1 IN THE CIRCUIT COURT OF THE TENTH JUDICIAL CIRCUIT OF THE STATE OF FLORIDA IN AND FOR POLK COUNTY ARC

POOL I, LLC, A MARYLAND LIMITED LIABILITY COMPANY, Plaintiff, vs. CASE NO. 53 2009 CA 012451 8

GARY BARTELS; YVONNE BARTELS, ET AL, Defendants. _____________________________________/

HEARING HELD ON FEBRUARY 17, 2012 BEFORE THE HONORABLE STEVEN L. SELPH

2 DATE: TIME: PLACE: February 17, 2012 9:14 a.m. - 10:14 a.m. Pol County Courthouse 255 North Broadway Avenue Hearing Room 7D1 Bartow, Florida MARK C. ELIA, ESQUIRE Van Ness Law Firm, P.A. 1239 East Newport Center Drive Suite 110 Deerfield Beach, Florida 33442 For the Plaintiff (Appearing telephonically) MICHAEL F. SINGER, ESQUIRE Korte & Wortman, P.A. 3001 Executive Drive Suite 300 Clearwater, Florida 33762 For the Defendants ALSO PRESENT: GARY BARTELS

APPEARANCES:

REPORTER: MELODY OTHIENO ======================================================== I-N-D-E-X February 17, 2012 HEARING ........................................3 REPORTER'S CERTIFICATE ........................56

3 1 Thereupon, the following proceedings were had and ta en:

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Mr. Singer, on behalf of the defendant, if -- if you all are opposing a motion for summary judgment? MR. SINGER: We are, Your Honor. And before plaintiff begins, I'm not sure whether the court has jurisdiction to hear the matter because there's been a Final Disposition Form entered on April 7th, stating that the matter's been disposed of by the judge. THE COURT: Really? MR. SINGER: Yes, Your Honor. THE COURT: O ay. Well -- well, did it indicate what the disposition was? MR. SINGER: It just -- it does not. THE COURT: Well, they have submitted a -- a proposed one to go in with this judgment here. It says disposed by judge. But you're saying it got filed previously? They previously filed a disposition form? MR. SINGER: Yes, sir, Your Honor. There's a

THE COURT: This is your motion for summary judgment, I believe; is that right? MR. ELIA: Yes, sir, it is. THE COURT: O ay. Let me start out by as ing

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 form, 1.998, Final Disposition Form, within the court record in this file dated April 7th, 2011, stating that the -- there has been a means of final disposition. And the box mar ed disposed by judge has an X through it. THE COURT: Is there a judgment to go with it

judgment that goes along -- they were filed at the same time? MR. SINGER: There is not, Your Honor. There was a settlement agreement which was reached -THE COURT: Oh.

the -- why -- that might have been the ground supporting the disposition. THE COURT: Huh. Sounds li e a -- sounds li e a mista e to me, unless there was an order of dismissal -- or notice of voluntarily dismissal

would be a final disposition on a settlement until there's something indicating that the case was dismissed. Mister -MR. ELIA: Elia. Yes, sir. It's my understanding --

that went along with it. I don't

now why there

MR. SINGER: -- bac

or some

ind of -- something else -- some order of

then. I believe that was

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 THE COURT: -- Elia, can you -- can you comment on that? MR. ELIA: -- there's been any -- there's been no voluntarily dismissal and there's been no final judgment entered in this case. That's why we're trying to get the final judgment entered today, Your Honor. THE COURT: I don't now if somebody sent in a Final Disposition Form with some other documents by mista e or whatever and -- of course, the cler 's going to file it if it comes in. I was going to loo it up on my computer. I don't have it -- have this case number logged up -logged on there yet. Let me just do that. I can loo and see if I can find anything in the court file that would indicate an actual final disposition other than a -- something representing

Final Disposition Form might throw off -- may cause a statistical error, but I'm not sure really -- I don't thin I would ta e that to mean that the case is actually finally disposed of. That's really just a device for recording -MR. ELIA: Your Honor -THE COURT: -- case loads and all that.

that there's been a final disposition. I thin

the

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 MR. ELIA: I'm sorry to interrupt, sir. Opposing counsel was referencing a Final Disposition Form showing doc eted on April 7th of 2011. Is that the date? THE COURT: Is that the one you're referring to, Mr. Singer? MR. SINGER: That is the one I'm referring to. THE COURT: Yes. MR. SINGER: Doc eted -MR. ELIA: There's a -- a calendar entry deleted for that same date at 9:00 a.m., Your Honor. So it's my understanding -- actually, there was a -- a motion for summary judgment set for that day. So that was a Final Disposition Form provided

for summary judgment set for that day. So it's my understanding it was doc eted in error. THE COURT: I thin that's what happened. In fact, you have a Final Disposition Form with this pac et I have here now for the same reason.

MR. ELIA: Yes, sir. THE COURT: And -- and, I guess, somebody -it got filed or got doc eted with the cler by mista e. And the cler -- you're saying that the

cler

deleted it. Shows it's being deleted after

to the court or to the cler

in advance of a motion

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 that. And there was no summary judgment entered or no other -- no other actual disposition. So I

jurisdiction. I thin we can go forward with this motion for summary judgment hearing. Mr. Elia, do you want to address your motion at this point?

please the court. This is a loan which is past due for quite some time. We have filed the original note and mortgage with the court. I'm loo ing for the filing date. THE COURT: I'm going to loo it up too just so -- unfortunately, this -- when we do this group doc et where we group a bunch of cases together li e this, the cler 's office doesn't list the cases automatically on my computer version of the court calendar. I have to just loo them up by case number, and I'm going to go ahead and do that now while you're tal ing and while you're loo ing for your -MR. ELIA: All right, sir. THE COURT: -- information. MR. ELIA: The original note and mortgage were

MR. ELIA: Yes. Than

don't thin

that deprives the court of

you, sir. May it

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of those documents shows that plaintiff is the proper party with authority to sue on this loan. We filed the appropriate supporting affidavits showing the amount due on this loan. We haven't received any affidavits in opposition to our motion saying that anything is -- or creating any issue of fact which would prevent entry of summary judgment today. So -- and, I believe, that we provided the court with the proposed final judgment form which shows the -- the total amount due of $383,324.14. And that includes the attorney -- attorney fee

this case. Than you, Judge. THE COURT: O ay. I -- I note that you all filed an amended affidavit of indebtedness, I guess, to update those numbers following the previously filed motion for summary judgment to update for -MR. ELIA: Yes, sir. That's standard practice. THE COURT: O ay. All right. What's defendants' position then?

