robo-signing & foreclosure fraud in florida

8/7/2019 Robo-signing & Foreclosure Fraud in Florida ...

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Jennifer Franklin-Prescott

BankUnited fraud victim

CERTIFIED DELIVERIES

The Honorable Daniel R. Monaco

The Hon. Hugh D. Hayes, Disposition JudgeCircuit Court Judges, Twentieth Judicial Circuit

Judicial Assistants Karen / Jan

Collier County Government Complex3301 Tamiami Trail East

Naples, Florida 34112

Phone: 239.774.8118Fax: 239.252.8870; 239.775.5538; 239.774.9654; 239-252-8020

Email: [email protected],[email protected] , [email protected]

RE: Unlawful hearing in disposed wrongful foreclosure case 09-6016-CA

VIOLATIONS OF OFFICE POLICIES & PROCEDURES IN DISPOSED CASE

ISSUE OF UNAUTHORIZED / UNLAWFUL HEARING

1.Only hearings for Summary and Default Judgments may be scheduled on the

Tuesday, Wednesday and Thursday dockets before Judge Daniel Monaco. These

timeslots will be in 5 minute increments. ( DO NOT schedule any other kind ofmotions on this docket.) All motions other than MSJ and DJ will be cancelled by

Court Administration. No additional motions will be heard with theSummary/Default Judgments before Judge Monaco.

2.

A party/attorney scheduling a hearing mustconcurrently 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. Theoriginal notice must be timely filed with the Clerk of Court.

See OFFICE POLICIES AND PROCEDURE, Senior Judge Foreclosure, Collier County

Clerk of Court.

Here accordingly, BankUnited was not entitledtosue nor to any hearingand did not

serve any timely notice of hearingon Jennifer Franklin-Prescott as also conclusively

evidenced by the Clerks 02/18/2011 Docket.

Respectfully,

/s/Jennifer Franklin-Prescott


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IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT

IN AND FOR COLLIER COUNTY, FLORIDA

BANKUNITED,

non-successor in interestto [lawfully seized] BANKUNITED, FSB.,

purportedplaintiff(s),

vs.

DISPOSED CASE NO.: 09-6016-CA

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

_________________________________________________________________________/

NOTICE OF APPEAL

AND OF BANKUNITEDS LACK OFSTANDING& FRAUD ON THE COURT

1. Jennifer Franklin-Prescott hereby files herNOTICE OF APPEAL. Fraud victim Franklin-

Prescott defends against fraud on the Court and wrongful foreclosure acts by

BankUnited and/or foreclosure mill Albertelli Law.

02/18/2011 DOCKET EVIDENCE

2. In this disposed action, the Clerk of Courts 02/18/2011 Docket showed:


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UNAUTHORIZED (AMENDED) 02/22/11, 10:00A.M., HEARING, DEFENDANTS

MOTION TO DISMISS / MOTION TO ENJOIN

3. On 02/08/2011, BankUnited amended the NOTICE OF 02/22/11 HEARING,

10:00A.M., DEFENDANTS MOTION TO DISMISS / MOTION TO ENJOIN. The

unauthorized amended 02/14/11 HEARING did not take place.

BANKUNITED DID NOT SERVENOTICE OF HEARINGON FRANKLIN-PRESCOTT

4. A party/attorney scheduling a hearing mustconcurrently 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.

See OFFICE POLICIES AND PROCEDURE, Senior Judge Foreclosure, Collier County

Clerk of Court.

5. Here, BankUnited was not entitledto any hearingand did notserve any timely notice of

hearing on Jennifer Franklin-Prescott as also conclusively evidenced by the attached

02/18/2011 Docket.

ISSUE OF UNAUTHORIZED SCHEDULING OF UNLAWFUL HEARING


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Only hearings for Summary and Default Judgments may be scheduled on the

Tuesday, Wednesday and Thursday dockets before Judge Daniel Monaco. These

timeslots will be in 5 minute increments. (DO NOT schedule any other kind of

motions on this docket.) All motions other than MSJ and DJ will be cancelled by

Court Administration. No additional motions will be heard with the

Summary/Default Judgments before Judge Monaco. Id.

BANKUNITEDS LACK OFSTANDING& FRAUD ON THE COURT

6. Pursuant to the conclusive evidence on file in this disposed action, BankUnited lacked any

standing, identification as note holder and/or owner, and entitlement to the pretended

hearing on 02/22/2011. As a matter of law, BankUnited had no right to sue Franklin-

Prescott who does not owe money to BankUnited.

LACK OFAUTHORITYAND/ORJURISDICTION

7. In the prima facie absence of anystandingand required conditions precedent, the Court has

no authority under the Rules. BankUniteds so-called evidence on file was inadmissible,

incompetent, and/or hearsay.

