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IN THE SECOND DISTRICT COURT OF APPEALS ,
FOR THE STATE FLORIDA
CASE NO.
L.T. No.: No.16-000056AP-88B
Peter Stack Landmark Oaks Condo. Assn., Inc.
&
HUD v.
Appellant/Petitioner(s) Appellee/Respondent(s)
PETITION FOR SECOND TIER WRIT OF CERTIORARI
Comes now the Petitioner Peter Stack, petitioning this court for a second tier
writ of certiorari seeking to quash the county appellate court’s order confirming the
county court’s order to issue a writ of possession which departed from the essential
requirements of law, denied petitioner of statutory procedure ie: due process, since
the county court was without subject matter jurisdiction or monetary jurisdiction to
issue a writ of possession against petitioners.
The county appellate court affirmed the lower court’s decision based on the
wrong / incorrect law.
BASIS FOR INVOKING JURISDICTION
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Petitioner respectfully invokes the jurisdiction of this court pursuant
to the Fla.R.App.P. 9.030 (b)(2)(B).
This circuit court of appeal has “certiorari jurisdiction” to review final
orders of a county court acting in its review capacity.
This petition is timely. The county appellate court denied Petitioner’s
Writ of Certiorari 08/01/2017.
This second tier certiorari is timely filed within 30 days of rendering
the denial for rehearing.
STANDARD OF REVIEW
The Standard of Review for a second tier certiorari petition
challenging the decision made by the county appellate court requires
assessing whether the county appellate and county court on which their
decision was based, afforded due process and applied the correct law in
reviewing the case, and whether their decision observed the essential
requirements of law.
“clearly established law” is not limited to questions of law that have
been settled. Rather :
“clearly established law” can derive from a variety of legal services,
includes recent controlling case law, rules of the court, statutes, and
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constitutional law. This in addition to case law dealing with the same issue
of law, an interpretation or application of a statute, a procedural rule or a
constitutional provision may be the basis for granting certiorari review.”
Allstate Insurance Co. v. Kaklamanos 843 So. 2d 885
STATEMENT OF FACTS
1. HUD obtained the title to Frances Mann’s (hereafter referred to as
FM) property thru a non-judicial foreclosure of a reverse mortgage
02/11 using blank documents and robo-signing.
2. The owner of legal title to the property is in dispute and is being
litigated in case #11-006246-CO. This case is ongoing and
unresolved.
3. Case #11-006246-CO was an evicition complaint which was
voluntarily dismissed by court order at the request of Plaintiff /
POSNER 05/15/2012 per Fla.R.Civ.P. 1.420 defendants Peter Stack &
FM’s counterclaims still remain.
4. The fraudulently obtained non-judicial foreclosure of FM’s reverse
mortgage, and HUD’s ownership of title to the property is being
contested in defendant’s counterclaims which remain as required by
F.R.C.P. 1.420
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5. Remaining also to be adjudicated is defendant’s 1.540. motion for
fraud on the court which needs to be resolved as per the appellate
court mandate 11/12/2014 prior to proceeding with the defendant’s
counterclaims and challenge to the ownership of the title which would
have to take place with a transfer to the circuit coiurt.
6. If Petitioners prevail with their counterclaims HUD would revert
back to the mortgagor and being the superior lien holder.
7. Landmark Oaks filed a foreclosure complaint against HUD for non-
payment of condo assessments which they stated were less than
$15,000.00 (the monetary limit of the court)
8. 10/10/2014 a default entered against HUD by the court clerk.
9. 06/29/2016, HUD transferred title to the property by Deed in Lieu of
Foreclosure.
10. Based on this Deed In Lieu of Foreclosure, Landmark Oaks motioned
the court for a Writ of Possession.
11. 08/07/2016 Filed was Petitioner’s / Defendant’s Motion to Strike
which included documentation of the lack of the court’s subject matter
jurisdiction and monetary jurisdiction.
12. 08/15/2016, 15 minute telephonic hearing on Plaintiff’s Motion for
Writ of Possession was held and again the lack of the court’s subject
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matter jurisdiction and monetary jurisdiction was brought up by
Petitioner Peter Stack during the telephonic hearing.
13. 08/18/2016, The hearing for (only) Writ of Possession… (not
noticed) for Defendant’s Motion to Strike was scheduled for 15
minutes on 08/30/2016.
14. 08/30/2016, A scheduled 15 minute hearing on Motion for Writ of
Possession was held. Again, Pettioner Peter Stack, brought up the
lack of the court’s subject matter jurisdiction and monetary
jurisdiction and the fact an order rendered in which the court lacks
jurisdiction is void.
