HEARING

 

May 14, 2012 1

IN THE CIRCUIT COURT OF THE 6TH JUDICIAL CIRCUIT OF FLORIDA, IN AND FOR PINELLAS COUNTY CASE NO.: 2008-008407-CI DIVISION: 19

CitiMortgage Inc., a foreign corporation, duly incorporated, validly existing, and in good standing in the State of New York, Plaintiff, -vsWilliam Donovan; CitiBank, National Association; Dennis Donovan; Sakeena B. Hazuri; Sherrlyn Henry; Michael T. Irwin; County of Pinellas; State of Florida, Department of Revenue; Unknown Parties in Possession #1; Unknown Parties in Possession #2; If Living, and all Unknown Parties claiming by, through, under and against the above named Defendant(s) who are not known to be dead or alive, whether said Unknown Parties may claim an interest as Spouse, Heirs, Devisees, Grantees, or Other Claimants, Defendant(s). _________________________________/ HEARING BEFORE JUDGE DEMERS (Pages 1-16) MONDAY, MAY 14, 2012 1:30 P.M. - 1:42 P.M.

PINELLAS COUNTY COURTHOUSE 545 1ST AVENUE NORTH ST. PETERSBURG, FLORIDA 33701 --------------------------------------------Reported By: Jennifer Sirois Esquire Deposition Solutions - Tampa Office Phone - 813.221.2535, 800.838.2814 Esquire Job No.: 275735
Toll Free: 800.211.DEPO Facsimile: 813.221.0755 Suite 3350 101 East Kennedy Boulevard Tampa, FL 33602 www.esquiresolutions.com

HEARING
 

May 14, 2012 2

1 2 3 4 5 6 7 8 9 10 11

APPEARANCES: MEGHAN A. KENEFIC, ESQUIRE Shapiro, Fishman & Gache, LLP 4630 Woodland Corporate Boulevard, Suite 100 Tampa, Florida 33614 813.880.8888 Attorney for Plaintiff

MATTHEW D. WEIDNER, ESQUIRE Law Offices of Matthew D. Weidner, P.A. 1229 Central Avenue St. Petersburg, Florida 33705 727.894.3159 Attorney for Defendant

12 13 14 15 16 17 18 19 20 21 22 23 24 25
Toll Free: 800.211.DEPO Facsimile: 813.221.0755 Suite 3350 101 East Kennedy Boulevard Tampa, FL 33602 www.esquiresolutions.com

HEARING
 

May 14, 2012 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Hearing taken before Jennifer Sirois, Court Reporter, in the above cause. - - - - - - - - - THE JUDGE: MR. WEIDNER: Donovan. Go ahead, please. Please the Court, Your

Honor, Matthew Weidner on behalf of William As the court is acutely aware, this Florida Supreme Court passed the rules requiring plaintiffs to verify every complaint. That rule is effected in 2010. The complaint that stands before the Court, the amended complaint, was required to be verified pursuant to the rule. To the extent that opposing counsel may argue to the contrary, I'll present to the Court the case, it's JPMorgan Bank versus Jurney. The cite is 37 Florida Weekly D. May I approach? THE JUDGE: MR. WEIDNER: Yes. So there was an argument

that the plaintiff's side made regarding whether or not the verified complaint rule was in force and in effect during the time period that there was a rehearing pending. I believe it was Shapiro Fishman, in fact,
Toll Free: 800.211.DEPO Facsimile: 813.221.0755 Suite 3350 101 East Kennedy Boulevard Tampa, FL 33602 www.esquiresolutions.com

