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BANKUNITED,
non-successor in interest to [lawfully seized] BANKUNITED, FSB.,
purported plaintiff(s),
vs.
DISPOSED CASE NO.: 09-6016-CA
3. On 02/12/2011, the Docket showed a “notice of hearing” which was “amended”. Here, the
notice did not pertain to Jennifer Franklin-Prescott and/or the disposed action but to “Pedro
this disposed action. Any hearing and/or any motion for summary disposition would be
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(Fla. 5th DCA 1997); Destiny Constr. Co. v. Martin K. Eby Constr., 662 So. 2d 388, 390 (Fla.
5th DCA 1995).
RECORD ABSENCE OF NOTE AND CONDITIONS PRECEDENT
9. Here, no genuine properly executed note had existed. Copies of a null and void
note/mortgage and/or hearsay were not admissible under the Code of Evidence. Here, there
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16. The “complaint” and above “Notice(s) of Filing” established the purported note as null and
void. Furthermore, the non-genuine copies (prima facie hearsay) in the complaint and
“Notices of Filing” fatally conflicted.
“PARTIES” TO ALLEGED NOTE WERE CONFLICTING AND AMBIGUOUS
17. In this disposed action, the purported “plaintiff” did not assert any valid note and mortgage
assignment status in the complaint. A security could not possibly follow a non-existent note.
18. Here, there was no assignee of any note. Here, no promissory note and no note assignment
were recorded. See Collier County Public Records. However, assignments must be recorded
to be valid against creditors and subsequent purchasers. § 701.02, Fla. Stat. (2010). See also,
Glynn v. First Union Nat’l. Bank, 912 So. 2d 357, 358 (Fla. 4th DCA 2005).
19. In this disposed action, the named parties plaintiffs, and/or borrowers were conflicting and
ambiguous:
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Prescott had filed her answer(s) and motions to dismiss and proven plaintiff’s lack of
standing, which was one of the ultimate affirmative defenses. Here, the record reflected
that plaintiff could not possibly re-establish the note and that no authentic note could possibly
be proven under the Evidence Code.
FRAUD ON THE COURT & RECORD EVDENCE THEREOF
23. Here however, “plaintiff(s)”, BankUnited and BankUnited, FSB, fraudulently asserted:
“that all conditions to the institutions of this action have occurred, been performed or
excused …”
24. Prior to the 08/12/2010 disposition, plaintiff had failed to re-establish and could not have
possibly re-established the destroyed and/or lost note/mortgage. Here, the time and manner
of the loss/destruction had been uinknown. See UCC §§ 3-309; 3-305.
02/12/11 DOCKET SHOWED FRAUD EVIDENCE & DEMAND IN DISPOSED ACTION
25. Prescott who is in the Pacific had given her notice of unavailability. In this disposed action,
Prescott could not possibly be expected to appear under said entirely unreasonable
UNAUTHORIZED ATTORNEYS
26. “Rose, Erin M.” was the only attorney authorized in this disposed action.
Here unlawfully, various unknown “attorneys” appeared without any authority and falsely
pretended a “hearing”.
RECORD FRAUD ON THE COURT
27. This court knows about the fraud on the Court perpetrated by BankUnited & Albertelli Law:
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In this disposed action, any hearing and/or motion for summary disposition were unauthorized
and improper.
BANKUNITED HAD NO VALID SECURITY INTEREST
28. In Florida, a security interest in a mortgage and/or the assignment of a mortgage must be
recorded in order to perfect the security interest in the mortgage. Here, no valid BankUnited
security interest existed.
DEMAND OF LIS PENDENS BOND
29. Florida Statutes, section 48.23, governs the use of a lis pendens, and treats a lis pendens as
one of two types. Here, the purported invalid lis pendens was not founded on a duly recorded
instrument. Here, the purported promissory note was destroyed, lost, and/or transferred.
See Complaint. Furthermore here, there was the lawful seizure of bankrupt BankUnited
and/or an alleged transfer/sale. Here, the missing note/mortgage could not have possibly
been reestablished and/or enforced. § 48.23(3), Fla. Stat. (1993) authorizes the trial court to
"control and discharge the notice of lis pendens as the court may grant and dissolve
injunctions." Here, Prescott appears to be entitled to a lis pendens bond.
30. Here, Prescott showed that the bond is necessary to protect her from irreparable harm after
the disposition. Here, the lis pendens was not based on a recorded genuine instrument. See
Feinstein v. Dolene, Inc., 455 So.2d 1126, 1128 (Fla. 4th DCA 1984).
31. Here, the note was missing and the lis pendens was unjustified. See Florida Communities
Hutchinson Island v. Arabia, 452 So.2d 1131, 1132 (Fla. 4th DCA 1984). Here, the null and
void lis pendens placed a cloud on the title that did not exist. See Andre Pirio Assocs. v.
Parkmount Properties, Inc., N.V., 453 So.2d 1184, 1186 (Fla. 2d DCA 1984).
32. In this disposed action, the bond is simply mandatory. See Porter Homes, Inc. v. Soda, 540
So.2d 195, 196 (Fla. 2d DCA 1989)(where a lis pendens is not founded upon a lawsuit
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involving a recorded instrument, section 48.23(3) "requires the posting of a bond."). See
Machado v. Foreign Trade, Inc., 537 So.2d 607, 607 n.1 (Fla. 3d DCA 1988); Munilla v.
Espinosa, 533 So.2d 895 (Fla. 3d DCA 1988).
CONTESTED SIGNATURE ON PURPORTED NOTE
33. Here, the signature on the purported note was contested and not authentic. There was no
notarial acknowledgment. See evidence on file.
