IN THE SUPREME COURT OF FLORIDA / 2

HOLLY BENNETT, Pro Se

Petitioner,

v.

WACHOVIA BANK, N.A., TRUSTEE

Respondent (s).

CASE NO. SC13-211DCA CASE NO. 2D12-5257

L.T. NO. 07-CA-006015

PETITIONER'S INITIAL BRIEF

Respectfully submitted,

Holly Bennett, Pro SeP. O. Box 310272Tampa, Florida 33680

Telephone: 813 802-5216

TABLE OF CONTENTS

Page

TABLE OF CONTENTS ..........................................................ii

TABLE OF AUTHORITIES ......................................................iv

ISSUE PRESENTED ............................................................ 1,2

STATEMENT OF THE CASE AND FACTS ...................................3

A. The Complaint. ...........................................................3

B. The Promissory Note. ...................................................3

SUMMARY OF THE ARGUMENT .............................................4

STANDARD OF REVIEW .........................................................5

ARGUMENT .........................................................................6

A. The Trial Court Had Authority to Hold an Evidentiary Hearingon the Rule 1.540(b) motion ............................................6

B. The Trial Court Also Has the Inherent Authority to Protect ItsOwn Integrity. ............................................................7

C. Fraudulent Foreclosures Which Undermine the Integrity of theCourt System Are Matters of Great Public Importance................8

CONCLUSION ....................................................................... 9

CERTIFICATE OF SERVICE ....................................................10

CERTIFICATE OF COMPLIANCE WITH FONT STANDARD ...........11

APPENDICES

A. Ruling to Dismiss Frivolous Untimely Appeal

B. Victim ofFraud Police Report for Fraudulent Use ofPersonalIdentification Information to File Fraudulent Document toObtain an Order from the District Court.

C. Release Deed by Household Finance Corporation andAffidavit ofLost Assignment ofMortgage dated 11/10/00.

D. Lost Note Complaint In Mortgage Foreclosure and PerjuryBy Wachovia Bank, N.A.

E. Investigation from Wells Fargo, N.A. successor of WachoviaBank N.A. that confirms Wachovia Bank N.A. did notservice or hold any interest in the mortgage loan.

F. Fraudulent Mortgage and Forged Signature on a PromissoryNote dated 11/01/00 in the amount of $95,000.00 include my father whosuffered a property loss who was elderly that caused asubstantial diminution in quality of life as provided byFlorida Statutes 960.195.

G. Investigation from Chase Bank N.A. successor ofBank OneN.A. that confirms Bank One N.A. did not service orhold a mortgage or promissory note, at the time offoreclosure. The loan was serviced by Ocwen Loan Servicing LLC.

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TABLE OF AUTHORITIES

Page

Cases

Amerus Life Ins.Co. v. Lait,2 So. 3d 203 (Fla. 2009)...............................................................5

Channel Components, Inc. v. America IIElectronics, Inc.,915 So. 2d 1278 (Fla. 2d DCA 2005)................................................1

Cox v. Burke,706 So. 2d 43 (Fla. 5* DCA 1998)...................................................1

Department ofRevenue ex rel Simmons v. Wardlaw,25 So. 3d 80, 82 (Fla. 4* DCA 2009)................................................5

Dynasty Exp.Corp. v. Weiss,675 So. 2d 235 (Fla. 4* DCA 1996)..................................................6

In re Amendments to the Floria Rule ofCivil Procedure,44 So. 3d 555, 556 (Fla. 2010)........................................................1

Robinson v. Weiland,936 So. 2d 777, (Fla. 5* DCA 2006)...............................................1, 5

Schleger v. Stebelsky,957 So. 2d 71 (Fla. 4* DCA 2007)...................................................5

Sotolongo v. Celebrity Cruises, Ltd.,49 So. 3d 862 (Fla. 3d DCA 2010)...................................................7

Southern Bell Tel & Tel. Co. v. Welden,483 So. 2d 487, 489 (Fla. 1" DCA 1986)............................................5

Stella v. Stella,418 So 2d 1029 (Fla. 4* DCA 1982)................................................5

