U.S. Century Bank v.

8118 09-55849 CA 27
8118 Motion in Opposition to Plaintiff’s Motion for Issuance of Writ
Page 1

IN THE CIRCUIT COURT OF THE 11th JUDICIAL CIRCUIT

IN AND FOR MIAMI-DADE COUNTY, FLORIDA

U.S. CENTURY BANK,

Plaintiff CASE NO: 09-55849 CA 27

vs.

8118 HARDING AVENUE, LLC

et. al.
Defendant.
_________________________________________/

DEFENDANTS’ EMERGENCY MOTION IN OPPOSITION TO

PLAINTIFF’S MOTION FOR WRIT OF GARNISHMENT AFTER JUDGMENT, OR,
IN THE ALTERNATIVE, TO QUASH WRIT OF GARNISHMENT

NOW INTO COURT, through undersigned counsel, comes EMILIANO CALEMZUK,

(hereinafter “Calemzuk”) and files his DEFENDANTS’ EMERGENCY MOTION IN

OPPOSITION TO PLAINTIFF’S MOTION FOR WRIT OF GARNISHMENT AFTER

JUDGMENT, OR, IN THE ALTERNATIVE, TO QUASH WRIT OF GARNISHMENT,

pursuant to the authorities set forth below, and any other applicable law as the Court may deem

applicable, and states:

PRELIMINARY STATEMENT OF FACTS AND STANCE OF THE CASE

1. On or about____, 2010, Plaintiff obtained a Final Judgment of Foreclosure

against the Defendants in the instance case.

2. On or about____, 2010, Plaintiff, in the Final Judgment, elected as a remedy to

obtain satisfaction of Plaintiff’s Final Judgment and the indebtedness embodied therein against

Defendants’ to first seek recourse against the property, by scheduling the subject property to be

sold in a foreclosure sale.

3. On or about___, 2010, Plaintiff, in the Final Judgment, provided for the court’s

reservation and retention of jurisdiction with respect to pursuing some of the Defendants for any
U.S. Century Bank v. 8118 09-55849 CA 27
8118 Motion in Opposition to Plaintiff’s Motion for Issuance of Writ
Page 2

deficiency in satisfying the Final Judgment, after applying the proceeds of the foreclosure sale.

4. On or about__, 2010, Defendant 8118 Harding, LLC, sought protection under the

provisions of Chapter 11 of the Bankruptcy Court.

5. On or about____, 2010, the Bankruptcy Court granted Plaintiff conditional “stay

relief” to proceed with conducting a foreclosure sale of the property no earlier than July 9, 2010,

after Defendant 8118 Harding, LLC had an opportunity to rule on Defendant’s plan of

reorganization.

6. On or about___, 2010, Plaintiff filed a Motion rescheduling the foreclosure sale

of the property in the instant action for a date no earlier than July 9, 2010, in accordance with

the Bankruptcy Court Order.

7. On or about___, 2010, Plaintiff filed a Motion to Issue a Writ of Garnishment

after Judgment, directed against property of Defendant Emiliano Calemzuk.

8. The election made by Plaintiff in the Final Judgment of Foreclosure (Par. 5) to

have the property sold at a foreclosure sale and the proceeds thereof applied towards the

satisfaction of the Final Judgment, as renewed by its Motion to Reschedule the foreclosure sale

of the property for a date no earlier than July 9, 2010, constituted an election of remedies within

the meaning of the doctrine described below.

9. Plaintiff’s filing of a Motion for the Issue if a Writ of Garnishment after

Judgment against Emiliano Calemzuk’s property purports to request from the court the

adjudication of a remedy which is premature, contrary to the tenor of the election of remedies

made in the Final Judgment Foreclosure, and coexistent and inconsistent with the election of

remedies made by Plaintiff in the Final Judgment of Foreclosure (i.e., the sale of the property at

a foreclosure auction and the reservation and retention of jurisdiction in the court to entertain a

deficiency action against any of the individual Defendants and guarantors, for any unpaid

amounts after application of the proceeds of the sale to the amount of the Final Judgment), as
U.S. Century Bank v. 8118 09-55849 CA 27
8118 Motion in Opposition to Plaintiff’s Motion for Issuance of Writ
Page 3

well as a waiver of any unconditional rights (at least at this point) which Plaintiff may have had

under any of the loan documents, including any individual guaranties, to exercise and pursue

simultaneous remedies.

