IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT

IN AND FOR COLLIER COUNTY, FLORIDA

BANKUNITED,
as [purported] successor in interest to [SEIZED] BANKUNITED, FSB.,

Plaintiff,

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

JENNIFER FRANKLIN-PRESCOTT, et al.

___________________________________________________________________________/

MOTION FOR RECUSAL OF DEFENDANT JUDGE HUGH D. HAYES

NOTICE OF DISPOSITION IN FAVOR OF J. FRANKLIN PRESCOTT,

BANKRUPT BANK SEIZURE, § 673.3011, FLA. STAT., AND
EVIDENCE OF NO entitlement to enforce non-existent instrument

DISPOSITION NOTICE IN FAVOR OF JENNIFER FRANKLIN PRESCOTT

PURSUANT TO UNIFORM COMMERICAL CODE, AND U.C.C., ART. 3,
AND FLORIDA LAW

MEMORANDUM: RECUSAL LAW

1. In light of the publicly recorded alterations of the official records and documents, Jennifer

Franklin Prescott has been forced to live in fear of public corruption and the lack of any

opportunity of fair, just, and transparent due process and proceedings.

2. Here, Defendant Judge Hugh D. Hayes knew that

a. Bankrupt Bankunited did not hold any instrument;

b. Seized and bankrupt Bankunited had no right to enforce and prosecute;

 c. Florida’s real party in interest Rule, Fla. R. Civ. P. 1.210(a), only permitted an action to

be prosecuted if there had been an actual interest.

RULE 1.432 DISQUALIFICATION OF JUDGE

“(a) Grounds. Any party may move to disqualify the judge assigned to the action on
the grounds provided by statute.
(b) Contents. A motion to disqualify shall allege the facts relied on to show the
grounds for disqualification and shall be verified by the party.
(c) Time. A motion to disqualify shall be made within a reasonable time after
discovery of the facts constituting grounds for disqualification.
(d) Determination. The judge against whom the motion is directed shall determine
only the legal sufficiency of the motion. The judge shall not pass on the truth of the
facts alleged. If the motion is legally sufficient, the judge shall enter an order of
disqualification and proceed no further in the action.
(e) Judge's Initiative. Nothing in this rule limits a judge's authority to enter an order of
disqualification on the judge's own initiative.”

Said rule was intended to unify the procedure for judicial disqualification.

RULE 2.330. DISQUALIFICATION OF TRIAL JUDGES

3. Said Rule stated:

(a) Application. This rule applies only to county and circuit judges in all matters in
all divisions of court.

(b) Parties. Any party, including the state, may move to disqualify the trial judge
assigned to the case on grounds provided by rule, by statute, or by the Code of
Judicial Conduct.

(c) Motion. A motion to disqualify shall:

(1) be in writing;
(2) allege specifically the facts and reasons upon which the movant relies as the
grounds for disqualification;
(3) be sworn to by the party by signing the motion under oath or by a separate
affidavit;”

SECTION 38.10, FLA. STAT.

4. Section 38.10 gives parties the right to move to disqualify a judge when the party fears that

“he or she will not receive a fair trial . . . on account of the prejudice of the judge of that

court against the applicant or in favor of the adverse party.” Fla. Stat. § 38.10. Rule of

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 Judicial Administration 2.330 specifies that a motion to disqualify must show that “the party

fears that he or she will not receive a fair trial or hearing because of specifically described

prejudice or bias of the judge.” Fla. R. Jud. Admin. 2.330.

5. S. 38.10, Fla. Stat., stated:

38.10 Disqualification of judge for prejudice; application; affidavits; etc.--

Whenever a party to any action or proceeding makes and files an affidavit stating fear
that he or she will not receive a fair trial in the court where the suit is pending on
account of the prejudice of the judge of that court against the applicant or in favor of
the adverse party, the judge shall proceed no further, but another judge shall be
designated in the manner prescribed by the laws of this state for the substitution of
judges for the trial of causes in which the presiding judge is disqualified.

6. Here, Franklin Prescott has been “stating fear that she will not receive a fair trial in the court

where the suit is [purportedly] pending on account of the objective prejudice of the judge of

that court against the applicant. Here, objectively biased Judge Hayes “shall proceed no

further, but another judge shall be designated in the manner prescribed by the laws of this

state for the substitution of judges for the trial of causes in which the presiding judge is

disqualified.”

