counterclaim & demand for trial by jury
TRANSCRIPT
-
8/7/2019 Counterclaim & Demand for Trial by Jury
1/39
1
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR COLLIER COUNTY, FLORIDA
JENNIFER FRANKLIN-PRESCOTT, WALTER PRESCOTT, JOHN DOE, MARY DOE,
Counterclaimants,
vs. PREVIOUSLY DISPOSED CASE NO.: 09-6016-CA
BANKUNITED [non-successor in interest to bankrupt BANKUNITED, FSB],
DANIEL R. MONACO (personal & official capacity), CLERK OF COURT (personal &
official capacity), ALBERTELLI LAW,
Defendants on Counterclaim(s)._____________________________________________________________________________/
COUNTERCLAIM(S) AND DEMAND FOR TRIAL BY JURY
DEMAND FOR AFFIRMATIVE RELIEF IN ADDITION TO AFFIRMATIVE DEFENSES
DISPOSED WRONGFUL FORECLOSUREACTION WAS NEVERAT ISSUE
1. Here, the previously disposed action/complaint was neverat issue, but the court abused its
discretion and set it fornon-jury trial and ordered the defendants to respond after the
unlawfulamended, and then cancelled 02/22/2011 hearing.
MISREPRESENTATION: BENCHTRIAL WOULD VIOLATE DUE PROCESS
2. Pursuant to Fla. R. Civ. P. 1.440, this action was not even at issue and could not possibly be
set fornon-jury 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 notready to
be set for trial. Retired robo Judge Monaco has been in the pocket of the bank(s), and the
Court violated said Rule.
-
8/7/2019 Counterclaim & Demand for Trial by Jury
2/39
2
3. Any order setting this disposed case for trial would have to be sent to the
counterclaimants by the trial court in order to assure due process.
4. Counterclaimants assert the following: (1) that they did notreceive any order; and/or (2) that
without having receivedan 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.
5. Apparently here, robo Judge Monaco seeks to deprive the defendants ofdue process.
6. 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. 1st
DCA 1984).
7. Counterclaimants 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.
8. Here, counterclaimants fundamental due process rights are being violated by the defective
notice of (non)-jury trial.
KNOWN LACK OF JURISDICTION
9. To allow BankUnited to sue defendants/counterclaimants in the previously disposed
wrongful foreclosure action, the court would have to determine that the destroyed/lostnotes
and mortgages were valid, genuine, enforceable, and ownedby BankUnited.
10. Here, Daniel R. Monaco knew and/orconcealed that, e.g., the missinginstruments were not
enforceable and null & void, and thatthe Court had nojurisdiction.
[IMPOSSIBLE] REESTABLISHMENTDEMANDED JURY TRIAL
11. Count I of the complaint demanded trial by jury [reestablishmentof an alleged destroyed
and/or lost note and mortgage. The time and manner of the loss/destruction were
-
8/7/2019 Counterclaim & Demand for Trial by Jury
3/39
3
UNKNOWN]. Here, BankUnited and the Court knew that reestablishment was legally
impossible.
COUNTERCLAIM(S) AT COMMON LAW AND DEMAND FOR JURY TRIAL
12. The Counterclaim(s) is in four Counts and consists of
COUNT I: A suit fordamages forfraud and misrepresentation;
COUNT II: An action to quiet title to certain real property;
COUNT III: A suit seeking damages forbreach of contract; and
COUNT IV: An action fordamages.
Specifically, the counterclaimants and/or counterclaims demand trial by jury on all
issues so triable.
13. Pursuant to Rule 1.170, the counterclaimants have claims for affirmative relief against
BankUnited, Albertelli Law, Daniel R. Monaco, and the Clerk of Court.
14. In this previously disposed case, the complaint sought to reestablish destroyed/lost
instruments and foreclose an alleged destroyed/lostmortgage/note on certain real property
(25 6
TH
Street North Naples, FL), which is in the possession of the defendant
counterclaimants.
15. While the previously disposedwrongful foreclosure suit appears to be equitable in nature,
Count I of the complaint (facially impossible reestablishment after UNKNOWN
destruction/loss of alleged instruments) and the counterclaims are based on the exhibits and
assertions that the recorded version and other versions of the instruments conflicted with
each other and were based on fraud and were, in fact, a forgery.
COUNT 1 AGAINST BANKUNITED:
SUIT FOR DAMAGES FOR FRAUD AND MISREPRESENTATION
-
8/7/2019 Counterclaim & Demand for Trial by Jury
4/39
4
16. BankUnited deceived the counterclaimants with regard to the true legal ownership and
enforceability of the alleged destroyed and/orlostinstruments. Here asa matter of law, it
was impossible to reestablish the missing alleged instruments, and the counterclaimants
were entitled to protection and dismissal of the prima facie frivolous and insufficient
complaint.
17. Here, Walter Prescott was not the maker ofany alleged promissory note dated February 15,
2006, or any other promissory note, as evidenced by the exhibits attached to the complaint.
18. Walter Prescott was not the maker ofany loan modification agreement as evidenced by the
December 2010 Notice of Filing of Original Loan Modification Agreement on file.
COURTS KNOWN LACK OF JURISDICTION
19. The purported plaintiff, BankUnited, has not alleged facts sufficient to demonstrate that
it invokedand/or could have possiblyinvokedthe 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 not in the custody or control of BankUnited, and the time and
mannerof the loss ordestruction is unknown.
BANKUNITED MADE FALSE CLAIMS TO DEFRAUD THE COUNTERCLAIMANTS
20. Purported plaintiff BankUnited does notown and holdany genuinenote and mortgage.
21. 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).
22. Here, BankUnited even pleadedinability to establish holder in due course status because
of the UNKNOWNloss and/ordestruction of the alleged instruments.
-
8/7/2019 Counterclaim & Demand for Trial by Jury
5/39
5
23. 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 ordestroyed and are not in the
custody or control of BankUnited, and the time and manner of the loss ordestruction
is UNKNOWN.
24. Here, there was noevidence as to WHOpossessedthe note WHEN it was lost/destroyed.
25. 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
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.
26. [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.]
