9708

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IN THE CIRCUIT COURT OF THE 15TH CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
CASE NO. 50 2008 CA 040969XXXX MB

THE BANK OF NEW YORK TRUST

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COMPANY, N.A., AS TRUSTEE FOR
CHASEFLEX TRUST SERIES 2007-3,

Plaintiff,
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-vs-
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DAVID J. MOSQUERA; ELIZABETH
MOSQUERA; ANY AND ALL UNKNOWN
PARTIES CLAIMING Y, THROUGH,
UNDER, AND AGAINST THE HEREIN
NAMED INDIVIDUAL DEFENDANT(S)
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WHO ARE NOT KNOWN TO BE DEA OR
ALIVE WHETHER SAID UNKNOWN
PARTIES MAY CLAIM AN INTEREST
AS SPOUSES, HEIRS, DEVISEES,
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GRANTEES, OR OTHER CLAIMANTS;
JP MORGAN CHASE BANK, N.A.;
POSTLEY VILLAGE HOMEOWNERS
ASSOCIATION, INC,; OLYMPIA
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MASTER ASSOCIATION, INC.,

TENANT #1, TENANT #2, TENANT
#3, and TENANT #4 the names
being fictitious to account for
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parties in possession,
Defendants.
____________________________________/

HEARING BEFORE THE HONORABLE HOWARD H. HARRISON, JR.

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Tuesday, June 29, 2010

Palm Beach County Courthouse 6J
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West Palm Beach, Florida

3:20 p.m. - 3:01 p.m.
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 Reported By:
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DAWN S. McCONNELL, Court Reporter
Notary Public, State of Florida
Consor & Associates Reporting and Transcription
APPEARANCES:
On behalf of the Plaintiff:
JONATHAN C. CHANE, ESQ.
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Greenberg Traurig, P.A.
777 South Flagler Drive - Suite 300 East
West Palm Beach, FL 33401
On behalf of the Defendant:
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DUSTIN ZACKS, ESQ.
Ice Legal, P.A.
1015 N. State Road 7 - Suite D
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Royal Palm Beach, FL, 33411
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THE COURT: Good afternoon.

MR. CHANE: Jonathan Chane, I represent the
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plaintiff of the Bank of New York versus David

Mosquera. We're here on our motion for summary
judgement.
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THE COURT: Okay.

MR. ZACKS: And, Judge, if I may, Dustin
Zacks on behalf of David Mosquera. This is a
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 cross notice for our motion for summary judgment,
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if I can hand you that.
THE COURT: Okay. You're representing?
MR. ZACKS: I represent the homeowners
David and Elizabeth Mosquera who are in the
courtroom today. Again, we did cross notice that.
THE COURT: Are you folks here?
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MS. MOSQUERA: Yes.
THE COURT: Did you want to come up?
MS. MOSQUERA: Sure.
MR. JOHNSON: This my four-corner
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checklist. I'll send a copy up of the summary
judgement, Your Honor.
THE COURT: Mr. And Mrs. Mosquera?
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MS. MOSQUERA: Yes.
THE COURT: Yeah, hi. Did you want to be
heard on these motions for summary judgment?
MR. ZACKS: I'll be representing them.
THE COURT: I'm sorry. I thought you were
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representing the homeowners. I'm sorry. I put an
A on the homeowners association. All right. I'm
with you now.
MR. ZACKS: Okay. So, Judge, the
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reasons --
THE COURT: There's two mortgages, is that
it?
MR. CHANE: Well, Judge, there's two --
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THE COURT: There's like a line of credit

or something that went along with it.
MR. CHANE: No, Your Honor. There's
actually two cases. There is a -- first there's a
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mortgage with Bank of New York, a million dollar

note. And then there's a second Mosquera matter
that's being foreclosed and also set for summary
judgement at 2:50 this afternoon.
THE COURT: What's being heard now?
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MR. CHANE: The Bank of New York.

