notice of errors & demand of bond in disposed action

8/7/2019 Notice of Errors & Demand of Bond in Disposed Action

http://slidepdf.com/reader/full/notice-of-errors-demand-of-bond-in-disposed-action 1/37

IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT

IN AND FOR COLLIER COUNTY, FLORIDA

BANKUNITED,

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

purported plaintiff(s),

vs.

DISPOSED CASE NO.: 09-6016-CA

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

___________________________________________________________________/

NOTICE OF ERRORS & ERRONEOUS HEARING AND

DEMAND OF LIS PENDENS BOND IN DISPOSED ACTION

RECORD DISPOSITION

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

ERRONEOUS “ NOTICE ” IN DISPOSED ACTION

2. On 02/11/2011, the Docket showed a “notice of hearing ” which was “amended ”. Here, the

notice did not pertain to Jennifer Franklin-Prescott and/or the disposed action but to “ Pedro

Luis Licourt ”, who is not any known party.

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 FEBRUARY HEARING APPEARED ON THE DOCKET

3. Here, the Docket did not show any hearing and/or hearing date:



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NO CONSENT & OBJECTION TO ANY MAGISTRATE (HEARING)

4. Previously, 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.

5. The record lack of consent was erroneously entered as “non-contest ”:

RECORD ABSENCE OF NOTE AND CONDITIONS PRECEDENT

6. Here, no genuine properly executed note 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 acknowledged any authentic note/mortgage.

PREVIOUS NOTICE OF UNAVAILABILITY IN DISPOSED ACTION

7. 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.



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UNAUTHORIZED ATTORNEYS

8. “ 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

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

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

and improper.

BANKUNITED HAD NO VALID SECURITY INTEREST

10. 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 interest existed.

DEMAND OF LIS PENDENS BOND

11. 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 reestablished and/or enforced . § 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.



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12. 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).

13. 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).

14. 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

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).

CONTESTED SIGNATURE ON PURPORTED NOTE

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

notarial acknowledgment . See evidence on file.

ALL PLEADINGS WERE SIGNED

16. Here, all of Franklin-Prescott’s pleadings were signed (“/s/ Jennifer Franklin-Prescott”).

NOTICE OF INTERLOCUTORY APPEAL FROM HEARING IN DISPOSED ACTION

17. Here, more than one hearing appeared 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

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

entitlement to 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



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person or a person that cannot be found or is not amenable to service of process. 673.3091

Fla. Stat. (2009).

19. Here, Franklin-Prescott had denied the purported “ plaintiff ” has ever had possession of the

alleged note and/or mortgage. Plaintiff could 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 not sue and/or

maintain this disposed action.

20. Here, the Plaintiff could not prove the terms of the instrument and the plaintiff bank’s 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 the plaintiff .

NO PROOF

21. Franklin-Prescott had denied the authenticity of signatures on the purported note and/or

mortgage alluded to in this disposed case and demanded strict proof thereof, by clear and

convincing evidence, pursuant to § 673.3081, Fla. Stat. (2008).

WHEREFORE Jennifer Franklin-Prescott respectfully demands

1. An Order determining that the invalid lis pendens was not founded upon a duly recorded

authentic instrument therefore requiring a bond;

2. An Order declaring the purported “ plaintiff ” in this disposed action without any

authority to sue, foreclose, and/or demand any payment from Jennifer Franklin Prescott;

3. An Order declaring any hearing unauthorized in this disposed action;

4. An Order declaring the prima facie sham “motion” and “affidavits” unlawful in this

previously disputed and disposed action;

5. An Order declaring the purported note and/or mortgage unenforceable;



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6. An Order taking judicial notice of the prima facie unenforceability of the unrecorded,

un-assignable, and unpaid mortgage (unpaid mortgage taxes);

7. An Order declaring the purported “ plaintiff ” to be in violation of Fed.R.Civ.P. 1.510 in

this disposed and previously controverted action;

8. An Order declaring the purported 2009 “lis pendens” invalid on its face and taking

judicial notice of the nullity of the lis pendens and unenforceable mortgage and/or note;

9. An Order declaring said affidavits “hearsay” and lacking any legal and/or factual basis

in the absence of any authentic “note” and/or mortgage;

10. An Order taking judicial notice of the lack of any genuine “note”, “ plaintiff’s” proven

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

case;

11. An Order prohibiting Counsel and/or Jason M. Tharokh, Esq., who did not file any

notice from appearing in this disposed action.

Respectfully,

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

ATTACHMENTS

Docket, et al.

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of this NOTICE IN DISPOSED ACTION has been

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

Court, and Hon. Hugh D. Hayes, Courthouse, Naples, FL 34112, USA, on February 11, 2011,

Pacific Time.

Respectfully,

/s/Jennifer Franklin Prescott, fraud victim

CC: Hon. Hugh D. Hayes (Disposition Judge),Albertelli Law

United States District Court

The Florida Bar New York Times

[email protected], [email protected],


[email protected], [email protected] …





BANKUNITED,



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


___________________________________________________________________/

DEMAND OF FORENSIC REVIEW & AUDIT AND NOTICE OF

FRAUDULENT AND/OR INACCURATE ACCOUNTING IN DISPOSED ACTION

RECORD EVIDENCE OF INACCURATE ACCOUNTING

1. The 10/25/2010 “Affidavit as to Amounts Due and Owing” evidenced inaccurate accounting

and was not supported by the 07/09/2009 Complaint. Here, non-lawyer Barbie Fernandez

deceived the Court:

“ I am familiar with … concerning the transactions alleged in the Complaint .”

FERNANDEZ’ FALSE ALLEGATIONS OF INDEBTEDNESS (“1,146,921.71”

2. Here, the purported “ plaintiff ” had asserted in the Complaint :



2

Here, Fernandez concealed that her fraudulent accounting was not supported by and

conflicted with the destroyed / lost “02/15/2006 note/mortgage”. Fernandez falsely alleged

indebtedness in the amount of “$1,146,921.71”. See 07/09/2009 Complaint.

