In re: Delray Beach National Church of God, Inc. 

21-13777-EPK / Chapter 11

Exhibit 1

to Creditor RMC's 

Motion to Dismiss

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IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT,

IN AND FOR PALM BEACH COUNTY, FLORIDA

RMC DEVELOPMENT, LLC,

a Florida limited liability company,

DIVISION: AJ

Plaintiff(s), CASE NO.: 502019CA001714XXXXMB

v.

DELRAY BEACH NATIONAL CHURCH

OF GOD, INC., a Florida not for profit 

Corporation; LENNARD JOSEY, SR., 

individually, and MEARLENE JOSEY, 

individually

Defendant(s).

____________________________________/

SECOND AMENDED COMPLAINT TO RE-ESTABLISH LOST NOTE, TO IMPOSE 

AND FORECLOSE EQUITABLE LIEN AND OTHER RELIEF

COMES NOW, Plaintiff, RMC Development, LLC (“RMC” or “Plaintiff), a Florida 

limited liability company, by and through undersigned counsel, hereby files its Second Amended 

Complaint against the Defendants, Delray Beach National Church of God, Inc. (“Church”), a 

Florida not for profit corporation, Lenard Josey, Sr. (“Mr. Josey”), individually, and Mearlene 

Josey (“Mrs. Josey”), individually, (collectively, the “Joseys”) (all Defendants collectively, 

“Defendants”), (Plaintiff and Defendants are Referred to collectively as the “Parties”) and as 

grounds thereof would allege as follows:

PARTIES, JURISDICTION, AND VENUE

1. This is an action concerning real property situated in Palm Beach County, Florida.

2. This is an action to re-establish a lost note, for equitable lien, and for other relief, 

exclusive of interests and costs, which exceeds the jurisdictional limits of this Court.

3. Plaintiff, RMC is a Florida limited liability company authorized to and doing 

business in Palm Beach County, Florida.

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4. Defendant, Church, is a Florida not for profit corporation, located at 133 SW 13 

Avenue, Delray Beach, FL 33444 in Palm Beach County Florida, which is the “Property” subject 

to the Mortgage. 

5. Defendant, Mr. Josey is an individual, is over the age of 18 and is otherwise sui 

juris. Mr. Josey is a citizen and resident of Florida and resides in Palm Beach County, Florida. Mr. 

Josey is the obligor on the note. 

6. Defendant, Mrs. Josey is an individual, is over the age of 18 and is otherwise sui 

juris. Mrs. Josey is a citizen and resident of Florida and resides in Palm Beach County, Florida. 

Mrs. Josey is the obligor on the note.

7. All payments due under the Mortgage, Mortgage Agreements, Mortgage Extension 

Agreements, Promissory notes, and assignments stated herein are due and owing in Palm Beach 

County, Florida.

8. Venue in this District is proper because Plaintiff is a Florida limited liability 

corporation, the Property that is the subject of the Mortgage is located in Palm Beach County, 

Florida, and this is the District where the cause of action accrued, and it is where the property in 

litigation is located. 

GENERAL ALLEGATIONS

9. On April 19, 2001, Mr. and Mrs. Josey individually and on behalf of the Church, 

executed and delivered a promissory note (the "Note") to Francis V. Childs, Trustee, as to a 50% 

interest, and Gary W. Fox as to a 50% interest.

10. Defendants executed and delivered a mortgage (the "Mortgage") to secure payment 

of the Note. The Mortgage was recorded, and mortgaged the property described in the Mortgage 

then owned by and in possession of Defendant. A copy of the recorded Mortgage containing a 

copy of the Note, is attached hereto as Composite Ex. 1. 

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11. On December 26, 2008, Francis V. Childs, Trustee, as to a 50% interest, and Gary 

W. Fox as to a 50% interest executed and delivered an Assignment of Mortgage (the 

"Assignment") to John J. Smith. The Assignment of Mortgage was recorded January 8, 2009, in 

Official Records Book 23027, Page 0590. A copy of the Assignment is attached hereto as Ex. 2.

12. On December 22, 2008, Defendants executed a mortgage modification agreement.

(the "Modification") The Modification was recorded January 30, 2009 in Official Records Book 

23058, page 1457. A copy of the Modification is attached as Ex. 3.

13. On January 4, 2012, Defendants executed a Mortgage Extension Agreement (the 

"Extension") to extend the term of the loan to April 1, 2013. A copy of the extension is attached 

hereto as Ex. 4.

14. On July 28, 2017, John J. Smith executed an assignment of mortgage (the 

"Assignment 2") to Plaintiff. The Assignment was recorded August 1, 2017 in Official Records 

Book 29256 at Page 679 of the Public Records of Palm Beach County, Florida. A copy of the 

Assignment is attached as Ex. 5.

