1

IN THE SECOND DISTRICT COURT OF APPEALS ,

FOR THE STATE FLORIDA

CASE NO.

L.T. No.: No.16-000056AP-88B

Peter Stack Landmark Oaks Condo. Assn., Inc.

&

HUD v.

Appellant/Petitioner(s) Appellee/Respondent(s)

PETITION FOR SECOND TIER WRIT OF CERTIORARI

Comes now the Petitioner Peter Stack, petitioning this court for a second tier

writ of certiorari seeking to quash the county appellate court’s order confirming the

county court’s order to issue a writ of possession which departed from the essential

requirements of law, denied petitioner of statutory procedure ie: due process, since

the county court was without subject matter jurisdiction or monetary jurisdiction to

issue a writ of possession against petitioners.

The county appellate court affirmed the lower court’s decision based on the

wrong / incorrect law.

BASIS FOR INVOKING JURISDICTION

2

Petitioner respectfully invokes the jurisdiction of this court pursuant

to the Fla.R.App.P. 9.030 (b)(2)(B).

This circuit court of appeal has “certiorari jurisdiction” to review final

orders of a county court acting in its review capacity.

This petition is timely. The county appellate court denied Petitioner’s

Writ of Certiorari 08/01/2017.

This second tier certiorari is timely filed within 30 days of rendering

the denial for rehearing.

STANDARD OF REVIEW

The Standard of Review for a second tier certiorari petition

challenging the decision made by the county appellate court requires

assessing whether the county appellate and county court on which their

decision was based, afforded due process and applied the correct law in

reviewing the case, and whether their decision observed the essential

requirements of law.

“clearly established law” is not limited to questions of law that have

been settled. Rather :

“clearly established law” can derive from a variety of legal services,

includes recent controlling case law, rules of the court, statutes, and

3

constitutional law. This in addition to case law dealing with the same issue

of law, an interpretation or application of a statute, a procedural rule or a

constitutional provision may be the basis for granting certiorari review.”

Allstate Insurance Co. v. Kaklamanos 843 So. 2d 885

STATEMENT OF FACTS

1. HUD obtained the title to Frances Mann’s (hereafter referred to as

FM) property thru a non-judicial foreclosure of a reverse mortgage

02/11 using blank documents and robo-signing.

2. The owner of legal title to the property is in dispute and is being

litigated in case #11-006246-CO. This case is ongoing and

unresolved.

3. Case #11-006246-CO was an evicition complaint which was

voluntarily dismissed by court order at the request of Plaintiff /

POSNER 05/15/2012 per Fla.R.Civ.P. 1.420 defendants Peter Stack &

FM’s counterclaims still remain.

4. The fraudulently obtained non-judicial foreclosure of FM’s reverse

mortgage, and HUD’s ownership of title to the property is being

contested in defendant’s counterclaims which remain as required by

F.R.C.P. 1.420

4

5. Remaining also to be adjudicated is defendant’s 1.540. motion for

fraud on the court which needs to be resolved as per the appellate

court mandate 11/12/2014 prior to proceeding with the defendant’s

counterclaims and challenge to the ownership of the title which would

have to take place with a transfer to the circuit coiurt.

6. If Petitioners prevail with their counterclaims HUD would revert

back to the mortgagor and being the superior lien holder.

7. Landmark Oaks filed a foreclosure complaint against HUD for non-

payment of condo assessments which they stated were less than

$15,000.00 (the monetary limit of the court)

8. 10/10/2014 a default entered against HUD by the court clerk.

9. 06/29/2016, HUD transferred title to the property by Deed in Lieu of

Foreclosure.

10. Based on this Deed In Lieu of Foreclosure, Landmark Oaks motioned

the court for a Writ of Possession.

11. 08/07/2016 Filed was Petitioner’s / Defendant’s Motion to Strike

which included documentation of the lack of the court’s subject matter

jurisdiction and monetary jurisdiction.

12. 08/15/2016, 15 minute telephonic hearing on Plaintiff’s Motion for

Writ of Possession was held and again the lack of the court’s subject

5

matter jurisdiction and monetary jurisdiction was brought up by

Petitioner Peter Stack during the telephonic hearing.

13. 08/18/2016, The hearing for (only) Writ of Possession… (not

noticed) for Defendant’s Motion to Strike was scheduled for 15

minutes on 08/30/2016.

14. 08/30/2016, A scheduled 15 minute hearing on Motion for Writ of

Possession was held. Again, Pettioner Peter Stack, brought up the

lack of the court’s subject matter jurisdiction and monetary

jurisdiction and the fact an order rendered in which the court lacks

jurisdiction is void.

