Respondents Brief — Daniel H. Alexander, Petitioner v. Bayview Loan Servicing, LLC

No. 18-375

================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------DANIEL H. ALEXANDER,

Petitioner,

v.

BAYVIEW LOAN SERVICING, LLC,

Respondent.

-----------------------------------------------------------------On Petition For Writ Of Certiorari

To The District Court Of Appeal Of Florida,

Third District

-----------------------------------------------------------------BRIEF IN OPPOSITION

-----------------------------------------------------------------MARY J. WALTER, ESQ.

LIEBLER, GONZALEZ & PORTUONDO

Courthouse Tower, 25th Floor

44 West Flagler Street

Miami, FL 33130

(305) 379-0400

mjw@lgplaw.com

Counsel for Respondent

================================================================

i

RESTATEMENT OF QUESTIONS PRESENTED

1

1.

Whether the Petition for Writ of Certiorari is

timely and confers jurisdiction.

2.

Whether this Court can and should exercise

its power of discretionary review to consider

whether the per curiam affirmance of an order

denying a motion to vacate final judgment1 violated federal due process protections, where

Petitioner failed to raise any federal issues

in this standard state court foreclosure and

there is no asserted split of authority.

3.

Whether this Court can and should exercise

its power of discretionary review to examine

the Florida Supreme Court and Third District’s purported refusal to “grant disqualifications” as a violation of federal due process

protections, where Petitioner never formally

moved to disqualify either state appellate

court for any reason prior to filing the present

petition.

In his Questions Presented for Review, Petitioner incorrectly refers to the underlying decision as the per curiam affirmance of a final judgment. Pet. i. In fact, the decision at issue is

the per curiam affirmance of an order denying a motion to vacate

a final judgment. See Pet’r App. A1–2.

ii

PARTIES TO THE PROCEEDING

AND RULE 29.6 STATEMENT

Petitioner is Daniel H. Alexander, an individual. He

was a defendant in the state court foreclosure proceeding in the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County; the appellant in

the state appellate proceeding in the Third District

Court of Appeal for the State of Florida; and the petitioner in an original proceeding in the Florida Supreme Court.

Respondent is Bayview Loan Servicing, LLC, a wholly

owned subsidiary of Bayview Asset Management, LLC.

No publicly held company holds an interest of 10% or

more in Bayview Loan Servicing, LLC.

iii

TABLE OF CONTENTS

Page

RESTATEMENT OF QUESTIONS

PRESENTED ....................................................

i

PARTIES TO THE PROCEEDING AND RULE

29.6 STATEMENT............................................

ii

TABLE OF CONTENTS ......................................

iii

TABLE OF AUTHORITIES .................................

v

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI ..................................

1

PRELIMINARY STATEMENT ............................

1

REPORTS OF OPINIONS BELOW ....................

2

JURISDICTION ...................................................

2

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED ...................................

5

STATEMENT OF THE CASE..............................

7

A.

Background ................................................

7

B.

Appellate Proceedings and Disposition

Regarding the Denial of the Motion to

Vacate Judgment ....................................... 10

ARGUMENT ........................................................ 12

A.

Borrower’s Petition is Untimely as to the

Targeted Decision ....................................... 13

B.

Borrower Has Not Shown Any Violation

of Due Process Involving the Disposition

of his Appeal to the Third District ............ 15

C.

This Court Lacks Jurisdiction to Consider

the Arguments Involving Disqualification .... 21

iv

TABLE OF CONTENTS – Continued

Page

D.

Borrower Has Not Shown Any

Compelling Reason for Review .................. 24

CONCLUSION..................................................... 26

APPENDIX

Appellants’ Motion for Rehearing, for Rehearing En Banc, and Request for a Written

Opinion .................................................................. A-1

Order on Motion for Rehearing and Request for

Written Opinion .................................................. A-36

v

TABLE OF AUTHORITIES

Page

CASES

Adams v. Robertson, 520 U.S. 83 (1997) ............... 16, 21

Alexander v. Bayview Loan Servicing, LLC,

241 So. 3d 825 (Fla. 3d DCA 2018) ...........................2

Alexander v. Bayview Loan Servicing, LLC,

SC18-624, 2018 WL 2069311

(Fla. May 3, 2018) .....................................................2

Bayview Loan Servicing, LLC v. Bartlett,

87 A.3d 741 (Me. Sup. Ct. 2014) .............................24

Caperton v. A.T. Massey, 556 U.S. 868 (2009) ............23

Clarendon Nat’l Ins. Co. v. Shogreen,

990 So. 2d 1231 (Fla. 3d DCA 2008) .......................22

Correll v. State, 698 So. 2d 522 (Fla. 1997) ................22

Fla. Soc’y of Newspaper Editors, Inc. v. Fla.

