LAW OFFICES 

BECKER & POLIAKOFF, P.A. 

HUNTINGTON CENTRE CORPORATE PARK • 2901 SW 149 AVENUE, SUITE 140 • MIRAMAR, FLORIDA 33027 

TELEPHONE Broward: (954) 985-4102 • Miami-Dade / Keys: (305) 260-1021 • Palm Beach / Treasure Coast: (561) 820-2887

13594531v.1 B03674/387384

UNITED STATES BANKRUPTCY COURT 

SOUTHERN DISTRICT OF FLORIDA 

MIAMI DIVISION 

IN RE: 

MARIA M. VALLEJO 

 Debtor. 

_____________________________________/

Case Number: 19-18996 AJC 

Chapter 13 

CREDITOR, BISCAYNE COVE CONDOMINIUM ASSOCIATION, INC.’S RESPONSE 

IN OPPOSITION TO DEBTOR’S MOTION TO REINSTATE 

Secured Creditor, BISCAYNE COVE CONDOMINIUM ASSOCIATION, INC. (the 

“Association”), by and through its undersigned attorney, hereby files this Response in Opposition to 

Debtor’s Motion to Reinstate: 

1. The instant bankruptcy is Debtor’s second Chapter 13 Bankruptcy since 2017. 

Debtor’s first Chapter 13, Case No. 17-25418, filed on December 28, 2017 and dismissed on February 

22, 2019 for failure to remain current in plan payments. 

2. On July 5, 2019, Debtor filed the instant Chapter 13 Voluntary Petition. 

3. On November 5, 2019, this case was dismissed upon denial of confirmation of plan1

. 

[DE 48]. 

4. This case was reinstated on an emergency basis on January 3, 2020 wherein the Debtor 

agreed to correct the deficiencies noted by the Trustee. [DE 56]. 

5. On March 23, 2020, this case was dismissed, once again, upon denial of confirmation 

of plan2

. [DE 72]. 

1

 On October 24, 2019, the Trustee filed a Notice of Deficiency for Confirmation and Recommendation [DE 45] wherein 

the Debtor was advised (1) plan didn’t fund (6-60); (2) acct. # failed to match POC 1 in Sect. IIIA-1; (3) Sect. IIIA-4 

payment address didn’t match POC 3; (4) US Bank payment address failed to match POC 5; (5) Obj/Conf to Cl#3, $, 5.2 

(underpaid); and (6) Obj/Conf to DE #33 (not in plan). 

2

 On February 19, 2020, the Trustee filed a Notice of Deficiency for Confirmation and Recommendation [DE 64] 

wherein the Debtor was to (1) explain the use of $6,000.00 per debtor’s declaration, and (2) exempting property as 

homestead even though it was held by an LLC (LLC cannot be homestead), and to provide a current payoff. 

Case 19-18996-AJC Doc 79 Filed 04/17/20 Page 1 of 6
Case Number: 19-18996 AJC 

Opposition to Debtor’s Motion to Reinstate 

LAW OFFICES 

BECKER & POLIAKOFF, P.A. 

HUNTINGTON CENTRE CORPORATE PARK • 2901 SW 149 AVENUE, SUITE 140 • MIRAMAR, FLORIDA 33027 

TELEPHONE Broward: (954) 985-4102 • Miami-Dade / Keys: (305) 260-1021 • Palm Beach / Treasure Coast: (561) 820-2887

13594531v.1 B03674/387384

6. The Debtor filed the instant Emergency Motion to Reinstate Case on April 13, 2020 

– 21 days following dismissal. [DE 76]. Debtor claims she complied with the Trustee’s deficiency 

notice prior to the dismissal. 

7. The Trustee’s Response outlines the breadth of the remaining deficiencies3

 previously 

noticed. [DE 78]. 

8. Rules 9023 and 9024 of the Federal Rules of Bankruptcy Procedure provide relief 

from judgments or orders of the bankruptcy court under certain circumstances. Rule 9023 of the 

Federal Rules of Bankruptcy Procedure – New Trials; Amendments of Judgments – incorporates Rule 

59 of the Federal Rules of Civil Procedure. Although under Rule 59 a party may file a motion to alter 

or amend the order or judgment within a period of 28 days following the date of the entry of the order 

or judgment, Rule 9023 limits this time period to fourteen (14) days. 

9. Rule 9024 of the Federal Rules of Bankruptcy Procedure – Relief from Judgment or 

Order – makes Rule 60 of the Federal Rules of Civil Procedure – Relief from a Judgment or Order – 

applicable in bankruptcy cases. Under Rule 60(c)(1) of the Federal Rules of Civil Procedure, a party 

may file a motion for relief from a judgment or order “within a reasonable time.” The movant must 

plead and provide sufficient grounds to the court of one of the five specific grounds listed in Rule 

60(b)(1)-(5)4

. If the movant is unable to establish that one of these five grounds is applicable, the 

3

 Trustee noted unresolved issues that: (1) 3AP fails to fund; (2) 3AP still has incorrect creditor address for SPS (POC#3) 

in Section III.A#4; (3) US Bank payment address failed to match POC 5 in section III.A#5; (4) 3AP has typographical 

errors. 