27. The alleged mortgage copy did not contain a copy of the alleged executednote.
28. BankUnited fraudulently prayed for reestablishment, no order reestablishing the lost
instruments was entered, and the wrongful action was disposed on 08/12/2010.
29. As a matter of law, reestablishment of the note was impossible under Ch. 673, Florida
Statutes, and the Uniform Commercial Code.
30. BankUnited is not in possession of the purported note and mortgage and notentitled to
enforce them.
31. BankUnited did not know WHO destroyed and/or lost the instruments WHEN and
HOW.
32. 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.
33. BankUnited did notacquire ownership of the instruments from anyone who was entitledto
enforce the alleged instruments WHEN the UNKNOWN loss and/or destruction of the
alleged instruments occurred. See 673.3091, Florida Statutes (2010).
34. On 05/21/2009, BankUnited, FSB was seized.
-
8/7/2019 Counterclaim & Demand for Trial by Jury
6/39
6
35. Here, there had been seizure and transfer which prohibitedre-establishment.
36. BankUnited never produced nor re-established any authentic note and/or mortgage as
proven by the evidence before this Court.
37. 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.
38. This Court knew that BankUniteds facially fraudulentaffidavits were sham.
39. 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.
40. BankUnited had to, but failed, to prove the terms of the alleged instruments and the
persons right to enforce the alleged instruments.
41. Here, BankUnitedfailed to prove any terms, and the terms of the alleged obligation and/or
instrumentwere vague and ambiguous.
42. Here, Walter Prescott neitherexecutedthe purported notenor loan modification agreement.
FRAUDULENT, NULL, AND VOID AFFIDAVITS
43. This Court may not enter judgment in favor of BankUnited, because the Court knew that
the defendant counterclaimants are notadequately protectedagainst 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 that
said disposedwrongful action was uncontested and allegedly devoid ofgenuine issues
of 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. See
Affidavit as to amounts due and owing;
d. Ashley Simon, Esq., stated under oath, e.g., that she had not reviewed the actual file in
this case. See Affidavit as to reasonable attorneys fees.
44. 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 triedand/oradjudgedunder the Rules and Florida Statutes.
-
8/7/2019 Counterclaim & Demand for Trial by Jury
7/39
7
45. Defendant counterclaimants did not default under the destroyed and/or lost note and
mortgage, and no payment was due to BankUnited.
46. BankUnited failed to assert any chain oftitle and/orassignmentof the destroyed/lost note
and mortgage.
ALLEGED DESTROYED / LOST INSTRUMENTS/ LOAN MODIFICATION
47. Section 673.4071, Alteration, Florida Statutes (2010), states in pertinent part:
(1)The term alteration means:
(a)An unauthorized change in an instrument which change purports to modify in anyrespect the obligation of a party; or
(b)An unauthorized addition of words or numbers or other change to an incomplete
instrument which addition or change relates to the obligation of a party.(2)Except as provided in subsection (3), an alteration fraudulently made discharges a
party whose obligation is affected by the alteration unless that party assents or is
precluded from asserting the alteration. No other alteration discharges a party, and theinstrument may be enforced according to its original terms.
(3)A payor bank or drawee paying a fraudulently altered instrument or a person takingit for value, in good faith and without notice of the alteration, may enforce rights with
respect to the instrument according to its original terms or, in the case of an incomplete
instrument altered by unauthorized completion, according to its terms as completed.
48. Fraud was specifically articulated in United States v. Throckmorton, 98 U.S. 61, 65-66, 25
L. Ed. 93 (1878), in which the United States Supreme Court said:
Where the unsuccessful party has been prevented from exhibiting fully his case,
by fraud or deception practiced on him by his opponent, as by keeping him away
from court, a false promise of a compromise; or where the defendant never hadknowledge of the suit, being kept in ignorance by the acts of the plaintiff; or where an
attorney fraudulently or without authority assumes to represent a party and connives
at his defeat; or where the attorney regularly employed corruptly sells out his client'sinterest to the other side--these, and similar cases which show that there has never
been a real contest in the trial or hearing of the case, are reasons for which a new suit
may be sustained to set aside and annul the former judgment or decree, and open thecase for a new and a fair hearing. (Citations omitted.)
Consistent with the general rule, Florida Courts have defined fraud as the
prevention of an unsuccessful party [from] presenting his case, by fraud ordeceptionpracticed by his adversary; keeping the opponent away from court; falsely promisinga compromise; ignorance of the adversary about the existence of the suit or the acts of
the plaintiff; fraudulent representation of a party without his consent and
connivance in his defeat
-
8/7/2019 Counterclaim & Demand for Trial by Jury
8/39
8
COUNT I: FRAUD COUNTERCLAIM AGAINST DANIEL R. MONACO
49. The counterclaimants are suing retired robo Judge Daniel R. Monaco in his private
individual and official capacity. Here, Monaco exceeded the scope of any official capacity
when he, e.g., overturned Judge Hayes previous 08/12/2010 disposition.
50. Here, BankUniteds and Daniel R. Monacos conduct were collateral to the allegations,
exhibits, and issues complained of.
51. Retiredtemporary Judge D. R. Monaco had noauthority to, e.g.:
a. overturn the 08/12/2010 disposition by [Disposition] Judge Hugh D. Hayes in the
absence of the courts jurisdiction;
b. deny dismissal after the previous disposition by Judge Hayes;
c. preside over an amended and then cancelled illegal hearing on 02/22/2011 in the
excused absence of the counterclaimants.
JUDICIAL ABUSE OF DISCRETION AND UNCONSTITUTIONAL ORDER
52. Thus, retired robo Judge Monacos non-jury trial did not square with the requirements of
the governing Constitutions and Statutes.
53. Accordingly, a jury trial on all issues triable by jury mustbe granted.
54. Monaco and/or the Court knew that claims in which fraud is an issue should not be resolved
by summary judgment. See Barrios v. Duran, 496 So.2d 239 (Fla. 3d DCA 1986).
