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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:
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
hhayes@ca.cjis20.org, Dwight.Brock@collierclerk.com,
darlene.muszynski@collierclerk.com, Collierclerk@collierclerk.com,
Sue.Barbiretti@collierclerk.com, Jill.Lennon@collierclerk.com …

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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.
___________________________________________________________________/
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:
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 mortgage


Complaint 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.

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[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
14. Here,
2003). 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”.

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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”

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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. In
this 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 unrecorded
and 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 legally
seized BankUnited, FSB, had not been entitled to enforce the purported mortgage against

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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 in
title of document; applicability.—
(1) An assignment of a mortgage upon real property or of any interest therein, is
not 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 recorded
according to law.
BARBIE FERNANDEZ’ FRAUDULENT 10/25/2010 “AFFIDAVIT OF COUNSEL”
45. Here however in conflict with the founder of legally seized BankUnited, FSB (Alfred
Camner, 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 note
and/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).

10
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

11
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.

12
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

13
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.
WHEREFORE Jennifer Franklin-Prescott respectfully demands
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;
2. An Order declaring any hearing unauthorized in this disposed action;
3. An Order declaring the prima facie sham “motion” and “affidavits” unlawful in this
previously disputed and disposed action;
4. An Order declaring the purported note and/or mortgage unenforceable;
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,
/s/Jennifer Franklin-Prescott, BankUnited foreclosure fraud victim

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

14
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
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 9, 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
Other
hhayes@ca.cjis20.org, Dwight.Brock@collierclerk.com,
darlene.muszynski@collierclerk.com, Collierclerk@collierclerk.com,
Sue.Barbiretti@collierclerk.com, Jill.Lennon@collierclerk.com …

15
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 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


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

2
(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.

3
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 is transferred when it is delivered by a person other than its issuer for the
purpose of giving to the person receiving delivery the right to enforce the instrument. See
UCC § 3-203(a). If a transferor purports to transfer less than the entire instrument,
negotiation of the instrument does not occur. The transferee obtains no rights under this
Article and has only the rights of a partial assignee. See UCC 3-203(d). Here, the destroyed
and/or lost instrument could not have possibly been delivered and/or transferred, and the
case was disposed on 08/12/2010.
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-

4
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:

5
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

6
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.

7
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.
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 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;
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;
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;

8
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 12, 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
hhayes@ca.cjis20.org, Dwight.Brock@collierclerk.com,
darlene.muszynski@collierclerk.com, Collierclerk@collierclerk.com,
Sue.Barbiretti@collierclerk.com, Jill.Lennon@collierclerk.com …

9
2/12/2011 Public Inquiry

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Case Information Printer Friendly Version

Style: BANKUNITED vs FRANKLIN-PR ESC O TT, JENNIFER


Uniform Case Number: 112009C A0060160001XX Filed: 07/09/2009
Clerks Case Number: 0906016C A
Court Type: C IR C UIT CIVIL Disposition Judge: HAYES, HUGH D
Case Type: MO R TGAGE FO R ECLO SUR ES Disposed: 08/12/2010
Judge: HAYES, HUGH D Reopen Reason:
Case Status: DISPO SED Reopened:
Next Court Date: Reopen Close:
Last Docket Date: 02/08/2011 A ppealed:

Parties Dockets Events Financials

Docket Type Judge Court Date Court Time


MO TIO N HEAR ING HAYES, HUGH D 12/06/2010 13:30
MO TIO N HEAR ING PER EZ-BENITO A, MAGISTR ATE 09/02/2010 11:30

W e dne sday night is re gular m a inte nance tim e on our se rve rs; as a re sult brie f o utage s m ay o ccur.
W e apologize in advance for any inconve nie nce.

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2/12/2011 Public Inquiry

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Style: BANKUNITED vs FRANKLIN-PR ESC O TT, JENNIFER


Uniform Case Number: 112009C A0060160001XX Filed: 07/09/2009
Clerks Case Number: 0906016C A
Court Type: C IR C UIT CIVIL Disposition Judge: HAYES, HUGH D
Case Type: MO R TGAGE FO R ECLO SUR ES Disposed: 08/12/2010
Judge: HAYES, HUGH D Reopen Reason:
Case Status: DISPO SED Reopened:
Next Court Date: Reopen Close:
Last Docket Date: 02/09/2011 A ppealed:

