Case 10-42231-AJC Doc 11 Filed 11/16/10 Page 1 of 22

In re:
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
www.tlsb.uscourts.gov
Case No. 10-42231-AJC
POITIER FUNERAL HOME, INC., Chapter 7
Debtor.
MOTION OF CREDITOR, DANIEL LUSHAN, FOR RELIEF
FROM AUTOMATIC STAY
ANY INTERESTED PARTY WHO FAILS TO FILE AND
SERVE A WRITTEN RESPONSE TO THIS MOTION
WITHIN 14 DAYS AFTER THE DATE OF SERVICE
STATED IN THIS MOTION SHALL, PURSUANT TO
LOCAL RULE 4001-1(C), BE DEEMED TO HAVE
CONSENTED TO THE ENTRY OF AN ORDER GRANTING
THE RELIEF REQUESTED IN THE MOTION.
Creditor, DANIEL LUSHAN ("Lushan"), by and through undersigned counsel and
pursuant to 11 U.S.C. 362 and Rule 4001 of the Federal Rules of Bankruptcy Procedure, files
this Motion for Relief from Automatic Stay (the "Motion") and requests relief from the stay
against Debtor, POITIER FUNERAL HOME, INC., to enable Lushan to proceed with the
pending foreclosure sale in state court:
1. This Court has jurisdiction over this proceeding pursuant to 28 U.S.C.
157(b)(2)(G) and 1334, and 11 U.S.C. 362. Venue is proper pursuant to 28 U.S.C. 1408.
2. On August 10, 2009, Lushan commenced a state court action against Bernard C.
Poitier ("Poitier"), Debtor, POITIER FUNERAL HOME, INC. ("Debtor" or "Poitier Funeral
Home"), and Charles L. Haywood to foreclose his mortgage lien on certain real property located
in Miami-Dade County, Florida (the "Poitier Property").
Case 10-42231-AJC Doc 11 Filed 11/16/10 Page 2 of 22
3. While Poitier is the only obligor under the attached Promissory Note (Exhibit 1)
and Mortgage (Exhibit 2), Debtor, as a tenant on the Poitier Property, was named as a defendant
in said state court action styled Lushan v. Poitier, case no. 09-58930-CA-23.
4. On June 17, 2010, Lush an obtained a Final Judgment of Foreclosure, attached
hereto as Exhibit 3, and he was found to be due from Poitier $501,000 in principal, $82,370.41
in interest to and including the date of the Final Judgment, $2,224.75 in title search and other
costs, and $2,765.00 in attorneys' fees, totaling at $683,915.05 (the "Judgment Amount"), which
amount does not include the interests and fees/costs that have accrued since the entry of the Final
Judgment of Foreclosure.
5. The initial foreclosure sale of the Poitier Property was set for September 1, 2010,
and just two weeks before the scheduled sale, on August 17, 2010, Poitier filed a Chapter 13
Voluntary Petition under case no. 10-34158-AJC.
6. Lushan asserted that Poirier's Chapter 13 Petition constituted a "bad faith filing"
and was granted stay relief on an emergency basis on August 31, 2010, but the foreclosure sale
could not be reinstated in time. Meanwhile, Poitier never filed any Schedules, Plans, Statements
of Financial Affairs or Monthly Income, or any other required documents to support his Chapter
13 Petition, and that case was accordingly dismissed with prejudice on October 15, 2010.
7. The foreclosure sale of the Poitier Property was rescheduled for October 22, 2010.
And that morning-on October 22, 2010-Poitier Funeral Home filed a Chapter 7 Voluntary
Petition [ECF No. 1] and caused the foreclosure sale to be cancelled once again.
8. To be clear, Debtor currently has no claim or interest in the Poitier Property as
any claim or interest in Debtor's capacity as a tenant has been foreclosed upon, and it also has no
to is
Case 10-42231-AJC Doc 11 Filed 11/16/10 Page 3 of 22
submitted in an abundance of caution, Lushan believes and asserts in good faith that subject
foreclosure action is not actually stayed under 11 U.S.C. 362 by the commencement of this
case and that Poitier Funeral Home lacks standing to enforce the automatic stay to prevent the
foreclosure sale from proceeding forward.
9. Additionally, Lushan seeks an order of this Court directing that no further
bankruptcy filing by Poitier, Poitier Funeral Homes, or any of their affiliates shall serve to
automatically stay the foreclosure proceeding in Lushan v. Poitier, case no. 09-58930-CA-23.
WHEREFORE, Daniel Lushan respectfuJJy requests that this Court: (1) grant full and
complete relief from the automatic stay pursuant to 11 U.S.C 362, so that Lushan may
prosecute through completion the foreclosure action in Lushan v. Poitier, case no. 09-58930-CA-
23; (2) waive the requirements of Rule 4001(a)(3) of the Federal Rules of Bankruptcy Procedure
and allow the stay relief order to be effective immediately upon the entry of such order; (3) direct
that no further bankruptcy filing by Poitier, Poitier Funeral Homes, or any of their affiliates shall
serve to automatically stay the foreclosure proceeding in Lushan v. Poitier, case no. 09-58930-
CA-23; and (4) grant such further relief as this Court deems just and proper.
Dated: November 16, 2010.
RICE PUGATCH ROBINSON & SCHILLER, P.A.
