IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT

IN AND FOR COLLIER COUNTY, FLORIDA

BANKUNITED [non-party]
as [purported] successor in interest to [LAWFULLY SEIZED] BANKUNITED, FSB.,

purported “plaintiff”

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

JENNIFER FRANKLIN-PRESCOTT, et al.

___________________________________________________________________________/

INADMISSIBLE DUPLICATE DECEPTION & FRAUD EVIDENCE,

IN SUPPORT OF SANCTIONS AGAINST ALBERTELLI LAW & CAMNER LIPSITZ,
CH. 90, SECTION 90.953, FLORIDA STATUTES

1. In violation of Florida’s Evidence Code, Ch. 90, F.S., Attorneys at Camner Lipsitz and/or

Albertelli Law agreed to defraud by means of inadmissible duplicates of a purported note:

TITLE VII
EVIDENCE
CHAPTER 90
EVIDENCE CODE

90.953
[In] Admissibility of duplicates.
—
A duplicate is admissible to the same extent as an original, unless:
(1)
The document or writing is a negotiable instrument as defined in s. 673.1041,
a security as defined in s. 678.1021, or any other writing that evidences a
right to the payment of money, is not itself a security agreement or lease, and
is of a type that is transferred by delivery in the ordinary course of business
with any necessary endorsement or assignment.
(2)
 A genuine question is raised about the authenticity of the original or any other
document or writing.
(3)
It is unfair [NO PROTECTION], under the circumstance, to admit the duplicate
in lieu of the original.
History.

s. 1, ch. 76-237; s. 1, ch. 77-77; s. 22, ch. 78-361; s. 1, ch. 78-379; s. 57, ch. 92-82; s. 29,

ch. 99-2.

90.101
Short title.
90.102
Construction.
90.103
Scope; applicability.
90.104
Rulings on evidence.
90.105
Preliminary questions.
90.106
Summing up and comment by judge.
90.107
Limited admissibility.
90.108
Introduction of related writings or recorded statements.
90.201
Matters which must be judicially noticed.
90.202
Matters which may be judicially noticed.
90.203
Compulsory judicial notice upon request.
90.204
Determination of propriety of judicial notice and nature of matter noticed.
90.205
Denial of a request for judicial notice.

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90.206
Instructing jury on judicial notice.
90.207
Judicial notice by trial court in subsequent proceedings.
90.301
Presumption defined; inferences.
90.302
Classification of rebuttable presumptions.
90.303
Presumption affecting the burden of producing evidence defined.
90.304
Presumption affecting the burden of proof defined.
90.401
Definition of relevant evidence.
90.402
Admissibility of relevant evidence.
90.4025
Admissibility of paternity determination in certain criminal prosecutions.
90.4026
Statements expressing sympathy; admissibility; definitions.
90.403
Exclusion on grounds of prejudice or confusion.
90.404
Character evidence; when admissible.
90.405
Methods of proving character.
90.406
Routine practice.
90.407
Subsequent remedial measures.
90.408
Compromise and offers to compromise.
90.409
Payment of medical and similar expenses.
90.410
Offer to plead guilty; nolo contendere; withdrawn pleas of guilty.

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90.501
Privileges recognized only as provided.
90.5015
Journalist’s privilege.
90.502
Lawyer-client privilege.
90.503
Psychotherapist-patient privilege.
90.5035
Sexual assault counselor-victim privilege.
90.5036
Domestic violence advocate-victim privilege.
90.504
Husband-wife privilege.
90.505
Privilege with respect to communications to clergy.
90.5055
Accountant-client privilege.
90.506
Privilege with respect to trade secrets.
90.507
Waiver of privilege by voluntary disclosure.
90.508
Privileged matter disclosed under compulsion or without opportunity to claim privilege.
90.509
Application of privileged communication.
90.510
Privileged communication necessary to adverse party.
90.601
General rule of competency.
90.603
Disqualification of witness.
90.604
Lack of personal knowledge.
90.605
Oath or affirmation of witness.