Instead of setting a hearing on the court’s jurisdiction before
proceeding further an order was issued stating: “Case # 11-6246-CO, a
case not controlling, nor pertinent to this instant action”
This was a title issue decision which is beyond the jurisdiction
of the county court & lies with the circuit court, which has
original jurisdiction.
Irregardless of the prior case #11-006246-CO Petitioner raised
title issues in their answer to the complaint and subsequent
pleadings which would preclude the county court from
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adjudicating the case, which should have been transferred to the
circuit court.
Again there was no hearing set to adjudicate subject matter
jurisdiction and monetary jurisdiction.
15. 09/02/2016, Order of Recusal stating “Additional information has
since come to light that gives the court concern that in order to protect
the procedural due process rights of all parties involved and to insure
integrity and fairness of the proceedings the court must on its own
recuse itself from further consideration of all matters in this cause
The only due process rights involved were the court’s lack of
subject matter jurisdiction and monetary jurisdiction, the failure
to adjudicate this issue or set a hearing as required by legal
precedent in case law, and the fact the court made a ruling on a
prior case involving a title decision which is beyond its
jurisdiction.
16. 10/09/2016, Petitioner Peter Stack’s Motion for Relief From
Judgment. Again reviewing the county court’s lack of subject matter
and monetary jurisdiction.
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17. 10/21/2016, Petitioner / Defendant Motion to Dismiss again
reviewing the lack of jurisdiction and fact an order rendered in which
the court lacks jurisdiction is void.
18. 10/25/2016 Petition for Writ of Prohibition was filed based on the
court’s lack of jurisdiction in order to quash the Writ of Possession
and failure to set a hearing to determine its jurisdiction and stop
before going further to establish jurisdiction.
19. 10/27/2016, 15 minute scheduled hearing on Writ of Possession and
Petitioner’s Motion to Strike.
20. 11/03/2016, Order granting Writ of Possession. Order denying
Defendant’s Motion to Strike – not noticed in setting a hearing. Order
denying Defendant’s Motion to Dismiss – not noticed in setting a
hearing. Petitioners / Defendant’s Motion to Strike the Writ of
Possession which was noticed but was not heard or adjudicated and no
order on this motion was issued.
21. 11/10/2016, Petition for Writ of Certiorari seeking to quash the
county court’s order for Writ of Possession.
22. 11/16/2016, Order denying Motion to Stay Writ of Possession.
23. 11/18/2016 Writ of Possession executed.
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24. 11/18/2016,Writ of Prohibition denied since the court proceeded to
issue a Writ of Possession in spite of the jurisdictional challenge made
in the county appellate court with the Writ of Prohibition. Successor
judge did not stop and consider or adjudicate the court’s jurisdiction
as required in case law and was also brought up by previous judge.
25. 08/01/2017, Order and opinion per curium denied for Writ of
Certiorari.
26. 08/24/2017, Motion for Rehearing.
27. 10.05.2017, Order denying Motion for Rehearing filed and
rendered.
NATURE OF RELIEF SOUGHT
The Petitioner is seeking a finding that the county court and the
appellate court departed from the essential requirements of law,
applied the wrong / incorrect law and ignored case law precedents,
since Peter Stack & Frances Mann were never tenants of HUD or
Landmark Oaks under F.S. 83. Respondent misused an eviction
instead of an ejectment to remove petitioners from the property. Since
ejectment is the exclusive jurisdiction of the circuit court, as is title
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issues which were also raised by the Petitoners, the county court
lacked subject matter jurisdiction to hear the case.
The county court failed to evaluate its monetary jurisdiction
with a meanful hearing, or an adjudication on record to establish its
jurisdiction in response to Petitioner’s challenge… Case law
precedent was ignored.
The county court lacked subject matter jurisdiction and
monetary jurisdiction and the county court acting in its appellate
capacity applied the incorrect law when it affirmed the county court’s
judgment of eviction and issued a Writ of Possession.
The failure of the county and county appellate court to consider
any of these jurisdictional issues, the failure of the county court to
hold a meanful hearing on jurisdiction constitutes a fundamental error
and departed from the essential requirements of law.
The foregoing is reviewable by this court on second tier
certiorari petition. The county court did not have subject matter
jurisdiction or monetary jurisdiction to issue a Writ of Possession /
eviction against the Petitoners and thus the Writ should be quashed
and the case transferred to circuit court.
ARGUMENT
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I
LACK OF LANDLORD TENANT RELATIONSHIP AS PER
F.S. 83
AND TITLE ISSUES EXIST
The county court in its appellate capacity failed to apply the
correct law in affirming the county court’s judgment, as the county
court lacked subject matter jurisdiction to enter an eviction against the
Petitioners, Peter Stack and Frances Mann.
