Letter,Correspondence: US BANK TRUST NATIONAL ASSOCIATIO -VS- RUSSELL B HAWKINS III

On June 27, 2022 a Letter,Correspondence was filed involving a dispute between Us Bank Trust National Association, and Jaimi E Hawkins, Parkstone Community Association Inc, Russell B Hawkins Iii, for 14N - NON HOMESTEAD/RESIDENTIAL in the District Court of Seminole County.

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Filing # 194888388 E-Filed 03/27/2024 08:23:06 AM

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The Florida Bar
651 East Jefferson Street
Tallahassee, FL 32399 2300

Joshua E. Doyle 850/561 5600
Executive Director www.FLORIDABAR.org

July 28, 2020

Ms. Jaimi Hawkins
1527 Casa Park Circle
Winter Springs, FL 32708

Re: Mr. Ashby A McClanahan Jr.; RFA No.

Dear Ms. Hawkins

The Supreme Court of Florida has adopted rules that require the allegationsagainst an attorney
be signed and under oath. In order to comply with this rule you must sign the oathbelow and
return it to our officevia U.S. M (p hotocopies of your signature are not accepted
August 7, 2020before we can proceed with an investigation.

Under penalty of perjury, I declare that the facts contained in the inquiry submitted to The
Florida Bar concerning Mr. McClanahan are true,correct and complete.

Ms. Jaimi Hawkins Date
If you do not complete and return the oath form to us, we may be unable to proceed with the
investigation. A copy of the rule imposing this obligation (3 7.3(c)) may be found on the Bar's
web site at www.floridabar.org.
Also, if you have documents that you feel support your allegations, please provide copies of
them when you return the oath. Your response must not exceed 25 pages.
Thank you for your cooperation.

Sincerely,

PS
Maura Canter, Bar Counsel
Attorney Consumer Assistance Program
ACAP Hotline 866
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05/23/2012 13:35 FAX 002/002
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Case 6:12-bk-06283-ABB Doc3 Filed 05/08/12 Page 1 of 1

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UNITED STATES BANKRUPTCY COURT C 0
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

In Re: Case No, O%-CA-~ \ABe
Chapter 13
RUSSELL BENJAMIN HAWKINS
Debtor(s).
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DECLARATION UNDER PENALTY OF PERJURTY FOR ELECTRONIC BLISS a
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The undersigned, RUSSELL BENJAMIN HAWKINS, declares under penaltybet ~~ Az
perjury that: Ooze
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1 T have signed the original{s) of the document(s) identified below under pen: sof 3
perjury (Verified Document(s).

2. The information contained in the Verified Document(s) is true and correct to the
best of my knowledge and belief.

3 1 understand that the Verified Document(s) are to be filed in electronic form with
the United States Bankruptcy Court in connection with the above captioned case.

Date: fyi

of punssc? ty O4,, les
Signature of Debtor or other claimant Signature of Joint Debtor

The following Verified Documents were executed on the Th day of MAY, 2012.

Full Descriptive Title
Voluntary Petition
Exhibit “D”
Schedules A-J
Statement of Intentions
Statement of Financial A ffairs
Statement of Social Security Number
Form 22A- Means Test

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Filing # 21224838 Electronically Filed 12/04/2014 10:57:06 AM

BAC HOME LOANS SERVICING, L.P F/K/A IN THE ciRcuIT COURT OF THE
COUNTRY WIDE HOME LOANS, INC., 18TH JUDICIAL CIRCUIT, IN AND
Plaintiff, FOR SEMINOLE COUNTY,
vs. FLORIDA
CIVIL DIVISION:
RUSSELL B. HAWKINS III A/K/A RUSSELL CASE NO.: 2008CA001286
HAWKINS; COUNTRYWIDE HOME
LOANS, INC.; PARKSTONE COMMUNITY
ASSOCIATION INC.; THE BANK OF NEW
YORK AS SUCCESSOR IN INTEREST TO
JPMORGAN CHASE BANK NA. AS
TRUSTEE FOR CWABS 2003-B; JOHN “DOE;
JAIMI E. HAWKINS A/KIA JAIMI
HAWKINS; JOHN DOE; JANE DOE AS
UNKNOWN TENANT(S) IN POSSESSION OF
THE SUBJECT PROPERTY,
Defendants.

