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In the District Court of Appeal Third District of Florida

_________________________ CASE NO. 3D13-2712


(Circuit Court Case No. 2012 39765 CA 01)

_____________________ ANGELO FRAU and YAMILETH FRAU, Appellants, v. JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, Appellees. _____________________________________
ON APPEAL FROM THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA

___________________________________________________

INITIAL BRIEF OF APPELLANTS ____________________________________


Respectfully submitted,

ICE APPELLATE
Counsel for Appellants 1015 N. State Road 7, Suite C Royal Palm Beach, FL 33411 Telephone: (561) 729-0530 Designated Email for Service: service@icelegal.com service1@icelegal.com service2@icelegal.com

TABLE OF CONTENTS Page TABLE OF AUTHORITIES .............................................................................. ii STATEMENT OF THE CASE AND FACTS ....................................................1 I. Introduction ............................................................................................ 1 II. Appellants Statement of the Facts......................................................... 1 SUMMARY OF THE ARGUMENT ..................................................................4 STANDARD OF REVIEW .................................................................................5 ARGUMENT .......................................................................................................6 The Trial Court Erred in Denying the Fraus Motion to Quash. .................. 6 A. Failure of the process server to note the statutorily mandated information on the documents delivered required dismissal for insufficiency of service of process. .........................................................6 B. A jurisdictional objection cannot be waived through inaction. ..............8 C. Deeming motions abandoned contradicts existing Rules of Procedure. ..............................................................................................10 CONCLUSION ..................................................................................................26 CERTIFICATE OF SERVICE AND FILING ..................................................28

TABLE OF AUTHORITIES Page Cases 1-888-Traffic Sch. v. Chief Circuit Judge, Fourth Judicial Circuit, 734 So. 2d 413, 415 (Fla. 1999) .............................................................................5 Alvarado v. Cisneros, 919 So. 2d 585 (Fla. 3d DCA 2006).............................................................. 5, 8, 9 Am. Exp. Ins. Services Europe Ltd. v. Duvall, 972 So. 2d 1035 (Fla. 3d DCA 2008).....................................................................8 Bathurst v. Turner, 533 So. 2d 939 (Fla. 3d DCA 1988).............................................................. 13, 14 Bennett v. Christiana Bank & Trust Co., 50 So. 3d 43 (Fla. 3d DCA 2010)...........................................................................6 Berkheimer v. Berkheimer, 466 So.2d 1219 (Fla. 4th DCA 1985) ..................................................................12 Berne v. Beznos, 819 So.2d 235 (Fla. 3d DCA 2002)........................................................................8 Blackiston v. State, 772 So. 2d 554 (Fla. 5th DCA 2000) ...................................................................21 Broward County v. G.B.V. Intern., Ltd., 787 So. 2d 838 (Fla. 2001) .....................................................................................5 Brown v. U.S. Bank Nat. Assn, 117 So. 3d 823 (Fla. 4th DCA 2013) .................................................................7, 8 Combs v. State, 420 So. 2d 316 (Fla. 5th DCA 1982) approved, 436 So. 2d 93 (Fla. 1983) ....................................................................19

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Comcoa, Inc. v. Coe, 587 So. 2d 474 (Fla. 3d DCA 1991).....................................................................21 Dashew v. Marks, 352 So.2d 554 (Fla. 3d DCA 1977)......................................................................15 Electro Engg Products Co., Inc. v. Lewis, 352 So. 2d 862 (Fla. 1977) .....................................................................................6 Hewlett v. State, 661 So. 2d 112 (Fla. 4th DCA 1995) ...................................................................20 Kwong v. Countrywide Home Loans Servicing, L.P., 54 So. 3d 1033 (Fla. 4th DCA 2011) .....................................................................7 Labbee v. Harrington, 913 So. 2d 679 (Fla. 3d DCA 2005).......................................................................5 McKelvey v. McKelvey, 323 So. 2d 651 (Fla. 3d DCA 1976).......................................................................6 Mecca Multimedia, Inc. v. Kurzbard, 954 So. 2d 1179 (Fla. 3d DCA 2007).....................................................................5 Melara v. Cicione, 712 So. 2d 429 (Fla. 3d DCA 1998).....................................................................19 Melkonian v. Goldman, 647 So. 2d 1008 (Fla. 3d DCA 1994)...................................................................12 Obando v. Bradshaw, 920 So. 2d 198 (Fla. 4th DCA 2006) ...................................................................12 Patton v. Kera Tech., Inc., 895 So. 2d 1175 (Fla. 5th DCA 2005) approved, 946 So. 2d 983 (Fla. 2006) ..................................................................15 Payret v. Adams, 471 So.2d 218 (Fla. 4th DCA 1985) ....................................................................12

