Demand for Trial by Jury

8/7/2019 Demand for Trial by Jury

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IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUITIN AND FOR COLLIER COUNTY, FLORIDA

BANKUNITED,non- successor in interest to bankrupt BANKUNITED, FSB,

purported plaintiff(s) ,

vs.DISPOSED CASE NO.: 09-6016-CA

JENNIFER FRANKLIN-PRESCOTT, et al .,purported defendants .

_________________________________________________________________________/

DEMAND FOR JURY TRIAL & MEMO BY DEFENDANT COUNTERCLAIMANTS

DEFENDANTS COUNTERCLAIM & DEMAND FOR JURY TRIAL

1. Defendants affirmative defenses defeated the disposed action by a denial and/or

avoidance. Defendants admitted the UNKNOWN loss and/or destruction of the alleged

instruments , which could not be reestablished as a matter of law . See Schupler v.Eastern

Mortgage Co., 160 Fla. 72, 33 So.2d 586 (1948); Lovett v. Lovett, 93 Fla. 611, 112 So. 768

(1927).

2. In addition, defendants filed a counterclaim and/or cause of action that seeks affirmative

relief . The counterclaim and affirmative defenses were separate and distinct events.

3. Here, plaintiff BankUnited had failed to state a cause of action , and the court could not

grant [summary] judgment because the defendants have asserted legally sufficient

affirmative defenses that have not been rebutted . See Ton-Will Enterprises, Inc. v. T & J

Losurdo, Inc., 440 So.2d 621 (Fla. 2d DCA 1983).

4. Here, BankUnited did not dispute that it failed to rebut defendants affirmative defenses .

5. Here, Defendants action /compulsory counterclaim for, e.g., damages for fraud and breach

of contract, were both common law actions for damages.


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6. Thus, this court erred by ignoring defendants affirmative defenses and denying

defendants motion to dismiss during an illegal 02/22/2011 hearing which had been

cancelled .

ROCKET DOCKET FRAUD & SPEED INSTEAD OF JUSTICE

7. It is well established that fraud and misrepresentation are valid affirmative defenses in a

foreclosure action. See Lake Regis Hotel Co. v. Gollick, 110 Fla. 324, 149 So. 204 (1933)

(misrepresentation). Fraud is also a legal action for damages that can be raised as a

counterclaim . See Spring v. Ronel Refining, Inc., 421 So.2d 46 (Fla. 3d DCA 1982).

8. Fraud is a compulsory counterclaim to an action in foreclosure on the [herelost /destroyed ] note and/or mortgage . See Spring, supra; Yost v. American Nat'l Bank, 570

So.2d 350 (Fla. 1st DCA 1990). Fraud claims are compulsory counterclaims for purposes of

Florida Rule of Civil Procedure 1.170.

9. Here without any rational and legal explanation/justification , the Court has been speeding

from the 08/12/2010 disposition to trial to favor the bank at defendant homeowners

expense. Defendants experienced and fear further prejudice .

10. To grant any judgment of foreclosure in favor of BankUnited , the Court would have to

find, among other things, that said bank owned the lost /destroyed mortgage/note and had

performed all conditions precedent to enforce the destroyed /missing mortgage /note .

11. However here, BankUnited had asserted the UNKNOWN loss and/or destruction of the

purported instruments in its complaint. Furthermore, the evidence on file had conclusively

proven non -performance of said conditions . See generally 37 Fla. Jur. 2d Mortgages and

Deeds of Trust 287 (2002).


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12. If arbitrarily and capriciously , after the 08/12/2010 disposition , the foreclosure action

were to proceed to judgment in favor of BankUnited , then a jury would be bound by these

findings of fact, which facts are inextricably interwoven with the issues presented by the

defendants affirmative defenses and counterclaims . Thus, to allow the foreclosure action

to proceed before the petitioners' legal counterclaims would deny them their fundamental

right to a jury trial , which they have demanded , on those issues.

DEFENDANT COUNTERCLAIMANTS ARE ENTITLED TO JURY TRIAL

13. Here, the compulsory counterclaim entitled the defendant counter-claimants to

a jury trial on issues which are sufficiently similar or related to the issues made by thepreviously disposed foreclosure claim that a determination by the first fact finder would

necessarily bind the latter one. Therefore, the issues may not be tried non -jury by the court

since to do so would deprive the defendant counter-claimants of their constitutional rights

to trial by jury .

14. Here, the issues and/or affirmative claims involved in the compulsory counterclaim and/or

fraud claim were sufficiently similar to the issues in the foreclosure action stated in the

complaint to require a jury trial of the claim at law before the equitable claims could

possibly be reached. Only after a jury verdict on the common law issues could the trial

court dispose of the equitable issues that were remaining.

15. Here, the rule is that even where a complaint lies solely in equity, the filing of a compulsory

counterclaim seeking remedies at law entitles the counterclaimant(s) to a jury trial of the

legal issues. See Widera v. Fla. Power Corp., 373 So. 2d 714 (Fla. 2d DCA 1979); Sarasota-

Manatee Airport Auth. v. Alderman, 238 So. 2d 678 (Fla. 2d DCA 1970).


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Florida Constitutions." Hollywood, Inc. v. City of Hollywood, 321 So. 2d 65, 71 (Fla. 1975);

see also Hansard Constr. Corp. v. Rite Aid of Fla., Inc., 783 So. 2d 307, 308 (Fla. 4 th DCA

2000) ("Questions regarding the right to a jury trial should be resolved in favor of a jury

trial ") (citing King Mountain Condo Ass'n v. Gundlach, 425 So. 2d 569 (Fla. 4 th DCA

1982)).

