fraudulent foreclosure action by f.d.i.c. seized bankunited, fsb

8/8/2019 FRAUDULENT foreclosure action BY F.D.I.C. SEIZED BANKUNITED, FSB

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IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT

IN AND FOR COLLIER COUNTY, FLORIDA

BANKUNITED,

as [purported] successor in interest to [LAWFULLY SEIZED] BANKUNITED, FSB.,

purported “ plaintiff ”

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

JENNIFER FRANKLIN-PRESCOTT, et al .

___________________________________________________________________________/

WRONGFUL & FRAUDULENT foreclosure action BY SEIZED BANK, AND

MOTION FOR JUDICIAL NOTICE OF CH. 673, 59, 90, 92, FLORIDA STATUTES,

AND FEDERAL DEPOSIT INSURANCE ACT

MEMORANDUM

FAILURE TO COMPLY WITH STATUTES AND STATE A CAUSE OF ACTION

1. If a party is not in possession of the original note and cannot reestablish it, the party cannot

prevail in an action on the note. In Dasma Investments, LLC v. Realty Associates Fund III,

L.P., 459 F.Supp.2d 1294 (S.D. Fla.2006) the court explained that in Florida a promissory

note is a negotiable instrument and that a party suing on a promissory note, whether just on

the note itself or together with a foreclose on a mortgage securing the note, must be in

possession of the original of the note or reestablish the note pursuant to Fla. Stat. § 673.3091.

Shelter Dev. Group, Inc. v. Mma of Georgia, Inc., 50 B.R. 588, 590 (Bkrtcy. S.D. Fla.1985).

LAWFULLY SEIZED BANKUNITED’S FAILURE TO COMPLY WITH CH. 673, F.S.

2. A party must comply with section 673.3091, Florida Statues, in order to enforce a lost,

destroyed or stolen negotiable instrument . In this prohibited action, the F.D.I.C. lawfully



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seized bankrupt BankUnited, FSB, Federal Deposit Insurance Act. Here, lawfully seized

BankUnited, FSB

a. FAILED to state that the creditors ever received possession of any original promissory

note; b. FAILED to state a cause of action;

c. FAILED to satisfy the conditions precedent to sue, Ch. 673, Florida Statutes;

d. COULD NOT possibly have complied with section 673.3091, Florida Statues.

RECORD LACK OF promissory note

3. The original document that is generally required to be filed with the court in a mortgage

foreclosure proceeding is the promissory note, not the mortgage. The Evidence Code

provides the rationale for this conclusion. Section 90.952, Florida Statutes (2002), indicates

that original documents are required to prove the contents of a writing .

4. A promissory note is a negotiable instrument within the definition of section 673.1041(1),

and either the original must be produced, or the lost document must be reestablished under

section 673.3091, Florida Statutes (2002). See Mason v. Rubin, 727 So. 2d 283 (Fla. 4th

DCA 1999); see also Downing v. First Nat'l Bank of Lake City, 81 So. 2d 486 (Fla. 1955);

Thompson v. First Union Nat'l Bank, 673 So. 2d 1179 (Fla. 5th DCA 1994); Figueredo v.

Bank Espirito Santo, 537 So. 2d 1113 (Fla. 3d DCA 1989).

LAWFULLY SEIZED BANKUNITED HAD NO right to the payment of money

5. Here, no writing on file evidenced any right to the payment of money by lawfully seized

bankrupt bank BankUnited, FSB, Ch. 673, Florida Statutes.

JENNIFER FRANKLIN PRESCOTT DEMANDED PROTECTION FROM FRAUD

6. Because it is negotiable, the promissory note must be surrendered in a foreclosure

proceeding so that it does not remain in the stream of commerce. Indeed, if the foreclosing

party alleges that the note is lost, destroyed or stolen, the trial court is authorized by statute

to take the necessary actions to protect the party purportedly required to pay the note against



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loss that might occur by reason of a claim by another party to enforce the instrument . See

section 673.3091(2), Fla. Stat. (2002).

7. A mortgage is the security for the payment of the negotiable promissory note, “and is a mere

incident of and ancillary to such note.”

08/12/2010 FINAL DISPOSITION FOR LACK OF “ proper plaintiff ”

LAWFULLY SEIZED BANKUNITED, FSB, HAD NO interest & NO standing

8. Here, the admitted loss, the time and manner of which was unknown, was

a. “the result of a transfer or lawful seizure”, [F.D.I.C.], Ch. 673, Florida Statutes;

b. precluded any establishment of any agreement and/or breach of contract .

