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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.
_________________________________________________________________________/

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


EMERGENCY DEMAND TO ENJOIN BANKUNITED’S FRAUD IN DISPOSED CASE

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

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

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

Dear Mr. Middlebrook:

02/21/2011 SKYPE CALLS TO COURT ADMINISTRATION


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

“OFFICE POLICIES AND PROCEDURES


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

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


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

MOOT “MOTIONS TO DISMISS AND ENJOIN” IN DISPOSED ACTION


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

ERRORS, ERRORS & FRAUD, FRAUD, FRAUD


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

“ALBERTELLI LAW” FORECLOSURE MILL & ROBO SIGNING


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

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

RECORD UNAVAILABILITY IN DISPOSED ACTION


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

PREVIOUS UNAUTHORIZED HEARINGS


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

MANDATORY CANCELLATION FOR LACK OF SERVICE IN DISPOSED ACTION


14. Here, “BankUnited” did not serve any “timely notice” of hearing on Jennifer Franklin-
Prescott as also conclusively evidenced by the Clerk’s 02/18/2011 Docket. Here, said bank
was not entitled to sue nor to any hearing.
“A party/attorney scheduling a hearing must concurrently notice the matter in
conformance with the Florida Rules of Civil Procedure and ensure timely notice is
served on all pro-se parties and counsel of record in advance of the hearing. The
original notice must be timely filed with the Clerk of Court.” Id.
UNAUTHORIZED ATTORNEY “ANDREW LEE FIVECOAT”, ESQ.
15. “Andrew Lee Fivecoat” had no authority to schedule any hearing in said disposed wrongful
foreclosure action. Here, Fivecoat knew and/or fraudulently concealed that “BankUnited”
had no standing and that the exhibits on file conclusively evidenced that “BankUnited” was
not identified as “lender” and was not any note holder and/or owner.

PERJURIOUS EVIDENCE ON FILE


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

ROBO / ROCKET DOCKET


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

OBJECTION TO HEARING BEFORE RETIRED JUDGE AFTER DISPOSITION


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

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


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

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

Respectfully,

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

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

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

• “Collier County Court and Foreclosure Case Hearings”

CC: Florida Attorney General


New York Times
Naples News
Robert D. St. Cyr, Director, Community Outreach
Clerk of the Circuit Court, Collier County, FL; T: (239) 252-6879
The Honorable Daniel R. Monaco
The Hon. Hugh D. Hayes, “Disposition Judge”
Circuit Court Judges, Twentieth Judicial Circuit
Judicial Assistants Karen / Jan
Collier County Government Complex
3301 Tamiami Trail East
Naples, Florida 34112
Phone: 239.774.8118; 239.252.8119;
Fax: 239.252.8870; 239.775.5538; 239.774.9654; 239-252-8020
Email: dmonaco@ca.cjis20.org, jmetcalfe@ca.cjis20.org, hhayes@ca.cjis20.org
Other …
MANDATORY CANCELLATION NOTICE AS FILED ON 02/21/2011
2/22/2011 Judicial Automated Calendaring Syste…
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BONITA

POLL COLLIER’S NEW FORECLOSURE HEARING PROCESS FAVORS BANKS, ATTORNEYS SAY
By LAURA LAYDEN
Published Sunday, June 20, 2010

NAPLES — Foreclosure attorneys who represent homeowners say recent changes in the way hearings
are scheduled in Collier County have given banks the upper hand.

They say they’ve had trouble getting hearings and that five-minute hearings on foreclosure cases appear
to now be reserved for banks’ motions for default and summary judgment.

When a bank gets a summary judgment, it has the right to take a house. At that point, a homeowner is
unlikely to get a second chance.

Mark Middlebrook, a senior deputy court administrator in Collier County, said, “We have not changed
anything regarding the scheduling of these hearings. That’s absolutely not true.”

Foreclosure hearings are scheduled through an automated calendaring system online called JACS. Users
in Collier County are warned to read the foreclosure rules carefully “due to recent changes.”

Middlebrook said the changes haven’t been made yet.

Under the rules for booking hearings, it says “only hearings for summary judgment and default may be
scheduled for the five-minute time slots. In parenthesis, it says: “Do not schedule other hearings in these
time slots.”

Foreclosure attorneys who represent homeowners say these rules only appear to apply in Collier and
they’ve never been enforced until recently.

“Somebody is speaking without understanding how the scheduling occurs,” Middlebrook said.

He said five-minute hearings still are available outside of an online calendaring system and that changes
are planned over the coming months that will significantly increase the amount of hearing time available for
foreclosure cases.

With money from a state grant, Collier County plans to increase hearings from one day a week to three by
August. In January, there will be hearings four days a week, Middlebrook said.

Defense attorneys likely haven’t been getting hearings because there’s such a backlog of cases and time
slots fill up so quickly, not because of any rule changes, Middlebrook said. There are about 9,000
unresolved foreclosure cases in the county and that’s why changes are planned in the future, he said.
…naplesnews.com/…/colliers-new-fore… 1/4
2/22/2011 POLL Collier’s new foreclosure hearing…
“There just wasn’t enough time available to accommodate everybody,” Middlebrook said.

Mike Schneider, a Naples foreclosure attorney who represents homeowners, said the rules have changed
in favor of the banks.

He said he was taken off-guard recently when a five-minute hearing he scheduled through the online
calendar was automatically canceled by the court through an e-mail.

When he tried to schedule a 10-minute hearing _ the next shortest time slot available _ for the same client,
there were none available for months. It’s even harder to book 15-minute or 30-minute hearings, he said,
and he doesn’t need that much time.

“I guarantee many people have lost their house because of this,” Schneider said. “How are we supposed
to argue our case?”

Dwight Brock, Collier County’s clerk of courts, said he wasn’t aware of any new rules and his office had
nothing to do with them.

“We have no control over it,” he said.

Those rules are made by judges or magistrates, Brock said.

Schneider said he was trying to stop a foreclosure that never should have been filed. He struggled to get a
hearing.