10. After having been aware and advised of Defendant’s protection under the “stay”

provisions of Chapter 11 of the Bankruptcy Code, and after having elected a remedy in the Final

Judgment consisting of seeking a sale of the property at a foreclosure auction, Plaintiff has

continued to pursue and propound discovery and remedies in aid of execution, unsupported and

inconsistent with Plaintiff’s elected remedy.

ARGUMENTS

11. Florida Rule of Civil Procedure 1.540(b) provides in pertinent part:

(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud;

etc. On motion and upon such terms as are just, the court may relieve a party or a party’s
legal representative from a final judgment, decree, order, or proceeding for the following
reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered
evidence which by due diligence could not have been discovered in time to move for a
new trial or rehearing; (3) fraud (whether heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse party; (4) that the judgment or
decree is void; or (5) that the judgment or decree has been satisfied, released, or
discharged, or a prior judgment or decree upon which it is based has been reversed or
otherwise vacated, or it is no longer equitable that the judgment or decree should have
prospective application. The motion shall be filed within a reasonable time, and for
reasons (1), (2), and (3) not more than 1 year after the judgment, decree, order, or
proceeding was entered or taken. A motion under this subdivision does not affect the
finality of a judgment or decree or suspend its operation. This 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.

12. To the extent that Plaintiff purports to show entitlement to the issuance of a writ

of Garnishment and to discovery in aid of execution, and to the extent that the court may have

entered motions for contempt or otherwise, or may have entered an order issuing a Writ of

Garnishment as requested by Plaintiff, relief is sought herein under any of the applicable

provisions of Rule 1.540(b) described above.

U.S. Century Bank v. 8118 09-55849 CA 27
8118 Motion in Opposition to Plaintiff’s Motion for Issuance of Writ
Page 4

13. To the extent that Plaintiff purports to show entitlement to the issuance of a writ

of Garnishment and to discovery in aid of execution, and to the extent that the court may have

entered motions for contempt or otherwise, or may have entered an order issuing a Writ of

Garnishment as requested by Plaintiff, relief is sought herein under any of the applications of the

election of remedies doctrine described below.

STANDARD FOR APPLICATION OF ELECTION OF REMEDIES DOCTRINE

14. The purpose of the election of remedies doctrine is to “prevent double recoveries

for a single wrong.” Liddle v. A.F. Doze, Inc., 777 So. 2d 421, 422 (Fla. 4th DCA 2000). The

Supreme Court described the parameters of the doctrine in Barbe v. Villeneuve, 505 So. 2d

1331, 1332-33 (Fla. 1987) (internal citations omitted):

The election of remedies doctrine is an application of the doctrine of estoppel and

operates on the theory that a party electing one course of action should not later
be allowed to avail himself of an incompatible course. Under Florida law,
however, the election of remedies doctrine applies only where the remedies in
question are coexistent and inconsistent. As this Court previously stated in
American Process Co. [v. Florida White Pressed Brick Co., 56 Fla. 116, 122-23,
47 So. 942, 944 (1908)]:

If the allegations of facts necessary to support one remedy are

substantially inconsistent with those necessary to support the other, then
the adoption of one remedy waives the right to the other. A party will not
be permitted to enforce wholly inconsistent demands respecting the same
right[s]. It is not permissible to both approbate and reprobate in asserting
the same right in the courts. . . . Where the law affords several distinct,
but not inconsistent, remedies for the enforcement of a right, the mere
election or choice to pursue one of such remedies does not operate as a
waiver of the right to pursue the other remedies. In order to operate as a
waiver or estoppel, the election must be between coexistent and
inconsistent remedies. . . . If more than one remedy exists, but they are not
inconsistent, only a full satisfaction of the right asserted will estop the
plaintiff from pursuing other consistent remedies. All consistent remedies
may in general be pursued concurrently even to final adjudication; but the
satisfaction of the claim by one remedy puts an end to the other remedies.

