Florida Second District Court of Appeals Reply to Respondents Response

8/7/2019 Florida Second District Court of Appeals Reply to Respondents Response

1/13

IN THE SECOND DISTRICT COURT OF APEALS

IN AND FOR THE STATE OF FLORIDA

Larry R. BradshawPetitioner

vs. CASE NO._2D10-5604

WASHINGTON MUTUAL BANK F/K/A

WASHINGTON MUTUAL BANK, FA

SUCCESSOR BY MERGER TO BANKUNITED,

FSB F/K/A BANK UNITED OF TEXAS, FS,

US BANK NATIONAL ASSOCIATION

AS TRUSTEE FOR GSMPS 2004-4Respondent

_________________________________/______________________________________

PETITIONERS

REPLY

On November 29, 2010 Petitioner filed a Petition for Writ of Mandamus

where petitioner having exhausted his remedies at the trial court, and having no

other remedy available, asked this Court to intervene by issuing the Writ ordering

Judge McHugh and Judge Fuller to perform their ministerial duty as requested in

the brief. The Petition for Writ explained in detail and was supported by

documented evidence, of the misfeasance and malfeasance and the oblivious

collusion between certain judges, and attorneys including the Clerk of Courts.

Notwithstanding the fraud and conspiracy to fraud, the plaintiff in both cases at

issue have failed to prosecute, wherein not one document filed after filing of the

original complaint was signed or filed by an attorney of record as required by the

rules and decisional law in that regard.

1


2/13

Mandamus response was ordered on December 28, 2010 allowing twenty

(20) days for response. On December 31, 2010 attorney Erin Berger Bar # 014977

filed a notice of appearance regarding all post-judgment proceedings in the instant

case (2D10-5604). Petitioner herein challenges whether, attorney Erin Berger has

made a proper appearance to file Respondents Response to Petition for Writ of

Mandamus, being a Petition for Writ is an original action, and no final judgment

has been rendered to this date. (Rule 9.100, 9.030(b)(3))

On or about January 19, 2011, petitioner received service of; Respondents

Response to Petition for Writ of Mandamus dated January 14, 2011.

On January 24, 2011, petitioner checked the online docket and discovered,

Respondents Response to Writ of Mandamus had not been docketed within the 20

day limitation which expired, January 17, 2011. Petitioner called the 2nd DCA

Clerk in regard to the absence of Respondents Response to Petition for Writ of

Mandamus, and was told that the Clerks Office had not received Respondents

Response. Petitioner having a question regarding the relevance of the lower case

number (2009-CA-001575), listed on Respondents Response to Petition for Writ

of Mandamus, was directed to contact the lower court.

At 12:43 on January 24, 2011 petitioner called the Clerk of Courts of The

Circuit Court of the Twentieth Judicial Circuit in and for Lee County, Florida, and

spoke to Valerie. Petitioner was advised that case No. 09-CA-001575 was, Dana

2


3/13

Smith v. SB Restaurant Co. of Central Florida LLC, which had nothing to do with

either case at issue here. Valerie also stated that Respondents Response to Petition

for Writ of Mandamus had not been filed in case No. 07-CA-011562, the only one,

of the two cases; (07-CA-011562 & 08-CA055974) affected by the Writ, that

contained a copy of the Order of this Court issued December 28, 2010.

At 1:55 pm on January 24, 2011, petitioner contacted the 2nd DCA Clerk

rega rding the absents of service of the Writ Response. Due to the apparent

inability of counsel for the opposing parties, and the unusual participation and

actions of certain judges, in both 07-CA-011562 and 08-CA-055974, and attorney

Erin Berger, in this case, to follow the Rule and Orders of the Circuit and this

Court, petitioner was concerned of possible bad faith, because of the service of

Respondents Response to Petition for Writ of Mandamus on Petitioner, on

January 19, 2010, that had not been docketed in either of the three cases at issue, as

of the 24th of January. Jennifer (Clerk 2nd DCA) suggested that a reply containing

a copy of Respondents Response would be appropriate to document the facts. She

said she would contact attorney Erin Berger to inform her of the discrepancy,

regarding the lack of filing of the Response.