HEARING
 

May 14, 2012 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

that filed the motion for rehearing before the Florida Supreme Court, and they unfortunately left out a key sentence in their motion for rehearing; and that is they needed to ask for the application or enforcement of the rule to be stayed pending disposition of the rehearing. They did not, and so they can't even credibly make the argument that the enforcement of the supreme court rule should have been stayed during that period. But that's subsequently been definitively answered, there's just no question what the -- residential mortgage foreclosure complaints must have been verified beginning February 2010, period. The complaint before the Court is not verified and so we move under 1.420B to dismiss the complaint for failure to comply with Court's order or rules of the Court. Now, just anticipating an argument my good colleague may make that we may be arguing under one of the enumerated motions to dismiss, but that is why this distinction is important, we're moving
Toll Free: 800.211.DEPO Facsimile: 813.221.0755 Suite 3350 101 East Kennedy Boulevard Tampa, FL 33602 www.esquiresolutions.com

HEARING
 

May 14, 2012 5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

under 1.420B, failure to comply with the rules or order of the Court; and, therefore, our motion to dismiss which is targeted at their complaint is procedurally appropriate. Reserving to respond to my colleague. THE JUDGE: MS. KENEFIC: Response. Your Honor, if I may

approach, the plaintiff and the defendant entered into an agreed order on the first motion to dismiss. 2010. The agreed order was actually entered by the Court on May 6, Nowhere in that agreed order did the defendants require that the plaintiff file a verified complaint in this action, Your Honor, the complaint was actually filed, I believe, in 2008. 2008. Plaintiff and defense counsel entered into that agreed order, the agreed order specifically provides that the plaintiff filed amended complaint within ten days of that agreed order being entered. We actually filed the amended
Toll Free: 800.211.DEPO Facsimile: 813.221.0755 Suite 3350 101 East Kennedy Boulevard Tampa, FL 33602 www.esquiresolutions.com

It was filed in June 6,

HEARING
 

May 14, 2012 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

complaint on May 7, 2010 and the defendant was -- I believe the language in the order "Shall" file an answer and affirmative -or an answer or response to the pleading within ten days of receipt of that amended complaint. Defendant did file an answer and affirmative defenses and nowhere in their answer and affirmative defenses do they raise verification. This motion to dismiss was not raised until 311 days after the plaintiff filed their amended complaint. Plaintiff believes that not only is the motion to dismiss untimely due to the expressed provisions of the agreed order, but plaintiff also believes that the relation to that rule does apply in this case. There was no factual changes made to the complaint other than complying with the provisions of the motion to dismiss. Specifically, there was a capacity argument and plaintiff specifically alleged their capacity in their amended complaint. Therefore, we ask the Court based on
Toll Free: 800.211.DEPO Facsimile: 813.221.0755 Suite 3350 101 East Kennedy Boulevard Tampa, FL 33602 www.esquiresolutions.com

HEARING
 

May 14, 2012 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

equity and the fact that this is a 2008 case and also the fact that plaintiff has filed an affidavit in response to affirmative defenses which introduced into the record not only a copy of the original note endorsed in blank, a copy of the mortgage, but also a copy of the breach letter which specifically provides for the February 1, 2008 default, but also the loan payment history which shows the unpaid principal balance and a copy of the HUD-1 which shows that it's a -- non FHA loan. Therefore, all the allegations made within the complaint are verified by a separate affidavit that's part of the Court record. And, therefore, based on equity, we would ask that the Court deny the defendant's motion to dismiss. THE JUDGE: MR. WEIDNER: Court. Response. Please the Court, Your

Honor, it's a very narrow issue before the That narrow issue is the Florida Supreme Court requires that complaints be verified, be verified as of February 11, 2010.
Toll Free: 800.211.DEPO Facsimile: 813.221.0755 Suite 3350 101 East Kennedy Boulevard Tampa, FL 33602 www.esquiresolutions.com