MEMORANDUM OF LAW IN SUPPORT OF JURY TRIAL REESTABLISHMENT

32. When a plaintiff brings a count in law and in equity to re-establish a note and/or for

deficiency judgment against the defendants, defendants have a right to a jury trial .

33. A complaint to re-establish a lost note and to have a personal decree against the defendant(s)for the amount of debt to be evidenced by the re-established note is without equity, because

the lost instruments may be established by secondary evidence at law , and defendants are

entitled to a jury trial upon the alleged lost instruments . See Staiger v. Greb, App. 3 Dist.,

97 So.2d 494 (1957).

34. Because here, there is no dispute that plaintiff seeks to re-establish lost instruments and to

have a deficiency judgment against the defendants, the defendants are emtitled to demand

a jury trial .

ANSWER TO COMPLAINT BY BANKRUPT BANKS FOUNDER ALFRED CAMNER

35. Hereby, defendants respond to the unlawful and unauthorized 02/22/2011 hearing

before retired rocket docket Judge Daniel R. Monaco who is in the pocket of the bank(s).

36. On 08/12/2010 , and after defendants Motions to Dismiss had been filed, this wrongful

action to foreclose a mortgage on real property had been disposed .

37. This Court knew that BankUnited did not establish its entitlement to foreclose the

mortgage as a matter of law.


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38. After said 2010 disposition , the action was never reopened .

39. The exhibits to BankUnited's complaint conflicted with its [ false ] allegations concerning

standing , and said exhibits did not show that BankUnited has standing to foreclose the

alleged lost /destroyed mortgage /note or was entitled to the illegal 02/22/2011 hearing and

any trial .

40. Here, the plain meaning of the exhibits controlled, evidenced lack of standing , and was the

basis for a motion to dismiss . Blue Supply Corp. v. Novos Electro Mech., Inc., 990 So. 2d

1157, 1159 (Fla. 3d DCA 2008); Harry Pepper & Assocs., Inc. v. Lasseter, 247 So. 2d 736,

736-37 (Fla. 3d DCA 1971).41. The trial wrongfully set by temporary Judge Monaco and BankUniteds motion for

summary judgment and were to be denied based on principles of collateral estoppel and res

judicata . Here on 08/12/2010, the Court had disposed of BankUniteds wrongful

foreclosure action.

42. On 02/22/2011, retired rocket docket Judge Monaco had no authority to deny defendants

Motion to Dismiss .

LACK OF AUTHORITY TO OVERTURN 08/12/2010 JUDICIAL DISPOSITION

43. The 02/21/2011 memorandum from clerk to file regarding correction of the disposition

record to reflect the case as pending was unauthorized and lacked any legal justification .

44. Here, the action had been disposed by Disposition Judge H. D. Hayes (disposition was

reached by said Judge in a case that was not dismissed and in which no trial has been held;

Category (J). The Clerk and Daniel R. Monaco had no authority to overturn the 08/12/2010

judicial disposition .


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FRAUD ON THE COURT ON THE RECORD

45. After the 08/12/2010 disposition , BankUnited filed the original note which did not

identify BankUnited as the holder or lender .

46. BankUnited also did not attach an assignment or any other evidence to establish that it had

purchased and/or acquired the alleged lost note and mortgage .

47. Here, the required chain of title was not in evidence .

48. Furthermore, BankUnited did not file any genuine supporting affidavits or deposition

testimony to establish that it owns and holds the alleged lost /destroyed note and mortgage

but re-filed non -authentic copies of the lost/destroyed instrument(s).49. Accordingly, the documents before this court and retired robo Judge Monaco at the

22/02/2011 unauthorized and cancelled hearing did not establish BankUniteds standing

to foreclose the destroyed /lost note and mortgage , Thus, at this point, BankUnited was not

entitled to any trial and any judgment in its favor.

RECORD LACK OF ADMISSIBLE EVIDENCE IN DISPOSED WRONGFUL ACTION

50. Defendants did not execute and deliver an authentic promissory note and mortgage to

BankUnited .

51. Under Florida law delivery is necessary to validate a negotiable instrument .

52. Here, neither any note nor mortgage were assigned and delivered to BankUnited .

53. Here there was no delivery of any written assignment of any instrument to BankUnited .

FACIALLY FRAUDULENT ACCOUNTING & NULL & VOID AGREEMENT

54. As witnessed and/or notarized , the alleged destroyed /lost loan modification agreement

was not signed and executed by defendant Walter Prescott and therefore unenforceable

(not legally binding ).


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55. Even though said modification agreement was not legally binding , BankUnited

wrongfully sought to enforce the null & void agreement :

The interest rate required by this section 1 (7.625%) is the rate I will pay both beforeand after any default described in the note.

Here, the October 2010 Affidavit as to amounts due and owing fraudulently stated a

7.625% interest rate .

56. The modified mortgage was never recorded , and there was no evidence of taxes paid,

which rendered the alleged lost mortgage unenforceable .

BANKUNITED FAILED TO STATE A CAUSE OF ACTION & HAD NO STANDING

57. Purported plaintiff BankUnited does not own and hold any genuine note and mortgage .

58. BankUnited failed its burden to affirmatively establish holder in due course status

pursuant to Florida law and Seinfeld v. Commercial Bank & Trust Co., 405 So.2d 1039-

41 (Fla. 3d DCA 1981).

59. Here, BankUnited even pleaded inability to establish holder in due course status because

of the UNKNOWN loss and/or destruction of the alleged instruments .

60. After the pleaded UNKNOWN destruction and loss of the purported note and mortgage

pursuant to paragraph 6 of the complaint, no legal and factual questions were and could

possibly have been at issue here:

6. Said promissory note and mortgage have been lost or destroyed and are not in thecustody or control of BankUnited, and the time and manner of the loss or destruction is UNKNOWN .

