Details on Florida Attorney General Lawsuit Against Fidelity Land Trust, Ed Cherry, Larry Diodato and Others

Update – September 27, 2019

Today I received the following email purportedly on behalf of Paul Gellenbeck.

“We are respectfully at this time contacting you on behalf of our client Mr. Paul Gellenbeck, with respect to your URL posting as listed hereinbelow. We are at this time making a respectful request for you to REMOVE the URL. We are not attorneys. He has informed us that the content in the URL is slanderous, defamatory and not true material against him. He has a Copyright provision filed regarding these matters. The charges were dropped by the state attorney’s office and settled

https://getoutofdebt.org/53305/paul-gellenbeck-and-fidelity-land-trust-facing-criminal-contempt

https://getoutofdebt.org/62064/fidelity-land-trust-ed-cherry-issue-getting-bizarre

https://getoutofdebt.org/61366/more-florida-land-trusts-busted

The Hartford Land Trust Company, LLC & The Cambridge Land Trust Company, LLC – Consumer Complaint – 10-6-2012

https://getoutofdebt.org/46229/details-on-florida-attorney-general-lawsuit-against-fidelity-land-trust-ed-cherry-larry-diodato-and-others

We appreciate this initial opportunity to work with you and request your amicable cooperation in the resolution of this matter. Mr. Gellenbeck has expressed interest in retaining his attorney to file action if this cannot be resolved cordially and will seek monetary damages which could include legal fees, court costs, and punitive damages.

Generally speaking, we as the general public, believe your website gives very valuable information to the public at large and Mr. Gellenbeck wishes you no ill will.

We are sure, however, that you also understand that Mr. Gellenbeck has told us that he believes that he, on his own behalf, wishes to zealously protect and preserve his reputation. We are therefore making the request for your amicable assistance in this matter as Mr. Gellenbeck believes that it is not your intent to cause him any harm. We thank you for the opportunity to have reached out to you in this regard.

Govern yourself accordingly,”

I attempted to verify the claims made in the email above since I always strive to publish factual information.

On May 22, 2019, a document was filed in the Seventh Judicial Circuit Court in and for Broward County Florida. An attorney for Paul Gennenbeck filed the below document in court on his behalf.

Loader Loading...
EAD Logo Taking too long?

Reload Reload document
| Open Open in new tab

On May 23, 2019, a Report of Mediation document was filed with the court that indicates “the result of the Mediation” is Settled.

Loader Loading...
EAD Logo Taking too long?

Reload Reload document
| Open Open in new tab

I could not find any public document that provides facts regarding the mediation settlement.

Original Post – September 26, 2012

The following is additional information about the complaint filed against Edward Cherry, Lawrence Diodato, Paul Gellenbeck, Shane Frankovic, Anthony C. Pintsopoulos, The Fidelity Land Trust Company, LLC, The Sunshine State Land Trust Company, LLC, Florida Land Trust Services, LLC, Growth Capital Funding, LLC, August Belmont And Company, LLC, Esquire Litigation Support, LLC, Click Media Consulting, LLC doing business as Florida Home Rescue Mission and American Federal Trust, LLC, EsqLitigationSupport.Com, LLC, Zion Partners Irrevocable Trust, LLC, and Zion Partners Irrev Trust, LLC.

The Attorney Generals office says:

“The Broward County Circuit Court today ordered the defendants to immediately cease operations and freeze their assets.

“This mortgage relief scam targeted hundreds of distressed homeowners who were already facing financial hardship,” stated Attorney General Pam Bondi. “By obtaining a temporary injunction and asset freeze, we have stopped this company from preying on even more of Florida’s homeowners.”

An example of the allegedly misleading claims made by the company is that they would work with property owners who are currently in distress or upside down in their mortgage. The business claimed that they were the only ones that offered Florida homeowners the chance to refinance an upside down mortgage and regain equity in their homes by permanently cancelling or voiding the homeowners’ mortgages.

