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Adam's Initial Brief
Adam's Initial Brief
FLORIDA
for the
FOURTH DISTRICT
Case No.: 4D15-3054
Lower Tribunal Case No.: CACE08-032874
ADAM HOUCHINS,
Appellant,
v.
HSBC BANK USA, N.A. AS TRUSTEE
Appellee.
___________________________________________________
On Appeal from Broward County Circuit Court
Seventeenth Judicial Circuit
____________________________________________________
APPELLANTS’ INITIAL BRIEF
____________________________________________________
Rush Marshall Jones and Kelly, P.A.
Attorneys for Appellant
P.O. 3146
Orlando, FL 32802-3146
By: Andrew W. Houchins, for the firm
Florida Bar No. 59017
Email: ahouchins@rushmarshall.com
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Table of Contents
Table of Contents………………………………………………………….2
Table of Citations………………………………………………………….3
Issues on Appeal
First Issue: Can a court can grant a Final Judgment of Foreclosure
when the court lacks Jurisdiction, where the case had been
dismissed for lack of prosecution and no timely notice of
good cause, motion for new trial or to vacate or appeal had
been filed by Appellee?
Second Issue: Can a court can grant a Final Judgment of Foreclosure
where Appellee lacks standing, fails to prove it had complied
with the notice of default provision and notice of assignment
provision, which are conditions precedent to the filing of a
foreclosure?
Standard of Review………………………………………………………..8
Summary of Argument
I. The trial court erred in granting a Final Judgment of Foreclosure
to Appellee where the court lacked Jurisdiction, where the case
had been dismissed for lack of prosecution and no timely notice of
good cause, motion for new trial or to vacate or appeal had been filed
by Appellee……………………………………………………..8
Conclusion…………………………………………………………………… 25
Certificate of Service………………………………………………………… 25
Certificate of Compliance with Font Requirement………………………….. 27
2
TABLE OF CITATIONS
Balmoral Condominium Ass’n v. Grimaldi, 107 So.3d 1149, 1152 (Fla.3d DC
(2013)………………………………………………………………………….11
Barco v. School Bd. of Pinellas County, 975 So. 2d 1116, 1121 (Fla. 2008)…..8
Correa v. U.S. Bank, N.A., 118 So.3d 952, 954(Fla, 2d DCA 2013)………..8,16
Dixon v. Express Equity Lending Grp., 125 So.2d 965 (Fla. 4th DCA 2013)…..8
Gee v. U.S. Bank Nat. Ass'n, 72 So.3d 211, 214 (Fla. 5th DCA2011)………….18
Hunter v. Aurora Loan Services, LLC, 137 So.3d 570 (Fla. 1st DCA 2014)……24
Holt v. Calchas, 155 So. 3d 499, 507 n.4 (Fla. 4th DCA 2015)…………………16
Jauregui v. Bobb’s Piano Sales & Service, 922 So. 2d 303, 305
(Fla. 3d DCA2006)………………………………………………………………14
Kippy Corp. v. Colburn, 177 So. 2d 193, 199 (Fla. 1965)……………………… 12
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Mazine v. M & I Bank, 67 So.3d 1129 (Fla. 1st DCA 2011)………………..18, 24
McLean v. JP Morgan Chase Bank Nat'l Ass'n, 79 So.3d 170, 173 (Fla. 4th DCA
2012)……………………………………………………………………………..23
Miller v. Fortune Ins. Co., 484 So. 2d 1221, 1223 (Fla. 1986)………………11, 13
Reform Party of Florida v. Black, 885 So. 2d 303, 310 (Fla. 2004)………………8
Shelby Mut. Ins. Co. of Shelby, Ohio v. Pearson, 236 So. 2d 1, 3 (Fla. 1970)..10,12
The lower court action involves a foreclosure filed with respect to property
owned by Appellant. A complaint was filed against Appellant on July 21, 2008.
On December 14, 2010, the lower court issued a notice of lack of prosecution on
the basis that there had been no record activity in the case for ten (10) months.
