appellants' motion for clarification
TRANSCRIPT
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDASECOND DISTRICT, POST OFFICE BOX 327, LAKELAND, FL 33802-0327
CASE NO.: 2D11-1003 L.T. No.: 09-6016-CA
Jennifer Franklin-Prescott, v. “BankUnited”Walter Prescott, et al.,_____________________________________________________________________Appellants/Petitioners, Appellee / Respondent(s).
APPELLANTS’ MOTION FOR CLARIFICATION UNDER RULE 9.330
“NON-FINAL NOTICES OF APPEAL AND ORDER” ON FILE
1. Appeal Clerk Cheryl Bishop erred and did not properly identify defendants’
“Non-Final Notice of Appeal and Order”. See Bishop’s attached 02/22/2011 letter
to James Birkhold.
INTERLOCUTORY APPEALS OF RECORD AND CLARIFICATION
2. Again, Walter Prescott, Jennifer Franklin-Prescott, et al., hereby clarify their
“02/18/2011” and “02/24/2011” Interlocutory Appeal(s):
RECORD OF NOTICES OF “INTERLOCUTORY APPEALS”
3. Here, defendant(s) had prayed for “proper processing of their Notice(s) of
Interlocutory Appeal:
“WHEREFORE Jennifer Franklin-Prescott respectfully demands1. Proper processing of this NOTICE OF APPEAL and/or INTERLOCUTORY APPEAL;” See 02/24/2011 Non-Final Notice of Appeal.
RECORD COURT ERROR
4. Here, there was court error as evidenced by this Court’s erroneous entry of
Appellants’ Non-final Notice as “Final Civil Other Notice from Collier County”. See
attached DCA Docket.
ADOPTION BY REFERENCE OF NON-FINAL APPEAL NOTICES IN PLEADING
5. “Defendants” hereby adopt by reference their previous “02/18/2011” and
“02/24/2011” Non-Final Notices of Appeal in this Pleading.
THIS COURT HAS JURISDICTION
6. These proceedings are “an appeal of a non-final order pursuant to Florida Rule
of Appellate Procedure 9.130”, and this Court has jurisdiction. Here, Prescott’s,
Franklin-Prescott’s, et al., Appeals were cognizable, e.g., under Florida Rule of
Appellate Procedure 9.130.
“DEFENDANTS” WERE ENTITLED TO APPELLATE REVIEW
7. Here, a non-final order met the standards for the issuance of an extraordinary
writ and/or came within the orders enumerated in Florida Rule of Appellate
Procedure 9.130 and was appealable. See Rule 9.130(a).
8. Here, said non-final order permitted appellate review before the trial
proceedings are complete, and said Appellants Prescott, Franklin-Prescott, et al.,
have been invoking the proper method for this Court’s review.
9. Florida Rule of Appellate Procedure 9.130(a) states:
RULE 9.130. PROCEEDINGS TO REVIEW NON-FINAL ORDERS AND SPECIFIED FINAL ORDERS(a) Applicability.(1) This rule applies to appeals to the district courts of appeal of the non-final orders authorized herein and to appeals to the circuit court of non-final orders when provided by general law. Review of other non-final orders in such courts and non-final administrative action shall be by the method prescribed by rule 9.100.
(3) Appeals to the district courts of appeal of non-final orders are limited to those that (A) concern venue; (B) grant, continue, modify, deny, or dissolve injunctions, or refuse to modify or dissolve injunctions; (C) determine (i) the jurisdiction of the person; (ii) the right to immediate possession of property …
10. Here, defendants had properly asserted/identified three basic avenues of and
their entitlement to appellate review:
a. Review of interlocutory orders permitted by Rule 9.130;
b. Review by extraordinary writ; and
c. Review of final orders.
11. Defendants have the right to take their non-final appeal within 30 days of the
order sought to be reviewed or the order can be reviewed at the end of the case. [If
defendants had not chosen to take their interlocutory appeals, they could have still
appealed that order at the end of the case.]
DEMAND FOR COMMON LAW RELIEF
12. Here, Prescott, Franklin-Prescott, et al., have also asked that their Notices of
Appeal be treated as petitions for writ of certiorari (common law remedy).
RECORD OF 08/12/2010 DISPOSITION
13. The lower tribunal had previously disposed of the wrongful foreclosure action
for, e.g., lack of “BankUnited’s” standing and failure to state a cause of action. Said
bank and bankrupt “BankUnited, FSB’s” founder, Alfred Camner, Esq., had alleged
the UNKNOWN destruction and/or loss of mortgage and/or note.