Attorneys for Daniel Lushan
101 Northeast Third Avenue, Suite 1800
Fort Lauderdale, Florida 33301
Telephone No.: (954) 462-8000
Facsimile No.: (954) 462-4300
By: s/Craig A. Pugatch
CRAIG A. PUGA TCH
Florida Bar No.: 653381
EUNK. CHANG
Florida Bar No.: 58359
J:\WPDocs\4339 Mamann\003 Poi tier Funeral Home, lnc\Pleadings\Motion for Stay Relief.docx
Case 10-42231-AJC Doc 11 Filed 11/16/10 Page 4 of 22
'
$501,000.00 June 16, 2006
Palm Beach County, Florida
PROMISSORY NOTE
FOR VALUE RECEIVED, the undersigned BERNARD C. POITIER, (the
"Maker") promises to pay to DANIEL LUSHAN his successors or assigns (the "Payee''),
in the manner hereinafter specified, the principal sum of FIVE HUNDRED ONE
THOUSAND AND N0/100 DOLLARS, ($501,000.00) with interest from date at the rate
of THIRTEEN percent (13%), per annum, on the balance from time to time remaining
unpaid. The said principal and interest shall be payable in lawful money of the United
States of America at 7532 Valencia Drive, Boca Raton, Florida 33433, or at such
place as may hereafter be designate in written notice from the holder to the Maker
hereof, on the date and in the manner following:
Terms of Payment: One year's interest of $65,130.00 shall be paid in advance
at closing. The balance shall be paid Interest only due and payable in arrears in equal
monthly installments of Five Thousand Four Hundred Twenty-seven and 50/100
($5,427 .50) on the 16th day of the month for 48 consecutive months beginning
7/16/2007 untiiG/16/2011 at which time the entire remaining principal balance and all
accrued and unpaid interest shall be due and payable.
The Maker may pre-pay this Note at any time but if paid during the first year the
lender shall be entitled to retain the prepaid first year's interest ($65,130.00) as a pre-
payment penalty.
Conformity To Usury Laws: It is the intention of the Maker and Payee to
confc;>rm strictly to the usury laws from time to time in force, and the terms of this Note
are hereby expressly so limited. Under no circumstances shall any amount paid,
agreed to be paid, or deemed to have been paid to Payee for the use, forbearance or
detention of money loaned exceed the maximum amount permissible under applicable
usury laws. If any payment exceeds or is deemed to exceed applicable usury laws, then
the payment shall be reduced to the highest rate permitted by the usury laws .. That
portion of any amount received by Payee which would otherwise exceed the highest
rate permitted by the usury laws shall be applied to the reduction of the Debt. If the
excess exceeds the unpaid balance of the Debt, any remaining excess shall be deemed
to have been a payment made by mistake and shall be promptly refunded to Maker.
The terms and provisions of this paragraph shall control and supersede every other
provision of this Note.
EXHIBIT
1
j l
Case 10-42231-AJC Doc 11 Filed 11/16/10 Page 5 of 22
Method Of Payment: Payments shall be made by hand delivery against receipt,
or by postage prepaid mail, to the Payee at the above address or at such other address
as shall be provided to the Maker in writing by the Payee.
VENUE: This Note shall be construed and enforced according to the laws of the
State of Florida . The venue of any action to enforce this Note shall be in the courts of
Dade County, Florida.
If default be made in the payment of any of the sums or interest mentioned
herein or in said Mortgage, or in the performance of any of the agreements contained
herein or in said Mortgage, then the entire principal sum and accrued interest shall, at
the option of the holder, hereto become at once due and collectible without notice, time
being of the essence; and said principal and accrued interest shall both bear interest
from such time until paid at the highest rate allowable under the laws of the State of
Florida. Failure to exercise this option shall not constitute a waiver of the right to
exercise the same in the event of any subsequent default.
COLLATERAL AS SECURITY FOR PAYMENT: As security for the prompt
payment as and when due of the debt (including any renewals, extensions and/or
modifications hereof) and of any other sums due to the Payee from the Maker or any
Guarantor, in addition to an"y other security agreement or document granting the Payee
any rights in any of the property of the Maker or any Guarantor, for the purpose of
securing the Debt and other payments and performances required under this Note and
the Loan Documents, Maker hereby gives to the Payee the following (all of which are
referred to as the "Collateral"), and does hereby represent and warrant that it has title
to the Collateral, that it has authority to provide the following security to Payee, and that
the provision of the following security does not violate any law, regulation, or
agreement:
This Note with interest is secured by a mortgage on real estate, of even date
herewith, made by the Maker hereof in favor of the said Payee all as more fully set forth
in the Mortgage dated even date herewith, given by Maker to Payee, the terms and
conditions of which are incorporated herein in their entirety, as if set forth at length. In
connection with the Mortgage, Maker shall provide to the Payee an Affidavit of Title of
Mortgagor and a policy of Title Insurance insuring the Payee's position as holder of the
first mortgage. Payee shall have the right to inspect this Collateral, upon reasonable
notice, from time to time.
WAIVER OF FORMALITIES: Maker hereby waives the right to require Payee to
demand payment ("Presentment"), the right to require Payee to provide notice of
nonpayment ("Notice of Dishonor") and the right to require Payee to obtain an official
certified statement showing nonpayment ("Protest").
In the event any installment is not paid on or before the due date, an amount
equal to five (5%) percent of the monthly payment shall be due as a late fee.
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Each person liable hereon whether Maker or endorser, hereby waives
presentment protest, notice, notice of protest and notice of dishonor and agree to pay all
costs including a reasonable attorney's fee, whether suit be brought or not, if, after
maturity of this note or default hereunder, or under said mortgage, counsel shall be
employed to collect this note or to protect the security of said mortgage.
Whenever used herein the terms "holder", "maker" and "payee" shall be
construed in the singular or plural as the context may require or admit.