Pub. Serv. Com., 543 So. 2d 1262

(Fla. 1st DCA 1989) ........................................... 14, 15

Foley v. State, 969 So. 2d 283 (Fla. 2007) ............. 13, 15

Fuentes v. Shevin, 407 U.S. 67 (1972) .........................17

Gandy v. State, 846 So. 2d 1141 (Fla. 2003) ...............13

Giuliano v. Wainwright, 416 So. 2d 1180

(Fla. 1982)................................................................21

Granfinanciera v. Nordberg, 492 U.S. 33

(1989) ......................................................... 4, 5, 16, 21

In re Estate of Carlton, 378 So. 2d 1212

(Fla. 1979).......................................................... 21, 22

Liteky v. U.S., 510 U.S. 540 (1994) ..............................22

vi

TABLE OF AUTHORITIES – Continued

Page

Moore v. State, 820 So. 2d 199 (Fla. 2002) .................22

R. J. Reynolds Tobacco Co. v. Kenyon,

882 So. 2d 986 (Fla. 2004) ................................. 15, 19

Stallworth v. Moore, 827 So. 2d 974 (Fla. 2002) .... 3, 13

Sundquist v. Bank of America, 566 B.R. 563

(U.S. Bankr. E.D. Cal. 2017) .............................. 23, 24

Taylor v. Knight, 234 So. 2d 156

(Fla. 1st DCA 1970) .................................................20

Williams v. Florida, 399 U.S. 78 (1970)........ 3, 4, 13, 14

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. V ....................................................6

U.S. Const. amend. XIV ................................................6

STATUTES AND RULES

28 U.S.C. § 1257 ............................................................5

Fla. R. C. P. 1.540 ..........................................................6

U.S. Sup. Ct. Rule 10............................................. 24, 25

U.S. Sup. Ct. Rule 13.1...................................... 4, 13, 14

1

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

PRELIMINARY STATEMENT

This is a petition for a writ of certiorari seeking

review of a decision of a lower state court. In this brief

in opposition, Petitioner, Daniel H. Alexander, will be

referred to as “Borrower,” while Respondent, Bayview

Loan Servicing, LLC, will be referred to as “Bayview.”

Other terms will be defined where they appear. In addition, Bayview will use the following designations:

Pet. at ___

- Petition for Writ of Certiorari

at page no.

P-App. at ___ - Borrower’s Appendix to the

Petition for Writ of Certiorari

at page no.

R-App. at ___ - Bayview’s Appendix to the

Brief in Opposition at page

no.

R. ___

- Record on Appeal, received by

the Third District on 12/1/16,

page no. (p. 1–375)

SR1. ___

- First Supplemental Record,

received by the Third District

on 3/10/17, page no. (p. 376–

95)

SR2. ___

- Second Supplemental Record, approved by the Third

District on 6/6/17, page no. (p.

396–97)

2

SR3. ___

- Third Supplemental Record,

approved by the Third District on 7/5/17, page no. (p.

398–408)

------------------------------------------------------------------

REPORTS OF OPINIONS BELOW

Bayview acknowledges Borrower’s citations to

the reports of opinions and orders entered below, but

makes a correction. Borrower cites the per curiam decision of the Third District in Alexander v. Bayview

Loan Servicing, LLC, 241 So. 3d 825 (Fla. 3d DCA

2018), and “the decision of the Florida Supreme Court

that declined to accept jurisdiction to review that opinion,” Alexander v. Bayview Loan Servicing, LLC, SC18624, 2018 WL 2069311 (Fla. May 3, 2018). Pet. at 4.

However, the Florida Supreme Court was never called

to accept jurisdiction to review the Third District’s decision. Borrower filed a Petition for Writ of Mandamus

asking the Florida Supreme Court to compel the Third

District to write an opinion. See Pet. at 14. The Florida

Supreme Court found it lacked jurisdiction and dismissed the case. See id.; P-App. at A5.

------------------------------------------------------------------

JURISDICTION

This Court lacks jurisdiction to review the subject

Petition for Writ of Certiorari as to the Third District’s

per curiam decision because it is untimely. Pursuant to

United States Supreme Court Rule 13:

3

[A] petition for a writ of certiorari to review a

judgment in any case, civil or criminal, entered by a state court of last resort or a United

States court of appeals (including the United

States Court of Appeals for the Armed Forces)

is timely when it is filed with the Clerk of this

Court within 90 days after entry of the judgment. A petition for a writ of certiorari seeking review of a judgment of a lower state court

that is subject to discretionary review by the

state court of last resort is timely when it is

filed with the Clerk within 90 days after entry

of the order denying discretionary review.

In this case, the Third District issued its per curiam decision, affirming the order denying the motion

to vacate final judgment, on January 24, 2018. P-App.

at A1–2. The decision was rendered final on March 21,

2018, with the denial of a timely motion for rehearing.

R-App. at A41.

