IN THE DISTRICT COURT OF APPEAL FOR THE SECOND DISTRICT STATE OF FLORIDA MARK A. ADAMS Case No.; 2D16-474 L.T.No.; 09-CA-028773 Appellant, v. E*TRADE BANK, Appellee. L ON APPEAL FROM THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA, APPELLANT'S REPLY BRIEF Mark A. Adams, Appellant 4129 Balington Drive Valrico, FL 33596 Telephone: 813-653-4350TABLE OF CONTENTS TABLE OF CITATIONS .... PREFACE... ARGUMENT POINTI.... COUNSEL FOR E*TRADE BANK FAILED TO INVOKE THE LOWER COURT’S JURISDICTION OVER THE DEFENDANT/APPELLANT BY SUBSTITUTE SERVICE OF THE COMPLAINT ON THE FLORIDA SECRETARY OF STATE POINT II... COUNSEL FOR E*TRADE BANK FAILED TO INVOKE THE LOWER COURT’S JURISDICTION OVER THE DEFENDANT/APPELLANT BY FAILING TO COMPLY WITH FLORIDA STATUTES § 48.161 CONCLUSION .... CERTIFICATE OF SERVICE ... CERTIFICATE OF COMPLIANCE .... TABLE OF CITATIONS CASES Alamo Rent-A-Car v. Phillips, 613 So.2d 56 (Fla. Ist DCA 1992). Alvarado-Fernandez v. Mazoff, 151 So.3d 8 (Fla. 4th DCA 2014)...........-...9, 10 Bayview Constr. Corp. v. Jomar Props. LLC., 97 $0.34 909 (Fla. 4th DCA 2012)......Blimpie Capital Venture, Inc., v. Palms Plaza Partners, Ltd., 636 So.2d 838 (Fla. 2d DCA 1994)... Chapman v. Sheffield, 750 So.2d 140 (Fla. Ist DCA 2000)... Crownover v. Masda Copr., 983 So.2d 709 (Fla. 2d. DCA 2008)... Drake v. Scharlau, 353 S0.2d 961 (Fla. 2d DCA 1978)... Fernandez v. Chamberlain, 201 So.2d 781 (Fla. 2d DCA 1967)... Juliano v. Juliano, 687 So.2d 910 (Fla. 34 DCA 1997)... Kenrick v. Coleman, 679 So.2d 865 (Fla. 3d DCA 1996)... Pro-Art Dental v. V-Strategic Group, 986 So.2d 1244 (Fla. 2008)... P.S.R. Associates v. Artcraft-Heath, 364 $0.2 855 (Fla. 2d DCA 1978).....+0++ u Schneider v. Currey, 584 $0.24 86 (Fla. 24 DCA 1991)... -10 Smith v. Leaman, 826 So.2d 1077 (Fla. 24 DCA 2002)... wall Sparks v. State, 740 So.2d 33, 35 (Fla. Ist DCA 1999)... State v. Brugman, 588 So.2d 279 (Fla. 2d DCA 1991)... , 988 So. 2d 1148 Verizon Bus. Network Servs., Inc. v. Dep't of Cor (Fla. Ist DCA 2008). STATUTES Florida Statutes § 48.161 RULES Florida Rule of Civil Procedure 1.080. Florida Rule of Civil Procedure 1.140(a)(3)...Florida Rule of Judicial Administration 2.516. Florida Rule of Judicial Administration 2.530..... Florida Rule of Appellate Procedure 9.220(a)..... PREFACE Florida Rule of Appellate Procedure 9.220(a) allows an appendix to be served with a Reply Brief, and in order to respond to misstatements made by counsel for the Appellee, E*TRADE BANK, in its Answer Brief and clarify the record for this Court, the Appellant is filing an Appendix with this Reply Brief which will be referred to as R. App.__. The Appendix filed with the Initial Brief will be referred to as I. App.__, and the Appendix filed with the Answer Brief will be referred to as A. App. Selected documents filed with the prior briefs will be included in the Appendix filed with this Reply Brief for this Court's convenient reference, ARGUMENT POINT I COUNSEL FOR E*TRADE BANK FAILED TO INVOKE THE LOWER COURT’S JURISDICTION OVER THE DEFENDANT/APPELLANT BY SUBSTITUTE SERVICE OF THE COMPLAINT ON THE FLORIDA SECRETARY OF STATE Counsel for E*TRADE BANK responds by admitting that this issue was raised by the Appellant in his Amended Motion to Quash Substitute Service ofProcess and Dismiss this Action which was filed with the clerk of the lower court ‘on December 29, 2015 and served to it via facsimile and U.S. Mail on that same day. (I. App. G.) However, counsel for E*TRADE BANK argues that this issue was waived because the Appellant did not argue it at the hearing on December 30, 2015, and yet, counsel for E*TRADE BANK admits that on December 29, 2015, the Appellant filed a request to appear by phone for the hearing on December 30, 2015 which was served to counsel for E*TRADE BANK by facsimile and U.S. Mail on December 28, 2015. (A. App. 24). Moreover, the record shows that no objection was made to the Appellant’s request to appear by phone until counsel for E*TRADE BANK objected at the hearing on December 30, 2015. (See the lower court’s docket showing a lack of objection in I. App. B, pages 4-5 and the transcript of the hearing on December 30, 2015 in R. App. A pages 5-6, originally filed with this Court and first served to the Appellant as A. App. 27.) Yet, counsel for E*TRADE BANK argues that this issue should not be considered even though it failed to timely object to the Appellant’s request to appear by phone as allowed by Florida Rule of Judicial Administration 2.530. Moreover, counsel for E*TRADE BANK fails to mention that on January 21, 2015, at a hearing which was scheduled by counsel for E*TRADE BANK on the Appellant’s Motion to Quash Service without noticing it as an evidentiary hearing, counsel for E*TRADE BANK objected to the Appellant raising the inadequacy ofthe Proof of Publication which counsel for E* TRADE had filed without serving a copy to the Appellant as required by Florida Rule of Civil Procedure 1.080 and Florida Rule of Judicial Administration 2.516 and then asked for a continuance to reschedule the Motion to Quash for an evidentiary hearing. (R. App. B, pages 6-7 of the transcript of the hearing held before the lower court on January 21, 2015.) The lower court granted counsel for E*TRADE?’s request for a continuance of the hearing that her firm had scheduled over the objection of the Appellant. (R. App. B, page 7.) In addition, the lower court stated that the parties could appear by phone unless an order was entered not allowing appearances by phone or an evidentiary hearing was scheduled. (R. App. B, pages 3-4.) Asa result, the Appellant believed that he could and would be allowed to appear by phone for the hearing on December 30, 2015 and was surprised when he was not allowed to do so, and therefore, was improperly denied his fundamental right to be heard. A denial of due process constitutes fundamental error which may be challenged for the first time on appeal. Verizon Bus. Network Servs., Inc. v. Dep't of Corrs., 988 So. 2d 1148, 1151 (Fla. 1st DCA 2008) citing Sparks v. State, 740 So.2d 33, 35 (Fla. Ist DCA 1999) and Alamo Rent-A-Car v. Phillips, 613 So.24 56, 58 (Fla, Ist DCA 1992). Therefore, this Court should not accept the Appellee’s argument that this issue should not be considered by this Court in this appeal. ‘Moreover, the Appellants challenge to the trial court’s lack of jurisdiction over hisperson and property has not been waived in the proceedings below, and therefore, it is likely that it would be brought before this Court again if a subsequent appeal is necessary. Ina further effort to confuse this issue, counsel for E*TRADE BANK claims that it set an evidentiary hearing for December 30, 2015; however, its Notice of Hearing improperly rescheduling its Motion for Judicial Default to be heard on December 30, 2015, which also set the Defendants’ Motions to Quash Substitute