1 IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT ______________________________________/ 3 THE COURT: Citimortgage versus Rodriguez. 5 THE COURT: It says Plaintiff's motion for 8 THE COURT: Is the defense motion filed 10 MS. FUNG: Judge, we have the original to 11 be filed today. A copy was provided to 12 opposing counsel I believe yesterday via 13 e-mail. I'm not sure if the Court wants me to 14 file it right now. It's just a motion in 16 THE COURT: That hasn't made the clerk's 17 office yet. Are you here for Defendant? 19 MS. FUNG: I'm here for the Defendant. 20 THE COURT: You're here for the Defendant. 23 MS. FUNG: Did you need a copy of our 25 MS. KLEIN: No. You guys e-mailed it. 1 MS. FUNG: She got a copy. You can keep 3 THE COURT: Okay. Did you want to add to 5 MS. FUNG: No, Judge. I think it's pretty 6 clear. If opposing counsel is going to argue, 7 I'll just reserve the right to rebut. 8 THE COURT: Okay. Do you wish to respond 10 MS. KLEIN: Yes, Your Honor. First, the 11 affidavit in opposition in the memo, an 12 opposition was not properly served according to 13 the Rules of Civil Procedure, Rule 1.510. We 14 received a copy via e-mail late yesterday. It 15 was not even 24 hours notice. Rules of Civil 16 Procedure require a minimum of two days notice, 17 Your Honor. The memo and affidavit should not 18 be considered for today's hearing, Your Honor. 20 MS. FUNG: Yes, Judge. If the Court is 21 inclined to strike the motion in opposition, as 22 well as the affidavit, there's still grounds to 23 deny the motion for summary judgment. First 24 and foremost, the Defendants have asserted the 25 affirmative defense to the Plaintiff, 1 Citimortgage, not the actual holder of the 2 note, which is a question of fact making this 3 motion for summary judgment inappropriate and 5 The note which is actually attached to the 6 complaint was actually issued by ABN AMRO. ABN 7 was I guess merged with Citimortgage. And the 8 only additional documentation that the 9 Plaintiff attached to the complaint was the 10 merger documents. And the merger documents, 11 which I have a copy of the complaint with the 12 merger documents, do not indicate whether or 13 not the assets of ABN, including this note were 14 actually transferred to Citimortgage or if it 17 discovery to the point trying to determine 18 whether or not Citimortgage actually owned the 19 note or the servicing rights. And, Judge, 20 here's a copy of the complaint and the answer 21 and affirmative defenses that show the merger 22 documents and the affirmative defense in which 23 the Defendant alleges that Citimortgage did not 25 And the case law is pretty clear, Judge, 1 that a party -- Rule 1.510, Subsection C, 2 states that a party moving for summary judgment 3 must conclusively show the absence of any 4 genuine issue of material fact and obligate the 5 trial court to draw every reasonable inference 7 At this time, Judge, we would just assert 8 that this is a big question of fact that has 9 not yet been determined, as well as the fact 10 that discovery is still ongoing. The complaint 11 was only filed I believe in July. July 1st, 12 2010. The case is only nine months old. The 13 Defendant has not properly had the opportunity 14 to fully explore the discoverable issues in 15 this matter. And that's another reason, Judge, 16 why we would argue that the motion for summary 17 judgment is inappropriate and untimely. 18 THE COURT: Has the Plaintiff responded to 19 the January 27th request for admissions? 22 interrupt. I don't believe the responses made 23 the docket. But the responses were filed on 25 MS. FUNG: Judge, at this time though we 1 have also requested that the -- on March 29th, 2 which is after the notice of hearing for this 3 motion for summary judgment, we did request the 4 deposition of the person with the most 5 knowledge regarding the affidavit in support 6 for the motion for final judgment, which is a 7 Ms. -- I believe her name is Janet Latisa, who 8 is actually an employee of Citimortgage, not 9 ABN. She actually does not have actual 10 knowledge of the transaction agreement between 11 ABN and the Defendant. Nor does her affidavit 12 attached to the motion for summary judgment 13 address the affirmative defense regarding 14 whether or not Citimortgage assumed the note or 15 if it was transferred. There was never any 16 transfer recorded or assignment recorded 18 MS. KLEIN: Your Honor, may I respond? 