUIT COURT OF THE 7TH
JUDICIAL CIRCUIT, IN AND FOR VOLUSIA
COUNTY, FLORIDACIVIL DIVISION
CASE NO.: 2001 31518 CIC!
BANK ONE, NATIONAL ASSOCIATION, ASTRUSTEE
Plaintiff,
vs, NOTICE OF DROPPING PARTY DEFENDANT
_ .0
i i ; J
~~
£j~.~r"1
~!?;~. . . : :r:-r~-J .r-
: - - - . . , .~ . . . . . . .-.<")
: : -<0...".~r-.;c_ ,
COMES NOW. BANK. ONE, NATIONAL ASSOCIATION, AS TRUSTEE the P11ntiff, bysqd through
ROBERT E. WARD; JERILYNN L. WARD AfKJA
JERILYN L.WARD; SARA SUE FUGATE; JOHN
DOE AND JANE DOE AS UNKNOWN
TENANT (S) IN POSSESSION OF THE SUBJECf
PROPERTY.
Defendants.
its undersigned counsel and gives notice that PLAINTIFF voluntarily dropped JOHN AND JANE DOE AS
UNKNOWN TENANT (S) IN POSSESSION OF TIlE SUBJEcr PROPERTY; as defendant(s) to this action,
pursuant to the Fla. R. Civ, P. 1.25O{b)and 1.420 (a) (1),without prejudice.
I HEREBzc;;:;r that a true and correct copy of th e foregoing Notice of Dropping Party was mailed
this :;;;; day of • 20CJ ( 10 defendants on the attached service list:
Law Offices of Marshall C. Watson, P.A.1800 NW 49th Street, Suite 120
Fort Lauderdale, FL33309
Telephone: (954) 453-0365
Facsimile: (954) 771-6052
atricia A. Arango, Esq.
ar Number:479993
01-02987
• .I
1
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-o Case No: 2001 31518 crcrMAILING LIST
ROBERT E. WARD
JERIL YNN L. WARD AIKlA JERILYN L.WARD500 SOUTH SENECA BOULEVARD
DAYTONA BEACH, FL. 32114
SARA SUE FUGATE
15363 S.E. IOSTIITERRACE ROAD
SUMMERFIELD, FL. 34491
JOHN AND JANE DOE AS UNKNOWN TENANT (S)
IN POSSESSION OF THE SUBJECT PROPERTY
500 SOUTH SENECA BOULEVARD
DAYTONA BEACH, FL. 32114
Ol~29g7
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IN THE CIRCUIT COURT, SEVENTH
JUDICIAL CIRCUIT. IN AND FOR
VOLUSIA COUNTY, FLORIDA
CASE NO:
DIVISION:
2001-31518 crcr31
BANK ONE. NATIONAL ASSOCIATION, ETC.
Plaintiff,
1 2 / 3 0 / 2 0 0 2 1 1 : 2 1I n s t r u m e n t # 2 0 0 2 - 2 9 8 4 5 4Book: 4990
Pa.ge: 21.04v.
ROBERT E. WARD, ET. AL. ETC.
Defendant( s),
I- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
ORDER DENYING PLAINTIFF MOTION FOR
SUl\1MARY JUDGMENT WITH PREJUDICE
ORDER GRANTING MOTION TO DISMISS
COMPLAINT WITH PREJUDICE
ORDER DECLARING MORTGAGE LIS PENDENS
AND NOTE SATISFIED AND FULLY DISCHARGED
FINAL JUDGMENT FOR DEFENDANT'S
This cause came before the Court on Plaintiffs Motion For Summary Judgment.
The Court finds as follows:
1.
~~n / '0 ...,)
-I < : : : : >
This Complaint was filed July 25, 2001 by Bank One, National Asso~~ionN\s~ ' : " : : Ir : i- ~
CJTrustee. (J-
o·w +~ .c . , _ - ' :
The Complaint states the original note was lost or destroyed. The action is~.
... r..;:t ......d
foreclose a $60,800.00 mortgage given to Divers American Mortgage Company, 1St., a RP-ode..." CJl:-
Island lender. There is a reference in a mortgage Note and Allonge to Sun America and HSA
Residential Mortgage Services Of Texas Inc., but their connection is not set out in the
. ,. . . . . .
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complaint. Baok:Page:
3. That on September 20, 2001 Plaintiff filed the Original Note.
49902J..05
4. The mortgage attached is an exhibit to the Complaint wholly illegible.
5. The Complaint claims Plaintiff owes the Note and Mortgage but the Complaint is
completely barren of factual allegations to establish ownership.
6. The Complaint fails to plead any facts to demonstrate the existence of any trust or set
forth what or for whom Plaintiff is Trustee.
7. That on September 21,2001 a Motion For Summary Judgment hearing was held before
Judge Joseph Will. The Wards appeared and Judge Will ordered the parties to Mediation.
8. That between March 7, and 19, 2002 Defendant Fugate filed affidavits and proof of
delivery by mail of Bill Of Acceptance- Time draft in the amount of &72,424.20 payable to
Homecoming Financial Network in Texas as directed by Mr. Burke of Marshall C. Watson
P.A. See paragraphs 22 and 25 of Fugate Sworn Affidavit Of Truth filed March 19, 2002.
9. That on April 1, 2002 Plaintiff renoticed its Motion For Summary Judgment including
establishment of "lost" documents.
10. That on Apri122, 2002 this Court conducted a hearing and DENIED the Motion For
Summary Judgment due to the evidence in the Court file and demonstration of the Draft in
payment by Defendant Fugate.
11. That on June 4, 2002 Defendant Fugate filed an Answer, and Petition For Injunction
and Affidavit Of Truth In Support Of Petition. The affidavit stated payment had been several
times tendered but refused because the Watson law firm preferred a different form of payment.
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BoOk: 4990-page: 2106
12. That on July 10, 2002 Fugate filed an Affidavit Regarding Discharge Of Indebtedness
stating tender of payment of $72,428.05 by Bill Of Exchange on February 6, 2002; tender of
payment of $72,005.22 by Bill Of Exchange dated July 9, 2002.
13. That attached to that Affidavit is a copy of a letter from Plaintiff that says $14,437.27
will reinstate mortgage.
14. That on July 10, 2002 this Court again DENIED Plaintiff's Motion For Summary
Judgment, declared the mortgage satisfied, and dismissed the Complaint with prejudice.
15. That Motion For Rehearing And Clarification has been DENIED.
WHEREFORE IT IS HEREBY ORDERED AND ADJUDGED:
A. That the Plaintiff Bank One Motion For Summary Final Judgment is DENIED
WITH PREJUDICE.
B. That the mortgage balance has been paid and the mortgage satisfied by tenders
of payment by Defendants.
C. That the refusal of payment tenders by Plaintiff and those acting in its behalf has
been intentional, arbitrary, capricious; and in violation and defiance of State and Federal law;
and maliciously calculated to deprive defendants of their property and their rights;
D. That the Mortgage and Note are declared to be fully satisfied and fully
discharged.
E. That the defendants Motion To Dismiss Complaint and Discharge is GRANTED
and the Complaint is DISMISSED WITH PREJUDICE.
F. That the Lis Pendens is hereby released and discharged;
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G. That the Clerk of Court shall record this Order And Final Judgment in the
Official Records Of Volusia County in order that the title shall be cleared of this suit and the
mortgage lien.
DONE AND ORDERED in Chambers at Daytona Beach Volusia County, Florida
t#--~fDecember. 2002.
CERTIFICATE OF SERVICE
Ihereby certify that a true and correct copy of the foregoing has been nished by
U.S. Mail to the below listed parties this~y of Dece ber 2002.~---::::~
Amy Post, Esquire
Robert E. Ward and Jerilynn L.Ward
Sara Sue Fugate
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IN THE CIRCUIT COURT, SEVENTH
JUDICIAL CIRCUIT. IN AND FOR
VOLUSIA COUNTY, FLORIDA
CASE NO:
DIVISION:
2001-31518 crcr31
BANK ONE. NATIONAL ASSOCIATION, ETC.
