Está en la página 1de 20

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 APPEAL FROM “ROCKET DOCKET”, ROBO JUDGE(S) ‘02/22 ORDER’,


“CORRECTION” OF DISPOSITION & FRAUD ON THE COURT IN DISPOSED CASE

1. “08/12/2011 DISPOSITION” RECORD EVIDENCE

2. “02/08/2011” “AMENDED HEARING” RECORD

OBJECTIONS TO “02/22/2011 ORDER” AND ILLEGAL “02/22/2011 HEARING”


3. The prima facie unauthorized “02/22/11 hearing” had been “amended” on 02/08/2011 and
then cancelled:

4. The purported “02/22/2011 order” arose from an unlawful and previously cancelled hearing.

1
02/18/2011 NOTICE OF APPEAL AND 02/21/2011 CANCELLATION OF HEARING

RETIRED MONACO HAD NO AUTHORITY TO DENY PRESCOTT’S MOOT MOTION


5. After the 02/18/2011 NOTICE OF APPEAL, 02/21/2011 CANCELLATION OF
HEARING 2/14/2011, and 08/12/2010 DISPOSITION, Judge Daniel R. Monaco had no
authority to “deny” Jennifer Franklin-Prescott’s moot motions to dismiss & enjoin.

ARBITRARY REMOVAL / “CORRECTION” OF “08/12/2010 DISPOSITION” RECORD


6. After the unlawful “02/22/11 hearing”, the Docket showed the removal and/or “correction”
of the “08/12/2010 disposition”:

WHEREFORE, Jennifer Franklin-Prescott respectfully demands a legal explanation of said


arbitrary and capricious “correction” and a copy of said “MEMORANDUM REGARDING
CORRECTION OF THE DISPOSITION RECORD”.

RETIRED JUDGE “RECYCLES” COMPLAINT OF BANK THAT LACKS STANDING


7. Here, the wrongful foreclosure action had been disposed on 08/12/2010 after Prescott had
filed her Motion(s) to Dismiss. Here, retired Monaco failed to take judicial notice of the
08/12/2010 disposition and case file evidence. Here, Monaco did not read the case file(s)
any more than the robo-signer at “BankUnited” and/or “Albertelli law”. One attorney
described the sham process and bias towards the bank:
“If the court finds for the defendant, the plaintiffs just re-file. The only way for the
caseload to get reduced is to give the case to the plaintiff. The entire process is
designed with that fraudulent result in mind.”

2
Here after disposition in favor of Franklin-Prescott, the court system has been rigged to
enable “BankUnited” to commit fraud all over again. Monaco had no authority to overturn
Judge Hayes’ disposition without any justification. Here after 08/12/2010, the motion to
dismiss had been moot. For financial gain, retired Judge Monaco “re-opened” the closed
door for the “plaintiff” so that “BankUnited” may continue to conceal its lack of note and
standing.
ROBO JUDGE MONACO CONCEALED PERVERSION OF LAW AND FACT
8. Here, “BankUnited” could not possibly obtain any termination of a purported equitable right
of redemption by court order, because no admissible evidence of debt, genuine instrument,
and/or promissory note was on file in this disposed case. Robo Judge Monaco knew and/or
concealed that “BankUnited’s” robo-signed sham affidavits were null and void.
OBJECTIONS TO HEARING BEFORE RETIRED JUDGE AFTER DISPOSITION
9. Here, Jennifer Franklin-Prescott had objected to the retired judge’s prejudice and rejection
of correspondence and pleadings evidencing said fraud on the Court.
10. Airlines understand the risks of retired old pilots. Similarly, courts should not “hire”
temporary judges who need the extra money to sign off on prima facie fraud and may lack
the necessary understanding of instruments that did not even exist when they were on the
bench.
PREJUDICE AGAINST PRESCOTT IN FAVOR OF BANK ON THE RECORD
11. Jennifer Franklin-Prescott contacted Court Administration, which advised her of an alleged
“Order” prejudicing Prescott.
RECORD PREJUDICE AGAINST FRANKLIN-PRESCOTT
12. Hon. Daniel R. Monaco, a retired “temporary” judge reportedly “denied” Franklin-
Prescott’s [moot] motion(s) in her absence and without any authority.

NOTICE OF APPEAL & RESPONSE TO UNLAWFUL HEARING & TRIAL


13. Hereby, Jennifer Franklin-Prescott appeals from said alleged “02/22/2011 order” and
responds to the fraud on the Court and retired Judge Daniel R. Monaco.