61. Here, there was no evidence as to WHO possessed the note WHEN it was lost /destroyed.

62. Here, the undisputed evidence was that BankUnited, FSB did not have possession of the

alleged destroyed /lost instruments , and thus, could not enforce the note under section

673.3091 governing lost /destroyed notes /instruments . Because BankUnited, FSB could


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not enforce the lost instruments under section 673.3091, it had no power of enforcement

which it could possibly assign and/or transfer to BankUnited .

63. [Were this Court to allow BankUnited to enforce the alleged lost instruments , because

some unidentified person further back in the chain may have possessed the note , it would

render the rule of law and 673.3091 meaningless .]

64. The alleged mortgage copy did not contain a copy of the alleged executed note .

65. BankUnited fraudulently prayed for reestablishment , no order reestablishing the lost

instruments was entered, and the wrongful action was disposed on 08/12/2010 .

66. As a matter of law, reestablishment of the note was impossible under Ch. 673, FloridaStatutes, and the Uniform Commercial Code.

67. BankUnited is not in possession of the purported note and mortgage and not entitled to

enforce them.

68. BankUnited did not know WHO destroyed and/or lost the instruments WHEN and

HOW .

69. BankUnited which is wrongfully seeking to enforce the alleged note and mortgage was

not entitled to enforce the alleged instruments WHEN the UNKNOWN loss and/or

destruction of the alleged instruments occurred.

70. BankUnited did not acquire ownership of the instruments from anyone who was entitled to

enforce the alleged instruments WHEN the UNKNOWN loss and/or destruction of the

alleged instruments occurred. See 673.3091, Florida Statutes (2010).

71. On 05/21/2009, BankUnited, FSB was seized .

72. Here, there had been seizure and transfer which prohibited re-establishment .


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73. BankUnited never produced nor re-established any authentic note and/or mortgage as

proven by the evidence before this Court.

74. The mortgage that was used to establish the terms of the allegedly lost note and mortgage

was controverted and challenged as to authenticity and alteration of its original terms.

75. This Court knew that BankUniteds facially fraudulent affidavits were sham .

76. A person seeking enforcement of an instrument under UCC 3-309(a)(b) must prove the

terms of the instrument and the persons right to enforce the instrument.

77. BankUnited had to, but failed , to prove the terms of the alleged instruments and the

persons right to enforce the alleged instruments .78. Here, BankUnited failed to prove any terms , and the terms of the alleged obligation and/or

instrument were vague and ambiguous .

79. Here, Walter Prescott neither executed the purported note nor loan modification agreement .

80. This Court may not enter judgment in favor of BankUnited , because the Court knew that

the defendants are not adequately protected against loss and BankUniteds fraud on the

Court by means of, e.g., null and void affidavits .

a. Controverted by the record evidence, BankUnited fraudulently stated under oath thatsaid disposed wrongful action was uncontested and allegedly devoid of genuine issuesof material fact . See, e.g., Affidavit of Plaintiffs Counsel as to attorneys fees and costs.

b. The Albertelli Law foreclosure mill employed unlawful robo-signers and robo-signing schemes.

c. Barbie Fernandez fraudulently stated under oath, e.g., that BankUnited is the owner or servicer for the owner of the lost /destroyed and non-reestablished instruments . SeeAffidavit as to amounts due and owing;

d. Ashley Simon, Esq., stated under oath, e.g., that she had not reviewed the actual file inthis case. See Affidavit as to reasonable attorneys fees.

81. On the clear evidence presented and before this Court, plaintiff BankUnited had no

standing and no real interest , and this previously disposed wrongful foreclosure action

cannot be tried and/or adjudged under the Rules and Florida Statutes.


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82. Defendants did not default under the destroyed and/or lost note and mortgage , and no

payment was due to BankUnited .

83. Plaintiff bank failed to assert any chain of title and/or assignment of the destroyed /lost note

and mortgage.

84. On or around 07/09/2009, Alfred Camner, Esq., the troubled founder of bankrupt and seized

BankUnited, FSB , had alleged unknown loss and/or destruction of a purported note and/or

mortgage .

85. Here because Alfred Camner was the bankrupt banks founder , it was as if BankUnited,

FSB had asserted the loss /destruction of the alleged instruments .86. Thereafter, Alfred Camner, Esq., Serena Kay Paskewicz, Esq., and/or the Camner Lipsitz Law

Firm were fired .

87. Defendants JENNIFER FRANKLIN-PRESCOTT, WALTER PRESCOTT, JOHN DOE, and

MARY DOE, file their response(s) , affirmative defenses and claim for attorneys fees and

in support thereof state:

88. Walter Prescott was not the maker of any alleged promissory note dated February 15, 2006, or

any other promissory note, as evidenced by the exhibits attached to the complaint.

89. Walter Prescott was not the maker of any loan modification agreement as evidenced by the

December 2010 Notice of Filing of Original Loan Modification Agreement on file.

90. The purported plaintiff has not alleged facts sufficient to demonstrate that it invoked and/or

could have possibly invoked the jurisdiction of this court. Here, plaintiff did not satisfy and

could not have possibly satisfied the required conditions precedent as evidenced by the file.

Here, the falsely alleged promissory note and mortgage have been lost or destroyed and are


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not in the custody or control of BankUnited, and the time and manner of the loss or

destruction is unknown .