15. Barbe involved a plaintiff who pursued coexistent and inconsistent remedies.

The case involved competing claims to ownership of a yacht. The plaintiff recovered a judgment
U.S. Century Bank v. 8118 09-55849 CA 27
8118 Motion in Opposition to Plaintiff’s Motion for Issuance of Writ
Page 5

against the seller for civil theft of the purchase price of the vessel. Later, against the competing

owner, the plaintiff was awarded title to the yacht. The theft judgment was predicated upon the

assumption that the seller stole the purchase price from the plaintiff; the award of title assumed

that the seller received the purchase price in exchange for the yacht. Id. at 1333. The Supreme

Court held that this inconsistency triggered the election of remedies doctrine, so that the final

judgment on the theft precluded the plaintiff from seeking title to the boat from the competing

owner. Id. at 1332-33.

16. The two remedies in Barbe were inconsistent because the plaintiff “could not

logically assume to follow one without renouncing the other.” Klondike, Inc. v. Blair, 211 So.

2d 41, 42 (Fla. 4th DCA 1968).

17. Election of remedies is an application of the doctrine of estoppel on the theory

that one electing cannot later be permitted to avail himself or herself of an inconsistent course.

Williams v. Robineau, 124 Fla. 422, 168 So. 644 (1936); Hauser v. Van Zile, 269 So. 2d 396

(Fla. Dist. Ct. App. 4th Dist. 1972). Once an election of remedies is made, all inconsistent

remedies are thereafter barred regardless of whether or not the initial judgment is satisfied.

Barbe.

18. Where several inconsistent remedies are available, the choice of one necessarily

infers an election not to pursue the others, Barbe v. Villeneuve, 505 So. 2d 1331 (Fla. 1987);

Encore, Inc. v. Olivetti Corp. of America, 326 So. 2d 161, 18 U.C.C. Rep. Serv. 816 (Fla.

1976); State ex rel. Van Ingen v. Panama City, 126 Fla. 776, 171 So. 760 (1937); Buckley v.

City of Miami Beach, 559 So. 2d 310 (Fla. Dist. Ct. App. 3d Dist. 1990); Villeneuve v. Atlas

Yacht Sales, Inc., 483 So. 2d 67 (Fla. Dist. Ct. App. 4th Dist. 1986), decision approved, 505 So.

2d 1331 (Fla. 1987), and the court is without authority to grant both remedies. Bliss and

Laughlin Industries, Inc. v. Malley, 364 So. 2d 65 (Fla. Dist. Ct. App. 4th Dist. 1978).
U.S. Century Bank v. 8118 09-55849 CA 27
8118 Motion in Opposition to Plaintiff’s Motion for Issuance of Writ
Page 6

19. For purposes of determining whether election of remedies doctrine applies under

Florida law, remedies are only inconsistent where allegations of facts necessary to support one

remedy are substantially inconsistent with those necessary to support other. Sehringer v. Big

Lots, Inc., 532 F. Supp. 2d 1335 (M.D. Fla. 2007). For example, although under some

circumstances a foreclosure action where a deficiency is sought may not have a res judicata

effect on any subsequent action at law, while pending, a suit for foreclosure, including a prayer

for a deficiency judgment, is a bar to an action at law on the mortgage debt. Provost v. Swinson,

109 Fla. 42, 146 So. 641 (1933). Furthermore, when a foreclosure proceeding is brought against

a party personally liable for the mortgage debt, and the complainant asks for a personal

judgment for a deficiency which may exist after the foreclosure sale, the granting of his prayer is

discretionary, and the exercise of the power to grant such prayer involves in the main two

considerations: (1) whether the equity court, under the facts and circumstances of the case, will

enter upon the legal inquiry at all; (2) how far the equity court will in the equity suit deal with

the legal claim and allow it by way of a personal decree against the defendant. This latter phase

involves the decision of the chancellor as to whether the court of equity may conscientiously

under the facts and circumstances allow a judgment for the whole of the deficiency or permit

judgment to be taken only for a part or none of it. Id. at 4.

20. Where a party makes an election between inconsistent remedies, his or her action

is final, conclusive, and irrevocable and constitutes an absolute bar to any action, suit, or

proceeding inconsistent with that asserted by the election, Mendelson v. Mendelson, 341 So. 2d

811 (Fla. Dist. Ct. App. 2d Dist. 1977); Coronet Kitchens, Inc. v. Mortgage Mart, Inc., of St.

