IN THE SECOND DISTRICT COURT OF APPEAL

STATE OF FLORIDA

CASE NO. 2D16-3887

RONALD P. GILLIS,

Appellant,
RECEIVED, 10/2/2017 9:00 PM, Clerk, Second District Court of Appeal

v.

DEUTSCHE BANK TRUST COMPANY AMERICAS, etc.

Appellee.

ANSWER BRIEF OF DEUTSCHE BANK TRUST COMPANY AMERICAS, AS

TRUSTEE FOR RESIDENTIAL ACCREDIT LOANS, INC., MORTGAGE
ASSET-BACKED PASS-THROUGH CERTIFICATES, SERIES 2006-QS8

ON APPEAL FROM A FINAL ORDER ENTERED IN THE TWENTIETH JUDICIAL CIRCUIT IN

AND FOR CHARLOTTE COUNTY, FLORIDA

Michele L. Stocker (FBN 044105) Kimberly S. Mello (FBN 002968)

stockerm@gtlaw.com
GREENBERG TRAURIG, P.A.
401 East Las Olas Blvd., Ste. 2000
Ft. Lauderdale, FL 33301
Telephone: 954.768.8271
Facsimile: 954.759.5571
mellok@gtlaw.com
Vitaliy Kats (FBN 118748)
katsv@gtlaw.com
GREENBERG TRAURIG, P.A.
101 E. Kennedy Blvd., Ste. 1900
Tampa, FL 33602
Telephone: 813.318.5700
Facsimile: 813.318.5900

Counsel for Appellee, Deutsche Bank Trust Company Americas, as Trustee

 TABLE OF CONTENTS
Page

TABLE OF AUTHORITIES ................................................................................... iii

STATEMENT OF THE CASE AND FACTS .......................................................... 1

I. MR. GILLIS EXECUTES A NOTE AND MORTGAGE, AND
LATER DEFAULTS, RESULTING IN THE FILING OF A
FORECLOSURE ACTION. ...................................................................... 1

II. MR. GILLISS FRIVOLOUS DELAY TACTICS AND

DELIBERATE NONCOMPLIANCE WITH DISCOVERY
REQUESTS AND COURT ORDERS RESULT IN THE ENTRY
OF A JUDICIAL DEFAULT. .................................................................... 2

A. Mr. Gilliss Frivolous Filings, Noncompliance With

Discovery Requests, And Court Orders. ............................................ 2

B. The Trustee Requests, And Subsequently Obtains, A Judicial

Default Based On Mr. Gilliss Egregious Conduct In This
Litigation. ............................................................................................4

C. Two Years After The Judicial Default Is Entered, Mr. Gillis

Files Successive Motions to Vacate It, All Of Which Are
Denied. ................................................................................................6

III. THE TRUSTEES NAME CORRECTIONS. ........................................... 6

IV. AFTER YEARS OF DELAY, THE BENCH TRIAL IS HELD ON
JULY 6, 2016 AND A DEFAULT FINAL JUDGMENT IS
ENTERED IN FAVOR OF THE TRUSTEE. ........................................... 7

A. On The Day Of Trial, The Court Hears Mr. Gilliss Motion to

Dismiss................................................................................................7

B. The Non-Jury Trial Regarding Unliquidated Damages...................... 8

C. The Parties Closing Arguments And The Trial Courts

Ruling................................................................................................10

D. The Trial Court Enters A Default Final Judgment Of

Foreclosure And Denies The Trustees Motion for Rehearing. ....... 11

i
 TABLE OF CONTENTS
(Continued)
Page

SUMMARY OF ARGUMENT ...............................................................................12

ARGUMENT ...........................................................................................................14
I. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION
WHEN IT ENTERED A JUDICIAL DEFAULT AGAINST MR.
GILLIS DUE TO HIS REPEATED NONCOMPLIANCE WITH
THE TRIAL COURTS DISCOVERY ORDERS...................................14

II. THE TRIAL COURT PROPERLY ENTERED A DEFAULT

FINAL JUDGMENT IN FAVOR OF THE TRUSTEE
FOLLOWING THE NON-JURY TRIAL................................................18

A. Overview Of The Requirements For A Default Final

Judgment. ..........................................................................................18

B. The Default Final Judgment Was Properly Entered Based On

The Well-Pled Allegations In The Complaint. .................................19

III. THE TRIAL COURT SHOULD NOT HAVE ENTERED AN

INVOLUNTARY DISMISSAL FOLLOWING THE NON-JURY
TRIAL. .....................................................................................................26

A. The Trustee Did Not Need To Prove Standing Because

Standing Was Already Admitted By Virtue of the Judicial
Default. .............................................................................................26

B. The Trial Court Did Not Err In Allowing The Note And
Mortgage To Remain In Evidence After Striking Ms.
Calderons Testimony. ......................................................................29

CONCLUSION ........................................................................................................30

CERTIFICATE OF SERVICE ................................................................................31

CERTIFICATE OF COMPLIANCE .......................................................................31

ii
 TABLE OF AUTHORITIES
Page(s)
Cases
Barbe v. Villeneuve,
505 So. 2d 1331 (Fla. 1987) ...............................................................................20
Becerra v. Equity Imports, Inc.,
551 So. 2d 486 (Fla. 3d DCA 1989) ...................................................................20
Black Point Assets, Inc. v. Fed. Natl Mortg. Assn ( Fannie Mae ),
220 So. 3d 566 (Fla. 5th DCA 2017) ..................................................................19

Bodygear Activewear, Inc. v. Counter Intelligence Servs.,

946 So. 2d 1148 (Fla. 4th DCA 2006) ................................................................19
Calvo v. U.S. Bank Natl Assn,
181 So. 3d 562 (Fla. 4th DCA 2015) ..................................................................28
Ciprian-Escapa v. City of Orlando,
172 So. 3d 485 (Fla. 5th DCA 2015) ..................................................................19
Commonwealth Fed. Savings & Loan Assn v. Tubero,
569 So. 2d 1271 (Fla. 1990) ...............................................................................16

Deutsche Bank Natl Tr. Co. v. Clarke,

87 So. 3d 58 (Fla. 4th DCA 2012) ................................................................26, 28

Disposall Inc. v. Wilson,

547 So. 2d 1299 (Fla. 5th DCA 1989) ................................................................25

Everhome Mortg. Co. v. Janssen,

100 So. 3d 1239 (Fla. 2d DCA 2012) .................................................................23

Flagg v. Judd,
198 So. 3d 665 (Fla. 2d DCA 2015) ...................................................................17

Glen Garron, LLC v. Buchwald,

210 So. 3d 229 (Fla. 5th DCA 2017) ............................................................21, 30

Guess v. City of Miramar,

889 So. 2d 840 (Fla. 4th DCA 2004) ..................................................................25

iii
 TABLE OF AUTHORITIES
(Continued)
Page(s)

Ham v. Dunmire,
891 So. 2d 492 (Fla. 2004) ...........................................................................14, 16

Hidden Ridge Condo. Homeowners Assn Inc. v. Onewest Bank, N.A.,

183 So. 3d 1266 (Fla. 5th DCA 2016) ................................................................30
In re Amendments to The Fla. Rules of Civil Procedure,
52 So. 3d 579 (Fla. 2010) ...................................................................................23

