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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

SECOND DISTRICT, POST OFFICE BOX 327, LAKELAND, FL 33802-0327

CASE NO.: 2D11-1003


L.T. No.: 09-6016-CA

Jennifer Franklin-Prescott, v. “BankUnited”


Walter Prescott, et al.,
_____________________________________________________________________
Appellants/Petitioners, Appellee / Respondent(s).

MOTION TO ENJOIN LOWER TRIBUNAL FOR LACK OF JURISDICTION

UNLAWFUL NON-FINAL ORDER BY LOWER TRIBUNAL

1. Here without any authority, the lower tribunal set non-jury trial before the case was

even “at issue” and even though defendants were entitled to trial by jury:

CIRCUIT COURT LACKS JURISDICTION

2. The Circuit Court lacks jurisdiction to enter [final] judgment in the present case. See,

e.g., Brewer v. Solovsky, 899 So. 2d 497, 498 (Fla. 4th DCA 2005); Katz v. NME

Hosps., Inc., 791 So. 2d 1127, 1128 (Fla. 4th DCA 2000) (citing the Committee Note

to Rule 9.130(f) in ruling that the lower court loses jurisdiction to enter final

judgment as long as an appeal from a non-final order is pending); Jones v. Jones,

703 So. 2d 501, 501 (Fla. 1st DCA 1997) ("Under subsection (f), therefore, the `lower

tribunal is divested of jurisdiction to enter a final order disposing of the case' while

an appeal [of a non-final order] is pending. Fla. R. App. P. 9.130(f)(Committee

Notes)."); Imperatore v. NationsBank of Fla., N.A., 677 So. 2d 933, 935 (Fla. 4th DCA
1996). See also Napoleonic Soc'y of Am., Inc. v. Snibbe, 696 So. 2d 1243, 1243

(Fla. 2d DCA 1997) (treating final order entered in violation of Rule 9.130(f) as a

"nullity" … because Rule "9.130(f) prohibits the trial court from rendering a final

order during the pendency of appellate review of a non-final order").

MEMORANDUM IN SUPPORT OF LOWER TRIBUNALS LACK OF JURISDICTION

3. Here, “Defendants” had raised the issue of the circuit court's lack of jurisdiction to

enter final judgment. The Supreme Court, in Polk County v. Sofka, 702 So. 2d

1243, 1244-45 (Fla. 1997), refused to decide merits where a case came from a

court that lacked jurisdiction to enter judgment. In Sofka, the Florida Supreme

Court refused to review a question the Second District had certified to it, explaining

that "courts are bound to take notice of the limits of their authority and if want

of jurisdiction appears at any stage of the proceedings, original or appellate, the

court should notice the defect and enter an appropriate order." West 123 Feet v.

City of Orlando, . . . 86 So. 197, 198-99 ([Fla.] 1920). This is because the limits of a

court's jurisdiction are of "primary concern," requiring the court to address the

issue "sua sponte when any doubt exists." See Mapoles v. Wilson, 122 So.2d 249,

251 (Fla. 1st DCA 1960). Id. at 1245.

[The parties in Sofka had stipulated to the district court's jurisdiction to hear

an appeal from a lower court, and the district court had proceeded to hear the

appeal. Instead of deciding the merits of the case when it reached the

Supreme Court, our Supreme Court quashed the Second District's decision,

on grounds that the district court lacked jurisdiction to make the decision

which the petitioner sought review of in the Supreme Court.]


THE CIRCUIT COURT HAD NO JURISDICTION AND ERRED

4. “A jurisdictional rule cannot be altered by the court or by agreement of the

parties." See Metellus v. State, 900 So. 2d 491, 495 (Fla. 2005).

“NON-FINAL NOTICES OF APPEAL AND ORDER” ON FILE

5. Appeal Clerk Cheryl Bishop erred and did not properly identify defendants’ “Non-

Final Notice of Appeal and Order”. See Bishop’s attached 02/22/2011 letter to

James Birkhold.

INTERLOCUTORY APPEALS OF RECORD AND CLARIFICATION

6. Again, Walter Prescott, Jennifer Franklin-Prescott, et al., hereby clarify their

“02/18/2011” and “02/24/2011” Interlocutory Appeal(s):

RECORD OF NOTICES OF “INTERLOCUTORY APPEALS”

7. Here, defendant(s) had prayed for “proper processing of their Notice(s) of

Interlocutory Appeal:

“WHEREFORE Jennifer Franklin-Prescott respectfully demands


1. Proper processing of this NOTICE OF APPEAL and/or INTERLOCUTORY
APPEAL;” See 02/24/2011 Non-Final Notice of Appeal.

RECORD COURT ERROR

8. Here, there was court error as evidenced by this Court’s erroneous entry of

Appellants’ Non-final Notice as “Final Civil Other Notice from Collier County”. See

attached DCA Docket.