”Once the [party in possession of the real property] raised the issue of
a competing claim to title as an affirmative defense, it could no longer
be assumed that the case was a landlord / tenant matter within the
jurisdiction of the county court.”
Ali v. Matos Fla. L. Weekly Supp, 846 a (Fla Broward Cty. Ct. App
21, 2004) (finding that cause of action for ejectment is a remedy for
possessary claims where there is no landlord / tenant relationship and
that “county court does not have jurisdiction to hear ejectment
actions).
Toledo v. Escamilla, 362 So 2d 1028 (2007) in similar case to
this instant case, court granted a writ of certiorari because the county
court lacked subject matter jurisdiction to enter the final judgment of
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eviction since the county court lacked subject matter jurisdiction to
resolve the issues before it [ie: competing claim to title] the decision
reached in county court constitutes fundamental error, a departure
from the essential requirements of law and justifies invocation of
[district] courts certiorari jurisdiction.
The eviction process is typically part of the foreclosure action
with the right of possession included in the judgment. After the
Certificate of Title is issued the owner files a Motion for Writ of
Possession.
When a person is in possession of a property and there is no
agreement for rent and therefore no landlord / tenant relationship an
ejectment is necessary.
This is predicated upon some claim whether frivolous or
meritorious that said person has some interest in the property that
transcend mere “possession”.
When this arises ejectment is needed and is governed by Fla.
Staute 66.
The circuit court has “exclusive original jurisdiction over
ejectment actions” F.S. 26.012 (2)(f)
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Pro – Art Dental Lab, Inc. v. V-Strategic Group LLC, 959 So 2d 753
(Fla 4th
DCA 2007)
An eviction action is governed by Chapter 83 which is known
as Fla. Residential Landlord Tenant Act. (the Act) and applies to
situations where a landlord / tenant relationship exists which is
framed by agreement, oral or written to pay rent in some form.
Winning a judgement of foreclosure against HUD for non-
payment of assessments entitles an eviction procedure against HUD.
Frances Mann & Peter Stack were never tenants of HUD or
Landmark Oaks, but in spite of this Landmark Oaks intentionally filed
a complaint with an incorrect caption naming as Defendant Tenant 1
(Frances Mann) & Tenant 2 (Peter Stack)
A landlord / tenant relationship is a condition precedent to
seeking to remove a person from a premise under Section 83.59 (2)
which allows a landlord summary procedure in county court of
eviction.
Section 83.43 (4) defines “tenant” as any person entitled to
occupy a dwelling unit under rental agreement.
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Section 83.43 (7) defines “rental agreement” as “any written
agreement or oral agreement if it is less duration than 1 yr. providing
for use and occupancy of premises.”
In this instant case, it is undisputed that there was no oral or
written “rental agreement”,
Therefore Peter Stack & Frances Mann are not “tenants” as
defined by “The Act”. The county court lacked subject matter
jurisdiction for eviction.
Frances Mann & Peter Stack asserted in their answers to the
complaint and subsequent pleadings that they were not tenants and
FM had a competing title claim to the property and there was
litigation in case #11-006246-CO of her counterclaims challenging the
validity of HUDs title.
This is a title issue but in spite of the county court’s lack of
jurisdiction for title issues, the court gave a ruling that the case was
not pertinent to the instant action. This title issue was beyond the
scope of the court.
Even if it stands, FM still presented a issue of competing claim
to title in her defense / answer, which has to be resolved in circuit
court.
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The county court continued to assume & present Frances Mann
& Peter Stack as tenants in spite of multiple pleadings refuting this,
reminding the court of FM’s claim to the title of the condo because of
HUD’s wrongful foreclosure with blank documents, and robo-signing
and the failure of Landmark Oaks to prove that this eviction of
Frances Mann & Peter Stack was based on a landlord / tenant
relationship with a “rental agreement” as required by F.S.A. 83.41,
83.43(6), 83.43(7).
As a result, Landmark Oaks was never able to sustain an
eviction under F.S. 83 against Frances Mann and Peter Stack.
Nowhere to be found in the record is any supporting evidence
that FM & PS are tenants. That is because clearly they are not but
have been mischaracterized as tenants by Respondents to try and
control jurisdiction for eviction in the county court.
The 10/27/2016 hearing in which a Writ of Possession was
issued against FM & PS, the court was continuing the erroneous
characterization of Frances Mann & Peter Stack as tenants, even
though an eviction under Fla. Statute 83 could not be sustained and
the court lacked subject matter jurisdiction.
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For eviction, there must be a landlord / tenant relationship by a signed
lease or if “tenant” paid rent in one form or another.
In this instant case neither of the above occurred.
