Petition for Adjudication of Validity of Interest in Property — United States v. Daniel Joseph Tisone

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Case 2:22-cr-00039-SPC-NPM Document 79 _ Filed 02/07/23 Page 1of 7 PagelD 472
PILED

UNITED STATES DISTRICT COURT?773 FEB -7 Ali 10: 09
MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION joes py bs ri Sauna
UNITED STATES OF AMERICA, CASE NO.: eiPapdD SECNEM
Plaintiff,
V.
DANIEL JOSEPH TISONE,
Defendant.
/

PETITION FOR ADJUDICATION OF VALIDITY OF INTEREST IN
PROPERTY

Mortgage Electronic Registration Systems, Inc. (“MERS”) and Wilmington
Savings Fund Society, FSB, not in its individual capacity but solely as trustee for the
holders of SGRMT 2021-2 Mortgage Pass-Through Certificates (“Wilmington”)
(together, “Petitioners”), petition the Court, pursuant to 21 U.S.C. § 853(n) and other
applicable law, for an order recognizing the validity of their secured interest in certain
real property, and respectfully show the Court as follows:

1. The real property subject to this Petition is described in the United States’
Motion for Order of Forfeiture and Preliminary Order of Forfeiture for Direct Assets
(ECF No. 68) and Order on that Motion (ECF No. 69) as follows:

Real property located at 550 Starboard Drive, Naples,
Florida 34103, including all improvements thereon and

appurtenances thereto, the legal description of which is as
follows:

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Lot 5, Block F, THE MOORINGS, UNIT NO. 6, in
accordance with and subject to the plat thereof,
recorded in Plat Book 8, pages 7 and 8, of the Public
Records of Collier County, Florida.

(the “Property”).

2. On June 2, 2021, TEC Ventures LLC, a Virginia Limited Liability
Company, by and through Defendant Daniel Tisone, as member (“Borrower”) took
Out a secured purchase money mortgage loan to acquire the Property. In connection
therewith, Borrower executed a promissory note in the original principal amount of
$1,999,500.00 in favor of SG Capital Partners LLC dba Clearedge Lending (“SG
Capital”), on June 2, 2021 (the “Note”).

3. The Note is secured by a first-priority mortgage lien on the Property in
favor of MERS, as mortgagee as nominee for SG Capital and its successors and
assigns, which was also executed by Borrower on June 2, 2021 (the “First Mortgage”).
The First Mortgage was recorded in the Public Records of Collier County, Florida on
June 4, 2021, in Book 5959 at Page 998. The Warranty Deed transferring the Property
to Borrower was executed on May 26, 2021, and was recorded in the Public Records
of Collier County, Florida on June 4, 2021, in Book 5959 at Page 996 (the “Deed”).
As of the filing of this Petition, MERS is still the mortgagee of record under the First
Mortgage.

4. True and correct copies of the Note, the First Mortgage, and the Deed

are attached hereto as Exhibits A, B, and C, respectively.

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5. Wilmington subsequently acquired the Note and is the successor and
assignee to SG Capital on the Note.

6. Select Portfolio Servicing, Inc. (“SPS”) is the mortgage loan servicer and
attorney-in-fact for Wilmington. A true and correct copy of the power of attorney
evidencing SPS’s authority is attached hereto as Exhibit D.

7. As of January 2023, Borrower’s loan is currently delinquent. The current
due date of the loan is July 1, 2022.

8. Petitioners MERS and Wilmington qualify as a lienholder and a lender,
respectively, including because the First Mortgage lien, which was a purchase money
mortgage loan: (1) was established by operation of law or contract; (2) was created as
a result of an exchange of money, goods, or services; and (3) is perfected against the
specific real Property, including through the First Mortgage. See 28 CFR § 9.2.

9. Petitioners have a valid, good faith, and legally cognizable interest in the
Property as a lienholder and an innocent owner, and therefore Petitioners’ interest in
the property is not subject to forfeiture to the United States by reason of an act or
omission of Borrower, or Defendant Daniel Tisone personally, including because: (1)
Petitioners did not know of the conduct giving rise to forfeiture or any violation of the
law; (2) Petitioners are a bona fide mortgagee and lender for value; (3) Petitioners did
not know and were reasonably without cause to believe the Property was subject to
forfeiture or involved in any violation of the law; and/or (4) Petitioners did not
explicitly or implicitly consent to the acts or omissions giving rise to this action, and

had no knowledge the users of the Property had any record for violating the laws of

3
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the United States. See 21 U.S.C. § 853 (c), (n); 18 U.S.C. § 983 (d)(2)(A), (d)(3)(A); 28
C.F.R. § 9.5(a)(1).

WHEREFORE, Petitioners petition the Court, if the parties are unable to
stipulate or reach settlement, for a hearing to adjudicate the validity of Petitioners’
secured interest as a mortgage lienholder, in the case of MERS, and as a lender, in the
case of Wilmington, in the Property, for the release of any lis pendens filed and/or
recorded against the Property, and for an order (a) recognizing the continued existence
and validity of Petitioners’ first lien on the Property because Petitioners are an
innocent mortgage lienholder (MERS) and lender (Wilmington); (b) ordering the
unpaid principal balance, escrow advances, interest, charges, and fees on the loan be

paid from the proceeds of the sale of the Property after the expenses of preservation of
the sale and before distribution to other claimants; and (c) for all further relief to which
Petitioners may be entitled.

[Verifications on following page(s)/

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VERIFICATION

My name is Diane Weinberger. I am capable of making this verification. I am
a Document Control Officer of Select Portfolio Servicing, Inc., servicer and attorney-
in-fact for Wilmington Savings Fund Society, FSB, not in its individual capacity but
solely as trustee for the holders of SGRMT 2021-2 Mortgage Pass-Through
Certificates. I have read the foregoing Petition for Adjudication of Validity of Interest
in Property. I verify under penalty of perjury under the laws of the United States of
America that the foregoing is true and correct.

Executed on the _|°* day of February, 2023.

t

Name: Diane Weinberger -

VERIFICATION

My name is Diane Weinberger. I am capable of making this verification. I am
an Assistant Secretary of Mortgage Electronic Registration Systems, Inc. I have read
the foregoing Petition for Adjudication of Validity of Interest in Property. 1 verify
under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct.

Executed on the | wi 3 day of February, 2023.

Rise, Wei berga)
Cad catant

Name: Diane Weinberger

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Case 2:22-cr-00039-SPC-NPM Document 79 _ Filed 02/07/23 Page 6 of 7 PagelD 477

Respectfully submitted,
QUARLES & BRADY LLP

By: /s/Joseph T. Kohn
Benjamin B. Brown
Florida Bar No. 13290
Joseph T. Kohn
Florida Bar No. 113869
1395 Panther Lane, Suite 300
Naples, FL 34109
239/659-5026 Telephone
239/213-5426 Facsimile
benjamin.brown@quarles.com
joseph.kohn@quarles.com
debra.topping@quarles.com
kerlyne.luc@quarles.com
DocketF L@quarles.com

and

Emily A. Plakon

Florida Bar No. 1026014

Quarles & Brady LLP

101 East Kennedy Boulevard, Suite
3400

Tampa, FL 33602-5195
emily.plakon@quarles.com
angela.scalzo@quarles.com
docketF L@quarles.com

Counsel for Petitioners

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on February 6, 2023, I electronically filed the
foregoing with the Clerk of the Court by using the CM/ECF system, which will send

a notice of electronic filing to all counsel of record.

/s/Joseph T. Kohn
Joseph T. Kohn

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