Neustein Law Group Wins Final Judgment on Quiet Title Action in Broward County as Counterclaim to Foreclosure Action
IN THE CIRCUIT COURT OF THE 17th
JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
CASE NO.: CACE12035126
SECTION: 11
VPH NPL JKC 57 TRUST,
Plaintiff,
vs.
ALEX MANUEL DUENO, et al.,
Defendants
SUMMARY FINAL JUDGMENT FOR DEFENDANT, ALEX M. DUENO AND QUIETING TITLE AND CANCELLING NOTE
THIS CAUSE came to be heard before the undersigned Judge in open Court on January 6, 2014 upon Defendant’s Verified Motion for Summary Judgment.
The Court finds that the following facts are undisputed:
- Plaintiff’s predecessor, Nomura Credit & Capital, Inc. (hereafter, “Nomura”) filed an action to foreclose on the Note and Mortgage sued upon herein on December 27, 2006 under Case No: CACE 06-021183 in the Circuit Court of Broward County, Florida (hereafter, “2006 lawsuit”).
- Coincidental thereto, Normura filed an recorded a Notice of Lis Pendens in Public Records of Broward County, Florida.
- Both filings of the 2006 lawsuit and the recording of the Lis Pendens are a matter of public record.
- Paragraph five (5) of the 2006 complaint accelerated the Note and Mortgage.
- During the course of litigation, Normura filed two (2) Motions for Summary Judgment and two (2) Affidavits in Support of the Motions wherein they confirmed the acceleration of the Note and Mortgage and demanded the full balance due.
- On April 30, 2008, this Court through the Honorable Patti Englander Henning entered a Final Judgment for Defendant, Alex M. Dueno.
- That as a result of the filing of the 2006 lawsuit wherein the Note and Mortgage were accelerated and the filing of the two (2) Affidavits confirming same, Nornura placed these documents in the public record.
- The Court further finds as a matter of law that when a lender elects to accelerate payment on a Note and Mortgage, the lender accelerates the maturity of same. Casino Espanol de la Havana, Inc. v. Bussel, 566 So. 2d 1313, 1314 (Fla. 3d DCA 1990). Thus, the Note and Mortgage sued upon were accelerated and the debt matured on December 27, 2006 by the ming of 2006 lawsuit and recording of the Lis Pendens, both of which are in the public records.
- The action filed herein occurred on December 20, 2012 more than five (5) years from the date of the maturity of the Note and Mortgage, which date is easily ascertainable from the public records.
- Five years have lapsed since the date of maturity. Therefore, pursuant to Florida Statute 95.281, the language of which is clear and unambiguous, the Mortgage and Note have terminated.
It is here by ORDERED and ADJUDGED
1. That the Mortgage sued upon herein under CFN#105765637 and 0.R. Book 41416, page 1943, and recorded on 02/07/06 in the Public Records of Broward County, Florida is hereby declared to be void and unenforceable, and the fixed/adjustable rate Note sued upon herein wherein the Defendant Alex Manuel Dueno agreed to pay Peoples Choice Home Loan, Inc. the sum of $388,800.00 on January 10, 2006 is hereby cancelled and declared to be nun and void and the lien on the following described property:
Lot 46 Village 7 Towngate being more particularly described as follows: A portion of Parcel “B” Towngate according to the plat thereof as recorded in Plat Book 156 at Page 11 of the public records of Btoward County, Florida, being more particularly described as follows: Commencing at the SW comer of Parcel “E” of said plat of Towngate said pint behind the arc of a curve at which a radial line bears South 810 38’51” East (bearing based on the record plat); thence southerly along the arc of a curve to the right, (this and the next described course being on the easterly right of way line of NW 155th Avenue)having a radius of 880.00 feet and a center angle of 260 03’53” for 400.32 feet to a point of tangency; thence South 340 25’02” West for 346.21 feet; thence South 58000’00” East fir 336.33 feet to a point of curvature; thence easterly along the arc of a curve to the left, having a radius of 415.00 feet and a central angle of 58o 00’00” for 420.10 feet to a point of tangency; thence North 640 East for 579.49 feet to a point of curvature; thence easterly, southeasterly and southerly along the arc of a curve to the right, having a radius of 70.00 feet and a central angle of 88o 33’51” for 108.20 feet to a point of tangency; thence South 27’09” East for 40.41 feet to a Point of Beginning; thence North 620 33’51” East for 130.00 feet thence South 270 26’09” East for 50.00 feet thence South 62o 33’51” West for 130.00 feet; thence North 270 26’09” West for 50.00 feet to the Point of Beginning.
a/k/a 675 N.W. l5lst Avenue, Pembroke Pines, Florida 33028 by virtue of the above described Note and Mortgage is hereby declared to be terminated, extinguished, void, and of no affect and the Note set forth above is hereby declared to be cancelled, void and of no affect and it is further
ORDERED and ADJUDGED
2. That the Defendant, ALEX M. DUENO is hereby entitled to a Judgment against the Plaintiff VPH NPL JKC 57 TRUST on both the Complaint filed by the Plaintiff herein and the Counterclaim filed by the Defendant herein to quiet title and the Plaintiff shall go hence without day. The Court reserves jurisdiction on the issue of entitlement and reasonableness of attorneys’ fees.
DONE AND OREDERED in Chambers, Fort Lauderdale, Broward County this 22nd day of January, 2014.
Signed
JUDGE JOEL T LAZARUS
Copies furnished to:
Nicole R. Moskowitz, Esq.. – nlglaw@yahoo.com
Ira Swtt Silverstein, Esq. – ira@isslawyer.com