Post on 23-Feb-2023
¥-.
SUPREME COURT OF FLORIDA
CASE NO.: SCU- H0)On Discretionary Review From
The Fourth District Court ofAppeal
(4D10-674)
JACQUELINE HARVEY,
Petitioner,
VS.
DEUTSCHE BANK NATIONAL TRUST COMPANY
AS INDENTURE TRUSTEE FOR AMERICAN HOME
MORTGAGE INVESTMENT TRUST 2005-1, MORTGAGE-BACKED
NOTES SERIES 2005-1
Respondent.
PETITIONER'S BRIEF ON JURISDICTION
Respectfully submitted by,
Jacqueline Harvey
Pro se Petitioner
2359 SW Brookwood Lane
Palm City, Florida 34990
(561) 677-8485
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ii
I. INTRODUCTION 1
II. STATEMENT OF THE CASE AND FACTS 2
III. ARGUMENT 5
A. STANDARD OF REVIEW 5
B. THIS COURT SHOULD REVIEW THE OPINION, WHICH
CONFLICTS WITH MANY DECISIONS FROM THIS
COURT AND FROM OTHER DISTRICTS 5
1. THE FOURTH DISTRICT'S ASSUMPTION THE
ORIGINAL PROMISSORY NOTE WAS IN THE
POSSISSION OF DEUTSCHE BANK IS
MISPLACED 6
2. THE FOURTH DISTRICT'S RELIANCE ON RIGGS
V. AURORA IS MISPLACED 6
3. THE FOURTH DISTRICT'S HOLDING THAT
FRAUDULENT ASSIGNMENTS OF MORTGAGES
ARE IRRELEVANT IS INCONSISTENT AND
CONFLICTS WITH THIS COURT'S PREVIOUS
DECISIONS 7
CONCLUSION 8
CERTIFICATE OF SERVICE 9
CERTIFICATE OF FONT COMPLIANCE 10
APPENDIX Tab
TABLE OF AUTHORITIES
Page
Aguilera v. Inservices, Inc., 905 So. 2d 84, 87 (Fla. 2005) 5
Aubourg v.Erazo,922 So. 2d 1106 (Fla. 4th DCA 2010) 4
Avi-Isaac v. Wells Forgo Bank, N.A.,
59 So. 3d 174, 177 (Fla. 2d DCA 2011) 6
Beatyv. State, 701 So. 2d 856 (Fla. 1997) 5
Belz Investco Ltd. P'shipv. Groupo Immobiliano Cababie, S.A.,
721 So. 2d 787, 789 (Fla. 3d DCA 1998) 6
In re Amendments to the Florida Rules ofCivil Procedures,
44 So. 3d 555, 556 (Fla. 2010) 8
McMillan v. Troutman, 740 S. 2d 1227 (Fla. 4th DCA 1999) 6
Riggs v. Aurora Loan Servs, 36 So. 3d 932 (Fla. 4th DCA 2010) 4, 5
Statutes
Title 39, chapter 673, Fla. Stat 7
Constitutional Provisions
Art. V, § 3(b)(3), Fla. Const 5
Rules
Rule 9.030(a)(2)(A)(iv), Fla. R. App. P 5
Rule 1.110, Fla, R. Civ. P 8
Florida Attorney General Reports
Unfair, Deceptive and Unconscionable Acts in Foreclosure Cases 8
ii
I. INTRODUCTION
This case cries out for resolution! The Fourth District opinion (the
"Opinion") found Deutsche Bank ("Deutsche") had standing to foreclose against
Jacqueline Harvey ("Harvey") based on an assumption that Deutsche processes the
original mortgage note with blank endorsement - even though the record on appeal
and relied upon by the court in the Opinion is only a copy of the note. The
Opinion also found that filing a fraudulent assignment of mortgage is irrelevant in
foreclosure cases.1
The Opinion not only conflicts with one hundred years of Florida
foreclosure law - it sweeps away un-contradicted precedent in this Court as well as
the district courts of Florida. If allowed to stand, the Opinion will transform
Florida into a foreclosure wasteland, where unscrupulous banks and their attorneys
(without worrying about the rules of evidence) can file fraudulent documents, i.e.
assignment ofmortgages and copies of promissory notes, passing them off as the
"originals," whose actions would be rejected virtually everywhere else.
On September 27, 2011, Harvey filed with the Fourth District a motion for
verification. Harvey has requested the Fourth District panel to certify that the
promissory note (with blank endorsement) in the record of the court is either an
A copy ofthe Opinion appears in the attached Appendix.
original promissory or a copy ofthe promissory note. This motion is still pending
in the Fourth District.