In Florida, a per curiam decision without opinion

is not subject to discretionary review by the Florida

Supreme Court. Stallworth v. Moore, 827 So. 2d 974,

978 (Fla. 2002) (holding that the Florida Supreme

Court does not have jurisdiction to review unelaborated per curiam orders or opinions from the district

courts). As a result, the Third District became the state

court of last resort for this case, and Borrower needed

to seek review by this Court within 90 days of the rendition of the per curiam decision. See Williams v. Florida, 399 U.S. 78, 80 n.5 (1970) (determining that the

district court became the highest court from which a

decision could be had, where the Florida Supreme

4

Court was without jurisdiction to entertain the petitioner’s direct appeal). He failed to do so.1

Assuming arguendo the subject Petition for Writ

of Certiorari was timely, this Court still has no basis to

exercise jurisdiction. Borrower claims that “the Court’s

jurisdiction is invoked under 28 U.S.C. § 1257(a).” Pet.

at 4–5. This statute allows for review inter alia of final

state court judgments “where any title, right, privilege,

or immunity is specially set up or claimed under the

Constitution.” 28 U.S.C. § 1257(a). Here, while Borrower does not specify how the subject case qualifies

under this statute in his statement on jurisdiction, he

references the due process protections of the Fifth and

Fourteenth Amendments throughout his Petition for

Writ of Certiorari. Pet. at i, 5, 18–42. Nonetheless,

Bayview does not believe that the record shows any

due process violation that would confer jurisdiction to

evaluate the per curiam decision or the judicial disqualification.

Moreover, this Court generally only reviews matters that were raised in the lower court. Granfinanciera

1

Borrower did initiate an original petition in the Florida Supreme Court following the conclusion of his appeal to the Third

District. See Pet. at 14. After the Petition for Writ of Mandamus

was dismissed, Borrower moved for an extension on the deadline

to seek certiorari relief from this Court. This Court granted the

request, and Borrower filed the subject Petition for Writ of Certiorari within the time provided. However, because Borrower’s petition is only timely as to the Florida Supreme Court’s dismissal

of the Petition for Writ of Mandamus, this Court should limit its

consideration accordingly. See U.S. Sup. Ct. Rule 13.1; Williams,

399 U.S. at 80 n.5.

5

v. Nordberg, 492 U.S. 33, 39 (1989). Borrower has not

shown that he raised due process or any federal question in the court below, particularly in relation to judicial disqualification. See Pet. at passim. In fact, he

never moved for disqualification at all before filing the

subject Petition for Writ of Certiorari. See Docket for

Daniel H. Alexander and Jacqueline P. Alexander v.

Bayview Loan Servicing, LLC, No. 3D16-2228; Docket

for Daniel H. Alexander, et al. v. Bayview Loan Servicing, LLC, SC18-624. Thus, this Court lacks jurisdiction

to consider this case.

------------------------------------------------------------------

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

28. U.S.C. § 1257(a):

Final judgments or decrees rendered by the

highest court of a State in which a decision

could be had, may be reviewed by the Supreme Court by writ of certiorari where the

validity of a treaty or statute of the United

States is drawn in question or where the validity of a statute of any State is drawn in

question on the ground of its being repugnant

to the Constitution, treaties, or laws of the

United States, or where any title, right, privilege, or immunity is specially set up or

claimed under the Constitution or the treaties

or statutes of, or any commission held or authority exercised under, the United States.

6

Amendment V to the U.S. Constitution:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a

presentment or indictment of a grand jury, except in cases arising in the land or naval

forces, or in the militia, when in actual service

in time of war or public danger; nor shall any

person be subject for the same offense to be

twice put in jeopardy of life or limb; nor shall

be compelled in any criminal case to be a witness against himself, nor be deprived of life,

liberty, or property, without due process of

law; nor shall private property be taken for

public use, without just compensation.

Amendment XIV to the U.S. Constitution:

No state shall make or enforce any law which

shall abridge the privileges or immunities of

citizens of the United States; nor shall any

state deprive any person of life, liberty, or

property, without due process of law; nor deny

to any person within its jurisdiction the equal

protection of the laws.

Florida Rule of Civil Procedure 1.540(b):

Mistakes; Inadvertence; Excusable Neglect;

Newly Discovered Evidence; Fraud; etc. – 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, decree,

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

7

discovered in time to move for a new trial or

rehearing; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse

party; (4) that the judgment or decree is void;

or (5) that the judgment or decree has been

satisfied, released, or discharged, or a prior

judgment or decree upon which it is based has

been reversed or otherwise vacated, or it is no

longer equitable that the judgment or decree

should have prospective application. The motion shall be filed within a reasonable time,

and for reasons (1), (2), and (3) not more than

1 year after the judgment, decree, order, or

proceeding was entered or taken. A motion

under this subdivision does not affect the finality of a judgment or decree or suspend its

operation. This rule does not limit the power

of a court to entertain an independent action

to relieve a party from a judgment, decree, order, or proceeding or to set aside a judgment

or decree for fraud upon the court.

------------------------------------------------------------------

STATEMENT OF THE CASE

A. Background

The subject Petition for Writ of Certiorari arises

from a foreclosure action filed by Bayview on July 24,

2014. R. 11–47. Borrower was named as a defendant.

Id. He responded to the complaint on August 11, 2014,

claiming Bayview had no authority to foreclose. R. 53.

After the pleadings were closed, Bayview moved for

summary judgment. R. 79–129. Borrower opposed the

8

motion, again challenging Bayview’s standing. See R.