21 address each of the instances defense counsel 22 just brought up. Defense counsel alleged that 23 there's a issue of fact. Your Honor, the 24 original note endorsed in blank by the 25 originator of the loan, ABN as referred to by 1 defense counsel was filed with the Court in 2 October. And in Riggs v. Aurora it states that 3 the possession of the original note endorsed in 4 blank was sufficient under Florida's Uniform 5 Commercial Code to establish lawful owner of 6 the note entitled to enforce its term. The 7 fact that it was endorsed in blank made the 8 note payable to the bearer and allowed the note 9 to be negotiated by transfer possession alone. 10 Your Honor, the fact that there was a 11 merger, there is no assignment needed; the note 12 endorsed in blank by ABN. And if there is some 13 kind of problem alleged by defense counsel of 14 the merger, that would be something that 15 Citimortgage, the Plaintiff, would have to deal 16 with ABN, and it would not affect the borrower 17 in this case as it's a third party contract and 18 has nothing to do with this case whatsoever. 19 In addition, the knowledge -- the request 20 for deposition was made after this notice of 21 hearing was sent out. And there is case law, 22 Your Honor, that says that additional discovery 23 that's sent after the notice of hearing was set 24 and coordinated for summary judgment. It was 25 just to thwart summary judgment and should not 1 be used for purposes of stopping summary 3 In addition, defense counsel says there 4 hasn't been time for discovery, Your Honor. 5 Discovery started on or about July 15th, 2010. 6 Defense counsel filed requests for production, 7 interrogatories, both of which were responded 8 to by Plaintiff. Defendant filed additional -- 9 filed motions to compel better interrogatories 10 later that year in November. Also filed 11 requests for admissions that we previously 12 talked about today, Your Honor. There's been 13 time for discovery from the Defendants' 14 appearance in this case through the notice of 15 summary judgment. Discovery was complete as of 16 the date the notice of the hearing went out on 21 MS. FUNG: To determine, Judge, if she 22 actually has any knowledge regarding the 23 transfer of this note from ABN to Citimortgage. 24 Judge, if I may address the issue of I 25 guess the blank endorsement to which opposing 4 actually signed as well as the mortgage in 5 2002. I believe it was November 27th of 2002. 6 The merger occurred I believe in 2007. Let me 7 double-check on that. The merger documents 8 themselves actually do not -- yeah, it occurred 9 in August of 2007. The merger documents 10 actually do not refer to any of the assets of 11 ABN being transferred to Citimortgage. This 12 blank endorsement does not have an actual date 13 as to when it was actually stamped on the note. 14 So there's no way to tell whether or not the 15 blank endorsement was to Citimortgage or 17 We just would again reiterate that it's a 18 factual issue that needs to be determined by 19 the jury, making this motion for summary 20 judgment untimely and inappropriate. 21 THE COURT: Motion for summary judgment is 22 granted. The sale date? Anyone want to be 24 MS. KLEIN: Plaintiff's request 35 days, 2 THE COURT: Can I have a mediation order. 3 Is the client still living in the property? 5 THE COURT: Is the property homesteaded? 6 MS. FUNG: That I'm not sure of either, 9 MS. FUNG: Judge, seeing how I started 10 with this firm a week and a half ago, I can 14 MS. FUNG: Judge, may I ask the reason for 15 the granting of the motion for summary 17 THE COURT: The Circuit Court feels that 18 the merger document clearly shows that any and 19 all assets from ABN were to Plaintiff. 21 THE COURT: Because of the amount here, 22 the Court is setting the sale date for 23 August 15th and ordering the parties to 24 conciliation. This should be a case that you 25 should be able to work out for the amount of 1 money involved here. There's only, what, 6 MS. KLEIN: When do the parties need to 7 have the conciliation by, Your Honor? 11 (Thereupon, the proceedings concluded.) 6 I, TRACY LYN FAZIO, Court Reporter and 7 Notary Public within and for the State of Florida at 8 Large, duly commissioned and qualified, do hereby 9 certify that pursuant to a notice to take said hearing 10 heretofore filed, the examination was reduced to 11 writing under my supervision; and that the transcript 12 is a true record of my stenographic notes. 13 IN WITNESS WHEREOF, I have hereunto set my 14 hand and affixed my official seal this 21st day of


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