IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT OF FLORIDA, IN AND FOR BROWARD COUNTY, FLORIDA

EVERHOME MORTGAGE COMPANY Case No.: 09-13810 Plaintiff, v. UVO OLOGBORIDE, ET. AL. Defendants. _______________________________/ MOTION TO VACATE DEFAULT COMES NOW, Defendants, UVO AND TUYIM OLOBORIDE, by and through undersigned counsel, and pursuant to the applicable Florida Rules of Civil Procedure, moves this Court for the entry of an Order vacating the Default Judgment, entered in this action on ____, and for referral of this matter to Mediation and as grounds therefore would state as follows: 1. Plaintiff, EVERHOME MORTAGE COMPANY, filed a complaint in this matter on, March 10, 2009, which was served on UVO AND TUYIM OLOBORIDE on March 16, 2009. On insert date here, a default against UVO AND TUYIM OLOBORIDE was entered. 2. Rule 1.500 (d) Fl. R. of Civ. P. provides that a court may set aside a default. 3. Florida courts have repeatedly found that Florida jurisprudence favors liberality in

the area of setting aside defaults in order that parties may have their controversies decided on the merits. Latin American Property Insurance Company v. Italian Palace, Inc., 596 So.2d 1174 (Fla. 4th DCA 1992). And that If there is any reasonable doubt in the matter of vacating a

default, it should be resolved in favor of granting the application and allowing the trial upon the merits. North Shore Hospital, Inc. v. Barber, 143 So. 2d 849 (Fla. 1962).

4. Defaults are to be set aside if it is shown that: a) b) c) excusable neglect lead to the default; a meritorious defense exists; due diligence was used to set aside the default. Latin American, supra.

5.

Furthermore, the Defendants are of Nigerian descent and English is the defendants

second language. Upon the complaint being served, the defendant was unaware what it was saying, their obligations to respond, or of the legal ramifications of not responding to said complaint. Defendant learned that a Hearing had been set on Plaintiffs Motion for Summary Judgment, and retained undersigned counsel on September 17, 2010. The undersigned filed an appearance the same day.
6. In addition to excusable neglect and due diligence, defendants have a meritorious

defense in this matter. Plaintiff does not have proper standing with regards to the mortgage foreclosure complaint that was filed on March 10, 2009. 7. Defendant has attached its proposed Motion to Dismiss as Exhibit A.

8. In summary: Plaintiff has never provided a valid assignment, nor produced any evidence at all that they are the actual holder or owner of the Note and Mortgage. Their foreclosure complaint names EVERHOME MORTGAGE COMPANY, as Plaintiff, yet they attached a copy of a Mortgage and Note executed between the Defendant and RBMG, INC. Defendants have no idea who EVERHOME MORTGAGE COMPANY is. They never signed any promissory note with them, and are entitled to know why this company is suing them. 9. Thus, the documents attached to the Complaint suggest that another party has

standing to bring suit. 10. Furthermore, nowhere in the Complaint does it allege that the above-described

Note and Mortgage were assigned to Plaintiff and an assignment document showing how Plaintiff became the party in interest with standing to bring suit was also not attached to the Complaint as mandated by Rule of Civil Procedure 1.130. 14. This failure to attach document is fatal under Rule 1.130. See Jeff-Ray Corp., v. Jacobsen, 566 So. 2d 885 (Fla. 4th DCA 1990) (Mortgage assignment not attached to the Complaint was fatal defect and required dismissal pursuant to Florida Rule of Civil Procedure 1.130); Winn-Dixie Stores, Inc. v. Sams, 281 So.2d 47 (Fla. 3d DCA 1973) (It is responsibility of plaintiff to provide to court any documents on which alleged cause of action is based under this rule relating to attaching documents to pleading); Samuels v. King Motor Co. of Fort Lauderdale, 782 So.2d 489 (Fla. 4th DCA 2001) (When a party brings an action based upon a

