Office of the State Courts Administrator

FLORIDA SUPREME COURT20lr >

CASE Number: SC10-1010

MICHAEL MOMPIERRE

Petitioner

1790 Catalina Blvd.

Deltona, Fl. 32738

Defendant and Counter Plaintiff

Appellant

vs

BISMARK MORTGAGE COMPANY

Respondent1

Substituted Plaintiff, and

KEY BANK NATIONAL ASSOCIATION

Respondent2

Counter Defendant,

Appellee's /

r-\.

) 5th. DISTRICT COURT

) APPEAL # D510-623

) TRIAL COURT

) CASE # 2009 11120 CIDL

) VOLUSIA COUNTY

) 7th JUDICAL CIRCUIT

(II AMENDED) - BREIF ON JURISDICTION

Pg. 1

TABLE OF CONTENTS

Page

Title Page 1

Table of Contents 2

Table of Citations i - ii

Statement of Case and the Facts 3

Summary of Argument 4-6

Argument 6-9

Conclusion 9-10

Certificate of service 11

Certificate of compliance 11

Pg. 2

TABLE OF CITATIONS

b. FLORIDA DISTRICT COURT OF APPEAL.

Harrison v. La Placida Community Ass'n Inc.,

665 So. 2d 1138 (Fla. 4d DCA 1996)

Gelkop v. Gelkop, 384 So. 2d 195 (Fla. 4d DCA 1980)

e. FLORIDA CONSTITUTION.

Art. I. $ 21, Fla. Const.

Art. V. $ 3, Fla. Const.

g. FLORIDA STATUTES ANNOTATED,

h. FLORIDA LAWS.

i. FLORIDA RULES.

Fla. R. App. P. 9.030(b)(3)

Fla. R. Civ. P. 1.140(d).

Fla. R. Civ. P.. 1.140(h)(2).

Fla. R. Civ. P. 1.540(b)(4).

Fla. R. Civ. P. 1.540.

m. Federal District Courts

Federal Procedure, Removal of Actions $69.3

Chivas Products Ltd. V. Owen, 864 F.2d 1280 (6th Cir.

1988) .

o. other -

UNITED STATES CODE ANNOTATED

Constitution of the United States Annotated

U.S.C.A. Const. Amend. XIV

Am jur.2d $$71, new trial

Lehner v. Berlin Pub.Co., 211 Wis. 119, 246 N.W. 579,

86 A.L.R. 1284 (1933).

West's florida digest 2d-343

Harrison v. La Placida Community Ass'n, Inc.,

665 So.2d 1138 (Fla. 4d DCA 1996).

West's florida digest 2d-349

Gelkop v. Gelkop, 384 So.2d 195 (Fla. 4d DCA 1980).

li

STATEMENT OF THE CASE AND OF THE FACTS

This is an ACTION TO REVIEW, A VOID FINAL JUDGMENT.

That was not determined on the Merits.

Where, Judge John V. Doyle decided on his own,

not to act according to legislation "Written law". Prior to

the Respondents Motion for Dismissal. Departing from the

essential requirements of procedure. When denying the

requests for injunction relief.(see doc. 95, 96, 97, 99)

1). Then, on 1/05/2010, Petitioner presented a Motion for

Disqualification. Where Petitioner feared he would not

receive a fair trail, (see doc. 109)

And, NOT Ruled on within 30 days by Judge John V. Doyle

Whereby, the Motion for Disqualification is deemed granted.

The motion for disqualification of judge John V. Doyle

is legally sufficient. Because proper administration

of substantive law is a literal requirement of

applicable statute. And the actual factual foundation

for the alleged fear of prejudice.

2) . On 3/18/2010, Petitioner filed an Amended Motion to

Dismiss Summary Final Judgment, (see doc. 147)

3). CASE Number:SC10-1009, Not appealed to the Florida

Supreme Court for the Substantive Rights and Prejudice of

the Dismissal of Counterclaim that is in appeal, with The

5th District Court of Appeal Case No.510-623. Pg. 3

SUMMARY OF ARGUMENT

This is an appeal on a petitory action, by Petitioner,

for the recognition of real right in immovable property.

Where in trial case #2 0 09 1112 0 CIDL, Judge John V. Doyle

was previously Disqualified. When petitioner on 1/05/2010

Presented Motion for disqualification. That was 3 0 days

prior to the Respondents Motion for summary judgment on

2/04/2010. Being the same day the disqualification was

granted, Pursuant to Florida Rules of Judicial

Administration 2.160. And, the notice of the granted

disqualification was filed on 2/19/2010. And the MEMORANDUM

for granted disqualification was on 2/23/2010.

And Judge John V. Doyle continued in the proceeding of the

scheduled hearing for 3/25/2010. Granting an order to

Foreclose, when he was disqualified, as of 2/4/2010.