Instead of setting a hearing on the court’s jurisdiction before

proceeding further an order was issued stating: “Case # 11-6246-CO, a

case not controlling, nor pertinent to this instant action”

This was a title issue decision which is beyond the jurisdiction

of the county court & lies with the circuit court, which has

original jurisdiction.

Irregardless of the prior case #11-006246-CO Petitioner raised

title issues in their answer to the complaint and subsequent

pleadings which would preclude the county court from

6

adjudicating the case, which should have been transferred to the

circuit court.

Again there was no hearing set to adjudicate subject matter

jurisdiction and monetary jurisdiction.

15. 09/02/2016, Order of Recusal stating “Additional information has

since come to light that gives the court concern that in order to protect

the procedural due process rights of all parties involved and to insure

integrity and fairness of the proceedings the court must on its own

recuse itself from further consideration of all matters in this cause

The only due process rights involved were the court’s lack of

subject matter jurisdiction and monetary jurisdiction, the failure

to adjudicate this issue or set a hearing as required by legal

precedent in case law, and the fact the court made a ruling on a

prior case involving a title decision which is beyond its

jurisdiction.

16. 10/09/2016, Petitioner Peter Stack’s Motion for Relief From

Judgment. Again reviewing the county court’s lack of subject matter

and monetary jurisdiction.

7

17. 10/21/2016, Petitioner / Defendant Motion to Dismiss again

reviewing the lack of jurisdiction and fact an order rendered in which

the court lacks jurisdiction is void.

18. 10/25/2016 Petition for Writ of Prohibition was filed based on the

court’s lack of jurisdiction in order to quash the Writ of Possession

and failure to set a hearing to determine its jurisdiction and stop

before going further to establish jurisdiction.

19. 10/27/2016, 15 minute scheduled hearing on Writ of Possession and

Petitioner’s Motion to Strike.

20. 11/03/2016, Order granting Writ of Possession. Order denying

Defendant’s Motion to Strike – not noticed in setting a hearing. Order

denying Defendant’s Motion to Dismiss – not noticed in setting a

hearing. Petitioners / Defendant’s Motion to Strike the Writ of

Possession which was noticed but was not heard or adjudicated and no

order on this motion was issued.

21. 11/10/2016, Petition for Writ of Certiorari seeking to quash the

county court’s order for Writ of Possession.

22. 11/16/2016, Order denying Motion to Stay Writ of Possession.

23. 11/18/2016 Writ of Possession executed.

8

24. 11/18/2016,Writ of Prohibition denied since the court proceeded to

issue a Writ of Possession in spite of the jurisdictional challenge made

in the county appellate court with the Writ of Prohibition. Successor

judge did not stop and consider or adjudicate the court’s jurisdiction

as required in case law and was also brought up by previous judge.

25. 08/01/2017, Order and opinion per curium denied for Writ of

Certiorari.

26. 08/24/2017, Motion for Rehearing.

27. 10.05.2017, Order denying Motion for Rehearing filed and

rendered.

NATURE OF RELIEF SOUGHT

The Petitioner is seeking a finding that the county court and the

appellate court departed from the essential requirements of law,

applied the wrong / incorrect law and ignored case law precedents,

since Peter Stack & Frances Mann were never tenants of HUD or

Landmark Oaks under F.S. 83. Respondent misused an eviction

instead of an ejectment to remove petitioners from the property. Since

ejectment is the exclusive jurisdiction of the circuit court, as is title

9

issues which were also raised by the Petitoners, the county court

lacked subject matter jurisdiction to hear the case.

The county court failed to evaluate its monetary jurisdiction

with a meanful hearing, or an adjudication on record to establish its

jurisdiction in response to Petitioner’s challenge… Case law

precedent was ignored.

The county court lacked subject matter jurisdiction and

monetary jurisdiction and the county court acting in its appellate

capacity applied the incorrect law when it affirmed the county court’s

judgment of eviction and issued a Writ of Possession.

The failure of the county and county appellate court to consider

any of these jurisdictional issues, the failure of the county court to

hold a meanful hearing on jurisdiction constitutes a fundamental error

and departed from the essential requirements of law.

The foregoing is reviewable by this court on second tier

certiorari petition. The county court did not have subject matter

jurisdiction or monetary jurisdiction to issue a Writ of Possession /

eviction against the Petitoners and thus the Writ should be quashed

and the case transferred to circuit court.

ARGUMENT

10

I

LACK OF LANDLORD TENANT RELATIONSHIP AS PER

F.S. 83

AND TITLE ISSUES EXIST

The county court in its appellate capacity failed to apply the

correct law in affirming the county court’s judgment, as the county

court lacked subject matter jurisdiction to enter an eviction against the

Petitioners, Peter Stack and Frances Mann.