BUSTED BANKUNITED FAILED ITS BURDEN

9. Here, the burden was on lawfully seized BankUnited, i.e., the party seeking to enforce the

lost “instrument ”. See § 673.3091(2), Fla. Stat. (2008).

PROVEN INVALIDITY OF RECORD

10. Furthermore here, the invalidity had been proven in the pleadings, Fla. Stat. § 673.3081

(2008).

11. A court will not enforce an instrument unless the defendant will be adequately protected

against future claims on the lost note. Perry v. Fairbanks, 888 So.2d 725, 727, (Fla. 5d DCA

2004).

12. Here, lawfully seized BankUnited FSB, did not have standing to bring and/or maintain any

mortgage foreclosure action against Jennifer Franklin Prescott, because it had proven on the

record that it did not hold any note and /or mortgage. Here, said admitted and known non-

holder of any note had no standing to seek any enforcement of the fictitious note.

“LAWFUL SEIZURE”, FDIC, OF BANKUNITED, FSB’S PROPERTY & NOTES



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13. The property of bankrupt BankUnited, FSB, was “lawfully seized “, Ch. 673, Florida

Statutes. Here in particular, any and all notes and mortgages in the name of failed

BankUnited, FSB, were lawfully seized . Here, lawfully seized BankUnited, FSB:

a. was not a proper party to bring this facially fraudulent action;

b. failed to state a cause of action;

c. could never, under any circumstances, be the proper plaintiff to bring any foreclosure

action against Jennifer Franklin Prescott.

“ LAWFUL SEIZURE ” OF BUSTED BANKUNITED, FSB

14. The admitted loss of the fictitious promissory note was due to lawful seizure of bankrupt

BankUnited, FSB, and/or transfer. Here, lawfully seized BankUnited was not entitled to

enforce the fictitious note.

SEIZED BANKUNITED FAILED TO COMPLY WITH CONDITION PRECEDENT

15. Here, lawfully seized BankUnited could not have possibly satisfied the absolutely required

“condition precedent ”, Ch. 673, Florida Statutes.

FRAUDULENT & FALSE PRETENSES - MATERIAL MISREPRESENTATION

16. “ BankUnited, FSB”, fraudulently pretended:

“9. On February 15, 2006, Franklin Prescott executed and delivered a promissorynote to Bankunited …” “Complaint”, p. 3.

Here on 02/15/2006, BankUnited had not even legally existed .

“16. Plaintiff owns and holds the note and mortgage.” “Complaint”, p. 5.

“6. Said [ fictitious ] 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 lossor destruction is unknown.” “Complaint”, p. 3.

Here, bankrupt BankUnited did not hold or own any note and mortgage. Here, any and

all notes and mortgages had been seized by a U.S Agency. Here, there was fraud on the

Court, Fla. R. Civ. P. 1.540.

THIS COURT’S AUTHORITY TO SANCTION SEIZED BANK’S ATTORNEY(S)



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17. This court has ample authority to sanction lawyers and lenders asserting improper and

facially fraudulent foreclosure claims. Here, Federal Agents had lawfully seized bankrupt

BankUnited, FSB. This court’s authority to sanction crooked attorneys is explicit in Florida

law and implicit in the courts' inherent power to sanction bad faith litigation.

18. Any party seeking to foreclose a mortgage without a good faith belief in the facts giving rise

to the asserted claim may be sanctioned “upon the court's initiative.” § 57.105(1), Fla. Stat.

19. This statute affords judges the authority to immediately impose significant penalties for

bringing unfounded litigation. See Moakely v. Smallwood, 826 So. 2d 221, 223 (Fla. 2002),

citing United States Savings Bank v. Pittman, 80 Fla. 423, 86 So. 567, 572 (1920)

(sanctioning attorney for acting in bad faith in a mortgage foreclosure sale).

CONFIRMED CANCELLATION

20. On 09/02/2010, at 11:20 AM, the Clerk inside Hearing Room 4-1, Naples Courthouse, and

Bailiff D. Chenoweth confirmed the cancellation of the unauthorized “hearing ” before

judicial imposter “Tony Perez ” and/or Antonio J. Perez-Benitoa.

21. The Court explained that Perez-Benitoa was “under contract with” this Court for “one day

per week”. The Court did not disclose “Tony Perez’ credentials.

22. Franklin Prescott contacted the Florida Bar in this matter.

23. Pursuant to the Magistrate’s Office, Debbie, Supervisor, Melanie [09/02/2010, AM], the

“09/02/2010 hearing ” before judicial imposter “Tony Perez ” was cancelled.

