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IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN A:ND FtjRLEE COUNTY, FLORIDA ~

r-CIVIL ACTION

WASHINGTONMUTUALBANKFIKJAWASHINGTON MUTUAL B~ FASUCCESSOR BY MERGER TO BANK UNITED,FSB FIKJA BANK UNITED OF TEXAS, FSPlaintiff,

vs.CASE NO: 07-CA-11562DIVISON: 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'SNOTICE OF VOLUNTARY CASE DISMISSAL AND REINSTATE CASE NO: 07-CA-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 for-

summary judgment. Sanctions should be imposed on the plaintiff for contempt of court

r>.l '

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

- illegal substitute counsel Brian Hummel at Defendant's Swnmary Judgment Hearing.

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

-r=; 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.

;;rb~L . Bradshaw18291 Useppa Rd.Ft Myers, FL 33912Ph# 239-770-7393

~\

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 GroupP.L P.O. Box 25018 Tampa, Florida 33622-5018 and to Kiersten Jensen Esq.,Echevarria, Codilis & Stawiashy of9119 Corporate Lake Dr. 3rd Floor Tampa, Florida33634 on lae /Y 2008.rvt Y9

IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FORLEE COUNTY, FLORIDA r-..)

~~~ ~ ~ ~

~~.~~ - .~

:; ---,\ p ~ ~~1-CASE NO: 07-CA-1l562DIVIS ON: L'11-~ -,3

9 .--14

~/

CIVIL ACTION

WASHINGTON MUTUAL BANK F!KJAWASHINGTON MUTUAL BANK, FASUCCESSOR BY MERGER TO BANK UNITED,FSB FIKIA BANK UNITED OF TEXAS, FSPlaintiff,

vs.

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

BRIEF IN SUPPORT OF

DEFENDANT'S MOTION TO DISREGARD JUDGE ADAMS ORDER DISMISSINGTHE CASE WITHOUT PREruDICE AND MOTION TO STRIKE PLAINTIFF'S

NOTICE OF VOLUNTARY CASE DISMISSAL AND REINSTATE CASE NO: 07-CA-11562 and ENTER DEFAULT ON DEFENDANT'S MOTION FOR SUMMARY

JUDGMENT.< -

1. On September 9,2007 plaintiff WASHINGTON MUTUAL BANK F!KJA

WASHINGTON MUTUAL BANK, FA SUCCESSOR BY MERGER TO BANK

UNITED, FSB FIKIA BANK UNITED OF TEXAS, FS, represented by attorney

Kiersten Jensen of the law firm of, Echevarria, Codilis & Stawiaski of Tampa, filed a

Complaint and Lis Pendens naming defendant Larry R. Bradshaw, and other defendants

in a foreclosure action cited in case caption above. Summons was served on defendant

Larry R. Bradshaw on September 29, 2007. Defendant timely answered on October 17,

2007.

2. On January 18,2008 an attorney not of record, Holland Fintel of the Law Firm of

Florida Default Law Group filed Plaintiff's Motion for Swnmary Judgment a "sham

Pleading" which deprived the court of jurisdiction to make a favorable ruling for the

plaintiff. Defendant filed a motion to strike the sham pleading which was denied but an

order was issued by the court for the plaintiff to reconcile the issue of substitute counsel

which plaintifIhas refused to comply with that order.

Florida Rule of Judicial Administration 2.060 (h), entitled"Substitution of Attorneys," directs that, although "[a]ttorneysfor a party may be substituted at any time by order of court[,]n]o substitute attorney shall be permitted to appear in theabsence of an order." That rule further directs that" [t)heclient be notified in advance of the proposed substitutionand consent in writing to the substitution[,] [which]consent shall be filed with the court."

3. Florida Appellant Courts have consistently ruled that pleading filed by illegal

substitute counsel are a nullity. See Bortz v. Bortz, i_,1III (Fla. 1st DCA 1996),

We disregard the Department of Corrections' motion/or rehearing or certification, which

wasfiled by an attorney who is not of record in this case, because it is a legal nullity. Ther=.

Florida Supreme Court has confirmed that ruling, by stating that "noncompliant pleadings

a nullity. See BOCA BURGER, INe. v. FORUM, SCOJ-J830 (Fla. 2005) July 7,2005. "...

with regard to compliance with the judicial administration rules which multipleother courts have

found to operate to render noncompliant pleadings a nUllity.See Hicks v. Hicks,~11l&1i1mi

(Fla. 5th OCA1998); Pasco County v. Quail HollowProps. Inc., 693 So. 2d 82 (Fla. 2d OCA

1997); Bortz v. Bortz. 675 So. 2d 622 (Fla. 1st OCA1996).

4. When striking the voluntary dismissal the court reinstates the underlying case and

Lis Pendens. See BLACKPOOL ASSOC. v. SM-106, 839 So.2d 837 (Fla.App. 4 Dist.

2003)

.r>Case Nos. 4002-1930,4002-1974.4002-1978,4002-2081. and 4002-2219

Opinion filed March 5, 2003

... prejudice. When striking the voluntary dismissal, the trial court also reinstated theunderlying case and the lis pendens. We deny the challenges to that order as no substitution ofcounsel 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 alsogrant a default on defendants motion set for hearing on July7, 2008 @ 3:30 PM fordismissal with prejudice or in the alternative summary judgment because plaintiff was notin 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 had

not filed the Notice to Voluntarily Withdraw required by Florida Rules of Judicial1---....

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

i/""\

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 GroupP.L. P.O. Box 25018 Tampa, Florida 33622-5018 and to Kiersten Jensen Esq.,Echevarria, Codilis & Stawiashy of9119 Corporate Lake Dr. 3rd Floor Tampa, Florida33634 on :81& /Z" 2008.

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