”Once the [party in possession of the real property] raised the issue of

a competing claim to title as an affirmative defense, it could no longer

be assumed that the case was a landlord / tenant matter within the

jurisdiction of the county court.”

Ali v. Matos Fla. L. Weekly Supp, 846 a (Fla Broward Cty. Ct. App

21, 2004) (finding that cause of action for ejectment is a remedy for

possessary claims where there is no landlord / tenant relationship and

that “county court does not have jurisdiction to hear ejectment

actions).

Toledo v. Escamilla, 362 So 2d 1028 (2007) in similar case to

this instant case, court granted a writ of certiorari because the county

court lacked subject matter jurisdiction to enter the final judgment of

11

eviction since the county court lacked subject matter jurisdiction to

resolve the issues before it [ie: competing claim to title] the decision

reached in county court constitutes fundamental error, a departure

from the essential requirements of law and justifies invocation of

[district] courts certiorari jurisdiction.

The eviction process is typically part of the foreclosure action

with the right of possession included in the judgment. After the

Certificate of Title is issued the owner files a Motion for Writ of

Possession.

When a person is in possession of a property and there is no

agreement for rent and therefore no landlord / tenant relationship an

ejectment is necessary.

This is predicated upon some claim whether frivolous or

meritorious that said person has some interest in the property that

transcend mere “possession”.

When this arises ejectment is needed and is governed by Fla.

Staute 66.

The circuit court has “exclusive original jurisdiction over

ejectment actions” F.S. 26.012 (2)(f)

12

Pro – Art Dental Lab, Inc. v. V-Strategic Group LLC, 959 So 2d 753

(Fla 4th

DCA 2007)

An eviction action is governed by Chapter 83 which is known

as Fla. Residential Landlord Tenant Act. (the Act) and applies to

situations where a landlord / tenant relationship exists which is

framed by agreement, oral or written to pay rent in some form.

Winning a judgement of foreclosure against HUD for non-

payment of assessments entitles an eviction procedure against HUD.

Frances Mann & Peter Stack were never tenants of HUD or

Landmark Oaks, but in spite of this Landmark Oaks intentionally filed

a complaint with an incorrect caption naming as Defendant Tenant 1

(Frances Mann) & Tenant 2 (Peter Stack)

A landlord / tenant relationship is a condition precedent to

seeking to remove a person from a premise under Section 83.59 (2)

which allows a landlord summary procedure in county court of

eviction.

Section 83.43 (4) defines “tenant” as any person entitled to

occupy a dwelling unit under rental agreement.

13

Section 83.43 (7) defines “rental agreement” as “any written

agreement or oral agreement if it is less duration than 1 yr. providing

for use and occupancy of premises.”

In this instant case, it is undisputed that there was no oral or

written “rental agreement”,

Therefore Peter Stack & Frances Mann are not “tenants” as

defined by “The Act”. The county court lacked subject matter

jurisdiction for eviction.

Frances Mann & Peter Stack asserted in their answers to the

complaint and subsequent pleadings that they were not tenants and

FM had a competing title claim to the property and there was

litigation in case #11-006246-CO of her counterclaims challenging the

validity of HUDs title.

This is a title issue but in spite of the county court’s lack of

jurisdiction for title issues, the court gave a ruling that the case was

not pertinent to the instant action. This title issue was beyond the

scope of the court.

Even if it stands, FM still presented a issue of competing claim

to title in her defense / answer, which has to be resolved in circuit

court.

14

The county court continued to assume & present Frances Mann

& Peter Stack as tenants in spite of multiple pleadings refuting this,

reminding the court of FM’s claim to the title of the condo because of

HUD’s wrongful foreclosure with blank documents, and robo-signing

and the failure of Landmark Oaks to prove that this eviction of

Frances Mann & Peter Stack was based on a landlord / tenant

relationship with a “rental agreement” as required by F.S.A. 83.41,

83.43(6), 83.43(7).

As a result, Landmark Oaks was never able to sustain an

eviction under F.S. 83 against Frances Mann and Peter Stack.

Nowhere to be found in the record is any supporting evidence

that FM & PS are tenants. That is because clearly they are not but

have been mischaracterized as tenants by Respondents to try and

control jurisdiction for eviction in the county court.

The 10/27/2016 hearing in which a Writ of Possession was

issued against FM & PS, the court was continuing the erroneous

characterization of Frances Mann & Peter Stack as tenants, even

though an eviction under Fla. Statute 83 could not be sustained and

the court lacked subject matter jurisdiction.

15

For eviction, there must be a landlord / tenant relationship by a signed

lease or if “tenant” paid rent in one form or another.

In this instant case neither of the above occurred.

Ejectment needs to be filed when a person living in the property states

they have some right, title or interest in the property, that is a legal claim to

the property.

