Petition for Writ of Certiorari — Donny Marin, et al., Petitioners v. The Bank of New York
Supreme Court briefNov 26, 2018
Ask Donna
What actually matters in this document.
Text
No.
IN THE
Supreme Court of the United States
DONNYMARIN, ET AL
Petitioner,
V.
THE BANK OF NEW YORK,
Respondent.
ON PETITION FOR WRIT OF CERTIORARI
To THE DISTRICT COURT OF APPEAL OF FLORIDA
THIRD DISTRICT
PETITION FOR WRIT OF CERTIORARI
BRUCE JACOBS, ESQ.
JACOBS LEGAL, PLLC
ALFRED I. DUPONT BUILDING
160 EAST FLAGLER STREET, SUITE 1620
MLe1VII, FL 33131
(305) 358-7991
Jacobs@iakelegal.com
Attorney for Petitioner
QUESTIONS PRESENTED FOR REVIEW
Whether the due process protections enshrined in
the 5th and 14th Amendments of the U. S.
Constitution prohibit Florida Courts from turning a
blind eye to the use of fraudulent evidence barred by
the $25 Billion National Mortgage Settlement to
obtain the equitable relief of foreclosure and to
ignore objective reasons to question the impartiality
of those Florida Courts that require disqualification?
PARTIES TO THE PROCEEDING
AND RULE 29.6 STATEMENT
The Petitioner, Donny Mann, ("Mr. Mann") was the
defendant in the Circuit Court of the Eleventh
Judicial Circuit in and for Miami-Dade County and
the Appellant in the Third District Court of Appeal
of Florida. Mr. Mann is an individual. Thus,
there are no disclosures to be made by him pursuant
to Supreme Court Rule 29.6.
The Respondent is The Bank Of New York Mellon
f/k/a The Bank Of New York ("BONYM"). No
publicly held corporation owns 10% or more of the
Bank of New York Mellon Corporation's stock.
11
TABLE OF CONTENTS
QUESTIONS PRESENTED FOR REVIEW ..............i
PARTIES TO PROCEEDINGS BELOW...................ii
TABLE OF CONTENTS ............................ ................ iii
TABLE OF AUTHORITIES......................................iv
PETITION FOR WRIT OF CERTIORARI................1
INTRODUCTION .......................................................1
REPORT OF OPINIONS BELOW.............................3
STATEMENT BASIS FOR JURISDICTION............4
CONSTITUTIONAL PROVISIONS AND
STATUTES INYLOVED ............................................4
STATEMENT OF THE CASE ...................................6
REASONS FOR GRANTING THE WRIT...............24
CONCLUSION..........................................................42
APPENDIX
District Court of Appeal Florida Third District
Opinion Dated May 16, 2018 .................................. A-i
111
Eleventh Judicial Circuit
Order Denying Dated July 21, 2017......................A-3
Supreme Court of Florida
Order Denying Dated July 31, 2018......................A-5
-
TABLE OF AUTHORITIES
CASES
PAGE
5—H Corp. v. Pa do vano,
708 So. 2d 244 (Fla.1997) ....................................... 41
American Mfrs. Mutual Ins. Co., v. Sullivan,
526 U.S. 40, 119 S.Ct. 977 (1999) ..........................36
Bayview Loan Servicing, LLC v. Bartlett,
87 A.3d 741 (Maine S. Ct. 2014) ......................35, 36
Bein v. Heath,
47 U.S. 228, 6 How. 228, 1848 WL 6464 (U.S.La.),
12 L.Ed. 416 (1848) .............................................33
Board ofRegents of State Colleges v. Roth,
408 U.S.. 564, 92 S.Ct. 2701 (1972)........................36
Brinkerhoff-Faris Trust & Say. Co. v. Hill,
281 U.S. 673, 50 S. Ct. 451, 74 L. Ed. 1107 (1930)40
Burlington Truck Lines v. United States,
371 U.S. 156, 83 S.Ct. 239 (1962)..........................39
lv
Caldwell v. Mississippi,
472 U.S. 320 (1985)
.31
Caperton v. A. T. Massey Coal Co.,
556 U.S. 868, 129 S. Ct. 2252, 173 L. Ed. 2d 1208
(2009) ...................................................................30
Carey v. Piph us,
425 U.S. 247, 262 (1978) (1978)...........................43
Clarendon Nat. Ins. Co. v. Shogreen,
990 So. 2d 1231 (Fla. 3rd DCA 2008) ....................41
Crosby v. State,
97 So. 2d 181 (Fla. 1957)........................................43
Darden v. Wainwright,
477 U.S. 168 (1986) ................................................31
Decarion v. Monroe County,
853 F. Supp 1415 (S.D. Fla. 1994).........................39
Elliot v. Elliot,
648 So. 2d 137 (Fla. 4th DCA 1994) ......................26
Fed. Nat'] Mortg. Ass'n v. Bradbury,
32 A.3d 1014 (Me. 2011)............................................3
Florida Star v. B.J.F.,
530 So.2d 286 (Fla. 1988).........................................5
V
Fuentes v. She yin,
407 U.S. 67, 92 S.Ct. 1983 (1972)..........................38
Giglio v. United States,
405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104
(1972) ...................................................................32
Giuliano v. Wainwright,
416 So. 2d 1180 (1982) ........................................... 41
Hysler v. State of Fla.,
315 U.S. 411, 62 S. Ct. 688, 86 L. Ed. 932 (1942) .33
In re Aleman,
995 So. 2d 395 (Fla. 2008)...................................... 22
In re Canton,
378 So. 2d 1212 (F1a.1979) ..................................... 41
Jeffries v. Turkey Run Consolidated School
District,
492 F.2d 1 (7th Cir. 1974) ......................................39
Jenkins v. State,
385 So. 2d 1356 (Fla. 1980)....................................37
Kemp v. Countrywide Home Loans, Inc.,
440 B.R. 624 (Bankr. D. N.J. 2010) .........................3
League v. De Young,
52 U.S. 185, 13 L. Ed. 657 (1850) .......................... 31
vi
Livingston v. State,
441 So. 2d 1083 (Fla. 1983)..............................43, 44
Mann v. Bank of New York,
2018 WL 2230041 (Fla. 3rd DCA May 16, 2018).... 4
Mann v. Bank of New York,
2018 WL 3655258 (Fla. July 31, 2018)....................4
Marshall v. Jerrico, Inc.,
446 U.S. 238 (1980) ................................................43
MERSGORP, Inc. v. Romaine,
8 N.Y.3d 90, 861 N.E.2d 81, 828 N.Y.S.2d 266
(2006) .....................................................................2
Mesarosh v. United States,
352 U.S. 1 (1956) ........................................31, 34, 35
Miller v. Pate,
386 U.S. 1 (1967) ....................................................31
Mooney v. Holohan,
294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935).. 31,
32
Motor Vehicle Mfrs. Ass 'n of U.S., Inc. v. State
Farm,
463 U.S. 29, 103 S.Ct. 2856 (1983) ........................39
Pino v. Bank of New York, Mellon,
57 So. 3d 950 (Fla. 4th DCA 2011) ........................27
Vii
R.J Reynolds Tobacco Co. v. Kenyon,
882 So.2d 986 (Fla. 2004).........................................5
Ramey v. Haverty Furniture Companies, Inc.,
993 So. 2d 1014 (Fla. 2nd DCA 2008)....................36
Rinaldi v. Yeager,
384 U.S. 305, 86 S.Ct. 1497 (1966) ........................37
Ripo v. Baker,
137 S. Ct. 905, 197L. Ed. 2d 167 (2017) ...............42
Roberson v. Florida Parole and Probation
Commission,
444 So. 2d 917 (Fla. 1983)......................................39
Rochin v. People of California,
342 U.S. 165, 72 S.Ct. 205 (1952)..........................39
Shaffer v. Deutsche Bank Nat. Trust.,
2017 WL 1400592 (Fla. 2nd DCA).........................33
Sorenson v. Bank of New York Mellon as Trustee
for Certificate Holders CWALT, Inc.,
2018 WL 6005236 (Fla. 2nd DCA Nov. 16, 2018) 27,
28
St. Paul Title Ins. Co. v. Davis,
392 So. 2d 1304 (Fla. 1981)....................................37
VII"
Sundquist v. Bank ofAmerica,
2017 WL 1102964 (U.S. Bkrptcy, E.D. Cal. issued
March 23, 2017)...................................................34
Taylor v. Hayes,
418 U.S. 488 (1974) ................................................43
Truax v. Corrigan, 257, U.S. 312,333,
42 S.Ct. 124 (1921) .................................................38
United States v. Agurs,
427 U.S. 97 (1976) ..................................................31
Williams v. Florida,
399 U.S. 78 (1970) ....................................................5
Williams v. Pennsylvania,
136 S. Ct. 1899, 195 L. Ed. 2d 132 (2016) .............42
Williams-Yulee v. Fla. Bar,
135 S. Ct. 1656, 191 L. Ed. 2d 570 (2015) .............42
PAGE
STATUTES
28 U.S.C. §1257(a) ......................................................5
Article V of the Florida Constitution.......................37
Article V, Section 1 of the Florida Constitution......45
Florida Statute § 702.01 ....................................... 6, 33
lx
RULES
PAGE
Fla. R. App. P. 9.330(d)(2) ..........................................5
Florida Rule of Civil Procedure 1.115(e) .............6, 34
Florida Rule of Civil Procedure 1.540(b) .........Passim
OTHER AUTHORITIES
PAGE
Confronting the Mortgage Meltdown: A Brief for
the Federalization of State Mortgage Foreclosure
Law,
37 PEPP. L. REV. 583 (2010) ..................................2
Discretionary Review of the Decisions of
Intermediate Appellate Courts: A Comparison
of Florida's System with Those of the Other
States and the Federal System,
45 Fla. L. Rev. 21 (Jan. 1993) .......................... 37, 38
What Really Happened: Ibanez and the Case For
Using the Actual Transfer of Documents,
41 Stetson L. Rev. 817 (Spring 2012)......................2
x
PETITION FOR WRIT OF CERTIORARI
Donny Mann respectfully petitions for a Writ of
Certiorari to review the judgment of the Third DCA
after the Florida Supreme Court declined to accept
jurisdiction.