On January 25, 2011, during a conversation with Jennifer, she confirmed

that she had contacted Erin Berger, regarding the lack of filing, of Respondents

Response to Petition for Writ of Mandamus. Which was received by the Clerks

3


4/13

Office on January 25, 2011 and placed on the Docket as a result of that contact.

Rule 3.1 prohibits facsimile and e-mail transmission without the consent of a judge

or clerk of the court, and where it is permitted a hard copy filing must follow.

STATEMENT

It is Petitioners position that Respondents Response to Petition for Writ of

Mandamus was untimely and therefore must be disregarded, except, that the

Response has revealed new evidence that should be noted by this Court:

1. Reply Exhibit 1, Notice of Appearance of Co-counsel in case number

08-CA-055974, named the law firm of Kass, Shuler, Solomon, Spector,

Foyle & Singer P.A. as the the entity making the appearance, and was

signed by Erin M. Berger.

2. Reply Exhibit 2, the purported minutes of the Richards hearing dated

2/22/10, retrieved January 4, 2011, by petitioner from the docket, shows

the Motion to compel was granted, and Plaintiffs attorney Greg Goetz,

not of record in either case (07-CA-011562 or 08-CA-055974) was to

write the order. The order was never filed. However, Petition Exhibit P-

19 is a copy of the same hearing on the same day by the same judge with

a filing stamp on the top of the page indicating this was the minutes

actually filed and in which petitioner/defendant did obtain a copy from

the docket, during a docket search a few days after the hearing. The

4


5/13

Court will notice the Motion to Compel in Exhibit 19 (minutes) was

denied, and plaintiffs attorney was ordered to prepare the order, which

was never filed. On March 15, 2010, Judge McHugh issued a Corrected

Order on the plaintiffs Motion to Compel previously denied by Judge

Richards, reversing Judge Richards, and granting the Motion to Compel

(Exhibit P-20). This appears to be clear and convincing evidence of a

conspiracy to commit fraud (cover up), a fraudulent act (switching the

minutes of the court where the Motion to Compel was denied: on the

hearing day 2/22/10, by Judge Richards, but later switched to indicate the

Motion was granted. Petitioner believes this was done to clear the way

for a summary judgment in favor of the plaintiff that is appealed, this

Court would see the Motion to Compel Discovery was granted indicating

the defendant had refused to exercise his discovery rights and therefore

waived such right, thus supporting the trial courts granting of a summary

judgment.

3. In Respondents Response to Petition for Writ of Mandamus, alleged

counsel (Erin Berger) referred to Exhibit P-15 (Memorandum of law in

opposition to defendants motion for evidentiary hearing) in case No. 08-

CA-055974 September 23, 2009, in her Statements of Facts (second page

w/no number). That Memorandum was signed by an attorney not of

5


6/13

record, Mitchell B. Rothman Bar No. 870560. The Notice of Hearing

dated January 14, 2010 setting the Hearing on Plaintiffs Motion to

Compel was also signed by Mitchell B. Rothman. Who appears to be

employed today with the law firm of Kass, Schuler, Solomon, Spector,

Foyle & Singer, P.A.,(Reply Exhibit 1).

4. On (not numbered) page 3 of the response, counsel alleged that Florida

Default Law Group and Echevarria, Codilis, and Stawiarski is one and

the same, and offers evidence in Respondents Exhibit 3. Respondent

Exhibit 4 contains a copy of the Lis Penden, Complaint and an unsigned

demand letter dated December 19, 2008, apparently sent by Florida

Default Law Group, who pursuant to the Charter, (Reply Exhibit 3)

(Articles of Organization) @ Article V. & VI The Company was

prohibited by its charter to engage in the business of debt collection,

which by sending such demand letter, would violation the FDCPA, which

would nullify both proceedings, because the provisions of the FDCPA

were not satisfied. Mail fraud 18 U.S.C. 1341 could be at issue here

also.