RECORD DISPOSITION IN FAVOR OF PRESCOTT FOR LACK OFSTANDING

8. Case # 09-6016-CA was disposed on 08/12/2010 in favor of Jennifer Franklin-Prescott. This

Court disposed of COUNTS I, II, and III. COUNT I (reestablishment of lost instrument)

was facially frivolous, because the lost instrument/note identified bankrupt and defunct

BankUnited, FSB [rather than BankUnited] as a lender.

9. In its facially frivolous and insufficient complaint for mortgage foreclosure, plaintiff

BankUnited wrongfully sued Jennifer Franklin-Prescott in the record absence of any

instrumentand/ornote identifying BankUnited.

BANKRUPT & SEIZED BANKUNITED, FSB WAS NOT ANY PLAINTIFF

10. BankUnited, FSB was not any plaintiff in this disposed action.


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11. The electronic docket in this disposed action had erroneously listed BankUnited, FSB as a

plaintiff in this disposed action.

12. In this disposed action, Plaintiff BankUnited had deceptively alleged that all conditions

precedent to the institution of this action have occurred (see complaint, 2, p. 2 of 8,

General Allegations).

13. The subject mortgage referenced in the wrongful complaint identified BankUnited, FSB

rather than the plaintiff, i.e., BankUnited.

14. The logo ofbankrupt and lawfully seized BankUnited, FSB included a palm tree and

BANKUNITED.

15. Plaintiff BankUnited had falsely alleged that The plaintiff [is] named in the attached

complaint [BankUnited] is the creditor to whom the debt is owed The undersigned

attorney represents the interest of the plaintiff. See Notice Required by the Debt Collection

Practices Act attached to disposed complaint.

16. Plaintiff BankUnited was not any creditor in the disposed wrongful action.

17. Jennifer Franklin-Prescott did not owe any debt to plaintiff BankUnited pursuant to the

evidence on file in this disposed wrongful action.

18. Undersigned Camner Lipsitz, PA, and/or founder ofbankrupt and defunct BankUnited,

FSB, Alfred Camner, Esq., represented the interest of the plaintiff [BankUnited].

19. BankUnited had fraudulently alleged in the Complaint ( 16, Count II) that plaintiff

[BankUnited] owns and holds the note and mortgage.

20. The purported note and/ormortgage within the four corners of the disposed complaint did

not identify BankUnited as a lender.

21. The purported note/mortgage identified BankUnited, FSB as a lender.


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22. No admissible evidence of any obligation to pay money to BankUnited existed on the

record of this disposed wrongful action, and Jennifer Franklin-Prescott was not obligatedto

make anypaymentto BankUnited.

23. Plaintiff BankUniteds purported 01/12/2011 Affidavits as to amounts due and attorneys

fees were fraudulent and not founded on any note and/or mortgage identifying

BankUnited as a lender.

24. An affidavit that is not executed in accordance with the requirements of Ch. 92, Florida

Statutes, is not competent evidence in a civil case.

25. The allegedpromissory note was never properly executed.

26. BankUnited has had no right to enforce the falsely pretended mortgage/note.

27. BankUnited never satisfied the required conditions precedent.

28. BankUnited had nostanding.

29. BankUnited failed to state any cause of action.

30. BankUnited could not have possibly been entitled to any summary disposition and/or

hearingin this disposed action.

31. Pedro Luis Licourt is not any knownparty to the disposed action, Case # 09-6016-CA

32. The purported Amended Motion for Summary Judgment and for Attorney Fees against

Pedro Luis Licourt was erroneous, irrational, and irrelevant to said disposed action.

33. Said action was disposed, because here no note and/ormortgage had been transferred to

BankUnited.

34. The record and/or docket of this disposed action conclusively evidenced the genuine issues

of material fact, which prohibited any summary disposition after the 08/12/2011

disposition.


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35. The 02/08/2011 Amended Mtoin for Summary Judgment and for Attorney Fees against

Pedro Luis Lizourt was erroneous, irrational, and irrelevant to said disposed action.

36. There was no service of notice of 02/14/2011 hearingupon Jennifer Franklin-Prescott nor

any 02/14/2011 hearing.

37. There was no service of notice of 02/22/2011 hearingupon Franklin-Prescott, and the

amended hearing on 02/14/2010 did not take place.

38. In this disposed action, the purported Defendants motion to dismiss/motion to enjoin was

moot and irrational.

39. Jennifer Franklin-Prescott was neverproperly servedeither bypersonal service of process or

by any other service of process in strict compliance with Chapters 48 and 49, Florida

Statutes.

40. BankUnited failed to conduct a diligent search in strict compliance with the Florida

statutes governing service of process.

41. The record established that the falsely allegedservice by publication was void.

42. Floridas Statutes governing service of process are to be strictly construed to assure that

defendants have the opportunity to protect their rights.

43. Any judgment against a defendant based upon improper service by publication would have

lacked authority of law.

44. Estoppel prevented identical parties from re-litigating prima facie frivolous issues after the

08/12/2010 disposition under the disguise of an unlawful and controvertedsummary

disposition motion.