THE COURT: Okay.
MR. CHANE: Your Honor, if you need a copy
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of my motion for summary judgement, I have a copy.

THE COURT: No, that's okay. Your defense
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 to this is?
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MR. ZACKS: Yes, Judge, and I've handed you
our motion for summary judgement, because I think
that procedurally it might be, I guess, quicker if
we go through that one first --
THE COURT: Okay.
MR. ZACKS: -- because if, Your Honor,
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wants to rule for us on that issue, we will
dispense on the needs to rule on --
MR. CHANE: Your Honor, my motion was
noticed first based on the cross notice of their
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motion on top of mine. I think procedurally we're
entitled to go first. This is our motion. It was
first noticed prior to the defendant's motion.
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And frankly, Judge, I think you're going to find
that there's simply no real defenses here to the
foreclosure action. And we can deal subsequently
with their motion for summary judgment once we're
completed.
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MR. ZACKS: Judge, may I respond to that.
Your Honor, I would simply say our motion
summary judgement is quite a bit less apprehensive
than their motion for summary judgement I think
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would be appropriate --
THE COURT: We'll take you first.
MR. ZACKS: Okay. I have handed it to you.
You have a copy.
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THE COURT: Oh, yes you did.

MR. ZACKS: And, Judge, the basis for our
motion today is that at the time plaintiff filed
this complaint, they were not the mortgagee. And
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what I mean by that is -- again, going through our

motion, they signed the mortgage was executed on
December 30th, but the case was filed prior to
that. There was an assignment of the mortgage.
So what you have here is faced with even though
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the language of the assignment of the mortgage

alleges a prior transfer, what we would argue
today is that based on all of the facts before
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Your Honor, there is no evidence that that prior

transfer occurred.
And just a couple of things to hand you
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 real quick. First is their response to request
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for admissions. We submitted discover --
MR. CHANE: Your Honor, object. They have
not produced any of these documents two days ahead
of hearing as the Rule requires. The only thing
they've provided to us that they're relying on at
this hearing on the motion for summary judgement
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is an affidavit that they filed and served on
Thursday. They are required by rule, Rule 1.510
to provide any evidence that they're relying upon
at summary judgement two business days delivered
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ahead of the hearing. They haven't delivered any
of that information to me Your Honor ahead of the
hearing.
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MR. ZACKS: Judge, I would simply say that
number 1 the assignment of the mortgage was filed
by plaintiff. The responses to the discovery are
in the court file, as well as the request to
produce.
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MR. CHANE: Your Honor that's irrelevant.
The Rule is clear, 1.510 states the adverse party
shall identify by notice and mailed to the
movements attorney at least five days prior to the
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hearing, or delivered no later than two business
days prior to the date of the hearing any summary
judgment evidence upon which he relies. Judge,
this hasn't been provided to my ahead of the
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hearing. At no time did they ever indicate they

were relying upon these documents ahead of the
hearing, which is why, Judge, my motion for
summary judgement needs to go first. This is a
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straightforward foreclosure action that I think

Your Honor can dispose of quickly. There is
simply no defense that's been provided to the
Court to the foreclosure action, which was the
first filed action. There's is simply
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piggybacking on my motion, was which noticed

months ago. And I think Your Honor can see that
it's a straight foreclosure action and I would ask
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that it be heard. And Your Honor they haven't

provided any defenses to that motion. This is
what they're simply trying to do is jump ahead and
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 argue they did plead some defenses when, in fact,
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they did not.
THE COURT: Was there answers filed?
MR. CHANE: To the motion for summary
judgement, no, there was not.
THE COURT: How about to the complaint?
MR. ZACKS: Yes, Judge.
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MR. CHANE: There was an answer to the
complete, yes, that's correct.
MR. ZACKS: And, again, to respond to the
allegations that we didn't provide anything, it's
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very clear on our motion that we are relying on
the assignment of the mortgage, and this admission
which, again, should be in the Court file, Judge.
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It's not prejudice to the plaintiff on this issue
and there's case law to the effect.
MR. CHANE: And Your Honor request for
admissions are not evidence that can be used at
summary judgement. That is the whole point of
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them having to provide this information to me
ahead of the hearing. A request for admissions is
not evidence. It's not an affidavit. It's not
testimony. It's not a deposition. It's not
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evidence that can be relied upon here Your Honor.
And once again, Judge, I would ask my
motion for summary judgment was first filed and it
should be heard first. And it's straightforward,
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Judge. There's simply no -- there's simply no