Jaffer v. Chase Home Fin., LLC,

155 So. 3d 1199 (Fla. 4th DCA 2015) ................................................................30
Ledo v. Seavie Res., LLC,
149 So. 3d 707 (Fla. 3d DCA 2014) .............................................................16, 17
Lenfesty v. Coe,
16 So. 277 (Fla. 1894) ........................................................................................28
Maggiano v. Whiskey Creek Profl Ctr., LLC,
160 So. 3d 535 (Fla. 2d DCA 2015) ...................................................................18
McLean v. JP Morgan Chase Bank Natl Assn,
79 So. 3d 170 (Fla. 4th DCA 2012) ....................................................................19
Milu, Inc. v. Duke,
204 So. 2d 31 (Fla. 3d DCA 1967) .....................................................................23
Morales v. All Right Miami, Inc.,
755 So. 2d 198 (Fla. 3d DCA 2000) ...................................................................21

Pastore-Borroto Dev., Inc. v. Marevista Apartments, M.B., Inc.,

596 So. 2d 526 (Fla. 3d DCA 1992) .............................................................27, 28

Peuguero v. Bank of Am., N.A.,

169 So. 3d 1198 (Fla. 4th DCA 2015) ................................................................28

Riggs v. Aurora Loan Services, LLC,

36 So. 3d 932 (Fla. 4th DCA 2010) ....................................................................29

iv
 TABLE OF AUTHORITIES
(Continued)
Page(s)

Szucs v. Qualico Dev., Inc.,

893 So. 2d 708 (Fla. 2d DCA 2005) ...................................................................18

The Fla. Bar v. Porter,

684 So. 2d 810 (Fla. 1996) .................................................................................18
U.S. Bank Natl Assn for BAFC 2007-4 v. Roseman, 214 So. 3d 728
(Fla. 4th DCA 2017) ...........................................................................................29

Venture Holdings & Acquisitions Grp., LLC v. A.I.M.

Funding Grp., LLC,
75 So. 3d 773 (Fla. 4th DCA 2011) ........................................................26, 27, 28
Ventures Tr. 2013-I-H-R v. Asset Acquisitions & Holdings Tr.,
202 So. 3d 939 (Fla. 2d DCA 2016) ...................................................................26

Wimberly v. Miami-Dade Cnty.,

8 So. 3d 1160 (Fla. 3d DCA 2009) ...............................................................20, 24

Statutes
90.902, Fla. Stat. (2016)........................................................................................29
673.3081, Fla. Stat. (2016)....................................................................................29

Rules & Regulations

Fla. R. App. P. 1.130 ................................................................................................30

Fla. R. Civ. P. 1.110 ...........................................................................................20, 23

Fla. R. Civ. P. 1.380 ...........................................................................................14, 15

Fla. R. Civ. P. 1.420 .................................................................................................23

Fla. R. Civ. P. 1.500 .................................................................................................18

v
 STATEMENT OF THE CASE AND FACTS

I. MR. GILLIS EXECUTES A NOTE AND MORTGAGE, AND LATER

DEFAULTS, RESULTING IN THE FILING OF A FORECLOSURE
ACTION.
On May 1, 2006, Ronald P. Gillis (Mr. Gillis) executed an Interest First
Note (Note) to Wachovia Mortgage Corporation (Wachovia). (R:145-47).
The Note was secured by a residential mortgage on Mr. Gilliss home in Port
Charlotte, Florida. (R:128-44). At some point after the Notes execution, two
special, undated indorsements were affixed to the Note. (R:147). The first
indorsement was from Wachovia to Residential Funding Corporation. (Id.) The
second indorsement was from Residential Funding Corporation to Deutsche Bank
Trust Company Americas as Trustee (the Trustee). (Id.) On October 1, 2007,
approximately eighteen months after the Mortgage and Note were executed, Mr.
Gillis defaulted on his scheduled payment, and he has made no payments since that
time. (R:2).

As a result of the default, on January 16, 2008, the Trustee filed a two count
Mortgage Foreclosure Complaint (Complaint) against Mr. Gillis. (R:1-23). In
Count I for mortgage foreclosure, the Trustee alleged that: (1) it was the owner and
holder of the Note and Mortgage; (2) Mr. Gillis had defaulted; and (3) the Trustee
was entitled to the outstanding amounts due and owing on the loan. (R:1-3).
Alternatively, in Count II for reestablishment of a lost note, the Trustee alleged that

the Note was lost or destroyed and is not now in the custody and control of the
Trustee, but that the Trustee was in possession of the Mortgage Note and entitled
to enforce it when loss of possession occurred. (R:3-4).
1
 Mr. Gillis answered the Complaint raising, among other defenses, lack of
standing, to which the Trustee replied. (R:31-34; 49-50).

On June 23, 2009, the Trustee surrendered to the trial court the original Note
with the two undated, special indorsements, and filed a notice of voluntary
dismissal of the lost note count. (R:145-49).

II. MR. GILLISS FRIVOLOUS DELAY TACTICS AND DELIBERATE

NONCOMPLIANCE WITH DISCOVERY REQUESTS AND COURT
ORDERS RESULT IN THE ENTRY OF A JUDICIAL DEFAULT.
A. Mr. Gilliss Frivolous Filings, Noncompliance With Discovery
Requests, And Court Orders.
This nearly decade-old foreclosure action has been prolonged by excessive,
frivolous, pro se filings including eight Motions to Dismiss, one Motion to Strike,
six Motions for Sanctions, five Motions for Contempt, two Bar Complaints, two
Appeals, and three Bankruptcies. (R:3013). Mr. Gilliss filings are replete with
absurd arguments and preposterous allegations. Throughout the proceedings, Mr.
Gillis has accused everyonefrom the Trustees trial counsel, to the various trial
judges, and to the trial court itselfof: (1) forging loan documents; (2) committing
mail fraud; (3) engaging in improper ex-parte communications; and (4)
electronically tampering with the docket. (R:252-65, 327-28, 457-71). These are

but a few of Mr. Gilliss accusations. The multi-volume record contains countless
more. All of Mr. Gilliss filingsin addition to the unwarranted delay of this
caserequired the Trustee to incur significant and unnecessary costs.
Mr. Gillis also deliberately impeded the Trustees discovery efforts,
resulting in eventual sanctions. (R:541-43, 751-52). The Trustee attempted to

2
depose Mr. Gillis after he testified under oath during a summary judgment hearing
that he did not sign the original Note and Mortgage. (R:182). The Trustee initially

coordinated depositions of both Mr. Gillis and Nancy Padgett, the notary who
witnessed Mr. Gillis sign the Mortgage. (R:541, 2375-77). Both Mr. Gillis and
Mrs. Padgett appeared at the scheduled time for Mrs. Padgetts deposition. After

the Trustees counsel conducted Mrs. Padgetts examination, Mr. Gillis abruptly
left the deposition and did not return. (R:320, 2365). As a result, the court
reporter entered a sworn certificate of nonappearance for Mr. Gillis. (R:809).
The Trustee subsequently filed a motion to compel Mr. Gilliss deposition
and to impose sanctions. (R:319-21). The trial court granted the motion and
entered an order (Deposition Order) requiring Mr. Gillis to appear for deposition
within 60 days and, as a sanction, remit to the Trustee the fees and costs it incurred
as a result of his non-appearance, totaling $470.00. (R:313-14).
Consistent with the Deposition Order, the Trustees counsel attempted to
coordinate a second deposition. However, Mr. Gillis failed to return counsels
phone calls, leaving the Trustees counsel with no choice but to unilaterally
schedule the deposition. (R:542). The deposition notice was subsequently served

on Mr. Gillis via FedEx. (Id., R:544-45). Despite receiving a deposition notice,
Mr. Gillis failed to appear, and the court reporter entered another sworn certificate
of nonappearance. (R:2410).
The Trustee also served a Request for Production of Documents, First Set of
Interrogatories, and Request for Admissions, in an effort to obtain an explanation
regarding Mr. Gilliss representation that he did not sign the Note and Mortgage.