amount of $1,300, which I thin

filed bac on April 19th of 2010. And the filing

is reasonable for

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 MR. SINGER: Before I begin my argument, can I inquire as to that amended affidavit of indebtedness that you just referred to because I wasn't seeing that on the court's doc et? THE COURT: O ay. I just -- I just happened to see it when I was scrolling through -MR. SINGER: I wasn't aware that it had been filed 20 days before today. THE COURT: Let me see. It shows a filing date of December 1, 2011. And the cler stamp shows December 1, 2011. It's entitled Amended Affidavit of Indebtedness. Signed by John C. Murphy. Let's see. It's three pages long. Four, actually. It's got some attachments with it. So it's fairly lengthy with all the exhibits that are attached to it. I can print you off a copy. Just the -without the exhibits or something if you want that. MR. SINGER: I would appreciate that, Your Honor. THE COURT: O ay. I say I can. Let me see if I can do that. It ta es the printer a minute to -to do that. It's -- but it will -- it should start printing here in a moment. MR. SINGER: In the mean time, I can address

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 other arguments -THE COURT: O ay. MR. SINGER: -- not related to that affidavit. THE COURT: All right.

Honor. The first argument that we have is that plaintiff does not have the authority, under the statutes, to maintain this action. Specifically, Statute 607.1502, as pertaining to the consequences of transacting business without authority. Plaintiff, in this action, is a foreign corporation. They're established in Maryland, as their case -- as the -- as the case would indicate that they are a Maryland Limited Liability Company. And they've also filed a -- their cost bond further affirm that they are not a resident of the state. The Florida Division of Corporations does not indicate that this organization, ARC Pool I, has any sort of certificate of authority to transact business in the state, such as acquiring interest in properties and negotiating with homeowners. As such, the statute provides that a foreign corporation transacting business in the state without a certificate of authority may not maintain

MR. SINGER: All right. Than

you, Your

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 a proceeding in any -- in the state until it obtains such certificate of authority. If the court feels that a determination is needed as to whether a foreign corporation or its successor or assignee is -- if the court needs to determine whether such corporation requires a certificate of authority, the court may stay the action until it so determines. And if it so determines, the court may further stay the proceeding until the foreign corporation or its successor obtains their certificate. I have a -- a copy of -THE COURT: Did you raise that as a defense in this case? MR. ELIA: Your Honor, this is the first I've heard of -- of this. Has there been anything

outlining any of this? Because I'm being ambushed. THE COURT: That's why I as ed if this has been raised as a defense at some point. MR. SINGER: It was not, Your Honor. Plaintiff's pre -- I mean, defendants' previous counsel did not so raise it. We've just recently come into the case on behalf of the defendant. But we believe that it is a valid argument that the

filed, some

ind of a memorandum or anything,

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 statute -THE COURT: O ay. Do you have other -- or here's the copy of the amended affidavit. It -it -- the printer, for some reason, printed a few pages of the exhibit. I -- I as ed it just to print the affidavit itself, but it did print a few other additional pages. MR. SINGER: But I'll also address our other arguments which I raised by the affirmative answers. The first is that plaintiff does not have standing. They've indicated that the note -possession of the note, which has been filed, whether or not that's original, I believe, is -- is a question of fact.

that to clarify. Has the original note and mortgage file been filed in the court file?

April 19th of 2010. THE COURT: Well, I would -- that would seem to indicate they had possession of it if they were able to file it. MR. SINGER: Their possession, I was saying, wasn't the question. The question is whether it's an original.

MR. ELIA: Yes, sir. They were filed bac

on

THE COURT: Was the -- has the -- let me as

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 But, furthermore, the -- the note has not mentioned the plaintiff that is not endorsed in

There was an endorsement on the note made by the original payee, Ban United FSB. However, they voided -- they had -- supposedly had a change of

and thus possession of the note alone to which plaintiff isn't a party nor has a blan endorsement or a specific endorsement per the -- the case of Riggs. Hold on a minute. Let me get that.

for the note here just a second while you're doing that. MR. SINGER: All right. The -- the case of -MR. ELIA: That's true, Your Honor. There -on -- on the last page of the note, there was an endorsement stamp which was struc through. It said pay to the order of blan without recourse Ban United FSB. Signed by Mireya Foster, Assistant

through with the word void in bold letters on top. My understanding is that may have ta en place -- this is just a guess -- because Ban United FSB ceased to exist when it was ta en over by the

Vice President. And she signed it. It's struc

THE COURT: I'm -- I'm loo -- trying to loo

mind because that endorsement and blan

blan

or specifically endorsed to the plaintiff.

is voided,

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 FDIC. My office filed the assignment of mortgage signed by Bill Williams, alleged president of Ban United assignee of FDIC as receiver for Ban United FSB. That's attached to our plaintiff's reply to affirmative defenses filed by defendants Gary Bartels and Yvonne Bartels. We filed that bac in late September or early October of 2010.

counsel is raising was addressed roughly a year and a half ago, and it's in the court record there. I'm loo ing for the -- the filing date as I replied to affirmative defenses. THE COURT: I see it. MR. SINGER: But as plaintiff is referencing, this assignment was not done by the -- the original lenders. Not done by the payee, Ban United FSB. It was done by an assignee of Ban United FSB. The entity nown as Ban United, a separate entity. MR. ELIA: That's true, Your Honor. That's because, as a matter of public record, Ban United FSB failed. We attached -- if you loo at the page just below the assignment underneath our reply there, you'll see the FDIC's public website information and the -- the National Information