(R-107). The notice of lack of prosecution put the Plaintiff in the lower court
action (hereinafter “Appellee”) on notice that the action would be dismissed unless
record activity occurred within sixty (60) days of the notice of lack of prosecution,
or unless Appellee showed good cause why the case should not be dismissed. On
February 16, 2011, the court dismissed the action because no record activity had
occurred within sixty (60) days of the notice and Appellee had not shown good
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the showing of good cause was factually incorrect, stating that Appellee had filed
its motion for summary judgment on March 29, 2010 instead of the date it was
actually filed, on March 29, 2011. Since the showing of good cause was factually
incorrect and not true, it could have not constituted “good cause” as a matter of law
since it was in fact erroneous, false and filed after the case had been dismissed on
February 16, 2011 and not before dismissal, as required by the notice. On
April4, 2011, forty-seven (47) days after the action had been dismissed,
an order was entered stating that the Plaintiff had shown good cause why the case
should not be dismissed and that the case should remain active (although there is
no signed original order in the court file, Appellee presented a conformed copy of
the order to the lower court). No activity occurred in the case subsequently
until Appellee filed a motion for substitution of counsel on September 27, 2013.
Appellant objected to the motion to substitute on the basis that the case was
dismissed. A hearing was held on the motion to substitute on November 19, 2013.
At the hearing, the presiding judge took the matter under advisement and
subsequently recused himself from the case. On June 5, 2014, the Court entered
January 6, 2015, Appellant filed a motion for sanctions against Appellee under
Florida Statute 57.105 on the basis that Appellee was pursuing a case which was
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dismissed. (R-164-169). On January 22, 2015, a hearing was held on Appellant’s
motion for sanctions before the Honorable Lynn Rosenthal. At the hearing, Judge
Rosenthal entered an order confirming that the case was dismissed, nunc pro tunc
to February 16, 2011. (R-203). Appellee filed a motion for rehearing on January
28, 2015. (R-206-210). The court granted the motion for rehearing on April 28,
2015 and a rehearing was held on June 23, 2015. (R-216-217). At the rehearing,
Appellant argued that the court no longer had jurisdiction as the case had been
dismissed by a final, and no longer appealable order, and that the court did not
have jurisdiction when it entered the April 4, 2011 order granting Appellee’s
showing of good cause which had been entered by another Judge, Michael Gates.
Despite Appellant’s argument, the court entered an order finding that the February
16, 2011 dismissal had been vacated by the order granting showing of good cause
entered on April 4, 2011 and that the case should remain active. (R-216). The
matter was set for trial on July 31, 2015 before the Honorable Circuit Court Judge
Diana Sobel.
At the trial of the case on July 31, 2015, at the close of Appellee’s case for
grounds (Transcript, Page 56, lines 12-13). The first ground was a lack of standing
(Transcript, Page 56, lines 13-14) due to the fact that Appellee was not in
possession of the original note on the date the foreclosure was filed (Transcript,
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Page 56, lines 14-16). It was also pointed out that Appellees’ attorney was not in
possession of the original note at the time the foreclosure was filed either and that a
lost note count had been added to the complaint (Transcript, Page 56, lines 18-20).
The second ground for involuntary dismissal of the foreclosure case was that
Appellee failed to establish that it had complied with the default notice
Appellant at the address specified by Appellant (Transcript, Page 57, lines 1-12),
or that Appellee complied with paragraph 15 of the mortgage (Transcript, Page 57,
lines 13-19) or with paragraph 20 of the mortgage (Transcript Page 57, lines 20-25,
establish that it had complied with Fla. Stat. 559.715, the assignment of consumer
part of Appellees’ case (Transcript, Page 59, lines 9-16). All three of Appellants’
grounds for involuntary dismissal, lack of standing, failure to comply with the
default notice requirements and failure to comply with the notice of assignment of
consumer debt requirements, are all conditions precedent for which failure to
comply with said provisions are fatal to Appellees’ cause of action for foreclosure.
Despite these failures by Appellee to establish its case, the court entered a Final
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follows.