INTRODUCTION
In 2008, the United States suffered "the greatest
economic meltdown since the Great Depression" and
"[alt the core of this crisis was the mortgage
meltdown" caused by the securitization of subprime
mortgages.' Securitization of mortgages was made
possible largely through the expansive use of a
private financial industry-created database system,
Mortgage Electronic Registration Systems, Inc.
("MERS"), as a replacement for state recording laws.
See generally, In re MERSCORP, Inc. v. Romaine, 8
N.Y.3d 90, 96, 861 N.E.2d 81, 828 N.Y.S.2d 266
(2006).
With the collapsed the housing market, the MERS
system was exploited by the nation's large mortgage
Nelson, G.S., Confronting the Mortgage Meltdown: A Brief for
the Federalization of State Mortgage Foreclosure Law, 37 PEPP.
L. REV. 583, 583 (2010). See generally Lapidus, A.L., What
Really Happened: Ibanez and the Case For Using the Actual
Transfer of Documents, 41 Stetson L. Rev. 817, 817-18 (Spring
20 12)(citations omitted).
1
service providers for a different purpose the mass
production of false and fictitious mortgage
assignments for use in foreclosures. This "robosigning scandal" led to several investigations by
federal regulators and the U.S. Department of
Justice ("the DOJ") into misconduct by Bank of
America, N.A. ("BANA"), JP Morgan Chase
("Chase") and other large financial institutions.
These investigations resulted in settlements worth
billions of dollars and promises by these financial
institutions to stop using false and fictitious
evidence in foreclosures. At the time, the Maine
Supreme Court stated:
-
this case is a disturbing example of a
reprehensible practice. That such
fraudulent evidentiary filings are being
submitted to courts is both violate of the
rules of court and ethically indefensible. The
conduct
displays a serious and alarming
lack of respect of the nation's judiciaries.
...
Fed. Nat'] Mortg. Ass'n v. Bradbury, 32 A.3d 1014,
1016 (Me. 2011). See also Kemp v. Countrywide
Home Loans, Inc., 440 B.R. 624 (Bankr. D. N.J. 20 10)
(refusing to recognize as legitimate Countrywide's
attempted transfer of a note and mortgage that had
not been properly endorsed); In re Hill, 437 Bankr.
W.D. Pa. 2010) (issuing a "public censure" against
Countrywide and counsel for fabricating evidence).
There is clear and convincing evidence that Chase,
BANA, and other large financial institutions
defrauded those government regulators and the
DOJ by negotiating multi-billion dollar settlements
while continuing to systemically use false evidence
in foreclosures.
Chase, BANA and others still bombard state and
federal courts fraudulent paperwork. There is a
pattern of false mortgage assignments and after-thefact rubberstamped blank endorsements, backdated
by perjury with the knowledge of the Banks' most
senior management, being presented as competent
evidence in mortgage foreclosure actions from
Florida to Ohio to Hawaii.
The Third DCA has turned a blind eye to this
widespread fraudulent conduct, refusing to hold
Respondent or BANA accountable to the rule of law.
There is a clear pattern of bias in the Third DCA
which the Florida Supreme Court has declined to
address, leaving this Court to confront the fraud and
bias that violated Mr. Mann's due process rights
under the 5th and 14th Amendments to the U.S.
Constitution.
REPORTS OF OPINIONS BELOW
The opinion of the Third DCA giving rise to this
petition is Mann v. Bank of New York, No. 3D171730, 2018 WL 2230041 (Fla. 3rd DCA May 16,
2018), and the Florida Supreme Court decision that
declined to accept jurisdiction to review that opinion.
3
Mann v. Bank of New York, No. SC18-1242, 2018
WL 3655258 (Fla. July 31, 2018). See App. 1-3.
STATEMENT OF BASIS FOR JURISDICTION
The per cuniam affirmance ("PCA") sought to be
reviewed was entered by the Third DCA on May 16,
2018. On July 31, 2018, the Florida Supreme Court
determined it should decline to accept jurisdiction
and denied a petition for writ of mandamus,
rendering the Third DCA's opinion a decree from the
highest court of the State of Florida. See R.J
Reynolds Tobacco Co. v. Kenyon, 882 So.2d 986, 989
90 (Fla. 2004). Therefore, the Third DCA was the
state court of last resort from which Petitioner could
seek review. See, e.g., Williams v. Florida, 399 U.S.
78, 79 11.5 (1970) (where the Florida Supreme Court
was without jurisdiction to entertain an appeal, "the
District Court of Appeal became the highest court
from which a decision could be had."); Florida Star
v. B.JF, 530 So.2d 286, 288 n.3 (Fla. 1988).
Therefore, the Court's jurisdiction is invoked under
28 U.S.C. §1257(a).
CONSTITUTIONAL PROVISIONS
AND STATUTES INVOLVED
The Fifth Amendment to the United States
Constitution provides in relevant part: "No person
shall be
deprived of life, liberty or property
without due process of law...."
...
4
The Fourteenth Amendment to the United States
Constitution provides in relevant part: "No state
shall ... deprive any person of. property, without
due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws."
.
.
Florida Statute § 702.01 provides "All mortgages
shall be foreclosed in equity. .."
Florida Rule of Civil Procedure 1.115(e) provides:
"Verification; When filing an action for foreclosure
on a mortgage for residential real property the claim
for relief shall be verified by the claimant seeking to
foreclose the mortgage...."
Florida Rule of Civil Procedure 1.540(b) provides
"(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... for the following reasons: ... (3)
fraud (whether heretofore denominated intrinsic or
extrinsic), misrepresentation, or other misconduct of
an adverse party; ... 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."
5
STATEMENT OF THE CASE
A. Statement of the Facts
Fraud on the Courtin this Foreclosure
(i)
Respondent filed this initial foreclosure complaint
on November 4, 2008. R. 25-45. The complaint
alleged the promissory note was lost and attached a
copy of the lost note which lacked any endorsements.