Plaintiff,
1 2 / 3 0 / 2 0 0 2 1 1 : 2 1I n s t r u m e n t # 2 0 0 2 - 2 9 8 4 5 4Book: 4990
Pa.ge: 21.04v.
ROBERT E. WARD, ET. AL. ETC.
Defendant( s),
I- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
ORDER DENYING PLAINTIFF MOTION FOR
SUl\1MARY JUDGMENT WITH PREJUDICE
ORDER GRANTING MOTION TO DISMISS
COMPLAINT WITH PREJUDICE
ORDER DECLARING MORTGAGE LIS PENDENS
AND NOTE SATISFIED AND FULLY DISCHARGED
FINAL JUDGMENT FOR DEFENDANT'S
This cause came before the Court on Plaintiffs Motion For Summary Judgment.
The Court finds as follows:
1.
~~n / '0 ...,)
-I < : : : : >
This Complaint was filed July 25, 2001 by Bank One, National Asso~~ionN\s~ ' : " : : Ir : i- ~
CJTrustee. (J-
o·w +~ .c . , _ - ' :
The Complaint states the original note was lost or destroyed. The action is~.
... r..;:t ......d
foreclose a $60,800.00 mortgage given to Divers American Mortgage Company, 1St., a RP-ode..." CJl:-
Island lender. There is a reference in a mortgage Note and Allonge to Sun America and HSA
Residential Mortgage Services Of Texas Inc., but their connection is not set out in the
. ,. . . . . .
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complaint. Baok:Page:
3. That on September 20, 2001 Plaintiff filed the Original Note.
49902J..05
4. The mortgage attached is an exhibit to the Complaint wholly illegible.
5. The Complaint claims Plaintiff owes the Note and Mortgage but the Complaint is
completely barren of factual allegations to establish ownership.
6. The Complaint fails to plead any facts to demonstrate the existence of any trust or set
forth what or for whom Plaintiff is Trustee.
7. That on September 21,2001 a Motion For Summary Judgment hearing was held before
Judge Joseph Will. The Wards appeared and Judge Will ordered the parties to Mediation.
8. That between March 7, and 19, 2002 Defendant Fugate filed affidavits and proof of
delivery by mail of Bill Of Acceptance- Time draft in the amount of &72,424.20 payable to
Homecoming Financial Network in Texas as directed by Mr. Burke of Marshall C. Watson
P.A. See paragraphs 22 and 25 of Fugate Sworn Affidavit Of Truth filed March 19, 2002.
9. That on April 1, 2002 Plaintiff renoticed its Motion For Summary Judgment including
establishment of "lost" documents.
10. That on Apri122, 2002 this Court conducted a hearing and DENIED the Motion For
Summary Judgment due to the evidence in the Court file and demonstration of the Draft in
payment by Defendant Fugate.
11. That on June 4, 2002 Defendant Fugate filed an Answer, and Petition For Injunction
and Affidavit Of Truth In Support Of Petition. The affidavit stated payment had been several
times tendered but refused because the Watson law firm preferred a different form of payment.
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BoOk: 4990-page: 2106
12. That on July 10, 2002 Fugate filed an Affidavit Regarding Discharge Of Indebtedness
stating tender of payment of $72,428.05 by Bill Of Exchange on February 6, 2002; tender of
payment of $72,005.22 by Bill Of Exchange dated July 9, 2002.
13. That attached to that Affidavit is a copy of a letter from Plaintiff that says $14,437.27
will reinstate mortgage.
14. That on July 10, 2002 this Court again DENIED Plaintiff's Motion For Summary
Judgment, declared the mortgage satisfied, and dismissed the Complaint with prejudice.
15. That Motion For Rehearing And Clarification has been DENIED.
WHEREFORE IT IS HEREBY ORDERED AND ADJUDGED:
A. That the Plaintiff Bank One Motion For Summary Final Judgment is DENIED
WITH PREJUDICE.
B. That the mortgage balance has been paid and the mortgage satisfied by tenders
of payment by Defendants.
C. That the refusal of payment tenders by Plaintiff and those acting in its behalf has
been intentional, arbitrary, capricious; and in violation and defiance of State and Federal law;
and maliciously calculated to deprive defendants of their property and their rights;
D. That the Mortgage and Note are declared to be fully satisfied and fully
discharged.
E. That the defendants Motion To Dismiss Complaint and Discharge is GRANTED
and the Complaint is DISMISSED WITH PREJUDICE.
F. That the Lis Pendens is hereby released and discharged;
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G. That the Clerk of Court shall record this Order And Final Judgment in the
Official Records Of Volusia County in order that the title shall be cleared of this suit and the
mortgage lien.
DONE AND ORDERED in Chambers at Daytona Beach Volusia County, Florida
t#--~fDecember. 2002.
CERTIFICATE OF SERVICE
Ihereby certify that a true and correct copy of the foregoing has been nished by
U.S. Mail to the below listed parties this~y of Dece ber 2002.~---::::~
Amy Post, Esquire
Robert E. Ward and Jerilynn L.Ward
Sara Sue Fugate
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IN THE CIRCUIT COURT OF THE
7TH JUDICIAL CIRCUIT, IN AND
FOR VOLUSIA COUNTY,
FLORIDA
CIVIL DIVISIONCASE NO.: 2001 31518 CICI
BANK ONE, NATIONAL
ASSOC IAT ION , AS TRUSTEEPlaintiff,
vs.
ROBERT E. WARD; JERlL YNN L.
WARD AfKJ A JERlL YN L.
WARD; SARA SUE FUGATE;
JOHN DOE AND JANE DOE AS
UNKNOWN TENANT (S) INPOSSESSION OF THE SUBJECT
PROPERTY,
1 2 / 3 0 / 2 0 0 2 1 1 : 2 1
I n s t r u m e n t # 2 0 0 2 - 2 9 8 4 5 6Book: 4990Page: 2112
Defendants.
ORDER ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come before the Court and the Court being duly advised; it
I S :
ORDERED AND ADJUDGED:
1.
2.
Plaintiffs Motion for Summary Judgment is Denied.
A representative of the Plaintiff shall personally appear before this Court
regarding any future hearing.
This case is Dismissed. h'
(") r --..:J
-i =;<p ~[:;,-'
3 .
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Book: 4990Pa.ge: 2~~3D l a n e M . M a t o u s e kV o l u s l a C o u n t y , C l e r K o f C o u r t
Case No.: 2001 31518 CICI
MAILING LIST
ROBERT E. WARD
lERIL YNN L. WARD AlK/A lERIL YN L.WARD
605 NORTHLAKE BLVD.
ALTAMONfE SPRINGS, FLORIDA 32701
SARA SUE FUGATE
15363 S.E. 105TH TERRACE ROAD
SUMMERFIELD, FL. 34491
JOHN AND JANE DOE AS UNKNOWN TENANT (8)
IN POSSESSION OF THE SUBJECT PROPERTY
500 soura SENECA BOULEVARD
DAYTONA BEACH, FL. 32114
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IN THE CIRCUIT COURT OF THE 7TH
JUDICIAL CIRCUIT, IN AND FOR
VOLUSIA COUNTY, FLORIDA
CIVil..,DIVISIONCASE NO.: 2001-31518 crcr
BANK ONE, NATIONAL ASSOCIATION,
AS TRUSTEE,
Plaintiff,
0 1 / 0 7 / 2 0 D 3 1 3 : 0 2
I n s t r u m e n t I 2 0 0 3 - 0 0 2 7 9 7Book: 4994Pa.ge: 2931
s.
