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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.
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