Service of Process and Dismiss this Action to be heard at the same time, did not give notice that the hearing would be one at which evidence would be taken.! (See R. App. C which was originally filed with this Court as I. App F. because in his Initial Brief the Appellant raised the fact that such notice of hearing did not mention that evidence would be taken or that an evidentiary hearing was scheduled.) Also, note that in the Notice of Hearing, counsel for E*TRADE BANK certified that he had “made a good faith effort to resolve the foregoing issues” prior to noticing this hearing. (R. App. C.) However, counsel for E*TRADE BANK made no effort to contact the Appellant prior to improperly and ‘Fla. R. Civ. Pro. 1.500(c) provides, “A party may plead or otherwise defend at any time before default is entered.” Moreover, Florida’s appellate courts have uniformly recognized that it is improper to enter a default when defensive motions have been filed before entry of a default. Pro-Art Dental v. V-Strategic Group, 986 So.2d 1244, 1259 (Fla. 2008). Therefore, it was improper for counsel for E*TRADE BANK to set its Motion for Judicial Default to be heard at the same time as the Defendants’ Motions to Quash Substitute Service of Process.unethically rescheduling E*TRADE BANK’s Motion for Judicial Default to be heard at the same time as the Defendants’ Motions to Quash Substitute Service of Process and Dismiss this Action during the middle of the holiday season. Moreover, as the lower court was aware that the Appellant had filed motions to quash service contesting jurisdiction, it should have reviewed the record to see whether the appropriate steps had been taken to invoke jurisdiction over the Appellant and his home. See, e.g., Crownover v. Masda Copr., 983 So.2d 709, 712-713 (Fla. 2d. DCA 2008). Ina further effort to avoid a reversal on this issue, in its Answer Brief, counsel for E*TRADE BANK claims that it served the Amended Complaint on the Secretary of State along with the Complaint. However, the return of service shows that the Complaint was served on the Secretary of State on March 18, 2015, and it does not show that an Amended Complaint was served with the documents served that day. (See the Return of Service in R. App. D also filed with the Answer Brief as A. App. 17.) Also, note that the Amended Complaint was not verified or signed by counsel until almost two months later on May 7, 2015 and May 11, 2015 respectively. (See the Amended Complaint in R. App. E also filed as A. App. 28 pages 155-163.) Therefore, as was pointed out in the Initial Brief, the record shows that the Amended Complaint was not served on the Secretary of State. Moreover, as theComplaint which was served on the Secretary of State made no allegations about the residency of the Defendant/Appellant, no allegations about the Defendant/Appellant concealing his whereabouts, and no allegations about the Defendant/Appellant conducting business in the state, it was insufficient to provide the lower court with personal jurisdiction over the Defendant/Appellant and his property. See, e.g,, Drake v. Scharlau, 353 So.2d 961, 964 (Fla. 2d DCA 1978). POINT IL COUNSEL FOR E*TRADE BANK FAILED TO INVOKE THE LOWER COURT’S JURISDICTION OVER THE DEFENDANT/APPELLANT BY FAILING TO COMPLY WITH FLORIDA STATUTES § 48.161 In the effort to overcome its failure to comply with Florida Statutes § 48.161, counsel for E*TRADE BANK argues that an affidavit of compliance does not have to be filed when a plaintiff alleges that a defendant is evading service citing Fernandez v. Chamberlain, 201 So.2d 781 (Fla. 24 DCA 1967), Alvarado- Fernandez v. Mazoff, 151 So.3d 8 (Fla. 4th DCA 2014) and Chapman v. Sheffield, 750 So.2d 140 (Fla. Ist DCA 2000). However, these cases do not excuse the filing of an affidavit of compliance. Instead, Chamberlain and Sheffield hold that if a return receipt is filed along with the affidavit of compliance which shows that the recipient refused the certified letter, then the lower court can acquire jurisdiction over the defendant. Mazoff holds that the late filing of an affidavit of compliancemay be excused, but it does not hold that a complete failure to file an affidavit of compliance may be excused. Once again, to date, the record shows that counsel for E*TRADE BANK has not filed an affidavit of compliance. (I. App. B, pages 3- 5) In addition, at the hearing on December 30, 2015, counsel for E*TRADE BANK failed to refer to any specific document to support its claim of evasion (R. App. A, pages 1-9.), and did not even seek to admit its stack of documents filed with its Answer Brief as A. App. 28 until after the Court had denied the Appellant’s Motion to Quash and improperly granted E*TRADE BANK’s Motion for Judicial Default without allowing time for the Appellant to file an answer as required by Florida Rule of Civil Procedure 1.140(a)(3) and controlling precedent. (R. App. A, pages 9-10.) Of course, counsel’s unsworn argument could not serve as evidence of anything. See, e.g., Blimpie Capital Venture, Inc., v. Palms Plaza Partners, Ltd., 636 So.2d 838, 840 (Fla. 2d DCA 1994) citing State v. Brugman, 588 So.2d 279 (@la. 2d DCA 1991). “A trial court, as well as this court, is also precluded from considering as fact unproven statements documented only by an attorney.” Id. citing Schneider v. Currey, 584 So.2d 86 (Fla. 2d DCA 1991). Therefore, neither the unsworn statements by counsel for E*TRADE BANK nor the documents submitted after the lower court’s ruling could provide a basis for the lower court toproperly find that the counsel for E*TRADE BANK had fully complied with Florida Statutes § 48.161 as required by this Court. See, e.g., P. S. R. Associates v. Artcrafi-Heath, 364 So.2d 855, 857 (Fla. 2d DCA 1978) and Smith v. Leaman, 826 So.2d 1077, 1078 (Fla. 2d DCA 2002). Moreover, as counsel for E*TRADE BANK failed to serve many of the documents which it filed on December 30, 2015 before the hearing, and such documents were not served until it served its Answer Brief which included A. App. 28, they should not have been considered by the lower court. However, that failure is not surprising because upon receipt of the Answer Brief and Appendix, the Appellant learned that counsel for E*TRADE BANK. didn’t even attempt to serve a copy of the Amended Complaint to the Appellant via certified mail until September 17, 2015, and that such letter was sent to an incorrect address and retuned unclaimed, (See R. App. F and A. App. 28, page 123.) Although the record shows that the Appellant has always provided his correct address, counsel for E*TRADE BANK has consistently failed to mail documents to the Appellant's correct address in violation of Florida Rule of Civil Procedure 1.080 and Florida Rule of Judicial Administration 2.516. In this case, counsel for E*TRADE BANK served the Complaint on the Secretary of