Exhibit '' 1 - Florida Courts
Transcript of Exhibit '' 1 - Florida Courts
Filing# 51969526 E-Filed 02/02/2017 11 :23:45 AM
IN THE CIRCUIT COURT FOR THE 11th JUDICIAL CIRCUIT, IN AND FOR MIAMI-DADE COUNTY, FLORIDA
GEORGE I. ELSO,
Defendant/ Appellant,
vs.
ALYSSA ELSO, MICHAEL ELSO and JUAN C. ELSO
Plaintiffs/ Appellees.
CIVIL DIVISION
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3D\1- 2 3~
NOTICE OF APPEAL OF FINAL ORDER
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NOTICE IS GIVEN that GEORGE I. ELSO, Defendant/Appellant, pursuant to Florida Rule
of Appellate Procedure 9.110(b), appeals to the Third District Court of Appeal, the final Order of
this Court rendered on January 4, 2017. The nature of the Order is the Final Default Judgment in
Favor of Plaintiffs and against Defendant, George I. Elsa Only, attached hereto as Exhibit "1". Also
attached as Composite Exhibit "2" are the underlying Orders Denying George I. Elsa's Motion to Set
Aside Order Granting Plaintiffs Motion for Judicial Default and Denying George I. Elsa's Motion
for Reconsideration of Order Denying His Motion to Set Aside Judicial Default.
Respectfully submitted,
Is/ Juan C. Zorrilla Juan C. Zorrilla, Esquire Fla. Bar No. 381403 E-Mail: jzorilla(ii),fowler-white.com
FOWLER WHITE BURNETT, P.A. Brickell Arch, Fourteenth Floor 1395 Brickell Avenue Miami, Florida 33131 Telephone: (305) 789-9200 Facsimile: (305) 789-9201 Attorneys for George I. Elso
CASE NO. 12-43649 CA 02
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Notice of Appeal has been emailed on this 2nd day of February, 2017 to: Raphael Lopez, Esq., Courthouse Tower, 44 West Flagler Street, Suite 2075, Miami, Florida 33130, [email protected]; Carlos De Lerman, Esq., Lerman & Whitebook, P.A., 2611 Hollywood Boulevard, Hollywood, FL 33020, [email protected]; Juan C. Elso, 9520 S.W. 6th Street, Miami FL 33173, [email protected]; and Jorge E. Silva, Esq., 236 Valencia Avenue, Coral Gables, FL 33134, [email protected]
Is/ Juan C. Zorrilla Juan C. Zorrilla, Esquire Fla. BarNo. 381403 E-Mail: [email protected]
4812-1817-8369, v. I
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ALYSSA ELSO, MICHAEL ELSO, and JUAN C. ELSO,
Plaintiffs vs.
GEORGE I. ELSO, LUIS A. TORRENS, and XLT INVESTMENT CORP.,
Defendants.
XLT INVESTMENT CORP., a Florida corporation,
Counter-PI ai ntiff,
vs.
GEORGE I. ELSO, MIRIAM V. ELSO, ALYSSA ELSO, MICHAEL ELSO, JUAN C. ELSO and SILVERCREST LAKES ESTATES HOMEOWNERS' ASSOCIATION,
' Counter-Defendants.
IN THE CIRCUIT COURT FOR THE nth
JUDICIAL CIRCUIT, IN AND FOR MIAMI-DADE COUNTY, FLORIDA
CIVIL DIVISION
CASE NO.: 12-43649 CA 02
FINAL DEFAULT JUDGMENT IN FAVOR OF PLAINTIFFS AND AGAINST DEFENDANT, GEORGE I. ELSO ONLY
THIS CAUSE having come before the Court on Plaintiffs Motion for Final Judgment Against
Defendant, George I. Elso, and the Court having reviewed the motion and record, and after
considering arguments of counsel, and being otherwise fully advised in the premises:
IT IS ORDERED AND ADJUDGED that:
1. Plaintiffs Motion for Final Judgment Against Defendant, George I. Elso is hereby
GRANTED.