3
In this disposed case, retired Monaco presided over said unauthorized and cancelled
02/22/2011 hearing in the excused absence of unavailable Franklin-Prescott and set an
unlawful “trial”. Here, Monaco knew and/or concealed that “BankUnited” had no standing
and/or real interest as conclusively evidenced by the file records.
Because of the devastating NZ earthquake, Franklin-Prescott attached the “order” as shown
on the Clerk’s Docket.
NOTICE OF ILLEGALITY OF “TRIAL SET” ON 02/22/11 & UNAVAILABILITY
14. Under the well-proven circumstances, retired Judge Monaco had no authority to “set trial
date for April 7, 2011” during said unlawful hearing. Here, Monaco deliberately deprived
J. Franklin-Prescott who was entitled to dismissal in this disposed wrongful foreclosure
action. Here, Monaco concealed that the filed evidence had conclusively proven
“BankUnited’s” lack of standing and any entitlement to any trial.
15. Because of the devastating New Zealand earthquake, Franklin-Prescott is unavailable.
Furthermore, Prescott fears further deliberate deprivations by retired robo Judge
Monaco, who presides over the notorious 20th Circuit “rocket docket”.
COURT DELIBERATELY DEPRIVED PRESCOTT OF FUNDAMENTAL RIGHTS
16. Franklin-Prescott had a fundamental Federal & Florida Constitutional right to attend any
hearing of her own motions to dismiss and enjoin. However, Monaco deprived Prescott of
said fundamental right to benefit “BankUnited”.
ERRONEOUS AND AMBIGUOUS HEARING DATES & TIMES
17. The Docket showed an erroneous “hearing” and/or ”court time” of 09:00 AM:

While here the Clerk recorded said “09:00 Court Time”, Court Administration conflictingly
stated otherwise. No hearing took place at 9:00AM. This Court deceived homeowner
Franklin-Prescott about said
a. “Amended hearing”;
b. Cancellation of said amended 02/22/2010 hearing;
c. Vague and ambiguous “court times”.
UNAUTHORIZED “02/22/2011 HEARING” IN FAVOR OF “BANKUNITED”
18. For personal financial gain, retired Judge Daniel R. Monaco favored “BankUnited”. Here,
“temporary” Judge Monaco knew that no authentic note existed and that “BankUnited” had

4
no right to sue, schedule a hearing, and/or foreclose on Prescott. Foreclosure of any right of
redemption could only occur if there had been a contractual obligation. However here, no
admissible evidence of any genuine executed note existed on the record.
RETIRED ROBO JUDGE D. R. MONACO CONCEALED ILLEGALITY OF HEARING
19. Here, “rocket docket” Judge Monaco failed to take notice of the file evidence and
08/12/2010 disposition. Here, the judicial mission was not justice but speed and favors to
“BankUnited” at Prescott’s expense. Monaco’s “rocket docket” launders fraudulent banking
acts. Because banking crimes are so pervasive, Judges of the 20th Judicial feverishly rubber-
stamp the fraud away. Apparently in need of extra money, retired Judge Monaco presided over
said unauthorized and cancelled hearing and the “correction” of the 08/12/2010 disposition
record in the known absence of any note evidence.
D. R. MONACO KNEW THAT THE ALLEGED NOTE WAS NOT AUTHENTIC
20. Here, temporary Judge Monaco knew and/or concealed that Prescott had controverted the
authenticity of the purported note. Defendant Walter Prescott had not executed the alleged
note pursuant to the evidence on file. Here, Monaco knew that there had been no proper
execution, no notarial acknowledgment, no recording, and no contractual obligation.
21. Here no mortgage could possibly secure that which had been proven not to exist.

20TH CIRCUIT “ROCKET DOCKET” - BEAT-THE-CLOCK JUDICIAL TRICKERY


22. The notorious 20th Judicial Circuit has heard up to 1,000 cases per day. Assuming an 8-hour
day, this equated to less than 30 seconds per case.

