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Filing # 176106135 E-Filed 06/26/2023 11:45:37 AM
IN THE CIRCUIT COURT FOR THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
U.S. BANK TRUST NATIONAL CASE NO.: 49-2018-CA-000248-MF-XXXX
ASSOCIATION, NOT IN ITS
INDIVIDUAL CAPACITY, BUT SOLEY
AS TRUSTEE OF LSF9 MASTER
PARTICIPATION TRUST,
Plaintiff,
VS.
ARCHI TRUST LLC AS TRUSTEE FOR
TRUST NUMBER 061215-2887; UNKNOWN
BENEFICIARIES OF THE TRUST NUMBER
061215-2887; BRIGHTON LAKES COMMUNITY
ASSOCIATION, INC.; UNKNOWN SPOUSE OF
PAUL MAI N/K/A TRACY NGUYEN; THAO H.
HOANG; PAUL MAI; UNKNOWN TENANT NO. 1;
UNKNOWN TENANT NO. 2; AND ALL UNKNOWN
PARTIES CLAIMING INTERESTS BY, THROUGH,
UNDER OR AGAINST A NAMED DEFENDANT
TO THIS ACTION, OR HAVING OR CLAIMING
TO HAVE ANY RIGHT, TITLE
OR INTEREST IN THE PROPERTY HEREIN DESCRIBED,
Defendant(s).
/
OBJECTION AND MOTION TO VACATE SALE AND CERTIFICATE OF SALE
COMES NOW, Defendant Unknown Tenant #3, N/K/A Defendant Tenant Windward
Green Holdings, LLC, by and through undersigned counsel, and files this Objection and Motion
to Vacate Sale and Certificate of Sale, and in support states as follows:
1 On or about January 29, 2018, Plaintiff filed a complaint seeking to foreclose on a
mortgage due to non-payment.
2 A foreclosure sale was held in this case on May 23, 2023. Dkt. 238 (order).
3 Previous to the sal, on May 19, 2023, this action was removed to federal court, i.¢., to the
United States District Court for the Middle District of Florida. Dkt. 245 (notice of removal).
4. Pursuant to 28 U.S.C. §1446(d), upon the filing of the notice of removal and serving said
notice upon adverse parties and the clerk of state court, “the state court shall proceed
no further unless and until the case is remanded.” Id. (emphasis added).
5 Accordingly, once the notice of removal is filed to the state court docket, the state court’s
jurisdiction ends as of the date of filing of the notice of removal. Hoti v. U.S. Bank,
N.A., 299 So.3d 26 (Fla. 4th DCA 2020); Remova Pool Fence Co. v. Roth, 647 So. 2d
2 1022 (Fla. 4th DCA 1994); Preston v. Allstate Insurance Co., 627 So. 2d 1322 (Fla. 3d
DCA 1993).
6. Additionally, Florida Courts have recognized that foreclosure sales that result in
inadequate bids may be vacated. Arsali v. Chase Home Fin., LLC, 79 So.3d 845 (Fla. 4th DCA
2012).
7
In this matter, due to the instant case having been removed to federal court, there may
have been a chilling effect on the price obtained at the foreclosure auction, in that prospective
bidders may have avoided participating in an auction involving federal jurisdiction.
8 For the foregoing reasons, Defendant objects to the sale and moves to vacate the sale and
the Certificate of Sale, due to lack of jurisdiction and the resulting lack of the Court’s authority to
conduct the sale as well as the inadequacy of the sales price.
WHEREFORE, the above-named movant objects to the May 23, 2023 sale and moves
to vacate the sale and the certificate of Sale for lack of jurisdiction.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and accurate copy of the foregoing was electronically
filed with the Clerk of Court using the Florida E-Filing Portal and sent via email/eservice to all
parties of interest selected for e-service on this 26th day of June, 2023.
By: /s/ Eric Morga:
Eric A. Morgan, Esq. / FBN: 0021895
Morgan Law, P.A.
