Wells Fargo Bank, N.A. v. Horton et al
OPINION AND ORDER granting 55 motion to dismiss Sandra B. Chiamis and Sandra B. Chiamis is dismissed with prejudice; granting 62 Motion to Approve Consent Judgment and Final Default Judgment and a separate judgment of foreclosure will be issued. The Clerk shall enter judgment dismissing Sandra B. Chiamis with prejudice, terminate all deadlines, and close the case. Signed by Judge John E. Steele on 11/7/2017. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
WELLS FARGO BANK, N.A., as
Certificateholders of Banc
Alternative Loan Trust 20072
Certificates, Series 20072,
JACQUELINE A. HORTON, SANDRA
B. CHIAMIS, THE LANDINGS AT
INC., MATTHEW M. WILLIAMS,
and JOY WILLIAMS,
OPINION AND ORDER
This matter comes before the Court on plaintiff's Motion to
Dismiss Case with Prejudice Only as to Defendant, Sandra B. Chiamis
(Doc. #55) filed on October 12, 2017, and Motion for Entry of
Consent Judgment as to the Landings at Coral Creek Association,
Inc. and Final Default Judgment as to Defendant, Horton, and the
Williams Defendants (Doc. #62) filed on October 20, 2017.
responses or objections have been filed, and both motions are ripe
Sandra B. Chiamis (Chiamis) and The Landings at Coral Creek
Association, Inc. (The Landings)
Plaintiff reached an agreement with Chiamis, and seeks to
Chiamis, who filed a pleading in response to the
Amended Complaint (Doc. #9) but no counterclaims or crossclaims,
did not join the motion but also did not file an opposition to the
Therefore, the Court will grant the motion and dismiss
Chiamis with prejudice.
Plaintiff also received the consent of The Landings for the
entry of judgment in favor of plaintiff, with each party to bear
their own attorney’s fees and costs.
(Doc. #62, p. 11.)
Court will accept the stipulation to the entry of judgment against
The Landings, assuming the factual basis is otherwise sufficient.
The remaining defendants are in default.
Jacqueline A. Horton, Matthew M. Williams, and Joy Williams
On April 14, 2017, plaintiff Wells Fargo Bank, N.A., as
Trustee for the Certificateholders of Banc of America Mortgage
Securities Inc., Alternative Loan Trust 2007-2 Mortgage PassThrough Certificates, Series 2007-2 (Wells Fargo or plaintiff)
filed an Amended Complaint against defendants Chiamis and The
Landings, as well as Jacqueline A. Horton (Horton), Matthew M.
Defendant Horton was served with process on April
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3, 2017, and the Williamses were served on April 22, 2017.
16, 2017, Horton (now known as Jacqueline Connor) filed a Waiver
of Service of Process (Doc. #27) indicating that she waived any
further defenses, that she had no objection to the relief sought
in the Amended Complaint, and that plaintiff could seek a default
and default judgment against her.
Finding no answer or response
from the Williamses, plaintiff sought a Clerk’s default against
all 3 defendants. 1
On June 14, 2017, the Clerk issued
an Entry of Default (Doc. #31), and therefore plaintiff has met
the necessary prerequisite for a default judgment against these
last 3 defendants.
Fed. R. Civ. P. 55(a).
Plaintiff states that
defendants are not currently in the military.
“A defendant, by his default, admits the plaintiff’s wellpleaded allegations of fact, is concluded on those facts by the
judgment, and is barred from contesting on appeal the facts thus
established. [ ] A default judgment is unassailable on the merits,
but only so far as it is supported by well-pleaded allegations. [
] A default defendant may, on appeal, challenge the sufficiency of
the complaint, even if he may not challenge the sufficiency of the
Eagle Hosp. Physicians, LLC v. SRG Consulting, Inc., 561
F.3d 1298, 1307 (11th Cir. 2009) (internal citations omitted).
Plaintiff also sought a default against defendant Sandra B.
Chiamis, which was granted, however the default was later set aside
upon motion by Chiamis. (Docs. ## 39, 42.)
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1. Factual Basis
In the Amended Complaint, plaintiff seeks to reestablish and
enforce a lost Note secured by the subject property (Count I), to
foreclose its senior interest in the real property (Count II), and
to either require the Williamses to pay it the monthly rent they
have been paying to The Landings, or vacate the property so
plaintiff may take possession of the real property (Count III).
Deeming all well-pled factual allegations in the Amended
Complaint admitted to by the defaulted defendants, the following
On April 10, 2007, defendant Horton executed a
note for the principal sum of $592,262.00 to the Bank of America
(BOA) to fund the purchase of real property, and defendants Horton
and Chiamis executed a Mortgage to BOA securing the real property
as collateral for the Note.
On April 10, 2007, C2FS-Coral Creek,
LLC executed a Special Warranty Deed conveying title in the real
property located at 10301 Coral Landings Lane to defendants Horton
The Special Warranty Deed and Mortgage were recorded
in Charlotte County.
On April 17, 2008, Horton filed for Chapter 7 relief under
the Bankruptcy Code, acknowledged that BOA held a note and Mortgage
on the subject property, and surrendered the property.
Horton’s discharge on July 30, 2008, the Bankruptcy Court granted
BOA relief from the automatic stay to pursue in rem remedies
against the property.
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On September 6, 2012,
Chiamis also filed for Chapter 7 relief, and also surrendered the
property before discharge on December 11, 2012.