evidence in opposition to the motion for summary
judgment. If they want to hear their motion for
summary judgement after mine, Your Honor, that's
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fine. But mine should be heard first and then we

can determine if there's any basis to go forward
on their motion for summary judgment. So it
doesn't change the fact that mine was filed first.
THE COURT: Okay. All right. Anything
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else --
MR. ZACKS: On our motion -- going on our
motion to dismiss here, -- again, which was
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clearly relied on in our motion, which was this

response, the request for admissions. And to
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 direct your attention to Number 1, which was
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admitted to and this is clearly referred to in our
motion. What we asked is on Number 1, admit that
the plaintiffs held legal title until that
assignment was executed on December 30th. And
Judge that was admitted. So at this point that's
the only evidence before you today. There's been
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no counter affidavit to our motion for summary
judgement.
MR. CHANE: Your Honor, there's no
affidavit.
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THE COURT: Let him finish.
MR. ZACKS: Judge, again, clearly they're
relied upon clearly in our motion that Number 1,
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on the face of the assignment it's clearly
executed after the filing of the complaint.
There's been no evidence to the contrary. And
that admission, you know, we believe is fatal.
And to the extent that Your Honor wants to I
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suppose give them the benefit of the doubt that
even though they've admitted that the assignor
held legal title to the mortgage, until that
assignment was executed there is case law to the
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effect that we are entitled to an evidentiary
hearing on the issue of whether they obtained
rights to that mortgage, prior to the case being
filed.
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And today, again, on our motion for summary

judgment, there's been no counter affidavits
filed. There's been no counter evidence filed
that would show anything that they obtained this
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mortgage prior to the filing of this complaint.

Therefore, they didn't have standing when they
filed the complaint. We need to re-file this
case, Your Honor.
THE COURT: The defendant's motion for
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summary judgement is denied. Go with the

plaintiff.
MR. CHANE: Thank you. Your Honor, as I
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said earlier, Jonathan Chane, Greenberg Traurig.

I represent the plaintiff's in this matter. This
is a straightforward mortgage foreclosure, Judge.
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 The claims are undisputed that the plaintiffs are
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in default of this note. They have not paid on
this note, which is a million dollar note in
several years. Judge, we filed our motion, we
filed an affidavit in support of the motion for
summary judgment. The original note and mortgage
was filed in the court record on April 13, 2009.
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There have been no opposition to the motion to the
summary judgement filed.
The only evidence, if you will call it
that, that was filed in opposition to the motion
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for summary judgment, was an affidavit by an
attorney by the name of -- pardon me if I butcher
the name, Lynn Semoniak, which was filed on
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Thursday of this past week. And, Your Honor, that
is simply the only affidavit or anything that was
filed in opposition to the motion for summary
judgment.
Now, address specifically Ms. Semoniak's
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affidavit, which I don't think is admissible and I
move to strike her affidavit on a variety of
different reasons. But based upon the plain
language of the note and mortgage and the
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originals which were filed in the Court, and the
lack of any opposition filed by the defendant's in
this action, summary judgment has to be granted.
There's simply been nothing presented which would
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counter the affidavit of my client or the evidence

in the record that was attached to the motion for
summary judgment.
Now, I can -- to extent that Your Honor has
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any specific questions or issues with the motion

for summary judgment, I can certainly address
them. But to date, there's been nothing filed
by -- there's been no deposition, no affidavit
other than Ms. Semoniak that have been filed,
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which I'm ore tenuis move to strike and there's