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90.606
Interpreters and translators.
90.6063
Interpreter services for deaf persons.
90.607
Competency of certain persons as witnesses.
90.608
Who may impeach.
90.609
Character of witness as impeachment.
90.610
Conviction of certain crimes as impeachment.
90.611
Religious beliefs or opinions.
90.612
Mode and order of interrogation and presentation.
90.613
Refreshing the memory of a witness.
90.614
Prior statements of witnesses.
90.615
Calling witnesses by the court.
90.616
Exclusion of witnesses.
90.701
Opinion testimony of lay witnesses.
90.702
Testimony by experts.
90.703
Opinion on ultimate issue.
90.704
Basis of opinion testimony by experts.
90.705
Disclosure of facts or data underlying expert opinion.
90.706
Authoritativeness of literature for use in cross-examination.

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90.801
Hearsay; definitions; exceptions.
90.802
Hearsay rule.
90.803
Hearsay exceptions; availability of declarant immaterial.
90.804
Hearsay exceptions; declarant unavailable.
90.805
Hearsay within hearsay.
90.806
Attacking and supporting credibility of declarant.
90.901
Requirement of authentication or identification.
90.902
Self-authentication.
90.903
Testimony of subscribing witness unnecessary.
90.91
Photographs of property wrongfully taken; use in prosecution, procedure; return of property to
owner.
90.951
Definitions.
90.952
Requirement of originals.
90.953
Admissibility of duplicates.
90.954
Admissibility of other evidence of contents.
90.955
Public records.
90.956
Summaries.
90.957
Testimony or written admissions of a party.
90.958
Functions of court and jury.

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 FLORIDA SENATE STAFF ANALYSIS, SB 282

2. Florida [then] Senator William “Bill” Posey sponsored SB 282. Senate Staff analyzed the

effect of said Bill, 02/02/2004:

“The bill [SB 282], however, may not reject the result in State Street Bank and Trust
Co. v. Lord, 851 So. 2d 790 (Fla. 4th DCA 2003). A person seeking to enforce a lost
negotiable instrument will still have to prove that the person has acquired the right
to enforce the lost instrument. In order to prove that a person has acquired ownership
of a lost negotiable instrument, including the right to enforce the lost instrument, the
person will likely have to prove WHO owned the instrument WHEN the instrument
was lost. According to State Street, the assignee of a lost note did not produce
evidence showing WHICH prior assignor lost the note. State Street, 851 So. 2d at
792.”
Here, said Florida Senate analysis was further conclusive evidence of the fraud on the

Court in this disposed Case. Because of the lawful seizure, F.D.I.C., of BankUnited, FSB,

BankUnited, e.g.:

a. Had no right to enforce any note;

b. Had no right to sue Jennifer Franklin Prescott.
c. Was not any proper party;
d. Had no standing.

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8
 AUTOMATIC DISSOLUTION OF lis pendens NOTICE, AND
DEMAND FOR RECORDING UNDER RULE 1.420(f), FLA.R.CIV.P.
3. NOTICE IS HEREBY GIVEN that the notice of lis pendens connected with the

08/12/2010 Final Disposition was automatically dissolved at said time pursuant to Rule

1.420 (f), Fla.R.Civ.P. Here, the notice, stipulation, or order shall be recorded.

WHEREFORE, Jennifer Franklin Prescott demands that the NOTICE OF AUTOMATIC

DISSOLUTION OF [FRAUDULENT] lis pendens, Rule 1.420 (f), be recorded accordingly.

See attached Docket.

FAILURE TO COMPLY WITH STATUTES AND STATE A CAUSE OF ACTION

4. If a party is not in possession of the original note and cannot reestablish it, the party

cannot prevail in an action on the note. In Dasma Investments, LLC v. Realty Associates

Fund III, L.P., 459 F.Supp.2d 1294 (S.D.Fla.2006) the court explained that in Florida a

promissory note is a negotiable instrument and that a party suing on a promissory note,

whether just on the note itself or together with a foreclose on a mortgage securing the note,

must be in possession of the original of the note or reestablish the note pursuant to Fla. Stat.