IV

Tramel v. Bass,777 So. 2d 1160 (Fla. 1* DCA 1996)................................................7

Florida Constitutional Provisions

Florida Constitution, Article I, Section 16(b)........................................7

Florida Constitution, Article V, Section 2(a).........................................3

Rules

Fla. R. Civ. P. 1.110..................................................................1, 8

Fla. R. Civ. P. 1.540(b)...........................................................passim

Fla. R. Civ. P. 1.540(b) (3)...........................................................5, 6

Statutes

Florida Statutes § 960.195............................................................iii

V

ISSUE PRESENTED

The Florida Supreme Court recognized the problem of fraudulently executed

documents in foreclosure cases in a statewide (even nationwide) issue that is not

unique to Wachovia Bank N.A. or this case. The veracity ofbanks and their

chosen counsel is so often in question that this Court changed Florida Rule of

Civil Procedure 1.110 to require that foreclosure complaints be verified.

In re Amendments to the Florida Rule ofCivil Procedure, 44 So.3d 555, 556

(Fla.2010.

While this case arises in the context of a foreclosure- one of the hundreds of

thousands of cases constituting what this Court has called a "significant crisis"' -

the issue of fraud on the courts clearly extends well beyond foreclosure. The

protection of the integrity ofthe court system by discouraging fraudulent conduct

during judicial proceedings is ofparamount importance regardless of the nature

of the matter being litigated.

The integrity of the civil litigation process depends on thetruthful disclosure of facts. A system that depends on anadversary's ability to uncover falsehoods is doomed tofailure, which is why this kind of conduct [fraudulentconcealment of fact] must be discouraged in the strongestpossible way.

Robinson v. Weiland, 988 So. 2d at 1113, quoting Cox, 706 So. 2d at 47; see alsoChannel Components, Inc. v. American IIElectronics, Inc., 915 So. 2d 1278 (Fla.2d DCA 2005).

* In Re: Task Force on Residential Mortgage Foreclosure Cases, AOSC09-8(March 27, 2009).

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In this case, alleged facts that, if true, would show that the mortgage

complaint was fraudulent. When the petitioner sought discovery to prove the

allegations, the trial court refused an evidentiary hearing. Therefore I contend that

my constitutional rights ofequal protection and due process have been denied.

"However, under the new appellate system, with its division of jurisdiction

between the Supreme Court and the 2DCA, it is now of great importance, both to

the litigants and the appellate courts, in cases where the validity of a statute, state

or federal is attacked, or the construction of a controlling provision of the State or

Federal constitution is sought, that the trial court clearly state whether it passed on

the validity of such a statue or construed a provision ofeither constitution.

Rule 1.540(b) allows the dismissal when fraud is shown. To be entitled to

an evidentiary hearing, a motion to vacate must 1) plead fraud with particularity;

and 2) plead a basis for relief as to why the proceeding should be set aside. Trial

courts have inherent power to protect judicial functions and integrity. This

authority includes the right and obligation to deter fraud on the court.

In addition, violation of the Florida Statutes 960.19 occurred; when

my father was over 60 year of age who suffered a property loss that caused a

substantial diminution in quality of life.

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STATEMENT OF THE CASE AND FACTS

I am a pro se litigant and admit to difficulty in understanding the rules of

appellant procedure as to form and process for advancing this important issue to a

hearing. I petition the Florida Supreme Court for a measure ofjudicial indulgence

for obvious errors of forum, form or process, administration; practice and

procedure. - "that no causes shall be dismissed because an improper remedy has

been sought" per The Florida Constitution, Art. V., SECTION 2. (a) as follows:

A. The Complaint.

Wachovia Bank N.A. sought to foreclose on the property. 2 The complaint

alleged that they owns and holds the Note and Mortgage by virtue ofa promissory

note from Bank One N.A. The complaint also alleged that the note has been "lost

or destroyed." Petitioner moved to dismiss the complaint because, among other

deficiencies, Wachovia Bank N.A. failed to establish how attempting to collect on

an altered and forged promissory note, being void and unenforceable, can be

legitimate.

B. The Promissory Note.

New evidence confirms forgery of the signatures, however, the complaint

state the promissory note3 was "lost Or destroyed."