ROBERT E. WARD; JERIT.YNN WARD
AJKJ A JERILYN L. WARD; SARA SUE
FUGATE; JOHN DOE AND JANE DOEAS UNKNOWN TENANTS IN
POSSESSION OF THE SUBJECT
PROPERTY,
Respondent.
/
NOTICE OF APPEAL
NOTICE IS GIVEN that Plaintiff, BANK ONE, NATIONAL ASSOCIATION, AS
TRUSTEE, appeals to the Fifth District Court of Appeal the orders entered by the Honorable
William C. Johnson on December 24,2002 and December 27,2002. The nature of the orders are
final orders denying Plaintiffs Motion for Summary Judgment and dismissing case entered
December 24, 2002; Order Denying Motion for Clarification and or Rehearing entered
December 27. 2002; and Order Denying Plaintiff [sic] Motion for Summary Judgment with
Prejudice, Order Granting Motion to Dismiss Complaint With Prejudice; Order Declaring
Mortgage, Lis Pendens and Note Satisfied and Fully Discharged, and Final Judgment for
Defendant's entered on December 27, 2002. Copies of the above-described orders are attached
hereto as Exhibits "1", "2" and "3" respectively.
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Book: 4994Page: 2933
IN THE CIRCUIT COURT OF THE
7TH JUDICIAL CIRCUIT, IN AND
FOR VOLUSIA COUNTY,
FLORIDA
CIVIL DIVISION
CASE NO.: 2001 31518 crcr
BANK ONE) NATIONAL
ASSOCIATION, AS TRUSTEE
Plaintiff,
vs.
ROBERT E. WARD; JERIL YNN L.
WARD NKJ A JERILYN L.
WARD; SARA SUE FUGATE;
JOHN DOE AND JANE DOE AS
UNKNOWN TENANT (S) INPOSSESSION OF THE SUBJECT
PROPERTY.
Defendants.
ORDER ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come before the Court and the Court being duly advised; it
is:
ORDERED AND ADJUDGED:
1. Plaintiff's Motion for Summary Judgment is Denied.
2. A representative of the Plaintiff shall personally appear before this Court
regarding any future hearing.
3. This case is Dismissed.
ORDERED at Daytona, Volusia County. Florida, on this ~ay of j f ! l l C 4 kL----. 2002 )/lI!l'~ P / 4 - - ; 7VA~ JU ~r/fqc:;t l l f2_
~~~
IEXHIBIT
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Case No.: 2001 31518 ClCI
MAILING LIST
ROBERT E. WARD
JERIL YNN L. WARD A1KJA JERILYN L.WARD605 Northlake Blvd.
Altoma Springs, Florida 32701
SARA SUE FUGATE
15363 S.E.10STH TERRACE ROAD
SUMMERFIELD, FL. 34491
JOHN AND JANE DOE AS UNKNOWN TENANT (S)
IN POSSESSION OF THE SUBJECT PROPERTY
500 SOUTH SENECA BOULEVARD
DAYTONA BEACH, FL. 32114
Book: 4994Page: 2934
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Book: 4994Page: 2935
IN THE CIRCUIT COURT, SEVENTH
JUDICIAL CIRCUIT, IN AND FOR
VOLUSIA COUNTY, FLORIDA
CASE NO: 2001-31518 CICIDIVISION: 31
BANK ONE, NATIONAL ASSOCIATION, ETC.
I Plaintiff,
V .
ROBERT E. WARD, ET. AL. ETC.Defendant(s) •
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . 1
ORDER DENYING MOTION FOR CLARIFICATION AND OR REHEARING
The cause having come before the Court and the Court being fully advised in the
premises, IT IS HEREBY ORDERED AND ADJUDGED that the Motion For Clarification
And Or Rehearing is DENIED.
DONE AND ORDERED inChambers at Daytona Beach Volusia County, Florida~ad
th~f December, 2002.
Copies To:
Amy Post, Esquire
Robert E. Ward and Jerilynn L.Ward
Sara Sue Fugate
John and Jane Doe as unknown tenants
": .. -
IEXHIBIT
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Book: 4994Page: 2936
IN THE CIRCUIT COURT, SEVENTH
JUDICIAL CIRCUIT, IN AND FOR
VOLUSIA COUNTY. FLORIDA
CASE NO: 2001-31518 crcrDIVISION: 31
BANK ONE, NATIONAL ASSOCIATION, ETC.
i Plaintiff,
v.
ROBERT E.WARD, ET. AL. ETC.
Defendant( s),
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ,
ORDER DENYING PLAINTIFF MOTION FOR
SUMMARY JUDGMENT WITH PREJUDICE
ORDER GRANTING MOTION TO DISMISS
COMPLAINT WITH PREJUDICE
ORDER DECLARING MORTGAGE LIS PENDENSAND NOTE SATISFIED AND FULLY DISCHARGED
FINAL JUDGMENT FOR DEFENDANT'S
This cause came before the Court on Plaintiffs Motion For Summary Judgment.
The Court finds as follows:
1. This Complaint was filed July 25, 2001 by Bank One, National Association, As
Trustee.
2. The Complaint states the original note was lost or destroyed. The action is to
foreclose a $60,800.00 mortgage given to Divers American Mortgage Company, Inc. , a Rhode
Island lender. There is a reference in a mortgage Note and Allonge to Sun America and HSA
Residential Mortgage Services Of Texas Inc., but their connection is not set out in the
IEXHIBIT
3
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Book:Page:
4994
2937
complaint.
3. That on September 20, 2001 Plaintiff filed the Original Note.
4. The mortgage attached is an exhibit to the Complaint wholly illegible.
5. The Complaint claims Plaintiff owes the Note and Mortgage but the Complaint is
completely barren of factual allegations to establish ownership.
6. The Complaint fails to plead any facts to demonstrate the existence of any trust or set
forth what or for whom Plaintiff is Trustee.
7. That on September 21, 2001 a Motion For Summary Judgment hearing was held before
Judge Joseph Will. The Wards appeared and Judge Will ordered the parties to Mediation.
8. That between March 7, and 19, 2002 Defendant Fugate filed affidavits and proof of
delivery by mail of Bill Of Acceptance- Time draft in the amount of &72,424.20 payable to
Homecoming Financial Network in Texas as directed by Mr. Burke of Marshall C. Watson
P.A. See paragraphs 22 and 25 of Fugate Sworn Affidavit Of Truth filed March 19, 2002.
9. That on April 1. 2002 Plaintiff renoticed its Motion For Summary Judgment including
establishment of "lost" documents.
10. That on April 22. 2002 this Court conducted a hearing and DENIED the Motion For
Summary Judgment due to the evidence in the Court file and demonstration of the Draft in
payment by Defendant Fugate.
11. That on June 4, 2002 Defendant Fugate filed an Answer, and Petition For Injunction
and Affidavit Of Truth In Support Of Petition. The affidavit stated payment had been several
times tendered but refused because the Watson law firm preferred a different form of payment.
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Book:Pa.ge:
49942938
12. That on July 10, 2002 Fugate filed an Affidavit Regarding Discharge Of Indebtedness
stating tender of payment of $72,428.05 by Bill Of Exchange on February 6, 2002; tender of
payment of $72,005.22 by Bill Of Exchange dated July 9, 2002.
13. That attached to that Affidavit is a copy of a letter from Plaintiff that says $14,437.27
will reinstate mortgage.
14. That on July 10, 2002 this Court again DENIED Plaintiff's Motion For Summary
Judgment, declared the mortgage satisfied, and dismissed the Complaint with prejudice.
15. That Motion For Rehearing And Clarification has been DENIED.
WHEREFORE IT IS HEREBY ORDERED AND ADJUDGED:
A. That the Plaintiff Bank One Motion For Summary Final Judgment is DENIED
WITH PREJUDICE.
B. That the mortgage balance has been paid and the mortgage satisfied by tenders
of payment by Defendants.
