Filing # 21784780 Electronically Filed 12/18/2014 04:14:20 PM

IN THE CIRCUIT OF THE FIFTEENTH JUDICIAL CIRCUIT

IN AND FOR PALM BEACH COUNTY, FLORIDA
IBERIA BANK, a Louisiana
state bank

Plaintiff
Case No: 50-2014-CA-012272(MB)

vs.

AUBURN TRACE, LTD, a Florida

limited paiinership, AUBURN
MANAGEMENT, INC, a Florida
corporation, FLORIDA AFFORDABLE
HOUSING, INC., a Florida corporation
AUBURN TRACE JOINT VENTURE, a
Florida joint venture, BRIAN HINNERS,
and individual, THE CITY OF DELRAY
BEACH, a Florida municipal corporation,
US SMALL BUSINESS ADMINISTRATION,
an agency of the United States of America,
YOUTHLAND ACADEMY OF DERLA Y BEACH
, INC, a Florida corporation of UNKNOWN TENANTS
of 576 AUBURN AVENUE, DELRAY BEACH,
PALM BEACH COUNTY, FLORIDA
Defendants

I
KENNETH MACANMEE'S OBJECTION TO SUBPOENA DUCES TUCEM
AND MOTION FOR PROTECTIVE ORDER
COMES NOW, Kenneth MacNamee ("MacNamee") by and through his undersigned counsel
hereby files this Objection to Subpoena Duces Tucem and Motion for Protective Order and as
grounds states as follows:
1.

This case is in regards to a foreclosure of a mortgage by the Plaintiff, Iberia Bank (the
"PlaintifP') in Delray Beach, Florida.

Daniel]. Rose, P.A. - 323 NE 6'" Avenue, Delray Beach, Florida 33483 - (561)266-9056 / (561) 266-9057 facsimile
Page 1 of5

2.

Foreclosures are normally a result of the Defendant's failing to make their mortgage
payments to the Plaintiff.

3.

MacNamee is a resident of the Defendant, The City of Delray Beach ("Delray

Beach") for which said Defendant holds a second mortgage on the Property in

question which is a part of this litigation (the "Second Mortgage")

4.

Under reason of belief, Delray Beach is owed over Four Million ($4,000,000.00)
Dollars by the Defendant Auburn Trace, Ltd. ("Auburn Trace") and their subsidies.

5.

Since the Second Mortgage are tax payer funds of the residents of Delray Beach,
MacNamee as with many other residents have concerns about the Second Mortgage.

6.

In reviewing the history of

this case, it appears on November 3, 2014,

correspondence was e-filed dated October 31 (it's crossed out) from Robe1i
Sweetapple, Esq., stating he was going to represent several of the Defendants,
specifically, Auburn Trace, Ltd., Auburn Management, Inc, Florida Affordable
Housing, Inc., Auburn Trace Joint Venture and Brian Hinners (the "Auburn
Defendants") to which Mr. Sweetapple requested 20 days to respond to the Verified

Complaint (the "Sweetapple Correspondence") (A copy of the Sweetapple

Correspondence is attached as Exhibit A).
7.

As of the date of this Motion, in the 45 days since the Sweetapple Correspondence,
there has been no filing of any Notice of Appearance or response to the Verified
Complaint. Therefore, as a matter of procedure, the Plaintiff could file for a Default
against the Auburn Defendants on a moments notice.
Daniel J. Rose, P.A. - 323 NE 6'" Avenue, Delray Beach, Florida 33483 - (561)266-9056 / (561) 266-9057 facsimile
Page 2 of 5

8.

As a way to attempt to silence, vex, and harass MacNamee, the Defendant's

(presumably the Auburn Defendants due to the fact the attorney Robert Sweetapple
who signed the Subpoena failed to include which party actually was the one who was
serving the Notice) have decided to serve the attached Notice of Taking Deposition
Duces Tucem on Macnamee (the "Subpoena for Deposition") (A copy of the
Subpoena For Deposition is attached as Exhibit B to this Motion)

9.

The Auburn Defendants are asking MacNamee to provide 3 years worth of writings
(including e-mails and internet postings) in regards to Defendant Brian Hinners and
Defendant Auburn Trace, Ltd, and then individuals named "Tom" and "Jessica"
presumably Thomas Hinners and Jessica Hinners ..

10.

Jessica Hinners and Thomas Hinners are not Defendant's in this case. In a corporate
search of the State of Florida, it appears there is a Thomas Hinners whose name
shows up as the Registered Agent for Defendant Florida Affordable Housing, Inc.,
but not as an Officer in any of the Auburn Defendant corporations. In regards to
Jessica Hinners, she is not listed as a Registered Agent or Officer in any corporation
for the Auburn Defendants.

11.

For MacNamee to locate this documentation requested by the Auburn Defendants

(which we don't know exactly which Auburn Defendant's actually made such
unreasonable request)and to copy such documentation it would burdensome and
serves no purpose other than to waste his time and would not lead to any admissible
evidence.