NOTICE OF OBJECTION TO ANYHEARING&MAGISTRATEIN DISPOSED CASE

AND OF BINDING PRECEDENT IN SUPPORT OF 08/12/2010 DISPOSITION


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FILED NOTICE OF FRANKLIN-PRESCOTTS OBJECTION & NON-CONSENT

45. Jennifer Franklin-Prescott again objects to any hearing and/or any magistrate in this

disposed action. Here, no hearingwas authorizedand/orlawfuland the notice a sham.

RECORD DISPOSITION FOR LACK OFSTANDING& FAILURE TOSTATE CAUSE

46. This action had been disposed on 08/12/2010.

ERRONEOUS NOTICE IN DISPOSED ACTION

47. On 02/18/2011, the Docket showed a notice of hearing which was amended. Here, the

notice did notpertain to Jennifer Franklin-Prescott and/or the disposed action but to Pedro

Luis Licourt, who is not any known party.

UNLAWFUL/UNAUTHORIZEDHEARINGIN DISPOSED ACTION

48. Here, the erroneously alleged amended mtoin for summary judgment does not pertain to

this disposed action. Any hearing and/or any motion for summary disposition would be

improper, unauthorized, and/or unlawful.

NO FEBRUARYHEARINGAPPEARED ON THE DOCKET

49. Here, the 02/18/2011 Docket did not show any hearingand/orhearing date:


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NO CONSENT& OBJECTION TO ANY MAGISTRATE (HEARING)

50. Previously and repeatedly, Franklin-Prescott had objected to any magistrate hearing.Because of the record lack of any consent, a previous hearing had been cancelled in this

disposed action.

51. The record lackofconsenthad been erroneously entered as non-contest:

VAGUE & AMBIGUOUS SHAM NOTICE IN DISPOSED ACTION

52. In this disposed action, the notice was vague, ambiguous, and unintelligent. A pleading is

considered a sham when it is inherently false and based on plain orconceded facts clearly

known to be false at the time the pleading was made. See Decker v. County of Volusia, 698

So. 2d 650, 651 (Fla. 5th

DCA 1997); Destiny Constr. Co. v. Martin K. Eby Constr., 662 So.

2d 388, 390 (Fla. 5th

DCA 1995).

RECORD ABSENCE OFNOTEAND CONDITIONS PRECEDENT

53. Here, no genuine properly executed note identifying BankUnited had existed. Copies of a

null and void note/mortgage and/or hearsay were not admissible under the Code of Evidence.

Here, there were no witnesses and no notary had acknowledgedany authentic note/mortgage.

NON-BINDINGMODIFICATION AGREEMENT

54. BankUnited, FSB, and/or BankUnited knew and/or concealed that

8. The Modification will be legally binding upon the parties, only when it is signed

by Note Holder and each Borrower.

Here, Walter Prescott did not sign the purported Loan Modification Agreement. See

12/21/2010 Notice of Filing of Original Loan Modification Agreement in disposed


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(08/12/2010) action. Because here the alleged 09/05/2007 Modification Agreement was

notsigned by each Borrowerand/or Walter Prescott, it was not legally binding.

FAILURE TOPROVE TERMS

55. A person seeking enforcementof an instrument under UCC 3-309(a) mustprove the terms

of the instrument and the persons right to enforce the instrument. See UCC 3-309(b). Here,

plaintiffBankUnited failed toprove any terms.

RECORD ABSENCE OFEXECUTION

56. Here, the alleged February 2006 note, mortgage, and/or security instrumentdid not identify

BankUnited and could not have possibly encumberedFranklin-Prescotts real property,

because they were notproperly executed.

NOPROOFON FILE IN DISPOSED ACTION

57. Here, Franklin-Prescott had denied the authenticity ofsignatures on the purported noteand/ormortgage alluded to in this disposed case and demanded strictproofthereof, by clear

and convincing evidence, pursuant to 673.3081, Fla. Stat. (2008). See Adjustable Rate

Note, page 4 of 4, in 12/01/2010 and/or 11/01/2010 Notice of Filing of Original Note &

Original Mortgage.

58. Here in particular, there were, e.g., no notarial acknowledgment and no signature by

purported borrower Walter Prescott.

59. The complaint and above Notice(s) of Filing established the purported note as null and

void. Furthermore, the non-genuine copies (prima facie hearsay) in the complaint and

Notices of Filing fatally conflicted.

PARTIES TO ALLEGED NOTE WERE CONFLICTING AND AMBIGUOUS

60. In this disposed action, the purported plaintiff did not assertany valid note and mortgage

assignment status in the complaint. BankUnited was neveridentified. A security could not

possibly follow a non-existent note.

61. Here, there was no assignee of any note. Here, no promissory note and no note assignment

were recorded. See Collier County Public Records. However, assignments must be recorded

to be valid against creditors and subsequent purchasers. 701.02, Fla. Stat. (2010). See also,

Glynn v. First Union Natl. Bank, 912 So. 2d 357, 358 (Fla. 4th

DCA 2005).