156, 158–59, 166–78.

On June 17, 2015, after a hearing, the trial court

granted Bayview’s motion for summary judgment and

entered final judgment in its favor. R. 179–83. Borrower appealed the final judgment to the Third District. See R. 341–46; Daniel Alexander v. Bayview Loan

Servicing, LLC, No. 3D15-1384. Ultimately, the Third

District affirmed, per curiam, without opinion. R. 148.

The mandate issued on December 28, 2015. R. 347.

On June 17, 2016, Borrower moved to vacate the

final judgment under Rule 1.540(b) (“Motion to Vacate

Judgment”) based on allegations of fraud.2 R. 276–331.

The trial court conducted a hearing on August 17,

2016, for all pending motions. SR3. 400. At the hearing,

Borrower asked the court for an evidentiary hearing

on his Motion to Vacate Judgment. SR3. 400. The court

complied and scheduled the motion to be heard during a 30-minute special set hearing to be held on

2

In his Statement of the Case, Borrower details the assertions contained in his Motion to Vacate Judgment, claiming inter

alia that his motion set forth that “the sworn testimony of Cynthia Riley stating her signature was affixed to original notes

within days of origination was false,” and “Chase perpetrated a

fraud on the court by presenting the surrogate signed endorsements as if affixed by Ms. Riley before her termination in 2006.”

See Pet. at 6–9. To the extent that these and other statements

from the Motion to Vacate Judgment are presented as “facts,”

Bayview would clarify that there was no evidence presented in

the lower court to support them. See R. 276–331; SR1. 376–95.

They were merely the beliefs of Borrower’s counsel. See SR1. 391–

92.

9

September 2, 2016. R. 357; SR3. 404–05. Bayview filed

a notice of hearing for the event. SR2. 396–97.

When the parties appeared before the court on

September 2, 2016, Borrower did not object to the nature of the hearing as evidentiary or non-evidentiary.3

SR1. 379–81. He proceeded with his argument, contending that the issue was whether Bayview’s endorsement had legal effect. SR1. 381–83, 389–93. Bayview

countered, citing case law for the proposition that absent some concrete indication of misuse or fraud, there

was no reason to doubt that a duly authorized signature stamp carries the same authority as the original

signature. SR1. 383–88. Bayview advised the court

that there was no such evidence presented in this

case. SR1. 388. After considering the arguments of

both sides, the trial court denied the Motion to Vacate

Judgment.4 R. 375; SR1. 394.

3

Borrower states that “Bayview noticed a hearing on [his]

motion, but not as an evidentiary hearing.” Pet. at 9–10. This is

misleading, as trial court scheduled the 30-minute special set

hearing at Borrower’s request. See R. 357; SR3. 404–05. Bayview

merely filed notice of the hearing. SR2. 396–97. Borrower never

objected to the notice or filed a notice of his own. R. 1–8; SR1. passim.

4

Borrower claims that the trial court prohibited discovery of

the fraud and then denied the Motion to Vacate Judgment. Pet. at

10. This is incorrect. There is no indication in the record to show

that Borrower sought discovery related to the allegations raised

in his motion, and the order entered by the court contains no

statements regarding discovery of fraud. See R. 1–8, 375.

10

B. Appellate Proceedings and Disposition Regarding the Denial of the Motion to Vacate

Judgment

Borrower appealed the order denying his Motion

to Vacate Judgment to the Third District. See R. 373–

74; Daniel H. Alexander and Jacqueline P. Alexander

v. Bayview Loan Servicing, LLC, No. 3D16-2228. The

case was briefed by both parties. See Docket for Daniel

H. Alexander and Jacqueline P. Alexander v. Bayview

Loan Servicing, LLC, No. 3D16-2228. After briefing was

complete, the Third District scheduled oral argument

pursuant to Borrower’s request, but it later removed

the case from the calendar. See id.; Pet. at 10. On January 24, 2018, the Third District issued its decision,

affirming the order on appeal, per curiam, without

opinion. Pet. at 10; P-App. at A1–2.

On February 22, 2018, Borrower filed a Motion for

Rehearing, for Rehearing En Banc, and Request for

Written Opinion (“Motion for Rehearing”), expressing

his objection to the use of a per curiam affirmance

without written opinion in his case. See Pet. at 11; RApp. at A1–40. Borrower claims in his Statement of the

Case that the Motion for Rehearing showed that there

was a colorable claim for fraud by senior Chase executives related to backdated endorsements used in thousands of cases. Pet. at 11–12. There is simply no

support for this statement in the record and no citation

in the petition. Id.

Among the points made in the Motion for Rehearing, Borrower argued that a judge should disqualify himself or herself in any proceeding where their

11

impartiality might be reasonably questioned. R-App.

at A31. He then claimed that “[t]here is objectively reason [sic] to question whether this Honorable Court has

an institutional bias against homeowners, and [Borrower]’s counsel, for zealously advocating on behalf

of homeowners, as evidenced by the Daily Business

Review articles and [Borrower]’s counsel’s body of appellate work.” R-App. at A32–33. Borrower did not specifically ask that any judge disqualify himself or

herself from the proceeding. R-App. at passim. Indeed,

he reiterated his request for en banc consideration of

the order denying his Motion to Vacate Judgment. RApp. at A39.

