Preview
Filing # 196286523 E-Filed 04/16/2024 12:16:18 PM
IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-
DADE COUNTY, FLORIDA
THE BANK OF NEW YORK MELLON FKA THE CASE NO.: 2023-000956-CA-01
BANK OF NEW YORK, AS TRUSTEE FOR THE
CERTIFICATEHOLDERS OF THE CWALT, INC.,
ALTERNATIVE LOAN TRUST 2007-HY8C
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-HY8C,
Plaintiff,
v.
MICHELET JOSEPH, ET AL.,
Defendant(s),
______________________________________/
PLAINTIFF’S MOTION TO VACATE FINAL JUDGMENT OF FORECLOSURE,
DISSOLVE LIS PENDENS, DISMISS ACTION WITHOUT PREJUDICE, VACATE
FORECLOSURE SALE HELD ON APRIL 15, 2024 , AND RELEASE THE ORIGINAL
LOAN DOCUMENTS
Plaintiff, pursuant to, inter alia, Fla. R. Civ. P. 1.540(b)(5), respectfully requests the Court
Vacate the Final Judgment of Foreclosure, Dissolve the Lis Pendens, Dismiss the Action without
Prejudice, Vacate Foreclosure Sale held on April 15, 2024, and Release the Original Loan
Documents which have been filed, and in support thereof states as follows:
1. A Final Judgment of Foreclosure was entered in this action on February 16, 2024.
2. On the business day before the sale date, funds were received which were sufficient
to pay off the loan. Due to the short notice of receipt of funds the sale was not cancelled.
The loan has been paid off and the dispute settled.
3. Fla. R. Civ. P. Rule 1.540 governs post-judgment relief from a final judgment and
sets forth several different substantive theories upon which a motion for relief could be
predicated.
Page 1 of 3
File No.: M22524-JMV CASE NO.: 2023-000956-CA-01
4. Rule 1.540(b), Florida Rules of Civil Procedure, states in pertinent part:
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered
Evidence; Fraud; etc. On motion and upon such terms as are just, the court
may relieve a party or a party's legal representative from a final judgment,
decree, order, or proceeding for the following reasons: (5) that the
judgment or decree has been satisfied, released, or discharged, or a prior
judgment or decree upon which it is based has been reversed or otherwise
vacated, or it is no longer equitable that the judgment or decree should
have prospective application. The motion shall be filed within a
reasonable time, and for reasons (1), (2), and (3) not more than 1 year after
the judgment, decree, order, or proceeding was entered or taken…
5. Therefore, pursuant to Fla. R. Civ. P. 1.540(b)(5), because the loan was paid off
subsequent to the entry of final judgment in this action, the Court has authority and
jurisdiction to grant post-judgment relief from the Final Judgment as it is no longer
equitable that the judgment have prospective application.
6. Florida Statute 702.07 governs the power of the Courts and Judges to set aside
foreclosure decrees at any time before sale.
7. Florida Statute 702.07, states:
The circuit courts of this state, and the judges thereof at chambers, shall
have jurisdiction, power, and authority to rescind, vacate, and set aside a
decree of foreclosure of a mortgage of property at any time before the sale
thereof has been actually made pursuant to the terms of such decree, and
to dismiss the foreclosure proceeding upon the payment of all court costs.
8. In Maule Industries, Inc. v. Seminole Rock & Sand, Co., 91 So. 2d 307, 309 (Fla.
1956), the Supreme Court cites to F.S., Section 702.07, and interprets the Statute as
saying, “Section 702.07, stipulates that circuit courts shall have jurisdiction to vacate and
set aside decrees of foreclosure at any time before the sale has actually been made.”
9. Accordingly, to promote equity and preserve the integrity of the judicial process,
Plaintiff requests the underlying Final Judgment be set aside and the case be dismissed
without prejudice to allow the Borrower to maintain possession of their home.
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File No.: M22524-JMV CASE NO.: 2023-000956-CA-01
WHEREFORE, Plaintiff, respectfully requests this Honorable Court enter an Order Vacating
the Final Judgment entered in this action, Dismissing the Action without Prejudice, Dissolving the
Lis Pendens, Vacating the Foreclosure Sale held on April 15, 2024 and Releasing the Original Loan
Documents which have been previously filed, as well as for such further relief the Court finds just
and proper
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via
U.S. Mail and/or E-Service compliance with Rule of Judicial Administration 2.516 delivery this 16th
day of April, 2024 to Kertch Conze, Esq., Attorney for Michelet Joseph, Law Offices of Kertch
Conze, P.A., 3600 Red Road, Suite 402, Miramar, Florida 33025, Conze@conzelaw.com; Florida
Department of Revenue, 2450 Shumard Oak Blvd., Building 1, Floor 2, Tallahassee, FL 32399;
Kristine M. Johnson, Esq., Attorney for Defendant, Ifkinge Petit Homme, Kristine M. Johnson, P.A.,
10620 Griffin Road, Suite 106, Cooper City, FL 33328, eservice@kristinemjohnson.com,
kristine@kristinemjohnson.com; Unknown Tenant #1 n/k/a Harold Jaffar, 770 NW 179th Ter,
Miami, FL 33169; Alex Arniella, Third Party Purchaser, 10029 SW 127th Street, Miami, FL 33176
KELLEY KRONENBERG
Attorney for Plaintiff
10360 West State Road 84
Fort Lauderdale, FL 33324
Telephone: (954) 370-9970
Service email: ftlrealprop@kelleykronenberg.com
Attorney email: jshealy@kelleykronenberg.com