62. In this disposed action, the namedpartiesplaintiffs, and/orborrowers were conflicting and

ambiguous. See Docket:


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STYLE OF DISPOSED CASE DID NOTIDENTIFYBANKUNITED, FSB AS PLAINTIFF

63. Here, the style and/or title of the disposed case did not identify BankUnited, FSB as any

plaintiff. Here purportedly, the chain of title included bankrupt BankUnited, FSB,

FDIC[lawful seizure ofbankrupt bank], and BankUnited.

NO TRANSFER OF ALLEGEDINSTRUMENT

64. An instrument is transferred when it is delivered by a person other than its issuer for the

purpose of giving to the person receiving delivery the right to enforce the instrument. See

UCC 3-203(a). If a transferor purports to transfer less than the entire instrument,

negotiation of the instrument does not occur. The transferee obtains no rights under this

Article and has only the rights of a partial assignee. See UCC 3-203(d). Here, the destroyed

and/or lost instrument could not have possibly been delivered and/or transferred, and the

case was disposed on 08/12/2010.

08/12/2010 DISPOSITION & UNVERIFIED 07/09/09 COMPLAINT OF LOST NOTE

65. In this disposed action, BankUnited had filed an unverified mortgage foreclosure complaint

naming Jennifer Franklin-Prescott as a defendant. Said 07/09/2009 complaint included

COUNT I for reestablishment of a lost note, COUNT II (on promissory note), and COUNT

III (on mortgage foreclosure).

UNKNOWN LOSS / DESTRUCTION OF PURPORTEDPROMISSORY NOTE


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66. On behalf of BankUnited, bankrupt BankUnited, FSBs founder Alfred Camner, Esq., had

asserted in the complaint:

6. Said promissory note and mortgage have been lost ordestroyed and are not in the

custody or control of BankUnited, and the time and manner of the loss or destruction

is unknown.Here, no copy of anygenuine promissory note identifying BankUnited was attached to the

complaint.

COPY OFMORTGAGEIDENTIFIED BANKRUPT BankUnited, FSB AS LENDER

67. BankUnited had attached a copy of the mortgage it sought to foreclose to the complaint;

however, said document identified lawfully seized BankUnited, FSB as the "lender".

BankUnited had also attached an "Adjustable Rate Rider" to the complaint, which however

also identified bankrupt BankUnited, FSB as the "lender."

RECORD PROOF OF LACK OFSTANDING

68. Prior to the 08/12/2010 disposition, Jennifer Franklin-Prescott had proven BankUniteds

lackofstanding, answered, and filed a motion to dismiss.

BANKUNITEDS FAILURE TOSTATE ANY CAUSE OF ACTION

69. This action was disposed, because BankUnited had failed tostate any cause action.

ATTACHMENTS PROVED BANKUNITEDS LACK OFSTANDING & CAUSE

70. On 08/12/2010, the action was disposed, because Franklin-Prescott had proven that none of

the attachments to the facially frivolous and insufficient complaint showed thatBankUnited

actually held the note or mortgage, thus giving rise to the disposition and question as to

whetherBankUnitedactually ever hadstandingto foreclose on the mortgage.

BANKUNITEDS FALSE PRETENSES & FRAUD ON THE COURT

71. In this disposed action, BankUnited had falsely pretended:

16. Plaintiff owns and holds the note and mortgage. See COUNT II.

While here BankUnited had fraudulently alleged in its unverified complaint that it was the

holderand/orownerofthe purported note and mortgage, the copy of the mortgage attached

to the complaint listed " BankUnited, FSB" as the "lender". No authentic note identifying

BankUnited was attached.

BANKUNITEDS EXHIBITS CONTRADICTED ITS ALLEGATIONS

72. When exhibits are attached to a complaint, the contents of the exhibits control over the

allegations of the complaint. See, e.g., Hunt Ridge at Tall Pines, Inc. v. Hall, 766 So. 2d 399,


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401 (Fla. 2d DCA 2000) ("Where complaint allegations are contradicted by exhibits

attached to the complaint, the plain meaning of the exhibits control[s] and may be the basis

for a motion to dismiss."); see 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) (holding that when there is an inconsistency between the

allegations of material fact in a complaint and attachments to the complaint, the differing

allegations "have the effect of neutralizing each allegation as against the other, thus

rendering the pleading objectionable").

08/12/2010 DISPOSITION FOR LACK OFSTANDING& FAILURE TOSTATE

CAUSE

73. Because the exhibits to BankUnited's complaint conflicted with its allegations

concerningstandingand the exhibits did not show that BankUnited had anystandingto

foreclose the mortgage, BankUnited did not establish its entitlement to foreclose the

mortgage and/or sue as a matter of law. Accordingly, the action was disposed on 08/12/2010.

