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Jennifer Franklin-Prescott

“BankUnited” fraud victim

CERTIFIED DELIVERIES
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
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

RE: Unlawful “hearing” in disposed wrongful foreclosure case 09-6016-CA

VIOLATIONS OF “OFFICE POLICIES & PROCEDURES” IN DISPOSED CASE


ISSUE OF UNAUTHORIZED / UNLAWFUL “HEARING”
1.
“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.”
2.
“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.”

See “OFFICE POLICIES AND PROCEDURE, Senior Judge Foreclosure, Collier County
Clerk of Court.

Here accordingly, “BankUnited” was not entitled to sue nor to any hearing and did not
serve any “timely notice” of hearing on Jennifer Franklin-Prescott as also conclusively
evidenced by the Clerk’s 02/18/2011 Docket.

Respectfully,

/s/Jennifer Franklin-Prescott
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

AND OF “BANKUNITED’S” LACK OF STANDING & FRAUD ON THE COURT

1. Jennifer Franklin-Prescott hereby files her NOTICE OF APPEAL. Fraud victim Franklin-

Prescott defends against fraud on the Court and wrongful foreclosure acts by

“BankUnited” and/or foreclosure mill “Albertelli Law”.

02/18/2011 DOCKET EVIDENCE

2. In this disposed action, the Clerk of Court’s 02/18/2011 Docket showed:

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UNAUTHORIZED (AMENDED) “02/22/11, 10:00A.M., HEARING, DEFENDANT’S
MOTION TO DISMISS / MOTION TO ENJOIN”
3. On “02/08/2011”, “BankUnited” amended the ‘NOTICE OF 02/22/11 HEARING,

10:00A.M., DEFENDANT’S MOTION TO DISMISS / MOTION TO ENJOIN”. The

unauthorized amended “02/14/11 HEARING” did not take place.

BANKUNITED DID NOT SERVE NOTICE OF HEARING ON FRANKLIN-PRESCOTT

4. “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.”

See “OFFICE POLICIES AND PROCEDURE, Senior Judge Foreclosure, Collier County

Clerk of Court.

5. Here, “BankUnited” was not entitled to any hearing and did not serve any “timely notice” of

hearing on Jennifer Franklin-Prescott as also conclusively evidenced by the attached

02/18/2011 Docket.

ISSUE OF UNAUTHORIZED SCHEDULING OF UNLAWFUL “HEARING”

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“Only hearings for Summary and Default Judgments may be scheduled on the
Tuesday, Wednesday and Thursday dockets before Judge Daniel Monaco. These
timeslots will be in 5 minute increments. (DO NOT schedule any other kind of
motions on this docket.) All motions other than MSJ and DJ will be cancelled by
Court Administration. No additional motions will be heard with the
Summary/Default Judgments before Judge Monaco.” Id.

“BANKUNITED’S” LACK OF STANDING & FRAUD ON THE COURT

6. Pursuant to the conclusive evidence on file in this disposed action, “BankUnited” lacked any

standing, identification as note holder and/or owner, and entitlement to the pretended

“hearing” on “02/22/2011”. As a matter of law, “BankUnited” had no right to sue Franklin-

Prescott who does not owe money to “BankUnited”.

LACK OF AUTHORITY AND/OR JURISDICTION

7. In the prima facie absence of any standing and required conditions precedent, the Court has

no authority under the Rules. “BankUnited’s” so-called evidence on file was inadmissible,

incompetent, and/or hearsay.

RECORD DISPOSITION IN FAVOR OF PRESCOTT FOR LACK OF STANDING

8. Case # 09-6016-CA was disposed on 08/12/2010 in favor of Jennifer Franklin-Prescott. This

Court disposed of COUNTS I, II, and III. “COUNT I (reestablishment of lost instrument)”

was facially frivolous, because the “lost instrument/note” identified bankrupt and defunct

“BankUnited, FSB” [rather than “BankUnited”] as a “lender”.

9. In its facially frivolous and insufficient “complaint for mortgage foreclosure”, “plaintiff”

“BankUnited” wrongfully sued Jennifer Franklin-Prescott in the record absence of any

instrument and/or note identifying “BankUnited”.