Parties Dockets Events Financials

2 of 2 page s. Entrie s pe r page : 60

Date Text All Entries


09/01/2010 O BJEC TIO N TO MAGISTR ATE
09/02/2010 C ANC ELLED
09/02/2010 MINUTES - HEAR ING SEE SC HEDULE MINUTES FO R DETAILS
09/02/2010 R EC EIP T FR O M DC A
AC KNO W LEDGMENT O F NEW C ASE FILED W /DC A 8/18/10 2D10-4158
09/02/2010 O R DER BY DC A
APP ELLANT SHALL W ITHIN 15 DAYS SHALL FILE AN AMENDED APPEAL
09/02/2010 O R DER BY DC A
APP ELLANT SHALL FO R W AR D FILING FEE O R O R DER O F INSO LVENC Y W ITTHIN
40 DAYS
09/02/2010 O R DER BY DC A APP ELLANT SHALL SHO W C AUSE W ITHIN 15 DAYS
09/02/2010 NO TIC E O F LAC K O F JUR ISDIC TIO N
09/02/2010 NO TIC E O F LAC K O F JUR ISDIC TIO N
09/02/2010 NO TIC E NO TIC E O F LAC K O F JUR ISDIC TIO N
09/02/2010 NO TIC E
09/02/2010 MO TIO N FO R R EC USAL
09/02/2010 NO TIC E IN SUPPO R T O F HUGH HAYES R EC USAL
09/02/2010 NO TIC E O F LAC K O F JUR ISDIC TIO N
09/02/2010 NO TIC E O F LAC K O F JUR ISDIC TIO N
09/03/2010 NO TIC E O F LAC K O F JUR ISDIC TIO N

09/03/2010 NO TIC E O F LAC K O F JUR ISDIC TIO N


09/03/2010 NO TIC E O F LAC K O F JUR ISDIC TIO N
09/07/2010 O R IGINAL SENATE STAFF R EC O R D EVIDENC E IN SUPPO R T O F SANC TIO NS
09/07/2010 NO TIC E O F LAC K O F JUSIDIC TIO N
09/07/2010 R EQ UEST FO R JUDIC IAL NO TIC E
09/07/2010 NO TIC E O F AUTO MATIC DISSO LUTIO N O F LIS PENDENS
09/07/2010 R EQ UEST FO R JUDIC IAL NO TIC E
apps.collierclerk.com/…/Case.aspx?UC… 1/3
2/12/2011
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Public Inquiry
09/14/2010 NO TIC E O F APP EAL AMENDED NO TIC E O F AP PEAL 2D10-4158
09/14/2010 C O PY C O R R ESPO NDENC E TO 2ND DCA W /ATTAC HMENTS
09/15/2010 NO TIC E O F APP EAL AMENDED NO TIC E O F AP PEAL 2D10-4158
09/15/2010 C O PY AMENDED NO TIC E O F APPEAL TITLED TO 2ND DC A
09/15/2010 C O RR ESPO NDENCE FR O M
APP EAL CLER K TO DC A W /C ER TIFIED C O PY AMENDED NO TICE O F APPEAL
2D10-4158
09/16/2010 C O RR ESPO NDENCE FR O M
APP EAL CLER K TO DC A W /C ER TIFIED C O PY AMENDED NO TICE O F 2ND AMENDED
NO TIC E O F APP EAL
09/16/2010 DEMAND FO R FINAL O R DER
10/04/2010 O R DER BY DC A
THIS APPEAL DISMISSED BEC AUSE AP PELLANT FAILED TO C O MPLY W ITH THIS
C O UR TS O R DER O F 8/31/10 R EQ UIR ING A C O PY O F O RDER APPEALED
10/25/2010 O R DER BY DC A THIS APPEAL IS DISMISSED
11/12/2010 NO TIC E O F HEARING
11/12/2010 NO TIC E O F FILING AFFIDAVIT O F ATTO R NEY FEES
11/12/2010 AFFIDAVIT AS TO ATTO R NEYS FEES
12/02/2010 NO TIC E O F FILING O R IGINAL NO TE & O R IGINAL MO R TGAGE
12/03/2010 MO TIO N
TO C ANC EL UNAUTHO R IZED HEAR ING IN DISP O SED AC TIO N MO TIO N FO R
JUDIC IAL NO TIC E / BY JENNIFER FR ANKLIN-PR ESC O
12/06/2010 C O RR ESPO NDENCE FR O M C O UNSEL TO C LERK
12/06/2010 MO TIO N TO C ANC EL HEAR ING
12/06/2010 O BJEC TIO N TO
& MO TIO N TO C O MPEL & Q UIET TITLE BY JENNIFER FR ANKLIN-PR ESCO T
12/06/2010 NO APPEAR ANC E BY THE PARTIES
12/06/2010 MINUTES - HEAR ING SEE SC HEDULE MINUTES FO R DETAILS
12/07/2010 NO TIC E O F C ANC ELLATIO N 12/06/10 @ 3:00 MO TIO N FO R SUMMARY JUDGMENT
12/08/2010 O BJEC TIO N TO HEAR ING BY JENNIFER FR ANKLIN PR ESC O TT
12/08/2010 O BJEC TIO N TO
STATUS O F DISPO SITIO N JUDGE & R EC USAL MO TIO N BY JENNIFER FR ANKLIN
PR ESC O TT
12/17/2010 NO TIC E O F FR AUD & LO SS BY JENNIFER FR ANKLIN-PR ESCO TT
12/17/2010 MO TIO N
TO C ANC EL UNAUTHO R IZED HEAR ING IN DISP O SED AC TIO N BY JENNIFER FR ANKLIN
PR ESC O
12/20/2010 O BJEC TIO N TO
(EMER GENC Y) TO PUR PO R TED NO TE IN DISPO SED AC TIO N & UNNO TIC ED &
UNAUTHO R IZED HEAR ING IN FR AUD O N C O UR T C ASE BASED O N DEFENDANT ET AL
12/22/2010 NO TIC E O F FILING O R IGINAL LO AN MO DIFIC ATIO N AGR EEMENT
01/04/2011 O BJEC TIO N TO FR AUD O N THE C O UR T BY JENNIFER FR ANKLIN-PR ESC O TT
01/12/2011 NO TIC E O F DR O PPING PAR TY JO HN DO E/JANE DO E
01/12/2011 MO TIO N FO R SUMMAR Y JUDGMENT
01/12/2011 AFFIDAVIT AS TO AMO UNTS DUE
01/12/2011 AFFIDAVIT AS TO ATTO R NEYS FEES
02/01/2011 C O PY
(FAX) NO TIC E O F O PPO SITIO N & O PPO SITIO N EVIDENC E/FR AUD EVIDENC E &
UNAVAILABILITY IN DISPO SED AC TIO N/NO TIFIC ATIO N O F C O URT & C LER K ET AL
02/07/2011 NO TIC E
O F FR AUDULENT AFFIDAVITS BY JASO N M TAR O KH ESQ & O F UNLAW FUL/
UNAUTHO R IZED AC T BY ALBER TELLI LAW (UNSIGNED)
02/08/2011 NO TIC E O F HEARING
02/22/11 @10:00A.M., DEFENDANT'S MO TIO N TO DISMISS/MO TIO N TO ENJO IN
02/08/2011 AMENDED NO TIC E O F HEAR ING
02/14/11 @3:30P.M. AMENDED MO TIO NFO R SUMMAR Y JUDGMENT AND FO R
ATTO R NEY FEES AGAINST PEDR O LUIS LIC O UR T
02/08/2011 AMENDED
MTO IN FO R SUMMAR Y JUDGMENT AND FO R ATTO R NEY FEES AGAINST P EDR O LUIS
LIC O UR T
02/09/2011 DEMAND
O F FO R ENSIC R EVIEW & AUDIT AND NO TIC E O F FR AUDULENT AND/O R INAC C UR ATE
AC C O UNTING IN DISPO SED AC TIO N