BANKUNITED WAS NEVERIDENTIFIED AND HAD NORIGHTS TO ENFORCE

74. Moreover, while BankUnited filed the purportedly lost original note after the 08/12/2010

disposition, the non-authentic and non-executed note did not identify BankUnited as the

lender orholder. BankUnited also did not attach any assignment or any otherevidence to

establish that it hadpurchased the note and mortgage. Further, BankUnited did not file any

supporting affidavits or deposition testimony to establish that it owns and holds the purported

note and mortgage. Accordingly, this Court disposed the action on 08/12/2010, because the

documents before it did not and could not possibly establish BankUnited'sstandingto

foreclose the purported note and mortgage.

BANKUINTED WAS NO HOLDER & HAD NORIGHTSTO ENFORCENOTE

75. A holder is defined as the person in possession if the instrument is payable to bearer or, in

the case of an instrument payable to an identified person, if the identified person is in

possession. Mere ownership or possession of a note is insufficient to qualify an individual

as a holder. See also Adams v. Madison Realty & Dev. Inc., 853 F.2d 163, 166 (3d Cir.

1988). Attainment of the status of holder depends on the negotiation of the instrument to

the transferee. The two elements required fornegotiation, both of which were missing here,


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were the transferof possession of the alleged instrument to BankUnited (non- transferee),

and its indorsementby the holder.

BINDING PRECEDENT BAC FUNDING CONSORTIUM, INC

76. The Second District 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. Bank'sstandingto 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.

RECORD LACK OF ANYADMISSIBLE EVIDENCE:BANKUNITED WAS NOT ANY OWNER AND HAD NORIGHT TO SUE

PRESCOTT

77. In the instant case, the purported note was, e.g., not properly executed, not assigned, the

falsely pretended assignmentnot recorded, and the endorsement in blank was unsigned and

unauthenticated, creating genuine issues of material fact as to whether BankUnited was

ever the lawful owner and holder of the purported note and/or mortgage. As

in BAC Funding Consortium, here there were no supporting affidavits or deposition

testimony in the record to establish that BankUnited validlyownedand heldthe improperly

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

purchase of the debt nor any other evidence of an effective transfer to BankUnited.

AUTOMATICALLY DISSOLVED LIS PENDENS

78. Here, the improper and unauthorized lis pendens was automatically dissolved upon the

disposition of foreclosure. See Rule 1.420(f), Fla. R. Civ. P. (2010). The validity of a notice

oflis pendens is one year from filing. 48.23(2), Fla. Stat. (2010).

79. In this disposed action, the purported plaintiff sought to re-establish the missingnote in

COUNT I (Reestablishment of Lost Instruments) of the complaint (see p. 2 of 8). 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. Here, the record reflected


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thatplaintiffcould notpossiblyre-establish the note and that no authentic note couldpossibly

beproven under the Evidence Code.

FRAUD ON THE COURT & RECORD EVDENCE THEREOF

80. Here however, plaintiff(s), BankUnited and BankUnited, FSB, fraudulently asserted:

that all conditions to the institutions of this action have occurred, been performed or

excused

81. Prior to the 08/12/2010 disposition, plaintiff had failed to re-establish and could not have

possiblyre-established the destroyed and/orlostnote/mortgage. Here, the time and manner

of the loss/destruction had been uinknown. See UCC 3-309; 3-305.

02/15/11 DOCKET SHOWED FRAUD EVIDENCE &DEMAND IN DISPOSED ACTION

PREVIOUS NOTICE OF UNAVAILABILITY IN DISPOSED ACTION

82. Prescott who is in the Pacific had given her notice of unavailability. In this disposed action,

Prescott could not possibly be expected to appear under said entirely unreasonable

circumstances on such unintelligent, irrelevant, unauthorized, and short notice.

UNAUTHORIZED ATTORNEYS

83. Rose, Erin M. was the only attorney authorized in this disposed action.

Here unlawfully, various unknown attorneys appeared without any authority and falsely

pretended a hearing.

RECORD FRAUD ON THE COURT

84. This court knows about the fraud on the Court perpetrated by BankUnited & Albertelli Law:


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In this disposed action, any hearingand/or motion for summary disposition were unauthorized

and improper.

BANKUNITED HAD NO VALIDSECURITY INTEREST

85. In Florida, a security interest in a mortgage and/or the assignment of a mortgage must be

recorded in order to perfect the security interest in the mortgage. Here, no valid BankUnited

security interestexisted.

DEMAND OFLIS PENDENSBOND

86. Florida Statutes, section 48.23, governs the use of a lis pendens, and treats a lis pendens as

one of two types. Here, the purported invalid lis pendens was not founded on a duly recorded

instrument. Here, the purported promissory note was destroyed, lost, and/or transferred.

See Complaint. Furthermore here, there was the lawful seizure of bankrupt BankUnited

and/or an alleged transfer/sale. Here, the missing note/mortgage could not have possibly

been reestablishedand/orenforced. 48.23(3), Fla. Stat. (1993) authorizes the trial court to

"control and discharge the notice of lis pendens as the court may grant and dissolve

injunctions." Here, Prescott appears to be entitled to a lis pendens bond.

