Filing 76818611 E-Filed 08/22/2018 12:42:15 PM IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.: DIVISION: AE ZOKAITES PROPERTIES, LP, Plaintiff, v; SOVEREIGN GAMING ENTERTAINMENT, GEORGE ERI MALER and THE UNKNOWN PARTIES IN POSSESSION OF 3485 LAGO DE TALAVERA, WELLINGTON, FL 33467; and DAVID FIORE, individually and as assignee for CARL STONE, 3485 Lago De Talavera Trust and DIANA GEORGE, Defendants. PLAINTIFF ZOKAITES PROPERTIES, AMENDED MOTION FOR SUMMARY JUDGMENT Plaintiff ZOKAITES PROPERTIES, LP (??Zokaites? and/or i?Plaintiff?), by its undersigned counsel, pursuant to Florida Rule of Civil Procedure 1.510, hereby ?les its Amended Motion for Summary Judgment.1 For all the reasons set forth herein, Plaintiff?s Motion for Summary Judgment shOuld be granted in all respects against Defendants SOVEREIGN GAMING ENTERTAINMENT LLC (?Sovereign?), GEORGE MALER, ERI MALER, THE UNKNOWN PARTIES IN POSSESSION OF 3485 LAGO DE TALAVERA, WELLINGTON, FL 33467, DAVID FIORE, CARL STONE, 3485 LAGO DE TALAVERA TRUST, DIANA GEORGE and CHRISTOPHER GEORGE2 (collectively, the cDefendants?). 1A Motion for Summary Final Judgment was originally ?led on March 9, 2017. 2On April 3, 2018, an Order was entered joining Christopher George as a Defendant. KOPELOWITZ OSTROW P.A. One West Las Olas Boulevard, Suite 500 Ft. Lauderdale, Florida 33301 - Telephone 954-525-4100 - Fax 9546254300 FILED: PALM BEACH COUNTY, FL, SHARON R. BOCK, CLERK, 08/22/2018 12:42:15 PM CASE NO.: As grounds for this Motion, Zokaites would show that there are no genuine issues of material fact and that it is entitled to summary judgment as a matter of law. In addition to the Statement of Facts and Proceedings and Argument set forth below, this Motion is based on the pleadings of record and the Af?davit of Mr. Frank Zokaites, attached hereto and incorporated herein by reference as Exhibit together with all attachments thereto. 1. STATEMENT OF FACTS AND PROCEEDINGS A. Statement of Undisnuted Facts 1. On or about February 25, 2016, Defendant, SOVEREIGN GAMING ENTERTAINMENT, LLC (?Sovereign?), executed and delivered a certain Promissory Note and Mortgage to TATAROW FAMILY PARTNERS LTD (?Tatarow?) as to 1/2 interest and GEOFFREY WEBER (?Weber?) as to 1/2 interest (the Mortgage and Promissory Note together, will be referred to herein as the, ?Loan Documents?). True and correct copies of the Loan Documents are attached to the Af?davit of Zokaites as Exhibits and respectively. 2. The Mortgage, securing payment of the Note, mortgaged the real property legally described as: Lot 29, Talavera P.U.D., according to the Plat thereof as recorded in Plat Book 105, Page 44, Public Records of Palm Beach County, Florida. Property address: 3485 Lago De Talavera, Wellington, FL 33467 (hereinafter, the ?Property?). See Af?davit of Zokaites, Exhibit hereto. 3. The Mortgage was recorded on March 10, 2016, in Of?cial Records Book 28154, Page 0748, of the Public Records of Palm Beach County, Florida. See id. 4. Record title to the premises encumbered by the lien of Mortgage was, at the time of the execution and delivery of the said Mortgage, and remains, in Sovereign. 2 KOPELOWITZ OST ROW P.A. One West Las Olas Boulevard, Suite 500 - Ft. Lauderdale, Florida 33301 - Telephone 954-525-4100 Fax 954-525-4300 CASE NO.: 5. The Loan Documents are in default for Sovereign?s failure to pay to Tatarow and Weber the payment due on August 1, 2016, and all subsequent payments. See Af?davit of Zokaites at Paragraph 11. See Af?davit of Zokaites and Payment History, Exhibit thereto. 6. On March 31, 2017, Tatarow and Weber executed an Assignment of Mortgage (?Assignment of Mortgage?), in favor of Zokaites. See Af?davit of Zokaites, Exhibit hereto, and Assignment of Mortgage Exhibit thereto. Zokaites provided $353,948.25 as consideration for the Assignment of Mortgage. See Af?davit of Zokaites, Exhibit hereto, and Exhibit thereto. 7. The Assignment of Mortgage was recorded on August 23, 2017, in Of?cial Records Book 29309, Page 1884, of the Public Records of Palm Beach County, Florida. See id. and Assignment of Mortgage, Exhibit thereto. 8. The Loan is currently due and owing since August 1, 2016, and all payments thereafter. 9. Therefore, the remaining balance due on the Loan has been accelerated and this action to foreclose the Mortgage was commenced. See initial Complaint for Forec10sure dated November 17, 2016 and Amended Complaint for Foreclosure dated December 30, 2016. 10. As of July 31, 2018, Zokaites is owed the principal sum of $300,000.00 on the Loan, plus accumulated interest of $107,850.00 and interest accruing thereafter at the per diem rate of $150.00, and other charges, collection expenses, attorneys? fees, and court costs. See Af?davit of Zokaites, Exhibit hereto. B. Statement of Proceedings 1. On November 17, 2016, Tatarow and Weber ?led their Veri?ed Complaint for Foreclosure. See Complaint. 3 KOPELOWITZ OSTROW P.A. One West Las Olas Boulevard, Suite 500 - Ft. Lauderdale, Florida 33301 - Telephone 954-525-4100 - Fax 954-525-4300 CASE NO.: 2. Thereafter, on December 30, 2016, Tatarow and Weber ?led their Amended Complaint for Foreclosure. See Amended Complaint. The Amended Complaint included Defendants, David Fiore, individually and as assignee for Carl Stone, 3485 Lago De Talavera Trust and Diana George, as parties and attached a Notice of Lis Pendens as an Exhibit, referencing Case No. 2016-CA-008765 (David Fiore, Carl Stone, 3485 Lago De Talavera Trust, Diana George and Christopher George will be referred to herein as the ?Fiore Defendants?). 3. True and valid service of process has been completed in this action. See Returns of Service. 4. On March 30, 2017, the Original Lender assigned the Mortgage and Note to Plaintiff for $3 53,948.25 in cash (the ?Assignment?) that was paid. The Assignment was recorded at OR BK 29309 PG 1884. 5. Soon thereafter, on April 7, 2017, Plaintiff filed its Motion to Substitute as Party- Plaintiff3 and Amend Case Style. 6. On February 22, 2018, this Court entered an Order Setting Residential Foreclosure Non-Jury Trial and Directing Pretrial Procedures; 7. On March 12, 2018, an Order was entered granting Zokaites? Motion to Substitute Party-Plaintiff. 8. On March 14, 2018, the Fiore Defendants filed the following Motions: Motion to Intervene on behalf of Christopher George, Dianna George, and 3485 Lego De Talavera Trust; Motion to Amend Answer and Affirmative Defenses; and Emergency Motion to Stay and/or Consolidate Proceedings 3The Substitution of Party-Plaintiff was granted on March 10, 2018. 4 KOPELOWITZ. OSTROW P.A. One West Las Oias Boulevard, Suite 500 - Ft. Lauderdale, Florida 33301 - Telephone 954-525-4100 - Fax 954-525-4300 CASE NO.: 9. On March 29, 2018, this Court denied the iore Defendants? Emergency Motion. 10. On April 2, 2018, the Fiore Defendants ?led a Supplement/Amendment to Motion for Leave to File Amended Answer and Affirmative Defenses and Seeking Leave to Assert Counterclaim Against Plaintiff Zokaites Properties, LP and Third-Party Complaint against Frank Zokaites (?Amended Motion?) and the Af?davit of Robert Gibson (?Gibson?). On April 3, 2018, this Court denied the Fiore Defendants? Motion to Consolidate this action with the Fiore Lawsuit and Motion (and Amended Motion) to Amend Answer and Af?rmative Defenses. Although the Court granted the Fiore Defendants? Motion to Intervene, the Court ruled that the Intervenors ?take the case as it Stands.? 11. A trial was held on April 3 and April 6, 2018 (the ?trial?). 12. On May 9, 2018, Zokaites ?led its Motion for Reconsideration and/or Motion to Reopen the Testimony. 13. On June 26, 2018, Judge Harrison, the trial judge, entered an Order declaring a mistrial. II. ARGUMENT A. Legal Standards for Summary Judgment Pursuant to Florida Rule of Civil Procedure Plaintiff is entitled to summary judgment in its favor ?if the pleadings, depositions, answers to interrogatories, and admissions on ?le, together with the af?davits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.? Once Plaintiff demonstrates that there is no genuine issue of material fact, the burden shifts to Defendants to come forward with counter-evidence suf?cient to generate a genuine and material disputed issue of fact. See Landers v. Milton, 370 So.2d 368, 370 (Fla. 1979); O?Donnell v. BellSouth Adver. Publ?g Corp, 906 012822.000005/01090605ml 5 KOPELOWITZ OSTROW P.A. One West Las Olas Boulevard, Suite 500 - Ft. Lauderdale, Florida 33301 Telephone 954-525-4100 - Fax 954?525~4300 CASE NO.: So.2d 1264, 1264 (Fla. 4th DCA 2005); Castro v. Brazeau, 873 So.2d 516, 518 (Fla. 4th DCA 2004); Zabrani v. Riveron, 495 So.2d 1195 (Fla. 3d DCA 1986). To withstand Plaintiff?s Motion for Summary Judgment, therefore, it is insuf?cient for Defendants merely to assert that a disputed issue of material fact exists. See Slachter v. Abundio Inv. Co, 566 So.2d 348 (Fla. 3d DCA 1990); Landers, 370 So.2d at 370. Rather,-it is incumbent upon Defendants to come forward with suf?ciently competent counter-evidence to demonstrate that such a dispute remains present in the ease, thereby making it appropriate for trial, Harvey Bldg, Inc. v. Haley, 175 So.2d 780 (Fla. 1965); DeMesme v. Stephenson, 498 So.2d 673, 675 (Fla. DCA 1986). Because none of the Defendants have raised any valid af?rmative defense, the only issue of law that could arise from this case would be whether Defendants, through obfuscation or otherwise, can thwart the entry of ?nal judgment by raising assorted paper issues. No such tactic, however, can properly succeed. ?While the burden in a ?nal judgment motion falls upon a moving party, this does not mean that by raising purely paper issues, the defendant can forestall the granting of relief to the plaintiff where the pleadings and evidentiary matters before the trial court that the defenses are without substance in fact, or in law.? Re?ex, N. V. v. Umet Trust, 336 So.2d 473, 475 (Fla. 3d DCA 1976) (citing Harvey Building, Inc. v. Haley, 175 So.2d 780 (Fla. 1 965). I Indeed, cases that determine the obligation of parties upon written documents are precisely the subjects for which the summary judgment procedure was envisioned. ?Where the determination of a lawsuit depends upon a written instrument and the legal effect to be drawn therefrom, the question is essentially one of law and ordinarily would be determinable by entry of summary judgment by the trial judge," Font v. Lazarus Homes Corp, 339 So.2d 258, 259 (Fla 3d 6 KOPELOWITZ OSTROW RA. One West Las Olas Boulevard, Suite 500 Ft. Lauderdale, Florida 33301 Telephone 954-525-4100 Fax 954-525-4300 CASE NO.: DCA 1976). The pleadings, admissions, affidavits, and other papers and evidence on file conclusively demonstrate that there is no disputed issue as to any material fact and that Lender is entitled to judgment as a matter of law. B. Plaintiff is Entitled to the Entry of Summary Judgment in its Favor Under Florida law, when a mortgage contains an acceleration clause, upon breach of the mortgagor's obligation, the mortgagee may sue to foreclose the mortgage before the due date. Treb Trading Company v. Green, 135 So. 510 (Fla. 1931); Federal Home Loan Mortgage Corp. v. Taylor, 318 So.2d 203 (Fla. DCA 1975). The manifest purpose of foreclosure is to subject the security pledged to the payment of the obligation to judicial sale, and, ultimately, to secure partial or substantial repayment of the debt due the mortgagee. Bobby Jones Garden Apartments v. Connecticut Mutual Life Insurance, 202 So.2d 226 (Fla. 2d DCA 1967). the absence of any valid defense the trial court cannot refuse to enforce the terms of a note and mortgage.? GE Capital Mortg. Services, Inc. 12. Candles, 691 So. 2d 21 (Fla. 3d DCA 1997). Such is the result that should be reached in the present case. From a review of the evidence of record, it is undisputed that Sovereign executed the Note. See Af?davit of Zokaites, Exhibit and Note, Exhibit thereto. It is undisputed that Sovereign executed the Mortgage. See Af?davit of Zokaites, Exhibit and Mortgage, Exhibit thereto. It is also undisputed that Zokaites is entitled to enforce said Loan Documents. See Af?davit of Zokaites, Exhibit and exhibits thereto. It is further undisputed that Sovereign defaulted on the Loan Documents by failing to make the required payments due thereunder and that Zokaites has been damaged by Sovereign?s breach of the Loan Documents. 