State on March 18, 2015, but waited nearly six months, until September 17, 2015 to attempt to serve the Appellant via certified mail. (R. App.F.) However, Florida Statutes § 48.161 provides that "[nlotice and a copy of the process shall be sent forthwith by registered or certified mail by the plaintiff or his attomey to the defendant." However, “a delay of two months in sending that notice is excessive, and that even a shorter delay—thirty-seven days—is also excessive, and does not comply with the statute. Kenrick v. Coleman, 679 So.2d 865 (Fla. 3d DCA 1996) internal citations omitted. “A delay of 150 days in this case, therefore, as a matter of law, does not meet the requirements of section 48.161.” Id. Furthermore, documents should be served a reasonable time before a hearing and a party should not expect to rely on documents which it presents for the first time at a hearing. See, Bayview Constr. Corp. v. Jomar Props. LLC., 97 $0.34 909, 912 (Fla. 4th DCA 2012). Moreover, if a party intends to proffer evidence at a hearing, the notice of hearing should indicate that evidence will be presented. See, e.g., Juliano v. Juliano, 687 So.2d 910 (Fla. 3d DCA 1997). As counsel for E*TRADE BANK did not serve key documents such as the certified mail receipts which it intended to use to show compliance with the requirements for substitute service before the hearing on December 30, 2015, the lower court should not have considered them, and if the Appellant had not been improperly excluded from such hearing, he would have objected to their submission at that time.CONCLUSION Counsel for E*TRADE BANK failed in his attempt to invoke the lower court's jurisdiction over the Defendant/Appellant and his property by substitute service of the Complaint on the Florida Secretary of State because the Complaint did not allege the jurisdictional requirements prescribed by statute for substitute service and because counsel for E*TRADE BANK did not file any return receipts showing service by certified mail on any Defendant until the hearing on the Motion to Quash and did not file any affidavit of compliance. Therefore, the lower court erred by entering the Order on Plaintiff's Motion for Judicial Default which denied the Defendant/Appellant’s Motion to Quash Substitute Service of Process and this Court should enter an order reversing the holding in the lower court’s Order on Plaintiff's Motion for Judicial Default which denied the Defendant/Appellant’s Motion to Quash Substitute Service of Process and Dismiss this Action.CERTIFICATE OF SERVICE The undersigned certifies that a copy hereof was served by U.S. Mail to counsel for the Appellee, ALEXIS FIELDS of KOPELOWITZ OSTROW, at One West Las Olas Blvd., Suite 500, Ft. Lauderdale, FL 33301; facsimile number 954- 525-4300 on this -<**“day of June, 2016. Mark A. Adams 4129 Balington Drive Valrico, FL 33596 Telephone: 813-653-4350 CERTIFICATE OF COMPLIANCE 1 HEREBY CERTIFY that this document complies with the requirements of Florida Rule of Appellate Procedure 9.210(a)(2). a / ci AT Mark A. Adams 4129 Balington Drive Valrico, FL. 33596 Telephone: 813-653-4350IN THE DISTRICT COURT OF APPEAL FOR THE SECOND DISTRICT STATE OF FLORIDA MARK A. ADAMS. Case No.: 2D16-474 L.T.No.: 09-CA-028773 Appellant, v. E*TRADE BANK, Appellee. i APPELLANT’S APPENDIX TO REPLY BRIEF «Tab A Transcript of the hearing on December 30, 2015... .Tab B ‘Transcript of the hearing on January 21, 2015. Certified copy of E*TRADE BANK’s Notice of Hearing on its Motion for Judicial Default and the Defendants’ Motions to Quash Substitute Service to be heard on December 30, 2015. TabC Return of Service on Secretary of State... . Tab D Amended Complaint. Tab E Certified Mail Returned Unclaimed ...... +» Tab FCERTIFICATE OF SERVICE ‘The undersigned certifies that a copy hereof and the attachments hereto were served by U.S. Mail to counsel for the Appellee, ALEXIS FIELDS of KOPELOWITZ OSTROW, P.A., at One West Las Olas Blvd., Suite 500, Ft. Lauderdale, FL 33301; facsimile number 954-525-4300 on this_@= wy of June, 2016. Mark A. Adams 4129 Balington Drive Valrico, FL 33596 Telephone: 813-653-4350Appendix A10 1 12 13 14 1s 16 a7 a8 19 20 21 22 23 24 25 HEARING December 30, 2015 E-TRADE BANK vs ADAMS 1 IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA CASE NUMBER; 2009-28773 Division M E-TRADE BANK, Plaintiff, MARK A. ADAMS; BUCKHORN PRESERVE HOMEOWNERS ASSOCIATIONS, INC.; WELLS FARGO BANK, N.A.; LISA S. ADAMS; UNKNOWN TENANT (S); IN POSSESSION OF THE SUBJECT PROPERTY, Defendants. | HEARING HELD BEFORE THE HONORABLE SANDRA TAYLOR (Pages 1-11) Wednesday, December 30, 2015 20:12 a.m. - 10:25 a.m. Hillsborough County Courthouse 800 East Twiggs Street Tampa, Florida Reported by: LYNDA B. LUNSETH Notary Public, State of Florida Esquire Deposition Solutions - Tampa, Florida 813.221.2535 FAX: 813.221.0755 Job Number: 0268204 - 30301917 ESQUIRE aac Oe EsquireSolutions.com10 a a2 13 uw 16 17 18 19 20 21 22 23 24 25 HEARING E-TRADE BANK vs ADAMS APPEARANCES: On Behalf of Plaintiff: ALEXIS FIELDS, ESQUIRE Kopelowitz, Ostrow, Ferguson, Weislberg, Gilbert, P.A. One West Las Olas Boulevard Suite 500 Fort Lauderdale, Florida 33301 954.525.4100 December 30, 2015 2 QESOQUIR 800.211.DEPO (3376) EsquireSolutions.com10 a Fry 13 14 15 16 HEARING E-TRADE BANK vs ADAMS December 30, = INDEX Proceedings ae Ruling by the Court... Certificate of Reporter...... , ESQUIRE 800.211.DEPO (3376) EsquireSolutions.comCr er x 10 a 12 13 14 15 16 17 18 19 20 21 22 23 25 HEARING December 30, 2015 E-TRADE BANK vs ADAMS 4 PROCEEDINGS THE COURT: We are here on plaintiff's motion for judicial default and defendant's motion to quash substitute service and dismiss action. Case number 2009-28773, E-Trade Bank versus Adams. | MS. FIELDS: Good morning, Your Honor. Alexis | Fields here on behalf of the plaintiff. 