IN THE SUPREME COURT OF FLORIDA. Case No.: SC DCA Case No.: 4D RESPONDENT'S BRIEF ON JURISDICTION

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1 IN THE SUPREME COURT OF FLORIDA JACQUELINE HARVEY, Petitioner, vs. DEUTSCHE BANK NATIONAL TRUST, etc., et al., Case No.: SC DCA Case No.: 4D Respondent. / RESPONDENT'S BRIEF ON JURISDICTION On Review From A Decision Of The Fourth District Court of Appeal KATHERINE E. GIDDINGS (949396) NANCY M. WALLACE (65897) KRISTEN M. FIORE (25766) Akerman Senterfitt 106 East College Avenue, Suite 1200 Tallahassee, Florida Telephone: (850) Telecopier: (850) katherine.giddings@akerman.com nancy.wallace@akerman.com kristen.fiore@akerman.com WILLIAM P. HELLER (987263) Akerman Senterfitt Las Olas Centre II, Suite East Las Olas Boulevard Fort Lauderdale, Florida Telephone: (954) Telecopier: (954) william.heller@akerman.com Attorneys for Respondent, Deutsche Bank National Trust, etc., et al.

2 TABLE OF CONTENTS Page TABLE OF AUTHORITIES... ii CORRECTION TO PETITIONER'S STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF THE ARGUMENT... 2 ARGUMENT... 3 Standard of Review... 3 THE DECISION ON REVIEW DOES NOT EXPRESSLY CONFLICT WITH ANY DECISION OF THIS COURT OR ANOTHER DISTRICT COURT OF APPEAL... 3 CONCLUSION... 7 CERTIFICATE OF SERVICE... 8 CERTIFICATE OF FONT COMPLIANCE...8 i

3 TABLE OF AUTHORITIES Cases Page Beaty v. State, 701 So. 2d 856 (Fla. 1997)...3 Harvey v. Deutsche Bank Nat'l Trust Co., --- So. 3d ---, 2011 WL (Fla. 4th DCA 2011)... 1, 4, 5 In re Amendments to the Florida Rules of Civil Procedure, 44 So. 3d 555 (Fla. 2010)...6 Little v. State, 206 So. 2d 9 (Fla. 1968)...4 Riggs v. Aurora Loan Services., LLC, 36 So. 3d 932 (Fla. 4th DCA 2010)... passim State v. Walker, 593 So. 2d 1049 (Fla. 1992)...4 Constitution Art. V, 3(b)(3), Fla. Const Rules Rule 9.120, Fla. R. App. P Rule 9.120(d), Fla. R. App. P Rule 9.210(a)(2), Fla. R. App. P Rule 1.110, Fla. R. Civ. P , 6 Other Authorities Harry Lee Anstead, Gerald Kogan, Thomas D. Hall & Robert Craig Waters, The Operation and Jurisdiction of the Supreme Court of Florida, 29 Nova L. Rev. 431, (2005)... 4, 5 ii

4 CORRECTIONS TO PETITIONER'S STATEMENT OF THE CASE AND FACTS Respondent Deutsche Bank National Trust, etc., et al. ("Deutsche Bank") does not dispute the Statement of the Case and Facts in Petitioner Jacqueline Harvey's Brief on Jurisdiction to the extent the statements contained therein are taken from the four corners of the district court's opinion ("the Opinion"). However, Deutsche Bank notes the transcript excerpt from Ms. Harvey's Statement of the Case and Facts regarding the "original note" does not appear within the four corners of the Opinion and is improperly included in her factual statement. [Pet. Br. at 3]. This excerpt not only is outside the four corners of the Opinion, it is entirely irrelevant to the issues in this jurisdictional proceeding. As Ms. Harvey herself acknowledges in her brief, "[d]uring th[e] hearing [in question] the judge stated the original note was in the file." [Pet. Br. at 2-3]; see also Harvey v. Deutsche Bank Nat'l Trust Co., --- So. 3d ---, 2011 WL , *1 (Fla. 4th DCA 2011) (the Opinion) ("[T]he judge found that the original note was now in the court file...."). 1