His client signed a forbearance agreement, in which the lender agreed to temporarily modify the loan
payments and not foreclose. The lender foreclosed anyway, Schneider said.

“They are coming to his house and basically telling him to get out,” he said. “That’s just one of a million
stories.”

Marc Shapiro, one of the most active foreclosure defense attorneys in Naples, said he used to schedule
his motions for five-minute hearings online, but now he can’t.

He can argue a homeowner’s case during a hearing on a motion for summary judgment, but time is limited.
At that point it might be too late.

“You are taking a little bit of a gamble,” Shapiro said.

Judges often frown on requests for emergency hearings. So some attorneys say they generally don’t ask
for them.

In one of Shapiro’s cases, he was trying to get a court order to force a bank to produce documents it had
refused to share and he couldn’t get a hearing a few weeks ago. Meanwhile, the bank was proceeding to
foreclose.
…naplesnews.com/…/colliers-new-fore… 2/4
2/22/2011 POLL Collier’s new foreclosure hearing…
Shapiro also saw some of his five-minute hearings suddenly canceled recently. It hadn’t happened like that
before, he said.

For about a month, few hearings were available to defense attorneys on foreclosure cases.

“As of last week they started freeing up more time for us,” said Donald Schold, one of Shapiro’s legal
assistants. “The bank is still the only ones to get the five-minute hearings, which for some reason are
being set before our hearing dates.”

In Collier, foreclosure cases that are contested by homeowners are mostly handled by magistrates. To
have their arguments heard by a magistrate, foreclosure attorneys who represent homeowners must get
an order of referral from a judge.

Banks aren’t required to do the same for hearings on their motions for summary judgment, giving them
another time advantage, attorneys who represent homeowners say.

Where foreclosures might have taken a year or two in the past, now they can happen in less than six
months.

Conrad Willkomm, another foreclosure defense attorney in Naples, said he hasn’t faced any big problems
in scheduling his hearings.

“A lot of the time, I’m letting the banks schedule the hearings, and we’re working around them,” he said.

Even if a bank gets a hearing on a motion for summary judgment, a judge can continue the hearing if
there are motions pending from the defense that haven’t been heard.

“It’s not like you lose the case out from under you,” Willkomm said. “Usually we are in front of the
magistrates for a lot of these cases and the magistrates have been pretty cooperative.”

__ Connect with Laura Layden at www.naplesnews.com/staff/laura_layden.

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2/22/2011 Naples Attorneys complain – Collier Co…
Wednesday, June 23rd, 2010 | Posted by Amitesh Kumar

Naples Attorneys complain – Collier County


new foreclosure hearing process only favors
banks
The Attorneys representing home owners in foreclosure cases at Naples are the worried lot – they say
recent changes in the way hearings are scheduled in Collier County give banks undue advantage. They
have had trouble getting hearings and the five minute hearings by magistrates on foreclosure cases,
seem to be reserved now for banks’ motions for default and summary judgment.

What happens when a bank gets a summary judgment? It gets the right to forfeit a house, when the
distressed homeowner is not likely to get a second chance.

The officials of the Court deny these allegations. According to Mark Middlebrook, a senior deputy
court administrator in Collier County, this is absolutely not true and they have not changed anything
regarding the scheduling of these hearings.

In the normal course, Foreclosure hearings are scheduled through an automated calendaring system
online, known as JACS. In Collier County, users are warned to read the foreclosure rules carefully
“due to recent changes”. But Middlebrook refutes that the changes have not been made yet.

The practice at Collier County is foreclosure cases that are contested by homeowners are generally
handled by magistrates. Foreclosure attorneys representing homeowners must get an order of referral
from a judge, to have their arguments heard by the concerned magistrate.

Attorneys on behalf of homeowners, handling foreclosure cases say that Banks are not required to do
the same for hearings on their motions for summary judgment, which gives them unfair time advantage.
With the result, where foreclosures might have taken a year or two in the past, the Attorneys allege
that they can happen now in less than six months.

What the rules are saying? The rules for booking foreclosure hearings say “only hearings for summary
judgment and default may be scheduled for the five-minute time slots”. In other words it says “Do not
schedule other hearings in these time slots”.

Naples foreclosure Attorneys, representing troubled homeowners, caught in the legal proceedings of
foreclosures, say that these rules only appear to apply in Collier County and they have never been
enforced until recently.

So the tussle continues and we will see more of it in the near future.

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naplesshortsaleexperts.com/…/naples-… 1/1
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.
_________________________________________________________________________/

CANCELLATION OF HEARING UNDER COURT’S POLICIES & PROCEDURES


IN DISPOSED CASE (NOTICE)

EMERGENCY WRITTEN DEMAND TO CANCEL HEARING IN DISPOSED CASE


AS REQUIRED UNDER THE RULES & PROCEDURES

FROM: 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; 239.252.8119;
Fax: 239.252.8870; 239.775.5538; 239.774.9654; 239-252-8020
Email: dmonaco@ca.cjis20.org, jmetcalfe@ca.cjis20.org, hhayes@ca.cjis20.org

RE:
CANCELLATION of unlawful hearing in disposed wrongful foreclosure case 09-6016-CA
“BANKUNITED” v. FRANKLIN-PRESCOTT, JENNIFER
DISPOSED CASE NO. 09-6016-CA; DISPOSITION JUDGE HAYES, HUGH D.
UNAUTHORIZED “02/22/11 HEARING” [AMENDED TO 02/14/11 & CANCELLED]