DISPOSED CASE WAS NEVERAT ISSUE-TRIAL WOULD VIOLATE DUE PROCESS
55. Pursuant to Fla. R. Civ. P. 1.440, this action was not even at issue and could not possibly be
set for trial. Here, the counterclaimants were entitled to dismissal and the hearing of their
motions to dismiss. Here, this action had been disposed on 08/12/2010 and was notready to
-
8/7/2019 Counterclaim & Demand for Trial by Jury
9/39
9
be set for trial. Retired robo Judge Monaco has been in the pocket of the bank(s), and the
Court violated said Rule.
56. Any order setting this disposed case for trial would have to be sent to the defendant
counterclaimants by the trial court in order to assure due process.
57. The counterclaimants assert the following: (1) that they did notreceive any order; and/or (2)
that without having receivedan 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.
58. Apparently here, robo Judge Monaco seeks to deprive the defendant counterclaimants of
due process.
59. 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. 1st
DCA 1986); Bennett v.
Continental Chemicals, Inc., 492 So. 2d 724 (Fla. 1st
DCA 1984).
60. The counterclaimants 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.
61. Here, counterclaimants fundamental due process rights are being violated by the defective
notice of (non)-jury trial.
ROCKET DOCKET FRAUD & SPEED INSTEAD OF JUSTICE
62. 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).
-
8/7/2019 Counterclaim & Demand for Trial by Jury
10/39
10
63. Fraud is a compulsory counterclaim to an action in foreclosure on the [here
lost/destroyed] note and/ormortgage. 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.
64. Here without any rational and legal explanation/justification, Monaco/the Court has been
speeding from the 08/12/2010 disposition to trial to favor the bank at counterclaimant
homeowners expense. The counterclaimants experienced and fearfurtherprejudice.
65. To grant any judgment of foreclosure in favor of BankUnited, the Court/Monaco would
have to find, among other things, that said bankownedthe lost/destroyedmortgage/note and
had performedall conditions precedentto enforce the destroyed/missingmortgage/note.
66. However here, BankUnited had asserted the UNKNOWN loss and/ordestruction 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).
67. If arbitrarily and capriciously, after the 08/12/2010 disposition, the foreclosure action
were to proceed to judgmentin 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
defendant counterclaimants affirmative defenses and counterclaims. Thus, to allow the
foreclosure action to proceed before the petitioners' legal counterclaims would deny them
theirfundamentalright to a jury trial, which they have demanded, on those issues.
TEMPORARY ROBO JUDGE MONACO IS BIASED IN FAVOR OF BANK(S)
68. Here, retired robo Judge Monaco knew and/or concealed that a plaintiff must be the
owner/holderof the instrument(s)as of thedate of filing suit pursuant to Jeff-Ray Corp. v.
-
8/7/2019 Counterclaim & Demand for Trial by Jury
11/39
11
Jacobsen, 566 So. 2d 885 (Fla. 4th
DCA 1990); WM Specialty Mortgage, LLC v. Salomon,
874 So. 2d 680, 682 (Fla. 4th
DCA 2004).
69. Here as of 07/09/2009, the date of filing suit, BankUnited was not any holderand/or
ownerofnorentitledto enforce the destroyed and/ormissinginstruments.
70. BankUnited was not a holderof the lost/destroyed note at the time it wrongfully filed suit
(07/09/2009) or any time thereafter, was not entitledto enforce and/orreestablish 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. 5th
DCA 1992) (finding that it is elementary
that to be a holder, one must be in possession of the instrument).
71. Here, BankUnited had neitherstandingnor any real interestand could not have possibly
enforcedthe lost and/ordestroyedinstruments.
72. Here, retired Judge Monaco and BankUnited had actual knowledge of the fraud and lack
ofgood faith prior to the falsely alleged transferfrom BankUnited, FSB to BankUnited,
which precluded BankUnited from claiming holder in due course status.
73. Here, temporary Judge Monaco knew and/orconcealed that Prescott had controverted the
authenticity of the purported note amd that defendant Walter Prescott had notexecutedthe
alleged note pursuant to the evidence on file.
74. Here no mortgage could possibly secure a non-existingobligation.
COUNT I: FRAUD COUNTERCLAIM AGAINST CLERK OF COURT
75. The counterclaimants are suing the Clerk of Court in his private individual and official
capacity. Here, said Clerkexceeded the scope of any official capacity.
LACK OF AUTHORITYTO REMOVE 08/12/2010 JUDICIAL DISPOSITION
-
8/7/2019 Counterclaim & Demand for Trial by Jury
12/39
12
76. 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.
77. Here, the wrongful foreclosure 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 noauthority to
remove/overturn the 08/12/2010 judicialdisposition record without any legal justification.
78. The Clerk had no judicial authority and was not to practice law at counterclaimantsexpense.
COUNT I: SUIT FOR DAMAGES FOR FRAUD AGAINST ALBERTELLI LAW
FRAUD ON THE COURT ON THE RECORD
79. After the 08/12/2010 disposition, Albertelli Law and/or BankUnited filed the
original note which did notidentify BankUnited as the holderorlender.
80. Albertelli Law and BankUnited also did not attach an assignmentor any otherevidence to
establish that it had purchasedand/oracquiredthe alleged lostnote and mortgage.
81. Here, Albertelli Law concealed that the requiredchain of title was notin evidence.
82. Furthermore, BankUnited did not file any genuine supporting affidavits or deposition
testimony to establish that it owns and holds the alleged lost/destroyednote and mortgage
but re-filed non-authenticcopies of the lost/destroyed instrument(s).
83. Accordingly, the documents before this court and retired robo Judge Monaco at the
22/02/2011unauthorized and cancelledhearingdid not establish BankUniteds standing
to foreclose the destroyed/lostnote and mortgage, Thus, at this point, BankUnited was not
entitledto any trial and any judgment in its favor.
-
8/7/2019 Counterclaim & Demand for Trial by Jury
13/39
13
RECORD LACK OF ADMISSIBLE EVIDENCEIN DISPOSED WRONGFUL ACTION
84. Defendants did not execute and deliver an authentic promissory note and mortgage to
BankUnited.