5 SUMMARY OF THE ARGUMENT The Opinion does not expressly and directly conflict with any decision of this Court or another district court of appeal. First, Ms. Harvey's argument the Fourth District mistakenly assumed the original promissory note was in Deutsche Bank's possession is an improper attempt to argue the merits of this case in a jurisdictional brief. In any event, the Fourth District correctly concluded Deutsche Bank had standing to enforce the note as holder of the original note indorsed in blank absent any evidence to the contrary presented by Ms. Harvey at the summary judgment stage. Second, conflict jurisdiction cannot lie based on Ms. Harvey's contention the Fourth District misapplied its own decision in Riggs v. Aurora Loan Services, LLC, 36 So. 3d 932 (Fla. 4th DCA 2010), because intra-district conflict is not a basis for Supreme Court jurisdiction. Third, the Opinion does not expressly and directly conflict with this Court's decision amending Florida Rule of Civil Procedure to require verification of foreclosure complaints. This case has nothing to do with verification of foreclosure complaints, and the Opinion in no way concludes fraudulent mortgages are irrelevant. This is a straightforward, fact-specific case in which summary judgment in favor of Deutsche Bank was proper because no material disputed facts existed as to its standing to foreclose. 2

6 ARGUMENT Standard of Review. This Court only has discretionary jurisdiction to review a district court's decision under conflict jurisdiction if that decision expressly and directly conflicts with a decision from another district court on the same question of law. Art. V, 3(b)(3), Fla. Const. The basis for conflict must appear within the four corners of the district court's decision. Beaty v. State, 701 So. 2d 856, 857 (Fla. 1997). THE DECISION ON REVIEW DOES NOT EXPRESSLY CONFLICT WITH ANY DECISION OF THIS COURT OR ANOTHER DISTRICT COURT OF APPEAL. Ms. Harvey asserts three bases for conflict: (1) "the Fourth District's assumption the original promissory note was in the possession of Deutsche Bank is misplaced"; (2) "the Fourth District's reliance on Riggs v. Aurora is misplaced"; and (3) "the Fourth District['s] holding that fraudulent assignments of mortgages are irrelevant is inconsistent and conflicts with this Court's previous decisions." [Pet. Br. at 6-8]. None of these claims constitutes express and direct conflict sufficient to invoke the discretionary jurisdiction of this Court. First, Ms. Harvey's claim the district court should not have assumed the original note was in Deutsche Bank's possession is improperly raised in her jurisdictional brief. Ms. Harvey made this argument in the Fourth District, and it was properly rejected by that court. Rearguing the merits of substantive issues in a 3

7 jurisdictional brief is improper and violates the Florida Rules of Appellate Procedure. See Fla. R. App. P (d) ("Petitioner's brief [is] limited solely to the issue of the supreme court's jurisdiction...."). As explained in the committee notes to Rule 9.120, "[t]he jurisdictional brief should be a short, concise statement of the grounds for invoking jurisdiction and the necessary facts. It is not appropriate to argue the merits of the substantive issues involved in the case or discuss any matters not relevant to the threshold jurisdictional issue." In any event, as the Fourth District correctly concluded, Deutsche Bank had standing to enforce the note, as holder of the original note, indorsed in blank. Harvey, 2011 WL at *1-3. The trial court properly entered the foreclosure judgment after reviewing the original note, indorsed in blank, and other affidavits supporting the motion for summary judgment. Id. Contrary to all of Ms. Harvey's arguments, no material disputed facts exist relevant to Deutsche Bank's standing to enforce the note and entitlement to a foreclosure judgment. Ms. Harvey produced nothing in opposition to the motion for summary judgment. Second, conflict jurisdiction cannot lie based on Ms. Harvey's contention the Fourth District misapplied its own decision in Riggs v. Aurora Loan Services, LLC, 36 So. 3d 932 (Fla. 4th DCA 2010). Intra-district conflict is not a basis for Supreme Court jurisdiction. See State v. Walker, 593 So. 2d 1049, (Fla. 1992) (citing Little v. State, 206 So. 2d 9, 10 (Fla. 1968)); see also Harry Lee 4