ADOPTION BY REFERENCE OF NON-FINAL APPEAL NOTICES IN PLEADING


9. “Defendants” hereby adopt by reference their previous “02/18/2011” and

“02/24/2011” Non-Final Notices of Appeal in this Pleading.

THIS COURT HAS JURISDICTION

10. These proceedings are “an appeal of a non-final order pursuant to Florida Rule of

Appellate Procedure 9.130”, and this Court has jurisdiction. Here, Prescott’s,

Franklin-Prescott’s, et al., Appeals were cognizable, e.g., under Florida Rule of

Appellate Procedure 9.130.

“DEFENDANTS” WERE ENTITLED TO APPELLATE REVIEW

11. Here, a non-final order met the standards for the issuance of an extraordinary writ

and/or came within the orders enumerated in Florida Rule of Appellate Procedure

9.130 and was appealable. See Rule 9.130(a).

12. Here, said non-final order permitted appellate review before the trial proceedings

are complete, and said Appellants Prescott, Franklin-Prescott, et al., have been

invoking the proper method for this Court’s review.

13. Florida Rule of Appellate Procedure 9.130(a) states:

RULE 9.130. PROCEEDINGS TO REVIEW NON-FINAL ORDERS AND


SPECIFIED FINAL ORDERS
(a) Applicability.
(1) This rule applies to appeals to the district courts of appeal of the non-final
orders authorized herein and to appeals to the circuit court of non-final orders
when provided by general law. Review of other non-final orders in such
courts and non-final administrative action shall be by the method prescribed
by rule 9.100.
(3) Appeals to the district courts of appeal of non-final orders are limited to
those that
(A) concern venue;
(B) grant, continue, modify, deny, or dissolve injunctions, or refuse to modify
or dissolve injunctions;
(C) determine
(i) the jurisdiction of the person;
(ii) the right to immediate possession of property …
14. Here, defendants had properly asserted/identified three basic avenues of and their

entitlement to appellate review:

a. Review of interlocutory orders permitted by Rule 9.130;

b. Review by extraordinary writ; and

c. Review of final orders.

15. Defendants have the right to take their non-final appeal within 30 days of the order

sought to be reviewed or the order can be reviewed at the end of the case. [If

defendants had not chosen to take their interlocutory appeals, they could have still

appealed that order at the end of the case.]

DEMAND FOR COMMON LAW RELIEF

16. Here, Prescott, Franklin-Prescott, et al., have also asked that their Notices of

Appeal be treated as petitions for writ of certiorari (common law remedy).

RECORD OF 08/12/2010 DISPOSITION

17. The lower tribunal had previously disposed of the wrongful foreclosure action for,

e.g., lack of “BankUnited’s” standing and failure to state a cause of action. Said

bank and bankrupt “BankUnited, FSB’s” founder, Alfred Camner, Esq., had alleged

the UNKNOWN destruction and/or loss of mortgage and/or note.

“ORDER” DEFINED

18. The term “order” Is broadly defined to include all final and interlocutory rulings of a

lower tribunal.
“FINALITY” RULE

19. The Court(s) knew the basic rule that a judgment or order is final if it brings to a

close all judicial labor in the lower tribunal. See GEICO Fin. Serv., Inc. v. Kramer,

575 So. 2d 1345, 1346 (Fla. 4th DCA 1991); Pruitt v. Brock, 437 So. 2d 768, 773

(Fla. 1st DCA 1983).

MOTION FOR CLARIFICATION UNDER RULE 9.330

20. This motion for clarification states with particularity

a. the points of law and/or fact that, in the opinion of the movants, the court has
overlooked or misapprehended in its decision;

b. the points of law or fact in the court’s decision that, in the opinion of the movant,
are in need of clarification.

Here, the movants include a request that the court issue a written opinion, because

they believe that a written opinion would provide a legitimate basis for supreme court

review.

21. Here, the order shall not be deemed rendered as to any party until all of the

motions are either abandoned or resolved by the filing of a written order.