2 Complaint reopened May 22, 2012.

3 The Promissory Note was revealed on December 11, 2012.

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SUMMARY OF THE ARGUMENT

Trial courts possess authority under Rule 1.540(b) to hear evidence when

allegation of fraud are raised and, upon proofof the fraud, dismissal. To be

entitled to an evidentiary hearing, a motion must plead fraud with particularity and

plead a basis for relief showing whey the proceedings should be set aside.

Petitioner's Rule 1.540(b) motion pled that Wachovia Bank N.A. though its

counsel, created, executed, and filed a fraudulent complaint with the court which

purports to transfer the subject mortgage lien to itself. The motion requested an

evidentiary hearing to prove the fraud and it sought a dismissal with prejudice.

The motion pleads fraud with specificity and shows a basis for relief; therefore, the

trial court had authority under Rule 1.540(b) to hold an evidentiary hearing to

consider the dismissal and sanctioning Wachovia Bank N.A.

The trial court also had inherent authority to do so. Trial courts have

inherent power to protect judicial functions and integrity. This includes the right

(even the obligation) to deter fraud on the court - including the imposition ofthe

ultimate sanction: dismissal with prejudice. Here, counsel for Wachovia Bank

N. A. fraudulently obtained an Order ofWrit to avoid the consequences of filing a

forged document and using the business identity theft ofWachovia Bank N.A.

since Wells Fargo N.A. has a judgment for fraud, and Wachovia Bank N.A. is the

successor.

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STANDARD OF REVIEW

While the standard of review of a ruling on a Rule 1.540(b) motion is

generally abuse of discretion, the certified question before this Court is to be

reviewed de novo. Whether the trial court had jurisdiction and authority under the

rules or as a power inherent in its constitutional function is a legal question subject

to de novo review. Amerus Life Ins. Co. v. Lait, 2 So. 3d 203, 205 (Fla. 2009);

Department ofRevenue ex rel Simmons v. Wardlaw, 25 So. 3d 80, 82 (Fla. 4' DCA

2009).

Further, denial of a Rule 1.540(b) motion without an evidentiary hearing is

automatically an abuse of discretion as a matter of law. See Schleger v Stebelskv,

957 So. 2d 71 (Fla. 4'' DCA 2007); Stella v. Stella, 418 So. 2d 1029 (Fla. 4'' DCA

1982); Robinson v.Weiland, 936 So. 2d 777 (Fla. 5* DCA 2006) (evidentiary

hearing requirement applies when fraud is asserted as a grounds for relief under

Rule 1.540(b)); Southern Bell Tel & Tel. Co. v. Welden, 483 So. 2d 487, 489 (Fla.

1''DCA 1986) (holding that the trial court erred because "where the moving

party's allegation to rule 1.540(b)(3) relief, a formal evidentiary hearing on the

motion, as well as permissible discovery prior to the hearing, is required.").

s

ARGUMENT

A. The Trial Court Had Authority to Hold and Evidentiary Hearing onThe Rule 1.540(b) motion.

1. Rule 1.540(b) provides relief from a proceeding where fraud is shown.

Florida Rule of Civil Procedure 1.540(b) (3) provides relief from "a final

Judgment, decree, order or proceeding" for:

(3) fraud (whether heretofore denominated intrinsic or extrinsic),misrepresentation or other misconduct of an adverse party.

To warrant an evidentiary hearing, a Rule 1.540(b) (3) motion must specify

The essential facts of the fraud and misconduct, and not merely assert legal

conclusions. Dynasty, 675 So. 2d at 239.

Petitioner's motion alleges that Wachovia Bank N.A., through it counsel,

manufactured evidence by creating, executing and filing a frivolous untimely

appeal using my personal identification information to obtain an Order from the

2DCA. After petitioner brought the allegations of fraud to the attention of the

2DCA by way of motion and sought discovery to prove the fraud was denied.

As a result, the criminal justice system allow a victim of a crime to report

fraud, with the consent of the victim, have standing to assert the rights of a crime

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victim which are provided by law or s. 16(b), Art. 1 of the State Constitution. I

filed a police report for fraudulent use ofmy personal identification.