ENFORCEABILITY OF ALLEGED NOTE/MORTGAGE COULD NOT BE ESTABLISHED

3. The obligation falsely alleged to be due was never placed into BankUnited’s possession

and/or the Bank was not entitled to enforce the destroyed/missing note/mortgage after

BankUnited, FSB’s legal seizure. See Uniform Commercial Code. No endorsement and/or

assignment to BankUnited existed.

4. No evidence of any enforceable properly executed and/or recorded note/mortgage existed in

this disposed action. Here, the enforceability of the alleged note/mortgage could not be

established . Here, no right to enforce the alleged note/mortgage transferred and/or could

have possibly transferred to BankUnited.

5. Here, BankUnited knew/concealed that the right to enforce an instrument and ownership of

the instrument are two different concepts. Moreover, a person who has an ownership right in

an instrument might not be a person entitled to enforce the instrument. Accordingly here,

BankUnited may not enforce the purported note/mortgage.

TIMELINE OF DISPOSITION & BANK’S LAWFUL SEIZURE

08/12/2010 Disposition in favor of Jennifer Franklin-Prescott

07/09/2010 Motion to Dismiss by Jennifer Franklin-Prescott

2009 BankUnited, FSB, knew that it had no right to enforce alleged instrument ,and the unknown destruction/loss were the result of a lawful seizure

07/09/2009 Complaint of unknown Destruction/Loss of purported note/mortgage by

Bankrupt BankUnited, FSB founder A. Camner, Esq. (Camner Lipsitz, PA)

Evidence of lack of proper execution of alleged note and/or mortgageComplaint devoid of purported “modified note/mortgage”

Ch. 11 Bankruptcy filing

05/21/2009 Seizure of bankrupt BankUnited, FSB

September 2007 Purported “loan modification”

February 2006 Purported date of destroyed and/or lost note/mortgage

Because BankUnited, FSB, could not enforce the lost and/or destroyed note under section

673.3091, it had no power of enforcement , which it could assign to BankUnited.



3

[In Dennis Joslin Company v. Robinson Broadcasting Corp., 977 F. Supp. 491 (D.D.C.

1997), the district court rejected the right to assign the enforcement of a lost note.]

The party seeking to enforce the instrument must either have been entitled to enforce the

instrument WHEN loss of possession occurred, or acquired ownership of the instrument

from a party who was entitled to enforce the instrument WHEN loss of possession occurred.

See U.C.C. § 3-309. Here, no power of enforcement could have possibly transferred to

BankUnited, and nobody knew WHEN and WHO had lost/destroyed the note/mortgage. 6. Bankrupt BankUnited, FSB, did not know the time and manner of the destruction/loss and

was not entitled to enforce the note/mortgage, because the unknown destruction/loss was

the result of a lawful seizure. See Section 673.3091, F.S.; U.C.C.

7. BankUnited, the party wrongfully seeking to enforce the alleged note/mortgage was not

entitled to enforce the instrument and did not know WHEN loss of possession had occurred.

8. Failed and seized BankUnited could not have possibly transferred the alleged note and/or

mortgage to BankUnited under 673.2031, F.S., and none was delivered . Since lawfully

seized BankUnited, FSB was not in possession of the note and/or mortgage, it was neither

the “holder ” nor “bearer ” thereof.

NO PROOF OF CHAIN OF TITLE & PRESCOTT’S RIGHTS IN DISPOSED ACTION

9. Here, Prescott as purported maker of the note/mortgage has been properly pressing “ plaintiff ”

to establish its purported holder status. BankUnited exposed Prescott, the purported obligor ,

to the risk of double payment, or at least to the expense of litigation incurred to prevent

wrongful and/or duplicative enforcement of an alleged instrument . Here, Franklin-Prescott

had a recognizable interest in demanding proof of the alleged chain of title.

NO TRANSFER OF RIGHTS

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

‘holder’.” See Adams v. Madison Realty & Dev. Inc., 853 F.2d 163, 166 (3d Cir. 1988).

Where ownership of an instrument is allegedly transferred , the transferee’s attainment of the

status of “holder” depends on the negotiation of the instrument to the transferee. See U.C.C.

The two elements required for negotiation, both of which are missing here, are the transfer

of possession of the instrument to the transferee, and its indorsement by any holder .

NO INDORSEMENT



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11. Here, indorsement of the alleged instrument by the holder, an element required to negotiate

an instrument to the transferee was also missing. An indorsement means a signature, other

than that of a signer as maker, drawer, or acceptor, that alone or accompanied by other words

is made on an instrument for the purpose of negotiating the instrument, restricting payment

of the instrument , and/or incurring indorser’s liability on the instrument . The indorsement

may be on the instrument itself, or it may be on a paper affixed to the instrument (allonge).

FAILURE TO SHOW ENTITLEMENT & COMPLY W/ CONDITIONS PRECEDENT

12. Because the purported “ plaintiff ” failed to comply with the condition precedent , the action

was disposed. See Walker v. Midland Mortgage Co., 935 So. 2d 519, 520 (Fla. 3d DCA

2006).

ESTOPPEL IN DISPOSED ACTION AFTER BANK SEIZURE

13. In this disposed action, estoppel was, e.g., based on the Bank’s representations as to

material facts that are contrary to later-asserted positions. Here, Jennifer Franklin-Prescott

relied upon the “ plaintiff’s” representation of a destroyed, lost, and/or missing note and

mortgage. Here by unlawful means, the purported “ plaintiff ” changed its position, which was

detrimental to Franklin-Prescott, who has been claiming estoppel, caused by (mis)

representations and reliance thereon. See Harris v. Nat’l. Recovery Agency, 819 So. 2d 850,

854 (Fla. 4th

DCA 2002); Jones v. City of Winter Haven, 870 So. 2d 52, 55 (Fla. 2d DCA

2003). 14. Here, bankrupt BankUnited, FSB, had been legally seized, and reestablishment of the

purported missing note and mortgage were impossible.

NO RIGHT TO ENFORCE MISSING NOTE/MORTGAGE IN DISPOSED ACTION

15. No right and/or entitlement to enforce a missing note and/or mortgage could have possibly

been transferred and/or assigned to BankUnited.