Petersburg, 146 So. 2d 768 (Fla. Dist. Ct. App. 2d Dist. 1962), even though the party fails in the

remedy he or she elected. Weeke v. Reeve, 65 Fla. 374, 61 So. 749 (1913); McKinnon v.

Johnson, 59 Fla. 332, 52 So. 288 (1910); United Companies Financial Corp. v. Bergelson, 573
U.S. Century Bank v. 8118 09-55849 CA 27
8118 Motion in Opposition to Plaintiff’s Motion for Issuance of Writ
Page 7

So. 2d 887 (Fla. Dist. Ct. App. 4th Dist. 1990); Coronet Kitchens, Inc. v. Mortgage Mart, Inc.,

of St. Petersburg, 146 So. 2d 768 (Fla. Dist. Ct. App. 2d Dist. 1962).

APPLICATION OF ELECTION OF REMEDIES STANDARD

21. Here, on or about February 11, 2010, Plaintiff prevailed at the hearing on

Plaintiff’s Motion For Final Summary Judgment. At the hearing, the Court found Defendants’

affirmative defenses legally insufficient and unsupported by the evidence adduced. In

furtherance thereof, Plaintiff drafted a Final Judgment of Foreclosure and submitted to the Court

for execution.

22. The Final Judgment of Foreclosure submitted and executed by the court read in

pertinent part: “5. Sale of the Property. If the grand total amount with interest at the rate

described in Paragraph 3 and all costs accrued subsequent to this judgment are not paid, the

Clerk of the Court shall sell the subject property at public sale on May 19, 2010 to the highest

bidder for cash, except as prescribed in Paragraph 6 […]”. .

23. The Final Judgment of Foreclosure submitted and executed by the Court read in

pertinent part: “12. Jurisdiction. The Court retains jurisdiction of this action to enter further

orders that are proper, including without limitation, writs of possession and deficiency

judgments” (emphasis provided).

24. Plaintiff’s inclusion of the language cited in Par. 22 above in the Final Judgment

clearly and irrevocably evinced Plaintiff’s decision and intent to exercise and pursue its right to

sell the property in the instant action at a foreclosure sale, apply the proceeds thereof towards

satisfaction of the Final Judgment.

25. Plaintiff’s inclusion of the language cited in Par. 23 above in the Final Judgment

clearly and irrevocably evinced Plaintiff’s decision and intent to exercise and pursue as its first

and sole remedy to sell the property in the instant action at a foreclosure sale, apply the proceeds

thereof towards satisfaction of the unpaid Final Judgment, and to further reserve and retain the
U.S. Century Bank v. 8118 09-55849 CA 27
8118 Motion in Opposition to Plaintiff’s Motion for Issuance of Writ
Page 8

jurisdiction of the court to entertain a deficiency action, in the event that the proceeds of the sale

were insufficient to discharge Defendants’ liability under the Final Judgment.

26. When read in toto, the foregoing statements evince an election of remedies within

the meaning of the authorities cited above. Specifically, Plaintiff’s factual allegations of electing

to seek the sale of the property at a foreclosure sale while alluding to the court’s retention of

jurisdiction to entertain a deficiency action are substantially inconsistent with the remedy sought

by Plaintiff (i.e., the issuance of a writ of garnishment against one of the Defendants), within the

meaning of Barbe. In fact, by seeking to garnish Defendant Emiliano Calemzuk’s property,

Plaintiff appears to be reneging on its elected remedy of selling the property first at a foreclosure

sale in order to apply the proceeds thereof to the satisfaction of the unpaid Final Judgment.

27. Plaintiff’s seeking to cause the property to be sold at a foreclosure sale and apply

the proceeds thereof towards satisfaction of the Final Judgment, while at the same time

purporting to fully recover preemptively from Defendant/guarantor Emiliano Calemzuk, prior to

the sale of the property represents an impermissible attempt at double recovery, within the

meaning of Liddle.