STANDARD OF REVIEW
This Court’s review is de novo. See Reform Party of Florida v. Black, 885
So. 2d 303, 310 (Fla. 2004) (finding that “to the extent that [a] decision rests on a
question of law, the order is subject to full, or de novo, review on appeal.”); Barco
v. School Bd. of Pinellas County, 975 So. 2d 1116, 1121 (Fla. 2008) (explaining
that “appellate courts apply a de novo standard of review when the construction of
a procedural rule” is at issue). Because the Final Judgment issued from a court
based on a bench trial and Appellant challenges the sufficiency of the evidence to
objection to preserve the asserted error for appeal does not apply. Rule 1.530 (e)
foreclosure actions after bench trial. See Correa v. U.S. Bank, N.A., 118 So.3d 952,
the evidence is properly before this court. We review the sufficiency of the
Equity Lending Grp., 125 So.2d 965 (Fla. 4th DCA 2013).
ARGUMENT—POINT I
where the court lacked Jurisdiction, where the case had been dismissed for lack of
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prosecution and no timely notice of showing of good cause, motion for new trial or
In the case before the court an Order dismissing the case dated February 11,
2011 became final thirty (30) days after entry of the Order, on March 13, 2011,
unless a motion for a new trial under Fla. R. Civ. Pro. 1.530 or a motion to vacate
under Fla. R. Civ. Pro. 1.540 for the five enumerated reasons set forth within the
rule was filed, or the Order was appealed. The docket in this case clearly
establishes that no such motions were filed and no notice of appeal was filed. At
that time the Order dismissing the case for lack of prosecution became final. No
motion to vacate the Order of dismissal was filed within the year since the Order
became final on March 13, 2011. The trial court lost the authority to reconsider its
entry of the final order of dismissal and it became final for all time, subject only to
a timely motion to vacate filed within one year for one of the five reasons
enunciated in Fla. R. Civ. Pro. 1.540. The trial court did not have jurisdiction to
enter the order vacating the dismissal of the order of dismissal for lack of
Further, the trial court improperly vacated the order of dismissal of the case
for lack of prosecution by improperly finding that the Appellee had made a
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showing of “good cause”. Good cause is defined as having two (2) prongs: (1)
some contact with the opposing party and (2) some form of excusable conduct or
occurrence which arose other than through negligence other than to inattention to
pleading deadlines. However, Appellee did not plead and did not show any contact
with the opposing party, because no contact with the opposing party occurred.
Having contact with the opposing party is mandatory: [u]nless a party can satisfy
the exceptions provided for in the rule, it specifically states ‘shall dismiss’ and
there is no discretion on the trial courts part if it is demonstrated to the trial court
that no action toward prosecution has been taken within a year. Havens v.
Chambliss, 906 So.2d 318 (Fla. 4th DCA 2005). Neither prong of the two-prong
test for good cause was met by Appellee. Further, the filing of the showing of good
cause was not timely. Since good cause was not shown, the trial court had no
discretion and the order of dismissal for lack of prosecution should not have been
From an historical view, for over 40 years the Florida Supreme Court has
been unwavering in its view that “[e]xcept as provided by Rules 1.530 and 1.540,
Florida Rules of Civil Procedure, the trial court has no authority to alter, modify or
vacate an order or judgment.” Shelby Mut. Ins. Co. of Shelby, Ohio v. Pearson, 236
So. 2d 1, 3 (Fla. 1970). And the 3d DCA has repeatedly and consistently held that
“once a [final order] becomes final—as where…a motion for rehearing under rule
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1.530 has been denied or no such motion is filed and the ten days for filing same
has expired—the trial court loses jurisdiction to rehear the [final order] on the
merits.” Balmoral Condominium Ass’n v. Grimaldi, 107 So.3d 1149, 1152 (Fla.
3d DCA 2013); accord, Nahoom v. Nahoom, 341 So.2d 257, 259 (Fla. 3d DCA
1977) (explaining that “[i]t is well-established that the trial court loses jurisdiction
of a case with the expiration of the time for filing a motion for rehearing or upon
the disposition of such motion, if filed”). A trial court cannot revisit the merits of
its entry of a final order under any circumstances unless a timely rule 1.530 motion
or 1.540 motion is filed. No such motion was filed in this case. So the trial court
did not have jurisdiction to enter an order vacating its prior order of dismissal. As
merits if no motion for rehearing is filed within 15 days of the entry of a final
vacating the order of dismissal was entered without jurisdiction and is void as a
matter of law. As the Supreme Court of Florida has explained, “[a] trial judge is
but by the sheer finality of the act, whether judgment, decree, order or stipulation
which concludes litigation.” Miller v. Fortune Ins. Co.,484 So.2d 1221,1223 (Fla.
