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Case 10-42231-AJC Doc 11 Filed 11/16/10 Page 1 of 22

In re:

UNITED STATES BANKRUPTCY COURTSOUTHERN DISTRICT OF FLORIDAMIAMI DIVISIONwww.tlsb.uscourts.govCase No. 10-42231-AJC

POITIER FUNERAL HOME, INC., Chapter 7Debtor.

MOTION OF CREDITOR, DANIEL LUSHAN, FOR RELIEFFROM AUTOMATIC STAY

ANY INTERESTED PARTY WHO FAILS TO FILE ANDSERVE A WRITTEN RESPONSE TO THIS MOTIONWITHIN 14 DAYS AFTER THE DATE OF SERVICESTATED IN THIS MOTION SHALL, PURSUANT TOLOCAL RULE 4001-1(C), BE DEEMED TO HAVECONSENTED TO THE ENTRY OF AN ORDER GRANTINGTHE RELIEF REQUESTED IN THE MOTION.

Creditor, DANIEL LUSHAN ("Lushan"), by and through undersigned counsel andpursuant to 11 U.S.C. 362 and Rule 4001 of the Federal Rules of Bankruptcy Procedure, filesthis Motion for Relief from Automatic Stay (the "Motion") and requests relief from the stayagainst Debtor, POITIER FUNERAL HOME, INC., to enable Lushan to proceed with thepending foreclosure sale in state court:

1. This Court has jurisdiction over this proceeding pursuant to 28 U.S.C.157(b)(2)(G) and 1334, and 11 U.S.C. 362. Venue is proper pursuant to 28 U.S.C. 1408.

2. On August 10, 2009, Lushan commenced a state court action against Bernard C.Poitier ("Poitier"), Debtor, POITIER FUNERAL HOME, INC. ("Debtor" or "Poitier FuneralHome"), and Charles L. Haywood to foreclose his mortgage lien on certain real property locatedin Miami-Dade County, Florida (the "Poitier Property").

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3. While Poitier is the only obligor under the attached Promissory Note (Exhibit 1)and Mortgage (Exhibit 2), Debtor, as a tenant on the Poitier Property, was named as a defendantin said state court action styled Lushan v. Poitier, case no. 09-58930-CA-23.

4. On June 17, 2010, Lushan obtained a Final Judgment of Foreclosure, attachedhereto as Exhibit 3, and he was found to be due from Poitier $501,000 in principal, $82,370.41in interest to and including the date of the Final Judgment, $2,224.75 in title search and othercosts, and $2,765.00 in attorneys' fees, totaling at $683,915.05 (the "Judgment Amount"), whichamount does not include the interests and fees/costs that have accrued since the entry of the FinalJudgment of Foreclosure.

5. The initial foreclosure sale of the Poitier Property was set for September 1, 2010,and just two weeks before the scheduled sale, on August 17, 2010, Poitier filed a Chapter 13Voluntary Petition under case no. 10-34158-AJC.

6. Lushan asserted that Poirier's Chapter 13 Petition constituted a "bad faith filing"and was granted stay relief on an emergency basis on August 31, 2010, but the foreclosure salecould not be reinstated in time. Meanwhile, Poitier never filed any Schedules, Plans, Statementsof Financial Affairs or Monthly Income, or any other required documents to support his Chapter13 Petition, and that case was accordingly dismissed with prejudice on October 15, 2010.

7. The foreclosure sale of the Poitier Property was rescheduled for October 22, 2010.And that morning-on October 22, 2010-Poitier Funeral Home filed a Chapter 7 VoluntaryPetition [ECF No. 1] and caused the foreclosure sale to be cancelled once again.

8. To be clear, Debtor currently has no claim or interest in the Poitier Property asany claim or interest in Debtor's capacity as a tenant has been foreclosed upon, and it also has no

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submitted in an abundance of caution, Lushan believes and asserts in good faith that subjectforeclosure action is not actually stayed under 11 U.S.C. 362 by the commencement of thiscase and that Poitier Funeral Home lacks standing to enforce the automatic stay to prevent theforeclosure sale from proceeding forward.

9. Additionally, Lushan seeks an order of this Court directing that no furtherbankruptcy filing by Poitier, Poitier Funeral Homes, or any of their affiliates shall serve toautomatically stay the foreclosure proceeding in Lushan v. Poitier, case no. 09-58930-CA-23.

WHEREFORE, Daniel Lushan respectfuJJy requests that this Court: (1) grant full andcomplete relief from the automatic stay pursuant to 11 U.S.C 362, so that Lushan mayprosecute through completion the foreclosure action in Lushan v. Poitier, case no. 09-58930-CA-23; (2) waive the requirements of Rule 4001(a)(3) of the Federal Rules of Bankruptcy Procedureand allow the stay relief order to be effective immediately upon the entry of such order; (3) directthat no further bankruptcy filing by Poitier, Poitier Funeral Homes, or any of their affiliates shallserve to automatically stay the foreclosure proceeding in Lushan v. Poitier, case no. 09-58930-CA-23; and (4) grant such further relief as this Court deems just and proper.