contract and fails to attach a necessary exhibit the opposing party may attack the failure to attach a necessary exhibit through a motion to dismiss). 15. In addition to the meritorious defense that the plaintiff did not maintain proper

standing in order to bring this mortgage foreclosure action, there are a multitude of additional meritorious defenses in this matter including but not limited to the following; a) Failure of contractual condition precedent: No notice of default: Plaintiff

failed to provide Defendants with a Notice of Default and Intent to Accelerate as required by and/or that complies with Paragraph 22 of the subject mortgage. As a result, Defendants have been denied a good faith opportunity, pursuant to the mortgage and the servicing obligations of the Plaintiff, to avoid acceleration and this foreclosure. b) No HUD counseling notice: Plaintiff failed to comply with the

foreclosure prevention loan servicing requirement imposed on Plaintiff pursuant to the National Housing Act, 12 U.S.C. 1701x(c)(5) which requires all private lenders servicing non-federally insured home loans, including the Plaintiff, to advise borrowers, including this separate Defendant, of any home ownership counseling Plaintiff offers together with information about counseling offered by the U.S. Department of Housing and Urban Development. The U.S. Department of Housing and Urban Development has determined that 12 U.S.C. 1701x(c)(5) creates an affirmative legal duty on the part of the Plaintiff. Plaintiffs non-compliance with the laws requirements is an actionable event that makes the filing of this foreclosure premature based on a failure of a statutory condition precedent to foreclosure which denies Plaintiffs ability to carry out this foreclosure. Plaintiff cannot legally pursue foreclosure unless and until Plaintiff demonstrates compliance with 12 U.S.C. 1701x (c)(5). d) Illegal charges added to the balance: Plaintiff has charged and/or collected

payments from Defendants for attorney fees, legal fees, foreclosure costs, late charges, property inspection fees, title search expenses, filing fees, broker price opinions, appraisal fees, and other charges and advances, and predatory lending fees and charges that are not authorized by or in conformity with the terms of the subject note and mortgage or the controlling pooling and servicing agreement which specifies the waiver of late payments and other collection charges as part of the forbearance and loan modification default loan servicing. Plaintiff wrongfully added and continues to unilaterally add these illegal charges to the balance Plaintiff claims is due and owing under the subject note and mortgage applies to the subject.

WHEREFORE, Defendants, UVO AND TUYIM OLOBORIDE, request this Honorable Court to vacate the default for the reasons set forth herein and deem UVO AND TUYIM OLOBORIDEs Motion to Dismiss filed as of the date the Default was vacated and any other relief this Court deems just and proper. MOTION FOR REFERRAL TO MEDIATION 1. This action involves an investment property. 2. The Defendant requests Mediation pursuant to Fla.R.Civ.P. 1.700, Chapter 44 Florida Statutes and applicable Local Rules. 3. Defendant is desirous in keeping the subject property. WHEREFORE, Defendants, UVO AND TUYIM OLOBORIDE, request this honorable Court refer this matter to Mediation and any other relief this Court deems just and proper. Respectfully submitted, Marcy E. Abitz, P.A. Attorney for Defendant 2455 Hollywood Blvd, Ste. 114 Hollywood, FL 33020 Telephone: (954) 453-1148 Facsimile: (954) 453-1129 By: ______________________________ Marcy E. Abitz, ESQ. FBN 618772

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was forwarded via facsimile and U.S. Mail, on this ___ day of September 2010, to Evan Plotka, Esq, 210 N. University Drive, Suite 209, Coral Springs, Florida 33071 (954-334-7795) and Sherine Makar, Esq., 2424 N. Federal Hwy., Suite 360, Boca Raton, Florida 33431 (561-998-6707) Marcy E. Abitz, P.A. Attorney for Defendant 2455 Hollywood Blvd, Ste. 114 Hollywood, FL 33020 Telephone: (954) 453-1148

Facsimile: By:

(954) 453-1129

______________________________ Marcy E. Abitz, ESQ. FBN 618772