§ 673.3091. Shelter Dev. Group, Inc. v. Mma of Georgia, Inc., 50 B.R. 588, 590 (Bkrtcy.

S.D. Fla.1985).

LAWFULLY SEIZED BANKUNITED’S FAILURE TO COMPLY WITH CH. 673, F.S.

5. A party must comply with section 673.3091, Florida Statues, in order to enforce a lost,

destroyed or stolen negotiable instrument. Here, lawfully seized BankUnited, FSB [F.D.I.C.

seizure]

a. FAILED to state that the creditors ever received possession of any original
promissory note;
b. FAILED to state a cause of action;
c. FAILED to satisfy the conditions precedent to sue, Ch. 673, Florida Statutes;
d. COULD NOT possibly have complied with section 673.3091, Florida Statues.

RECORD LACK OF promissory note

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6. The original document that is generally required to be filed with the court in a mortgage

foreclosure proceeding is the promissory note, not the mortgage. The Evidence Code

provides the rationale for this conclusion. Section 90.952, Florida Statutes (2002), indicates

that original documents are required to prove the contents of a writing.

7. A promissory note is a negotiable instrument within the definition of

section 673.1041(1), and either the original must be produced, or the lost document must be

reestablished under section 673.3091, Florida Statutes (2002). See Mason v. Rubin, 727 So.

2d 283 (Fla. 4th DCA 1999); see also Downing v. First Nat'l Bank of Lake City, 81 So. 2d

486 (Fla. 1955); Thompson v. First Union Nat'l Bank, 673 So. 2d 1179 (Fla. 5th DCA 1994);

Figueredo v. Bank Espirito Santo, 537 So. 2d 1113 (Fla. 3d DCA 1989).

LAWFULLY SEIZED BANKUNITED HAD NO right to the payment of money

8. Here, no writing on file evidenced any right to the payment of money by lawfully seized

bankrupt bank BankUnited, FSB, Ch. 673, Florida Statutes.

JENNIFER FRANKLIN PRESCOTT DEMANDED PROTECTION FROM FRAUD

9. Because it is negotiable, the promissory note must be surrendered in a foreclosure

proceeding so that it does not remain in the stream of commerce. Indeed, if the foreclosing

party alleges that the note is lost, destroyed or stolen, the trial court is authorized by statute

to take the necessary actions to protect the party purportedly required to pay the note against

loss that might occur by reason of a claim by another party to enforce the instrument. See

section 673.3091(2), Fla. Stat. (2002).

10. A mortgage is the security for the payment of the negotiable promissory note, “and is a

mere incident of and ancillary to such note.”

08/12/2010 FINAL DISPOSITION FOR LACK OF “proper plaintiff”

LAWFULLY SEIZED BANKUNITED, FSB, HAD NO interest & NO standing

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11. Here, the admitted loss, the time and manner of which was unknown, was

a. “the result of a transfer or lawful seizure”, [F.D.I.C.], Ch. 673, Florida Statutes;
b. precluded any establishment of any agreement and/or breach of contract.

BUSTED BANKUNITED FAILED ITS BURDEN

12. Here, the burden was on lawfully seized BankUnited, i.e., the party seeking to enforce

the lost “instrument”. See § 673.3091(2), Fla. Stat. (2008).

PROVEN INVALIDITY OF RECORD

13. Furthermore here, the invalidity had been proven in the pleadings, Fla. Stat. § 673.3081

(2008).

14. A court will not enforce an instrument unless the defendant will be adequately protected

against future claims on the lost note. Perry v. Fairbanks, 888 So.2d 725, 727, (Fla. 5d DCA

2004).

15. Here, lawfully seized BankUnited FSB, did not have standing to bring and/or maintain

any mortgage foreclosure action against Jennifer Franklin Prescott, because it had proven on

the record that it did not hold any note and /or mortgage. Here, said admitted and known

non-holder of any note had no standing to seek any enforcement of the fictitious note.