simply no record evidence in opposition to the
motion for summary judgment. And I would ask the
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Court grant summary judgment as to the plaintiff's

complaint.
Now, Your Honor, there are some affirmative
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 defenses that were pled in the complaint, none of
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which have been supported by any evidence
whatsoever. They are simply legal conclusion that
simply do not admit and then avoid plaintiff's
cause of action and they're simply unsustainable
as a matter of law.
Now, I would ask Your Honor to enter
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summary judgment as to plaintiff's complaint based
on the affidavit of Tom Reardon, which is attached
to this motion for summary judgment. Based on my
affidavit attached to the motion for summary
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judgement. And the fact that there's simply, as a
said before, no evidence in opposition to the
motion for summary judgment.
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And Your Honor just briefly I don't know if
you have a copy of the affidavit that was
purportedly filed.
THE COURT: No, I don't.
MR. CHANE: I have a copy of it, Your
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Honor.
THE COURT: It wouldn't be in the file
court file yet.
MR. ZACKS: Judge, I have it. You have the
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affidavit.
MR. CHANE: Your Honor, this is an --
plaintiffs -- or what defendants purport to call
an expert affidavit. And what you will see in
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this affidavit that Ms. Semoniak is offering her

expert opinion, that based upon her review of
hundreds and thousands of the other assignments in
other cases unrelated to the instant matter, that
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based on upon her review of those affidavits and

her review solely of the assignment in this
action, that it's fraudulent. And, Your Honor, I
would submit that that is first of all not an
appropriate basis for expert testimony. And,
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again, I repeat that I would move to strike this

affidavit. But there are tests that are
appropriate for the admission of expert testimony.
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And none of which have been -- have been met Your

Honor. And I can go to that Judge, but I think
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 what's more important here is the substance of
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what she's testifying to is essentially propensity
evidence, which is barred by the Florida Rules of
Evidence, specifically Section 90-4042A, which
states that similar fact evidence of other crimes,
wrongs or acts is inadmissible when the evidence
is really relevant, solely to proof bad character
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or propensity. Now, there was just served on
Thursday at the end of day. They filed no motion
nothing at all in which to explain the relevance
of Ms. Semoniak's testimony. But what's important
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is Number 1 she only reviews the assignment of the
mortgage. She doesn't review the note. She
doesn't review the mortgage. She doesn't review
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the Pulling and Servicing Agreement, which was
produced to the other side. She simply provides
her expert testimony that based upon all these
other cases out there, this assignment here is
fraudulent as well. And I would submit that
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that's -- that testimony is inadmissible for
purposes of a motion for summary judgment.
Now, that doesn't even get to her
qualifications. While she states that she has
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this background in mortgage foreclosure, doesn't
provide her education, doesn't provide her
certifications, doesn't provide any publications
necessarily that she's written or at least copies
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of publications that she's written. No CV

attached on this, Your Honor. And simply the
statements contained within the affidavit that
we're supposed to rely upon. And coupled with the
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fact that if she simply only relied upon the

assignment of the mortgage in all these other
cases, it's simply unreliable expert opinion that
shouldn't be admissible here today.
Your Honor, I can keep going on this
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particular issue. It seems obvious to me that

this is inadmissible and she's testifying first as
to hearsay and also the prejudice outweighs the
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probative nature of this affidavit. But I can