B. The Trial Court Also IIas the Inherent Authority to Protect Its OwnIntegrity.

Trial courts possess the inherent power to protect the function, dignity, and

integrity of the judicial system. Tramel v. Bass, 672 So. 2d 78, 83 (Fla. 1" DCA

1996). Courts have "the right and obligation to deter fraudulent claims from

proceeding in court."

In using such authority, trial courts have considerable discretion to impose

severe sanctions for intentional fraud on the court in submitting deliberately

altered evidence; Sotolongo v. Celebrity Crusies, Ltd, 49 So. 3d 862 (Fla. 3d DCA

2010) (af]ìrming contempt order disquahfying attorneyfrom cases).

The United States Supreme Court has recognized the inherent authority and

obligation of the courts to protect litigants, and the judicial system itself, from

dishonesty:

[T]ampering with the administration ofjustice in the manner indisputablyshown here involves far more than an injury to a single litigant. It is awrong against the institutions set up to protect and safeguard the public,institutions in which fraud cannot complacently be tolerated consistently

with the good order of society... The public welfare demands that theagencies ofpublic justice be not so impotent that they must always bemute and helpless victims ofdeception and fraud.

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C. Fraudulent Foreclosures Which Undermine the Integrity of the CourtSystem Are Matters of Great Public Importance.

The Court stated the following four primary purposes for amending the

Florida Rule ofCivil Procedure 1.110:

(1)To provide incentive for the Plaintiff to appropriately investigateand verify its ownership ofthe note or right to enforce the note andensure that the allegations in the complaint are accurate; (2) toconserve judicial resources that are currently being wasted oninappropriately pleaded "lost note" counts and inconsistentallegations; (3) to prevent the wasting ofjudicial resources andharm to defendants resulting from suits brought by Plaintiffsnot entitled to enforce the note; and (4) to give trial courts greaterauthority to sanction plaintiffs who make false allegations.

This point is even more powerful in this case where it is alleged that

plaintiff's agents created, executed, and filed fraudulently dated documents with

the court. However, even the new rule will have no force or effect if it can be

nullified by simply filing fraudulent documents to obtain and Order from

another court.

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CONCLUSION

The trial court had authority to conduct an evidentiary hearing on petitioners

Rule 1.540(b) motion pled that Wachovia Bank N.A., through its agents, created,

Executed, and filed a fraudulent complaint ofmortgage with the court. The

allegations were pled with specificity and showed a basis for relief.

The trial court also had authority to protect judicial functions and integrity.

This includes the right and obligation to deter fraud on the court- including

dismissing cases with prejudice. Wachovia Bank N.A. tampered with the

administration ofjustice to avoid the consequences of filing forged document

intended to deceive the courts. The trial court should be stripped of its inherent

authority to stop Wachovia Bank N.A. from using the dismissal rule as a shield

for its fraud.

Accordingly, the trial court's denial ofmotions pled fraud on the court

should be reversed and remanded.

Respectfully submitted,

H y B ett, Pro SeP. O Box 310272Tampa, Florida 33680Phone: (813) 802-5216Email: hbennet3@verizon.net

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was sent

this day of March, 2013 by Certified Mail to Clerk, Florida Supreme Court;

500 South Duval; Tallahassee, Florida 32399; a copy hand delivered to Shapiro

and Fishman; 4630 Woodland Corporate Blvd., Suite 100, Tampa, Florida 33614;

and served by U.S. Mail to Wachovia Bank N.A., 1239 E. Newport Center Drive,

Suite 110, Deerfield Beach, Florida 33442.

By:Hol B nnett, Pro SeP. O Bdx 310272Tampa, Florida 33680Phone: (813) 802-5216Email: hbennet3@verizon.net

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CERTIFICATE OF COMPLIANCE WITH FONT STANDARD

Undersigned hereby certifies that the foregoing Answer Brief complies with

Fla R. App. P. 9.210 and has been typed in Times New Roman, 14 Point.

By:Ho y nnett, Pro SeP. O x 310272Tampa, Florida 33680Phone: (813) 802-5216Email: hbennet3@verizon.net

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