LACK OF JURISDICTION & FAILURE TO PAY MORTGAGE TAX

16. In this disposed case, the Bank’s failure to pay documentary stamps under Section 201.08,

Fla. Stat. (2010) precluded enforcement of the alleged note and/or mortgage absent the

payment of documentary stamps. See WRJ Dev., Inc. v. North Ring Limited, 979 So. 2d

1046, 1047 (Fla. 3d DCA 2008); Bonifiglio v. Banker’s Trust Co. of Calif., 944 So. 2d 1087,

1088 (Fla. 4th

DCA 2007).

BANK WAS NOT ENTITLED TO SUE PRESCOTT AND/OR FORECLOSE



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17. In this disposed action, “ Plaintiff ” failed to refute Prescott’s affirmative defenses and was

not entitled to summary disposition. See Morroni v. Household Fin. Corp. III, 903 So. 2d

311, 312 (Fla. 2d DCA 2005). Here, the purported affidavit of indebtedness was not

supported by and/or conflicted with the complaint, and Franklin-Prescott has been alleging

the defense of inaccurate and/or fraudulent accounting. See Kanu v. Pointe Bank, 861 So.

2d 498 (Fla. 4th

DCA 2003).

NO RELIEF WAS AVAILABLE

18. BankUnited knew and concealed that any relief of reestablishing a destroyed and/or lost

note/mortgage was unavailable. Here, the time and manner of destruction/loss were

unknown.

FILED “NOTICE OF FRAUDULENT AFFIDAVIT …” IN DISPOSED ACTION

19. In disposed Case # 0906016CA, fraud victim Jennifer Franklin-Prescott had filed her

“NOTICE OF FRAUDULENT AFFIDAVIT BY NON-LAWYER BARBIE

FERNANDEZ…” on 02/08/2011 with the Hon. Clerk of Court. See Certificates of Service.

FILED “NOTICE OF FRAUDULENT AFFIDAVITS …” IN DISPOSED ACTION

20. Furthermore, Jennifer Franklin-Prescott had filed her “NOTICE OF FRAUDULENT

AFFIDAVITS BY JASON M. TAROKH, ESQ…” on 02/07/2011 with the Hon. Clerk of

Court.

FILED “NOTICE OF OPPOSITION …” IN DISPOSED ACTION

21. Furthermore, Franklin-Prescott had filed her “NOTICE OF OPPOSITION & OPPOSITION

EVIDENCE, FRAUD EVIDENCE …”.

UNAUTHORIZED MOTION FOR DISPOSITION IN DISPOSED ACTION

22. A motion for summary disposition/judgment cannot possibly be filed in an already disposed

action. Here, the Court had already decided and disposed the action on 08/12/2010.

BANK’S CONCEALMENT OF ABSENCE OF NOTE AND LACK OF PROOF

23. BankUnited fraudulently concealed that “ plaintiff ” may not pursue a mortgage foreclosure in

the absence of proof that either the mortgagee, or any assignor, if any, ever had possession of

the lost, destroyed, and/or missing (modified) promissory note/mortgage. On 08/12/2010,

the action had been disposed in favor of Jennifer Franklin-Prescott.

FRAUDULENT & CONFLICTING AFFIDAVITS IN ALREADY DISPOSED ACTION



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24. The Rules do not permit an already disposed case to be disposed of by judgment based on

facially fraudulent and conflicting affidavits. Here, extraneous affidavits followed the

08/12/10 disposition of the action and established further conflicts on material issues of fact.

RE-ESTABLISHMENT OF NOTE GOVERNED BY § 673.3091(2), Fla. Stat. (2010)

25. BankUnited had prayed for re-establishment of the purported note pursuant to Florida Statute

§ 673.3091. In order to recover under this statute, the Bank had to prove its ownership of the

note. See Lawyers Title Ins. Co., Inc. v. Novastar Mortgage, Inc., 862 So. 2d 793, 799 (Fla.

4th DCA 2004).

2010 DISPOSITION BECAUSE OF RECORD LACK OF ANY STANDING

26. However in this disposed action, BankUnited had failed to prove its ownership of any note

and had no standing to proceed with foreclosure.

2009 COMPLAINT WAS DEVOID OF ANY MODIFIED NOTE/MORTGAGE

27. Camner Lipsitz, PA, and/or the founder (Alfred Camner, Esq.) of bankrupt and seized

BankUnited, FSB, had asserted the unknown destruction and/or loss of the purported note

and/or mortgage. See 2009 Complaint in disposed action.

FAILURE TO PRESENT ORIGINAL NOTE & LACK OF ENTITLEMENT TO SUE

28. Since the promissory note is a negotiable instrument, plaintiff must present the original note.

See State Street Bank and Trust Co. v. Lord, 851 So. 2d 790, 791 (Fla. 4th DCA 2003). In

this disposed action, BankUnited did not present the purported “original modified note” on

the date of the filing of the unauthorized and unlawful complaint.

29. Because the purported “ plaintiff ” failed to present the original (modified) promissory note,

BankUnited was not entitled to sue Franklin-Prescott. See Nat’l. Loan Investors, L.P. v.

Joymar Associates, 767 So. 2d 549, 550 (Fla. 3d DCA 2000); see also Florida Supreme Court

Form for foreclosure - Form 1.944, Fla. R. Civ. P. (2010). Here, BankUnited failed to assert

default under the missing purported (modified) note/mortgage. Said facially frivolous and

insufficient complaint was not verified. See Rule 1.110(b), Fla. R. Civ. P. (2010). Rule

1.130(a), Fla. R. Civ. P. (2010) mandated that a copy of the purported (modified) note and

mortgage be attached to the complaint. See Eigen v. FDIC, 492 So. 2d 826 (Fla. 2d DCA

1986). The table below identifies unlawful acts by “foreclosure mill” Albertelli Law and/or

the Bank:

TIMELINE: UNLAWFUL/UNAUTHORIZED ACTS BY ALBERTELLI LAW/BANK



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February 2006 Purported date of destroyed and/or lost note/mortgage

September 2007 Purported “loan modification”

