Motion for Continuance Petition by
Mary Jean Ziska: December 4, 2012
Filed by Petitioner: Mary Jean Ziska paperwork copied and sent:
1.
Judge Murphy : Collier County Government Complex 3315 Tamiami Trail East
Suite 307 Naples Florida 34112
2.
HOA for Cypress Cove: (Diane M Simons-Burnside: 780 Fifth Ave South Naples Florida 34102
3.
Marion Gregory :
9202 Vanderbilt Drive Naples Florida 34108
4.
Shayna K. Cavanaugh:
Cavanaugh, Kirby, and Cavaneaugh PA. 2500 Tamiami Trail N. Ste. 218
Naples Florida 34103-4470
5.
Probate Court:
Collier of Circuit court 3315 Tamiami Trail East STE 102 Naples
Florida 34112-5324
6.
Lawrence S. Pivacek PA: 2262 Royal LN. Naples Florida 34112-53233
7.
Scott Renshaw:
When in Naples will be: 5632 Whisperwood Blvd. 1601 Naples Florida 34110.
Scott Renshaw is presently residing in Texas.
Mary Jean Ziska is Petitioning
the Honorable Judge Vincent Murphy for a continuance of the Case between Mary
Jean Ziska and the Homeowners Association for Cypress Cove in the Strand.
Case# (07-3121-CC). I am requesting this continuance on December
4, 2012 for the court case scheduled to appear in your court December 10th or 12th
2012. I am petitioning the Court of
Collier County and Honorable Judge Vincent Murphy to change the dates from the
10th or 12th of December 2012 until at least February
2013 to be heard within the Collier County court system. There are very substantial grounds for this
request and many specific justifications and explanations for why the later
date for this court case should be granted.
As grounds for this motion, I, Mary Jean Ziska, am still
technically declared incompetent until the three positive evaluations allow for
complete independence. The requirements for the limited guardianship maintain specifics such as retaining the court appointed guardian and for this guardian to assist with legal and financial matters . The information that follows pertains to the
Florida statutes 774 describing the rules regulations and requirements of a
guardianship:
1. As per pursuant to the 744 Florida Statutes, a ward declared
incompetent and court ordered to have a limited guardianship is guaranteed rights that are to be protected by the court
system and the United States legal
system . These rights include competent legal representation and assistance in
the specified field where legal representation and knowledge is required. Presently I have an attorney for the
guardianship but not for the other legal matters at hand. An “Attorney for the alleged incapacitated
person” means an attorney who represents the alleged incapacitated. Such an attorney shall represent the
expressed wishes of the alleged incapacitated person to the extent it is
consistent with the rules and regulations of the Florida Bar. This attorney Lawrence Pivacek is my
guardianship lawyer not a lawyer to represent any dealings in foreclosure cases or mediations between the
HOA and any settlements. He has not and
will not be representing me in any other legal matters concerning the
Homeowners Association.
To quote from the Florida Statutes:
* 744.3215 rights of person determined incapacitated (3b.) to
sue and defend lawsuits (this right may be removed from a person by an
order determining incapacity and which may be delegated to the guardian.)
*744.3215rights of a person determined incapacitated (1.k.)
to have access to the courts
*744.3215 rights of a person determined incapacitated (1i.)
to counsel
*744.3215 rights of a person determined incapacitated (1d.)
to be treated humanely with dignity and respect and to be protected against
abuse, neglect and exploitation.
*744.3215 rights of a person determined incapacitated (1e.)
To have a qualified guardian
2. As the definition of due process when establishing a guardianship
and for legal proceedings as well: Due Process: “Because establishing a guardianship is a
legal process that involves the removal of the individual’s rights,
considerable due process
protection often exists when the guardianship is established.
They include:
*Notice to the individual of all proceedings.
*Representation of the individual by counsel.
*Attendance of the individual at all hearings/court
proceedings.
*Ability of the individual to compel, confront and cross
examine all witnesses.
*Allowance of the individual to present evidence.