91. Paragraph 1 of purported plaintiffs complaint is denied .

92. Paragraph 2 is denied . Here under paragraph 6, said [alleged] promissory note and mortgage

have been lost or destroyed and are not in the custody or control of BankUnited, and the

time and manner of the loss or destruction is unknown . Furthermore, said alleged note

and/or mortgage could not have possibly been re-established pursuant to Ch. 673, Florida

Statutes (2010), or any other law, and therefore, BankUnited had no standing and right to

foreclose and sue the defendants.93. Here, no default has and/or could have possibly occurred , and no contractual obligation

existed.

94. Paragraph 3 is denied . Here, BankUnited was never entitled to any action and/or

reestablishment of any note based on the admissible evidence on file.

95. Paragraph 4 is denied .


97. Paragraph 6 is admitted and said [purported] promissory note and mortgage have been lost

or destroyed and are not in the custody or control of BankUnited, and the time and

manner of the loss or destruction is unknown . Furthermore, said alleged note and/or

mortgage could not have possibly been re-established pursuant to Ch. 673, Florida Statutes

(2010), or any other law, and therefore, BankUnited had no standing and right to

foreclose and sue the defendants.




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100. Paragraph 9 is denied . BankUnited is not any successor in interest to BankUnited,

FSB.101. Paragraph 10 is denied . Here, BankUnited could not enforce and/or reestablish any note ,

and pursuant to paragraph 6, the alleged promissory note and mortgage have been lost or

destroyed and are not in the custody or control of BankUnited, and the time and manner

of the loss or destruction is unknown .



104. Paragraph 13 is denied . Furthermore, said paragraph is grammatically in error.

105. Here, paragraph 14 was vague and ambiguous as there were two paragraph 14 .106. Paragraph 14 is denied. None of the defendants owe(s) any fees to BankUnited in the

record absence of any note in evidence. Here, BankUnited owes fees to the defendants.

Here, there had been a disposed wrongful foreclosure action, which was facially frivolous

and insufficient .

107. Paragraph 15 is denied . Here, pursuant to paragraph 6 (Count I), the alleged promissory

note and mortgage have been lost or destroyed and are not in the custody or control of

BankUnited, and the time and manner of the loss or destruction is unknown .

108. Paragraph 16 is denied . Here under Paragraph 6, said [purported] promissory note and

mortgage have been lost or destroyed and are not in the custody or control of BankUnited,

and the time and manner of the loss or destruction is unknown . Furthermore, said alleged

note and/or mortgage could not have possibly been re-established pursuant to Ch. 673,

Florida Statutes (2010), or any other law, and therefore, BankUnited had no standing and

right to foreclose and sue the defendants.


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DISPOSED CASE WAS NEVER AT ISSUE -TRIAL WOULD VIOLATE DUE PROCESS

109. Pursuant to Fla. R. Civ. P. 1.440, this action was not even at issue and could not possibly

be set for trial. Here, defendants were entitled to dismissal and the hearing of their

motions to dismiss . Here, this action had been disposed on 08/12/2010 and was not ready to

be set for trial. Retired robo Judge Monaco has been in the pocket of the bank(s), and the

Court violated said Rule.

110. Any order setting this disposed case for trial would have to be sent to the defendants

by the trial court in order to assure due process .

111. Defendants assert the following: (1) that they did not receive any order; and/or (2) thatwithout having received an order in an envelope mailed by this Court, it created doubt as to

the order's authenticity ; and/or (3) that the unauthorized trial would commence less than

30 days from the receipt of the order.

112. Apparently here, robo Judge Monaco seeks to deprive the defendants of due process .

113. Strict compliance with Florida Rule of Civil Procedure 1.440 is required and failure to

do so is reversible error. Ramos v. Menks, 509 So. 2d 1123 (Fla. 1 st DCA 1986); Bennett v.

Continental Chemicals, Inc., 492 So. 2d 724 (Fla. 1 st DCA 1984).

114. Defendants have had a due process entitlement to notice and an opportunity to be heard

pursuant to Florida Rule of Civil Procedure 1.440. Bowman v. Kingsland Development, Inc.,

432 So. 2d at 663.

115. Here, defendants fundamental due process rights are being violated by the defective

notice of (non)-jury trial.

116. Jennifer Franklin-Prescott owns the property at 25 6 th Street North, Naples, Florida 34102.


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117. Under Rule 1.420(f), Fla. R. Civ. P. (2010), the improper and unauthorized lis pendens

was automatically dissolved upon the disposition of foreclosure on 08/12/2010.

118. Pursuant to 48.23(2), Fla. Stat. (2010), the notice of lis pendens became invalid on

07/10/2010.

119. Here, the instruments were missing and the lis pendens was unjustified under Florida

Communities Hutchinson Island v. Arabia, 452 So.2d 1131, 1132 (Fla. 4 th DCA 1984).

120. Here, the null and void lis pendens placed a non-existent cloud on the title . See Andre

Pirio Assocs. v. Parkmount Properties, Inc., N.V., 453 So.2d 1184, 1186 (Fla. 2d DCA

1984).121. In this disposed action, the purported plaintiff frivolously sought to re-establish the

missing note in COUNT I (Reestablishment of Lost Instruments) of the complaint, which

was impossible as a matter of law .

122. Franklin-Prescott had filed her answer(s) and motions to dismiss and proven plaintiffs

lack of standing , which was one of the ultimate affirmative defenses .

123. The record evidence established that plaintiff could not possibly re-establish the note and

that no authentic instruments could possibly be proven under the Evidence Code.

124. Paragraphs 17, 18, and 19 are denied .

125. Purported plaintiff BankUnited is not any note owner/holder , had no standing , and could

not possibly declared any amounts due under a lost , destroyed , and/or non -reestablished note .

126. Here, the record did not conclusively establish that BankUnited is a holder in due

course of any negotiable instrument. BankUnited did not raise any law and/or doctrine

under which BankUnited did and/or could have possibly become a note owner and/or

holder in due course .