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It has been settled law in Florida for at least 50 years that “a trial court has
no authority to modify, amend or vacate a final order, except in the manner and
within the time provided by rule or statute.” Shelby Mutual Ins. Co. of Shelby,
Ohio v. Pearson, 236 So. 2d 1, 4 (Fla. 1970) (quoting Kippy Corp. v. Colburn, 177
So. 2d 193, 199 (Fla. 1965)). “At common law a trial court had absolute control
over its orders and judgments and could amend, correct, open, or vacate them at
any time during the term at which they were rendered.” Francisco v. Victoria
Marine Shipping, 486 So. 2d 1386, 1388 (Fla. 3d DCA 1986). But that rule was
abrogated by the adoption of the rules of civil procedure, which “provide for two
mechanisms by which a trial court can reconsider and correct its prior decision.”
Id. at 389. One is a timely and authorized Rule 1.530 motion for rehearing, and the
other is a Rule 1.540 motion for relief from judgment. And the law is clear that
“[e]xcept as provided by Rules 1.530 and 1.540, Florida Rules of Civil Procedure,
the trial court has no authority to alter, modify or vacate an order or judgment.”
The Florida Supreme Court succinctly explained the jurisdiction of the Florida trial
courts as follows:
proceeding is terminated, but by the sheer finality of the act, whether judgment,
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decree, order or stipulation, which concludes litigation. Once the litigation is
terminated and the time for appeal has run, that action is concluded for all time.
There is one exception to this absolute finality, and this is rule 1.540, which gives
the court jurisdiction to relieve a party from the act of finality in a narrow range of
circumstances.” Miller v. Fortune Ins. Co., 484 So. 2d 1221, 1223 (Fla. 1986)
(emphasis added).
ARGUMENT—POINT II
As stated previously in Appellants’ initial brief, despite the trial court having
no jurisdiction over this matter for the reasons set forth above, the court
nonetheless set the matter for trial and held a final hearing and bench trial on this
foreclosure case on July 31, 2015, which was held before Judge Diana Sobel. This
was not the judge originally assigned. The case had been previously assigned to
Circuit Court Judge Joel Lasarus. Judge Lasarus recused himself from the case sua
spomte. Thereafter the case was assigned to Circuit Judge Lynn Rosenthal. Judge
Rosenthal entered the Order dismissing the case for lack of prosecution and later
confirmed that the case had been so dismissed. However, Circuit Judge Michael
“showing of good cause”, which, for reasons explained earlier in the Brief, did not
constitute good cause. After Judge Gates entered an Order vacating the dismissal,
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Judge Rosenthal than reversed herself at a further hearing and stated that the Order
of Judge Gates acted to vacate the Order of Dismissal for lack of prosecution and
stated that the case should remain pending. The case was then assigned to Circuit
Judge Diana Sobel. Judge Sobel conducted the trial of the case on July 31, 2015
against Appellant. The judicial assignments can be verified through viewing of the
record. Appellant brings this out only to emphasize that there were a number of
“successor judges” involved in this case resulting in having one judge vacate the
dismissal, resulting in the Judge originally granting the dismissal reversing herself
based upon the other judge vacating the dismissal. The case was then assigned to
another Judge who presided over the trial. This is not proper judicial procedure. As
stated in the case of Groover v. Walker, 88 So. 2d 312, 315 (Fla. 1956) “a
successor judge may not correct errors of law committed by his predecessor and
hence he cannot review and reverse on the merits and on the same facts the final
orders and decrees of his predecessor.” As stated in Jauregui v. Bobb’s Piano Sales
& Service, 922 So. 2d 303, 305 (Fla. 3d DCA 2006), “it is quite obvious that the
successor judge lacked the power or authority to revisit, much less reverse, the
previous decision on the merits”. The power of a trial judge to reverse another
sitting judge of the same court should be limited. This is an additional reason why
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the vacating of the order of dismissal in this case should be reversed and the order
of dismissal reinstated.