“ORDER” DEFINED
14. The term “order” Is broadly defined to include all final and interlocutory rulings
of a lower tribunal.
UNLAWFUL NON-FINAL ORDER BY LOWER TRIBUNAL
15. Here without any authority, the lower tribunal set non-jury trial before the case
was even “at issue” and even though defendants were entitled to trial by jury:
CIRCUIT COURT LACKS JURISDICTION
16. The Circuit Court lacks jurisdiction to enter [final] judgment in the present case.
See, e.g., Brewer v. Solovsky, 899 So. 2d 497, 498 (Fla. 4th DCA 2005); Katz v.
NME Hosps., Inc., 791 So. 2d 1127, 1128 (Fla. 4th DCA 2000) (citing the Committee
Note to Rule 9.130(f) in ruling that the lower court loses jurisdiction to enter final
judgment as long as an appeal from a non-final order is pending); Jones v. Jones,
703 So. 2d 501, 501 (Fla. 1st DCA 1997) ("Under subsection (f), therefore, the `lower
tribunal is divested of jurisdiction to enter a final order disposing of the case' while
an appeal [of a non-final order] is pending. Fla. R. App. P. 9.130(f)(Committee
Notes)."); Imperatore v. NationsBank of Fla., N.A., 677 So. 2d 933, 935 (Fla. 4th DCA
1996). See also Napoleonic Soc'y of Am., Inc. v. Snibbe, 696 So. 2d 1243, 1243
(Fla. 2d DCA 1997) (treating final order entered in violation of Rule 9.130(f) as a
"nullity" … because Rule "9.130(f) prohibits the trial court from rendering a final
order during the pendency of appellate review of a non-final order").
MEMORANDUM IN SUPPORT OF LOWER TRIBUNALS LACK OF JURISDICTION
17. Here, “Defendants” had raised the issue of the circuit court's lack
of jurisdiction to enter final judgment. The Supreme Court, in Polk County v.
Sofka, 702 So. 2d 1243, 1244-45 (Fla. 1997), refused to decide merits where a
case came from a court that lacked jurisdiction to enter judgment. In Sofka, the
Florida Supreme Court refused to review a question the Second District had
certified to it, explaining that "courts are bound to take notice of the limits of their
authority and if want of jurisdiction appears at any stage of the proceedings,
original or appellate, the court should notice the defect and enter an appropriate
order." West 123 Feet v. City of Orlando, . . . 86 So. 197, 198-99 ([Fla.] 1920). This
is because the limits of a court's jurisdiction are of "primary concern," requiring
the court to address the issue "sua sponte when any doubt exists." See Mapoles v.
Wilson, 122 So.2d 249, 251 (Fla. 1st DCA 1960). Id. at 1245.
[The parties in Sofka had stipulated to the district court's jurisdiction to hear
an appeal from a lower court, and the district court had proceeded to hear the
appeal. Instead of deciding the merits of the case when it reached the
Supreme Court, our Supreme Court quashed the Second District's decision,
on grounds that the district court lacked jurisdiction to make the decision
which the petitioner sought review of in the Supreme Court.]
THE CIRCUIT COURT HAD NO JURISDICTION AND ERRED
18. “A jurisdictional rule cannot be altered by the court or by agreement of the
parties." See Metellus v. State, 900 So. 2d 491, 495 (Fla. 2005).
“FINALITY” RULE
19. The Court(s) knew the basic rule that a judgment or order is final if it brings to a
close all judicial labor in the lower tribunal. See GEICO Fin. Serv., Inc. v. Kramer,
575 So. 2d 1345, 1346 (Fla. 4th DCA 1991); Pruitt v. Brock, 437 So. 2d 768, 773
(Fla. 1st DCA 1983).
MOTION FOR CLARIFICATION UNDER RULE 9.330
20. This motion for clarification states with particularity
a. the points of law and/or fact that, in the opinion of the movants, the court has overlooked or misapprehended in its decision;
b. the points of law or fact in the court’s decision that, in the opinion of the movant, are in need of clarification.
Here, the movants include a request that the court issue a written opinion, because
they believe that a written opinion would provide a legitimate basis for supreme court
review.
21. Here, the order shall not be deemed rendered as to any party until all of the
motions are either abandoned or resolved by the filing of a written order.