The entire principal balance plus any accrued unpaid interest shall be due and
payable upon the sale or transfer of the subject property.
Maker's Address:
If'S:; --n L-<f, ! j T
c.--yyltri-,. FilA 33161
Phone number:
6./- o9JJ7-
----
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Case 10-42231-AJC Doc 11 Filed 11/16/10 Page 7 of 22
Prepared by:
Stephen A. Schorr, Esquire
RECORD AND RETURN TO
BANKERS TITLE COMPANY
2424 NORTH I&IQE-
800A flATON. FL33431
MORTGAGE
I 11111111111 111111111111111111111111111111111
CFN 2006R0715412
OR Bk 24684 Pss 2240 225ot ( 11P9S)
RECORDED 06/30/2006 15:57:50
MTG DOC TAX 1t753.50
TAX 1t002.00
HARVEY RUVHh CLERK OF COURT
MIAMI -DADE comny, FLORIDA
THIS MORTGAGE, (sometimes referred to as "Security Instrument") is made on
June 16, 2006 by: BERNARD C. POtTIER; (Borrower or Mortgagor), whose address
is: 2321 NW 62nd Street, Miami, Florida 33142; and for consideration paid, is granted
to Daniel Lushan (Lender or Mortgagee), Address: 7532 Valencia Drive, Boca Raton,
Florida 33433, with the mortgage covenants set forth herein to secure the payment of
the principal sum of FIVE HUNDRED ONE THOUSAND DOLLARS and xx/1 00
($501,000.00). This indebtedness is evidenced by Borrower's Promissory Note and/or
Guaranty of even date herewith (herein "Note"), providing for installments at the times,
in the manner and with interest as set forth within said Note. The property encumbered
is legally described as follows:
SEE EXHIBIT "A" 'ATTACHED HERETO AND MADE A PART HEREOF
Together with all the improvements now or hereafter erected on the property, and
all easements, rights, appurtenances, rents, royalties, minerals, oils and gas rights and
profits, water, water rights, and water stock, and all fixtures now or hereafter attached to
the property, all of which, including replacements and additions thereto, shall be
deemed to be and remain a part of the property covered by this Mortgage; and all of the
foregoing, together with said (or the leasehold estate of the Mortgage is on a
leasehold) are herein referred to as the "Property."
Borrower(s) covenants that the Borrower(s) are lawfully seized of the Estate
hereby conveyed and have the right to mortgage, grant and convey the Property, and
that Borrower(s) will warrant and defend generally the title to the Property against all
claims and demands, subject to any declarations, easements or restrictions listed in a
schedule of exceptions to coverage in any title insurance policy insuring Lender's
interest in the Property.
Uniform Covenants. Borrower(s) and Lender covenant and agree as follows:
1. Payment of Principal and Interest. Borrower(s) shall promptly pay when
due the principal of and interest on the indebtedness evidenced by the Note,
prepayment and late charges as provided in the Note, and the principal of and interest
on any future advances secured by this Mortgage.
EXHIBIT
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2. Charges; Liens. Borrower(s) shall pay all taxes, assessments and other
charges, fines and impositions attributable to the Property which may attain a priority
over this Mortgage, and leasehold payments or ground rents, if any, when due.
3. Application of payments. Unless applicable law provides otherwise, all
payments received by the Lender shall be applied first to any prepayment charges due
under the note, if applicable; second, to amounts advanced or paid by the Lender on
behalf of the Borrower; third, to interest; fourth to principal; and fifth to late charges due
under the note.
4. Hazard Insurance. Borrower(s) shall keep the improvements now
existing or hereafter erected on the property insured against loss by fire, flood,
windstorm, hazards included within the term ~ ~ e x t e n d e d coverage" and such other
hazards as Lender may require, provided that Lender shall not require that the amount
of such coverage exceed that amount of coverage required to pay the sums secured by
the Mortgage.
All insurance policies and renewals thereof shall be in form acceptable to Lender
and shall include a standard mortgagee clause (additional insured) in favor of and in
form and amount acceptable to Lender. Lender shall have the right to hold the policies
and renewals thereof, and Borrower(s) shall promptly furnish to Lender all renewal
notices and all receipt of paid premiums. In the event of loss, Borrower(s) shall give
prompt notice to the insurance carrier and Lender. Lender may make proof of loss if not
made promptly by Borrower(s).
Unless Lender and Borrower(s) otherwise agree in writing insurance proceeds
shall be applied to restoration or repair of the Property damaged, provided such
restoration or repair of the Property damaged, provided such restoration or repair is
economically feasible and the security of this Mortgage is not thereby impaired. If such
restoration or repair is not economically feasible or if the security of this Mortgage would
be impaired, the insurance proceeds shall be applied to the sums secured by this
Mortgage, with the excess, if any, paid to Borrower(s). If the Property is abandoned by
Borrower(s), or if Borrower(s) fail to respond to Lender within thirty (30) days from the
date notice is mailed by Lender to Borrower(s) that the insurance carrier offers to settle
a claim for insurance benefits, Lender is authorized to collect and apply the insurance
proceeds at Lender's option either to restoration or repair of the Property or to the sums
secured by this Mortgage.
Unless Lender and Borrower(s) otherwise agree in writing any such application of
proceeds to principal shall not extend or postpone the due date of the monthly
installments referred to in Paragraph 1 hereof or change the amount of such
installments.