2. Final Judgment is hereby entered in favor of Plaintiffs, Alyssa Elso, Michael Elso
and Juan C. Elso against Defendant, George I. Elso as to Counts I, Ill, IV, V and VI of Plaintiffs
Amended Complaint, and the Court hereby cancels and rescinds the Quit Claim Deed dated April
3, 2003, recorded in Official Record Book 21170, Page 2492 of the records in and for Miami Dade
County, Florida, executed by Plaintiff Juan C. Elso in favor of George I. Elso and Miriam Elso,
concerning the Property which is the subject of this action, whose legal description is:
SILVERCREST LAKE ESTATES, PB 154-53 T-19778 LOT 5 BLK 1, LOT SIZE 15002 SQ FT FAU 3-2015-001-0110 0720 0730 & 0740
3. Pursuant to this Final Judgment, the recorder of deeds in and for Miami Dade
County is directed to enter a notation on the margin of the Quit Claim Deed in Official Record
Book 21170, Page 2492 indicating that this Deed is cancelled and rescinded.
4. As to Count Ill, the Court nullifies and sets aside the fraudulent transfer
effectuated by Defendant George I. Elsa on February 7, 2013, pursuant to the execution of a
Warranty Deed in lieu of Foreclosure, recorded in Official Record Book 28488, Page 4271
concerning the above described property, referenced in paragraph two of this Final Judgment,
and directs the recorder of deeds enter a notation on the margin of the Warranty Deed in Lieu of
Foreclosure indicating that the Deed is hereby cancelled, rescinded, and set aside.
5. The Court finds that Plaintiffs are the prevailing party in this litigation, as to
Defendant George I. Elsa only, and reserves jurisdiction on the issues of attorney's fees and/or
court costs incurred by Plaintiffs, including any fees and costs incurred to enforce the terms of
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this Final Judgment against George I. Else, and to enter further orders that are proper to compel
compliance with this Final Judgment.
6. This Judgment does not adjudicate claims, defenses or counterclaims between
Plaintiffs and XLT Investment Corp.
DONE AND ORDERED in Chambers at Miami-Dade County, Florida, on 01/04/17.
No Further Judicial Action Required on THIS MOTION
CLERK TO RECLOSE CASE IF POST JUDGMENT
The parties served with this Order are indicated in the accompanying 11th Circuit email confirmation which includes all emails provided by the submitter. The movant shall IMMEDIATELY serve a true and correct copy of this Order, by mail, facsimile, email or hand-delivery, to all parties/counsel of record for whom service is not indicated by the accompanying 11th Circuit confirmation, and file proof of service with the Clerk of Court.
Signed original order sent electronically to the Clerk of Courts for filing in the Court file.
Copies furnished to: All counsel of record.
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ALYSSA ELSO, MICHAEL ELSO, and
JUAN C. ELSO,
Plaintiffs
vs.
GEORGE l. ELSO, LUIS A. TORRENS,
and XLT INVESTMENT CORP.,
Defendants.
XLT INVESTMENT CORP., a Florida
corporation,
Counter-Plaintiff,
vs.
GEORGE I. ELSO, MIRIAM V. ELSO,
ALYSSA ELSO, MICHAEL ELSO,
JUAN C. ELSO and SILVERCREST LAKES
ESTATES HOMEOWNERS' ASSOCIATION,
Counter-Defendants.
IN THE CIRCUIT COURT FOR THE 11th
JUDICIAL CIRCUIT, IN AND FOR MIAMI-DADE
COUNTY, FLORIDA
CIVIL DIVISION
CASE NO.: 12-43649 CA 02
ORDER DENYING DEFENDANT GEORGE I. ElSO'S MOTION TO SEf ASIDE ORDER GRANTING PLAINTIFF'S MOTION FOR JUDICIAL DEFAULT
THIS CAUSE came before the Court on August 4, 2016 on Defendant George I. Elso's
Motion to Set Aside Order Granting Plaintiff's Motion for Judicial Default, and the Court having
reviewed the motion, affidavits, the response in opposition, and other pertinent portions of the
file, and after considering arguments of counsel, and being otherwise fully advised of the
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pleadings of record and case law cited by the parties, upon review and consideration of the
above, the Court makes the following findings of fact and conclusions of law:
1. Plaintiffs filed suit against Defendant, George I. Elso, on November 6, 2012.
2. Defendant, George I. Elso, subsequently filed two separate motions, a Motion to
Quash Service of Process and a Motion to Dismiss the Complaint based on Plaintiffs' failure to
join XLT INVESTMENT CORP., which Defendant claimed was an indispensible party based on their
having filed an action for foreclosure with respect to the property which is the subject of this
action.