15. Plaintiff RMC is the owner of the Note and Mortgage.

16. Upon information and belief, the property is now owned by Defendant.

17. Defendants have defaulted several times under the Note and Mortgage by failing to 

pay in full the payment due April 19, 2011, and to pay in full subsequent payments pursuant to the 

Mortgage Extension Agreements. Partial payments have been received by Plaintiff up to and

including August 2, 2017.

18. The Defendants have also failed to pay the real estate taxes due and owing on the 

encumbered property and failed keep the encumbered property insured against loss by fire and 

other hazards pursuant to the terms of the Note and Mortgage. Composite Ex. 1. Plaintiff has 

benefitted the property and the Defendants by paying these expenses.

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19. Plaintiff declared the full amount payable under the Note and Mortgage to be due 

and owing on August 2, 2017.

20. Post default, Defendants made payments on the Mortgage up and to October 30, 

2018. 

21. Defendants owe Plaintiff in excess of $27,000.00, for amounts due on principal on 

the Note, plus interest, late fees incurred prior to acceleration, default interest, advances by lender 

for taxes and insurance, inspection fees and title search expenses for determining the necessary 

parties to this action and not including the costs of prosecuting this action, and reasonable 

attorney’s fees.

22. Plaintiff has expended a significant amount of funds and resources maintaining the

Property, including payment of property taxes, outdoor and indoor maintenance, and repairs to the 

property to keep the property up to code for the benefit of the Defendants and the use and 

enjoyment of the Church and its congregation.

23. Defendants have been unjustly enriched and have received a substantial benefit as 

a result of the Plaintiff’s expenditures and maintenance of the property to the detriment of the 

Plaintiff. Should Plaintiff be denied the opportunity to foreclose on the Mortgage, Plaintiff has no 

legal recourse against Defendants other than through the court of equity. 

24. Plaintiff has relied on the promises made by Church that the Mortgage was 

enforceable as, although payment was sporadic, Church continued to communicate agreement to

make payments on the loan in accordance with the Mortgage Extension Agreements. Although, 

these agreements were not recorded in the official records, they were signed and relied upon by 

Plaintiff and Defendants, who made payments in accordance with the new terms. 

25. Due to Defendants’ neglect and failure to maintain their property, Plaintiff exerted 

its own funds to pay Defendants’ property insurance and made various improvements related to 

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roof damage. This damage included the installation of soffit vents, replacement of rotted facia, and 

painting. The expenditures were necessary in order to avoid deterioration to structures. A list of 

invoices paid are attached hereto as Ex. 6. 

26. Defendants have been unjustly enriched to the detriment of the Plaintiff, and 

therefore, Plaintiff is entitled to an equitable mortgage on the property.

27. The Plaintiff has had to retain the services of LUBELL & ROSEN, LLC in order 

to bring and litigate this cause of action and is obligated to pay the firm a reasonable fee for its 

services.

COUNT I:

MORTGAGE FORECLOSURE

(Dismissed by this Court with prejudice on October 1, 2019)

COUNT II:

REESTABLISHMENT OF LOST NOTE

(All Defendants)

28. Plaintiff adopts by reference all the allegations contained in paragraphs 1 through 

27 above, each inclusive, as though fully set forth, pursuant to Fla. R. Civ. P. 1.130 (b).

29. This is an action for re-establishment of a lost promissory note pursuant to Fla.

Stats. §§ 673.3091 and 71.011.

30. Plaintiff alleges that the original mortgage was recorded in Official Records Book 

12513, Page 281 of the Public Records of Palm Beach County, Florida. Composite Ex. 1. 

31. The original promissory note and mortgage cannot be located at the time of filing 

of the complaint.

32. A true and correct copy of the Mortgage and the Note is attached to this Second 

Amended Complaint as Composite Ex. 1.

33. Plaintiff alleges the following as to the lost instruments:

a. The original mortgage was recorded as a matter of public record.

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b. Defendants are the only parties known to Plaintiff to have an interest for or 

against re-establishment of the Note.

c. Plaintiff was entitled to enforce the instrument at the time it was lost. 

d. The loss of possession was not the result of a transfer by Plaintiff or a lawful 

seizure.

e. The promissory note has not been assigned to a third party.

34. The instrument cannot be obtained in that it was either accidentally destroyed or its 

whereabouts cannot be determined.

35. Pursuant to Fla. Stats. §§ 673.3091 and 71.011, Plaintiff seeks to reestablish the 

promissory note as a matter of law and that a copy of the promissory note establishes the terms of 

the instrument.

36. Plaintiff agrees to the entry of a final judgment requiring Plaintiff to indemnify and 

hold harmless the obligors of the Note by reason of a claim of another party seeking to enforce the 

Note.