7 KOPELOWITZ OSTROW P.A. One West Las Olas Boulevard, Suite 500 0 Ft. Lauderdale, Florida 33301 - Telephone 954-525-4100 Fax 954-525-4300 CASE NO.: See id. Speci?cally, the Loan is currently due and owing for the August 1, 2016 payment and all payments thereafter. See id. The full remaining balance due on the Loan has been accelerated. See Complaint; Kreiss Potassium Phosphate Co. v. Night, 124 So. 751, 755 (Fla. 1929) institution of a suit for foreclosure is the exercise of the option of the mortgagee to declare the whole of the principal sum and interest secured by the mortgage due and payable?). As of August 21, 2018, Zokaites is owed the principal sum of $300,000.00 on the Loan, plus accumulated interest and other charges, collection expenses, and court costs totaling $562,360.13. See Af?davit of Zokaites, Exhibit hereto. In addition to recovering the above sums, Zokaites is also entitled to recover its attorneys? fees. See Af?davit of Zokaites, Exhibit Exhibit thereto. Zokaites has standing to enforce the Loan Documents. See id. and Exhibits thereto. As a result of the default on the Loan Documents by Sovereign, Zokaites is entitled to foreclose on the Mortgage. See id. It is undisputed that the Defendants? interests, if any, in and to the Property are subordinate and inferior to the interests of Zokaites. See id.; Fla. Stat. 695.11 (codifying common law rule of ??rst in time, ?rst in right? with respect of recordation of instruments affecting real property). Therefore, Zokaites is entitled to foreclose all of the Defendants? interests in the Property. C. Sovereign and the Fiore Defendants Have Failed to Raise any Affirmative Defenses that Would Prevent the Entry of a Summary Final Judgment of Foreclosure in Favor of Plaintiff Sovereign ?led its Answer on January 4, 2017. The Fiore Defendants ?led their Answer on February 28, 2018. None of Sovereign?s or the Fiore Defendants? Af?rmative Defenses raise any disputed issue of material fact that would preclude the Court from granting summary judgment in favor of Plaintiff. See Proprietors Ins. Co, v. Siege], 410 So.2d 993, 995?996 (Fla. 3d DCA 0 I 2822.000005l0 090605_l 8 KOPELOWITZ OSTROW P.A. One West Las Olas Boulevard, Suite 500 0 Ft. Lauderdale, Florida 33301 - Telephone 954-525-4100 0 Fax 954-525-4300 CASE NO.: 1982) (af?rming a summary judgment order where the plaintiff moving party disproved the defendant's af?rmative defenses and established their legal insuf?ciency). Each of the Defendants? Af?rmative Defenses fail for one or more of the following reasons: the Defendants failed to plead proper Af?rmative Defenses due to lack of factual speci?city; (ii) the Defendants? Af?rmative Defenses are improper as they are not in the form of a confession and/or avoidance and are merely denials; the Loan Documents and exhibits attached to the Complaint and this Motion disprove the defense; and/or (iv) case law disproves the Af?rmative Defenses. As an initial point, af?rmative defenses must include allegations providing the factual basis for the defense. To state a cause of action, a party must plead ?a short and plain statement of the ultimate facts showing that the pleader is entitled to relief,? Fla. R. Civ. P. 1.110(b) (emphasis added). The same standard applies to the assertion of defenses: "Certainty is required when pleading af?rmative defenses and claims alike and pleading conclusions of law unsupported by allegations of ultimate fact is legally insuf?cient.? Bliss v. Carmona, 418 So.2d 1017, 1019 (Fla. 3d DCA 1982) (citations omitted). The policy behind requiring allegations of ultimate facts is to provide the opposing party with fair notice as to the nature. of the defense. See Zita, 318 So.2d at 176. None of the defenses raised by the Defendants provide Plaintiff with fair notice as to the nature of the defense, and therefore, each fails on this basis alone. Even where an af?rmative defense can be considered proper, the principles of effective pleading still apply. See LB. McLeod Constr. Co. v. Cooper, 134 So. 224 (1931). Pursuant to Rule 1.110(d) of the Florida Rules of Civil Procedure, a party must ?set forth af?rmatively [any of the enumerated list of defenses] and any other matter constituting an avoidance or af?rmative defense.? The case law interpreting this Rule makes clear that an af?rmative defense must ?raise 012822.000005/01090605ml 9 KOPELOWITZ OSTROW P.A. One West Las Olas Boulevard, Suite 500 - Ft. Lauderdale, Florida 33301 - Telephone 954-525-4100 - Fax 954-525-4300 CASE NO.: 502016CA012 some new matter which defeats the opposite party?s otherwise apparently valid claim.? Tropical Exterminators, Inc. v. Murray, 171 So. 2d 432, 433 (Fla. 2d DCA 1965) (emphasis added). Further, an affirmative defense is one that admits the cause of action asserted by the plaintiff, but seeks to avoid liability, wholly or partly, by allegations of excuse, justi?cation or other matters negating liability. Storehwerke, GMBH 12. Mr. Thiessen?s Wallpaperz?ng Supplies, Inc, 538 So. 2d 1382 (Fla. 5th DCA 1989). Where purported af?rmatives defense raised by a defendant are not in the form of a confession and/or avoidance, but, rather, were ?mere denials?, the af?rmative defense is properly stricken by the Court. BPS Guard Services, Inc. 12. Gulf Power 488 So. 2d 638, 641 (Fla. DCA 1986). a) Sovereign Has Failed to Raise any Affirmative Defenses that Would Prevent the Entry of a Summary Final Judgment of Foreclosure in Favor of Plaintiff Sovereign raises only one Af?rmative Defense in its Answer to Amended Complaint for Foreclosure and Af?rmative Defense as follows: Plaintiff failed to account for payments made by Defendant [Sovereign] for the months of April through August, 2016, inclusive, but instead alleges that Defendant [Sovereign] has not made any payment since April 1, 2017, despite having agreed that said payments were, in fact, made. The Complaint originally claimed that payment was due for April. After Sovereign ?led its Answer, the amount due was corrected accordingly. Notwithstanding the foregoing, it is undisputed that the Af?davit of Zokaites now sets forth the amounts due and owing. 10 KOPELOWITZ OSTROW P.A. One West Las Olas Boulevard, Suite 500 - Ft. Lauderdale, Florida 33301 - Telephone 954-525-4100 - Fax 954?525-4300 CASE NO: b) The Fiore Defendants Have Failed to Raise any Af?rmative Defenses that Would Prevent the Entry of a Summary Final Judgment of Foreclosure in Favor of Plaintiff i. The Fiore Defendants Lae'ked Standing in This Case To Contest The Foreclosure The Fiore Defendants lacked standing in this case to contest the foreclosure.4 As acknowledged by Judge Nutt, the Fiore Defendants may have other mechanisms to proceed against Plaintiff, to the extent they intend to do so, in the Fiore Lawsuit for damages but not as to the foreclosure. As stated by Judge Nutt, during the hearing on April 3, 2018: But there's nothing that I'm hearing that evidences that this mortgagee doesn't have a right to proceed, and you do stand in the shoes. Now, whether you go after any funds that Zokaites would recover, that's why I asked if he's a party in your other case, you have mechanisms to go after Zokaites to prevent him from giving those funds away. . .5 Clearly, it would be improper to allow the Fiore Defendants to contest the foreclosure when any interest they have is inferior to Plaintiff? 3 interest in the Property. Since the Fiore Defendants were not parties to the Note and Mortgage (or Assignment) in this case, they lack standing to challenge Plaintiff?s rights to foreclose and would only be entitled to any excess proceeds at a foreclosure sale. ?e_e Rouffe v. Citimortgage, Inc., 2018 WL 1410712 (Fla. 4th DCA March 21, 2018) (since the heirs challenging a foreclosure proceeding were not parties to the note and mortgage, they lack standing to challenge the borrower's rights and liabilities under the contract as opposed to challenging only the amount of damages). Based upon the foregoing, the Fiore Defendants lack standing to challenge the foreclosure proceedings. See further Point herein. transcript of April 3, 2018 proceedings before Judge Nutt, Page 34, lines 1?10. 11 KOPELOWITZ OSTROW P.A. One West Las Olas Boulevard, Suite 500 Ft. Lauderdale, Florida 33301 0 Telephone 954-525-4100 Fax 954-525?4300 CASE NO.: ii. The Original Lender Was Protected Under Florida?s Recording Laws and Plaintiff Was Similarly Protected The law is well settled that under Florida?s recording laws, subsequent purchasers (here, the Original Lender) acquiring subsequent liens without notice of a prior unrecorded interest will be protected against such unrecorded interest unless the party claiming thereunder can show that such subsequent purchaser or lien creditor acquired his title or lien with notice of such unrecorded interest. See Section 695.01, Fla. Stat; Feinberg V. Stearns, 47 So. 797 (Fla. 1908) (emphasis added). [T]he burden of showing such notice is upon the party claiming under such unrecorded conveyance. All of the presumptions in such a case are in favor of the bona ?des of such subsequent purchaser or lien Creditor, and that they acquired their subsequent title or lien in good faith and without notice of the prior unrecorded conveyance, and the burden is on the party who has neglected to record his prior title to show that the subsequent purchaser or lien creditor has acted in fraud of his rights by purchasing or acquiring his lien with notice of his unrecorded prior conveyance. at 282-283 (emphasis added) (citations omitted).6 A subsequent purchaser, is protected under Section 695.01, Florida Statutes, against unrecorded interests and, in order to deprive such subsequent purchaser of the protection of the recording statute, it must be shown that he had notice in some recognized way of the rights of the party claiming under the unrecorded interest as the time of the mortgage.7 Similarly, a subsequent bona ?de mortgagee for valuable consideration and without notice of a prior claim is entitled to the same protection as a bona ?de grantee Without notice. Manufacturers' Trust Co. v. Peoples? Holding Co.. 149 So. 5 (Fla. 1933) (emphasis added). 6It is undisputed that there was no evidence whatsoever put forth by the Fiore Defendants that the Original Lender had notice of any unrecorded interest and, in fact, the Fiore Defendants? counsel conceded this point before Judge Nutt on April 3, 2018. 7To the extent that the Fiore Defendants claim that Plaintiff had notice of some ?unrecorded interest? at the time it took the Assignment in light of the Fiore Lawsuit, said argument is ill-founded since the current version of the Complaint in the iore Lawsuit (the Third Amended Complaint), filed on October 16, 2017, is signi?cantly different from the initial Complaint ?led on August 5, 2016 in the Fiore Lawsuit. The initial Complaint did not contain allegations of fraud in connection with the instruments at issue in this foreclosure proceeding the Note, Mortgage or Assignment) that would impact title. 