2800 Aurora Road, Ste. J
Melbourne, FL 32935
(321) 253-6223
SpaceCoastLawyer@gmail.com
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Filing # 176106135 E-Filed 06/26/2023 11:45:37 AM IN THE CIRCUIT COURT FOR THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA U.S. BANK TRUST NATIONAL CASE NO.: 49-2018-CA-000248-MF-XXXX ASSOCIATION, NOT IN ITS INDIVIDUAL CAPACITY, BUT SOLEY AS TRUSTEE OF LSF9 MASTER PARTICIPATION TRUST, Plaintiff, VS. ARCHI TRUST LLC AS TRUSTEE FOR TRUST NUMBER 061215-2887; UNKNOWN BENEFICIARIES OF THE TRUST NUMBER 061215-2887; BRIGHTON LAKES COMMUNITY ASSOCIATION, INC.; UNKNOWN SPOUSE OF PAUL MAI N/K/A TRACY NGUYEN; THAO H. HOANG; PAUL MAI; UNKNOWN TENANT NO. 1; UNKNOWN TENANT NO. 2; AND ALL UNKNOWN PARTIES CLAIMING INTERESTS BY, THROUGH, UNDER OR AGAINST A NAMED DEFENDANT TO THIS ACTION, OR HAVING OR CLAIMING TO HAVE ANY RIGHT, TITLE OR INTEREST IN THE PROPERTY HEREIN DESCRIBED, Defendant(s). / OBJECTION AND MOTION TO VACATE SALE AND CERTIFICATE OF SALE COMES NOW, Defendant Unknown Tenant #3, N/K/A Defendant Tenant Windward Green Holdings, LLC, by and through undersigned counsel, and files this Objection and Motion to Vacate Sale and Certificate of Sale, and in support states as follows: 1 On or about January 29, 2018, Plaintiff filed a complaint seeking to foreclose on a mortgage due to non-payment. 2 A foreclosure sale was held in this case on May 23, 2023. Dkt. 238 (order). 3 Previous to the sal, on May 19, 2023, this action was removed to federal court, i.¢., to the United States District Court for the Middle District of Florida. Dkt. 245 (notice of removal). 4. Pursuant to 28 U.S.C. §1446(d), upon the filing of the notice of removal and serving said notice upon adverse parties and the clerk of state court, “the state court shall proceed no further unless and until the case is remanded.” Id. (emphasis added). 5 Accordingly, once the notice of removal is filed to the state court docket, the state court’s jurisdiction ends as of the date of filing of the notice of removal. Hoti v. U.S. Bank, N.A., 299 So.3d 26 (Fla. 4th DCA 2020); Remova Pool Fence Co. v. Roth, 647 So. 2d 2 1022 (Fla. 4th DCA 1994); Preston v. Allstate Insurance Co., 627 So. 2d 1322 (Fla. 3d DCA 1993). 6. Additionally, Florida Courts have recognized that foreclosure sales that result in inadequate bids may be vacated. Arsali v. Chase Home Fin., LLC, 79 So.3d 845 (Fla. 4th DCA 2012). 7 In this matter, due to the instant case having been removed to federal court, there may have been a chilling effect on the price obtained at the foreclosure auction, in that prospective bidders may have avoided participating in an auction involving federal jurisdiction. 8 For the foregoing reasons, Defendant objects to the sale and moves to vacate the sale and the Certificate of Sale, due to lack of jurisdiction and the resulting lack of the Court’s authority to conduct the sale as well as the inadequacy of the sales price. WHEREFORE, the above-named movant objects to the May 23, 2023 sale and moves to vacate the sale and the certificate of Sale for lack of jurisdiction. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and accurate copy of the foregoing was electronically filed with the Clerk of Court using the Florida E-Filing Portal and sent via email/eservice to all parties of interest selected for e-service on this 26th day of June, 2023. By: /s/ Eric Morga: Eric A. Morgan, Esq. / FBN: 0021895 Morgan Law, P.A. 2800 Aurora Road, Ste. J Melbourne, FL 32935 (321) 253-6223 SpaceCoastLawyer@gmail.com