Ejectment is the only recourse for an owner whose purpose is to

remove a non-rent paying person living in the property.

Ejectment needs to be filed in circuit court and is not governed by

summary procedure.

“An incorrect decision on subject matter jurisdiction is

fundamental error. It constitutes a departure from [the] essential

requirements of law, sufficient to justify invocation of [district]

court’s certiorari jurisdiction… thus the county court’s lack of subject

matter jurisdiction was properly raised in the circuit court for second

tier certiorari.”

Galen Offi, Inc. v. Arscott, 629 So. 2d 856 (Fla. 5th

DCA 1993)

The county court and the county appellate court used the wrong

/ incorrect law in coming to their decision.

II

COUNTY COURT LACKED MONETARY JURISDICTION

16

The county appellate court failed to apply the correct statutory law

and case law precedent in affirming the county court’s judgment, as the

county court lacked monetary jurisdiction to hear the case.

Questions of jurisdiction can be brought up at anytime. Rule 1.39(b)

“If at anytime it should appear a suit is pending in wrong court of any county

it may be transferred to the proper court within said county.”

PRECEDENT CASE LAW

“Fla. courts have constantly held that [s]ubject matter jurisdiction

cannot be created by waiver, acquiencense or agreement of parties or by

error or in advertence of the parties or their counsel, or by the exercise of

power by the courts.”

It is a power that arises solely by virtue of the law.”

84 Lumber Co. v. Cooper, 656 So. 2nd

1297, 1298 (Fla. 2d DCA 1994)

(quoting Fla. Exp. Tobacco Co. v. Dept. of Revenue, 510 So. 2d 936, 943

(Fla. 1st DCA)

“In determining whether jurisdictional amount for the[county court] is

met, valuation fixed by the pleadings is to be accepted as true if made in

good faith and not illusionary purpose of conferring jurisdiction.”

Neuman v. Brigman, 475 So. 2d 1247(Fla. 2nd

DCA 1955)

17

“The test of the jurisdiction of a court of equity is whether facts exist

at the time of commencement of the action sufficient to confer jurisdiction

on the court.”

Mutual Benefit Health and Accident Assoc. v. OH 151 Fla. 185, 9 So. 2d

283, 384 (Supreme Court of Florida)

“Regardless of what statement of damages is made in the ad domnum

clause of a complaint, such statement does not determine the jurisdiction of

the court if it clearly appears that the real demand or value of property is

otherwise than stated and ad damnum exceeds the real demand.”

Seaboard Airline Ry v. Maxey, 1512 Fla. 487 60 So. 353

“lack of good faith” must be the result of actual, not constructive

knowledge of wrong doing tantamount to dishonesty or bad faith.”

Barnett Bank of Palm Beach County, N.A. v. Regency Highland condo

Assoc., Inc. 452 So. 2d 587, 590 (Fla. 4th

DCA 1984)

Landmark Oaks, had actual knowledge at the time of filing their

complaint, that the assessments owed were more than the $15,000.00

monetary limit of the court. F.S. 34.01 (1)(c).

L.O. complaint 06/16/2014, lists the assessments owed to be $3585.00

thru 06/302014.

18

L.O. filed claim of lien 06/19/2013 with the court for assessments

04/2011 to 12/2012 of $8,295.00 for interest 01/2013 to 06/2013 of

$2382.00 totaling 13,223.63. This claim of lien is also effective for all

unpaid assessments due hereafter until fully paid plus interest and attorneys

fees. (exb. A)

Preceding filing 06/13/2013 lien, a letter with claim of lien sent to

HUD which included assessments from 09/2009 thru 06/2013 of $18,182.00

and interest of $5497.29, totaling $23,699.29.

This letter with a claim of lien secures the amounts set forth as well as

additional assessments, costs and interest. (Exb. B)

Second claim of lien filed with the court 02/14/2014, in spite of fact

first lien 06/19/2013 was still in force. The list of assessments 10/2013 to

12/2013 and 01/2014 to 02/2014 totaling $1089.00. (Exb. C)

Affidavit filed with the court 11/18/201 by Twila Anderson,

Landmark Oaks Collection Agent, states Defendant HUD has been

delinquent in payment of assessments owed to Assoc. since 10/2013 (“date

of delinquency”)

Total anounts have come due since the date of delinquency thru

11/2014 of $5580.00 with interest $583.67 for total $6153.67.

19

[EXHIBIT D]

This affidavit was not the original delinquency which occurred

09/2009/

In spite of the fact L.O. had a lien against the property filed

06/13/2013 which was still in effect for subsequent assessments, Respondent

filed a second lien misrepresenting the 2nd

lien as the original date of

delinquency to the court.