0 2822.000005l0 I 090605_l 12 KOPELOWITZ OSTROW P.A. One West Las Olas Boulevard, Suite 500 Ft. Lauderdale, Florida 33301 0 Telephone 954-525-4100 - Fax 954-525-4300 CASE NO.: A remote purchaser of or assignee of an interest in realty whose purchase or assignment does not ful?ll all the requirements for protection as a bona ?de purchaser may nonetheless be given protection because he or she buys from one who is entitled to that protection. Feinberg, 47 So. at 784-85. Thus, a purchaser or assignee with notice takes good title when he or she purchases or takes an assignment from a purchaser Without notice, being protected by the good faith posture of his or her grantor or assignor. Here, the Fiore Defendants claim their interest in the Subject Property existed or resulted from alleged actions that occurred prior to the execution of the subject mortgage. Thus, vis-a?vis, the Fiore Defendants, the Original Lender was a subsequent purchaser for value of the Subject Property.8 The first recorded notice of the Fiore Defendants' interest in the Subject Property was a Notice of Lis Pendens recorded nearly six (6) months after the execution of the Subject Mortgage. Therefore, under Florida's recording Laws, the Original Lender is protected, and the Subject Mortgage has priority over the Fiore Defendants' prior unrecorded interest in the Subject Property. The iore Defendants are charged with the burden of showing the Original Lender's actual notice of their interest in the Subject Property at the time of the execution of the Subject Mortgage. Further, all the presumptions are in favor of the bona ?des of the Original Lender and that the Original Lender acquired their subsequent mortgage lien in good faith and without notice of the then unrecorded interest of the Fiore Defendants. At trial, the Fiore Defendants provided no evidence or testimony even remotely suggesting that the Original Lender had any notice, thus the Fiore Defendants did not overcome these presumptions and failed to carry their burden that the Original Lender had actual notice of their then unrecorded interest. 8The Subject Mortgage recites documentary steps having been paid in connection with the recording of it which evidence a valuable consideration of $300,000. 012822.000005/01090605Hl l3 KOPELOWITZ OSTROW .A. One West Las Olas Boulevard, Suite 500 - Ft. Lauderdale, Florida 33301 - Telephone 954-525-4100 - Fax 954-525-4300 CASE NO.: Although Plaintiff, as a remote assignee of the subject Mortgage after the recording of the Fiore Defendants? Notice of Lis Pendens, may not ful?ll all the requirements for protection as a bona ?de purchaser, Plaintiff, nonetheless, must be given such protection because it purchased from the Original Lender, one who is entitled to that protection. Plaintiff, an assignee with notice of the Fiore Defendants? original claim, takes a good mortgage as against them when ittook from the Original Lender who was without notice. Plaintiff is protected by the good faith posture of the Original Lender. The Fiore Defendants, who are not parties to the Subject Mortgage, and were only made parties to this action because they claim an interest in the Subject Property, based upon the pleadings, could not contest the underlying Subject Mortgage. The sole issue in this foreclosure action as between Plaintiff and the Fiore Defendants is the relative priority of their interests. As a matter of law, pursuant to the settled law of Florida, Plaintiffs Mortgage interest, as an assignee with notice of the Fiore Defendants' interest, is nevertheless protected by the good faith posture of the Original Lender, who was without notice of the Fiore Defendants' interest. Plaintiff Was Protected by Florida?s Uniform Commercial Code Even Against Allegations of Fraud Plaintiff was protected by Florida?s Uniform Commercial Code even against allegations of fraud. Pursuant Florida?s Uniform Commercial Code (?Fla the Original Lender was a holder in due course of the Note and Mortgage. A holder in due course is a holder who takes an instrument that is not irregular on its face, for value, (ii) in good faith, without notice that the instrument is overdue or has been dishonored, (iv) without notice that the instrument contains an unauthorized signature or has been altered, without notice that there is a third party claim to the instrument, and (vi) without notice that a party has a defense based on infancy of the obligor, duress, lack of legal capacity, illegality of the transaction, or fraud that induced the obligor to sign l4 KOPELOWITZ OSTROW PA. One West Las Olas Boulevard, Suite 500 Ft. Lauderdale, Florida 33301 - Telephone 954-525-4100 - Fax 954-525-4300 CASE NO.: the instrument at issue. Fla. Stat. 673.3021(l) (adapted from The Uniform Commercial Code ?3-302). . The Fla. UCC also provides, ?Transfer of an instrument vests in the transferee any right of the transferor to enforce the instrument, including any right as a holder in due course, but the transferee cannot acquire rights of a holder in due course by a transfer, directly or indirectly, from a holder in due course if the transferee engaged in fraud or illegality affecting the instrument.? Fla. Stat. 673.2031(2) (adapted from UCC 3-203). ?Under subsection a holder in due course that transfers an instrument transfers those rights as a holder in due course to the purchaser. The policy is to assure the holder in due course a free market for the instrument.? See Fla. Stat. 673.2031, Of?cial Comment to UCC 3-203 (emphasis added). I There is only one exception to this rule if the transferee was ?engaged in fraud or illegality a?ectz?ng the instrument.? 673.2031(2) (emphasis added). Simply put, there were no allegations or defenses set forth in this action indicating that Plaintiff was engaged in fraud or illegality with regard to the Note and Mortgage, or that it engaged in the original alleged fraudulent transaction involving the subject property. I As the transferee of the Original Lender, Plaintiff has all of the rights to enforce the Note and Mortgage as those of a holder in due course. While the Fiore Defendants, at the last hour, asserted that Plaintiff had knowledge of the Fiore Lawsuit at the time of its purchase of the Note and Mortgage, such knowledge is irrelevant and immaterial to these proceedings. The Note and Mortgage were executed and delivered to the Original Lender six months before the Fiore Lawsuit was filed, and thus, the Original Lender clearly had no knowledge of the claim. And even if Plaintiff had subsequent knowledge of an alleged fraud, that later knowledge is not the equivalent to engaging in fraud affecting the instrument. Moreover, as set forth above, the 15 KOPELOWITZ OSTROW P.A. One West Las Olas Boulevard, Suite 500 0 Ft. Lauderdale, Florida 33301 - Telephone 954-525?4100 Fax 954-525-4300 CASE NO.: allegations in the latest version of the Complaint in the Fiore Lawsuit (the Third Amended Complaint), filed on October 16, 2017, are signi?cantly different from the initial Complaint ?led on August 5, 2016. The initial Complaint did not contain allegations of fraud in connection with the instruments at issue in this foreclosure proceeding the Note, Mortgage or Assignment) nor would said allegations affect the ability to foreclose. UCC 3-203 is known as the ?shelter rule.? ?The shelter rule provides that the transferee of an instrument acquires the same rights that the transferor had. Thus, a person who does not himself qualify as an HDC [holder in due course] can still acquire that status if some previous holder (someone ?upstream?) was an Don Mayer, et al, Law of Commercial Transactions, Chapter 24, Holder In Due Course and Defenses (2012). A copy of Chapter 24 is attached hereto as Exhibit In this textbook, the authors provide the following example: On June 1, Clifford sells Harold the original manuscript of Benjamin Franklin?s autobiography. Unknown to Harold, however, the manuscript is a forgery. Harold signs a promissory note payable to Clifford for $250,000 on August 1. Clifford negotiates the note to Betsy on July 1 for $200,000; she is unaware of the fraud. On August 2, Betsy gives the note to Al as a token of her affection. Al is Clifford?s friend and knows about the scam. May Al collect? Begin the analysis by noting that Al is not an HDC. Why? For three reasons: he did not take the instrument for value (it was a gift), he did not take in good faith (he knew of the fraud), and he had notice (he acquired it after the due date). Nevertheless, Al is entitled to collect from Harold the full $250,000. His right to do so ?ows from UCC, Section ?Transfer of an instrument, whether or not the transfer is a negotiation, vests in the transferee any right of the transferor to enforce the instrument, including any right as a holder in due course, but the transferee cannot acquire rights of a holder in due course by a direct or indirect transfer from a holder in due course if the transferee engaged in fraud or illegality affecting the instrument.? By virtue of the shelter rule, Al as transferee from Betsy acquires all rights that she had as transferor. Clearly Betsy is an HDC: she paid for the instrument, she took it in good faith, had no notice of any claim or defense against the instrument, and there were no apparent irregularities. Since Betsy is an HDC, so is Al. His knowledge of the fraud does not undercut his rights as HDC because he was not a party to it and was not a prior holder. Now suppose that after negotiating the 012822.000005l01090605_l 16 KOPELOWITZ OSTROW RA. One West Las Olas Boulevard, Suite 500 0 Ft. Lauderdale, Florida 33301 - Telephone 954-525-4100 Fax 954-525-4300 CASE NO.: instrument to Betsy, Clifford repurchased it from her. He would not be an and would not acquire all Betsy?s rights?because he had been a party to fraud and as a prior holder had notice of a defense. The purpose of the shelter rule is ?to assure the holder in due course a free market for the paper.? Uniform Commercial Code, Section 3-203, Comment 2. See Exhibit pp. 5-6 (emphasis added). Courts in other jurisdictions have applied UCC 3-203 to claims similar to the instant case. SE Pitman Place D6V.., LLC V. Howard lnvs., LLC, 330 519 (Mo.Ct.App. 2010) (property owner who filed suit to set aside a loan transaction based on alleged unauthorized actions of its manager in executing the loan documents was a holder in due course under the ?shelter principle?); Schwegniann Bank Trust Co. V. Falkenberg, 931 F.2d 1081 (5th Cir. 1991) (court found that the transferee ?is entitled to all the rights of a holder in due course under the shelter rule because it acquired the note from a holder in due course?); Triffin V. Somerset Valley Bank, 777 A.2d 993 (N .J . Super. Ct. App. Div. 2001) (court affirmed a summary judgment in favor of plaintiff, where the trial court found that ?[e]ven though the checks had already been dishonored at the time the plaintiff purchased them, because the check cashing companies were holders in due course, the plaintiff transferee was vested with holder in due course status.? 1d. at 1000). It is undisputed that the Original Lender here was a holder in due course. There were no allegations or defenses whatsoever addressing the instruments at issue in this case all allegations of fraud involve a transaction separate and apart from the loan documents here. Therefore, when the Original Lender transferred the Note and Mortgage to Plaintiff, the transfer vested in Plaintiff all the rights of Original Lender as a holder in due course. Thus, the Fiore Defendants? defenses are irrelevant to these proceedings and cannot preclude summary judgment. 