08/12/2010 DISPOSITION FOR LACK OF “BANKUNITED’S” STANDING


1. “Disposition Judge” Hayes had disposed of this prima facie frivolous action on 08/12/2010
for record lack of any “BankUnited” standing and interest.
“BANKUNITED” WAS NOT ENTITLED TO ANY HEARING
2. “BankUnited” has had no right to sue and/or schedule any hearing. Here, Jennifer Franklin-
Prescott did not owe any debt to “plaintiff BankUnited” pursuant to the evidence on file in
this disposed wrongful action. The record and evidence never identified “BankUnited”.
AFTER DISPOSITION THE MOTIONS WERE MOOT
3. After the 08/12/2010 DISPOSITION, the “Motion to Dismiss” was MOOT.
“BANKUNITED” KNEW/CONCEALED THAT IT LACKED ANY STANDING
4. “Plaintiff BankUnited” was not any “creditor” in the disposed wrongful action.
5. Here, undersigned “Camner Lipsitz, PA”, and/or founder of bankrupt and defunct
“BankUnited, FSB”, Alfred Camner, Esq., “represented the interest of the plaintiff
[BankUnited]”. See facially frivolous and insufficient Complaint. “BankUnited” had
fraudulently alleged in the Complaint (¶ 16, Count II) that “plaintiff” [“BankUnited”] owns
and holds the note and mortgage.”
6. The purported note and/or mortgage within the four corners of the disposed complaint did
not identify “BankUnited” as a “lender”.
“BANKUNITED” AND/OR “ALBERTELLI LAW” DECEIVED THE COURT
7. Here, “BankUnited” and/or “Albertelli Law” perpetrated fraud on the Court, because after
disposition in the record absence of any “BankUnited” note, “BankUnited” falsely
pretended entitlement to the “hearing” of a MOOT “Motion to Dismiss / Enjoin”.
“… it is the responsibility of the lawyers to keep the judge's office informed. Our
office cannot possibly call all the lawyers on a trial docket to check the status of each
case prior to trial. PLEASE let us know when you have settled or otherwise
disposed of your case. Please cancel your trials and hearings.”
“BANKUNITED’S” SANCTIONABLE CONDUCT AND FRAUD
8. Here, “BankUnited” failed to comply with the Rules …
“PLEASE READ THE "GENERAL RULES AND REQUIREMENTS" AND
ENSURE THAT YOUR ATTORNEY HAS BOTH READ AND
UNDERSTANDS THE "GENERAL RULES AND REQUIREMENTS" AND
THE "STANDARDS OF PROFESSIONAL COURTESY AND CONDUCT."
The Standards of Professional Courtesy and Conduct govern scheduling,
hearings, motion practice, submissions to the Court, etc. and may be found at
www.ca.cjis20.org/pdf/ao_2_20.pdf
FAILURE TO COMPLY WITH THE RULES, REQUIREMENTS, AND
STANDARDS MAY RESULT IN IMPOSITION OF SANCTIONS AND THE
MATTER NOT BEING HEARD”
See Judicial “Office Policies and Procedures”.
ARBITRARY & CAPRICIOUS SCHEDULING OF UNAUTHORIZED HEARING
9. Arbitrary, ambiguous, and/or unlawful acts undermine the authority of this Court. Here,
violations of this Court’s “OFFICE POLICES AND PROCEDURES” in favor of crooked
bank lawyers threatened the integrity of the Court.
COURT ADMINISTRATION MUST CANCEL UNAUTHORIZED 02/22/11 HEARING
VIOLATIONS OF “OFFICE POLICIES & PROCEDURES” IN DISPOSED CASE
10. All motions other than MSJ and DJ will be CANCELLED by Court Administration. In this
disposed action, “Motions to Dismiss / Enjoin” were scheduled without any authority.

2
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For Americans, the foreclosure crisis has wiped out fortunes,
Delta Flight Makes Emergency Landing in Florida
bringing destitution and homelessness. For Florida attorney
After Engine Is Damaged
David J. Stern, it has brought mansions, a Bugatti sports car
and a luxury yacht. Rate These Stories More New s »

Advertisement
A screengrab taken from Google Earth Florida has the third-highest residential foreclosure rate in the
shows the home of David J. Stern in Fort
Lauderdale, Florida. The larger boat to
U.S., and Stern, 50, has made a fortune off the bust. His
the right is his yacht, "Misunderstood". foreclosure-processing business has generated hundreds of
Source: Google Earth/wbipi.com via
Bloomberg
millions of dollars in revenue preparing documents for the cases
that his law firm brings on behalf of lenders seeking to reclaim
homes from borrowers who can’t pay their mortgages.

Now his business is under scrutiny, as banks suspend


foreclosures and evictions amid allegations that some home
seizures were based on fraudulent documents. Attorneys
general in every U.S. state have joined to probe foreclosure
practices generally. Stern’s foreclosure firm and three others are
under investigation by Florida Attorney General Bill McCollum.

“Some of these law firms we’re dealing with, we have reason to


believe, actually forged documents, committed fraud, did all
kinds of things,” McCollum said in an interview Oct. 15. “We
don’t know where this is headed right now.”
Bill McCollum, Attorney General of
Florida. Photographer: Ric
Feld/Bloomberg
Stern’s attorney, Jeffrey Tew, said Stern has used technology
and a well-organized operation to efficiently process
foreclosures. Stern gets a flat fee of about $1,400 a foreclosure, according to Tew, of Tew
Cardenas LLP in Miami.

‘His Acumen’

“David’s wealth is a reflection of his acumen and the tremendous volume of foreclosures,” Tew
said in an interview yesterday. “He had something to do with the acumen part. He had nothing
to do with the amount of foreclosures we have.”

Stern’s firm handles thousands of cases a month. It conducted a review of its files and found 21
had “issues with the affidavits,” Stern said in a Sept. 8 conference call to discuss second-quarter
results for DJSP Enterprises Inc. DJSP provides non-legal foreclosure services, such as title
searches, for his law firm, Law Offices of David J. Stern PA. Both businesses share the same