Well, this argument which -- which new defense

15

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failed. And that was in 2009. The assets were transferred by the FDIC into the new entity Ban United. And that's why the -- the signer on that assignment is Bill Williams, the vice president of Ban United, assignee of the FDIC as receiver for Ban United F -- FSB. Mr. Williams transferred ownership of this loan into ARC Pool I, LLC, which is the current plaintiff in this case. That's why my client had the original note and mortgage and that's why we filed it in the case. THE COURT: O ay. Well, let's see if Mr. Singer has any other issues he wants to raise. MR. SINGER: I do, Your Honor. Just the case of Gee versus United States Ban National Association as trustee. It's a 2011 case. I don't have the cite for it, unfortunately, but here's a copy. Let me hand you a copy I didn't -- let me figure out which copy I didn't notate. I still thin that there's -- there are questions of law. In fact, the -- the arguments that plaintiff's stating, I don't believe that you -- there's been any judicial notice established as to ban -- whether this -- this was or was not

Center's history on Ban United FSB showing that it

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that I just cited, the -- as a summary judgment hearing where the plaintiff failed to offer any proof of the assignee's authority to assign the mortgage that the -- the court concluded that it failed to establish its standing to bring the foreclosure action as a matter of law. I -- I don't -- I don't believe that the -- the -- the lin between Ban United FSB and Ban United has been sufficiently established. And I'd also li e to call the court's attention to the technical admissions in this action. There was a request for admissions served on January 27, 2011, to which plaintiff failed to respond and thus the -- the admissions are deemed admitted pursuant to Rule 1.370. And defendant has been relying on those admissions up and to this point. And those admissions include that the plaintiff did not own or hold their note -- the plaintiff did not own or hold the note and/or mortgage on November 13th, 2009, the day the complaint was filed. The plaintiff did not give the pre-acceleration notice, as required by the mortgage, which is defendants' second affirmative defense and to prerequisite condition to any

transferred to Ban United. And under the case law

17 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 entitlement to enforce the foreclosure. Number four is admit that -- plaintiff admits that they were not authorized to enforce the note on the day the complaint was filed. That a settlement was reached in mediation. That the mediation agreement was the full and complete settlement agreement, and that plaintiff has refused to comply with the settlement agreement reached in mediation. THE COURT: O ay. Well -MR. ELIA: I don't see -- I'm loo ing here for any -- any admissions, Your Honor. I don't see any on the doc et. THE COURT: I was just loo ing for the request for admissions to see if it had been filed, and it -- and it had not been responded to. It could be deemed as admitted. MR. SINGER: The copy I obtained is from the court file. It's dated January 27th, 2011. It's been in the court file for over a year. Certificate of service -MR. ELIA: January of -- let's see -- 2011. MR. SINGER: Certificate of service indicates it was served upon Van Ness Law Firm and Real Management, LLC, another party. THE COURT: Well, I see, on January 27, an

18 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 entry for a letter from attorney's office regarding a motion for summary judgment. On January 28th, I see a notice of filing defendants' consent to substitution of counsel. MR. SINGER: It may be in part of that January 31st filings, the letter from attorney's office. THE COURT: All right. Let's see what that shows. MR. SINGER: But, as I said, I obtained this from the court file, the copy that I have in front of me. THE COURT: O ay. I'm ind of interested to discuss that settlement agreement. Has there -has there been an agreement to -- that would serve as a novation or a settlement of this note and mortgage -MR. ELIA: Let's see. THE COURT: -- or would have replaced it with -- in the new agreement? MR. ELIA: I'm loo ing at a forbearance agreement. Let's see. THE COURT: I gather it's not filed in the record in this case, but it -- but it -MR. ELIA: Was it filed, sir? I'm sorry.

19 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 COURT: I said I gather it was not filed unless -- in the -- in the court file as part of the record, but, obviously, the parties did reach an agreement that raises an issue here that I might need to consider. MR. SINGER: I don't believe that there's evidence of the settlement agreement within the court record. There's just plaintiff's admission that a settlement agreement was reached at mediation. That the mediation agreement was the full and complete settlement agreement. And admission number six states that the terms provided in the forbearance agreement are different than the terms agreed to in the mediation settlement agreement. And -MR. ELIA: I'm loo ing at a signed forbearance agreement, Your Honor -THE COURT: Well, o ay. MR. ELIA: -- signed April 7th of 2011. THE COURT: Which is around the same time that Final Disposition Form that we were tal ing about earlier was filed. MR. ELIA: Yes, sir. I'm loo ing bac into my notes to see what -- what the story is, sir. THE COURT: O ay.

20 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. ELIA: Yes, Your Honor, that agreement was signed, and that caused that cancellation of that April 7th hearing. THE COURT: O ay. So -MR. ELIA: I'm loo ing -THE COURT: -- is that -- is that a final

the agreement were. Was it -MR. ELIA: No, sir. Yeah, it's -- it hasn't been filed so the terms of it are confidential is my understanding. THE COURT: O ay. By the way, I did find this request for admissions. It was doc eted. It doesn't show up on the -- on the list of doc eted items on the court -- on the menu of the court file here, but it's -- I loo ed at the first set of interrogatories -MR. SINGER: Uh-huh. THE COURT: -- defendants' first set of interrogatories, where those were filed, just the questions without the answers, and it was placed behind that. It's in with that request for admissions. So it doesn't jump out at you if you were scrolling through the court file that there's a request for admissions there -- in there but

resolution and -- I don't

now what the terms of

21 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 Form. THE COURT: It's unfortunate when we start getting relied upon computerized files. That's what happens sometimes but -MR. SINGER: Yeah. But that doesn't change the fact -THE COURT: There -- there is a request for admissions here. Let me see what -- it shows instructions. And then it has the actual -- and definitions. And then it lists to admit or deny. It requires the note and mortgage through an assignment that -- that occurred after the filing of the complaint. These have no answers to them. MR. ELIA: Well, Your Honor, when -- when this case was first filed, it was filed in the name of Ban United assignee of the FDIC as receiver for Ban United FSB. there is.

another doc eting error as with -THE COURT: Yeah. MR. SINGER: -- the first Final Disposition

THE COURT: Well, a new plaintiff can be substituted for a previous plaintiff in a foreclosure action simply based on a merger or a

MR. SINGER: It -- it -- you

now, that may be

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institution to another institution. MR. ELIA: Yes, sir. It's my understanding that's what occurred in this case. THE COURT: And -- and there's a statute in Florida -- I don't have the statute number off the top of my head here. But under the ban ing statutes, it provides for successor ban resulting of -- from a merger or acquisition of another ban -- a merger with or acquisition of another ban to be deemed -- presume that they hold the

title interest of those instruments that were held by the ban they merged with or acquired. So I don't thin the fact that one ban was the plaintiff at the time the -- and held the note and mortgage at the time of the filing of the foreclosure action and then they were ta en over by another ban during dependency of the action would

plaintiff from being able to proceed with the foreclosure.