Dated: November 16, 2010.RICE PUGATCH ROBINSON & SCHILLER, P.A.Attorneys for Daniel Lushan101 Northeast Third Avenue, Suite 1800Fort Lauderdale, Florida 33301Telephone No.: (954) 462-8000Facsimile No.: (954) 462-4300By: s/Craig A. Pugatch

CRAIG A. PUGATCHFlorida Bar No.: 653381EUNK. CHANGFlorida Bar No.: 58359

J:\WPDocs\4339 Mamann\003 Poi tier Funeral Home, lnc\Pleadings\Motion for Stay Relief.docx

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Case 10-42231-AJC Doc 11 Filed 11/16/10 Page 4 of 22'$501,000.00 June 16, 2006Palm Beach County, Florida

PROMISSORY NOTE

FOR VALUE RECEIVED, the undersigned BERNARD C. POITIER, (the"Maker") promises to pay to DANIEL LUSHAN his successors or assigns (the "Payee''),in the manner hereinafter specified, the principal sum of FIVE HUNDRED ONETHOUSAND AND N0/100 DOLLARS, ($501,000.00) with interest from date at the rateof THIRTEEN percent (13%), per annum, on the balance from time to time remainingunpaid. The said principal and interest shall be payable in lawful money of the UnitedStates of America at 7532 Valencia Drive, Boca Raton, Florida 33433, or at suchplace as may hereafter be designate in written notice from the holder to the Makerhereof, on the date and in the manner following:

Terms of Payment: One year's interest of $65,130.00 shall be paid in advanceat closing. The balance shall be paid Interest only due and payable in arrears in equalmonthly installments of Five Thousand Four Hundred Twenty-seven and 50/100($5,427 .50) on the 16th day of the month for 48 consecutive months beginning7/16/2007 untiiG/16/2011 at which time the entire remaining principal balance and allaccrued and unpaid interest shall be due and payable.The Maker may pre-pay this Note at any time but if paid during the first year the

lender shall be entitled to retain the prepaid first year's interest ($65,130.00) as a prepayment penalty.Conformity To Usury Laws: It is the intention of the Maker and Payee to

confc;>rm strictly to the usury laws from time to time in force, and the terms of this Noteare hereby expressly so limited. Under no circumstances shall any amount paid,agreed to be paid, or deemed to have been paid to Payee for the use, forbearance ordetention of money loaned exceed the maximum amount permissible under applicableusury laws. If any payment exceeds or is deemed to exceed applicable usury laws, thenthe payment shall be reduced to the highest rate permitted by the usury laws . Thatportion of any amount received by Payee which would otherwise exceed the highestrate permitted by the usury laws shall be applied to the reduction of the Debt. If theexcess exceeds the unpaid balance of the Debt, any remaining excess shall be deemedto have been a payment made by mistake and shall be promptly refunded to Maker.The terms and provisions of this paragraph shall control and supersede every otherprovision of this Note.

EXHIBIT1 j l

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Method Of Payment: Payments shall be made by hand delivery against receipt,or by postage prepaid mail, to the Payee at the above address or at such other addressas shall be provided to the Maker in writing by the Payee.VENUE: This Note shall be construed and enforced according to the laws of theState of Florida . The venue of any action to enforce this Note shall be in the courts ofDade County, Florida.If default be made in the payment of any of the sums or interest mentionedherein or in said Mortgage, or in the performance of any of the agreements containedherein or in said Mortgage, then the entire principal sum and accrued interest shall, atthe option of the holder, hereto become at once due and collectible without notice, timebeing of the essence; and said principal and accrued interest shall both bear interestfrom such time until paid at the highest rate allowable under the laws of the State ofFlorida. Failure to exercise this option shall not constitute a waiver of the right toexercise the same in the event of any subsequent default.COLLATERAL AS SECURITY FOR PAYMENT: As security for the prompt

payment as and when due of the debt (including any renewals, extensions and/ormodifications hereof) and of any other sums due to the Payee from the Maker or anyGuarantor, in addition to an"y other security agreement or document granting the Payeeany rights in any of the property of the Maker or any Guarantor, for the purpose ofsecuring the Debt and other payments and performances required under this Note andthe Loan Documents, Maker hereby gives to the Payee the following (all of which arereferred to as the "Collateral"), and does hereby represent and warrant that it has titleto the Collateral, that it has authority to provide the following security to Payee, and thatthe provision of the following security does not violate any law, regulation, oragreement:This Note with interest is secured by a mortgage on real estate, of even dateherewith, made by the Maker hereof in favor of the said Payee all as more fully set forthin the Mortgage dated even date herewith, given by Maker to Payee, the terms andconditions of which are incorporated herein in their entirety, as if set forth at length. Inconnection with the Mortgage, Maker shall provide to the Payee an Affidavit of Title ofMortgagor and a policy of Title Insurance insuring the Payee's position as holder of thefirst mortgage. Payee shall have the right to inspect this Collateral, upon reasonablenotice, from time to time.WAIVER OF FORMALITIES: Maker hereby waives the right to require Payee todemand payment ("Presentment"), the right to require Payee to provide notice ofnonpayment ("Notice of Dishonor") and the right to require Payee to obtain an officialcertified statement showing nonpayment ("Protest").In the event any installment is not paid on or before the due date, an amountequal to five (5%) percent of the monthly payment shall be due as a late fee.