5
NO RULE-OF-LAW AND NO “REOPEN REASON”
23. Here, the Docket showed “Judge Hugh D. Hayes” and the lack of any “Reopen Reason”:

Here, Monaco’s “rocket docket” was devoid of due process and the rule of law. WHY and
HOW retired robo Judge Monaco was authorized to preside over the unauthorized and
cancelled 02/22/11 hearing and overturn Judge Hayes’ 08/12/2010 disposition could not be
explained by any reasonable person, judge or juror in Monaco’s shoes.
NATIONAL EMERGENCY AND PRESCOTT’S NOTICE OF UNAVAILABILITY
24. Jennifer Franklin-Prescott, a United Kingdom citizen, has family, friends, and property in the
Pacific. A national emergency was declared after the devastating NZ earthquake.
Franklin-Prescott cannot leave because of said emergency and will therefore be unavailable.
Hereby, Franklin-Prescott gives again notice of her unavailability.
PRESCOTT FEARS FURTHER FRAUD, DEPRIVATIONS & SHAM PROCEEDINGS
25. After said unlawful “02/22/2011 hearing”, Prescott fears that Monaco may further extend
his prima facie bias and again deprive her of due process and fundamental rights to defend
against “BankUnited’s” fraud on the court.
26. Because here no reasonable person, juror or judge could possibly explain the record errors,
contradictions, and arbitrary acts in this disposed case, Franklin-Prescott cannot possibly
trust Judge Monaco, said Circuit, and said “rocket docket” sham proceedings.
NO FEBRUARY HEARING HAD APPEARED ON THE 02/18/2011 DOCKET
27. Here, the 02/18/2011 Docket had not shown any hearing and/or hearing date:

6
UNKNOWN LOSS / DESTRUCTION OF PURPORTED PROMISSORY NOTE
28. On behalf of “BankUnited”, bankrupt BankUnited, FSB’s founder Alfred Camner, Esq., had
asserted in the complaint:
“6. Said promissory note and mortgage have been lost or destroyed and are not in the
custody or control of BankUnited, and the time and manner of the loss or destruction
is unknown.”
Here, no copy of any genuine promissory note identifying “BankUnited” was attached to the
complaint.
COPY OF MORTGAGE IDENTIFIED BANKRUPT “BankUnited, FSB” AS “LENDER”
29. 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 OF STANDING
30. Prior to the 08/12/2010 disposition, Jennifer Franklin-Prescott had proven BankUnited’s
lack of standing, answered, and filed a motion to dismiss.
BANKUNITED’S FAILURE TO STATE ANY CAUSE OF ACTION
31. This action was disposed, because BankUnited had failed to state any cause action.
ATTACHMENTS PROVED BANKUNITED’S LACK OF STANDING & CAUSE
32. 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 that BankUnited
actually held the note or mortgage, thus giving rise to the disposition and question as to
whether BankUnited actually ever had standing to foreclose on the mortgage.
BANKUNITED’S FALSE PRETENSES & FRAUD ON THE COURT

7
33. 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
holder and/or owner of the 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.
BANKUNITED’S EXHIBITS CONTRADICTED ITS ALLEGATIONS
34. 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,
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 OF STANDING & FAILURE TO STATE CAUSE
35. Because the exhibits to BankUnited's complaint conflicted with its allegations
concerning standing and the exhibits did not show that BankUnited had any standing to
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 NEVER IDENTIFIED AND HAD NO RIGHTS TO ENFORCE
36. 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 or holder. BankUnited also did not attach any assignment or any other evidence to
establish that it had purchased 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's standing to
foreclose the purported note and mortgage.

8
BANKUINTED WAS NO “HOLDER” & HAD NO RIGHTS TO ENFORCE NOTE
37. 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 for negotiation, both of which were missing here,
were the transfer of possession of the alleged instrument to BankUnited (non- transferee),
and its indorsement by the holder.
BINDING PRECEDENT – BAC FUNDING CONSORTIUM, INC
38. 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's standing to 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 ANY ADMISSIBLE EVIDENCE:
“BANKUNITED” WAS NOT ANY OWNER AND HAD NO RIGHT TO SUE PRESCOTT
39. In the instant case, the purported note was, e.g., not properly executed, not assigned, the
falsely pretended assignment not 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” validly owned and held the 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”

9
40. 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).
41. 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-
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
42. 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 …”
43. 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.
02/15/11 DOCKET SHOWED FRAUD EVIDENCE & DEMAND IN DISPOSED ACTION

In this disposed action, Jennifer Franklin-Prescott was entitled to the dismissal of


“BankUnited’s” facially frivolous and insufficient complaint and/or action as conclusively
proven by the conclusive evidence on file.
Retired robo Judge Monaco presiding over said illegal and cancelled hearing without the
rule of law in the excused absence of Franklin-Prescott, capriciously overturning Judge
Hayes disposition, and “setting trial” in the well-proven absence of any “BankUnited”
standing was another unlawful “rocket docket” charade from which Franklin-Prescott is
appealing.
WHEREFORE Jennifer Franklin-Prescott respectfully demands
1. Proper processing of this NOTICE OF APPEAL and/or INTERLOCUTORY APPEAL;
2. An Order declaring the “trial set” during said unlawful and cancelled “02/22/10 hearing” in
the excused absence of Franklin-Prescott unlawful for lack of due process and because