CLEAR SHOW OF CAUSE - THIS APPELLATE COURT HAS JURISDICTION
22. Here, Prescott and Franklin-Prescott had shown cause:
“APPELLANTS’ RESPONSE TO COURT’S PREJUDICIAL “03/01/2010 ORDERS”,
NOTICE OF APPELLATE & LOWER COURTS’ ERRORS IN FAVOR OF BANK, AND
DEMAND FOR RELIEF AND INJUNCTION”
23. Appellants, Walter Prescott, Jennifer Franklin-Prescott, et al., conclusively
evidenced their rights to appeal and the jurisdiction of this Appellate Court as a
matter of law. No final order needed to be provided under the Rules.
ISSUES – SHOW OF CAUSE
24. Here clearly, Appellants
a. had the right to appeal a non-final order (interlocutory);b. were not required to provide any final order.
Therefore here, this Court’s improper 03/01/2011 orders were prejudicial and
extended the “mass foreclosure” fraud-on-the-Court-scheme in the previously
disposed action. Here unlawfully, Defendant Clerk of the lower Court had
removed the final disposition record after “suggestion of bankruptcy”:
APPEAL CLERK’S ERROR ON THE RECORD
25. In her attached “02/22/2010” letter to Appellate Clerk James Birkhold, Appeal
Clerk Cheryl Bishop did not mark “Non-final Notice of Appeal and Order”. See
attached letter.
Said record error by the lower Court’s Appeal Clerk prejudiced the Appellants who
hereby demand correction and the striking of this Court’s two 03/01/2011 orders.
THIS APPELLATE COURT CLEARLY ERRED
26. On “March 1, 2011”, this Court allegedly wrote:
“Appellant shall show cause within fifteen days why this appeal should not be dismissed for lack of jurisdiction, as appellant had failed to provide a copy of the order appealed as required by Florida Rule of Appellate Procedure 9.110(d), and this court is unable thereby to determine its jurisdiction.”
THIS COURT KNEW THAT “APPELLANTS” NEED NOT PROVIDE FINAL ORDER
27. Here, this Court knew that
a. Defendants/Appellants were not required to provide a final order;b. Appellant(s) had appealed from fraud on the Court, corruption, and/or a
non-final order pursuant to Florida Appellate Rules of Procedure 9.130 [and not “9.110(d)”];
c. Appellants had not appealed from a “final order” under Rule 9.110(d);d. Appellants were of course not required to provide a copy of any final
order;e. No “final order” was “rendered” and/or could have possibly been
“rendered”.
SAID 03/01/11 ORDER WAS PREJUDICIAL AND FOR IMPROPER PURPOSES
28. Accordingly, this Court had jurisdiction, and said Order of this Court was
prejudicial because it was for improper purposes of keeping the “defendants”
away from this Court (fraud on the Court).
“DEFENDANTS” WERE ENTITLED TO APPELLATE REVIEW
29. Here, a non-final order met the standards for the issuance of an extraordinary
writ and/or came within the orders enumerated in Florida Rule of Appellate
Procedure 9.130 and was appealable. See Rule 9.130(a).
30. Here, said non-final order permitted appellate review before the trial
proceedings are complete, and said Appellants Prescott, Franklin-Prescott, et al.,
have been invoking the proper method for this Court’s review.
31. Florida Rule of Appellate Procedure 9.130(a) states:
RULE 9.130. PROCEEDINGS TO REVIEW NON-FINAL ORDERS AND SPECIFIED FINAL ORDERS(a) Applicability.(1) This rule applies to appeals to the district courts of appeal of the non-final orders authorized herein and to appeals to the circuit court of non-final orders when provided by general law. Review of other non-final orders in such courts and non-final administrative action shall be by the method prescribed by rule 9.100. (3) Appeals to the district courts of appeal of non-final orders are limited to those that (A) concern venue; (B) grant, continue, modify, deny, or dissolve injunctions, or refuse to modify or dissolve injunctions; (C) determine (i) the jurisdiction of the person; (ii) the right to immediate possession of property …
32. Here wrongfully, the Court(s) did not “grant an injunction” even though the
lower Court and “BankUnited” perpetrated fraud on the Court and deliberately
deprived Walter Prescott, Jennifer Franklin-Prescott, et al., of due process and their
fundamental rights to, e.g., jury trial and disposition in Appellants’ favor.
33. This Court and the lower Court have known that “BankUnited” had no standing
and no right to sue Prescott, Franklin-Prescott, et al.
34. This Court and the lower Court know that “BankUnited” had no right to schedule
hearings after the lower court had disposed the wrongful foreclosure action on
08/12/2010:
35. The lower court’s record evidenced that 3 (three) prima facie unlawful and
unauthorized hearings were scheduled after said 08/12/2010 disposition:
36. § 28.29, Florida Statutes (2010), Recording of orders and judgments, states:
“Orders of dismissal and final judgments of the courts in civil actions shall be recorded in official records…
Here, the 08/12/2010 disposition record was unlawfully removed from the official
record(s).