PLAINTIFF’S MOTION TO DISSOLVE LIS PENDENS, DISMISS COMPLAINT,
VACATE FINAL JUDGMENT ENTERED JANUARY 25, 2012,
RELEASE ORIGINAL DOCUMENTS, AND INCORPORATED
MEMORANDUM OF LAW

Plaintiff, BANK OF AMERICA, NA, (hereinafter “Plaintiff’), by and through its

undersigned counsel, files this Motion to Dissolve Lis Pendens, Dismiss Complaint, Vacate Final

Judgment Entered January 25, 2012 and Release Original Documents pursuant to Rule

1.540(b)(5), Florida Rules of Civil Procedure, Section 702.07, Florida Statutes, and Rule

2.430(h), Florida Rules of Judicial Administration, and states:

PROCEDURAL BACKGROUND

1 The Complaint in this case was filed on or about March 5, 2008.

2 On or about January 25, 2012, this Court entered the Final Judgment of Mortgage

Foreclosure in favor of Plaintiff.

3 The Foreclosure Sale was set for May 24, 2012.

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07-26369
*** E-FILED: MARYANNE MORSE, CLERK OF CIRCUIT COURT SEMINOLE COUNTY, FL *#**
4 On May 8, 2012, Defendant, RUSSELL BENJAMIN HAWKINS, filed for relief

under Chapter 7 of the Bankruptcy Code, in Case No. 12-06283.

5 Plaintiff cancelled the foreclosure sale set May 24, 2012 due to Bankruptcy.

6 Foreclosure sale was reset for July 24, 2012.

7 Plaintiff cancelled the foreclosure sale set July 24, 2012 due to active bankruptcy,

in Case no. 12-06283.

8 That defendant’s bankruptcy was discharged on September 30, 2014. A copy of

the order is attached and hereto incorporated as Exhibit A.

9 Now, Plaintiff files this MOTION TO DISSOLVE LIS PENDENS, DISMISS

COMPLAINT, VACATE FINAL JUDGMENT ENTERED JANUARY 25, 2012 AND

RELEASE ORIGINAL DOCUMENTS, pursuant to Rule 1.540(b)(5), Florida Rules of Civil

Procedure, Section 702.07, Florida Statutes, and Rule 2.430(h), Florida Rules of Judicial

Administration 2.430(h), and Incorporated Memorandum of Law due to completed

Reinstatement.

ANALYSIS AND ARGUMENT

7 Rule 1.540, Florida Rules of Civil Procedure and Section 702.07, Florida

Statutes. Rule 1.540(b),! Florida Rules of Civil Procedure states in pertinent part, “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, or other proceeding . . [when] the judgment or decree has been

satisfied, released, or discharged... .” Rule 1.540(b), FLa. R. Civ. P. Of course, the Rule

further provides that “the motion shall be made within a reasonable time, or for [mistake,

"In LK Int'l, Inc. v, Shivbaran, 985 So. 2d 66 (Fla. 4" DCA 2008), it was noted that “Florida courts have long
recognized that this rule should be liberally construed.” /d. at 68 (citing Wilson v. Woodward, 602 So.2d 547, 549
(Fla. 2d DCA 1992); Fla. Aviation Acad. Dewkat Aviation, Inc. v. Charter Air Cir., Inc., 449 So.2d 350, 353 (Fla.
1* DCA 1984).

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07-26369
inadvertence, surprise, excusable neglect, newly discovered evidence, or fraud] not more than 1

year after the judgment, decree, order, or proceeding as entered or taken.” Rule 1.540(b), FLA.

R. Civ. P. However, section 702.07, Florida Statutes, provides that “[t]he 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 actually been made pursuant to the terms of such decree, and to dismiss the

foreclosure proceeding upon the payment of all costs,” § 702.07, FLa. STaT. (emphasis added).

8 In Toler v. Bank of America Natl. Ass’n., 78 So. 3d 699 (Fla. 4" DCA 2012), the

court held that “[g]iven the statute’s [§ 702.07] plain language and history, the statute and Rule

1.540 should be read together... .” Toler, 78 So. 3d at 703. That is, “section 702.07 standing

alone does not create an independent, substantive right to vacate a judgment of foreclosure for

any reason... .” Jd. at 702. Instead, “a party seeking relief from a foreclosure judgment must

articulate a colorable basis under Rule 1.540.” /d. at 703.

9. Accordingly, Toler stands for the proposition that a Final Judgment of Mortgage

Foreclosure may be vacated at any time prior to sale pursuant to section 702.07, Florida Statutes

as long as Rule 1.540, Florida Rules of Civil Procedure provides the basis.

10. Of course, Toler is in accord with the “fundamental equitable principle that a trial

judge has inherent power to control its own judgments.” American. Sav. & Loan Ass'n. of Fla. v.