L.O.’s new lien claim was to establish the illusionary claim of

jurisdiction in the county court.

Landmark Oaks knew the actual amount of assessments owed, devoid

of interest, just based on their liens filed with the court of $1989.00

(02/2014) & 12,666.00 (06/19/2013) which when added to the other

assessments owed but not mentioned by L.O. of 07/2013thru 09/2013, for

$1191.00, and 03/2010 thru 03/2011 totaled $18, 597.00 which was beyond

the jurisdiction of the court.

TO SUMMARIZE

HUD recorded title to the condo property 04/08/2011.

Assessments without interest or other fees owed by HUD.

04/2011 to 12/2012…..$8295.00

01/2013 to 06/2013…..$2382.00

07/2013 to 09/2013…..$1191.00

10/2013 to 12 /2013.....$1989.00

01/2014 to 02/2014

20

03/2010 to 03/2011….. $4740.00 (as per Florida Statute 718.116)

($18,597.00)….. actual assessments owed by HUD at the time of Land

mark Oaks filing its foreclosure action.

Florida Statute 34.01 (1)(c) the monetary jurisdiction of the county court

has a limit of $15,000.00.

This was actual knowledge they had at the time Landmark Oaks filed their

complaint and it could not be construed that they had in “good faith put an

ad domnum amount of $1989.00 plus attorneys fees etc. before the court

This was to misrepresent to the county court that it had monetary

jurisdiction, even though they knew

that the assessments at the time of their filing a complaint had exceeded the

$15,000.00 monetary limit of the court and a claim of lien filed with the

court 06/19/2013, which covered all subsequent assessments owed was still

in effect.

Nowhere in the record, did Landmark Oaks reconcile the variable

amounts of assessments owed or show HUD had made any payment of

assessments prior to their filing their 06/16/2014 complaint .

All of the amounts of assessments owed by HUD from 04/2011 to

11/2014 were a continuum with no break with intermittent payments.

They were not aggregates but one unit of assessments owed by HUD

which had held title since 04/2011

21

The new lien, 02/14/2014 was set-up purely to artificially create

jurisdiction in county court.

Petitioners Frances Mann & Peter Stack repeatedly brought up

the lack of good faith by Landmark Oaks in amount put in

controversy.

Despite asking the court to rule on its monetary and subject

matter jurisdiction in pleadings and at hearings (08/30/2016) this was

ignored by the court and no hearing was set to determine the county

court’s jurisdiction.

There is no statement on record where the court delineated

why it believed it had jurisdiction.

PRECEDENT CASE LAW

“The true test of the court’s monetary jurisdiction depends upon

the amount claimed and put in controversy in good faith. Thus if

court or counsel questions the monetary jurisdiction and it appears

that the amount claimed in good faith is without the jurisdiction of the

court, the case could merely be transferred to the proper court

regardless of the content of the ad damnum clause.”

McCotter Motor Corp. v. Woody, 184 So. Rule 1.13(j) & 1.39

F.R.C.P. 30 F.S.A.

22

“Failure to observe the essential requirements of law means

failure to accord due process of law within the contemplation of the

constitution or commission of an error so fundamental in character as

to totally infect the judgment and render it void.”

Haines City Community Dev. v. Hegis, 658 So. 2d 523, Fla. 1995

Florida Supreme Court

“The required “departure from the essential requirements of

law” means something far beyond legal error, it means an inherent

illegality or irregularity, an abuse of judicial power, an act of judicial

tyranny perpetrated with disregard of procedural requirements

resulting in a gross miscarriage of justice. The writ of certiorari

properly issues to correct illegality but not legal error.

Jones v. State, 477 So. 3d 566, 569 (Fla. 1985)

The trial court ignored and did not set hearings to establish its

jurisdiction, despite multiple pleadings and at a hearing 08/30/2016,

where lack of jurisdiction was brought to the court’s attention by

Petitioner Peter Stack.

In spite of this no hearing to determine the court’s jurisdiction

was set only the county court’s ruling on a title issue. That case #11-

006246-CO was not relevant to this instant case. This was beyond the

23

county court’s subject matter jurisdiction, since only title issues are

the exclusive jurisdiction of the circuit court.

There was no setting up of an inquiry on the court’s monetary

jurisdiction when it was brought up by Petitioner at 08/30/2016

hearing. Case law requires this before proceeding further.

Instead, another hearing of 15 minutes was set up for

10/27/2017 to issue a Writ of Possession.

Without the required determination of jurisdiction before

proceeding further, the judge on 09/02/2016 recused herself citing “ in

order to protect the procedural due process rights of all the parties

involved and to insure the integrity and fairness of proceedings.”