5. Taxes and Other Charges. The Borrower(s) shall pay, when due and
payable and before interest or penalties accrue, all taxes, assessments, water and
sewer rents, and other charges or claims that may be assessed, levied, or filed at any
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time against the Borrower(s), against all or any part of the Mortgaged Property, or
against the interest of the Lender in the Mortgaged Property; or that, by any present or
future law, may have priority over the indebtedness secured by this Mortgage either in
lien or in distribution out of the proceeds of any judicial sale. The Borrower(s) shall
produce receipts for payment of these. amounts to the Lender not later than the payment
dates. If the Borrower(s), in good faith and by appropriate legal action, contests the
validity or amount of any item and establishes for payment a reserve, in the amount the
Lender requires and either in the Borrower(s) books or by depositing cash with the
Lender, as the Lender may elect, then the Borrower(s) shall not be required to pay the
item or to produce the required receipts while the reserve is maintained and for so long
as the contest prevents collection is maintained, prosecuted with diligence, and has not
been terminated or discontinued adversely to the Borrower(s). Mortgagor may be
required to establish a monthly escrow payment to cover the anticipated cost of taxes
and insurance.
6. Preservation and Maintenance of Property. Borrower(s) shall keep the
Property in good repair and shall not commit waste or permit impairment or deterioration
of the Property and shall comply with the provisions of any lease if this Mortgage is on a
leasehold.
7. Protection of Lender's Security. If Borrower(s) fail to perform the
covenants and agreements contained in this Mortgage, or if any action or proceeding is
commenced which materially affects Lender's interest in the Property, including, but not
limited to, eminent domain, insolvency, code enforcement, or arrangements or
proceedings involving a bankrupt or decedent, then Lender at Lender's option, upon
notice to Borrower(s), may make such appearances, disburse such sums, and take
such action as is necessary to protect Lender's interest, including, but not limited to,
disbursement of reasonable attorney's fees and entry upon the Property to make
repairs.
Any amounts disbursed by Lender pursuant to this paragraph 7, with interest
thereon, shall become additional indebtedness of Borrower(s) secured by this
Mortgage. Unless Borrower(s) and Lender agree to other terms of payment, such
amounts shall be payable upon notice from Lender to Borrower{s) requesting payment
thereof, and shall bear interest from the date of disbursement at the rate payable from
time to time on outstanding principal under the Note unless payment of interest at such
rate would be contrary to applicable law, in which event such amounts shall bear
interest at the highest rate permissible under applicable law. Nothing contained in this
Paragraph 7 shall require Lender to incur any expense or take any action hereunder.
8. Inspection. Lender may make or cause to be made reasonable entries
upon and inspection of the Property, provided entries upon and inspection of the
Property, provided that Lender shall give Borrower(s) notice prior to any such inspection
specifying reasonable cause ,therefore related to Lender's interest in the Property.
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9. Borrower(s) Not Released. Extension of the time for payment or
modification of amortization of the sums secured by this Mortgage granted by Lender to
Borrower and successor in interest of Borrower(s) shall not operate to release, in any
manner, the liability if the original Borrower(s) and Borrowers' successors in interest.
Lender shall not be required to commence proceedings against such successor or
refuse to extend time for payment or otherwise modify amortization of the sums secured
by this Mortgage by reason of any demand made by the original Borrower(s) and
Borrowers' successors in interest.
10. Forbearance by Lender Not a Waiver. Any forbearance by the Lender
in exercising any right or remedy hereunder, or otherwise afforded by applicable Jaw,
shall not be a waiver of or preclude the exercise of any such right or remedy. The
procurement of insurance or the payment of taxes or other liens or charges by the
Lender shall not be a waiver of Lender's right to accelerate the maturity of the
indebtedness secured by this mortgage.
11. Remedies Cumulative. All remedies provided in this Mortgage are
distinct and cumulative to any other right or remedy under this Mortgage or afforded by
law or equity and may be exercised concurrently, independently or successively.
12. Successors and Assigns Bound; Joint and Several Liability;
Captions. The covenants and agreements herein contained shall bind, and the rights
hereunder shall inure to the respective successors and assigns of the Lender and
Borrower(s). All covenants and agreements of Borrower(s) shall be joint and several.
The captions and headings of the paragraphs of this Mortgage are for convenience only
and are not to be used to interpret or define the provisions hereof.
13. Notice. Except for any notice required under applicable law to be given in
another manner, (a) any notice to Borrower(s) provided for in this Mortgage shall be
given by mailing such notice by certified mail addressed to Borrower(s) at the property
address or such other address as the Borrower(s) may designate by notice to the
Lender as provided herein, and (b) any notice to the Lender shall be given by certified
mail, return receipt requested, to Lender's address stated herein or to such other
address as the Lender may designate to the Borrower(s) as provided herein. Any
notices provided for in this Mortgage shall be deemed to have been given to
Borrower{s) or Lender when given in the manner designated herein.
14. Alienation of Property. In the event that the Property, or any part thereof
is sold, transferred, conveyed, mortgaged, or changes are made in the Trustees or
beneficial ownership of the entity holding title to the Property, or the Property is
otherwise voluntarily encumbered, without the written consent of the Lender, the entire
unpaid balance shall become due and payable at the option of the Lender.
15. Assignment of Rents; Lender in Possession. As additional security
hereunder, Borrower(s) hereby assign(s) to Lender, the rents of the Property, provided
that Borrower(s) shall, prior to default hereunder or abandonment of the Property, have
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the right to coliect and retain such rents as they become due and payable; provided,
however, that Borrower shall hold in trust for Lender from the Rents and all sums
received, sufficient funds to discharge all current sums due under the Note or this
Mortgage.