CLEAR SHOW OF CAUSE - THIS APPELLATE COURT HAS JURISDICTION

22. Here, Prescott and Franklin-Prescott had shown cause:

“APPELLANTS’ RESPONSE TO COURT’S PREJUDICIAL “03/01/2010 ORDERS”,


NOTICE OF APPELLATE & LOWER COURTS’ ERRORS IN FAVOR OF BANK, AND
DEMAND FOR RELIEF AND INJUNCTION”
23. Appellants, Walter Prescott, Jennifer Franklin-Prescott, et al., conclusively

evidenced their rights to appeal and the jurisdiction of this Appellate Court as a

matter of law. No final order needed to be provided under the Rules.


ISSUES – SHOW OF CAUSE

24. Here clearly, Appellants

a. had the right to appeal a non-final order (interlocutory);


b. were not required to provide any final order.

Therefore here, this Court’s improper 03/01/2011 orders were prejudicial and

extended the “mass foreclosure” fraud-on-the-Court-scheme in the previously

disposed action. Here unlawfully, Defendant Clerk of the lower Court had

removed the final disposition record after “suggestion of bankruptcy”:

APPEAL CLERK’S ERROR ON THE RECORD

25. In her attached “02/22/2010” letter to Appellate Clerk James Birkhold, Appeal Clerk

Cheryl Bishop did not mark “Non-final Notice of Appeal and Order”. See attached

letter.

Said record error by the lower Court’s Appeal Clerk prejudiced the Appellants who

hereby demand correction and the striking of this Court’s two 03/01/2011 orders.

THIS APPELLATE COURT CLEARLY ERRED

26. On “March 1, 2011”, this Court allegedly wrote:

“Appellant shall show cause within fifteen days why this appeal should not be
dismissed for lack of jurisdiction, as appellant had failed to provide a copy of
the order appealed as required by Florida Rule of Appellate Procedure
9.110(d), and this court is unable thereby to determine its jurisdiction.”

THIS COURT KNEW THAT “APPELLANTS” NEED NOT PROVIDE FINAL ORDER

27. Here, this Court knew that

a. Defendants/Appellants were not required to provide a final order;


b. Appellant(s) had appealed from fraud on the Court, corruption, and/or a non-
final order pursuant to Florida Appellate Rules of Procedure 9.130 [and not
“9.110(d)”];
c. Appellants had not appealed from a “final order” under Rule 9.110(d);
d. Appellants were of course not required to provide a copy of any final order;
e. No “final order” was “rendered” and/or could have possibly been “rendered”.

SAID 03/01/11 ORDER WAS PREJUDICIAL AND FOR IMPROPER PURPOSES

28. Accordingly, this Court had jurisdiction, and said Order of this Court was

prejudicial because it was for improper purposes of keeping the “defendants”

away from this Court (fraud on the Court).

“DEFENDANTS” WERE ENTITLED TO APPELLATE REVIEW

29. Here, a non-final order met the standards for the issuance of an extraordinary writ

and/or came within the orders enumerated in Florida Rule of Appellate Procedure

9.130 and was appealable. See Rule 9.130(a).

30. Here, said non-final order permitted appellate review before the trial proceedings

are complete, and said Appellants Prescott, Franklin-Prescott, et al., have been

invoking the proper method for this Court’s review.

31. Florida Rule of Appellate Procedure 9.130(a) states:

RULE 9.130. PROCEEDINGS TO REVIEW NON-FINAL ORDERS AND


SPECIFIED FINAL ORDERS
(a) Applicability.
(1) This rule applies to appeals to the district courts of appeal of the non-final
orders authorized herein and to appeals to the circuit court of non-final orders
when provided by general law. Review of other non-final orders in such
courts and non-final administrative action shall be by the method prescribed
by rule 9.100.
(3) Appeals to the district courts of appeal of non-final orders are limited to
those that
(A) concern venue;
(B) grant, continue, modify, deny, or dissolve injunctions, or refuse to modify
or dissolve injunctions;
(C) determine
(i) the jurisdiction of the person;
(ii) the right to immediate possession of property …
32. Here wrongfully, the Court(s) did not “grant an injunction” even though the lower

Court and “BankUnited” perpetrated fraud on the Court and deliberately

deprived Walter Prescott, Jennifer Franklin-Prescott, et al., of due process and their

fundamental rights to, e.g., jury trial and disposition in Appellants’ favor.

33. This Court and the lower Court have known that “BankUnited” had no standing and

no right to sue Prescott, Franklin-Prescott, et al.

34. This Court and the lower Court know that “BankUnited” had no right to schedule

hearings after the lower court had disposed the wrongful foreclosure action on

08/12/2010:

35. The lower court’s record evidenced that 3 (three) prima facie unlawful and

unauthorized hearings were scheduled after said 08/12/2010 disposition:

36. § 28.29, Florida Statutes (2010), Recording of orders and judgments, states:

“Orders of dismissal and final judgments of the courts in civil actions shall be
recorded in official records…

Here, the 08/12/2010 disposition record was unlawfully removed from the official

record(s).