3
(R:542). Two days later, Mr. Gillis responded by objecting to every request,
evidencing that he made no good faith effort to provide responses. (R:1343).

Instead, he simply claimed that the Trustee never showed standing to proceed with
the action and, therefore, was not entitled to discovery. (Id.)

B. The Trustee Requests, And Subsequently Obtains, A Judicial

Default Based On Mr. Gilliss Egregious Conduct In This
Litigation.
Given Mr. Gilliss improper conduct in this litigation, and after the action
had been pending for approximately two-and-a-half years, the Trustee moved the
trial court to strike Mr. Gilliss pleadings and enter a judicial default in favor of the
Trustee. (R:541-46). The Trustee represented in its motion that the striking of
pleadings and entry of judicial default was proper because: (1) in willful and
direct violation of this Courts Order, [Mr. Gillis] failed to attend the deposition or
to remit the funds instructed by the Court; (2) Mr. Gillis failed to respond to the
written discovery in a meaningful way, instead making baseless objections to all

discovery requests; and (3) Mr. Gillis continues to muddy the docket with
pleadings that even when viewed in the most favorable light are merely continued
attempts to delay this proceeding. (R:542).
At the hearing held on September 27, 2010, the Trustees counsel stated that
Mr. Gillis repeatedly engaged in tactics to frustrate and delay the proceeding
including: (1) excessive and unmeritorious filings; 1 (2) refusing to provide

1
The Trustees counsel noted all the frivolous filings, which include bar
complaints and notary complaints, are getting a little of out of control. (R:1346-
47).

4
discovery and attend his scheduled deposition; (3) making baseless accusations
that the Trustee was filing fraudulent documents; and (4) refusing to coordinate

hearings or return phone calls. (R:1342-44).

The trial court directly asked Mr. Gillis, Did you leave a deposition, sir?
(R:1349). Mr. Gillis responded stating only that (1) he never got a subpoenaa

point the Trustees counsel made clear was unavailing because he was a party; and
(2) he had outstanding subpoenas duces tecum that he felt were being ignored by
the Trusteean obviously invalid excuse for non-attendance at the scheduled
deposition. (R:1349-52). 2 When the trial court asked if Mr. Gillis lived at the
address to which the second deposition notice was mailed, Mr. Gillis invoked his
Fifth Amendment right against self-incrimination. (R:1352). The trial court
expressly advised him that no such right existed in foreclosure proceedings, but
Mr. Gillis refused to answer the question regardless. (R:1352-53).
That same day, the trial court entered an order granting the Trustees motion

for judicial default and entered a judicial default against Mr. Gillis. (R:751-52).
The trial court subsequently entered a second order which also entered a judicial
default against Mr. Gillis and, additionally, struck his pleadings from the record
(October 2010 Order). (R:779-80). The trial court explained its reasoning in a
subsequent order, stating that the judicial default was entered as a sanction for
[Mr. Gilliss] failure to comply with his discovery obligations in this case and [Mr.

2
The record shows that the Trustee filed a motion for protective order related to
the subpoena, which the trial court denied. (R:266-67). The Trustee subsequently
responded to the subpoena. (R:276-78).

5
Gilliss] repeated failure to comply with Court Orders on those issues. (R:2418-
419).3

C. Two Years After The Judicial Default Is Entered, Mr. Gillis Files
Successive Motions to Vacate It, All Of Which Are Denied.
Mr. Gillis moved to set aside the judicial default for the first time on July 3,

2012almost two years after the trial courts October 2010 Order was entered.
(R:1584-1615). That request was denied, as were the several other motions to set
aside the judicial default which Mr. Gillis filed in subsequent years. (R:2406-08,
2411-17, 2418-19, 3183-90, 3267; 3476-90, 3500). The arguments raised in these
motions are as frivolous as the ones in all of Mr. Gilliss other filings. Among
many other colorful arguments, Mr. Gillis: (1) alleges that the Trustee knowingly

committed fraud upon the court (2); accuses the judge who granted the judicial
default of being corrupt; and (3) suggests that the Trustees trial counsel sua sponte
initiated the litigation for its own benefit, and not on behalf of a client. (R:1584-

85, 2013-14, 2413-14). Again, these motions served only to delay the proceeding
and impose needless expenses upon the Trustee and the trial court.

III. THE TRUSTEES NAME CORRECTIONS.

Throughout the lengthy pretrial proceedings, the Trustee successfully moved
to correct its name twice. (R:315-18, 2082-84, 2092-94, 3268-69). Mr. Gillis
incorrectly characterizes these corrections as substitutions of entirely new

plaintiffs. (Initial Br. at 2-3).

3
This explanation appears in an August 2013 Order denying one of six motions to
set aside the judicial default filed by Mr. Gillis. (R:2418-419).

6
 On November 13, 2009, the Trustee filed its first motion to correct the
Plaintiffs name in the Complaint. (R:317-18). The Trustee explained that, due to

a clerical error, the Complaint listed the name of the Trustee as Deutsche Bank
Trust Company Americas as Trusteewhich was correctbut omitted the name
of the master servicer. (Id.) As a result, the Trustee requested permission to revise

the caption to read Deutsche Bank Trust Company Americas as Trustee for
GMAC-RFC Master Servicing. (Id.) The trial court granted the motion. (R:315-
16).
On July 26, 2013, the Trustee moved to correct its name for a second time.
(R:2082-84). In this motion, the Trustee explained that GMAC-RFC Master
Servicing had been purchased by Ocwen Master Servicing. (R:2082). The Trustee
reasoned that it would be better to incorporate the specific Trust associated with
the Trustee, instead of the master servicers associated with the Trustee. (Id.)
Accordingly, the Trustee moved to correct its name to Deutsche Bank Trust
Company Americas, as Trustee for Residential Accredit Loans Inc., Mortgage
Asset-Backed Pass-Through certificates, Series 2006-QS8. (R:2083). The trial
court granted the motion on July 30, 2015. (R:3268-69).

IV. AFTER YEARS OF DELAY, THE BENCH TRIAL IS HELD ON

JULY 6, 2016 AND A DEFAULT FINAL JUDGMENT IS ENTERED
IN FAVOR OF THE TRUSTEE.
A. On The Day Of Trial, The Court Hears Mr. Gilliss Motion to
Dismiss.
Before the trial commenced, the trial court heard Mr. Gilliss motion to
dismiss, arguing that when the Trustee dropped the lost note count from the

7
original Complaint, it was requiredin order to state a cause of actionto file an
amended complaint attaching the Note. (T:6-9). In other words, the lost note

count was the only thing that kept the Trustee from having to attach the Note to the
Complaint. Once it was dropped, however, the Trustee had to attach the Note,
despite its filing of the original Note at the time the lost note count was dropped.

After hearing argument, the trial court denied the motion, stating that while Mr.
Gilliss argument may point out some technical problems, the issue should have
been taken care of long ago. (T:21-22). Having denied the motion to dismiss, the
trial court explained thatdue to the judicial defaultthe only remaining issue for
trial was the amount of unliquidated damages:
THE COURT: By virtue of the default, hes admitted the execution
of the note, which they erroneously say was attached. Hes admitted
that Plaintiff owns and holds the note. Hes admitted, as an effect of
the default, that the required installment of October 1st 2007, was not
paid and no subsequent payments have been made, and thathes
admitted that Plaintiff must be paid 143,900$497.94 in principal,
plus interest. So it seems to me that about the only thing left to
litigate is the issue of any unliquidated damages.
(T:23-24). The Trustees counsel then represented that it was prepared to try the

case if it was solely based on damages, at which point the trial commenced. (T:24-
25).