07/09/2009 Unknown destruction and/or loss of purported note and mortgage asserted by

Bankrupt BankUnited, FSB, founder A. Camner, Esq. (Camner Lipsitz, PA);

Complaint devoid of purported “modified note/mortgage”

07/09/2010 Motion to Dismiss by Jennifer Franklin-Prescott

08/12/2010 Disposition in favor of Jennifer Franklin-Prescott

October 2010 Ashley Simon, Esq. asserts that she “has not reviewed the actual file” in

disposed action (fraudulent Affidavit as to fees filed on 11/10/2010)

October 2010 Incompetent Barbie Fernandez, a non-lawyer, lacks “ personal knowledge” of the purported “modified original note/mortgage”;

After unknown note/mortgage destruction and/or loss, Fernandez perjures

herself and asserts “complete documents” in the absence of modified note

December 2010 Notice of Filing of purported “Original Loan Modification Agreement ”

December 2010 Filing of purported “Original Note & Original Mortgage” devoid of purported

genuine original adjustable rate note

January 2011 Plaintiff’s unauthorized Motion for Summary Disposition in disposed action;

Devoid of purported “modified note/mortgage”

INCOMPETENCE AND FRAUDULENT AFFIDAVITS

30. Affidavits in support of a summary disposition motion must be made based on personal

knowledge and set forth facts that would be admissible in evidence, and demonstrate that the

affiant is competent to testify on the matters presented. Here, Jason M. Tarokh, Esq., Barbie

Fernandez, Simon Ashley, Esq., and Counsel were

a. incompetent;

b. had no personal knowledge;

c. had not reviewed the destroyed and/or lost “note”.

Here in this disposed action, the facts asserted in said unlawful affidavits on file were not

admissible in evidence.

Barbie Fernandez, a non-lawyer, was neither authorized nor competent to lawfully determine

and/or “testify on” the existence of genuine issues of material fact in this disposed action.

RECORD FAILURE TO PRODUCE “ NOTE ” PRECLUDED ANY JUDGMENT

31. Failure to produce any “note” precludes entry of (summary) judgment. See Nat’l. Loan

Investors, L. P. v. Joymar Assoc., 767 So. 2d 549, 550 (Fla. 3d DCA 2000). In this disposed

action, the unauthorized “ plaintiff ” had failed to produce any “note”.



8

RECORD FAILURE TO COMPLY WITH CONDITIONS PRECEDENT

32. Here in the record absence of any genuine original note, bankrupt and legally seized

BankUnited, FSB and/or BankUnited failed to comply with the conditions precedent.

RES JUDICATA AFTER DISPOSITION

33. Disposition of a foreclosure based on the same default bars a subsequent action unless

predicated upon separate, different defaults. See Singleton v. Greymar Assoc., 882 So. 2d

1004, 1007 (Fla. 2004). In this disposed action without any note, res judicata barred any

subsequent action.

GENUINE EXISTENCE OF MATERIAL FACT & FAILURE TO ESTABLISH “ NOTE ”

34. In this disposed action, the genuine existence of material facts and record absence of any

note precluded entry of any (summary) judgment. See Manassas Investments Inc. v.

O’Hanrahan, 817 So. 2d 1080 (Fla. 2d DCA 2002).

FRAUD & KNOWN UN-ENFORCEABILITY OF MORTGAGE AND/OR NOTE

35. Here, Prescott had defeated BankUnited’s prima facie invalid claim and established legally

sufficient defenses and the admitted absence of any note at the time of the filing of the

facially frivolous complaint by Camner Lipsitz, PA. Here, bankrupt and seized BankUnited,

FSB, was known not to have paid mortgage taxes, and therefore, could not enforce the un-

recorded and un-enforceable lien. Because of said incurable and fatal lien deficiencies, the

action had been disposed.

BANKUNITED HAD FAILED ITS BURDEN OF PROOF IN DISPOSED ACTION

36. The plaintiff bears the burden of proof to establish the non-existence of disputed issues of

material fact. See Delandro v. Am.’s. Mortgage Servicing, Inc., 674 So. 2d 184, 186 (Fla. 3d

DCA 1996); Holl v. Talcott, 191 So. 2d 40, 43 (Fla. 1966).

37. A plaintiff must either factually refute affirmative defenses or establish that they are legally

insufficient. See Frost v. Regions Bank, 15 So. 3d 905, 906 (Fla. 4th DCA 2009).

UNAUTHORIZED & DEFECTIVE MOTION FOR SUMMARY JUDGMENT

38. Here in this disposed action, the purported plaintiff had failed

a. to establish any note and “plaintiff’s” status as note owner and holder ;

b. to address the genuine issues of material fact and record affirmative defenses.

DISPOSITION AFTER ASSERTION OF DESTROYED AND/OR LOST “NOTE”



9

39. Bankrupt BankUnited, FSB’s founder and/or Camner Lipsitz, PA, had asserted the unknown

loss and/or destruction of the “note”. Here, reestablishment of the destroyed/lost “note” had

been legally and factually impossible. See facially frivolous and insufficient complaint by

fired law firm Camner Lipsitz, PA.

FAILURE TO PAY TAXES/DOC. STAMPS & UNENFORCEABLE NOTE/MORTGAGE

40. Section 201.08, Fla. Stat. (2010) precludes enforcement of notes and mortgages absent the

payment of documentary stamps. See WRJ Dev., Inc. v. North Ring Limited, 979 So. 2d

1046, 1047 (Fla. 3d DCA 2008); Bonifiglio v. Banker’s Trust Co. of Calif., 944 So. 2d 1087,

1088 (Fla. 4th

DCA 2007); One 79th Street Estates v. American Investment, Fla. 3d DCA

Case No. 5D09-314. Here, this prima facie unauthorized action had been disposed, because

the lost/destroyed note and/or mortgage could not be enforced and/or established .

BANKRUPT BANK’S FATAL DEFICIENCIES IN DISPOSED ACTION

41. Jason M. Tarokh, Esq., knew and gave notice of filing of “Original Loan Modification

Agreement” on or around 12/21/2010. Said filing evidenced that

a. the purported modified mortgage was not recorded , executed, and/or delivered;

b. no intangible taxes and/or documentary stamps had been paid;

c. the purported agreement was not enforceable.