5. On page 3 of Respondents Response counsel refers to Petition Exhibit P-

14, which is a Judicial Memorandum from Judge Steinbeck admonishing

(# 1) attorney Cindy Runyun for sending plaintiffs Motion to

6


7/13

Voluntarily dismiss case and cancel Lis Pendens to her office without

serving it on petitioner, apparently requesting that Judge Steinbeck grant

the motion without hearing. Judge Steinbeck (Memo # 8) ordered a

copy of the Memorandum promptly served on all parties. Upon receipt

of the Memorandum, defendant/petitioner promptly filed a motion to

strike the sham document on 6/17/2008 (Motion to Voluntarily Dismiss

and Cancel Lis Pendens), the Judicial Memorandum of 6/18/2008

addressed to attorney Cindy Runyun was the result of her improper acts,

wherein Judge Steinbeck coddling the incompetence, saw fit to give

detailed legal advice to Ms. Runyun, regarding the proper procedures for

a voluntary dismissal which defendant had brought to the attention of the

Court in his Motion to Strike the Motion to Voluntarily Dismiss. The

Docket of case No. 07-CA-011562, Exhibit P-11, shows the Notice of

Voluntary Dismissal was filed on June 9, 2008, two days after the

Hearing, where Judge Adams dismissed the case, without cause in

violation of Rule 1.420(1)(A) at defendant hearing set on Motion to

Dismiss with Prejudice or in the alternative Summary Judgment. Based

solely on a statement by stand in counsel, Brian Hummel, that a Notice of

Dismissal had been filed but had not been docketed, nor did he have a

copy for the record. It must be noted that at this time attorney Cindy

7


8/13

Runyun was in violation of Judge Steinbecks order (Exhibit P-8) to

rectify the issue of counsel of record. The Docket does not show and

defendant/petitioner was never served any Notice of Appearance by

Cindy Runyun or any other attorney in that case.

6. On page 5 @ II Argument, counsel argues that petitioner for a Writ must

show that there is no adequate remedy at law, and asserts that petitioner

failed to hit the elements of the Writ, but made no attempt to argue what

other remedies were available, that petitioner failed to exhaust.

a. Respondent argues that Petitioner is not entitled to have the 2007

case reinstated as it was properly dismissed pursuant to Rule

1.420(a) when in fact the hearing where the dismissal occurred was

a summary judgment hearing that had commenced without plaintiff

counsel present. This Court in Service Experts v. Northside A/C,

2D09-5416 (Fla. App. 2 Dist 9-22-2010) addressed the issue of

limited exceptions to plaintiffs absolute right to voluntary

dismissal, (1) if there is fraud on the court, (2) if the defendant can

establish the common law exception to the right, (3) if the plaintiff

dismisses the case at a stage which is deemed the equivalent of a

summary judgment. The common law exception to a voluntary

dismissal was articulated by the Fifth District in Ormond Beach. In

8


9/13

that case, the parties were embroiled in litigation for ten years. 835

So. 2d at 194. Defendant Ormond Beach filed a summary

judgment motion and the matter was set for hearing. Id. Three

days before the scheduled summary judgment hearing, the plaintiff

served a notice of voluntary dismissal without prejudice. Id. The

trial court recognized the voluntary dismissal and found the

pending summary judgment motion moot. However, the Court

recognized that; other courts have interpreted the fraud exception

to apply where the notice of dismissal itself is considered an

attempt to commit fraud on the court. See e.g.Fitzgerald v.

Fitzgerald, 790 So. 2d 1216, 1217 (2d DCA 2001). In that case

(08-CA-011562) no such notice was filed or served prior to the

hearing. In fact, Brian Hummel was sitting in the gallery waiting

for his case to be called. Judge Adams asked if there were any

attorneys present who could represent Florida Default Law Group.