B. The Non-Jury Trial Regarding Unliquidated Damages.

To prove its unliquidated damages, the Trustee called Lucinda Calderon
(Ms. Calderon) as its only witness. Ms. Calderon is an employee of Wells Fargo
Bank, N.A. (Wells Fargo), which is the servicer of Mr. Gilliss mortgage loan.
(T:25-26). Through her testimony, the following evidence relating to damages was

8
admitted: (1) Payment History; (2) copy of Note; 4 (3) copy of Mortgage; (4)
Servicing Record Screenshot; (5) Summary of interest, fees, balances (screenshot);

(6) Processing Fees Document; and (7) Fee Ledger. (T:3, 38, 43, 45-46, 48, 50,
52). Based on these documents, Ms. Calderons testimony established that Mr.
Gillis owed the Trustee several thousand dollars worth of unliquidated damages,
including: (1) $27,097.52 in escrow advances; (2) $2,343.27 in accumulated late
fees, and (3) $15,791.36 in various other recoverable fees, including attorneys
fees. (T:47; R:3644). Ms. Calderon also established that the unliquidated damages

were evident from her review of Mr. Gilliss Payment History. (R:3645-70, T:49-
52).
Despite the fact that the trial was confined to unliquidated damages based
Mr. Gilliss judicial default, his counsel repeatedly attempted to interject standing
and other issues into the trial. (T:33-38, 63-64).
During voir dire regarding Mr. Gilliss Payment History, his counsel
questioned Ms. Calderon as to how Wells Fargo received the authority to act on
behalf of the Trustee. (T:35). While the Trustees counsel objected to this line of
questioning, the trial court allowed her to respond, at which time she indicated that

4
When the copy of the Note was introduced into evidence, the Trustees counsel
requested that the trial court take notice that the original note and mortgage were
filed in June of 2009 and requested that they be admitted into evidence. (T:42).
In addition, the Trustees counsel requested that in lieu of the original documents
being here in the Court file today, that this copy of the original be admitted into
evidence in its stead. (Id.) The trial court subsequently ruled that [t]he original
note and the mortgage, as they appear in the Court file, will be in evidence. I will
also allow this copy to be introduced. (T:43).

9
Wells Fargo had been the servicer [of the loan] the entire time. (Id.) She further
clarified that Wachoviathe original servicerwas acquired by Wells Fargo and,

thus, they are one and the same. (T:33-34). Ms. Calderon was unable to confirm
if the Trustee authorized Wells Fargo to service the loan and stated that, although
she has seen the name Residential Funding Company, LLC, she could not recall

its relationship to the Trust. (T:35-38).

During cross examination, Mr. Gilliss counsel later proceeded to question
Ms. Calderon on the issue of standing, asking whether she knew who held the Note
when the case was filed. (T:55). Ms. Calderon responded that she did not. (Id.)
She also had no knowledge as to when the indorsements were placed on the Note.
(Id.) The Trustees counsel objected to this questioning because there was no
operative defense as to standing due to the judicial default, but it was overruled
by the trial court. (Id.)

C. The Parties Closing Arguments And The Trial Courts Ruling.

During closing argument, the Trustee argued that by virtue of the judicial
default, which resulted in Mr. Gillis admitting the well-pled allegations in the
Complaint, and the fact there were no operative defenses, standing was established.
(T:61-62). In addition, the Trustees counsel argued that the trial court received
into evidence the original Note and Mortgage, which show[ed] a specific
endorsement to the plaintiff trustee, and the witness has testified as to the

damages in this matter. (T:62).

Mr. Gilliss closing argument focused exclusively on standing, despite
standing not being at issue at the trial. (T:63-64). Mr. Gilliss counsel emphasized

10
that Ms. Calderon believed Wells Fargo owned the Note, despite there being no
assignment of the Note to Wells Fargo. (T:63). Moreover, Mr. Gilliss counsel

pointed out that Ms. Calderon did not know who held the Note when the
Complaint was filed, and that she did not know when the blank indorsements were
affixed to the Note. (Id.)

The Trustees counsel pointed out in response that there was nothing to
suggest Ms. Calderon actually knew . . . what an owner means or what she
considered that to be. (T:64-65). Furthermore, the Trustees counsel noted that
the question of who owns the [N]ote has been established by default in the case.
(R:65).
At the conclusion of closing arguments, the trial court stated that it was
providing the parties with something to take to the Appellate Courts and ruled
that it was: (1) striking all of Ms. Calderons testimony and all of the exhibits
admitted into evidence by the Trustee, except for the Note and Mortgage; (2)
denying the recovery of unliquidated damages; and (3) entering a default judgment
solely in the amount admitted in the Complaint, plus interest. (T:65-66).

D. The Trial Court Enters A Default Final Judgment Of Foreclosure

And Denies The Trustees Motion for Rehearing.
On July 19, 2016, the trial court entered a Default Final Judgment of
Foreclosure (Default Final Judgment) in favor of the Trustee stating a default

having been entered and the Court having stricken Plaintiffs witnesss
testimony, judgment was being entered in the amount of the principal owed on the
Note, plus interest, which totaled $230,777.80. (R:3671-74).

11
 Mr. Gillis filed a motion for rehearing, which he later amended, arguing that
the allegations admitted by the judicial default were directed at the Plaintiff named

in the Complaint, which is different from the Plaintiff named in the Default Final
Judgment, and therefore the Default Final Judgment was improper absent proof
that they are the same entity. (R:3681-87, 3690-95). Moreover, Mr. Gillis argued

that the interest awarded should be stricken because the Complaint did not state an
interest rate. (R:3694). The trial court subsequently entered an order denying
rehearing, and this appeal followed. (R:3699-3705).
SUMMARY OF ARGUMENT
The trial court entered a judicial default against Mr. Gillis and struck all of
his pleadings as a result of his willful noncompliance with discovery requests, even
after the trial court ordered him to do so. All efforts to set the judicial default aside
were denied, leaving it in place at the time of the trial. Because of the judicial
default, all well-pled allegations were accepted as true, and the only remaining
issue at trial was the amount of unliquidated damages. Although the trial court
ultimately did not award any unliquidated damages because it struck the witnesss
testimony, it nonetheless entered the Default Final Judgment in the amount of the

liquidated damages.
Mr. Gillis has raised almost every conceivable argument in an effort to
obtain reversal of the Default Final Judgment claiming that: (1) the trial court
abused its discretion in imposing the sanction of a judicial default for his deliberate
and repeated discovery violations; (2) the Default Final Judgment was erroneously
entered because there were purported fatal defectsten to be exactin the

12
Complaint that prevented the trial court from accepting the well-pled allegations as
true; and (3) involuntary dismissal should have been granted because

notwithstanding the allegations in the Complaint which had to be accepted as

truethe Trustee lacked standing at the inception of the case. None of his
arguments have merit.

First, Mr. Gillis asserts that reversal is required because the trial courts
order imposing sanctions failed to contain an express finding of willful
noncompliance with discovery. His argument is unavailing. The trial court made a
finding of willful noncompliance stating that the sanction was imposed because of
Mr. Gilliss repeated failure[s] to comply with discoveryit simply appeared in
a subsequent order. Even if this Court concludes that this is insufficient, the law is
settled that the failure to make an explicit finding is not an abuse of discretion if
the deliberate discovery violations were apparent in the record. That is clearly the
case here. Mr. Gillis willfully refused to attend his deposition, failed to comply

with the trial courts order requiring him do so, improperly refused to answer the
trial courts questions regarding his receipt of the notice of the deposition, and
refused to respond to discovery.