24. Here, the law required use of the legal name of any judicial officer . “Tony Perez” is not any

legal name.

NOTICE OF UNTIMELY “notice” and “entry”

25. On the day of the unauthorized hearing , 09/02/2010, the “notice of hearing ” appeared for

the first time. On 09/01/2010, said “notice” had not appeared on the Docket.



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IMPROPER USE OF NON-LEGAL NAME – JUDICIAL IMPOSTER “Tony Perez ”

26. NOTICE IS HEREBY GIVEN of Jennifer Franklin Prescott’s cancellation of

unauthorized “09/02/2010 hearing ” because there was

a. Non-consent by J. Franklin Prescott; b. No order of referral to any magistrate;

c. No notice of hearing ;

d. No setting party of record;

e. No jurisdiction;

f. No standing .

Here, seized and bankrupt BankUnited, FSB, had no standing and could not have possibly

been any party.

27. Pursuant to the Magistrate’s Office, Supervisor Debbie, Rose, 239-252-8870

a. Jennifer Franklin Prescott faxed her filed and recorded NOTICE OF NON-CONSENT and NOTICE OF OBJECTION to the Magistrate’s Office;

b. Jennifer Franklin Prescott’s MOTION TO DISMISS is not to be heard in the record

absence of any notice of hearing required under the Rules. See Docket of this disposedCase.

28. NOTICE IS HEREBY GIVEN of Jennifer Franklin Prescott’s service of NOTICE OF

DISPOSITION AND NON-CONSENT upon the magistrate and/or Antonio J. Perez-Benitoa

at:

a. Magistrate’s Office, c/o Supervisor Debbie, Rose

Naples Courthouse5

thFloor

Naples, FL 34112,T: 252-8331, F: 252-8870 and

b. Antonio J. Perez-Benitoa, P.A.

900 Sixth Avenue South

Suite 303 Naples, Florida 34102

Telephone: 239-430-1884

Fax: 239-30-1885



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http://www.tonypblaw.com

29. Jennifer Franklin Prescott, record holder of unencumbered title to the subject property

[address: 25 6th

ST North, Naples, Florida 34102] does not consent and objected to any

referral to any magistrate, hearing officer , and/or “ special master ”, Rule 1.490, Florida

Rules of Civil Procedure.

JENNIFER FRANKLIN PRESCOTT’S OBJECTIONS TO ANY magistrate

30. In particular, J. Franklin Prescott objects and did not consent to any magistrate

a. findings of fact ; b. conclusions of law.

MEMORANDUM

“A REFERRAL TO A MAGISTRATE REQUIRES THE CONSENT OF ALL

PARTIES.” JENNIFER FRANKLIN PRESCOTT IS ENTITLED TO HAVE THIS

MATTER HEARD BY A JUDGE AND DOES NOT WANT TO HAVE THISMATTER HEARD BY ANY MAGISTRATE . JENNIFER FRANKLIN PRESCOTT

FILE A WRITTEN OBJECTION TO FICTITIOUS referral PRIOR TO

COMMENCEMENT OF THE HEARING.

Here, no hearing can possibly commence.

PUBLICLY RECORDED 08/12/2010 FINAL DISPOSITION

31. On 08/12/2010, Def. Judge Hugh D. Hayes disposed of the fraudulent action.

NO order of referral

32. Here, there were

a. 08/12/2010 Final Disposition;

b. No order of referral; c. No notice of any hearing ;

d. J. Franklin Prescott’s non-consent and objection to any magistrate referral and hearing .



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RECORD LACK OF note and mortgage

33. Here, in the recorded absence of any note and/or mortgage, there was

a. No agreement ;

b. No debt ;

c. No lien;

d. No BankUnited interest .

LACK OF TIMELY NOTICE OF ANY hearing

34. Court staff asserted and published:

“ A party/attorney scheduling a hearing must concurrently notice the matter in

conformance with the Florida Rules of Civil Procedure and ensure timely notice is served on all pro se parties and counsel of record in advance of the hearing. The

original notice must be timely filed with the Clerk of Court. The Judges’ and

Magistrates ask that no courtesy copies be sent to their offices on foreclosure casesonly. The setting party/attorney is responsible for preparing and filing the Order of

Referral pursuant to Rule 1.490, Fl. Civil Rules of Court (also can be found at

www.ca.cjis20.org/web/main/magistrates as a reference, no more signed Order of

Referrals from the above website will be accepted). You will be required to submit

your proposed Order of Referral to the appropriate Judge for each hearing in front

of the Magistrate. This will include all hearings for 10, 15 or 30 minutes and

Special Set hearings. (This will also include any Summary/Default Judgment

hearings requesting more than 5 minutes.)”