BANKRUPT & SEIZED “BANKUNITED, FSB” WAS NOT ANY “PLAINTIFF”

10. “BankUnited, FSB” was not any “plaintiff” in this disposed action.

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11. The electronic docket in this disposed action had erroneously listed “BankUnited, FSB” as a

“plaintiff” in this disposed action.

12. In this disposed action, “Plaintiff” “BankUnited” had deceptively alleged “that all conditions

precedent to the institution of this action have occurred…” (see complaint, ¶ 2, p. 2 of 8,

“General Allegations”).

13. The “subject mortgage referenced” in the wrongful complaint identified “BankUnited, FSB”

rather than the “plaintiff”, i.e., “BankUnited”.

14. The “logo” of bankrupt and lawfully seized “BankUnited, FSB” included a palm tree and

“BANKUNITED”.

15. “Plaintiff BankUnited” had falsely alleged that “The plaintiff [is] named in the attached

complaint [“BankUnited”] is the creditor to whom the debt is owed … The undersigned

attorney represents the interest of the plaintiff.” See “Notice Required by the Debt Collection

Practices Act …” attached to disposed complaint.

16. “Plaintiff BankUnited” was not any “creditor” in the disposed wrongful action.

17. Jennifer Franklin-Prescott did not owe any debt to “plaintiff BankUnited” pursuant to the

evidence on file in this disposed wrongful action.

18. Undersigned “Camner Lipsitz, PA”, and/or founder of bankrupt and defunct “BankUnited,

FSB”, Alfred Camner, Esq., “represented the interest of the plaintiff [BankUnited]”.

19. “BankUnited” had fraudulently alleged in the Complaint (¶ 16, Count II) that “plaintiff”

[“BankUnited”] owns and holds the note and mortgage.”

20. The purported note and/or mortgage within the four corners of the disposed complaint did

not identify “BankUnited” as a “lender”.

21. The purported note/mortgage identified “BankUnited, FSB” as a “lender”.

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22. No admissible evidence of any obligation to pay money to “BankUnited” existed on the

record of this disposed wrongful action, and Jennifer Franklin-Prescott was not obligated to

make any payment to “BankUnited”.

23. “Plaintiff BankUnited’s” purported “01/12/2011 Affidavits as to amounts due and attorneys

fees” were fraudulent and not founded on any note and/or mortgage identifying

“BankUnited” as a “lender”.

24. An affidavit that is not executed in accordance with the requirements of Ch. 92, Florida

Statutes, is not competent evidence in a civil case.

25. The alleged promissory note was never properly executed.

26. “BankUnited” has had no right to enforce the falsely pretended mortgage/note.

27. “BankUnited” never satisfied the required conditions precedent.

28. “BankUnited” had no standing.

29. “BankUnited” failed to state any cause of action.

30. “BankUnited” could not have possibly been entitled to any summary disposition and/or

hearing in this disposed action.

31. “Pedro Luis Licourt” is not any known party to the disposed action, Case # 09-6016-CA

32. The purported “Amended Motion for Summary Judgment and for Attorney Fees against

Pedro Luis Licourt” was erroneous, irrational, and irrelevant to said disposed action.

33. Said action was disposed, because here no note and/or mortgage had been “transferred”” to

“BankUnited”.

34. The record and/or docket of this disposed action conclusively evidenced the “genuine issues

of material fact”, which prohibited any summary disposition after the 08/12/2011

disposition.

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35. The “02/08/2011 “Amended Mtoin for Summary Judgment and for Attorney Fees against

Pedro Luis Lizourt” was erroneous, irrational, and irrelevant to said disposed action.

36. There was no service of notice of 02/14/2011 hearing upon Jennifer Franklin-Prescott nor

any “02/14/2011 hearing”.

37. There was no service of notice of 02/22/2011 hearing upon Franklin-Prescott, and the

“amended hearing on 02/14/2010” did not take place.

38. In this disposed action, the purported “Defendant’s motion to dismiss/motion to enjoin” was

moot and irrational.

39. Jennifer Franklin-Prescott was never properly served either by personal service of process or

by any other service of process in strict compliance with Chapters 48 and 49, Florida

Statutes.