The temporary injunction bars the company from advertising for or providing services to Florida homeowners directly or indirectly by which the defendants claim to cancel or otherwise void previously recorded mortgages so that the mortgages are not enforceable against defendants or any other party because the mortgage assignments were not recorded.” – Source

The Complaint Filed

Defendant Edward Cherry organized The Fidelity Land Trust Company, LLC (“Fidelity”) and Growth Capital Funding, LLC (“GroWth Capital”) using the fictitious name “Edward C. Tudor”. Defendant Cherry organized EsqLitigationSupport.Com, LLC (“EsqLit”) using his given name, Edward Cherry. Defendant Cherry is a direct or indirect owner and/or manager and/or person in control of Defendants Fidelity, Growth Capital, August Belmont and Company, LLC (“August Belmont”), Esquire Litigation Support, LLC (“Esquire”) and EsqLit.

Defendant Cherry is not a licensed attorney in any State but is the person who devised or otherwise originated the quiet title scheme that is central to the Defendants’ acts and practices. Prior to the filing of this Complaint, Defendant Cherry filed for Chapter 7 Bankruptcy in the Southern District of Florida but the filing does not stay this enforcement action pursuant to ll U.S.C. § 362(b) because only equitable relief is sought against Cherry at this time.

Defendant Lawrence Diodato organized August Belmont and Esquire and is a direct or indirect owner and/or manager and/or person in control of Fidelity, August Belmont, Esquire and EsqLit.

Defendant Paul Gellenbeck is a direct or indirect owner and/or manager and/or person in control of Fidelity.

Defendant Shane Frankovic organized Defendant Click Media Consulting, LLC (“Click Media”) and is the direct or indirect owner and manager and person in control of Click Media.

Defendant Anthony C. Pintsopoulos organized Defendant American Federal Trust, LLC (“American Federal”) and is the direct or indirect owner and manager and person in control of American Federal.

Defendant Fidelity was organized under the laws of Florida on or about December 9, 20ll and maintains a principal place of business in Boca Raton, Florida. On or about June 29, 2012, Fidelity received notice from counsel for Fidelity National Financial, Inc. demanding that Fidelity cease and desist from use of the term “Fidelity” as an unauthorized use of intellectual property under federal law.

Defendants use The Sunshine State Land Trust Company, LLC (“Sunshine”) and/or Florida Land Trust Services, LLC (“Florida Land”) in their operations in place of Fidelity. Sunshine and Florida Land Were organized under the laws of Florida on or about June 19 and 22, 2012 respectively.

Defendant Growth Capital was organized under the laws of Florida on or about December 1, 2011 and maintains a principal place of business in Coral Springs, Broward County, Florida.

Defendant Zion Partners Irrevocable Trust, LLC (“Zion I”) was organized the laws of Florida on or about August 27, 2010 and maintains a principal place of business in Parkland, Florida. Zion 1 was administratively dissolved on September 23, 2011 for failure to file the annual report.

Defendant Zion Partners lrrev Trust L.L.C. (“Zion II”) was organized the laws of Florida on or about April 6, 2012 and maintains a principal place of business in Parkland, Florida.

Defendant August Belmont was organized under the laws of Florida on or about October 15, 2010 and maintains a principal place of business in Boca Raton, Florida.

Defendant Esquire was organized under the laws of Florida on or about September 23, 2010 and maintains a principal place of business in Boca Raton, Florida.

Defendant EsqLit was organized under the laws of Florida on or about July 15, 2011 and maintains a principal place of business in Boca Raton, Florida.

Defendant Click Media was organized under the laws of Nevada, was qualified to do business in Florida on or about March 16, 2011, maintains a principal place of business in Hallandale, Broward County, Florida and does business under the fictitious name Florida Home Rescue Mission (“Florida HRM”).

Defendant American Federal was organized under the laws of Florida on or about May 24, 2012 and maintains a principal place of business in Lauderdale-By-The-Sea, Broward County, Florida.