WHEREFORE, Plaintiff prays this Court finds that the original promissory note is lost and 

cannot be located, that the Court accepts a copy of the promissory note in lieu of the original 

promissory note, that the Court re-establish the promissory note as a lost instrument pursuant to 

Fla. Stats. §§ 673.3091 and 71.011, and that the Court award any other relief deemed necessary 

and just.

COUNT III

PROMISSORY NOTE

(All Defendants)

37. Plaintiff adopts by reference all the allegations contained in paragraphs 1 through 

27 above, each inclusive, as though fully set forth, pursuant to Fla. R. Civ. P. 1.130 (b).

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38. On April 19, 2001, Mr. Josey and Mrs. Josey executed and delivered a promissory 

note (the "Note") to Francis V. Childs, Trustee, as to a 50% interest, and Gary W. Fox as to a 50% 

interest.

39. Defendants executed and delivered a mortgage (the "Mortgage") to secure payment 

of the Note. The Mortgage was recorded May 3, 2001 in Official Records Book 12513, Page 281 

of the Public Records of Palm Beach County, Florida, and mortgaged the property described in 

the Mortgage then owned by and in possession of Defendant. Composite Ex. 1. 

40. On December 26, 2008, Francis V. Childs, Trustee, as to a 50% interest, and Gary 

W. Fox as to a 50% interest, executed and delivered an Assignment of Mortgage (the 

"Assignment") to John J. Smith. The Assignment was recorded January 8, 2009, in Official 

Records Book 23027, Page 0590. Ex. 2.

41. On December 22, 2008, Defendants executed a Mortgage Modification Agreement 

(the "Modification") to modify payment of the Note. The Modification was recorded January 30, 

2009 in Official Records Book 23058, page 1457. Ex. 3.

42. On January 12, 2012, Defendants executed a Mortgage Extension Agreement (the 

"Extension") to extend the term of the loan to April 1, 2013. Ex. 4.

43. On July 28, 2017, John J. Smith executed an assignment of mortgage (the 

"Assignment 2") to Plaintiff. The Assignment was recorded August 1, 2017 in Official Records 

Book 29256 at Page 679 of the Public Records of Palm Beach County, Florida. Ex. 5.

44. Plaintiff is the owner of the Note and Mortgage. 

45. Defendants have defaulted under the terms of the Note by failing to pay. 

46. Defendants owe Plaintiff in excess of $27,000.00, the amount due on principal on 

the Note, together with interest, late fees, default interest, and other expenses and advances paid 

by the lender, including taxes, insurance, inspection fees, etc., and not including costs and 

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reasonable attorney’s fees incurred in the prosecution of this action pursuant to the terms of the 

Note.

47. As a result of Defendants’ default under the terms of the Note, Plaintiff engaged 

the services of the undersigned attorneys and is obligated to pay their attorneys a reasonable fee 

for the attorneys’ services herein.

WHEREFORE, Plaintiff, RMC, demands judgment for damages, interest, costs, and 

attorneys’ fees against Defendants, Delray Beach Church of God, Inc., Lenard Josey, and Mearlene 

Josey and respectfully request such other and further relief as this Court deems just and proper.

COUNT IV

Equitable Lien

(All Defendants)

48. Plaintiff adopts by reference all the allegations contained in paragraphs 1 through 

27 above, each inclusive, as though fully set forth, pursuant to Fla. R. Civ. P. 1.130 (b).

49. Defendants have made payments pursuant to the terms of the Note and Mortgage

post expiration of the Mortgage. Ex. 6.

50. Due to Defendants’ neglect and failure to properly maintain their property, and in 

reliance upon its mortgage lien on the property, Plaintiff expended funds and has contracted for 

and obligated itself to expend future sums to pay for expenses, including inspections, taxes, 

insurance and various improvements made for the benefit of the property. Ex. 6.

51. Defendants were obligated to reimburse Plaintiff for the expenditures made on 

Defendants’ Property for their benefit, in accordance with the terms of the Mortgage. Ex. 1. 

52. Pursuant to the terms of the Mortgage Paragraphs 5 and 6 (Ex. 1): 

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53. Plaintiff’s security interest in the property, was extended pursuant to the terms of 

the Mortgage Extension and as agreed to by Defendants by continuing to make payments to 

Plaintiff on the note and for other reimbursements made to Plaintiffs. 

54. On October 1, 2019, this Court dismissed Plaintiff’s original count (as set forth in 

the initial complaint) to foreclose the mortgage with prejudice.