40. “BankUnited” failed to conduct a diligent search in strict compliance with the Florida

statutes governing service of process.

41. The record established that the falsely alleged service by publication was void.

42. Florida’s Statutes governing service of process are to be strictly construed to assure that

defendants have the opportunity to protect their rights.

43. Any judgment against a defendant based upon improper service by publication would have

lacked authority of law.

44. Estoppel prevented identical parties from re-litigating prima facie frivolous issues after the

08/12/2010 disposition “under the disguise” of an unlawful and controverted summary

disposition motion.

NOTICE OF OBJECTION TO ANY HEARING & MAGISTRATE IN DISPOSED CASE


AND OF BINDING PRECEDENT IN SUPPORT OF 08/12/2010 DISPOSITION

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FILED NOTICE OF FRANKLIN-PRESCOTT’S OBJECTION & NON-CONSENT
45. Jennifer Franklin-Prescott again 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 FOR LACK OF STANDING & FAILURE TO STATE CAUSE


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

ERRONEOUS “NOTICE” IN DISPOSED ACTION

47. On 02/18/2011, the Docket showed a “notice of hearing” which was “amended”. Here, the

notice did 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


48. Here, the erroneously alleged “amended mtoin for summary judgment …” does not pertain to

this disposed action. Any hearing and/or any motion for summary disposition would be

improper, unauthorized, and/or unlawful.

NO FEBRUARY HEARING APPEARED ON THE DOCKET


49. Here, the 02/18/2011 Docket did not show any hearing and/or hearing date:

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NO CONSENT & OBJECTION TO ANY MAGISTRATE (HEARING)
50. Previously and repeatedly, Franklin-Prescott had objected to any magistrate hearing.
Because of the record lack of any consent, a previous hearing had been cancelled in this
disposed action.

51. The record lack of consent had been erroneously entered as “non-contest”:

VAGUE & AMBIGUOUS SHAM “NOTICE” IN DISPOSED ACTION


52. In this disposed action, the notice was vague, ambiguous, and unintelligent. A pleading is
considered a sham when it is inherently false and based on plain 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 (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

53. Here, no genuine properly executed note identifying “BankUnited” had existed. Copies of a

null and void note/mortgage and/or hearsay were not admissible under the Code of Evidence.

Here, there were no witnesses and no notary had acknowledged any authentic note/mortgage.

NON-BINDING “MODIFICATION AGREEMENT”

54. BankUnited, FSB, and/or BankUnited knew and/or concealed that


“8. The Modification will be legally binding upon the parties, only when it is signed
by Note Holder and each Borrower.”
Here, Walter Prescott did not sign the purported “Loan Modification Agreement”. See
12/21/2010 “Notice of Filing of Original Loan Modification Agreement” in disposed

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(08/12/2010) action. Because here the alleged 09/05/2007 “Modification Agreement” was
not signed by each Borrower and/or Walter Prescott, it was not legally binding.
FAILURE TO PROVE TERMS
55. 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 “BankUnited” failed to prove any terms.
RECORD ABSENCE OF EXECUTION
56. Here, the alleged February 2006 note, mortgage, and/or security instrument did not identify
“BankUnited” and could not have possibly encumbered Franklin-Prescott’s real property,
because they were not properly executed.
NO PROOF ON FILE IN DISPOSED ACTION
57. 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”.
58. Here in particular, there were, e.g., no notarial acknowledgment and no signature by
purported “borrower” Walter Prescott.
59. The “complaint” and above “Notice(s) of Filing” established the purported note as null and
void. Furthermore, the non-genuine copies (prima facie hearsay) in the complaint and
“Notices of Filing” fatally conflicted.
“PARTIES” TO ALLEGED NOTE WERE CONFLICTING AND AMBIGUOUS
60. In this disposed action, the purported “plaintiff” did not assert any valid note and mortgage
assignment status in the complaint. “BankUnited” was never identified. A security could not
possibly follow a non-existent note.
61. Here, there was no assignee of any note. Here, no promissory note and no note assignment
were recorded. See Collier County Public Records. However, assignments must be recorded
to be valid against creditors and subsequent purchasers. § 701.02, Fla. Stat. (2010). See also,
Glynn v. First Union Nat’l. Bank, 912 So. 2d 357, 358 (Fla. 4th DCA 2005).
62. In this disposed action, the named parties plaintiffs, and/or borrowers were conflicting and
ambiguous. See Docket:

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STYLE OF DISPOSED CASE DID NOT IDENTIFY BANKUNITED, FSB AS PLAINTIFF

63. Here, the style and/or title of the disposed case did not identify “BankUnited, FSB” as any
“plaintiff”. Here purportedly, the “chain of title” included bankrupt “BankUnited, FSB”,
FDIC [lawful seizure of bankrupt bank], and “BankUnited”.
NO TRANSFER OF ALLEGED INSTRUMENT
64. An instrument is transferred when it is delivered by a person other than its issuer for the
purpose of giving to the person receiving delivery the right to enforce the instrument. See
UCC § 3-203(a). If a transferor purports to transfer less than the entire instrument,
negotiation of the instrument does not occur. The transferee obtains no rights under this
Article and has only the rights of a partial assignee. See UCC 3-203(d). Here, the destroyed
and/or lost instrument could not have possibly been delivered and/or transferred, and the
case was disposed on 08/12/2010.
08/12/2010 DISPOSITION & UNVERIFIED 07/09/09 COMPLAINT OF LOST NOTE
65. In this disposed action, BankUnited had filed an unverified mortgage foreclosure complaint
naming Jennifer Franklin-Prescott as a defendant. Said 07/09/2009 complaint included
COUNT I for reestablishment of a lost note, COUNT II (on promissory note), and COUNT
III (on mortgage foreclosure).
UNKNOWN LOSS / DESTRUCTION OF PURPORTED PROMISSORY NOTE

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66. 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”
67. BankUnited had attached a copy of the mortgage it sought to foreclose to the complaint;
however, said document identified lawfully seized “BankUnited, FSB” as the "lender".
BankUnited had also attached an "Adjustable Rate Rider" to the complaint, which however
also identified bankrupt “BankUnited, FSB” as the "lender."
RECORD PROOF OF LACK OF STANDING
68. 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
69. This action was disposed, because BankUnited had failed to state any cause action.
ATTACHMENTS PROVED BANKUNITED’S LACK OF STANDING & CAUSE
70. On 08/12/2010, the action was disposed, because Franklin-Prescott had proven that none of
the attachments to the facially frivolous and insufficient complaint showed 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
71. In this disposed action, BankUnited had falsely pretended:
“16. Plaintiff owns and holds the note and mortgage.” See COUNT II.
While here BankUnited had fraudulently alleged in its unverified complaint that it was the
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
72. When exhibits are attached to a complaint, the contents of the exhibits control over the
allegations of the complaint. See, e.g., Hunt Ridge at Tall Pines, Inc. v. Hall, 766 So. 2d 399,

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401 (Fla. 2d DCA 2000) ("Where complaint allegations are contradicted by exhibits
attached to the complaint, the plain meaning of the exhibits control[s] and may be the basis
for a motion to dismiss."); see Blue Supply Corp. v. Novos Electro Mech., Inc., 990 So. 2d
1157, 1159 (Fla. 3d DCA 2008); Harry Pepper & Assocs., Inc. v. Lasseter, 247 So. 2d 736,
736-37 (Fla. 3d DCA 1971) (holding that when there is an inconsistency between the
allegations of material fact in a complaint and attachments to the complaint, the differing
allegations "have the effect of neutralizing each allegation as against the other, thus
rendering the pleading objectionable").
08/12/2010 DISPOSITION FOR LACK OF STANDING & FAILURE TO STATE
CAUSE
73. 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
74. Moreover, while BankUnited filed the purportedly lost “original note” after the 08/12/2010
disposition, the non-authentic and non-executed note did not identify “BankUnited” as the
lender 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.
BANKUINTED WAS NO “HOLDER” & HAD NO RIGHTS TO ENFORCE NOTE
75. A “holder” is defined as the person in possession if the instrument is payable to bearer or, in
the case of an instrument payable to an identified person, if the identified person is in
possession. “Mere ownership or possession of a note is insufficient to qualify an individual
as a ‘holder’.” See also Adams v. Madison Realty & Dev. Inc., 853 F.2d 163, 166 (3d Cir.
1988). Attainment of the status of “holder” depends on the negotiation of the instrument to
the transferee. The two elements required for negotiation, both of which were missing here,