4 Rule 60 of the Federal Rules of Civil Procedure provides in part: (b) Grounds for Relief 

from a Final Judgment, Order, or Proceeding. 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, 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 under Rule 59(b); 

Case 19-18996-AJC Doc 79 Filed 04/17/20 Page 2 of 6
Case Number: 19-18996 AJC 

Opposition to Debtor’s Motion to Reinstate 

LAW OFFICES 

BECKER & POLIAKOFF, P.A. 

HUNTINGTON CENTRE CORPORATE PARK • 2901 SW 149 AVENUE, SUITE 140 • MIRAMAR, FLORIDA 33027 

TELEPHONE Broward: (954) 985-4102 • Miami-Dade / Keys: (305) 260-1021 • Palm Beach / Treasure Coast: (561) 820-2887

13594531v.1 B03674/387384

movant may attempt to use the catchall provision of Rule 60(b)(6) by “demonstrat[ing] that the 

circumstances are sufficiently extraordinary to warrant relief.” Jeffus v. Ray, Slip Copy, 2010 WL 

179373 at *1 (11th Cir. 2010). Further, the movant must show that “absent such relief an ‘extreme’ 

and ‘unexpected’ hardship will result.” Mayberry v. Maroney, 558 F.2d 1159, 1163 (3d Cir. 

1977)(quoting United States v. Swift & Co., 286 U.S. 106, 119, 52 S.Ct. 460, 464, 76 L.Ed. 999 

(1932)). Even then, “whether to grant relief is a matter for the ... court’s sound discretion.” Cano v. 

Baker, 435 F.3d 1337, 1342 (11th Cir. 2006)(quoting Toole v. Baxter Healthcare Corp., 235 F.3d 

1307, 1317 (11th Cir. 2000). 

10. This Court’s Order dismissing this Chapter 13 Case was entered on March 23, 2020. 

Debtor’s Emergency Motion was filed on April 13, 2020, which was beyond the fourteen (14) day 

time limit imposed by Rule 9023 for filing a motion to amend or alter a judgment or order; therefore, 

Rule 9023 is not available to the Debtor. 

11. Since the Debtor filed her Motion within one month of this Court’s Order dismissing 

his case, Rule 60 is applicable. The Debtor must establish that she is entitled to relief from the Order 

dismissing this case based on Rule 60(b). The Debtor’s Motion fails to allege any ground for relief 

under 60(b)(1)-(6). 

12. In this case, the Debtor has received the benefit of the automatic stay for 9 months and 

made only 5 monthly payments. In the Debtor’s first case she received the benefit of the automatic 

(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or 

misconduct of an adverse party; 

(4) the judgment is void; 

(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon 

which it is based has been reversed or otherwise vacated, or it is no longer equitable 

that the judgment should have prospective application; or 

(6) any other reason justifying relief from the operation of the judgment. 

Case 19-18996-AJC Doc 79 Filed 04/17/20 Page 3 of 6
Case Number: 19-18996 AJC 

Opposition to Debtor’s Motion to Reinstate 

LAW OFFICES 

BECKER & POLIAKOFF, P.A. 

HUNTINGTON CENTRE CORPORATE PARK • 2901 SW 149 AVENUE, SUITE 140 • MIRAMAR, FLORIDA 33027 

TELEPHONE Broward: (954) 985-4102 • Miami-Dade / Keys: (305) 260-1021 • Palm Beach / Treasure Coast: (561) 820-2887

13594531v.1 B03674/387384

stay for 15 months even though she only made 8 monthly payments. Of which, this Secured Creditor 

has only received $5,546.68 in the first case and $1,849.90 in the second case. Between those two 

cases the delinquency owed to this Secured Creditor doubled as monthly maintenance on both units 

continued to accrue at a rate of $1,483.33 per month: 

Unit 2005: 

 POC Filed in First BKC: $8,973.03 

 POC Filed in Second BKC: $23,287.43 

Unit 1610: 

 POC Filed in First BKC: $23,425.47 

 POC Filed in Second BKC: $46,462.29 

In other words, not only has the Debtor not paid anything toward the arrears, but the Debtor has failed 

to remain current on regular ongoing maintenance either. The net result is a doubling effect of the 

amounts due as a result of the successive bankruptcy filings. 

13. Debtor’s actions do not appear to be in good faith. The bankruptcy filings appear 

calculated to deny Creditors the ability to pursue their State Court Remedies. 

Unit 1610: Secured Creditor obtained a Final Judgment of Foreclosure in the amount of 

$23,270.38 on December 11, 2017, in a case styled Biscayne Cove Condominium Association, 

Inc. v. Julio E. Ponce, Miami-Dade County Case No. 17-3098-CA-11. Secured Creditor’s

case and resulting foreclosure sale was stayed as a result of the Debtor’s First Bankruptcy 

case. Upon dismissal of the first case, the sale was reset and cancelled upon the filing of the 

second bankruptcy petition. 