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Each person liable hereon whether Maker or endorser, hereby waivespresentment protest, notice, notice of protest and notice of dishonor and agree to pay allcosts including a reasonable attorney's fee, whether suit be brought or not, if, aftermaturity of this note or default hereunder, or under said mortgage, counsel shall beemployed to collect this note or to protect the security of said mortgage.Whenever used herein the terms "holder", "maker" and "payee" shall beconstrued in the singular or plural as the context may require or admit.The entire principal balance plus any accrued unpaid interest shall be due andpayable upon the sale or transfer of the subject property.

Maker's Address:If'S:; --n L-

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Prepared by:Stephen A. Schorr, EsquireRECORD AND RETURN TOBANKERS TITLE COMPANY2424 NORTH F E D E R A L ~ I&IQE-800A flATON.FL33431

MORTGAGE

I 1111111111 11111111111111111111111111111CFN 2 0 0 6 R 0 7 1 5 4 1 2OR Bk 24684 Pss 2240 225ot ( 1RECORDED 06/30/2006 15:57:50MTG DOC TAX 1t753.50

I N T M ~ G TAX 1t002.00HARVEY RUVHh CLERK OF COURTMIAMI -DADE comny, FLORIDA

THIS MORTGAGE, (sometimes referred to as "Security Instrument") is made onJune 16, 2006 by: BERNARD C. POtTIER; (Borrower or Mortgagor), whose addressis: 2321 NW 62nd Street, Miami, Florida 33142; and for consideration paid, is grantedto Daniel Lushan (Lender or Mortgagee), Address: 7532 Valencia Drive, Boca Raton,Florida 33433, with the mortgage covenants set forth herein to secure the payment ofthe principal sum of FIVE HUNDRED ONE THOUSAND DOLLARS and xx/1 00($501,000.00). This indebtedness is evidenced by Borrower's Promissory Note and/orGuaranty of even date herewith (herein "Note"), providing for installments at the times,in the manner and with interest as set forth within said Note. The property encumberedis legally described as follows:

SEE EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF

Together with all the improvements now or hereafter erected on the property, andall easements, rights, appurtenances, rents, royalties, minerals, oils and gas rights andprofits, water, water rights, and water stock, and all fixtures now or hereafter attached tothe property, all of which, including replacements and additions thereto, shall bedeemed to be and remain a part of the property covered by this Mortgage; and all of theforegoing, together with said p r o p ~ r t y (or the leasehold estate of the Mortgage is on aleasehold) are herein referred to as the "Property."Borrower(s) covenants that the Borrower(s) are lawfully seized of the Estatehereby conveyed and have the right to mortgage, grant and convey the Property, andthat Borrower(s) will warrant and defend generally the title to the Property against allclaims and demands, subject to any declarations, easements or restrictions listed in aschedule of exceptions to coverage in any title insurance policy insuring Lender'sinterest in the Property.Uniform Covenants. Borrower(s) and Lender covenant and agree as follows:1. Payment of Principal and Interest . Borrower(s) shall promptly pay whendue the principal of and interest on the indebtedness evidenced by the Note,prepayment and late charges as provided in the Note, and the principal of and intereston any future advances secured by this Mortgage.

EXHIBIT

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2. Charges; Liens. Borrower(s) shall pay all taxes, assessments and othercharges, fines and impositions attributable to the Property which may attain a priorityover this Mortgage, and leasehold payments or ground rents, if any, when due.3. Application of payments. Unless applicable law provides otherwise, allpayments received by the Lender shall be applied first to any prepayment charges dueunder the note, if applicable; second, to amounts advanced or paid by the Lender onbehalf of the Borrower; third, to interest; fourth to principal; and fifth to late charges dueunder the note.4. Hazard Insurance. Borrower(s) shall keep the improvements nowexisting or hereafter erected on the property insured against loss by fire, flood,windstorm, hazards included within the term ~ ~ e x t e n d e d coverage" and such otherhazards as Lender may require, provided that Lender shall not require that the amount

of such coverage exceed that amount of coverage required to pay the sums secured bythe Mortgage.All insurance policies and renewals thereof shall be in form acceptable to Lender

and shall include a standard mortgagee clause (additional insured) in favor of and inform and amount acceptable to Lender. Lender shall have the right to hold the policiesand renewals thereof, and Borrower(s) shall promptly furnish to Lender all renewalnotices and all receipt of paid premiums. In the event of loss, Borrower(s) shall giveprompt notice to the insurance carrier and Lender. Lender may make proof of loss if notmade promptly by Borrower(s).Unless Lender and Borrower(s) otherwise agree in writing insurance proceedsshall be applied to restoration or repair of the Property damaged, provided suchrestoration or repair of the Property damaged, provided such restoration or repair iseconomically feasible and the security of this Mortgage is not thereby impaired. If such

restoration or repair is not economically feasible or if the security of this Mortgage wouldbe impaired, the insurance proceeds shall be applied to the sums secured by thisMortgage, with the excess, if any, paid to Borrower(s). If the Property is abandoned byBorrower(s), or if Borrower(s) fail to respond to Lender within thirty (30) days from thedate notice is mailed by Lender to Borrower(s) that the insurance carrier offers to settlea claim for insurance benefits, Lender is authorized to collect and apply the insuranceproceeds at Lender's option either to restoration or repair of the Property or to the sumssecured by this Mortgage.Unless Lender and Borrower(s) otherwise agree in writing any such application ofproceeds to principal shall not extend or postpone the due date of the monthlyinstallments referred to in Paragraph 1 hereof or change the amount of such

installments.5. Taxes and Other Charges. The Borrower(s) shall pay, when due andpayable and before interest or penalties accrue, all taxes, assessments, water andsewer rents, and other charges or claims that may be assessed, levied, or filed at any