1 would bring the Court's attention to the fact that the borrower, who is pro se, yesterday filed -- I'm reading it, "Defendant's notice of telephonic appearance for the hearing scheduled for December 30th at 10 a.m." Tt is not a motion, it just basically declares that they shall be appearing telephonically, and then provides a phone number for the Court to reach them. I can approach, if you like. THE COURT: Please. MS. FIELDS: Just to make sure everything is clear we do have a court reporter here to make sure everything is on the record. I believe the reason the defendant wants to appear telephonically is because we've been having issues serving them. They haven't been awarded service, they've been evading service. We know where they are. They xefuse to answer the door. OQESQUIRE amaOu ew ne 10 a 12 13 14 15 16 17 18 19 20 21 22 23 24 25 HEARING December 30, 2015 E-TRADE BANK vs ADAMS 5 There are activated files where they actually chased down process servers in their car. They've shown up at the process server's house and posted "warning, trespass," and they've been very aggressively not accepting service. One of the times that we were here in court I had a process server in the courthouse, and I announced that he would be serving him. Mr. Adams then bolted from the courtroom and he actually managed to get away without getting served. So I believe now he is refusing to show up to the courthouse for fear of another process server. However, I also have a strong feeling that no matter what happens here today, if Mr. Adams is not pleased with the results, he's going to appeal or do some filing of motions. So I think -- I don't know what the Court's inclined to do, but we have a court reporter here and I don't know if we want to involve Mr. Adams on the phone, or if we want to just proceed without him and keep the record clear. THE COURT: This was his motion, and it's an evidentiary hearing. I don't allow evidentiary hearings by phone, even if he had properly filed a motion, unless you consent to an evidentiary hearing being held by phone. Q ESQUIRE 800.211.DEPO (3376) Peer Nord EsquireSolutions.comSYA HR YK HE 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 HEARING December 30, 2015 E-TRADE BANK vs ADAMS. 6 MS. FIELDS: Your Honor, we do not consent. THE COURT: So filing this and saying "I'm going to appear by phone and call me," is totally insufficient. This has been going on for 6 years now. MS. FIELDS: Yes, Your Honor. And we have filed affidavits and we've also filed correspondence where Mr. Adams has sent letters to attorneys from the inception of the lawsuit very threateningly, including letters to partners at my firm involved in this case to their personal home. He's extremely aggressive and he's refusing service. He clearly intends to litigate the case, but he's not doing so. He's not cooperating at all in any way whatsoever. I'm prepared to offer into evidence the affidavits we have. We've also attempted to send -- we ended up serving him by substitute service on the State of Florida -- pursuant to Statute, and we tried to send him certified mail for accepted service so that we can comply with the statute and file an affidavit of compliance. He's refusing those as well. And I have the return of multiple attempts. 1 | have Fedzx tracking receipts. And I am prepared to ESQUIRE 800.211.DEPO (3376) Pacer ears EsquireSolutions.com© OY HOR wwe 10 a. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 HEARING December 30, 2015 E-TRADE BANK vs ADAMS. 7 offer all of that into evidence to show that his moving to quash should be denied. And if the Court is not willing to do that, we ask that the Court enter a judicial default due to the excessive nature of Mr. Adams' behavior; however, I'm assuming he would just file a motion to vacate and we would just continue on. If the Court is not inclined to grant the motion for judicial default, I would ask that his motion to dismiss the action be deemed an answer so set this for trial and file a that we can file motion for summary judgment. We just really want to move the case along. There's no reason that it should be -- that this should be happening. THE COURT: You said this morning or yesterday morning is an amended motion? MS. FIELDS: An amended response to our motion for judicial default. and he cites to a case saying, that we are required to send him by certified mail the documents and then file an affidavit of compliance. I have case law here with me, Your Honor, saying that when the defendant is evading service and has made it impossible for us to certify mail, that that requirement is waived. The case is Fernandez Beach. A case in which ESQUIRE 800.211.DEPO (3376) Esquire Solutions.comoe ww 10 a 12 13 14 15 16 17 18 19 20 21 22 23 24 25 HEARING December 30, 2015 E-TRADE BANK vs ADAMS. 8 Mr. Adams' cites, Smith, is extremely distinguishable from this case. In that case the certified mail is coming back with letters saying that he doesn't live at that address anymore. That's not substantial compliance, because they -- we know he's living at this address. Since the foreclosure case was filed he's been contesting it. He lives there and we have affidavits of evasion. People see a process server coming in, they run from the house and refuse to answer the door, and chase them off the property and show up at the process server's house with "warning, trespassing," signed by Mark Adams. Those are all filed, the affidavits. so we know that he lives there. He is just refusing to accept anything either by certified mail, FedEx, or process server. And he also has the documents, which you can tell from his motion to dismiss, because he actually makes substantive allegations he thinks that the case should be dismissed for what I would deem to be affirmative defenses. I'm not the Court, I obviously can't make that ruling. Your Honor, I'm so nervous. THE COURT: I know. Don't be. Don't be. All right. So defendant's motion to quash substitute QESQUIRE 800.211.DEPO (3376) EsquireSolutions.com17 18 19 20 21 22 23 24 25 HEARING December 30, 2015 E-TRADE BANK vs ADAMS 9 service and dismiss action is denied. Plaintiff's motion for judicial default. Response to plaintiff's motion for judicial default has been to say a motion to quash prevents the entry of default. MS. PIELDS: Yes, Your Honor. THE COURT: So that's -- I would assume that's why he now at 2:38 yesterday afternoon filed another amended motion to quash service of process to dismiss the action. MS. FIELDS: I'm sorry, Your Honor. what I | have, and I don't know if I just don't have the vight one, I have the amended response to the motion for judicial default. THE COUR’ I have that too. He also filed an amended motion to quash substitute service of process and to dismiss the action. My suspicion is he would then be relying upon there's a motion to quash that prohibits entry of a default; however -- MS. FIELDS: The motion to quash is also -- a motion to quash and motion to dismiss the action. So it's a combination. The original motion to quash substitute service and dismiss the action. 