Ejectment needs to be filed when a person living in the property states
they have some right, title or interest in the property, that is a legal claim to
the property.
Ejectment is the only recourse for an owner whose purpose is to
remove a non-rent paying person living in the property.
Ejectment needs to be filed in circuit court and is not governed by
summary procedure.
“An incorrect decision on subject matter jurisdiction is
fundamental error. It constitutes a departure from [the] essential
requirements of law, sufficient to justify invocation of [district]
court’s certiorari jurisdiction… thus the county court’s lack of subject
matter jurisdiction was properly raised in the circuit court for second
tier certiorari.”
Galen Offi, Inc. v. Arscott, 629 So. 2d 856 (Fla. 5th
DCA 1993)
The county court and the county appellate court used the wrong
/ incorrect law in coming to their decision.
II
COUNTY COURT LACKED MONETARY JURISDICTION
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The county appellate court failed to apply the correct statutory law
and case law precedent in affirming the county court’s judgment, as the
county court lacked monetary jurisdiction to hear the case.
Questions of jurisdiction can be brought up at anytime. Rule 1.39(b)
“If at anytime it should appear a suit is pending in wrong court of any county
it may be transferred to the proper court within said county.”
PRECEDENT CASE LAW
“Fla. courts have constantly held that [s]ubject matter jurisdiction
cannot be created by waiver, acquiencense or agreement of parties or by
error or in advertence of the parties or their counsel, or by the exercise of
power by the courts.”
It is a power that arises solely by virtue of the law.”
84 Lumber Co. v. Cooper, 656 So. 2nd
1297, 1298 (Fla. 2d DCA 1994)
(quoting Fla. Exp. Tobacco Co. v. Dept. of Revenue, 510 So. 2d 936, 943
(Fla. 1st DCA)
“In determining whether jurisdictional amount for the[county court] is
met, valuation fixed by the pleadings is to be accepted as true if made in
good faith and not illusionary purpose of conferring jurisdiction.”
Neuman v. Brigman, 475 So. 2d 1247(Fla. 2nd
DCA 1955)
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“The test of the jurisdiction of a court of equity is whether facts exist
at the time of commencement of the action sufficient to confer jurisdiction
on the court.”
Mutual Benefit Health and Accident Assoc. v. OH 151 Fla. 185, 9 So. 2d
283, 384 (Supreme Court of Florida)
“Regardless of what statement of damages is made in the ad domnum
clause of a complaint, such statement does not determine the jurisdiction of
the court if it clearly appears that the real demand or value of property is
otherwise than stated and ad damnum exceeds the real demand.”
Seaboard Airline Ry v. Maxey, 1512 Fla. 487 60 So. 353
“lack of good faith” must be the result of actual, not constructive
knowledge of wrong doing tantamount to dishonesty or bad faith.”
Barnett Bank of Palm Beach County, N.A. v. Regency Highland condo
Assoc., Inc. 452 So. 2d 587, 590 (Fla. 4th
DCA 1984)
Landmark Oaks, had actual knowledge at the time of filing their
complaint, that the assessments owed were more than the $15,000.00
monetary limit of the court. F.S. 34.01 (1)(c).
L.O. complaint 06/16/2014, lists the assessments owed to be $3585.00
thru 06/302014.
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L.O. filed claim of lien 06/19/2013 with the court for assessments
04/2011 to 12/2012 of $8,295.00 for interest 01/2013 to 06/2013 of
$2382.00 totaling 13,223.63. This claim of lien is also effective for all
unpaid assessments due hereafter until fully paid plus interest and attorneys
fees. (exb. A)
Preceding filing 06/13/2013 lien, a letter with claim of lien sent to
HUD which included assessments from 09/2009 thru 06/2013 of $18,182.00
and interest of $5497.29, totaling $23,699.29.
This letter with a claim of lien secures the amounts set forth as well as
additional assessments, costs and interest. (Exb. B)
Second claim of lien filed with the court 02/14/2014, in spite of fact
first lien 06/19/2013 was still in force. The list of assessments 10/2013 to
12/2013 and 01/2014 to 02/2014 totaling $1089.00. (Exb. C)
Affidavit filed with the court 11/18/201 by Twila Anderson,
Landmark Oaks Collection Agent, states Defendant HUD has been
delinquent in payment of assessments owed to Assoc. since 10/2013 (“date
of delinquency”)
Total anounts have come due since the date of delinquency thru
11/2014 of $5580.00 with interest $583.67 for total $6153.67.
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[EXHIBIT D]
This affidavit was not the original delinquency which occurred
09/2009/
In spite of the fact L.O. had a lien against the property filed
06/13/2013 which was still in effect for subsequent assessments, Respondent
filed a second lien misrepresenting the 2nd
lien as the original date of
delinquency to the court.
