IN THE SUPREME COURT OF FLORIDA

CASE NO.

KENNETH E. PICKENS

Petitioner -

HOUSEHOLD FINANCE HI, ET. AL.

Respondent

On Petition for Discretionary Review of a Decision of the

Fifth District Court of Appeals, Case No. 5D11-4563

PETITIONER, KENNETH E. PICKENS

BRIEF ON JURISDICTION

KENNETH E. PICKENS, pro-se2201 Rosewood DriveMelbourne Beach, FL 32951Tel. (321) 409-1216Email: pickensk@hotmail.com

TABLEOFCONTENTSPage No.

TABLE OF CONTENTS i

TABLE OF AUTHORITIES ii

I. STATEMENT OF THE CASE 1

II. SUMMARY OF ARGUMENT 2

A. Florida Rules ofAppellate Procedure Rule 9.030(a)(2)(C) 2B. Florida Rules ofAppellate Procedure Rule 9.030 (a)(2)(A)(iv) 3

III. ARGUMENT 3

A. Florida Rules ofAppellate Procedure Rule 9.030(a)(2)(C) 31. Lack ofEffective Debt Validation 32. Summary Judgment Void pending Jurisdictional Challenge 5

B. Florida Rules ofAppellate Procedure Rule 9.030 (a)(2)(A)(iv) 61. Summary Judgments are void 62. Summary judgments were premature 8

IV, CONCLUSION 9

V. CERTIFICATE OF SERVICE 11

VI. CERTIFICATE OF COMPLIANCE 12

APPENDIX 13

Page i

TABLE OF AUTHORITIES

Federal Cases

Baker v. G.C. Servs. Corp., 677 F.2d 775, 778 (9' Cir. 1982) 4

Heintz v. Jenkins, 514 US 291 (1995) 4

Graziano v. Harrison, 950 F.2d 107, 111 (3d Cir. 1991) 4

Jerman v. Carlisle et. al., 559 US __, 130 S.Ct. 1605, 4

78 USLW 4301(Apr. 21, 2010)

McCready v. White, 417 F. 3d 700, 702 (7* Cir. 2005) 5

Shields v. Thomas, 58 U.S. 3 (1854) 6

Stone v. Stone, 405 F. 2d 94, (4* Cir. 1968) 6

Florida Cases

BAC Funding Consortium Inc. ISAOA/ATIMA v. Jean-Jacques, 9

28 So. 3d 936, 938 (Fla. 2d DCA 2010)

Ben-David v Education Resources Institute, 974 So. 2d 1138 6

(3rd DCA 2008)

Brakefield v. CIT Group/Consumer Fin., Inc., 787 So. 2d 115, 116 9

(Fla. 2d DCA 2001)

Burkhart v. Gowin, 98 So. 140, 142 (Fla. 1923) 7

Goncharuk v. HSBC Mortgage Servicing, Inc., 62 So. 3d 680 9

(Fla. 2d DCA 2011)

Page ii

Howell v. Ed Bebb, Inc., 35 So. 3d 167, 168 (Fla. 2d DCA 2010) 9

Sandoro v HSBC, 55 So.3d 730 (2011) 9

Federal Statutes

15 U.S.C. § 1692 1

Florida Statutes

Florida Statutes 34.01 (e) 6

Florida Rules ofAppellate Procedure

Florida Rules of Civil Procedure 1.140(3) 8

Florida Rules ofAppellate Procedure Rule 9.030 (a)(2)(A)(iv) 3

Florida Rules ofAppellate Procedure Rule 9.030(a)(2)(C) 2

Page iii

I. STATEMENT OF THE CASE

Respondent-HFC and Respondent-Beneficial ("Respondents") are wholly-

owned subsidiaries of HSBC Finance Corporation (HSBC). Respondents are

registered with the Florida Department of Corporations, and have an identical set

of directors. In the summer of 2005, Respondents sent Petitioner unsolicited live

checks, one each of the same amount, with the same conditions, and for the same

purpose. Petitioner cashed the checks, made payments for an extended period of

time and, eventually, a dispute arose between the parties. Respondents

subsequently consolidated the two loans under Respondent-Beneficial, and,

ultimately, Respondent-Beneficial charged off both loans.

Respondents, through their common debt-collector attorney, Rolfe & Lobello

(R&L), issued demand letters to Petitioner in July/August 2008. Petitioner denied

the claims, and requested debt validations in accordance with requirements of the

Fair Debt Collection Practices Act (FDCPA, 15 U.S.C. §1692). No effective debt

validations were ever issued by Respondents to Petitioner.

