SUPREME COURT OF FLORIDA CASE NO.: SCU- H0) On Discretionary Review From. The Fourth District Court of Appeal (4D10-674) JACQUELINE HARVEY,

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1 -. SUPREME COURT OF FLORIDA CASE NO.: SCU- H0) On Discretionary Review From The Fourth District Court of Appeal (4D10-674) JACQUELINE HARVEY, Petitioner, VS. DEUTSCHE BANK NATIONAL TRUST COMPANY AS INDENTURE TRUSTEE FOR AMERICAN HOME MORTGAGE INVESTMENT TRUST , MORTGAGE-BACKED NOTES SERIES Respondent. PETITIONER'S BRIEF ON JURISDICTION Respectfully submitted by, Jacqueline Harvey Pro se Petitioner 2359 SW Brookwood Lane Palm City, Florida (561)

2 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ii I. INTRODUCTION 1 II. STATEMENT OF THE CASE AND FACTS 2 III. ARGUMENT 5 A. STANDARD OF REVIEW 5 B. THIS COURT SHOULD REVIEW THE OPINION, WHICH CONFLICTS WITH MANY DECISIONS FROM THIS COURT AND FROM OTHER DISTRICTS 5 1. THE FOURTH DISTRICT'S ASSUMPTION THE ORIGINAL PROMISSORY NOTE WAS IN THE POSSISSION OF DEUTSCHE BANK IS MISPLACED 6 2. THE FOURTH DISTRICT'S RELIANCE ON RIGGS V. AURORA IS MISPLACED 6 3. THE FOURTH DISTRICT'S HOLDING THAT FRAUDULENT ASSIGNMENTS OF MORTGAGES ARE IRRELEVANT IS INCONSISTENT AND CONFLICTS WITH THIS COURT'S PREVIOUS DECISIONS 7 CONCLUSION 8 CERTIFICATE OF SERVICE 9 CERTIFICATE OF FONT COMPLIANCE 10 APPENDIX Tab

3 TABLE OF AUTHORITIES Page Aguilera v. Inservices, Inc., 905 So. 2d 84, 87 (Fla. 2005) 5 Aubourg v.erazo,922 So. 2d 1106 (Fla. 4th DCA 2010) 4 Avi-Isaac v. Wells Forgo Bank, N.A., 59 So. 3d 174, 177 (Fla. 2d DCA 2011) 6 Beatyv. State, 701 So. 2d 856 (Fla. 1997) 5 Belz Investco Ltd. P'shipv. Groupo Immobiliano Cababie, S.A., 721 So. 2d 787, 789 (Fla. 3d DCA 1998) 6 In re Amendments to the Florida Rules of Civil Procedures, 44 So. 3d 555, 556 (Fla. 2010) 8 McMillan v. Troutman, 740 S. 2d 1227 (Fla. 4th DCA 1999) 6 Riggs v. Aurora Loan Servs, 36 So. 3d 932 (Fla. 4th DCA 2010) 4, 5 Statutes Title 39, chapter 673, Fla. Stat 7 Constitutional Provisions Art. V, 3(b)(3), Fla. Const 5 Rules Rule 9.030(a)(2)(A)(iv), Fla. R. App. P 5 Rule 1.110, Fla, R. Civ. P 8 Florida Attorney General Reports Unfair, Deceptive and Unconscionable Acts in Foreclosure Cases 8 ii

4 I. INTRODUCTION This case cries out for resolution! The Fourth District opinion (the "Opinion") found Deutsche Bank ("Deutsche") had standing to foreclose against Jacqueline Harvey ("Harvey") based on an assumption that Deutsche processes the original mortgage note with blank endorsement - even though the record on appeal and relied upon by the court in the Opinion is only a copy of the note. The Opinion also found that filing a fraudulent assignment of mortgage is irrelevant in foreclosure cases.1 The Opinion not only conflicts with one hundred years of Florida foreclosure law - it sweeps away un-contradicted precedent in this Court as well as the district courts of Florida. If allowed to stand, the Opinion will transform Florida into a foreclosure wasteland, where unscrupulous banks and their attorneys (without worrying about the rules of evidence) can file fraudulent documents, i.e. assignment of mortgages and copies of promissory notes, passing them off as the "originals," whose actions would be rejected virtually everywhere else. On September 27, 2011, Harvey filed with the Fourth District a motion for verification. Harvey has requested the Fourth District panel to certify that the promissory note (with blank endorsement) in the record of the court is either an A copy of the Opinion appears in the attached Appendix.