C. That the refusal of payment tenders by Plaintiff and those acting in its behalf has
been intentional, arbitrary, capricious; and in violation and defiance of State and Federal law;
and maliciously calculated to deprive defendants of their property and their rights;
D. That the Mortgage and Note are declared to be fully satisfied and fully
discharged.
E. That the defendants Motion To Dismiss Complaint and Discharge is GRANTED
and the Complaint is DISMISSED WITH PREJUDICE.
F. That the Lis Pendens is hereby released and discharged;
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Book: 4994Page: 2938-AD i a n e M . MatousekV o l u s i a C O u n t y , C l e r k o f C o u r t
G. That the Clerk of Court shall record this Order And Final Judgment in the
Official Records Of Volusia County in order that the title shall be cleared of this suit and the
mortgage lien.
DONE AND ORDERED in Chambers at Daytona Beach Volusia County, Florida
t.,p_~f December. 2002 .
.I
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been
U.S. Mail to the below listed parties this$day of Dece ber 2002.K_--:: : : ; ; ; : ; ; ; - - -
Amy Post, Esquire
Robert E. Ward and Jerilynn L. Ward
Sara Sue Fugate
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1 0 1 2 4 1 2 0 0 3 1 1 : 0 9 A MI n s t r u m e n t # 2 0 0 3 - 2 6 9 6 7 8Book: 5193Pa.ge: 757
IN THE CIRCUIT COURT OF THE 7TH
JUDICIAL CIRCUIT IN AND FOR
VOLUSIA COUNTY, FLORIDA
BANK ONE, NATIONAL ASSOCIATION,
AS TRUSTEE,
CASE NO. 2001 31518 CICI
DIVISION 31
Plaintiff,
vs.
ROBERT E.W ARD; JERILYN WARD A!KI A
JERILYN L.WARD; SARAH SUE FUGATE,
Defendants._ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . 1
ORDER ON PLAINTIFF'S MOTIONS FOR RELIEF
FROM FINAL JUDGMENT AND ORDERS
THIS CAUSE came before the court for hearing on October 8, 2003, on
Plaintiffs Motions for Relief from Final Judgment and Orders per rule 1.540(b), Fla. R.<:" .. ,
Civ. P. The cour t having heard testimony and evidence submitted by th e parties {le ' reto\-:1!_ . '.. . . . . . ';,
is ORDERED AND ADJUDGED as follows:
I . FINDINGS OF FACT
r,:~ r(' , - S = ~
ll':-
C, -- ~.::..;;
.~.,... .# '"
1.
c
Defendant, SARA SUE FUGATE presented an instrument entitled~Bill of'"T) 0"
r
Exchange" dated February 6, 2002 as purported payment of the mortgage at issue in this
action. The subject bill of exchange, admitted into evidence in this matter, purports to be
redeemable through the "Personal Direct uec Contract Trust Account" that the
defendant claimed to have with an entity described as Department of Treasury Bank. The
instrument was drafted by the defendant and was allegedly issued in the amount of $72,
424.40. Defendant sent the bill of exchange to a payment processing center in
Richardson, Texas, which was operated by a subsidiary of Mellon Bank. according to the
testimony adduced from the Plaintiff's agent, Rodney Willis. Mr. Willis testified that the
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Book:Page:
5193758
defendant's bill of exchange was returned by the processing center as uncollectible. The
defendant's bill of exchange was presented with a "Letter of Advice," which provided
that the recipient of the instrument should submit the original bill of exchange to the
Secretary of the Treasury, United States Department of the Treasury for processing. Also
admitted into evidence was another Bill of Exchange from the defendant dated July 9,
2002 in the purported amount of $72,005.22. Except for the date and amount, the second
instrument is identical to the first. The bills of exchange were signed by the defendant
"without recourse".
2. When called by counsel for the plaintiff as a witness, Ms. Fugate refused
to swear or affirm that she would tell the truth. As a result, Ms. Fugate was not permitted
to testify.
3. Plaintiff offered the testimony of William C. Kerr, National Bank
Examiner, Fraud Division, of the United States Department of the Treasury, Office of the
Comptroller of the Currency. Mr. Kerr testified that he has been employed in his official
position for a period in excess of25 years. Mr. Kerr's official duties include the review of
fraudulent financial instruments purportedly payable by the U.S. Treasury. Mr. Kerr has
reviewed fraudulent fmancial instruments and testified as a witness in prior judicial
proceedings brought by the federal government. Mr. Kerr testified that the instruments
submitted by the defendant were fraudulent and worthless, with respect to the instruments
being redeemable by the u.s. Treasury. Mr. Kerr stated that there are no accounts
offered by the U.S. Treasury as alleged in defendant's instruments. Ms. Fugate's account
does not exist, according to the testimony of Mr. Kerr. Further, his agency has taken
official action in advising national banks under the purview of the U.S. Treasury to
2
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Book:Page:
5~93759
submit any such instrument to the Federal Bureau of Investigation. Mr. Kerr also testified
that instruments like those submitted by the defendant are being promoted on the Internet
in connection with "mortgage elimination programs," which are touted as a method of
discharging debt without actual payment. Mr. Kerr advised that various agencies of the
federal government are investigating the promoters of such fraudulent schemes.
4. Rodney Willis, co-cashiering manager of Plaintiffs agent, testified that
the defendant's bill of exchange, dated February 6, 2002, was received by the payment
processing center, a subsidiary of Mellon Bank, and returned to his attention as
uncollectible. Mr. Willis also testified that no payments under the mortgage at issue had
been received since the institution of this action and that Plaintiff had advanced funds for
the payment oftaxes and insurance on the subject property.
5. The defendant did not testify on her own behalf, since she refused to
affirm to tell the truth as required by Florida law. The only evidence submitted in support
of defendant's contention that her instruments were valid payment, was the testimony of
Jerry Williamson. Mr. Williamson testified that he had been convicted of conspiracy to
distribute a controlled substance and had served a prison sentence in excess of one year.
Mr. Williamson testified that he submitted a bill of exchange to the clerk of the federal
district court in Waco, Texas, as payment of a criminal penalty associated with his
conviction. The purported amount of Mr, Williamson's bill of exchange was $7,000.00.
Mr. Williamson's instrument, admitted into evidence, is substantially similar to the
instruments presented by Ms. Fugate. When asked by Plaintiffs counsel whether Mr.
Williamson had opened an account with currency to pay his bill of exchange, Mr.
Williamson testified that he opened his account with the U.S. Treasury by "reclaiming"
3
----- -- . ._---
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Book:Page:
5193760
his birth certificate, which he asserted had been "monetized" by the federal government
to the International Monetary Fund as security for the debts of the United States. Mr.
Williamson related that the federal government was essentially an enemy of the people
and that his bill of exchange was submitted to "settle" his debt with the government.
However, Mr. Williamson did not know whether his bill of exchange had actually been
paid. On rebuttal, Mr. Kerr reviewed Mr. Williamson's instrument and testified that it
was also a fraud and worthless, for the same reasons attributed to the defendant's
instruments.
6. The court file reflects that the final judgment and orders entered on
December 24, 2002 and December 27, 2002, were entered without an evidentiary hearing
or trial. The hearings conducted prior to entry of the orders at issue, were on motions for
summary judgment filed by Plaintiff and a motion to dismiss the complaint filed by Ms.
Fugate.
II. CONCLUSIONS OF LAW
7. The court construes adversely to Ms. Fugate her refusal to be properly
sworn as a witness in this matter. Ms. Fugate has acted as her own counsel in this
proceeding. The court has not considered statements made by Ms. Fugate in support of
her instruments, as such statements were improper argument not based upon evidence. As
to the testimony of Jerry Williamson offered by the defendant to support her instruments
as valid payment, the Court finds that Mr. Williamson's testimony failed to rebut the
substantial evidence of fraud adduced by Plaintiff.
