IN THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT, IN AND FOR DUVAL COUNTY, FLORIDA

CASE NUMBER: 16-2004-CA-6432-XXXX-MA

Div. CV-A

MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., and CITIMORTGAGE, INC., Plaintiffs,vs.

SANDY S. TRENT, etc., et al., Defendants._________________________________________/

SEPARATE DEFENDANT SANDY TRENT’S MOTION FOR REHEARING

COMES NOW, the Defendant and for her Motion for Rehearing of this Court’s

Order granting Plaintiffs/Crossclaim Defendants’ Motion for Partial Summary Judgment

on Defendant’s Counterclaim brought under the Florida Consumer Collection Practices

Act (FCCPA) entered herein and states:

1. The Court made legal mistakes and considered facts not allowed under

Florida Rule of Civil Procedure 1.510 in the consideration of the plaintiffs’ motion for

summary judgment as set out below which form the grounds for this motion.

2. In the Order granting plaintiffs’ summary judgment on defendant’s FCCPA

counterclaim, this Court found that the Defendant’s counterclaim is barred under the

principles of res judicata and collateral estoppel, based upon the decision of the

Honorable Timothy Corrigan in Trent, etc., et al., v. Mortgage Electronic Registration

Systems, Inc., etc., No. 06-374, (Fla. July 20, 2007).

3. The United State Supreme Court's ruling in Semtek International Inc. v.

Lockheed Martin Corp., 531 U.S. 497, 121 S. Ct. 1021, 149 L. Ed. 2d 32 (2001) is

instructive on this issue. In Semtek International, the Supreme Court held that under

Federal Rule of Civil Procedure 41, Dismissal of Actions, a dismissal with prejudice,

while operating as an "adjudication on the merits," merely means that the case is res

judicata only as to the dismissing court, but not sufficient to constitute res judicata

in other courts. Id. at 506. Southern Coatings, Inc. v. City of Tamarac, 916 So. 2d 19,

21-22 (Fla. 4th DCA 2005).

4. As the Plaintiff stated in its Motion for Partial Summary Judgment, “the issue

relating to whether a mortgage foreclosure constitutes ‘debt collection’ appears to be a

question of first impression” in Florida.

5. Clearly the Federal circuits are in conflict as to whether the enforcement of a

security interest in the residential mortgage context is considered debt collection under

the Federal Fair Debt Collection Practices Act (FDCPA).

6. The 3rd Circuit Court of Appeal held that enforcement of a security interest is

debt collection under the FDCPA. Piper v. Portnoff Law Assocs., Ltd., 396 F.3d 227,

234 (3d Cir. 2005). In Oppong v. First Union Mortg. Corp., 215 Fed. Appx. 114, 120 (3d

Cir. Pa. 2007) the 3rd Circuit found that Wells Fargo, as assignee of a mortgage in a

foreclosure action, was a debt collector under the FDCPA.

7. The Defendant’s allegations in count II of her FCCPA counterclaims filed in

response to the plaintiffs’ foreclosure complaint in this action recite completely different

violations of the FCCPA than those alleged by her as a class plaintiff in the Trent v.

MERS class action suit filed in federal court. The different and distinct allegations that

appear in both of these FCCPA lawsuits are enumerated verbatim in her Memorandum

in Opposition to Plaintiffs’ Motion for Partial Summary Judgment on FCCPA

Counterclaims filed for record and incorporated herein.

8. The Defendant’s FCCPA counterclaims at issue here are based on factual

allegations that are not disputed by affidavit or otherwise. These factual allegations are

that Plaintiffs failed to meet or exhaust the detailed contractual and statutory conditions

precedent to the filing of this foreclosure action as a method of debt collection. The

conditions precedent that plaintiffs failed to exhaust before filing this foreclosure action

are spelled out in the subject mortgage and are set forth in 12 U.S.C. 1710(a) and 24

C.F.R. Part 203 Subpart C.

9. The FCCPA supplements the FDCPA by providing consumers/debtors

greater statutory protections against sharp debt collection tactics. Florida Statute §

559.552 (2008) states that the FCCPA “is in addition to the requirements and

regulations of the federal act. In the event of any inconsistency between any provision

of this part and any provision of the federal act, the provision which is more

protective of the consumer or debtor shall prevail.” (emphasis added).

10. The FCCPA is broader than the FDCPA because the state consumer

protection statute applies to "creditors" and not just to "collectors." Under the FCCPA

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the term “debt collector” is not restricted to collection agencies, but applies to anyone

attempting to collect a consumer claim unlawfully. Seaton Jackson v. Wells Fargo

Homemortgage, inc., 12 Fla. L. Weekly Supp. 188 (Fla. 6th Circuit 2004) citing Williams

v. Streeps Music Co., Inc., 333 So.2d 65, 67 (Fla. 4th DCA 1976) (finding that § 559.72

includes all allegedly unlawful attempts at collecting consumer claims); see also Heard

v. Mathis, 344 So.2d 651, 655 (Fla. 1st DCA 1977) (providing that the word “person” is

applicable to persons generally, not just collection agencies).

11. Florida Statute § 559.55(6) defines "Debt" or "consumer debt" as “any

obligation or alleged obligation of a consumer to pay money arising out of a transaction

in which the money, property, insurance, or services which are the subject of the

transaction are primarily for personal, family, or household purposes, whether or not

such obligation has been reduced to judgment.

12. Under Florida Statute § 559.55(6) the term "debt collector" includes any

creditor who, in the process of collecting her or his own debts, uses any name other

than her or his own which would indicate that a third person is collecting or attempting to

collect such debts.

13. The pleadings sub judice show that there are unanswered questions of

material fact, to wit:

a. Whether Plaintiffs are “debt collectors” under the FCCPA.

b. Whether Plaintiffs violated Florida Statute § 559.72(9) by failing to

comply with and exhaust the contractual and statutory conditions

precedent to the filing of this foreclosure imposed on the plaintiff by the

explicit terms of the mortgage contract and pursuant to 12 U.S.C.

1710(a) and 24 C.F.R. Part 203 Subpart C, which violations would

preclude Plaintiffs from pursuing this foreclosure action.

WHEREFORE, defendant requests the court grant this motion pursuant to Rule

1.530(b) of the Florida Rules of Civil Procedure, for an award of attorney’s fees and for

all other relief deemed appropriate.

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing has been furnished to Donna Glick, Law Offices of David J. Stern, 801 S. University Drive, Suite 500, Plantation, Florida 33324 and to Trevor G. Hawes, Esquire, Cole, Scott & Kissane, 1805 Copeland Street, Jacksonville, Florida 32204 by U.S. Mail and by fax to 399-2110 on this ____ day of February, 2009.

JACKSONVILLE AREA LEGAL AID, INC.

_______________________________April Carrie Charney, Esquire

Fla. Bar No.: 310425126 West Adams Street Jacksonville, Florida 32202Telephone: (904) 356-8371, ext. 373Facsimile: (904) 224-7050april.charney@jaxlegalaid.orgAttorney for Separate Defendant

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