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6 Plaintiff,
7 -vs- CASE NO.: 48-2009-CA-007563-O
9 MARLA B. COLLI, a/k/a

12 ____________________________________________________


14 October 1, 2010
9:26 a.m. - 9:40 a.m.
16 Transcript of hearing held before the

17 Honorable Richard F. Conrad, Judge of the

18 Circuit Court, in and for Orange County,

19 Florida, held in Hearing Room 1100.01, Orange
20 County Courthouse, 425 North Orange Avenue,

21 Orlando, Florida, before Christine E. LeRette,

22 Registered Professional Reporter and Notary

23 Public, in and for the State of Florida at
24 Large.

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4 635 North Hyer Avenue
Orlando, Florida 32803
5 (407) 420-9300

6 Representing the Plaintiff.

8 Ice Legal, P.A.
1015 N. State Road 7, Suite D
9 Royal Palm Beach, Florida 33411
(561) 729-0530
Representing the Defendant.

12 Also Present: Marla B. Parada

14 * * *








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1 P R O C E E D I N G S
2 THE COURT: What can I do for you?

3 MR. LAGROW: John Lagrow on behalf of the

4 Plaintiff, Your Honor. This is our Motion for
5 Summary Judgment.

6 MS. LUNDERGAN: Good morning, Your Honor.

7 Amanda Lundergan from Ice Legal on behalf of

8 the Defendant Marla Buchwald.
9 MR. LAGROW: Your Honor, there was an

10 answer filed in this case. Counsel here has

11 handed me a memo in opposition that she just

12 filed today. I guess I object to this as being

13 untimely since it wasn't served five days

14 before the hearing.

15 MS. LUNDERGAN: Your Honor, I'm not

16 providing any new evidence. It's just a memo

17 in opposition. There's no new evidence. We

18 just took the case a couple days ago.

19 THE COURT: Well, I'm not killing the

20 messenger, but you can't walk in the day of the
21 hearing and give somebody a memo and expect him

22 to digest it.

23 So what's -- what is your vehicle for this

24 memo?
25 MS. LUNDERGAN: Your Honor, we have quite

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1 a few issues with this. First of all, I do

2 have to object on the record to counsel's

3 appearance here. He's only a covering

4 attorney; he's not counsel of record.

5 THE COURT: Doesn't need to be.
6 MS. LUNDERGAN: Okay, Your Honor.

7 THE COURT: Next.

8 MS. LUNDERGAN: As to the Motion for

9 Summary Judgment, it is completely deficient.

10 I'll hand you a copy. If you look at it, it is

11 missing Page 2 which is the heart of the Motion

12 for Summary Judgment. There's no list of the

13 legal basis for the motion. There also is no

14 list of the evidence they're relying on.

15 As you can see from the front page, it

16 ends on No. 5. 6 and 7 are missing and then it

17 goes to No. 8. 6 and 7 would be the list of

18 documents that they're intending to rely upon.

19 Since their motion is completely deficient

20 and lacking any basis we would ask that the

21 Motion for Summary Judgment be denied.

22 Our second issue, Your Honor, is with

23 their affidavit. Florida Rule 1.510 (e)

24 requires that affidavits attach documentation,
25 sworn and certified copies of all documents

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1 they're relying on.

2 THE COURT: Well, that's only after a
3 certain period of time, though, right?

4 MS. LUNDERGAN: No, Your Honor.

5 THE COURT: Because the statute became
6 effective on June 3, didn't it?

7 MS. LUNDERGAN: Your Honor, I have a copy

8 of the Florida Rule of Civil Procedure that

9 requires sworn and certified copies to be
10 attached to affidavits in reliance of summary

11 judgment.

12 THE COURT: Oh, I'm sorry; I misunderstood

13 you. I thought you meant verification of --


15 THE COURT: -- the complaint.

16 MS. LUNDERGAN: I'm basically talking

17 about the affidavit of indebtedness, the

18 affidavit of attorneys fees.

19 THE COURT: It's not an affidavit?

20 MS. LUNDERGAN: No, Your Honor, it is an

21 affidavit but the Rule requires that if they're
22 going to cite to records, documents or other

23 exhibits, that has to be attached to the

24 affidavit.
25 The documents cite to files and copies of

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1 documents from the plaintiff's business

2 records, receipts for things such as title

3 searches, payment of property taxes, property

4 inspections, payment of insurance; but the

5 Plaintiff doesn't attach any copies of the

6 receipts, the bills or the business records
7 that it's relying on.

8 Basically these affidavits, Your Honor,

9 are hearsay.

10 THE COURT: They aren't basically; they

11 are.
12 MS. LUNDERGAN: They are hearsay; and as

13 such, the Plaintiff can't rely on those for

14 summary judgment. They should be stricken.

15 The next thing, Your Honor, is on February

16 10, 2010, Plaintiff filed a notice of voluntary

17 dismissal of Count II of the lost note count.