JENNIFER FRANKLIN PRESCOTT’S RIGHT TO APPEAL

7. If the judge denies a motion to disqualify brought under § 38.10 the movant has the right to

appeal. Lynch v. State, ___ So. 2d ___, Nos. SC06-2233, SC07-1246, 2008 WL 4809783, at

*26 (Fla. Nov. 6, 2008). As the Florida Supreme Court recently held: “A motion to

disqualify is governed substantively by section 38.10, Florida Statutes, and procedurally by

Florida Rule of Judicial Administration 2.330. Here, Franklin Prescott’s motion to

disqualify Defendant objectively partial Judge Hayes is citing § 38.10 and Rule 2.330, as

well as Canon 3E(1).

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8. The Florida Supreme Court has also held, in effect, that § 38.10 and the Canons require the

same thing. See Livingston v. State, 441 So. 2d 1083, 1086 (Fla. 1983). In Livingston the

court cited the Canon’s requirement that a judge disqualify himself when his “impartiality

might reasonably be questioned” and concluded that it was “totally consistent” with Florida

case law applying § 38.10. Id. Both require disqualification when a party can show “a well

grounded fear that she will not receive a fair trial at the hands of the judge.” Id. (quoting

State ex rel. Brown v. Dewell, 179 So. 695, 697-98 (Fla. 1938)); see also Berry v. Berry, 765

So. 2d 855, 857 (Fla. 5th DCA 2000) (quoting Canon 3E(1) when describing the standard for

granting a motion under § 38.10). Here of course, this Court was bound to follow Florida

appellate court decisions interpreting that state’s law. The final arbiter of state law is the

state Supreme Court, which is another way of saying that Florida law is what the Florida

Supreme Court says it is.

CANON(S) 3E(1), 3E(1)(f), FLORIDA CODE OF JUDICIAL CONDUCT

9. The Florida Supreme Court has adopted a Code of Judicial Conduct to govern the actions

of state court judges and candidates for judicial office. Canon 3E(1) states, e.g.:

(1) A judge shall disqualify himself or herself in a proceeding in which the judge’s
impartiality might reasonably be questioned, including but not limited to instances
where …

10. Those provisions address situations in which a judge must disqualify himself because his

“impartiality might reasonably be questioned,” including when he has “made a public

statement that commits, or appears to commit, the judge with respect to” a particular party,

issue, or controversy. Canon 3E(1) [general disqualification provision in Canon 3E(1)],

3E(1)(f) [“commits clause” at Canon 3E(1)(f)].

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11. Canon 3E(1), backed by the threat of a disciplinary proceeding, requires a judge to

disqualify himself if his “impartiality might reasonably be questioned.” Fla. Stat. § 38.10,

supplemented by Rule 2.330, allows a party to have a judge disqualified for the same reason.

12. Canon 3E(1)(f), which the Florida Supreme Court adopted in January 2006, covers one area

in which a judge’s “impartiality might reasonably be questioned.” See In re Amendment to

Code of Judicial Conduct, 918 So. 2d 949 (Fla. 2006). In addition to the Florida Supreme

Court, the Judicial Ethics Advisory Committee (Ethics Committee) and the Judicial

Qualifications Commission (JQC) have roles in administering the Code. The Florida

Supreme Court established the Ethics Committee “to render written advisory opinions to

inquiring judges concerning the propriety of contemplated judicial and non-judicial conduct.”

Petition of Comm. on Standards of Conduct for Judges, 327 So. 2d 5, 5 (Fla. 1976).

13. Canon 3E is enforced by the Judicial Qualifications Commission, which has the authority

to bring disciplinary charges against a judge.

SPECIFIC ALLEGATIONS – WELL-GROUNDED FEARS

14. Here, Franklin Prescott has been specifically alleging the following facts and reasons upon

which the movant relied as the grounds for Defendant County Judge Hayes’

disqualification. Here, Franklin Prescott had well grounded fears that she will not receive

a fair trial at the hands of Defendant objectively partial and bribed County Judge Hugh D.

