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Case No.: SC13-849 ) SUPREME COURT OF FLORIDA Case No.: SC13-849 District Case No.: 3D12-3443 Lower Tribunal No.: 10-42068 HILDA SUAREZ, ORLANDO ) Fla. Bar No.: 480400 GARCIA, JR. and LISETTE ) GARCIA, ) Defendants/Appellants, ) v. ) CITIMORTGAGE, INC., ) ) Plaintiff/Appellee, ) INITIAL BRIEF Writ of Mandamus Gary Barcus, Esq. Attorney for Hilda Suarez, Orlando Garcia, Jr. and Lisette Garcia TABLE OF CONTENTS PAGE I. Statement of the Case................................................... 1-3 II. Facts ....................................................................... 4-9 III. Issues to be Considered upon Appeal ................................. 10 1. Whether Appellee's Motion for Substitution of Party Plaintiff complies with Fla.R.Civ.P. 1.100 requiring it to "specify with particularity the grounds upon which the motion is based and set forth the relief or order sought." [The Author's Comments states: "These Requirements are mandatory.] 2. Whether Penny Mac Loan 2012 Trust NPL-1, who purchased the mortgage September, 2012, from PennyMac Mortgage Company LLC, which had purchased the mortgage from CitiMortgage, Inc. effective January 25, 2012, may be substituted as party plaintiff in this mortgage foreclosure even though it was NOT mentioned in the Motion for Substitution of Party Plaintiff? 3. Whether the Order ofNovember 30, 2012 denying the Motion to Dismiss the foreclosure lawsuit brought by CitiMortgage, Inc. should have been granted. IV. Analysis ofLaw ......................................................... 11-13 V. Conclusion ............................................................... 14 Certificate of Service ........................................................... 15 Certificate ofCompliance .................................................... 13 Table ofCases Cited .......................................................... il Statutes Cited .................................................................. il TABLE OF CASE CITED Metcalfe v. Lee, 952 So.2d 624 (Fla. 4th DCA 2007)..................... 12 STATUTES CITED Fla.R.Civ.P. 1.100(b) ......................................................... 6,9-11 Fla.R.Civ.P. 1.150.............................................................. 8 Fla.R.Civ.P. 1.260(a) and (c) ................................................ 1-3,6,11-14 Fla.R.Civ.P. 1.420(b).......................................................... 8 Fla.R.App.P. 9.030(a)(3)...................................................... 8 11 I. Statement of the Case This appeal raises two important questions of law that were NOT properly followed nor enforced at the trial level: (1) Fla.R.Civ.P. 1.260(a) limiting the time to substitute party plaintiffto within 90 days was violated; and (2) most serious misrepresentations by the attorneys for CitiMortgage, Inc., Brock and Scott, who told the court on January 30, 2012, at the Motion to Dismiss hearing that CitiMortgage, Inc. then owned and held the mortgage and note and were entitled to enforce them against Appellants, a bald faced lie. Or, politely put, a tergiversation, a cunard, a prevarication, but frankly put, a bald faced lie. Please take a moment to read the one paragraph allegations in Appendix #3 "Motion for Substitution of Party Plaintiff." In that motion, the assignee ofthat mortgage and note alleges that "On or about January 27, 2012, CitMortgage transferred all of its right, title and interest in the Garcia's loan to PNMAC." [PNMAC Mortgage Corporation., LLC.] Oh? Do tell, because as that is the true fact, then Judge Marc Shumacher should have granted the Appellants' Motion to Dismiss that was heard on January 30, 2012, see transcript of that hearing, attached, denying that Motion to Dismiss. As you will see, attorneys Brock and Scott DID misrepresent to the court that CitiMortgage,Inc. owned and held the note and mortgage as of January 30, 2012, which it did not. Had they not misrepresented the true facts to the court, the case would have been dismissed on January 30, 2012, and the assignee would have, and 1 should have, properly filed a brand new lawsuit. But, the immediate assignee did not file a brand new lawsuit. Instead, it chose to file an untimely and late Motion to Substitute Party Plaintiff on May 3rd 2012, see Appendix #3, in which the motion seeks to allow a SECOND assignee of the note and mortgage from CitiMortgage, Inc. which assigned the note and mortgage to PennyMac Loan Corporation, LLC who then assigned the note and mortgage to PNMAC Mortgage Co., LLC. And before the Motion to Substitute Party Plaintiffwas heard, the second assignee PNMAC Mortgage Co., LLC then assigned the note and mortgage to a third assignee PENNYMAC LOAN TRUST 2012-NPL1. Under Fla.R.Civ.Pro. 1.260(a), the motion to substitute was not made within 90 days ofthe original assignment from CitiMortgage, Inc. to PNMAC Mortgage Co., LLC [which was in actual fact on January 25, 2012 but Appellee conceded January 27, 2012] but not until May 3, 2012. And, the second and third assignments were not made until September, 2012, long, long after the "within 90 days" time bar to substitute party plaintiff found in Rule 1.260(a). To add insult to injury, the Motion to Substitute Party Plaintiffwas made after the court should have dismissed the entire case for any standing of CitiMortgage, Inc. at the January 30, 2012 Motion to Dismiss hearing. 