Subsequent judge did not stop and establish court’s jurisdiction

and went ahead with a hearing and issuing a Writ of Possession totally

ignoring prior judge’s recusal order.

Subsequent judge was aware of jurisdictional challenges made

by the Petitioner in the 08/30/2016 hearing, in Motion to Stay & a

Writ of Prohibition filed by Petitioner all dealing with court’s lack of

jurisdiction but the court went ahead anyway and held a hearing

issuing a Writ of Possession without stopping to evaluate the court’s

24

jurisdiction as required by precedent in case law. See Exhibit I (1thru

4), see Statement of Facts of this instant pleading (11 thru 24).

PRECEDENT CASE LAW

English v. McCrary, 348 So. 2d 293 (1977)

“When at any time or any mannerit is in good faith represented

to the court by a party ___ that it has not jurisdiction, the court will

examine the grounds of its jurisdiction before proceeding further.”

“may inquiry into the correctness of the averment”

“ a court cannot pass on its own existence as a court.”

“___ where the question of jurisdiction is one of law, a court

cannot by an erroneous decision acquire jurisdiction which it has not,

or divest itself which it has.”

“A clear distinction is drawn between assumption of

jurisdiction to which the court has no legal claim and erroneous

exercise of jurisdiction with which it is invested.”

State exrel. Rheinauer v. Malone, 40 Fla. 129, 23 So. 575, 576 (1898)

This is not erroneous exercise of jurisdiction but by law court

did not have jurisdiction to hear the case.

Nowhere on the record is there a court order establishing the

court’s jurisdiction or a meaningful hearing scheduled to determine

25

jurisdiction in spite of the fact Petitioners provided irrefutable

evidence that this instant case should transferred to circuit court.

FAILURE TO HOLD A HEARING ON ITS MONETARY

JURISDICTION AND TRANSFER TO CIRCUIT COURT IS

IGNORING CASE LAW PRECEDENT

“Order denying transfer to circuit court, the trial court departed

from the essential requirements of law based on the trial court’s own

determination of whether it had jurisdiction, without hearing or

decision on record.”

Townsend v. Asset Acceptance Corp., 050102 AP B, Fla. 6th Circuit

Court App. Ct Dec 6, 2006

CASE LAW PRECEDENT

“The duty of a trial court judge to apply to admitted facts a

correct principle of law is such a fundamental and essential element of

the judicial process that a litigant cannot be said to have had the

remedy by due course of law guaranteed by Section 4 of the

Declaration of Rights of our Constitution, FS. A. , if the trial judge

fails or refuses to perform that duty--- And, indeed, it is unthinkable

that the court, in the exercise of its supervisory jurisdiction over other

courts could not compel adherence to a principle of law heretofore

26

established by this court in the unlikely event that a trial judge should

deliberately and consciously refuse to follow such decision, even

though the trial judge’s arbitrarily erroneous actions in this respect

had been approved and affirmed by a circuit court on appeal.”

Matthews v. Metropolitan Life Insurance Co. 89 So. 2d 641 (Fla.

1956)

In a second tier Certiorari “appellate court’s decision is so

erroneous that justice requires that it be corrected.”

Housing Auth. Of City of Tampa v. Burton, 874, So. 2d 6 (Fla. Dist.

Ct. Appl 2004)

III

HARM

Let us not forget Petitioner Frances Mann was 101 years old when she

was forcibly evicted by the court that had no subject matter

jurisdiction or monetary jurisdiction to issue a Writ of Possession

refused to hold a meaningful hearing to evaluate the jurisdictional

issues brought up by Petitioners.

Respondents had the Petitioner, 101 yr, old Frances Mann

removed from her home of 30 years, seized and removed all of her /

their property and provided no subsequent access in violation of F.S.

27

715.105 & F.S. 715.106 which requires a notice to be sent out stating

the right to reclaim property, that specifies where to claim, costs of

storage, timeframe for picking it up and an inventory.

This grab and disposal was done in spite of fact Peter Stack &

Sandra Mann had notified Landmark Oaks that property in the condo

was not abandoned and they wished to retrieve it.

Peter Stack sent an email to Landmark Oaks attorneys

on11/21/2017, three days after removal (Exhibit E). On 12/14/2016,

Sandra Mann sent a certified letter to L.O. president Thomas

Sandhoff, stating the property in condo was not abandoned and she

wished to retrieve it and was currently hospitalized and wished to set-

up a time to do so. (Exhibit F & G)

Landmark Oaks had Peter Stack’s email through their attorneys

and court docket and Peter Stack’s and Sandra Mann’s old and new

address where mail, at that time, was forwarded to a P.O. Box.

Sandra Mann, also gave and additional address in Longwood, FL

where she could be reached.

There was no response from Landmark Oaks or HUD who had

taken back the property by quick claim deed.