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129. Paragraph 22 is denied as the sentence is incomplete .

130. Paragraph 23 is denied in the record absence of any enforceable instruments.

131. The purported lost mortgage lien was unenforceable due to the deprivation of the

original instrument(s) . Here, BankUnited was unable to enforce any mortgage lien ,

because it never properly obtained the lost /destroyed instruments .

132. BankUnited filed the wrongful suit after the May 2009 seizure of defunct

BankUnited, FSB .133. After bankrupt BankUnited, FSB was seized , its troubled founder, Alfred Camner,

Esq., complained of an UNKNOWN loss /destruction of the purported instruments .

134. As founder of defunct BankUnited, FSB , Alfred Camner knew and concealed that the

alleged lost /destroyed instruments could not have possibly been transferred to

BankUnited .

135. Here, time and manner of the loss were UNKNOWN pursuant to the 07/09/2009

complaint.

136. Here, BankUnited was not any assignee and did not hold title in the purported

lost /destroyed instruments .

137. Here, the record had conclusively evidenced the lack of any chain of title .

138. BankUnited was not any real party in interest , did not hold legal title to the

destroyed /missing mortgage and note , and was not the proper party to file suit to foreclose

the alleged mortgage.


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139. Here, there was no effective assignment from BankUnited, FSB to BankUnited or any

legal justification why and how BankUnited could possibly be entitled to enforce the lost

instruments.

140. The destroyed /lost instruments were unenforceable as a matter of law. See, e.g., section

673.3091, Florida Statutes.

141. Here, retired Monaco and the Court knew that BankUnited failed to meet, and could not

possibly have met, the Uniform Commercial Code provisions pertaining to lost and/or

destroyed notes and enforceability of lost /destroyed notes . Therefore, no foreclosure could

possibly occur. See Article 3, U.C.C.; Ch. 673, Florida Statutes (2010).142. The endorsement in blank was unsigned and unauthenticated , creating a genuine issue

of material fact as to whether BankUnited was the lawful owner and holder of the

note and/or mortgage. As in BAC Funding Consortium, Inc. ISAOA/ATIMA v. Jean-

Jacques, 28 So. 3d 936 (Fla. 2d DCA 2010), there were no supporting affidavits or

deposition testimony in the record to establish that BankUnited validly owns and holds the

falsely alleged note and mortgage , no evidence of an assignment to BankUnited , no proof

of purchase of the alleged debt nor any other evidence of an effective transfer . Therefore, the

defendants were entitled to dismissal . Here, no exceptions were invoked.

143. This Court knew of binding precedent and that the Second District had confronted a

similar situation in BAC Funding Consortium, Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So.

3d 936 (Fla. 2d DCA 2010), when the trial court had granted the alleged assignee U.S.

Bank's motion for summary judgment. [That court reversed because, inter alia, " [t]he

incomplete, unsigned, and unauthenticated assignment attached as an exhibit to U.S. Bank's

response to BAC's motion to dismiss did not constitute admissible evidence establishing U.S.


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Bank's standing to foreclose the note and mortgage. " Id. at 939. Said Appellate Court

in BAC Funding Consortium, properly noted that U.S. Bank was " required to prove that it

validly held the note and mortgage it sought to foreclose ." Id.]

144. This Court knew that BankUnited cannot foreclose on the note and mortgage , because

plaintiff is not in possession of the original note and did not reestablish the alleged

lost /destroyed instruments . See 673.3091(1), Fla. Stat.; Dasma Invest., LLC v. Realty

Associates Fund III, L.P. 459 F. Supp. 2d 1294, 1302 (S.D. Fla. 2006).

145. H ere, this Court knew that BankUnited had no standing and/or right to sue and/or

foreclose . 146. This Court knew that defendants had demanded indemnification of defendants for

[wrongful ] prosecution on the purported destroyed and/or lost instruments.

147. So far, this Court did not require a bond pursuant to Lovingood v. Butler Construction

Co., 131 So. 126, 135 (Fla. 1930).

148. However i n this disposed action, the bond was simply mandatory pursuant to Porter

Homes, Inc. v. Soda, 540 So.2d 195, 196 (Fla. 2d DCA 1989)(where a lis pendens is not

founded upon a lawsuit involving a recorded instrument, section 48.23(3) "requires the

posting of a bond."). See Machado v. Foreign Trade, Inc., 537 So.2d 607, 607 n.1 (Fla. 3d

DCA 1988); Munilla v. Espinosa, 533 So.2d 895 (Fla. 3d DCA 1988).

149. Here, retired robo Judge Monaco knew and/or concealed that a plaintiff must be the

owner/holder of the instrument(s) as of the date of filing suit pursuant to Jeff-Ray Corp. v.

Jacobsen, 566 So. 2d 885 (Fla. 4 th DCA 1990); WM Specialty Mortgage, LLC v. Salomon,

874 So. 2d 680, 682 (Fla. 4 th DCA 2004).


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150. Here as of 07/09/2009 , the date of filing suit , BankUnited was not any holder and/or

owner of nor entitled to enforce the destroyed and/or missing instruments .

151. BankUnited was not a holder of the lost /destroyed note at the time it wrongfully filed

suit (07/09/2009) or any time thereafter, was not entitled to enforce and/or reestablish the

alleged lost instruments , and no exception to this requirement was ever asserted. See Am.

Bank of the S. v. Rothenberg, 598 So. 2d 289, 291 (Fla. 5 th DCA 1992) (finding that it is

elementary that to be a holder , one must be in possession of the instrument).