R. 27-28, 41-45. Thereafter, on December 14, 2009,
Respondent filed an amended complaint that
dropped the lost note count but again attached a
copy of an unendorsed promissory note. R. 88-92.
BANA as successor by merger to Countrywide Home
Loans, Inc. acted as Servicer for BONYM for
Petitioner's loan. R. 200-209. BANA prosecuted
this foreclosure with its own evidence and witnesses
on BONYM's behalf. R. 200-209.
Respondent attached to its amended complaint an
assignment of mortgage ("AOM") prepared by its
counsel and recorded in the Miami-Dade Public
Records on November 12, 2008. R.105. The AOM
falsely claimed Mortgage Electronic Registration
Systems Inc., ("MERS") sold Petitioner's note to the
Respondent on October 15, 2008. R. 105.
It
(ii)
The Trial Court Denied Due Process by
Striking Any Claims of Fraud or
Unclean Hands from the Pleadings
As trial approached, Petitioner filed two motions
seeking a continuance because of Respondent's
stonewall discovery tactics, failure to file a witness
list, and failure to produce a witness for deposition.
R. 122-123, R125-126.
Respondent filed court
ordered discovery responses raising privilege
without a privilege log. Respondent also refused to
coordinate dates to hear its discovery objections. R.
125-126.
On October 6, 2011, the trial court
granted the motion to continue the trial. R. 127.
On January 3, 2012, Petitioner filed the first of four
motions to amend affirmative defense and three
motions to file counterclaims alleging fraud on the
court.
R. 167-177.
Petitioner raised unclean
hands and specifically alleged the endorsement was
added during the course of litigation so Plaintiff
could fraudulently establish a right to enforce the
note. R. 170. The third affirmative defense also
attacked the MERS AOM since "MERS never holds
the note and the Trust cannot accept such a transfer
pursuant to its controlling Pooling and Servicing
Agreement ("PSA"). R. 170.
The trial court reset the trial even though the
pleadings were not closed as Respondent's motion to
strike affirmative defenses alleging fraud and
unclean hands was pending. R. 178-200, 203-205.
On November 8, 2013, Petitioner filed a motion to
amend their affirmative defenses to raise additional
facts discovered in other related cases into this
systemic fraud. R. 212-232. On November 20,
2013, five years into the case, Respondent filed
another motion to strike the affirmative defenses
attaching a copy of the original note with two
undated rubber-stamped signatures for David A.
Spector as Managing Director of Countrywide Home
Loans, Inc. and Countrywide Mortgage Ventures,
LLC. R. 279. Neither of these undated rubber
stamped endorsements appeared on the note
attached to the initial complaint or the amended
complaint. R. 41-45 and 88-92.
On December 19, 2013, Petitioner filed a
counterclaim that alleged Fraud/Fraud on the Court
and stated Respondent "falsely claimed it took
ownership of the loan from MERS by assignment"
and "caused an undated rubber stamped blank
endorsement of David Spector's signature to be
affixed to the original note after the filing of this
action." R. 282. The David Spector endorsement
was added after the filing of the case and after Mr.
Spector "ceased employment with countrywide." R.
282-283. The counterclaim alleged Respondent
filed its lost note count knowing the allegation was
false when made in a "pattern and practice of
material misrepresentations" made to mislead "the
court and in fact the entire justice system." R. 283.
On December 19, 2013, the trial court struck all the
defenses alleging unclean hands and fraud with
leave to amend. R. 290. On January 24, 2014,
Petitioner filed his third amended answer and
affirmative defenses. R. 294-310. On February
20, 2014, the trial court granted a motion to strike
all counterclaims with 5 days leave to amend. R.
372. On February 25, 2014, Petitioner filed a
fourth amended answer, affirmative defenses and
counterclaim which gave even more details into the
systemic fraud upon the court involving these
endorsements and assignments.
On March 13, 2014, the trial court dismissed
Petitioner's counterclaims with prejudice as
conclusory and time barred. R. 454-455. On
January 23, 2015, Petitioner filed a motion to amend
counterclaims attaching an order from the
Honorable Miami-Dade Circuit Court Judge David
Miller finding BONYM's servicer, BANA engaged in
bad faith discovery tactics to hide evidence of
widespread fraud. R. 585-590.
The new counterclaims alleged with great specificity
that BONYM and BANA were liable for civil
conspiracy to commit fraud, violations of Florida's
RICO statute, and sought a declaratory judgment
that Respondent's continued use of fraudulent
evidence after the $25 Billion National Mortgage
Settlement constitutes unclean hands barring the
equitable relief of foreclosure. R. 582-633, 608.
On January 30, 2015, Petitioner filed an emergency
motion to amend its answer, affirmative defenses,
and counterclaims citing to a recent court ordered
(by multiple judges) deposition testimony of
Respondent's corporate representative admitting to
the widespread use of unauthorized endorsements to
create false evidence of standing to foreclosure. R.
638. On February 12, 2015, the trial court denied
leave to amend the counterclaims to bar claims of
fraud or unclean hands. R. 729.
(iii)
The Trial Court Refused to Disqualify
Itself and Instea d Ab used Its Power by
Threatening Petitioner's Counsel with
Contempt and Bar Complaints and the
Third DCA Takes No Action
On February 18, 2015, the trial court began the trial
by threatening to hold Petitioner's counsel in
contempt of court for asking for a continuance to file
a motion to disqualify the trial court. R. 1247. By
the end of the trial, Petitioner filed a formal written
motion to disqualify the trial court. The Motion for
Disqualification argued the trial court appeared
objectively biased after it: (1) refused to permit
Petitioner's counsel an opportunity to be heard
according to law; (2) made statements on the record
that she does not believe Defendant's counsel
because "Judges talk" about him; (3) prejudged the
case by denying Petitioner's Motion for Involuntary
Dismissal before even allowing argument on the
motion; (4) repeatedly denied Petitioner's counsel a
continuance to permit the filing of a written motion
10
to disqualify in violation of Florida Supreme Court
law; (5) repeatedly threatening to hold Petitioner's
counsel in contempt of court for requesting an
opportunity to be heard and a continuance to file a
written motion for disqualification; (6) working on
other matters during the trial and repeated
stoppages of the trial to conduct trials in other
matters; (7) the failure to exclude rank hearsay or
require any foundation for redacted documents
produced by Plaintiffs counsel and introduced into
evidence as a business record not made by the
witness' business; (8) denying any meaningful
discovery; and (9) striking affirmative defenses and
counterclaims alleging fraud. R.984-985.
On February 26, 2015, the trial court summarily
denied the Motion to Disqualify and ordered
Petitioner to file an emergency appeal to the Third
DCA within 48 hours. R. 1053. Petitioner filed a
Petition for writ of prohibition alleging the trial
judge prejudged the case, ignored evidence of fraud,
abused its power to threaten contempt and more in
Third DCA case number 3D15-471. On March 2,
2015, the Third DCA summarily denied the Writ of
Prohibition.
(iv)
The Trial Court Enters a Judgment
Granting the Equitable Relief of
Foreclosure Ignoring the Fraud
On June 4, 2015, as feared, the trial court entered a
R. 1217-1221.
final judgment of foreclosure.
11
Strikingly, the trial court found Petitioner's loan
belonged to the Respondent in 2006 and relied on the
backdated AOM that said Respondent acquired the
loan from MERS on October 15, 2008. R. 1227.
On June 19, 2015, Petitioner filed a timely Motion
for Rehearing attaching an expert witness report of
Jay Patterson who explained that MERS never could
or did do anything with the Respondent and
Petitioner's loan. R. 1104-1190. The Motion for
Rehearing argued the trial court ignored "dozens of
reported cases" that hold a plaintiff fails to prove
standing without proof the note was endorsed before
filing the complaint. R. 1107. The trial court
erred in denying leave to raise defenses or file
counterclaims based on the fraud on the court and
denied due process and a fair trial. R. 1110-1113.