these request for admissions again just a moment. MR. SINGER: I believe number three is also

Let me just loo

at these -- let me loo at

prevent the successor ban

or -- or successor

same, you

now, instruments and had all the right

transfer of, you now, an -- a ban or lending

23 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 quite significant as it does go towards defendants' second affirmative defense. The second affirmative defense states: Failure to exhaust notice requirements, conditions precedent to filing, plaintiff failed to comply with the notice requirements under paragraph 22 of the mortgage. And their admission under number three, they admit that plaintiff did not give the pre-acceleration notice as required by the mortgage. Thus establishing defendants' -- thus establishing at least a general -- an issue of -- of fact as to whether said notice was provided in -- in -- in -in compliance with paragraph 22 of the mortgage. MR. ELIA: Well, Your Honor, there's a copy of the notice of default letter attached to our reply to the affirmative defenses. That's in the record. It's attached to our reply which is filed. We sent it out September 28th of 2010. I believe that predates the -- the request for admissions. The notice was sent by Ban United. Ban United letter had dated July 6 of 2009. And it went to Mr. Bartels and Mrs. Bartels at their -- their Liverpool address. THE COURT: Let me get a clarification here on

the earlier point before I -- before I lose trac

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MR. ELIA: Yes, sir. THE COURT: On the issue about, you now, if a plaintiff ta es a mortgage and note by assignment

were assigned that one instrument as opposed to actually ta ing over the assets of -- of the previous ban , we might have -- that statute I was referring to before may not apply. It may be that the complaint need -- would need to be amended and -- at that point or something rather than just simply treating it as an ongoing complaint with a substituted plaintiff. What -- what was the situation here? And it may be addressed in your affidavits. I haven't loo ed -- read through all those yet. How is it that ARC Pool I, LLC, became the -- became the owner and holder of this note and mortgage? Was it just through assignment of the -- of the -- of just a few notes and mortgages, or was it ta ing over Ban United or what?

MR. ELIA: No. This was -- yeah, ARC Pool did not ta e over Ban United, Your Honor. This was an assignment of one loan. There may have been a few loans, but this was not -- ARC Pool did not ta e

as opposed to just, you

now, were they just --

of what I'm thin ing about here.

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valid issue being raised here about whether at the time -- you now, that this plaintiff did not own and hold the note and mortgage to get it standing to sue at -- at the time because -- because it was a different -MR. ELIA: Well, when our case was filed --

complaint -THE COURT: Uh-huh. MR. ELIA: -- which we filed bac in November of 2009. The original plaintiff listed there is Ban United assignee of the FDIC as receiver of Ban United FSB.

THE COURT: Right. MR. ELIA: And that was the owner of the loan at that time. THE COURT: How -- how did ARC Pool become the plaintiff? Was it through a motion for substitution of plaintiff, or was it through amended complaint? MR. ELIA: I'm loo ing -- I'm loo ing here, sir. Sorry. MR. SINGER: To answer your question, it was a

I'm loo ing bac

at the lis pendens in the original

THE COURT: O ay. So that -- there may be a

over Ban United.

26 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 substitution of plaintiff. However, that motion was done and executed ex parte without -THE COURT: Yeah. MR. SINGER: -- defendants' -THE COURT: This is -MR. SINGER: -- presence. THE COURT: -- one of those situations where sometimes we grant those and -- when -- when it loo s li e a pretty straightforward situation. This may not be, though. Maybe it would have been better if it had an amended -- complaint amended at that point. MR. ELIA: Yes, sir. The -MR. SINGER: I agree. MR. ELIA: I hope I'm not interrupting. THE COURT: No. You're all right. Go ahead. MR. ELIA: The complaint was filed in November of 2009 in the name of Ban United. And in March of 2010 -- so about a hundred -- less than 120 days later, there was a -- actually, it was submitted in February of 2010. So about 90 days later, there was a motion for a substitution of party plaintiff and, thereafter, an order which granted that -that motion. And attached to the motion -- I'm loo ing at the -- the motion for a substitution of

27 1 2 party plaintiff. Subsequent to the complaint being filed, Ban United sold the note and mortgage to ARC Pool I. There is a copy of the assignment of warranty attached as an exhibit. And that -- that assignment, which was attached, was the assignment that I referenced earlier which is also attached to our reply to affirmative defenses. It's the assignment of mortgage signed by Bill Williams, Vice President of Ban United, assignee of the FDIC and the receiver for Ban United FSB. And it shows assignment called Ban United to ARC Pool I, LLC. That was a basis for the granting of the substituting plaintiff. THE COURT: And my predecessor judge in this case, Judge Wright, signed the order granting that. Let's see. Well, it really just boils down to a question of whether -- a motion for summary judgment -- whether there's any genuine issue of material fact about whether this current plaintiff became the owner and holder of the note and mortgage by virtue of an assignment or -- or otherwise. In this case, they're saying it's by virtue of this assignment and, therefore, would have the right to -- to foreclose the -- the

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

28 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 mortgage. I thin a better practice probably would -- in retrospect would have been to have them file an amended complaint alleging and explaining how they became the holder of the note and mortgage so the defendant could raise any defenses or response to that -- that would be needed. But those can still be dealt with now as -- as -- if there -- if there

that that's really an issue when you get right down to it because they do -- there is, apparently, an assignment of that and suit has been filed with an -- within the reply to the affirmative defense as a pleading. It's been filed as exhibit to that pleading. And also I thin it -- was it part of an affidavit too? Was it referred to in an affidavit as well? Let's see. MR. ELIA: The affidavits of -- of indebtedness, which my client has submitted, they've -- they've all alleged that the allegation and complaint are true and that ARC Pool I owns the -- the loan. THE COURT: O ay. Well, that -- so that --

testimony in -- in the court file and the record.

that establishes as evidence, you

now, as

are defenses to that. But I don't -- I don't

now

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this point about the fact that the plaintiff owns and holds the note and mortgage and is entitled to see foreclosure of it.