87. Here, Prescott showed that the bond is necessary to protect her from irreparable harm after

the disposition. Here, the lis pendens was not based on a recorded genuine instrument. See

Feinstein v. Dolene, Inc., 455 So.2d 1126, 1128 (Fla. 4th DCA 1984).

88. Here, the note was missing and the lis pendens was unjustified. See Florida Communities

Hutchinson Island v. Arabia, 452 So.2d 1131, 1132 (Fla. 4th DCA 1984). Here, the null and

void lis pendens placed a cloud on the title that did not exist. See Andre Pirio Assocs. v.

Parkmount Properties, Inc., N.V., 453 So.2d 1184, 1186 (Fla. 2d DCA 1984).

89. In this disposed action, the bond is simply mandatory. See 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


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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).

CONTESTEDSIGNATUREON PURPORTEDNOTE

90. Here, the signature on the purported note was contested and not authentic. There was no

notarialacknowledgment. See evidence on file.

ALL PLEADINGS WERE SIGNED

91. Here, all of Franklin-Prescotts pleadings were signed (/s/ Jennifer Franklin-Prescott).

NOTICE OF INTERLOCUTORY APPEAL FROMHEARINGIN DISPOSED

ACTION

92. Here, more than one hearingappeared on the Docket after said 08/12/2010 disposition and

Franklin-Prescott appeals from the unauthorized scheduling of hearings in this disposed

action.

AFFIRMATIVE DEFENSES PRIOR TO DISPOSITION

FIRST AFFIRMATIVE DEFENSE: FAILURE TO PRODUCE ORIGINAL NOTE

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

entitlementto 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 must prove the loss of

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

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. (2009).

94. Here, Franklin-Prescott had denied the purported plaintiff has ever had possession of the

alleged note and/ormortgage. Plaintiffcould 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 and that 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 notsue and/or

maintain this disposed action.


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95. Here, the Plaintiff could not prove the terms of the instrument and theplaintiff 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, Franklin-Prescott

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

mortgage/note. Clearly, since the note is missing, necessary endorsements on the note are

missing; as such, essential terms and conditions precedent were not provided by theplaintiff.

UNCLEAN HANDS DEFENSE

96. 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 debtevidence. As such, theplaintiffcame to this court with unclean hands.

WHEREFORE Jennifer Franklin-Prescott respectfully demands

1. Proper processing of this NOTICE OF APPEAL and/or INTERLOCUTORY APPEAL;

2. An Ordertaking judicial notice of said binding precedent (BAC Funding) in support of the

record 08/12/2010 disposition;

3. An Orderdetermining 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;

4. An Orderdeclaring the purported plaintiff in this disposed action without any authority to

sue,foreclose, and/ordemandanypaymentfrom Jennifer Franklin Prescott;

5. An Orderdeclaring any hearingunauthorized in this disposed action;

6. An Order declaring the prima facie sham motion and affidavits unlawful in this

previously disputed and disposed action;

7. An Orderdeclaring the purported note and/ormortgage unenforceable;

8. An Ordertaking judicial notice of the prima facie unenforceability of the unrecorded, un-

assignable, and unpaid mortgage (unpaid mortgage taxes);

9. An Orderdeclaring 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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18

10. An Orderdeclaring the purported 2009 lis pendens invalid on its face and taking judicial

notice of the nullity of the lis pendens and unenforceable mortgage and/ornote;

11. An Orderdeclaring said affidavits hearsay and lacking any legal and/or factual basis in

the absence of any authentic note and/ormortgage;

12. An Ordertaking judicial notice of the lack of anygenuine note, plaintiffs proven fraud

on the Court, opposition, opposition evidence, and case law as to this disposed case;

13. An Orderprohibiting Counsel and/or Jason M. Tharokh, Esq., who did not file any notice

from appearingin this disposed action.

Respectfully,

/s/Jennifer Franklin-Prescott, BankUnited foreclosure fraud victim

ATTACHMENTS 02/18/2011 Docket, et al.

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of this NOTICE OF APPEAL has been delivered to

BankUnited, Albertelli Law, P.O. Box 23028, Tampa, FL 33623, USA, the Clerk of Court,

Hon. Hugh D. Hayes, and Hon. Daniel R. Monaco, Courthouse, Naples, FL 34112, USA, on

February 18, 2011, Pacific Time.

Respectfully,

/s/Jennifer Franklin Prescott, fraud victim

CC: Hon. Hugh D. Hayes (Disposition Judge),Albertelli Law, Hon. Daniel R. Monaco, Karen,United States District Court, Clerk of Court,

The Florida Bar, New York Times, et al.