Respondent responded to the Motion for Rehearing
conceding it never intended to rely on the MERS
assignment to "establish standing in any form." R.
1197. Thereafter, the trial court denied the Motion
for Rehearing on July 20, 2015. R. 1206.
(v)
With the First Appeal Pending, the
Third DCA Refused to Relinquish
Jurisdiction for the Trial Court to
Consider Petitioner's Motion for Relief
From Judgment Due to Newly
Discovered Evidence and Fraud
On August 20, 2015, Petitioner filed a notice of
12
appeal in Third DCA case number 3D15-1927 ("the
first appeal"). On the one year anniversary of the
final judgment, Petitioner filed a timely Motion to
vacate judgment due to newly discovered evidence
and fraud upon the court under Fla. R. Civ. P.
1.540(b) ("the Rule 1.540(b) Motion"). The Rule
1.540(b) motion alleged Respondent's servicer,
BANA, affixed the undated rubber stamped blank
endorsement for Countrywide years after
Countrywide ceased to exist and Mr. Spector no
longer worked for Countrywide. Thereafter, BANA
suborned perjury from its most senior executives to
falsely claim Countrywide affixed the endorsements
years earlier.
On April 8, 2016, the Third DCA denied a motion to
relinquish jurisdiction to permit the trial court to
consider the Rule 1.540(b) Motion. On June 8,
2016, the Third DCA denied a motion to supplement
the appellate record with the Rule 1.540(b) motion,
forcing Petitioner to file an Amended Initial brief to
remove references to the Rule 1.540(b) Motion in the
original initial brief.
The Trial Court denied
Petitioner the right to plead or prove fraud or
unclean hands. The Third DCA did so as well.
13
(vi)
The Third DCA and the Florida
Supreme Court Turned a Blind Eye to
the Egregious Due Process Violations
that Deprived Petitioner of his Real
Property Using Fraudulent IMdence
On November 17, 2016, the Third DCA entered an
order dispensing with oral argument of the first
appeal. Petitioner filed a motion for rehearing of
that order arguing the "serious due process
violations raised in this appeal which involves
allegations of fraud upon the court" that would leave
Petitioner with a reasonable fear that without oral
argument, the Court was not fair or impartial. On
November 22, 2016, the Third DCA confirmed there
would be no oral argument.
On January 24, 2017, the Third DCA issued a PCA.
On March 15, 2017, the Third DCA denied a motion
for rehearing, rehearing en banc and a request for a
written opinion that laid out the constitutional,
statutory and procedural violations by this PCA.
On April 17, 2017, Petitioner filed a Petition for Writ
of Mandamus for the Florida Supreme Court to
order the Third DCA to write an opinion as the
result conflicts with dozens of opinions from the four
other Florida DCAs.
Petitioner cited a
fundamental breakdown in constitutional due
process and argued:
Without articulating any rational basis for its
14
result, the Third DCA affirmed the trial court's
summary rulings that: (i) denied Petitioner's
four (4) motions to assert affirmative defenses
raising unclean hands as a defense to
foreclosure; (ii) denied Petitioner's request to
amend its pleadings to allege counterclaims of
civil conspiracy and violations of Florida's
Racketeering Influenced and Corrupt
Organizations statute ("RICO") for having
multiple Senior Vice Presidents commit perjury
to cover up the fraud on the court; (iii) denied
discovery into all of those allegations; (iv)
denied a jury trial on those counterclaims; (v)
denied a legally sufficient motion to disqualify
the trial court; (vi) denied a writ of prohibition
against the trial court; and (vii) granted a
judgment without proof the note was endorsed
before filing the action.
The Third DCA gave no reason for (i) refusing
to relinquish jurisdiction for the trial court to
hear a timely Rule 1.540(b) Motion alleging this
fraud on the court; (ii) striking appellate oral
argument; and (iii) issuing a PCA....
On April 19, 2017, the Florida Supreme Court
dismissed the Petition asserting there was no
jurisdiction to address the first appeal.
15
(vii)
The Trial Court Refused to Consider
Newly Discovered Evidence of Fraud,
Perjwy, Defiance of Court Orders, and
Even the Destruction of Nearly 2
Billion Records in Violation of a Court
Ordered Subpoena, Triggering Two
More Appeals to the Thfrd DCA
On June 15, 2017, Respondent noticed Petitioner's
Rule 1.540(b) Motion for a 15 minute hearing with
two other motions. R. 3509-3510. The morning of
that hearing, on July 21, 2017, Petitioner filed an
Amended Rule 1.540(b) Motion. R. 1821-2816.
However, the trial court refused to even consider the
Amended Rule 1.540(b) Motion.
R. 3495.
Instead, the trial court summarily denied the
original Rule 1.540(b) Motion from 2016 without
permitting any argument. R. 3435-3436.
The Amended Rule 1.540(b) Motion updated the
record with new evidence discovered during the
federal False Claims Act case filed by Petitioner's
counsel as Relator on behalf of the United States
Department of Housing and Urban Development
before the Honorable U.S. District Court Judge
Ursula Ungaro in the Southern District of Florida.
U.S. ex rel. Bruce Jacobs v. Bank of America Corp.,
et. al.,U.S. Dist. Ct. Case No. 1:15-cv-24585-UU. R.
1822-1825.
The Amended Rule 1.540(b) Motion noted that
Judge Ungaro held the use of the rubber-stamped
16
endorsements and MERS assignments (as used in
this case) "falls within the scope of actions barred by
the [$25 Billion National Mortgage Settlement]
Consent Judgment Servicing Standards...." The
Amended Rule 1.540(b) Motion also noted that
Judge Ungaro found the allegations raised:
a 'reasonable inference' that Defendants signed
the Consent Judgment with the intent to
'continue pursuing mortgage foreclosures by
misleadingly filing copies of promissory notes
bearing rubber-stamped endorsement signatures
that were not legally authorized by the purported
signatories (and therefore, were invalid), and by
filing copies of purported assignments by MERS,
which never owned any interest in the notes that
purportedly were being assigned (and therefore,
were ineffective). R. 18221825.
The Amended Rule 1.540(b) Motion documented
that these undated rubber-stamped endorsements
were created to defraud the Office of the Comptroller
of the Currency (the "0CC"), the Department of
Housing and Urban Development's Office of
Inspector General ("HUDIOIG"), and the United
States Department of Justice ("DOJ"), along with
this Court and other state and federal courts dealing
with mortgage foreclosure actions. R. 1825-1826.
The Amended Rule 1.540(b) Motion set forth that
BANA created a "90 Day Delinquent Note
Endorsement Process" in April of 2011, just three
17
days after the 0CC forced BANA into a Consent
Judgment finding BANA was litigating foreclosures
without properly endorsed notes. The purpose of
the 2011 delinquent note endorsement process was
for BANA to fraudulently affix Countrywide
endorsements to delinquent Countrywide notes
years after Countrywide ceased to exist. BANA
then suborned perjury from Senior Executives to
backdate the rubberstamped endorsements to a time
when Countrywide still existed.
The Amended Rule 1.540(b) Motion also set forth
that BANA's own witness confirmed the notes, such
as the one here, were never endorsed as of 2009.
Linda DeMartini admitted to a federal bankruptcy
judge in New Jersey that notes were not endorsed
between 2006 and 2009.
She admitted the
standard operating procedure was to create a hand
signed allonge when needed, not a rubber stamp.
R. 1841-1843.
The Amended Motion also set forth evidence that
BANA ordered its third party vendor, Sourcecorp, to
purge almost 2 billion records directly related to that
delinquent note endorsement process in violation of
a court ordered subpoena. R. 1825-1831.
The Amended Rule 1.540(b) Motion also set forth
allegations that Respondent and its servicer, BANA,
have a well-documented history of committing fraud
upon the court going back to the first MERS
foreclosures that were dismissed as sham in 2005.
The industry's own investigation confirmed Florida
attorneys lied to the courts about the law and
evidence needed to foreclose in Florida, and other
states. R. 1836-1840.