1 do have that. THE COURT: I'm going to deny the motion the @ESQUIR 800.211.DEPO (3376) heat ent EsquireSolutions.comSeyYaon eke wwe 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 HEARING December 30, 2015 E-TRADE BANK vs ADAMS 10 motion to quash, grant the motion for judicial default. MS. FIELDS: Thank you, Your Honor. As a matter of just housekeeping, may I introduce my exhibits should this -- THE COURT: Yes. MS. FIELDS: Thank you. THE COURT: Anything further? MS. FIELDS: No, thank you. THE COURT: Get the orders. You'll get the orders, (At 10:25 a.m., the above proceedings concluded. ) ESQUIRE acer Soca ss EsquireSolutions.comwon ey ane 10 1 12 13 14 16 17 18 19 20 21 22 23 24 25 HEARING December 30, 2015 E-TRADE BANK vs ADAMS " CERTIFICATE OF REPORTER STATE OF FLORIDA ) COUNTY OF HILLSBOROUGH ) I, Lynda B. Lunseth, certify that I was authorized to and did stenographically report the deposition above proceedings; and that the foregoing pages are a true and complete record of my stenographic notes taken during said proceedings. I further certify that I am not a relative, employee, attorney, or counsel of any of the parties, nor am I a relative or employee of any of the parties! attorneys or counsel connected with the action, nor am I financially interested in the action. Dated this 18th day of February, 2016. hynde B. Zanecch Lynda B. Lunseth QESQUIRE wat dao Gg EsquireSolutions.comAppendix B16 17 18 19 20 24 22 23 24 25 IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA MORTGAGE FORECLOSURE DIVISION E*TRADE BANK, Plaintiff, vs. Case No.: 09-CA-028773 MARK A. ADAMS; Division: B BUCKHORN PRESERVE HOMEOWNERS ASSOCIATIONS, INC WELLS FARGO BANK, N.A.; LISA S. ADAMS; UNKNOWN TENANT (S)IN POSSESSION OF THE SUBJECT PROPERTY Defendants. BEFORE: JUDGE SANDRA TAYLOR TAKEN AT Courtroom 500 Fifth Floor George Edgecomb Courthouse 800 East Twiggs Street Tampa, Florida 33602 TIME: 11:00 a.m, docket DATE: January 21, 2045 REPORTED BY Anita Ellababidy, Court Reporter and Notary Public State of Florida at Large Pages 1 - 10 MILLS REPORTING GROUP, INC (813) 272-1814oak oN 1 42 13 14 15 16 17 18 19 20 2 22 23 24 25 APPEARANCES : On behalf of the Plaintiff: ALEXIS FIELDS, ESQUIRE 200 SW 1st Avenue Suite 1200 Fort Lauderdale, Florida 33304 (954) 525-4100 On behalf of the Defendant: Proceadings MARK ADAMS, PRO SE CONTENTS Reporter's Certificate NILLS REPORTING GROUP, INC. (813) 272-1814 PAGE 1016 7 18 19 20 24 22 23 24 25 PROCEEDINGS THE COURT: 09-28773, E*Trade versus Adams. NS. FIELDS: Yes, Your Honor. My name's Alexis Fields on behalf of the plaintiff. THE COURT: I'm sorry. May I have your name again? NS. FIELDS: Alexis Fields. THE COURT: Alex -- you're cutting in and out. Alexis Stevens? MS. FIELDS Fields THE COURT: Fields. MS. FIELDS: F-I-E-L-D-S. THE COURT: Thank you. And, sir? NR. ADAMS: Good morning, Your Honor. My name's Mark Adams. I did not receive a notice that counsel for the plaintiff was going to appear by phone. There's nothing else that I'm showing on the docket. However, if you have no problem with out-of-town counsel appearing in the future for defendants in this action, if they of course file appropriate notice in advance, then I withdraw my objection to them appearing for that purpose today THE COURT: Then unless my orders say you can't appear by phone on a non-evidentiary NILLS REPORTING GROUP, INC. (813) 272-181412 43 14 15 16 7 18 19 20 241 22 23 24 25 issue -- all evidentiary issues will require an appearance. But you can. MR. ADAMS: Thank you, Your Honor. And this is an evidentiary hearing. It's a hearing on a motion to quash the constructive service by publication and dismiss. I was noticed by new counsel for the plaintiff. They failed to notice it as an evidentiary hearing. So that's one problem they have Of course Bayview Constri 1v. JoNar_ Properties says an affidavit must be served a reasonable time before hearing at which it is to be used. And of course, the plaintiff has the burden to satisfy Your Honor that they met the requirements for service of process by publication. But if I may, Your Honor -- if I may approach, I have something I think we can expose -- dispose of this hearing rather quickly without waiving any further objections should you not find this dispository of the issue. THE COURT: Okay MR. ADAMS: Thank you, Your Honor THE COURT: Would you announce what it is so counsel -- MILLS REPORTING GROUP, INC. (813) 272-1814on © 10 "1 12 13, 14 15, 16 17 18 19 20 2 22 23 24 25 MR. ADAMS: Certainly. THE COUR’ -- counsel will know what I'm looking for. MR. ADAMS: It is the proof of publication that counsel for the plaintiff -- new counsel for new plaintiff filed in December on December 1st, 2012. I'd like you to take judicial notice of it for the record. As you know, Your Honor, the plaintiff has the burden of strictly complying with the statutes for notice of service -- for process - for service and process and also constructive notice by publication. If you take a look at the affidavit or proof of publication filed on December 1st, 2014, the affidavit shows a notice of action naming the original plaintiff, BAC Home Loan Servicing LP versus Mark A. Davis. That's Davis, D-A-V-I-S, et al, defendants. It does not name Mark Adams as a defendant, nor does it name any other person as a defendant Furthermore, the notice has an incorrect address due to the former counsel for the former plaintiff's lack of diligent search and inquiry And the Tampa Record, affidavit of the publisher, MILLS REPORTING GROUP, INC. (813) 272-1814RON Seernoaa 12 13 14 15 16 17 18 19 20 24 22 23 24 25 here the proof of publication testified that it's a weekly newspaper. However, Florida statute 702.035 which concerns the legal notice concerning foreclosure proceedings requires that any notice -- MS. FIELDS: Your Honor -- NR. ADAMS: -- of publication required by this section shall be deemed to have been -- THE COURT: Okay. Sir -- sir, can you wait just a moment. Yes, ma'am NS. FIELDS: Oh, I'm sorry. We need to object little bit. The motion that was noticed for today, defendant's motion to quash, the issue that this pro se defendant is bringing up were not at all mentioned in his motion to quash, none of this -- none of this is anything I've heard before. MR. ADAMS: That -- that's. MS. FIELDS: So if the basis of his motion was the fact that he's saying that the proof of publication was not in the court file which it was. And we provided him a courtesy copy of it. So if he's going to -- and he's already objected to the fact that there is no evidentiary hearing, if he's going to bring up these evidentiary MILLS REPORTING GROUP, INC. (813) 272-1844o ent one on 10 4 12 13 14 15 16 17 18 19 20 21 22 23 24 25 issues, I find that it's deferring. We will have to reset it. But I'm not prepared to go on with the issues that he's going on with today. That is not in his motion or his amended motion which was filed, I believe, yesterday MR. ADAMS: Your Honor, if I may respond? First of all, Your Honor, the original motion to quash service of process filed August 26 of 2013 does bring up the fact that the former plaintiff's former counsel failed to strictly comply with the statutes regarding constructive service by publication and that the notice of publication was deficient in that it wasn't in the record at the time. THE COURT: Okay. I'm going to reset this for an evidentiary hearing. MR. ADAMS: Your Honor, if I may object just briefly. They scheduled a hearing it. It was their fault they messed up. And -- THE COURT: I'm rescheduling the hearing I'm not about to get reversed because I didn't have an evidentiary hearing on a motion to quash. Clearly this didn't say