In August 2008, within the statutory 30-day debt validation period,

Respondents filed two actions in Brevard County Court. Respondents claimed

damages against Petitioner, splitting the total of $15,987.52, (exclusive of interest,

costs and attorney fees) into two parts, claiming jurisdiction of the County Court.

Within the 20-day statutory answer period, Petitioner-Defendant filed identical

Page 1 of 13

motions in each case, requesting a stay of litigation pending receipt of an effective

debt validation. Petitioner, shortly afterward, filed motions challenging County

Court subject matter jurisdiction, as the joint claims exceeded the statutory $15,000

limit. Despite requests by Petitioner for urgent hearings, no hearing was docketed.

The first hearing was a consolidated summary judgment hearing, from which two

summary judgments were granted, one for each Respondent.

Petitioner ultimately filed a motion for Relief from Judgment, which was

denied by the successor judge. An appeal followed to the 18* Circuit Court, which

denied the appeal. Certiorari review was sought in the 5* District Court of

Appeals, which denied Certiorari.

II. SUMMARY OF ARGUMENT

This case is representative of many similar cases involving debt collection

activity during the current national economic crisis. As such it is important to the

general public and timely for Florida Supreme Court review.

A. Florida Rules of Appellate Procedure Rule 9.030(a)(2)(C)

"questions of law certified by the Supreme Court of the United States or aUnited States court of appeals that are determinative of the cause of actionand for which there is no controlling precedent of the Supreme Court ofFlorida."

The instant request for Discretionary Review seeks discretionary relief due

to conflict between lower court rulings and rulings of the U.S. Supreme Court and

federal circuit courts of appeal concerning (1) application of the FDCPA in regards

Page 2 of 13

to the cessation of collection activity pending issuance by debt collectors of an

effective debt validation, and (2) the issuance of summary judgment prior to

hearing pending motions challenging subject matter jurisdiction. There is no

known controlling precedent of either in the Supreme Court of Florida.

B. Florida Rules of Appellate Procedure Rule 9.030 (a)(2)(A)(iv):

"expressly and directly conflict with a decision of another district court ofappeals or of the supreme court on the same question of law."

The instant request for Discretionary Review seeks discretionary relief due to

direct conflict between Florida district courts of appeal concerning aggregation of

claims to determine subject matter jurisdiction.

III. ARGUMENT

A. Florida Rules of Appellate Procedure Rule 9.030(a)(2)(C)

1. Lack of Effective Debt Validation

Summary judgments, issued by the County Court on April 7, 2009, on behalf

of Respondents and against Petitioner, are void due to the lack of provision by

Respondents' debt collector attorney of effective debt validations as prescribed by

the FDCPA. The 18* Circuit Court (on appeal) upheld the County Court rulings.

The 5* District Court of Appeals (on petition for writ of certiorari) upheld the

Circuit Court ruling. These rulings contradict the FDCPA's strict liability

requirements as supported by rulings in the 3d and 9' U.S. Circuit Courts of

Appeals and the U.S. Supreme Court.

Page 3 of 13

The United States Supreme Court ruled, in Heintz v. Jenkins, 514 US 291

(1995), that attorney-debt collectors, such as Respondents' legal representative

R&L, are "debt collectors" subject to the FDCPA. The Fair Debt Collection

Practices Act, a strict liability statute, stipulates that a debt collector must validate

a debt if requested by the presumed debtor.

Establishing ownership and amount of the claimed debt, as well as the

presumed debtor rights, effective debt validation "is to be interpreted from the

perspective of the 'least sophisticated debtor."' Graziano v. Harrison, 950 F.2d

107, 111 (3d Cir. 1991), citing Baker V. G.C. Services Corporation, 677 F.2d 775,

778 (9* Cir. 1982).

The debt collector is prohibited from falsely characterizing the debt's

character, amount, or legal status (15 U.S.C. § 1692e(2)(A)). The debt collector

cannot be excused from even a bona ßde error of legal requirements of the

FDCPA (Jerman v. Carlisle et. al, 559 US _, 130 S.Ct. 1605, 78 USLW

4301(Apr. 21, 2010).

The FDCPA (15 U.S.C. § 1692f(b)) requires debt collectors to "cease

collection of the debt . . . until the debt collector obtains verification of the debt".