5 original promissory or a copy of the promissory note. This motion is still pending in the Fourth District. II. STATEMENT OF THE CASE AND FACTS On April 6,2009, Deutsche Bank ("Deutsche") filed a two-count foreclosure count against Jacqueline Harvey ("Harvey"). Count I of the complaint sought to reestablish the lost note. Attached to the complaint were copies of the promissory note and a copy of the mortgage, showing American Home Mortgage Acceptance, Inc. ("AHMAI") as the lender and Mortgage Electronic Registration Systems, Inc. ("MERS") as the nominee mortgagee. On September 17, 2009, Deutsche filed a motion for summary judgment, along with an affidavit of indebtedness. On September 30, 2009, Deutsche filed an affidavit of lost note. A hearing on Deutsche's motion for summary judgment was held on October 12, At the hearing, the judge determined that the lost note affidavit was not in the case file and declined to rule on the motion without first reviewing the lost note affidavit. On October 29, 2009, Deutsche filed a re-notice of hearing on the motion for summary judgment, a Notice of Withdrawal of Count I of plaintiff s complaint, a copy of an assignment of mortgage from MERS to Deutsche Bank and a Notice of Filing Attached Original Note with Blank Endorsement (along with attached note). The hearing was held on January 11, During this hearing the judge stated

6 the original note was in the file. Harvey asked the judge to see the alleged "original" note. The trial judge refused and the following discussion took place. Ms. Harvey: I would like to be able to see that, (the alleged "original" note). The Court: You have been given every opportunity to see it; they gave you notice that they filed it, you could have looked. Ms. Harvey: I went to the court - I went to the record myself and looked and it was not the original. Harvey argued that the assignment of mortgage was fraudulent and Deutsche did not have standing when they filed the foreclosure proceeding because the assignment was not filed until twenty days after it filed the foreclosure. The judge dismissed Harvey's argument and final foreclosure judgment was entered on January 14,2010. Harvey filed a noticed motion for reconsideration arguing that Deutsche lacked standing to bring the foreclosure action and the assignment of mortgage contains questionable signatures. At the reconsideration hearing the trial denied Harvey's motion. The judge stated: "I've already denied your motion, I did that in chambers. So there's nothing for us to do today. Okay?" Harvey appealed to the Fourth District, arguing that the trial court erred in granting summary judgment because (1) a genuine issue of material fact existed as to Deutsche's standing to foreclose; (2) the assignment of mortgage contained questionable signatures in order to commit fraud upon the court; and (3) the trial

7 court abused its discretion by denying Harvey's motion for reconsideration and violated her due process right by denying her an opportunity to be heard. Deutsche argued that, as holder of the "original" note, endorsed in blank it had standing to enforce the note, and that the trial court properly entered final summary judgment. On April 20, 2011, the Fourth District affirmed the summary judgment per curiam citing Riggs v. Aurora Loan Servs., LLC, 36 So. 3d 932 (Fla. 4th DCA 2010) and Aubourg v. Erazo, 922 So. 2d 1106 (Fla. 4th DCA 2010). On May 4, 2011 filed a motion for rehearing. In this motion for rehearing Harvey again argued that (1) Deutsche Bank did not have physical possession of the original promissory note as evidenced in the Record and (2) the assignment of mortgage contained questionable authorized signatures. On June 29, 2011, the Fourth District denied Harvey's motion for rehearing, but addressed some points argued by Harvey in her brief. The Opinion citing Riggs concluded that since Deutsche possessed the original note and filed it with the circuit court, its standing may be established from its standing as note holder, regardless of any recorded assignment. Addressing Harvey's argument regarding "questionable signatures" contained in the assignment of mortgage, the Opinion concludes: "Even if Harvey could prove this, the dispute would be between AHMAI and Deutsche."

8 On July 13, 2011, Harvey filed a Motion for rehearing en bane and motion for certification. The motion for rehearing en bane and motion for certification was denied on September 1,2011. Harvey timely filed a notice to invoke the discretionary jurisdiction of this Court to review the Fourth District opinions. III. ARGUMENT A. STANDARD OF REVIEW. This Court may exercise jurisdiction to review the district court Opinion because: (1) it misapplies this Court's precedent; and (2) it expressly and directly conflicts with decisions of this Court and other district courts on the same question of law. See Fla. Const, art. V, 3(b)(3); Fla. R. App. P (a)(2)(A)(iv); see also Aguilera v. Inservices, Inc._, 905 So. 2d 84, 87 (Fla. 2005) ("misapplication of decisional law creates conflict jurisdiction"); Beaty v. State, 701 So. 2d 856 (Fla. 1997) (noting that conflict must be express and direct). B. THIS COURT SHOULD REVIEW THE OPINION, WHICH CONFLICTS WITH MANY DECISIONS FROM THIS COURT AND FROM OTHER DISTRICTS. The Opinion's holding derives from a misapplication of Riggs v. Aurora, a case that did not even address the issue of a copy of a promissory note filed in a foreclosure case or a fraudulent assignment of mortgage. This Court should take jurisdiction to resolve the conflict created by the Opinion.