Daniel J. Rose, P.A. - 323 NE 6'" Avenue, Delray Beach, Florida 33483 - (561)266-9056 / (561) 266-9057 facsimile
Page 3 of 5

12.

In circling back to the issue at hand. This litigation deals with a monetary default of
a mortgage and is a foreclosure matter. MacNamee is neither a lender or a borrower
of the said debt as issue, nor is he an officer, director, and/or employee of the
Plaintiff, therefore his deposition serves no bona fide purpose other than a
mechanism of harassment by the Auburn Defendants and their attorneys.

13.

Therefore the Subpoena must be quashed and a Protective Order should be issued for
MacNamee.

14.

As a result of the conduct of the Auburn Defendants and their counsel, MacNamee
has had to pay for the services of an attorney and pay a reasonable fee to quash the
Subpoena for Deposition. Therefore the Auburn Defendant's have succeeded in
causing MacNamee financial harm through the expense of quashing the Subpoena
for Deposition in question and therefore the Auburn Defendants and their counsel
should be responsible for such fees and costs.

15.

Furthermore, since the Auburn Defendants have not even filed a responsive pleading
to the Verified Complaint, there are no grounds to ascertain the taking of a deposition
of a resident of Delray Beach who has nothing to do with this foreclosure matter.

16.

Case law has provided that discovery is not a mechanism to go on a fishing

expedition." See McDonald's Rests. of Fla., Inc. v. Doe., 87 So. 3d 791, 794 (Fla.
2d DCA 2012) (citing Inrecon v. Vill. Homes at Country Walk, 644 So. 2d 103, 105
(Fla. 2d DCA 1994).

Daniel]. Rose, P.A. - 323 NE 6'h Avenue, Delray Beach, Florida 33483 - (561)266-9056 / (561) 266-9057 facsimile
Page 4 of 5

17.

Similarly, "litigants are not entitled to carte blanche discovery of irrelevant

material." Life Care Ctrs. of Am. v. Reese, 948 So. 2d 830, 832 (Fla. 4th
DCA 2007) (quoting Residence Inn by Maniott v. Cecile Resort, Ltd., 822
So. 2d 548, 550 (Fla. 5th DCA 2002).

18.

In this case an e-mail or a posting on social media in regards to concerns about the
debt owed to Delray Beach does not open the door for a Deposition nor would these
documents would provide no defense to the Defendants as to why they chose not to
pay their mortgage.

WHEREFORE, the Plaintiff prays this Honorable Court will strike the Defendant's Notice
of Taking Deposition Duces Tucem and Grant a Protective Order to Kenneth MacNamee, and award
any other remedy this Honorable Court may deem just and proper including attorneys fees and costs.

Respectfully Submitted this l 81h day of December, 2014

CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this Objection was served to the Parties on the
attached e-filing/e-portal list on this 18 1h day of December, 2014

By:
Daniel J. Rose, Esq.
Attorney for the Kenneth MacNamee
323 NE 61h Avenue
Delray Beach, Florida 33483
(561) 266-9056
(561) 266-9057 fax
Email:~==~===

Florida Bar No: 0478385

Daniel}. Rose, P.A. - 323 NE 6'" Avenue, Delray Beach, Florida 33483 - (561)266-9056 / (561) 266-9057 facsimile
Page 5 of 5

IN THE CIRCUIT OF THE FIFTEENTH JUDICIAL CIRCUIT

IN AND FOR PALM BEACH COUNTY, FLORIDA
IBERIA BANK, a Louisiana
state bank
Plaintiff
Case No: 50-2014-CA-012272(MB)

vs.

AUBURN TRACE, LTD, a Florida

limited paiinership, AUBURN
MANAGEMENT, INC, a Florida
corporation, FLORIDA AFFORDABLE
HOUSING, INC., a Florida corporation
AUBURN TRACE JOINT VENTURE, a
Florida joint venture, BRIAN HINNERS,
and individual, THE CITY OF DELRAY
BEACH, a Florida municipal corporation,
US SMALL BUSINESS ADMINISTRATION,
an agency of the United States of America,
YOUTHLAND ACADEMY OF DELRAY BEACH
, INC, a Florida corporation of UNKNOWN TENANTS
of 576 AUBURN AVENUE, DELRAY BEACH,
PALM BEACH COUNTY, FLORIDA
Defendants

SERVICE LIST
Daniel J. Rose, Esq.
Daniel J. Rose, P.A.
323 NE 6th Avenue
Delray Beach, Florida 33483
Robert Sweetapple, Esq.
20 SE 3rd Street
Boca Raton, Florida 33432
Adrian Rust, Esq.
818 AlA North, Suite 208
Ponte Verda Beach, Florida 32082
Noel Pfieffer, Esq.
200 NW rt Ave
Delray Beach, Florida 33444

Filing# 20130149 Electronically Filed 11/03/201403:19:04 PM

LAW OFFICES OF

SWEETAPPLE, BROEKER & VARKAS, P.L.

DOUGLAS C. BROEKER, P.A.
44 West Flagler Street, Ste. l 500
Miami, Florida 33130-6817
Telephone: (305) 374-5623
Facsimile: (305) 358-1023

SWEETAPPLE & VARKAS, P.A.