On October 12, 2006, and February 27, 2012, defendant The
Landings recorded liens on the property, with the second lien being
On September 3, 2013, BOA executed
an Assignment of the mortgage and note to plaintiff. 2
On or about
December 4, 2015, defendant The Landings obtained title to the
property by Certificate of Title after foreclosing on its liens,
subject to plaintiff’s mortgage.
not joined in The Landings’ foreclosure case.
The Landings rented
the property to the Williamses for $2,000 per month and retained
the amount as its own profit.
Plaintiff alleges that Horton and/or Chiamis breached the
note and/or mortgage, still in effect, by not making payments and
plaintiff’s interest have notice and are named in this suit.
2. Legal Basis
Attached to the request for a default judgment is a copy of
the Special Warranty Deed (Doc. #62-1), the Mortgage (Doc. #62-
Certificateholders of Banc of America Alternative Loan Trust 20072 Mortgage Pass-Through Certificates, Series 2007-2 was recorded
on September 18, 2013, and an Assignment to plaintiff as Trustee
for the Certificateholders of Banc of America Mortgage Securities
Inc., Alternative Loan Trust 2007-2 Mortgage Pass-Through
Certificates, Series 2007-2 was recorded on June 20, 2014.
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2), and the Assignment of Mortgage (Doc. #62-5).
is an Affidavit in Support (Doc. #62-8) by a Document Execution
Associate at Nationstar Mortgage LLC, the servicer for the mortgage
loan, indicating the current balance due and owing, with accrued
interest through October 19, 2017, for a total of $955,082.87.
Attached to the Affidavit is the letter notice sent by certified
mail to Horton indicating that the loan was in default, id., Exh.
A, and a Lost Note Affidavit, id., Exh. B with a copy of the Note
attached as an exhibit.
a. Count I
Plaintiff seeks to establish the validity of the lost note.
A person who is not in possession of an instrument may still
enforce the instrument if:
(a) The person seeking to enforce the
instrument was entitled to enforce the
instrument when loss of possession occurred,
or has directly or indirectly acquired
ownership of the instrument from a person who
was entitled to enforce the instrument when
loss of possession occurred;
(b) The loss of possession was not the result
of a transfer by the person or a lawful
(c) The person cannot reasonably obtain
possession of the instrument because the
instrument was destroyed, its whereabouts
cannot be determined, or it is in the wrongful
possession of an unknown person or a person
that cannot be found or is not amenable to
service of process.
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Fla. Stat. § 673.3091(1).
The Lost Note Affidavit (Doc. #62-8,
provides that Nationstar regularly stored Notes as part of its
regular business practice, and plaintiff is not in possession of
the original Note because it is lost and cannot be reasonably
The Affidavit further provides that Horton executed and
delivered a Mortgage securing the payment of the Note to BOA, it
was recorded, plaintiff directly or indirectly acquired ownership
of the Notice from a person entitled to enforce the Note, and
plaintiff did not transfer the Notice or lose possession of it as
a result of a seizure.
A copy of the signed Note is attached so
as to prove its terms for enforcement purposes, and as required by
See Fla. Stat. § 673.3091(2) (once proven, the person
is entitled to enforce the instrument for payment under Fla. Stat.
Nationstar indicates that adequate protection will
be provided to the extent Horton may experience loss by reason of
a claim by another.
(Doc. #62-8, Exh. B, ¶ 11.)
The Court finds
that plaintiff has established the lost Note, and its right to
b. Counts II and III
Plaintiff seeks to foreclose on its interest, have a special
master appointed to conduct a sale of the property, and to take
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immediate possession of the property.
in the real property is undisputed.
Plaintiff’s senior interest
The real property is described
in the Amended Complaint as:
Unit 5, THE LANDINGS AT CORAL CREEK, according
to the map or plat thereof as recorded in Plat
Book 20, Pages 10A through 10K, inclusive, of
the Public Records of Charlotte County,
TOGETHER WITH an undivided 0.7447% share of
the common property allocated to said Unit, as
more specifically set forth in the Declaration
of Covenants, Conditions and Restrictions of
The Landings at Coral Creek as recorded in
Official Records Book 3052, Pages 299 through
435, Public Records of Charlotte County,
Parcel Identification Number 0070264-0010508.
10301 Coral Landings Ln. #5, Placida, Florida
(Doc. #9, ¶ 7.)
Plaintiff accelerated the principal balance of
the Note and Mortgage, and Horton failed to make payments.
Landings has consented to the judgment in plaintiff’s favor,
Chiamis was dismissed, and the Williamses were tenants paying rent
with an inferior interest.
The outstanding principal balance owed
to plaintiff as of June 1, 2012, is $592,238.01.
and advances, the total outstanding balance as of October 17, 2017,
The Court finds that plaintiff is entitled to
foreclose its interest against the property as superior to all
other rights, and the purchaser of the property will have the right
to possess the property and/or eject any tenants, after the public
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Finding notice and an opportunity to be heard, the Court
will also appoint the designated master.
Accordingly, it is hereby
1. Plaintiff's Motion to Dismiss Case with Prejudice Only as
to Defendant, Sandra B. Chiamis (Doc. #55) is GRANTED and
defendant Sandra B. Chiamis is dismissed with prejudice.
The Clerk shall enter judgment dismissing this defendant.
2. Plaintiff's Motion for Entry of Consent Judgment as to the
Landings at Coral Creek Association, Inc. and Final Default
Defendants (Doc. #62) is GRANTED and a separate judgment
of foreclosure shall be issued as to these defendants.
3. The Clerk shall terminate all pending deadlines, and close
DONE and ORDERED at Fort Myers, Florida, this
Counsel of Record
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