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

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

[email protected], [email protected]


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Home/ Records Search / Court Records / Public Inquiry / Search Results - ALL / Case - 112009CA0060160001XX

New SearchReturn to Case List

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: MORTGAGE FOR ECLOSURES Disposed: 08/12/2010

Judge: HAYES, HUGH D Reopen Reason:

Case Status: DISPOSED Reopened:Next Court Date: Reopen Close:

Last Docket Date: 02/09/2011 Appealed:

Parties

Dockets

Events

Financials

6 of 6 pages. Entries per page: 20

Date Text All Entries

12/06/2010 NO APPEARANCE BY THE PARTIES

12/06/2010 MINUTES - HEARING SEE SCHEDULE MINUTES FOR DETAILS

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

12/08/2010 OBJECTION TO HEARING BY JENNIFER FRANKLIN PRESCOTT

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

12/17/2010 NOTIC E OF FRAUD & LOSS BY JENNIFER FRANKLIN-PRESCOTT

12/17/2010 MOTIONTO CANCEL UNAUTHORIZED HEARING IN DISPOSED ACTION BY JENNIFER FRANKLINPRESCO

12/20/2010 OBJECTION TO(EMERGENCY) TO PURPORTED NOTE IN DISPOSED ACTION & UNNOTICED &UNAUTHORIZED HEARING IN FRAUD ON COUR T C ASE BASED ON DEFENDANT ET AL

12/22/2010 NOTIC E 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 MOTION 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/UNAUTHORIZED ACT BY ALBERTELLI LAW (UNSIGNED)

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

02/08/2011 AMENDED NOTIC E OF HEARING

Find it here... Site Search

2/18/2011 Public Inquiry

apps.collierclerk.com//Case.aspx?UC 1


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. .ATTORNEY FEES AGAINST PEDRO LUIS LICOURT

02/08/2011 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

Wedne sday night is regular ma intenance time on our se rvers; as a result brief outages may occur.We apologize in advance for any inconvenience.

Home | Site Map | Search | Disclaimer | Privacy Statement | FAQs | Contact UsThis website is ma intained by The Collier County Clerk of the Circuit Court. Under Florida law, em ailaddresse s are public records. If you do not want your email address released in response to a publicrecords request, do not send email to this entity. Instead, contact this office by phone or in writing.

2/18/2011 Public Inquiry

apps.collierclerk.com//Case.aspx?UC 2


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From: MyFax Free

To: Jennifer Franklin-Prescott

Subject: MyFax Notification - Fax Sent Success fully

Date: Fri, Feb 18, 2011 11:28 pm

Dear Jennifer Franklin-Prescott:

Your fax to Dwight E. Brock at +1 (239) 252-8020 has been successfully sent:

Your fax was delivered at 2/18/2011 10:27:54 AM, and contained 24 page(s).

Thank you for choosing MyFax,

The MyFax Team

http://www.myfax.com

2/18/2011 MyFax Notification - Fax Sent Successf

mail.aol.com//PrintMessage.aspx 1


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From: MyFax Free



Date: Fri, Feb 18, 2011 3:42 pm


Your fax to HON. JUDGE DANIEL R. MONACO at +1 (239) 252-8870 has been successfully

sent:

Your fax was delivered at 2/18/2011 9:41:46 PM, and contained 25 page(s).


The MyFax Team





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From: MyFax Free



Date: Fri, Feb 18, 2011 1:58 am


Your fax to HON. JUDGE DANIEL R. MONACO at +1 (239) 252-8870 has been successfully

sent:

Your fax was delivered at 2/18/2011 7:44:18 AM, and contained 11 page(s).


The MyFax Team





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Ozier Muhammad/The New York Times, lef t;

Julie Glassberg/The New York Times

Judge Arthur Schack, left, of New

York State Supreme Court, called one

filing outrageous. Jonathan Lippman,

the states chief judge, says law yers

must ask clients if their paperw ork is

sound.

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Judges Berate Bank Lawyers in ForeclosuresBy JOHN SCHWARTZ

Publi shed: January 10, 2011

With judges looking ever more critically at hom e foreclosures, they

are reaching beyond the bankers to heap some of their most

scorching criticism on the law yers.

In numerous opinions, judges have

accused lawyers of processing shoddyor even fabricated paperwork in

foreclosure actions when representing

the banks.

Judge Arthur M. Schack of New York

State Supreme Court in Brooklyn has

taken aim at an upstate lawyer, Steven

J. Baum, referring to one filing as incredible, outrageous,

ludicrous and disingenuous.

But New Y ork judges are also trying to take the lead in

fixing the mortgage mess by leaning on the lawyers. In

November, a judge ordered Mr. Baums firm to pay nearly$20,000 in fines and costs related to papers that he said

contained numerous falsities. The judge, Scott Fairgrieve

of Nassau County District Court, wrote that swearing to

false statements reflects poorly on the profession as a

whole.

More broadly, the courts in New York State, along with

Florida, have begun requiring that law yers in foreclosure

cases vouch for the accuracy of the documents they

present, which prompted a protest from the New York bar.

The requirement, which is being considered by courts in

other states, could open lawyers to disciplinary actions that could harm or even end

careers.