Hayes.

ADOPTION BY REFERENCE

15. Jennifer Franklin Prescott adopts by reference the pleadings and EXHIBITS on file and of

record in this Motion and Notice of Disposition of facially fraudulent action.

NOTICE OF APPEAL FROM ALTERATIONS OF RECORD

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16. Jennifer Franklin Prescott, who was never served, had appealed from

a. The unlawful alteration of the official documents, records, and Case Docket;

b. The lack of any record of the purported “disposition” in Jennifer Franklin Prescott’s

favor in the Case File;

c. The lack of any record of the dismissal in Jennifer Franklin Prescott’s favor;

d. The absence of the FINAL DISPOSITION FORM, § 25.075, Florida Statutes, and

Fla.R.Civ.P. 1.998, from the Case File;

e. The lack of any record, reason, and/or explanation of the publicly recorded removal of

the August 2010 “complaint” in the Case File;

f. The absence of any record, reason, and explanation of the publicly recorded removal of

the August 2010 “summons” from the Case File;

g. The lack of any transparency, accountability, due process, and equal protection of law;

h. The record lack of any mortgage or note in this facially fraudulent and frivolous action;

i. The lack of any record of the removal of ALFRED CAMNER, Esq., and the CAMNER

LIPSITZ law firm and its Attorneys from the mock proceedings;

j. The record lack of the means of final disposition before any hearing.

RECORD ABSENCE OF FINAL DISPOSITION FORM, § 25.075, FLA. STAT.

17. Jennifer Franklin Prescott could not find the Final Disposition Form, Fla.R.Civ.P. 1.998, in

the Case File on Tuesday, August 17, 2010. See § 25.075, Florida Statutes.

ABSENCE OF DISMISSAL IN JENNIFER FRANKLIN PRESCOTT’S FAVOR

18. On Tuesday, August 17, 2010, Jennifer Franklin Prescott could not find the Dismissal in

Jennifer Franklin Prescott’s favor in the Case File.

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 DEFENDANT JUDGE HUGH D. HAYES SUBSTITUTED COUNSEL ON 08/18/2010

19. On August 18, 2010, Defendant Judge Hayes substituted Counsel, and BILL McCOLLUM,

ATTORNEY GENERAL, and Shelley B. Cridlin, Fla. Bar No. 0022451, made an

appearance as counsel for Defendant Judge Hugh D. Hayes, in place of any and all prior

counsel in Federal Case 2:2009-cv-00791.

FALSIFICATIONS AND/OR ALTERATIONS APPARENT

20. Jennifer Franklin Prescott reported Case File demand and/or review in the Clerk of Court’s

Office on August 12, 13, and 16, and 17, 2010. While the electronic Docket showed

a. “disposition”;

b. “complaint”; and

c. “summons”,

none could be ascertained and/or verified in the Naples Courthouse.

DEMANDS FOR CLARIFICATION AND EVIDENCE

21. On Monday, August 16, AM, and Tuesday, August 17, 2010, PM, at the Naples Courthouse,

Jennifer Franklin Prescott demanded to see the Case File evidence of:

a. “disposition”;

b. “complaint”; and

c. “summons” in this fraudulent action.

DEFENDANT JUDGE’S ASSISTANT ASSERTED MISTAKE/ERROR

22. Defendant Hayes’ Judicial Assistant, Jan, stated to Jennifer Franklin Prescott that

a. NO “August 2010 complaint”, and

b. NO “August 2010 summons”

appeared in the Case File.

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 NO negotiable instrument UNDER GOVERNING CODE

23. The Uniform Commercial Code (UCC), Article 3, governs Negotiable Instruments.

Pursuant to § 3-104. NEGOTIABLE INSTRUMENT, no “negotiable instrument” existed,

and no promise or order to pay a fixed amount of money and interest existed in this

fraudulent action. Bankrupt and seized Bankunited was unable to prove any right to

enforce the admittedly non-existent purported “instrument”. Here, the Court may not enter

judgment in favor of seized and bankrupt Bankunited. See UCC, Article 3. Here, the Court

must enter judgment in favor of Jennifer Franklin Prescott. WHEREFORE, Jennifer

Franklin Prescott, who was not served and does not submit to any jurisdiction, moves this

Court to declare the purported action fraudulent and a fraud on the Court, and enter

judgment of dismissal in favor of Jennifer Franklin Prescott.