85. Under Florida law delivery is necessary to validate a negotiable instrument.
86. Here, neither any notenormortgage were assignedand deliveredto BankUnited.
87. Here there was nodelivery of any written assignmentof any instrumentto BankUnited.
BANKUNITED FAILED TO STATE A CAUSE OF ACTION& HAD NO STANDING
88. On or around 07/09/2009, Alfred Camner, Esq., the troubled founder ofbankrupt and seized
BankUnited, FSB, had alleged unknownloss and/ordestruction of a purported note and/or
mortgage.
89. Here because Alfred Camner was the bankrupt banksfounder, it was as if BankUnited,
FSB had asserted the loss/destruction of the alleged instruments.
90. Thereafter, Alfred Camner, Esq., Serena Kay Paskewicz, Esq., and/or the Camner Lipsitz Law
Firm were fired.
CONCEALMENT OF LOST AND/OR DESTROYED F.D.I.C. RECORDS
91. Here, Albertelli Law knew that a federal depository institution regulatory agency [F.D.I.C.]
was confronted with a purported lostagreementand/or instrumentsnotdocumented in the
institution's records.
92. 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.
93. It makes no difference whether the issue is presented in the form of a claim or of a defense;
as long as the claim or defense is based upon an alleged agreement the terms of which are
-
8/7/2019 Counterclaim & Demand for Trial by Jury
14/39
14
not contained within the four corners of the written obligation or found in the official records
of the financial institution, the claim or defense is barred. See, e.g., Langley v. FDIC, 484
U.S. 86, 91-92, 108 S. Ct. 396, 401, 98 L. Ed. 2d 340, 347 (1987).
94. Said rule was codified by the Federal Deposit Insurance Act of 1950, 13(e), 64 Stat. 889, as
amended, 12 U.S.C. 1823(e).
95. Here, the Court was obligated to determine and/or consider the lack of subject matter
jurisdiction as invoked by federal law.
RECORD FRAUD UPON THE COURT
96. "'Fraud upon the court' is a special kind offraud, more serious in scope and implication
than fraud sufficient for relief under Federal Rule of Civil Procedure 60(b)(3) [Florida Rule
of Civil Procedure 1.540(b)(3)] or as a ground for an 'independent action." See 7 J. Moore &
J. Lucas, Moore's Federal PracticeP60.31-33 (2d ed. 1983); P60.33 at 515. See also Dankese
Engineering, Inc. v. Ionics, Inc., 89 F.R.D. 154 (D.Mass. 1981).
97. Thus, where an action is grounded on "fraud upon the court," traditional principles of
equity, the failure of the seeker of equity to do equity, etc., see, e.g., Kearley v. Hunter, 154
Fla. 81, 16 So.2d 728 (1944), which might disentitle one to relief, are not applied. As
Professor Moore notes: "The court must also distinguish between relief for 'fraud upon the
court,' for which there is no time limit, from relief by motion, for which there is a one-year
limitation, and from relief by independent action, which is limited only by laches." Moore's,
supra, P6.
RECORD OBJECTIONS TO UNCONSTITUTIONAL NON-JURY/BENCH TRIAL
98. The defendant counterclaimants objected to a non-jury trial, pointing out that they have been
demanded a jury trial, and again ask that the case be set for resolution before a jury.
-
8/7/2019 Counterclaim & Demand for Trial by Jury
15/39
15
99. The court failed to communicate and notice the counterclaimants.
100. Section 22 of the Declaration of Rights contained within the Florida Constitution begins
by declaring that "The right of trial by jury shall be secure to all and remain inviolate." See
also Amend. VII, U.S. Const. Rule 1.430, Florida Rules of Civil Procedure also provides that
"The right oftrial by jury as declared by the Constitution or by statute shall be preserved to
the parties inviolate."
101. In the present case, Count I was at law for reestablishment of an alleged destroyed
and/or lost note and mortgage. The time and manner of the loss/destruction were
UNKNOWN.
102. The counterclaims are unquestionably suits at law seeking damages, the traditional
realm of the civil jury trial.
103. Thus, the issue with which this Court and its rocket docket must come to grips, then,
is how to secure inviolate counterclaimants rights ofjury trial.
104. The claims at law are intermixed with the previously disposed wrongful foreclosure
action.
105. In the record absence of any [reestablished] instruments, BankUnited had failed to
state a cause of action, had nostanding, and could notforeclose and sue.
106. Floridas appellate courts had previously addressed intermixed causes: Spring v. Ronel
Refining, Inc., 421 So. 2d 46 (Fla. 3d DCA 1982); Adams v. Citizens Bank of Brevard, 248
So. 2d 682, 684 (Fla. 4th
DCA 1971). The Spring court cited to Adams, in which the District
Court held that:
[I]f a compulsory legal counterclaim entitles the counter-claimant to a jury trial on
issues which are not common to any issue made by the equitable complaint, the trialcourt should proceed to try the equitable issue non-jury with appropriate provision
made for a jury trial as to the law issues ifdisposition of the equitable issues does not
-
8/7/2019 Counterclaim & Demand for Trial by Jury
16/39
16
conclude the case. But where the compulsory counterclaim entitles the counter-
claimant to a jury trial on issues which are sufficiently similar or related to the issuesmade by the equitable claim that a determination by the first fact finder would
necessarily bind the latter one, such issues may not be tried non-jury by the court
since to do so would deprive the counter-claimant of his constitutional right to trial by
jury.
Here on 08/12/2010, the wrongful foreclosure action had been disposed. Here, Count I of
the complaint and the counterclaims were at law, and counterclaimants have been
demanding jury trial.
COUNT II SUIT TO QUIET TTILE TO CERTAIN REAL PROPERTY
107. The second Count of the counterclaim(s) seeks to quiet title to said real property that is
the subject of the destroyed/lost and non-reestablishedinstruments referenced in the facially
frivolous and insufficient complaint.
DEMAND OF JURY TRIAL - QUIET TITLE / EJECTMENT ACTION(S)
108. In this instance, Florida's quiet title statute specifically authorizes a trial by jury. Section
65.061(1), Florida Statutes (2010), provides in pertinent part that:
if any defendant is in actual possession of any part of the land, a trial by jurymay be demanded by any party, whereupon the court shall order an issue in
ejectment as to such lands to be made and tried by a jury
Thus, in Westview Community Cemetery of Pompano Beach v. Lewis, 293 So. 2d 373 (Fla.
