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August 18, 2003
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Case No: 02-6775(02)- Pembroke Isles HOA vs Hortensia Rodon
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Florida
Superior Court
County of Broward
Branch: 17 Judicial Circuit
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Pembroke Isles Homeowners Association
Represented by: Neil G. Frank, FRANK, WEINBERG 7 BLACK, P.L.
v.
Hortensia Rodon et al
Represented by: Gary S. Maisel, P.A.
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Summary
1. This is a foreclosure action of a homeowner's association lien against the defendants Hortensia Rodon and Carlos Rodon.
2. The Final Judgement of Foreclosure was entered by this Court on June 12, 2003 and a sale date was scheduled for August 11, 2002.
3. The Plaintiff, Pembroke Isles Homeowners Association, thereafter filed a Motion to Amend the Final Judgement to not only include advances made for publication costs for the sale of the subject property, but also included three additional months of homeowner's association dues.
4. Pursuant to the Plaintiff's Motion to Amend Final Judgemt or for credit bid, and without the Plaintiff amending its Complaints, this Court amended the Final Judgement to include these additional costs, on August 6, 2003.
5. The Foreclosure sale took place on August 11, 2003, and the subject property was acquired by a third party, D & L Investments of South Florida Inc., for the amount of $69,500.
6. The Defendants, HORTENSIA RODON and CARLOS RODON, object to the foreclosure sale and request that this Court set aside the Final Judgment of Foreclosure and any amendments thereto, and the Certificate of Sale for the following reasons:
a. Lack of Service of Process:
b. Dismissal of Action:
c. Lack of Notice of Sale Date:
d. Lack of Authority to Amend Final Judgment:
e. Excusable neglect:
7. The Defendants have the funds to pay the outstanding homeowner's association dues
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Causes of Action: 1. This is a foreclosure action of a homeowner's association lien against the defendants Hortensia Rodon and Carlos Rodon.
2. The Final Judgement of Foreclosure was entered by this Court on June 12, 2003 and a sale date was scheduled for August 11, 2002.
3. The Plaintiff, Pembroke Isles Homeowners Association, thereafter filed a Motion to Amend the Final Judgement to not only include advances made for publication costs for the sale of the subject property, but also included three additional months of homeowner's assocaition dues.
4. Pursuant to the Plaintiff's Motion to Amend Final Judgement or for credit bid, and without the Plaintiff amending its Complaints, this Court amended the Final Judgement to include these additional costs, on August 6, 2003.
5. The Foreclosure sale took place on August 11, 2003, and the subject property was acquired by a third party, D & L Investments of South Florida Inc., for the amount of $69,500.
6. The Defendants, HORTENSIA RODON and CARLOS RODON, object to the foreclosure sale and request that this Court set aside the Final Judgment of Foreclosure and any amendments thereto, and the Certificate of Sale for the following reasons:
a. Lack of Service of Process:
b. Dismissal of Action:
c. Lack of Notice of Sale Date:
d. Lack of Authority to Amend Final Judgment:
e. Excusable neglect:
7. The Defendants have the funds to pay the outstanding homeowner's association dues
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Citation: 02-16775(02) Pembroke Isles Homeowners vs Hortensia Rodon et al |
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Judge: The Honorable Victor Tobin
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Lawsuit Text
IN THE CIRCUIT COURT OF THE 17TH
JUDICIAL CIRCUIT, IN AND FOR
BROWARD COUNTY, FLORIDA
CASE NO, 02-16775 (02)
PEMBROKE ISLES HOMEOWNERS ASSOCIATION, INC..
Plaintiff.
vs.
HORTENSIA RODON. a married
woman and UNKNOWN SPOUSE,
Defendants.
OBJECTION TO SALE AND MOTION TO SET ASIDE FINAL JUDGMENT AND CERTIFICATE OF SALE
COMES NOW the Defendants, HORTENS1A RODON and CARLOS R-ODON, by and through their undersigned counsel and files this, their Objection to Sale and Motion To Set Aside Final Judgment and Certificate of Sale and as grounds therefore states:
1. This is a foreclosure action of a homeowner's association lien against the Defendants, HORTENS1A RODON and CARLOS RODON.
2. A Final Judgment of Foreclosure was entered by this Court on June 12, 2003.
Pursuant to said Final Judgment, a sale date was scheduled for August 11, 2003.