Appellee who was not in possession of the original note on the date the foreclosure
was filed, nor was Appellee’s attorney in possession of the note, judging by the
“lost note” count added to the foreclosure complaint. (2) lack of proof of
compliance with the default notice and acceleration provision of the mortgage and
(3) lack of proof of compliance with the notice of assignment provision of the
mortgage. Said defects are all conditions precedent to the filing of a foreclosure
It is well settled that the mortgagee’s failure to prove it had complied with
the mortgage default notice provision required dismissal. In the case of Blum v.
Deutsche Bank Trust Co.,159 So.3d 920(2015), Deutsche Bank failed to prove that
it had complied with the mortgage note’s contractual requirement to mail a notice
of default to Appellant at the “notice address”. For notice purposes, the notice
address is defined as the address of the subject property being foreclosed, unless
another address is specified. In the case at bar, there were at least three (3)
addresses, the property address in Fort Lauderdale, Florida and two (2) California
addresses. There was some testimony at trial that the acceleration letter went to one
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location and other letter notices went elsewhere. It was pointed out by Appellant’s
attorney that compliance with the default notice provision was a condition
precedent to the filing of a foreclosure. It was also pointed out that this was a
action…that arises from the other party’s actions pursuant to this security
instrument or that alleges that the other party has breached any provision of, or any
duty owed by reason of, this security instrument until such Borrower or Lender has
notified the other party or such alleged breach and afforded the other party hereto a
reasonable period after the giving of such notice to take corrective action.”
Deutsche Bank’s failure to comply with the condition precedent to filing suit
requires a dismissal of the case. See Holt v. Calchas, 155 So. 3d 499, 507 n.4 (Fla.
4th DCA 2015) (reversing a dismissal because there was insufficient evidence that
notice of default was sent). It should also be noted that the Final Judgment was
based upon a bench trial. In Lacomb v. Deutsche Bank National Trust, Case No.
1D13-4094 (1st DCA, 2014), because the Final Judgment was based on a bench
trial and Appellants challenge the sufficiency of the evidence to support the
preserve the asserted error for appeal does not apply. Rule 1.530(e) applies to
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after bench trial. See Correa v. U.S. Bank, N.A., 118 So. 3d 952, 954 (Fla. 2d DCA
case at bar, Appellant’s attorney challenged the sufficient of the evidence to prove
Appellee’s standing, and Appellant’s challenge is also properly before this court.
challenge to the sufficiency of the evidence to support the judgment, including the
In the case at bar during the bench trial of the case, Appellant’s attorney challenged
the sufficiency of the evidence to prove Appellee’s standing and whether Appellee
had complied with the default notice requirement, with notice of acceleration, and
Appellee had sufficiently proven that it had met all conditions precedent before
filing the foreclosure complaint. This including questioning the various exhibits
and Appellee’s corporate witness and examining it’s business records exception to
the hearsay rule. Appellee’s evidence was insufficient on the prove of standing,
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“Deutsche Bank alleged in its complaint that it was the owner of the note.