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S. R. v. State, 346 So. 2d 1018 (Fla. 1977) .................................................................................17 Sewell Masonry Co. v. DCC Const. Inc., 862 So.2d 893 (Fla. 5th DCA 2003) ....................................................................15 Subirats v. Fid. Nat. Prop., 106 So. 3d 997 (Fla. 3d DCA 2013).....................................................................14 Tallahassee Democrat, Inc. v. Willis, 370 So. 2d 867 (Fla. 1st DCA 1979) ....................................................................18 United Services Auto. Assn v. Goodman, 826 So. 2d 914 (Fla. 2002) ...................................................................................12 Valdez v. Chief Judge of Eleventh Judicial Circuit of Florida, 640 So. 2d 1164 (Fla. 3d DCA 1994)...................................................................20 Vidal v. SunTrust Bank, 41 So. 3d 401 (Fla. 4th DCA 2010) .......................................................................6 Walker v. Fifth Third Mortg. Co., 100 So. 3d 267 (Fla. 5th DCA 2012) .....................................................................7

Statutes 48.031(5), Fla. Stat.......................................................................................... 1, 6, 7

Rules Fla. R. Civ. P. 1.070(e) ..........................................................................................6, 7 Fla. R. Civ. P. 1.090(d) ............................................................................................18 Fla. R. Civ. P. 1.140(a) ............................................................................................14 Fla. R. Civ. P. 1.140(b) ............................................................................................13

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Fla. R. Civ. P. 1.140(d) ............................................................................................17 Fla. R. Civ. P. 1.140(h) ............................................................................................13 Fla. R. Civ. P. 1.200(a) ............................................................................................18 Fla. R. Civ. P. 1.420(e) Fla. R. Civ. P. ....................................................................15 Fla. R. Civ. P. 1.440(a) ............................................................................................14 Fla. R. Jud. Admin. 2.120(c)....................................................................................12 Fla. R. Jud. Admin. 2.215(b)(2) ...............................................................................12 R. Regulating Fla. Bar 4-3.2. ...................................................................................16

Other Authorities Art. I, 21, Fla. Const. ............................................................................................19 Art. I, 9, Fla. Const................................................................................................19 Art. V, 4, Fla. Const. .............................................................................................19

STATEMENT OF THE CASE AND FACTS I. Introduction This appeal arises from a foreclosure action filed by JPMorgan Chase Bank, National Association (the Bank) against Angelo and Yamileth Frau (the Fraus). It presents a single question: Is a timely challenge to the courts personal jurisdiction waivable through inaction?

II.

Appellants Statement of the Facts Approximately a year and a half ago, the Bank filed a foreclosure action to

collect a debt originally owed to Chase Manhattan Mortgage Corporation.1 The Fraus first appearance in the case was a Motion to Quash Service of Process2 in which they contended that service was defective because none of the information required by48.031(5), Fla. Stat. had been written on the summons: A person serving process shall place, on the first page of at least one of the processes served, the date and time of service and his or her identification number and initials for all service of process.

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Verified Mortgage Foreclosure Complaint, filed October 4, 2012 (App. 6).

Defendants, Angelo Frau and Yamileth Fraus Motion to Quash Service of Process, served November 13, 2012 (App. 38). 1

48.031(5), Fla. Stat. The Fraus attached a copy of the first page of each summons given to them as evidence that the process server had not provided any of the four necessary items of information: the date, the time of service, his or her identification number or his or her initials. The Bank did nothing to challenge the Fraus motion or to prosecute its case. The only activity in the case during the next seven months was a Notice of Unavailability filed by the Fraus attorneys. 3 The trial court then (in July of 2013) sua sponte, set the matter for trial to take place October 18, 2013 even though the case was not at issue because the Fraus had neither answered nor been defaulted.4 The court, however, did not serve the Fraus with the trial order, relying instead on the Bank to do so. The Bank, however, did not serve the order until more than three months had passeda mere fifteen days before the scheduled trial.5 The Fraus moved to vacate the trial order because it was served late and was, in any event, a legal nullity because the case was not at issue. 6 On the day
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Notice of Unavailability, served February 1, 2013 (App. 48).

Uniform Order Setting Cause for Non-Jury Trial and Trial Instructions, dated June 25, 2013.