Stephen Gillers, an expert in legal ethics at New York University, agreed with Judge

Fairgrieve that the involvement of lawyers in questionable transactions could damage the

overall reputation of the legal profession, which does not fare well in public opinion

throughout history.

When the consequence of a lawyer plying his trade is the loss of someones home, and it

turns out there are documents being given to the courts that have no basis in reality, the

profession gets a very big black eye, Professor Gillers said.

The issue of vouching for documents will undoubtedly meet resistance by lawyers

elsewhere as it has in New York.

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30/141

A version of this article appeared in print on January 11, 2011, on page

A1 of the New York edition.

Anne Reynolds Copps, the chairwoman of the real property law section of the New York

State bar, said, We had a lot of concerns, because it seemed to paint attorneys as being

the problem. Lawyers feared they would be responsible for a banks mistakes. They are

relying on a client, or the clients employees, to provide the information on which they are

basing the documents, she said.

The role of lawyers is under scrutiny in the 23 states where foreclosures must be reviewed

by a court. The situation has become especially heated for high-volume firms whose

practices mirror the so-called robo-signing of some financial institutions; in these cases,

documents were signed without sufficient examination or proper notarization.

In the most publicized example, David J. Stern, a lawyer whose Florida firm has been part

of an estimated 20 percent of the foreclosure actions in the state, has been accused of filing

sloppy and even fraudulent mortgage paperwork. Major institutions have dropped the

firm, which has been the subject of several lawsuits, and 1,200 of the 1,400 people once at

the firm are out of work.

The Florida attorney generals office is conducting a civil investigation of Mr. Sterns firm

and two others.

Theres been no determination in a court that Mr. Stern or his employees did wrong

things, said Jeffrey Tew, Mr. Sterns lawyer, adding that the impact was nevertheless

devastating.

There are groups in society that everybody likes to hate, Mr. Tew added. Now

foreclosure lawyers are on the list.

Such concerns have, in recent months, brought a sharp focus on activities in New York

State, and in particular on the practice of Mr. Baum, a lawyer in Amherst, outside Buffalo.

Judges have cited his firm for what they call slipshod work that, in some cases, was

followed by the dismissal of foreclosure actions.

One case involved Sunny D. Eng, a former manager of computer systems on Wall Street.

He and his wife, who has cancer, stopped paying the mortgage on their Holtsville, N.Y.,

home after Mr. Engs I nternet services business foundered. The mortgage w as originally

held by the HTFC Corporation, but the foreclosure notice came fromWells Fargo, a bankthat the Engs had no relationship with. They hired an experienced foreclosure defense

lawyer on Long Island, Craig Robins. The court ultimately ruled in favor of Mr. Eng.

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Judges Berate Bank Lawyers in ForeclosuresPubli shed: January 10, 2011

(Page 2 of 2)

You want to call it God, you can call it God, Mr. Eng said. You

want to call it luck, you can call it luck. We just followed the system,

and thank God the system worked.

Through a spokesman, Mr. Baumsaid, The foreclosure process in New

York State is extremely complex and

subject to extensive judicial review. We

believe this review respects the due

process of anyone who challenges a

foreclosure. Consumer activists and

attorneys representing homeowners have their own agenda

in this process, including degrading the legal work we

conduct on behalf of our clients by using terms like

foreclosure mill, which I find personally and professionally insulting.

He added, What is important now is that all parties attempt to work together to resolve

issues amicably. The barrage of accusations and litigation does little to help the underlying

problems.

Cases across the nation like Mr. Engs have led New Yorks judicial system to take a hard

look at the 80,000 pending foreclosures in the state and demand that the paperwork be

sound, said the states chief judge, Jonathan Lippman. Knowing what we know, our only

option at least from my perspective is to turn to the lawyers who are officers of the

court and say, Youd better go to your clients and find out if these cases are real, he said.

The court devised a two-page affirmation to be signed by lawyers in foreclosure actions

saying they had reviewed the documents and had confirmed the factual accuracy of any

allegations with the clients.

Ann Pfau, deputy chief administrative judge for New York State, who has worked directly

with the state bar to carry out the plan, said, We need to know that this is a court process

that has some integrity.

Judge Pfau said, If you cant get good information, you shouldnt be filing the cases in the

first place.

To address some lawyer concerns, the judiciary issued a modified version of the

affirmation in November but said that the alterations were minor. In the end, the lawyers

are vouching for their filing, Judge Pfau said. They are absolutely still on the hook.

While lawyers are being implicated as part of the problem, they should also be part of the

solution, said Stephen P. Younger, the president of the New Y ork State Bar Association,

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A version of this article appeared in print on January 11, 2011, on page

A1 of the New York edition.

which has not taken an overall position on the foreclosure matter. Foreclosure defense

lawyers, he noted, have led court proceedings to throw out flawed cases.

The real problem is that there are thousands and thousands of people who are

unrepresented by lawyers, Mr. Y ounger said.

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robo-signing & foreclosure fraud in florida

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