20 S.E. 3rd Street
Boca Raton, Florida 33432-4914
Telephone: (561) 392-1230
Facsimile: (561) 394-6102

ROBERT A. SWEETAPPLE *, 0
DOUGLAS C. BROEKER
ALEXANDER D. VARKAS, JR.
KAD!SHA D. PHELPS
ASHLEIGH M. GREENE

Please Reply To: Boca Raton

E-Mail:
rsweetapple@sweetapplelaw.com
avarkas@sweetapplelaw.com
kphelps@swectapplelaw.com
cbaileY@~weetapplelaw.com

dsmith@sweetapplelaw.com

BOARD CERTIFIED BUSINF.SS LITIOATION ATTORNEY

BOARD CERTIFIED CIVIL TRIAL ATTORNEY

Paralegals:
Cynthia J, Bailey, CP, FCP, FRP
Deborah Smith, CP, FRP
Jamie Arden, FRP

:,\,'V

.~l,2014

SENT VIA E-MAIL and U.S. MAIL

Adrian Rust, Esquire
Rogers Towers, P.A.
818 A 1A North, Suite 208
Ponte Vedra Beach, FL 32082
Re:

Iberia Bank v. Auburn Trace, Limited

Case No.:502014CA012272XXXXMBAO

Dear Mr. Rust:

***

I am in receipt of your Verified Complaint in the above-referenced action. This firm has been
retained to represent Auburn Trace, Ltd., Auburn Management, Inc., Florida Affordable Housing,
Inc., Auburn Trace Joint Venture, and Brian J. Hirmers. I am writing to request an extension of 20
days from today's date to respond to the Verified Complaint. I look forward to working with you and
discussing the merits of this case with you in the near future.
Regards,

ROBERT A. SWEETAPPLE
RAS:dls
cc:
Client
Clerk of Court Palm Beach County

........ ---- - - - -

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IN THE CIRCUIT COURT OF THR I 5TH

JUDICIAL CIRCUIT, IN AND FOR PALM
BEACH COUNTY, FLORIDA
CASE N0.502014CA012272
DIVISION:AO

I\'

IBERIA BANK, a Louisiana state hank,

Plaintin:

vs.
AUBURN TRACE LTD.i a rlorida limited

partnership, AUBURN MANAGEMENT, INC.,

a Flo1ida corporation, FLORIDA ArPOR DAB LB
HOUSING, JNC.,a Plorida nonprofit corporation 1

AUBURN TRACE JOINT VENTURJ~. a Florida

Joint venture, BRIAN HINNERS, an individual,
'!'HE CITY OF DELRAY BEACH, a Flodda
municipal corporation, U.S. SMALL BUSINESS
ADMINISTRATION, an agency of the United
States of America, YOUTH LAND ACADEMY OF
DELI~A Y BEACI Ii JNC., a Ji'lorida corporation, and

UNKNOWN TENANTS OF 675 AUBURN AVENUE,

DELRAY BEACH, PALM BEACH COUNTY. PLORIDA,
Defendants.

______ )

SUBPOENA FOR DEPOSITION DUCF,S TECUM

To:

Kenneth MacNarnee
I 049 Del Haven Drive

Delray Beach, FL 33483-6528

YOU ARE COMMANl)IW to appear before a person authol'i:,:ed by law to take
depositions at the Law Offices of Sweetapple, Broeker & Varkas, P.L., 20 Sf: 3ru Street, Boca
Raton, ri, (Telephone: 561-392-1230), on January J 5, 2015 at I0:30 A.M.j before DEBRA
DURAN & ASSOCIATES, Notary Public, State of Florida nt L~irge, or any other officer
authorized by law for the taking of your deposition.
If you fail to;

I)

2)

appear as specified; or
ol~ject to this subpoena,

You are subpoenaed by the attor11ey whose name appears on this subpoena and unless

. 3:tHld

0-1

lp

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------------- -

excused from th is subpoena by the attorney or the (;(lurt, you shall respond to this subpoena as
directed and you shall bring with you the items listed on Addendum "A" attached heteto or you
may be in contempt of court.

DATED on this 16111 day ol' December, 2014.

FOR THE COURT

SWEETAPPLE, 11ROEK8R & VARKAS, PL
20 SE 3'(! Street
.
Boca Raton, Florida 33432-39 l I
Telephone: (561) 392-1230
E-Mail:pleading~@swcctapplelaw.com

13y: /s/Robeit A. Sweetapple

ROBERT A. SWEE'J'APPLE
Florida 13ar No. 0296988

I fl

. 3:E:JVd

ADDENDUM "A"
Bring with you the following documents and things:
1.
Arly and all wt'itings between you u.nd any third party regarding Auburn Trace, Lld., lhe
Auburn Trace project, Bl'ian, Tom, 01 Jessica Hinnt:irn, from .January 2012 to the present. This
includes e-mails and any internet postings written or published by you.

/5

. 3:!.:JVd