4th
DCA 1974), the court held that because a defendant on the counterclaim was a defendant
in actual possession of the land in question, either party was entitled to a jury trial on the
issues presented.
109. Counts 1 and 3 of the counterclaim are actions fordamages for fraud and breach of
contract, both of which are common law actions fordamages. Because here the causes of
action were intimately intertwined with the previously disposedequitable foreclosure claim
contained in the complaint, there was no question that the counterclaimants were entitled to
-
8/7/2019 Counterclaim & Demand for Trial by Jury
17/39
17
a jury trial on the issues raised by these counts in advance of any non-jury trial on the
previously disposedequitable matters.
COUNT III- SUIT FOR DAMAGES FOR BREACH OF CONTRACT
110. The counterclaimants are suing forbreach of contract based on BankUniteds record
actions of filing untrue affidavits and failure to account.
111. BankUnited materially breached its duty of good faith and fair dealing, which
resulted in proximate damages.
FACIALLY FRAUDULENT ACCOUNTING & NULL & VOID AGREEMENT
112. As witnessed and/or notarized, the alleged destroyed/lost loan modification
agreement was not signed and executed by defendant Walter Prescott and therefore
unenforceable (notlegally binding).
113. 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 before
and 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.
114. The modified mortgage was neverrecorded, and there was no evidence of taxes paid,
which rendered the alleged lostmortgageunenforceable.
BANK KNEW OF RECORD ABSENCE OF CONTRACTUAL OBLIGATION
115. Even if the parties had entered into a new contract, it could not have been legally
substituted for the old contract unless there had been a novation. Here, there were no
contractand nonovation.
"A novation is a mutual agreement between the parties for the discharge of a valid
existing obligation by the substitution of a new valid obligation." See Jakobi v. Kings
-
8/7/2019 Counterclaim & Demand for Trial by Jury
18/39
18
Creek Vill. Townhouse Ass'n, 665 So. 2d 325, 327 (Fla. 3d DCA 1995) (citing Ades
v. Bank of Montreal, 542 So. 2d 1013 (Fla. 3d DCA 1989)).
BankUnited did notprove the substitution of the alleged new contract for the old and did
notshow the four required elements of: (1) the existence of a previously valid contract; (2)
the agreement of the parties to cancel the first contract; (3) the agreement of the parties that
the second contract replace the first; and (4) the validity of the second contract. Id.
Here, the intention of BankUnited did not support novation, and the alleged lien was lost,
destroyed, and/orinvalid, and the previously disposedforeclosure action wrongful.
DEMAND FOR JURY TRIAL & MEMO BY DEFENDANT COUNTERCLAIMANTS
DEFENDANTS COUNTERCLAIM & DEMAND FOR JURY TRIAL
116. Defendants affirmative defenses defeated the disposed action by a denial and/or
avoidance. Defendants admitted the UNKNOWN loss and/ordestruction of the alleged
instruments, which could not be reestablishedas 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).
117. 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.118. 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).
119. Here, BankUnited did not dispute that it failed to rebut defendants affirmative
defenses.
-
8/7/2019 Counterclaim & Demand for Trial by Jury
19/39
19
120. Here, Defendants action/compulsory counterclaim for, e.g., damages for fraud and
breach of contract, were both common law actions for damages.
121. 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.
DEFENDANT COUNTERCLAIMANTS ARE ENTITLED TO JURY TRIAL
122. 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 the
previously 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 defendantcounter-claimants of theirconstitutionalrights
to trial by jury.
123. Here, the issues and/or affirmative claims involved in the compulsory counterclaim
and/orfraud 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.
124. 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).
-
8/7/2019 Counterclaim & Demand for Trial by Jury
20/39
20
125. Defendants were entitled to a jury trial on issues raised in their compulsory
counterclaim that are common to the previously disposedforeclosure claim. See Hightower
v. Bigoney, 156 So.2d 501 (Fla. 1963); Spring, supra.
126. This court cannot determine the factual issues offraud and misrepresentationwithout
evidence and without a fact-finding jury.
127. Thus, the Court must first resolve the affirmative claims and defenses of fraud and
misrepresentation. Any other way would be error.
128. Here after the capricious removal of the 08/12/2010dispositionrecord, the prejudice
is especially predictable and the legal issues must be tried by jury. The defendants
demanded recusal forfear of furtherbias.
APPEAL AFTER PREJUDICIAL AND UNLAWFUL 02/22/2011 HEARING
129. The defendants in this disposed wrongful mortgage foreclosure action appealed the
order(s) entered at the illegal and cancelled 02/22/2011 hearing.
130. In this disposed action, and in the absence of any re-opening, this court improperly
handled disputed factual issues raised in the affirmative defenses and compulsory
counterclaim when it set a trial during said unlawful hearing.
RECORD PREJUDICE AND ERROR
131. Here, it would be error to proceed with the previously disposedwrongful foreclosure
action before jury trial on the interrelated legal counterclaim(s).
132. This court did not have the discretion to deny the demanded jury trial on these factual
issues and Motion(s) to Dismissafterthe 08/12/2010 disposition.
DEFENDANT COUNTERCLAIMANTS DEMANDED JURY TRIAL
133. Defendant counterclaimants had demandedtrial byjury.
-
8/7/2019 Counterclaim & Demand for Trial by Jury
21/39
21
134. Defendants are entitled to trial by jury on, e.g., Count I of Plaintiffs complaint
(reestablishment of lost instruments).
135. Here, defendants have a fundamentalright to jury trial in Floridas State Courts.
136. The Florida Constitution expressly provides for the right to trial by jury. Article I,
Section 22, of the Florida Constitution provides:
22. Trial by Jury
The right of trial by jury shall be secure to all and remain inviolate. The qualifications
and the number of jurors, not fewer than six, shall be fixed by law.