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time against the Borrower(s), against all or any part of the Mortgaged Property, oragainst the interest of the Lender in the Mortgaged Property; or that, by any present orfuture law, may have priority over the indebtedness secured by this Mortgage either inlien or in distribution out of the proceeds of any judicial sale. The Borrower(s) shallproduce receipts for payment of these. amounts to the Lender not later than the paymentdates. If the Borrower(s), in good faith and by appropriate legal action, contests thevalidity or amount of any item and establishes for payment a reserve, in the amount theLender requires and either in the Borrower(s) books or by depositing cash with theLender, as the Lender may elect, then the Borrower(s) shall not be required to pay theitem or to produce the required receipts while the reserve is maintained and for so longas the contest prevents collection is maintained, prosecuted with diligence, and has notbeen terminated or discontinued adversely to the Borrower(s). Mortgagor may berequired to establish a monthly escrow payment to cover the anticipated cost of taxesand insurance.6. Preservation and Maintenance of Property. Borrower(s) shall keep theProperty in good repair and shall not commit waste or permit impairment or deterioration

of the Property and shall comply with the provisions of any lease if this Mortgage is on aleasehold.

7. Protection of Lender's Security. If Borrower(s) fail to perform thecovenants and agreements contained in this Mortgage, or if any action or proceeding iscommenced which materially affects Lender's interest in the Property, including, but notlimited to, eminent domain, insolvency, code enforcement, or arrangements orproceedings involving a bankrupt or decedent, then Lender at Lender's option, uponnotice to Borrower(s), may make such appearances, disburse such sums, and takesuch action as is necessary to protect Lender's interest, including, but not limited to,disbursement of reasonable attorney's fees and entry upon the Property to makerepairs.Any amounts disbursed by Lender pursuant to this paragraph 7, with interestthereon, shall become additional indebtedness of Borrower(s) secured by thisMortgage. Unless Borrower(s) and Lender agree to other terms of payment, suchamounts shall be payable upon notice from Lender to Borrower{s) requesting paymentthereof, and shall bear interest from the date of disbursement at the rate payable fromtime to time on outstanding principal under the Note unless payment of interest at suchrate would be contrary to applicable law, in which event such amounts shall bearinterest at the highest rate permissible under applicable law. Nothing contained in thisParagraph 7 shall require Lender to incur any expense or take any action hereunder.8. Inspection. Lender may make or cause to be made reasonable entries

upon and inspection of the Property, provided entries upon and inspection of theProperty, provided that Lender shall give Borrower(s) notice prior to any such inspectionspecifying reasonable cause ,therefore related to Lender's interest in the Property.

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9. Borrower(s) Not Released. Extension of the time for payment ormodification of amortization of the sums secured by this Mortgage granted by Lender toBorrower and successor in interest of Borrower(s) shall not operate to release, in anymanner, the liability if the original Borrower(s) and Borrowers' successors in interest.Lender shall not be required to commence proceedings against such successor orrefuse to extend time for payment or otherwise modify amortization of the sums securedby this Mortgage by reason of any demand made by the original Borrower(s) andBorrowers' successors in interest.10. Forbearance by Lender Not a Waiver . Any forbearance by the Lender

in exercising any right or remedy hereunder, or otherwise afforded by applicable Jaw,shall not be a waiver of or preclude the exercise of any such right or remedy. Theprocurement of insurance or the payment of taxes or other liens or charges by theLender shall not be a waiver of Lender's right to accelerate the maturity of theindebtedness secured by this mortgage.11. Remedies Cumulative. All remedies provided in this Mortgage aredistinct and cumulative to any other right or remedy under this Mortgage or afforded by

law or equity and may be exercised concurrently, independently or successively.12. Successors and Assigns Bound; Joint and Several Liability;Captions. The covenants and agreements herein contained shall bind, and the rightshereunder shall inure to the respective successors and assigns of the Lender andBorrower(s). All covenants and agreements of Borrower(s) shall be joint and several.The captions and headings of the paragraphs of this Mortgage are for convenience onlyand are not to be used to interpret or define the provisions hereof.13. Notice. Except for any notice required under applicable law to be given inanother manner, (a) any notice to Borrower(s) provided for in this Mortgage shall begiven by mailing such notice by certified mail addressed to Borrower(s) at the propertyaddress or such other address as the Borrower(s) may designate by notice to theLender as provided herein, and (b) any notice to the Lender shall be given by certifiedmail, return receipt requested, to Lender's address stated herein or to such otheraddress as the Lender may designate to the Borrower(s) as provided herein. Anynotices provided for in this Mortgage shall be deemed to have been given toBorrower{s) or Lender when given in the manner designated herein.14. Alienation of Property. In the event that the Property, or any part thereofis sold, transferred, conveyed, mortgaged, or changes are made in the Trustees orbeneficial ownership of the entity holding title to the Property, or the Property isotherwise voluntarily encumbered, without the written consent of the Lender, the entire

unpaid balance shall become due and payable at the option of the Lender.15. Assignment of Rents; Lender in Possession. As additional securityhereunder, Borrower(s) hereby assign(s) to Lender, the rents of the Property, providedthat Borrower(s) shall, prior to default hereunder or abandonment of the Property, have

