Onewest Bank F.S.B. v. Peretz et al

Filing 30

FINAL JUDGMENT OF FORECLOSURE: Order granting 27 Motion for summary judgment. (See Order for details.) The Clerk is directed to terminate any pending motions and close this file. Signed by Judge James S. Moody, Jr on 7/22/2014. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

ONEWEST BANK, FSB,
Plaintiff,
v.

Case No: 8:14-cv-423-T-30AEP

KARMY PERETZ and CITIBANK, N.A.,
Defendants.

FINAL JUDGMENT OF FORECLOSURE
THIS CAUSE comes before the Court upon the Plaintiff’s Motion for Summary Judgment
and Default Judgment and Incorporated Memorandum of Law (Dkt. #27), and the Consent of
Defendant, Karmy Peretz, to Entry of Summary Judgment (Dkt. #29).
This action was initiated by Plaintiff OneWest Bank, FSB (“OneWest”), on February 19,
2014, for relief against Defendants Karmy Peretz (“Peretz”), Barbara E. Sarkin (“Sarkin”),
Citibank, N.A. (“Citibank”), and unknown tenants (“Unknown Tenants”, together with Peretz,
Sarkin, and Citibank, the “Defendants”), relating to an obligation (the “Obligation”) secured by
real property located in Sarasota County, Florida (the “Property”). The Obligation is evidenced
by a promissory note (the “Note”) and mortgage (the “Mortgage”) executed and delivered by
Peretz and Sarkin to IndyMac Bank, F.S.B. (the “Loan Documents”). OneWest is the current
owner and holder of the Loan Documents.
On February 19, 2014, OneWest filed a complaint against Defendants including a count to
foreclose Plaintiff’s security interest and lien on the Property, a count against Peretz for breach of
the Note, and a count against Sarkin for breach of the Note. On May 28, 2014, Plaintiff voluntarily
dismissed all claims against Sarkin, whom OneWest discovered was deceased. On May 29, 2014,
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Plaintiff voluntarily dismissed all claims against Unknown Tenants. Citibank did not answer or
otherwise respond to the Complaint. The Clerk of the Court entered a default against the Citibank
on May 29, 2014. (Dkt. #21).
On July 14, 2014, OneWest moved for entry of summary judgment against Peretz and for
default judgment against Citibank. On July 14, 2014, Peretz filed a response to OneWest’s
summary judgment motion, consenting to entry of summary judgment pursuant to a settlement
agreement with OneWest.
The Court, having considered the Complaint, and all other pleadings and documents of
record, is fully advised in this matter. Upon review and consideration it is the Court’s conclusion
that OneWest’s motion for summary judgment and default judgment should be granted.
Accordingly, it is
ORDERED, ADJUDGED, AND DECREED as follows:
1.

Plaintiff’s Motion for Summary Judgment and Default Judgment (Dkt. #27) is

GRANTED.
2.

Plaintiff OneWest Bank FSB, 888 E. Walnut St., Pasadena, CA 91101, is entitled

to a Final Judgment of Foreclosure against Karmy Peretz and Citibank, N.A.
3.

On the basis of the matters alleged in the Complaint, and established by OneWest,

OneWest is owed the following sums of money:
Principal due on the Note secured by the mortgage foreclosed:
Interest on the Note and mortgage from 5/01/2009 to 6/30/2014
Escrow Advances:
Taxes
Insurance premiums
PMI/MIP Insurance
Pre-acceleration Late Charges
Property Preservation
Property Inspection
BPO/Appraisal Fees
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$1,499,958.82
$ 532,397.37
$ 45,575.59
$ 113,374.39
$
0.00
$
16,228.45
$
11,003.20
$
660.00
$
2,405.00

Prior Fees/Costs

$

0.00

Title:

$

0.00

Less: Payments/Credits to Escrow

($ 23,534.41)

Less: Suspense

$

Less: Credits to Recoverable Balance

($ 30,328.90)

TOTAL SUM

$2,167,739.51

Additional Costs:

4.

0.00

The Total Sum referenced in Paragraph 2 (plus accrued prejudgment interest) shall

bear interest from this date forward at the prevailing legal rate of interest.
5.

Plaintiff holds a first priority mortgage lien and security interest for the Total Sum

set forth in Paragraph 2 above against the Property, located at 722 N. Manasota Key Rd.,
Englewood, FL 34223, in Sarasota County, Florida and legally described as:
That part of the following described parcel lying West of the center line of the
existing unpaved road which bisects the property: The South 132 feet of the North
2048 feet of Government Lot 4 in Section 9, Township 40 South, Range 19 East,
Sarasota County, Florida, being a parcel fronting 150 feet on the Gulf of Mexico
and running from said Gulf of Mexico to Lemon Bay. Together with a walking
easement for ingress and egress to Lemon Bay as described in Warranty Deed
recorded in Official Records Book 2943, Page 1893, Public Records of Sarasota
County, Florida.
6.