L.O.’s new lien claim was to establish the illusionary claim of
jurisdiction in the county court.
Landmark Oaks knew the actual amount of assessments owed, devoid
of interest, just based on their liens filed with the court of $1989.00
(02/2014) & 12,666.00 (06/19/2013) which when added to the other
assessments owed but not mentioned by L.O. of 07/2013thru 09/2013, for
$1191.00, and 03/2010 thru 03/2011 totaled $18, 597.00 which was beyond
the jurisdiction of the court.
TO SUMMARIZE
HUD recorded title to the condo property 04/08/2011.
Assessments without interest or other fees owed by HUD.
04/2011 to 12/2012…..$8295.00
01/2013 to 06/2013…..$2382.00
07/2013 to 09/2013…..$1191.00
10/2013 to 12 /2013.....$1989.00
01/2014 to 02/2014
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03/2010 to 03/2011….. $4740.00 (as per Florida Statute 718.116)
($18,597.00)….. actual assessments owed by HUD at the time of Land
mark Oaks filing its foreclosure action.
Florida Statute 34.01 (1)(c) the monetary jurisdiction of the county court
has a limit of $15,000.00.
This was actual knowledge they had at the time Landmark Oaks filed their
complaint and it could not be construed that they had in “good faith put an
ad domnum amount of $1989.00 plus attorneys fees etc. before the court
This was to misrepresent to the county court that it had monetary
jurisdiction, even though they knew
that the assessments at the time of their filing a complaint had exceeded the
$15,000.00 monetary limit of the court and a claim of lien filed with the
court 06/19/2013, which covered all subsequent assessments owed was still
in effect.
Nowhere in the record, did Landmark Oaks reconcile the variable
amounts of assessments owed or show HUD had made any payment of
assessments prior to their filing their 06/16/2014 complaint .
All of the amounts of assessments owed by HUD from 04/2011 to
11/2014 were a continuum with no break with intermittent payments.
They were not aggregates but one unit of assessments owed by HUD
which had held title since 04/2011
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The new lien, 02/14/2014 was set-up purely to artificially create
jurisdiction in county court.
Petitioners Frances Mann & Peter Stack repeatedly brought up
the lack of good faith by Landmark Oaks in amount put in
controversy.
Despite asking the court to rule on its monetary and subject
matter jurisdiction in pleadings and at hearings (08/30/2016) this was
ignored by the court and no hearing was set to determine the county
court’s jurisdiction.
There is no statement on record where the court delineated
why it believed it had jurisdiction.
PRECEDENT CASE LAW
“The true test of the court’s monetary jurisdiction depends upon
the amount claimed and put in controversy in good faith. Thus if
court or counsel questions the monetary jurisdiction and it appears
that the amount claimed in good faith is without the jurisdiction of the
court, the case could merely be transferred to the proper court
regardless of the content of the ad damnum clause.”
McCotter Motor Corp. v. Woody, 184 So. Rule 1.13(j) & 1.39
F.R.C.P. 30 F.S.A.
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“Failure to observe the essential requirements of law means
failure to accord due process of law within the contemplation of the
constitution or commission of an error so fundamental in character as
to totally infect the judgment and render it void.”
Haines City Community Dev. v. Hegis, 658 So. 2d 523, Fla. 1995
Florida Supreme Court
“The required “departure from the essential requirements of
law” means something far beyond legal error, it means an inherent
illegality or irregularity, an abuse of judicial power, an act of judicial
tyranny perpetrated with disregard of procedural requirements
resulting in a gross miscarriage of justice. The writ of certiorari
properly issues to correct illegality but not legal error.
Jones v. State, 477 So. 3d 566, 569 (Fla. 1985)
The trial court ignored and did not set hearings to establish its
jurisdiction, despite multiple pleadings and at a hearing 08/30/2016,
where lack of jurisdiction was brought to the court’s attention by
Petitioner Peter Stack.
In spite of this no hearing to determine the court’s jurisdiction
was set only the county court’s ruling on a title issue. That case #11-
006246-CO was not relevant to this instant case. This was beyond the
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county court’s subject matter jurisdiction, since only title issues are
the exclusive jurisdiction of the circuit court.
There was no setting up of an inquiry on the court’s monetary
jurisdiction when it was brought up by Petitioner at 08/30/2016
hearing. Case law requires this before proceeding further.
Instead, another hearing of 15 minutes was set up for
10/27/2017 to issue a Writ of Possession.