18 The Florida Rules are very clearly there

19 could be no partial voluntary dismissals. It's

20 a dismissal of the entire case or none at all.

21 The Fourth District has held that only an

22 entire action can be voluntarily dismissed.

23 There can be no partial dismissal.

24 Therefore, the notice of filing and the

25 voluntary dismissal of Count II are under legal

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1 nullity. Plaintiff is still bound by its lost

2 note count since it cannot be dismissed.

3 Therefore, there is a conflict between the note
4 that it has filed and now claiming that it has

5 the original and the lost note count which is

6 Count II --
7 THE COURT: Do you have a copy of your

8 motion for me?

9 MS. LUNDERGAN: I do. (Hands document to

10 the Court)
11 Next thing, Your Honor, is Plaintiff has

12 not --

13 THE COURT: Do you spend your whole legal

14 life working this case?

15 MS. LUNDERGAN: I basically worked the

16 last 24 hours on it.

17 THE COURT: Listening to you, you sound

18 like a Corpus Juris Secundum, but go ahead.

19 MS. LUNDERGAN: The Plaintiff has not

20 disproved any of the affirmative defenses

21 raised by the Defendant. Defendant's answer

22 established 28 affirmative defenses.
23 The Plaintiff's Motion for Summary

24 Judgment hasn't addressed any of those

25 affirmative defenses such as filing of the cost

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1 bond, failure to receive condition precedent,
2 the acceleration notice.
3 THE COURT: I'm not sure a cost bond is

4 required. The reason I say that is that banks

5 don't have to do that.

6 MS. LUNDERGAN: Your Honor --

7 THE COURT: You know that. So I don't
8 know about U.S. Bank National Association as

9 Trustee --
10 MS. LUNDERGAN: Your Honor, my

11 understanding of the Rule is that if they are a

12 national association, they have to plead that

13 as an exception to the rule requiring the

14 filing of a cost --

15 THE COURT: Yeah, but my point was that

16 they don't need to post a --

17 MS. LUNDERGAN: Your Honor, but she listed

18 28 affirmative defenses.

19 THE COURT: 28. How can you possibly have

20 28 affirmative?
21 MS. LUNDERGAN: Your Honor, they were

22 raised pro se and while we admit maybe not all

23 of them have merit, the ones that do, receiving

24 the acceleration notice, that was not

25 addressed, failure to propound discovery and

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1 response to discovery, that was not addressed,

2 the lost note count was not addressed, failure
3 to attach the necessary documents was not

4 addressed.
5 The Plaintiff has the burden of defeating
6 all of the Defendant's affirmative defenses and

7 they haven't addressed a single one in their

8 Motion for Summary Judgment.

9 The only other thing --
10 THE COURT: Who has the burden of proof on

11 an affirmative defense?

12 MS. LUNDERGAN: Your Honor, the Defendant

13 has to raise the affirmative defenses but the

14 case law clearly states that in a Motion for

15 Summary Judgment the Plaintiff has the burden

16 of proving that those affirmative defenses --

17 THE COURT: But my question is who has the

18 burden? You have the burden, right?

19 MS. LUNDERGAN: We have the burden of

20 raising them. He has the burden of proving

21 them.
22 THE COURT: Only for a summary judgment

23 you have the burden of proving them.

24 MS. LUNDERGAN: Yes, Your Honor, because

25 the Plaintiff has to defeat those affirmative

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1 defenses in order to go forward with summary

2 judgment.

3 THE COURT: Okay.

4 MS. LUNDERGAN: Your Honor, we have one

5 additional issue --
6 THE COURT: Really fast now. You're using
7 up my ex parte time.

8 MS. LUNDERGAN: That's fine, your Honor.

9 The last one, basically Plaintiff propounded

10 discovery in this case. Plaintiff's counsel

11 requested a motion for extension of time just a

12 few months ago. That discovery has still not

13 been provided.

14 The rules are clear that if there's

15 outstanding discovery, Motion for Summary

16 Judgment is premature and should be denied.

17 THE COURT: Let me tell you Conrad's rule.

18 Conrad's rule is if you have discovery and it's

19 outstanding and you do not seek assistance of

20 the Court on a Motion to Compel or something,

21 that's your responsibility to do that, you

22 didn't do that, that has no merit, that

23 argument has no merit.

24 MS. LUNDERGAN: Your Honor, I understand

25 that. Our client was represented -- basically

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1 represented herself.

2 THE COURT: Well, she has to follow the

3 same rules you do.
4 MS. LUNDERGAN: And I understand that.

5 She did bring that issue up at the Motion to

6 Dismiss and again at the last summary judgment
7 and nothing was done about it.

8 I understand that she didn't file a Motion

9 to Compel but that discovery is essential to

10 our case.
11 THE COURT: Well, I'm disregarding that.