Second, the trial court did not err in entering the Default Final Judgment
based on the well-pled allegations in the Complaint. These allegations established
the elements required to foreclose, including the execution of the Note and
Mortgage, the Trustees standing to bring the action, the judicial default, and the
amounts due and owing. Each of Mr. Gilliss nine arguments attempting to point
out fatal defects in the Complaint are not only mostly unpreserved, and fail on that

13
basis alone, but are based on flawed theories that are contrary to law. Among other
things, it is well settled that (1) a party can plead alternative theories of recovery

and then elect the remedy prior to trial, which is precisely what the Trustee did
here; (2) the Note does not have to be attached to the Complaint in an foreclosure
action; and (3) because a mortgage follows the note, the fact the Mortgage listed

Wachovia and not the Trustee does not defeat foreclosure.

Third, there is no basis for this Court to reverse and remand for an
involuntary dismissal. Standing, contrary to Mr. Gilliss assertions, does not need
to be proven at trial when a party has defaulted. Instead, so long as the well-pled
allegations state the plaintiff is the holder of the note, all that the plaintiff must do
is surrender the original note prior to judgment. That is precisely what was done
here. Moreover, notwithstanding the striking of the Trustees witness, the trial
court could properly consider the Note and Mortgage in entering the Default Final
Judgment. The Note was self-authenticating and the Mortgage was attached to the
Complaint, allowing it to be considered along with the well-pled allegations.
For these reasons, the Default Final Judgment must be affirmed.
ARGUMENT

I. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION WHEN IT

ENTERED A JUDICIAL DEFAULT AGAINST MR. GILLIS DUE TO
HIS REPEATED NONCOMPLIANCE WITH THE TRIAL COURTS
DISCOVERY ORDERS.
The imposition of discovery sanctions is within the trial courts discretion
and can only be reversed if this Court finds that the sanction imposed was an abuse
of discretion. Ham v. Dunmire, 891 So. 2d 492, 495 (Fla. 2004). Florida Rule of

14
Civil Procedure 1.380(b) delineates the sanctions that may be imposed for
discovery violations, and specifically provides that the court may, among other

things, strike a partys pleadings and enter a default. Fla. R. Civ. P.

1.380(b)(2)(C).
Here, Mr. Gillis willfully refused to attend his deposition, failed to comply

with the trial courts order requiring him do so, improperly refused to answer the
trial courts questions regarding his receipt of the notice of the deposition, and
refused to respond to discovery. As result, the trial court imposed the sanction of a
judicial default and, in a later order addressing one of many motions to set it aside,
explained that the judicial default was entered as a sanction for [Mr. Gilliss]
failure to comply with his discovery obligations in this case and [Mr. Gilliss]
repeated failure to comply with Court Orders on those issues. (R:751-54, 2418).
Mr. Gillis claims that the trial court abused its discretion in entering the
judicial default becausenotwithstanding the overwhelming evidence
demonstrating his noncompliance with discovery requests and failure to comply
with the trial courts discovery orderthe orders imposing the judicial default
failed to contain an express finding of willful noncompliance. (Initial Br. at 23-

25). Mr. Gillis is wrong.

The trial court did, in fact, make a finding of willful noncomplianceit
simply appeared in a subsequent order. In that order, the trial court made clear that
the sanction was imposed based on Mr. Gilliss repeated failure[s] to comply
with discovery, which necessarily indicates that the trial court found that the
failures were more than merely accidental. (R:2418-419). Indeed, the Florida

15
Supreme Court has made clear that no magic words are required for a finding of
willful noncompliance, so long as it is clear that the trial court consciously

determined that the [defendants] failure was more than a mistake, neglect, or
inadvertence . . . Ham, 891 So. 2d at 496. That is precisely the case here.
Even if this Court disagrees, affirmance is nonetheless required. While an

order of dismissal or default for failure to comply with discovery

requirements . . . should contain an explicit finding of willful noncompliance, the
failure to do so is not an abuse of discretion if the record, standing alone, is not
susceptible to more than one interpretation. Commonwealth Fed. Savings &
Loan Assn v. Tubero, 569 So. 2d 1271, 1273 (Fla. 1990); Ham, 891 So. 2d at 495-
96; Ledo v. Seavie Res., LLC, 149 So. 3d 707, 710 (Fla. 3d DCA 2014) (quoting
Ham, 891 So. 2d at 495).
For instance, in Ledo, a factually similar case, a pro se foreclosure defendant
repeatedly refused to respond to discovery and retain counsel, despite express
orders from the trial court requiring him to do so, resulting in the striking of the
defendants pleadings and entry of a default as a sanction. Id. at 708-09. On
appeal, the defendant argued that reversal was required because the default order

lacked the necessary express findings of willful noncompliance. Id. at 710.

Rejecting this argument, the Third District held that no such findings were required
because the record demonstrably establish[ed] Ledos deliberate disregard of the
trial courts order. Id. at 711. Therefore, the trial court did not abuse its
discretion in failing to make express written findings of willful or deliberate
noncompliance. Id.

16
 This Court approved of the reasoning in Ledo by applying it in Flagg v.
Judd, 198 So. 3d 665 (Fla. 2d DCA 2015), a civil forfeiture case where the

defendant failed to respond to discovery and, as a sanction, his answer was stricken
and a default entered. Id. at 667. However, unlike the facts in Ledo, the record
[did] not demonstrate a deliberate disregard for the courts orders and,

consequently, the trial courts order was reversed. Id. at 668.

In this case, Mr. Gilliss willful disregard for the trial courts authority is
more than apparent on the face of the record. Mr. Gillis abruptly left his own
deposition, failed to attend his rescheduled deposition ordered by the court, failed
to respond to the trial courts questions regarding his non-attendance, and failed to
respond to written discovery. (R:320, 542, 544-45, 1352, 2365). This deliberate
conduct was only the latest in a pattern of disruptive and inappropriate behavior
throughout the litigation, which included his disruptive filings, replete with absurd
arguments and preposterous allegations of fraud and other misconduct.
Accordingly, the record in this case is not susceptible to more than one
interpretation. Instead, the only conclusion that can be reached from a review of
the record is that Mr. Gilliss noncompliance was clearly willful and certainly

worthy of a judicial default as a sanction. Therefore, even if the trial court failed to
make any express findings of willful noncompliance, the trial court did not abuse
its discretion when it struck Mr. Gilliss pleadings and entered a judicial default as
a sanction.