Plaintiff’s lien in and upon the Property is superior in dignity to any right, title,

interest, claim, lease, encumbrance or equity of Defendants, and all persons, corporations or other
entities claiming by, through or under Defendants and the Property will be sold free and clear of
any claims whatsoever of Defendants.
7.

Pursuant to Rule 53(a)(1)(C), Federal Rules of Civil Procedure, Matthew J. Meyer,

Esq., of Ansa Assuncao, LLP, 101 South Ashley Drive, Tampa, Florida 33602, [phone],
is appointed to serve as Special Master to advertise and conduct the foreclosure sale.
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8.

Pursuant to 28 U.S.C. § 2001, the Special Master is authorized and directed to sell

the Property at public sale. Plaintiff shall coordinate the sale with the Special Master who shall
sell the Property at a public sale at the Sarasota Courthouse front steps, 2002 Ringling Boulevard,
Sarasota, Sarasota County, Florida to the highest bidder for cash, following notice of the public
sale of the Property to be published once a week for at least four weeks in a newspaper regularly
issued and of general circulation in Sarasota County, Florida, as required by 28 U.S.C. § 2002.
9.

Plaintiff shall advance the cost of publishing the Notice of Sale and the Special

Master’s fee for conducting the sale of the Property and shall be reimbursed for them by the Special
Master if Plaintiff is not the purchaser of the Property for sale.
10.

Any third party successful bidder shall be required at the time of the sale to deposit

with the Special Master five percent (5%) of the successful bid amount by certified check made
payable to the Special Master or by cash deposit. Before being permitted to bid at the sale, all
third party bidders shall present proof to the Special Master that they are able to comply with this
requirement and otherwise shall not be allowed to bid.
11.

The balance of the purchase price of the Property shall be tendered by the successful

bidder in the form of a certified check payable to the Special Master within one (1) day following
the sale. If the successful bidder fails to fulfill this requirement, the deposit shall be forfeited and
applied to the expenses of the sale with the balance to Plaintiff and the Property shall be re-offered
for sale in accordance with the above provisions.
12.

If OneWest is the purchaser of the Property, the Special Master shall credit

OneWest’s bid with the Total Sum described in Paragraph 2 with interest and costs accruing
subsequent to this judgment, or such part of it, as is necessary to pay the bid in full.

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13.

If a third party bidder is the purchaser, the third party bidder must pay the

documentary stamp tax attached to the Certificate of Title in addition to the bid.
14.

Upon full compliance with the terms of the sale, the Special Master shall file a

report of the sale with the Clerk of the Court, which is subject to confirmation by the Court.
15.

Upon confirmation of the sale by the Court, the Special Master shall convey to the

purchaser a Certificate of Title, which shall be recorded in the Public Records of Sarasota County,
Florida.
16.

Upon recording of the Certificate of Title, the sale proceeds shall distributed, so far

as they are sufficient, by paying: first, all of Plaintiff’s costs; second, documentary stamps affixed
to the Certificate of Title, unless the Property is purchased by a third party bidder; third, the total
sum due to Plaintiff as is set forth in this Judgment, less the items paid, plus interest at the rate
prescribed by law from the date of this Judgment to the date of the sale; and by retaining any
remaining amount pending the further Order of this Court.
17.

Upon recording of the Certificate of Title, Defendant and all persons claiming by,

through, under or against it since the filing of the Notice of Lis Pendens shall be forever barred
and foreclosed of all estate or claim in the Property and the purchaser at the sale shall be let into
possession of the Property.
18.

The sale of the Property is made pursuant to 28 U.S.C. § 2001, et seq., without the

right of redemption.
19.

Pursuant to the agreement between OneWest and Peretz, OneWest has waived its

right to seek a deficiency judgment against Peretz.

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20.

Finally, jurisdiction of this action is retained for one (1) year to enter further orders

that are proper including writs of possession, or any other judgment or order that is necessary or
appropriate.
21.

The Clerk is directed to terminate any pending motions and close this file.

DONE and ORDERED in Tampa, Florida, this 22nd day of July, 2014.

Copies furnished to:
Counsel/Parties of Record
S:\Odd\2014\14-cv-423 sj and default judgment.docx

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