PREJUDICE EVIDENCE – FAILURE TO PROCESS INTERLOCUTORY APPEAL
37. On “02/24/2011”, Appellants/”defendants” in the previously disposed action had
filed their “NOTICE OF APPEAL FROM ROCKET DOCKET…” However here, the
Clerk did not process said Interlocutory Appeal:
Appellants demand correction of said fraud on the Court in favor of bank(s).
‘BankUnited’ HAD NO “RIGHT OF POSSESSION OF” DEFENDANT(S)’ PROPERTY
38. Here, “BankUnited” had no right to possession of defendant(s)’s property. Item
(C)(ii) of said Rule 9.1130 is intended to apply whether the property involved is
personal or real as here. It applies to cases in which a party seeks to take
possession and/or title to real property.
39. Here, said Rule applied to this appeal to the circuit court of a non-final order as
provided by general law.
40. The lower court had no authority to perpetrate fraud on the Court and deceive
the “defendants” about “BankUnited’s” lack of standing and lack of any right to
foreclose and sue Prescott and Franklin-Prescott
41. Here, the lower court’s record evidenced clear error and a proper appeal was
taken.
42. Here, the highly meritorious issues for appellate review were perfectly
isolated, identified, and framed, and this Court has jurisdiction to review.
APPEAL FROM FRAUD ON THE COURT, AND FRAUDULENT NON-FINAL ORDER
43. Fraudulently , “mass foreclosure” Judge Monaco set the previously disposed
case for non-jury trial in the record absence of any jurisdiction and/or authority.
UNLAWFUL HEARINGS DEFRAUDED W. PRESCOTT, J. F.-PRESCOTT, et al.
44. Florida Rule of Appellate Procedure 9.130 is entitled:
9.130. PROCEEDINGS TO REVIEW NON-FINAL ORDERS AND SPECIFIED FINAL ORDERS
THE LOWER COURT MAY NOT RENDER ANY FINAL ORDER
45. Here, the corrupted lower Court may not render any final order:
(f) Stay of Proceedings. In the absence of a stay, during the pendency of a review of a non-final order, the lower tribunal may proceed with all matters, including trial or final hearing; provided that the lower tribunal may not render a final order disposing of the cause pending such review.
THIS COURT KNOWINGLY MIS-APPLIED RULE 9.110
46. Here, this Court knowingly mis-applied said Rule 9.110 for improper
purposes of, e.g., promoting the 20th Judicial Circuit’s illegal “rocket docket” and
concealing “BankUnited’s” fraudulent robo-signing and affidavits:
9.110. APPEAL PROCEEDINGS TO REVIEW FINAL ORDERS OF LOWER TRIBUNALS AND ORDERS GRANTING NEW TRIAL IN JURY AND NON-JURY CASES
Here, this Court concealed designated certain instances in which interlocutory
appeals may be prosecuted under the procedures set forth in said Rule without any
requirement to provide a final order.
APPELLANTS WERE ENTITLED TO STAY IN PREVIOUSLY DISPOSED CASE
47. Stays of proceedings in lower tribunals should be liberally granted, in
particular if the interlocutory appeal involves fraud on the court and/or jurisdiction.
See Rule 9.1130.
48. Here, both Courts knew that in the record absence of any reestablishment of
the destroyed and/or lost mortgage and note, “BankUnited” had never stated any
cause of action.
49. The lower Court’s Clerk erred when he/she listed bankrupt “BankUnited, FSB”
as a plaintiff:
NO RENDITION OF ANY FINAL JUDGMENT – NO PAYMENT REQUIRED
50. On “March 1, 2011”, this Court allegedly wrote:
“This appeal has been filed without a filing fee required by section 35.22(3), Florida Statutes (2008).Appellant[s] shall forward the required $300.00 filing fee or, if applicable, a certificate or order from the circuit court finding appellant insolvent pursuant to section 57.081 or 57.085, F.S. (2008), as applicable, within forty days from the date of this order.”
51. Rule 9.110(b) provides that a party seeking to appeal must pay the required filing
fees within 30 days with the clerk of the lower court after the judgment is rendered.
Here, an appeal from a final order/judgment could not have possibly commenced,
because there was no rendition of any final judgment/order.