continue if Your Honor would like as to why this
affidavit is simply inappropriate. But I don't
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 want to be cumulative.
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THE COURT: Let me hear some responses.
MR. ZACKS: Sure, Judge. Can I start with
the other issues in plaintiff's?
THE COURT: Sure.
MR. ZACKS: He made a lot of statements
that there was no other issues in the case.
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THE COURT: Right.
MR. ZACKS: Judge, first of all attached to
their own motion for summary judgment, which he's
pointed you to is the affidavit of Tom Reardon and
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I'm inclined to argue before Your Honor that that
affidavit is deficient. So I do believe --
THE COURT: Who's Tom Reardon?
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MR. ZACKS: Tom Reardon is an employee --
THE COURT: Do you have the affidavit?
MR. CHANE: Your Honor attached to my
motion for summary judgment.
THE COURT: I don't have your motion here.
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MR. CHANE: I have a copy of it right here.
MR. ZACKS: It's Exhibit A to their --
MR. CHANE: May I approach.
THE COURT: It will be in the Court file
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some day.
MR. ZACKS: Now, Judge, the reason I've
handed you the Rule 1.510 that was cited to you
earlier by Mr. Chane, is that Rule 1.510E requires
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that sworn or certified copies of all documents

referred to in an affidavit be attached. They
must be attached. They shall be attached. It
does not say, plaintiff has the option to attach
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it. This is mandatory. What you can see here

that Mr. Reardon has stated, is a bunch of
essentially hearsay. And directly relevant would
be Paragraph 11 where he's, of course, he's trying
to set forth amounts allegedly due and owing.
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When we took the deposition of Mr. Reardon which,

again, was only a week or two ago, so we haven't
had the opportunity to have that deposition
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printed and filed with the Court. But what I can

proffer to the Court is what he said under
deposition --
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 MR. CHANE: Your Honor, I object to this.
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This deposition took place over a week ago. They
had more than enough time to submit the testimony
of Mr. Reardon if it was appropriate here. For
Mr. Zacks to testify as to what he testified to is
simply inappropriate here at a motion for summary
judgment. The Rule is clear that they needed to
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provide any record evidence two business days in
advance in opposition to the motion for summary
judgement and they have not done that. Mr.
Reardon's affidavit is opposed.
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MR. ZACKS: And, Judge, if I may be
permitted to finish.
THE COURT: Overruled. Go ahead.
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MR. ZACKS: Again, in Paragraph 11, what he
purported to state is there's certain amounts due
and owing. Now, he said he got these from certain
records, and the problem is we don't have sworn or
certified copies of anything. We don't have proof
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of where these numbers came from. We, in fact,
have no idea where these numbers came from. It's
hearsay evidence.
The only point I was going to get to which,
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again, on its face the affidavit is deficient
under Rule 1.510E, which mandates that if they're
going to come up with numbers like that, they have
to attach sworn or certified copies of records
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where he's getting the stuff from. But as to the

deposition the only thing I was going to offer is
if they want to overcome this hearsay objection
and this clearly is hearsay, these were records
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produced by other people, Mr. Reardon does met the

qualifications to overcome that hearsay objection.
Based on the fact that he doesn't come in contact
with any of these records until the case is in
litigation. Therefore, he's not a supervisor of
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these records. He's not a custodian of these

records. He can't testify before Your Honor as to
the veracity of these numbers that are contained
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in these records. So what they're telling you is

they're pointing to other records outside of this
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 document purporting to represent the truthfulness
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of those documents. Classic hearsay. It doesn't
purport with Rule 1.510E to deficient affidavit.
Next, Judge, again this is a loan that was
securitized in this Chase Flex Trust. And, again,
we have put out discovery on this issue. And what
we asked for was Number 3 was a certification.
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And when these loans are certified --
MR. CHANCE: Your Honor, I'm going to
object to this again. This was not provided two
days prior to the hearing in violation of
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1.510.51. Judge, this is a classic situation of
ambush at a hearing.
MR. ZACKS: Judge, this is --
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MR. CHANE: They needed to disclose if they
intended to rely upon this, the Rule couldn't be
clearer, Your Honor. It could not be clearer.
MR. ZACKS: Let me finish.
MR. CHANE: And to provide this to us today
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and allege that his is somehow evidence in
contradiction of the affidavit motion for summary
judgement is simply inappropriate. They've had
since March, Your Honor, to file an opposition, to
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file an affidavit. They've taken the deposition
of Mr. Reardon as opposing counsel stated. Your
Honor, and for them to come in now and state that
there's somehow record evidence in opposition is
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simply inappropriate. The Rule is clear. This is