8. The unrebutted testimony of Willam Kerr confmns that the instruments
submitted to the Plaintiffs agent by Ms. Fugate are fraudulent. Plaintiff has proven by a
4
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Book:Page:
51..93761
preponderance of the evidence that the bills of exchange submitted by Ms. Fugate were
returned by Plaintiffs bank as uncollectible. Furthermore, the subject instruments could
not be payable by the U.S. Treasury. as the so-called personal direct vec Contract Trust
Account claimed by Ms. Fugate does not exist. In addition, a review of the instruments
shows that Ms. Fugate issued the bills of exchange without recourse. Therefore, even if
she had tendered a valid instrument, payment was without recourse and conditional. A
valid tender requires the production and delivery of unconditional payment. Rissman on
Behalf of Rissman !nv. Co. v. Kilbourne, 706 So.2d 75 (Fla. 1st DCA 1994).
Accordingly, the court finds that Ms. Fugate submitted a fraudulent financial instrument
to the Plaintiff in purported payment of the subject mortgage. The intrinsic fraud
committed by Ms. Fugate, in SUbmitting the fraudulent instrument and in representing to
the court that she tendered lawful payment, resulted in the entry of final judgment against
Plaintiff Since no trial was conducted on the disputed issue of tender and payment prior
to the entry of final judgment, the court finds that said orders were the result of fraud and
surprise within the purview of rule 1.540(b). Fla. R. Civ. P. Further. as a result of the
fraud and surprise found by the Court to have occurred, it would clearly be inequitable to
permit the orders and final judgment to have prospective application.
9. Accordingly. Plaintiff Bank: One's Motion for Relief is granted. The Final
Judgment entered December 27. 2002, the order of dismissal with prejudice entered
December 24, 2002 and order denying rehearing entered December 27, 2002 in this
action are hereby vacated, set aside and of no further force or effect.
10. The note and mortgage at issue in this case, said mortgage recorded at
Official Records Book 4581, Page 1727, Public Records of Volusia County, Florida are
5
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Book: 519::3Page: 762D i a n e M . M a t o u s e kV o l u s i a C o u n t y ~ C l e r k o f C o u r t
hereby reinstated. The lis pendens, recorded at Official Records Book 4719, Page 326 of
the Public Records of Volusia County, Florida is hereby reinstated.
11. Based upon Defendant Sara Sue Fugate's presentment of fraudulent
instruments in alleged payment of the subject mortgage, and her misleading statements
and argument before the Court, the Court finds that Plaintiff is entitled to its attorney's
fees and costs incurred in defending Defendant Fugate's spurious claims. At no time did
Defendant's claims of payment have any support in fact or law. See: F.S. 57.105 (1).
DONE AND ORDERED in Chambers at Daytona Beach, Volusia County,
Florida this ';..3 day of October, 2003.
J~Circui udge
Copies by mail to:
Wm. David Newman, Jr.
Sara Sue Fugate
Robert Ward
Jerilyn Ward
6
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1 1 / 2 0 / 2 0 0 3 0 3 : 5 3 P MI n s t r u m e n t # 2 0 0 3 - 2 9 4 4 6 6Book: 5210Page: 4470
IN TIlE CIRCUIT COURT OF TIIE 7TH ruDICIAL CIRCmT,
IN AND FOR VOLUSlA COUNTY, FLORIDA
CIVIL DIVISION
CASE NO.: 2001-31518 CICI
BANK ONE, NATIONAL
ASSOCIATION, AS TRUSTEE,
)
)))
) NOTICE OF APPEAL
) OF FINAL ORDER)
))
)
Plaintiff,
v.
Robert E. Ward, et al,
Defendant.
NOTICE IS GIVEN that Sara Sue Fugate, Defendant, appeals to the Fifth District Court
of Appeals, Daytona Beach., Florida, the order of this court rendered on October 23, 2003,
confirmed copy of which is attached. The nature of the order is a final order granting the
plaintiff's motion for relief from final judgment and order rendered by Judge William C. Johnson
on December 27, 2002.
c ." :;;
~') c;
0_. <t" .~ . ~ ~ ;;~ ~~a~~ : ; ; , J ; 0Sara Sue Fugate: ate Party, Non Assum~it.~
clo 15363 Southeast 105th Terrace Road if5~Summerfield, Florida [34491] ~~ ~
02 N;:<= l ••
;:0 or
I HEREBY CERTIFY that a true, correct, certain, and not misleading copy 7ff the
foregoing NOTICE OF APPEAL was delivered to the Clerk of Courts and provided by U.S.
Mail to Wm. David Newman, Jr., Attorney for Appellant, 1800 N.W. 49th Street, Suite 120, Fort
Lauderdale, Florida 33309, this £l ~ clayof November, 2003 AD.
11
r-mo
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" .Book: 5210Page: 4471
IN THE CIRCUIT COURT OF THE 7TH JUDICIAL CIRCUIT IN AND FOR
VOLUSIA COUNTY, FLORIDA
BANK ONE~NATIONAL ASSOCIATION,
AS TRUSTEE,
CASE NO. 2001 31518 crcrDIVISION 31
Plaintiff,
vs.
ROBERT RWARD; JERILYN WARD NKJA
JERILYN L. WARD; SARAH SUE FUGATE,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ~ /
ORDER ON PLAINTIFF'S MOTIONS FOR RELIEF
FROM FINAL JUDGMENT AND ORDERS
THIS CAUSE came before the court for hearing on October 8, 2003, on
Plaintiffs Motions for Relief from Final Judgment and Orders per rule 1.540(b), Fla, R.
Civ. P. The court having heard testimony and evidence submitted by the parties hereto. it
is ORDERED AND ADruDGED as follows:
L FINDINGSOFFACT
1. Defendant, SARA SUE FUGATE presented an instrument entitled "Bill of
Exchange" dated February 6, 2002 as purported payment of the mortgage at issue in this
action. The subject bill of exchange, admitted into evidence inthis matter, purports to be
redeemable through the "Personal Direct uec Contract Trust Account" that the
defendant claimed to have with an entity described as Department of Treasury Bank. The
instrument was drafted by the defendant and was allegedly issued in the amount of $72,
424.40. Defendant sent the bill of exchange to a payment processing center in
Richardson, Texas, which was operated by a subsidiary of Mellon Bank, according to the
testimony adduced from the Plaintiff s agent, Rodney Willis. Mr. Willis testified that the
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· .Book:Page:
52104472
defendant's bill of exchange was returned by the processing center as uncollectible. The
defendant's bill of exchange was presented with a «Letter of Advice," which provided
that the recipient of the instrument should submit the original bill of exchange to the
Secretary of the Treasury, United States Department of the Treasury for processing. Also
admitted into evidence was another Bill of Exchange from the defendant dated July 9.
2002 in the purported amount of $72,005.22. Except for the date and amount, the second
instrument is identical to the first. The bills of exchange were signed by the defendant
"without recourse".
2. When called by counsel for the plaintiff as a witness, Ms. Fugate refused
to swear or affirm that she would tell the truth. As a result, Ms. Fugate was not permitted
to testify.
3. Plaintiff offered the testimony of William C. Kerr. National Bank
Examiner, Fraud Division, of the United States Department of the Treasury, Office of the
Comptroller of the Currency. Mr.Kerr testified that he has been employed in his official
position for a period in excess of25 years. Mr. Kerr's official duties include the review of
fraudulent financial instruments purportedly payable by the U.S. Treasury. Mr. Kerr has
reviewed fraudulent financial instruments and testified as a witness in prior judicial
proceedings brought by the federal govenunent. Mr. Kerr testified that the instruments
submitted by the defendant were fraudulent and worthless. with respect to the instruments
being redeemable by the U.S. Treasury. Mr. Kerr stated that there are no accounts
offered by the U.S. Treasury as alleged in defendant's instruments. Ms. Fugate's account
does not exist, according to the testimony of Mr. Kerr. Further. his agency has taken
official action in advising national banks under the purview of the U.S. Treasury to
2
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, .Book:Page:
52104473
submit any such instrwnent to the Federal Bureau of Investigation. Mr.Kerr also testified
that instruments like those submitted by the defendant are being promoted on the Internet
in connection with "mortgage elimination programs," which are touted as a method of
discharging debt without actual payment. Mr. Kerr advised that various agencies of the
federal government are investigating the promoters of such fraudulent schemes.