Plaintiffs Notice of Service of Uniform Order Setting Cause for Non-Jury Trial and Trial Instructions, served October 3, 2013 (App. 63). Defendants, Angelo Frau and Yamileth Fraus Motion to Strike Trial Order and in the Alternative Motion to Vacate Trial Order, served October 4, 2013 (App. 77). 2
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scheduled for trial, the trial court granted the Fraus motion and set a status conference to take place within two weeks. The court, however, also ordered the Fraus to file an answer in five days, stating [the] Court finds Defendants Motion to Quash Service abandoned. 7 From this non-final order determining jurisdiction without a hearing, the Fraus bring this appeal. 8

Order on Defendants, Angelo Frau and Yamileth Fraus Motion to Strike Trial Order and in the Alternative Motion to Vacate Trial Order, dated October 18, 2013 (App. 120). A nearly identical appeal involving the purported abandonment of a motion to quash is pending before this court. Barnsdale Holdings, LLC v. Deutsche Bank National Trust Company, Case No. 3D14-656. 3

SUMMARY OF THE ARGUMENT The trial court erred when it refused to address the merits of the Fraus motion to quash, and instead, deemed it abandoned merely because neither party had set the motion for hearing. Because the Fraus challenged the courts

jurisdiction at the first opportunity, that challenge could not be waived through the Fraus actions in defending the case (short of asking for affirmative relief) or their inaction. The trial courts abandonment concept was apparently derived from an Eleventh Circuit Administrative Order which advances this new method for disposing of pre-answer motions in foreclosure cases so that they may be set for trial. When coupled with forcible emails from the author of the Administrative Order, use of the abandonment shortcut was effectively mandated for the Eleventh Circuit judges. The Administrative Order, however, exceeds the authority of the Administrative Judge because it contradicts specific Rules of Civil Procedure, as well as their overall procedural scheme. Moreover, it unnecessarily impinges upon the due process rights of the litigants, and unfairly prejudices Florida homeowners. Accordingly the order denying the Fraus motion to quash should be reversed and the case sent back for further proceedings.

STANDARD OF REVIEW The determination of whether the trial court properly ruled on a motion to quash service of process for lack of personal jurisdiction is a question of law that the court reviews de novo. Mecca Multimedia, Inc. v. Kurzbard, 954 So. 2d 1179, 1181 (Fla. 3d DCA 2007), citing Alvarado v. Cisneros, 919 So. 2d 585, 587 (Fla. 3d DCA 2006); Labbee v. Harrington, 913 So. 2d 679, 681 (Fla. 3d DCA 2005). To the extent that this appeal involves a challenge to an administrative order, it partakes of a writ of certiorarithe normal remedy for such challenges. 1-888Traffic Sch. v. Chief Circuit Judge, Fourth Judicial Circuit, 734 So. 2d 413, 415 (Fla. 1999). If this Court should decide to treat this appeal as a writ of certiorari in order to directly address the administrative order, the standard of review is whether that order departed from the essential requirements of the law. Broward County v. G.B.V. Intern., Ltd., 787 So. 2d 838, 844 (Fla. 2001).

ARGUMENT The Trial Court Erred in Denying the Fraus Motion to Quash. A. Failure of the process server to note the statutorily mandated information on the documents delivered required dismissal for insufficiency of service of process. Service of process is the cornerstone of a trial courts jurisdiction over defendants in a court action. McKelvey v. McKelvey, 323 So. 2d 651, 653 (Fla. 3d DCA 1976). Strict compliance with service of process procedures is required. Electro Engg Products Co., Inc. v. Lewis, 352 So. 2d 862, 865 (Fla. 1977); see also Bennett v. Christiana Bank & Trust Co., 50 So. 3d 43, 45 (Fla. 3d DCA 2010) (reversing denial of motion to quash). Where the process server has not complied with the statutory requirements of servicesuch as those contained in 48.031(5), Fla. Stat. 9 (and echoed in Fla. R. Civ. P. 1.070(e)10)service is defective and must be quashed. Vidal v. SunTrust Bank, 41 So. 3d 401, 402 (Fla. 4th DCA 2010) (reversing an order denying a

A person serving process shall place, on the first page of at least one of the processes served, the date and time of service and his or her identification number and initials for all service of process. 48.031(5), Fla. Stat.
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Copies of Initial Pleading for Persons Served. At the time of personal service of process a copy of the initial pleading shall be delivered to the party upon whom service is made. The date and hour of service shall be endorsed on the original process and all copies of it by the person making the service. Fla. R. Civ. P. 1.070(e). 6

motion to quash where the process server failed to note the time of service on the copy of the summons served); Kwong v. Countrywide Home Loans Servicing, L.P., 54 So. 3d 1033 (Fla. 4th DCA 2011) (reversing an order denying a motion to quash where the process servicer failed to note, among other things, the time of service on the process served); Walker v. Fifth Third Mortg. Co., 100 So. 3d 267 (Fla. 5th DCA 2012) (service of process was required to be quashed due to process server's failure to include time and date of service or his identification number on served documents). In Brown v. U.S. Bank Nat. Assn, 117 So. 3d 823 (Fla. 4th DCA 2013), the process server provided the wrong date on the defendants summons. The trial court denied a motion to quash service of process and the appellate court reversed after a confession of error by the plaintiff bank. Citing to 48.031(5) Fla. Stat., as well as Fla. R. Civ. P. 1.070(e) (requiring that the date and hour of service shall be endorsed on the original process and all copies of it by the person making the service), the court reiterated that [w]hen a process server fails to strictly comply with these rules, service must be quashed. Id. at 824. Here, the copies of the summonses produced by the Fraus demonstrated that the required information was missing. Nothing in the record suggests that the