The Amended Rule 1.540(b) Motion also set forth
that the Honorable Judge David Miller expressly
found Bank of America engaged in "intentional,
willful, and wanton bad faith by refusing to make
good faith responses to discovery" in two orders
awarding sanctions under the Inequitable Conduct
Doctrine. The orders document two years of
stonewall, scorched earth tactics "clearly intended to
deliberately block discovery ordered by several
Circuit Court Judges." R. 1843-1845.
The Amended Rule 1.540(b) Motion also set forth
that the MERS assignment is further evidence of
unclean hands.
The assignment purports to
suggest MERS sold the note and mortgage to the
Respondent. In fact, MERS expressly prohibits
any servicer from creating a MERS assignment from
making such a false representation. MERS never
owns the note and has no right to sell the note.
MERS has only been an instrumentality of fraud
since Judge Gordon struck the MERS foreclosures as
sham in 2005. R. 1845.
As a result of all this, the Amended Rule 1.540(b)
Motion asserted that Respondent had unclean hands
and should be sanctioned for committing a fraud
upon the court. However, on July 21, 2017, the
19
trial court refused to even consider the Amended
Rule 1.540(b) Motion. R. 3495. The trial court
insisted the Florida Rules of Procedure require leave
of court to amend a Rule 1.540(b) Motion, without
citation to any authority in support. R. 3498. Then
the trial court summarily denied the original Rule
1.540(b) Motion without permitting any argument.
R. 3435-3436.
On July 26, 2017, Appellant filed an Emergency
Motion to Vacate and/or Stay Writ of Possession and
Second Verified Motion for Disqualification. R.
3439-3471.
On July 27, 2017, the trial court
summarily denied Motion to Stay the Writ of
Possession and the Second Verified Motion for
Disqualification. R. 3490-3491.
(a) The Appeal of the Trial Court's
Refusal to Grant Disqualification
On November 3, 2017, Appellant filed a second
Petition for Writ of Prohibition in Third DCA case
number 3D13-1730. The petition noted the trial
court allowed Respondent's counsel to argue their
motions while refusing to allow the same courtesy to
Petitioner's counsel.
Furthermore, the petition
noted the trial court repeatedly refused to allow
Petitioner the opportunity to plead and prove
unclean hands, argue the Rule 1.540(b) Motion, or
consider the additional facts in the Amended Rule
1.540(b) Motion that explained all the fraud on the
court, while allowing Respondent to make
20
arguments without interruption.
The second Petition for Writ of Prohibition also
noted that the trial court had repeatedly denied a
proper motion to continue the hearing to permit
Petitioner's counsel to file a proper motion to
disqualify, while repeatedly threatening Counsel
with contempt of court and a bar complaint. The
second Petition for Writ of Prohibition noted the
Florida Supreme Court issued a public reprimand to
another judge engaged in essentially the same
conduct finding this to be an abuse of power. In re
Aleman, 995 So. 2d 395, 399 (Fla. 2008). On
November 15, 2017, the Third DCA summarily
denied the Writ of Prohibition.
(b) The Appeal of the Denial of. the
Amended Rule 1.540(b) Motion
On December 4, 2017, Petitioner filed his second
appeal of the trial court's order denying the
Amended Rule 1.540(b) Motion in Third DCA case
number 3D17-1730 ("the Second Appeal"). The
thrust of the appeal argued that the trial court
denied due process by refusing to even consider the
Amended Rule 1.540(b) motion or conduct an
evidentiary hearing to consider the clear and
convincing evidence Respondent procured this
judgment by fraud on the Court.
On May 16, 2018, the Third DCA issued a PCA of
the Second Appeal. On May 31, 2018, Petitioner
21
filed a Motion for Rehearing En Banc and Request
for a Written Opinion, again arguing the use of a
PCA to avoid addressing fraudulent evidence
violates the U.S. Constitution.
Moreover, the Motion for Rehearing noted the Third
DCA issued this PCA just days after denying an
extensively documented, legally sufficient Motion to
Disqualify the Third DCA filed by Petitioner's
Counsel on behalf of Joseph Buset in HSBC v. Buset
under Third DCA case number 3D17-272.
(viii) The Repeated Motions to Disqualify
the Third DCA
On June 6, 2018, Petitioner filed his own Motion to
Disqualify the Third DCA that expressly adopted,
reavered, and renewed the Buset Motion to
Disqualify the Third District Court of Appeal.
Petitioner argued there were a myriad of objective
reasons to fear the Third DCA will not fairly and
impartially adjudicate the pending Motion for
Written Opinion and for Rehearing En Banc,
including the various articles in the Daily Business
Review, the most recent of which stated:
There is no question that the Third District is
pro-business and couldn't care less about
homeowners.... [The Third DCAI abuses per
curiam affirmances, or PCAs, to avoid
explaining their rulings on lender standing,...
[and] misuses the tool to strategically sidestep
22
writing opinions that could provide grounds for
rehearing. Instead, they say it uses the
decisions to wipe out options for further review
and avoid conflicts with other district courts.
The Buset Motion to Disqualify the Third District
Court of Appeal was a first in the history of Florida
jurisprudence. The Buset Motion to Disqualify
discussed how the Third DCA ruled against
Petitioner's counsel in approximately 40 foreclosure
appeals, threatened sanctions against Petitioner's
Counsel, and wrote opinions personally and unfairly
attacking Petitioner's Counsel's professionalism,
without addressing any of the substantive
arguments of fraud, perjury, destruction of evidence
or gross violations of due process.
The Third DCA denied the Buset Motion to
Disqualify without comment and then denied
rehearing in Buset to permit HSBC to foreclose
based on what the trial judge found was false
testimony, false evidence, and unclean hands for
lying about violating her discovery order.
To
emphasize its point, the Third DCA then issued
PCAs in this case and another case that relied on the
same false MERS assignment and undated
Countrywide endorsement backdated by perjury.
As set forth in the Motion to Disqualify the Third
DCA in this case, Petitioner argued the result herein
conflicts with dozens of rulings of every DCA that
issued opinions on standing which require proof the
23
endorsement was in place before filing the action.
Petitioner argued the Florida Supreme Court does
not permit a trial judge to deny motions to continue
to file a motion to disqualify or abuse its power by
threatening sanctions, contempt, or a bar complaint.
Petitioner argued that a fair and impartial court
would never ignore that BANA ordered the
destruction of evidence under a court ordered
subpoena resulting in a military grade wipe of 1.88
billion objects of data, metadata and encryption
codes. Yet, the Third DCA knowingly ignored all
these issues as a result of clear and objective bias.
On June 27, 2018, the Third DCA unanimously and
summarily denied both the Motion to Disqualify the
Third DCA, the Motion for Rehearing En Banc and
the Request for a Written Opinion. On July 31,
2018, the Florida Supreme Court dismissed the
appeal holding there is no jurisdiction to review an
unelaborated decision for a DCA issued without an
opinion or explanation. This appeal ensued.
REASONS FOR GRANTING THE WRIT
CERTIORARI SHOULD BE GRANTED AS THE
THIRD DCA HAS ALLOWED A BIASED COURT
TO DEPRIVE MR. MARIN OF HIS PROPERTY
WITHOUT DUE PROCESS OF LAW BASED ON
FALSE AND FRAUDULENT EVIDENCE
It is "fundamental black letter law" that a District
24
Court should write an opinion unless "the points of
law raised are so well settled that a further writing
would serve no useful purpose." Elliot v. Elliot, 648
So. 2d 137, 138 (Fla. 4th DCA 1994). Yet, the Third
DCA has twice affirmed the final judgment of
foreclosure without comment when the points of law
are so well settled in Petitioner's favor.
This Honorable Court should take note that the
Respondent, BONYM, is the same party as the
Appellee in the Pino v. Bank of New York, Mellon,
57 So. 3d 950, 954 (Fla. 4th DCA 2011). In Pino,
the 4th DCA certified a question of great public
importance to the Florida Supreme Court finding
"many, many mortgage foreclosures appear tainted
with suspect documents... [which] may dramatically
affect the mortgage foreclosure crisis in State." Id. at
955. The dissenting opinion in Pino wrote:
Decision-making in our courts depends on
genuine, reliable evidence. The system cannot
tolerate even an attempted use of fraudulent
documents and false evidence in our courts.