“LAWFUL SEIZURE”, FDIC, OF BANKUNITED, FSB’S PROPERTY & NOTES

16. The property of bankrupt BankUnited, FSB, was “lawfully seized“, Ch. 673, Florida

Statutes. Here in particular, any and all notes and mortgages in the name of failed

BankUnited, FSB, were lawfully seized. Here, lawfully seized BankUnited, FSB:

a. was not a proper party to bring this facially fraudulent action;

b. failed to state a cause of action;
c. could never, under any circumstances, be the proper plaintiff to bring any
foreclosure action against Jennifer Franklin Prescott.

“LAWFUL SEIZURE” OF BUSTED BANKUNITED, FSB

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17. The admitted loss of the fictitious promissory note was due to lawful seizure of

bankrupt BankUnited, FSB, and/or transfer. Here, lawfully seized BankUnited was not

entitled to enforce the fictitious note.

SEIZED BANKUNITED FAILED TO COMPLY WITH CONDITION PRECEDENT

18. Here, lawfully seized BankUnited could not have possibly satisfied the absolutely

required “condition precedent”, Ch. 673, Florida Statutes.

FRAUDULENT & FALSE PRETENSES - MATERIAL MISREPRESENTATION

19. “BankUnited, FSB”, fraudulently pretended:

“9. On February 15, 2006, Franklin Prescott executed and delivered a promissory
note to Bankunited …” “Complaint”, p. 3.

Here on 02/15/2006, BankUnited had not even legally existed.

“16. Plaintiff owns and holds the note and mortgage.” “Complaint”, p. 5.

“6. Said [fictitious] 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.” “Complaint”, p. 3.

Here, bankrupt BankUnited did not hold or own any note and mortgage. Here, any and

all notes and mortgages had been seized by a U.S Agency. Here, there was fraud on the

Court, Fla. R. Civ. P. 1.540.

THIS COURT’S AUTHORITY TO SANCTION SEIZED BANK’S ATTORNEY(S)

20. This court has ample authority to sanction lawyers and lenders asserting improper and

facially fraudulent foreclosure claims. Here, Federal Agents had lawfully seized bankrupt

BankUnited, FSB. This court’s authority to sanction crooked attorneys is explicit in Florida

law and implicit in the courts' inherent power to sanction bad faith litigation.

21. Any party seeking to foreclose a mortgage without a good faith belief in the facts giving

rise to the asserted claim may be sanctioned “upon the court's initiative.” § 57.105(1), Fla.

Stat.
12
22. This statute affords judges the authority to immediately impose significant penalties for

bringing unfounded litigation. See Moakely v. Smallwood, 826 So. 2d 221, 223 (Fla. 2002),

citing United States Savings Bank v. Pittman, 80 Fla. 423, 86 So. 567, 572 (1920)

(sanctioning attorney for acting in bad faith in a mortgage foreclosure sale).

CONFIRMED CANCELLATION

23. On 09/02/2010, at 11:20 AM, the Clerk inside Hearing Room 4-1, Naples Courthouse,

and Bailiff D. Chenoweth confirmed the cancellation of the unauthorized “hearing” before

judicial imposter “Tony Perez” and/or Antonio J. Perez-Benitoa.

24. The Court explained that Perez-Benitoa was “under contract with” this Court for “one

day per week”. The Court did not disclose “Tony Perez’ credentials.

25. Franklin Prescott contacted the Florida Bar in this matter.

26. Pursuant to the Magistrate’s Office, Debbie, Supervisor, Melanie [09/02/2010, AM], the

“09/02/2010 hearing” before judicial imposter “Tony Perez” was cancelled.

27. Here, the law required use of the legal name of any judicial officer. “Tony Perez” is not

any legal name.

NOTICE OF UNTIMELY “notice” and “entry”

28. On the day of the unauthorized hearing, 09/02/2010, the “notice of hearing” appeared

for the first time. On 09/01/2010, said “notice” had not appeared on the Docket.

IMPROPER USE OF NON-LEGAL NAME – JUDICIAL IMPOSTER “Tony Perez”

29. NOTICE IS HEREBY GIVEN of Jennifer Franklin Prescott’s cancellation of

unauthorized “09/02/2010 hearing” because there was

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 a. Non-consent by J. Franklin Prescott;
b. No order of referral to any magistrate;
c. No notice of hearing;
d. No setting party of record;
e. No jurisdiction;
f. No standing.