3. The Plaintiff, PEMBROKE ISLES HOMEOWNERS ASSOCIATION thereafter filed a Motion to Amend the Final Judgment to not only include advances made for publication costs for the sale of the subject property, but also included three additional months of homeowner's association dues,
4. Pursuant to the Plaintiff s Motion to Amend the Final Judgment 01 for credit bid, and without the Plaintiff amending its Complaint, this Court amended the Final Judgment to include these additional costs, on August 6. 2003.
5. The foreclosure sale took place on August II, 2003, and the subject property was acquired by a third party purchaser, to.wit: D & L Investments of South Florida, Inc., for the amount of $69.500.00.
6. The Defendants, HORTENSIA RODON and CARLOS RODON, object to the foreclosure sale and request that this Court set aside the Final Judgment of Foreclosure and any amendments thereto, and the Certificate of Sale for the following reasons:
a. Lack of Service of Process: At no time have the Defendants, HORTENSIA RODON and CARLOS RODON, ever been served with process in the subject action. Although the return of services reflected in the Court file state that these Defendants were served while visiting the subject property which was occupied by Felipe Rodon and Vena McBaine, the same is untrue and the Defendants, HORTENSIA RODON and CARLOS RODON, were not visiting the subject property at the time of the alleged service of process and, in fact. were at a meeting where minutes were taken, which they attend each and every Saturday (the date of the alleged service of process),
See Affidavits of HORTENSIA RODON and CARLOS RODON attached hereto and incorporated
herein by reference.
b. Dismissal of Action: As to CARLOS RODON. only, this Court does not have jurisdiction to foreclose out his interest in that the foreclosure action was dismissed with prejudice. On December 3, 2002, the Defendant. HORTENSIA RODON, and her son, Felipe
Rodon, but not the Defendant Carols Rodon, entered into a Stipulation for Settlement
Pursuant, to the Stipulation for Settlement. to Court entered an Order approving said Stipulation on December 12, 2002, and dismissed this action, with prejudice, retaining jurisdiction for the enforcement of the Settlement Agreement only.
Although the Stipulation for Settlement authorized the entry of a foreclosure judgment, in the event of a Default and the Court clearly retained jurisdiction to do so, the Stipulanon for Settlement was not executed by the Defendant, CARLOS RODON, and thus , when this Court dismissed the action with prejudice, it lost jurisdiction over Carlos Rodon to enter a Final Judgement foreclosing out his interest. See : Zimmerman and Zimmerman v. Olympus Fidelity Trust, LLC and Paine Weber, Inc. 28FLWD1440(4th DCA 2003) A copy is attached her for the Court's convenience.
c. Lack of Notice of Sale Date: Although the Defendants, Hortensia Rodon and Carlos Rodon. knew that a sale would take place within 60 days from the entry of a Final Judgement of Foreclosure, the Defendants did not know the specific date of the foreclosuresalein that neither the Plaintiff nor the Clerk of the Court forwarded a copy of the Final Judgement of Foreclosure which set forth the sale date, not provided a copy of the Notice of Sale to the Defendants. see: Affidavits of the Defendants, Hortensia Rodon and Carlos Rodon, attached hereto and incorporated herein by reference.
d. Lack of Authority to Amend Final Judgment: The Plaintiff filed a Complaint and subsequently amended the Complaint for past due homeowner's association dues against the Defendants and sought to foreclose the subject property forfailure to pay said dues. After the entry of a Final Judgment of Foreclosure the Plaintiff, via Affidavit and without filing an Amended Complaint, moved this Court to amend the Final Judgment of Foreclosure or for a credit bid to include subsequently accrued homeowner's association dues which apparently accrued during the pendency of this action. This Court entered an Order granting Plaintiff a credit bid for these additional assessments. To amend the Final Judgement or provide a credit bid merely by filing a Motion without amending the Complaint which sought additional sums due and owing as opposed to advances for funds paid, required the Plaintiff to amend its Complaint. Based upon the Plaintiffs failure to amend its Complaint, this Court did not have the authority to amend the Final Judgment or provide a credit bid without giving the Defendants the opportunity to respond to said additional association dues allegedly owed.