Saga Dey. Corp., 362 So, 2d 54, 54 (Fla. 3d DCA 1978).

ll. The Equitable Nature of Foreclosure Actions, It is well established that

foreclosure actions are equitable in nature. Section 702.01, Florida Statutes states in part, “All

mortgages shall be foreclosed in equity.” § 702.01, FLA. STAT. In Singleton v. Greymar

Assocs., 882 So. 2d 1004 (Fla. 2004), the Court noted, “We must also remember that foreclosure

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07-26369
is an equitable remedy... .” Jd. at 1008. In Cross v. Federal Natl. Mortgage Ass’n, 359 So.2d

464 (Fla. 4" DCA 1978), the court stated, “[A] mortgage foreclosure is an equitable action and

thus equitable defenses are most appropriate.” Jd. at 465. In LR5A-JA y. Little House, LLC,

50 So.3d 691 (Fla. 5sth DCA 2010), the court stated that because of the equitable nature of

foreclosure actions, it is appropriate to consider the interests of all parties. /d. at 693-94.

12, Surely the equitable nature of foreclosure actions require the Court to consider the

interests of a defendant in this circumstance. Specifically, the prejudicial effect of a final

judgment of mortgage foreclosure on a defendant who has successfully completed a deed in lieu

process.

13. Florida’s Public Policy of Settlement over Litigation. It is well established that

the law favors the avoidance of litigation through settlement. In City of Coral Gables v. Jordan,

186 So. 2d 60 (Fla. 3d DCA 1966), the court noted, “The public policy of this state favors

amicable settlement of disputes and the avoidance of litigation.” /d. at 63 (citing Russell v.

Shelby Mut. Ins, Co., 128 So. 2d 161, 164 (Fla. 3d DCA 1961); see DeWitt v. Miami Transit Co.,

95 So. 2d 898, 901 (Fla. 1957).
14. Moreover, the settlement of disputes promotes judicial economy. In /ngalsbe v.

Stewart Agency, Inc., 869 So. 2d 30 (Fla. 4" DCA 2004), the court stated, “{W]Je must defer to

this Court’s strong policy of encouraging settlement between parties to avoid the ‘vexation and

expense of further litigation.”” /d. at 38 (quoting Harper v. Strong, 135 Fla. 10, 184 So. 848, 850

(Fla. 1938)).
15. Thus, Plaintiff submits that the equitable nature of foreclosure actions should be

viewed in conjunction with Florida’s public policy favoring settlement over litigation.

CONCLUSION

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07-26369
Plaintiff respectfully submits that because it has provided the Court with a colorable basis

to vacate the Final Judgment of Mortgage Foreclosure pursuant to Rule 1.540(b)(5), Florida

Rules of Civil Procedure, and a sale has not been held, said Judgment should be vacated,

pursuant to section 702.07, Florida Statutes. Plaintiff further submits that the Court fosters the

equitable nature of foreclosure actions as well as Florida’s policy of settlement over litigation, by

vacating the Final Judgment, dismissing the Complaint, and dissolving the Lis Pendens. And

finally, Plaintiff submits that it is entitled to the release of the original documents it filed with the

Court in this case, pursuant to Rule 2.430(h), Florida Rules of Judicial Administration.

WHEREFORE, Plaintiff prays that this Court enter an order Motion to Dissolve Lis

Pendens, Dismiss Complaint, Vacate Final Judgment Entered January 25, 2012 and Release

Original Documents to Plaintiff's counsel.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Motion has been

furnished to all parties on the attached Service List on this day of Vete mbey. 201.

CHOICE LEGAL GROUP, P.A.
Counsel for Plaintiff
P.O. Box 9908
Fort Lauderdale, Florida 33310-0908
Toll Free: 1-800-441-2438
Tel: (954) 453-0365
Fax: (954) 771-6052
Primary, eService: eservice@clegalgroup.com

Uw Melanie olden, Esq.
LM
Bar Nu mper: 11900

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07-26369
Case 6:12-bk-06283-KSJ Doc100 Filed 09/30/14 Page 1 of 2
Form B18 (Official Form 18)(12/07)

United States Bankruptcy Court
Middle District of Florida
Case No. 6:12—bk-06283-KSJ
Chapter 7

In re: Debtor(s) (name(s) used by the debtor(s) in the last 8 years, including married, maiden, trade, and address):
Russell Benjamin Hawkins
740 Seneca Meadows Road
Winter Springs, FL 32708
Social Security No.:

Employer's Tax I.D. No.:

DISCHARGE OF DEBTOR

It appearing that the debtor is entitled to a discharge,

IT IS ORDERED:

The debtor is granted a discharge under section 727 of title 11, United States Code, (the Bankruptcy Code).