Bank contested this key fact. Thus, had the trial court considered the merits of the Fraus motion, it would have had no choice but to quash service of process. B. A jurisdictional objection cannot be waived through inaction. The trial court did not, however, reach the merits of the Fraus motion to quash. Instead, it effectively struck the motion believing that the Fraus were required to obtain a ruling on their motion before some indeterminate deadline had passed. In essence, the trial court ruled that, after the passage of some time, its jurisdictional powers could indiscriminately extend over those who have contested itwhether they have ever been served or not. Of course, jurisdictional objections, once made, can only be waived by seeking affirmative relief. See Brown v. U.S. Bank Nat. Assn, 117 So. 3d at 824 (making discovery requests and moving for sanctions were not requests for affirmative relief that would waive service); Am. Exp. Ins. Services Europe Ltd. v. Duvall, 972 So. 2d 1035, 1040 (Fla. 3d DCA 2008) (attendance at deposition did not waive challenge to personal jurisdiction); Alvarado v. Cisneros, 919 So. 2d 585, 588 (Fla. 3d DCA 2006) ([I]f a defending party timely raises an objection to personal jurisdiction or service of process, then that defendant may plea to the merits and actively defend the lawsuit without waiving the objection.), quoting, Berne v. Beznos, 819 So.2d 235, 238 (Fla. 3d DCA 2002).

If actively participating in the litigation does not waive a jurisdictional objection, then certainly inactioni.e. choosing to rely on an absence of jurisdictioncannot do so. Indeed, the Fraus could have chosen the ultimate inactionfiling no motion at allbecause it is well-settled that [a] judgment entered without valid service is void for lack of personal jurisdiction and may be collaterally attacked at any time. Alvarado v. Cisneros, 919 So. 2d at 587 (internal quotation omitted). Instead, the Fraus chose to put the Bank on notice of the service problem early in the litigation. This provided the Bank the opportunity to remedy the problem and avoid the complications of vacating a default judgment (particularly difficult if the collateral were sold to a third party). But by sua sponte converting the motion to quash into a general appearance, the court has, ironically, penalized the Fraus for choosing to react more promptly than required.

C. Deeming motions abandoned contradicts existing Rules of Procedure. The trial courts use of the word abandoned suggests that its ruling relied on Administrative Orders issued by the Eleventh Circuit Civil Division Administrative Judge, Jennifer Bailey, regarding foreclosure cases.11 The current Order provides: c. Motions The Eleventh Circuit Civil Division continues to hold separate foreclosure motion calendars. For each judges procedure, please consult the circuit website at: http://www.judll.flcourts.org All Motions must be promptly set for hearing upon filing. Failure to set motions for hearing may result in these motions being deemed abandoned or denied without hearing by the Presiding Judge. 12 * * * 4. Motion Calendar. Any motion filed should generally be set for a hearing date within 30 days of filing. a. Motions which are filed and which have not been set for hearing within 30 days may be deemed abandoned or withdrawn and, thus, denied without hearing. 13

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Administrative Memorandum No. 13-C, dated August 2, 2013, 2013-2014, Case Management Plan for Foreclosure Cases and Use of Case Managers Funded in 2013 Trial Court Budget (Administrative Order, App. 270). This order was preceded by Administrative Memorandum Civ 12-E 24 CA 01, In re: Residential Mortgage Foreclosure Cases, dated September 10, 2012 (App. 262). Administrative Order, p. 5 (emphasis added). Administrative Order, p. 17. 10

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The stated intent of the Administrative Order is to help reduce the backlog of foreclosure cases by making the courts case management more proactive. And while its language is broad enough to cover any motion filed by any party, its intent14and its application in practiceis to dispose of motions directed to the pleadings (usually defense motions) so that the cases could be set for trial. This plan to deem motions abandoned significantly exceeds the authority of the administrative judge, unnecessarily impinges upon the due process rights of the litigants, and unfairly prejudices Florida homeowners. 1. The Administrative Order exceeds the authority of the administrative judge.