9 V 1. The Fourth District's Assumption the Original Promissory Note was in the Possession of Deutsche Bank is Misplaced. It is still in dispute whether the promissory note contained in the record which the Fourth District relied upon as a basis for the Opinion is in fact the original note. At the summary judgment hearing, Harvey's request to see the note was denied by the trial judge. When the authenticity of the note was raised by Harvey during summary judgment this conflict should have been reconciled at an evidentiary hearing not at summary judgment. Belz Investco Ltd. P 'ship v. Groupo Immobiliano Cababie, S.A., 721 So. 2d 787, 789 (Fla. 3d DCA 1998). McMillan v. Troutman, 740 So.2d 1227 (Fla. 4th DCA 1999). Further, "it is reversible error for a trial judge to deny a party an evidentiary hearing to which [the party] is entitled." Avi-Isaac v, Wells Fargo Bank, N.A., 59 So. 3d 174, 177 (Fla. 2d DCA 2011) (quoting Sperdute v. Household Realty Corp., 585 So. 2d 1168, 1169 (Fla. 4th DCA 1991) 2. The Fourth District's Reliance on Riggs v. Aurora is Misplaced. The Opinion also affirmed summary judgment on the basis that Deutsche's actual possession of the original promissory note supported its claim that it was the proper holder of the note thereby satisfied the requirements under the Uniform Commercial Code. In Harvey's May 4, 2011 motion for rehearing, Harvey stated, "In Riggs where it is undisputed that Aurora had physical possession of the original note and

10 mortgage, in the instant case, Deutsche Bank did not have physical possession of the original promissory note as evidenced in the Record." The existence of the "original" promissory note still remains in question. By applying Riggs to this instant case, without resolving the issue of whether the note presented at summary judgment was in fact authentic and not a mere copy, the Opinion altered decades of case law and seemingly rewrote Chapter 673, which is the Florida equivalent of Article 3 of the Uniform Commercial Code governing "negotiable instruments" by converting a copy of promissory note into a valid negotiable instrument. If left to stand, the Opinion will have a tremendous impact on all foreclosures in this state and will significantly impact future real estate transactions. 3. The Fourth District Holding that Fraudulent Assignments of Mortgages are Irrelevant is Inconsistent and Conflicts With This Court's Previous Decisions The assignment of mortgage in this case contained a conflict on its face as to Deutsche Bank's right to foreclose. By declaring that: "Even if Harvey could prove [the assignment was fraudulent], the dispute would be between AHMAI [original lender] and Deutsche [the Plaintiff]", the Opinion announces a new rule in foreclosure cases that actual ownership of the loan is irrelevant once the Plaintiff makes aprimafacie showing of the right to enforce the note as its holder. It cannot be disputed the assignment of mortgage contained the signatures of three

11 known Robo-Signers. See: Unfair, Deceptive and Unconscionable Acts in Foreclosure Cases " (Florida Attorney General, Economic Crimes Division Report 2011). By holding that fraudulent assignments of mortgages are irrelevant in foreclosure cases, the Opinion altered decades of case law and seemingly undermines and ignores the mandate set down by this Court when it addressed the problem of the plethora of fraudulently executed documents in statewide foreclosure cases. Acknowledging the importance of this problem and finding that the veracity of banks and their chosen counsel is so often in questions, this Court changed Florida Rules of Civil Procedure to require that foreclosure complaints be verified. In re Amendments to the Florida Rules of Civil Procedures, 44 So. 3d 555, 556 (Fla. 2010). The objective of this Court is largely undermined by the Fourth District Opinion as it now stands. If 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. This Court should take jurisdiction to address the conflict and to correct the Fourth District's serious error. CONCLUSION For the foregoing reasons, the Court should accept jurisdiction to review the district court's decision and allow full briefing on the merits.

12 t Respectfully submitted, Jac^ueli^Harvey 2359 SW Brookwood Lane Palm City, Florida (561) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy hereof has been furnished by United States Mail to Katherine E. Giddings, Esq., and Nancy M. Wallace, Esq., AKERMAN SENTERFITT, 106 East College Avenue, Suite 1200, Tallahassee, Florida 32301, this 1st day of October, Jac^Geli^Harvey

13 CERTIFICATE OF FONT COMPLIANCE I HEREBY CERTIFY that the font used in this brief is Times New Roman 14-point font and that the brief complies with the font requirements of Rule 9.210(a)(2). Jac^neTme^arvey 10