17
II. THE TRIAL COURT PROPERLY ENTERED A DEFAULT FINAL
JUDGMENT IN FAVOR OF THE TRUSTEE FOLLOWING THE
NON-JURY TRIAL.
A. Overview Of The Requirements For A Default Final Judgment.
Final judgments after default may be entered by the court at any time. . . .
Fla. R. Civ. P. 1.500(e). [T]he entry of default precludes a party from contesting
the existence of the plaintiffs claim and liability thereon. The Fla. Bar v. Porter,
684 So. 2d 810, 813 n.4 (Fla. 1996) (citing Robbins v. Thompson, 291 So. 2d 225
(Fla. 4th DCA 1974)). A default admits every cause of action that is sufficiently
well-pled to properly invoke the jurisdiction of the court and to give due process
notice to the party against whom relief is sought. Szucs v. Qualico Dev., Inc., 893
So. 2d 708, 712 (Fla. 2d DCA 2005) (quoting Bowman v. Kingsland Dev., Inc.,

432 So. 2d 660, 662-63 (Fla. 5th DCA 1983)).

A default judgment can be entered on liquidated damages without further
proof of damages. Maggiano v. Whiskey Creek Profl Ctr., LLC, 160 So. 3d 535,
536 (Fla. 2d DCA 2015) (citing Paramo v. Floyd, 154 So. 3d 477, 478 (Fla. 2d
DCA 2015)). Damages are liquidated when the proper amount to be awarded can
be determined with exactness from the cause of action as pleaded, i.e., from a
pleaded agreement between the parties, by an arithmetical calculation or by
application of definite rules of law. Id. at 537 (quoting Bowman, 432 So. 2d 660).
Since every negotiable instrument must be an unconditional promise or order to
pay a sum certain in money, actions for the sums directly due on negotiable
instruments are, by definition, actions for liquidated damages. Id.

18
 However, [a] defaulting party has a due process entitlement to notice and
an opportunity to be heard as to the presentation and evaluation of evidence

necessary to a judicial interpretation of the amount of unliquidated damages.

Bodygear Activewear, Inc. v. Counter Intelligence Servs., 946 So. 2d 1148, 1150
(Fla. 4th DCA 2006) (quoting Asian Imports, Inc. v. Pepe, 633 So. 2d 551, 552

(Fla. 1st DCA 1994)). This is so even when the answer is stricken and a default is
entered as a sanction. Ciprian-Escapa v. City of Orlando, 172 So. 3d 485, 488
(Fla. 5th DCA 2015) (citing DYC Fishing, Ltd. v. Martinez, 994 So. 2d 461, 462-
63 (Fla. 3d DCA 2008)).

B. The Default Final Judgment Was Properly Entered Based On The

Well-Pled Allegations In The Complaint.
The elements of a foreclosure complaint are: 1) an agreement, 2) a default,
3) an acceleration of the amount due, and 4) the amount due. Black Point Assets,
Inc. v. Fed. Natl Mortg. Assn ( Fannie Mae ), 220 So. 3d 566, 568 (Fla. 5th DCA
2017) (citing Kelsey v. SunTrust Mortg., Inc., 131 So. 3d 825, 826 (Fla. 3d DCA
2014)). Furthermore, [a] crucial element in any mortgage foreclosure proceeding
is that the party seeking foreclosure must demonstrate that it has standing to

foreclose. McLean v. JP Morgan Chase Bank Natl Assn, 79 So. 3d 170, 173
(Fla. 4th DCA 2012).
In the Complaint, the Trustee alleged that: (1) the Note and Mortgage were
executed on May 1, 2006, (2) it is the holder of the Note; (3) the Note is in default;
(4) it has accelerated the Note; and (5) it is owed the principal amount due,
together with interest from September 1, 2007. (R:2). Therefore, these well-pled

19
allegations in the Complaint, all the elements for foreclosure were established and
the Trustee was entitled to the Default Final Judgment.

Mr. Gillis, however, attempts to persuade this Court otherwise, identifying

multiple purported problems with the allegations in the Complaint. As a
threshold matter, most of these purported problems were not raised below and,

therefore, fail on this basis alone. Wimberly v. Miami-Dade Cnty., 8 So. 3d 1160,
1162 (Fla. 3d DCA 2009). In fact, only the second and ninth problems discussed
belowthe attachment of the Note to the Complaint and the purported
substitutions of the plaintiffwere squarely preserved. (R:333-37, 3270; T:8).
Regardless, only a fatal pleading deficiency, such as a total failure to state
a cause of action, requires that a default judgment be set aside. Becerra v. Equity
Imports, Inc., 551 So. 2d 486, 488 (Fla. 3d DCA 1989). Mr. Gillis has wholly
failed to demonstrate that such a fatal defect exists in this case. In fact, each of his
arguments claiming a defect is contrary to settled law.

First, Mr. Gillis argues that the Trustees alternative theories for recovery
foreclosure and reestablishment of a lost notepled in the Complaint make it
internally inconsistent, and unable to support the Default Final Judgment. (Initial
Br. at 17). Of course, this is untrue. It has long been the law in Florida that parties
may plead inconsistent theories for recovery, and the eventual adoption of one
remedy waives the right to the other. See Fla. R. Civ. P. 1.110(g) (A pleader may

set up in the same action as many claims or causes of action or defenses in the
same right as the pleader has, and claims for relief may be stated in the alternative
if separate items make up the cause of action . . .); see also Barbe v. Villeneuve,

20
505 So. 2d 1331, 1333 (Fla. 1987) (when the allegations of facts necessary to
support one remedy are substantially inconsistent with those necessary to support

[another], then the adoption of one remedy waives the right to another. (quoting
Am. Process Co. v. Fla. White Pressed Brick Co., 47 So. 942, 944 (Fla. 1908))).
That is what occurred herethe Trustee pled two inconsistent theories of recovery

and thenas it mustelected to proceed solely on its foreclosure count based on

the original Note being located after the Complaint was filed.
Second, there is no requirement under Florida law that the promissory note
be attached to a foreclosure complaint in order to state a cause of action. 5 Instead,
only the mortgage must be attached, which was done here. See generally Glen
Garron, LLC v. Buchwald, 210 So. 3d 229, 234 & n.5 (Fla. 5th DCA 2017)
(explaining that, prior to December 11, 2014, only mortgages needed to be
attached to foreclosure complaints, not notes). This is because the object of a
foreclosure action is to force the sale of the property through the plaintiffs

contractual rights that were granted by the mortgage. Id. Therefore, the Trustees
failure to attach the Note was not a fatal defect which precluded the trial court from
properly entering the Default Final Judgment.

5
The only authority cited by Mr. Gillis to support his position is Morales v. All
Right Miami, Inc., 755 So. 2d 198, 198 (Fla. 3d DCA 2000). In that case, a default
judgment was reversed because the complaint and attached exhibits upon which
the default was based demonstrated that the plaintiff was not the payee of the
restitution order it sought to enforce. Id. Therefore, there was no cause of action
to support a default judgment. Such facts are not present in this case.

21
 Third, Mr. Gilliss contention that the document attached to the Complaint
showing the substantial terms of the Note did not cure the failure to attach the

Note is misplaced. (Initial Br. at 18). Because there is no requirement that the
Note be attached to the Complaint, there was no defect to cure. Moreover, this
document was only relevant to the lost note count, which the Trustee voluntarily

dismissed.
Fourth, Mr. Gilliss contention that the Trustees allegation in the lost note
count that the Plaintiff was in possession of the Mortgage Note and entitled to
enforce it when loss of possession occurred or Plaintiff has been assigned the right
to enforce the Mortgage Note was fatal to the Default Final Judgment is baseless.
(R:4, Initial Br. at 18). When the Default Final Judgment was entered, the Trustee
had chosen the remedy of foreclosure and no longer needed to reestablish the lost
note. Thus, the allegation has no bearing whatsoever on the Default Final
Judgment.

Fifth, Mr. Gillis claims that because the Mortgage lists Wachovia as the
lender and Mortgage Electronic Registration Systems (MERS) as the nominee,
the allegations of the Complaint asserting that the Trustee has the right to enforce
the Mortgage conflict with the exhibits and, as a result, only Wachovia has a
right, as a matter of law, to enforce the Note and foreclose. (Initial Br. at 19). He
is wrong.