Without the required determination of jurisdiction before
proceeding further, the judge on 09/02/2016 recused herself citing “ in
order to protect the procedural due process rights of all the parties
involved and to insure the integrity and fairness of proceedings.”
Subsequent judge did not stop and establish court’s jurisdiction
and went ahead with a hearing and issuing a Writ of Possession totally
ignoring prior judge’s recusal order.
Subsequent judge was aware of jurisdictional challenges made
by the Petitioner in the 08/30/2016 hearing, in Motion to Stay & a
Writ of Prohibition filed by Petitioner all dealing with court’s lack of
jurisdiction but the court went ahead anyway and held a hearing
issuing a Writ of Possession without stopping to evaluate the court’s
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jurisdiction as required by precedent in case law. See Exhibit I (1thru
4), see Statement of Facts of this instant pleading (11 thru 24).
PRECEDENT CASE LAW
English v. McCrary, 348 So. 2d 293 (1977)
“When at any time or any mannerit is in good faith represented
to the court by a party ___ that it has not jurisdiction, the court will
examine the grounds of its jurisdiction before proceeding further.”
“may inquiry into the correctness of the averment”
“ a court cannot pass on its own existence as a court.”
“___ where the question of jurisdiction is one of law, a court
cannot by an erroneous decision acquire jurisdiction which it has not,
or divest itself which it has.”
“A clear distinction is drawn between assumption of
jurisdiction to which the court has no legal claim and erroneous
exercise of jurisdiction with which it is invested.”
State exrel. Rheinauer v. Malone, 40 Fla. 129, 23 So. 575, 576 (1898)
This is not erroneous exercise of jurisdiction but by law court
did not have jurisdiction to hear the case.
Nowhere on the record is there a court order establishing the
court’s jurisdiction or a meaningful hearing scheduled to determine
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jurisdiction in spite of the fact Petitioners provided irrefutable
evidence that this instant case should transferred to circuit court.
FAILURE TO HOLD A HEARING ON ITS MONETARY
JURISDICTION AND TRANSFER TO CIRCUIT COURT IS
IGNORING CASE LAW PRECEDENT
“Order denying transfer to circuit court, the trial court departed
from the essential requirements of law based on the trial court’s own
determination of whether it had jurisdiction, without hearing or
decision on record.”
Townsend v. Asset Acceptance Corp., 050102 AP B, Fla. 6th Circuit
Court App. Ct Dec 6, 2006
CASE LAW PRECEDENT
“The duty of a trial court judge to apply to admitted facts a
correct principle of law is such a fundamental and essential element of
the judicial process that a litigant cannot be said to have had the
remedy by due course of law guaranteed by Section 4 of the
Declaration of Rights of our Constitution, FS. A. , if the trial judge
fails or refuses to perform that duty--- And, indeed, it is unthinkable
that the court, in the exercise of its supervisory jurisdiction over other
courts could not compel adherence to a principle of law heretofore
26
established by this court in the unlikely event that a trial judge should
deliberately and consciously refuse to follow such decision, even
though the trial judge’s arbitrarily erroneous actions in this respect
had been approved and affirmed by a circuit court on appeal.”
Matthews v. Metropolitan Life Insurance Co. 89 So. 2d 641 (Fla.
1956)
In a second tier Certiorari “appellate court’s decision is so
erroneous that justice requires that it be corrected.”
Housing Auth. Of City of Tampa v. Burton, 874, So. 2d 6 (Fla. Dist.
Ct. Appl 2004)
III
HARM
Let us not forget Petitioner Frances Mann was 101 years old when she
was forcibly evicted by the court that had no subject matter
jurisdiction or monetary jurisdiction to issue a Writ of Possession
refused to hold a meaningful hearing to evaluate the jurisdictional
issues brought up by Petitioners.
Respondents had the Petitioner, 101 yr, old Frances Mann
removed from her home of 30 years, seized and removed all of her /
their property and provided no subsequent access in violation of F.S.
27
715.105 & F.S. 715.106 which requires a notice to be sent out stating
the right to reclaim property, that specifies where to claim, costs of
storage, timeframe for picking it up and an inventory.
This grab and disposal was done in spite of fact Peter Stack &
Sandra Mann had notified Landmark Oaks that property in the condo
was not abandoned and they wished to retrieve it.
Peter Stack sent an email to Landmark Oaks attorneys
on11/21/2017, three days after removal (Exhibit E). On 12/14/2016,
Sandra Mann sent a certified letter to L.O. president Thomas
Sandhoff, stating the property in condo was not abandoned and she
wished to retrieve it and was currently hospitalized and wished to set-
up a time to do so. (Exhibit F & G)
Landmark Oaks had Peter Stack’s email through their attorneys
and court docket and Peter Stack’s and Sandra Mann’s old and new
address where mail, at that time, was forwarded to a P.O. Box.