The Third District denied the Motion for Rehearing on March 21, 2018. See Pet. at 14; R-App. at 41. On

April 19, 2018, Borrower filed a Petition for Writ of

Mandamus in the Florida Supreme Court. Pet. at 14.

Borrower asked the Florida Supreme Court to compel

the Third District to write an opinion, explaining the

basis for its affirmance. Id. The Florida Supreme Court

dismissed the petition for lack of jurisdiction on May 3,

2018.5 Id.; P-App. at A5.

5

Within his Statement of the Case, Borrower includes a section titled, “the Florida Supreme Court Has Taken No Action as

the Third [District] Repeatedly Denied Motions to Disqualify that

Set Forth Objective Reasons to Question its Impartiality.” Pet. at

14–18. In this section, Borrower cites to a Daily Business Review

article, claiming without support that it contained “statistical,

empirical evidence” regarding the Third District’s decisions See

Pet. at 15–16. Borrower also references three motions to disqualify that he claims have been filed by his counsel in other cases.

Pet. at 16. These motions are not before this Court, and none of

the statements made about their underlying circumstances are

12

On July 23, 2018, Borrower filed an application to

extend the time to file a petition for writ of certiorari

from August 1, 2018, to September 21, 2018. This Court

granted the relief. The subject Petition for Writ of Certiorari followed, docketed by the clerk on September

21, 2018.

------------------------------------------------------------------

ARGUMENT

Borrower argues that certiorari should be granted

in this case to protect the due process rights guaranteed by the Constitution, to prevent fraud on the court,

and to avoid “biased appellate judges” from granting

equitable relief condoning that fraud. Pet. at 18. To the

extent that Borrower has timely raised these positions,

this Court should deny relief because Borrower has not

established any due process violation below, judicial

disqualification is not appropriate for consideration,

and Borrower has not shown a compelling reason for

review.

supported. See Pet. at 16–18. Moreover, as Borrower cannot dispute that he did not file a motion for disqualification in this case,

the references are irrelevant and serve only to impugn honorable

members of the courts below.

13

A. Borrower’s Petition is Untimely as to the

Targeted Decision

As a preliminary matter, this Court should decline

to review the case at hand because the petition is untimely as to the per curiam affirmance issued by the

Third District, which stands at its core. There is no basis for review of the subsequent dismissal issued by the

Florida Supreme Court.

A petition for a writ of certiorari to review the decision of a state court of last resort must be filed within

90 days after entry of the judgment. U.S. Sup. Ct. Rule

13.1. If a petition seeks review of a judgment from the

lower court that is subject to discretionary review by

the state court of last resort, it is timely if filed within

90 days after entry of the order denying discretionary

review.” Id. In Florida, a per curiam decision without

opinion is not subject to discretionary review by the

Florida Supreme Court. See Gandy v. State, 846 So. 2d

1141, 1144 n.1 (Fla. 2003); Stallworth, 827 So. 2d at

978. Extraordinary writ petitions cannot be used to circumvent this jurisdictional pitfall and obtain the right

to review. Foley v. State, 969 So. 2d 283, 285 (Fla. 2007).

Thus, in such cases, the district court of appeal is considered the highest court from which a decision could

be had, creating the basis for a potential petition for

further review. See Williams, 399 U.S. at 80 n.5.

Here, the Third District issued an unelaborated

per curiam affirmance in Borrower’s appeal on January 24, 2018. P-App. at A1-2. Borrower filed a timely

motion for rehearing. R-App. at A1–40. The Third

14

District denied the motion on March 21, 2018. R-App.

at A41. On April 19, 2018, Borrower filed a Petition for

Writ of Mandamus in the Florida Supreme Court,

which was quickly dismissed for lack of jurisdiction.

See Pet. at 14; P-App. at A5.

Borrower states in the subject Petition for Writ of

Certiorari that he is seeking review of the Third District’s per curiam affirmance without opinion and the

Florida Supreme Court’s dismissal of his Petition for

Writ of Mandamus. Pet. at 4. However, since the Third

District was the court of last resort following the issuance of its per curiam affirmance and the Florida Supreme Court lacked jurisdiction for discretionary

review, Borrower’s deadline to seek further review

from this Court expired on June 19, 2018, 90 days from

rendition of the decision. U.S. Sup. Ct. Rule 13.1; Williams, 399 U.S. at 80 n.5. Because Borrower waited until July 23, 2018, to file the first documents with this

Court, his petition is not timely as to the decision of

the Third District, leaving only the Florida Supreme

Court’s dismissal of the Petition for Writ of Mandamus

subject to review. Id.