152. Here, BankUnited had neither standing nor any real interest and could not have

possibly enforced the lost and/or destroyed instruments .153. Here, retired Judge Monaco and BankUnited had actual knowledge of the fraud and

lack of good faith prior to the falsely alleged transfer from BankUnited, FSB to

BankUnited , which precluded BankUnited from claiming holder in due course status .

154. Here, temporary Judge Monaco knew and/or concealed that Prescott had controverted

the authenticity of the purported note amd that defendant Walter Prescott had not executed

the alleged note pursuant to the evidence on file.

155. Here no mortgage could possibly secure a non-existing obligation .


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156. The notorious 20 th Judicial Circuit has heard up to 1,000 foreclosure cases per day.

Assuming an 8-hour day, this equated to less than 30 seconds per case, which established

organized bias against defendants and homeowners.

157. The law prohibits rocket dockets for speed and errors at the expense of justice in favor

of banks and lenders.

158. Here, the Docket showed Judge Hugh D. Hayes and the lack of any Reopen Reason

after the 08/12/2010 disposition :

159. Section 831.01, Fla. Stat., provides:

Whoever falsely makes, alters, forges or counterfeits a public record , or acertificate, return or attestation of any clerk or register of a court, public register,


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notary public, town clerk or any public officer, in relation to a matter wherein suchcertificate, return or attestation may be received as legal proof; or a charter, deed,will, testament, bond, or writing obligatory, letter of attorney, policy of insurance, billof lading, bill of exchange or promissory note , or an order, acquittance, or dischargefor money or other property, or an acceptance of a bill of exchange or promissory

note for the payment of money, or any receipt for money, goods or other property, or any passage ticket, pass or other evidence of transportation issued by a commoncarrier, with intent to injure or defraud any person, shall be guilty of a felony of thethird degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

NOTICE OF DEFENDANTS CHANGE OF ADDRESS

160. Hereby, defendants file their Notice of change of address:

Jennifer Franklin-Prescott, et al ., defendants

Care/of Papanui PostShop7 Main North Road, Papanui, Christchurch, 8053

New Zealand

NATIONAL EMERGENCY AND PRESCOTTS NOTICE OF UNAVAILABILITY

161. Jennifer Franklin-Prescott, a United Kingdom citizen, has family, friends, and property in

the Pacific. A national emergency was declared after the devastating NZ earthquake .

Franklin-Prescott cannot leave because of said emergency and will therefore be unavailable .

Hereby, Franklin-Prescott gives again notice of her unavailability .

AFFIRMATIVE DEFENSES PRIOR TO DISPOSITION

FIRST AFFIRMATIVE DEFENSE: FAILURE TO PRODUCE ORIGINAL NOTE

162. A person seeking enforcement of a lost , destroyed or stolen instrument must first prove

entitlement to enforce the instrument WHEN the loss of possession occurred, or has directly

or indirectly acquired ownership of the instrument from a person who was entitled to enforce

the instrument WHEN loss of possession occurred. Further, he/she must prove the loss of

possession was not the result of a transfer by the person or a lawful seizure ; and the person


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cannot reasonably obtain possession of the instrument because the instrument was destroyed,

its whereabouts cannot be determined, or it is in the wrongful possession of an unknown

person or a person that cannot be found or is not amenable to service of process. 673.3091

Fla. Stat. (2010).

163. Here, defendants had denied that BankUnited has ever had possession of the alleged

note and/or mortgage and/or that plaintiff was ever entitled to enforce the instruments the

loss and destruction of which were UNKNOWN . Plaintiff could not establish foundation

to show possession of the note WHEN the loss of possession occurred. Plaintiff could not

establish that plaintiff lost possession of the note after it was transferred to the plaintiff andthat it could not reasonably obtain possession thereof. Absent such proof in this disposed

action, plaintiff had been required by Florida law to provide the original note and mortgage .

Having failed to provide the original note and mortgage at the time of filing , plaintiff

could not sue and/or maintain this disposed action.

164. Here, the plaintiff could not prove the terms of the instrument and the plaintiff banks

right to enforce the alleged instrument . The court may not enter judgment in favor of the

person seeking enforcement unless it finds that the person required to pay the instrument is

adequately protected against loss that might occur by reason of a claim by another person to

enforce the instrument. Fla. Stat. 673.3091(2). In this disposed action, defendants

specifically have been denying all necessary terms of the note are provided in the attached

mortgage/note. Clearly, since the note has been missing , necessary endorsements on the note

are missing ; as such, essential terms and conditions precedent were not provided by the

plaintiff who failed to state a cause of action .

UNCLEAN HANDS DEFENSE


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165. Prescott had asserted and proven (another affirmative defense) that the plaintiff(s) had

failed to follow Florida law of negotiable instruments and including, e.g., obtaining

necessary signatures , acknowledgments , recordations , assignments , and/or endorsements on

the purported non-authentic promissory note and mortgage deceptively submitted to this

Court as alleged debt evidence. As such, the plaintiff came to this court with unclean hands .

RECUSAL/DISQUALIFICATION OF THE TRIAL JUDGE

166. Defendants motion to recuse retired Judge D. R. Monaco was legally sufficient,

because the facts alleged demonstrate that the moving party has a well-grounded fear that

defendants will not receive a fair trial at the hands of said judge. Cave v. State, 660 So. 2d705, 708 (Fla. 1995); Fla. R. Jud. Admin. 2.160.

PRESCOTT FEARS FURTHER FRAUD, DEPRIVATIONS & SHAM PROCEEDINGS

167. After said unlawful 02/22/2011 hearing, Prescott fears that Monaco may further

extend his prima facie bias and again deprive her of due process and fundamental rights to

defend against BankUniteds fraud on the court .