Here, seized and bankrupt BankUnited, FSB, had no standing and could not have possibly

been any party.

30. Pursuant to the Magistrate’s Office, Supervisor Debbie, Rose, 239-252-8870

a. Jennifer Franklin Prescott faxed her filed and recorded NOTICE OF NON-
CONSENT and NOTICE OF OBJECTION to the Magistrate’s Office;
b. Jennifer Franklin Prescott’s MOTION TO DISMISS is not to be heard in the
record absence of any notice of hearing required under the Rules. See Docket of this
disposed Case.
31. NOTICE IS HEREBY GIVEN of Jennifer Franklin Prescott’s service of NOTICE OF

DISPOSITION AND NON-CONSENT upon the magistrate and/or Antonio J. Perez-Benitoa

at:

a. Magistrate’s Office, c/o Supervisor Debbie, Rose

Naples Courthouse
5th Floor
Naples, FL 34112,
T: 252-8331, F: 252-8870 and

b. Antonio J. Perez-Benitoa, P.A.

900 Sixth Avenue South
Suite 303
Naples, Florida 34102
Telephone: 239-430-1884
Fax: 239-30-1885
http://www.tonypblaw.com

32. Jennifer Franklin Prescott, record holder of unencumbered title to the subject property

[address: 25 6th ST North, Naples, Florida 34102] does not consent and objected to any

referral to any magistrate, hearing officer, and/or “special master”, Rule 1.490, Florida

Rules of Civil Procedure.

14
 JENNIFER FRANKLIN PRESCOTT’S OBJECTIONS TO ANY magistrate

33. In particular, J. Franklin Prescott objects and did not consent to any magistrate

a. findings of fact;
b. conclusions of law.

MEMORANDUM

“A REFERRAL TO A MAGISTRATE REQUIRES THE CONSENT OF ALL

PARTIES.” JENNIFER FRANKLIN PRESCOTT IS ENTITLED TO HAVE THIS
MATTER HEARD BY A JUDGE AND DOES NOT WANT TO HAVE THIS
MATTER HEARD BY ANY MAGISTRATE. JENNIFER FRANKLIN PRESCOTT
FILE A WRITTEN OBJECTION TO FICTITIOUS referral PRIOR TO
COMMENCEMENT OF THE HEARING.

Here, no hearing can possibly commence.

PUBLICLY RECORDED 08/12/2010 FINAL DISPOSITION

34. On 08/12/2010, Def. Judge Hugh D. Hayes disposed of the fraudulent action.

NO order of referral

35. Here, there were

a. 08/12/2010 Final Disposition;

b. No order of referral;
c. No notice of any hearing;
d. J. Franklin Prescott’s non-consent and objection to any magistrate referral and
hearing.

RECORD LACK OF note and mortgage

36. Here, in the recorded absence of any note and/or mortgage, there was

a. No agreement;

15
 b. No debt;
c. No lien;
d. No BankUnited interest.

LACK OF TIMELY NOTICE OF ANY hearing

37. Court staff asserted and published:

“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. The Judges’ and
Magistrates ask that no courtesy copies be sent to their offices on foreclosure cases
only. The setting party/attorney is responsible for preparing and filing the Order of
Referral pursuant to Rule 1.490, Fl. Civil Rules of Court (also can be found at
www.ca.cjis20.org/web/main/magistrates as a reference, no more signed Order of
Referrals from the above website will be accepted). You will be required to submit
your proposed Order of Referral to the appropriate Judge for each hearing in front
of the Magistrate. This will include all hearings for 10, 15 or 30 minutes and
Special Set hearings. (This will also include any Summary/Default Judgment
hearings requesting more than 5 minutes.)”

Here, no notice was served on Jennifer Franklin Prescott. Here, nothing, no matter, and no

hearing were noticed in violation of the Florida Rules of Civil Procedure.

