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Memo in Support of Motion To Vacate
Memo in Support of Motion To Vacate
Plaintiff,
vs.
Defendants.
_______________________________/
Derazi has set forth adequate grounds to justify the equitable relief sought in his Motion
to Vacate Foreclosure Sale, Certificate of Sale and Certificate of Title and the Motion should be
granted. The facts of this case, as more fully set out below, establish that the language
intentionally used by the Plaintiff in both its Complaint for Foreclosure and the Final Summary
Judgment of Mortgage Foreclosure misled Derazi and caused him to believe he was bidding at a
first mortgage foreclosure sale when in fact he was bidding on a second mortgage foreclosure
sale. Foreclosure actions and motions to vacate foreclosure sales are equitable matters and the
most basic rules of equity prohibit one from knowingly looking on while another expends
money under an erroneous opinion of title. This is especially true when the party who benefits
from the mistake helped create the erroneous opinion in the first place through the intentional
use of words or phrases in their pleadings.
II. Facts
1. On or about February 28, 2005 Watson Mortgage Corp. loaned the Defendant,
Renate L. Wallace, $320,000.00. This loan was secured by a mortgage recorded in OR 12338,
Pages 2465 through 2482, of the Duval County public records on March 9, 2005 (the First
Mortgage).
2. Watson Mortgage Corp. immediately assigned the First Mortgage to Indymac
Bank, F.S.B. by assignment dated February 28, 2005. The assignment was recorded in OR
12338, Page 2483, of the Duval County public records on March 9, 2005.
3. On or about February 27, 2006 Watson Mortgage Corp. made another loan to
Renate L Wallace in the amount of $297,000.00. This loan was secured by a mortgage recorded
in OR 13111, Pages 774 through 778, of the Duval County public records on March 7, 2006 (the
Second Mortgage).
4. Watson Mortgage Corp. then assigned the Second Mortgage to the Plaintiff by
assignment dated February 27, 2006. The assignment is recorded in OR 13111, Page 779, of the
Duval County public records on March 7, 2006.
5. Indymac filed a foreclosure action on the First Mortgage on December 12, 2008
and filed a Lis Pendens providing notice of that foreclosure action in OR Book 14727 page 1531
of the Duval County Public Records.
6. Indymac served the Plaintiff with a copy of the foreclosure suit on December 22,
2008.
7. The Plaintiff filed this action on February 2, 2009.
8. In paragraph 7 of the complaint the Plaintiff states that “Plaintiff’s Mortgage is a
lien superior in dignity to any prior or subsequent right, title, claim, lien or interest arising
out of the Defendants.”
9. On July 16, 2009 this Court entered a Final Summary Judgment of Mortgage
Foreclosure on a form drafted by the Plaintiff.
10. Paragraph 3 the Final Judgment provides that “the lien of the Plaintiff is superior
in dignity to any right, title, interest or claim of the Defendants and all persons, firms or
corporations claiming by, through, or under the Defendants …”
11. On August 19, 2009 the property was offered for sale at an online foreclosure
auction and Derazi, believing he was bidding on a first mortgage, bid $170,200.00 and was the
high bidder.
12. Derazi’s belief that he was bidding on a first mortgage was based on the false and
misleading statements in paragraph 7 of the complaint, paragraph 3 of the final judgment and on
his erroneous belief that the Second Mortgage in favor of Watson Mortgage Corp. was made to
refinance the First Mortgage in favor of Watson Mortgage Corp.
13. Based on offers Derazi received from third parties seeking to purchase the subject
property it is worth between $280,000.00 and $320,000.00.
14. The outstanding balance due on the First Mortgage is in excess of $320,000.00.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed, by U.S.
Mail, postage prepaid, this _____ of November, 2009, to:
__________________________
Duane C. Romanello, Esquire
Florida Bar No.: 0098213
1919 Blanding Blvd.; Suite 8
Jacksonville, Florida 32210
Telephone: (904) 384-1441
Facsimile: (904) 384-4868
Attorneys for Derazi