By: /s/ Jordan Shealy
Jordan Shealy, Esquire
Fla. Bar No.: 1039538
Page 3 of 3
File No.: M22524-JMV CASE NO.: 2023-000956-CA-01
Preview
Filing # 196286523 E-Filed 04/16/2024 12:16:18 PM IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI- DADE COUNTY, FLORIDA THE BANK OF NEW YORK MELLON FKA THE CASE NO.: 2023-000956-CA-01 BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF THE CWALT, INC., ALTERNATIVE LOAN TRUST 2007-HY8C MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HY8C, Plaintiff, v. MICHELET JOSEPH, ET AL., Defendant(s), ______________________________________/ PLAINTIFF’S MOTION TO VACATE FINAL JUDGMENT OF FORECLOSURE, DISSOLVE LIS PENDENS, DISMISS ACTION WITHOUT PREJUDICE, VACATE FORECLOSURE SALE HELD ON APRIL 15, 2024 , AND RELEASE THE ORIGINAL LOAN DOCUMENTS Plaintiff, pursuant to, inter alia, Fla. R. Civ. P. 1.540(b)(5), respectfully requests the Court Vacate the Final Judgment of Foreclosure, Dissolve the Lis Pendens, Dismiss the Action without Prejudice, Vacate Foreclosure Sale held on April 15, 2024, and Release the Original Loan Documents which have been filed, and in support thereof states as follows: 1. A Final Judgment of Foreclosure was entered in this action on February 16, 2024. 2. On the business day before the sale date, funds were received which were sufficient to pay off the loan. Due to the short notice of receipt of funds the sale was not cancelled. The loan has been paid off and the dispute settled. 3. Fla. R. Civ. P. Rule 1.540 governs post-judgment relief from a final judgment and sets forth several different substantive theories upon which a motion for relief could be predicated. Page 1 of 3 File No.: M22524-JMV CASE NO.: 2023-000956-CA-01 4. Rule 1.540(b), Florida Rules of Civil Procedure, states in pertinent part: (b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, decree, order, or proceeding for the following reasons: (5) that the judgment or decree has been satisfied, released, or discharged, or a prior judgment or decree upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or decree should have prospective application. The motion shall be filed within a reasonable time, and for reasons (1), (2), and (3) not more than 1 year after the judgment, decree, order, or proceeding was entered or taken… 5. Therefore, pursuant to Fla. R. Civ. P. 1.540(b)(5), because the loan was paid off subsequent to the entry of final judgment in this action, the Court has authority and jurisdiction to grant post-judgment relief from the Final Judgment as it is no longer equitable that the judgment have prospective application. 6. Florida Statute 702.07 governs the power of the Courts and Judges to set aside foreclosure decrees at any time before sale. 7. Florida Statute 702.07, states: The circuit courts of this state, and the judges thereof at chambers, shall have jurisdiction, power, and authority to rescind, vacate, and set aside a decree of foreclosure of a mortgage of property at any time before the sale thereof has been actually made pursuant to the terms of such decree, and to dismiss the foreclosure proceeding upon the payment of all court costs. 8. In Maule Industries, Inc. v. Seminole Rock & Sand, Co., 91 So. 2d 307, 309 (Fla. 1956), the Supreme Court cites to F.S., Section 702.07, and interprets the Statute as saying, “Section 702.07, stipulates that circuit courts shall have jurisdiction to vacate and set aside decrees of foreclosure at any time before the sale has actually been made.” 9. Accordingly, to promote equity and preserve the integrity of the judicial process, Plaintiff requests the underlying Final Judgment be set aside and the case be dismissed without prejudice to allow the Borrower to maintain possession of their home. Page 2 of 3 File No.: M22524-JMV CASE NO.: 2023-000956-CA-01 WHEREFORE, Plaintiff, respectfully requests this Honorable Court enter an Order Vacating the Final Judgment entered in this action, Dismissing the Action without Prejudice, Dissolving the Lis Pendens, Vacating the Foreclosure Sale held on April 15, 2024 and Releasing the Original Loan Documents which have been previously filed, as well as for such further relief the Court finds just and proper CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via U.S. Mail and/or E-Service compliance with Rule of Judicial Administration 2.516 delivery this 16th day of April, 2024 to Kertch Conze, Esq., Attorney for Michelet Joseph, Law Offices of Kertch Conze, P.A., 3600 Red Road, Suite 402, Miramar, Florida 33025, Conze@conzelaw.com; Florida Department of Revenue, 2450 Shumard Oak Blvd., Building 1, Floor 2, Tallahassee, FL 32399; Kristine M. Johnson, Esq., Attorney for Defendant, Ifkinge Petit Homme, Kristine M. Johnson, P.A., 10620 Griffin Road, Suite 106, Cooper City, FL 33328, eservice@kristinemjohnson.com, kristine@kristinemjohnson.com; Unknown Tenant #1 n/k/a Harold Jaffar, 770 NW 179th Ter, Miami, FL 33169; Alex Arniella, Third Party Purchaser, 10029 SW 127th Street, Miami, FL 33176 KELLEY KRONENBERG Attorney for Plaintiff 10360 West State Road 84 Fort Lauderdale, FL 33324 Telephone: (954) 370-9970 Service email: ftlrealprop@kelleykronenberg.com Attorney email: jshealy@kelleykronenberg.com By: /s/ Jordan Shealy Jordan Shealy, Esquire Fla. Bar No.: 1039538 Page 3 of 3 File No.: M22524-JMV CASE NO.: 2023-000956-CA-01