There is no basis to review the Florida Supreme

Court’s dismissal of the Petition for Writ of Mandamus

because there was no violation of any federal or state

right. Mandamus lies to compel the performance of a

mandatory duty. Fla. Soc’y of Newspaper Editors, Inc.

v. Fla. Pub. Serv. Com., 543 So. 2d 1262, 1264 (Fla. 1st

DCA 1989) (finding mandamus will not lie to direct the

exercise of discretionary authority or to alter or review

action taken in the proper exercise of that discretion).

15

In other words, if performance is discretionary, there

are no grounds to issue the writ. Id. The Florida Supreme Court has long upheld the inherent discretion

of the district courts to issue written opinions only

when, in their reasoned judgment, a written opinion is

required. R. J. Reynolds Tobacco Co. v. Kenyon, 882

So. 2d 986, 989 (Fla. 2004).

Since Borrower’s Petition for Writ of Mandamus

sought to compel the Third District to perform a discretionary task, the Florida Supreme Court did not violate any laws in dismissing the petition. See Kenyon,

882 So. 2d at 989; Fla. Soc’y of Newspaper Editors, Inc.,

543 So. 2d at 1264. Furthermore, as the Florida Supreme Court rightfully acknowledged, it had no authority to use the Petition for Writ of Mandamus to

circumvent its jurisdictional requirements and review

an unelaborated per curiam decision. See P-App. at A5;

Foley, 969 So. 2d at 285. As to the Florida Supreme

Court’s decision, the subject Petition for Writ of Certiorari should be denied at the outset.

B. Borrower Has Not Shown Any Violation of

Due Process Involving the Disposition of

his Appeal to the Third District

In his first question presented, Borrower contends

that the Third District and the Florida Supreme Court

violated due process in disposing of his appeal. Assuming arguendo this argument has been timely raised,

it lacks merit on both procedural and substantive

grounds.

16

i.

Borrower Failed to Raise His Due Process Challenge Below

First, Borrower’s argument fails on procedural

grounds because it was not raised below. In general,

this Court will only consider arguments that were

raised and decided by the lower court. See Adams

v. Robertson, 520 U.S. 83, 85 (1997) (dismissing a

petition for a writ of certiorari as improvidently

granted where the federal challenge to the state rule

was never presented to the state supreme court);

accord Granfinanciera, 492 U.S. at 39.

Here, Borrower mentioned federal due process

protections only briefly in his Motion for Rehearing of

the per curiam affirmance. R-App. at A24–26, 30, 35.

He did not include the detailed arguments contained

in the subject petition. Compare Pet. at 18–42 with RApp at A1–40. Indeed, Borrower did not rely on any

federal issues or split of authority in his defense of this

standard state court foreclosure until the subject appeal. Id. As a result, this Court should find the arguments made in the petition were not preserved.

ii. Borrower Has Not Shown that the Third

District or the Florida Supreme Court

Violated Due Process

Even if Borrower had preserved a due process

challenge to the Third District’s per curiam affirmance,

his argument would have no merit.

In his petition, Borrower cites two tests employed

by federal courts to determine whether due process

17

protections apply. Pet. at 18–19. Considering these

tests alongside the facts presented, Borrower concludes that he has met all requirements entitling him

to due process protections. Pet. at 20–24. Regardless of

whether this is accurate, it is merely the start of the

analysis. Where due process applies, it requires that

the parties whose rights are to be affected receive notice and an opportunity to be heard. Fuentes v. Shevin,

407 U.S. 67, 80 (1972). In this case, the record shows

that Borrower received just that.

Borrower participated in the lower court proceedings by responding to the complaint, opposing the motion for summary judgment, and engaging at the

hearings. R. 53, 156, 158–59, 166–78, 179–83. After entry of the final judgment, Borrower appealed to the

Third District. See R. 341–46. Upon the resolution of

the appeal, Borrower moved to vacate the final judgment based on fraud, filing his motion exactly one year

from the date the final judgment was entered. R. 276–

331. Borrower had received notice and an opportunity

to be heard on his motion to vacate. See R. 357; SR1.

376–95; SR3. 400–05. Indeed, the trial court scheduled

a 30-minute special set hearing at his request. R. 357;

SR2. 396–97; SR3. 404–05. At the hearing, Borrower

chose to rely on the arguments of his counsel, presenting no evidence to support his claims. SR1. 376–95.

Still, after the trial court denied the motion, Borrower

appealed and received an opportunity to make appellate arguments in his briefs. See Docket for Daniel H.

Alexander and Jacqueline P. Alexander v. Bayview

Loan Servicing, LLC, No. 3D16-2228. When the Third

18

District affirmed the order on appeal without need for

oral argument, Borrower moved for rehearing. Id.; RApp. at A1–40. These actions show that to the extent

due process was implicated, the courts did not violate

its protections. See Fuentes, 407 U.S. at 80.

iii. Borrower Did Not Establish Fraud on

the Court

In his petition, Borrower contends that “fraud on

the court violates due process when it deprives life, liberty, or property.” Pet. at 25. As examples, Borrower

cites to several cases that he asserts involved fraudulent conduct by various banks in foreclosure proceedings. Pet. at 25–30. None of the citations on these pages

involve the parties to this case. Id.

