Lee County Defendant's Motion to Disregard Judge Adams order - Writ of Mandamus Exhibit P-3

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Writ of Mandamus Exhibit P-3 Brief in Support - Defendant's Motion to Disregard Judge Adams Order Dismissing the Case Without Prejudice and Motion to Strike Plaintiff's Notice of Voluntary Dismissal and Reinstate Case NO:07-CA-11562 and Enter Default on Defendant's Motion for Summary Judgement

Transcript of Lee County Defendant's Motion to Disregard Judge Adams order - Writ of Mandamus Exhibit P-3

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IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN A:ND FtjR LEE COUNTY, FLORIDA ~ rCIVIL ACTION

WASHINGTONMUTUALBANKFIKJA WASHINGTON MUTUAL B~ FA SUCCESSOR BY MERGER TO BANK UNITED, FSB FIKJA BANK UNITED OF TEXAS, FS Plaintiff, vs.-,

CASE NO: 07-CA-11562 DIVISON: L

LARRY R. BRADSHAW, et aI, Defendant(s).

----------------------------------------------------~/DEFENDANT'S MOTION TO DISREGARD mDGE ADAMS ORDER DISMISSING THE CASE WITHOUT PREJUDICE AND MOTION TO STRIKE PLAINTIFF'S NOTICE OF VOLUNTARY CASE DISMISSAL AND REINSTATE CASE NO: 07CA-11562 and ENTER DEFAULT ON DEFENDANT'S MOTION FOR SUMMARY mDGMENT Defendant, Larry R. Bradshaw, moves this court to disregard the illegal order issued by Judge Adams dismissing the case without prejudice and moves the court to strike plaintiff's notice of voluntary case dismissal and reinstate case no: 07-CA-11562 and Lis Pendens and enter default on defendants motion for summary judgment and sanctions should be imposed on plaintiff for contempt of court, and states in support;

1.

The court was without jurisdiction to entertain plaintiff s verbal notice to dismiss,

because of illegal substitution of counsel, and therefore this court should disregard judge Adams order dismissing the case without prejudice, strike plaintiff s post hearing written notice of voluntary case dismissal, and enter a default on defendant's motion forsummary judgment. Sanctions should be imposed on the plaintiff for contempt of court

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wherein plaintiff failed or refusal to correct illegal substitute counsel as ordered by the court on April 1, 2008, case management conference. 2. The court was without subject matter jurisdiction wherein the plaintiff's Notice of

Voluntary Case Dismissal filed by illegal substitute counsel on July 9, 2008 cites Florida Statute 702.07 as the authority for their Notice of voluntary case dismissal. Florida Statute 702.07 grants power to the court and judge to set aside foreclosure decree before sale of property. Florida Statute 702.07 is not applicable in this case, because there has been no deficiency decree or :final adjudication on the merits, therefore the court is without subject matter jurisdiction to grant plaintiffs verbal Notice to Dismiss made by Swnmary Judgment Hearing.

- illegal substitute counsel Brian Hummel at Defendant's

3.

The court erred by granting plaintiff's verbal notice of dismissal at the hearing on

defendants motion to Dismiss with prejudice or in the alternative Summary Judgment because the court was without jurisdiction to entertain plaintiff's verbal Notice of Dismissal (1). Pursuant to Florida Rules of Civil Procedure 1.420 (1)(A) because no notice was served nor was not served before hearing on Summary Judgment. Florida Rules of Civil Procedure 1.420 (1)(A) states; @ (A) "before trial by serving, or during trial by stating on the record, a notice of dismissal at any time before a hearing on motion of summary judgment, ... " and (2). Florida Rules of Civil Procedure 1.100(b) states; ... All notices of hearing shall specify each motion or other matter to be heard". The only motion proper before the court at the 3 :30 PM hearing was defense Motion to dismiss with prejudice or in the alternative Motion for Summary Judgment.

SUMMARY

Plaintiff has been represented by illegal substitute counsel since January 18,2008 and should be held in contempt of court, for violating a court order April 1, 2008 to reconcile counsel of record. All Plaintiff's motions and notices filed after January 18, 2008 were legal nullities because of illegal substitution of counsel. Plaintiff was not in appearance or represented by legal counsel at defendant's Summary Judgment

Hearing therefore summary judgment should be granted to defendant by default. The court is deprived of jurisdiction where plaintiff's notice to voluntarily Dismiss Case, cited Florida Statute that is not applicable to Rule 2.060(h). The erroneous citing and filing of the Notice of Voluntary Case Dismissal as an instrument under F.S. 695.26 appears to be done in bad faith, apparently attempting to perpetrate a fraud on the defendant by citing Florida Statute 702.07 in the Notice of Voluntary Dismissal and filing the facially fatal document as an instrument in conveyance, assigned, encumbered, or otherwise disposed. And also, filing was not satisfied by written notice before hearing on Summary Judgment. Pursuant to hereafter cited rulings of the Florida Appeals and Supreme Court[s], this court was deprived of jurisdiction to make any ruling favorable for the plaintiff after

January 18,2008 because of illegal substitute counsel. The record clearly reveals that attorney of record, Kiersten Jensen abandoned the case and plaintiff, now in contempt of court, has refused to reconcile the illegal substitution of counsel even after, being ordered - by this court on April I, 2008 to do so.