evidentiary. Regardless of whose fault it is, the case law has become abundantly clear MILLS REPORTING GROUP, INC. (813) 272-181414 15 16 7 18 19 20 21 22 23 24 25 MR. ADAMS: Well -- THE COURT: And I'm not going to argue it MR. ADAMS: Well, I was just going to submit a case right on that point, Your Honor. THE COURT: I'm not going to argue it with you anymore. MR. ADAMS: Okay. Can I just mention the case then, please? It's Bayview Construction Corporation -- THE COURT: Sir. MR. ADAMS: vs. JoHar. THE COURT: Listen to me. I'm done with this. I'm setting an evidentiary hearing. We'll mark it as such. I'll give you a special date just as soon as I find 30 or 40 minutes or how -- however much time we need. MR. ADAMS Thank you, Your Honor. It should only take about five or 10 minutes. It's the notice -- THE COURT I'll decide that MR. ADAMS: -- is deficient THE COURT: It's taken five or 10 minutes now. And I haven't heard from either side, and I haven't had any testimony NR. ADAMS: They set the hearing, Your MILLS REPORTING GROUP, INC. (813) 272-1814RON © mrt oo 40 1 12 13 14 15 16 17 18 19 20 24 22 23 24 25 Honor. Not me, I tried to several times. THE COURT: Sir -- NR. ADAMS: No problem, Your Honor. THE COURT: -- we're done. NR. ADAMS: I was just informing the Court. THE COURT: We're done. MR. ADAMS: Okay. Thank you, Your Honor I'm closing my stuff up right now. MS. FIELDS: Thank you, Your Honor. (The proceedings concluded at 11:29 a.m.) NILLS REPORTING GROUP, INC. (813) 272-181415 16 47 18 19 20 24 22 23 24 25 10 CERTIFICATE OF REPORTER STATE OF FLORIDA. COUNTY OF HILLSBOROUGH. I, ANITA S. ELLABABIDY, court reporter, do hereby certify that I was authorized to and did stenographically report the proceedings and evidence in the above-styled case as stated in the caption hereto and that the transcript is a true and complete record of my stenographic notes thereof. I FURTHER CERTIFY that I am not a relative, employee, attorney or counsel of any of the parties, nor and I a relative or employee of any of the parties’ attorneys or counsel connected with the action, nor am I financially interested in the action DATED this 25th day of January, 2015. ANITA we Hihala Court Reporter MILLS REPORTING GROUP, INC. (813) 272-1814Appendix CFiling # 33730886 E-Filed 10/27/2015 02:29:52 PM IN THE CIRCUIT COURT OF THE 13™ JUDICIAL CIRCUIT, IN AND FOR HILLSBOROUGH COUNTY, FLORIDA CASE NO.: 2009-28773 Div. M E*TRADE BANK, Plaintiff, vs. MARK A. ADAMS; BUCKHORN PRESERVE, HOMEOWNERS ASSOCIATIONS, INC.; WELLS FARGO BANK, N.A.; LISA S. ADAMS; UNKNOWN TENANT(S), IN POSSESSION OF THE SUBJECT PROPERTY, ______Defendants, NOTICE OF SPECIAL SET HEARING (1 Hour Special Set) PLEASE TAKE NOTICE that the undersigned will call up for hearing in the above- styled case the following: PLAINTIFFS MOTION FOR JUDICIAL DEFAULT and DEFENDANT'S MOTION TO QUASH SUBSTITUTE SERVICE & DISMISS ACTION DATE: Wednesday, December 30, 2015 TIME: 10:00 a.m. JUDGE: Presiding Judge PLACE: — George Edgecomb Courthouse 800 E. Twiggs St. Courtroom 500 Tampa, FL 33602 WE HEREBY CERTIFY that prior to noticing this hearing the undersigned has made a good faith effort to resolve the foregoing issues with opposing counsel, If you are a person with a disability who needs any accommodation in order to participate in this proceeding, you are entitled, at no cost to you, to the provision of certain assistance. Please contact the Court Administrators ADA Coordinator within two (2) working days of your receipt of this notice. if you are hearing or volce impaired, call the Florida Relay Service at (800) 955-8711 (TTY), or (800) 955-8770 (Woice). 10/27/2015 2:29 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 1CASE NO.: 2009-28773 Div, M CERTIFICATE OF SERVICE | HEREBY CERTIFY that a true and correct copy of the foregoing was served by Electronic Mail on 27" day of October, 2015 to: Robert L. Tankel, Esquire, Attorney for Beckhom Preserve HOA, 1022 Main Street, Suite D, Ounedin, Florida 34698, pleadings@condocollections.com, and by Mailed to: Mark A. Adams and Lisa S. Adams, 4129 Balington Drive, Valrico, Florida 33596; Wells Fargo Bank, N.A, clo 101 North Phillips Ave, Sioux Falls, SD 57104 and Current Resident 4129 Balington Drive, Valrico, Florida 33596. Respectfully submitted, KOPELOWITZ OSTROW FERGUSON WEISELBERG GILBERT, P.A. Attorneys for Plaintiff 200 SW ‘st Avenue, 12th Floor Ft, Lauderdale, Florida 33301 ‘Telephone No.: (954) 525-4100 Facsimile No, (@54) 825-4300 f \ Bar No.: 0120464 stéin@kolawyers.com ALEXIS FIELDS Fla. Bar No.: 95953 fields@kolawyers.com 10/27/2015 2:29 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 2Appendix DFiling # 25450935 E-Filed 03/30/2015 10:20:20 AM RETURN OF SERVICE State of Florida County of Hillsborough Circuit Court Case Number: 2009-28773 DIV. B Piainttt E*TRADE BANK vs. Defendant: MARK A. ADAMS For: Craig Brett Stein KOPELOWITZ OSTROW PA, 200 Sw tst Avenue #12 Floor Ft Lauderdale, FL 33904 Received by CAPLAN AND CAPLAN PROCESS SERVICE on the 16th day of March, 2015 at 4:00 pm to be served on MARK ADAMS, BY SERVING: FLORIDA SECRETARY OF STATE, 2661 EXECUTIVE CENTER CIRCLE WEST, TALLAHASSEE, FL 32398, |, ERIC L. LARSON, do hereby affirm that on the 18th day of March, 2018 at 2:20 pm, I: served the SECRETARY OF STATE by serving a true copy of the Allas Summons, Notice of Lis Pendens, Complaint and Exhibits with the date and hour of service endorsed thereon by me, to: MARGARET FREEMAN as CLERK FOR SOS at 2661 EXECUTIVE CENTER CIRCLE WEST, TALLAHASSEE, FL 32399, as the designated agent for the Florida Secretary of State to accept service of process on behalf of MARK ADAMS. An administrative fee of $8.75 was also tendered. Additional Information pertaining to this Service: MARGARET FREEMAN, BF, 50 YRS, 57, 170 LBS, BLK HAIR, NO GLASSES, CLERK AUTHORIZED TO ACCEPT SERVICE FOR SECRETARY OF STATE Under penalty of perjury, | declare that I have read the forgoing Verified return of Service and the facts stated in it are true, that | thet | am over the age of 18, have no interest In the above action, and am a Certified Process Server, in good standing, in the judicial cireutt in which the process was served. | also certify that the above stated facts are correct to the best of my knowl svant to F.S. 92,525(2), Notary not required, ERIC L. LARSON CPS #083, 2ND JUDICIAL CIRCUIT CAPLAN AND CAPLAN PROCESS SERVICE 172 W. Flagler St Miami, FL 33430 (305) 374-3426 ‘Our Job Serial Number: CPN-2015010459 Ref: 10459 Cerne 18201 Dba ees, Press Snare Tver énAppendix EE*TRADE BANK, a foreign corporation, Plaintiff, a MARK A. ADAMS, an individual; LISA 8, ADAMS, "an individual; BUCKHORN PRESERVE HOMEOWNERS ASSOCIATIONS, INC, a Florida not-for-profit corporation; WELLS FARGO BANK, NA, a foreign corporation; JOHN DOE and JANE DOE, as Unknown Tenants; and any unknown helrs, devisees, grantees, creditors, and other unknown persons, unknown entitles, unknown parties or unknown spouses claiming by, through or under any of the above-named Defendants, Defendants. IN THE CIRCUIT COURT OF THE 13% JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA CASE NO.: 09-CA-028773 Div. B seer teal VERIFIED AMENDED CO} ORECLOSURE ANI GI Plaintif, E*Trade Bank (‘E*Trade’), hereby sues Defendants, Mark A. Adams ('M. Adams’), Lisa 8. Adams (‘L. Adams"), Buckhorn Preserve Homeowners Associations, Inc, (Buckhorn Preserve’), Wells Fargo Bank, NA. as Unknown Tenants, and any unknown heirs, (Wells Fargo"), John Doe and Jane Doe Cevisees, grantees, creditors, and other unknown persons or unknown spouses claiming by, through and under any of the above- named Defendants, and avers: PARTIES, JURISDICTION AND VENUE. 