Mr. Gillis admittedby virtue of the judicial defaultthat the Trustee was
the holder of the Note. Because the law is well-settled that the mortgage follows
the note, the fact that Wachovia is listed as the lender on the Mortgage does not

22
mean that only Wachovia had the right to enforce the Note. Everhome Mortg. Co.
v. Janssen, 100 So. 3d 1239, 1240 (Fla. 2d DCA 2012) (quoting WM Specialty

Mortg., LLC v. Salomon, 874 So. 2d 680, 682 (Fla. 4th DCA 2004)). On the
contrary, because the Trustee was the holder of the Note by virtue of the judicial
default, it had the right to enforce the Mortgage.

Sixth and seventh, Mr. Gillis makes baseless claims that the allegations are
insufficient because the wording of certain provisions, i.e., there was executed
and delivered a Promissory Note and that the Trustee must be paid, fails to
specify who executed the Note and who must pay the Trustee. (R:2-3, Initial Br.
19-20). This argument is borderline frivolous and should be rejected. All the
Trustee had to do was to provide a short and plain statement of the ultimate facts
showing that [it] is entitled to relief. Fla. R. Civ. P. 1.110(b). As long as the
Complaint inform[ed] [Mr. Gillis] of the nature of the cause of action against
him, then it was sufficient. Milu, Inc. v. Duke, 204 So. 2d 31, 34 (Fla. 3d DCA

1967). It clearly did. Mr. Gillis cannot seriously suggest that he was unaware that
the Trustee was seeking to foreclose due to his default because the Complaint was
prepared in a passive voice.

Eighth, Mr. Gillis argues on appeal that the Complaint was a nullity
because, when the lost note count was voluntarily dismissed, Fla. R. Civ. P. 1.420
only provided for dismissal of an entire cause actionnot an entire count.6 Mr.

6
The Florida Rules of Civil Procedure were amended, effective January 1, 2011, to
allow for voluntary dismissal of less than all counts, which is precisely what the
Trustee did here. See In re Amendments to The Fla. Rules of Civil Procedure, 52
So. 3d 579, 587-88 (Fla. 2010).

23
Gillis states that because Plaintiffs attempt to drop Court II was a nullity . . . the
trial court had to make determinations regarding the re-establishment of the lost

note, which it could not do without some evidence outside of the pleadings.
(Initial Br. at 21).
It bears repeating that this argument was not raised below and is, therefore,

waived. Wimberly, 8 So. 3d at 1162. Instead, Mr. Gilliss counsel argued that
once the lost note count was dropped, the Complaint had to be amended to state a
cause of action. His argument was as follows:

[O]nce they dropped that lost note count, they needed to file an
Amended Complaint because the Complaint doesnt attach the note,
and its a Motion to Dismiss. Its got to state a cause of action.
Youve got to attach the note.
(T:8). Thus, Mr. Gilliss argument below was that, without an amendment

attaching the Note to the Complaint, the Complaint failed to state a cause of action
and there could be no Default Final Judgment. 7 That is very different than stating
the dismissal was a nullity.
Even if this Court were to consider Mr. Gilliss argument, improperly raised
for the first time on appeal, it would nevertheless fail. Even if all allegations
remained in the Complaint at the time the Default Final Judgment was entered, as

claimed by Mr. Gillis, it was clear that the only theory upon which the Trustee
proceeded at trial was the foreclosure count. It simply was impossible to proceed
through trial on both counts. Either the Note was lost or it was not. They were

7
This argument is, of course, fatally flawed because, as discussed above, the Note
did not have to be attached to state a cause of action.

24
two entirely distinct theories of recovery. Finding dismissal of a single count a
nullity when the claims arise under totally distinct factsand, as here, cannot even

co-existis unwarranted. See Guess v. City of Miramar, 889 So. 2d 840, 848-49
(Fla. 4th DCA 2004) (carving out an exception for the rule where a plaintiffs
whistleblower claim and a civil rights claim arose from totally different sets of

facts) receded from on other grounds by Palm Beach Cnty Sch. Bd. v. Wright, 217
So. 3d 163, 165 (Fla. 4th DCA 2017). Accordingly, once the Trustee elected to
proceed with the foreclosure count, those were the only allegations that the trial
court needed to consider in entering the Default Final Judgment at the conclusion
of trial.
Ninth, Mr. Gillis argues that the trial court could not properly enter
judgment in favor of the Trustee because there was no evidence before it
regarding the substitutions of Plaintiff 2 or Plaintiff 3. (Initial Br. at 21). This
argument makes no sense. At no point during this litigation was there a
substitution of the plaintiff. The named plaintiff has always been the Trustee.
The Trustees first amendment to the case style merely added the name of the
master servicer under the Trust. (R:317-18). The Trustees second amendment

merely deleted the master servicer and replaced it with the name of the Trust.
(R:2083-84). These were technical corrections, not substitutions of the named
plaintiff. Disposall Inc. v. Wilson, 547 So. 2d 1299, 1300 n.2 (Fla. 5th DCA 1989)
(a technical correction of a partys name is not the same as a substitution of a
party).

25
III. THE TRIAL COURT SHOULD NOT HAVE ENTERED AN
INVOLUNTARY DISMISSAL FOLLOWING THE NON-JURY
TRIAL.
A trial courts ruling on a motion for involuntary dismissal is reviewed de

novo. Ventures Tr. 2013-I-H-R v. Asset Acquisitions & Holdings Tr., 202 So. 3d
939, 942 (Fla. 2d DCA 2016). This Court must view the evidence and all
inferences of fact in a light most favorable to the nonmoving party, and can

affirm . . . only where no proper view of the evidence could sustain a verdict in
favor of the nonmoving party. Deutsche Bank Natl Tr. Co. v. Clarke, 87 So. 3d
58, 60 (Fla. 4th DCA 2012) (citing Brundage v. Bank of Am., 996 So. 2d 877, 881
(Fla. 4th DCA 2008)).
Here, Mr. Gillis contends that an involuntary dismissal should have been
entered because: (1) notwithstanding the judicial default, the Trustee was required
to prove standing at trial and failed to do so; and (2) after the trial court struck the
Trustees sole witness, the Note and Mortgage should have also been stricken, and
without these documents, the Default Final Judgment could not have been entered.

(Initial Br. at 11-15). Neither of these arguments warrants reversal for an

involuntary dismissal.

A. The Trustee Did Not Need To Prove Standing Because Standing

Was Already Admitted By Virtue of the Judicial Default.
Mr. Gilliss entire argument is based on his mistaken belief that standing
must be proven at trial notwithstanding the judicial default. Stated simply, he is
wrong on the law. Indeed, the case he cites to support his position holds the exact
opposite. Venture Holdings & Acquisitions Grp., LLC v. A.I.M. Funding Grp.,

26
LLC, 75 So. 3d 773, 776 (Fla. 4th DCA 2011). In Venture Holdings, A.I.M.
Funding Group, LLC (A.I.M) entered into three loan agreements with different

entities (collectively, the borrowers), each of which were secured by a mortgage

on real property. Id. at 775. All three borrowers failed to make payments on their
respective loans, and A.I.M filed mortgage foreclosure actions on the three

properties, alleging, among other things, that it now owns and holds the Mortgage
Note[s] and Mortgage[s]. Id. The trial court entered a default against two of the
three borrowers, and summary judgment was entered in all three cases, resulting in
a consolidated appeal. Id.
On appeal, the defaulted borrowers argued that, because A.I.M assigned the
note and mortgage to a third party as collateral for the loan, it did not have standing
to foreclose at the inception. Id. at 776. Rejecting this argument, the Court held
that

[T]he entry of default precludes a party from contesting the existence

of the plaintiffs claim and liability thereon. Real, in case no. 09-
018086, was found to be in default. Venture in case no. 09-19636,
was found to be in default. Neither party may contest A.I.M.s
standing at the inception of the suit.
Id. (emphasis added) (internal citations omitted). The Court then explained that,

even though standing at inception could not be challenged based on the default, the
foreclosure plaintiff was still required to surrender the original note to the trial
court. Id. (citing Lenfesty v. Coe, 16 So. 277, 278 (Fla. 1894)); see also Pastore-

Borroto Dev., Inc. v. Marevista Apartments, M.B., Inc., 596 So. 2d 526, 526 (Fla.
3d DCA 1992). The original note, however, must still be surrendered prior to entry

27
of judgment of foreclosure. Lenfesty, 16 So. at 278; see also Clarke, 87 So. 3d at
61-62 (citing Downing v. First Natl Bank of Lake City, 81 So. 2d 486, 488 (Fla.