10
“BankUnited” had never been entitled to any action and trial for lack of standing and note in
this disposed case;
3. An Order declaring the “correction of the disposition record” unlawful and prejudicial at
Franklin-Prescott’s expense;

4. An Order enjoining retired robo Judge Monaco from any further deliberate deprivations
of Franklin-Prescott’s fundamental Federal and Florida Constitutional rights to own her
property without judicial fraud and fraud on the court;
5. An Order taking judicial notice of said binding precedent (BAC Funding) in support of the
record 08/12/2010 disposition;
6. 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;
7. 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;
8. An Order declaring the cancelled “02/22/2011 hearing” unauthorized in this disposed
action;
9. An Order declaring “BankUnited’s” prima facie sham “motion(s)” and “affidavits”
unlawful in this previously disputed and disposed action;
10. An Order declaring the purported note and/or mortgage unenforceable;
11. An Order taking judicial notice of the prima facie unenforceability of the unrecorded,
un-assignable, and unpaid mortgage (unpaid mortgage taxes);
12. An Order declaring the purported “plaintiff” to be in violation of Fed.R.Civ.P. 1.510 in this
disposed and previously controverted action;
13. 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;
14. An Order declaring said affidavits “hearsay” and lacking any legal and/or factual basis in
the absence of any authentic “note” and/or mortgage;
15. 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
16. 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
UNLAWFUL “02/22/2011 ORDER” “S/MONACO”

CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this NOTICE OF APPEAL has been delivered to
“BankUnited”, “Albertelli Law”, P.O. Box 23028, Tampa, FL 33623, USA, the Clerk of Court,
Hon. Hugh D. Hayes, and retired Hon. Daniel R. Monaco, Courthouse, Naples, FL 34112, USA,
on February 24, 2011, Pacific Time.
Respectfully,

/s/Jennifer Franklin Prescott, fraud victim


CC: Hon. Hugh D. Hayes (Disposition Judge),
Albertelli Law, Hon. Daniel R. Monaco, Karen (JA),
United States District Court, Clerk of Court,
The Florida Bar, New York Times, et al.
robin.sidel@wsj.com, dawn.wotapka@dowjones.com, erose@albertellilaw.com,
NetNet@cnbc.com, khundley@sptimes.com, mmiddlebrook@ca.cjis20.org,
dmclaughlin9@bloomberg.net, crice@ca.cjis20.org, drovella@bloomberg.net,
pforeclosures@ca.cjis20.org, hforeclosures@ca.cjis20.org, CollierJACS@ca.cjis20.org,
kbailey@ca.cjis.org, lllayden@NAPLESNEWS.COM, dwilliams@ca.cjis.org,
tom.lyons@heraldtribune.com, eecamner@clplaw.net, acamner@clplaw.net,
dmonaco@ca.cjis20.org, hhayes@ca.cjis20.org, froomkin@huffingtonpost.com,
darlene.muszynski@collierclerk.com, christine@desertedgelegal.com,
Collierclerk@collierclerk.com, Sue.Barbiretti@collierclerk.com, Jill.Lennon@collierclerk.com,
Dwight.Brock@collierclerk.com, Robert.StCyr@collierclerk.com, afivecoat@albertellilaw.com,
simone@albertellilaw.com, nreed@albertellilaw.com, tbaron@albertellilaw.com,
jsawyer@albertellilaw.com, jalbertelli@albertellilaw.com,

12
UNLAWFUL “02/22/2011 ORDER” “S/MONACO”

13
2/15/2011 FindACase™ | <a Name=hit3>bac <a …

Live complaint management Manage customer complaints live Retain & recover unhappy customers customerradar.
Research databases Systems for clinical research studies and trials. Reports. www.datasyn.co.nz
Customer Experience Event Discuss customer relationship plans Sydney, 19-21 Apr. Book online now! www.Custo

Buy Document Now

BAC Funding Consortium Inc. ISAOA/ATIMA v. Jean-Jacques

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

Docket Number available at www.versuslaw.com


Citation Number available at www.versuslaw.com

February 12, 2010

BAC FUNDING CONSORTIUM INC. ISAOA/ATIMA, APPELLANT,


v.
GINELLE JEAN-JACQUES, SERGE JEAN-JACQUES, JR., AND U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR THE C-
BASS MORTGAGE LOAN ASSET BACKED CERTIFICATES, SERIES 2006-CB5, APPELLEES.