3. On January 11, and February 20, 2013, respectively, this Honorable Court entered
Orders denying Defendant George I. Elsa's Motion to Quash Service of Process and Motion to
Dismiss. This Court directed the Defendant to submit an answer within five (5} days from the
entry of the Order.
4. On March 7, 2013, 15 days after the court ordered him to answer within 5 days,
Defendant George I. Elso, through counsel, filed an answer and affirmative defenses to the
complaint; however, his answer failed to apprise the Court and/or Plaintiffs that on or about
February 7, 2013, Defendant George I. Elso had executed a Warranty Deed in Lieu of
Foreclosure, and transferred his purported interest in the property which is the subject of this
action, to XLT Investment Corp. Moreover, this was not disclosed during oral argument before
this Court on February 20, 2013.
5. After learning of the aforementioned Warranty Deed that Defendant George I.
Elso had executed in lieu of foreclosure, on June 12, 2013, Plaintiffs filed a Motion for Leave to
Amend their Complaint, attached their proposed amended complaint, and scheduled the
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hearing on the motion to amend for June 24, 2013.
6. Defendant George I. -Eiso, through counsel, acknowledged in writing having
received a copy of Plaintiffs Motion for Leave to Amend, the proposed amended complaint, as
well as the notice of hearing scheduled for June 24, 2013.
7. The record further evidences that on June 17, 2013, Plaintiffs filed a Motion to
Strike Defendant George I. Elso's Answer and Affirmative Defenses and for Entry of Judgment
based on Defendant George I. Elso's purported fraud upon the Court. Defendant George I. Elso
also acknowledges receipt of said motion to strike. This Motion, however, was held in abeyance
as a result of Defendant George I. Elso's pro se bankruptcy filing which occurred on June 18,
2013.
8. On June 24, 2013, the Honorable Spencer Eig entered an Order granting
Plaintiffs' Motion For Leave to File an Amended Complaint, which added two parties, and
included additional counts against Defendant George I. Elso. Based on Defendant George I. Elso's
filing of a bankruptcy petition, Judge Eig stayed the pending action as to Defendant George I.
Elso and ordered pursuant to the applicable rules of civil procedure, that Defendant George I.
E/so would have twenty (20} days after the bankruptcy stay is lifted to file a responsive pleading
to the amended complaint.
9. It is undisputed that Defendant George I. Elso received notice of the entry of
Judge Eig's Order.
10. The record reveals and Defendant George I. Elso acknowledges that on March
27, 2014, George I. Elso's bankruptcy petition was dismissed, and on April 28, 2014 the
bankruptcy case was closed.
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11. Although Plaintiffs, pursuant to Judge Eig's Order of June 24, 2013 could have
moved for a Judicial Default sooner, they waited until June 4, 2014 to file a Motion for Judicial
Default based on Defendant George I. Elsa's failure to timely file a responsive pleading within
twenty (20) days after the termination of his bankruptcy case.
12. On July 24, 2014, Judge Spencer Eig entered a Judicial Default against
Defendant George I. Elsa for failure to appear or file any answer or other pleading to the
amended complaint as required by law.
13. On or about July 10, 2015, the Defendant George I. Elsa filed this Motion to Set
Aside Default.
14. The Court held a full hearing and finds that there is no evidence that
Defendant George I. Elsa exercised due diligence in contacting or attempting to contact his
attorney or take other defensive measures to respond to the amended complaint, nor does
the record demonstrate that Defendant George I. Elsa made any effort to hire a new attorney
or to otherwise update his address with the Clerk of Court. Defendant Elsa was fully aware of
the case and that his bankruptcy case was dismissed.
15. The record shows no record activity being taken on behalf of Defendant
George I. Elsa until July 10, 2015, approximately one year after the entry of the subject
judicial default, at which time the Defendant submitted a Motion to Set Aside Judicial Default.
To date, Defendant George I. Elsa has not filed an answer to the amended complaint. As a
matter of law the Court finds that he has failed to provide sufficient evidence to show a
meritorious defense.
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16. In order for the Court to set aside a Judicial Default as requested by Defendant
George Elso, pursuant to Rule 1.540, the burden of proof is on the Defendant to establish that
the Defendant's failure to timely respond resulted from mistake, inadvertence, surprise, or
excusable neglect.