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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
76. The Second District confronted a similar situation in BAC Funding Consortium, Inc.
ISAOA/ATIMA v. Jean-Jacques, 28 So. 3d 936 (Fla. 2d DCA 2010), when the trial court had
granted the alleged assignee U.S. Bank's motion for summary judgment. That court reversed
because, inter alia, "[t]he incomplete, unsigned, and unauthenticated assignment attached as
an exhibit to U.S. Bank's response to BAC's motion to dismiss did not constitute admissible
evidence establishing U.S. Bank'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
77. 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”
78. Here, the improper and unauthorized lis pendens was automatically dissolved upon the
disposition of foreclosure. See Rule 1.420(f), Fla. R. Civ. P. (2010). The validity of a notice
of lis pendens is one year from filing. § 48.23(2), Fla. Stat. (2010).
79. In this disposed action, the purported “plaintiff” sought to re-establish the 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

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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
80. Here however, “plaintiff(s)”, BankUnited and BankUnited, FSB, fraudulently asserted:
“that all conditions to the institutions of this action have occurred, been performed or
excused …”
81. Prior to the 08/12/2010 disposition, plaintiff had failed to re-establish and could not have
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

PREVIOUS NOTICE OF UNAVAILABILITY IN DISPOSED ACTION

82. Prescott who is in the Pacific had given her notice of unavailability. In this disposed action,

Prescott could not possibly be expected to appear under said entirely unreasonable

circumstances on such unintelligent, irrelevant, unauthorized, and short notice.

UNAUTHORIZED ATTORNEYS

83. “Rose, Erin M.” was the only attorney authorized in this disposed action.

Here unlawfully, various unknown “attorneys” appeared without any authority and falsely
pretended a “hearing”.
RECORD FRAUD ON THE COURT

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

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In this disposed action, any hearing and/or motion for summary disposition were unauthorized
and improper.
“BANKUNITED” HAD NO VALID SECURITY INTEREST
85. In Florida, a security interest in a mortgage and/or the assignment of a mortgage must be
recorded in order to perfect the security interest in the mortgage. Here, no valid BankUnited
security interest existed.
DEMAND OF LIS PENDENS BOND
86. Florida Statutes, section 48.23, governs the use of a lis pendens, and treats a lis pendens as
one of two types. Here, the purported invalid lis pendens was not founded on a duly recorded
instrument. Here, the purported promissory note was destroyed, lost, and/or transferred.
See Complaint. Furthermore here, there was the lawful seizure of bankrupt BankUnited
and/or an alleged transfer/sale. Here, the missing note/mortgage could not have possibly
been 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.
87. Here, Prescott showed that the bond is necessary to protect her from irreparable harm after
the disposition. Here, the lis pendens was not based on a recorded genuine instrument. See
Feinstein v. Dolene, Inc., 455 So.2d 1126, 1128 (Fla. 4th DCA 1984).
88. Here, the note was missing and the lis pendens was unjustified. See Florida Communities
Hutchinson Island v. Arabia, 452 So.2d 1131, 1132 (Fla. 4th DCA 1984). Here, the null and
void lis pendens placed a cloud on the title that did not exist. See Andre Pirio Assocs. v.
Parkmount Properties, Inc., N.V., 453 So.2d 1184, 1186 (Fla. 2d DCA 1984).
89. In this disposed action, the bond is simply mandatory. See Porter Homes, Inc. v. Soda, 540
So.2d 195, 196 (Fla. 2d DCA 1989)(where a lis pendens is not founded upon a lawsuit
involving a recorded instrument, section 48.23(3) "requires the posting of a bond."). See

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Machado v. Foreign Trade, Inc., 537 So.2d 607, 607 n.1 (Fla. 3d DCA 1988); Munilla v.
Espinosa, 533 So.2d 895 (Fla. 3d DCA 1988).
CONTESTED SIGNATURE ON PURPORTED NOTE
90. 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
91. Here, all of Franklin-Prescott’s pleadings were signed (“/s/ Jennifer Franklin-Prescott”).
NOTICE OF INTERLOCUTORY APPEAL FROM HEARING IN DISPOSED
ACTION
92. 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
93. 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).
94. 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.