28

After entering a Writ of Possession, remaining property is not

owned by the title holder (re: Landmark Oaks / HUD) but is still the

property of Petitioners.

Not providing access, keeping property and not following F.S.

715.105 and 715.106 is theft.

Irreparable injury means injury “whether great or small” which

is not repairable and is not able to be repaired or redressed in a court

of law by an award of money damages.

AirAmbulence Network, Inc. v, Floribus, 511 So. 2d 702, Fla.

3rd

DCA (1987) F,S. 542.37

101 year old Petitioners Frances Mann & Peter Stack cannot be

compensated for the mental and physical stress of being forced from

her / their home, having her / their possessions stolen including

collection of 150 year old family heirlooms & pictures and denied

access to medications and medical equipment.

This is irreparable harm which has resulted in a miscarriage of

justice which is ongoing.

Landmark Oaks / HUD have persisted in bouncing the title to

the condo up and back between them listing the property for sale at

$127,403.00 in effect to complicate the legal situation and make it

29

extremely difficult for FM to retrieve her title and Challenge HUD in

court.

This is a miscarriage of justice that is clearly unfair and

improper, perpetrated against a 101 year old pro se litigant who had

her home of 30 years taken in a wrongful foreclosure of a reverse

mortgage by HUD using blank documents & robo signing and then by

Landmark Oaks in a county court which did not have subject matter

jurisdiction or monetary jurisdiction to hear the case. This is properly

raised by invoking certiorari review in this court. (see detailed

discussion on pages 1-5 of Reply to Respondent HUD’s Response to

my Petition for Writ of Certiorari. 07/10/2017 Exb. H) which has

resulted in miscarriage of justice which is ongoing.

CONCLUSION

“It seems to be the settled law of this state that the duty of a

court to apply to admitted facts a correct principle of law is such a

fundamental and essential element of the judicial process that a

litigant cannot be said to have had the remedy by due course of law…

if the judge fails or refuses to perform that duty.

State v. Smith, 118 So.2d 792, 795 (Fla. 1st Dist. Appt. 1966)

30

The Petitioner is requesting this court to find that the county appellate

court in affirming the lower court’s decision departed from the essemtial

requirements of law, applied the wrong / incorrect law and ignored case law

precedents with their decision.

Therefore, as the county court lacked subject matter jurisdiction and

monetary jurisdiction, Petitioner Peter Stack requests this court to grant this

petition quash the county appellate court’s opinion and instruct the county

appellate court to enter an order reversing the county court’s judgment of

issuing a Writ of Possession / eviction and transfer this action to circuit court

pursuant to F.R.C.P. 1.060(a)

DATE: FRI 03 NOVEMBER 2017

By: /s/Peter G. Stack

Peter G. Stack

Post Office Box 530733

St. Petersburg, FL 33747

727-698-7383 (p.garrett.stack@gmail.com)

31

CERTIFICATE OF SERVICE

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

furnished via electronic mailing to Stephan C. Nikoloff

(Steve@attorneyjoe.com) and Michael Posner (Mjposner@warddamon.com)

this Friday the 3rd day of November 2017.

DATE: FRI 03 NOVEMBER 2017

By: /s/Peter G. Stack

Peter G. Stack

Post Office Box 530733

St. Petersburg, FL 33747

727-698-7383 (p.garrett.stack@gmail.com)

CITATIONS

TABLE OF AUTHORITIES, STAUTES AND RULES

ON WHICH THIS WRIT IS BASED

Allstate Insurance Co. v. Kaklamonos, 843 So. 2d 885

Ali v. Matos, 11 Fla. L. Weekly Supp., 846 a (Fla. Broward Cty. CT Apv.

21 2004)

Toledo v. Escamilla, 362 So, 2d 1028 (2007)

Pro-Art Dental Lab, Inc. v. V-strategic Group, LLC, 959 So. 2d 753

(Fla. 4th

DCA 2007)

Galen Offl., Inc. v. Arscott, 629, So. 2d 856 (Fla. 5th DCA 1993)

84 Lumber Co. v. Cooper, 656 So. 2d. 1297, 1298 (Fla. 2d DCA 1994)

Fla. Exp. Tobacco Co. v. Dept. of Revenue, 510 2d 936, 943 (Fla. 1st DCA)

Neuman v. Brigman, 475 So. 2d 1247(Fla. 2nd

DCA 1955)

32

Mutual Health and Accident Assoc. v. OH, 151 Fla. 185, 9 So. 2d 283, 384

(Supreme Court Fla.)