Subsequent to January 1, 2011, Defendants Cherry, Diodato, Gellenbeck, Frankovic and Pintsopoulos have participated directly, or indirectly through their affiliates, agents, servants, employees, or other representatives, in the unfair or deceptive acts and practices of the Defendants as set forth herein and/or control said acts and practices or have the authority to control them.

Subsequent to January 1, 2011, Defendants Cherry, Diodato, Gellenbeck, Frankovic and Pintsopoulos knew of and controlled the activities of the limited liability companies named as Defendants herein and/or other unnamed entities. Defendants Cherry, Diodato, Gellenbeck, Frankovic and Pintsopoulos have actual knowledge or constructive knowledge fairly implied on the basis of objective circumstances that said acts and/or omissions and the acts and/or omissions of the employees, affiliates, agents, managers and representatives of the limited liability companies named as Defendants herein and/or other unnamed entities as described below, are unfair or deceptive and/or prohibited by law.

Subsequent to January 1, 2011, the Defendants utilize the telemarketing and soliciting activities of third party lead generators or marketers to obtain clients for their business operation(s). The Defendants and/or their other unnamed entities or their affiliates, agents, servants, employees, or other representatives use communications technology to solicit or otherwise communicate with consumers.

Subsequent to January 1, 2011, Defendants make false promises and misrepresentations to consumers in order to induce consumers (a) to transfer title to their homes to Defendants for NO consideration, (b) to pay Defendants thousands of dollars in advance fees for services Defendants cannot deliver, and (c) to sign a promissory note to Defendants or their nominee for approximately 80% of the home’s current fair market value which note is secured by a mortgage in favor of the Defendants. Defendants’ unfair, deceptive and/or unconscionable acts and practices include but are not limited to the following:

  • Guaranteeing that Defendants will avoid the homeowner’s “upside-down mortgage” through actions pursuant to Chapter 65, Florida Statutes, so that at the end of a 120 day process the homeowner will have equity in the home;
  • Misrepresenting to homeowners that an assignment of mortgage is not good or effectual in law or equity against creditors or any subsequent purchasers unless the assignment of mortgage is recorded;
  • Misrepresenting to homeowners that the homeowner’s mortgage is not enforceable against the Defendants as a subsequent purchaser for a valuable consideration, notwithstanding the fact that Defendants do not pay any consideration to the homeowner for the deed transfer of title;
  • Misrepresenting to consumers that Defendants (or their nominees) are bona fide transferees for value of the title of the mortgagors (the homeowners) so that the mortgagees’ failure to record their assignments of mortgage under Chapter 701 voids the homeowners mortgages.
See also  Defendants in Dominican Mortgage Assistance Scam that Allegedly Defrauded Spanish-Speaking U.S. Homeowners Settle FTC Charges

Subsequent to January 1, 2011, Defendant Click Media provides marketing or otherwise solicits the homeowner for the Defendants by making representations such as the following:

Florida HRM is a licensed affiliate of the FidelityLand Trust Company. We work with property owners who are currently in distress or upside down in their mortgage. Fidelity currently offers the only option for Florida homeowners to refinance an upside down mortgage and regain equity in their home. With Fidelity your old mortgage is permanently cancelled or voided, and you are given a NEW mortgage set BELOW the current market value of the property, enabling you to finally regain the equity in your home and lower your monthly payments.
The process of issuing a new mortgage is executed by 3 primary entities:

\/ “The Muscle” – A team of powerful attorneys litigate the cases against the banks. They currently have hundreds of cases pending throughout the state of Florida. Of the 59 cases where final judgments have been rendered, our legal team has won all 59 of those cases and successfully assisted in the refinance process for 100% of our homeowners by cancelling their current mortgage.