17 KOPELOWITZ OSTROW P.A. One West Las Olas Boulevard, Suite 500 - Ft. Lauderdale, Florida 33301 - Telephone 954-525-4100 - Fax 9546254300 CASE NO.: iv. The Fiore Defendants? Af?rmative Defenses Relating to Fraud Fail as a Matter of Law The Fiore Defendants raise only three (3) actual9 Af?rmative Defenses in their Answer and Af?rmative Defenses ?led on February 28, 2017. Af?rmative Defenses Nos. One and Three state as follows: (1) [T]hese Defendants would assert that they and others claiming with, by and through them were defrauded and otherwise wronged by SOVEREIGN GAMING and others, thereby making their rights to the property superior to those of all others; and (3) [T]hese Defendants would assert that any mortgage, note or other agreement between Plaintiff and SOVEREIGN GAMING are unlawful due to the fraud committed against them. The law is clear that fraud must be pled with particularity pursuant to Rule 1.120(b) of the Florida Rules of Civil Procedure. SE Fla. R. Civ. P. Rule 1.120 provides, in pertinent part, that: all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with such particularity as the circumstances may permit.? Fla. R. Civ. P. ?Particularity? requires that a party asserting a claim for fraud not only speci?cally identify the ?misrepresentations? but also the ?time, place or manner in which they were made, and how the misrepresentations were false or misleading.? Robertson v. P. H. F. Life Ins. Co., 702 So. 2d 555, 556 (Fla. DCA 1997) (emphasis added). The plaintiff is also required to allege those facts ?tending to show why the statements were false.? Gordon v. Etue, Wardlaw Co., P.A., 511 So. 2d 384, 388 (Fla. DCA 1987). The Florida rule regarding particularity serves a vital role in fraud actions or actions predicated upon a fraud such as fraud in the inducement. Speci?cally, it has been stated that: 9Af?rmative Defense No. 4 is merely a request to consolidate this action with another action (which was previously denied) and Af?rmative Defense No. 5 is a request to ?reserve the right to amend these af?rmative defenses.? Accordingly, neither are proper af?rmative defenses. In addition, Af?rmative Defense N0. 2 is addressed herein on pages 19-20. 012822.000005/0l090605u1 18 KOPELOWITZ OSTROW P.A. One West Las Olas Boulevard, Suite 500 Ft. Lauderdale, Florida 33301 - Telephone 954-525-4100 0 Fax 954-525-4300 CASE NO.: [p]leading fraud with particularity is necessary in order to: (1) provide the defendants with suf?cient notice of the facts in which the plaintiff complains to enable them to frame a response, (2) prevent fishing expeditions to uncover moral wrongs, and (3) protect defendants from unfounded accusations of immoral and otherwise wrongful ?clear intent of [the] Rule . . . is to eliminate fraud actions in which all the facts are learned through discovery after the complaint is ?led.? Butler V. Magellan Health Servs., lnc., 74 F. Supp. 2d 1201, 1215 (MD. Fla. 1999) (citations omitted). Moreover, ?[aln af?rmative defense of fraud that is not pleaded with particularity is deemed waived.? Cocoves v. Campbell, 819 So. 2d 910, 913 (Fla. 4th DCA 2002) (citation omitted) (emphasis added). Furthermore, it is clear that a trial court commits error when it bases its iudgment on issues not raised by the parties in the pleadings. See Mutchnik, Inc. Construction v. Dimmerman, 23 So. 3d 809, 810 (Fla. 3d DCA 2009) (citations omitted) (emphasis added). Based upon the foregoing, Fiore Defendants? af?rmative defenses as to fraud fail as a matter of law. v. The Fiore Defendants? Affirmative Defense No. Two Fails as a Matter of Law The iore Defendants? second Af?rmative Defense states that the Amended Complaint for Foreclosure is not veri?ed as required by Florida law. However, said ?Af?rmative Defense? is not an impediment to summary judgment. Rule 1.115(e) of the Florida Rules of Civil Procedure states: Veri?cation. --When ?ling an action for foreclosure on a mortgage for residential real property the claim for relief shall be veri?ed by the claimant seeking to foreclose the mortgage. When veri?cation of a document is required, the document ?led shall include an oath, af?rmation, or the following statement: ?Under penalties of perjury, I declare that have read the foregoing, and the facts alleged therein are true and correct to the best of my knowledge and belief." 0 l9 KOPELOWITZ OSTROW RA. One West Las Olas Boulevard, Suite 500 Ft. Lauderdale, Florida 33301 - Telephone 954-525-4100 Fax 954-525-4300 CASE NO.: Fla. R. Civ. P. Section 702.015, Florida Statutes, also requires a foreclosure plaintiff to verify certain information regarding the promissory note in its complaint. See 702.015, Fla. Stat. (2018). However, Rule veri?cation requirement was originally set forth in Rule 1.110(b) before the rule was amended in 2014 and the veri?cation requirement was moved from Rule 1.110(b) to Rule Beltway Capital, LLC v. Lucombe, 211 So. 3d 328, 329 n. 1 (Fla. 2d DCA 2017). In May, the court discussed how the defendant?s attempted use of the veri?cation requirement to delay the trial (by moving to dismiss the action on the day of trial due to the plaintiff?s failure to verify the complaint) ?overlook[ed] the legislature?s intent in enacting section 702.015, stating that ?[t]he certi?cation requirement of the statute was not intended to be a prerequisite to suit but was instead intended to expedite the foreclosure process.? 131, at 330 (quoting Campbell v. Wells Fargo Bank, N.A.. 204 So. 3d 476, 479?480 (Fla. 4th DCA July 6, 2016) (citing 702.015(1) (?The Legislature intends that this section expedite the foreclosure process by ensuring initial disclosure of a plaintiffs status and the facts supporting that status, thereby ensuring the availability of documents necessary to the prosecution of the ?The veri?cation requirement was also intended to avoid a waste of judicial resources.? Beltw, 211 So. 3d at 330 (citing In re Amendments to the Fla. Rules of Civil Procedure. 44 So.3d 555, 556 (Fla. 2010)). In Castillo v. Concept Uno of Miami. Inc., 193 So. 3d 57 (Fla. 3d DCA 2016), the plaintiff sued the defendant for breach of contact. at 58. Following dismissal of the original veri?ed complaint, the plaintiff ?led a ?veri?ed? amended complaint, which was not actually veri?ed. I_d. at 58-59. However, the original complaint (which was veri?ed) contained the same jurisdictional allegations as the amended complaint. I_d, at 58 n.2. The defendant moved to dismiss the amended 20 KOPELOWITZ OSTROW RA. One West Las Olas Boulevard, Suite 500 Ft. Lauderdale, Florida 33301 - Telephone 954-525-4100 Fax 954-525?4300 CASE NO.: complaint based on lack of personal jurisdiction. 11. at 59. Citing Venetian Salami Co. v. Parthenais, 554 So. 2d 499 (Fla. 1989), the Third District Court of Appeal stated that the Florida Supreme Court set forth a two-prong test to be applied by Florida trial courts in determining whether personal jurisdiction may properly be exercised over a defendant. First, the court must determine whether ?the complaint alleges suf?cient jurisdictional facts to bring the action within the ambit of" Florida's long-arm statute, section 48.193, Florida Statutes (2015). Ld. 59. Second, if the complaint does allege suf?cient jurisdictional facts, "the next inquiry is whether suf?cient 'minimum contacts' are demonstrated to satisfy due process requirements." defendant wishing to contest the allegations of the complaint concerning jurisdiction or to raise a contention of minimum contacts must ?le af?davits in support of his position. The burden is then placed upon the plat?nti?r to prove by affidavit the basis upon which jurisdiction may be obtained." 1d, (emphasis added). The Third District Court of Appeal has previously held that ?[o]ther competent sworn proof, such as depositions, a veri?ed complaint or documents, may substitute for the af?davit to support the parties? allegations as to jurisdiction(citations omitted). The defendant attached an af?davit in support of his motion to dismiss; however, the plaintiff did not ?le an af?davit or other sworn proofin response to the motion to dismiss. CLtillo, 193 So. 3d at 59-60. The trial court subsequently entered an order denying the motion to dismiss without elaboration, and the defendant appealed. I_d. at 59. The Third District Court of Appeal ruled that since the same jurisdictional allegations in the unveri?ed amended complaint had been set forth in the original veri?ed complaint, the veri?ed complaint (although dismissed) and the jurisdictional allegations contained therein were legally suf?cient to serve as the sworn proof in support of the plaintiffs allegations regarding personal jurisdiction. I_d. at 60. The court reversed 012822.000005l0 090605_] 21 KOPELOWITZ OSTROW P.A. One West Las Olas Boulevard, Suite 500 - Ft. Lauderdalc, Florida 33301 0 Telephone 954?525-4100 - Fax 954-525-4300 CASE NO.: the trial court?s order denying the motion to dismiss and remanded the case to the trial court in order for the trial court to hold an evidentiary hearing to resolve any disputed facts relating to jurisdiction. In Barnes V. Sea Haw. Rafting, LLC, 889 F.3d 517 (9th Cir. 2018), a maritime case, the district court dismissed the plaintiffs claims, reasoning that it lacked in rem jurisdiction because, even though the plaintiff verified his original complaint, he failed to verify the amended complaint. I_d. at 5. The appellate court ruled that the plaintiffs failure to verify the amended complaint did not divest the court of in rem jurisdiction because the relevant rule provided only that ?the complaint? must be veri?ed and said nothing regarding the necessity of verifying amended pleadings. I_d_1 at 22. The court found that such a requirement would not serve the rule ?5 purpose, ?which is to provide procedural protections to the vessel's owner?whose property is arrested without prior notice or a hearing?em order ?to eliminate any doubt as to the rule?s constitutionality.?? 1; (citation omitted and emphasis added). Here, the purpose of the verification rule is to expedite the foreclosure process by ensuring initial disclosure of a plaintiff 3 status and the facts supporting that status. Beltway, 211 So. 3d at 3 30. The verification requirement is neither a mandatory condition precedent to a foreclosure suit nor an element of a cause of action to foreclose on a note and mortgage. Li. The rule provides only that ?