Seaboard Airline Ry v. Maxex, 1512, 64 Fla. 487 60 So. 353

Barnett Bank of Palm Beach County N.A. v. Regency Highland Condo

Assn., Inc. 452 So. 2d 587, 590 (Fla. 4th DCA 1984)

McCotter Meter Comp. v. Woody, 184 So. 2d 925 (Fla. Dist. Ct)

Haines City Community Development v. Hegii, 658 So. 2d 523, Fla. 1995

Fla. Supreme Court

Jones v. State, 477 So. 2d 566,569 (Fla. 1985)

English v. McCrary 348 So. 2d 293 (1977)

Townsend v. Asset Acceptance Corp., 05-0102 AP-88 B, Fla. 6th Circuit

Court App. Ct Dec. 6, 2006

Housing Authority of the City of Tampa v. Burton, 874 So. 2d 6 (Fla. Dist.

Ct. of Appeal 2004)

Matthews v. Metroplitan Life Insurance Co., 89 So. 2d 641 (Fla. 1956)

Air Ambulance NetworkInc. v. Floribus, 511 So 2d 702, Fla. 3d DCA

(1987)

State v. Smith, 118 So. 2d 792, 795 (Fla. 1st Dist. Appl. 1966)

RULES

Fla.R.App.P. 9/030 (b)(2)(B)

Rule 1.39 (b)

Rule 1.13(j)

1.39

Rule 1.060 (a)

Rule 1.540

Rule 1.420

33

STATUTES Fla. Statute 66

Fla. Statute 26.012 (2)(f)

Fla. Statute Chapter 83 (Fla. Residential Landlord Tenant Act (The Act))

F,S. 83.43 (4)

F.S. 83.43 (7)

F.S. 83.41

F.S.83.43 (6)

F.S. 30

F.S. 34.01(1)(c)

F.S. 715.105

F.S. 715.106

F.S. 542.37

F.S. 718.116

EXHIBITS

Exhibit A

06/19/2013: Claim Lien Total: $13, 203.63

Exhibit B

06/04/2013:: Letter $23,179.91

Exhibit C

02/14/2014: Claim Lien $1989.00 / $2636.76

Exhibit D

Affidavit of amount due of Twila Anderson

Exhibit E

Exhibit of Pages 18, 19, 20 of Reply to Respondent HUD

Exhibit F

Sandra Mann’s letter to Thomas Sandhoff

Exhibit G

Certified Mail Receipt

34

Exhibit H

Pages 1-5 of Reply to HUD’s Response to my Petition for Writ of Certiorari

07/10/2017

Exhibit I

1 thru 4 Notice of Hearings

11/2/2017 IMG_20171101_161340.png

https://mail.google.com/mail/u/0/#inbox/15f79b912b36602f?projector=1 1/1

Exb. A

11/2/2017 IMG_20171101_161330.png

https://mail.google.com/mail/u/0/#inbox/15f79b9b7d4850d2?projector=1 1/1

Exb. B

11/2/2017 IMG_20171101_153416.png

https://mail.google.com/mail/u/0/#inbox/15f79ba8f79eed87?projector=1 1/1

Exb. C

11/2/2017 IMG_20171101_184010.png

https://mail.google.com/mail/u/0/#inbox/15f79c3a1f27d0e8?projector=1 1/1

Exb. D1

11/2/2017 IMG_20171101_184016.png

https://mail.google.com/mail/u/0/#inbox/15f79c3a1f27d0e8?projector=1 1/1

Exb. D2

11/2/2017 IMG_20171101_160848.png

https://mail.google.com/mail/u/0/#inbox/15f79c6108fdc94f?projector=1 1/1

Exb. E 2nd Tier Cert.

11/2/2017 IMG_20171101_160855.png

https://mail.google.com/mail/u/0/#inbox/15f79c6108fdc94f?projector=1 1/1

Exb. F

11/2/2017 IMG_20171101_160859.png

https://mail.google.com/mail/u/0/#inbox/15f79c6108fdc94f?projector=1 1/1

Exb. G

11/2/2017 IMG_20171101_185048.png

https://mail.google.com/mail/u/0/#inbox/15f79ca682726c77?projector=1 1/1

Exb. H

11/2/2017 IMG_20171101_185055_1.png

https://mail.google.com/mail/u/0/#inbox/15f79ca682726c77?projector=1 1/1

Exb. H

11/2/2017 IMG_20171101_185059.png

https://mail.google.com/mail/u/0/#inbox/15f79ca682726c77?projector=1 1/1

Exb. H

11/2/2017 IMG_20171101_185105.png

https://mail.google.com/mail/u/0/#inbox/15f79ca682726c77?projector=1 1/1

Exb. H

11/2/2017 IMG_20171101_185111.png

https://mail.google.com/mail/u/0/#inbox/15f79ca682726c77?projector=1 1/1

Exb. H