HEARING
 

May 14, 2012 8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

The complaint that they filed is not verified. It therefore does not comply The motion that we brought, with the expressed rules of the Florida Supreme Court. 1.420B, doesn't have a time requirement. We've directly and specifically challenged the failure to comply with the rules of the Court. The appropriate remedy is to grant our motion to dismiss and then, regrettably, allow the plaintiff the opportunity to amend their complaint to comply with the rules of the supreme court that are -THE JUDGE: Why wasn't this raised before the first motion to dismiss and before you filed an answer to the amended complaint? MR. WEIDNER: Your Honor, it should be noted that this firm filed a petition challenging the enforcement of the Florida Supreme Court's rule and that was pending before the Florida Supreme Court. Part of their argument before the Florida Supreme Court was that they were not required to comply with the verified complaint rule.
Toll Free: 800.211.DEPO Facsimile: 813.221.0755 Suite 3350 101 East Kennedy Boulevard Tampa, FL 33602 www.esquiresolutions.com

HEARING
 

May 14, 2012 9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

It's possible -- I believe in the timeline of this case that perhaps we were waiting for disposition of that supreme court determination before we might have filed that challenge. That determination came in June 2010 when the Florida Supreme Court specifically and expressly stated that the rule requiring verification was effective February 11, 2010. And so, again, there was that gray area there. I made the argument in any motions that they were not entitled to act as if the supreme court's rule was not effective during the rehearing period, because they had not asked for a stay of effectiveness. So under the Rules of Civil Procedure, when they filed their challenge to the enforcement of the rule, the rules were effective during that period of time but that notwithstanding, you know, we had that period here in Florida all across the state the plaintiffs would say, The rule is not effective, we can just ignore it. Again, the supreme court came and explicitly stated that the rule requiring
Toll Free: 800.211.DEPO Facsimile: 813.221.0755 Suite 3350 101 East Kennedy Boulevard Tampa, FL 33602 www.esquiresolutions.com

HEARING
 

May 14, 2012 10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

verification is effective February 2010 and the Second DCA just issued an opinion -sorry, the Fourth DCA just issued an opinion last week which, again -- and I regrettably don't recall off the top of my head -- had to do with whether it's a separate page verification and whether that was effective and applies to the rule. In that opinion, the Court asserted that they could find no requirement that this separate page verification be in firm but they did expressly state that February 2010 is when complaints have to be verified, period. THE JUDGE: When you filed your answer to the amended complaint, was the supreme court rule in effect? MS. KENEFIC: MR. WEIDNER: cannot -THE JUDGE: MS. KENEFIC: THE JUDGE: counsel. MS. KENEFIC: I'm sorry, Judge.
Toll Free: 800.211.DEPO Facsimile: 813.221.0755 Suite 3350 101 East Kennedy Boulevard Tampa, FL 33602 www.esquiresolutions.com

It was, Your Honor. Moreover, however, I It was in effect, yes? It was, Your Honor. I'm talking to defense

HEARING
 

May 14, 2012 11

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

MR. WEIDNER: THE JUDGE:

Yes, Your Honor. You didn't file a motion

to dismiss the amended answer, you just filed an answer; yes? MR. WEIDNER: THE JUDGE: Yes, Your Honor. I'm confused as to how

this -- what caused you to think of this after you had declined to file a motion to dismiss the amended complaint, what happened? I'm missing something here. I know you and I know how thorough you are in your practice and the answer was -- the complaint was amended and you could have filed a motion to dismiss and you didn't. And now, almost as an What happened? My counsel has afterthought, sometime later you come up with a motion to dismiss. MR. WEIDNER: the timeline, Your Honor. Let us look at exactly

showed me to docket here -- and I appreciate that -- the amended complaint was filed May 7, 2010. 2010. Remember, the Florida Supreme Court rule came effective February 2010, that was
Toll Free: 800.211.DEPO Facsimile: 813.221.0755 Suite 3350 101 East Kennedy Boulevard Tampa, FL 33602 www.esquiresolutions.com