[w]hen ?ling an action for foreclosure on a mortgage for residential real property the claim for relief shall be verified. . and says nothing regarding the necessity of verifying amended pleadings. Fla. R. Civ. P. Since the original veri?ed complaint contained the same allegations as the amended unverified complaint, the sworn statements contained in the original complaint should be legally sufficient to serve as sworn proof in support of a motion for summary 22 KOPELOWITZ OSTROW P.A. One West Las Olas Boulevard, Suite 500 Ft. Lauderdale, Florida 33301 Telephone 954-525-4100 - Fax 954-525-4300 CASE NO: judgment, which will serve the rule?s purpose as set forth above. Accordingly, Plaintiff?s failure to verify the Amended Complaint should not preclude the entry of summary judgment in its favor. CONCLUSION This is a straightforward foreclosure action on a note and mortgage involving real property located in Palm Beach County, Florida. Sovereign?s failure to make timely payments is a material breach of the Loan Documents and has resulted in Plaintiff accelerating the payment of all amounts due. WHEREFORE, Plaintiff, ZOKAITES PROPERTIES, LP, respectfully requests: a) 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; b) That an account be made of the sum due to Plaintiff, ZOKAITES PROPERTIES, LP, under the Note and Mortgage, and if the sum is not paid within the time set by this Court, that the property mortgaged be sold in accordance with Section 45.031, Florida Statutes and that all Defendants made parties to this cause, and all persons claiming under or against said Defendants, be foreclosed; c) That if the proceeds of the sale are insuf?cient to satisfy Plaintiff, ZOKAITES PROPERTIES, LP, that a De?ciency Judgment be entered against Defendants; (1) That the Court award reasonable attorney?s fees and costs to Plaintiff, ZOKAITES PROPERTIES, LP, as incurred in this action; e) That the Court retain jurisdiction to grant such further relief as may be requested during the course of this litigation, including a de?ciency judgment and writs of assistance; and f) That the Court grants such other and further relief as it deems just and proper. 012822.000005/01090605gl 23 KOPELOWITZ OSTROW RA. One West Las Olas Boulevard, Suite 500 Ft. Lauderdale, Florida 33301 Telephone 954-525~4100 - Fax 954-525?4300 CASE NO.: CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 22nd day of August, 2018, a true copy of the foregoing has been served via Electronic Mail upon all parties identi?ed on the attached Service List. KOPELOWITZ OSTROW PA. Samantha Tesser Haimo Samantha Tesser Haimo tesser@kolawvers.com Florida Bar No. 148016 One West Las Olas Boulevard, Suite 500 Fort Lauderdale, FL 33301 (954) 525-4100 Telephone (954) 525?4300 Facsimile Counsel for Plaintiff Zokaites Properties, LP 012822.000005l01090605_1 24 KOPELOWITZ OSTROW PA. One West Las Olas Boulevard, Suite 500 - Ft. Lauderdale, Florida 3330] - Telephone 954-525-4100 Fax 954-525-4300 CASE NO.: SERVICE LIST 15th Judicial Circuit, Palm Beach County, Florida Zokaites Properties, LP V. Sovereign Gaming Entertainment, LLC, et al. CASE NO.: Samantha esser Haimo, Esq. KOPELOWITZ OSTROW P.A. One West Las Olas Boulevard, Suite 500 Fort Lauderdale, FL 33301 (954) 525-4100 Telephone (954) 525-4300 Facsimile tesser@kolawvers.com Florida Bar No. 148016 Counsel for Plaintiff Zokaites Properties, LP Sidney E. Lewis, Esq. 300 W. Adams Street, Suite 300 Jacksonville, FL 32202 Telephone: (904) 355?9003 (855) 346-1680 toll free slewisd?sidnevelewiscom Florida Bar No. 047277 Jeffrey M. Siskind, Esq. SISKIND LEGAL GROUP 525 South Flagler Drive, Suite 500 West Palm Beach, FL 33401 Telephone: (561) 832-7720 Facsimile: (561) 832-7668 ieffsiskind@msn.com Florida Bar No. 138746 Counsel for Defendant: Sovereign Gaming Entertainment LLC George and Jeri Maler 12509 World Cup Lane Wellington, FL 33414 (via US. Mail) The Unknown Parties n/k/a Judy Siskind in Possession of 3485 Lago De Talavera, Wellington, FL 33467 (via US Mail) 25 KOPELOWITZ OSTROW P.A. One West Las Olas Boulevard, Suite 500 Ft. Lauderdale, Florida 33301 - Telephone 954-525-4100 Fax 954-525-4300 CASE NO.: Sofiye Williams, Esq. SOFIYE WILLIAMS, P.A. 500 E. Broward Boulevard, Suite 1710 Fat Lauderdale, FL 33394 Telephone: 954-397-5739 Florida Bar No. 0191507 Counsel for Defendant: David Fiore, individually, and as assignee for Carl Stone, 3485 Lago De Talavera Trust and Diana George Peter M. Armold, Esq. GARY RYAN, PA. 701 U.S. Highway One, Suite 402 North Palm Beach, FL 33408 Telephone (561) 844-3 700 Facsimile (561) 844?2388 Florida Bar No.: 660655 Co-Counsel for Plaintiff, Zokaites Properties, LP 012822.000005/01090605m1 26 KOPELOWITZ OST ROW P.A. One West Las Olas Boulevard, Suite 500 - Ft. Lauderdale, Florida 33301 . Telephone 954?525-4100 - Fax 954-525-4300 IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.: DIVISION: AO ZOKAITES PROPERTIES, LP, Plaintiff, v. SOVEREIGN GAMING ENTERTAINMENT, GEORGE JERI MALER and THE UNKNOWN PARTIES IN POSSESSION OF 3485 LAGO DE TALAVERA, WELLINGTON, FL 33467; and DAVID IORE, individually and as assignee for CARL STONE, 3485 Lago De Talavera Trust and DIANA GEORGE, Defendants. AFFIDAVIT OF BEFORE ME, this day, personally appeared, FRANK ZOKAITES, who being duly sworn, deposes and says: 1. I am President of ZOKAITES PROPERTIES, LP the Plaintiff in this matter, and as such I am authorized to make this Af?davit. I am over the age of 18 and competent to testify as to the matters contained herein based upon my personal knowledge of the facts by review of business records. 2. ZP maintains records for the subject Loan. As part of my job responsibilities for ZP, I am familiar with the type of records maintained and the procedures for creating these records. 3. These records were made at or near the time of the occurrences or transactions recorded therein by a person with knowledge, or from information provided by a person with EXHIBIT - II 0 ?.821 00000590107264? I I I CASE NO.: knowledge, and kept in the course of business activity conducted regularly by regular practice to create such records. In connection with making this Af?davit, I have acquired personal knowledge of the matters stated herein by personally examining these business records. 4. On or about February 25, 2016,? Defendant, SOVEREIGN GAMING ENTERTAINMENT, LLC (?Sovereign?), executed and delivered a certain Promissory Note and Mortgage to TATAROW FAMILY PARTNERS LTD (?Tatarow?) as to 1/2 interest and GEOFFREY WEBER (?Weber?) as to 1/2 interest (the Mortgage and Promissory Note together, will be referred to herein as the, ?Loan Documents?). True and correct copies of the Loan Documents are attached hereto as Exhibits and respectively. 5. The Mortgage, securing payment of the Note, mortgaged the real property legally described as: Lot 29, Talavera P.U.D., according to the Plat thereof as recorded in Plat Book 105, Page 44, Public Records of Palm Beach County, Florida. Preperty address: 3485 Lago De Talavera, Wellington, FL 33467 (hereinafter, the ?Property?). 1 6. The Mortgage was recorded on March 10, 2016, in Of?cial Records Book 28154, Page 0748, of the Public Records of Palm Beach County, Florida. 7. The Loan Documents are in default for Sovereign?s failure to pay to Tatarow and Weber the payment due on August 1, 2016, and all subsequent payments. 8. On March 31, 2017, Tatarow and Weber executed an Assignment of Mortgage (?Assignment of Mortgage?), in favor. A true and correct copy of the Assignment of Mortgage is attached hereto as Exhibit 9. ZP paid $353,948.25 as consideration for the Assignment of Mortgage. 012822 UUOOGSIO 072647;] CASE NO: 10. The Assignment of Mortgage was recorded on August 23, 2017, in Of?cial Records Book 29309, Page 1884, of the Public Records of Palm Beach County, Florida. 11. The Loan is currently due and owing since August 1, 2016, and all payments thereafter. 12. Therefore, the remaining balance due on the Loan has been accelerated and this action to foreclose the Mortgage was commenced. See initial Complaint for Foreclosure dated November 17, 2016 and Amended Complaint for Foreclosure dated December 30, 2016. 13. As of August 21, 2018, ZP is owed the principal sum of $300,000.00 on the Loan, plus accumulated interest of $107,850.00 and interest accruing thereafter at the per diem rate of $150.00, and other charges, collection expenses, attorneys? fees, and court costs. See attached Balance Ledger of amounts currently due and owing as of August 2 1 2018, attached hereto as Exhibit 14. ZP retained the law firm of KOPELOWITZ OSTROW RA. and has agreed to pay its attorneys a reasonable fee for their services rendered in these proceedings. See Ledger of Attorneys? Fees paid attached hereto as Exhibit 15. That the facts alleged herein are true and correct. 012822 000005I010726-17di CASE NO.: FURTHER AFFIANT SAYETH NAUGHT. Name 1 Its: PRESI STATE OF 331531.! ss COUNTY 01: Ewm S) r? SWORN TO and SUBSCRIBED befom me day of August, 201 8, by FRANK ZOKAITES, as PRESIDENT of ZOKAITES PROPERTIES, LP, who is personally known to me Qw? CM {0ng and who took an oath. NOTNRY 1991131; Ic- COMMONWEAL r-H- 017p PEN 1K SEAL VANIA Pl'll'lt Name Egbli? N?rm-j?; GU.) 221%": $0 ?13151:? Notary Public My Commission (9619;911:6354111153520 Number: P-ENNS EON OF ES My Commission Expires: LF, 0 0l2822 000005/01072647_ NOTE 3 300,000:00 2016 Wellington, Florida FOR VALUE RECEIVED, 'the undersigned,- Sovereign Gaming Entertainment; LLC, a Florida- limited liability contpany,; and William Sis?kind, individually hereinatte?r collectively referred to as "Maker?, promise to pay to Tatarow Family Partners, LTD., 11 Colorado limited. partnership and Geoffrey Weber, hereinafter collectively referred to as "Payee", or order, in the manner hereinafter speci?ed, the principal sum of. THREE HUNDRED THOUSAND AND ($300 000 .00) DOLLARS with interest from. date: hereof at the rate of TWELVE (12 percent pegg?ft t711m the balance from time to time remaining unpaid. The said principal and interest shalt be paya to Tataro'w Fainiiy Partners, a Colorado limited partnership as to 5? interest at 11.759 Elaine; Sprhinole, FL 33772 as to V2 and shall be paid in payments 0E interest only 1n cunt of ONE THOUSAND FIVE HUNDRED DOLLARS and 100 500. 00), and Geo re Weber", at. 221' 'T-une'r Street, Clearwater,? FL 33756 as to 561 and shall be paid at paywents gt? interest only 111 the .amo'unt of ONE THOUSAND FIVE HUNDRED DOLLARS and 100 (S a500 00-), commencing on the 1?l day of April 2016 and shall be due and payable on the l? dayaofieao and every month therea?er until March 1, 2018,. when the entire unpaid principal balance togeihergwijh any and all accrued interest shall be due and payable? to full ??tir This Note may not he paid prior to March 1, 2017 who tgew a? eieration or otherwise except upon payment of a fee 1n the amount of 000. 00. Thematic Netti" may be .paid in whole or in part at- any 0% paid" in full or- in part without penalty or due and payable 1n hill Maker shall pay Payee a late charg?iijtst?o )tceed ten (10 00%) percent at the amount of any payment of principai and interest net paid Emma hie 5) days when due. . lt? Maker shall fail to make its pits on or- before the 151 day of any month more than three (3) times during the term of this '1me the interest rate shall rncreesc to 15% per annum; if default be mad in the. aginent (within 5 days of when due) of any- 01 the sums or interest mentioned herein or in thesmortgage or any other document or instrument securing this Note, or in the performance of any of the gr ets contained herein or in said. mortgage, then the entire principal sum and accrued interest it the ption of the Payee hereof become at time due and collectible without neti'ce, time being of he es nee; and said principal sum and- accrued interest shall both bear interest from such time u'ntilp i?h highest- rate allowable under the iaws of the State of Florida. Failure to exercise this ophon?i shall not? constitute a ?waiver ot the right to exercise the same in the extent of- any subsequent default], - Nothing herein cantained nor any transaction related thereto shall be construed or so operate as to retruire the Maker. or any person liabnle for repayment of same, to pay interest at a greater rate than 13 now lawful in such case to contract for or to make any payment, or to db any act contrary to law. Such rate. of interest shall never exceed. the" maximum legal rate of interest which is legally permitted under the laws of Florida; and if Such rate of intereth computed' to the amount hereinab?ove- provided.