The judicial branch long ago recognized its
responsibility to deal with, and punish, the
attempted use of false and fraudulent
evidence.... Id.
Most recently, on November 18, 2018, the Second
DCA of Florida addressed nearly the identical fact
pattern of the same fraudulent evidence presented
herein involving BONYIVI and reached a decidedly
25
different result. Sorenson v. Bank of New York
Mellon as Trustee for Certificate Holders CWALT
Inc., No. 2D16-273, 2018 WL 6005236, at *1 (Fla. 21l1
DCA Nov. 16, 2018). In Sorenson, the 2nd DCA
reversed finding it was an abuse of discretion to deny
Petitioner's counsel's repeated requests:
to amend his answer and affirmative defenses
and to add a counterclaim reflecting new
theories of the case. The crux of the new
arguments was that the evidence on which the
Bank relied to show standing had been
fraudulently created and produced. Specifically,
the Bank had added the undated
endorsement during the current litigation, had
provided perjured testimony to falsely backdate
the endorsement, and had submitted a false
assignment of the note and mortgage to support
its timeline of events." Id. at *1.
The Second DCA's decision is consistent with Judge
Ungaro's ruling that BANA's use of backdated
rubber-stamped Countrywide endorsements and
false MERS assignments (as used in Sorenson and
this case). R. 1822-1825.
Petitioner made four attempts to amend the
pleadings to allege the same egregious fraud upon
the court as raised in Sorenson and the False Claims
Act case before Judge Ungaro by a party that
promised the U.S. Department of Justice it would
stop using false evidence in foreclosures years ago
26
when it entered into the $25 Billion National
Mortgage Settlement.
The Third DCA summarily denied two appeals
seeking to disqualify the trial judge after she struck
all discovery, struck all allegations of fraud,
prejudged the case, and her repeated threats of
sanctions, contempt and bar complaints against
Petitioner's counsel for zealous advocacy.
The Third DCA summarily and unanimously denied
multiple motions to disqualify itself despite
overwhelmingly objective reasons to question its
impartiality. A front page article in the Daily
Business Review, the South Florida legal
publication, that reports the Third DCA is "probank" and could not "care less about homeowners" is
clear objective evidence of bias.
Most recently, the Daily Business Review published
yet another article 2 on October 18, 2018, that
reported the Third DCA has (1) "... a reputation for
issuing adverse opinions against borrowers in
foreclosure cases" (2) "... cultivated a reputation for
disproportionately ruling against borrowers in
foreclosure cases" and (3) "... an issue properly
adjudicating foreclosure cases."
As also set forth in the Motion to Disqualify the
2 httDs//www.law.com/dailybusinessreview/2018/1O/18/thirddca-issues-rare-ruling-against-lender-in- jurisdiction-sguabble/
27
Third DCA, Petitioner's counsel has filed
approximately 40 foreclosure appeals raising the use
of false endorsements and assignments, fraud on the
court, perjury, hearsay, due process violations,
discovery violations, and even the destruction of
almost 2 billion records in defiance of a court ordered
subpoena. Petitioner's counsel has lost every single
appeal before the Third DCA. Not a single appeal
was decided on the merits with a fair consideration
of the facts in the record or the legal arguments.
Further, the Third DCA has abused the PCA to deny
appeals speaking out about the use of false
endorsements and assignments, fraud on the court,
perjury, and the destruction of evidence in defiance
of a court ordered subpoena. This breakdown in
due process reaches an arbitrary result that conflicts
with well-settled law and permits parties to the
National Mortgage Settlement to continue to
defraud courts with the approval, sub silenclo, of the
Florida Court system.
I.
Due Process Does Not Tolerate Fraudulent
Evidence Even If Florida Courts Disagree
It is axiomatic that "[a] fair trial in a fair tribunal is
a basic requirement of due process." Caperton v.
A. T. Massey Coal Co., 556 U.S. 868, 876, 129 S. Ct.
2252, 2259, 173 L. Ed. 2d 1208 (2009). Because
fraud on the courts pollutes the process society relies
on for dispute-resolution, courts reason that "a
decision produced by fraud on the court is not in
28
essence a decision at all, and never becomes final.
Judgments
obtained by fraud or collusion are
void, and confer no vested title." League v. De
Young, 52 U.S. 185, 203, 13 L. Ed. 657 (1850). Due
process does not permit fraud on the court to deprive
any person of life, liberty or property. A biased
court also violates constitutional due process
guarantees by tolerating that fraud.
...
This Court instructs that due process does not
tolerate the use of false or fraudulent evidence
because it "involve[s] a corruption of the truthseeking function of the trial process." United States
v. Agurs, 427 U.S. 97, 107 (1976). See also Miller v.
Pate, 386 U.S. 1 (1967) (finding that a deliberate
misrepresentation of truth to a jury is a violation of
due process); Caldwell v. Mississippi, 472 U.S. 320
(1985) (finding that an uncorrected, misleading
statement of law to a jury violated due process);
Darden v. Wainwright, 477 U.S. 168, 181-82 (1986)
(improper argument and manipulation or
misstatement of evidence violates Due Process). C1
Mesarosh v. United States, 352 U.S. 1, 14 (1956)
(reversing convictions based on Solicitor General's
disclosure that an important government witness
had committed perjury in other proceedings, stating
that the Court had a duty "to see that the waters of
justice are not polluted").
"As long ago as Mooney v. Holahan, 294 U.S. 103,
112, 55 S.Ct. 340, 342, 79 L.Ed. 791 (1935), this
Court made clear that deliberate deception of a court
29
by the presentation of known false evidence is
incompatible with 'rudimentary demands of justice'
the same result obtains when the State,
although not soliciting false evidence, allows it to go
uncorrected when it appears." Giglio v. United
States, 405 U.S. 150, 153, 92 S. Ct. 763, 766, 31 L.
Ed. 2d 104 (1972). In Mooney, this Court held due
process:
is a requirement that cannot be deemed to be
satisfied by mere notice and hearing if a state
has contrived a deliberate deception of court
and jury by the presentation of testimony
known to be perjured. Such a contrivance
is
as inconsistent with the rudimentary demands
of justice as is the obtaining of a like result by
intimidation. And the action
may constitute
state action within the purview of the
Fourteenth Amendment. That amendment
governs any action of a state, 'whether through
its legislature, through its courts, or through
its executive or administrative officers... Upon.
the state courts, equally with the courts of the
Union, rests the obligation to guard and
enforce every right secured by that
Constitution. Mooney v. Holohan, 294 U.S.
103, 113, 55 S. Ct. 340, 342, 79 L. Ed. 791
(1935).
...
...
...
If a state, whether by the active conduct or the
connivance of the prosecution, obtains a conviction
through the use of perjured testimony, it violates
30
civilized standards for the trial of guilt or innocence
and thereby deprives an accused of liberty without
due process of law. Hysler v. State of Fla., 315 U.S.
411, 413, 62 S. Ct. 688, 690, 86 L. Ed. 932 (1942).
The same holds true when the deprival is of property
without due process of law.
II.
The Growing Minority of Courts that
Refuse to Ignore Unclean Hands and Fraud
The Florida Legislature enacted Florida Statute
§702.01 which provides, all mortgages shall be
foreclosed in equity. Fla. Stat. Ann. § 702.01 (1987).
Almost two centuries ago, this Court pronounced:
"equitable powers can never be exerted in behalf of
one who has acted fraudulently, or who, by deceit or
any unfair means, has gained an advantage." Beth
v. Heath, 47 U.S. 228, 6 How. 228, 1848 WL 6464
(U.S.La.), 12 L.Ed. 416 (1848)(emphasis added).
Recently, the Chief Judge of the Second DCA, in a
concurring opinion, noted, "[it appears that many
foreclosure judgments are entered based on dubious
proof by the banks due to an understandable lack of
sympathy for defendants who are years behind on
payments..." Shaffer v. Deutsche Bank Nat.