Here, no notice was served on Jennifer Franklin Prescott. Here, nothing, no matter , and no

hearing were noticed in violation of the Florida Rules of Civil Procedure.

BANKUNITED, FSB’S LACK OF standing

35. Pursuant to § 48.23, Fla. Stat.,

“1. A notice of lis pendens must contain the following:



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a. The names of the parties.”

Here, the fraudulent notice of lis pendens “contained ” “ BankUnited, FSB”. However here,

said BankUnited was not any note/mortgage holder or party. Here, U.S. agents had seized

BankUnited, FSB.

36. Furthermore here, Jennifer Franklin-Prescott was mischaracterized as a “married woman”

and “Walter Prescott ” as “her husband ”. However here, “Walter Prescott ” is not the

“husband ” of Jennifer Franklin Prescott. Here, the notice of lis pendens did not contain the

parties’ names.

NO jurisdiction

37. Here, “ BankUnited, FSB” was

a. Not any party; b. Had nointerest ;

c. Had no standing .

Here, bankrupt BankUnited, FSB, had no standing , and this Court has no jurisdiction.

RECORD APPEAL - NO jurisdiction

38. Here after disposition and Jennifer Franklin Prescott’s Notice of Appeal, this Court had no

jurisdiction:

NOTICE OF RELEASE & DISCHARGE OF FRAUDULENT lis pendens, CH. 48, F.S.

39. The fraudulent notice of lis pendens, purported INSTR 4318185, Collier County Records,

has been released and discharged. Here admittedly, no note or mortgage could be



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established , Ch. 48, 71, F. S. Purported Plaintiff bankrupt BankUnited failed and was

seized. In the record absence of any note or mortgage, said seized bank’s fraudulent action

and notice were null & void and did not operate as a lis pendens, Ch. 48.

40. Furthermore, a lis pendens is not effectual for any purpose beyond 1 year from the

commencement of the action and expires, § 48.23, Florida Statutes.

41. Here, the pleadings conclusively proved that no action could be founded on any lost and/or

destroyed note and/or instrument . Therefore, the bankrupt and seized bank’s non-

meritorious action not possibly affect the subject property, and the court controlled and

discharged the fraudulent notice of lis pendens, § 48.23, Fla. Stat. The Docket showed the

08/12/2010 Final Disposition by Def. Judge Hugh D. Hayes.

08/12/2010 FINAL DISPOSITION, FLA.R.CIV.P. 1.998

42. Hereby, prevailing Jennifer Franklin Prescott filed the Final Disposition Form pursuant to

Florida Rules of Civil Procedure 1.998, 25.075, Florida Statutes. The Docket evidenced

Judge Hugh D. Hayes’ 08/12/2010 Final Disposition before any hearing .

43. Here, the Docket and official record alterations were

a. Arbitrary and capricious;

b. Unlawful.

WHEREFORE, Jennifer Franklin Prescott hereby again demands

1. An Order taking judicial notice of the Federal Deposit Insurance Act and bankrupt

BankUnited’s lawful seizure by the F.D.I.C.;

2. An Order taking judicial notice, Ch. 92, Fla. Stat., of Ch. 673, Fla. Stat., and the “lawful

seizure” [F.D.I.C.] of busted BankUnited, FSB;

3. An Order taking judicial notice of Ch. 673, 59, 90, and 92, Fla. Stat.;

4. An Order sanctioning the attorneys of lawfully seized BankUnited, FSB, for their

unfounded and fraudulent action;



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5. An Order directing judicial imposter “Tony Perez ” to use and disclose his legal name.

CERTIFICATE OF SERVICE AND PUBLICATION

I HEREBY CERTIFY that a true and correct copy of the above has been furnished to the purported non- plaintiff , James E. Albertelli, Erin Quinn Rose, and Erin Rowland, Albertelli Law,

P.O. Box 23028, Tampa, FL 33623, judicial imposter “Tony Perez ”, Magistrate’s Office, Debbie,

Supervisor, Fax: 239-252-8870, and Defendant Judge Hugh D. Hayes, Naples Courthouse, 3301

E. Tamiami Trail, Naples, FL 34112, on this 3rd

day of September, 2010.

The pleading is also being published worldwide.

________________________

/s/Jennifer Franklin Prescott, Prevailing Victim of lawfully seized BankUnited’s record fraud

fraudulent foreclosure action by f.d.i.c. seized bankunited, fsb

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