PREJUDICE EVIDENCE – FAILURE TO PROCESS INTERLOCUTORY APPEAL

37. On “02/24/2011”, Appellants/”defendants” in the previously disposed action had

filed their “NOTICE OF APPEAL FROM ROCKET DOCKET…” However here, the

Clerk did not process said Interlocutory Appeal:


Appellants demand correction of said fraud on the Court in favor of bank(s).

‘BankUnited’ HAD NO “RIGHT OF POSSESSION OF” DEFENDANT(S)’ PROPERTY

38. Here, “BankUnited” had no right to possession of defendant(s)’s property. Item

(C)(ii) of said Rule 9.1130 is intended to apply whether the property involved is

personal or real as here. It applies to cases in which a party seeks to take

possession and/or title to real property.

39. Here, said Rule applied to this appeal to the circuit court of a non-final order as

provided by general law.

40. The lower court had no authority to perpetrate fraud on the Court and deceive the

“defendants” about “BankUnited’s” lack of standing and lack of any right to foreclose

and sue Prescott and Franklin-Prescott

41. Here, the lower court’s record evidenced clear error and a proper appeal was

taken.

42. Here, the highly meritorious issues for appellate review were perfectly isolated,

identified, and framed, and this Court has jurisdiction to review.

APPEAL FROM FRAUD ON THE COURT, AND FRAUDULENT NON-FINAL ORDER

43. Fraudulently, “mass foreclosure” Judge Monaco set the previously disposed case

for non-jury trial in the record absence of any jurisdiction and/or authority.

UNLAWFUL HEARINGS DEFRAUDED W. PRESCOTT, J. F.-PRESCOTT, et al.

44. Florida Rule of Appellate Procedure 9.130 is entitled:


9.130. PROCEEDINGS TO REVIEW NON-FINAL ORDERS AND
SPECIFIED FINAL ORDERS

THE LOWER COURT MAY NOT RENDER ANY FINAL ORDER

45. Here, the corrupted lower Court may not render any final order:

(f) Stay of Proceedings. In the absence of a stay, during the pendency of a


review of a non-final order, the lower tribunal may proceed with all matters,
including trial or final hearing; provided that the lower tribunal may not render
a final order disposing of the cause pending such review.

THIS COURT KNOWINGLY MIS-APPLIED RULE 9.110

46. Here, this Court knowingly mis-applied said Rule 9.110 for improper purposes of,

e.g., promoting the 20th Judicial Circuit’s illegal “rocket docket” and concealing

“BankUnited’s” fraudulent robo-signing and affidavits:

9.110. APPEAL PROCEEDINGS TO REVIEW FINAL ORDERS OF LOWER


TRIBUNALS AND ORDERS GRANTING NEW TRIAL IN JURY AND NON-
JURY CASES

Here, this Court concealed designated certain instances in which interlocutory

appeals may be prosecuted under the procedures set forth in said Rule without any

requirement to provide a final order.

APPELLANTS WERE ENTITLED TO STAY IN PREVIOUSLY DISPOSED CASE

47. Stays of proceedings in lower tribunals should be liberally granted, in particular

if the interlocutory appeal involves fraud on the court and/or jurisdiction. See Rule

9.1130.

48. Here, both Courts knew that in the record absence of any reestablishment of the

destroyed and/or lost mortgage and note, “BankUnited” had never stated any

cause of action.
49. The lower Court’s Clerk erred when he/she listed bankrupt “BankUnited, FSB” as a

plaintiff:

NO RENDITION OF ANY FINAL JUDGMENT – NO PAYMENT REQUIRED

50. On “March 1, 2011”, this Court allegedly wrote:

“This appeal has been filed without a filing fee required by section 35.22(3),
Florida Statutes (2008).
Appellant[s] shall forward the required $300.00 filing fee or, if applicable, a
certificate or order from the circuit court finding appellant insolvent pursuant to
section 57.081 or 57.085, F.S. (2008), as applicable, within forty days from
the date of this order.”

51. Rule 9.110(b) provides that a party seeking to appeal must pay the required filing

fees within 30 days with the clerk of the lower court after the judgment is rendered.

Here, an appeal from a final order/judgment could not have possibly commenced,

because there was no rendition of any final judgment/order.