4. Rodney Willis, co-cashiering manager of Plaintiffs agent, testified that
the defendant's bill of exchange. dated February 6, 2002, was received by the payment
processing center, a subsidiary of Mellon Bank,. and returned to his attention as
uncollectible. Mr. Willis also testified that no payments under th~mortgage at issue had
been received since the institution of this action and that Plaintiff had advanced funds for
the payment of taxes and insurance on the subject property.
5. The defendant did not testify on her own behalf, since she refused to
affirm to tell the truth as required by Florida law. The only evidence submitted in support
of defendant's contention that her instruments were valid payment, was the testimony of
Jerry Williamson. Mr.Williamson testified that he had been convicted of conspiracy to
distribute a controlled substance and had served a prison sentence in excess of one year.
Mr. Williamson testified that he submitted a bill of exchange to the clerk of the federal
district court inWaco, Texas, as payment of a criminal penalty associated with his
conviction. The purported amount of Mr. Williamson's bill of exchange was $7,000.00.
Mr. Williamson's instrument, admitted into evidence. is substantially similar to the
instruments presented by Ms. Fugate. When asked by Plaintiff's counsel whether Mr.
Williamson had opened an account with currency to pay his bill of exchange, Mr.
Williamson testified that he opened his account with the U.S. Treasury by '"reclaiming"
3
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, '
Book: ,52~OPage: 4474
his birth certificate. which he asserted had been "monetized" by the federal government
to the International Monetary Fund as security for the debts of the United States. M r.
Williamson related that the federal government was essentially an enemy of the people
and that his bill of exchange was submitted to "settle" his debt with the govenunent.
However, Mr. Williamson did not mow whether his bill of exchange had actually been
paid. On rebuttal, Mr. Kerr reviewed Mr. Williamson's instrument and testified that it
was also a fraud and worthless, for the same reasons attributed to the defendant's
instruments.
6. The court file reflects that the final judgment, and orders entered on
December 24, 2002 and December 27, 2002, were entered without an evidentiary hearing
or trial. The hearings conducted prior to entry of the orders at issue",were on motions for
summary judgment filed by Plaintiff and a motion to dismiss the complaint filed by Ms.
Fugate.
II. CONCLUSIONS OF LAW
7. The court construes adversely to Ms. Fugate her refusal to be properly
sworn as a witness in this matter. Ms. Fugate has acted as her own counsel in this
proceeding. The court has not considered statements made by Ms. Fugate in support of
her instruments, as such statements were improper argument not based upon evidence. As
to the testimony of Jeny Williamson offered by the defendant to support her instruments
as valid payment, the Court :f inds that Mr. Williamson's testimony failed to rebut the
substantial evidence of fraud adduced by Plaintiff.
8. The unrebutted testimony of Willam Kerr confirms that the instruments
submitted to the Plaintiffs agent by Ms. Fugate are fraudulent. Plaintiff has proven by a
4
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..' .. .
Book:Page:
521.04475
preponderance of the evidence that the bills of exchange submitted by Ms. Fugate were
returned by Plaintiff's hank as uncollectible. Furthermore, the subject instruments could
not be payable by the U.S. Treasury, as the so-called personal direct UCC Contract Trust
Account claimed by Ms. Fugate does not exist. In addition, a review of the instruments
shows that Ms. Fugate issued the bills of exchange without recourse. Therefore, even if
she had tendered a valid instrument, payment was without recourse and conditional. A
valid tender requires the production and delivery of unconditional payment. Rissman on
Behalf of Rissman Inv. Co. v. Kilbourne, 706 So.2d 75 (pIa 1st DCA 1994).
Accordingly, the court finds that Ms. Fugate submitted a fraudulent financial instrument
to the Plaintiff in purported payment of the subject mortgage. The intrinsic fraud
committed byM s. Fugate .. in submitting the fraudulent instnnnent and in representing to
the court that she tendered lawful payment, resulted in the entry of final judgment against
Plaintiff. Since no trial was conducted on the disputed issue of tender and payment prior
to the entry of final judgment, the court finds that said orders were the result of fraud and
surprise within the purview of rule 1.540(b), Fla. R. Civ. P_Further, as a result of the
fraud and surprise found by the Court to have occurred, it would clearly he inequitable to
permit the orders and final judgment to have prospective application.
9. Accordingly, Plaintiff Bank One's Motion for Relief is granted. The Final
Judgment entered December 27, 2002, the order of dismissal with prejudice entered
December 24, 2002 and order denying rehearing entered December 27, 2002 in this
action are hereby vacated, set aside and of no further force or effect.
10. The note and mortgage at issue in this case, said mortgage recorded at
Official Records Book 4581, Page 1727, Public Records ofVolusia County, Florida are
5
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" I .. ..
. "
Book: 5210Page: 4476D i a n e M . M a t o u s e kV o l u s i a C o u n t y , C l e r k o f C o u r t
hereby reinstated. The lis pendens, recorded at Official Records Book 4719, Page 326 of
the Public Records of Volusia County, Florida is hereby reinstated.
11. Based upon Defendant Sara Sue Fugate's presentment of fraudulent
instrwnents in alleged payment of the subject mortgage? and her misleading statements
and argument before the Court, the Court finds that Plaintiff is entitled to its attorney's
fees and costs incurred in defending Defendant Fugate's spurious claims. At no time did
Defendant's claims of payment have any support in fact or law. See: F.S. 57.105 (1).
DONE AND ORDERED in Chambers at Daytona Beach, Volusia County,
Florida this __ day of October, 2003.
SIGNED& DAT~6
O C T 2 3 2 0 0 3
JO HN W . V 1ATSO N I"
JohnW. WatsonllI
Circuit Judge
Copies by mail to:
Wm. David Newman, Jr.
Sara Sue Fugate
Robert Ward
Jerilyn Ward
6
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THOMAS D. SAWAYA
CHIEF JUDGE
•
102/2003 0 8 : 3 6 A Ms t r u m e n t # 2 0 0 3 - 3 0 2 2 3 5oak: 52:1..6
Page: 207
WINIFRED J. SHARP
EARLE W. PETERSON. JR.
JACQUELINE R. GRIFFINR. THOMPSON, JR.
ROBERT J. PLEUS, JR.
WILLIAM D. PALMER
RICHARD B. ORFINGERDAVID A. MONACO
VINCENT G. TORPY, JR.JUDGES
DISTRICT COURT OF APPEAL
FIFTH DISTRICT
FRANK J. HABERSHAW
CLERK
300 SOUTH BEACH STREETDAYTONA BEACH, FLORIDA 32114
(386) 255-8600-CLERK
TV W. BERDEAUX
MARSHAL
MEMORANDUM
To: The Clerk of the Circuit Court Addressed or The Administrative Agency Addressed
From: Frank J. Habershaw, Clerk
Fifth District Court of Appeal
By: KELLY WALDRON
Deputy Clerk
DATE: November 26, 2003 --SUBJECT: FINAL ORDER
Fifth DCA No.: SD03-91
County of Origin: Vo1us ia
~:,>~.' )
'U. . , . . . - -r-z
-,r
-< :
Trial Court No. 2001-31S18CICI
Pursuant to the provisions of Rule 9.350 (c), Florida Rules of Appellate Procedure,
attached is a conformed copy of the Final Order of this Court disposing of the subject Appeal.