Then the only other question I still got is

reached some ind of an agreement to -- to resolve this that would -- perhaps then we're tal ing about a whole different cause of action for -- if there's been a breach of the -- of the settlement agreement

mortgage itself. In other words, the mortgage may have been replaced by this agreement.

MR. ELIA: Your Honor, the -- without going into too much detail, this was a forbearance agreement so -THE COURT: So that just means you would hold off on pursuing the foreclosure. MR. ELIA: Yes, sir. It was not a -- it was not a modification or a novation of the terms of the loan. THE COURT: O ay. MR. ELIA: And it's my -- it's my client's position that we're proceeding with the foreclosure

MR. SINGER: I thin

versus, you

now, a cause of action on the note and

the --

about this agreement. You

So I don't now if there really is an issue here at

now, if the parties

30 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 at this time. THE COURT: So your client ta es position that whatever terms of -- whatever terms of that agreement that would call for forbearance are no longer applicable and that you don't -- no longer have to forbear. MR. ELIA: Yes, sir. The -- the default on the loan has not been cured. THE COURT: O ay. Is that addressed in the -that amended -- in the affidavit or amended affidavit of indebtedness somewhere?

mentioned, Your Honor, but it will say in there that the -- it will specifically say that the loan is in default, sir. THE COURT: O ay. MR. SINGER: Your Honor, now that I've -THE COURT: There's been no filing of an agreement or -- or affidavit referring to some other agreement by the defense, has there? MR. SINGER: There's the admissions which state that the agreement reached at mediation is different than the set -- different than the forbearance agreement. So, technically, I guess, there was -- there's been two agreements reached.

MR. ELIA: I don't thin

it is specifically

31 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 One in mediation, which there's no evidence for other than plaintiff's admissions, and then the forbearance agreement as well.

to the request for admission, you're saying it's deemed admitted that there was some other agreement other than a forbearance agreement? MR. SINGER: I'm saying that -- yeah, that the plaintiff has admitted -- number five, they admit that a settlement was reached in mediation. And, number six, they admit that the settlements -- the terms provided in the forbearance agreement are different than the terms agreed to in the mediation settlement agreement. Number seven, they admit that the mediation agreement was the full and complete settlement agreement. And, number eight, they admit that they refuse to comply with the settlement agreement. THE COURT: But how is the court to now what that settlement agreement says? Whether it says that they -- they can no longer -- if it's an agreement that says this -- this satisfies the loan or satisfies the note and mortgage and becomes a new agreement li e a novation, how am I to now that? I don't have -- nothing's been filed, you

THE COURT: So because of a lac

of a response

32

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terms of that agreement are. Nobody's explained it in detail in an affidavit or filed a copy of it. So all I have is just some -- some technical admission by the plaintiff that there is a settlement agreement that's different from a forbearance agreement. But that settlement agreement may just say you're going to ma e payments of X amount, and if you don't, we're going to proceed with the foreclosure. I mean, I don't now what it said. MR. SINGER: I -- you now, there -- I -- I

evidence in the court file. But I thin that does raise another issue of fact. THE COURT: Does your client have a copy of this agreement? MR. BARTELS: I don't have a copy of it with me, no. THE COURT: Does anybody have a copy of it, I wonder? Mr. Elia, are you -- do you have -- are you familiar with a separate agreement besides this forbearance agreement you've already referred to? MR. ELIA: No, sir. The only agreement that I

don't

now what it says either. There's no

now, showing what -- indicating what -- what the

33 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 yeah. case? see is the forbearance agreement. THE COURT: And was there a mediation in this

MR. BARTELS: Yes, there was a mediation. THE COURT: Mr. Bartels -- Bartels is saying there was a mediation. And you're saying that's when the agreement occurred during this -MR. BARTELS: There was an agreement in mediation. That agreement changed after mediation again by ARC. THE COURT: Was this an agreement where the

handwritten agreement? MR. BARTELS: They put it together and then it wasn't -- ARC Pool didn't accept the mediation at that point -- after a point of it being agreed in the mediation. And then the goal post arrived after -- after that date. THE COURT: So you're saying they changed the agreement -MR. BARTELS: Yeah. THE COURT: -- basically, afterwards? MR. BARTELS: After the mediation appointment,

mediator just write -- wrote out some

MR. ELIA: I'll ta e a loo

bac , sir.

ind of

34 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 COURT: Had it been put in writing and signed at some point? MR. BARTELS: Something was signed during the mediation, but then it was changed again after. THE COURT: You didn't get a copy of the -MR. BARTELS: We got some copies. But there was a few different copies that were flying about. THE COURT: Well, I now the mediations used to be -- have been chronically a problem where

mediation and maybe their -- or the attorney that's there doesn't -- is not tuned into what other

with the -- with the -- with the -- with the defendant. But it would be nice if somebody had an actual document to present. MR. ELIA: There -- there's a mediation report which was filed on December 1st of 2010. THE COURT: All right. MR. ELIA: So, yes, there was a mediation. The mediation report indicates that there was an agreement. THE COURT: O ay. I see that now. Ann Kiser was representing the plaintiff. Plaintiff's attorney was John Stu ey. Mr. Bartels and

persons at the ban

are agreeing to on the side

somebody representing the ban

will be at the

35 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 Mrs. Bartels were there. Defendants' attorney Dennis Chen. MR. ELIA: Yes. THE COURT: It says signed settlement agreement was reached during this mediation and a copy will not be filed with the court. And the mediator signed that report. O ay. Well, Mr. Elia, is it -- is it your position that that's the -- Elia. I'm sorry. Am I mispronouncing your name? Is that the -- are you saying that's the forbearance agreement you've been referring to, or is there something -MR. ELIA: Yes, it is, sir. THE COURT: Mr. Bartels is saying that that forbearance agreement is not the same agreement that was reached at the mediation. MR. SINGER: That's what defendant is -MR. ELIA: Well, there -- there are specific terms -THE COURT: And mister-- just in case you didn't hear that, Mr. Elia, Mr. Singer is saying that that's what's referred to in the request for admissions that was not denied. But that's a separate agreement. But, here again, we don't now what it is. It's just referred -- it's referred to