2 More importantly, and completely violative of Fla.R.Civ.P. 1.260(a) that requires the substitution of party plaintiff within 90 days, was the ultimate party that Judge Marc Schumacher improperly allowed to actually substitute as party plaintiff. Have you ever seen a "relay race" at a track meet where four runners pass a baton between each other to run a race in segments? That is what happened here: PennyMac Mortgage Corporation., LLC assigned the note and mortgage to to PNMAC Mortgage Co., LLC which subsequently [but before the order granting substitution of party plaintiff] assigned the mortgage and note to yet another party, PENNYMAC LOAN TRUST 2012-NPLl. The assignment from the PennyMac Loan Corporation, LLC to PNMAC Loan Co., LLC and then to PENNYMAC LOAN TRUST 2012-NPL1 occurred in September of 2012, long after the "within 90 days" time bar of Fla.R.Civ.P. 1.260(a) had expired. Therefore, Judge Marc Schumacher was wrong twice, first when he denied the Motion to Dismiss on January 30, 2012 and again on November 30, 2012, see Appendix #2, when he allowed substitution party plaintiff to the last runner ofthe relay race long, long after the time to substitute party plaintiff within 90 days had expired. Any one of these failures to enforce the rules of court constitutes a denial of the Appellants' Constitutional rights to Due Process of Law under the 14th Amendment to the US Constitution, but collectively these repeated failures to follow the Rules of court are an abomination. 3 H. Facts: 1. This case is a mortgage foreclosure, initiated in 2010. The case was dismissed in November of 2010, for failure to attach documents upon which a claim could be made or a defense made. CitiMortgage, Inc. given 15 days to file an Amended Complaint. It did not file, failed to file, an Amended Complaint for more than a year, all in contempt of the November, 2010 court order to file an Amended Complaint. The Clerk of Court actually closed the case. An administrative notation was issued closing the case. 2. In late December of 2011, the now contemnor, CitiMortgage, Inc. finally filed an Amended Complaint on an ex parte basis, and Judge Marc Schumacher, without any hearing, permitted this case to be reopened. 3. Appellants filed a Motion to Dismiss the Amended Complaint, and set it for a hearing on January 30, 2012. Meanwhile, on January 24, 2012, BEFORE THE HEARING to substitute party plaintiffs, CitiMortgage, Inc. sold the mortgage and note to PennyMac Mortgage Co., LLC, an act that completely divested CitiMortgage, Inc. of any right to continue the lawsuit. That should have been the end ofthe foreclosure lawsuit. Mortgage and note sold before the hearing on the Motion to Dismiss divested CitiMortgage, Inc. of any standing whatsoever. Judge Marc Schmacher should have dismissed the lawsuit then and there. 4 4. Nonetheless, CitiMortgage, Inc. opposed the Motion to Dismiss the Amended Complaint, and won! Judge Marc Schumacher should have dismissed the foreclosure lawsuit with prejudice. [Appellants filed the first interlocutory appeal on the issue of divested standing, but that appeal was denied.] CitiMortgage, Inc. subsequently filed a Motion for Substitution of Party Plaintiff, Appendix #3, in which it requested that PNMAC Mortgage Co., LLC be permitted to substitute as party plaintiff for CitiMortgage, Inc. However, from the time ofthe filing ofthe initial Motion to Substitute Party Plaintiffto be PNMAC Mortgage, LLC for CitiMortgage, Inc., the mortgage and note were sold two more times to two subsequent owners, neither of which were named in the original Motion to Substitute Party Plaintiffthat was set for a hearing November 30, 2012. Ifyou are keeping score, here is how your scorecard should read for the four different parties who owned the mortgage and note (maybe): a. CitiMortgage, Inc. alleged that it originally owned and holds the mortgage and note (although they never properly filed ownership proof despite being ordered to do so for more than a year). Then CitiMortgage, Inc. announces that it sold the mortgage and note on January 25, 2012, to b. PNMAC Mortgage Corporation., LLC, but there was no proof of sale or assignments filed by PNMAC Mortgage Corporation., LLC. [That is two purported owners if for you scorekeepers as of January 25, 2012.] c. PNMAC Mortgage Corporation., LLC allegedly sold the mortgage and note to PNMAC Mortgage Co., LLC. [That is three purported owners.] 5 d. PNMAC Mortgage Co., LLC purportedly sold the mortgage and note to PENNYMAC LOAN TRUST 2012-NPL1. [Now four purported owners.] 5. No mention was made by CitiMortgage, Inc. in its original (filed AFTER it had sold the mortgage and note) Motion for Substitution of Party Plaintiff of PNMAC Mortgage Co., LLC, the motion was set for hearing on November 30, 2012. The trial Judge, Marc Schumacher, more than ten months after the original motion, (when Fla.R.Civ.P.
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