*Appeal of the individual to the determination of the court.
*Presentation of a clear and convincing standard of proof.
*The right of the individual to a jury trial.
*Individual rights removed and due process rights may vary
from state to state, the final authority is the state statues where the person
with the disability lives. In any type
of guardianship the court may limit the guardian’s authority. The guiding principle
in all guardianship is that of least intrusive measures to assure as much
autonomy as possible. The guardian’s authority is defined by the court and the
guardian may not operate outside that authority. A guardian may be a family
member or friend or a public or private entity appointed by the court.
3. My limited guardianship allowed Patrick Weber to assist in financial and legal
matters only. As per the documentation already accomplished through
the collier county court system, the petition for removing Patrick Weber as the
limited guardian of the ward (MaryJean Ziska ) was granted (November 15th
2012). I was emailed by Larry, that the
approval of all parties involved is still pending and has not been approved to
make it final.
4. The assignment of a new Guardian (Scott
Renshaw) has not yet been officially approved since the removal of Patrick
Weber has still not been finalized. This
approval and assignment of a new guardian
includes completing the application for appointment of guardian, ( see
section 744.3125 FS) Documentation elaborating points for the petition and appointment of a guardian still needs to be verified and needs
to contain statements showing specifics for the limited
guardianship. I believe there are even
oaths, paperwork and a class that need to be attended to allow a person to be a
qualified guardian (744.3215 1 (d) FS.
*Since Patrick Weber
did such a horrendous job at not assisting me this past year as my guardian,
noting all his negligence, misconduct, and abusive behavior and actions. I do request that I have a qualified guardian
who can assist as a true advocate. I
feel that Scot Renshaw will be prepared once the classes, and all necessary information, paperwork are completed. I
believe that Scott could even be considered a “standby guardian” until al
paperwork and necessary qualifications are in order.
5. I have been emailing Larry concerning
the qualification for a non- resident to be my guardian since Scott is
presently in Texas. I believe establishing
a mailing address such as a mail box and being issued a Florida driver’s license
may be the start of the criteria for a residency in Florida. Scott’s daughter being a Florida resident
here in Naples may also be a helpful contributing factor for establishing
residency in Naples Florida. However, I
still need to find out all the specifics and make sure they are in place so the
residency or duel residency can be accomplished quickly.
6. Scott Renshaw will not be here in Naples Florida for the scheduled dates
of either December 10th or 12th 2012. The earliest dates for him moving back to
Naples to assist in this matter are being considered for the end of January,
beginning of Feb. These tentative dates
are for him to arrive here let alone be able to begin and complete with his
assistance in all the listed areas where Patrick weber failed to give me (Mary
Jean Ziska-the ward) any assistance at all.
I am very grateful for his decision to make such a large sacrifice, and move
away from his work and family to assist and make sure I have a proper advocate
on my side to help with all of these complicated situations.
7. Larry Pivacek will not be available
either of those dates (December 10th 2012 or /December 12th
2012):
December 10th 2012 schedule on his
website readsa as “Date Closed” : Dependency
court from 1-2pm.
December 12th has a schedule on his website that
reads that this date also is closed: * Summerville –Toscana Homes Wed
December 12th 2012 from 1pm-2pm. *Summerville-Tosconna
Homes Wed December 12th 10am
8. The case at hand is a legal matter
that I am neither equipped to handle myself nor am I presently represented by a
guardian or represented by any legal counsel at all! ….. Let alone any legal
representatives who have knowledge and experience in dealing with mediation of
HOA Cases or foreclosure cases. Competent
legal representation needs to still be hired and briefed on the case. “The legal system is incredibly complicated
and it has twists and loopholes that even an experienced lawyer cannot
predict. A person without legal training
will face many difficulties when trying to satisfy all the demands of the court
on their own.”
9. Patrick Weber attempted to retain only
one specific person and attempted to obtain legal counsel only one time and was
refused based on the complexity of the cases.