\/ “The Mind” – Fidelity Land Trust Company serves as the trustee and acts on behalf of the homeowner. Fidelity currently serves as the corporate land trustee for over 250 homes in Florida with a total combined value of $45 million dollars. Fidelity Land Trust, as the trustee, acts as a “personal assistant” and a “bodyguard” of sorts.
The trustee hires the attomeys, executes deeds and mortgages, deals with the property at the direction of the beneficiary, and appears on public records to protect the privacy of the homeowner. The trustee cannot do anything with the home unless directed to do so by the BENEFICIARY. The homeowner 7

is the sole beneficiary of the land trust that is formed to protect the property.
\/ “The Money” – Capital Funding and private lenders provide the operating capital and financial support that is needed to litigate and complete the refinance process. Each new mortgage proceeding costs approximately $25 to 50 thousand dollars.

Florida HRM applicants are not required to pay this cost because it is covered by Capital Funding.

This is the entity that also executes the refinance and becomes the new lender.

Exhibit B, 1H[ 1 and 2 on page l of 4 attached hereto.

The Defendants’ solicitation concludes with this guarantee:

This is the only process that cancels an upside-down mortgage. When a home owner qualifies for a new mortgage, the old upside-down mortgage is legally quieted, cancelled, or voided and they are issued a new mortgage set below market value. At the end of this 120 day process you will have a new lender, a new fixed rate mortgage, lower monthly payments, and equity in your home.

Exhibit B, 1[ 3 on page l of 4 attached hereto.

No attorneys or law fimis are defendants to this action and the issues in this proceeding do not deal with the practice of law but rather with misrepresentations made to consumers by non-attorneys through or on behalf of business entities, which are not law firms for the purpose of trade or commerce.

Defendants’ representations are deceptive, misleading, and/or unconscionable because Defendants’ scheme does not affect the cancelation of a homeowner’s duly recorded mortgage.

Florida Statutes, Section 65.06l(2) provides in part:

When a person…not the rightful owner of land has any conveyance or other evidence of title…which may cast a cloud on the title of the real owner, or when any person…is the true and equitable owner of land the record title to which is not in the person…because of the defective execution of any deed or mortgage…when the person…claims title thereto by the defective instrument and the defective instrument was apparently made and delivered by the grantor…or when possession of the land has been held by any person…adverse to the record owner thereof or his or her heirs and assigns until such adverse possession has ripened into a good title under the statutes of this state, such person…may file complaint in any county in which any part of the land is situated to have the conveyance or other evidence of claim or title canceled and the cloud removed from the title and to have his or her title quieted

§ 65.06l(2), Fla. Stat. (emphasis added).

In contrast, Florida Statutes Section 697.02 establishes that a “mortgage shall be held to be a specific lien on the property therein described, and not a conveyance of the legal title or of the right of possession.” (emphasis added).

At all times material, the Defendants deceptively, unfairly and/or unconscionably solicit, market and advertise to homeowners in the State of Florida by falsely representing that Defendants can avoid “upside-down” mortgages and/or foreclosure by filing complaints to quiet title alleging Defendants are subsequent purchasers for valuable consideration in accordance with Florida Statutes Section 7Ol.02(l), (2).

Notably, Defendants are not lawyers or law firms and do not purport to directly provide legal services to the consumers.

ln making these deceptive, unfair and/or unconscionable representations, Defendants represent to consumers that they can cancel or otherwise void a distressed homeowner’s then current “upside-down” mortgage and replace it with a new affordable mortgage that has a lower principal and lower monthly payments.

Defendants deceptively, unfairly and/or unconscionably represent to consumers that a previously recorded mortgage is not enforceable and is void against consumers because the mortgage was assigned but the assignment was not recorded.

Despite the false and unsubstantiated basis of their claims, Defendants have misled numerous consumers within Florida since 2011 into using their foreclosure-related rescue scheme without providing to homeowners the required written agreements prescribed both in form and content by Florida Statutes Sections 5Ol.l377(3)(a)

Through this scheme, Defendants acquire title to the homeowner’s residence through a warranty or quitclaim deed which transfers the title of the residence to a trust or partnership or other entity created by and under the control of the Defendants. Defendants do not any make payment or give any consideration to the homeowner for the deed transfer of title.

