notice of appeal ("rocket docket")
TRANSCRIPT
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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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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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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],
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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
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2/18/2011 Public Inquiry
apps.collierclerk.com//Case.aspx?UC 1
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8/7/2019 Notice of Appeal ("Rocket Docket")
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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
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2/18/2011 Public Inquiry
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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
To: Jennifer Franklin-Prescott
Subject: MyFax Notification - Fax Sent Success fully
Date: Fri, Feb 18, 2011 3:42 pm
Dear Jennifer Franklin-Prescott:
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).
Thank you for choosing MyFax,
The MyFax Team
http://www.myfax.com
2/18/2011 MyFax Notification - Fax Sent Successf
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From: MyFax Free
To: Jennifer Franklin-Prescott
Subject: MyFax Notification - Fax Sent Success fully
Date: Fri, Feb 18, 2011 1:58 am
Dear Jennifer Franklin-Prescott:
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).
Thank you for choosing MyFax,
The MyFax Team
http://www.myfax.com
2/18/2011 MyFax Notification - Fax Sent Successf