The Rules of Judicial Administration provide a chief judge (who may delegate his or her authority to another judge) with the power to issue administrative orders for the purpose of managing the affairs of the court. Fla. R.
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Judge Baileys Interim ReportForeclosure Backlog Reduction Initiative, p. 4 states that she implemented the order which allows division judges to deem a motion to dismiss abandoned as the solution for the problem of cases being continued because they are not at issue (App. 293). See also, the recent copycat Administrative Order from the 15th Circuit which adopts the abandonment concept specifically for Motions to Dismiss, Motions for Extension of Time which seek additional time to respond to a complaint, counterclaim, cross-claim or third party claim, Motions to Quash, and other motions which prevent a matter from being at issue Administrative Order: 3.314-3/14, In re: Timely Resolutions of Motions in Foreclosure Division AW, dated March 13, 2014 (App. 288). 11

Jud. Admin. 2.215(b)(2). But such orders cannot be inconsistent with court rules already approved by the Florida Supreme Court. Fla. R. Jud. Admin. 2.120(c). Administrative orders that attempt to amend the rules, or undercut the overall scheme or design of the rules are invalid because they exceed the authority granted under the Florida Rules of Judicial Administration. Payret v. Adams, 471 So.2d 218, 220 (Fla. 4th DCA 1985) ([C]ourts of this state are not empowered to develop local rules which contravene those promulgated by the Supreme Court. Nor may courts devise practices which skirt the requirements of duly promulgated rules.) (quoting Berkheimer v. Berkheimer, 466 So.2d 1219, 1221 (Fla. 4th DCA 1985)); Obando v. Bradshaw, 920 So. 2d 198, 200 (Fla. 4th DCA 2006) (same); see also Melkonian v. Goldman, 647 So. 2d 1008, 1009 (Fla. 3d DCA 1994) (administrative judges memorandum order may not be inconsistent with local rules approved by the Florida Supreme Court); United Services Auto. Ass'n v. Goodman, 826 So. 2d 914, 915 (Fla. 2002) (order prohibiting defense counsel employed as full-time insurance company staff from using individual firm names in pleadings improperly encroached upon the Supreme Courts jurisdiction to adopt rules for the courts). Invalid administrative orders include those that create time limits for a party to exercise a right where the rules of civil procedure have no such limits. In 12

Bathurst v. Turner, 533 So. 2d 939, 941 (Fla. 3d DCA 1988), this Court granted a writ of mandamus which challenged an order which created a five-day time limit for objecting to a referral to a magistrate. Because the rule of civil procedure required a partys consentan affirmative, voluntary actionmere

acquiescence through inaction during the five-day period was insufficient. While the opinion in this case addressed a trial courts order, this Court noted that the result would be the same if an existing administrative order were interpreted the same way. Id. at 941, n. 4. Here, the Administrative Order creates a time limit for obtaining a ruling on motions that are timely under the rules, by instructing judges that the motions can be deemed abandoned or waived. This newly minted waiver through inaction undercuts the Rules of Civil Procedure in several ways. Impermissible creation of a new waiver rule. First, the Rules themselves provide what constitutes a waiver of matters that can be raised in preliminary, pre-answer motions, such as that filed in this case. Rules 1.140(b) and (h) of the Florida Rules of Civil Procedure specify that a party waives defenses and objections (such as insufficiency of service) if they are not raised in the answer or a pre-answer motion. The Rules provide time limits for

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raising these defensestwenty days from service for the typical defendant, or ten days from the denial of a pre-answer motion. Fla. R. Civ. P. 1.140(a). The rules also provide a method for waiving the right to file motions directed to the pleadings by way of an affirmative, voluntary action (reminiscent of the consent rule discussed in Bathurst)the filing of a notice for trial. Fla. R. Civ. P. 1.440(a). The Administrative Order now adds another method of waiver never approved by the Florida Supreme Court and establishes a new time limit (for obtaining a hearing on preliminary motions) not found in the Rules. However, the Florida Supreme Courts express declaration describing the manner in which defenses may be waived through inaction implies the exclusion of other methods. See Subirats v. Fid. Nat. Prop., 106 So. 3d 997, 999 (Fla. 3d DCA 2013) (applying the expressio unius est exclusio alterius rule of construction to conclude that the Florida Department of Financial Services exceeded its rulemaking authority when it created a five-day waiver rule). Accordingly, a chief judge (or appointed

administrative judge) has no authority to invent new rules which can operate to waive a partys rights.