Here, Section 201.08(1)(b), Florida Statutes, precluded judicial enforcement of the purported

mortgage “unless and until the tax due thereon . . . has been paid .”

NO EVIDENCE OF ENFORCEABLE NOTE AND/OR MORTGAGE

42. Here, bankrupt BankUnited, FSB, had been legally seized pursuant to the Warrant on file. Inthis disposed action, there had been no admissible evidence that any original note and/or mortgage were filed or presented to the court, and the unauthenticated copies of unrecordedand unenforceable documents were fatally deficient.

NO MORTGAGE – NO LIEN – NO VALID LIS PENENS IN DISPOSED ACTION

43. Here, defunct and bankrupt BankUnited, FSB, was seized and had neither recorded the

modified mortgage nor paid mortgage taxes. Here, there was no enforceable lien, and legallyseized BankUnited, FSB, had not been entitled to enforce the purported mortgage against



10

Franklin-Prescott. Here, no mortgage could have possibly been assigned to BankUnited, and

the fatal deficiencies were incurable.44. In particular, Section 701.02, Florida Statutes, states:

701.02 Assignment not effectual against creditors unless recorded and indicated intitle of document; applicability.—

(1) An assignment of a mortgage upon real property or of any interest therein, isnot good or effectual in law or equity, against creditors or subsequent purchasers, for a valuable consideration, and without notice, unless the assignment is contained in a

document that, in its title, indicates an assignment of mortgage and is recorded

according to law.(2) This section also applies to assignments of mortgages resulting from transfers

of all or any part or parts of the debt, note or notes secured by mortgage, and none of

same is effectual in law or in equity against creditors or subsequent purchasers for a

valuable consideration without notice, unless a duly executed assignment be recordedaccording to law.

BARBIE FERNANDEZ’ FRAUDULENT 10/25/2010 “ AFFIDAVIT OF COUNSEL”

45. Here however in conflict with the founder of legally seized BankUnited, FSB (AlfredCamner, Esq.) and Camner Lipsitz, Barbara “Barbie” Fernandez (a non-lawyer) deceived this

Court that she purportedly had

“ personal knowledge” of the destroyed and/or lost note and/or documents; and that

she had “examined all books, records, systems, and [destroyed/lost] documents kept by BankUnited concerning the transactions alleged in the Complaint ” by Camner Lipsitz;

and that

“ BankUnited is the owner or servicer for the owner of the note and mortgage …”

46. Here, Fernandez knew that on 08/12/2010 the action had been disposed and that no record of

any assignment had been recorded and/or existed. Even though Fernandez knew that noteand/or mortgage had been lost and/or destroyed pursuant to the complaint, Fernandez

deceptively stated under oath that

“The books, records, systems, and [destroyed and/or lost] documents which Affiant (Fernandez) has examined are complete, accurate and correct .”

Here, Fernandez had no “ personal knowledge of the matters contained in the books, records,

systems, and [lost/destroyed] documents kept by BankUnited ”. In particular, Fernandez knew

that bankrupt BankUnited, FSB, had been legally seized.

47. Fernandez, Jason M. Tarokh, Esq., and Albertelli Law knew that a plaintiff must be the

owner/holder of the note as of the date of filing suit, and that BankUnited was not in

possession of any note and mortgage. See Jeff-Ray Corp. v. Jacobsen, 566 So. 2d 885 (Fla.

4th

DCA 1990); see also, WM Specialty Mortgage, LLC v. Salomon, 874 So. 2d 680, 682

(Fla. 4th

DCA 2004). Therefore here, BankUnited could not have possibly been any

“ plaintiff ” and was not entitled to sue J. Franklin-Prescott. See 671.201(21), Fla. Stat. (2010).



11

48. Here, no note could be established and no affidavit and/or testimony had ever established

BankUnited as any “owner and/or holder ”. See Riggs v. Aurora Loan Services, LLC, 2010

WL 1561873 (Fla. 4th

DCA 4/21/10).

JASON M. TAROKH’S FRAUDULENT 01/07/2011 “ AFFIDAVIT OF COUNSEL”

49. Jason M. Tarokh, Esq., Florida Bar No. 57611, did not file any notice of appearance and was

not “ familiar with the services rendered and all costs and expenses incurred on behalf of ”

BankUnited in this disposed action.

50. Here, Tarokh did

a. not “review the loan documents”;

b. not “review the lis pendens”, which was invalid and had expired;

c. not “review answers, defenses, and other correspondence …”.

51. Tarokh knew that the action had been disposed and that BankUnited

a. was not entitled to sue Jennifer Franklin-Prescott; b. was not entitled to any judgment and/or costs/expenses against Prescott;

c. was not any “ successor in interest ” to legally seized and bankrupt BankUnited, FSB;

d. had no interest ;e. had no standing .

JASON M. TAROKH’S 11/10/2011 NOTICE OF FILING OF “ AFFIDAVIT ”

52. Said Jason M. Tarokh gave notice of filing of “Executed Affidavit as to Reasonable

Attorneys Fees” on 11/10/2011. In said purported “affidavit ”, Ashley (L.) Simon, Esq.,

Florida Bar No. 64472, had stated under oath that

“a review of the actual foreclosure file of Albertelli Law in this case would be

unnecessary and futile event ”; and that

the attorney had “not reviewed the actual file in this case”.

53. The motion for summary judgment, supporting affidavits and notice of hearing must be

served on a defendant at least twenty (20) days before the summary judgment hearing. See

Rule 1.510(c), Fla. R. Civ. P. (2010); Verizzo v. Bank of New York, 2010 WL 711862 (Fla.

2 DCA Mar. 3, 2010); Mack v. Commercial Industrial Park, Inc., 541 So. 2d 800, 801 (Fla.

4th DCA 1989). Here, none was served under the Rules, and the action had been disposed.

RECORD LACK OF ANY assignment

54. Here, the purported “ plaintiff ” and Albertelli Law knew and/or fraudulently concealed that

there had been no assignment and no recordation of any assignment .