Sandra Mann, also gave and additional address in Longwood, FL
where she could be reached.
There was no response from Landmark Oaks or HUD who had
taken back the property by quick claim deed.
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After entering a Writ of Possession, remaining property is not
owned by the title holder (re: Landmark Oaks / HUD) but is still the
property of Petitioners.
Not providing access, keeping property and not following F.S.
715.105 and 715.106 is theft.
Irreparable injury means injury “whether great or small” which
is not repairable and is not able to be repaired or redressed in a court
of law by an award of money damages.
AirAmbulence Network, Inc. v, Floribus, 511 So. 2d 702, Fla.
3rd
DCA (1987) F,S. 542.37
101 year old Petitioners Frances Mann & Peter Stack cannot be
compensated for the mental and physical stress of being forced from
her / their home, having her / their possessions stolen including
collection of 150 year old family heirlooms & pictures and denied
access to medications and medical equipment.
This is irreparable harm which has resulted in a miscarriage of
justice which is ongoing.
Landmark Oaks / HUD have persisted in bouncing the title to
the condo up and back between them listing the property for sale at
$127,403.00 in effect to complicate the legal situation and make it
29
extremely difficult for FM to retrieve her title and Challenge HUD in
court.
This is a miscarriage of justice that is clearly unfair and
improper, perpetrated against a 101 year old pro se litigant who had
her home of 30 years taken in a wrongful foreclosure of a reverse
mortgage by HUD using blank documents & robo signing and then by
Landmark Oaks in a county court which did not have subject matter
jurisdiction or monetary jurisdiction to hear the case. This is properly
raised by invoking certiorari review in this court. (see detailed
discussion on pages 1-5 of Reply to Respondent HUD’s Response to
my Petition for Writ of Certiorari. 07/10/2017 Exb. H) which has
resulted in miscarriage of justice which is ongoing.
CONCLUSION
“It seems to be the settled law of this state that the duty of a
court to apply to admitted facts a correct principle of law is such a
fundamental and essential element of the judicial process that a
litigant cannot be said to have had the remedy by due course of law…
if the judge fails or refuses to perform that duty.
State v. Smith, 118 So.2d 792, 795 (Fla. 1st Dist. Appt. 1966)
30
The Petitioner is requesting this court to find that the county appellate
court in affirming the lower court’s decision departed from the essemtial
requirements of law, applied the wrong / incorrect law and ignored case law
precedents with their decision.
Therefore, as the county court lacked subject matter jurisdiction and
monetary jurisdiction, Petitioner Peter Stack requests this court to grant this
petition quash the county appellate court’s opinion and instruct the county
appellate court to enter an order reversing the county court’s judgment of
issuing a Writ of Possession / eviction and transfer this action to circuit court
pursuant to F.R.C.P. 1.060(a)
DATE: FRI 03 NOVEMBER 2017
By: /s/Peter G. Stack
Peter G. Stack
Post Office Box 530733
St. Petersburg, FL 33747
727-698-7383 ([email protected])
31
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was
furnished via electronic mailing to Stephan C. Nikoloff
([email protected]) and Michael Posner ([email protected])
this Friday the 3rd day of November 2017.
DATE: FRI 03 NOVEMBER 2017
By: /s/Peter G. Stack
Peter G. Stack
Post Office Box 530733
St. Petersburg, FL 33747
727-698-7383 ([email protected])
CITATIONS
TABLE OF AUTHORITIES, STAUTES AND RULES
ON WHICH THIS WRIT IS BASED
Allstate Insurance Co. v. Kaklamonos, 843 So. 2d 885
Ali v. Matos, 11 Fla. L. Weekly Supp., 846 a (Fla. Broward Cty. CT Apv.
21 2004)
Toledo v. Escamilla, 362 So, 2d 1028 (2007)
Pro-Art Dental Lab, Inc. v. V-strategic Group, LLC, 959 So. 2d 753
(Fla. 4th
DCA 2007)
Galen Offl., Inc. v. Arscott, 629, So. 2d 856 (Fla. 5th DCA 1993)
84 Lumber Co. v. Cooper, 656 So. 2d. 1297, 1298 (Fla. 2d DCA 1994)
Fla. Exp. Tobacco Co. v. Dept. of Revenue, 510 2d 936, 943 (Fla. 1st DCA)
Neuman v. Brigman, 475 So. 2d 1247(Fla. 2nd
DCA 1955)
32
Mutual Health and Accident Assoc. v. OH, 151 Fla. 185, 9 So. 2d 283, 384
(Supreme Court Fla.)