168. Because here no reasonable person, juror or judge could possibly explain the record

errors , contradictions , and arbitrary acts in this disposed case, Franklin-Prescott cannot

possibly trust Judge Monaco, said Circuit, and said rocket docket sham proceedings.

LOST AND/OR DESTROYED F.D.I.C. RECORDS

169. Here, a federal depository institution regulatory agency [F.D.I.C.] was confronted with a

purported lost agreement and/or instruments not documented in the institution's records.

170. No agreement/instruments between a borrower and a bank, which does not plainly appear

on the face of an obligation or in the bank's official records is enforceable against the Federal

Deposit Insurance Corporation.


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7. An Order declaring the correction of the disposition record unlawful and prejudicial at

Franklin-Prescotts expense;

8. An Order enjoining retired robo Judge Monaco from any further deliberate deprivations

of Franklin-Prescotts fundamental Federal and Florida Constitutional rights to own her

property without judicial fraud and fraud on the court ;

9. An Order taking judicial notice of said binding precedent (BAC Funding ) in support of the

record 08/12/2010 disposition ;

10. An Order determining that the invalid lis pendens was not founded upon a duly recorded

authentic instrument therefore requiring a bond to prevent further irreparable harm following

the 08/12/2010 disposition ;

11. An Order declaring the purported plaintiff in this disposed action without any authority to

sue , foreclose , and/or demand any payment from Jennifer Franklin Prescott;

12. An Order declaring the cancelled 02/22/2011 hearing unauthorized in this disposed

action;

13. An Order declaring BankUniteds prima facie sham motion(s) and affidavits

unlawful in this previously disputed and disposed action;

14. An Order declaring the purported note and/or mortgage unenforceable ;

15. An Order taking judicial notice of the prima facie unenforceability of the unrecorded ,

un-assignable, and unpaid mortgage (unpaid mortgage taxes);

16. An Order declaring the purported plaintiff to be in violation of Fed.R.Civ.P. 1.510 in this

disposed and previously controverted action;


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[email protected] , [email protected] , [email protected] ,[email protected] , [email protected] , [email protected] ,[email protected] , [email protected] , [email protected] ,[email protected] , [email protected] , [email protected] ,[email protected] , [email protected] , [email protected] ,

[email protected] , [email protected] , [email protected] ,[email protected] , [email protected] ,[email protected] , [email protected] , [email protected] ,[email protected] , [email protected] , [email protected] ,[email protected] , [email protected] , [email protected] ,[email protected] , [email protected] ,


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From: [email protected]

To: [email protected]; [email protected]

Subject: Fwd: DISPOSED CASE & FRAUDULENT "HEARING", RETIRED TEMP. JUDGE HON. DANIEL R. MONACO

Date: Thu, Mar 3, 2011 3:00 pm

-----Original Message-----From: Darlene M. Muszynski < [email protected] >To: [email protected]: Mon, Feb 21, 2011 7:18 amSubject: RE: DISPOSED CASE & FRAUDULENT "HEARING", RETIRED TEMP. JUDGE HON. DANIEL R. MONACO

We have received various e mails regarding this case. Please be advised that we cannot accept e filing or faxs.You may submit original documents for filing to: Collier County Clerk of the Circuit Court

Attn Civil Department3315 Tamiami Trail E Suite #102Naples, FL 34112-5324 Darlene MuszynskiAssistant Director Civil(239) [email protected]

From: [email protected] [mailto:[email protected] ]Sent: Monday, February 21, 2011 12:22 AMTo: [email protected] ; [email protected] ; [email protected] ; [email protected] ;[email protected] ; [email protected] ; [email protected] ; [email protected] ; DanielMonaco - Circuit Judge; Hugh Hayes - Circuit Judge; [email protected] ; Darlene M. Mus zyns ki;[email protected] ; Collierclerk; Sue M. Barbiretti; Jill M. Lennon; Dwight E. Brock; Robert D. St. Cyr;[email protected] ; [email protected] ; [email protected] ; [email protected] ;[email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ;[email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ;[email protected] ; [email protected] ; [email protected] ; [email protected] ;[email protected] ; [email protected] ; [email protected] ; [email protected] ;

[email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ;[email protected] ; [email protected] ; Jan Metcalfe - JA Judge Hugh HayesSubject: DISPOSED CASE & FRAUDULENT "HEARING", RETIRED TEMP. JUDGE HON. DANIEL R. MONACO

Please visit us on the web at www.collierclerk.com This electronic comm unication is confidential and m ay contain privileged information intended s olely for the name daddresse e(s). It ma y not be use d or disclosed ex cept for the purpose for which it has be en se nt. If you are not theintended recipient, you must no t copy, distribute o r take a ny action induced by or in reliance on information contained inthis mess a ge .

3/3/2011 Fwd: DISPOSED CASE & FRAUDULENT

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Case Information Printer Friendly Version

Style: BANKUNITED vs FRANKLIN-PRESCOTT, JENNIFER

Uniform Case Number: 112009CA0060160001XX Filed: 07/09/2009

Clerks Case Number: 0906016CA

Court Type: CIRCUIT CIVIL Disposition Judge: HAYES, HUGH D

Case Type: MORT GAGE FOR ECLOSURES Disposed: 08/12/2010

Judge: HAYES, HUGH D Reopen Reason:

Case Status: DISPOSED Reopened:Next Court Date: 02/22/2011 Reopen Close:

Last Docket Date: 02/17/2011 Appealed:

Parties Dockets Events Financials

2 of 2 pages. Entrie s per page: 80

Date Text All Entries

09/07/2010 REQUEST FOR JUDICIAL NOTICE

09/07/2010 NOTIC E OF AUTOMATIC DISSOLUTIO N OF LIS PENDENS

09/07/2010 REQUEST FOR JUDICIAL NOTICE

09/14/2010 NOTICE OF APPEAL AMENDED NOTICE OF APPEAL 2D10-4158

09/14/2010 COPY COR RESPONDENCE TO 2ND DCA W/ATTACHMENTS

09/15/2010 NOTICE OF APPEAL AMENDED NOTICE OF APPEAL 2D10-4158

09/15/2010 COPY AMENDED NOTICE OF APPEAL TITLED TO 2ND DCA

09/15/2010 COR RESPONDENCE FROMAPPEAL CLERK TO DCA W/CERTIFIED COPY AMENDED NOTICE OF APPEAL2D10-4158

09/16/2010 COR RESPONDENCE FROMAPPEAL CLERK TO DCA W/CERTIFIED COPY AMENDED NOTICE OF 2ND AMENDEDNOTICE OF APPEAL

09/16/2010 DEMAND FOR FINAL ORDER

10/04/2010 ORDER BY DCATHIS APPEAL DISMISSED BECAUSE APPELLANT FAILED TO COMPLY WITH THIS

COUR TS ORDER OF 8/31/10 R EQUIR ING A COPY OF OR DER APPEALED10/25/2010 ORDER BY DCA THIS APPEAL IS DISMISSED

11/12/2010 NOTIC E OF HEARING

11/12/2010 NOTICE OF FILING AFFIDAVIT OF ATTORNEY FEES

11/12/2010 AFFIDAVIT AS TO ATTORNEYS FEES

12/02/2010 NOTICE OF FILING ORIGINAL NOTE & ORIGINAL MORTGAGE

12/03/2010 MOTIONTO CANCEL UNAUTHORIZED HEARING IN DISPOSED ACTION MOTION FORJUDICI AL NOTIC E / BY JENNIFER FRANKLIN-PR ESCO

12/06/2010 COR RESPONDENCE FROM CO UNSEL TO CLERK

12/06/2010 MOTIO N TO CANCEL HEARING

12/06/2010 OBJECTION TO& MOTION TO COMPEL & QUIET TITLE BY JENNIFER FRANKLIN-PRESCOT

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2/21/2011 Public Inquiry

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12/06/2010 NO APPEARANCE BY THE PARTIES

12/06/2 010 MINUTES - HEARING SEE SCHEDULE MINUTES FOR DETAILS

12/07/2010 NOTIC E OF CANCELLATION 12/06/10 @ 3:00 MOTIO N FOR SUMMARY JUDGMENT

12/08/2 010 OBJECTIO N TO HEARING BY JENNIFER FRANKLIN PR ESCO TT

12/08/2010 OBJECTION TOSTATUS OF DISPOSITION JUDGE & RECUSAL MOTION BY JENNIFER FRANKLINPRESCOTT

12/17/2 010 NOTIC E OF FRAUD & LOSS BY JENNIFER FRANKLIN-PRESCOTT

12/17/2010 MOTIONTO CANCEL UNAUTHO RIZED HEARING IN DISPOSED ACTIO N BY JENNIFER FRANKLIN

PRESCO12/20/2010 OBJECTION TO

(EMERGENCY) TO PURPORTED NOTE IN DISPOSED ACTION & UNNOTICED & UNAUTHOR IZED HEARI NG IN FRAUD ON C OUR T C ASE BASED O N DEFENDANT ET AL

12/22/2010 NOTICE OF FILING ORIGINAL LOAN MODIFICATION AGREEMENT

01/04/2011 OBJECTION TO FRAUD ON THE COURT BY JENNIFER FRANKLIN-PRESCOTT

01/12/2011 NOTIC E OF DROPP ING PARTY JOHN DOE/JANE DOE

01/12/2011 MOTIO N FOR SUMMARY JUDGMENT

01/12/2011 AFFIDAVIT AS TO AMOUNTS DUE

01/12/2011 AFFIDAVIT AS TO ATTORNEYS FEES

02/01/2011 COPY(FAX) NOTICE OF OPPOSITION & OPPOSITION EVIDENCE/FRAUD EVIDENCE & UNAVAILABILITY IN DISPOSED ACTION/NOTIFICATION OF COURT & CLERK ET AL

02/07/2011 NOTICEOF FRAUDULENT AFFIDAVITS BY JASON M TAROKH ESQ & OF UNLAWFUL/UNAUTHOR IZED ACT BY ALBERTELLI LAW (UNSIGNED)

02/08/2011 NOTIC E OF HEARING02/22/11 @10:00A.M., DEFENDANT'S MOTION TO DISMISS/MOTION TO ENJOIN

02/08/2 011 AMENDED NOT ICE OF HEARING02/14/11 @3:30P.M. AMENDED MOTIONFOR SUMMARY JUDGMENT AND FORATTORNEY FEES AGAINST PEDRO LUIS LICOURT

02/08/2 011 AMENDEDMTOIN FOR SUMMARY JUDGMENT AND FOR ATTORNEY FEES AGAINST PEDRO LUISLICOURT

02/09/2011 DEMANDOF FORENSIC REVIEW & AUDIT AND NOTICE OF FRAUDULENT AND/OR INACCURATEACCOUNTING IN DISPOSED ACTION

02/15/2011 NOTICE

OF O BJECTION TO ANY HEARING & MAGISTRATE IN DISPOSED CASE AND OF BEINGBINDING PRECEDENT IN SUPPORT OF 8/12/10 DIPOSITION

02/17/2011 AFFIDAVIT& OR DECLARATORY STATEMENT IN DISPOSED ACTION AS TO LACK OF STANDINGOF BANKUNITED & ITS FRAUD ON THE COURT

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2/21/2011 Public Inquiry

Demand for Trial by Jury

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