1. This is an action against M. Adams, L. Adams, and the other named Defendants to foreclose @ mortgage on real property located In Hilsborough County, areca 0155Florida and to recover damages in excess of the minimum jurisdictional requirements of this Court, exclusive of interest, costs and attomeys' fees. 2. Venue is proper in this jurisdiction because, among other reasons, the real property that is the subject matter of the mortgage sought to be foreclosed is located in Hillsborough County, Florida, 3. E*Trade is a foreign corporation conducting business in Hillsborough County, Florida. 4. Bayview Loan Servicing, LLC (Bayview), is a Delaware limited labilty ‘company conducting business in Hillsborough County, Florida, 8. M. Adams is an individual residing in Hillsborough County, Florida and/or is 4an individual who may have en interest in the real property at issue in this action as located in billsborough County, Florida and is suijuris. M. Adams has been deliberately evading service, therefore Bayview has had to serve the Florida Secretary of State through an Alias ‘Summons pursuant to F.S, § 48.181. 6. ~_L.Adams is an individual residing in Hillsborough County, Florida andioris an Individual who may have an interest in the real property at issue in this action as located in Hillsborough County, Florida and is suf juris. L. Adams has been deliberately evading service, therefore Bayview has had to serve the Florida Seoretary of State through an Alias ‘Summons pursuant to F.S. § 48.181. 7, Buckhom Preserve is a Florida not-for-profit corporation conducting business in Hillsborough County, Florida, 8. Wells Fargo Is a foreign corporation conducting business in Hillsborough ‘County, Florida. ances A 01568. John Dos and Jane Doe are the unknown tenanis situated at the property located in Hillsborough County, Fiorida. 10. All conditions precedent to the prosecution of this action have been performed, have occurred, have been excused or walved, 11, Bayview, as servicer for E*Trade, has retained the services of undersigned counsel to prosecute this action and has agreed to pay counsel @ reasonable fee for its services. Bayview, as servicsr for E*Trade, has also incurred costs in bringing this action, M. Adams and L. Adams are obligated to pay Bayview’s reasonable atfomeys’ fees and ‘costs incurred In prosecuting this lawsuit pursuant to the terms of the loan documents which form the basis of this action ACTS ALL S 12. On August 28, 2003, M. Adams and L. Adams executed and delivered an Adjustable Rate Note ("Note") to E-Loan, Inc. (‘Lender’), in the principal amount of One Hundred Sixty Seven Thousand Nine Hundred Ninety Two Dollars and Zero Cents ($187,992.00). A true and correct copy of the Note Is attached hereto as Exhibit A’, 13, On August 29, 2003, M. Adams and L. Adams executed and delivered to Mortgage Electronic Registration Systems, inc., es nominée for Lender, a Mortgage (‘Mortgage’), securing payment of the Note, which mortgaged the real properly legally described as: Lot 28, Block 1, BUCKHORN PRESERVE-PHASE 2, according to the map or plat thereo? as recorded in Fiat Book 84, Page 67, Public Records of Hillsborough County, Florida (hereinafter the "Property’). A true and correct copy of the Mortgage Is attached hereto as Exhibit "8". asia s 5 15714. . The Mortgage was recorded on September 2, 2003, in Official Records Book 13040, Page 245, of the Public Records of Hillsborough County, Florida. 15. On October 12, 2008, Mortgage Electronic Registration Systems, Inc., as nominee jor Lender, executed an Assignment of Mortgage (2009 Assignment of Mortgage"), in favor of BAC Home Loans Servicing, LP fk/a Countrywide Home Loans Servicing, LP. A true and correct copy of the 2009 Assignment of Mortgage Is attached hereto as Exhibit “C". 16. The 2009 Assignment of Mortgage was recorded on November 13, 2009, in Official Records Book 19568, Page 429, of the Public Records of Hillsborough County, Florida. 17. On July 26, 2013, Bank of America N.A., successor ‘by merger to BAC Home Loans Servicing, LP ftva Countrywide Home Loans Servicing, LP, executed a Corporate Assignment of Deed of Trust ("2013 Assignment of Mortgage”), in favor of E*Trade. A true ‘and correct copy of the 2013 Assignment of Mortgage is attached hereto as Exhibit “D". 18. . The 2013 Assignment of Mortgage was recorded on August 7, 2013, in Official Records Book 22063, Page 1962, of the Public Records of Hillsborough ‘County, Florida. 19. M. Adams and L. Adams are the record owners of the Property. UNT L= AG’ A BREACI (as toM. Adams) 20. E*Trade repeats and realleges the allegations set forth in paragraph 1 through 19 above as if fully set forth herein, 21. iM. Adams is in default of the Note for failure to make payments due on January 1, 2009, and each month thereafter. samme é 015822. On February 17, 2008, a Notice of intent to Accelerate (‘Notice of Default") was sent to M. Adams, notifying him of his defauit of the Note for non-payment and demanding payment of ail past due amounts to avoid the potential acceleration of the Note. ‘and the potential foreclosure of the Morigage. A true and correct copy of the Notice of Default is attached hereto as Exhibit ’E". 23. _ M. Adams ignored the demands made in the Notice of Default 24. E*Trade is the holder of the original Note, as secured by the Mortgage, and has standing to enforce the terms thereof. 25, In accordance with its rights under the Note, E*Trade does hereby accelerate the entire balance due under the Note as being immediately due and payable, 26. There is due and owing to E*Trade, from M. Adams, as of this date on the Note, principal in the amount of $167,981.94, plus applicable interest, late charges and ther contractual fees. in addition, interest will continue to accrue and other charges and advances may be incurred by E*Trade, including but not limited to, attomeys' fees and casts for which M, Adams Is responsible. WHEREFORE Plaintiff, E*Trade Bank, demands judgment for damages against Defendant, Mark A. Adems, together with interest, costs, attorneys’ fees and such other and further relief as the court deems proper. ci jl. ACTION Ft Ri OF {as to L. Adams) 27. E*Trade repeats and realleges the allegations set forth in paragraph 4 through 19 above as if fully set forth herein, 28. 