IN THE SUPREME COURT OF FLORIDA

Electronically Filed 05/20/2013 12:08:02 PM ET RECEIVED, 5/20/2013 12:08:39, Thomas D. Hall, Clerk, Supreme Court IN THE SUPREME COURT OF FLORIDA CASE NO. SC13-782 L.T. Case Nos. 4DII-3838; 502008CA034262XXXXMB HSBC BANK USA, NATIONAL ASSOCIATION, AS TRUSTEE FOR DEUTSCHE ALT-A SECURITIES, INC., MORTGAGE LOAN TRUST, MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2006-AR3, Plaintiff/Petitioners, vs. MARIE NIXON, ET AL., DefendantslRespondents. ON PETITION FOR DISCRETIONARY REVIEW FROM A DECISION OF THE FOURTH DISTRICT COURT OF APPEAL RESPONDENT, 3L REAL ESTATE, LLC'S, ANSWER BRIEF ON JURISDICTION WESOLOSKI CARLSON, P.A. 848 Brickell Avenue, Suite 300 Miami, FL 33131 Tel: (305) 329-1000 Fax: (305) 532-7804 HICKS, PORTER, EBENFELD & STEIN, P.A. 799 Brickell Plaza, Suite 900 Miami, FL 33131 Tel: (305) 374-8171 Fax: (305) 372-8038 Co-counsel for Respondent, 3L Real Estate, LLC 799 BRICKELL PLAZA, 9TH FLOOR, MIAMI, FL 33131 TEL. 305/374-8171' FAX 305/372-8038

TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES... ii INTRODUCTION... 1 STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF ARGUMENT... 3 ARGUMENT... 3 CONCLUSION... 8 CERTIFICATE OF SERVICE... 9 CERTIFICATE OF COMPLIANCE... 10 1 799 BRICKELL PLAZA, 9TH FLOOR, MIAMI, FL 33131' TEL. 305/374-8171, FAX 305/372-8038

TABLE OF AUTHORITIES PAGE Cases Dresner v. City a/tallahassee, 134 So. 2d 228 (Fla. 1961)... 5,6 Gilbreath v. State, 650 So. 2d 10 (Fla. 1995)... 5 Jenkins v. State, 385 So. 2d 1356 (Fla. 1980)... 7 Libertarian Party 0/ Florida v. Smith, 687 So. 2d 1292 (Fla. 1996)... 4 Peterson v. State, 775 So. 2d 376 (Fla. 4th DCA 2000)... 5 Saiya v. State, 654 So. 2d 128 (Fla. 1995)... 4 Statutes 45.031, Fla. Stat... passim 99.103(1), Fla. Stat.... 4 365.16(1)( a), Fla. Stat. (1991 )... 5 784.048(4), Fla. Stat. (1993)... 5 870.04, Fla. Stat.... 6 921.002(1)(h), Fla. Stat.... 5 11 799 BRICKELL PLAZA, 9TH FLOOR, MIAMI, FL 33131 TEL. 305/374-8171 FAX 305/372-8038

Regulations Article V, section 3(b)(3) of the Florida Constitution... 1,3,4 Article V, section 4(2) of the Florida Constitution... 5 Rules Fla. R. App. P. 9.030... 1,4,7 Fla. R. App. P. 9.120... 8 Other Palm Beach Circuit Court Administrative Order 3.301-5/1 0... 2 111 799 BRICKELL PLAZA, 9TH FLOOR, MIAMI, FL 33131 TEL. 305/374-8171 FAX 305/372-8038

INTRODUCTION Petitioner seeks discretionary review of a decision of the Fourth District Court of Appeal affirming the denial of Petitioner's motion to vacate a foreclosure sale. Petitioner does not contend that the decision is in express and direct conflict with a decision from another district court or this Court, or that there is a certified issue of great public importance. Rather, Petitioner contends that the Fourth District's decision expressly declared a state statute valid. However, the only Florida statute pertinent to the issues on appeal, section 45.031, was never challenged and its validity was not passed upon. Accordingly, Petitioner has failed to demonstrate that this Court has jurisdiction pursuant to Article V, section 3(b )(3) of the Flori~a Constitution and Florida Rule of Appellate Procedure 9.030(a)(2)(A)(i) to review the District Court's decision, and the petition should be denied. STATEMENT OF THE CASE AND FACTS After a final judgment of foreclosure was entered in HSBC Bank USA's ("HSBC") favor, an electronic foreclosure sale was held and Respondent 3L Real Estate, LLC ("3L") submitted the winning bid. (Op. 1-2). HSBC moved to vacate the sale on the basis of its own failure to publish notice of the sale pursuant to section 45.031(2), Florida Statutes. The trial court denied the motion to vacate, and also denied HSBC's motion for rehearing, or alternatively, motion for relief 1 799 BRICKELL PLAZA, 9TH FLOOR, MIAMI, FL 33131 TEL. 305/374-8171' FAX 305/372-8038