Appeal from the Circuit Court for Sarasota County; Robert B. Bennett, Jr., Judge.

F. Malcolm Cunningham, Jr., and Amy Fisher of The Cunningham Law Firm, P.A., West Palm Beach, for Appellant.

Cindy L. Runyan of Florida Default Law Group, Lp, Tampa, for Appellee U.S. Bank National Association.

No appearance for Appellees Ginelle M. Jean-Jacques and Serge Jean-Jacques, Jr.

The opinion of the court was delivered by: VILLANTI, Judge

BAC Funding Consortium Inc. ISAOA/ATIMA (BAC) appeals the final summary judgment of foreclosure entered in favor of U.S. Bank
National Association, as Trustee for the C-Bass Mortgage Loan Asset Backed Certificates, Series 2006-CB5 (U.S. Bank). Because
summary judgment was prematurely entered, we reverse and remand for further proceedings.

On December 14, 2007, U.S. Bank filed an unverified mortgage foreclosure complaint naming the Jean-Jacqueses and BAC as
defendants. The complaint included one count for foreclosure of the mortgage and a second count for reestablishment of a lost
note. U.S. Bank attached a copy of the mortgage it sought to foreclose to the complaint; however, this document identified Fremont
Investment and Loan as the "lender" and Mortgage Electronic Registrations Systems, Inc., as the "mortgagee." U.S. Bank also
attached an "Adjustable Rate Rider" to the complaint, which also identified Fremont as the "lender."

Rather than answering the complaint, BAC responded by filing a motion to dismiss based on U.S. Bank's lack of standing. BAC
argued that none of the attachments to the complaint showed that U.S. Bank actually held the note or mortgage, thus giving rise to
a question as to whether U.S. Bank actually had standing to foreclose on the mortgage. BAC argued that the complaint should be
dismissed based on this lack of standing.

U.S. Bank filed a written response to BAC's motion to dismiss. Attached as Exhibit A to this response was an "Assignment of
Mortgage." However, the space for the name of the assignee on this "assignment" was blank, and the "assignment" was neither
signed nor notarized. Further, U.S. Bank did not attach or file any document that would authenticate this "assignment" or otherwise
render it admissible into evidence.

For reasons not apparent from the record, BAC did not set its motion to dismiss for hearing. Subsequently, U.S. Bank filed a motion
for summary judgment. At the same time, U.S. Bank voluntarily dismissed its count for reestablishment of a lost note, and it filed the
"Original Mortgage and Note" with the court. However, neither of these documents identified U.S. Bank as the holder of the note or
mortgage in any manner. U.S. Bank did not file the original of the purported "assignment" or any other document to establish that it
had standing to foreclose on the note or mortgage.

Despite the lack of any admissible evidence that U.S. Bank validly held the note and mortgage, the trial court granted summary
judgment of foreclosure in favor of U.S. Bank. BAC now appeals, contending that the summary judgment was improper because U.S.
Bank never established its standing to foreclose.

The summary judgment standard is well-established. "A movant is entitled to summary judgment 'if the pleadings, depositions,
answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is
no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' " Estate of Githens

…findacase.com/…/wfrmDocViewer.aspx 1/3
2/15/2011 FindACase™ | <a Name=hit3>bac <a …
ex rel. Seaman v. Bon Secours-Maria Manor Nursing Care Ctr., Inc., 928 So. 2d 1272, 1274 (Fla. 2d DCA 2006) (quoting Fla. R. Civ. P.
1.510(c)). When a plaintiff moves for summary judgment before the defendant has filed an answer, "the burden is upon the plaintiff
to make it appear to a certainty that no answer which the defendant might properly serve could present a genuine issue of fact."
Settecasi v. Bd. of Pub. Instruction of Pinellas County, 156 So. 2d 652, 654 (Fla. 2d DCA 1963); see also W. Fla. Cmty. Builders, Inc.
v. Mitchell, 528 So. 2d 979, 980 (Fla. 2d DCA 1988) (holding that when plaintiffs move for summary judgment before the defendant
files an answer, "it [is] incumbent upon them to establish that no answer that [the defendant] could properly serve or affirmative
defense it might raise" could present an issue of material fact); E.J. Assocs., Inc. v. John E. & Aliese Price Found., Inc., 515 So. 2d
763, 764 (Fla. 2d DCA 1987) (holding that when a plaintiff moves for summary judgment before the defendant files an answer, "the
plaintiff must conclusively show that the defendant cannot plead a genuine issue of material fact"). As these cases show, a plaintiff
moving for summary judgment before an answer is filed must not only establish that no genuine issue of material fact is present in
the record as it stands, but also that the defendant could not raise any genuine issues of material fact if the defendant were
permitted to answer the complaint.