JENNIFER FRANKLIN PRESCOTT HOLDS FREE & CLEAR RECORD TITLE

24. Jennifer Franklin Prescott holds unencumbered record title to the subject protected

homestead real property. See Collier County Public Records.

PURPORTED “DISPOSITION”

25. The Case Docket stated “disposition”:

The purported “disposition date” was “08/12/2010”.

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 RULE 1.540, FLA. R. CIV. P.

26. Rule 1.540(a), Fla.R.Civ.P., authorizes the court to correct mistakes in a judgment. Here,

purported “disposition” appeared on the official Docket. Here there were no note, no

entitlement to enforce the admittedly lost/destroyed note, no service, no hearing, and no

due process. Here, records were altered.

BANKUNITED VIOLATED CH. 49, FLA. STAT.

27. Seized and bankrupt Bankunited violated Ch. 49, Fla. Stat., for illegal purposes of

defrauding Jennifer Franklin Prescott and perpetrating fraud on this Court. In this

fraudulent Case, service by publication was not allowed:

49.011 Service of process by publication; cases in which allowed.

49.021 Service of process by publication, upon whom.
49.031 Sworn statement as condition precedent.
49.041 Sworn statement, natural person as defendant.
49.051 Sworn statement, corporation as defendant.
49.061 Sworn statement, parties doing business under a corporate name as defendants.
49.071 Sworn statement, unknown parties as defendants.
49.08 Notice of action, form.
49.09 Notice of action, return day.
49.10 Notice of action, publication, proof.
49.11 Notice of action, posting, proof.
49.12 Mailing of notice of action.

RECORD PERJURY

28. The record and Case File showed perjury by, e.g., Nicholas Krancher. See Exhibits on file.

PURPORTED “SUMMONS”

29. Purportedly, a summons was issued, “ELSA JARERO”, who is not any known party to this

fraudulent action. The summons disappeared from the record without any explanation.

PURPORTED “COMPLAINT”

30. A “complaint” appeared on the Docket.

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 Pursuant to Rule 1.190, Fla.R.Civ.P., the Court had never granted any leave. The summons

disappeared from the record without any explanation.

PURPORTED plaintiff HAD NO right to enforce FICTITIOUS note

31. Seized and bankrupt BankUnited was not entitled to enforce a fictitious note. Here,

BankUnited was not any holder of any note or mortgage at the time it filed suit or any time

thereafter. It is elementary that to be a holder, one must be in possession of the instrument.

See s. 673.3011, F.S. Here, BankUnited was not any proper party to file suit to foreclose a

fictitious un-delivered lost and/or destroyed instrument.

IMPOSSIBILITY OF ANY delivery

32. Under Florida law delivery is necessary to validate a negotiable instrument. A lost and/or

destroyed note or mortgage could not have possibly been delivered.

IMPOSSIBILITY OF ANY reestablishment

33. Here, the lost and/or destroyed note or mortgage could not have possibly been reestablished

pursuant to Ch. 71, Fla. Stat.

EMERGENCY AND THREAT OF FURTHER INJURY

34. Known foreclosure fraud is an EMERGENCY. Further injury must be prevented.

NO note – NO default

35. The purported plaintiff did not own or hold any note. No obligation existed. No “default”

could have possibly occurred. See also Uniform Commercial Code; Negotiable Instruments.

UNKNOWN LOSS OR DESTRUCTION

36. The bankrupt and seized “plaintiff” bank asserted that any “promissory note and mortgage

have been lost or destroyed and are not in the custody or control of Bankunited, and the time

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 and manner of the loss or destruction is unknown.” In this Case, Bankunited could not have

possibly reestablished any lost or destroyed note or mortgage.

CAMNER KNEW THAT reestablishment WAS IMPOSSIBLE, CH. 71, FLA. STAT.

37. In particular, Founder and Attorney Alfred Camner and his law firm knew that Bankunited

could not have possibly reestablished any lost or destroyed note or mortgage.