II. STATEMENT OF THE CASE AND FACTS
On April 6,2009, Deutsche Bank ("Deutsche") filed a two-count foreclosure
count against Jacqueline Harvey ("Harvey"). Count I ofthe complaint sought to
reestablish the lost note. Attached to the complaint were copies of the promissory
note and a copy of the mortgage, showing American Home Mortgage Acceptance,
Inc. ("AHMAI") as the lender and Mortgage Electronic Registration Systems, Inc.
("MERS") as the nominee mortgagee.
On September 17, 2009, Deutsche filed a motion for summary judgment,
along with an affidavit of indebtedness. On September 30, 2009, Deutsche filed an
affidavit of lost note. A hearing on Deutsche's motion for summary judgment was
held on October 12, 2009. At the hearing, the judge determined that the lost note
affidavit was not in the case file and declined to rule on the motion without first
reviewing the lost note affidavit.
On October 29, 2009, Deutsche filed a re-notice of hearing on the motion for
summary judgment, a Notice of Withdrawal of Count I ofplaintiff s complaint, a
copy of an assignment ofmortgage from MERS to Deutsche Bank and a Notice of
Filing Attached Original Note with Blank Endorsement (along with attached note).
The hearing was held on January 11, 2010. During this hearing the judge stated
the original note was in the file. Harvey asked the judge to see the alleged
"original" note. The trial judge refused and the following discussion took place.
Ms. Harvey: I would like to be able to see that, (the alleged "original"
note).
The Court: You have been given every opportunity to see it; they
gave you notice that they filed it, you could have looked.
Ms. Harvey: I went to the court - I went to the record myself and
looked and it was not the original.
Harvey argued that the assignment ofmortgage was fraudulent and Deutsche
did not have standing when they filed the foreclosure proceeding because the
assignment was not filed until twenty days after it filed the foreclosure. The judge
dismissed Harvey's argument and final foreclosure judgment was entered on
January 14,2010.
Harvey filed a noticed motion for reconsideration arguing that Deutsche
lacked standing to bring the foreclosure action and the assignment ofmortgage
contains questionable signatures. At the reconsideration hearing the trial denied
Harvey's motion. The judge stated: "I've already denied your motion, I did that in
chambers. So there's nothing for us to do today. Okay?"
Harvey appealed to the Fourth District, arguing that the trial court erred in
granting summary judgment because (1) a genuine issue of material fact existed as
to Deutsche's standing to foreclose; (2) the assignment of mortgage contained
questionable signatures in order to commit fraud upon the court; and (3) the trial
court abused its discretion by denying Harvey's motion for reconsideration and
violated her due process right by denying her an opportunity to be heard.
Deutsche argued that, as holder of the "original" note, endorsed in blank it
had standing to enforce the note, and that the trial court properly entered final
summary judgment.
On April 20, 2011, the Fourth District affirmed the summary judgment per
curiam citing Riggs v. Aurora Loan Servs., LLC, 36 So. 3d 932 (Fla. 4th DCA
2010) and Aubourg v. Erazo, 922 So. 2d 1106 (Fla. 4th DCA 2010). On May 4,
2011 filed a motion for rehearing. In this motion for rehearing Harvey again
argued that (1) Deutsche Bank did not have physical possession of the original
promissory note as evidenced in the Record and (2) the assignment of mortgage
contained questionable authorized signatures.
On June 29, 2011, the Fourth District denied Harvey's motion for
rehearing, but addressed some points argued by Harvey in her brief.
The Opinion citing Riggs concluded that since Deutsche possessed the
original note and filed it with the circuit court, its standing may be established from
its standing as note holder, regardless of any recorded assignment. Addressing
Harvey's argument regarding "questionable signatures" contained in the
assignment of mortgage, the Opinion concludes: "Even if Harvey could prove this,
the dispute would be between AHMAI and Deutsche."
On July 13, 2011, Harvey filed a Motion for rehearing en bane and motion
for certification. The motion for rehearing en bane and motion for certification
was denied on September 1,2011.
Harvey timely filed a notice to invoke the discretionary jurisdiction ofthis
Court to review the Fourth District opinions.
III. ARGUMENT
A. STANDARD OF REVIEW.
This Court may exercise jurisdiction to review the district court Opinion
because: (1) it misapplies this Court's precedent; and (2) it expressly and directly
conflicts with decisions ofthis Court and other district courts on the same question
of law. See Fla. Const, art. V, § 3(b)(3); Fla. R. App. P. 9.030(a)(2)(A)(iv); see
also Aguilera v. Inservices, Inc._, 905 So. 2d 84, 87 (Fla. 2005) ("misapplication of
decisional law creates conflict jurisdiction"); Beaty v. State, 701 So. 2d 856 (Fla.
1997) (noting that conflict must be express and direct).
B. THIS COURT SHOULD REVIEW THE OPINION, WHICH
CONFLICTS WITH MANY DECISIONS FROM THIS COURT
AND FROM OTHER DISTRICTS.