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the right to coliect and retain such rents as they become due and payable; provided,however, that Borrower shall hold in trust for Lender from the Rents and all sumsreceived, sufficient funds to discharge all current sums due under the Note or thisMortgage.Upon default hereunder or abandonment of the Property, Lender shall be entitledto enter upon, take possession of and manage the Property and to collect the rents of

the .Property, including those past due. All rents collected by the Lender shall be firstapplied to payment of the costs of management of the Property and collection of rents,including, but not limited to, reasonable attorney fees and then to the sums secured bythis Mortgage and evidenced by promissory notes stating that said notes are secured bythis Mortgage.16. Future Advances. For the purposes permitted by applicable law andupon the request of the Borrower(s), Lender, at Lender's option, prior to the release ofthis Mortgage, may make future advances so that the total amount so increased mayequal up to two hundred percent (200%) of the initial indebtedness hereunder withinterest thereon, which advances shall be secured by this Mortgage and evidenced by

promissory notes stating that said notes with such increased amount are secured bythis Mortgage.17. RELEASE PRICE FOR PARCEL- PARCEL ONE: PCN 30-3115-026-0010Lots 1, 2, 3, 4, 5, 6, 7 & 8, Less the South 10 feet thereof in Block 1, RESUBDIVISION OF ORANGERIDGE PARK, according to the Plat thereof, as recorded in Plat Book 12, Page 18, of the Public Records

of Dade County, Florida.Borrower acknowledges that in order to induce lender to release the abovedescribed parcel from the lien of this mortgage, that a pre-payment of principal in theamount of $100,000.00 will be necessary.18. THE TERMS OF THE PROMISSORY NOTE SECURED BY THIS

MORTGAGE ARE AS FOLLOWS:A. PRINCIPAL AMOUNT BORROWED: $501 ,000.00B. RATE OF INTEREST: 13%C. PERIOD OF LOAN: FIVE (5) yearsD. PERIODIC DUE DATE OF INTEREST: One year in advance atclosing. Balance payable on 16th day of each month beginning 7/16/07.E. INTEREST ONLY PAYMENT: $5,427.50F. PRE-PAYMENT PENALTY (first year) $65,130.00G. PRINCIPAL DUE WITH 48th PAYMENT OF INTEREST ON 6/16/201119. Conformity to Usury Laws: Lender shall not be entitled to receive anypayment of interest which exceeds the maximum interest allowable under the laws ofthe State of Florida, as such laws may be amended or modified from time to time. IfLender determines that he has charged or received interest in excess of the amountallowed by law, Lender shall notify Borrower(s) of that fact, determine the amount of anyovercharge received, together with interest on the overcharge at the maximum lawful

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rate at the time the excess interest was taken, and have said amount deducted fromprincipal balance.20. Environmental hazards. The Borrower has an environmental survey ofthe Property and is satisfied with the results. Under no circumstances shall .any furtherenvironmental defects, whether or not present and discovered, be a defense to paymentor cause for set off. Borrower's sole remedy shall be against the engineer that

performed the environmental survey.21. Default: The Lender may take certain actions against the Borrower uponthe occurrence of an Event of Default. The Events of Defaults are as follows:

a. Nonpayment: If any payment of the Debt is not made when due.b. Breach Of Promise; Cross Defaults: The breach of any promisemade in the Note or in this Mortgage. The terms of the Note are incorporated herein intheir entirety, as if set forth at length. Any Event of Default in this Mortgage is an Event

of Default in the Note. Any Event of Default in the Note is an Event of Default in this Mortgage.

c. Material Misrepresentation: The making of any promise,representation, covenant or warranty in this Mortgage or in any document issued by theBorrower in connection with this Mortgage that was materially false when made or whenfunds were advanced hereunder.d. Change In Ownership Of Property And Of Borrower: Any saleor transfer or other change in the legal or equitable ownership of the Property. A lease

of the Property in excess of six (6) months will constitute a transfer of ownership of theProperty unless Lender's written consent is obtained. A change of more than fifty (50%)percent of the ownership of the Borrower (whether such change occurs in one or moreseparate transfers or by the issuance of additional shares of stock of the Borrower) willconstitute a change in ownership. A change resulting from the death of Borrower'sshareholders will not be considered a change of ownership.e. Assignment/Delegation: Any purported assignment of rights ordelegation of duties by the Borrower.f. Entry Of Judgment; Levy, Etc.: The entry of any judgmentagainst the Borrower which remains unsatisfied for thirty (30) days, or the issuing of anyattachment, levy or garnishment against any of the Collateral.g. Dissolution, Merger, Etc.: The dissolution, merger, consolidation,or reorganization of the Borrower without the express prior written consent of theLender. Dissolution includes the loss of the Charter or Certificate of Authority of theBorrower.