(see doc. 109, 129, 133).

And furtherance, that this trial case #2009 11120

CIDL's Jurisdiction was Removed to the U.S. District Court

Middle District of Florida on 3/22/2010.

Where Petitioner feared he would not receive a fair

trial, because of the denial of Legislative, Statutory

law. "Color of State Law", (see doc. 150)

But, was then Remanded on 4/7/2010, with an incorrect

assumption, (see doc. 157) Pg. 4

Thus Judge John V. Doyle, granting out of

jurisdiction, The VOID JUDGMENT Orders below;

1). * FINAL JUDGMENT OF FORECLOSURE Instr. #2010053574

Bk. 6458 Pg. 4082, (Doc. 153)

2). * ORDER ON COUNTER-DEFENDANT KEY BANK NATIONAL

ASSOCIATION'S MOTION TO DISMISS AND NOTICE OF

JOINING PLAINTIFF BISMARK MORTGAGE COMPANY,

LLC'S MOTION TO DISMISS COUNTERCLAIM

Instr. #2010053567 Bk. 6458 Pg. 4072, (Doc. 152)

Together with the petitioners Irregularity Answer to

the proceedings in the Amended Motion to Dismiss "Proper

due process notice" of the Summary Final Judgment. That was

NOT PURSUIT to Rule 1.140(d). (see doc. 147)

As well as, the Respondent's waiver of defense. Were the

hearing was a Final Summary judgment, "Not" on the

pleadings or on the merits. Thus, NOT PURSUIT to Rule

1.140(h)(2). Waiver of Defenses.

Concluding that the actions were in excess of

jurisdiction and departing from the essential requirements

of procedure. And, that there was a material injury, that

is not remediable by a subsequent appeal. See certificate

of sale and certificate of title.

Irregularity in proceedings - Is ground of the motion

of Michael Mompierre, defendant, for a new trial. Pg. 5

The essential rights were denied to Michael Mompierre,

defendant and was prevented from having a fair trial of

this action by the following irregularity in the

proceedings of the court:

a). Due process, Rule 1.140(d).

b). Respondent's waiver of defense, Rule 1.140(h)(2).

And, statutory grounds, for the granting of a new trial:

a). Prejudicial misconduct of judge.

b). Exclusion of evidence.

c). Withholding of instructions.

ARGUMENT

The 5th. District Court of Appeals of Florida has Judicial

'Disability' to review; the Invalid Void Judgment Orders.

Of JUDGE JOHN V. DOYLE, OF THE CIRCUIT COURT OF THE 7th

JUDICAL CIRCUIT, IN AND FOR VOLUSIA COUNTY, FLORIDA GENERAL

JURISDICTION DIV. Trial Case #2009 11120 CIDL.

Furtherance, that the present case is an irregular

proceeding, where there has not been a trial for defense.

And that, the prejudice and equities favor granting a

New Trial. Because it is a means of protecting the

Petitioner's Rights, while ensuring proper and orderly

access to the judicial system.

Pg. 6

The Jurisdiction to review this matter is founded upon

Rule 9.030(b)(3), Florida Rules of Appellate Procedure, and

upon Article V, Section 3(b)(6), Florida Constitution.

That may review a United States Court of Appeals

which is determinative of the cause and for which there is

no controlling precedent of the supreme court of Florida.

Art. I. $ 21, Fla. Const. - Access to courts

The courts shall be open to every person for redress

of any injury, and justice shall be administered

without sale, denial or delay.

Am jur.2d $$71, new trial

The term "irregularity in the proceedings" of the court,

which is a generally recognized ground for a new trial,

generally relates to departures by the court, during the

trial of a case, from the due and orderly method of

disposition of a case, by which substantial rights have

been prejudiced or adversely affected. Lehner v. Berlin

Pub.Co., 211 Wis. 119, 246 N.W. 579, 86 A.L.R. 1284 (1933).

Federal Procedure, Removal of Actions $69.3

The state court in which an action was originally brought

need no longer have jurisdiction over the matter before

removal to federal court is permissible. The former

doctrine of derivative jurisdiction, according

Pg. 7

to which an action brought in a state court which lacked

jurisdiction over the action could not properly be removed

to federal court, was overruled by statute for actions

commenced on or after June 19th, 1986. Chivas Products Ltd.

v. Owen, 864 F.2d 1280 (6th Cir. 1988) .

Fla.R.Civ.P.1.140. PLEADINGS UNDER FL RULES OF CIVIL P.

Removal to Federal court deprives state court of

jurisdiction. Removal of state case to federal court is

effective when notice of removal is filed in state court,

retroactive to date when petition to remove was filed in

federal court. Preston v. Allstate Ins. Co., 627 So.2d 1322

(Fla. 3d DCA 1993).