Trust., 2017 WL 1400592 at *8 (Fla. 2nd DCA) filed
April 19, 2017. On June 10, 2017, the Honorable
Broward County Circuit Court Judge William W.
Haury, Jr. wrote:
This is one of the few instances in the history
31
of Florida jurisprudence where the Florida
Supreme Court has deemed it necessary to
subject an entire industry to special rule [Fla.
R. Civ. P. 1.115(e) due to the industry's
documented illegal behavior.., a direct result
of the robosigning scandal... Notwithstanding
this, some of our courts appear to be
conforming to the business practices of this
industry rather than requiring the business
practices to conform to the law." Wells Fargo
Bank NA., as Trustee for the Structured
Asset Mortgage Investments II Inc. Bear
Stearns Mortgage Funding Trust 2007-AR1,
Mortgage Pass Through Certificates Series
2007-AR1. v. Jerry Warren, Broward County
Case No. 13-010112(11), fn. 4.
On March 23, 2017, the Honorable U. S. Bankruptcy
Judge Christopher M. Klein of the Eastern District
of California sanctioned BANA $45 million for
foreclosure misconduct involving BOA's Senior
Management. Sundquist v. Bank of America,
B.R.--, 2017 WL 1102964 *46 (U.S. Bkrptcy, E.D.
Cal. issued March 23, 2017). The opinion "tells a
story that smacks of cynical disregard for the law."
Id. at *47 The Court noted:
--
The high degree of reprehensibility, coupled
with the significant involvement by the office
of the Chief Executive Officer, calls for of an
amount sufficient to have a deterrent effect on
Bank of America and not be laughed off in
32
the boardroom as petty cash or "chump
change.... It happens that Bank of America
has a long rap sheet of fines and penalties in
cases relating to its mortgage business
In
an environment in which Bank of America
has been settling, i.e. terminating exposure to
higher sums, for billions and hundreds of
millions of dollars... why should Bank of
America be permitted to evade the
appropriate measure of punitive damages for
its conduct? Not being brought to book for bad
behavior offensive to societal norms merely
incentivizes future bad behavior. *39..40
...
Judge Klein noted BANA's "attitude of impunity"
citing failed governmental regulatory investigations
"that turned out to be a chimera." Id. at *43
Even investigations by the Consumer Financial
Protection Bureau were "thwarted" with a "baldfaced lie" and a refusal to turn over documents.
In stark contrast to Florida, the Maine Supreme
Court has taken a different approach to misconduct
in -foreclosures. Bayview Loan Servicing, LLC v.
Bartlett 87 A.3d 741, 749 (Maine S. Ct. 2014). In
Bart1ett, the Maine Supreme Court affirmed an
involuntary dismissal with prejudice for Bayview's
failure to attend a fourth court ordered mediation
and awarded the borrower a free home. Id. The
ultimate sanction was appropriate as Bayview had
previously defied court orders that affected the
borrower's ability to resolve their foreclosure.
33
No party, especially not a party to the $25 Billion
NMS, "has a right to trifle with the courts." Ramey
v. Haverty Furniture Companies, Inc., 993 So. 2d
1014, 1018 (Fla. 2nd DCA 2008).
Petitioners' homestead is a protected property right
which Respondent cannot foreclose on with unclean
hands. The U.S. Supreme Court instructs that
once it is determined that a protected property
interest was taken, the next determination is
whether the State's procedures comport with due
process. American Mfrs. Mutual Ins. Co., v.
Sullivan, 526 U.S. 40, 59, 119 S.Ct. 977, 989 (1999).
This Court must review these procedural and
substantive due process violations of the U.S.
Constitution. "It is the purpose of the ancient
institution of property to protect those claims upon
which people rely in their daily lives, reliance that
must not be arbitrarily undermined." Board of
Regents of State Colleges v. Roth, 408 U.S. 564, 577,
92 S.Ct. 2701, 2709 (1972).
III. Abuse of the PCA is a Denial of Due Process
Once a state has established avenues of appellate
review, they must be free of unreasoned distinctions
to impede equal and open access to the courts.
Rinaldi v. Yeager, 384 U.S. 305, 310, 86 S.Ct. 1497,
1500 (1966). By issuing only PCAs and refusing to
write an opinion, the Third DCA denied Petitioner
34
equal access to the Florida Supreme Court and due
process of law.
In 1980, Article V of the Florida Constitution was
amended to divest the Florida Supreme Court of
jurisdiction to review a PCA without a written
opinion.3 In 1993, the Honorable Judge Gerald B.
Cope, Jr. of the Third District Court of Appeal,
published an extensive article analyzing Florida's
Appellate Procedure after the 1980 Amendment.
Discretionary Review of the Decisions of
Intermediate Appellate Courts: A Comparison of
Florida's System with Those of the Other States and
the Federal System, 45 Fla. L. Rev. 21 (Jan. 1993).
Judge Cope concluded that Florida's written opinion
requirement was enacted in a time of crisis and
imposed "the most severe limitation on access to the
State Supreme Court of any American jurisdiction."
Id. at 93.
Two decades after the 1980 amendment, the Florida
Supreme Court commissioned a report to study the
use of PCA decisions. See, Comm. on Per Curiam
Affirmed Dec., Final Report and Recommendations
(May 2000). The majority reported that the PCA
performs a useful function when used properly. Id.
at 29.
However, several practitioners cited a
widespread PCA problem which appears arbitrary
3 Florida Constitutional Amendment Article V 3(b)(3); see
generally, Jenkins v. State, 385 So. 2d 1356, 1359 (Fla. 1980); St.
Paul Title Ins. Co. v. Davis, 392 So. 2d 1304, 1305 (Fla. 1981).
35
and undermines the quality of appellate justice in
Florida. Id. The Florida Supreme Court adopted
the PCA Committee's recommendation to amend
Rule 9.330 of Florida's Appellate Procedure to allow
litigants to request a written opinion from the Court
effective January, 2003. While meant to provide a
remedy to the potential abuse of the PCA, the
amendment has the obvious flaw of giving discretion
to the same judges being charged with abusing the
PCA.
Due Process protects against the arbitrary
deprivation of property and reflects the value our
constitutional and political history places on the
right to enjoy prosperity, free of governmental
interference. Fuentes v. Shevin, 407 U.S. 67,80-1,
92 S.Ct. 1983, 1996 (1972).
Under the Magna Carta, the Due Process Clause
limits the powers of all branches of government,
including the judiciary. Truax v. Corrigan, 257,
U.S. 312,333, 42 S.Ct. 124, 129 (1921).
This is why "Equal Justice Under Law" is etched in
all caps across the front of the U.S. Supreme Court.
"The vague contours of the Due Process Clause do
not leave judges at large." Rochin v. People of
California, 342 U.S. 165, 170, 72 S.Ct. 205, 209
(1952). Judges have long been required to give a
public reasoned opinion from the bench in support of
their judgment. Id. at fn. 4.
36
The reason given to support state action that takes
property may not be so inadequate that it may be
characterized as arbitrary. Jeffries v. Turkey Run
Consolidated School District, 492 F.2d 1, 4 (7th Cir.
1974). State action is "arbitrary" when it takes
without reason or for merely pretextual reasons.
Decarion v. Monroe County, 853 F. Supp 1415, 1421
(S.D. Fla. 1994).
The "arbitrary and capricious" standard requires a
state to examine the relevant data and to articulate
a satisfactory explanation for its action. Motor
Vehicle Mfrs. Ass 'ii of US., Inc. V. State Farm, 463
U.S. 29, 43, 103 S.Ct. 2856, 2867 (1983) citing
Burlington Truck Lines v. United States, 371 U.S.
156, 168, 83 S.Ct. 239, 245-246 (1962). As the
Florida Supreme Court has held, "one of the best
procedural protections against arbitrary exercise of
discretionary power lies in the requirement of
findings and reasons that appear to reviewing
judges to be rational." Roberson v. Florida Parole
andProbation Commission, 444 So. 2d 917, 921 (Fla.