36

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it would be something that was written down at the time of the mediation conference. MR. ELIA: Yes, there are some -- there are some notes and terms written down here. THE COURT: O ay. MR. ELIA: I don't believe that these are filed. THE COURT: It's, apparently, not. And I gather they're not signed by -- executed by anybody but I don't now. Well -MR. ELIA: What seems to be indicated here was that the -- sort of an agreement or they hoped to get into the forbearance agreement, Your Honor. THE COURT: That's what you're saying the notes in the mediation seem to indicate? MR. ELIA: Yes, sir. THE COURT: Well, of course, none of that's of record, so. Well, let me just say -MR. ELIA: There hasn't been any -THE COURT: -- at this point -MR. ELIA: There hasn't been any settlement or

terms of that separate agreement are, which I ta e

as some separate agreement. We don't

now what the

37 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 forbearance which has secured this loan. That's why my office is proceeding with the foreclosure. THE COURT: Well, I thin -- let me just say -MR. ELIA: Sometimes, though, there has been more efforts as shown by the -- well, it's not of record, but there was a -- there was the subsequent agreement, forbearance agreement, signed some months after. THE COURT: O ay. Well, let me just say what

fact about whether ARC Pool, the plaintiff here, can -- has authority and standing to foreclose this

far as whether it can be -- whether it's a proper plaintiff, in other words, at this juncture of the case. I thin that's been established by the affidavits in the file. Now, as to whether -- notwithstanding the -the failure to answer the -- in response to request

that I -- that's going to prevent me from entering a summary judgment today is the possible settlement that is not of record. And the court has no way of

for admissions. But I thin

note and mortgage. I thin

I don't thin

there is a genuine issue of material

it does. At least as

the hang up for me

I thin at this point. I thin that -- I thin

--

38

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of a denial to the request for admissions that there is some type of settlement agreement out there, which I thin creates an issue -- a genuine issue of material fact right now that -- that might

prevents -- I should not say ultimately, but at this point prevents me from entering a summary judgment. Now, that may be all cleared up later on through filings of subsequent affidavits or other filings in the record. Maybe a summary judgment may be appropriate later on. If not, we can always have a trial and try to have the plaintiff prove up this case at that -- at that juncture. MR. ELIA: Judge Selph -THE COURT: Yes, sir. What do you want to say? MR. ELIA: I'm loo ing at the later doc et entries. THE COURT: O ay. MR. ELIA: It appears that my office -appears that my office filed, in October of 2011, a motion to enforce -- it's listed as foreclosure agreement. And also on October 12, plaintiff's

ultimately prevent -- you

now, that -- that

nowing -- it's been ac nowledged by a lac of --

39 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 yet. MR. SINGER: The court has not ruled on the -the forbearance -MR. ELIA: Your Honor, there's actually a copy of the forbearance agreement attached as an exhibit to that motion. THE COURT: O ay. MR. ELIA: I just noticed -THE COURT: O ay. I appreciate you bringing that up because I had not noticed that yet either. Let's see. When was that filed? MR. ELIA: The date of filing of the motion now. MR. SINGER: I would li e to point out that said motion that plaintiff's counsel is referring to has -- has not been noticed by the plaintiff for today or for any other time. And according -- I don't believe -THE COURT: So the court hasn't ruled on it affidavit in support of motion to enforce the forbearance agreement. THE COURT: So you're saying that puts it in the record there? MR. ELIA: Yes, sir. I'm pulling those up

40 1 2 3 4 5 6 7 8 and the affidavit are October 12th of 2011. THE COURT: O ay. MR. ELIA: And I agree that -- with opposing counsel -- that the motion to enforce it is not set for hearing today. But if it can clarify the other ends the court brought up which the court felt might prevent summary judgment, I hope it does. THE COURT: O ay. Well, let me loo . Let me loo at that. It is a -- it is a -- there is an affidavit here that accompanied that motion. Plaintiff's affidavit in support of motion to enforce forbearance agreement. Ann Kiser, who had been the, I guess, the corporate representative of the plaintiff at the mediation, is the person that signed this affidavit. Let's see what it says. Of course, she states she has actual and

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

referring to here. That defendant executed a forbearance agreement on or about April 7, 2011, wherein defendants agreed to ma e increased monthly payments to plaintiff in the amount of $4,000 until May 1, 2012. A copy of said agreement is attached as Exhibit A to this -- to the affidavit. It goes on to refer to the fact that defendants have failed to ma e the payments due for

personal

nowledge of the facts that she's

41 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 months of July, August, and September of 2011. And it goes on to say pursuant to the termination conditions of the agreement, the agreement is automatically terminated if the defendants become 30 days late on any payment. Which if that's true, then it doesn't really require a court action to terminate that agreement. It terminates on its -under its own terms. MR. ELIA: Yes, sir. THE COURT: It goes on in the -- the last paragraph here to say the agreement also entitles plaintiff to a deed in lieu for the subject property and requires the deed in lieu to be executed and delivered to plaintiff within 30 days of any breach of the agreement. So, I guess, if you were see ing to enforce that agreement, as your motion suggested there, you would be as ing the court to order them to enter -to execute a deed in lieu. MR. ELIA: Yes, sir. MR. SINGER: But, again, that motion is not before -THE COURT: And that -MR. SINGER: -- the court today. THE COURT: That motion's not before the

42 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 court. I'm not going to grant that. I'm going to deny that motion today. But -- but we're -instead, the plaintiff has not -- has not set that for hearing to pursue that. They -- plaintiff is simply now just wanting to go ahead and get a foreclosure judgment. MR. ELIA: Yes, sir. THE COURT: And so the plaintiffs, by this affidavit, is saying that -- that agreement that was reached at the mediation that was -- has been breached by the defendants and, therefore, is terminated under its own terms. MR. SINGER: My client has additionally filed an affidavit in -- to -- to counter plaintiff's affidavit, stating that the agreement was never breached but rather terminated pursuant to the condition entitled Termination Conditions, paragraph five -THE COURT: When was that -- I'm sorry to interrupt. But when was that affidavit filed so I can find it here? MR. SINGER: It was rather recently. THE COURT: Here recently. MR. SINGER: We were just recently retained by the -- the defendant.