bloomberg.com/…/florida-attorney-bu… 1/5
“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.”
See “OFFICE POLICIES AND PROCEDURE, Senior Judge Foreclosure, Collier County
Clerk of Court.
MANDATORY CANCELLATION FOR LACK OF SERVICE IN DISPOSED ACTION
“A party/attorney scheduling a hearing must concurrently notice the matter in
conformance with the Florida Rules of Civil Procedure and ensure timely notice is
served on all pro-se parties and counsel of record in advance of the hearing. The
original notice must be timely filed with the Clerk of Court.” Id.
11. 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.
UNAUTHORIZED ATTORNEY “ANDREW LEE FIVECOAT”, ESQ.
12. “Andrew Lee Fivecoat” had no authority to schedule any hearing in said disposed wrongful
foreclosure action. Here, Fivecoat knew and/or fraudulently concealed that “BankUnited”
had no standing and that the exhibits on file conclusively evidenced that “BankUnited” was
not identified as “lender” and was not any note holder and/or owner.
PRIMA FACIE FRIVOLITY IN THE ABSENCE OF ANY “BANKUNITED” NOTE
13. Professor Stephen Gillers, an expert in legal ethics at New York University, believes that the
involvement of lawyers in questionable transactions could damage the overall reputation of
the legal profession, “which does not fare well in public opinion” throughout history:
“When the consequence of a lawyer plying his trade is the loss of someone’s home,
and it turns out there are documents being given to the courts that have no basis in
reality, the profession gets a very big black eye,” Gillers said.
See New York Times, “Judges Berate Bank Lawyers in Foreclosures”.
FIVECOAT CONCEALED PRIMA FACIE NULLITY OF PURPORTED NOTE
14. Here, Fivecoat knew that the complaint in this disposed action had been “incredible,
outrageous, ludicrous and disingenuous”, because no note had been properly executed and
no note and/or instrument “transferred” from bankrupt and lawfully seized “BankUnited,
FSB”, to the “F.D.I.C.”, and/or “BankUnited”. Disgraced founder of defunct “BankUnited,
FSB”, Alfred Camner, Esq., and/or Camner Lipsitz, PA, had filed the facially frivolous
complaint on 07/09/2009.
A. L. FIVECOAT, ESQ., LACKS AUTHORITY
15. Here, A. L. Fivecoat has lacked any authority to appear. Fivecoat knew/concealed that
bankrupt “BankUnited, FSB” is not any party to this disposed action.

3
MANDATORY CANCELLATION OF HEARING

16. This Court had instructed the parties:


“If you CANCEL a hearing, you are required to file a Notice of Cancellation. If you
are canceling your hearing ten (10) working days before the hearing date you can go
to JACS and cancel on-line by following the instructions. If you are canceling less
than ten (10) working days please, immediately cancel the hearing, by FAX'ing you're
a request to (239) 252-8870 attention Karen. Include the reason for canceling, our
case number and style with date and time of hearing and what party you represent.
You do not need to attach the Notice of Cancellation (just send the original to the
Clerk of Courts).”
“REASONS FOF CANCELLATION”
17. In disposed Case No. 09-6016-CA, the “reasons for cancellation” included, e.g.:
a. Cancellation is mandatory under Court’s “Office Policies & Procedures”;
b. “BankUnited’s” lack of standing;
c. Lack of authority to have 02/22/2011 hearing;
d.
e. “Motion to Dismiss” has been MOOT since 08/12/2010 DISPOSITION;
f. Disposition of the wrongful foreclosure action on 08/12/2010;
g. The unauthorized “Amended hearing” did not take place on 02/14/2011;
h. Dissolution of fraudulent “lis pendens”.

FRANKLIN-PRESCOTT COULD NOT POSSIBLY BE EXPECTED TO APPEAR


18. Pursuant to Franklin-Prescott’s “Notice of Unavailability”, she has been in the Pacific. In
this disposed action, and in the absence of any notice of service on Franklin-Prescott, she
could not possibly and reasonably be expected to appear for the “Amended Hearing”. Here,
the “Amended Hearing” never took place on 02/14/2011.
19. Furthermore, if there would have been any lawful and legitimate hearing, Prescott would not
be permitted to appear by telephone from the Pacific in this disposed wrongful action:
“All Hearings before Judge Monaco will be in person.
As of January 2010, Telephonic appearance will NOT be permitted for any foreclosure
hearing before the Senior Judge.” Id.

ESTOPPEL PREVENTS “BANKUNITED” FROM FURTHER ACTS OF FRAUD


20. Estoppel prevents identical parties from re-litigating issues that have previously been
litigated and which resulted in a final disposition of a court with competent jurisdiction. See
Mobil Oil Corporation v. Shevin, 354 So.2d 372 (Fla. 1977); Gordon v. Gordon, 59 So.2d 40

4
(Fla. 1952), cert. denied, 344 U.S. 878, 73 S. Ct. 165, 97 L.Ed. 680 (1952). Here,
“BankUnited” never had any standing in the first place and cannot frivolously “re-litigate”
its prima facie lack of standing.
21. In dealing with the identities of the parties, estoppel requires that the “real parties in interest”
be identical. See Seaboard Coast Line Railroad Company v. Cox, 338 So.2d 190 (Fla. 1976).
The well-established rule in Florida has been and continues to be that estoppel may be
asserted when the identical issue has been litigated between the same parties or their privies.
See Trucking Employees of North Jersey Welfare Fund, Inc. v. Romano, 450 So.2d 843 - 45
(Fla. 1984). Here the file and evidence in this disposed action had conclusively evidenced
that “BankUnited” was not any “real party in interest”
BINDING PRECEDENT: BAC FUNDING CONSORTIUM SUPPORTED DISPOSITION
22. 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
23. 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”
24. 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).
25. In this disposed action, the purported “plaintiff” sought to re-establish the missing note in
“COUNT I (Reestablishment of Lost Instruments)” of the complaint (see p. 2 of 8). Franklin-
Prescott had filed her answer(s) and motions to dismiss and proven plaintiff’s lack of
standing, which was one of the ultimate affirmative defenses. Here, the record reflected
that plaintiff could not possibly re-establish the note and that no authentic note could possibly
be proven under the Evidence Code.
FRAUD ON THE COURT & RECORD EVDENCE THEREOF
26. Here however, alleged ‘plaintiff(s)’, BankUnited & BankUnited, FSB, fraudulently asserted:
“that all conditions to the institutions of this action have occurred, been performed or
excused …”

5
27. 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.
FILE & DOCKET SHOWED FRAUD EVIDENCE & DEMAND IN DISPOSED ACTION