137. Art. I, 22, Fla. Const. Similarly, the Seventh Amendment of the United States
Constitution provides:
In Suits at common law, where the value in controversy shall exceed twenty dollars,the right of trial by jury shall be preserved, and no fact tried by a jury, shall be
otherwise reexamined in any Court of the United States, than according to the rules of
the common law.
Amend VII, U.S. Const.
138. Florida courts have consistently highlighted the importance of the right to a trial by
jury.139. "Questions as to the right to a jury trial should be resolved, if at all possible, in favor of
the party seeking the jury trial, for that right is fundamentally guaranteed by the U.S.
and 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. 4th
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. 4th
DCA 1982)).
MEMORANDUM OF LAW IN SUPPORT OF JURY TRIAL REESTABLISHMENT
140. 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.
-
8/7/2019 Counterclaim & Demand for Trial by Jury
22/39
22
141. 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 jurytrial upon the alleged lostinstruments. See Staiger v. Greb,
App. 3 Dist., 97 So.2d 494 (1957).
142. Because here, there is nodispute that plaintiff seeks to re-establish lost instruments and
to have a deficiency judgment against the defendants, the defendants are emtitled to
demand a jurytrial.
ANSWER TO COMPLAINT BY BANKRUPT BANKS FOUNDER ALFRED CAMNER
143. 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).
144. 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.
145. This Court knew that BankUnited did not establish its entitlement to foreclose the
mortgage as a matter of law.
146. After said 2010 disposition, the action was neverreopened.
147. 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/destroyedmortgage/note or was entitledto the illegal02/22/2011
hearingand any trial.
148. Here, the plain meaning of the exhibits controlled, evidenced lackofstanding, and was
the basis for a motion to dismiss. Blue Supply Corp. v. Novos Electro Mech., Inc., 990 So.
-
8/7/2019 Counterclaim & Demand for Trial by Jury
23/39
23
2d 1157, 1159 (Fla. 3d DCA 2008); Harry Pepper & Assocs., Inc. v. Lasseter, 247 So. 2d
736, 736-37 (Fla. 3d DCA 1971).
149. The trial wrongfully set by temporary Judge Monaco and BankUniteds motion
for summary judgment and were to be denied based on principles ofcollateral estoppel and
res judicata. Here on 08/12/2010, the Court had disposed of BankUniteds wrongful
foreclosure action.
150. On 02/22/2011, retired rocket docket Judge Monaco had no authority to deny
defendants Motion to Dismiss.
DENIALS AND AFFIRMATIVE DEFENSES
151. Defendant counterclaimants 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:
152. Paragraph 1 of purported plaintiffs complaint is denied.
153. Paragraph 2 is denied. Here under paragraph 6, said [alleged] promissory note and
mortgage have been lost ordestroyed and are not in the custody or control of BankUnited,
and the time and mannerof the loss ordestruction 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 standingand
rightto foreclose and sue the defendants.
154. Here, no default has and/or could have possiblyoccurred, and nocontractual obligation
existed.
155. Paragraph 3 is denied. Here, BankUnited was never entitled to any action and/or
reestablishmentof any note based on the admissible evidence on file.
-
8/7/2019 Counterclaim & Demand for Trial by Jury
24/39
24
156. Paragraph 4 is denied.
157. Paragraph 5 is denied.
158. Paragraph 6 is admitted and said [purported] 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. Furthermore, said alleged note and/or
mortgage could not have possibly been re-establishedpursuant to Ch. 673, Florida Statutes
(2010), or any other law, and therefore, BankUnited had no standing and right to
foreclose and sue the defendants.
159. Paragraph 7 is denied.
160. Paragraph 8 is denied.
161. Paragraph 9 is denied. BankUnited is not any successor in interest to BankUnited,
FSB.
162. Paragraph 10 is denied. Here, BankUnited could notenforce and/orreestablish 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 ordestruction is unknown.
163. Paragraph 11 is denied.
164. Paragraph 12 is denied.
165. Paragraph 13 is denied. Furthermore, said paragraph is grammatically in error.
166. Here, paragraph 14 was vague and ambiguous as there were two paragraph 14.
167. 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.
-
8/7/2019 Counterclaim & Demand for Trial by Jury
25/39
25
Here, there had been a disposed wrongful foreclosure action, which was facially frivolous
and insufficient.
168. 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 mannerof the loss ordestruction is unknown.
169. Paragraph 16 is denied. Here under Paragraph 6, said [purported] promissory note and
mortgage have been lost ordestroyed and are not in the custody or control of BankUnited,
and the time and mannerof the loss ordestruction 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 standingand
rightto foreclose and sue the defendants.
DISSOLVED LIS PENDENS DUE UNENFORCEABILITY OF LOST INSTRUMENTS
170. Jennifer Franklin-Prescott owns the property at 25 6th
Street North, Naples, Florida 34102.
171. Under Rule 1.420(f), Fla. R. Civ. P. (2010), the improper and unauthorized lis pendens
was automaticallydissolved upon the disposition of foreclosure on 08/12/2010.
172. Pursuant to 48.23(2), Fla. Stat. (2010), the notice of lis pendens became invalid on
07/10/2010.
173. Here, the instruments were missing and the lis pendens was unjustified under Florida
Communities Hutchinson Island v. Arabia, 452 So.2d 1131, 1132 (Fla. 4th
DCA 1984).
174. Here, the null and voidlis pendens placed a non-existentcloud on the title. See Andre
Pirio Assocs. v. Parkmount Properties, Inc., N.V., 453 So.2d 1184, 1186 (Fla. 2d DCA
1984).
-
8/7/2019 Counterclaim & Demand for Trial by Jury
26/39
26
175. In this disposed action, the purported plaintiff frivolously sought to re-establish the
missingnote in COUNT I (Reestablishment of Lost Instruments) of the complaint, which
was impossibleas a matter of law.
176. Franklin-Prescott had filed heranswer(s) and motions to dismiss and proven plaintiffs
lack of standing, which was one of the ultimate affirmative defenses.
177. The record evidence established that plaintiffcould not possiblyre-establish the note and
that no authentic instruments could possibly be proven under the Evidence Code.
178. Paragraphs 17, 18, and 19 are denied.
179. Purported plaintiffBankUnited is not any note owner/holder, had nostanding, and could
notpossibly declaredany amounts due under a lost, destroyed, and/ornon-reestablished note.