To be clear, Borrower did not present any evidence

here that indicated Bayview committed fraud. As

stated, Borrower actively participated in litigation below, which gave him an opportunity to develop a record.

See R. 53, 156, 158–59, 166–78. Yet, there was no evidence of fraud. R. passim. One year to the date after

the entry of final judgment for Bayview, the eve of the

deadline established by rule, Borrower moved to vacate the final judgment for purported fraud involving

the note’s endorsement. R. 276–331. The motion sat

pending for over two months before the trial court held a

special set hearing. R. 1–8, 357. Nonetheless, Borrower

produced no evidence before or during the hearing to establish his allegations. Id. Any effort to suggest otherwise would be erroneous. This case comes down to a

19

fact-bound disagreement about the discretionary choice

not to write an opinion following the disposition of a

standard foreclosure appeal. It lacks merit.

iv. Borrower Was Not Entitled to a Written

Opinion from the Third District

Borrower shoehorns a potential basis for this

Court’s review by arguing that “[b]y refusing to write

an opinion, the Third District denied Borrower equal

access to the Florida Supreme Court and due process

of law.” Id. This statement is the crux of Borrower’s petition, and it fails to establish jurisdiction.

The discretion to write an opinion has long rested

with the district courts. R. J. Reynolds Tobacco Co., 882

So. 2d at 989. As the First District Court of Appeal has

noted:

The respective District Courts of Appeal in

the State of Florida are courts of final appellate jurisdiction except for a narrow classification of cases made reviewable by the

Supreme Court. Article V, Section 5(3), Constitution of the State of Florida, F.S.A. These

courts were not established by the people of

Florida as intermediate appellate courts or

“way stations” to the Supreme Court of Florida. Each of the some eight hundred cases reviewed by this Court in each calendar year

does not require a full written opinion in the

disposition of same. This Court and not the

attorney for the losing party is charged with

20

the responsibility of deciding which cases

merit and warrant a full written opinion upon

the basis of that opinion’s contribution to the

jurisprudence of this State and those cases of

great public interest. This Court is not now

denying and has not denied appellants herein

any constitutional right and has not overlooked or failed to consider the jurisprudence

of this State in ruling upon the merits of the

appeal. Appellants are not entitled as a matter of constitutional right to a written opinion

from this Court in order that they might petition for writ of certiorari.

Taylor v. Knight, 234 So. 2d 156, 157 (Fla. 1st DCA

1970).

Here, Borrower asserts that the Third District has

abused the per curiam affirmance to “deny appeals” in

cases involving allegations of fraud, perjury, or the destruction of evidence. Pet. at 32. While Borrower contends that the Third District’s use of such affirmances

has become so arbitrary that it violates due process, he

provides no support for this point. Pet. at 33–35. Indeed, no case has held that a court violates due process

by exercising its discretion not to write an opinion in

circumstances like those at issue in this case. In fact,

the opposite is true. See Taylor, 234 So. 2d at 157.

Where Borrower has failed to show any basis or

need for this Court to review the unelaborated per curiam affirmance, this Court should decline to exercise

its certiorari jurisdiction.

21

C. This Court Lacks Jurisdiction to Consider

the Arguments Involving Disqualification

In his second question presented, Borrower asks

this Court to consider whether the Florida Supreme

Court and the Third District violated federal due process by refusing to grant disqualification in the subject

case. Pet. at i. Despite failing to file any motion for disqualification or recusal in any court below, Borrower

contends that “[d]ue process demands the Third District disqualify itself from foreclosures as its impartiality is objectively questioned.” Pet. at 35. Assuming

arguendo this argument has been timely raised in this

Court, it fails for several reasons.

First, as noted throughout this brief, Borrower

never properly raised the issue of disqualification in

either state appellate court, placing the argument asserted in his petition squarely within the realm of

those this Court has routinely declined to consider. See

Adams, 520 U.S. at 85; accord Granfinanciera, 492 U.S.

at 39.

Second, even if the argument was raised, it is not

supported by law or fact. As Borrower acknowledges,

“the disqualification of an appellate judge is a matter

which rests largely within the sound discretion of the

individual involved.” Giuliano v. Wainwright, 416 So.

2d 1180, 1181 (Fla. 1982). Each judge must determine

for himself the legal sufficiency of a motion and the

propriety of withdrawal under the circumstances. In re

Estate of Carlton, 378 So. 2d 1212, 1216 (Fla. 1979).

The procedural rules applicable to trial judges do not

22

apply. Id. Nonetheless, appellate judges may consider

whether the request was made within a reasonable

time and shows a well-grounded fear of bias. Clarendon Nat’l Ins. Co. v. Shogreen, 990 So. 2d 1231, 1232-33

(Fla. 3d DCA 2008). “It is well settled that an adverse

decision will not serve as the basis for a motion to disqualify.” Moore v. State, 820 So. 2d 199, 206 (Fla. 2002);

Correll v. State, 698 So. 2d 522, 525 (Fla. 1997) (stating

that adverse rulings are not sufficient to establish bias

or prejudice).