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95. 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
96. Prescott had asserted and proven (another affirmative defense) that the plaintiff(s) had failed
to follow Florida law of negotiable instruments and including, e.g., obtaining necessary
signatures, acknowledgments, recordations, assignments, and/or endorsements on the
purported non-authentic promissory note and mortgage deceptively submitted to this Court
as alleged debt evidence. As such, the plaintiff came to this court with unclean hands.
WHEREFORE Jennifer Franklin-Prescott respectfully demands
1. Proper processing of this NOTICE OF APPEAL and/or INTERLOCUTORY APPEAL;
2. An Order taking judicial notice of said binding precedent (BAC Funding) in support of the
record 08/12/2010 disposition;
3. 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;
4. An Order declaring the purported “plaintiff” in this disposed action without any authority to
sue, foreclose, and/or demand any payment from Jennifer Franklin Prescott;
5. An Order declaring any hearing unauthorized in this disposed action;
6. An Order declaring the prima facie sham “motion” and “affidavits” unlawful in this
previously disputed and disposed action;
7. An Order declaring the purported note and/or mortgage unenforceable;
8. An Order taking judicial notice of the prima facie unenforceability of the unrecorded, un-
assignable, and unpaid mortgage (unpaid mortgage taxes);
9. An Order declaring the purported “plaintiff” to be in violation of Fed.R.Civ.P. 1.510 in this
disposed and previously controverted action;

17
10. 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;
11. An Order declaring said affidavits “hearsay” and lacking any legal and/or factual basis in
the absence of any authentic “note” and/or mortgage;
12. 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;
13. 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 02/18/2011 Docket, et al.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this NOTICE OF APPEAL has been delivered to
“BankUnited”, Albertelli Law, P.O. Box 23028, Tampa, FL 33623, USA, the Clerk of Court,
Hon. Hugh D. Hayes, and Hon. Daniel R. Monaco, Courthouse, Naples, FL 34112, USA, on
February 18, 2011, Pacific Time.
Respectfully,

/s/Jennifer Franklin Prescott, fraud victim


CC: Hon. Hugh D. Hayes (Disposition Judge),
Albertelli Law, Hon. Daniel R. Monaco, Karen,
United States District Court, Clerk of Court,
The Florida Bar, New York Times, et al.
hhayes@ca.cjis20.org, Dwight.Brock@collierclerk.com, dmonaco@ca.cjis20.org,
acamner@clplaw.net, eecamner@clplaw.net,
darlene.muszynski@collierclerk.com, Collierclerk@collierclerk.com,
Sue.Barbiretti@collierclerk.com, Jill.Lennon@collierclerk.com …

18
2/18/2011 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: 02/09/2011 A ppealed:

Parties Dockets Events Financials

6 of 6 page s. Entrie s pe r page : 20

Date Text All Entries


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
apps.collierclerk.com/…/Case.aspx?UC… 1/2
2/18/2011 Public Inquiry
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

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2/18/2011 MyFax Notification - Fax Sent Successf…
From: MyFax Free <myfaxfree@myfax.com>
To: Jennifer Franklin-Prescott <naplesnano@aol.com>
Subject: MyFax Notification - Fax Sent Successfully
Date: Fri, Feb 18, 2011 11:28 pm

Dear Jennifer Franklin-Prescott:

Your fax to Dwight E. Brock at +1 (239) 252-8020 has been successfully sent:
Your fax was delivered at 2/18/2011 10:27:54 AM, and contained 24 page(s).

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2/18/2011 MyFax Notification - Fax Sent Successf…
From: MyFax Free <myfaxfree@myfax.com>
To: Jennifer Franklin-Prescott <bhtjw@aol.com>
Subject: MyFax Notification - Fax Sent Successfully
Date: Fri, Feb 18, 2011 3:42 pm

Dear Jennifer Franklin-Prescott:

Your fax to HON. JUDGE DANIEL R. MONACO at +1 (239) 252-8870 has been successfully
sent:
Your fax was delivered at 2/18/2011 9:41:46 PM, and contained 25 page(s).