Upon default hereunder or abandonment of the Property, Lender shall be entitled
to enter upon, take possession of and manage the Property and to collect the rents of
the .Property, including those past due. All rents collected by the Lender shall be first
applied to payment of the costs of management of the Property and collection of rents,
including, but not limited to, reasonable attorney fees and then to the sums secured by
this Mortgage and evidenced by promissory notes stating that said notes are secured by
this Mortgage.
16. Future Advances. For the purposes permitted by applicable law and
upon the request of the Borrower(s), Lender, at Lender's option, prior to the release of
this Mortgage, may make future advances so that the total amount so increased may
equal up to two hundred percent (200%) of the initial indebtedness hereunder with
interest thereon, which advances shall be secured by this Mortgage and evidenced by
promissory notes stating that said notes with such increased amount are secured by
this Mortgage.
17. RELEASE PRICE FOR PARCEL- PARCEL ONE: PCN 30-3115-026-0010
Lots 1, 2, 3, 4, 5, 6, 7 & 8, Less the South 10 feet thereof in Block 1, RESUBDIVISION OF ORANGE
RIDGE PARK, according to the Plat thereof, as recorded in Plat Book 12, Page 18, of the Public Records
of Dade County, Florida.
Borrower acknowledges that in order to induce lender to release the above-
described parcel from the lien of this mortgage, that a pre-payment of principal in the
amount of $100,000.00 will be necessary.
18. THE TERMS OF THE PROMISSORY NOTE SECURED BY THIS
MORTGAGE ARE AS FOLLOWS:
A. PRINCIPAL AMOUNT BORROWED: $501 ,000.00
B. RATE OF INTEREST: 13%
C. PERIOD OF LOAN: FIVE (5) years
D. PERIODIC DUE DATE OF INTEREST: One year in advance at
closing. Balance payable on 16th day of each month beginning 7/16/07.
E. INTEREST ONLY PAYMENT: $5,427.50
F. PRE-PAYMENT PENALTY (first year) $65,130.00
G. PRINCIPAL DUE WITH 48th PAYMENT OF INTEREST ON 6/16/2011
19. Conformity to Usury Laws: Lender shall not be entitled to receive any
payment of interest which exceeds the maximum interest allowable under the laws of
the State of Florida, as such laws may be amended or modified from time to time. If
Lender determines that he has charged or received interest in excess of the amount
allowed by law, Lender shall notify Borrower(s) of that fact, determine the amount of any
overcharge received, together with interest on the overcharge at the maximum lawful
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rate at the time the excess interest was taken, and have said amount deducted from
principal balance.
20. Environmental hazards. The Borrower has an environmental survey of
the Property and is satisfied with the results. Under no circumstances shall .any further
environmental defects, whether or not present and discovered, be a defense to payment
or cause for set off. Borrower's sole remedy shall be against the engineer that
performed the environmental survey.
21. Default: The Lender may take certain actions against the Borrower upon
the occurrence of an Event of Default. The Events of Defaults are as follows:
a. Nonpayment: If any payment of the Debt is not made when due.
b. Breach Of Promise; Cross Defaults: The breach of any promise
made in the Note or in this Mortgage. The terms of the Note are incorporated herein in
their entirety, as if set forth at length. Any Event of Default in this Mortgage is an Event
of Default in the Note. Any Event of Default in the Note is an Event of Default in this
Mortgage.
c. Material Misrepresentation: The making of any promise,
representation, covenant or warranty in this Mortgage or in any document issued by the
Borrower in connection with this Mortgage that was materially false when made or when
funds were advanced hereunder.
d. Change In Ownership Of Property And Of Borrower: Any sale
or transfer or other change in the legal or equitable ownership of the Property. A lease
of the Property in excess of six (6) months will constitute a transfer of ownership of the
Property unless Lender's written consent is obtained. A change of more than fifty (50%)
percent of the ownership of the Borrower (whether such change occurs in one or more
separate transfers or by the issuance of additional shares of stock of the Borrower) will
constitute a change in ownership. A change resulting from the death of Borrower's
shareholders will not be considered a change of ownership.
e. Assignment/Delegation: Any purported assignment of rights or
delegation of duties by the Borrower.
f. Entry Of Judgment; Levy, Etc.: The entry of any judgment
against the Borrower which remains unsatisfied for thirty (30) days, or the issuing of any
attachment, levy or garnishment against any of the Collateral.
g. Dissolution, Merger, Etc.: The dissolution, merger, consolidation,
or reorganization of the Borrower without the express prior written consent of the
Lender. Dissolution includes the loss of the Charter or Certificate of Authority of the
Borrower.
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h. Death, etc. Of key person: The death, incarceration, long-term
disability, or adjudication of incompetency of BERNARD C. PO/TIER.
i. Change In Financial Condition: The occurrence of any
substantial change in the financial condition of the Borrower or Guarantor that, in the
sole judgment of the Lender, is materially adverse.
j. Insolvency: The starting of bankruptcy, receivership or insolvency
proceedings by or against the Borrower.
k. Event Of Default In Other Loans: The occurrence of an Event of
Default by the Borrower or Guarantor in any other loan given by Lender to
Borrower or Guarantor.
I. Violation Of Laws: Violation by the Borrower or Guarantor of any
Federal, state, county or local law, statute, ordinance or case law (including,
without limitation, any violation of environmental laws).
m. Foreclosure: The starting of foreclosure or execution proceedings
by anyone against the Property.