Brian Hummel stood up an announced that he worked for Florida

Default Law Group, to which Judge Adams granted a 15 minute

recess so that attorney Hummel could contact Cindy Runyun

regarding the case. Brian Hummel exited the court room with

defendant and there made a phone call on his cell phone. When

9


10/13

the case was recalled, attorney Hummel told the court that he had

spoken to Cindy Runyun in Tampa that told him she had sent a

Notice of Voluntary Dismissal to the Court, but it had not been

docketed. (Note here: that no such Notice was ever received by

defendant) however, the Notice filed on 7/9/2008 was certified as

being served on the 3rd of July 2008, just 4 days prior to the called

Summary Judgment Hearing on 7/7/08. The question here is; does

the Rule 1.420(a)(1) prohibit a voluntarily dismissal at the actual

hearing or does it as Petitioner/Defendant asserts the Rule

considers the completed motion for summary judgment that is set

for hearing. Because the hearing was set to hear defendants

Motion to Dismiss with prejudice or in the alternative Motion for

Summary Judgment, Judge Adams dismissal was construed by

defendant as granting his motion, wherein he made an oral motion

for costs, in which Judge Adams without authority deferred the

assessment pending the refilling of the case . Petitioner herein

asserts that the name change from Washington Mutual et al, to

U.S. Bank national Association atf GSMPS was done not because

of a wrong plaintiff as stated in Exhibit P-15 @ 7 without

explanation as to how Washington Mutual was the wrong plaintiff,

10


11/13

or any allegations as to how U.S. Bank et al, came to be the right

plaintiff. Petitioner asserts that the name change was simply

another act of fraud to obtain a third bite at the apple. The Record

is simply void of any proof that Washington Mutual or U.S. Bank

had or has either capacity or standing to bring a foreclosure action

against Petitioner/defendant.

7. On page 11 of Respondents Response, at D. respondent alleges petitioner

had an adequate remedy but failed to exercise that remedy. Apparently,

counsel had not read the order of Judge Adams in Exhibit P-1, where

defendant/Petitioner did make such motion but the Court reserved

jurisdiction to rule on such motion until the case was refilled. That is

why the name of the plaintiff was changed to U.S. Bank et al., to subvert

defendants right to costs.

CONCLUSION

While Petitioner is not schooled in law, he has struggled tirelessly trying to

understand what the attorneys and the court was doing, and why they were doing

it. At this juncture the record clearly shows that with exception of Judge Steinbeck,

not one Bar licensed attorney, including the many judges that have participated

in this case (musical judges), have shown any regard for the rules of Court,

11


12/13

decisional law or the administration of justice. It appears the Court is more

concerned with not allowing pro se litigants inside the bar than they do about

lawyer misconduct, fraud on the court, due process and the rule of law.

Respondents has not only failed to timely reply to the Petition for Writ of

Mandamus, which should be fatal to their defense, likewise is her notice of

appearance for post-judgment motions, which should be fatal to her right to

respond as counsel in this original action. Notwithstanding, not one argument made

by counsel has merit.

Not only should the Writ of Mandamus issue, this court should refer this

case to state prosecutors, for an investigation of fraud and conspiracy to fraud

clearly evidenced in the record by certain judges and court staff under their

supervision. As well as a number of Bar complaints should be filed against the

numerous attorney participating in the two cases at issue for gross incompetence,

having not a minimal knowledge of the law to continue practicing in the State of

Florida.

Submitted by

_______________

Larry R. Bradshaw

18291 Useppa Rd.Ft. Myers, Florida 33912

Ph# 239-770-7393

CERTIFICATE OF SERVICE

12


13/13

I, Larry R. Bradshaw, hereby certify that a true and correct copy of the

foregoing has been sent by U.S. Mail or hand delivered by private server to the

following parties on the _______day of January 2010:

Florida Default Law Group P.L at P.O. Box 25018 Tampa, Florida 33622-5018

Counsel for: And of Kass, Schuler, Solomon, Spector, Foyle & Singer, P.A

Alleged Attorneys for Respondent, P.O. Box 800, 1505 N. Florida Ave. Tampa, FL

33601

WASHINGTON MUTUAL BANK F/K/A

WASHINGTON MUTUAL BANK, FA

SUCCESSOR BY MERGER TO BANKUNITED,

FSB F/K/A BANK UNITED OF TEXAS, FS,&

US BANK NATIONAL ASSOCIATION

AS TRUSTEE FOR GSMPS 2004-4,

Judge Joseph Fuller,

Judge Margret Steinbeck,

Judge Elisabeth Adams,

Judge Michael McHugh,

Judge Hugh E. Starnes,

Judge George Richards,

Clerk of Court Charlie Green,

@

The Twentieth Judicial Circuit Court,

Justice Center, 2nd Floor

1700 Monroe Street

Ft. Myers, FL. 33901.

13

Documents

Florida Second District Court of Appeals Reply to Respondents Response