In the case at bar, Respondents filed suit against Petitioner during the 30-day debt

validation period, and subsequently issued documents alleging them to be the

required debt validations. However, the documents issued were not effective,

Page 4 of 13

containing false representation of the amounts and legal status (owners) of the

alleged debt and contradicting claims in the lawsuits filed. Nonetheless, collection

activity continued despite Petitioner's protestations.

Petitioner filed Motions to Stay, within the statutory twenty (20) day period to

answer the Complaints, pending Respondents' issuance of effective debt

validations. These Motions were never heard or adjudicated and no effective debt

validations were issued, although collection activities continued through Summary

Judgments.

Summary judgments should have been voided, in accordance with settled law,

during the County, Circuit and District Court of Appeals post-judgment

proceedings. There is no known controlling precedent of the Supreme Court of

Florida.

2. Summary Judgment Void pending Jurisdictional Challenge

Summary judgments, issued by the County Court on April 7, 2009, on behalf

of Respondents and against Petitioner, are void due to the existence of questions of

material fact outstanding - notably Petitioner's outstanding motions to dismiss

challenging subject matter jurisdiction of the County Court.

McCready v. White, 417 F. 3d 700, 702 (7* Cir. 2005) declares that

"[E]nsuring the existence of subject matter jurisdiction is the court's first duty in

every lawsuit".

Page 5 of 13

Stone v. Stone, 405 F. 2d 94, (4* Cir. 1968) clarified aggregation:

"All persons *** may be joined in one action . . . if there is asserted againstthem jointly, severally, or in the alternative, any right to relief in respect ofor arising out of the same transaction, occurrence, or series of transactions oroccurrences and if any question of law or fact common to all . . . will arise inthe action."

Consolidation, and, by extension, aggregation of sums, is appropriate in

establishing jurisdiction where "most of the operative facts are common to the

coupled claims". Further, the proceedings could be consolidated where the matter

in controversy "derive(s) from a common nucleus ofoperative fact . . . such that

[it] would ordinarily be expected to try [all claims] in onejuridicalproceeding."

Shields v. Thomas, 58 U.S. 3 (1854), further clarified the requirements for

aggregation to confer jurisdiction:

"The aggregate amount which the defendant was decreed to pay was morethan [the statutory amount for establishing jurisdiction], and as to him this isthe matter in dispute. . . The matter in controversy . . . was the sum due tothe representatives collectively, . . . and it was perfectly immaterial to[Shields] how it was to be distributed."

There is no known controlling precedent of the Supreme Court of Florida.

B. Florida Rules of Appellate Procedure Rule 9.030 (a)(2)(A)(iv

1. Summary Judgments are void

Florida Statute 34.01 (e) limits the jurisdiction of county courts to "all actions

at law in which the matter in controversy does not exceed the sum of $15,000,

exclusive of interest, costs, and attorney's fees . . ." The aggregate sum of

Page 6 of 13

Respondents' consolidated claims, exclusive of "interest, costs, and attorney's

fees", total $15,987.52, exceed the legislative limit of $15,000, thereby depriving

the Brevard County Court ofjurisdiction.

Ben-David v Education Resources Institute, 974 So. 2d 1138 (3rd DCA

2008) stipulated that:

"Claims may not be aggregated to confer jurisdiction in the circuit courtunless the claims are related to one another or arise from the same'transaction or circumstances or occurrence'.

Citing the Florida Supreme Court (Burkhart v. Gowin, 98 So. 140, 142 (Fla.

1923)), the appellate ruling continued, showing:

"demands . . . may not be joined or aggregated . . . where there is nothing inthe notes or in the pleadings to show a composite or other relation betweenthe notes"

In the case at bar, the amounts were "related to one another", arose "from the

same 'transaction or circumstances or occurrence'", and pleadings are replete with

arguments to that effect as:

- HSBC owns both claimed debts

- Respondent-Beneficial owned both claimed debts at the time lawsuits were

filed

- Respondents have the same registered directors

- The original unsolicited live checks were in the same amount, had identical

conditions and were issued at the same time and for the same purpose,

Page 7 of 13

forming a single stream of transactions

- Respondent-HFC's branch managed both claimed loans, under the same

account manager, until transferring them both to Respondent-Beneficial's

branch.

- The names of the Respondent-Plaintiffs were frequently interchanged in

court documents, even those submitted to justify summary judgments

- Respondents are both represented by the debt collector law firm (R&L)

- Both lawsuits were filed in the same court, at about the same time, and

assigned to the same initial judge, who issued two Summary Final Judgment

orders on the day from the same hearing.