12 That's neither here nor there. Do you have a

13 response?
14 MR. LAGROW: Yeah, Your Honor. The only

15 answer I'm looking at, I'm looking at the

16 amended answer to the complaint filed August 17

17 of '09, and it has one affirmative defense, so

18 I'm not sure where --

19 MS. LUNDERGAN: Your Honor, here's a

20 second amended answer --

21 THE COURT: Did you --

22 MS. LUNDERGAN: -- and I can provide you a
23 copy of it.

24 THE COURT: -- get a leave of Court to

25 file that?

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1 MS. LUNDERGAN: Your Honor, there was a
2 Motion to Dismiss that was denied and the Court
3 directed her to file an answer. She filed an

4 answer in response to that Motion to Dismiss

5 order. It's right here (hands document to Mr.

6 Lagrow).
7 And I have a copy of the order that
8 directed her to file an answer.

9 MR. LAGROW: Do you have some legal

10 background? December 9 of '09.

11 THE COURT: Let me ask you a logical

12 question, ma'am. How long have you been living

13 in your house without making a mortgage

14 payment?

15 MS. PARADA: October of '08.

16 THE COURT: Pretty nice, isn't it? Be

17 rent-free for two years?

18 THE WITNESS: I don't think that's the

19 point.

20 THE COURT: Oh, it's not?

21 MS. PARADA: No, sir.

22 THE COURT: Okay. I'm missing something

23 here?
24 MS. PARADA: Well, I've been studying the

25 securitization of what the banks are doing.

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1 THE COURT: Ma'am, you may find some

2 loopholes, but the fact of the matter is you

3 took out a mortgage and a note and you agreed

4 to pay money and you didn't do it.

5 Now you're trying to say, well, this note

6 is this and this note is that so, I mean, come
7 on. You can put as much Chanel No. 5 on this

8 as you want but the fact of the matter is that

9 you've been living rent-free for two years.

10 MS. LUNDERGAN: Your Honor, with all due

11 respect, the standard for summary judgment is

12 that there's no material fact at issue. There

13 is clearly a material fact --

14 THE COURT: I've already heard that

15 argument. It's his turn.

16 MR. LAGROW: Your Honor, briefly, I think

17 in terms of the lost note count, the voluntary

18 dismissal of the Count II, and I'm not familiar

19 with the rule that she's citing but I think you

20 can always get rid of part of a suit or dismiss

21 a part of a complaint without any issue without

22 having to leave to amend the complaint.

23 THE COURT: You got anything out of the

24 Fifth District on this?

25 MS. LUNDERGAN: This one is -- this one's

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1 out of the Fourth but it is an appellate

2 decision.
3 THE COURT: Well, that's not my point. My
4 point is that you're relying on an out-of-

5 district decision, and my question to you is is

6 there a Fifth District Court of Appeal
7 decision?

8 MS. LUNDERGAN: I'm sure there is, Your

9 Honor. This is a very common and general rule

10 that partial voluntary dismissals are improper.
11 As an appellate decision, my understanding is

12 it's binding on this Court. (Hands document to

13 the Court)
14 MR. LAGROW: I guess my quick response to

15 that, Your Honor, is it doesn't matter. We

16 filed the original note. It's not going to

17 affect our Count I.

18 I mean, if you're inclined, we'll do an

19 ore tenus motion to just vacate that count then

20 and be done with it because it's not going to

21 change the issues dealing with Count I because

22 we have filed the original note and mortgage.
23 It is endorsed in blank.

24 THE COURT: I'm familiar with this but I

25 want to make sure that this case is on point.

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1 Well, there's no such thing as a case on point.
2 Okay, there's too many open things here.
3 The Motion for Summary Judgment is denied.

4 MS. LUNDERGAN: Thank you, Your Honor.

5 THE COURT: Now, I don't expect this case

6 to be sitting around growing whiskers. It's

7 been much too long.
8 You get this thing ready to go to trial;

9 and once you've complied with the rule setting

10 the case for trial, I want this set for trial.

11 MS. LUNDERGAN: Yes, Your Honor.

12 THE COURT: This sitting around going

13 through paper gymnastics has now come to an

14 end; so if you have motions that need to be

15 heard, it is your responsibility to get them

16 set.
17 I don't care whether it's set in front of

18 me or not; doesn't make any difference but

19 they're going to be set; and if the case is not

20 able to resolve itself, then it's going to go

21 to trial and we're going to finish this case.

22 MS. LUNDERGAN: Thank you, Your Honor.

23 THE COURT: That's it.

24 MR. LAGROW: Thank you, Your Honor.

25 (The hearing was concluded at 9:40 a.m.)

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3 I, Christine E. LeRette, Registered Professional

4 Reporter, certify that I was authorized to and did

5 stenographically report the foregoing proceedings at

6 the time and place herein designated; and that the
7 foregoing pages numbered 3 through 15, inclusive, are

8 a true, complete and accurate transcription of my

9 said stenotype notes taken therein.

10 I further certify that I am not of counsel

11 for, related to, or employed by any party hereto or

12 attorney involved herein, nor am I financially

13 interested in the outcome of this action.

14 Witness my hand this 1st day of October

15 2010.



21 Christine E. LeRette



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