Rather, the Defendants require the homeowner to pay them advance fees in the sum of $3500 or more at the time of the deed transfer, which advance payment violates the provisions of Florida Statutes Section 50l.l377(3)(b). In addition to the advance fee payments, the Defendants require the homeowner to sign a promissory note to Defendants or their nominee for approximately 80% of the home’s current fair market value which note is secured by a mortgage in favor of the Defendants.

Once the Defendants acquire title to the homeowner’s residence, Defendants engage counsel to file a complaint to quiet title seeking a declaration that the homeowner’s previously recorded mortgage is canceled or otherwise void. Counsel of record engaged by Defendants to file complaints to quiet title include Howard Feinmel and Peter J. Bowers, neither of whom is a defendant herein.

Defendants then serve process upon the homeowner’s original mortgagee who has transferred the mortgage but may have failed to record an assignment.

Once the process server has filed a return of service with the Circuit Court and the twenty day period for the filing of an answer has expired, the Defendants default the original mortgagee who was the named defendant in the Defendants’ complaint to quiet title but who had previously transferred the homeowner’s mortgage to another lender.

Once the Defendants have the default entered, the Defendants move the Court for default judgment declaring that the previously recorded mortgage on the homeowner’s residence is canceled or otherwise void. The Court thereupon enters the default judgment declaring that the previously recorded mortgage on the homeowner’s residence is canceled or otherwise void.

Defendants misrepresent to Florida homeowners that Defendants can cancel or otherwise void the homeowner’s previously recorded mortgage. See Exhibits C and D attached hereto for further examples of Defendants’ misrepresentations.

Defendants further deceptively, unfairly or unconscionably convince or otherwise deceive the homeowner into transferring the title for the homeowner’s residence to the Defendants for no consideration and requiring the homeowner to make advance payments to the Defendants, notwithstanding that the Florida homeowner remains liable on the homeowner’s underlying promissory note secured by the previously recorded mortgage.

In addition to Defendant Click Media, Defendants August Belmont, Esquire, EsqLit and American Federal solicit the homeowner and/or otherwise market the scheme to consumers.

Defendant Cherry agreed and executed a Consent Judgment Entering lnjunctive Relief with the Attorney General on January 5, 2009 which permanently enjoined him from directly or indirectly engaging in secured or unsecured consumer-debt related services. Exhibit E attached hereto. Defendant Cherry uses Defendants Zion l, Zion II, Esquire and/or EsqLit to hide his participation in the Defendants’ scheme and/or circumvent the permanent injunction.

See also  Bank of America Sues Fidelity Land Trust With Foreclosure Action

Cherry says he is employed by Defendants Zion I and/or Zion II which entity in turn has or have an oral employment agreement with Esquire. Although Cherry is a general partner of the partnership that owns Esquire, he denies knowing who owns Esquire.

Defendant Esquire Litigation Support, LLC was organized by Defendant Lawrence Diodato and the managing member is Esquire Litigation Support Partners. Defendant EsqLitigationSupport.Com, LLC was organized by Ed Cherry and the managing member is EsqLitigationSupport.Com Partners. Esquire Litigation Support Partners is a fictitious name owned by Defendants Edward Cherry and Lawrence Diodato as general partners.

Defendant Fidelity solicits the homeowner for the Defendants’ scheme and/or otherwise is a transferee of the homeowner’s deed.

Defendant Growth Capital is a holder of promissory notes from homeowners memorializing the homeowners’ debts to the Defendants in addition to the advance fees previously paid by the homeowners to the Defendants.

The Attorney General is authorized pursuant to § 50l.207(l)(a), Fla. Stat., to bring an action to obtain a declaratory judgment that an act or practice violates FDUTPA.