from judgment. (Op. 1). HSBC sought review of these two orders in the Fourth District Court of AppeaL HSBC contended on appeal that the trial court abused its discretion by failing to adhere to the sale procedures in section 45.031. (Op.. 1). Neither party challenged the validity of this statute. In determining whether strict compliance with the statute was required, the Fourth District merely quoted the beginning of section 45.031: In any sale of real or personal property under an order of judgment, the procedures provided in this section and ss. 45.0315-45.035 may be followed as an alternative to any other sale procedure if so ordered by the court. (Op. 3) (emphasis in original). The District Court recognized that Palm Beach Circuit Court Administrative Order 3.301-5/10 altered the statutory sale procedures as follows: (Op.3). Failure to provide proof of publication or pay the clerk sale fee prior to the sale is not grounds for canceling the sale. Accordingly, the Fourth District found that the trial court had not abused its discretion in refusing to vacate the foreclosure sale: [W]e cannot say that the trial court abused its discretion in refusing to vacate the sale, grant rehearing, or grant relief from judgment on the grounds that the failure to publish a notice of the sale constitutes an irregularity in the sale procedure. The Palm Beach County Circuit Court Administrative Order 2 799 BRICKELL PLAZA, 9TH FLOOR, MIAMI, FL 33131' TEL. 305/374-8171' FAX 305/372-8038

established that in the Fifteenth Circuit, failure to provide proof of publication is not grounds for canceling a foreclosure sale. It is logical to assume that the Fifteenth Circuit made an administrative decision to prohibit the cancelation of a foreclosure sale when a notice of sale was not published because plaintiffs' counsel could avoid the need for filing a motion to cancel a foreclosure sale by simply failing to publish a notice of sale. As allowed by the statute itself, the Administrative Order alters the sale procedure under section 45.031. On the facts of this case, the trial court had the discretion to deny relief under rules 1.530 and 1.540, despite lack of publication of the notice of sale. (Op. 3-4). HSBC's motion for rehearing, rehearing en banc, or for certification was denied, and this petition followed. SUMMARY OF ARGUMENT The District Court did not expressly declare section 45.031, Florida Statutes, valid. Petitioner never challenged the statute's validity. Rather, Petitioner argued below that the trial court abused its discretion by failing to adhere to the publication requirements of section 45.031, and this argument was rejected by the District Court. A challenge to the application of an otherwise valid statute does not provide this Court with discretionary jurisdiction. Even if the validity of the statute was passed upon (it was not), it was not done so expressly. Accordingly, this Court should decline to exercise jurisdiction. ARGUMENT Article V, section 3(b)(3) of the Florida Constitution provides that this Court "[m]ay review any decision of a district court of appeal that expressly declares 3 799 BRICKELL PLAZA, 9TH FLOOR, MIAMI, FL 33131 TEL. 305/374-8171 FAX 305/372-8038

valid a state statute." Florida Rule of Appellate Procedure 9.030(a)(2)(A)(i) likewise provides that "[t]he discretionary jurisdiction of the supreme court may be sought to review... decisions of the district court that... expressly declare valid a state statute." This is the only basis upon which HSBC seeks to invoke this Court's jurisdiction. However, the validity of a state statute was never at issue in this case. The District Court decided only those issues which HSBC raised on appeal, I.e., whether the trial court abused its discretion in failing to vacate the judicial sale and whether the trial court erred in denying HSBC's motion for rehearing or for relief from judgment. (Op. 1). As is clear from the opinion, the validity of section 45.031 was never challenged by the parties. Cases in which this Court has exercised jurisdiction pursuant to Article V, section 3(b)(3) of the Florida Constitution and Florida Rule of Appellate Procedure 9.030(a)(2)(A)(i) have involved a direct challenge to the constitutionality of a state statute. See, e.g., Libertarian Party of Florida v. Smith, 687 So. 2d 1292, 1293-94 (Fla. 1996) (reviewing district court decision which rejected argument that section 99.103(1), Florida Statutes, violated the Equal Protection Clause and Fourteenth Amendment, and found statute valid under both the Florida and federal constitutions); Saiya v. State, 654 So. 2d 128, 128 (Fla. 1995) (exercising jurisdiction to review district court decision that rejected a constitutional challenge 4 HICKS, PORTER, EBENFELD & STEIN, P.A. 799 BRICKELL PLAZA, 9TH FLOOR, MIAMI, FL 33131' TEL. 305/374-8171' FAX 305/372-8038