22. Cross-Collateralization. This Mortgage secures all obligations, debts
and liabilities, plus interest thereon, of Grantor to Lender, or any one or more of them,
as well as all claims by Lender against Grantor or any one or more of them, whether
now existing or hereafter arising, related to the purpose of the Note, whether voluntary
or otherwise, whether due or not due, direct or indirect, determined or undetermined,
absolute or contingent, liquidated or unliquidated whether Grantor may be liable
individually or jointly with others, whether obligated as guarantor, surety,
accommodation party or otherwise, and whether recovery upon such amounts may be
or hereafter may become barred by any statute of limitations, and whether the obligation
to repay such amounts may be or hereafter may become otherwise unenforceable and
whether such indebtedness is secured by other mortgages.
23. Lender's Rights Upon Default: Upon the happening of an Event of
Default, and at the Lender's option, the Lender will have all rights and remedies
available at law or at equity, and as provided in any of the Loan Documents, all of which
rights will be cumulative and concurrent, and may be pursued singly, successively or
together, at the sole discretion of the Lender, and may be exercised as often as the
occasion therefore will occur; and the failure to exercise any such right or remedy will in
no event be construed as a waiver or release of such right or remedy. The rights and
remedies available to the Lender include, but are not limited to, the following:
a. Acceleration; Increase In Interest Rate: The Lender may declare the
entire Debt immediately due and payable. As compensation to Lender for the lost
benefit of the use of the money, commencing upon the declaration of acceleration by
the Lender, interest will accrue at the highest rate allowable by law.
7
Case 10-42231-AJC Doc 11 Filed 11/16/10 Page 14 of 22
,,.
'
b. Entry: The Lender may enter and take possession of the Property in a
lawful way.
c. Receiver: The Lender may ask a Court to appoint a receiver of rents of
the Property. The Borrower hereby consents to the appointment of a receiver.
d. Foreclosure: The Lender may start a court action for foreclosure.
Foreclosure is a court ordered sale of the Property. The proceeds of the sale are used
to pay the Debt. The Property may be sold in one or more parcels. The Lender may
sue any tenant of the Property in the foreclosure action. The Lender's failure to do so
does not reduce the Borrower's obligations under the Note and Mortgage.
e. Foreclosing Of Tenants Rights: The Lender, at its option, may
foreclose this Mortgage subject to the rights of any tenants of the Property, and the
failure to make any such tenants parties defendant to the foreclosure proceeding and to
foreclose their rights will not be asserted by the Borrower as a defense to any
proceeding instituted by the Lender to collect any deficiency remaining unpaid after the
foreclosure.
f. Waiver Of Marshalling: The Borrower and any Guarantors waive and
release any right to require the Lender to collect any of the Debt from any particular
under any theory of marshalling of assets or otherwise and specifically
authorize the Lender to apply any Collateral in which the Borrower or any guarantor has
any right, title or interest, against any of the Borrower's or Guarantor's liabilities to the
Lender in any manner that the Lender may determine.
g. Deficiency: The sale of the Property on foreclosure may not bring in
enough money to pay the entire Debt. The Lender may then sue the Borrower under
the Note for the difference. The Lender retains any rights given by law to sue under the
Note before foreclosing under the Mortgage.
h. Collection Of Rents: The Lender, as assignee, hereby, may collect all
rents, issues and profits of the Property, may enter, take possession of, manage and/or
operate the Property.
Witness my hand and seal, this lfe_ day of JUNE, 2006.

BERNARD C. POITIER
Witness (print)
8
Case 10-42231-AJC Doc 11 Filed 11/16/10 Page 15 of 22
STATE OF FLORIDA
COUNTY OF PALM BEACH
I HEREBY CERTIFY that on this day, before, an officer duly authorized in the
state aforesaid and in the County aforesaid to take acknowledgements, personally
appeared BERNARD C. POITIER, personally known to be the person(s) described in or
who provided dtS! 1J&t. (,,Gt\,ffi as identification and who executed the foregoing
instrument and who have acknowledged before me that he executed the same and did
take an oath.
11
-k. WITNESS my hand and official seal in the County and State last aforesaid this
L_\.'_ day of JUNE, 2006. . J,_,vA JJ1, .A_,
My commission expires:
N
9
TORNES B. MOCK
MY COMMlSSION 11 00 50900g
EXPIRES: Jflllllary 23, 2010
Bonded 7l)ru Naaty f'utto Ulldelwritm
Case 10-42231-AJC Doc 11 Filed 11/16/10 Page 16 of 22
,;,_,
'.
EXHIBIT "A"
PARCEL ONE: PCN 30-3115-026-0010
Lots 1, 2, 3, 4, 5, 6, 7 & 8, Less the South 10 feet thereof in Block 1, RESUBDIVISION
OF ORANGE RIDGE PARK, according to the Plat thereof, as recorded in Plat Book 12,
Page 18, of the Public Records of Dade County, Florida.
PARCEL TWO: PCN 303115-035-0070, PCN 30-3115035-0110, PCN 30-3115-035-0100,
PCN 30-3115035-0080 & PCN 303115035-0090
lots 21, 22, 23, 24, 25, 26, 27, 28 & 29 less the North 10 feet thereof in Block 1,
MIDWAY PARK, according to the Plat thereof, as recorded in Plat Book 18, Page 44, of
the Public Records of Dade County, Florida.