INCORRECT CASE NUMBER


28. “BankUnited” used incorrect “Case No. 11-2009-CA-006016CA”.
MANDATORY RETIREMENT
29. Pursuant to various reports, the Hon. Judge Daniel R. Monaco had exceeded the mandatory
judicial retirement age in 2008. The unjustified threat of the loss of Franklin-Prescott’s house
is a matter that demands the highest applicable standards.
TIMELINE OF FRAUD ON THE COURT IN DISPOSED WRONGFUL ACTION
30. The below timeline illustrates the arbitrary and capricious nature of the alleged “”02/22/2011
hearing”, which had been amended and then cancelled.
02/20/2011 Docket shows unlawful / unauthorized “02/22/2011 hearing” in disposed case
even though 02/22/11 hearing had been amended [02/14/11 hearing cancelled]
02/19/2011 Franklin-Prescott again contacted Hon. Daniel R. Monaco’s Office
02/18/2011 Clerk and Sen. Judge give conflicting information
02/18/2011 Prescott called Hon. Dwight E. Brock’s Office & Foreclosure Judge’s JA
02/18/2011 J. Franklin-Prescott called Office of “Disposition Judge” Hayes
02/18/2011 No hearing appeared on the Clerk’s Docket
02/18/2011 Franklin-Prescott filed her “NOTICE OF APPEAL …”
02/17/2011 Franklin-Prescott filed her “AFFIDAVIT in support of fraud on court …”
02/15/2011 Franklin-Prescott filed “NOTICE OF OBJECTION to any hearing …”

02/08/2011 Alleged “02/08/2011” Docket entries:


02/08/2011 “AMENDED NOTICE OF HEARING 02/14/11 @3:30P.M., AMENDED
MOTION FOR SUMMARY JUDGMENT AND FOR ATORNEY FEES AGAINST
PEDRO LUIS LICOURT”
02/08/2011 “NOTICE OF HEARING 02/22/11 @10:00A.M., DEFENDANT’S MOTION TO
DISMISS/MOTION TO ENJOIN”
02/01/2011 Franklin-Prescott filed “NOTICE OF OPPOSITION …”
12/06/2010 CANCELLATION of unauthorized “12/0610 hearing”
09/02/2010 CANCELLATION of unauthorized “09/02/10 hearing”
08/12/2010 DISPOSITION
08/12/2010 Franklin-Prescott again filed “Motion to Dismiss”

6
FRAUD - INVESTIGATIONS BY THE FLORIDA ATTORNEY GENERAL
31. Foreclosure mills like “Albertelli Law” have been under investigation, which evidenced so-
called “robo signing” of fraudulent documents and/or affidavits. See, e.g., Office of the
Florida Attorney General, Dept. of Legal Affairs, AG # L10-3-1145, IN RE: Investigation of
Law Offices of David J. Stern, P.A..
“ROBO-SIGNING” OF FRAUDULENT AFFIDAVITS – NO FILE REVIEW
32. In this disposed wrongful foreclosure action, Ashley Simon, Esq., Florida Bar 64472, stated
under oath that she “had not reviewed the actual file in this [disposed] case.” See prima facie
fraudulent “Affidavit as to reasonable attorneys fees”; 11/10/2010 “Notice of Filing”.
33. Employees of “foreclosure mills” in Florida [e.g. Jeffrey Stephan; Angela Nolan, Cheryl
Samon] admitted under oath that they signed hundreds of affidavits a day to process pending
foreclosures without actually having read or checked the documents. It later came to light
that said employees were not alone, and in 23 states that require a court to approve a
foreclosure, thousands of foreclosures are now potentially under question. Robo-signing and
similar practices are unlawful and egregious.
“FORECLOSURE GATE”
34. The lender, formerly known as GMAC, admitted that employees signed thousands of
foreclosure documents without reading them, a practice dubbed “robo-signing”.
35. In this disposed action, Jennifer Franklin-Prescott has been defending against, e.g., “robo
signing”, “BankUnited” fraud, and the cover-up by foreclosure mill “Albertelli Law”.
“BANKUNITED’S” FAILURE TO STATE A CAUSE OF ACTION
36. In this disposed action, “BankUnited” had failed to show they it had the contractual right to
enforce the alleged note, which had never been properly executed. Accordingly, any hearing
under these circumstances would be unlawful and unauthorized. The allegations by
“BankUnited” have been facially frivolous and unsupported. The Exhibits on file did not
identify “BankUnited” as any note holder and/or owner. Here, the alleged note was never
properly executed.

7
ILLEGALITY OF “ROCKET DOCKET”
37. Here after said 08/12/2010 disposition and in the absence of any note and standing,
“BankUnited” was not entitled to “5 minute increments” of a “rocket docket”, because
“BankUnited’s” fraud on the Court is illegal. In this disposed Case, “BankUnited” and/or
Attorney Fivecoat are playing “another round of [illegal] games of paper”.
38. Cases like this have led experts like Katherine Porter, visiting professor of law at Harvard
University, to seriously question the mortgage industry:
“The foreclosures and the whole loss of wealth are going to deepen the
disappointment and distrust in financial institutions to follow the rules of law," Porter
said, "and be fair when dealing with the little guy.”
PUBLICATIONS AS TO DISPOSED WRONGFUL FORECLOSURE ACTION
39. The communications with the Court and Officers are published at, e.g., www.scribd.com,
www.YouTube.com. See www.google.com.

WHEREFORE, Jennifer Franklin-Prescott respectfully demands the MANDATORY


CANCELLATION of said 02/22/2011 hearing and removal of Andrew Lee Fivecoat, Esq.
in this disposed wrongful foreclosure case.

Respectfully,

/s/Jennifer Franklin-Prescott, fraud victim

ATTACHMENTS
Docket et al.