17. The affidavit of the Defendant fails to establish the existence of any mistake,
inadvertence, surprise, or excusable neglect. Although there appears to be neglect of this
lawsuit by the Defendant, the record evidence and affidavits filed in this matter reveal a
knowing or intentional neglect as opposed to an excusable neglect.
A. Relief From Judgment, Decrees, or Orders Generally
Rule 1.SOO(d) and 1.540(b) of the Florida Rules of Civil Procedure provide this Court
with the discretionary power to set aside an entry of default; however, the authority under
Rule 1.540 may only be invoked when very specific criteria have been met. Florida law
requires the party who moves to vacat.e the entry of a default to demonstrate excusable
neglect, a meritorious defense, and due diligence in order for the trial court to vacate a
default. See North Shore Hasp., Inc. v. Barber, 143 So.2d 849 (Fla. 1962); Church of Christ
Written in Heaven of Georgia v. Church of Christ Written in Heaven of Miami, 94 7 So.2d 557
(Fla. 3d DCA 2006); B.C. Builders Supply Co., Inc. v. Maldonado, 405 So.2d 1345 (Fla. 3d DCA
1981). The requirement that the defendant demonstrate excusable neglect requires more
than a conclusory statement. A party moving to vacate a default must set forth facts
explaining or justifying the mistake or inadvertence by affidavit or other sworn statement, ...
and failure to do so will prevent the appellate court from finding a gross abuse of discretion.
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/d. at 1348. Defendant George I. Elsa's answer to the original complaint did not carry over as a
response to the amended complaint and there is no evidence setting forth a meritorious
defense. Geer v. Jacobsen, 880 So.2d 717, 720 (Fia.2d DCA 2004) (Defendant's previously filed
notice and motion did not carry over as a response to the amended complaint, and Defendant
did not otherwise respond to amended complaint).
In this case, the defendant rather than making an effort to comply with the
requirements of Rule 1.540 or the progeny of cases which require a party present evidence of
excusable neglect and a meritorious defense, instead asserted in a conclusory manner that
the default was improperly obtained, thus relieving the defendant from the requirement of
establishing a meritorious defense and inadvertence or excusable neglect. Although courts
favor the disposition of cases on their merits, it is axiomatic that a trial court abuses its
discretion when it sets aside a default based on a legally insufficient motion to vacate. See
Geer, 880 So.2d at 720.
B. The Court's June 24, 2013 Order Granting Plaintiffs' Motion for Leave to Amend Complaint was Properly Entered.
Although Defendant suggested that Judge Eig's June 24, 2013 Order was improperly
entered in violation of the bankruptcy court's automatic stay, on the contrary, the record
evidence demonstrates that the Court took affirmative steps to protect Defendant George I.
Elsa's interests and notified Plaintiffs, as per the Order, that no action could be taken against
Defendant/Debtor George I. Elsa until such time as the bankruptcy stay was lifted. The Court
finds that bankruptcy proceedings do not, merely by virtue of their maintenance, terminate
an action already pending in a non-bankruptcy court, to which the bankrupt is a party, Conner
v. Walker, 291 U.S. 1, 54 S.Ct. 257, 78 L.Ed. 613 (1934), the action simply remains dormant
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with respect to the bankrupt debtor only and is revived by the lifting of the stay or dismissal
of the bankruptcy action. See Barton-Malow Co. v. Gorman Co. of Ocala, Inc., 558 So.2d 519,
521 (Fla. 5th DCA 1990) (citing Boker v. Bloom, 146 A.D.2d 859, 536 N.Y.S.2d 267 {A.D. 3rd
Dept. 1989).
The Court further finds that the June 24, 2013 Order granting Plaintiffs Motion for
Leave to Amend the Complaint did not authorize any act in furtherance of the case against
Defendant George I. Elsa, but did authorize Plaintiffs to simply add two defendants, XLT
Investment Corp., and Luis Torrens. Notwithstanding the broad scope of 11 U.S.C. § 362, the
automatic stay does not protect non-debtors from litigation, even from obligations that
involve the debtor. See In Re Colony Beach, 2015 WL 1281825 (M.D. Fla. 3/18/15). Here,
Plaintiffs were amending their complaint to pursue claims regarding the subject property
against XLT Investment Corp. and Luis Torrens, Esq., and the Order entered by Judge Eig
specifically prohibited Plaintiffs from taking any action, during the pendency of the
bankruptcy proceedings, against Defendant/Debtor George Elso. Indeed, the claims against
George Elsa did not proceed until his stay ended by virtue of the dismissal of his bankruptcy
filing, and thereafter he had 20 days to respond. The Court specifically finds that it was not
divested of jurisdiction to permit the civil action to proceed against the non-debtor
defendants in this case, Defendants XLT Investment Corp. and Luis Torrens, Esq., or to enter
administrative and substantive orders, so long as the orders not adversely affect or jeopardize
the bankruptcy proceedings and/or estate. See Shop in the Grove, LTD., v. Union Federal Sov.