- Both cases relied on the same affiant in support of summary judgment, who

claimed to hold an employee position with both Respondents

- It is of no consequence to either Respondent which of them may recover

funds awarded

The decision of the 5* DCA in the instant case, denying issuance of a written

opinion justifying its denial of certiorari, is in direct conflict with the above ruling

of the 3rd District Court ofAppeals.

2. Summary judgments were premature

Florida Rules of Civil Procedure 1.140(3) (bl), (c), and (d) require motions on

jurisdiction to be heard prior to hearings on summary judgment. The initial judge

Page 8 of 13

did not allow Petitioner's several motions (challenging (a) lack of an effective debt

validation and (b) subject matter jurisdiction) to be heard prior to issuing summary

judgment.

Goncharuk v. HSBC Mortgage Servicing, Inc., 62 So. 3d 680 (Fla. 2d DCA

2011) stipulates that:

"When a plaintiff moves for summary judgment before the defendantanswers the complaint, the plaintiff 'must not only establish that no genuineissue of material fact is present in the record as it stands, but also that thedefendant could not raise any genuine issues ofmaterial fact if the defendantwere permitted to answer the complaint.'"

Citing Sandoro v HSBC, 55 So.3d 730 (2011) (quoting BAC Funding Consortium

Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So. 3d 936, 938 (Fla. 2d DCA 2010)).

See also Howell v. Ed Bebb, Inc., 35 So. 3d 167, 168 (Fla. 2d DCA 2010);

Brakefield v. CIT Group/Consumer Fin., Inc., 787 So. 2d 115, 116 (Fla. 2d DCA

2001):

The decision of the 5* DCA in the instant case, denying issuance of a written

opinion denying certiorari, is in direct conflict with the above ruling of the 2nd

District Court ofAppeals.

Page 9 of 13

IV. CONCLUSION

Finally, Petitioner invokes the jurisdiction of this Honorable Court to grant

discretionary review of the 5* District Court of Appeals denial of Petitioner's

Motion for Written Opinion, requested to explain its denial of Petitioner's Petition

for Certiorari. Petitioner believes that this case is representative of many similar

cases involving debt collection activity during the current national economic crisis,

wherein debt validations are trivialized and claims are split to invoke the

jurisdiction of the county court, then combined into one hearing from which are

issued two summary judgments. Petitioner seeks discretionary review based on

Florida Rules ofAppellate Procedure Rule 9.030 (a)(2)(A)(iv) and Florida Rules of

Appellate Procedure Rule 9.030(a)(2)(C).

Respectfully,

Kenneth E. Pickens, pro-se

2201 Rosewood Drive

Melbourne Beach, FL 32951

Page 10 of 13

V. CERTIFICATE OF SERVICE

I hereby certify that a copy of this Petition has been sent this 19* day of July 2012 by

U.S. mail to Plaintiffs' attorney, Rolfe & Lobello, P.A., 233 East Bay Street, Suite 720,

Jacksonville, Florida 32202.

Respectfully,

Kenneth E. Pickens, pro-se

2201 Rosewood Drive

Melbourne Beach, FL 32951

Page 11 of 13

VI. CERTIFICATE OF COMPLIANCE

I hereby certify that this Petition complies with Florida Rules of Appellate Procedure

Rule 9.210(a) which sets forth the requirements for margins (not less than 1"), font size

(Times New Roman 14), and spacing (double spaced, except for quotations which may

be single spaced).

Respectfully,

Kenneth E. Pickens, pro-se

2201 Rosewood Drive

Melbourne Beach, FL 32951

Page 12 of 13

APPENDIX

CERTIFIED COPY OF 5th DISCTRICT COURT OF APPEALS DENIAL OF

PETITIONER'S MOTION FOR WRITTEN OPINION

Page 13 of 13

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDAFIFTH DISTRICT

KENNETH E. PICKENS,

Petitioner,

v. CASE NO. 5D11-4563

HOUSEHOLD FINANCE CORPORATION,Ill, ET AL.,

Respondent.

DATE: June 14, 2012

BYORDEROFTHECOURT:

ORDERED that Petitioner's Request for Written Opinion, filed May 24,

2012, is denied.

I hereby certify that the foregoing is(a true copy of) the original Court order.

PAMELA R. MASTERS, CLERK *+oin.o*

cc: Kenneth E. PickensLawrence Rolfe, Esq.