Please take the necessary action to adjust your records consistent with such order.
NO MANDATE WILL BE ISSUED IN THIS CAUSE.
~\
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDAFIFTH DISTRICT
BANK ONE, NATIONAL
ASSOCIATION. ETC.•
BoOk: 52~6Pa.ge: 208D i a n e M . M a t o u s e kV o l u s i a C o u n t y ~ C l e r k o f C o u r t
Appellant.
v . Case No. 5D03-91
ROBERT E. WARD, ET AL.
Appellee.
----------------------~/
DATE: November 7,2003
BY ORDER OF THE COURT:
ORDERED that Appellant's NOTICE OF VOLUNTARY DISMISSAL, filed
November 6, 2003. is approved, and the above-styled cause is dismissed. Upon
consideration hereof, it is
ORDERED that Appellant's Motions For Attorney's Fees And Costs, filed May
19,2003, and October 29,2003, are moot.
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,ll ..
. " • 06 /07 /2004 01 :47 PMInstrument' 2004-138914
Book = 5335
Page: 1051
THOMAS D. SAWAYA
CHIEF JUDGE
WINIFRED J. SHARP
EARLE W. PETERSON, JR.
JACQUELINE R. GRIFFINMERSON R. THOMP80f\f, JR.
ROBERT J. PLEUS, JR.
WILLIAM D. PALMER
RICHARD B. ORFINGER
DAVID A. MONACOVINCENT G. TORPY, JR.
JUDGES
DISTRICT COURT OF APPEAL
FIFTH DISTRICT
300 SOUTH BEACH STREETDAYTONA BEACH, FLORIDA 32114
(386) 255-8600;CLERK
FRANKJ.HABERSHAW
CLERK
TYW. BERDEAUX
MARSHAL
MEMORANDUM
To: The Clerk of the Circuit Court Addressed or The Administrative Agency Addressed
From: Frank J. Habershaw, Clerk
Fifth District Court of Appeal
By: KELLY WALDRON
Deputy Clerk
County of Origin: Volusia
SUBJECT: FINAL ORDER
DATE: June 3, 2004
Fifth DCA No.: 5D03-3849
Trial Court No. 2001-31S18-CICI
Pursuant to the provisions of Rule 9.350 (c), Florida Rules of Appellate Procedure.
attached is a conformed copy of the Final Order of this Court disposing of the subject Appeal.
Please take the necessary action to adjust your records consistent with such order.
NO MANPATE WILL BE ISSUED IN TIDS CAUSE.
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•N THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
SARA SUE FUGATE,Appellant,
v . CASE NO. 5003-3849
BANK ONE, NATIONALASSOCIATION, ETC., ET AL.,
Appellee.
______________~--~I
DATE: May 17, 2004
BY ORDER OF THE COURT:
ORDERED that Appellant's WITHDRAWAL OF APPEAL, filed May 6, 2004, is
approved. Accordingly, the above-styled appeal is dismissed. It is further
ORDERED that Appellee's MOTION FOR ASSESSMENT OF ATIORNEY'S FEES
AND COSTS, filed April 5, 2004, is denied.
nr-
G:lM0:::0c:::~
.."::;10
o..of."
'--\ c:: - __
~~ ::III:: p-C?n I ~; : : ; : ; : : ; -J
<:;) ms r..=>.~l ~3,~ =
0-;<~-n~r%-'-!-<
cc: Sara Sue FugateWm. David Newman, Jr., Esq.
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0 1/ 31 / 2 0 0 5 1 1 : 0 3 A M
I n s t r u m e n t # 2 0 0 5 - 0 24 11 0
Book: 54B3Page:' 497
IN THE CIRCUIT COURT OF THE
7TH JUDICIAL CIRCmT, IN AND
FOR VOLUSlA COUNTY,
FLORIDA
CIVIL DIVISIONCASE NO.: 200131518 crcr 31
BANK ONE, NATIONAL ASSOCIATION,AS TRUSTEE, .
Plaintiff,
vs.
ROBERT E.WARD; JERILYNN WARD
AlKJA JERll..,YN L. WARD; SARA SUE
FUGATE; JOHN DOE AND JANE DOE
AS UNKNOWN TENANT(S) IN
POSSESSION OF THE·S t JBJECTPROPERTY,
FILEDfN OPEN COURT
JAN 31 2 U D 5Defendants.
------~~~~~~.~.~..~..",....,'.". "C~~~;~I : ; ;~t~~~------ FINAL JUDGMENT OF MORTGAGE FORECLOSURE .•
THIS ACTION was heard before the Court on Plaintiff's Motion for Summary Final
Judgment of Foreclosure ON January 31,2005. It appearing that all defendants have been duly
served with process and that clerk's defaults have been entered against Defendants, Robert E.
Ward, Jerilynn Ward aIkIa Jerilyn L.Ward and Sara Sue Fugate and, that there are no genuine
issues of material fact preventing entry of summary final judgment in favor of Plaintiff, it is
ORDERED AND ADJUDGED:
1. There is due and owing to Plaintiff:
A. As unpaid principal of the indebtedness
Agreed to be paid in the mortgage herein
Foreclosed and the note secured thereby $60,641.54
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Book: 5483Page: 498
B. Interest through January 31,2005
(per diem: $18.51)$25,574.19
C. Late Charges (pre-acceleration only)
D. Advances by Plaintiff
(Taxes: $6,220.68)
(Insurance: $3,079.45)
(Inspections: $85.25)
(price Opinion: $230.00)
(property preservation: $268.30)
$ 202.58
$ 9,883.68
E. Title Search and Review
F. Clerk's filing fee
G. Service of process (including costsof search and inquiry to locate Defendants)
$ 300.00
$ 165.00
$ 272.50
Subtotal $97,039.49
Plaintiff
Attorney's fees: $ 1,200.00
Total $98,239.49
that shall bear interest at the legal rate as prescribed by law. Plaintiff shall also recover such
further costs as may be inclUTedby the Plaintiff in this action, including, but not limited to, the
sale fee and publication of the Notice of Sale, and any advances made by the Plaintiff subsequent
to the date of the Affidavit of Indebtedness which cost or advances are proper under the terms of
the note and mortgage foreclosed herein.
2. Plaintiff holds a lien for the total sum superior to any claim or estate of all the
Defendants herein on the following property in Volusia County, Florida:
LOT 40, AND THE NORTHERLY 2.0 FEET OF LOT 39, TUSCAWILLA
HIGHLANDS, ACCORDING TO THE PLAT THEREOF RECORDED IN MAPBOOK 11, PAGE 234, PUBLIC RECORDS OF VOLUSIA COUNTY, FLORIDA.
a/kJa: 500 SOUTH SENECA BLVD., DAYTONA BEACH, FL 32114
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Book: 5483Page: 499
3. If the total sum set forth in paragraph 1with interest at the interest rate prescribed by law
and all costs of this action and proper advances pursuant to paragraph 1 accruing subsequent to
this judgment are not paid, the Clerk of this Court shall sell the property at public sale on the "'2--. -- -- _-
day of /?1~ _ 2.Q.Q~,a,t1 . 1 : 0 0 a.U1., to the highest bidder for cash, except as set
forth hereinafter, at the VOLUSIA COUNTY COURTHOUSE, 101 N. ALABAMA AVENUE,
ROOM D-251, SECOND FLOOR, CLERKS CONFERENCE ROOM, DELAND, FL 32720, in
accordance with Section 45.031, Florida Statutes.