NO assignment & NO recording of any assignment



12

55. Assignments must be recorded to be valid against any alleged obligor. See § 701.02, Fla.

Stat. (2010). See Glynn v. First Union Nat’l. Bank, 912 So. 2d 357, 358 (Fla. 4th

DCA 2005).

NO right to foreclose

56. Here, Jennifer Franklin Prescott was not obligated to pay any money, and so-called

“ plaintiff ” had no right to foreclose.

PRIMA FACIE “GENUINE ISSUES OF MATERIAL FACT”

57. Because of the prima facie “genuine issues of material fact”, the controverted case had been

disposed. Here, there had been substantial controversies.

PRIMA FACIE INVALID “lis pendens”

58. The purported “lis pendens” is facially invalid. Validity of a notice of lis pendens is one year

from filing. See § 48.23(2), Fla. Stat. (2010). Upon dismissal of foreclosure, a lis pendens is

automatically dissolved. See Rule 1.420(f), Fla. R. Civ. P. (2010). Here, the lis pendens was

dissolved.

“ AFFIDAVITS ” WERE MADE IN BAD FAITH

59. Pursuant to said Rule 1.510, the purported “ plaintiff ” presented so-called “affidavits” in bad

faith and solely for improper and/or unlawful purposes in this disposed case. See subsection

(g). Here, the purported affidavits lacked a foundation or predicate.

DEFENDANTS WERE NOT “ served ” – INEFFECTIVE SERVICE OF PROCESS

60. Due service of process is essential to satisfy jurisdictional requirements over the subject

matter and the parties in a foreclosure action. See Rule 1.070, Fla. R. of Civ. P. (2010) and

Chapters 48 and 49 of the Florida Statutes.

61. Here, Fernandez, Tarokh, and Albertelli Law knew that the purported “defendants” were not

“duly and regularly served with process”. See affidavit(s).

62. Leaving service of process at the door of an address when the defendant does not reside there

is defective service. See Grosheim v. Greenpoint Mortgage Funding, Inc., 819 So. 2d 906,

907 (Fla. 4th

DCA 2002). Evidence that person resides at a different address from the service

address is ineffective service. See Alvarez v. State Farm Mut. Ins. Co., 635 So. 2d 131 (Fla.

3d DCA 1994).

63. Here, purported “defendant ” Prescott was not married, and the fictitious spouse could not

have possibly resided with the unmarried person to be served.



13

64. Statutes governing service of process are strictly construed. See General de Seguros, S.A. v.

Consol. Prop. & Cas. Ins. Co., 776 So. 2d 990, 991 (Fla. 3d DCA 2001); (reversed with

directions to vacate default judgment and quash service of process).

65. Here, the purported “plaintiff” did not substantially comply with the statutory requirements

of service and Prescott had attacked said ineffective/defective service in this disposed action.

08/12/2011 DISPOSITION OF FRIVOLOUS & INSUFFICIENT ACTION

66. Here, the facially fraudulent Case had been disposed on 08/12/2010, because the purported

“ plaintiff ” was not in possession of any genuine original note, could not reestablish the

destroyed and/or lost note, and could not possibly foreclose on the purported note and

mortgage. See § 673.3091(1), Fla. Stat. (2004); Dasma Invest., LLC v. Realty Associates

Fund III, L.P., 459 F. Supp. 2d 1294, 1302 (S.D. Fla. 2006).

67. Furthermore, BankUnited is not any “ successor in interest ” to lawfully seized and bankrupt

BankUnited, FSB. See Uniform Commercial Code. Here, no authentic note was executed ,

delivered , and/or assigned to the alleged “ plaintiff ”. See also Collier County Public Records.

68. The style of the prima facie insufficient and frivolous complaint, “ BankUnited, FSB v.

JENNIFER FRANKLIN-PRESCOTT, et al.”, did not even indicate BankUnited as a plaintiff .

See, e.g., “complaint ”, page 3 of 8. Here, bankrupt BankUnited, FSB, founder Alfred

Camner, Esq., and Camner Lipsitz, PA, were fired and are not any “counsel ”. See

“complaint ”, p. 4 of 8.

69. Here admittedly without any “actual review of the file” and disposed Case, foreclosure mill

Albertelli Law has been attempting to extort money and/or property, and Franklin-Prescott is

again giving Notice of said fraudulent “affidavit ” and Fraud on the Court.

70. Here, the purported “ plaintiff ” in said disposed Case was not entitled to any hearing , money,

fees, judgment , and legal action against Franklin-Prescott.

PATTERN OF FRAUD

71. The New York Times recently reported the pattern of fraud exhibited by the Albertelli Law

“ foreclosure mill ”:“ In numerous opinions, judges have accused lawyers of processing shoddy or even

fabricated paperwork in foreclosure actions when representing the banks…”

See Judges Berate Bank Lawyers in Foreclosures, New York Times, January 10, 2011.

NO enforceable mortgage AND/OR note

72. Rule 1.130(a), Fla. R. Civ. P. (2010) mandates that a copy of the note and mortgage be

attached to the complaint. See Eigen v. FDIC, 492 So. 2d 826 (Fla. 2d DCA 1986). Because



14

no executed , authorized , genuine note existed, and none was attached to the insufficient

complaint by fired law firm Camner Lipsitz, the frivolous action had been disposed.

SHAM AFFIDAVITS AND MOTION & NO entitlement to any fees and/or costs

73. Purported “ plaintiff’s” “affidavits” and “motion for summary judgment ” in this disposed

action are a prima facie sham, and Albertelli Law is not entitled to any attorney’s fees and/or

costs. Any hearing , and none appears on any calendar (JACS), would be unauthorized and

without any legal and/or factual basis.