In this case, U.S. Bank failed to meet this burden because the record before the trial court reflected a genuine issue of material fact
as to U.S. Bank's standing to foreclose the mortgage at issue. The proper party with standing to foreclose a note and/or mortgage
is the holder of the note and mortgage or the holder's representative. See Mortgage Elec. Registration Sys., Inc. v. Azize, 965 So.
2d 151, 153 (Fla. 2d DCA 2007); Troupe v. Redner, 652 So. 2d 394, 395-96 (Fla. 2d DCA 1995); see also Philogene v. ABN Amro
Mortgage Group, Inc., 948 So. 2d 45, 46 (Fla. 4th DCA 2006) ("[W]e conclude that ABN had standing to bring and maintain a
mortgage foreclosure action since it demonstrated that it held the note and mortgage in question."). While U.S. Bank alleged in its
unverified complaint that it was the holder of the note and mortgage, the copy of the mortgage attached to the complaint lists
"Fremont Investment & Loan" as the "lender" and "MERS" as the "mortgagee." 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,
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."); 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"). Because the exhibit to U.S. Bank's complaint conflicts with its allegations concerning standing and the exhibit does
not show that U.S. Bank has standing to foreclose the mortgage, U.S. Bank did not establish its entitlement to foreclose the
mortgage as a matter of law.

Moreover, while U.S. Bank subsequently filed the original note, the note did not identify U.S. Bank as the lender or holder. U.S. Bank
also did not attach an assignment or any other evidence to establish that it had purchased the note and mortgage. Further, it did
not file any supporting affidavits or deposition testimony to establish that it owns and holds the note and mortgage. Accordingly,
the documents before the trial court at the summary judgment hearing did not establish U.S. Bank's standing to foreclose the note
and mortgage, and thus, at this point, U.S. Bank was not entitled to summary judgment in its favor.

In this appeal, U.S. Bank contends that it was not required to file an assignment of the note or mortgage or otherwise prove that it
validly held them in order to be entitled to summary judgment in its favor. We disagree for two reasons. First, because BAC had not
yet answered the complaint, it was incumbent on U.S. Bank to establish that no answer that BAC could properly serve or affirmative
defense that it might allege could raise an issue of material fact. Given the facial conflict between the allegations of the complaint
and the contents of the exhibit to the complaint and other filings, U.S. Bank failed to meet this burden.

Second, regardless of whether BAC answered the complaint, U.S. Bank was required to establish, through admissible evidence, that
it held the note and mortgage and so had standing to foreclose the mortgage before it would be entitled to summary judgment in
its favor. Whether U.S. Bank did so through evidence of a valid assignment, proof of purchase of the debt, or evidence of an
effective transfer, it was nevertheless required to prove that it validly held the note and mortgage it sought to foreclose. See
Booker v. Sarasota, Inc., 707 So. 2d 886, 889 (Fla. 1st DCA 1998) (holding that the trial court, when considering a motion for
summary judgment in an action on a promissory note, was not permitted to simply assume that the plaintiff was the holder of the
note in the absence of record evidence of such). The 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's standing to
foreclose the note and mortgage, and U.S. Bank submitted no other evidence to establish that it was the proper holder of the note
and/or mortgage.

Essentially, U.S. Bank's argument in favor of affirmance rests on two assumptions: a) that a valid assignment or transfer of the note
and mortgage exists, and b) that a valid defense to this action does not. However, summary judgment is appropriate only upon
record proof-not assumptions. Given the vastly increased number of foreclosure filings in Florida's courts over the past two years,
which volume has taxed both litigants and the judicial system and increased the risk of paperwork errors, it is especially important
that trial courts abide by the proper standards and apply the proper burdens of proof when considering a summary judgment
motion in a foreclosure proceeding.

Accordingly, because U.S. Bank failed to establish its status as legal owner and holder of the note and mortgage, the trial court
acted prematurely in entering final summary judgment of foreclosure in favor of U.S. Bank. We therefore reverse the final summary
judgment of foreclosure and remand for further proceedings.

Reversed and remanded for further proceedings.