The specific knowledge of law is extensive for both foreclosure and
guardianship and the overlap from the guardianship case into the Homeowners
Association case may require multiple lawyers to adequately represent my best
interests. I was told he contacted legal
aid in general and contacted only one lawyer, Darrin Phillips.
10. As an example of good faith in attempts
to obtain legal counsel …practically all members of the Florida Bar with proper
disciplines in the specific legal matters are being contacted to request
representation. Also, a membership to www.Rocketlawyer.com
has been started which would allow discounted legal assistance and representation
from their list of lawyers in Naples.
They also are able to do any legal filings or motions and letters or any
legal paperwork after the initial time period is concluded (this delay in time
frame for assistance is designated by the form of payment by the customer… when
paying in monthly installments there is a delay, if membership is completed in
one full payment there is no delay. At
present, monthly installments are being made to www.Rocketlawyer.com.
11. Enclosed is another good faith
representation of the diligence for which I was attempting to have Patrick Weber
removed so that I could have real assistance in the matters at hand. The package mailed to you concerning his removal
contains 33 documents and emails describing the guardian negligence, misconduct
and abuse and requesting multiple times for his removal from various legal and
guardianship agencies. No one listened
and no one removed him from his guardianship position until Larry Pivacek
successful was able to remove him on November 15th 2012.
12. Without a proper advocate, and
guardian, nothing has been completed to assist with all areas Patrick Weber was
supposed to take action. I am basically a year behind in accomplishing
all tasks necessary for being prepared for litigation and settlement negotiations.
Items including a forensic audit and an
investigation into the predatory
lending, fraud, and identity theft still
need to be cleared before allowing for
an equity line of credit to be established to assist with negotiations. I am trying the best I can, but a true advocate
as a guardian would be very helpful.
13. Just as when the HOA lawyers for Cypress Cove
attempted to foreclose upon a person (me,Mary Jean Ziska) while still declared incompetent,
by having paperwork misdirected (to me the ward), and not addressing the proper channels through
the limited guardianship (mail and documentation mailed to Patrick Weber my
guardian), they are unreasonably and excessively weighing
this case in their favor. At present
the changes in guardianship and legal representation are in flux leaving me
without any guardian and without any legal representation. I am actually left without any guardian to actually
be in Florida and assist with gaining legal representation until after February
2013. If the court date remains in
December, this would be a grievous
error in justice. It would benefit the
court system and the case in its entirety for the continuance to be granted. Otherwise, it would seem to resemble the
original foreclosure suit brought by the HOA in which there was a complete
dismissal of the case. Another
dismissal would be warranted based on the specifics of a great injustice dealt to a person deemed by the court
to still have a need to retain a guardian for legal and financial matters but denied such representation. This
violation of a person’s rights for representation by competent legal counsel
especially when directed by the court itself is mandatory and is a primary
reason for this court to allow the continuance and prevent a miscarriage of
justice.
14. In addition to the above mentioned example of
what would be deemed injustice by the Collier County court system, (if the ward, is not allowed to
have any guardian or legal representation for this case involving the Home Owners
Association,) this travesty of injustice would allow my home ownership to be
personally threatened and also allow me to be personally harmed by the loss of
my residence. This injustice would
be setting a horrid example depicting the lack of care and diligence exemplified by the Collier County court system concerning
guardianships and the rules and regulations
to protect wards within the guardianship. Based on the right for all (especially people
who are court ordered to have assistance through the courts) to not be allowed
to have assistance is unspeakable. For this right to NOT be upheld based on a time limitation for putting
proper legal representation in place, is
not only appalling but biased. For such an
oversight to take place where rights were not upheld within the court system
and the guardianship system, the proceedings on December 10th or
December 12th would be unjust.
We are
respectfully requesting a fair amount of time for these changes to be put in
place and for proper legal representation to be hired. We are requesting for a 60 to 90 day
continuance in the court date and we respectfully request this petition for
motion of continuance to be granted based on the reasons stated within this
document.