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To: Jennifer Franklin-Prescott <bhtjw@aol.com>
Subject: MyFax Notification - Fax Sent Successfully
Date: Fri, Feb 18, 2011 1:58 am

Dear Jennifer Franklin-Prescott:

Your fax to HON. JUDGE DANIEL R. MONACO at +1 (239) 252-8870 has been successfully
sent:
Your fax was delivered at 2/18/2011 7:44:18 AM, and contained 11 page(s).

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1/12/2011 Foreclosure Judges Berate Lawyers - …

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Judges Berate Bank Lawyers in Foreclosures Log in to see w hat your friends Log In With Facebook
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By JOHN SCHWARTZ
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Published: January 10, 2011

With judges looking ever more critically at home foreclosures, they RECOMMEND What’s Popular Now
are reaching beyond the bankers to heap some of their most TWITTER Obam a’s Prom inent
scorching criticism on the lawyers. Rem arks in Chinese Artist’s
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Enlarge This Image In numerous opinions, judges have PRINT
accused lawyers of processing shoddy SINGLE PAGE
or even fabricated paperwork in
REPRINTS
foreclosure actions when representing
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the banks.

Judge Arthur M. Schack of New Y ork


State Supreme Court in Brooklyn has
taken aim at an upstate lawyer, Steven
J. Baum, referring to one filing as “incredible, outrageous,
Ozier Muhammad/The New Y ork Times, lef t; ludicrous and disingenuous.”
Julie Glassberg/The New Y ork Times
Judge Arthur Schack, left, of New
York State Supreme Court, called one
But New Y ork judges are also trying to take the lead in
filing “outrageous.” Jonathan Lippman, fixing the mortgage mess by leaning on the lawyers. In
the state’s chief judge, says law yers
must ask clients if their paperw ork is November, a judge ordered Mr. Baum’s firm to pay nearly
sound. $20,000 in fines and costs related to papers that he said
Breaking News Alerts by E-Mail
contained numerous “falsities.” The judge, Scott Fairgrieve
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Schw artz
whole.”
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More broadly, the courts in New Y ork State, along with
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Florida, have begun requiring that lawyers in foreclosure
Wells Fargo & Co cases vouch for the accuracy of the documents they 1 . Is Law School a Losing Gam e?
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The requirement, which is being considered by courts in 3 . Econom ic Scene: The Real Problem With China
other states, could open lawyers to disciplinary actions that could harm or even end 4 . Econom ix: Why So Many Rich People Don’t Feel
Very Rich
careers.
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Stephen Gillers, an expert in legal ethics at New Y ork University, agreed with Judge 6. Weather Monitoring Com pany Turns to
Greenhouse Gases
Fairgrieve that the involvement of lawyers in questionable transactions could damage the
7 . Judges Berate Bank Lawy ers in Foreclosures
overall reputation of the legal profession, “which does not fare well in public opinion”
8. Itineraries: Sneeze-Free Zone
throughout history. 9. Film Studio Born of Com ic Books Grabs Holly wood’s
Attention
“When the consequence of a lawyer plying his trade is the loss of someone’s home, and it 1 0. Flex Tim e Flourishes in Accounting Industry
turns out there are documents being given to the courts that have no basis in reality, the
Go to Complete List »
profession gets a very big black eye,” Professor Gillers said.

The issue of vouching for documents will undoubtedly meet resistance by lawyers
elsewhere as it has in New Y ork.
nytimes.com/2011/01/…/11lawyers.ht… 1/3
1/12/2011 Foreclosure Judges Berate Lawyers - …

Anne Reynolds Copps, the chairwoman of the real property law section of the New Y ork
State bar, said, “We had a lot of concerns, because it seemed to paint attorneys as being
the problem.” Lawyers feared they would be responsible for a bank’s mistakes. “They are
relying on a client, or the client’s employees, to provide the information on which they are
basing the documents,” she said.