CC:
Florida Bar
New York Times
June M. Clarkson, Esq., Theresa B. Edwards, Esq.
Mark R. Briesmeister, Financial Investigator
Office of the Florida Attorney General

8
2/21/2011 David J. Stern: Bandleader for a Symp…
FDL TV
Just Say Now

« Lew Previews Obama Budget Cuts


Obama Makes Nice with the Chamber of Commerce »

David J. Stern: Bandleader for a Symphony of Foreclosure


Fraud

By: David Dayen Monday February 7, 2011 9:56 am Tweet Share8

It’s really something that we have to get the scoop on foreclosure mill con artist David J. Stern from the AP and not
some police blotter, but that’s life in post-rule of law America. The story provides a service, however, profiling a man
who’s really a symbol for the foreclosure fraud crisis. Stern sought to corner the market in shepherding foreclosures
through Florida’s courts. He saw them as a growth opportunity and he wanted to increase profits. He did so through
cutting corners along every step of the way, becoming an expert in the kind of skills needed to keep the foreclosure
train moving – document fraud, fabrication, forgery, etc. He and his firm were very good at what they did, which was
basically commit crimes against homeowners and state courts. And it paid off with a suite of cars, yachts, fabulous
homes and all manner of luxury goods. His possessions increased in a direct relationship to the repossessions his
law firm were illegally pushing through the courts.

As Yves Smith points out, the article intimates that the foreclosure mills came up with robo-signing as a cost-cutting
measure, and that fits with how Stern ran his business. The key for him was volume, processing as many
foreclosures as possible. So he would naturally welcome the idea of having one employee sign off on all the
foreclosure documents as a dedicated job every day. This benefited the servicers as well, since they didn’t want a
whole lot of scrutiny on verification and would rather the question of whether or not they own the mortgages go
unexplored. Stern was the perfect role player for this era, because he was always basically a garden-variety crook:

Almost from the beginning, Stern faced trouble. In 1998, he was named in a class-action lawsuit
alleging that he padded fees on foreclosed homeowners. Stern settled for $2.2 million. According to
legal testimony at the time from a Fannie Mae official, Fannie was warned about troubles at the Stern
firm. But Fannie continued referring cases to Stern. Fannie Mae spokeswoman Amy Bonitatibus says,
“At all times, Fannie Mae has had a reasonable expectation that our servicers and the law firms adhere
to proper procedures and conduct under the law. In instances where we learn that servicers or law firms
are not adhering to our requirements or applicable law, we immediately engage and take appropriate
action, which may include termination.”

Soon after, Stern was sued again, this time for sexual harassment. A former paralegal alleged that
Stern created a “sexually-laden” atmosphere in which he routinely “touched and grabbed and subjected
to simulated intercourse” his employees. Stern settled that suit in 2000 for an undisclosed amount.

By this time, lawyers and homeowner activists were also warning lenders, federal regulators and the
Florida Bar about Stern. In 2002, the Florida Supreme Court reprimanded Stern for submitting
“potentially misleading” fee affidavits.

Even a built-for-speed operation like Stern’s firm could not keep up with the volume of foreclosures. As the article
explains, law firms typically get a flat fee per foreclosure, but must get the foreclosure done within a set time frame,
usually around six months, to collect. This led to the need for a solution that streamlined the process as much as
possible.

Employee depositions paint a picture of a firm under constant pressure from the banks to move faster.
The longer it took to foreclose, the more money the banks stood to lose. Like so many in the industry,
Stern had a strategy to cope with all the volume and velocity: robo-signing. One employee testified that
Stern’s chief lieutenant, a one-time file clerk named Cheryl Samons who rose to become the firm’s chief
…firedoglake.com/…/david-j-stern-ban… 1/2
2/21/2011 David J. Stern: Bandleader for a Symp…
operating officer, signed as many as 1,000 foreclosure affidavits a day without reading a single word.
The employee said Samons’ hand got so tired that she told three other employees to forge her
signature. Samons also signed numerous mortgage assignments with a notary stamp that didn’t even
exist at the time of signing. Notary stamps are only valid for four years. The only way Samons could
have signed mortgage assignments at the time they were supposedly notarized was if she had been
capable of time travel.

Stern rewarded Samons with a new BMW SUV every year, paid all her bills and took care of the
mortgage payment on her home, according to testimony from two employees. Samons did not respond
to request for comment.

The people getting foreclosed upon were an inconvenient facet of this scheme. And when Stern showed how this
model could work, the servicers undoubtedly pressured every other firm they worked with to operate in the same
fashion. This keeps fees to a minimum and benefits the servicers by giving them an out rather than modifications,
which aren’t cost-effective for them.

The servicer model never had to deal with a flood of delinquent loans before the popping of the housing bubble in 2006;
they were too new to ever need to confront such a problem. And the resultant chaos proved that they simply could not
handle the flood without cutting corners massively and maximizing profits through forms of abuse like illegal fee
increases. The foreclosure mills worked in concert with this.

This kind of profile, quite rare for the AP, exposes the clear fraud at the heart of the mortgage servicing, modification
and foreclosure system. Stern’s company is now a penny stock, he’s being investigated by the state Attorney
General and federal prosecutors, his staff has shrunk from 1,200 to 200, banks have abandoned him, and his
headquarters is in default. He hasn’t gone to jail yet but he’s a likely candidate.

However, if we are to learn anything from this episode, it’s how depressingly normal Stern’s machinations were.

…firedoglake.com/…/david-j-stern-ban… 2/2
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

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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This we bsite is m aintaine d by The C ollie r C ounty C le rk of the C ircuit C ourt. Unde r Flo rida law, e m ail
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apps.collierclerk.com/…/Case.aspx?UC… 1/1
2/21/2011 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: Sun, Feb 20, 2011 8:40 pm

Dear Jennifer Franklin-Prescott:

Your fax to HON. DANIEL R. MONACO at +1 (239) 252-8870 has been successfully sent:
Your fax was delivered at 2/20/2011 7:40:23 AM, and contained 21 page(s).

Thank you for choosing MyFax,


The MyFax Team
http://www.myfax.com

mail.aol.com/…/PrintMessage.aspx 1/1
2/21/2011 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: Mon, Feb 21, 2011 1:53 pm

Dear Jennifer Franklin-Prescott:

Your fax to HON. HUGH D. HAYES at +1 (239) 774-9654 has been successfully sent:
Your fax was delivered at 2/21/2011 12:51:36 AM, and contained 21 page(s).