PARCEL THREE: PCN 3031150000180
Beginning at the NE corner of the NW quarter of the NE quarter of the SW quarter of
Section 15, Township 53 South, Range 41 East for a point of beginning, thence
running West 52 feet along the North line of said Section 15; thence South to the
North line of ORANGE RIDGE COURT, a subdivision according to the Plat thereof, as
recorded in Plat Book 13, Page 74, of the Public Records of Dade County, Florida;
thence East along the North line of said subdivision of ORANGE RIDGE COURT 52
feet, thence North to the point of beginning. Also begin at a point 52 feet West of
the NE corner of NW quarter of NE quarter of SW quarter of Section 15, Township 53
South, Range 41 East; run West 52 and one-half feet along the North line of said
Section 15; thence South to the North line of ORANGE RIDGE COURT, a subdivision,
according to the Plat thereof, as recorded in Plat Book 13, Page 74, of the Public
Records of Dade County, Florida; thence East along the North line of said subdivision
of ORANGE RIDGE COURT 52 and one-half feet; thence North to the point of
beginning.
LESS
The South 20.00 feet of the North 55.00 feet of the West 79.50 feet of the East 104.50
feet of the NW quarter of the SW quarter of Section 15, Township 53 South, Range
41 East, of the Public Records of Dade County, Florida.
AND
The external area formed by a 15.00 foot radius are concave to the SW tangent to the
South line of the North 55.00 feet of the SW quarter of said Section 15 and tangent to
the West line of the East NW of the NE of the SW
quarter of said Section 15.
-------------- ------------
Case 10-42231-AJC Doc 11 Filed 11/16/10 Page 17 of 22
. '
LESS
OR BK 24684 PG 2250
LAST PAGE
The external area formed by a 25.00 foot radius are concave to the SW tangent to the
South line of the North 35 feet of the SW quarter of said Section 15 and tangent to
the West line of the East 25 feet of the NW quarter of the NE quarter of the SW
quarter of said Section 15.
Case 10-42231-AJC Doc 11 Filed 11/16/10 Page 18 of 22
DANIEL LUSHAN,
Plaintiff,
vs.
BERNARD C. POITIER,
CHARLFS L. HAYWOOD
IN THE CIRCUIT COURT OF THE ELEVENTH
JUDICIAL CIRCUIT IN AND FOR
MIAlvii-DADE COUNTY, FLORIDA
Case No.: 09-58930 CA 23
POITIER FUNERAL HOME, INC. et al
Defendants.
FINAL JUDGMENT AFTER DEFAULT
This action was heard on Plaintif.f1s Motion for Final Judgment after Default and the
Court finds that Plaintiff's attorney, STEPHEN A. SCHORR, has reasonably expended
4.6 hours in representing Plaintiff in this action and that $275.00 is a reasonable hourly
rate for his services and Plaintiff's attorney, TIMOTHY M. HARTLEY, has reasonably
expended 6.0 hours in representing Plaintiff in this action and that $250.00 is a
reasonable hourly rate for his services so
IT IS ADJUDGED that:
1. Plaintiff, DANIEL LUSHAN, is due $501,000.00 as principal, $82,370.41 as
interest to the date of this judgment, $2,224.75 for title search expense, court costs and
other costs, and $2,765.00 for attorney fees, making a total of $683,915.05, that shall bear
interest at the legal rate, for which let execution issue.
2. Plaintiff holds a lien for the total sum superior to any claim or estate of
Defendants, BERNARD C. POITIER, OiARLES L. HAYVVOOD and POITIER
FUNERAL HOME, INC., on the following described property in Miami-Dade County,
Florida:
EXHIBIT
Case 10-42231-AJC Doc 11 Filed 11/16/10 Page 19 of 22
I
1--
PARCEL ONE: PCN 30-3115-026-0010
Lots 1, 2, 3, 4, 5, 6, 7 & 8, Less the South 10 feet thereof in Block 1,
RESUBDIVISION OF ORANGE RIDGE PARK, according to the Plat thereof,
as recorded in Plat book 12, Page 18, of the Public Records of Dade County,
Florida.
PARCEL TWO: PCN 30-3115-035-0070, PCN 30-3115-035-0110, PCN 30-3115-
035-0100, PCN 30-3115-035-0080 & PCN 30-3115-035-0090
Lots 21, 22, 23, 24, 25, 26, 27, 28 & 29 Less the North 10 feet thereof in Block 1,
MIDWAY PARK, according to the Plat thereof, as recorded in Plat Book 18,
Page 44, of the Public Records of Dade County, Florida.
PARCEL THREE: PCN 30-3115-000-0180
Beginning at the NE corner of the NW quarter of the NE quarter of the SW
quarter of Section 15, Township 53 South, Range 41 East for a point of
b e g i n n i n g ~ thence running West 52 feet along the North line of said Section 15:
thence South to the North line of ORANGE RIDGE COURT, a subdivision
according to the Plat thereof, as recorded in Plat Book 13, Page 74, of the Public
Records of Dade County, Florida; thence East along the North line of said
subdivision of ORANGE RIDGE COURT 52 feet, thence North to the point of
beginning. Also begin at a point 52 feet West of the NE corner of NW quarter
of NE quarter of SW quarter of Section 15, Township 53 South, Range 41, East;
run West 52 and one-half feet along the North line of said Section 15; thence
South to the North line of ORANGE RIDGE COURT, a subdivision, according
to the Plat thereof, as recorded in Plat Book 13, Page 74, of the Public Records
of Dade County, Florida; thence East along the North line of said subdivision
of ORANGE RIDGE COURT 52 and one-half feet; thence North to the point of
Beginning.
LESS
The South 20.00 feet of the North 55.00 feet of the West 79.50 feet of the East
104.50 feet of the NW quarter of the SW quarter of Section 15, Township 53
South, Range 41 East, of the Public Records of Dade County, Florida.
AND
The external area formed by a 15.00 foot radius are concave to the SW tangent
to the -South line- of the North 55.-oO feet of the SW quarter of said Section 15
and tangent to the West line of the East 25.00 feet of the NW quarter of the NE
quarter- of tlie Sw quarter of said.- sedioii 15. - - - .