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Impermissible shifting of burden to prosecute. Second, an underlying theme in the design of the Rules of Civil Procedure is that the plaintiff bears the burden of prosecuting the case. Rule 1.420(e) provides that an action may be dismissed after a period of inactivity of one year. A

defendant, therefore, is entitled to a dismissal if a plaintiff does not set a pending pre-answer motion for hearing for a year (provided the parties or the court take no other action in the interim). Patton v. Kera Tech., Inc., 895 So. 2d 1175, 1178 (Fla. 5th DCA 2005) approved, 946 So. 2d 983 (Fla. 2006) (The plaintiff bears responsibility to expedite litigation and Plaintiffs failure to take steps within Plaintiffs control to resolve the case or to ensure prompt dispatch of court orders warrants dismissal.); see Dashew v. Marks, 352 So.2d 554 (Fla. 3d DCA 1977) (courts failure to enter a written order on an oral decision did not relieve plaintiff of the duty to proceed and did not affect the defendants right to dismiss the case for lack of prosecution); Sewell Masonry Co. v. DCC Const. Inc., 862 So.2d 893 (Fla. 5th DCA 2003) (it is not the duty of the trial judge to schedule hearings on motions for parties who do not themselves seek rulings on their pleadings). The Administrative Order, however, impermissibly shifts the burden to the defendant to prosecute the plaintiffs action against him or her. Because the candidly stated purpose of the new abandonment rule is to force cases to be at

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issue so they may be immediately tried, it eviscerates the existing lack of prosecution rule, ensuring that no foreclosure plaintiff can suffer dismissal for failure to prosecute. Given the Administrative Judges stated purpose of clearing its dockets of a backlog of stagnant foreclosure cases, stripping away the potential to dismiss cases for lack of prosecution is seemingly self-defeating. 15 This is not to say that attorneys do not have a professional responsibility to make reasonable efforts to expedite litigation consistent with the interests of the client. R. Regulating Fla. Bar 4-3.2. But the Comment to the Rule, and the cases applying it, make clear that it applies when an attorney neglects the client, routinely delays proceedings for personal reasons, or files frivolous motions that do not have some substantial purpose other than delay. Comment to R. Regulating Fla. Bar 4-3.2. It would not apply to require an attorney to expedite litigation inconsistent with the interests of the client, such as helping an opponent prosecute its case against the client or taking unnecessary action that extinguishes the opportunity for the case to be dismissed for lack of prosecution. The

Administrative Order, therefore, cannot be supported by reference to the Rules of Professional Conduct. Notably, the only record activity in this case for seven months was the trial courts own order setting triala sua sponte (and invalid) order that reset the clock for the plaintiff. 16
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Impermissible deviation from the requirement that pre-answer motions be determined by hearing. Third, the Rules of Civil Procedure already specify the manner in which preliminary motions must be determined. Rule 1.140(d) Fla. R. Civ. P.

unequivocally states that pre-answer motions shall be heard and determined before trial on application of any party unless the court orders that the hearing and determination shall be deferred until the trial. (emphasis added). The directive that the courts shall hear and determine such motions leaves no room for a new rule that allows the court to dispose of them without a hearing by deeming them abandoned. See S. R. v. State, 346 So. 2d 1018, 1019 (Fla. 1977) (in statutory interpretation, shall, is normally meant to be mandatory). Impermissible deviation from the established method by which the courts manage their cases. Fourth, while the plaintiff bears the burden of prosecuting its case, the trial court has the concomitant responsibility to prevent cases from languishing on its docket. As Justice Harding, in a special concurring opinion in Fuster-Escalona v. Wisotsky, 781 So. 2d 1063, 1066 (Fla. 2000), explained:

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Trial judges have a duty to periodically review their dockets and bring up matters which the attorneys have not set for hearing. [I]t is the judges, not the attorneys, responsibility to ensure that cases move through the system appropriately. To that end, the Rules of Civil Procedure already provide a mechanism for the courts to manage their casesa method that does not involve deeming that litigants have abandoned their motions. Rule 1.200(a) Fla. R. Civ. P. provides that the court may order a status conference so that it may determinematters that may aid in the disposition of the action. The court, therefore, may call a status conference and, with notice to the parties (and coordination with their schedules), rule upon any pending motions directed to the pleadings. See also, Fla. R. Civ. P. 1.090(d) (Notice of hearing for motions which may not be heard ex parte must be served a reasonable time before the time specified for the hearing.). The Administrative Order, however, creates a new shortcut to the established rules, inviting judges to dispose of pre-answer motions without spending the time to read them, hear argument on them, rule upon them, and enter orders on them. Such automated resolution of disputed issues, where the rules contemplate case-by-case decision-making by judges, is itself a basis for declaring an administrative order null and void. Tallahassee Democrat, Inc. v. Willis, 370 So. 2d 867 (Fla. 1st DCA 1979) (Blanket administrative order requiring all

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deposition transcripts in all cases to be sealed quashed as in conflict with the Rules of Civil Procedure which contemplate case-by-case consideration.) Impermissible attempt to shield rulings from appellate review. Fifth, the Rules of Civil Procedure and the Rules of Appellate Procedure, as well as the Florida Constitution were specifically and carefully designed to provide litigants with a fundamental right of due processappellate review. Art. I, 9, 21, Fla. Const. ; Art. V, 4, Fla. Const. The entire edifice of the judicial system presumes that the trial courts will determine motions on their merits and erroneous decisions can be rectified by the appellate court. See Combs v. State, 420 So. 2d 316, 317 (Fla. 5th DCA 1982) approved, 436 So. 2d 93 (Fla. 1983) (equating rulings that effectively deny appellate review with violations of due process rights). The Administrative Order, however, constructs a method by which the trial court can dispose of motions without deciding them upon their merits. Deeming them abandoned when there was no such intent, falsely clothes these decisions with the appearance of a waiver, which could prevent appellate review. See e.g. Melara v. Cicione, 712 So. 2d 429, 430 (Fla. 3d DCA 1998) (issue not preserved for appellate review where there was a clear waiver or abandonment).