Thank you for choosing MyFax,


The MyFax Team
http://www.myfax.com

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2/21/2011 David J. Stern Sale of Back-Office Ope…

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February 1, 2011

Bet on Foreclosure Boom Turns Sour for


Investors
By JULIE CRESWELL and BARRY MEIER
David J. Stern may be the best-known beneficiary of the foreclosure boom, having made
millions in recent years from evictions processed by his law firm, the largest of its kind in
Florida. But when he took part of his firm public early last year, he had plenty of help from a
constellation of investors also looking to cash in on people losing their homes.

Early in 2010, the back-office processing operations of Mr. Stern’s law firm were converted into
a publicly traded company called DJSP Enterprises. Mr. Stern pocketed nearly $60 million from
that transaction, public filings show.

Behind that big-money deal was a curious cast of characters, including some with previous run-
ins with regulators. Other parties included a small Wall Street investment bank headed by a
former presidential candidate, the retired Gen. Wesley K. Clark, and a little-known private
equity firm based in New York.

Even before the DJSP windfall, Mr. Stern enjoyed a lifestyle that featured grand mansions,
flashy sports cars and a yacht called Misunderstood. But the days of easy money are over for
Mr. Stern, his law firm and DJSP investors.

As the Florida attorney general’s office continues to investigate whether Mr. Stern’s law firm
falsified documents in order to speed up foreclosures, the firm has lost its biggest clients,
including Citibank and Fannie Mae. Many of DJSP’s executives have left the company, and it
has laid off about 80 percent of its 1,200 employees.

Meanwhile, investors in DJSP are not doing any better. Shares of the company, which were
worth $14 apiece last summer, trade now for about 50 cents on the Nasdaq exchange.

DJSP faces a lawsuit from investors who claim they were misled about its financial prospects, an
accusation the company has denied. Separately, former employees of DJSP who performed
back-office work related to Mr. Stern’s law firm have sued, contending that the company failed
to follow federal regulations in laying them off; the company filed a motion to dismiss the claims.

nytimes.com/2011/02/…/02stern.html… 1/4
2/21/2011 Florida’s High-Speed Answer to a Fore…

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September 4, 2010

Florida’s High-Speed Answer to a


Foreclosure Mess
By GRETCHEN MORGENSON and GERALDINE FABRIKANT
TEN days from now, a four-bedroom house on a cul-de-sac in Middleburg, Fla., is scheduled to
be auctioned off at the Clay County courthouse, 25 miles south of Jacksonville.

A judge who recently took over their foreclosure case has ordered Rodney Waters; his fiancée,
Terri Reese; and their four children to leave the home they bought in 2006.

Mr. Waters, a supervisor at a local packaging company and the family’s sole breadwinner, fell
behind on his mortgage two years ago after his property taxes jumped unexpectedly. He now
owes $264,000 on the house; a similar home down the street sold for $138,500 in February.

The predicament of the Waters-Reese family is common in Florida today. The state routinely
sets new records for foreclosures — in the second quarter, 20.13 percent of its mortgages were
delinquent or in foreclosure, a national high, according to the Mortgage Bankers Association.
And with housing prices still in a free fall, almost half of all borrowers in Florida owe more on
their mortgages than their properties are worth, says CoreLogic, a data firm.

While the Waters-Reese case may not be unusual in Florida, the coming auction of the home is
still notable: it will be a result of the Florida Legislature’s new effort to cut the number of
foreclosures inching their way through the state’s courts. Earlier this year, Florida earmarked
$9.6 million to set up foreclosures-only courts across the state, staffed by retired judges. The
goal of the program, which began in July, is to reduce the foreclosures backlog by 62 percent
within a year.

No one disputes that foreclosures dominate Florida’s dockets and that something needs to be
done to streamline a complex and emotionally wrenching process. But lawyers representing
troubled borrowers contend that many of the retired judges called in from the sidelines to
oversee these matters are so focused on cutting the caseload that they are unfairly favoring
financial institutions at the expense of homeowners.

Lawyers say judges are simply ignoring problematic or contradictory evidence and awarding

nytimes.com/2010/09/…/05house.htm… 1/9
2/21/2011 Big Legal Clash on Foreclosure is Taki…

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distribution to your colleagues, clients or customers here or use the "Reprints" tool that appears next to any
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October 20, 2010

Battle Lines Forming in Clash Over


Foreclosures
By GRETCHEN MORGENSON and ANDREW MARTIN
About a month after Washington Mutual Bank made a multimillion-dollar mortgage loan on a
mountain home near Santa Barbara, Calif., a crucial piece of paperwork disappeared.

But bank officials were unperturbed. After conducting a “due and diligent search,” an assistant
vice president simply drew up an affidavit stating that the paperwork — a promissory note
committing the borrower to repay the mortgage — could not be found, according to court
documents.

The handling of that lost note in 2006 was hardly unusual. Mortgage documents of all sorts
were treated in an almost lackadaisical way during the dizzying mortgage lending spree from
2005 through 2007, according to court documents, analysts and interviews.

Now those missing and possibly fraudulent documents are at the center of a potentially seismic
legal clash that pits big lenders against homeowners and their advocates concerned that the
lenders’ rush to foreclose flouts private property rights.

That clash — expected to be played out in courtrooms across the country and scrutinized by law
enforcement officials investigating possible wrongdoing by big lenders — leaped to the forefront
of the mortgage crisis this week as big lenders began lifting their freezes on foreclosures and
insisted the worst was behind them.

Federal officials meeting in Washington on Wednesday indicated that a government review of


the problems would not be complete until the end of the year.

In short, the legal disagreement amounts to whether banks can rely on flawed documentation to
repossess homes.