THIS COURT KNEW THAT NO “FINAL ORDER” WAS EVER RENDERED/FILED IN
DISPOSED WRONGFUL FORECLOSURE ACTION
52. This Court knew that the action had been disposed on 08/12/2010, and that no
trial could have ever possibly taken place. However, a [“final”] order must be
“rendered” before it is ripe for appeal.
53. For appellate purposes, the “rendition” date begins the jurisdictional period for
filing an appeal. The rules on rendition, however, are confusing. Rule 9.020(h)
provides that an order is not rendered until the clerk has actually filed the order
signed by a judge. Thus, contrary to popular opinion, an order is not rendered when
the court first announces its ruling or even when the order is signed by the judge.
PATTERN OF UNAUTHORIZED & UNLAWFUL ACTS
54. Here, three times in a row, the lower Court, Clerk, and “BankUnited” agreed to
schedule unauthorized hearings in a disposed wrongful foreclosure action, and
the “defendants” had demanded relief and/or an injunction:
COMMON LAW CERTIORARI WAS AVAILABLE IN DISPOSED WRONGFUL CASE
55. The common law writ of certiorari is available at any time. Said writ provides a
remedy for the clear departure from the essential requirements of law proven in this
case. Here, the lower tribunal deliberately deprived the “defendants” of their
fundamental rights under both the Federal and Florida Constitutions.
56. Otherwise irreparable harm will result from “robo” Judge Daniel R. Monaco’s
wrongful “mass foreclosure” fraud scheme in the previously disposed action.
ERRONEOUS UNLAWFUL RULING WAS APPEALABLE
57. Setting a previously disposed wrongful foreclosure case [in which “BankUnited”
had no standing, and which was not even at issue] for bench-trial was an
erroneous interlocutory ruling which can be corrected by resort to common law
certiorari.
58. Here, this Court and the lower Court knew that the Legislative Branch of
Government had instructed the Judicial Branch to illegally mass-reduce
the foreclosure rocket docket in order to “speed up the State’s economic
recovery”.
59. Here, Prescott, Franklin-Prescott, et al. have rights of review of, e.g., orders on
motions seeking relief from a previous court order on the grounds of, e.g., mistake,
fraud, satisfaction of judgment, or other grounds listed in Florida Rule of Civil
Procedure 1.540. Said “defendants” were clearly entitled to and demanded trial
by jury. The alleged destroyed and/or lost instruments could not be reestablished
as a matter of common law. Here, “rocket docket” robo Judge Monaco had no
authority to set the previously disposed case for non-jury trial.
APPELLANTS’/DEFENDANTS’ CHANGED ADDRESS OF RECORD
60. Hereby, Appellants restate their changed address of record:
Care/of Papanui PostShop
7 Main North Road, Papanui, Christchurch, 8053
New Zealand
WHEREFORE, said Appellants/Defendants in previously disposed respectfully demand
1. An Order clarifying said 03/01/2011 orders;
2. An Order enjoining any non-jury trial by the lower tribunal;
3. An Order restoring justice and the rule of law;
4. An Order staying proceedings in the objectively corrupted lower tribunal under
retired temporary Judge Daniel R. Monaco;
5. An Order prohibiting said mass foreclosure “rocket docket”;
6. An Order enjoining Clerk Brock from obstructing the “02/24/2011”
Interlocutory Appeal;
7. An Order directing proper processing of Appellants’ 02/18/2011 and 02/24/2011”
appeals;
8. An Order declaring that Appellants/Defendants in the previously disposed
action did not need to provide any [non-existent] final order;
9. An Order striking this Court’s two 03/01/2011 orders as erroneous and
prejudicial.
Respectfully,
/s/Walter Prescott, foreclosure fraud victim
/s/Jennifer Franklin-Prescott, BankUnited foreclosure fraud victim
ATTACHMENTS
CERTIFICATE OF SERVICE
We hereby certify that a true and correct copy of this pleading has been delivered to
“BankUnited”, “Albertelli Law”, P.O. Box 23028, Tampa, FL 33623, USA, the Clerk of
Appellate Court, Mr. Birkhold, the Clerk of lower Court, Hon. Hugh D. Hayes, and
retired “rocket docket” Judge Daniel R. Monaco, Courthouse, Naples, FL 34112, USA,
on March 15, 2011.
Respectfully,
/s/Walter Prescott, foreclosure fraud victim
/s/Jennifer Franklin-Prescott, fraud victim
Care/of Papanui PostShop7 Main North Road, Papanui, Christchurch, 8053 New Zealand
DOCKET
03/15/2011 FILING
08/12/2010 DISPOSITION RECORD EVIDENCE
APPEAL CLERK’S RECORD ERROR