to the validity of section 784.048(4), Florida Statutes (1993), Florida's anti-stalking statute); Gilbreath v. State, 650 So. 2d 10, 11 (Fla. 1995) (exercising jurisdiction to review decision of district court of appeal which approved the circuit court's decision sustaining section 365. 16(1)(a), Florida Statutes (1991) against the attack that it was an unconstitutional infringement of the right to free speech). Petitioner argues that the District Court decision does not have to use "magic words" declaring a statute valid in order for jurisdiction to be exercised. (Pet. Jur. Br. at p. 4). However, even the case cited by Petitioner on this point involved a constitutional challenge to the statute at issue. See Peterson v. State, 775 So. 2d 376,378 (Fla. 4th DCA 2000) (ruling that section 921.002(1)(h), Florida Statutes, did not violate due process, deny equal protection or violate the right to appeal contained in the Florida Constitution). Here, the District Court was not asked to rule on the statute's constitutionality. At most, it was asked to determine the applicability of the publication procedures in section 45.031 (2) to the subject foreclosure sale. Where the decision involves "the validity of the application of an otherwise valid statute," this Court does not have discretionary jurisdiction. Dresner v. City of Tallahassee, 134 So. 2d 228, 230 (Fla. 1961). In Dresner, the appellants sought direct review of an order entered by a municipal court. At that time, Article V, section 4(2) of the Florida Constitution 5 799 BRICKELL PLAZA, 9TH FLOOR, MIAMI, FL 33131' TEL. 305/374 8171' FAX 305/372 8038

provided that appeals may be taken to this Court, as a matter of right, from final judgments or decrees "directly passing upon the validity of a state statute." Id. at 229. The appellants had moved to dismiss an unlawful assembly complaint against them on the basis that section 870.04, Florida Statutes, was being invalidly applied. Id. at 229. The municipal court judge denied the motion and the appellants were found guilty at trial. Appellants sought review in this Court, contending that the municipal judge had directly passed on the validity of a state statute. Id. This Court found that it lacked jurisdiction to review the municipal court's decision because the judge had merely passed on the application of the statute, not its validity: It is perfectly clear that the municipal judge was not confronted by the necessity of passing directly on the validity of a state statute.... In actuality, the record indicates that he was merely requested to decide that 'the statute' was invalid 'as applied to the appellants.' The real contention asserted before the trial judge questioned the application of the statute, rather than its fundamental validity. [E]ven though appellants attempted to question the validity of the application of the cited statute, they did not in any fashion assault the fundamental validity of the statute itself. Jurisdiction comes to us by direct appeal when the validity of the statute is assaulted and passed upon. When the problem involves the validity of the application of an otherwise valid statute, a direct appeal here is not available... Id. at 229-30 (emphasis added). Dresner's reasoning is applicable here and mandates denial of the petition. Neither of the parties made an assault on the fundamental validity of section 6 799 BRICKELL PLAZA, 9TH FLOOR, MIAMI, FL 33131' TEL 305/374-8171' FAX 305/372-8038