Defendants misrepresent to Florida homeowners that Defendants can acquire the title to the residences of the homeowners free and clear of the homeowners’ previously recorded mortgages and deceive the homeowners into paying thousands of dollars in advance fees and executing a promissory note and new mortgage in favor of Defendants, while the Florida homeowners remain liable on the homeowners’ underlying notes to lenders secured by previously recorded and enforceable mortgages.

The Attorney General contends that Defendants deceptively, unfairly and/or unconscionably represent to Florida homeowners that a previously recorded mortgage is not enforceable and is void against the Defendants or any other third party because the mortgage was assigned and/or transferred but the assignment was not recorded.

The Attorney General disputes the legal effect of the quiet title scheme that Defendants advocate and represent to homeowners under Chapter 65, Fla. Stat. as a mechanism effective to void the homeowners’ mortgage obligations to lenders. The Attomey General further contends that the scheme constitutes a violation of FDUTPA. The Attoniey General therefore seeks a Declaration from this Court as a matter of law as to whether the quiet title scheme that Defendants advocate and represent to homeowners constitutes an act or practice that violates FDUTPA.

Commencing on a date unknown, but at least subsequent to January l, 2011, Defendants have engaged in deceptive and/or unfair acts and practices by marketing, representing, and providing and/or offering foreclosure-related rescue services and/or foreclosure-rescue transactions to Florida consumers in violation of the prohibitions and/or requirements of Florida Statutes Section 501.1377, including but not limited to the advance fee prohibition and the requirement for a written agreement with a rescission period.

Commencing on a date unknown, but at least subsequent to January 1, 2011, Defendants have engaged in a systematic pattern of conduct designed and intended to induce consumers to purchase services from Defendants via a series of deceptive and/or unfair representations.

Defendants solicit or otherwise market and sell to financially distressed consumers foreclosure-related rescue services and/or foreclosure-rescue transactions as defined in Florida Statutes Section 5Ol.1377.

Defendants require consumers to pay upfront advance fees for services in violation of Section 501.1377. Defendants represent that the payment is “a prepayment of first 3 months P&I [i.e. principal and interest] and serves as the property owner’s proof of their ability to afford the new mortgage.” Exhibit B, 1] 2 on page 2 of 4 attached hereto. Furthermore, the homeowner has to pay $3500 or more “at closing,” i.e., at the time of deed transfer of the title from the homeowner to Fidelity. Exhibit B, 1] 2 on page 2 of 4 attached hereto.

Florida Statutes Section 501.203(3) establishes that a violation of FDUTPA may be based upon any of the following as of July 1, 2006: (a) any rules promulgated pursuant to the Federal Trade Commission Act; (b) the standards of unfairness and deception set forth and interpreted by the Federal Trade Commission or the federal courts; or (c) any law, statute, rule, regulation, or ordinance which proscribes unfair methods of competition, or unfair, deceptive, or unconscionable acts or practices.

Defendants offer, solicit or otherwise market foreclosure-related rescue services and/or foreclosure-rescue transactions to consumers in violation of Section 50l.l377, Fla. Stat.

Defendants’ violations of Section 501.1377 constitute per se violations of FDUTPA.

Subsequent to December 29, 2010, Defendants solicit, offer and/or render mortgage assistance relief services to Florida consumers in violation of 16 C.F.R. § 322.1 et seq., the Federal Trade Commission’s Mortgage Assistance Relief Services Rule.

WHEREFORE, the Attorney General requests that this Honorable Court:

A. DECLARE: (i) that the scheme perpetrated by Defendants in marketing and selling to consumers a theory for the quiet title complaints that Defendants file in the Circuit Courts of the State of Florida is not valid and is erroneous as a matter of law; (ii) that Defendants misrepresent to Florida homeowners the effect of complaints to quiet title Lmder Chapter 65, Fla.Stat. as a mechanism for avoiding foreclosure and/or mortgages greater than the home’s market value when there are no conflicting claims of title, only claims of title and mortgage lien(s); (iii) that Defendants misrepresent to consumers that Defendants can cancel or otherwise void a distressed homeowner’s previously recorded mortgage; (iv) that Defendants misrepresent that a previously recorded mortgage is not enforceable and is void against Defendants or any other party because the mortgage was assigned but the assignment was not recorded; and (V) that the foregoing constitute acts and practices that are unfair, deceptive and/or unconscionable in violation of FDUTPA.