We answered May 17,

HEARING
 

May 14, 2012 12

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

the defense argument all across the state. The plaintiff argument -- or counsel here, in fact, Shapiro & Fishman, had filed a challenge to the enforcement of the rule that was pending at the time our answer and affirmative defenses were filed. verify. Now, I suppose we could have/should have made our motion to dismiss then. perhaps in this case, waiting for the resolution of that pleading that they had before the Florida Supreme Court was the appropriate use of judicial resources because I'm not wasting your time, the Court's time, with a motion which you would have deemed improper had the supreme court gone their way. So when the supreme court in June 2010 finally answered the question in our favor, specifically that the complaint they filed had to be verified, it's at that point in time when practically, I suppose, the rule become effective for all application. In fact, removed their
Toll Free: 800.211.DEPO Facsimile: 813.221.0755 Suite 3350 101 East Kennedy Boulevard Tampa, FL 33602 www.esquiresolutions.com

Their

argument was that they were not required to

But

HEARING
 

May 14, 2012 13

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

argument, Hey, we don't have to verify this thing, we've got something pending before the Florida Supreme Court. So I submit to Your Honor that when we challenged the verification, the failure to verify, we were doing so in good faith and properly as opposed to perhaps filing it while their motion for relief from the rule essentially was pending. THE JUDGE: But what you should have done was filed a motion to stay the proceeding if you wanted to, pending the decision of the supreme court. answer filed. We have an Theoretically, and I assume

it hasn't happened in this case, you could have discovery going on, request for production, and then the supreme court rules and all of a sudden up pops another motion to dismiss. I think the appropriate remedy is a motion to stay the proceeding and not this motion to dismiss. MR. WEIDNER: I think you waived it, Your Honor, our intent I'm going to deny the motion. is to amend our answer to affirmative
Toll Free: 800.211.DEPO Facsimile: 813.221.0755 Suite 3350 101 East Kennedy Boulevard Tampa, FL 33602 www.esquiresolutions.com

HEARING
 

May 14, 2012 14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

defenses. THE JUDGE: MR. WEIDNER: THE JUDGE: MS. KENEFIC: What, to allege this -Yes, and others -Objection? Yes, Your Honor. I you want to do that?

prefer that Mr. Weidner actually file a proper motion before the Court. THE JUDGE: his motion. that. Well, I'm going to grant I'm going to allow you to do No more motions to

You're going to have to file it in We're done with the motion to I'll allow you to file a written

writing, however. dismiss. dismiss.

amendment to your answer alleging the verification issue. MR. WEIDNER: THE JUDGE: days to amend. MR. WEIDNER: you so much. MS. KENEFIC: Your Honor, just to be clear, ten days from today's date or ten days from the entry of the order?
Toll Free: 800.211.DEPO Facsimile: 813.221.0755 Suite 3350 101 East Kennedy Boulevard Tampa, FL 33602 www.esquiresolutions.com

Yes, Your Honor. Thank you. And the Ten Thank

plaintiff will please do the order. Yes, Your Honor.

HEARING
 

May 14, 2012 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

THE JUDGE: Let's make it ten days from today's date. (Whereupon the hearing concluded at 1:42 p.m.)

Toll Free: 800.211.DEPO Facsimile: 813.221.0755 Suite 3350 101 East Kennedy Boulevard Tampa, FL 33602 www.esquiresolutions.com

HEARING
 

May 14, 2012 16

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

CERTIFICATE OF REPORTER STATE OF FLORIDA ) COUNTY OF HILLSBOROUGH) I, Jennifer Sirois, certify that I was authorized to and did stenographically report the hearing; and that the foregoing pages are a true and complete record of my stenographic notes taken during said hearing. I further certify that I am not a relative, employee, attorney, or counsel of any of the parties, nor am I a relative or employee of any of the parties' attorneys or counsel connected with the action, nor am I financially interested in the action. Dated this 10th day of June, 2012.

JENNIFER SIROIS Notary Public State of Florida at Large My Commission Number: EE131960 Expires: September 19, 2015

Toll Free: 800.211.DEPO Facsimile: 813.221.0755 Suite 3350 101 East Kennedy Boulevard Tampa, FL 33602 www.esquiresolutions.com