BANKUNITED, FSB’S LACK OF standing

38. Pursuant to § 48.23, Fla. Stat.,

“1. A notice of lis pendens must contain the following:

a. The names of the parties.”

Here, the fraudulent notice of lis pendens “contained” “BankUnited, FSB”. However here,

said BankUnited was not any note/mortgage holder or party. Here, U.S. agents had seized

BankUnited, FSB.

39. Furthermore here, Jennifer Franklin-Prescott was mischaracterized as a “married woman”

and “Walter Prescott” as “her husband”. However here, “Walter Prescott” is not the

16
 “husband” of Jennifer Franklin Prescott. Here, the notice of lis pendens did not contain the

parties’ names.

NO jurisdiction

40. Here, “BankUnited, FSB” was

a. Not any party;

b. Had no interest;
c. Had no standing.

Here, bankrupt BankUnited, FSB, had no standing, and this Court has no jurisdiction.

RECORD APPEAL - NO jurisdiction

41. Here after disposition and J. Franklin Prescott’s Notice of Appeal, this Court had no

jurisdiction:

NOTICE OF RELEASE & DISCHARGE OF FRAUDULENT lis pendens, CH. 48, F.S.

42. The fraudulent notice of lis pendens, purported INSTR 4318185, Collier County

Records, has been released and discharged. Here admittedly, no note or mortgage could be

established, Ch. 48, 71, F. S. Purported Plaintiff bankrupt BankUnited failed and was

seized. In the record absence of any note or mortgage, said seized bank’s fraudulent action

and notice were null & void and did not operate as a lis pendens, Ch. 48.

43. Furthermore, a lis pendens is not effectual for any purpose beyond 1 year from the

commencement of the action and expires, § 48.23, Florida Statutes.

44. Here, the pleadings conclusively proved that no action could be founded on any lost

and/or destroyed note and/or instrument. Therefore, the bankrupt and seized bank’s non-

17
 meritorious action not possibly affect the subject property, and the court controlled and

discharged the fraudulent notice of lis pendens, § 48.23, Fla. Stat. The Docket showed the

08/12/2010 Final Disposition by Def. Judge Hugh D. Hayes.

08/12/2010 FINAL DISPOSITION, FLA.R.CIV.P. 1.998

45. Hereby, prevailing Jennifer Franklin Prescott filed the Final Disposition Form pursuant to

Florida Rules of Civil Procedure 1.998, 25.075, Florida Statutes. The Docket evidenced

Judge Hugh D. Hayes’ 08/12/2010 Final Disposition before any hearing.

46. Here, the Docket and official record alterations were

a. Arbitrary and capricious;

b. Unlawful.
WHEREFORE, Jennifer Franklin Prescott hereby again demands

1. An Order for the recording of the automatic dissolution of [fraudulent] notice of lis

pendens pursuant to Rule 1.420, Fla.R.Civ.P.;

2. An Order taking judicial notice, Ch. 92, Fla. Stat., of Ch. 673, Fla. Stat., and the “lawful

seizure” [F.D.I.C.] of busted BankUnited, FSB;

3. An Order taking judicial notice of Ch. 673, 59, 90, and 92, Fla. Stat.;

4. An Order sanctioning the attorneys of lawfully seized BankUnited, FSB, for their

unfounded and fraudulent action;

5. An Order directing judicial imposter “Tony Perez” to use and disclose his legal name.

CERTIFICATE OF SERVICE AND PUBLICATION

I HEREBY CERTIFY that a true and correct copy of the above has been furnished to the
purported non-plaintiff, James E. Albertelli, Erin Quinn Rose, and Erin Rowland, Albertelli Law,
P.O. Box 23028, Tampa, FL 33623, judicial imposter “Tony Perez”, Magistrate’s Office, Debbie,
Supervisor, Fax: 239-252-8870, and Defendant Judge Hugh D. Hayes, Naples Courthouse, 3301
E. Tamiami Trail, Naples, FL 34112, on this 3rd day of September, 2010.
The pleading is also being published worldwide.

18
________________________
/s/Jennifer Franklin Prescott, Prevailing Victim of lawfully seized BankUnited’s record fraud

19