180. 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.
181. Paragraph 20 is denied.
182. Paragraph 21 is denied.
183. Paragraph 22 is denied as the sentence is incomplete.
184. Paragraph 23 is denied in the record absence of any enforceable instruments.
185. 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 neverproperly obtainedthe lost/destroyedinstruments.
186. BankUnited filed the wrongful suit after the May 2009 seizure of defunct
BankUnited, FSB.
-
8/7/2019 Counterclaim & Demand for Trial by Jury
27/39
27
187. After bankrupt BankUnited, FSB was seized, its troubled founder, Alfred Camner,
Esq., complained of an UNKNOWNloss/destruction of the purported instruments.
188. As founder ofdefunct BankUnited, FSB, Alfred Camnerknew and concealed that the
alleged lost/destroyed instruments could not have possibly been transferred to
BankUnited.
189. Here, time and manner of the loss were UNKNOWN pursuant to the 07/09/2009
complaint.
190. Here, BankUnited was not any assignee and did not hold title in the purported
lost/destroyedinstruments.
191. Here, the record had conclusively evidenced the lackof any chain of title.
192. BankUnited was not any real party in interest, did not hold legal title to the
destroyed/missingmortgage and note, and was not the proper party to file suit to foreclose
the alleged mortgage.
193. Here, there was noeffective assignmentfrom BankUnited, FSB to BankUnited or any
legal justification why and how BankUnited could possibly be entitled to enforce the lost
instruments.
194. The destroyed/lostinstruments were unenforceable as a matter of law. See, e.g., section
673.3091, Florida Statutes.
195. 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).
-
8/7/2019 Counterclaim & Demand for Trial by Jury
28/39
28
196. 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, noevidence of an assignmentto BankUnited, noproof
of purchase of the alleged debt nor any otherevidence of an effective transfer. Therefore, the
defendants were entitledto dismissal. Here, noexceptions were invoked.
197. This Court knew ofbinding 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.
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.]
198. This Court knew that BankUnitedcannotforeclose 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).
199. Here, this Court knew that BankUnited had no standing and/or right to sue and/or
foreclose.
-
8/7/2019 Counterclaim & Demand for Trial by Jury
29/39
29
200. This Court knew that defendants had demanded indemnification of defendants for
[wrongful] prosecution on the purported destroyed and/orlostinstruments.
201. So far, this Court didnotrequirea bond pursuant to Lovingood v. Butler Construction
Co., 131 So. 126, 135 (Fla. 1930).
202. However in 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).
203. The notorious 20th
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
organizedbias against defendants and homeowners.
204. The law prohibits rocket dockets for speed and errors at the expense of justice in favor
of banks and lenders.
-
8/7/2019 Counterclaim & Demand for Trial by Jury
30/39
30
205. Here, the Docket showed Judge Hugh D. Hayes and the lackof any Reopen Reason
after the 08/12/2010 disposition:
206. Section 831.01, Fla. Stat., provides:
Whoever falsely makes, alters, forges or counterfeits a public record, or a
certificate, return or attestation of any clerk or register of a court, public register,notary public, town clerk or any public officer, in relation to a matter wherein such
certificate, 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, bill
of lading, bill of exchange orpromissory note, or an order, acquittance, or dischargefor money or other property, or an acceptance of a bill of exchange or promissorynote 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 the
third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
NOTICE OF DEFENDANTS CHANGE OF ADDRESS
207. Hereby, defendants file their Notice of change of address:
Jennifer Franklin-Prescott, et al., defendants
Care/of Papanui PostShop
7 Main North Road, Papanui, Christchurch, 8053
New Zealand
NATIONAL EMERGENCY AND PRESCOTTS NOTICE OF UNAVAILABILITY
208. 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.
-
8/7/2019 Counterclaim & Demand for Trial by Jury
31/39
31
Franklin-Prescott cannot leave because of said emergency and will therefore be unavailable.
Hereby, Franklin-Prescott gives again notice of herunavailability.
AFFIRMATIVE DEFENSES PRIOR TO DISPOSITION
FIRST AFFIRMATIVE DEFENSE: FAILURE TO PRODUCE ORIGINAL NOTE
209. A person seeking enforcementof 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/she 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. (2010).
210. Here, defendants had denied that BankUnited has ever had possession of the alleged
note and/ormortgage and/or that plaintiff was everentitled 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. Plaintiffcould 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 mortgageat the time of filing, plaintiff
could not sue and/ormaintain this disposed action.
-
8/7/2019 Counterclaim & Demand for Trial by Jury
32/39
32
211. Here, the plaintiff could notprove the terms of the instrument and the plaintiff banks
right to enforce the alleged instrument. The court may notenter 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
plaintiffwho failed to state a cause of action.
UNCLEAN HANDS DEFENSE
212. 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/orendorsements on
the purported non-authentic promissory note and mortgage deceptively submitted to this
Court as alleged debtevidence. As such, the plaintiffcame to this court with unclean hands.
RECUSAL/DISQUALIFICATION OF THE TRIAL JUDGE
213. 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. 2d
705, 708 (Fla. 1995); Fla. R. Jud. Admin. 2.160.
-
8/7/2019 Counterclaim & Demand for Trial by Jury
33/39
33
PRESCOTT FEARS FURTHER FRAUD, DEPRIVATIONS & SHAM PROCEEDINGS
214. 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 fundamentalrights to
defend against BankUniteds fraud on the court.
215. Because here no reasonable person, juror or judge could possibly explain the record
errors, contradictions, and arbitraryacts in this disposed case, Franklin-Prescott cannot
possiblytrustJudge Monaco, said Circuit, and said rocket docket sham proceedings.