Permanently ENJOIN Defendants Edward Cherry, Lawrence Diodato, Paul Gellenbeck, Shane Frankovic, Anthony C. Pintsopoulos, The Fidelity Land Trust Company, LLC, The Sunshine State Land Trust Company, LLC, Florida Land Trust Services, LLC, Growth Capital Funding, LLC, Zion Partners Irrevocable Trust, LLC, Zion Partners lrrev Trust L.L.C., August Belmont and Company, LLC, Esquire Litigation Support, LLC, EsqLitigationSupport.Com, LLC, Click Media Consulting, LLC doing business as Florida Home Rescue Mission and American Federal Trust, LLC, their officers, affiliates, agents, servants, employees, attorneys and those persons in active concert or participation with the them who receive actual notice of this injunction from engaging in, rendering, or otherwise providing services to Florida homeowners directly or indirectly by which Defendants claim to cancel or otherwise void previously recorded mortgages so that the mortgages are not enforceable against Defendants or any other party because the mortgage assignments were not recorded.

Permanently ENJOIN Defendants Edward Cherry, Lawrence Diodato, Paul Gellenbeck, Shane Frankovic, Anthony C. Pintsopoulos, The Fidelity Land Trust Company, LLC, The Sunshine State Land Trust Company, LLC, Florida Land Trust Services, LLC, Growth Capital Funding, LLC, Zion Partners Irrevocable Trust, LLC, Zion Partners lrrev Trust L.L.C., August Belmont and Company, LLC, Esquire Litigation Support, LLC, EsqLitigationSupport.Com, LLC, Click Media Consulting, LLC doing business as Florida Home Rescue Mission and American Federal Trust, LLC their officers, affiliates, agents, servants, employees, attorneys and those persons in active concert or participation with the them who receive actual notice of this injunction, from soliciting, advertising, representing or otherwise offering directly or indirectly to Florida homeowners services by which Defendants claim to cancel or otherwise void previously recorded mortgages so that the mortgages are not enforceable against Defendants or any other party because the mortgage assignments were not recorded.

Permanently ENJOIN Defendants Edward Cherry, Lawrence Diodato, Paul Gellenbeck, Shane Frankovic, Anthony C. Pintsopoulos, The Fidelity Land Trust Company, LLC, The Sunshine State Land Trust Company, LLC, Florida Land Trust Services, LLC, Growth Capital Funding, LLC, Zion Partners Irrevocable Trust, LLC, Zion Partners lrrev Trust L.L.C., August Belmont and Company, LLC, Esquire Litigation Support, LLC, EsqLitigationSupport.Com, LLC, Click Media Consulting, LLC doing business as Florida Home Rescue Mission and American Federal Trust, LLC their officers, affiliates, agents, servants, Zion Partners Irrevocable Trust, LLC, Zion Partners lrrev Trust L.L.C., employees, attorneys and those persons in active concert or participation with the them who receive actual notice of this injunction, from lecturing or otherwise disseminating information to the public, for the purpose of trade or commerce, on the mechanism, procedure and/or theory by which Defendants claim to cancel or otherwise void previously recorded mortgages so that the mortgages are not enforceable against Defendants or any other party because the mortgage assignments were not recorded.

AWARD such equitable or other relief as is just and appropriate pursuant to Section 501.207, Florida Statutes, including, but not limited to, disgorgement of ill gotten gain and repatriation of assets necessary to satisfy any judgment.

AWARD restitution to all consumers who are shown to have been injured, pursuant to Section 501.207, Florida Statutes.