apps.collierclerk.com/…/Case.aspx?UC… 2/3
2/12/2011 Public Inquiry

Find it here... Site Search

Home / Records Search / Court Records / Public Inquiry / Search Results - A LL / C ase - 112009C A0060160001XX

Ne w Se a rch R e turn to C ase List

Case Information Printer Friendly Version

Style: BANKUNITED vs FRANKLIN-PR ESC O TT, JENNIFER


Uniform Case Number: 112009C A0060160001XX Filed: 07/09/2009
Clerks Case Number: 0906016C A
Court Type: C IR C UIT CIVIL Disposition Judge: HAYES, HUGH D
Case Type: MO R TGAGE FO R ECLO SUR ES Disposed: 08/12/2010
Judge: HAYES, HUGH D Reopen Reason:
Case Status: DISPO SED Reopened:
Next Court Date: Reopen Close:
Last Docket Date: 02/09/2011 A ppealed:

Parties Dockets Events Financials

Name Type DOB City, State, Zip


BANKUNITED PLAINTIFF
BANKUNITED FSB PLAINTIFF
PASKEW IC Z, SER ENA KAY ESQ PLAINTIFF'S ATTO R NEY MIAMI, FL 33134
R O SE, ER IN M ESQ PLAINTIFF'S C O -C O UNSEL TAMP A, FL 33623
FR ANKLIN-PR ESC O TT, JENNIFER DEFENDANT
PR ESCO TT, W ALTER DEFENDANT
DO E, JO HN DEFENDANT
DO E, MAR Y DEFENDANT

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Date: Sat, Feb 12, 2011 5:44 pm

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