Thus, this Court should vacate the Final Judgment of Foreclosure
or the Order granting the additional credit bid to the Plaintiff.
e. Excusable neglect: The Defendant, HORTENSIA RODON, shortly subsequent to this Court entering its Final Judgment of Foreclosure, retained bankruptcy counsel to file for Federal Bankruptcy protection so as to, in part, avoid losing her home in foreclosure. The Defendant HORTENSIA RODON, retained bankruptcy counsel pursuant to a Retainer Agreement entered into between herself and Jared Kullman, Esquire. A copy of said Retainer Agreement is attached hereto and incorporated herein by reference. Bankruptcy counsel was to determine when the foreclosure sale was to take place and file for bankruptcy protection prior to the sale, but
neglected to do so, thus resulting in the sale of the subject property and causing the Defendant to lose her home which contained substantial equity,
7. The Defendants have the funds to pay the outstanding homeowner's association dues pursuant to the Final Judgment of Foreclosure, as well as any advances or additional credit bids due
and owing and stand ready, willing and able to pay said monies to the Plaintiff to make it whole.
WHEREFORE, it is respectfully requested that this Court sustain the Objection to Sale; set aside the Final Judgment of Foreclosure and/or Certificate of Sale; and enter such further relief as this Court deems appropriate,
I HEREBY CERTIFY that a true and correct copy of the above and foregoing has been providedby U.S. MailtoMeil G. Frank, Esquire, FRANK, WEINBERG & BLACK, P.L, 7805 S.W 6th Court. Plantation, Florida 33324; D & L Investments of South Florida Inc., 719 N. Highland Drive, Hollywood, Florida 33021 and Luis Garcia. as Registered Agent, 3321 Grant Street, Hollywood, Florida 33021 this 18th day of August, 2003.
GARY S. MAISEL, P.A.
Counsel for Defendants
219 West Davie Boulevard
Fort Lauderdale, .Florida 33315
Tel; (954) 760-7775
FAX: (954) 522-7372 .
GARY S. MAISEL, ESQUIRE
FLA. BAR #603090
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View Comments (3) | Post a comment |
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Submitted Files
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Filename
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Description
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File Type
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File Size
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Click to download
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ClainLien1.PDF
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Claim of Lien For Maintenence Assessments - Homeowner says that association lawyer Neil G, Frank claims July assessment is past due on July 11th when it is not past due until July 15th.
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PDF document, version 1.5
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20KB
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Download
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LienClaim2.PDF
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Letter to Rodons giving 10 days to pay claim. Lawyer Neil G. Frank tells Rodons to call his condominium paralegal Kathleen Moro (also his Notrary Public) only on Tuesday or Thursday afternoons from 2-5pm.
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PDF document, version 1.5
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20KB
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Download
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LawyerTime.PDF
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Lawyers Affidavit of Time Expended - November 18, 2002 at $175 per hour = $2,012.50
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PDF document, version 1.5
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53KB
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Download
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StipSettle.PDF
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Lawyers Stipulation For Settlement - December 12, 2002 rachets to $4,431. Homeowner said the lawyer refused to accept a check for first payment and made him get cash to pay..
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PDF document, version 1.5
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47KB
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Download
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Retainer.PDF
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Rodon's Retainer Agreement with bankruptcy lawyer Jared Kullman. Lawyer did not file bankruptcy that may have stopped the forelosure. Rodon's home was sold.
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PDF document, version 1.5
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17KB
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Download
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SaleCert1PDF
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Certificate of Sale - August 11, 2003. D & L Investment buys home for $69,500, Homeowner says the house is worth $289,00 - $300,000.
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PDF document, version 1.5
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16KB
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Download
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Objection to Sale.pdf
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Rodon's attorney Gary Maisel's Objection To Sale And Motion To Set Aside Final Judgement And Certificate of Sale. Judge Victor Tobin ignored the descrepencies and ruled for the Association lawyer and buyer .
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PDF document, version 1.5
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75KB
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Download
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Affidavit of Ho…ensia Rodon.pdf
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Mrs. Hortensia Rodon's Affidavit - she states she was never served, that she paid a bankruptcy lawyer Jared Kullman to file a bankruptcy action and he failed to do so, and that she had funds to pay to save her home and her substantial equity in it
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PDF document, version 1.5
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34KB
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Download
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SaleCert1PDF
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Certificate of Sale - August 11, 2003.
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PDF document, version 1.5
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16KB
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Download
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FinePDF
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Pembroke Isles HOA board and manager Ken Amesen (Campbell Property Management) fine Mrs Rodon $1000. for not washing her roof on September one month after selling her home.
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PDF document, version 1.5
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17KB
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Download
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