U.S.C.A. Const. Amend. XIV - Due Process; Equal Protection

Section 1 - All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States, and subject to the

jurisdiction thereof, are citizens of the United States and

of the State wherein they reside. No State shall make or

enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall any-

State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person within

its jurisdiction the equal protection of the laws. Pg. 8

West#s florida digest 2d-349

Motion to vacate final judgment lies under rule that

court may relieve party from final judgment when final

judgment is void for lack of jurisdiction or proper

due process notice. U.S.C.A.Const. Amends. 5, 14; 31

West's F.S.A. Rules of Civil Procedure, rule 1.540(b)

(4). Gelkop v. Gelkop, 384 So.2d 195 (Fla.4d DCA1980).

West#s florida digest 2d-343

Trial court is restricted in vacating final judgment

or final order of dismissal to narrow grounds set

forth in rule providing for relief from judgments,

decrees or orders. West's F.S.A. RCP Rule 1.540.

Harrison v. La Placida Community Ass'n, Inc.,

665 So.2d 1138 (Fla. 4d DCA 1996).

CONCLUSION

Petitioner, Defendant, MICHAEL MOMPIERRE in response

to the courts SUA SPONTE. Showing herein, support why the

above entitled appeal should be heard and granted.

Requesting that; The Supreme Court of Florida, determine

that the "FINAL JUDGMENT OF FORECLOSURE, Instr. #2010053574

Bk. 6458 Pg. 4082" is a VOID JUDGMENT.

Pg. 9

Whereby, the petitioner seeks a writ of common law

certiorari to the lower tribunal:

1). Quashing the Order for FINAL JUDGMENT OF FORECLOSURE

Instr. #2010053574 Bk. 6458 Pg. 4082. And, Setting Off the

alleged award "288,307.49 + 2,577.50" attorney's fee.

2). Remanding a New Trial with an opportunity to amend

Claim and Counter Claim.

3). Reinstating case #2009 11120 CIDL of THE CIRCUIT COURT

OF THE 7th JUDICAL CIRCUIT, IN AND FOR VOLUSIA COUNTY,

FLORIDA GENERAL JURISDICTION DIV.

4). Deed Reformation to reflect the parties' prior

agreement. Official Records Book 6314, Page 2 978 of the

VOLUSIA County Records. And a Ratification of Indemnity and

Warranty Interest in Suretyship.

5). Possession of Homestead. And a detachiare, seizing and

setting aside of the property, in this entitled trial case.

And, any further relief that the Florida Supreme Court

view's proper in this appeal.

Dated : 7/15/2010

Michael Mompierre - Pro se, not an inmate

1790 Catalina Blvd., Deltona, Fl. 32738

(386) 215-3991

Pg. 10

CERTIFICATE OF SERVICE

I certify that a copy of this appeal has been furnished to:

Vivien Lurlene, Esquire

Bismark Mortgage Company, c/o Law Offices of David J. Stern

900 South Pine Island Road suite #400, Plantation, Fl.33324

Jeffrey A. Backman

KEYBANK NATIONAL ASSOCIATION, c/o ADORNO & YOSS

350 East Las Olas Blvd.suite #1700, Ft.Lauderdale, Fl.33301

By U.S. Mail on 7/15/2010.

Michael Mompierre - Pro se, not an inmate

1790 Catalina Blvd., Deltona, Fl. 32738

(386) 215-3991

CERTIFICATE OF COMPLIANCE

I hereby certify that font and font size used :

Font style used - Courier New

Font size - 12

Michael Mompierre - Pro se, not an inmate

1790 Catalina Blvd., Deltona, Fl. 32738

(386) 215-3991

Pg. 11

Office of the State Courts Administrator

FLORIDA SUPREME COURT

CASE Number:SC10-1010

MICHAEL MOMPIERRE

Petitioner

vs

5th. DISTRICT COURT

APPEAL # D510-623

BISMARK MORTGAGE COMPANY

Respondentl

and

KEY BANK NATIONAL ASSOCIATION

Respondent2

TRIAL COURT

JUDGE JOHN V. DOYLE

CASE # 2009 11120 CIDL

VOLUSIA COUNTY,TH

JUDICAL CIRCUIT

SUPPORTING AFFIDAVIT

By this declaration and signature below, MICHAEL

MOMPIERRE affirms in affidavit form.

That under penalties of perjury, I declare that I have

read the Brief for Appeal, Case Number: SC10-1010 and that,

the facts stated there in, are true.

Affiant's name

Michael Mompierre

NOTARY WITNESS,

Set my hand and Official Seal:

7-Notary Name date NOTARY PUBUC-STATE OF FLORIDA

jC"fr. Michelle Lynn Fowler5 «qB fCommission #DD589702X3J./ Expires: AUG. 28, 2010BONDED THRU M1ANTIC BONDING CO., INC.