unopposed, Judge, I mean it's classic no
opposition.
THE COURT: You're telling me he's
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unopposed.
MR. CHANE: When I say unopposed, there is
no record evidence in opposition that has been
filed. Nothing.
MR. ZACKS: Judge, if I may, again, on a
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motion for summary judgement you have to take the

evidence most in favor of me. And quite frankly
the reason why I'm raising all these issues and as
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to the Rule 1.510 it doesn't apply when the stuff

is already in the file. They haven't been
prejudice by this and there's case law to that
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 effect.
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MR. CHANE: Where? Judge, there's not a
case on that. That's simply not accurate. This
is been set for several months and the Rule is
clear --
THE COURT: Okay. Without going into
anything else, I'm not about to enter a motion --
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granting a motion for summary judgement based on
an affidavit of Mr. Reardon.
MR. CHANE: Your Honor, there is simply no
-- there's no basis to --
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THE COURT: I'm sorry. It's just -- it
basically just says he looked at some records. I
don't know what he looked at and he plugged some
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numbers in.
MR. CHANE: Your Honor, it's based on his
personal knowledge. That's all he needs to do
according to the Rule.
THE COURT: Well, motion denied.
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MR CHANE: On what basis, Judge?
THE COURT: On the basis that the Court
fears that there are many issues of fact to be
determined. This is not a matter in which
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everything is undisputed.
MR. CHANE: What issues of fact?
THE DEPUTY: Sir, the Judge ruled. The
hearing is over.
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MR. CHANE: I need it for the record.

THE COURT: I just told you I don't feel
the affidavit of Mr. Reardon is sufficient.
MR. CHANE: Your Honor, we have another
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hearing for a motion for summary judgement and

it's similar --
THE COURT: Do you want to continue it?
If you're proceeding on the same affidavit
--
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MR. CHANE: Similar affidavit, Your Honor

--
THE COURT: It's the Court's position that,
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you know, you're going to have to produce the

documents that they're relying upon.
MR. CHANE: Okay.
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 THE COURT: If they're not contested,
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that's fine. But where somebody just basically
says I looked at the records, this is it. That's
not enough for me to agree.
MR. CHANE: I understand, Your Honor.
Thank you.
Your Honor, how would you like to handle
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the second one? I'm happy to --
THE COURT: I'd reschedule so that you can
produce the -- produce the records that he looked
at and you can proof the other things that you
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think Mr. Reardon's testimony at deposition and
we'll get it and then we will get a correct ruling
on the case.
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MR. ZACKS: Thank you. And if I can, just
for the record, we also had our motion for summary
judgement set --
THE COURT: Your motion is denied.
MR. ZACKS: -- and I just wanted to bring
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that to your attention.
THE COURT: I suggest that we do orders on
these.
MR. CHANE: I don't have a blank order.
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THE COURT: You can submit and just run it
by counsel.
MR. CHANE: Just say denying without
prejudice?
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THE COURT: The problem is that we don't

have the file here, so nothing goes in the record.
We have had that come up on some other cases in
front of other judges where orally they were
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granted or denied and there was never any orders

entered.
MR. CHANE: Your Honor, shall I order the
file be brought here or is it actually ever
brought up.
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THE COURT: We just don't bring them up,

you know, there's 2 or 300 of them a day.
MR. CHANE: Should I take anything back.
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THE COURT: I'd like to give you-all of

this back.
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 (The hearing concluded at 3:01 p.m.)
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C E R T I F I C A T E
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I, DAWN S. McCONNELL, Court Reporter, State

of Florida at Large, certify that I was authorized to and
did stenographically report the foregoing proceedings and
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that the transcript is a true and complete record of my
stenographic notes.

Dated this 7th day of July, 2010.

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____________________________
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DAWN S. McCONNELL, Court Reporter
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