43 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 COURT: But I don't see it in here. MR. SINGER: It was filed and it was -- a copy was faxed and served upon the plaintiff. THE COURT: Do you have a copy of it with you? MR. SINGER: I do. THE COURT: There's a little bit -- there's a lag time in the cler 's -- on the -- on the cler 's logging these things into the court file. So I -the last entry I see on the court file list here is January 24. And that's, obviously -MR. SINGER: There's the -THE COURT: -- been several wee s since then. MR. SINGER: -- two-page affidavit of defendant Gary Bartels. THE COURT: O ay. This affidavit -MR. ELIA: I don't have it, Your Honor. THE COURT: O ay. MR. SINGER: I have -THE COURT: It appears to have been signed on February 14th. MR. SINGER: I have -THE COURT: Just over -- was it -- two days ago. And was it filed in the court file at least two day -- you now, requisite time prior to the motion being heard today?

44

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

Honor. THE COURT: This is a copy? MR. SINGER: That is a copy. THE COURT: Do you now when you filed it? MR. SINGER: I believe it was served on the date indicated. I don't now. THE COURT: Has it been filed in the court file is my question?

THE COURT: You don't have a copy of your notice of filing, anything li e that? MR. SINGER: No, Your Honor. I just have the

affidavit here. O ay. He's saying that upon reading and signing the forbearance agreement, he agreed to these terms provided his financial condition continues to support a monthly payment of $4,000. I don't thin the agreement says you get -you pay the $4,000 as long as you can afford it, did it? It just said you pay $4,000. MR. SINGER: The agreement states, under termination conditions, paragraph two, the -- well,

THE COURT: I'm just going to loo

copy -- actually, I thin

I might. at this

MR. SINGER: I'd have to chec

MR. SINGER: I -- I -- I don't

now, Your

with the cler .

45 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 -- the termination conditions starts, this forbearance agreement is automatically terminated under any of the following circumstances: Circumstance number two states the facts or circumstances relating to borrowers -MR. ELIA: Which section is this? I'm sorry. I'm -- I'm loo ing at it. MR. SINGER: Termination conditions. There's no numbered paragraphs of the forbearance agreement. It just states -MR. ELIA: There's page numbers. What page number? MR. SINGER: Page four of seven. Sorry. On page four of seven, termination conditions, the forbearance agreement is automatically terminated when, under subparagraph two, where the facts or circumstances relating to borrowers financial condition which caused ARC Pool I, comma, LLC, to enter into this agreement are substantially changed. Mrs -- Mr. Bartels' employer -- unfortunately, last year, Mr. Bartels' employer went into liquidation. And, as detailed in the affidavit, this caused Mr. Bartels to lose his -- his position with that employer and to have a substantial drop

46 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 in income as detailed in the affidavit thus supporting the proposition that, you now, there was a substantial change in -- in Mr. Bartels' financial condition which operated to terminate the forbearance agreement and said -- said events occurred prior to any -- any breach. THE COURT: Well, that terminates the forbearance agreement then. Does that mean he's --

facing this foreclosure then? MR. SINGER: There's still the ac nowledgment that there's a separate settlement agreement reached at mediation. MR. ELIA: It says right in -- in the paragraph following that, upon any of the circumstances set forth above or borrowers breach of entity term of the original note and mortgage ARC Pool (indiscernible) resume foreclosure without further notice. And that's what we're -- we'd li e to do, Your Honor. MR. SINGER: But, again, plaintiff has -- the motion to enforce the agreement and enforce those provisions is not before the court. THE COURT: Well, I don't now that they have to get enforcement of the -- of the agreement if

he's bac

to square one where he's -- where he's

47 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 agreement terminates under its own terms and it says they can go forward with -- with foreclosure. That's, in fact, what they're doing here today. And -- and they move for summary judgment foreclosure. So then they're saying -- in essence, that's really what they are -- had noticed for today is -- is the -- is to carry on what -- to enforce that agreement is -- in other words, enforcing the agreement and see ing a foreclosure judgment are one in the same. Let's see. And since that is of record -- and I -- I -- I misspo e earlier when I was thin ing that was not -- that the terms of the agreement were not in the record. And -- and I have to also, I thin , retreat from what I said before too that that would have pleaded genuine issue of material fact because I thin that's been eliminated by the -- the actual -- the affidavit of the -- of Ms. Kiser and the -- her reference to the agreement and the agreement being filed in the court file at the same time that -- when it was -- accompanied that motion and her affidavit as -- what is referenced in her affidavit. I didn't actually see it attached to the affidavit she refers to as an exhibit. It is filed at the same time with that

48

2 3 4 5 6

of material fact at this point as to the

there's no genuine issue of material fact being raised as to the amounts owed. MR. SINGER: Actually, Your Honor, I would li e to raise -- we never addressed the amended affidavit of indebtedness which you provided me, and I -- as the court's -- I would li e to address that at this time. THE COURT: O ay. Yeah, you just got a copy of that handed to you a moment ago. So what do you want to say about that? MR. SINGER: The affidavit is -- is quite erroneous on its face. It states that the

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Assets Resolution Corporation Pension Plan. That is clearly not the case. There's been, at no point in this entire court proceeding within the past two-plus years, any indication that there is an Assets Resolution Corporate Pension Plan. The affidavit -- the affiants themself -THE COURT: I assume that's what ARC stands for, but that's not -MR. SINGER: But that's --

plaintiff in the above-styled action is

plaintiff's standing to see

motion. And I don't thin there is a genuine issue

foreclosure. And

nown as

49 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 COURT: -- the same name, yeah. MR. SINGER: Yeah. That's not evidence before the court today. The affiant signs as a managing member of Assets Resolution Corporation Pension Plan is no in way -- there's no evidence that he's affiliated with the plaintiff or that Assets Resolution Corporation Pension Plan is in any way affiliated

that raises significant issues as to this affidavit and to whether it can be used in support of the judgment sought by the plaintiff when this affidavit is in no way completed by the plaintiff or any entity with any sort of nown or established relationship to the plaintiff. THE COURT: O ay. We're -- it's li e a game

So what -- that's -- that's something I hadn't even paid attention to. I mean, I pulled up a copy of the affidavit. I haven't read it yet. Mr. Singer's now had a chance to do that. What -- what do you say to that, Mr. Elia? MR. ELIA: I'm not sure why that name is listed in the affidavit, Your Honor. THE COURT: Well, the affiant needs to be able

of ping-pong. We

eep going bac and forth here.