ALL PLEADINGS WERE SIGNED
34. Here, all of Franklin-Prescott’s pleadings were signed (“/s/ Jennifer Franklin-Prescott”).
NOTICE OF INTERLOCUTORY APPEAL FROM HEARING IN DISPOSED ACTION
35. Here, more than one hearing appeared on the Docket after said 08/12/2010 disposition and
Franklin-Prescott appeals from the unauthorized scheduling of hearings in this disposed
action.
AFFIRMATIVE DEFENSES PRIOR TO DISPOSITION
FIRST AFFIRMATIVE DEFENSE: FAILURE TO PRODUCE ORIGINAL NOTE
36. A person seeking enforcement of a lost, destroyed or stolen instrument must first prove
entitlement to enforce the instrument WHEN the loss of possession occurred, or has directly
or indirectly acquired ownership of the instrument from a person who was entitled to enforce
the instrument when loss of possession occurred. Further, he must prove the loss of
possession was not the result of a transfer by the person or a lawful seizure; and the person
cannot reasonably obtain possession of the instrument because the instrument was destroyed,
its whereabouts cannot be determined, or it is in the wrongful possession of an unknown
person or a person that cannot be found or is not amenable to service of process. 673.3091
Fla. Stat. (2009).
37. Here, Franklin-Prescott had denied the purported “plaintiff” has ever had possession of the
alleged note and/or mortgage. Plaintiff could not establish foundation to show possession of
the note WHEN the loss of possession occurred. Plaintiff could not establish that plaintiff
lost possession of the note after it was transferred to the Plaintiff and that it could not
reasonably obtain possession thereof. Absent such proof in this disposed action, plaintiff
had been required by Florida Law to provide the original note and mortgage. Having failed
to provide the original note and mortgage at the time of filing, Plaintiff could not sue and/or
maintain this disposed action.
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38. Here, the Plaintiff could not prove the terms of the instrument and the plaintiff bank’s right to
enforce the alleged instrument. The court may not enter judgment in favor of the person
seeking enforcement unless it finds that the person required to pay the instrument is
adequately protected against loss that might occur by reason of a claim by another person to
enforce the instrument. Fla. Stat. 673.3091(2). In this disposed action, Franklin-Prescott
specifically had been denying all necessary terms of the note are provided in the attached
mortgage/note. Clearly, since the note is missing, necessary endorsements on the note are
missing; as such, essential terms and conditions precedent were not provided by the plaintiff.
UNCLEAN HANDS DEFENSE
39. Prescott had asserted and proven (another affirmative defense) that the plaintiff(s) had failed
to follow Florida law of negotiable instruments and including, e.g., obtaining necessary
signatures, acknowledgments, recordations, assignments, and/or endorsements on the
purported non-authentic promissory note and mortgage deceptively submitted to this Court
as alleged debt evidence. As such, the plaintiff came to this court with unclean hands.
WHEREFORE Jennifer Franklin-Prescott respectfully demands
1. An Order determining that the invalid lis pendens was not founded upon a duly recorded
authentic instrument therefore requiring a bond to prevent further irreparable harm following
the 08/12/2010 disposition;
2. An Order declaring the purported “plaintiff” in this disposed action without any authority to
sue, foreclose, and/or demand any payment from Jennifer Franklin Prescott;
3. An Order declaring any hearing unauthorized in this disposed action;
4. An Order declaring the prima facie sham “motion” and “affidavits” unlawful in this
previously disputed and disposed action;
5. An Order declaring the purported note and/or mortgage unenforceable;
6. An Order taking judicial notice of the prima facie unenforceability of the unrecorded, un-
assignable, and unpaid mortgage (unpaid mortgage taxes);
7. An Order declaring the purported “plaintiff” to be in violation of Fed.R.Civ.P. 1.510 in this
disposed and previously controverted action;
8. An Order declaring the purported 2009 “lis pendens” invalid on its face and taking judicial
notice of the nullity of the lis pendens and unenforceable mortgage and/or note;
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9. An Order declaring said affidavits “hearsay” and lacking any legal and/or factual basis in
the absence of any authentic “note” and/or mortgage;
10. An Order taking judicial notice of the lack of any genuine “note”, “plaintiff’s” proven fraud
on the Court, opposition, opposition evidence, and case law as to this disposed case;
11. An Order prohibiting Counsel and/or Jason M. Tharokh, Esq., who did not file any notice
from appearing in this disposed action.
Respectfully,
/s/Jennifer Franklin-Prescott, BankUnited foreclosure fraud victim
ATTACHMENTS
Docket, et al.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this NOTICE IN DISPOSED ACTION has been
delivered to BankUnited, Albertelli Law, P.O. Box 23028, Tampa, FL 33623, USA, the Clerk of
Court, and Hon. Hugh D. Hayes, Courthouse, Naples, FL 34112, USA, on February 12, 2011,
Pacific Time.
Respectfully,
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2/12/2011 Public Inquiry
Home / Records Search / Court Records / Public Inquiry / Search Results - A LL / C ase - 112009C A0060160001XX
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.
apps.collierclerk.com/…/Case.aspx?UC… 1/1
2/12/2011 Public Inquiry
Home / Records Search / Court Records / Public Inquiry / Search Results - A LL / C ase - 112009C A0060160001XX
apps.collierclerk.com/…/Case.aspx?UC… 2/3
2/12/2011 Public Inquiry
Home / Records Search / Court Records / Public Inquiry / Search Results - A LL / C ase - 112009C A0060160001XX
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.
apps.collierclerk.com/…/Case.aspx?UC… 1/1