THIS COURT KNEW THAT NO “FINAL ORDER” WAS EVER RENDERED/FILED IN

DISPOSED WRONGFUL FORECLOSURE ACTION

52. This Court knew that the action had been disposed on 08/12/2010, and that no trial

could have ever possibly taken place. However, a [“final”] order must be “rendered”

before it is ripe for appeal.

53. For appellate purposes, the “rendition” date begins the jurisdictional period for filing

an appeal. The rules on rendition, however, are confusing. Rule 9.020(h) provides

that an order is not rendered until the clerk has actually filed the order signed by a
judge. Thus, contrary to popular opinion, an order is not rendered when the court

first announces its ruling or even when the order is signed by the judge.

PATTERN OF UNAUTHORIZED & UNLAWFUL ACTS

54. Here, three times in a row, the lower Court, Clerk, and “BankUnited” agreed to

schedule unauthorized hearings in a disposed wrongful foreclosure action, and

the “defendants” had demanded relief and/or an injunction:

COMMON LAW CERTIORARI WAS AVAILABLE IN DISPOSED WRONGFUL CASE

55. The common law writ of certiorari is available at any time. Said writ provides a

remedy for the clear departure from the essential requirements of law proven in this

case. Here, the lower tribunal deliberately deprived the “defendants” of their

fundamental rights under both the Federal and Florida Constitutions.

56. Otherwise irreparable harm will result from “robo” Judge Daniel R. Monaco’s

wrongful “mass foreclosure” fraud scheme in the previously disposed action.

ERRONEOUS UNLAWFUL RULING WAS APPEALABLE

57. Setting a previously disposed wrongful foreclosure case [in which “BankUnited”

had no standing, and which was not even at issue] for bench-trial was an

erroneous interlocutory ruling which can be corrected by resort to common law

certiorari.

58. Here, this Court and the lower Court knew that the Legislative Branch of

Government had instructed the Judicial Branch to illegally mass-reduce


the foreclosure rocket docket in order to “speed up the State’s economic

recovery”.

59. Here, Prescott, Franklin-Prescott, et al. have rights of review of, e.g., orders on

motions seeking relief from a previous court order on the grounds of, e.g., mistake,

fraud, satisfaction of judgment, or other grounds listed in Florida Rule of Civil

Procedure 1.540. Said “defendants” were clearly entitled to and demanded trial

by jury. The alleged destroyed and/or lost instruments could not be reestablished

as a matter of common law. Here, “rocket docket” robo Judge Monaco had no

authority to set the previously disposed case for non-jury trial.

APPELLANTS’/DEFENDANTS’ CHANGED ADDRESS OF RECORD

60. Hereby, Appellants restate their changed address of record:

Care/of Papanui PostShop


7 Main North Road, Papanui, Christchurch, 8053
New Zealand
WHEREFORE, said Appellants/Defendants in previously disposed respectfully demand

1. An Order clarifying said 03/01/2011 orders;

2. An Order enjoining any non-jury trial by the lower tribunal;

3. An Order restoring justice and the rule of law;

4. An Order staying proceedings in the objectively corrupted lower tribunal under

retired temporary Judge Daniel R. Monaco;

5. An Order prohibiting said mass foreclosure “rocket docket”;

6. An Order enjoining Clerk Brock from obstructing the “02/24/2011” Interlocutory

Appeal;
7. An Order directing proper processing of Appellants’ 02/18/2011 and 02/24/2011”

appeals;

8. An Order declaring that Appellants/Defendants in the previously disposed action

did not need to provide any [non-existent] final order;

9. An Order striking this Court’s two 03/01/2011 orders as erroneous and prejudicial.

Respectfully,

/s/Walter Prescott, foreclosure fraud victim

/s/Jennifer Franklin-Prescott, BankUnited foreclosure fraud victim

ATTACHMENTS

CERTIFICATE OF SERVICE

We hereby certify that a true and correct copy of this pleading has been delivered to

“BankUnited”, “Albertelli Law”, P.O. Box 23028, Tampa, FL 33623, USA, the Clerk of

Appellate Court, Mr. Birkhold, the Clerk of lower Court, Hon. Hugh D. Hayes, and

retired “rocket docket” Judge Daniel R. Monaco, Courthouse, Naples, FL 34112, USA,

on March 15, 2011.

Respectfully,

/s/Walter Prescott, foreclosure fraud victim

/s/Jennifer Franklin-Prescott, fraud victim

Care/of Papanui PostShop


7 Main North Road, Papanui, Christchurch, 8053
New Zealand
DOCKET
03/15/2011 FILING
08/12/2010 DISPOSITION RECORD EVIDENCE
APPEAL CLERK’S RECORD ERROR