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Given that the trial courts could use case management conferences to call up and rule on the merits of the motions (or even request that the parties brief the issues so that the judges could rule upon them from the bench), the Administrative Orders suggestion that that the judges instead deny them as abandoned suggests a predisposition against any such motions. This implication of pre-determination, even though unintended, runs afoul of the judiciarys obligation to avoid even the appearance of impropriety. That these pre-determined rulings should also be

immune from appellate review presents an even greater danger of eroding the publics confidence in the integrity of the judiciary. See, Commentary to Canon 2A of the Code of Judicial Conduct. 2. The Administrative Order usurps the discretionary decisionmaking power of the circuit judges.

Administrative Orders that attempt to limit judicial discretion exceed the authority granted under the Florida Rules of Judicial Administration. Valdez v. Chief Judge of Eleventh Judicial Circuit of Florida, 640 So. 2d 1164, 1165 (Fla. 3d DCA 1994) (A judge cannot direct a colleague of that court or of an inferior court how to rule upon a matter except through an established writ or appellate process.); Hewlett v. State, 661 So. 2d 112, 115 (Fla. 4th DCA 1995) (administrative order unlawfully extinguished judicial discretion by creating an

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automatic expulsion from a drug pretrial intervention program); Blackiston v. State, 772 So. 2d 554, 555 (Fla. 5th DCA 2000) (the administrative order improperly limits the discretionary authority vested in the trial judges to utilize the program when they deem it appropriate). Here, the Administrative Order is designed to dissuade judges from using their own discretion when ruling upon pre-answer motions. While the directive to deem motions abandoned is not stated in mandatory terms such as will or shall,16 there is evidence that considerable pressure was brought to bear to cajole the Eleventh Circuit judges to abdicate their own discretion in ruling upon the motions. For example, Jennifer Baileythe author of the Administrative Order emailed the Circuit Civil Division judges proposing that they take advantage of the new administrative order that advises that we may treat any motion to dismiss which has never been set for hearing as abandoned. She also stated that she would be preparing proposed orders on motions to dismiss for the judges to review

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Sometimes, however, the term may can be interpreted to be mandatory, particularly where the action permitted is intended for the public benefit. See Comcoa, Inc. v. Coe, 587 So. 2d 474 (Fla. 3d DCA 1991). 21

and execute in an effort to save [the judges] the effort of having to look at these messes. 17 The pressure to conform to the Administrative Order is also evident with respect to its other provisions. For example, in a July 20th, 2012 email from Judge Bailey to the Circuit Civil Division judges, she urged judges not to grant continuances in foreclosure cases, stating please DO NOT CONTINUE CASES THAT YOU DID NOT SET (emphasis original) and [p]lease oh please do not continue these cases. 18 She couples this entreaty with a warning that [t]his is the standard by which the bench will be judged by the governor and the legislature.19 Judge Cynamon responds to this email stating that she has already denied motions for continuance because of a conversation she had with Judge Bailey. 20 Additionally, in an email entitled DANGER! DANGER!, Judge Bailey tells the judges to send all requests for continuance to hereven if the parties are

17

Email from Jennifer Bailey to the Circuit Civil Division judges, dated October 17, 2012 (App. 298). The emails and Interim Report are the subject of a simultaneously filed Motion for Approval to Include Public Records in Appendix.

Email from Jennifer Bailey to the Circuit Civil Division judges, dated July 20, 2012 (App. 299-300).
19 20

18

Id. Id. 22

agreed: If it is an agreed order, dont sign it if it continues the trial. 21 It instructs judicial assistants, bailiffs and clerks to divert any agreed orders on continuance and send them to her foreclosure team. Accordingly, it is reasonable to conclude that the judges considered the directive of the Administrative Order to deem motions abandoned as mandatory and entered such orders, as in this case, without addressing the merits or consulting their own judicial discretion. 3. In practice, the Administrative Order is more prejudicial to homeowner-defendants than bank-plaintiffs.