Here, Borrower’s basis for disqualifying the Third

District involves its decisions in foreclosure cases and

the alleged appearance of impartiality that those decisions have created. See Pet. at 14–16, 35–41. Borrower

claims that one of the many “objective reasons” to

question the Third District’s impartiality comes from

recent articles published by the Daily Business Review.

See Pet. at 14–16, 39. But Borrower’s description of

these articles is misleading. See id. The articles do not

establish that, “there is no question that the Third District is pro-business and couldn’t care less about homeowners.” See Pet. at 14. In fact, the primary article

upon which Borrower relies reports on an attorney

frustrated with the Third District’s decisions in his

cases. See id. Importantly, the Florida Supreme Court,

as well as this Court, have rejected results-based motions for disqualification or recusal. See e.g. Moore, 820

So. 2d at 206; Liteky v. U.S., 510 U.S. 540, 555 (1994)

(finding that judicial rulings alone almost never constitute a valid basis for a bias or partiality). Thus, there

is no basis to assert any error with the Third District

23

or the Florida Supreme Court’s decision on disqualification, to the extent that either had the opportunity to

consider the issue.

Third, even if there was a potential legal issue

with disqualification, this Court has recognized that

while a fair trial is a basic requirement of due process,

most matters relating to judicial disqualification do

not rise to a constitutional level. Caperton v. A.T. Massey, 556 U.S. 868, 876 (2009). Federal due process incorporates the common law rule that a judge must

recuse himself when he has a direct, personal, substantial, pecuniary interest in a case. Id. “Personal bias or

prejudice alone would not be sufficient basis for imposing a constitutional requirement under the Due Process Clause.” Id. at 877.

In this case, again, Borrower’s only arguments

for disqualification stem from an alleged appearance

of impartiality or bias against homeowners. Pet. at

14–16, 35–39. Regardless of the veracity of such arguments, which Bayview would dispute, they do not implicate federal due process concerns. Caperton, 556

U.S. at 876–77. This Court should reject Borrower’s Petition for Writ of Certiorari to the extent it seeks review of a determination on disqualification related to

purported bias.

Borrower relies on two cases for his challenge to

the disqualification of the court, but neither directly

supports the proposition for which it was cited. See Pet.

at 39–41. Borrower’s first case, Sundquist v. Bank

of America, involved a sanctions order for alleged

24

misconduct by Bank of America. See Sundquist, 566

B.R. 563 (U.S. Bankr. E.D. Cal. 2017). There were no

findings involving Bayview. Id. at passim. Borrower’s

second case does name Bayview, but it concerned

unique circumstances surrounding repeated failures

to participate in mediation. Bayview Loan Servicing,

LLC v. Bartlett, 87 A.3d 741, 749 (Me. Sup. Ct. 2014).

Contrary to Borrower’s contention, the Maine Supreme Court did not “award the Borrower a free home.”

See Pet. at 41. While the court acknowledged that a

prejudicial dismissal could impact a subsequent action, it expressly declined to reach that question. Bartlett, 87 A.3d at 747 n.6.

Overall, Borrower has not shown any basis for jurisdiction or a need to consider the sua sponte disqualification or recusal of district court judges without a

motion filed below. This Court should deny Borrower’s

Petition for Writ of Certiorari on this issue.

D. Borrower Has Not Shown Any Compelling

Reason for Review

In short, Borrower’s Petition for Writ of Certiorari

is a diatribe against the Third District for a factspecific decision. If there is a basis for jurisdiction, this

Court should still deny the petition, because Borrower

has not established any compelling reason to exercise

jurisdiction.

As with a written opinion, “review on a writ of certiorari is not a matter of right.” U.S. Sup. Ct. Rule 10.

Even if a petitioner can establish a jurisdictional basis

25

for review, he must still provide a compelling reason or

some conflict to justify relief. Id. As the rule states, a

petition is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law. Id. Borrower’s

petition falls squarely in that category.

Despite pages of argument, Borrower simply has

not established a compelling reason to warrant this

Court’s review. Borrower makes no effort to argue that

the state court decided an important federal issue in a

manner that conflicts with decisions of the federal or

state appellate courts. Pet. at passim. Indeed, there

is no assertion of any conflict between or among jurisdictions. Id. The record would not support it. Instead,

Borrower asserts that review is necessary to protect

against fraud, despite the absence of any record evidence. Pet. at 35.

Without any compelling reason or split of authority presented, this Court should decline to consider

whether the disposition of a standard foreclosure appeal by way of a per curiam affirmance without opinion

and the absence of any sua sponte disqualifications by

the Third District or the Florida Supreme Court violated Borrower’s federal due process rights. It should

deny the Petition for Writ of Certiorari.

------------------------------------------------------------------

26

CONCLUSION

For the reasons stated herein, this Court should

deny the Petition for Writ of Certiorari.

Respectfully submitted,

MARY J. WALTER, ESQ.

LIEBLER, GONZALEZ & PORTUONDO

Courthouse Tower, 25th Floor

44 West Flagler Street

Miami, FL 33130

(305) 379-0400

mjw@lgplaw.com

Counsel for Respondent