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h. Death, etc. Of key person: The death, incarceration, long-termdisability, or adjudication of incompetency of BERNARD C. PO/TIER.i. Change In Financial Condition: The occurrence of anysubstantial change in the financial condition of the Borrower or Guarantor that, in thesole judgment of the Lender, is materially adverse.j. Insolvency: The starting of bankruptcy, receivership or insolvencyproceedings by or against the Borrower.k. Event Of Default In Other Loans: The occurrence of an Event ofDefault by the Borrower or Guarantor in any other loan given by Lender toBorrower or Guarantor.I. Violation Of Laws: Violation by the Borrower or Guarantor of anyFederal, state, county or local law, statute, ordinance or case law (including,without limitation, any violation of environmental laws). m. Foreclosure: The starting of foreclosure or execution proceedingsby anyone against the Property.

22. Cross-Collateralization. This Mortgage secures all obligations, debtsand liabilities, plus interest thereon, of Grantor to Lender, or any one or more of them,as well as all claims by Lender against Grantor or any one or more of them, whethernow existing or hereafter arising, related to the purpose of the Note, whether voluntaryor otherwise, whether due or not due, direct or indirect, determined or undetermined,absolute or contingent, liquidated or unliquidated whether Grantor may be liableindividually or jointly with others, whether obligated as guarantor, surety,accommodation party or otherwise, and whether recovery upon such amounts may beor hereafter may become barred by any statute of limitations, and whether the obligationto repay such amounts may be or hereafter may become otherwise unenforceable andwhether such indebtedness is secured by other mortgages.23. Lender's Rights Upon Default: Upon the happening of an Event ofDefault, and at the Lender's option, the Lender will have all rights and remediesavailable at law or at equity, and as provided in any of the Loan Documents, all of whichrights will be cumulative and concurrent, and may be pursued singly, successively ortogether, at the sole discretion of the Lender, and may be exercised as often as theoccasion therefore will occur; and the failure to exercise any such right or remedy will inno event be construed as a waiver or release of such right or remedy. The rights andremedies available to the Lender include, but are not limited to, the following:a. Acceleration; Increase In Interest Rate: The Lender may declare theentire Debt immediately due and payable. As compensation to Lender for the lostbenefit of the use of the money, commencing upon the declaration of acceleration bythe Lender, interest will accrue at the highest rate allowable by law.

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,,.'

b. Entry: The Lender may enter and take possession of the Property in alawful way.c. Receiver: The Lender may ask a Court to appoint a receiver of rents ofthe Property. The Borrower hereby consents to the appointment of a receiver.d. Foreclosure: The Lender may start a court action for foreclosure.Foreclosure is a court ordered sale of the Property. The proceeds of the sale are usedto pay the Debt. The Property may be sold in one or more parcels. The Lender maysue any tenant of the Property in the foreclosure action. The Lender's failure to do sodoes not reduce the Borrower's obligations under the Note and Mortgage.e. Foreclosing Of Tenants Rights: The Lender, at its option, mayforeclose this Mortgage subject to the rights of any tenants of the Property, and thefailure to make any such tenants parties defendant to the foreclosure proceeding and toforeclose their rights will not be asserted by the Borrower as a defense to anyproceeding instituted by the Lender to collect any deficiency remaining unpaid after theforeclosure.f. Waiver Of Marshall ing: The Borrower and any Guarantors waive andrelease any right to require the Lender to collect any of the Debt from any particular

c o l l ~ t e r a l under any theory of marshalling of assets or otherwise and specificallyauthorize the Lender to apply any Collateral in which the Borrower or any guarantor hasany right, title or interest, against any of the Borrower's or Guarantor's liabilities to theLender in any manner that the Lender may determine.g. Deficiency: The sale of the Property on foreclosure may not bring inenough money to pay the entire Debt. The Lender may then sue the Borrower underthe Note for the difference. The Lender retains any rights given by law to sue under the

Note before foreclosing under the Mortgage.h. Collection Of Rents: The Lender, as assignee, hereby, may collect allrents, issues and profits of the Property, may enter, take possession of, manage and/oroperate the Property.Witness my hand and seal, this lfe_ day of JUNE, 2006.N ~ ' ~ERNARD C. POITIER

Witness (print)8

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STATE OF FLORIDACOUNTY OF PALM BEACHI HEREBY CERTIFY that on this day, before, an officer duly authorized in thestate aforesaid and in the County aforesaid to take acknowledgements, personallyappeared BERNARD C. POITIER, personally known to be the person(s) described in orwho provided dtS! 1J&t. (,,Gt\,ffi as identification and who executed the foregoing

instrument and who have acknowledged before me that he executed the same and didtake an oath.11 -k. WITNESS my hand and official seal in the County and State last aforesaid thisL_\.'_ day of JUNE, 2006. . J,_,vA JJ1, .A_,My commission expires: N A R Y P U B L I C ~

9

TORNES B. MOCKMY COMMlSSION 11 00 50900gEXPIRES: Jflllllary 23, 2010Bonded 7l)ruNaaty f'utto Ulldelwritm

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Case 10-42231-AJC Doc 11 Filed 11/16/10 Page 16 of 22,;,_,'.