1983).
This Court is asked to review the Third DCA's
opinion below which is clearly pretextual, arbitrary,
and violates Petitioner's due process rights. If the
Florida Supreme Court won't speak out to correct
this miscarriage of justice, this Honorable Court is
all that is left to protect Petitioner's due process
rights enshrined in the 5th and 14th amendments to
the U.S. Constitution. This Court instructs:
37
Whether acting through its judiciary or
through its legislature, a State may not
deprive a person of all existing remedies for
the enforcement of a right, which the State
has no power to destroy, unless there is, or
was, afforded to him some real opportunity to
protect it." Brinkerhoff-Faris Trust & Say. Co.
v. Hill, 281 U.S. 673, 50 S. Ct. 451, 74 L. Ed.
1107 (1930). at 681-682, 50 S. Ct., at 454-455.
This Court is called on to act because the Florida
Supreme Court has taken no action to prevent the
Third DCA from improperly ignoring fraudulent
conduct in foreclosures.
Justice England recognized an unconstitutional and
inherent flaw in entrusting intermediate appellate
court judges with the power to shield an arbitrary
decision from further appellate review merely by
refusing to write an opinion. The same infirmity
exists in Florida, wherein appellate court judges are
entrusted to decide for themselves whether there is
an objective reason to question their impartiality.
IV. There Can Be No Due Process Before
Biased Courts
The Florida Supreme Court instructs that "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 (1982). "When a litigant
seeks to disqualify
a judge of a district court of
appeal, a different, more personal standard applies.
The standard enunciated by the Florida Supreme
Court is that 'each justice must determine for
himself both the legal sufficiency of a request
seeking his disqualification and the propriety of
withdrawing in any particular circumstances." In re
Canton 378 So. 2d 1212, 1216 (F1a.1979) (On
Request for Disqualification). Clarendon Nat. Ins.
Co. v. Shogreen, 990 So. 2d 1231, 1233 (Fla. 3rd DCA
2008). In Shogreen, this Court noted that the Florida
Supreme Court "has approved the application of the
Carlton standard when that court's appellate-level
judges were faced with a court-wide motion for
disqualification." Id. citing, 5—H Corp. v. Pa do vano,
708 So. 2d 244, 245-46 (Fla. 1997).
...
This Court instructs "a multimember court must not
have its guarantee of neutrality undermined, for the
appearance of bias demeans the reputation and
integrity not just of one jurist, but of the larger
institution of which he or she is a part. Williams v.
Pennsylvania, 136 S. Ct. 1899, 1902, 195 L. Ed. 2d
132 (2016). "An unconstitutional failure to recuse
constitutes structural error..." Id.
"The Due Process Clause may sometimes demand
recusal even when a judge "ha[s] no actual bias."
(citations omitted) Recusal is required when,
objectively speaking, "the probability of actual bias
on the part of the judge or decisionmaker is too high
39
to be constitutionally tolerable." Rippo v. Baker, 137
S. Ct. 905, 907, 197 L. Ed. 2d 167 (2017). As this
Court has explained:
The judiciary's authority therefore depends in
large measure on the public's willingness to
respect and follow its decisions. As Justice
Frankfurter once put it for the Court, "justice
must satisfy the appearance of justice."
(citations omitted). It follows that public
perception of judicial integrity is "a state
interest of the highest order." (citations
omitted) Williams-Yulee v. Fla. Bar, 135 S.
Ct. 1656, 1666, 191 L. Ed. 2d 570 (2015).
"It is axiomatic that the Due Process Clause entitles
a person to an impartial and disinterested tribunal
in civil cases. This requirement of neutrality
preserves both the appearance and reality of
fairness,
by ensuring that no person will be
deprived of his interests in the absence of a
proceeding in which he may present his case with
assurance that the arbiter is not predisposed to find
against him. Marshall v. Jerrico, Inc., 446 U.S. 238,
242 (1980). "Due process guarantees the right to a
neutral, detached judiciary in order "to convey to the
individual a feeling that the government has dealt
with him fairly, as well as to minimize the risk of
mistaken deprivations of protected interests." Carey
v. Piph us, 425 U.S. 247, 262 (1978); Taylor v. Hayes,
418 U.S. 488, 501 (1974).
...
...
...
40
The Florida Supreme Court has held, "it is the duty
of Courts to scrupulously guard this right and to
refrain from attempting to exercise jurisdiction in
any matter where his qualification to do so is
seriously brought in question. The exercise of any
other policy tends to discredit the judiciary and
shadow the administration of justice." Crosby v.
State, 97 So. 2d 181, 184 (Fla. 1957). The Florida
Supreme Court recognized that "prejudice of a judge
is a delicate question to raise but
if predicated on
grounds with a modicum of reason, the judge against
whom raised, should be prompt to recuse himself."
Livingston v. State, 441 So. 2d 1083, 1086 (Fla.
1983).
...,
The rules regarding judicial disqualification "were
established to ensure public confidence in the
integrity of the judicial system...." Livingston at
1086.
The integrity of the judicial system cannot tolerate
biased courts that order the sale of Mr. Mann's home
without due process of law while ignoring fraudulent
evidence by the wealthy and powerful. It is left to
this Honorable Court to enforce equal justice under
law and ensure no party to the National Mortgage
Settlement continues to commit fraud on the courts
with impunity. As Chief Justice Taft wrote:
Our whole system of law is predicated on the
general fundamental principle of equality of
application of the law. 'All men are equal before
41
the law,' 'This is a government of laws and not
of men,' 'No man is above the law,' are all
maxims showing the spirit in which
Legislatures, executives and courts are
expected to make, execute and apply laws."
Id. The guaranty of due process "was aimed at
undue favor and individual or class privilege....
Id.
CONCLUSION
Mr. Mann was deprived of his property without due
process of law.
The Courts in Florida are
objectively biased in favor of foreclosure plaintiffs
and have ignored the continued use of fraudulent
evidence. This cannot stand in a fair and impartial
judiciary. This is not the rule of law.
The basis for the judicial power, which is referenced
in Article V, Section 1 of the Florida Constitution, is
found in Federalist Number 78, written by
Alexander Hamilton as Publius. The Federalist
Society warns that:
The Constitution's promise of due process of
law is, among other things, a promise of
impartial adjudication in the courts—a
promise that people challenging assertions of
government power will have access to a
neutral tribunal that is not only free from
actual bias but free even from the appearance
of bias. To the extent that private citizens
42
cannot reasonably be confident that they will
receive justice through litigation, they will be
tempted to seek extra-legal recourse.
This Court must act to save the integrity of the
judiciary. It is the best hope to save our country
from the perils Alexander Hamilton warned of when
the people believe they cannot receive fair and
impartial justice from this judiciary.
The Third DCA violated Petitioner's due process
rights and the judicial canons governing
impartiality by refusing to write an opinion that
justifies the continued use of fraudulent evidence in
an equitable action of foreclosure. It is objectively
reasonable to fear the Third DCA acted to reach a
predetermined outcome that favor banks over
homeowners foreclosure. If the Florida Supreme
Court will not act, this Court must.
-
Trial level judges are speaking out against
continued misconduct in foreclosures, even if the
Third DCA and the Florida Supreme Court are not.
This Court should join those judges on the right side
of history and grant certiorari.
As this David v. Goliath battle involves egregious
misconduct by wealthy and powerful financial
institutions, this petition presents a critical
constitutional crisis that cannot be swept under the
rug by a PCA.
43
Democracy will not fall if financial institutions are
held to the rule of law. To the contrary, democracy
falls, if the public is allowed to believe courts are
biased in favor of bad corporate citizens and a
fraudulent foreclosure process.
WHEREFORE, this Court should grant the writ and
consider the issue on the merits.
Respectfully submitted,
Bruce Jacobs
Counsel of Record
Alfred I Dupont Building
JACOBS LEGAL, PLLC
169 East Flagler Street, Suite 1620
Miami, Florida 33131
Tel. (305) 358-7991
efile@jakelegal.com
44
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.