ASSESS civil penalties in the amount of Ten Thousand Dollars ($l0,000.00) as prescribed by Section 50l.2075, Fla. Stat. or Fifteen Thousand Dollars ($15,000.00) for victimized senior citizens as prescribed by Section 501.2077, Fla. Stat. for each act or practice fotmd to be in violation of Chapter 501, Part Il, of the Florida Statutes.

AWARD attorneys’ fees and costs pursuant to Section 50l.2075, Fla. Stat. or as otherwise authorized by law.

Read the Full Complaint and Exhibits

You can read the full complaint and exhibits here.

36 thoughts on “Details on Florida Attorney General Lawsuit Against Fidelity Land Trust, Ed Cherry, Larry Diodato and Others”

  1. More nonsense from certified niwits!

    “Plaintiff’s basis for claiming ‘better title’ is that securitization somehow altered her obligation to pay her mortgage. This argument is unrecognized in the law.” HEROLD V. ONE WEST BANK (D. Nev. 9-29-2011).

    “A plaintiff cannot quiet title without discharging the mortgage debt. AGUILAR V. BOCI, 39 Cal.App.3d 475, 477 (1974) (“the cloud upon his title persists until
    the debt is paid”); KELLEY V. MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., 642 F.Supp.2d 1048, 1057 (N.D. Cal. 2009). TRUSTY V. RAY,
    249 P.2d 814, 817 (Idaho 1952) (“[a] mortgagor cannot without paying his debt quiet title as against the mortgagee”).

    “Plaintiff’s quiet title claim is based on the argument that, as a result of securitization, the trust deed has been split from the note and, therefore, the deed of trust should be declared a nullity. This Court has repeatedly rejected this argument. Recently, both the Utah Court of Appeals and the Tenth Circuit Court of Appeals have similarly rejected this claim. For the same reasons stated by all of these courts, this claim must be rejected.” WINN V. BANK OF AMERICA (D.Utah 1-4-2012).

    “A quiet title claim seeks to extinguish interests in the property in favor of the
    interest of the plaintiff. Here, Plaintiff is seeking to extinguish the Trust Deed.
    ‘To succeed in an action to quiet title to real estate, a plaintiff must prevail on the strength of his own claim to title and not the weakness of a defendant’s title or even its total lack of title.’ Plaintiff fails to assert her own claim to title. She does not allege that the Deed of Trust was not validly executed or that she is not in default under the note. Accordingly, the court rejects Plaintiff’s argument and dismisses this claim.” DOMINGO v. DIRECT MORTGAGE CORPORATION (D.Utah 9-21-2011).

    “quiet title is not a remedy available to the trustor until the debt is paid or tendered. Plaintiff has not paid the loan amount, nor has Plaintiff alleged that he is ready, willing and able to tender the full amount owed. See Farrell v. West, 114 P.2d 910, 911 (Ariz. 1941) (refusing to quiet title until and unless the plaintiff tenders the amount owed, as required in equity). Instead, Plaintiff asks this Court to invalidate the claims of the beneficiary under the deed of trust. The Court will not indulge this inappropriate use of an action to quiet title.

    “Plaintiff’s argument that the assignment to U.S. Bank was void, and that U.S. Bank and MERS are not beneficiaries fails to support Plaintiff’s claim for quiet title. As discussed above, an assignment of a deed of trust does not need to be recorded in order to be valid, and under the terms of the Deed of Trust, Plaintiff was not entitled to notice of any such assignment.” FRAME v. CAL-WESTERN RECONVEYANCE CORPORATION (D.Ariz. 9-2-2011).

    “This appeal requires us to interpret the statute governing judgments in quiet title actions. The statutory language is about as straightforward as such language ever gets: “The court shall not enter judgment by default. . . .” Entry of a default judgment against appellant HSBC Mortgage Services, Inc., and in favor of respondent Harbour Vista, LLC, in a quiet title action was error.” HARBOUR VISTA v. HSBC MORTGAGE SERV. INC., G044357 (Cal.App. 12-19-2011).

    Reply

Leave a Comment