Judge Bailey has acknowledged that she implemented the rule which allows division judges to deem a motion to dismiss abandoned as a solution to the court being routinely confronted with cases in which the Plaintiffs have failed to get the case at issue. 22 She recognized that both parties to a foreclosure action often seek to avoid trial and emphasized that [t]his avoidance includes Plaintiffs.23 She stated that plaintiff banks even use bogus motions to amend to allege the

21

Email from Jennifer Bailey to the Circuit Civil Division, dated October 12, 2012 (App. 301). Interim ReportForeclosure Backlog Reduction Initiative, p. 4 (App. 293). Interim Report, p. 4. 23

22 23

case is not at issue. 24 She has expressed the belief that this entire [foreclosure] legal industry seems to be built around the concept of an end run. 25 Despite this dissatisfaction with both partiesand in particular, banks lawyersthe remedy she devised is asymmetrically prejudicial to homeowners. First, it elevates a plaintiff-oriented goal of obtaining a judgment of foreclosure over the defense-oriented goal of dismissal for lack of prosecutiona remedy to which homeowners are entitled under the rules. Indeed, it places an additional economic burden on homeowners (the party who can least afford it) to coordinate, notice and attend hearings that may never have been necessary. And by

eliminating hearings at which the banks must address the merits of their opponents motions, the Administrative Order actually encourages the banks not to set hearingswhich promotes, rather than deters, delay. Second, because the abandonment shortcut is only applied to motions directed at the pleadings, the vast majority of which are defense motions, homeowners take the brunt of these automated denials. Notably, homeowners

Interim Report, p. 5; see also, email from Jennifer Bailey to the Circuit Civil Division judges October 22, 2012, calling plaintiffs motions to amend the latest trick and delay tactics. Email from Jennifer Bailey to the Circuit Civil Division judges, October 22, 2012 (App. 302). 24
25

24

actively litigating their cases are often stymied by objections to discovery and motions to extend the time for responding to discovery, which the banks generally do not set for hearing, but which are not deemed abandoned. Thus, the cases are rushed to trial, but pending discovery is not, leaving homeowners unarmed to adequately defend themselves. Third, it could be said with equal (or perhaps greater) logic that, because the plaintiff is tasked by the rules to prosecute his or her case, failure to set a hearing on a motion to dismiss indicates acquiescence to the motion. Thus, the Order could have declared that the judges should deem the complaint abandoned or the motion to dismiss granteda resolution that would also help reduce the backlog. That the Administrative Order chooses sides in the litigation, assisting one party to the detriment of the other, casts a shadow of impropriety over the Order.

25

CONCLUSION Accordingly, the order appealed should be reversed and the case remanded for further proceedings. Dated: April 10, 2014

ICE APPELLATE Counsel for Appellants 1015 N. State Road 7, Suite C Royal Palm Beach, FL 33411 Telephone: (561) 729-0530 Designated Email for Service: service@icelegal.com service1@icelegal.com service2@icelegal.com

By: ___________________ THOMAS ERSKINE ICE Florida Bar No. 0521655

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CERTIFICATE OF COMPLIANCE WITH FONT STANDARD Undersigned counsel hereby certifies that the foregoing Brief complies with Fla. R. App. P. 9.210 and has been typed in Times New Roman, 14 Point.

ICE APPELLATE Counsel for Appellants 1015 N. State Road 7, Suite C Royal Palm Beach, FL 33411 Telephone: (561) 729-0530 Designated Email for Service: service@icelegal.com service1@icelegal.com service2@icelegal.com

By: ___________________ THOMAS ERSKINE ICE Florida Bar No. 0521655

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CERTIFICATE OF SERVICE AND FILING I HEREBY CERTIFY that a true and correct copy of the foregoing was served this April 10, 2014 to all parties on the attached service list. Service was by email to all parties not exempt from Rule 2.516 Fla. R. Jud. Admin. at the indicated email address on the service list, and by U.S. Mail to any other parties. I also certify that this brief has been electronically filed this April 10, 2014. ICE APPELLATE Counsel for Appellants 1015 N. State Road 7, Suite C Royal Palm Beach, FL 33411 Telephone: (561) 729-0530 Designated Email for Service: service@icelegal.com service1@icelegal.com service2@icelegal.com

By: ___________________ THOMAS ERSKINE ICE Florida Bar No. 0521655

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SERVICE LIST Vincent McManus, Esq. ALBERTELLI LAW P.O. Box 23028 Tampa, FL 33623 servealaw@albertellilaw.com Counsel for Appellee JPMorgan Chase Bank National Association Elliot B. Kula, Esq. Daniel M. Samson, Esq. W. Aaron Daniel, Esq. Kula & Samson, LLP 11900 Biscayne Boulevard, Suite 310 Miami, Florida 33181 elliot@kulaandsamson.com; dan@kulaandsamson.com; w.aaron@kulaandsamson.com Counsel for Appellee JPMorgan Chase Bank National Association

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