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Murthy V. Sivajothi Notes

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MURTHY V. SIVAJOTHI FACTS The second plaintiff was the legal owner of two pieces of real property, one residential and the other commercial (described as an office property), which she held on behalf of herself and the first plaintiff as tenants in common. In November 1995 the defendant told them that he needed to raise $400,000 urgently, in order to finance his business commitments. He asked whether he could provide the plaintiffs' real property as collateral for such a loan. The plaintiffs agreed and it was the second plaintiff, as the legal owner, who signed various documents which were prepared by the defendant and his attorney, she believing them to be what is called 'loan documentation'---I would add whatever that may mean. In fact the documents conveyed the properties to one of the defendant's companies and authorised payment of the proceeds of that supposed sale to yet another of the defendant's companies. The properties it seems were then mortgaged by the defendant to a Mr Gorden as security for an advance of a relatively small amount, less than $100,000, which was made by him. The total value of the properties is said to be $320,000. The prices stated in the conveyances were $290,000. Those figures were never discussed with or agreed by the plaintiffs. In fact no payments or repayments were made by the defendant or his companies to the lender and mortgagee, Mr Gorden. On 13 May 1996 Mr Gorden foreclosed on both properties issuing proceedings in the Circuit Court, Eleventh Judicial Circuit of Dale County in Florida. His claim in those proceedings was against the relevant company Geenet Systems Inc (Geenet), the defendant and against 'unknown tenants in possession' at the properties in question. Settlement between the defendant and his mortgagee: Those proceedings were followed, quite promptly, by what was presented as an agreed settlement between the plaintiff, Mr Gorden, and the defendant company, Geenet, and the defendant personally. They subscribed to a document entitled 'Stipulation for Settlement', by which the defendants agreed the plaintiff's right to foreclose, they being in default under the alleged mortgage. They agreed to pay small monthly instalments and to repay the entire amount due, as I have said somewhat less than $100,000, by 31 October 1996, failing which the plaintiff should be entitled to the immediate entry of a summary judgment of foreclosure ex parte upon application to the court. Proceedings by the plaintif: The plaintiffs in the present action, as defendants or co-defendants in the United States proceedings, issued a motion to set aside stipulation for settlement. They claimed, first, that the mortgage agreement under which Mr Gorden claimed foreclosure was invalid and void; that they were

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