standing to enforce the note and failed to acquire an interest in the note
prior to the filing of the lawsuit. See Mazine v. M & I Bank, 67 So.3d 1129
(Fla. 1st DCA 2011) (party seeking foreclosure must prove it owns and holds
Deutsche Bank's ownership of the note was thus an issue it was required to
prove. Gee v. U.S. Bank Nat. Ass'n, 72 So.3d 211, 214 (Fla. 5th DCA 2011)
(“When [defendant] denied that U.S. Bank had an interest in the Mortgage,
ownership became an issue that U.S. Bank, as the plaintiff, was required to
the note and it’s standing, Appellee’s ownership of the note was an issue it
stated as follows:
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“At trial, as proof of its ownership and standing to enforce the note,
for Select Portfolio Servicing (“SPS”), and five exhibits. Exhibit 1 was a
Limited Power of Attorney under which SPS obtained certain powers from
While exhibit 1 shows that JPMorgan Chase and Deutsche Bank transferred
Exhibit 2 consisted of the note and mortgage. As previously noted, the only
indorsement of the note was from Tower Mortgage to Long Beach Mortgage
from one or more documents. The first page of this exhibit is a title page of
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a Pooling and Servicing Agreement with the phrase “dated as of March 1,
2006” under the title. The parties listed on this page are Long Beach
National Trust Company. The next five pages of the exhibit are signature
this prospectus supplement. It does not contain all of the information that
the terms of the offered certificates, read carefully this entire prospectus
These pages were not authenticated by the witness and their significance
was not explained by Mr. Benefield's testimony or any other evidence. See
LaFrance v. U.S. Bank Nat. Ass'n, 141 So.3d 754, 756 (Fla. 4th DCA 2014)
(reversing summary judgment for Bank due to failure of proof that Bank
Appellant’s case Appellee also failed to prove that it was the owner of the
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Appellee was not in possession of the note at the time it filed its foreclosure
complaint, and neither was Appellee’s attorney, who had added a “lost
note” count to the complaint, showing the attorney was not in possession of
the note either. Continuing its analysis of the sufficiency of the evidence,
pooling and servicing agreement” for proof that Deutsche Bank had
incoherent. Mr. Benefield testified that he did not know why pooling and
service agreements were so entitled, did not know whether Exhibit 3 was a
document, and did not address the meaning of the page which referenced a
decision.” Exhibit 3 fails to support any finding that the Note between
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admitted as Exhibit 3 and the testimony of Mr. Benefield were not
denied ever receiving this letter. Although Mr. Benefield was questioned
Mutual or had any knowledge about the creation of the letter or about
22
“Finally, Deutsche Bank's Exhibit 5 was submitted as a “payment
preparation by SPS for some pages and Washington Mutual Bank for other.
hearsay document into evidence and noted that Mr. Benefield was not a
records custodian for SPS or any of the previous loan servicers. See §§
90.801, 90.803(6), Fla. Stat. The court overruled the objection without
discussion and the document was admitted into evidence. Likewise in the
hearsay documents into evidence and said documents were admitted by the
otherwise proving the plaintiff's status as the holder of the note. McLean v.
JP Morgan Chase Bank Nat'l Ass'n, 79 So.3d 170, 173 (Fla. 4th DCA 2012).
Appellee never established standing to enforce the note at the time of the
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filing of the foreclosure. The note was not even in Appellee’s possession at
the time it filed the complaint. Continuing its analysis, the court stated:
exception to the hearsay rule, see Hunter v. Aurora Loan Services, LLC,
137 So.3d 570 (Fla. 1st DCA 2014), none of Deutsche Bank's exhibits
the note and mortgage at issue as a matter of law. Likewise, the record
Bank, 67 So.3d 1129, 1130 (Fla. 1st DCA 2011). Absent evidence of the
of the evidence to support the judgment. This case is remanded for the
should prevail in this case before the court. The final judgment of
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foreclosure should be reversed due to insufficiency of the evidence to
CONCLUSION
Based upon the record of the case, the facts, the legal arguments and legal
authorities set forth in this brief, Appellant respectfully requests that this
Honorable court enter a mandate reversing the trial court’s order vacating the order
of dismissal for lack of prosecution, reinstating the dismissal and remanding the
___________________
January , 2016
Respectfully Submitted,
CERTIFICATE OF SERVICE
I hereby certify that on this 21st day of July, 2015, I have caused a true and
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District Court of Appeal, and a true and correct copy of the foregoing was sent by
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Counsel for Trust Mortgage
Straley & Otto, P.A.
2699 Stirling Road, Suite C207
Ft. Lauderdale, FL 33312
Email: attorney@straleyottopa.com
kpeters@straleyottopa.com
_______________________________
Andrew W. Houchins
been submitted in Times New Roman 14-point type, a font that is proportionately
spaced and complies with the font requirements of Florida Rules of Appellate
Procedure 9.210(a)(2).
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