- -for, should exceed the 'said maximum legal rate, then said rate of. interest shall be automatically reduced to such maximum legal EXHIBIT i FILED: PALM BEACH COUNTY, FL, SHARON R. BOCK, CLERK. 3/15/2017 4:30:00 PM rate. Should any interest or? other charges? paid by the Maker 'or- parties liable for- the payment of this Note in connection with the loan evidenced by this Note or the Mortgage securing the payment of this note or any other document delivered' 111- connectiOn with said loan re?sult' in the ComputatiOn or ea'n'iihg? of interest in excess of- the maximum. legal rate of interest which 18 legally permitted under the Laws of Florida, then any and all such excess shall be and the same: is hereby waived. by the Payee and any Holder hereof". ahd any and all such excess shall be? automatically ab itiiti'o licm the date of this Note and other loan documents and the date ?oi the payment credited against and in reduction of principal balance due under this indebtedness and a portion of said excess which exceeds the balance due under this .indebted?nss shall be paid .by the Payee and- Holder hereof to the. Maker and parties liable for the payment of this Nora. EaCh person liable hereon whether. Maker or Endorser; hereby .waives presentment, prote of protest and notice of dishonor? and agrees to pay all co'sts, including a reasonable adorn . i'ee; whether suit be brought or not, if, afier maturity of this Pronds?sory Note or default hereund ?nder said Mortgage Deed; counsel shall be employed to collect monies due under this Promissory $11 or to protect the security 01" said Payee. FLORIDA. DOCUMENTARY IN THE SUM .OF 059 00 FIXED THE- ORIGINAL MORTGAGE AND CANCELLED. WITNESSES. (me 1112:?. war eta?6w arena/rm Page Mar/?W13 "aniiwen" l?overeign Gaming Entertainment, LLC, a 1.9.121 William 1% #1 . Print Name:- Wadi/w Witness #2 William Siskind, individually Print Name: 1.initial FILED: PALM BEACH COUNTY FL SHARON BOCK, CLERK. 3/15/2017 4 30:00 PM CFN nmenmasmaa CIR Elli 21315-43 PG QWQB RECORDED 11:42:27 Palm Beach musty. Flnrida MIT Enquire Deed Dan 1 9353.. ARSENAULT OFF-ICES, PA. [0325 Linnea-tort Road. Suitc2 Intang 691% 9193 Lurgo,.FimTida 33TH. Sharon H. 30mm CLERK 5 COMPTROLLER Pg? El?48 756; {Bpgs} . THIS MORTGAGE mtesuted'th?is? 25!? day of February, 2016 by SOVEREIGN GAMING a Flarida limited liability company, party of- th'e' ?rst part, hereina?er grilled the at BURRQWER. to TATAROW FAMILY PARTNERS, a Colomdotiin?tsd partnership-as to the mailing address of 11759 96?" Place, Seminole; FL 33772 and GEOFFREY WEBER, as My interest-[having the mailing address 01522-1 Tumer Street, Clesifwagst. FL 33756, party second part, hereinafter cqllectivsiy called the MORTGAGES or LENDER. The terms CW wh?nmien used in this," include the heirs, representatives, and assignszof Hm: respective?tparti'Gs herein. numbst shall tits-?gural and the plum.? the? singular, smiths use of any gender shall include all genders. WHEIUSAS, Borrower is indehtsd?to Lender in the-principal sum of is evidenced by Bottomless? note da?te?d February 25, 2016' and extensions and renewals thereof rsfenied to as "Nots"), providing for installments of .intersst, snly with the. if not sooner paid, dusanhpayabls on'Matsh .l.,,2018. T0 SECURE to Lender thsr?psyment of the indebtedness svidenssd by the'N'ote, with interest thereon, the payment 0:74:11 Qtlistjsutns. with interest. advances in ascordancs pirate?gt the security of and-ills lperfomwnsa off the deenants and contained} Burrowsr does he?eby mo?'gngq; grant and coming? to .it??nds?r'ilis Enllomng' dssc?b?dpro?sriy located in the Ceunty-of Stats-0f Blonds: LDC 39, 'Eal?v?ra Palm? according: to the gist: therenf as 'rssordstivhi Plat Book 165,- .?Page'ti'li, Public: Records of'Palm Beach County. Floridan (liarsinaf?tsr referred to as the witic'i't'has theproperty addresses of: 3485 1.!qu Be leavern, wellington, FL 33467 THIS NOT THE HOMESTEAD PROPERTY OF THE with all the now Qr. ?hereafter exacted. sti- this and all? saseme'ntsL rights, appu?rt?n'shces and rents, all oifittihit'ih sh?a?il be detained in lie-and remain at pa?rt ut?th?e property (revered by this Mortgage; and all of the foregoing, together with-said property (or the lsaSshold estate if this (Mortgage is on a ileasehold) ars. hereinafter referral?! to as {he? "Pmpeny". Barrows; - vasnants that Borrower is lawfully seized of the estate hereby conveyed. and has 111:: right to mortgage, giant and admit-Lyme B't'opqtt'y, and that the Pnoperiy .is unencumbered, sx'ss?t for set Rink 'aliot're. Borrower. covenants that. Borrower warrants and. will defand gsnemilly the title to "the .qupetty Iagsin?st a11- o?ls'lmsand demands, subject to encumbrances set forth above. I?qrroweu-and Lends: ?mutant and sigma-as In?ows: 3. Payment. of principal and interest. Borrower-shit? =?pny? wltan tine the principaland i?ntetest indebtedness evidenced'b . the Nets. EXHIBIT 2/ - Page 1- 0f 9 . B00k28154/Page748 Page 1 of 9 .2. Funds for Taxes and Insurance, (if applicable). to applicable lancer a mitten. waiver by Lender. Bottowdr'i?hal'l pay to Lander on the dd)" pdyments o?r?t'nlcre?st only tire payable under the Note, until the Note is paid in fall, a stun- (herein ".FUnds") squat to of the-yearly taxes and assessments (includhtg condominium and planned unit "development assessments, if tiny) which may attain priority over this Mortgage and ground rents on the Property, if tin-y, plus one-Invelftti of yearly premium installhsentst?othazard. insure nee, plus euea'twelfth ofyeaxly premium. installmenle for mortgage insurance. if any, all as reasonably estimated initially and {romantic to time by Lender on the basis-of -assessmenls-aud3bilis and reasonable estimates thereof. Lender may,? at any time, collect and hold Eunds in an amount not to exceed the amount slender fol: a federally related mortgage. loan may require for Borrower's escrow account under the federal Real Estate Proeeduros Act of 1974 as amended :t?rordtirue to time1 1'2 U130. Section 2601 et seq. unlessanother Inw?that applies to the sets a lesser amount. If so, Lender may, at any time, collect and hold Funds in an amount" not lessened ihe amount. Lender may estimate the amount o.t?.Fuuds due on the-basis of'eurrant data and reasonable estimates of expenditures of future Escrow Items ot othenvise in accordance with applicable. law. . ll? Bones/er 'pd?ys funds to Lender, the Funds. shall be held in an institution'the ddpe?slts or ?acoonnts of Which and insured d'r sustained by a Federal or state-agency (including Lender il?Lenden-is: such Lender shall apply the Funds to pay shin lanes, assessments, ground rents. Lender may not. o'hatge for do holdin'gfjd?d applying the Funds; analyzing- sald account or and compiling snid- assessments and bills, unless Lendet? pays Boh?ower interest on the Funds and. applicable law permits Lender to make such a Bomwerend Lender may agree-in writing at the flute ofeueputton of this Mortgage-that interest on the Funds shall he paid 'to Sumner, and. unless such agreement. is made or applicable {lawmquires such interest to be paid. "Lender shall not tie-required to pay 'BorroWer any interest or earnings on the Funds. Lender shall give to Bonowet, without charge; an annual accounting of the Funds showing credits and debits to. the Funds and the-'pnrpose-foe which each. "debit to the Funds was made. The Funds are pledged asrarldition?dl sedur?ity- for the-sums secured by this .?Mortguge. if' the-amount of the Funds held by Lender, together with the future installments of Funds payable print?io. the due dates of the taxes. assessments, insurance premiums and gtounil tents, shall exceed the amount'tequired to pay said taxes, assessments, insurance-premiums and ground. rents as they fall due, sueh- excess shall be,_ option, to Borrower or credited to- Botrowe?r? on instalments ?of 'Ftisds. If the amount of the Funds held lay-Lender shall not be. suf?cient .to pay-taxes. assessments, insurance premiums and ground rents. as theyfall due, Bottoms-shalt. pay'to Lender, any-amount necessary to make up the de?ciency in one or more payments as, Lender: may require. Upon payment in full. of all sums secured'by this Mortgage, Lender shall refund to Bonded any Funds heldby Lender. [if undet'pnr?agraphl? hereof the? Property is sold tir? the Fraperty is otherwise acquired by Lenses. Lender-shall apply, holster than immediately prior to' the? sale of the Property or its acquisition by Lender, any Funds held. byLend'er at the time. of application as a credit against the sums secured by this Mortgage. If Lender-shall. not require the escrow of 't?dnds'for payment of Taxes and Insurance, then'Bononret' shall each year ptovldc proof of payment. of taxes prior to delinquency andfunher provide Lender w?ith proof-of renewal of each. policy olfinsnranoe not less than 30 days .pdorvtn expiration ofany policy then ln'f'orce; 3. Application of Payments. Unless applicable (law provides otherwise, all pdyme'nts' received by Lender under paragraphs 1 and 2. shall be applied: ?rst, teeny prepayment Paige ?2 of 9. Book28154/Page749 Page 2 of 9 the Note; tog-amounts payable under paragraph 2; third, to interest due; fourth, to principal due; and'last, to anylate charges out: under-the? Note. .4. Prior Mortgage and Deeds of Trust; Charges; Lions. Borrower shall :porfonu all of- Borrower's- obligations under any mortgage, deed of trust or other s'eourlty- agreement-Willi a .lien.?wllioh has priOrit-y over this Mortgage, including Borrower?s covenantsto make payments When duet; Borrow;- shall pay or cause to ho paid all taxes, assessments and othernhargss, lines and imp osltions. attributable to: the Property which may-attain a priority over this Mortgage, and leasehold payments or-g?round fonts, if any. A default Under the terms of any mortgage which has, priority over this Mortgage shall bo tantamount rota-do?ault hereunder. 5. Hazard insurance. Borrower'sh'all. keep "the improvezuet?i'ts ?njow exisilng or hereafter erectod. on the [Property including ?contents? or ?dwelling antl personal property" coverage insured against. loss by ?rs, hazards included within the tom "extended-covxemgel', and stroll otho'r hazards 'as: .l.entlor may require and in. such amounts and for suohpariods as Lentils-r may requl?ro or ?dwelling out! personolgproporty? The insurance carrier. providing the: insurance shall be chosen by Borrower subjeot to sopro'vzil? by Louder; provi?od' that suo'l: approval shall not, be, unreasonably withhold. All, insurance pollcjos and- renewals thereof shall he: in. o-form aocoptabl'o, to Lender and shall include a standard mortgage clause in Favor of and in n-foou-aoceptable to Bender. Louder shall hove-thought to hold the policies and renewals. thereof, subject to the terms of any mortgage, deed ol?ttust or other security agreement with a lion which has priority over: this Mortgage. 111 tho-ovento? loss. Borrower shall give prompt notice to the insurance. carrier and London Lender?may mt?ik?o ptoof of loss. if not made by Borrower. Lender is .authodzed to colloot and to art-Loaders option olthet'to restoration or repair of the Propeuy or to the payment of the sums securedby this Mb?gago, Borrower?author'izes Leader to .endotsoB orrowm?s name on all insurance. proceeds checks. 