55. A lien created by contract that is deemed not sufficient as a legal mortgage, is 

regarded as an equitable mortgage. Ramos v. Inversiones Pelican, S.A. (In re Ramos), Nos. 11-

11361-BKC-AJC, 11-3127-BKC-AJC-A, 2012 Bankr. LEXIS 3714, at *6 (Bankr. S.D. Fla. Aug. 

10, 2012). Furthermore, “[t]he form of the contract is immaterial, provided the intent to create a 

security appears.” Atlantic Federal Sav. & Loan Asso. v. Kitimat Corp. 143 So. 2d 719, 721 (Fla. 

2d DCA 1962). 

56. It is well established in Florida, that one having an interest in real property by lien 

or some other manner and is required to pay prior tax liens to protect his interest is more than just 

a volunteer and is entitled to an equitable remedy against the person who should have paid the 

taxes. Freeman v. New Smyrna Enters., Inc., 135 So. 2d 452, 454 (Fla. 1st DCA 1961); See also 

Fed. Land Bank v. Brooks, 139 Fla. 506, 518, 190 So. 737, 742 (1939) (the mortgagee in Brooks

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was entitled to subrogation from the State the amount expended for payment of taxes by the 

mortgagee was an expenditure which the mortgagee was forced to make by reason of the neglect 

of the mortgagor to carry out his covenant to pay all taxes as they became due.)

57. Equitable liens are appropriate in the non-mortgage context when a person in good 

faith, and under a mistake as to the condition of the title, makes improvements, renders services, 

or incurs expenses that are permanently beneficial to another's property. Johns v. Gillian, 134 Fla. 

575, 577, 184 So. 140, 142 (1938). 

58. Plaintiff relied on the representations of the Defendants in good faith pursuant to 

the Mortgage, the Note, and Agreements of the parties that the Mortgage is valid and the Plaintiff 

had a duty to pay property taxes, property insurance and in turn, would be reimbursed by 

Defendants.

59. The circumstances are such that it would be unequitable and unjust for Plaintiff to 

incur costs made for the benefit of Defendants’ Property, without allowing the Plaintiff to foreclose 

on the Mortgage or benefit from Plaintiff’s expenditures without paying the receiver the value 

thereof. 

60. There is no adequate remedy at law, as Plaintiff’s original count in the initial 

complaint to foreclose the mortgage was dismissed with prejudice. 

WHEREFORE Plaintiff demands judgement against the Defendants, Delray Beach 

National Church of God, Inc., Lenard Josey, and Mearlene Josey and impose an equitable lien in 

favor of Plaintiff, RMC Development, LLC, together with interest and costs, and any other relief 

deemed just and proper

Plaintiff requests that the Court retain jurisdiction to enter supplemental orders or 

judgments.

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via 

E-Service to counsel of record via the Court’s e-filing portal on this 30 day of March, 2020.

Attorneys for Plaintiff

LUBELL & ROSEN, LLC 

Museum Plaza, Suite 900

200 S. Andrews Avenue

Ft. Lauderdale, FL 33301

Telephone: (954) 880-9500

Facsimile: (954) 755-2993

By: /s/ Marshall A. Adams _____

Marshall A. Adams, Esquire.

 Fla. Bar No.: 712426

 Primary Email Addresses:

MAA@LubellRosen.com

ALR@LubellRosen.com

JMB@Lubellrosen.com

Secondary Email Addresses:

Anny@LubellRosen.com

Gary@LubellRosen.com

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Date Amount Description Check # Notes 

8/1/2017 $1,784.51 Insurance ACH Debit Chase Personal Account 

9/29/2017 $1,107.61 Insurance Debit Card RMC Development LLC Checking 

11/6/2017 $265.68 Taxes Debit Card RMC Development LLC Checking 

12/20/2017 $1,095.76 Insurance Amex AEMG Amex Business Card 

12/20/2017 $1,122.61 Insurance Debit Card RMC Development LLC Checking 

7/27/2018 $2,511.10 Insurance ACH RMC Development LLC Checking 

11/7/2018 $272.32 * Taxes Debit Card RMC Development LLC Checking 

12/20/2018 $2,535.48 Insurance ACH Debit RMC Development LLC Checking 

7/29/2019 $2,507.10 Insurance Debit Card RMC Development LLC Checking 

9/14/2019 $1,200.00 Roof repair /ins req'd 9155 RMC Development LLC Checking 

9/20/2019 $450.00 Inspect/ins req'd Debit Card RMC Development LLC Checking 

11/25/2019 $265.68 Taxes Debit Card RMC Development LLC Checking 

12/27/2019 $2,589.03 Insurance Debit Card RMC Development LLC Checking 

Total $17,706.88

Expenditures Paid By RMC for the Benefit of the Property

* 2018 Tax Receipt states $265.68. The actual amount paid is $272.32 per RMC bank records. 

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