IN THE CIRCUIT COURT OF THE 11th JUDICIAL CIRCUIT IN AND FOR DADE COUNTY, FLORIDA CIVIL ACTION DEUTSCHE

BANK NATIONAL TRUST COMPANY, AS TRUSTEE. ETC/ Plaintiff, vs. ELOY GARCIA, ET AL Defendant ___________________________________________ DEFENDANTS EMERGENCY MOTION TO SET ASIDE FINAL JUDGEMENT CERTIFICATE OF SALE & OBJECTION TO SALE (Defendants Primary Residence/Homestead) DEFENDANT ELOY GARCIA by and through his undersigned attorney and hereby files his Motion to Set Aside Final Judgement, Certificate of Sale. CASE NO: 09-10561CA0125

JUDICIAL NOTICE REQUESTED 1. The Court is requested to take judicial notice of all pleadings and other documents

in the court file in this matter. FACTS 2. case. 3. On September 2, 2009 Plaintiff filed a Motion for Default, such Motion was On or about February 10, 2009 Plaintiff filed its Complaint for foreclosure in this

denied on September 4, 2009 4. In February 2009, Defendant had begun phone conversation with American

Servicing Company regarding stopping the foreclosure and obtaining a loan modification,

American Servicing Company being the loan servicer for the Plaintiff. 5. 6. 5. On September 23, 2009 a Final Judgement was entered. On October 6, 2009 a Notice of Default not entered was filed. In April 2010, Defendant was requested to send updated financial information to

American Servicing Company. 6. On April 9, 2010 the new financial information was sent to American Servicing

Company and they acknowledge receipt of the same and informed the Defendant that the Foreclosure was cancelled. 7. On April 12, 2010 and April 29, 2010 American Servicing Company has sent

correspondence to the Buyer advising him that they were processing the loan modification (Exhibits 1 & 2) and that the Foreclosure Sale was cancelled. 8. The foreclosure sale took place April 14, 2010, and the subject property was

acquired by a third party purchaser to wit: YEMC Construction & Development Inc.. LAW AND ARGUMENT 9. Florida Rule of Civil Procedure Section 1.540 gives relief from Judgement

decrees or orders if there is merit to the case, which there is in this case. The court may relieve a party or a partys legal representative from a final judgement, decree, order, or proceeding for the following reasons: i. ii. Mistake, inadvertence, surprise, or excusable neglect; Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party. The rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order, or proceeding or to set aside a

judgment or decree for fraud upon the court. 10. Although the Defendant, ELOY GARCIA, knew that a sale date would take place

on April 14, 2010, Defendant was informed by American Servicing Company that it was cancelled. 11. The Plaintiff filed a Motion for Default and subsequently it was denied. Based

upon this denial this Court did not have authority to grant the Final Judgement. Thus this Court should vacate the Final Judgement of Foreclosure and Set Aside the Certificate of Sale. WHEREFORE, it is respectfully requested that this Court sustain the Objection to Sale, set aside the Final Judgement of Foreclosure and/or Certificate of Sale; and enter such relief as this Court deems appropriate. I HEREBY CERTIFY, that a true and correct copy of the above and foregoing was on May 14, 2010 served by US mail and by fax upon Law Offices of David J.
Stern, 900 South Pine Island Road, suite 400, Plantation, FL 33324 and Arnaldo Velez, P.A., 35 Almeria Avenue, Coral Gables, FL 33134. ______________________________ Julio A. Nolla-Amado, Esq. 9825 S.W. 18th Street Suite 100 Boca Raton, FL 33428 954-246-9224 Florida Bar 562520