The role of lawyers is under scrutiny in the 23 states where foreclosures must be reviewed
by a court. The situation has become especially heated for high-volume firms whose
practices mirror the so-called robo-signing of some financial institutions; in these cases, The New Yorker confidential
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In the most publicized example, David J. Stern, a lawyer whose Florida firm has been part
of an estimated 20 percent of the foreclosure actions in the state, has been accused of filing
sloppy and even fraudulent mortgage paperwork. Major institutions have dropped the
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firm, which has been the subject of several lawsuits, and 1,200 of the 1,400 people once at
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The Florida attorney general’s office is conducting a civil investigation of Mr. Stern’s firm
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“There’s been no determination” in a court that Mr. Stern or his employees “did wrong
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devastating.
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“There are groups in society that everybody likes to hate,” Mr. Tew added. “Now Ti m esCast, a dai l y n ews v i deo.
foreclosure lawyers are on the list.”

Such concerns have, in recent months, brought a sharp focus on activities in New Y ork
State, and in particular on the practice of Mr. Baum, a lawyer in Amherst, outside Buffalo.
Judges have cited his firm for what they call slipshod work that, in some cases, was
followed by the dismissal of foreclosure actions.

One case involved Sunny D. Eng, a former manager of computer systems on Wall Street.
He and his wife, who has cancer, stopped paying the mortgage on their Holtsville, N.Y .,
home after Mr. Eng’s Internet services business foundered. The mortgage was originally
held by the HTFC Corporation, but the foreclosure notice came from Wells Fargo, a bank
that the Engs had no relationship with. They hired an experienced foreclosure defense
lawyer on Long Island, Craig Robins. The court ultimately ruled in favor of Mr. Eng.

1 2 NEXT PAGE »

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Published: January 10, 2011
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“Y ou want to call it God, you can call it God,” Mr. Eng said. “Y ou Obam a’s Prom inent
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Through a spokesman, Mr. Baum
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Cases across the nation like Mr. Eng’s have led New Y ork’s judicial system to take a hard Thursday.
look at the 80,000 pending foreclosures in the state and demand that the paperwork be
sound, said the state’s chief judge, Jonathan Lippman. “Knowing what we know, our only See Sample | Privacy Policy

option — at least from my perspective — is to turn to the lawyers who are officers of the
MOST POPULAR - BUSINESS DAY
court and say, ’Y ou’d better go to your clients and find out if these cases are real,’ ” he said.
E-MAILED BLOGGED VIEWED

The court devised a two-page affirmation to be signed by lawyers in foreclosure actions 1 . Is Law School a Losing Gam e?
saying they had reviewed the documents and had “confirmed the factual accuracy” of any 2 . Rising Chinese Inflation to Show Up in U.S. Im ports
allegations with the clients. 3 . Econom ic Scene: The Real Problem With China
4 . Econom ix: Why So Many Rich People Don’t Feel
Ann Pfau, deputy chief administrative judge for New Y ork State, who has worked directly Very Rich
with the state bar to carry out the plan, said, “We need to know that this is a court process 5. Auto Show Outsiders Seek Rebirth
that has some integrity.” 6. Weather Monitoring Com pany Turns to
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Judge Pfau said, “If you can’t get good information, you shouldn’t be filing the cases in the 7 . Judges Berate Bank Lawy ers in Foreclosures
first place.” 8. Film Studio Born of Com ic Books Grabs Holly wood’s
Attention
To address some lawyer concerns, the judiciary issued a modified version of the 9. Itineraries: Sneeze-Free Zone

affirmation in November but said that the alterations were minor. In the end, the lawyers 1 0. A Warning as Markets Cool in Asia

are vouching for their filing, Judge Pfau said. “They are absolutely still on the hook.” Go to Complete List »

While lawyers are being implicated as part of the problem, they should also be part of the
solution, said Stephen P. Y ounger, the president of the New Y ork State Bar Association,

nytimes.com/2011/01/…/11lawyers.ht… 1/2
1/12/2011 Foreclosure Judges Berate Lawyers - …
which has not taken an overall position on the foreclosure matter. Foreclosure defense
lawyers, he noted, have led court proceedings to throw out flawed cases.

“The real problem is that there are thousands and thousands of people who are
unrepresented by lawyers,” Mr. Y ounger said.

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