RELIEF REQUESTED

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WHEREFORE,

defendant request that this court disregard the Adams order to

dismiss the case without prejudice, strike plaintiff's notice of voluntary case dismissal and reinstate case no: 07 -CA-11562 and Lis Pendens and enter default on defendants motion for summary judgment and impose sanctions on plaintiff for contempt of court.

L . Bradshaw 18291 Useppa Rd. Ft Myers, FL 33912 Ph# 239-770-7393

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CERTIFICATE

OF SERVICE

I, Larry Bradshaw, hereby certify that a true and correct copy of the foregoing has been sent by U.S. Mail to: Hollan Fintel Esq., Cindy Runyan Esq., Florida Default Law Group P.L P.O. Box 25018 Tampa, Florida 33622-5018 and to Kiersten Jensen Esq., Echevarria, Codilis & Stawiashy of9119 Corporate Lake Dr. 3rd Floor Tampa, Florida 33634 on lae /Y 2008.

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IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR LEE COUNTY, FLORIDA r-..) CIVIL ACTION~~~ ~ ~

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WASHINGTON MUTUAL BANK F!KJA WASHINGTON MUTUAL BANK, FA SUCCESSOR BY MERGER TO BANK UNITED, FSB FIKIA BANK UNITED OF TEXAS, FS Plaintiff, vs.

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CASE NO: 07-CA-1l562 DIVIS ON:

LARRY R. BRADSHAW, Defendant( s).

et al,

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BRIEF IN SUPPORT OF DEFENDANT'S MOTION TO DISREGARD JUDGE ADAMS ORDER DISMISSING THE CASE WITHOUT PREruDICE AND MOTION TO STRIKE PLAINTIFF'S NOTICE OF VOLUNTARY CASE DISMISSAL AND REINSTATE CASE NO: 07CA-11562 and ENTER DEFAULT ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

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... prejudice. When striking the voluntary dismissal, the trial court also reinstated the underlying case and the lis pendens. We deny the challenges to that order as no substitution of counsel was authorized. See Fla.R.Jud.Admin. 2.060(h); Hicks v. Hicks,I1~"1:if'~ (Fla. 5thDCA 1.998). Upon the court reinstating the case and Lis Pendens the court should also grant a default on defendants motion set for hearing on July7, 2008 @ 3:30 PM for dismissal with prejudice or in the alternative summary judgment because plaintiff was not in appearance and therefore waved their defense of the motion.

5.

Sanctions should be imposed on the plaintiff and plaintiff counsel for refusing to

comply with a court order. Plaintifffailed or refused to comply with an order of this court to rectify the illegal substitution of counsel, and continues to show contempt of the rules of court, knowing the plaintiff was not proper before the court at Defendant's Summary Judgment Hearing set for 3:30 PM July 7,2008, asked Judge Adams, who was sitting in for Judge Fuller, who was sitting in for Judge Steinbeck, via yet another illegal substitute counsel Brian Hummel, to dismiss the case without prejudice, even though plaintiff had1---....

not filed the Notice to Voluntarily Withdraw required by Florida Rules of Judicial Administration 2.060(h), before the Summary Judgment Hearing and instructions issued in the Judicial Memorandum filed on 6/20/2008 by Judge Steinbeck specifically addressing the proper procedures for Voluntarily Withdrawal pursuant to Rule 2.060 (h) and instructing that the court would not dismiss without hearing on plaintiff's Motion to Dismiss that Defendant Moved to Strike as a Sham pleading.

Remedy Requested

Wherefore, this court should disregard the Adams court order dismissing the case without prejudice as a procedural nullity and the case should be reinstated including Lis

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Pendens and a default should be entered for defendant on motion to Dismiss with prejudice or in the alternative Summary Judgment.

CERTIFICATE

OF SERVICE

I, Larry Bradshaw, hereby certify that a true and correct copy of the foregoing has beensent by U.S. Mail to: Hollan Fintel Esq., Cindy Runyan Esq., Florida Default Law Group P.L. P.O. Box 25018 Tampa, Florida 33622-5018 and to Kiersten Jensen Esq., Echevarria, Codilis & Stawiashy of9119 Corporate Lake Dr. 3rd Floor Tampa, Florida 33634 on :81& /Z" 2008.

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