While even critics of the big lenders acknowledge that the vast majority of foreclosures involve
homeowners who have not paid their mortgages, they argue that the borrowers are entitled to
due legal process.

nytimes.com/2010/…/21standoff.html… 1/6
1/12/2011 Foreclosure Judges Berate Lawyers - …

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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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Dow n
Enlarge This Image In numerous opinions, judges have PRINT
accused lawyers of processing shoddy SINGLE PAGE
or even fabricated paperwork in
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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
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contained numerous “falsities.” The judge, Scott Fairgrieve
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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?
Go to your Portfolio » present, which prompted a protest from the New Y ork bar. 2 . Rising Chinese Inflation to Show Up in U.S. Im ports
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
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careers.
5. Auto Show Outsiders Seek Rebirth

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
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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
2/22/2011 Matt Taibbi’s Devastating Portrait of Fl…

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Shredding As Much As We Can

Matt Taibbi’s Devastating Portrait of Florida’s


Email: NetNet@cnbc.com
Rocket Docket Foreclosure Courts Call: 201-735-iNet (4638)
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Published: Saturday, 13 Nov 2010 | 11:37 AM ET Text Size

By: John Carney


Senior Editor, CNBC.com

Recommend 4 Twitter LinkedIn

The latest issue of Rolling Stone is out with a devastating portrait by Matt
Taibbi of the foreclosure process in Florida. If it pierces the public
consciousness the way Taibbi’s articles on AIG and Goldman Sachs [GS 168.04
0.88 (+0.53%) ] did, it could be a game-changer.

The set-up is pretty simple. Taibbi goes down


to Florida and sits in on one of the make-shift
foreclosure courts Florida has set up to deal
with the enormous volume of foreclosure cases
in the state. It’s really just a small conference
room run by a formerly retired judge who has
been brought on to speed through
Justin Sulliv an | Getty Images foreclosures.

Taibbi discovers far worse than sloppy


paperwork on the part of banks—although he discovers plenty of that too. He Flash Crash Panel Recommends Major Changes for US
Markets (4)
discovers that the foreclosure process is heavily skewed to favor the banks. If
Friday Video Refreshment: Baby Trashes A Bar
a homeowner doesn’t show up to defend himself or herself, the judge issues
From the Catwalk to Wall Street
the foreclosure order. If the bank fails to send a representative, he just pushes
back the date. When a bank submits a trail of ownership of the mortgage note Stumpf's Office Calls Homeowner Who Foreclosed on Bank
(Steak Knives Pending)
that makes no sense, it just comes back later with a different set of ownership
Inflation Building, Fed Should Back Off: LaVorgna (6)
documents.
Contrarians in the Cold as Bulls Keep on Buying (5)
From Rolling Stone: The Union Fight in Wisconsin Means Trouble for Munis (1)
Jamie Dimon Wins Shareholder Beauty Pageant (10)
This is the dirty secret of the rocket docket: The whole system is An Optimistic Steve Jobs Destroys His House (10)
set up to enable lenders to commit fraud over and over again, until Why Shareholder Democracy Is a Bad Idea (4)
they figure out a way to reduce the stink enough so some judge Ticket Pricing Wars Goes Into the Hands of the Consumer
like Soud can sign off on the scam. "If the court finds for the Keeping 'New York' in the New York Stock Exchange
defendant, the plaintiffs just refile," says Parker, the local Waking up With Nicole Lapin (2)

attorney. "The only way for the caseload to get reduced is to give The Bernie Boom: Lawyers Stand to Pocket $1.3 Billion in
Fees From Madoff Case (3)
it to the plaintiff. The entire process is designed with that result in
Chinese Menu: Is Beijing 'Playing Pick One Item from Column
mind." A and One Item from Column B' with Their Data?
Ben Bernanke Goes to the Movies
Is this a fair portrait of the foreclosure process? We have no idea. But it may
well wind up changing the politics of foreclosure in a way that could make it far
costlier for a bank to foreclose on a homeowner. Depending on your point of

cnbc.com/id/40156107/…/1098/ 1/5
2/22/2011 Matt Taibbi’s Devastating Portrait of Fl…
view, that could either convince banks to be more open to loan modifications
or keep the housing market in turmoil for even longer. But poison or pure, this
Facebook
apple looks ripe for the picking.

By the way, Taibbi’s success at piercing through the public consciousness Twitter

tends to bother financial reporters. (I’ve had occasion to duke it out with him
RSS
in the past on the issue of naked short selling.) But he is a good story-teller
and a thorough reporter who obviously takes time and effort to learn about his
subjects. Importantly, he doesn’t let his stories get bogged down in technical
jargon—one of the errors that makes so much financial journalism boring.

_______________________________________________________
John Carney
Questions? Comments? Email us at NetNet@cnbc.com Runs this joint.

Follow John on Twitter @ twitter.com/Carney


Cadie Thompson
Follow NetNet on Twitter @ twitter.com/CNBCnetnet Really, really runs this joint.

Facebook us @ www.facebook.com/NetNetCNBC
Ash Bennington
© 2010 CNBC.com NetNet Special Reporter

TOPICS: Mortgages | Real Estate | Housing


Kate Kelly
Reports on the major Wall Street firms, trading, and
regulation.

Recommend 4 Twitter LinkedIn Jeff Cox


A staff writer with CNBC.com, covering the gamut of
Print Email issues affecting the stock market and the economy.

Lori Spechler
A Senior Editor at CNBC, commodity trader in a
former life.

Lori Ann LaRocco


A Senior Talent Producer at CNBC.

Lessons for Munis What Will Kill a Bull Homeowner Nicole Lapin
From t he Mortgage Market ? Good News Forecloses on Wells Runs the graveyard.
Market Fargo

24 Comments Total
COMMENTS

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againstidiocy | Nov 12, 2010 06:20 PM ET
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there is no way around a homeowner having to give up his home if he doesnt pay the
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mortgage. They can delay, they can file suit...but eventually the contract will be found
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valid, and they will be foreclosed upon.

It is an ugly business, but it is the necessary thing to do.

Report Abuse » Help

rhinochaser | Nov 12, 2010 06:51 PM ET Subscribe to this RSS feed


Stay up to date with NetNet.

I hope Matt Taibbi, after tackling this sordid subject of bank abuse (with govt support),
he'll tackle the even more storied subject of pension fraud. California would be a good

cnbc.com/id/40156107/…/1098/ 2/5