SEIZURE OF BANKRUPT BANKUNITED

38. On Thursday, May 21, 2009, BankUnited, FSB, Coral Gables, FL was seized by the Office

of Thrift Supervision (OTS), and the Federal Deposit Insurance Corporation (FDIC)

was named Receiver. Said seizure stripped away the main asset that belonged to the holding

company, BankUnited Financial Corp. Counsel Alfred Camner was the largest shareholder.

39. The June 22 Report by the U.S. Department of the Treasury’s Office of Inspector

General (OIG) was critical of the bank’s management and Attorney and Founder Alfred

Camner. See Counsel, Camner Lipsitz law firm.

FAILURE & SEIZURE OF THE PURPORTED plaintiff

40. BankUnited, FSB’s failure in May 2009 cost the Federal Deposit Insurance Corp’s insurance

fund about $5.7 billion – the second most costly failure in FDIC history.

NO instrument, and NO lien

41. Here, there was neither any instrument nor any lien. No property was described.

NO interest, and NO successor in interest

42. Here, Bankunited, FSB, had no interest. Here, Bankunited was not and could not have

possibly been any successor in interest. No sum was due to the plaintiff bankrupt bank.

NO rights and NO standing

43. Here, Bankunited, just like Bankunited, FSB, had no rights and no standing.

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 NO conditions precedent – FACIALLY FRIVOLOUS action

44. Here, the conditions precedent to the institution of any foreclosure action did not occur and

could not have possibly occurred. Here on its face, the sham action was frivolous.

THE COURT KNEW THAT reestablishment WAS IMPOSSIBLE

45. Here as a matter of law, “reestablishment” was impossible. Here, the falsified “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.” See Ch. 71,

Fla. Stat.

46. Here, Jennifer Franklin’s record title to her homestead property was free and clear.

PROTECTED HOMESTEAD PROPERTY

47. Franklin Prescott’s property is protected homestead property.

48. As a matter of law, any accounting under a prima facie non-existent note and mortgage was

impossible. The prima facie non-meritorious demand for an accounting was fraudulent.

49. Jennifer Franklin Prescott is not any “married woman”.

50. Jennifer Franklin Prescott is not any defendant and was not served.

51. Hugh D. Hayes is a named party Defendant in several actions. See, e.g., Summons/service,

U.S.A. Ex Rel, et al. v. U.S.A., et al. in U.S. District Court.

WHEREFORE, Jennifer Franklin Prescott demands

1. An Order recusing Defendant Judge Hugh D. Hayes;

2. An Order clarifying the disposition in favor of J. Franklin Prescott on the official record;

3. An Order declaring the purported action fraudulent and a fraud on the Court;

4. An Order clarifying said purported “disposition”, “summons”, and “complaint”;

5. An Order for judgment and dismissal in favor of Jennifer Franklin Prescott on the record;

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6. An Order declaring non-service on any defendant in this fraudulent action, Ch. 49, Fla.

Stat.;

7. An Order extinguishing the facially non-meritorious action;

8. An Order declaring the admitted lack of any record of any note or mortgage;

9. An Order declaring any reestablishment of any note or mortgage impossible;

10. An Order declaring the lack of any interest by Bankunited;

11. An Order declaring the action without any merit under existing law;

12. An Order enjoining any further fraud and harassment by Bankunited;

13. An Order for sanctions and expenses against said seized and bankrupt bank and its

dismissed and/or fired attorneys at Camner Lipsitz;

14. An Order removing the fired judicial officers with the Camner Lipsitz firm from these

proceedings, and striking their fraudulent pleadings, because they perpetrated record fraud

and fraud on this Court.

________________________
/s/Jennifer Franklin Prescott, record holder of unencumbered title to homestead property
Victim of bankrupt Bankunited’s record fraud
Victim of seized Bankunited founder Alfred Camner’s record fraud on this Court

EXHIBITS ON FILE: DOCKET ALTERATIONS

UNIFORM COMMERCIAL CODE

U.C.C. Article 3, Negotiable Instruments

PERJURY EVIDENCE, Nicholas Krancher

§ 673.3011, Fla. Stat.; Ch. 71, Fla. Stat.

F.D.I.C. FAILED BANK INFORMATION

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