6. Preservation and. Maintenaneo of Property; Leaseholds, Condominiums: Planned ?Unit Doyelopmonts. Borrower shall keep the Property in good repair ancl shall. hot commibuiaste or permit impairment 'or deterioration of? thefl?roporty and shall'oomply with on: joroafislo'os of amp]t lease it this Mortgage is On a loaSeholo.. If this, 'M'ortgage -is non unit in a condominium. or a planned. unit development. Borrower shall perform all of Borrower's obligations under the dedlamtion or custom-Into creating or governing the condominium or planned. unit development, the, lay?laws and regulations of-tho. condominium or planner} unitdevelopment, and constituent documents. Protection of Lender's Security.. lf Borrower fails to perform the covenants :a'nil agreements contained in this Mortgage. 01" Wow aotioxt or is commonoed wl?oh materially affects-Lender's interest. in the Property; then?Londer, a: Ilendcr's: opt-ion, upon notice to Eonmyott, may make such- appearances,- disburs'o? such-sums, including 'reastmable attorneysI fees, anc'l a's is: necessary to protect the Lenders interest. If'Lenoer required moitgago insuraneeas a condition of making; the loan sooured .by' this-Mortgage; Borrower- shall pay?t'he premiums. required to maintain ench- insurance in. affect until such-time as tlis. requiremonts- for such. insurance terminates in accordance with Borrower?s and iLentler?s written agreement or applicable law: Any amounts disbursod by Lon'dor pursuant to this patagraph?, with lnleresmhereou at the Note. rate, shall becomo adoitlonol indebtedness of? Borrower secured. mortgage; Unless BorroWer and .?kentlor agree. to other'temrs of? payments, such amounts shall be payable upon. notice from [London- to Borrower requesting payment thereof. Nothing contained in this paragraph 7 shall require Lender to incur any expense; or take any ?ctionh?temld?? Patio :3 or. o: Book28154/PageT5O Page 3 of 9' Inspection; Lender-tinny make or cause, to be made reasonelile; entries- neon and. inspections of the Lend-er notice pticr'to any- such inspection Specifyih'greasonslilecause therein: related to Lender?s .9. ,Condemnntion. The proceeds of- any award or claim for. changes. direct ?or consequential5 in cdnnection with any condemnation er othettelting of the-Property? or part thereof; or for conveyance in lien ct? condemnation, areherchy assigned and shall 'be, paid to Lender subject to the terms of any mortgage; deed of trust or other security agreement with a lien which has priority over this. Mortgage. 1th Borrower Not Released; Fcrbearance By Lender Not :1 Waiver. of the ?lime' for-payment or modification of amortization of the sums secured by this Mortgage granted by Lender to any snccesscr of'Bowower shall not operate to release, in any manner, the liability of the original Bonewer. er 'chweris successors in interest. Lender shall not be required to commence against such dr refuse to estend time for 'bayment ?cr otherwise modify .oif the stuns secured by this Mortgage 'by reason of any demand made by the'criginnl Borrower-end" succesSOrs in interest. Any lethenmn?ee byZILeuder? in exemisl?g'nny right or 'remedy'fliereundcr, by .epnliccble law, stroll not. 'be a Waiver cf' of: preclude the exercise of any shell right or remedy. l, . .11. tutti. Assigns Belted: 3?0th and Setters] Liability; Co-Sighht?s; The covenants and agreements herein. cohteined shall .bind, and the nights hereunder she'll inure to, the respective successors and assigns pt? Lender end Borrower, subject to the provisions of 'peragreph. 1'6. hereof. All covenants end agreements of Homow?r' shall be joint and several. Any Borrower titre cc. signs this Mortgage, Liutdoes? n?ct- executc.the Netti, is cousijgnin'g this only 'l'q mo?tgs?g'c, grant and convey Property to Lender under the terms is not; personally liable on theN'ot'e or under this Mortgage, and? agrees that Lender and-any other Borrower. hereunder-they agree to extend, niociify. forbear or make any other to the terms of this Mortgage or theme without thetBonower?s consent and without releasing that. Borrower or modifying this Mortgage as. to that Benower's interest in. the Preperty. 12. 1.02111 Cherg?s.- It? the. loan securedby this Mortgage is subject to 3- law which sets mattirnum lean charges, end that- iaw is ?nally interpreted so that the interest or Aether loan charges, collected or lobe. collected in connection. with the loan exceed the permitted limits, then: any such loan charge shall ?hetrelluced by the 'ethctu?tt necessary to reduce the charge to the permitted limit; e'nd (53 any sums already col.iectcd.i?rcm Borrower which exceeded permitted limits will be refunded to Borrower. Lender may 613100.36 to make this refund by reducing the principal owed undertho Note'hr. a direct payment tc-Borrctirer. If a refund reduces principal, the-reduction will he treated do ?n pantie]. prepayment- prepayment. charge under the Note. Nutlce. Except .?Eet any notice required under applicable .lew"to. he giyennih: another manner, (at) soy notice- to provided for in this Mortgage shall he givch by deliveringl't or by nmiling such netlce by certified mail addressed to Borrower otthe Ptcnerty Address or at such-other address as. Borro'v'ver. may designate by notice to Lender as preyide'd herein, and Lender shall tie-given by certified mail to Lender's address statedherehi or to such-odter'addrt'ses' asi?endtii'msy' designate by notice to Borrower as 'Any in deemed to the. been "glyet?utt't Bestseller or Lender when given in. the manner designated herein. . 14- Governing Law; Severa?btitty. The state and local this Mortgage. shell in; the laws of theiurisdicticn in which the Property is located. The, not, limit the applicability of Federal .lssv't?c? this Mortgage. in theev?cnttithet any provision or clanse?ot?tlt?is Paige 4 or: '9 Book28154/Page751 Page *4 of 9 Merl-gage or the Note conflicts with applicehlc'ilow, hutch conflict shall not: otherprovisione of this Mortgage or the ?Note Which. can be given effect withoutthe ooniilctiitg provision, end-to. this .end the provisions of this Mortgage and the Note are declared to beaeevetnhle. Ah usedherein, ?costs?, and "attornoys' fees" include all some to the extent not prohibited. by applicable law 0r limited herein. 15. Borrower's Copy. Berton/er ?shall hol?omished a. conformed copy of the Noloand' erhig Mortgage at the time of execution orefter hereof, '16. 'iifrnnet?er of the Prep e'rtj'r 'or Bene?cial Interest in?ow-errorthe Propony or any interest therein is Mid elf-transferred hy Borrower (or he 'bcnci?t'eiai interest in Borrower is sold or transi?etrcdend?orrower.is not natural. person orpersons but is a corporation, pannetehipr trust- or other legal entity) without Lender?s-prior .t'rritten consent, "excluding; to) the creation of ti honor encumbrance subordinate to thin Security Instrumont .ttihinl does not relate to or transfer: of rights. oi.? occupancy in the property, the creation of e. purchase money security interest for household appliances, a transi?et- by devise, descent. or by operation of law uponrite death of?n jo?intt'tenont {arid}; the giant Qf'ony leasehold interest of three years or'loes not containing an option to at lender?s-option, declare all the sums secured by this. Seettrity he immediatelydue and ?payalai'o. Ii? Lender exercises such Option to accelerate, Lender shall mail. Borrowernotice of acceleration in accordance with.;pnragraph.t 3. homo-ti. Such notice shall proVid'e of- notices than 30 days from the date the notice is ?rnail?d Witliih. which Borrower may prone. euros declarec'i cine. Ifi'Bon'oWEr fails to pay such sums prior to the expiration of euchperiod, Lender may; without further notice 'or tiern?and on Bon?owor, invoke any remedies 1:9 hereof. Lender may consent. 'to it. onto or transfer if: Borrower. causes. to be. Submitted to Lender loft-irritation requiredby Louder to evaluate the transferee as if a new loan Were-being made to the- transferee; (2).Lender reasonably determines that Lender's security? Will not he'intpnired and that therisk of a breach of any covenants or agreement in this Security Instrument is acceptable; (3) interest will be payable on the sums scoured by this Security instrument at a rate acceptable to lender; (4-) changes in the terms of'tho Note and this Security required by Lender are :m'ndej .iholuding,,for example, pari?dic adjustment in ihc'intercst rote, tt different '?nal payment date for the loan, and addition interest to=priccipeh and. signs on assumption is acceptable to Lender-end- that obligates tho?transt?eree to keep all the promises and agreement made in the Note and in this Security Ins'lli?ut?h??l; or. modi?ed it? required by Lender. To the extent permitted 'by' applicable law, Leonor- zillio- may charge a reasonable fee as condition 1o. Lender?s any sale. ortransi?er. lito?rrointot= villi. continueto be obligated under the Note and this Security releases Borrower in writing. 1'7. Hazardous Substances. Borrower shall not causeor permit the preset-too, use, disposals. storage, or release of any Hazardous Substances on or. in the Property. Borrower Shall not not allow anyone else, to do, onything' affecting the Property that is in violation of any Environmental Law. filte- orecedi'ng two not apply to the presence, use or storage on the'Propet-ty cit-email quantities of Hazardous Stibstoncce' that-arc generally recognized to be appropriate to normal residential "uses- one to maintenance of?tho Property. Borrower shall give louder. written notice of anyiinttestigation, claim, demand. lawsuit ctr-other airtibn by any governmental or regulatory agency or private-sporty implying the Property and any .Eiezordous substance orEnvironrnental .Law o?t?which theBorrower has actual knowledge. EE'Borrowor Page 5 of '9 nu Il?qu?pquubmlu-?n Book28154/Page752 Page 5 of 9 teams! oi: is noti?ed lay-any 'go-veramental or regulation: authority; that any removal or other remegliation of any Hazardous Substance affecting the 'Pmpanty is necessary, Boomer shall promigtly- take all in accordance with IEm/immn?ental Law. As used in this zpamgrepli. ?Hazardous Substaooes" de?oeti as- toxic or hazardous substances by Envirolmiental-Law and the follo'tinih'g' sub'sta'iioes: gasoline, kerosene; other flammable. or toxic petroleum p'toduoia, toxic pestieiciea. volatile solvents, materials containing asbestos or :ibama?ldehyde, and radioaotive, mated-ale. As used in. this paragraph 17, "Envinonmeatal Law" means federal laws and laws of'the jurisdiction: where-the located that relate to health-safety or onviromnenl'al protection. 18. Assignment of. Rents; Appointment of Receiver. As seom'it'y h?eroimdeia Borrower hereby-assigns to Lender the rents of the Property, provided that Borrower shall, prior to the aooeleratiori under paragraph 1.9 hereof or abandonment of the Property, have the right to 001th and retain such rents ale-they become due and payable. Upon acceleration under paragraph 19 hereoi?or abandonment of theapropcriy, Lender shall. be entitled to "have appointed by a eonrt to. enter upon, iake possessioaof and manage the Broporty and. to' oolieo?t? the reni?a ofthe Property includitig those past due. All re'n?i?s collected by the receiver shall. be applied it?: ratio payment of the..eoa'ts ofmanagement oftlie Property and. collection of roots, including, 'but not limited to, receiver's feast premiums on receiver's bonds and .neasona'h'le attorneys' fees, and then to thosums securedzby this'mortgago. Tile receiwif ?Shall be? liable to account only for those tents aetoally received. . Bottower? and Leader fortiaereovenaut and ages as follows: 19. Acceleration; Remedies, Upon Borrower?s Breach of any eovena?t :or agreement of.? .Bornoworin this-Mo?gageJ including'witllout "limitation the eoVena?ts icy-pa}? wlieni'tiue' any'sui?e tenured. by this-Mortgage, Lender, option, may declare all. oftheeiu'ns scouredby this Mortgage to be immediately due and payable without; notice or demand and may .foreoloso {his Mortgage by judicial proceeding. Lender will be entitled to collect in such proceeding all 6x13611535 of foreclosure; including, b?ut?oot limited to, reasonable attomoys? fees, court Costs, and-costs of docurrie'ntazy evidence.'absteacte and title reports; R?elease. Upon. payment of all sums secured by this Mortgage, Lender shall. releasethii: Moxigage without ohtix?ge to Borrower. Borrower shall pay all costs: of .reoordotion. if any. 21. Attorneys! .Eees. As. used in this Mortgage and in the. Note,- "attorneys' fees? shall- inoludt?: attornoys' f'e'eaglf any; which m'ay be awarded by?al'l appellate court. .22. 