1. An Order declaring the purported “ plaintiff ” in this disposed action without any authority to

sue, foreclose, and/or demand any payment from Jennifer Franklin Prescott;





5. An Order taking judicial notice of the prima facie unenforceability of the unrecorded, un-

assignable, and unpaid mortgage (unpaid mortgage taxes);

6. An Order declaring the purported “ plaintiff ” to be in violation of Fed.R.Civ.P. 1.510 in this

disposed and previously controverted action;

7. An Order declaring the purported 2009 “lis pendens” invalid on its face and taking judicial

notice of the nullity of the lis pendens and unenforceable mortgage and/or note;

8. An Order declaring said affidavits “hearsay” and lacking any legal and/or factual basis in the

absence of any authentic “note” and/or mortgage;

9. An Order taking judicial notice of the lack of any genuine “note”, “ plaintiff’s” proven fraud

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

10. An Order prohibiting Counsel and/or Jason M. Tharokh, Esq., who did not file any notice

from appearing in this disposed action.

Respectfully,


ATTACHMENTS

New York Times: Judges Berate Bank Lawyers in Foreclosures (January 10, 2011)

Other



15

Certificates of Deliveries upon Clerk, Disposition Judge, BankUnited, Albertelli Law

(Messenger Service)

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of this NOTICE IN DISPOSED ACTION has been



Pacific Time.

Respectfully,


CC: Hon. Hugh D. Hayes (Disposition Judge),

Albertelli LawUnited States District Court


Other








BANKUNITED,



vs.

DISPOSED CASE NO.: 09-6016-CA


___________________________________________________________________/

NOTICE OF OBJECTION TO ANY HEARING & MAGISTRATE IN DISPOSED CASE

AND OF NON-CONSENT

NOTICE OF FRANKLIN-PRESCOTT’S OBJECTION & NON-CONSENT

1. Jennifer Franklin-Prescott objects to any hearing and/or any magistrate in this disposed

action. Here, no hearing was authorized and/or lawful and the notice a sham.

RECORD DISPOSITION

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

ERRONEOUS “ NOTICE ” IN DISPOSED ACTION

3. On 02/12/2011, the Docket showed a “notice of hearing ” which was “amended ”. Here, the

notice did not pertain to Jennifer Franklin-Prescott and/or the disposed action but to “ Pedro

Luis Licourt ”, who is not any known party.

UNLAWFUL/UNAUTHORIZED HEARING IN DISPOSED ACTION



2

4. 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 FEBRUARY HEARING APPEARED ON THE DOCKET

5. Here, the 02/12/2011 Docket did not show any hearing and/or hearing date:

NO CONSENT & OBJECTION TO ANY MAGISTRATE (HEARING)

6. 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.

7. The record lack of consent was erroneously entered as “non-contest ”:

VAGUE & AMBIGUOUS SHAM “ NOTICE ”

8. Here, the notice was vague, ambiguous, and unintelligent. A pleading is considered a sham

when it is inherently false and based on plain or conceded facts clearly known to be false

at the time the pleading was made. See Decker v. County of Volusia, 698 So. 2d 650, 651



3

(Fla. 5th

DCA 1997); Destiny Constr. Co. v. Martin K. Eby Constr., 662 So. 2d 388, 390 (Fla.

5th

DCA 1995).

RECORD ABSENCE OF NOTE AND CONDITIONS PRECEDENT

9. Here, no genuine properly executed note 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 acknowledged any authentic note/mortgage.

NON- BINDING “ MODIFICATION AGREEMENT ”

10. 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 .”11. 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

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

not signed by each Borrower and/or Walter Prescott, it was not legally binding .

FAILURE TO PROVE TERMS

12. A person seeking enforcement of an instrument under UCC § 3-309(a) must prove the terms

of the instrument and the person’s right to enforce the instrument. See UCC § 3-309(b). Here,

plaintiff failed to prove any terms.

RECORD ABSENCE OF EXECUTION

13. Here, the alleged February 2006 note, mortgage, and/or security instrument did not and could

not have possibly encumbered Franklin-Prescott’s real property, because they were not

properly executed .

NO PROOF ON FILE IN DISPOSED ACTION

14. Here, Franklin-Prescott had denied the authenticity of signatures on the purported note

and/or mortgage alluded to in this disposed case and demanded strict proof thereof, 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”.

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

purported “borrower ” Walter Prescott.



4

16. 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

17. In this disposed action, the purported “ plaintiff ” did not assert any valid note and mortgage

assignment status in the complaint. A security could not possibly follow a non-existent note.

18. 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 Nat’l. Bank, 912 So. 2d 357, 358 (Fla. 4th

DCA 2005).

19. In this disposed action, the named parties plaintiffs, and/or borrowers were conflicting and

ambiguous:

NO TRANSFER OF ALLEGED INSTRUMENT

20. An instrument istransferred

when it isdelivered

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.

AUTOMATICALLY DISSOLVED “ LIS PENDENS ”

21. 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

of lis pendens is one year from filing. § 48.23(2), Fla. Stat. (2010).

22. In this disposed action, the purported “ plaintiff ” sought to re-establish the missing note in

“COUNT I (Reestablishment of Lost Instruments)” of the complaint (see p. 2 of 8). Franklin-



5

Prescott had filed her answer(s) and motions to dismiss and proven plaintiff’s lack of

standing, which was one of the ultimate affirmative defenses. Here, the record reflected

that plaintiff could not possibly re-establish the note and that no authentic note could possibly

be proven under the Evidence Code.

FRAUD ON THE COURT & RECORD EVDENCE THEREOF

23. 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 …”

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

possibly re-established the destroyed and/or lost note/mortgage. Here, the time and manner

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

02/12/11 DOCKET SHOWED FRAUD EVIDENCE & DEMAND IN DISPOSED ACTION

PREVIOUS NOTICE OF UNAVAILABILITY IN DISPOSED ACTION

25. 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

26. “ 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

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



6

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

and improper.

BANKUNITED HAD NO VALID SECURITY INTEREST

28. 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 interest existed.

DEMAND OF LIS PENDENS BOND

29. 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 reestablished and/or enforced . § 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.

30. 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).

31. 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).

32. 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



7

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).

CONTESTED SIGNATURE ON PURPORTED NOTE

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

notarial acknowledgment . See evidence on file.

ALL PLEADINGS WERE SIGNED

34. Here, all of Franklin-Prescott’s pleadings were signed (“/s/ Jennifer Franklin-Prescott”).

NOTICE OF INTERLOCUTORY APPEAL FROM HEARING IN DISPOSED ACTION

35. Here, more than one hearing appeared 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

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

entitlement to 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).