1. Adams is in default of the Note for failure to make payments due on January 1, 2009, and each month thereaiter, saan e 015929. On February 17, 2009, the Notice of Default was sentto L. Adams, notifying her of her default of the Note for non-payment and demanding payment of all past due ‘amounts to avoid the potential acceleration of the Note and the potential foreclosure of the Mortgage. A true and correct copy of the Notice of Default is aitached hereto as Exhibit“E*. 30. _L. Adams ignored the demands made in the Notes of Default. 31. _ E*Trade is the holder of the original Note, as secured by'the Mortgage, and has standing to enforce the terms thereof. 32. _Ineccordance with its rights under the Note, E*Trade does hereby accelerate the entire balance due under the Note as being immediately due and payable, 33, There is due and owing to E*Trade, from L. Adams, as of this date on the Note, principal in the amount of $167,091.94, plus applicable interest, late charges and other contractual fees. In addition, interest will continue to accrue and other charges and advances may be incurred by E*Trade, including but not limited to, attorneys’ fees and ‘costs for which L. Adams is responsible. WHEREFORE Plaintiff, E*Trade Bank, demands judgment for damages against Defendant, Lisa S. Adams, together with interest, costs, attorneys’ fees and such other and further relief as the court deems proper. NT IM = A TO FORECLOSE MORT 34. E*Trade repeats and realleges the allegations set forth in paragraph 1 through 19 above as if fully set forth herein. 35. This is a count to foreclose a mortgage on real property located in Hillsborough County, Florida. 36. The Mortgage ie in defauit as a result of M. Adams’ andL. Adams’ default of the Note for failure to make payments due January 1, 2009, and each month thereafter. seers.) ie 016037. _ E*Trade is the holder of the Mortgage and has standing to enforce the terms thereof. 38. M, Adams may claim an interest in the Property by virtue of the Special ‘Warranty Deed recorded in Official Records Book 13040, Page 243, of the Public Records of Hillsborough County, Florida; or may otherwise claim an interest in the Property, but his interest is subject to, and inferior to, the lien of E*Trade. 38. L. Adams may claim an interest in the Property by virtue of the Special Warranty Deed recorded in Official Records Book 13040, Page 243, of the Public Records of Hillsborough County, Florida; or may otherwise claim an interestin the Property, but his interest is subject to, and inferior to, the lien of E*Trade, 40. | Buckhorn Preserve may claim an interest in the Property by virtue of the Declaration of Covenants, Conditions and Restrictions, and all exhibits and amendments thereto, 28 recorded in the Official Public Records of Hillsborough County, Florida; or may otherwise claim an interest in the Property, butts Interestis subject to, and inferior to, the lien of E*Trade. 41. Wells Fargo may cleim an interest in the Property by virtue of the Mortgage Home Equity Line of Gredit recorded in Official Records Book 13040, Page 262, of the Public Records of Hillsborough County, Florida, as assigned by virtue of the Assignment of Mortgage recorded In Oficial Records Bock 14920, Page 1040, of the Public Records of Hillsborough County, Florida; or may otherwisa claim an Interest in the Property, but its interest Is subject to, and inferior to, the lien of E*Trade. 42. John Doe and Jane Doe, as unknown persons in possession ofthe Property, may claim an interest in the Property, but their interest is subject to, and inferiorto, the lien of E*Trade. sparen 5 018143, In addition to the above named Defendants, the unknown spouses, heirs, devisees, grantees, assignees, creditors, trustees, successors in interest or other parties claiming an interest in the subject property by, through, under or against any of said Defendants, whether natural or corporate, who are not known to be alive or dead, dissolved or existing, are joined as Defendants herein. The claims of any of sald unknown parties are subject, subordinate and inferior to the interest of E*Trade. 44. Bayview, as servicer for E-Trade, has retained the services of the undersigned law firm to representit in this matter and is obligated to pay them reasonable foes for their services. E*Trade is entitied to recover its costs and reasonable attorney's fees from M. Adams and L. Adams pursuant to the Mortgage. WHEREFORE Plaintiff, E*Trade Bank, demands: @. That this Court adjudge the lien of the Mortgage to be a valid lien upon the ‘subject Property, superior to the rights, claims, interest, and liens of all the Defendants and any and all persons claiming by, through, under or against Defendants subsequent to the fling of the Lis Pendens; b, That an account be made of the sums due to E-Trade under the Note, and if ‘the sum due is not paid within the time set by this Cour, that the Property be sold in accordance with Section 45,031, Florida Statutes; ¢. _ Thatall Defendants made party to this cause, and all persons claiming under or against said Defendants, since the filing of the Notice of Lis Pendens be foreclosed; 0162d. That if the proceeds of the sale are insufficient to satisfy E*Trade's claim, that a Deficiency Judgment be entered against Defendants, Mark A. Adams and Lisa S. Adams; and ‘That this Court grant such other and further ralief as it deems proper. Fl oI IFICATION Under penalty of perjury, | declare that | have read the foregoing, and the facts alleged therein are true and correct to the best of ledge and belief. low Loan Servicing, LLC, as leer for E-Trac oo lay hse CERTIFICATE OF SERVICE ‘HEREBY CERTIFY that a true and correct copy of the foregoing was served via eiectronic mail upon: Robert L. Tankel, Esq., Attomey for Buckhorn Preserve HOA, 1022 Main Street, Suite D, Dunedin, FL 34698, pleadings@condocolleotions.com; and via U.S. ‘mail upon: Mark A, Adams, Pro Se, 4129 Balington Drive, Valrico, FL 33594; Lisa 8. ‘Adams, Pro Se, 4129 Belington Drive, Valrico, FL 33594; Walls Fargo Bank, N.A., c/o 101 North Phillips Ave, Sioux Falls, SD 57104; and Current Resident, 4129 Balington Drive, Valrico, FL 33594, on this Uday of May, 2015, Respectfully submitted, KOPELOWITZ OSTROW PA. Aitomeys for Plaintit 200 SW 1st Avenue, 12th Floor Ft. Lauderdale, Florida 33301 Fla. Bar No.: 0120464 Siein@kolawyers.com 0163Appendix F15 tach this card to Be back of the malploce, Coron the fen if space poets. 1 re od wrachA. Adems ” 4129 Gatington Deve Valrico, FL 33594 r i i i 1 1 [ I t ' neopost™ Gets $09,292 — Mark A. Adams 4129 Balington Drive Valrico, FL 33594