'Raymenmf Real. Estate (Fens. Borrower covenants and agrees to gay all real estate itixo?siisilioased against ?th?e mortgaged property no later of December 315? each year dun-Engine term-sot" this mortgage and to evidence to, lender proof of? payment thereof. Page: 16' ijf? '9 Book28154/Page3753 Page 6 of 9 1N Emmomm HAS EXECUTED THIS MO Sig?ed-, sealed. and deliveradjn the. pram one of: Severely Gaming 85 LLC, 'a .Elorida limited 'liab'i?ty comgany Witness..#1 William L. S?iskincl, .Managa'r P?nENzijiie: 47;? Add Witness Print Name: grewankn A some}? a Eta-Ma The; foregoing instrument was acknowledged .befqmme this .23? day cf February, 2016, by William L. Siskind, as Manager of?SoverBign. Gaming Florida limited liability compa?l? 'who is personally known to :an or w'iw has pradhced ?5ng identi?cation. . a. 6m 5&5an swam WEEK (aw, 3? W68 Max Laue? Mod 11ml ?udw Nouryaem .Eag'e '7 of 9 M?lkul-l B00k28154/Page754 Page 7 of 9 PLANNED UNIT DEVELOPMENT RIDER UNIT DEVELOPMENT RIDER. is made this 25?? day ofIFebruaty. 20.16, and is incorporated into and shalt be deemed to amend and supplement. the Mortgage (the ?Seoudty hts'ttument?) of thensame date. given by the undersigned (the ?BorroWer??-to secure Borrower?s ?Note to Tate-row Family?Pntt-ners. a. Go'l'orado-ii-imited and Geoffrey Weber (colleetively the ?.Lender?) or the same date anti covering ?csoribed, {tithe Security Instrument and located at 34,85 Lego De Talevere, wellingtonfRL 33,467.. The Property includes, but-is not'limite'd to, a ?parcel?of land-.improved with ti. dwelling, together ?with other such parcels t?tnd certain common areas and facilities, its described in OR. Book 19713, Page? 1.234 (the ?Dccioratioo?). 'TheiRropetty'is'a part: ofepimed unit. development known as Tnlevern (the "tine Freperty also includes Borrowerts interest in the hotneowneris association. or equivaient entity owning or managing the areas anti e: the PUE) (th'e??Woers Association?) and the uses, bene?ts nodproc?ctis interest. . PUD COVENANTS. In addition to the covenants and agreements mode in the Security Instnuttent, ZB'Ortoiver and. Lender further covenant and agree as follows: A. PUD Obligations. Borrower?s obligations 'ond'erttie?PUB?s Constituent lDohumcn'ts, The ?constituent Dooument's? are that.? Declaration; (ii) h?icleo. of .incorporntion, frost instrument or any equivalent. document which ereetes the Owners Assonintiom and any bydaws or other roles. or regnihtione ot"ihe. O?wnreos Association. Borrower when time, all dues and nesersentents? 'h?pot?te'ti pursuant to the Constituent Dodotnents. B. Hazatjd Ittsurnnee. So "thug as the Owners Association maintains, with a generally- aceepted cordon. a ?master" or ?blanket? pot-icy insuring the Property whichis sntist?aotori? to tender end-Which provider: insurance coverage in the periods, and against the hazards. Lender-requires, including ?re. and. hazards-included within the term-?extended coverage?, then:- . Lm?er waives the provisiooin Uniform Covenant 2 for the to Lender of? one-twelfth oftho yearly: premium-installments for'hazatd insuranceon the-Property; and B?rt?thw?f?s dbligi'tt-iofl uitt'i'et? 'Uitifhi't'n Govei't?a't'lt 5' to maintain halaatd moth-thine: coverage on the Property is deemed satis?ed to the extent that the-required coverage is Owners Association policy. Borrower SHALL GIVE lender prompt not'reeof tmyiapse in required hazardinsntanoe coverage provided by themester or blanket policy. - In'the event o-f'e' distribution ofha'zard insurance omceeds in lieu of restoration-bit repair following a Ines to the Property; or and of the PUD, any proceeds, payable to Borrower are herebyossigned. and-she'll be'paid to Lender. Lender shall apply the proceeds to the some secured By the with any cit-Bess paid- to Borrower; 6. Public Liability insurance. So long as the Owners Association maintains a public liability insurance p?oiicy acceptable in form, amount; and extent of coverage to Lender. D. Condemnation. The proceeds of any award or- claim for damages, direct or cons?qni?nt'iai, payable to Borrower in connection with any condemnation or other taking of all 'or any part of the Property or? the common areas and ?thcilities of the PUD, or for any conveyance in lieu of. condemnation, are hereby assigned. and. shall he paid to Lender. Such proceeds shall. be applied by Lender-to the some secured by the Security histrrunent as provided in-?Uniform-Covenont '10. page 8. er .9: B00k28154/F?age755 Page 8 of 9 E. Lender?s Prior Consent. Borrower shall not, except after notice to Lenden'and with Lender?s prior written consent, either partition or subdivide the Propertyor consent to: the abandonment or. termination of the PUD, except for. abandonfnent or termination renuired by inw in the case of substantial destruction by ?re or othe?easunlty or in the case of 51 taking by condemnation or eminent domain; (ii) any amendmentto?any provision of tlie.?Constituent Documents" if the 'pmvision is for the express bene?t oiLender; rumination of professional management and us?omption of self-management of the Owners Association; or (iv) any'riction which would have-the effect of rendering the pbbiic liability i'nsura'nce coilereig?e maintained by the Owners Association unacceptable to Lender. .F. Remedies.. If Borrower does not- pay PUD dues and assessn'ients when due, then Lender may pay them. Any amounts disbursed by Lentier unite} thislparagmph?? shall become a?di'tionol debt of borrower secured by the Security Instrument. Unless Borrower and Lender agree- to other tenns'or payment, these amounts sltail bear interest from the date of disbursement?ot theNore be payable, with interest upon notice from Liznder to Bo?rionic?r requesting payment. GAMING 86 ENTERTAINMENT, LLC, .A FLORIDA LIMITED COMPANY William L. Siskintl, as Manager Page 9 of 9 ,eook28154/Page756 Page 9 of 9 I hereby certify the foregoing is a true copy of the record in my office with reQa??tiSns, it any as requi ed by law as of this day, May 02, 2018. Sharon R?Bock, GI . rk and mptroller, Palm Beach County, Florida BY H1 ,6 :1 My; Deputy Clerk UV . . Eilli EUlFu3n??3% all!? .-. . anesttaemVitta lees . cunts Pre paredby and return to Shumn?n Burk,? Emil? 533mm "Zoned/7% Primaries? LP 99 13 wt 1-236: . ER armaments mamas, pa ,m 9'0 ASSIGEMENT 0F MORTGAGE In consideration of TEN DOLLARS ($10.00) and other good and valuable consideration, the receipt of which is hereby acknowledged, Tatarow Family Painters, Ltd, a Colorado limited partnership, and Geoffrey Weber (?Assignors?) hereby assign the bene?cial interest in that certain Promissory Note and Mortgage recorded March 10, 2016 in Official Record Book 28154, at Page 748, public records of Palm Beach County, Florida'to Zokaites Properties, LP, located at 375 Golfside Road, Wexford, PA 15090 (?Assignee?), together with all rights which accrue under said Promissory Note and Mortgage dated February 25, 2016, which Mortgage is secured by real property located at 3485 Lego De Talavera, Lake Worth, Florida 33467, and further described as follows: Lot 29, Talavera P.U.D., according to the plat thereof as recorded in Plat Book 105, Page 44, Public Records of Palm Beach County, Florida. Assignors also do hereby assign to Assignees the rights under that Certain Florida Uniform Financing Statement recorded march 10, 2016 in Of?cial Record Book 28154, at Page 758, public records of Palm Beach County, Florida. Witnesseth: Tatarow Family Partners, Ltd. WW By: aw Print: Be?v?f?? a \Kenneth Tatarow Print: '73ng ?5 State of Florida County of Palm Beach BEFORE ME this 5\ __d_ay of March, 2017, appeared Kenneth Tatarow, who IS personally known to me or provided Heath/12f \1C6?fl?bfj as identi?cation, and who voluntarily af?xed his signature hereto in my presence and did/did not take an oath. EXHIBIT Book29309/Page?1885 . .. Page 2 of 3 . amumcnonm - . .3 Commission-?Figpl??fm (SEAL) 26? My Comm. Exglge?ov a. 2_019 Notary Public State of Florida ?a??Ahlimessethz . Print: Ge m; ?ve/r Print: State of Florida County of Palm Beach BEFORE ME this of March, 2017, appeared Geof?ey Weber, who is personally known to me or who pmv' ed as identi?ca?on, and who voluntoxily af?xed signatm'e hereto in my presence and didldid not take an oath. (SEAL) - ?An - Nom' Public State x. 1.0an BookiZSBOQ/Pagc '1 886 . Page 3 of 3 (QEAI \uut n.3, .ww' A cum? Wt 15471227? ?aw-WM rM? . I ??77 i . Witnesseth: gm? mevfe Lajm ?Geoffrey Weber 5 Maj) pr Print: m/Q?njk/tm_ State of Florida County of Palm Beach BEFORE ME this day of March, 2017, appeared Geoffrey Weber, who is 133mm)! known to me or who provided as identi?cation, and who voluntariiy af?xed his signature hereto in my presence and did/did not take an oath. (SEAL) ?33m, museums?: -- tate of Flor: EXPmes-.Januao21.20 fgmundga? amamt?liims I hereby'ggrtify the floregoing/JS a true copy of the record in my office with redactions, if a as required bylaw as of this day, May 02, 20-18. Sharo?B Bock, erk and Palm Beach County, Florida BY Deputy Clerk 8/21/2018 3485 Lago De Talavera Amount due to Zokaites Properties as of August 21, 2018 Docket Entry 41, Af?davit as to attorney's fees up to February 28, 2017 3,500.00 Docket Entry 42, Af?davit as to amounts due and owing up to February 27, 2018 Principal 300,000.00 Interest 27,000.00 Payment penalty 6,000.00 orce-placed insurance 2,600.00 Taxes 8,977.02 Subtotal 344,577.02 Docket Entry 44, Af?davit as to costs up to February 28, 2017 Title search 200.00 Filing fee 2,019.91 Summons fee 20.70 Service of process 280.00 Subtotal 2,520.61 Interest from February 28, 2017 up to February 28, 2018 $300,000 0.18 365/360 54,750.00 Interest from March 1, 2018 to August 21, 2018 $300,000): 0.18 174/360 26,100.00 Late charges from August 5, 2016 through August 5, 2018 $3,000 10% 25 7,500.00 Late charge March 5, 2018 on principal due 30,000.00 Costs: Repairs 1,022.79 Federal Express 30.00 Record Assignment 31.60 Appraisal 525.00 Legal 89,161.00 Insurance 2,642.1 1 Subtotal 93,412.50 Total $562,360.13 Per diem after August 21, 2018 - $300,000 18%/360 $150.00 per day An additional late fee of $300.each month starting September 5, 2018 EXHIBIT Kopelowitz Ostrow PA The following includes all billing in the Fiore matter and the Tatarow Family Partners matter 8/21/2018 Tatarow Date Amount OBRE I 3445 2/6/2017 7 4,1837 4,183 3/6/2017 12,6997 7 6,349 6,349 3/29/2017 4,165 4,165 . 5/9/2017 600 300 300 5/9/2017 I 670 335 335 6/8/2017 5,946 2,973 2,973 6/8/2017 902 902 7/12/2017 584 548' 8/4/2017, 5,860 5,860 10/18/2017 15,849 15,849 11/8/2017 2,733 2,733 11/8/2017 7 7 645 645 12/7/2017 60. .. 60 12/7/2018 1,326 1,326 12/31/2017 1,269 1,269 12/31/2017 1,290 1,290 2/14/2018 2,047, 2,047 2/14/2018 231, 231 3/6/2018 600 600 3/6/2018 3,363 3,363 4/16/2018 6,431 6,431 4/16/2018 90 90 5/8/2018 21,614 21,614 6/7/2018, 7 11,200 11,200 7/6/2018 30 30 7/6/2018 7,057 7,057 8/17/2018 2,407 2,407 113,851 14,122 89,161