ALTENBERND and SILBERMAN, JJ., Concur.

20100212

© 1992-2010 VersusLaw Inc.

…findacase.com/…/wfrmDocViewer.aspx 2/3
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.
_________________________________________________________________________/

COMPLAINT OF FRAUD ON THE COURT & SHAM 02/22/11 HEARING AND


EMERGENCY DEMAND TO ENJOIN BANKUNITED’S FRAUD IN DISPOSED CASE

FROM:
Jennifer Franklin-Prescott, “BankUnited” fraud victim

TO:
MARK MIDDLEBROOK, CCM, Senior Deputy Court Administrator
20th Judicial Circuit of Florida
Phone: 239-252-8785
Fax: 239-252-8272
E-Mail: mmiddlebrook@ca.cjis20.org
[reportedly did not come to the office on 02/21/2011]
Charles Rice, Director
Collier County Probation Dept.
Phone: 239-252-8135
E-Mail: crice@ca.cjis20.org
Karen Bailey, Administrative Assistant
[reportedly unavailable]
Debbie Mravic, “Case Manager”; “Program Coordinator”

RE: Fraudulent “02/22/11” hearing” in disposed wrongful foreclosure case 09-6016-CA

Dear Mr. Middlebrook:

02/21/2011 SKYPE CALLS TO COURT ADMINISTRATION


1. Thank you for our phone conversations via Skype from the Pacific on 02/21/2011, PM,
regarding “BankUnited’s” fraud on the Court and unauthorized “02/22/2011 hearing”.
COURT ADMINISTRATION FAVORS BANKUNITED & FAILS TO CANCEL
2. As conclusively evidenced by the Court’s “OFFICE POLICIES AND PROCEDURES”, the
Court has failed to cancel the “02/22/2011 hearing”. The Court and its Administration have
failed to rationally explain the errors and contradictions on the record.
3. Here, neither this Court nor any reasonable person could possibly explain WHY and HOW
there could be any “hearing on 02/22/2011”:

“OFFICE POLICIES AND PROCEDURES


SENIOR JUDGE FORECLOSURE – Summary Judgments only
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.”

02/08/2011 AMENDED NOTICE OF 02/14/2011 HEARING


4. Pursuant to the Docket in this disposed case, the unauthorized “02/22/2011 hearing” had
been amended on “02/08/2011”. See “AMENDED NOTICE OF HEARING 02/14/11”.
Pursuant to the public record, “BankUnited” and/or “Albertelli Law” did not appear on
02/14/2011.
5. After said 02/08/11 hearing amendment, the Court now alleges a “02/22/2011, 9:00AM”
hearing. Said allegation is erroneous. See 02/21/2011 Docket.

MOOT “MOTIONS TO DISMISS AND ENJOIN” IN DISPOSED ACTION


6. During said conversations today, Court administration alleged “motions to dismiss and
enjoin”, which however are known to be MOOT after the 08/12/2010 disposition.

ERRORS, ERRORS & FRAUD, FRAUD, FRAUD


7. After said 2010 disposition, and in the absence of any promissory note, the record evidenced
a. Conflicting court dates and times;
b. Erroneous ”plaintiff”” “BankUnited, FSB”;
c. Erroneous parties such as, e.g., “Pedro Luis Licourt”; see 02/08/11 filings.

“ALBERTELLI LAW” FORECLOSURE MILL & ROBO SIGNING


8. Crooked bank lawyers at the “Albertelli Law” Foreclosure Mill are not to run this Court. In
this Court apparently anyone can schedule a hearing after disposition and in the known
absence of, e.g.,
a. Any standing of the purported “plaintiff” bank;
b. Any evidence of a contractual obligation/debt;
c. Conditions precedent;
d. Any notice of appearance.
THIS COURT KNEW OF “ROBO SIGNING” AND FRAUD ON THE RECORD
9. Here without any personal knowledge, e.g., Ashley Simon, Esq., and Barbie Fernandez
“robo-signed” documents for unlawful purposes of defrauding the alleged “defendants”.
10. This Court knew that Jennifer Franklin-Prescott was under no contractual obligation to pay
“BankUnited”, and the wrongful action was disposed. See evidence on file.

08/12/2010 DISPOSITION
11. The wrongful foreclosure action had been disposed on 08/12/2010 for lack of standing.
Here, bankrupt “BankUnited, FSB” was seized by the F.D.I.C, and “BankUnited” had no
standing and no right to sue “Jennifer Franklin Prescott”.

