DISTRICT COURT OF APPEALS

FOURTH DISTRICT, STATE OF FLORIDA

Case No. 4D11-240

Mickey Metzgar, Sharon Metzgar )

A/K/A Sharon J. Metzgar: et.al., )
Petitioner, )
)
)
)
) EMERGENCY
Vs. ) PETITION FOR
) WRIT OF PROHIBITION
)
)
)
U.S. Bank National Association, as, )
Trustee for The Structured Asset )
Securities Corporation Mortgage )
Pass-Through Certificate 2006-EQ1, )
Respondent. )
____________________________________)

The petitioner, Sharon Metzgar, pro-se, herein files An Emergency Petition

for Writ of Prohibition, respectfully requesting that this Court prohibit the

Honorable John J. Hoy, Judge of the Fifteenth Judicial Circuit in and for Palm

Beach County, Foreclosure Division, from further participation in the Lower

Tribunal Case No: 50 2007 CA 005340 XXXX MB - Division: AW Foreclosure.

The defendant not only fears she will not receive a fair trial, but also asserts she
HAS ALREADY BEEN treated unfairly in hearings by the judge. In support of her

petition, in good faith, the petitioner would state as follows:

BASIS FOR INVOKING JURISDICTION

This Court has jurisdiction to issue a writ of prohibition under Article V

section 5(b) of the Florida Constitution, and Florida Rules of Appellate

Procedure, Rule 9.030(b)(3) and also Rule 9.100(e). Prohibition is the proper

remedy to test the validity of the denial of a motion for disqualification of a judge.

Rollins v. Baker, 683 So.2d 1138 (Fla. 5th DCA 1996); State v. Shaw, 643 So.2d

1163(Fla. 4th DCA 1994).

STATEMENT OF CASE - FACTS

1. On 04/09/2007 the Plaintiff filed a Foreclosure Complaint seeking to

enforce a Lost Note against the defendants.

2. During the lengthy 3 years and 8 months, the plaintiffs have filed, heard,

and were denied (3) summary judgment hearings by (3) different judges.

3. The plaintiff was also denied an entry for default as to Mickey Metzgar

on January 06, 2009 for lack of proof of service.

4. On September 10, 2010, this court sent notice in the form of an Order

Setting Non-Jury Trial. The calendar call was set for October 22, 2010.

5. This gave the plaintiff 42 days to set any pretrial pleadings, challenge the

defendant’s amended answer, and take care of any unfinished business.

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 6. October 22, 2010, after both the plaintiff and defendant announced ready,

this case was finally set for trial for November 15, 2010 at 10:30 am by The

Honorable Judge Garrison.

7. The defendant’s amended answers and defenses were accepted as

operative. The plaintiff informed the court of their intention to call one witness.

They were given (5) days to inform the defendant of their witness’s identity.

8. On Oct. 28, 2010, 6 days later, the plaintiff hired a co-counsel - Michael

Winston, Bar# 051403. This co-counsel immediately and feverously sought to

unfairly strike the case from the trial docket. The defendant vigorously objected.

9. On November 03, 2010, Judge John J. Hoy of the 15 th Judicial Circuit -

foreclosure division, allowed the new counsel to have the case struck from the trial

docket without cause, stating to the plaintiff’s newly hired co-counsel;

“This case is over 3 years old. It’s a simple

foreclosure case, I want you to wrap this up.”
(See Exhibit “A”)

10. New counsel has since inundated this case with more witnesses,

affidavits, motions to strike, documentation, and revisits of disposed pleadings.

11. New counsel then motioned to revisit a default as to Mickey Metzgar

that was already decided, denied for lack of service, and the case set for trial. At

this recent Dec 02, 2010 hearing, defendant Sharon Metzgar attempted to show the

submitted service affidavit by the new attorney was a forgery.

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 12. Judge Hoy asked the defendant if she had a license to practice law in

Florida and used no license as reason to not allow the defendant to speak at all.

13. Judge John J. Hoy has refused to allow Sharon Metzgar, a named

defendant to this foreclosure case, to speak at this recent default hearing. This

action, not allowing the defendant to speak, forms the basis for her fear of bias.

14. Judge Hoy does not afford equal time to the defendant. On December

2, 2010, Judge Hoy allowed the Plaintiff’s lawyer to speak freely, present an

apparent forged service affidavit. The Judge then silenced the defendant, Sharon

Metzgar, preventing her from exposing the forgery. This in effect, prevents the

unlicensed, pro se defendant, Sharon Metzgar, from access to the court.

15. Out of fear that the Judge was not and will not be fair for silencing her,

the defendant in good faith immediately filed a legally sufficient motion to

recuse the Honorable John J. Hoy that same day. (See Exhibit “B”)

16. On January 03, 2011, Judge Hoy denied the Motion to Recuse declaring

the motion to be “legally insufficient on its face.” (See Exhibit “C”)

17. Because Judge Hoy has allowed the plaintiff’s attorney to speak freely

at a recent default hearing while silencing Ms. Metzgar - a named defendant - the

defendant in good faith fears she will not receive a fair trial.