BY THE COURT

spun otOg
Dated: September 30, 2014 Karen S. Jennemann
United States Bankruptcy Judge

SEE THE BACK OF THIS ORDER FOR IMPORTANT INFORMATION.

Bylibit
Case 6:12-bk-06283-KSJ Doc100 Filed 09/30/14 Page 2 of 2
FORM B18 continued (12/07)

EXPLANATION OF BANKRUPTCY DISCHARGE
IN A CHAPTER 7 CASE

This court order grants a discharge to the person named as the debtor. It is not a dismissal of the case and it
does not determine how much money, if any, the trustee will pay to creditors.
C 7 {Disch 1 Debts Prohibited

The discharge prohibits any attempt to collect from the debtor a debt that has been discharged. For example, a
creditor is not permitted to contact a debtor by mail, phone, or otherwise, to file or continue a lawsuit, to attach wages
or other property, or to take any other action to collect a discharged debt from the debtor. [Jn a case involving
community property. There are also special rules that protect certain community property owned by the debtor's
spouse, even if that spouse did not file a bankruptcy case.] A creditor who violates this order can be required to pay
damages and attorney's fees to the debtor.

However, a creditor may have the right to enforce a valid lien, such as a mortgage or security interest, against
the debtor's property after the bankruptcy, if that lien was not avoided or eliminated in the bankruptcy case. Also, a
debtor may voluntarily pay any debt that has been discharged.
.
D. ts ry

The chapter 7 discharge order eliminates a debtor's legal obligation to pay a debt that is discharged. Most, but
not all, types of debts are discharged if the debt existed on the date the bankruptcy case was filed. (If this case was
begun under a different chapter of the Bankruptcy Code and converted to chapter 7 , the discharge applies to debts
owed when the bankruptcy case was converted.)

Debts that are Not Discharged.
Some of the common types of debts which are pot discharged in a chapter 7 bankruptcy case are:
a, Debts for most taxes;

b. Debts incurred to pay nondischargeable taxes;
¢. Debts that are domestic support obligations;
d, Debts for most student loans;

e. Debts for most fines, penalties, forfeitures, or criminal restitution obligations;

f, Debts for personal injuries or death caused by the debtor's operation of a motor vehicle, vessel, or aircraft while intoxicated;

g. Some debts which were not properly listed by the debtor;

h, Debts that the bankruptey court specifically has decided or will decide in this bankruptcy case are not discharged:
i, Debts for which the debtor has given up the discharge protections by signing a reaffirmation agreement in compliance
with the
Bankruptey Code requirements for reaffirmation of debts; and
j. Debts owed to certain pension, profit sharing, stock bonus, other retirement plans, or to the Thrift Savings Plan for federal
employees for certain types of loans from these plans.

This information is only a general summary of the bankruptcy discharge. There are exceptions to these
general rules. Because the law is complicated, you may want to consult an attorney to determine the exact
effect of the discharge in this case.

xh bi t A
SERVICE LIST

Case No: 2008CA001286

A. A. MCCLANAHAN, JR, ESQ.
ATTORNEY FOR RUSSELL B. HAWKINS III A/K/A RUSSELL HAWKINS
212 N PARK AVENUE
SANFORD, FL 32771
AAMCCLANAHAN@AOL.COM

DAVID B. LEVIN, ESQ.
ATTORNEY FOR COUNTRYWIDE HOME LOANS, INC.
1221 BRICKELL AVE, STE 1600
MIAMI, FL 33131
DAVID.LEVIN@GRA Y-ROBINSON.COM

SCOTT J. DORNSTEIN, ESQ.
ATTORNEY FOR PARKSTONE COMMUNITY ASSOCIATION INC.
300 N MAITLAND AVE
MAITLAND, FL 32751
SDORNSTEIN@KGBLAWFIRM.COM.

THE BANK OF NEW YORK AS SUCCESSOR IN INTEREST TO JPMORGAN CHASE
BANK N.A. AS TRUSTEE FOR CWABS 2003-B
ONE WALL STREET
NEW YORK, NNY 10286

JANE DOE
740 SENECA MEADOWS ROAD
WINTER SPRINGS, FL 32708

JAIMI E. HAWKINS A/K/A JAIMI HAWKINS
740 SENECA MEADOWS ROAD
WINTER SPRINGS, FL 32708

UNKNOWN TENANT(S)
740 SENECA MEADOWS ROAD
WINTER SPRINGS, FL 32708

07-26369

Filing # 21224838 Electronically Filed 12/04/2014 10:57:06 AM