WHEREFORE counterclaimantsrespectfully demand
1. An Order for compensatory and punitive damages in favor of counterclaimant fraud
victims;
2. An Order for compensatory and punitive damages for breach of contract in favor of
counterclaimants;
3. An Order for judgment against BankUnited for counterclaimants damages and for an
award of attorneys fees and for all other relief to which counterclaimants prove entitled;
4. An Order dismissing the previously disposed wrongful foreclosure action because
BankUnited had nostandingand failed to state a cause of action;
5. An Ordercanceling any non-jury and/or bench trial;
6. An Orderdeclaringrogue robo Judge Monacos lackof jurisdiction to overturn and/or
remove the 08/12/2010 disposition record after Franklin-Prescotts 02/18/2011 Notice of
Appeal;
7. An Order properly setting this Motion to Dismiss for hearing so that Franklin-Prescott can
attend without the illegal interference by rogue retired Judge Monaco;
8. Proper processing of this NOTICE OF APPEAL and/or INTERLOCUTORY APPEAL;
-
8/7/2019 Counterclaim & Demand for Trial by Jury
34/39
34
9. An Orderdeclaring the trial set during said unlawful and cancelled 02/22/10 hearing in
the excused absence of Franklin-Prescott unlawful for lack of due process and because
BankUnited had never been entitledto any action and trialforlackofstandingand note in
this disposedcase;
10. An Orderdeclaring the correction of the disposition record unlawful and prejudicial at
Franklin-Prescotts expense;
11. An Orderenjoiningretiredrobo Judge Monaco from any furtherdeliberate deprivations
of Franklin-Prescotts fundamentalFederal and Florida Constitutional rights to own her
property without judicial fraud and fraud on the court;
12. An Ordertaking judicial notice of said binding precedent (BAC Funding) in support of the
record 08/12/2010 disposition;
13. 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;
14. An Orderdeclaring the purported plaintiff in this disposed action without any authority to
sue, foreclose, and/ordemandany paymentfrom Jennifer Franklin Prescott;
15. An Order declaring the cancelled 02/22/2011 hearing unauthorized in this disposed
action;
16. An Order declaring BankUniteds prima facie sham motion(s) and affidavits
unlawful in this previously disputed and disposed action;
17. An Orderdeclaring the purported note and/ormortgageunenforceable;
-
8/7/2019 Counterclaim & Demand for Trial by Jury
35/39
35
18. An Order taking judicial notice of the prima facie unenforceability of the unrecorded,
un-assignable, and unpaid mortgage (unpaid mortgage taxes);
19. An Orderdeclaring the purported plaintiff to be in violation of Fed.R.Civ.P. 1.510 in this
disposed and previously controverted action;
20. 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;
21. An Orderdeclaring said affidavits hearsay and lacking any legal and/or factual basis in
the absence of any authentic note and/ormortgage;
22. An Ordertaking judicial notice of the lack of any genuine note, plaintiffs proven fraud
on the Court, opposition, opposition evidence, and case law as to this disposed case;
23. 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, BankUnitedforeclosure fraud victim
/s/Walter Prescott,foreclosure fraud victim
ATTACHMENTS
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 retired Hon. Daniel R. Monaco, Courthouse, Naples, FL 34112, USA,
on March 02, 2011.
Respectfully,
/s/Jennifer Franklin-Prescott, fraud victim
/s/Walter Prescott,foreclosure fraud victim
-
8/7/2019 Counterclaim & Demand for Trial by Jury
36/39
36
CC: Hon. Hugh D. Hayes (Disposition Judge),Albertelli Law, Hon. Daniel R. Monaco, Karen (JA),
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],
[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],
-
8/7/2019 Counterclaim & Demand for Trial by Jury
37/39
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
Sent: Mon, Feb 21, 2011 7:18 am
Subject: 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 #102
Naples, FL 34112-5324
Darlene Muszynski
Assistant Director Civil
(239) 252-2706
From:[email protected][mailto:[email protected]]
Sent: Monday, February 21, 2011 12:22 AM
To:[email protected]; [email protected] ; [email protected]; [email protected];
[email protected] ; [email protected]; [email protected] ; [email protected]; Daniel
Monaco - Circuit Judge; Hugh Hayes - Circuit Judge; [email protected]; Darlene M. Muszynski;
[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 Hayes
Subject: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 may contain privileged information intended solely for the namedaddresse e(s). It may not be used or disclosed ex cept for the purpose for which it has been sent. If you are not theintended recipient, you must no t copy, distribute o r take any action induced by or in reliance on information contained inthis message .
3/3/2011 Fwd: DISPOSED CASE & FRAUDULENT
mail.aol.com//PrintMessage.aspx 1
-
8/7/2019 Counterclaim & Demand for Trial by Jury
38/39
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: 02/22/2011 Reopen Close:
Last Docket Date: 02/17/2011 Appealed:
Parties
Dockets
Events
Financials
2 of 2 pages. Entries 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 CORRESPONDENCE 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 CORRESPONDENCE FROMAPPEAL CLERK TO DCA W/CERTIFIED COPY AMENDED NOTICE OF APPEAL2D10-4158
09/16/2010 CORRESPONDENCE 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 ORDER APPEALED
10/25/2010 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 FORJUDICIAL NOTICE / BY JENNIFER FRANKLIN-PRESCO
12/06/2010 CORRESPONDENCE 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
Find it here... Site Search
2/21/2011 Public Inquiry
apps.collierclerk.com//Case.aspx?UC 1
-
8/7/2019 Counterclaim & Demand for Trial by Jury
39/39
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 MOTIO N FOR SUMMARY JUDGMENT
12/08/2010 OBJECTIO N TO HEARING BY JENNIFER FRANKLIN PRESCOTT
12/08/2010 OBJECTION TOSTATUS OF DISPOSITION JUDGE & RECUSAL MOTION BY JENNIFER FRANKLINPRESCOTT
12/17/2010 NOTICE OF FRAUD & LOSS BY JENNIFER FRANKLIN-PRESCOTT
12/17/2010 MOTIONTO CANCEL UNAUTHORIZED HEARING IN DISPOSED ACTION BY JENNIFER FRANKLIN
PRESCO
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 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/UNAUTHORIZED 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
02/08/2011 AMENDED NOTICE OF HEARING02/14/11 @3:30P.M. AMENDED MOTIONFOR SUMMARY JUDGMENT AND FORATTORNEY 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
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
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 Us
This 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.
2/21/2011 Public Inquiry