The external area formed by a 25.00 foot radius are concave to the SW tangent
to the South line of the North 35 feet of the SW of 15
Case 10-42231-AJC Doc 11 Filed 11/16/10 Page 20 of 22
tangent to the West line of the East 25 feet of the NW quarter of the NE quarter
of the SW quarter of said Section 15.
3. If the total sum with interest at the rate prescribed in paragraph 1, except no
interest shall accrue on the interest specified in paragraph 1, and all costs accruing
subsequent to this judgment are not paid, the clerk of this court shall sell the property at
public sale on Cf-J -I(} , bEM'e8n 9:00 a..tn- <a;B!ih Bi iln., to the highest
bidder for cash, in paragraph 4, in the lobby of the courthouse
located at Street, M:iami, 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 if Plaintiff is not the purchaser of the property at the sale. If
Plaintiff is the purchaser, the clerk shall credit Plaintiff's bid with the total sum with
interest and costs accruing subsequent to this judgment, or such part of it, as is
necessary to fully pay the bid.
5. Plaintiff may direct the clerk to issue the certificate of title prescribed under
Section 45.031 (3), Florida Statutes in the name of a nominee at any time before issuance
of the certificate.
6. 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 Plaintiff's costs; second, documentary
stamps affixed to the certificate; third, plaintiff's attorney fees; fourth, the total sum due
to Plaintiff, less the items paid, plus interest at the rate prescribed in paragraph 1 from
this date to the date of the sale; and shall retain any amount remaining pending the
further order of this court.
7. On filing the certificate of title Defendants and all persons claiming under or
against them, -or any of them, since the filing of the notice of lis pendens shall be
foreclosed-of all estate in or claim to the property and -the purchaser at the sale shall be
let into possession of the property.
8. Jurisdiction of this action is retained to enter further orders as are
including, without limitation, writs of possession and deficiency judgments.
Case 10-42231-AJC Doc 11 Filed 11/16/10 Page 21 of 22
9. IF TillS PROPERTY IS SOLD AT PUBLIC AUCTION, THERE MAY BE
ADDITIONAL MONEY FROM THE SALE AFTER PAYMENT OF PERSONS WHO
ARE ENTITLED TO BE PAID FROM THE SALE PROCEEDS PURSUANT TO THIS
FINAL JUDGMENT.
10. IF YOU ARE A SUBORDINATE LIENHOLDER CLAIMING A RIGHT TO
FUNDS REMAINING AFTER THE SALE, YOU MUST FILE A CLAIM WITH THE
CLERK NO LATER THAN 60 DAYS AFTER THE SALE. IF YOU FAIL TO FILE A
CLAIM, YOU WILL NOT BE ENTITLED TO ANY REMAINING FUNDS.
11. IF YOUARETHE PROPERTY OWNER, YOU MAYCLAIM THESE
FUNDS YOURSELF. YOU ARE NOT REQUIRED TO HAVE A LAWYER OR ANY
OTIIER REPRESENTATION AND YOU DO NOT HAVE TO ASSIGN YOUR RIGHTS
TO ANYONE ELSE IN ORDER FOR YOU TO CLAIM ANY MONEY TO WHICH YOU
ARE ENTITLEJ:?. PLEASE CHECK WITH THE CLERK OF THE COURT, 140 W.
FLAGLER STREET, ROOM 908, MIAMI FLORIDA, FLORIDA (TELEPHONE: (305) 375-
5943), WITHIN TEN (10) DAYS AFTER THE SALE TO SEE IF THERE IS ADDITIONAL
MONEY FROM THE FORECLOSURE SALE THAT THE CLERK HAS IN THE
REGISTRY OF THE COURT.
12 IF YOU DECIDE TO SELL YOUR HOME OR HIRE SOMEONE TO HELP
YOU CLAIM THE ADDITIONAL MONEY, YOU SHOULD READ VERY CAREFULLY
ALL PAPERS YOU ARE REQUIRED TO SIGN, ASK SOMEONE ELSE, PREFERABLY
AN ATTORNEY WHO IS NOT RELATED TO THE PERSON OFFERING TO HELP

THAT YOU ARE NOT TRANSFERRING YOUR PROPERTY OR THE EQUITY IN
YOUR PROPERTY WITHOUT THE PROPER INFORMATION. IF YOU CANNOT
... AFFORD. TO PAY AN ATTORNEY, YOU MAY CONTACTLEGAL AID SOCIETY of
_ the Dade CoYnty Bar Association, 123 NW. 1st Street, #214, .Miami, Florida 33137;
Telephone (305) 371-2220; TO SEE IF YOU QUALIFY FINANCIALLY FOR THEIR
SERVICES. IF THEY CANNOT ASSIST YOU, THEY MAY BE ABLE TO REFER YOU
TO A LOCAL BAR REFERRAL AGENCY OR SUGGEST OTHER OPTIONS. IF YOU
Case 10-42231-AJC Doc 11 Filed 11/16/10 Page 22 of 22
CHOOSE TO CONTACT LEGAL AID SOCIETY FOR ASSISTANCE, YOU SHOULD
DO SO AS SOON AS POSSIBLE AFTER RECEIPT OF THIS NOTICE.
ORDERED at Miami-Dade County, Florida on April __ 2010.

Copies to: Timothy M, Hartley, Esq.
Stephen A. Schorr, Esq.
Bernard C. Poitier
Charles L. Haywood
Poitier Funeral Home, Inc.
CONFORMED COPV
JUN 17 2010