- Foreclosure Sale 1/16/18 – cancelled as a result of first bankruptcy case filed 12/17/2017 

- Foreclosure Sale 7/8/19 – cancelled as a result of second bankruptcy case filed 7/5/2019 

Case 19-18996-AJC Doc 79 Filed 04/17/20 Page 4 of 6
Case Number: 19-18996 AJC 

Opposition to Debtor’s Motion to Reinstate 

LAW OFFICES 

BECKER & POLIAKOFF, P.A. 

HUNTINGTON CENTRE CORPORATE PARK • 2901 SW 149 AVENUE, SUITE 140 • MIRAMAR, FLORIDA 33027 

TELEPHONE Broward: (954) 985-4102 • Miami-Dade / Keys: (305) 260-1021 • Palm Beach / Treasure Coast: (561) 820-2887

13594531v.1 B03674/387384

 In addition, the first mortgagee filed suit to foreclose its mortgage four years ago in a case 

styled U.S. Bank, N.A. v. Maria Del Rocio De Ponce, et al., Miami-Dade County Case No. 

16-029854-CA-05. Upon denial of confirmation and dismissal of the second bankruptcy case 

the first mortgagee filed a notice of readiness on December 5, 2019. Upon reinstatement on 

January 3, 2020, the case was stayed once again and no trial order issued. Collectively, the 

first mortgagee is owed $372,958.53, Claim No. 3-1 and this creditor is owed $42,875.96 

through the filing date of the petition, Claim No. 1. The fair market value of the property is 

no more than $171,941.00 according to Zillow.com. 

Unit 2005: Secured Creditor is owed $23,287.43, Claim No. 2, as of the date of filing this 

current bankruptcy petition on Unit 2005. The first mortgagee of Unit 2005 obtained a final 

judgment of foreclosure on August 17, 2017 in the amount of $199,817.79, in a case styled 

U.S. Bank, N.A. v. Maria M. Del Rocio De Ponce, et al, Miami-Dade County Case No. 16-

016970-CA-58. According to the first mortgagee’s proof of claim they are now owed 

$212,092.59, Claim No. 5-1. The property is underwater. This property is worth 

$171,162.00. There have been three bank foreclosure sale cancellations as a result of Debtor’s 

bankruptcy filings. 

- Foreclosure Sale 1/3/18 – cancelled by first bankruptcy case filed 12/27/2017 

- Foreclosure Sale 7/22/19 – cancelled by second bankruptcy case filed 7/5/2019 

- Foreclosure Sale 1/6/2020 – cancelled by reinstatement of second bankruptcy case 

1/3/2019 

A Motion to Reset the first mortgagee’s Foreclosure Sale is pending in state court. 

14. Since Debtor’s case had previously been dismissed for failure to correct deficiencies 

and she agreed to correct those deficiencies upon reinstatement, she knew failure to correct those 

Case 19-18996-AJC Doc 79 Filed 04/17/20 Page 5 of 6
Case Number: 19-18996 AJC 

Opposition to Debtor’s Motion to Reinstate 

LAW OFFICES 

BECKER & POLIAKOFF, P.A. 

HUNTINGTON CENTRE CORPORATE PARK • 2901 SW 149 AVENUE, SUITE 140 • MIRAMAR, FLORIDA 33027 

TELEPHONE Broward: (954) 985-4102 • Miami-Dade / Keys: (305) 260-1021 • Palm Beach / Treasure Coast: (561) 820-2887

13594531v.1 B03674/387384

deficiencies would result in her case being dismissed again. Finally, the Debtor has not given the 

Court sufficient legal justification to vacate the dismissal. 

WHEREFORE, Secured Creditor, BISCAYNE COVE CONDOMINIUM 

ASSOCIATION, INC., respectfully requests the Court enter an Order denying Debtor’s Motion to 

Reinstate and entry of a 180-prejudice period and for any and all further relief as justice may require. 

By: / s / Candace C. Solis____

Candace C. Solis, Esq.

Florida Bar #88833 

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing was served by first class United States 

mail or by CM/ECF to: Julio C. Marrero, Esq., Attorney for Debtor Maria M. Vallejo, 3850 Bird 

Road, PH1, Coral Gables, FL 33146, Bankruptcy@marrerolawfirm.com, Nancy K. Neidich, 

Trustee, POB 279806, Miramar, FL 33027, e2c8f01@ch13herker.com, U.S. Trustee, Office of the 

US Trustee, 51 SW 1ST Ave., Suite 1204, Miami, FL 33130, USTPRegion21.MM.ECF@usdoj.gov, on 

this 17th day of April, 2020. 

BECKER & POLIAKOFF, P.A. 

1 East Broward Blvd., Suite 1700 

Fort Lauderdale, Florida 33301 

Phone: (954) 985-4102 

Fax: (954) 987-5940 

Primary: cofoservicemail@beckerlawyers.com 

BY: _/ s / Candace C. Solis______ 

Candace C. Solis 

Florida Bar #88833 

ACTIVE: B03674/387384:12547825_1 

Case 19-18996-AJC Doc 79 Filed 04/17/20 Page 6 of 6