with the plaintiff in this case. I thin

that --

50

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 facts he's -- he's stating in his affidavit. And he's saying he's -- he's saying -- he's saying it on behalf of Assets Resolution Corporation Pension Plan. MR. ELIA: Yes, sir. I don't now why that name is there. MR. SINGER: ARC Pool I, LLC, the plaintiff, is only mentioned in the case style at the top of the -- the page. It's not mentioned anywhere within the affidavit. And I don't now that the records attached to the affidavit or the affidavit itself can -- can stand. And so there are -- there is significant -- anything which this affidavit would support as to plaintiff's, I believe, is invalid. But significantly is this affidavit is the only evidence of -- of indebtedness. MR. ELIA: I'm -MR. SINGER: I believe it definitely fails as to that and would raise general issues of fact and law as to the issues of indebtedness and damages to be issued. THE COURT: O ay. Well -MR. ELIA: I don't -THE COURT: -- as to that amended affidavit,

to explain how -- you

now, how he has nowledge of

51

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refer -- was trying to refer to the earlier affidavit, but he probably didn't hear that you were still tal ing. MR. ELIA: Yes, sir. I don't thin Mr. Singer

that he's saying that possibly there may be an error in my client says it is owed to. THE COURT: Well, but --

that his client has offered anything showing that payments were made or that the amounts listed due are somehow incorrect. I was just loo ing bac at prior affidavits filed in this case. THE COURT: Well, he's, basically, playing

moving party on a motion for summary judgment wants to -- has to establish, you now, an undisputed fact to support the motion then it has based it on an affidavit. If the affidavit is -- doesn't have the -- the prerequisites in it to establish the -or the predicates established to -- for that affiant to be able to swear to those facts -MR. ELIA: Yes, sir. THE COURT: -- then -- then -- even if he's

defense, which is his job. You

now, if a -- if a

MR. ELIA: I'm -- I'm loo ing -- I don't thin

is actually contesting the amount due. I thin

that may be the case. I thin Mr. Elia wanted to

52 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 not -- hasn't raised any issues about the numbers, it's still incumbent upon the plaintiff, as a moving party, to establish the -- the truth of those numbers. Now -MR. ELIA: Yes, sir. THE COURT: -- I assume -- I assume they were mentioned in the previous affidavit as well. I'm curious what -- how that one's wor ing too now that we're -MR. SINGER: The issue -MR. ELIA: We actually have the -- the plaintiff name, ARC Pool I, LLC, Maryland Limited Liability Company. So it's -- it's my thought that this is probably just an error -THE COURT: Probably is. MR. ELIA: -- that another entity is listed. MR. SINGER: It's un nown whether it's error. MR. ELIA: And so at this point, rather than having a summary judgment denied, I'd li e to request a continuance to get an amended affidavit to state the correct entity to whom that amount is due. MR. SINGER: It's not just the -- the issue of the entity. We are indeed disputing the amounts owed. The previous affidavit was filed in January,

53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 2011. Since then, several thousands of dollars have been paid on this loan as -- as established in defendants' affidavit and as conceded in -- in several of plaintiff's filings that funds were paid pursuant to the forbearance agreement. And I don't now that there's any, you now, established

records are because they're not -- I mean, they -you now, obviously, a record has been submitted, but it's never been established what this record is, whose record it is, whether it's the record of Assets Resolution Corporate Pension Plan as indicated in the affidavit. And so -THE COURT: Well, here's the deal. I -- I thin we've run -- run the gamut on this at this --

16 17 18 19 20 21 22 23 24 25

is I'm going to deny the motion for summary judgment. The reasons I was stating earlier, I thin I have to retreat from, as I mentioned before. I'm going to still say that ARC Pool appears to be the correct plaintiff and is entitled

I thin the filing of the affidavit of -- of Ms. Kiser in support of the motion to enforce the

to see

15

MR. SINGER: All right. THE COURT: -- point. So what I'm going to do

foreclosure, as I mentioned before.

records as to -- you now, I don't

now what these

54 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 forbearance agreement eliminates an issue of fact about whether that agreement prevents a foreclosure. In fact, it seems to -- it does just the opposite. It supports plaintiff's position that -- that the -- the agreement's been terminated by its own term -- under its own terms. Even the defendants' affidavit ac nowledges he didn't ma e the payments pursuant to that agreement. And, therefore, I thin under that agreement there's no -- the agreement in no -- in no way prevents the plaintiff from see ing foreclosure. In fact, it -it authorizes them to go forward with foreclosure, which they're attempting to do. The only issue now seems to be the -- the -- the indebtedness and the problems with the amended affidavit of indebtedness that we've already tal ed about. MR. ELIA: Yes, sir. THE COURT: And the previous affidavit, although it would establish some amounts, there's -- there are -- there seems to be an issue of fact at this point raised by the defendant in his affidavit concerning payments he's made and what that indebtedness actually would be at this point. So I'm going to deny the motion for summary

55 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 judgment without prejudice so that either party can pursue a summary judgment later by -- by filing a new motion -MR. ELIA: Yes, sir. THE COURT: -- if -- if -- if the facts and -and the record support that. So, of course, the new affidavits may -- may follow whatever is necessary to do that; or the parties can set it for trial if they prefer that it go that route. So, Mr. Singer, if you'll prepare the order denying the motion for summary judgment. It doesn't need to go into a lot of detail because we have a record here of everything we've tal ed about. But just simply saying it's denied without prejudice. And I'll enter it when you send it to me. MR. SINGER: O ay. Your Honor, I will prepare an order stating that the motion is denied without prejudice.

other resolution in the mean time. If you can, fine. If not, we'll probably be seeing y'all again at another hearing later. MR. SINGER: Than you, Your Honor. (The hearing concluded at 10:14 a.m.)

THE COURT: Maybe y'all can wor

out some

56 REPORTER'S CERTIFICATE STATE OF FLORIDA COUNTY OF POLK I, MELODY OTHIENO, Court Reporter, certify that I was authorized to and did stenographically report the hearing in the above-styled cause, Pages 1 through 55, inclusive, and that the transcript is a true and complete record of my stenographic notes. 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' attorney or counsel connected with this action, nor am I financially interested in the action. Dated this 2nd day of March, 2012.

______________________________ MELODY OTHIENO, COURT REPORTER The original of this transcript was ordered by and furnished to Michael F. Singer.