37. Here, Franklin-Prescott had denied the purported “ plaintiff ” has ever had possession of the

alleged note and/or mortgage. Plaintiff could 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 not sue and/or

maintain this disposed action.



8

38. Here, the Plaintiff could not prove the terms of the instrument and the plaintiff bank’s 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 the plaintiff .

UNCLEAN HANDS DEFENSE

39. 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 debt evidence. As such, the plaintiff came to this court with unclean hands.


1. 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;

2. An Order declaring the purported “ plaintiff ” in this disposed action without any authority to sue, foreclose, and/or demand any payment from Jennifer Franklin Prescott;





6. An Order taking judicial notice of the prima facie unenforceability of the unrecorded, un-

assignable, and unpaid mortgage (unpaid mortgage taxes);

7. An Order declaring the purported “ plaintiff ” to be in violation of Fed.R.Civ.P. 1.510 in this

disposed and previously controverted action;

8. An Order declaring the purported 2009 “lis pendens” invalid on its face and taking judicial

notice of the nullity of the lis pendens and unenforceable mortgage and/or note;



9

9. An Order declaring said affidavits “hearsay” and lacking any legal and/or factual basis in

the absence of any authentic “note” and/or mortgage;

10. An Order taking judicial notice of the lack of any genuine “note”, “ plaintiff’s” proven fraud

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

11. An Order prohibiting Counsel and/or Jason M. Tharokh, Esq., who did not file any notice

from appearing in this disposed action.

Respectfully,


ATTACHMENTS

Docket, et al.

CERTIFICATE OF SERVICEI hereby certify that a true and correct copy of this NOTICE IN DISPOSED ACTION has been



Pacific Time.

Respectfully,


CC: Hon. Hugh D. Hayes (Disposition Judge),Albertelli Law

United States District Court


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




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Case Information Printer Friendly Version

Style: BANKUNITED vs FRANKLIN-PRESCOTT, JENNIFER

Uniform Case Number: 112009CA0060160001XX Filed: 07/09/2009

Clerks Case Number: 0906016CA

Court Type: CIRCUIT CIVIL Disposition Judge: HAYES, HUGH D

Case Type: MORTGAGE FOR ECLOSURES Disposed: 08/12/2010

Judge: HAYES, HUGH D Reopen Reason:

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

Last Docket Date: 02/08/2011 Appealed:

Parties

Dockets

Events

Financials

Docket Type Judge Court Date Court Time

MOTION HEARING HAYES, HUGH D 12/06/2010 13:30

MOTION HEARING PEREZ-BENITOA, MAGISTRATE 09/02/2010 11:30

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2 of 2 pages. Entries per page: 60

Date Text All Entries

09/01/2010 OBJECTION TO MAGISTRATE

09/02/2010 CANCELLED

09/02/2010 MINUTES - HEARING SEE SCHEDULE MINUTES FOR DETAILS

09/02/2010 RECEIPT FROM DCAACKNOWLEDGMENT OF NEW CASE FILED W/DCA 8/18/10 2D10-4158

09/02/2010 ORDER BY DCAAPPELLANT SHALL WITHIN 15 DAYS SHALL FILE AN AMENDED APPEAL

09/02/2010 ORDER BY DCAAPPELLANT SHALL FORWARD FILING FEE OR ORDER OF INSOLVENCY WITTHIN40 DAYS

09/02/2010 ORDER BY DCA APPELLANT SHALL SHOW C AUSE WITHIN 15 DAYS

09/02/2010 NOTICE OF LACK OF JURISDICTION


09/02/2010 NOTICE NOTICE OF LACK OF JURISDICTION

09/02/2010 NOTICE

09/02/2010 MOTION FOR RECUSAL

09/02/2010 NOTIC E IN SUPPORT OF HUGH HAYES RECUSAL






09/07/2010 ORIGINAL SENATE STAFF RECORD EVIDENCE IN SUPPORT OF SANCTIONS

09/07/2010 NOTICE OF LACK OF JUSIDICTION

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 NOTIC E OF APPEAL AMENDED NOTICE OF APPEAL 2D10-4158

09/14/2010 COPY CORRESPONDENCE TO 2ND DCA W/ATTACHMENTS

09/15/2010 NOTIC E OF APPEAL AMENDED NOTICE OF APPEAL 2D10-4158

09/15/2010 COP Y AMENDED NOTIC E 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 THISCOUR 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 NOTICE OF HEARING

11/12/2010 NOTIC E OF FILING AFFIDAVIT OF ATTORNEY FEES

11/12/2010 AFFIDAVIT AS TO ATTORNEYS FEES

12/02/2010 NOTIC E 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 COUNSEL TO CLERK

12/06/2010 MOTION TO CANCEL HEARING

12/06/2010 OBJECTION TO& MOTION TO COMPEL & QUIET TITLE BY JENNIFER FRANKLIN-PRESCOT

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 FRANKLIN

PRESCO12/20/2010 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 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
















Parties

Dockets

Events

Financials

Name Type DOB City, State, Zip

BANKUNITED PLAINTIFF

BANKUNITED FSB PLAINTIFF

PASKEWICZ, SERENA KAY ESQ PLAINTIFF'S ATTORNEY MIAMI, FL 33134

ROSE, ERIN M ESQ PLAINTIFF'S CO-COUNSEL TAMPA, FL 33623

FRANKLIN-PRESCOTT, JENNIFER DEFENDANT

PRESCOTT, WALTER DEFENDANT

DOE, JOHN DEFENDANT

DOE, MARY DEFENDANT

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.

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From: MyFax Free <[email protected]>

To: Jennifer Franklin-Prescott <naples [email protected]>

Subject: MyFax Notification - Fax Sent Success fully

Date: Sat, Feb 12, 2011 5:44 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 2/12/2011 4:44:14 AM, and contained 16 page(s).

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2/12/2011 MyFax Notification - Fax Sent Successf…

notice of errors & demand of bond in disposed action

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