Seaboard Airline Ry v. Maxex, 1512, 64 Fla. 487 60 So. 353
Barnett Bank of Palm Beach County N.A. v. Regency Highland Condo
Assn., Inc. 452 So. 2d 587, 590 (Fla. 4th DCA 1984)
McCotter Meter Comp. v. Woody, 184 So. 2d 925 (Fla. Dist. Ct)
Haines City Community Development v. Hegii, 658 So. 2d 523, Fla. 1995
Fla. Supreme Court
Jones v. State, 477 So. 2d 566,569 (Fla. 1985)
English v. McCrary 348 So. 2d 293 (1977)
Townsend v. Asset Acceptance Corp., 05-0102 AP-88 B, Fla. 6th Circuit
Court App. Ct Dec. 6, 2006
Housing Authority of the City of Tampa v. Burton, 874 So. 2d 6 (Fla. Dist.
Ct. of Appeal 2004)
Matthews v. Metroplitan Life Insurance Co., 89 So. 2d 641 (Fla. 1956)
Air Ambulance NetworkInc. v. Floribus, 511 So 2d 702, Fla. 3d DCA
(1987)
State v. Smith, 118 So. 2d 792, 795 (Fla. 1st Dist. Appl. 1966)
RULES
Fla.R.App.P. 9/030 (b)(2)(B)
Rule 1.39 (b)
Rule 1.13(j)
1.39
Rule 1.060 (a)
Rule 1.540
Rule 1.420
33
STATUTES Fla. Statute 66
Fla. Statute 26.012 (2)(f)
Fla. Statute Chapter 83 (Fla. Residential Landlord Tenant Act (The Act))
F,S. 83.43 (4)
F.S. 83.43 (7)
F.S. 83.41
F.S.83.43 (6)
F.S. 30
F.S. 34.01(1)(c)
F.S. 715.105
F.S. 715.106
F.S. 542.37
F.S. 718.116
EXHIBITS
Exhibit A
06/19/2013: Claim Lien Total: $13, 203.63
Exhibit B
06/04/2013:: Letter $23,179.91
Exhibit C
02/14/2014: Claim Lien $1989.00 / $2636.76
Exhibit D
Affidavit of amount due of Twila Anderson
Exhibit E
Exhibit of Pages 18, 19, 20 of Reply to Respondent HUD
Exhibit F
Sandra Mann’s letter to Thomas Sandhoff
Exhibit G
Certified Mail Receipt
34
Exhibit H
Pages 1-5 of Reply to HUD’s Response to my Petition for Writ of Certiorari
07/10/2017
Exhibit I
1 thru 4 Notice of Hearings
11/2/2017 IMG_20171101_161340.png
https://mail.google.com/mail/u/0/#inbox/15f79b912b36602f?projector=1 1/1
Exb. A
11/2/2017 IMG_20171101_161330.png
https://mail.google.com/mail/u/0/#inbox/15f79b9b7d4850d2?projector=1 1/1
Exb. B
11/2/2017 IMG_20171101_153416.png
https://mail.google.com/mail/u/0/#inbox/15f79ba8f79eed87?projector=1 1/1
Exb. C
11/2/2017 IMG_20171101_184010.png
https://mail.google.com/mail/u/0/#inbox/15f79c3a1f27d0e8?projector=1 1/1
Exb. D1
11/2/2017 IMG_20171101_184016.png
https://mail.google.com/mail/u/0/#inbox/15f79c3a1f27d0e8?projector=1 1/1
Exb. D2
11/2/2017 IMG_20171101_160848.png
https://mail.google.com/mail/u/0/#inbox/15f79c6108fdc94f?projector=1 1/1
Exb. E 2nd Tier Cert.
11/2/2017 IMG_20171101_160855.png
https://mail.google.com/mail/u/0/#inbox/15f79c6108fdc94f?projector=1 1/1
Exb. F
11/2/2017 IMG_20171101_160859.png
https://mail.google.com/mail/u/0/#inbox/15f79c6108fdc94f?projector=1 1/1
Exb. G
11/2/2017 IMG_20171101_185048.png
https://mail.google.com/mail/u/0/#inbox/15f79ca682726c77?projector=1 1/1
Exb. H
11/2/2017 IMG_20171101_185055_1.png
https://mail.google.com/mail/u/0/#inbox/15f79ca682726c77?projector=1 1/1
Exb. H
11/2/2017 IMG_20171101_185059.png
https://mail.google.com/mail/u/0/#inbox/15f79ca682726c77?projector=1 1/1
Exb. H
11/2/2017 IMG_20171101_185105.png
https://mail.google.com/mail/u/0/#inbox/15f79ca682726c77?projector=1 1/1
Exb. H