4. Plaintiff shall advance all subsequent costs of this action and shall be reimbursed for
them by the Clerk ifPlaintiff is not the purchaser of the property at the sale. IfPlaintiff is the
purchaser, the Clerk shall credit Plaintiffs bid with the total sum plus interest and costs accruing
subsequent to this judgment or such part of it as is necessary to pay the bid in full. Ifprior to the
sale, Plaintiff shall be required to advance any monies pursuant to the provisions hereof, then
Plaintiff or its attorneys shall so certify to the Clerk of this Court, and the amount due to Plaintiff
as set forth in paragraph 1hereof shall be increased by the amount of such advances without
further order of the Court. If Plaintiff is successful bidder at the sale, Plaintiffs rights as such
may be assigned to a third party and, in that event, the Clerk of this Court is hereby ordered and
directed to issue the Certificate of Title to Plaintiffs assignee upon application of Plaintiff and
without further Order of this Court.
5. On filing the Certificate of Title the Clerk shall distribute the proceeds of the sale, so far
as they are sufficient, by paying: first, all of Plaintiffs costs; second, documentary stamps affixed
to the certificate unless Plaintiff is not successful bidder in which event the successful bidder
shall pay the cost of said documentary stamps in addition to the amount bid; third, Plaintiffs
attorneys' fees; fourth, the total sum due to Plaintiff less the items paid plus interest at the rate set
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· . Book: 5483Page: 500
forth from this date to the date of the sale, said sum to be paid to the attorney of record for the
Plaintiff; and by retaining any amount remaining pending the further order of this Court.
6. On the filing of the Certificate of Sale by the Clerk of the Court, the Defendants and all
persons claiming under or against them since the filing of the Notice of Lis Pendens are
foreclosed of all estate or claim in the property and the purchaser at the sale shall be let into
possession of the property.
7. If the Plaintiff is the purchaser at the sale, then, upon confirmation of the sale, whether by
the Clerk filing the Certificate of Title herein or by order of the Court ruling upon objections to
the sale, the said Plaintiff may permanently withdraw from the court file the original mortgage,
the original promissory note and the original assignments of mortgage, and the photocopies of
same attached to the complaint shall hereafter be and stand in lieu thereof.
8. If Plaintiff is the purchaser at the sale, Plaintiff, their heirs, representatives, successors or
assigns, shall be placed in immediate possession of the afore described premises. In the event
the Defendants fail to vacate said premises within 10 days of the date of the foreclosure sale as
provided above, a Writ of Possession for subject premises shall issue upon further order of the
Court.
9. The Court finds, based upon the affidavits presented and upon inquiry of counsel for the
Plaintiff, that Plaintiff's counsel reasonably expended 8 hours in the prosecution of this action
and that an hourly rate of $150.00 is appropriate. The Court finds that there are no reasons for
either reduction or enhancement pursuant to Florida Patients' Compensation Funds v. Rowe. 47~.
So.2d 1145 (Fla. 1985), and the Court therefore has awarded reasonable attorney's fees of
$1,200.00.
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· . Book: 5483Page: 501
10. Jurisdiction of this action is retained to enter further orders as are proper including,
without limitation, deficiency judgments.
DONE AND ORDERED in Chambers at Daytona Beach, Volusia County, Florida, this
,200_5.
Hono~aple John W. Watson, III
Circm{/.rudge
Copies by mail to the parties on attached Service List
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.. . . Book: 5483Page: 502
D i a n e H . M a t o u s e k
Volusla County, Clerk of C
Case No. 2001 31518 crcr 31Final Judgment
SERVICE LIST
Wm. David Newman, Jr., Esq.
Attorney for Plaintiff
Law Offices of Marshall C. Watson, P.A.
1800 NW 49th Street, Suite 120
Fort Lauderdale, Florida 33309
Robert E. Ward
500 South Seneca Blvd.
Daytona Beach, FL 32114
Jerilynn Ward500 South Seneca Blvd.
Daytona Beach, FL 32114
Sara Sue Fugate
15363 S.B. l05th Terrace Road
Summerfield, FL 34491
Sara Sue Fugate
P.O. Box 1234
Weirsdale, FL 32195
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0 3/ 1 6 / 2 0 O S 0 1: 5 3 P H
D o c s t a m p s 5 8 1 . 7 0
( T r a n s f e r Ali $ 83100 )
I n s t r u m e n t ' 2 0 0 5 - 0 6 7 3 9 7 # 1
Book: 5512Page: 2105
IN THE CIRCUIT COURT OF THE
7TH JUDICIAL CIRCUIT, IN AND
FOR VOLUSIA COUNTY,
FLORIDA
CNIL DNISION
CASE NO.: 2001 31518 CICI31
BANK ONE, NATIONAL ASSOCIATION,
AS TRUSTEE,
Plaintiff,
vs.
ROBERT E. WARD; JERILYNN WARD
A!KI A JERILYN L. WARD; SARA SUE
FUGATE; JOHN DOE AND JANE DOEAS UNKNOWN TENANT(S) IN
POSSESSION OF THE SUBJECT
PROPERTY,
Defendants.
CERTIFICATE OF TITLE
The undersigned, Diane M. Matousek, Clerk of the Court, hereby certifies that a
certificate of sale has been executed and filed in this action on _ _ . : M : . : : a = - : r : . . . : : c ~ h _ 2 = - , ~ 2 ~ O . . : : : . ; 0 5 : : : _ _ __ ,
for the property described herein and that no objections to the sale have been filed within the
time allowed for filing objections.
The following property in Volusia County, Florida:
LOT 40, AND THE NORTHERLY 2.0 FEET OF LOT 39, TUSCA'VILLA
HIGHLANDS, ACCORDING TO THE PLAT THEREOF RECORDED IN MAP
BOOK 11, PAGE 234, PUBLIC RECORDS OF VOLUSIA COUNTY, FLORIDA.
AIKI A: 500 SOUTH SENECA BLVD., DAYTONA BEACH, FL 32114
$581.70 dis VOL trm P a r c e l I D # 5 2 3 9 - f 6 - 0 0 - 0 4 0 0
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. .
was sold to:
I n s t r u m e n t ' 2 0 0 5 - 0 6 7 3 9 7 # 2
Book: 5512Page: 2106
0; ane H . Matousek
Y o l u s l a C o u n t Y . C l e r k o f C o u r t
S OU TH F LO RI DA C ON SU LT IN G & INV ES TM EN TS a nd DEB RA E LE NS ON
whose address is PO Box 50562 Lighthouse Point, FL 33174
WITNESS my hand and the seal of the Court this 15th day of March ,2005.
Diane M. Matousek
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03/29/2005
IN TH B CLRCtJIT COUR.T OF THE rmllJDICW. CIRCUl't, IN AND FOR VOUJSTACOUNlY.,toRJlJA _-crvn, DIVlSlONC A SE N O .: 2 00 1 3 15 1 8C IC I 3l
,
BANK ONE, *ATIONAL· ASSOCIATION, A sTRUSTEE I
,Plaintiff,
VI:. C ER TIF IC AT E O F D IS BU RSE ME NT S!I
R O a n r e. W A ! . lD : JBRlJ4YNN J. W A R D AlK!A1EltlLYN L WAjIU); SARA SUB FUGATE ; JOANDO E A N D Ji'NE DO E A S t1 'N KN O WNTJ!NANT (5) IN I pOS SES SION OF nm SUBlBCT
PR.OPIR.TY ,; -?efaKfams.I
,
Thr . ~rsfped . DIane M . Matousek, CIck o fth t C ou rt, h er eby o e m s . that th G proGeCda I ' C I l I d v e d f t ' o m
th e sa l. o f th e ~ h ave been diabur_ ISprovided In tile final judgment te lb . persona Ind in the 8mol ll lt s a s
folloWl: S B 3 , I O O J D O
To PI~ .Rank ODe,Natbaal4UociatiOD,
r C/o Ma", ... n c. \VRtIQa
1800 NW '" Street , f hl it a 1 2 1 )
Fort Lauderdale. FL 33309
f
WlTNES~myband andthe ... . oith. Court tIlis29 day of March ~on~.
01-02981
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