8 Anstead, Gerald Kogan, Thomas D. Hall & Robert Craig Waters, The Operation and Jurisdiction of the Supreme Court of Florida, 29 Nova L. Rev. 431, (2005) ("The fact that a district court decides to expressly or silently depart from its own case law does not establish conflict, because there is no such thing as 'intradistrict conflict' as a basis for supreme court jurisdiction. The latest inconsistent opinion is deemed to overrule the earlier."). Even if intra-district conflict was a permissible basis for discretionary jurisdiction in this Court, Ms. Harvey's claim the district court misapplied Riggs would fail. In Riggs, the Fourth District concluded "Aurora's possession of the original note, indorsed in blank, was sufficient under Florida's Uniform Commercial Code to establish that it was the lawful holder of the note, entitled to enforce its terms." 36 So. 2d at 933. The Fourth District then relied on Riggs in the Opinion when concluding "because the note at issue is payable to AHMAI, and indorsed in blank, and because Deutsche possessed the original note and filed it with the circuit court, its standing may be established from its status as the note holder, regardless of any recorded assignments." Harvey, 2011 WL at *3. Thus, the district court properly applied Riggs to the facts of this case. 5

9 Third, Ms. Harvey erroneously claims the district court's statement that "fraudulent mortgages are irrelevant" 1 conflicts with this Court's precedent. Ms. Harvey specifically alleges conflict with In re Amendments to the Florida Rules of Civil Procedure, 44 So. 3d 555 (Fla. 2010), in which this Court amended Florida Rule of Civil Procedure to require verification of foreclosure complaints. The Opinion at issue has nothing to do with verification of foreclosure complaints and in no way concluded fraudulent mortgages are irrelevant. The Opinion simply concluded, based on the facts of this case, that the assignment was irrelevant given that standing was established via the plaintiff's holding the original note indorsed in blank in accordance with well-established case law in this state. Finally, Ms. Harvey erroneously argues this Court should exercise its alleged discretionary jurisdiction in this case because "[i]f left to stand, the Opinion will have a tremendous impact on all pending and future foreclosure cases in the State of Florida and will significantly limit valid foreclosure defenses in such cases." [Pet. Br. at 8]. To the contrary, this is a straightforward case in which summary judgment in favor of Deutsche Bank was proper because no material disputed facts existed as to its standing to foreclose. The district court applied well-established law to the facts of this case. 1 Ms. Harvey apparently claims the district court somehow deemed fraudulent mortgages irrelevant by holding standing may be established by possession of the note regardless of any recorded assignments. 6

10 CONCLUSION This Court should decline to review the Opinion because Ms. Harvey is merely rearguing the merits of the case and the Opinion does not expressly and directly conflict with any of the alleged conflict cases. This case involves the limited and fact-specific question of whether summary judgment in favor of Deutsche Bank was proper where Deutsche Bank clearly had standing to foreclose. Respectfully submitted, KATHERINE E. GIDDINGS (949396) NANCY M. WALLACE (65897) KRISTEN M. FIORE (25766) Akerman Senterfitt 106 East College Avenue, Suite 1200 Tallahassee, Florida Telephone: (850) Telecopier: (850) WILLIAM P. HELLER (987263) Akerman Senterfitt Las Olas Centre II, Suite East Las Olas Boulevard Fort Lauderdale, Florida Telephone: (954) Telecopier: (954) Attorneys for Deutsche Bank National Trust, etc., et al. 7

11 CERTIFICATE OF SERVICE I CERTIFY that a true and correct copy of the foregoing was mailed this day of October 2011 to Jacqueline Harvey, 2359 SW Brookwood Lane, Palm City, Florida, (pro se Appellant). KRISTEN M. FIORE CERTIFICATE OF FONT COMPLIANCE I CERTIFY the font used in this brief is the Times New Roman 14-point font and the brief complies with the font requirements of Rule 9.210(a)(2). KRISTEN M. FIORE 8