45.031. The District Court merely determined that the publication procedures in section 45.031(2) were altered by the Administrative Order and gave the trial court discretion to deny Petitioner's motion to vacate the sale. Because the case involved "the validity of the application of an otherwise valid statute," this Court does not have jurisdiction. Even if the validity of section 45.031 was passed upon (it was not), the District Court's decision did not "expressly declare" it valid. As recognized by this Court in Jenkins v. State, 385 So. 2d l356, l359 (Fla. 1980), "express" means "to represent in words" or "to give expression to." (citations omitted). Nowhere in the decision is the validity of section 45.031 mentioned. Under previous versions of the Florida Constitution and Rules of Appellate Procedure, "jurisdiction could be invoked if a lower tribunal 'inherently' declared a statute valid. The 1980 amendments to article V and this subdivision [(a)(2)(a)(i)] require a district court to 'expressly declare' a state statute valid before the supreme court's discretionary jurisdiction may be invoked." Fla. R. App. P. 9.030, Committee Notes, 1980 Amendment (internal citations omitted). As is clear from the amendments, the legislature intended that the declaration of validity be found in the words of the decision. Such an expression is absent from the District Court decision. Merely because the District Court cited to a Florida statute in reaching its decision, does not mean that it expressly declared the statute valid. The 7 799 BRICKELL PLAZA, 9TH FLOOR, MIAMI, FL 33131 TEL. 305/374-8171 FAX 305/372-8038

amendments to the rules and Constitution were meant to limit the Supreme Court's discretionary jurisdiction, in order to "make more efficient use of limited appellate resources." Id. It was intended that the district courts of appeal would "constitute the courts of last resort for the vast majority of litigants." Id. Petitioner's strained argument for jurisdiction is incompatible with this purpose. Because Petitioner has failed to demonstrate that this Court has discretionary jurisdiction to review the District Court's order, the petition should be denied. Petitioner's arguments on the merits of the substantive issues and the alleged effect of the District Court's decision on the foreclosure process (see Motion at pp. 5-8) have no bearing on the jurisdiction issue and should be disregarded. See Fla. R. App. P. 9.120, Committee Notes, 1977 Amendments ("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."). CONCLUSION Based on the foregoing, Respondent, 3L Real Estate, LLC, respectfully submits that this Court should deny Petitioner HSBC's petition for discretionary jurisdiction. 8 799 BRICKELL PLAZA, 9TH FLOOR, MIAMI, FL 33131 TEL. 305/374-8171 FAX 305/372-8038

Respectfully submitted, WESOLOSKI CARLSON, P.A. 848 Brickell Avenue, Suite 300 Miami, FL 33131 Tel: (305) 329-1000 Fax: (305)532-7804 HICKS, PORTER, EBENFELD & STEIN, P.A. 799 Brickell Plaza, Suite 900 Miami, FL 33131 Tel: (305) 374-8171 Fax: (305) 372-8038 eclerk@mhickslaw.com pgonzalez@mhickslaw.com bpaz@mhickslaw.com Co-counsel for Respondent, 3L Real Estate, LLC BY: /s/ Dinah Stein DINAH STEIN Fla. Bar No.: 98272 dstein@mhickslaw.com LAUREN J. SMITH Fla. Bar No.: 0084705 lsmith@mhickslaw.com CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by E-mail this 20th day of May, 2013, to: Justin C. Leto, Esq., jleto@letolaw.com, Jonathan M. Hixon, Esq., jhixon@letolaw.com, The Leto Law Firm, Counsel for Petitioners, The Miami Center, Suite 1720, 201 S. Biscayne Blvd., Miami, FL 33131, service@ietolaw.com; Brian P. Gabriel, Esq., briang@gabriellawteam.com, 4601 Military Trail, Suite 206, Jupiter, FL 33458; Xanadu by the Sea Property Owner's Association c/o Registered Agent: Eric 9 799 BRICKELL PLAZA, 9TH FLOOR, MIAMI, FL 33131 TEL 305/374 8171' FAX 305/372 8038

Peterson, 154 Sims Creek Lane, Jupiter, FL 33408 (via U.S. Mail only): and Owei Z. Belleh, Esq., owei.belleh@phelanhallinan.com, 2727 West Cypress Creek Road, Ft. Lauderdale, FL 33309, Fl.service@phelanhallinan.com. BY: /s/ Dinah Stein DINAH STEIN Fla. Bar No.: 98272 CERTIFICATE OF COMPLIANCE This brief complies with the font requirements of Rule 9.210. It is typed in Times New Roman 14 point type. BY: /s/ Dinah Stein DINAH STEIN Fla. Bar No.: 98272 10 799 BRICKELL PlAZA, 9TH FLOOR, MIAMI, FL 33131 TEL. 305/374-8171 FAX 305/372-8038