1955)) (explaining that precedent requires production of only the original note
prior to the entry of a decree of foreclosure, [but] not the mortgage); Pastore-
Borroto Dev., Inc., 596 So. 2d at 526 (Marevistas failure to produce the original

note and mortgage or provide any explanation as to the absence of those

documents requires vacation of the amended judgment.). A.I.M, unlike the
Trustee in this case, failed to do so. In addition, the allonges attached to the copies
of the three notes established that the notes had been indorsed to a third party,
which directly contradicted the plaintiffs allegations. Venture Holdings &
Acquisitions Grp., LLC, 75 So. 3d at 776-77. Accordingly, the summary
judgments were reversed. Id. at 777.
Here, by virtue of the judicial default, Mr. Gillis admitted the Trustees well-
pleaded allegations that it had standing to enforce the Note. Accordingly, standing
at inception could not be challenged, and as a result, no such evidence was
required at trial, including evidence establishing when the indorsements were
placed on the Note.8 All that was required after the judicial default had been

entered was for the Trustee to surrender the original Note, indorsed to it, prior to

8
The law is now settled that the plaintiff does not have to prove the exact date the
indorsements were placed on the Note. Instead, the plaintiff is only required to
adduce competent, substantial evidence that the indorsement was placed on the
note prior to inception of the action. Calvo v. U.S. Bank Natl Assn, 181 So. 3d
562, 564 (Fla. 4th DCA 2015); Peuguero v. Bank of Am., N.A., 169 So. 3d 1198,
1202-03 (Fla. 4th DCA 2015).

28
the Default Final Judgment being entered, which was clearly done. 9 Therefore,
under Florida law, the fact that standing was not proved at trial provides no basis to

reverse the Default Final Judgment.

B. The Trial Court Did Not Err In Allowing The Note And Mortgage
To Remain In Evidence After Striking Ms. Calderons Testimony.
Mr. Gillis also asserts that after striking Ms. Calderons testimony, the Note
and Mortgage were no longer admissible. (Initial Br. at 14-15).
Under the Florida Evidence Code, [c]ommercial papers and signatures

thereon and documents relating to them are all self-authenticating, to the extent
provided in [Floridas] Uniform Commercial Code. 90.902(8), Fla. Stat.
(2016). The Florida Uniform Commercial Code provides that the authenticity

of . . . each signature on [an] instrument is admitted unless specifically denied in

the pleadings. 673.3081(1), Fla. Stat. (2016). Based on these provisions, in
Riggs v. Aurora Loan Services, LLC, 36 So. 3d 932, 933 (Fla. 4th DCA 2010), the
Court held that the Note was self-authenticating, explaining that [t]he borrower
did not contest that the note at issue was the one he executed in the underlying
mortgage transaction and [n]othing in the pleadings placed the authenticity of
[the] signature at issue. See also U.S. Bank Natl Assn for BAFC 2007-4 v.
Roseman, 214 So. 3d 728, 732-33 (Fla. 4th DCA 2017) (holding that the trial court
erred in denying the admission of the original note on the basis of authenticity

9
Mr. Gillis mispresents the facts, stating that [n]either indorsement is in favor of
Plaintiff 3. (Initial Br. at 22). That is incorrect. The indorsement was made
payable to Deutsche Bank Trust Company Americas as Trustee, the named
plaintiff in this action. (R:147).

29
because the note was self-authenticating); see also Hidden Ridge Condo.
Homeowners Assn Inc. v. Onewest Bank, N.A., 183 So. 3d 1266, 1269 n.3 (Fla.

5th DCA 2016) ([T]he endorsed note, as commercial paper, is self-

authenticating.).
Here, by virtue of the judicial default, Mr. Gillis admitted he executed the

Note. In fact, tellingly, in his operative Answer filed with the trial court, Mr. Gillis
actually admitted that he signed the Note and Mortgage. (R:3472). Moreover,
even if he had denied the Notes authenticity in his pleadings, they were
subsequently stricken. Accordingly, the Note must be deemed to be self-
authenticating and, therefore, admissible.
Mr. Gilliss argument regarding the Mortgage is similarly unavailing. The
Mortgage was attached to the Complaint, and no challenge was ever made as to its
authenticity. Because of the judicial default, the Mortgage and its terms could be
considered by the trial court as part of the well-pled allegations in the Complaint,
regardless of whether it was admitted during the trial on unliquidated damages.
Fla. R. Civ. P. 1.130(b) (Any exhibit attached to a pleading must be considered a
part thereof for all purposes.); see also Glen Garron, LLC, 210 So. 3d at 233-34;

Jaffer v. Chase Home Fin., LLC, 155 So. 3d 1199, 1202 (Fla. 4th DCA 2015)
(quoting Health Application Sys., Inc. v. Hartford Life and Accident Ins. Co., 381
So. 2d 294, 297 (Fla. 1st DCA 1980)).
CONCLUSION
Based on the foregoing, the Trustee respectfully requests that the Court
affirm the Default Final Judgment in all respects.

30
Date: October 2, 2017 Respectfully submitted,

Michele L. Stocker (FBN 044105) Kimberly S. Mello (FBN 002968)

stockerm@gtlaw.com
GREENBERG TRAURIG, P.A.
401 East Las Olas Blvd., Ste. 2000
Ft. Lauderdale, FL 33301
Telephone: 954.768.8271
Facsimile: 954.759.5571
mellok@gtlaw.com
Vitaliy Kats (FBN 118748)
katsv@gtlaw.com
GREENBERG TRAURIG, P.A.
101 E. Kennedy Blvd., Ste. 1900
Tampa, FL 33602
Telephone: 813.318.5700
Facsimile: 813.318.5900
Secondary Email: dunnla@gtlaw.com;
FLService@gtlaw.com

By: /s/ Kimberly S. Mello

Kimberly S. Mello
Counsel for Appellee, Deutsche Bank Trust Company Americas, as Trustee
CERTIFICATE OF SERVICE
I CERTIFY that a copy hereof has been furnished to the following by e-mail
on October 2, 2017:

Mark A. Cullen, Esq.

500 S. Australian Avenue, Suite 543
West Palm Beach, FL 33401
mailbox@cullenlawfirm.net
/s/ Kimberly S. Mello
Kimberly S. Mello
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief was prepared in Times New Roman, 14-point
font, in compliance with Rule 9.210(a)(2) of the Florida Rules of Appellate

Procedure.
/s/ Kimberly S. Mello
Kimberly S. Mello
FTL111402376

31