The Opinion's holding derives from a misapplication ofRiggs v. Aurora, a
case that did not even address the issue of a copy of a promissory note filed in a
foreclosure case or a fraudulent assignment of mortgage. This Court should take
jurisdiction to resolve the conflict created by the Opinion.
V
1. The Fourth District's Assumption the Original Promissory Note
was in the Possession of Deutsche Bank is Misplaced.
It is still in dispute whether the promissory note contained in the record
which the Fourth District relied upon as a basis for the Opinion is in fact the
original note. At the summary judgment hearing, Harvey's request to see the note
was denied by the trial judge. When the authenticity of the note was raised by
Harvey during summary judgment this conflict should have been reconciled at an
evidentiary hearing not at summary judgment. Belz Investco Ltd. P 'ship v. Groupo
Immobiliano Cababie, S.A., 721 So. 2d 787, 789 (Fla. 3d DCA 1998). McMillan
v. Troutman, 740 So.2d 1227 (Fla. 4th DCA 1999). Further, "it is reversible error
for a trial judge to deny a party an evidentiary hearing to which [the party] is
entitled." Avi-Isaac v, Wells Fargo Bank, N.A., 59 So. 3d 174, 177 (Fla. 2d DCA
2011) (quoting Sperdute v. Household Realty Corp., 585 So. 2d 1168, 1169 (Fla.
4th DCA 1991)
2. The Fourth District's Reliance on Riggs v. Aurora is Misplaced.
The Opinion also affirmed summary judgment on the basis that Deutsche's
actual possession of the original promissory note supported its claim that it was the
proper holder of the note thereby satisfied the requirements under the Uniform
Commercial Code.
In Harvey's May 4, 2011 motion for rehearing, Harvey stated, "In Riggs
where it is undisputed that Aurora had physical possession of the original note and
mortgage, in the instant case, Deutsche Bank did not have physical possession of
the original promissory note as evidenced in the Record." The existence of the
"original" promissory note still remains in question.
By applying Riggs to this instant case, without resolving the issue ofwhether
the note presented at summary judgment was in fact authentic and not a mere copy,
the Opinion altered decades of case law and seemingly rewrote Chapter 673, which
is the Florida equivalent of Article 3 ofthe Uniform Commercial Code governing
"negotiable instruments" by converting a copy ofpromissory note into a valid
negotiable instrument. If left to stand, the Opinion will have a tremendous
impact on all foreclosures in this state and will significantly impact future real
estate transactions.
3. The Fourth District Holding that Fraudulent Assignments of
Mortgages are Irrelevant is Inconsistent and Conflicts With This
Court's Previous Decisions
The assignment ofmortgage in this case contained a conflict on its face as to
Deutsche Bank's right to foreclose. By declaring that: "Even ifHarvey could
prove [the assignment was fraudulent], the dispute would be between AHMAI
[original lender] and Deutsche [the Plaintiff]", the Opinion announces a new rule
in foreclosure cases that actual ownership of the loan is irrelevant once the Plaintiff
makes aprimafacie showing of the right to enforce the note as its holder. It
cannot be disputed the assignment of mortgage contained the signatures ofthree
known Robo-Signers. See: Unfair, Deceptive and Unconscionable Acts in
Foreclosure Cases " (Florida Attorney General, Economic Crimes Division Report
2011). By holding that fraudulent assignments ofmortgages are irrelevant in
foreclosure cases, the Opinion altered decades of case law and seemingly
undermines and ignores the mandate set down by this Court when it addressed the
problem ofthe plethora of fraudulently executed documents in statewide
foreclosure cases. Acknowledging the importance of this problem and finding that
the veracity ofbanks and their chosen counsel is so often in questions, this Court
changed Florida Rules of Civil Procedure 1.110 to require that foreclosure
complaints be verified. In re Amendments to the Florida Rules ofCivil
Procedures, 44 So. 3d 555, 556 (Fla. 2010). The objective of this Court is largely
undermined by the Fourth District Opinion as it now stands.
If left to stand, the Opinion will have a tremendous impact on all pending
and future foreclosure cases in the State of Florida and will significantly limit
valid foreclosure defenses in such cases.
This Court should take jurisdiction to address the conflict and to correct the
Fourth District's serious error.
CONCLUSION
For the foregoing reasons, the Court should accept jurisdiction to review the
district court's decision and allow full briefing on the merits.
t
Respectfully submitted,
Jac^ueli^Harvey2359 SW Brookwood Lane
Palm City, Florida 34990
(561) 667-8485
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy hereof has been furnished by United
States Mail to Katherine E. Giddings, Esq., and Nancy M. Wallace, Esq.,
AKERMAN SENTERFITT, 106 East College Avenue, Suite 1200, Tallahassee,
Florida 32301, this 1st day of October, 2011.
Jac^Geli^Harvey