28. Plaintiff’s seeking to cause the property to be sold at a foreclosure sale and apply

the proceeds thereof towards satisfaction of the Final Judgment, while at the same time

purporting to fully recover preemptively from Defendant Emiliano Calemzuk, prior to the sale

of the property, represents a clear example of a party electing one course of action (i.e., sale of

the property at a foreclosure sale first) and then later seeking to avail himself of an incompatible

course (i.e., seeking to recover a deficiency against an individual defendant/guarantor) , which

should be estopped under the principles of Barbe.

29. The remedies sought by Plaintiff in the instant action (i.e., selling the property at a

foreclosure sale while seeking to recover from an individual defendant/guarantor prior to said

foreclosure sale) constitute co-existent and inconsistent remedies (i.e., Plaintiff could not seek to
U.S. Century Bank v. 8118 09-55849 CA 27
8118 Motion in Opposition to Plaintiff’s Motion for Issuance of Writ
Page 9

recover the full amount of the Final Judgment on the basis of a finding of a “deficiency” from

an individual defendant/guarantor, while at the same time rescheduling the property to be sold at

a foreclosure sale (as initially elected under the Final Judgment), within the meaning of

American Process Co.

30. The two remedies sought by Plaintiff in the instant case are inconsistent because

Plaintiff could not logically assume to follow one (i.e., recovering from an individual

defendant/guarantor) without renouncing the other (i.e., selling the property at a foreclosure sale

to apply the proceeds thereof towards satisfaction of the Final Judgment).

31. Further, Plaintiff’s election of a remedy (i.e., sale of the property at a foreclosure

sale as the means to seek satisfaction of the Final Judgment) bars any inconsistent remedies (i.e.,

seeking to first recover the full amount of the Final Judgment from an individual defendant prior

to the sale of the property at a foreclosure sale), regardless of whether or not the initial Final

Judgment is satisfied, within the meaning of Barbe.

32. Because Plaintiff’s election of remedies (i.e., the sale of the property at a

foreclosure sale as a means towards satisfaction of the Final Judgment) is inconsistent with

Plaintiff’s purported desire to fully recover first from (and contrary to Plaintiff’s first, elected

remedy) an individual defendant/guarantor, the choice of one infers an election not to pursue the

others, Barbe, and precludes the court from granting both remedies, within the meaning of Bliss

and Laughlin Industries.

33. Lastly, Plaintiff’s assertion that the foundation of the issuance of the Writ of

Garnishment against Defendant/guarantor Emiliano Calemzuk’s property is predicated upon

“information and belief that the defendant has no property in the state” (Par. 2 of Plaintiff’s

Motion for Writ of Garnishment After Judgment) is unfounded, inaccurate and unsupported by

any evidence. Contrary to Plaintiff’s assertions and representations to the court in the Motion for

the Writ of Garnishment, Plaintiff is well aware that the Defendant, Emiliano Calemzuk, owns
U.S. Century Bank v. 8118 09-55849 CA 27
8118 Motion in Opposition to Plaintiff’s Motion for Issuance of Writ
Page 10

an interest in several entities in the State of Florida, other individually held real estate (as

evidenced in the public records), including an interest in the entity which owns the real estate

property subject of (and collateral to Plaintiff’s Final Judgment) the instant action. Thus,

Defendant requests that the Court strikes any such assertions and representations as unsupported

by the evidence.

WHEREFORE, Defendant respectfully requests that the Court deny Plaintiff’s Motion

For Writ of Garnishment After Judgment, or, in the alternative, that the Court quashes the

issuance of any such writs, and further vacate any orders or decrees purporting to impose any

obligation upon any Defendants to produce any items of discovery, and any sanctions or

penalties which may have been imposed, or which may be sought in the future, for the reasons

set forth above.

I HEREBY CERTIFY that a true and accurate copy of the above has been furnished by

U.S. Mail this 26th day of April, 2010, to: Alfonso Perez, Esq. at Rasco Klock Reininger Perez

Esquenazi Vigil & Nieto, at 238 Catalonia Avenue, Coral Gables, Florida 33134.

LAW OFFICES OF OSCAR GRISALES-

RACINI, P.A.

2999 N.E. 191st Street

Concorde Centre II, PH-8
Aventura, Florida 33180
(305) 792 - 0439 Telephone
(305) 792 - 4919 Facsimile

By:___________________________________
OSCAR GRISALES-RACINI
Counsel for Defendants
Florida Bar No.: 0137782