and Loan ... , 425 So.2d 1138 (Fla. 3d DCA 1982); Goldstein v. Harris, 768 So.2d 1146 (Fla. 4th
DCA 2000) (Trial court did not err in finding that automatic stay in bankruptcy proceeding,
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even if it were in effect, did not strip court of power to enforce civil contempt order through
writ of bodily attachment, as contempt order did not require payment of money but only
production of financial records, and thus did not affect bankruptcy estate).
C. Defendant George I. Elsa's Default was Willful.
In order to establish willfulness, Plaintiff need not show bad faith on the part of
Defendant, but must show more than mere negligence or carelessness. Courts have found
defaults willful where the conduct of the adversary was egregious and was not satisfactorily
explained. See Commonwealth Fed. Sav. and Loan Ass'n v. Tubero, 569 So.2d 1271 (Fia 1990);
Mercer v. Raine, 443 So.2d 944 (Fla. 1983); Doge v. Deutsche Bank Nat. Trust Co., 95 So.3d
1021, 1023 (Fla. 2d DCA 2012). In the instant case, Defendant argues that he was surprised to
learn in May of 2015 that a default had been entered on July 24, 2014, despite the fact that
he was fully cognizant that his federal bankruptcy petition had been dismissed on March 27,
2014. Defendant's motion and affidavit fail to set forth any due diligence and frivolously
asserts that George I. Elso should not be required to comply with the mandates of Rule 1.540
in establishing due diligence and a meritorious defense because the default arose from lack of
notice. For the reasons aforementioned and the record before the Court, this Court finds
those arguments unpersuasive.
ORDERED AND ADJUDGED as follows:
Defendant's Motion to Set Aside Default and For Related Relief is hereby DENIED.
DONE AND ORDERED in Chambers at Miami-Dade County, Florida, on 08/22/16.
MONICA GORDO CIRCUIT COURT JUDGE
No Further Judicial Action Required on THIS MOTION
CLERK TO RECLOSE CASE IF POST JUDGMENT
The parties served with this Order are indicated in the accompanying 11th Circuit email confirmation which includes all emails provided by the submitter. The movant shall IMMEDIATELY serve a true and correct copy of this Order, by mail, facsimile, email or hand-delivery, to all parties/counsel of record for whom service is not indicated by the accompanying 11th Circuit confirmation, and file proof of service with the Clerk of Court.
Signed original order sent electronically to the Clerk of Courts for filing in the Court file.
Copies furnished to: Juan C. Zorrilla, Esq. [email protected]
Raphael Lopez, Esq. [email protected]
Carlos Lerman, Esq. [email protected]
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IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA
CIRCUIT CIVIL DIVISION
CASE NO. 2012-043649-CA-01 SECTION: 02
Elso, Alyssa; Elso, Michael; Elso, Juan C
Plaintiff, vs. Elso, George I; Torrens, Luis A; Xlt Investment Corp
Defendant.
----------------------------' ORDER DENYING DEFENDANT, GEORGE I. ELSO'S MOTION FOR RECONSIDERATION OF ORDER
DENYING HIS MOTION TO SET ASIDE JUDICIAL DEFAULT
THIS CAUSE having come before the court, and the court having reviewed Defendant,
George I. Elsa's Motion for Reconsideration of Order Denying his Motion to Set Aside Judicial
Default, Plaintiff's Opposition, and being fully advised in the premises it is hereby:
ORDERED that defendant's motion is DENIED.
DONE and ORDERED in Chambers at Miami-Dade County, Florida this 30th day of
November, 2016.
cc: All counsel of Record MONICA GORDO Cffi.CUIT COURT JUDGE
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