RECORD UNAVAILABILITY IN DISPOSED ACTION


12. I have been in the Pacific and given notice(s) of my unavailability. See Docket.

PREVIOUS UNAUTHORIZED HEARINGS


13. After the objections on file, previous unauthorized “hearings” on 09/02/2010 and
12/06/2010 did not take place. This is the third attempt by crooked bank lawyers to steamroll
pro se “defendants” without any authority and in the record absence of any admissible
and/or competent evidence of any debt and/or note.

MANDATORY CANCELLATION FOR LACK OF SERVICE IN DISPOSED ACTION


14. Here, “BankUnited” did not serve any “timely notice” of hearing on Jennifer Franklin-
Prescott as also conclusively evidenced by the Clerk’s 02/18/2011 Docket. Here, said bank
was not entitled to sue nor to any hearing.
“A party/attorney scheduling a hearing must concurrently 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.” Id.
UNAUTHORIZED ATTORNEY “ANDREW LEE FIVECOAT”, ESQ.
15. “Andrew Lee Fivecoat” had no authority to schedule any hearing in said disposed wrongful
foreclosure action. Here, Fivecoat knew and/or fraudulently concealed that “BankUnited”
had no standing and that the exhibits on file conclusively evidenced that “BankUnited” was
not identified as “lender” and was not any note holder and/or owner.

PERJURIOUS EVIDENCE ON FILE


16. Forged and perjurious evidence are a fraud on the defendants and the court. After the bank
had submitted sham “ownership” documents, it came back after the 08/12/2010 disposition
to file more perjurious papers.

ROBO / ROCKET DOCKET


17. Here, a retired “temporary” judge is paid to “accelerate” the rocket docket and has a
financial interest in dispensing cases. In this disposed case, the record bias against
“defendant” homeowner violates due process.
RETIRED ROBO JUDGE
18. Here, the retired robo judge failed to take judicial notice of the 08/12/2010 disposition and
case facts. The robo judge is not reading the case file(s) any more than the robo signer at
“BankUnited” and/or “Albertelli law”. One attorney observed:
“If the court finds for the defendant, the plaintiffs just refile. The only way for the
caseload to get reduced is to give the case to the plaintiff. The entire process is
designed with that fraudulent result in mind.”
Here after disposition in favor of Franklin-Prescott, the court system is set up to enable
“BankUnited” to commit fraud over and over again.

OBJECTION TO HEARING BEFORE RETIRED JUDGE AFTER DISPOSITION


19. Jennifer Franklin-Prescott objects to the retired judge‘s rocket docket. Here, all
correspondence and pleadings evidencing the fraud on the Court have been utterly ignored.
Retired “temporary” Judge Hon. D. R. Monaco does not even have any assistant.
20. Airlines understand the risks of retired pilots. Similarly, courts should not “hire” temporary
judges who need the extra money to sign off on prima facie fraud.

APPEAL & OBJECTION TO POST-RULE-OF-LAW “HEARING”


21. On 02/18/2011, I had appealed from the lack of due process and arbitrary and capricious
acts in this disposed wrongful action. Here, defunct “BankUnited, FSB” was not any
“plaintiff”, and “BankUnited” had no right to sue and/or schedule any hearing.

WORLDWIDE PUBLICATION
22. These pleadings and/or communications have been published at www.scribd.com. See
www.Google.com; www.YouTube.com.

Respectfully,

/s/Jennifer Franklin-Prescott, “BankUnited” fraud victim

ATTACHMENTS
• “POLL COLLIER’S NEW FORECLOSURE HEARING PROCESS FAVORS BANKS,
ATTORNEYS SAY”; Naples News

• “Naples Attorneys complain – Collier County new foreclosure hearing process only favors
banks”

• “Collier County Court and Foreclosure Case Hearings”

CC: Florida Attorney General


New York Times
Naples News
Robert D. St. Cyr, Director, Community Outreach
Clerk of the Circuit Court, Collier County, FL; T: (239) 252-6879
The Honorable Daniel R. Monaco
The Hon. Hugh D. Hayes, “Disposition Judge”
Circuit Court Judges, Twentieth Judicial Circuit
Judicial Assistants Karen / Jan
Collier County Government Complex
3301 Tamiami Trail East
Naples, Florida 34112
Phone: 239.774.8118; 239.252.8119;
Fax: 239.252.8870; 239.775.5538; 239.774.9654; 239-252-8020
Email: dmonaco@ca.cjis20.org, jmetcalfe@ca.cjis20.org, hhayes@ca.cjis20.org
Other …