18. Judge Hoy has since stricken the defendant Sharon Metzgar’s cross

claims of fraud against the plaintiffs without opinion or reason. (See Exhibit “D”)

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 19. Judge Hoy has struck this 3-year 10-month old case from the trial

docket without cause, labeled the case as simple, silenced the defendant at a

default hearing, and struck her cross claims without reason.

ARGUMENT - MEMORANDUM OF LAW

20. A motion to recuse must be granted by the trial court if it is legally

sufficient. For a motion to recuse to be legally sufficient, it must meet technical

requirements that it be in writing, “allege the facts and reasons relied on to show

the grounds for disqualification,” include sworn affidavits by the party and

attorney filing the motion, and be filed by the tenth day following discovery of the

information providing grounds for recusal. Fla. R. Jud. Admin. 2.160; Carrow v.

The Fla. Bar, 848 So. 2d 1283, 1285 (Fla. 2d DCA 2003). One of the grounds on

which a motion to recuse can be based is “that a party fears that he or she will not

receive a fair trial or hearing because of specifically described prejudice or bias of

the judge.” Fla. R. Jud. Admin. 2.160(d)(1)

21. On Dec. 2, 2010, the defendant was silenced by Judge Hoy during a

default hearing. The defendant filed a sworn motion to recuse, that same day,

describing in good faith facts and reasons she feared she would not receive a fair trial.

22. Where a judge’s impartiality might reasonably be questioned,

disqualification is required, regardless of the judge’s actual conduct. Canon 3 E.

The critical consideration is not whether the lawyers would question the judge’s

impartiality, or whether this Court would question the judge’s impartiality, but

instead, whether an ordinary litigant would reasonably question the judge’s

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impartiality. “A determination must be made as to whether the facts alleged would

place a reasonably prudent person in fear of not receiving a fair and impartial

trial.” Livingston v. State, 441 So. 2d 1083, 1087 (Fla. 1983).

23. If a motion to recuse is technically sufficient, and the facts alleged

therein also “would prompt a reasonably prudent person to fear that he could not

get a fair and impartial trial from the judge,” the motion is legally sufficient and

should be granted. Nunez v. Backman, 645 So. 2d 1063, 1064 (Fla. 4th DCA

1994). In such a circumstance, the facts alleged are to be taken as true and their

veracity should not be considered by the judge. State Farm Mut. Auto. Ins. Co.

v. Penland, 668 So. 2d 200, 204 (Fla. 4th DCA 1995).

24. Due process under the federal Constitution also requires that Judge Hoy

be disqualified from deciding this case as well. “A fair trial in a fair tribunal is a

basic requirement of due process.” In re Murchinson, 349 U.S. 133 (1955); see

also Aetna Life Insur. Co. v. Lavoie, 475 U.S. 813, 831 (1986) (impartial

tribunal is “fundamental” component of due process); Weiss v. United States, 510

U.S. 163, 178 (1994) (fair tribunal is “basic requirement” of due process); Bracy

v. Gramley, 520 U.S. 899 (1997) (Fair tribunal is “floor” established by Due

Process Clause) (quoting Withrow v. Larkin, 421 U.S. 35, 46 (1975). Moreover,

a basic component of a fair tribunal is an impartial judge. See Weiss, 510 U.S. at

178. The constitutional requirement of impartiality prohibits not only actual bias,

“event he probability of unfairness.” See Murchison, 349 U.S. at 136. Thus,

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“every procedure which would offer a possible temptation to the average manas a

judge. . . . not to hold the balance nice, clear and true . . . denies . . . due process of

law.” Id. (quoting Tumey v. Ohio, 273 U.S. 510, 532) (1927).

CONCLUSION

For the foregoing reasons, Petitioners respectfully request that this Court

grant the writ of prohibition, disqualify The Honorable John J. Hoy from presiding

over the proceedings below, and direct that a new judge be assigned to this case.

Certificate of Service

I Declare that a true and correct copy of this Petition for Writ of

Prohibition has been sent via US mail to the following person(s).

1. Kim F. Stevens, attorney of record, Bar# 0543136, , 900 South Pine

Island Road Suite 400, Plantation, FL 33324-3920 (954) 233-8000.

2. Michael K. Winston, Esquire, Bar# 051403, 525 Okeechobee Bld,

#1200, West Palm Beach, FL 33401.

3. The Honorable John J. Hoy, Foreclosure Division, Palm Beach County

Courthouse, 205 N. Dixie Hwy West Palm Beach, FL 33401

Done this ____ day of January 2010.

_______________________________

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 Sharon Metzgar
301 Henthorne Drive
Lake Worth, FL 33461
Ph: (561) 281-9543