EXHIBIT "A"

PARCEL ONE: PCN 30-3115-026-0010Lots 1, 2, 3, 4, 5, 6, 7 & 8, Less the South 10 feet thereof in Block 1, RESUBDIVISIONOF ORANGE RIDGE PARK, according to the Plat thereof, as recorded in Plat Book 12,Page 18, of the Public Records of Dade County, Florida.PARCEL TWO: PCN 303115-035-0070, PCN 30-3115035-0110, PCN 30-3115-035-0100,PCN 30-3115035-0080 &PCN 303115035-0090lo ts 21, 22, 23, 24, 25, 26, 27, 28 & 29 less the North 10 feet thereof in Block 1,MIDWAY PARK, according to the Plat thereof, as recorded in Plat Book 18, Page 44, ofthe Public Records of Dade County, Florida.PARCEL THREE: PCN 3031150000180Beginning at the NE corner of the NW quarter of the NE quarter of the SW quarter ofSection 15, Township 53 South, Range 41 East fo r a point of beginning, thencerunning West 52 feet along the North line of said Section 15; thence South to theNorth line of ORANGE RIDGE COURT, a subdivision according to the Plat thereof, asrecorded in Plat Book 13, Page 74, of the Public Records of Dade County, Florida;thence East along the North l ine of said subdivision of ORANGE RIDGE COURT 52feet, thence North to the point of beginning. Also begin at a point 52 feet West ofthe NE corner of NW quarter of NE quarter of SW quarter of Section 15, Township 53South, Range 41 East; run West 52 and one-half feet along the North line of saidSection 15; thence South to the North line of ORANGE RIDGE COURT, a subdivision,according to the Plat thereof, as recorded in Plat Book 13, Page 74, of the PublicRecords of Dade County, Florida; thence East along the North line of said subdivisionof ORANGE RIDGE COURT 52 and one-half feet; thence North to the point ofbeginning.LESSThe South 20.00 feet of the North 55.00 feet of the West 79.50 feet of the East 104.50feet of the NW quarter of the SW quarter of Section 15, Township 53 South, Range41 East, of the Public Records of Dade County, Florida.ANDThe external area formed by a 15.00 foot radius are concave to the SW tangent to theSouth line of the North 55.00 feet of the SW quarter of said Section 15 and tangent tothe West line of the East NW of the NE of the SWquarter of said Section 15.

------------ -- - - - - - - - - - - - -

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Case 10-42231-AJC Doc 11 Filed 11/16/10 Page 17 of 22LESS

OR BK 2 4 6 8 4 PG 2 2 5LAST PAGEThe external area formed by a 25.00 foot radius are concave to the SW tangent to theSouth line of the North 35 feet of the SW quarter of said Section 15 and tangent tothe West line of the East 25 feet of the NW quarter of the NE quarter of the SWquarter of said Section 15.

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DANIEL LUSHAN,Plaintiff,

vs.

BERNARD C. POITIER,CHARLFS L. HAYWOOD

IN THE CIRCUIT COURT OF THE ELEVENTHJUDICIAL CIRCUIT IN AND FORMIAlvii-DADE COUNTY, FLORIDACase No.: 09-58930 CA 23

POITIER FUNERAL HOME, INC. et alDefendants.

FINAL JUDGMENT AFTER DEFAULTThis action was heard on Plaintif.f1s Motion for Final Judgment after Default and theCourt finds that Plaintiff's attorney, STEPHEN A. SCHORR, has reasonably expended4.6 hours in representing Plaintiff in this action and that $275.00 is a reasonable hourlyrate for his services and Plaintiff's attorney, TIMOTHY M. HARTLEY, has reasonablyexpended 6.0 hours in representing Plaintiff in this action and that $250.00 is areasonable hourly rate for his services so

IT IS ADJUDGED that:1. Plaintiff, DANIEL LUSHAN, is due $501,000.00 as principal, $82,370.41 asinterest to the date of this judgment, $2,224.75 for title search expense, court costs andother costs, and $2,765.00 for attorney fees, making a total of $683,915.05, that shall bearinterest at the legal rate, for which let execution issue.2. Plaintiff holds a lien for the total sum superior to any claim or estate ofDefendants, BERNARD C. POITIER, OiARLES L. HAYVVOOD and POITIERFUNERAL HOME, INC., on the following described property in Miami-Dade County,Florida:

EXHIBIT

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PARCEL ONE: PCN 30-3115-026-0010Lots 1, 2, 3, 4, 5, 6, 7 & 8, Less the South 10 feet thereof in Block 1,RESUBDIVISION OF ORANGE RIDGE PARK, according to the Plat thereof,as recorded in Plat book 12, Page 18, of the Public Records of Dade County,Florida.PARCEL TWO: PCN 30-3115-035-0070, PCN 30-3115-035-0110, PCN 30-3115-035-0100, PCN 30-3115-035-0080 & PCN 30-3115-035-0090Lots 21, 22, 23, 24, 25, 26, 27, 28 & 29 Less the North 10 feet thereof in Block 1,MIDWAY PARK, according to the Plat thereof, as recorded in Plat Book 18,Page 44, of the Public Records of Dade County, Florida.PARCEL THREE: PCN 30-3115-000-0180Beginning at the NE corner of the NW quarter of the NE quarter of the SWquarter of Section 15, Township 53 South, Range 41 East for a point ofb e g i n n i n g ~ thence running West 52 feet along the N orth line of said Section 15:thence South to the North line of ORANGE RIDGE COURT, a subdivisionaccording to the Plat thereof, as recorded in Plat Book 13, Page 74, of the PublicRecords of Dade County, Florida; thence East along the North line of saidsubdivision of ORANGE RIDGE COURT 52 feet, thence North to the point ofbeginning. Also begin at a point 52 feet West of the NE corner of NW quarterof NE quarter of SW quarter of Section 15, Township 53 South, Range 41, East;run West 52 and one-half feet along the North line of said Section 15; thenceSouth to the North line of ORANGE RIDGE COURT, a subdivision, accordingto the Plat thereof, as recorded in Plat Book 13, Page 74, of the Public Recordsof Dade County, Florida; thence East along the North line of said subdivisionof ORANGE RIDGE COURT 52 and one-half feet; thence North to the point ofBeginning.LESSThe South 20.00 feet of the North 55.00 feet of the West 79.50 feet of the East104.50 feet of the NW quarter of the SW quarter of Section 15, Township 53South, Range 41 East, of the Public Records of Dade County, Florida.ANDThe external area formed by a 15.00 foot radius are concave to the SW tangentto the -South line- of th e North 55.-oO feet of th e SW quarter of said Section 15and tangent to the West line of the East 25.00 feet of the NW quarter of the NEquarter- of lie Sw quarter of said.- sedioii 15. - - - .The external area formed by a 25.00 foot radius are concave to the SW tangentto the South line of the North 35 feet of the SW of 15

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tangent to the West line of the East 25 feet of the NW quarter of the NE quarterof the SW quarter of said Section15.

3. I f the total sum with interest at the rate prescribed in paragraph 1, except nointerest shall accrue on the interest specified in paragraph 1, and all costs accruingsubsequent to this judgment are not paid, the clerk of this court shall sell the property atpublic sale on Cf-J I( } , bEM'e8n 9:00 a..tn-

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9. IF TillS PROPERTY IS SOLD AT PUBLIC AUCTION, THERE MAY BEADDITIONAL MONEY FROM THE SALE AFTER PAYMENT OF PERSONS WHOARE ENTITLED TO BE PAID FROM THE SALE PROCEEDS PURSUANT TO THISFINAL JUDGMENT.10. IF YOU ARE A SUBORDINATE LIENHOLDER CLAIMING A RIGHT TOFUNDS REMAINING AFTER THE SALE, YOU MUST FILE A CLAIM WITH THECLERK NO LATER THAN 60 DAYS AFTER THE SALE. IF YOU FAIL TO FILE ACLAIM, YOU WILL NOT BE ENTITLED TO ANY REMAINING FUNDS.11. IF YOUARETHE PROPERTY OWNER, YOU MAYCLAIM THESEFUNDS YOURSELF. YOU ARE NOT REQUIRED TO HAVE A LAWYER OR ANYOTIIER REPRESENTATION AND YOU DO NOT HAVE TO ASSIGN YOUR RIGHTSTO ANYONE ELSE IN ORDER FOR YOU TO CLAIM ANY MONEY TO WHICH YOUARE ENTITLEJ:?. PLEASE CHECK WITH THE CLERK OF THE COURT, 140 W.FLAGLER STREET, ROOM 908, MIAMI FLORIDA, FLORIDA (TELEPHONE: (305) 375-5943), WITHIN TEN (10) DAYS AFTER THE SALE TO SEE IF THERE IS ADDITIONALMONEY FROM THE FORECLOSURE SALE THAT THE CLERK HAS IN THEREGISTRY OF THE COURT.12 IF YOU DECIDE TO SELL YOUR HOME OR HIRE SOMEONE TO HELPYOU CLAIM THE ADDITIONAL MONEY, YOU SHOULD READ VERY CAREFULLYALL PAPERS YOU ARE REQUIRED TO SIGN, ASK SOMEONE ELSE, PREFERABLYAN ATTORNEY WHO IS NOT RELATED TO THE PERSON OFFERING TO HELP

THAT YOU ARE NOT TRANSFERRING YOUR PROPERTY OR THE EQUITY INYOUR PROPERTY WITHOUT THE PROPER INFORMATION. IF YOU CANNOT

... AFFORD. TO PAY AN ATTORNEY, YOU MAY CONTACTLEGAL AID SOCIETY of_ the Dade CoYnty Bar Association, 123 NW. 1s t Street, #214, .Miami, Florida 33137;

Telephone (305) 371-2220; TO SEE IF YOU QUALIFY FINANCIALLY FOR THEIRSERVICES. IF THEY CANNOT ASSIST YOU, THEY MAY BE ABLE TO REFER YOUTO A LOCAL BAR REFERRAL AGENCY OR SUGGEST OTHER OPTIONS. IF YOU

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CHOOSE TO CONTACT LEGAL AID SOCIETY FOR ASSISTANCE, YOU SHOULDDO SO AS SOON AS POSSIBLE AFTER RECEIPT OF THIS NOTICE.

ORDERED at Miami-Dade County, Florida on April__ 2010.

Copies to: Timothy M, Hartley, Esq.Stephen A. Schorr, Esq.Bernard C. PoitierCharles L. HaywoodPoitier Funeral Home, Inc.

CONFORMED COPVJUN 17 2010

V s c t ~ S , S i ~

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