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Discovery Exhibit ALBERTELLI LAW's WRONGFUL Foreclosure Action

Discovery Exhibit ALBERTELLI LAW's WRONGFUL Foreclosure Action

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Categories:Business/Law
Published by: Albertelli_Law on Sep 04, 2010
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08/01/2013

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IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUITIN AND FOR COLLIER COUNTY, FLORIDA
BANKUNITED,as [
purported
]
 successor in interest 
to [
LAWFULLY SEIZED
] BANKUNITED, FSB., purported “
 plaintiff 
vs.
DISPOSED CASE NO.: 09-6016-CA
 JENNIFER FRANKLIN-PRESCOTT,
et al 
.
 NOTICE OF LACK OF
 JURISDICTION 
 
 ___________________________________________________________________________/
WRONGFUL & FRAUDULENT
 foreclosure action
BY ALBERTELLI LAW, ANDMOTION FOR SANCTIONS AGAINST LAWFULLY SEIZED BANK’S ATTORNEY(S),AND JUDICIAL NOTICE OF CH. 673, 59, 90, 92, FLORIDA STATUTESRECORD LACK OF
 promissory note
 
1. 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), indicatesthat original documents are
required
to
prove
the contents of a
writing 
.2. 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. 4thDCA 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
 
 
 23. 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
4. 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 statuteto take the necessary actions to
protect
the party purportedly required to pay the note againstloss that might occur by reason of a claim by another party to
enforce
 
the instrument 
. Seesection
673.3091(2)
, Fla. Stat. (2002).5. A
mortgage
is the security for the payment of the
negotiable promissory note
, “and is a mereincident 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 
 
6. Here, the
admitted
 
loss
, the
time and manner of which was
unknown
, wasa.
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
7. Here, the
burden
was on
lawfully seized
BankUnited, i.e., the party seeking to
enforce
thelost “
instrument 
”. See § 673.3091(2), Fla. Stat. (2008).
PROVEN INVALIDITY OF RECORD
8. Furthermore here, the
invalidity
had been
proven
in the pleadings, Fla. Stat. § 673.3081(2008).
 
 39. A court will not
enforce
an
instrument 
unless the defendant will be adequately protectedagainst future claims on the
lost
 
note
. Perry v. Fairbanks, 888 So.2d 725, 727, (Fla. 5d DCA2004).10. 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 therecord 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
11. The property of 
bankrupt
 
BankUnited, FSB
, was “
lawfully
 
 seized 
“, Ch.
673
, FloridaStatutes. 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
 foreclosureaction
against Jennifer Franklin Prescott.
 LAWFUL SEIZURE 
” OF BUSTED BANKUNITED, FSB
12. The
admitted
 
loss
of the
fictitious
 
 promissory note
was due to
lawful seizure
of 
bankruptBankUnited, FSB
, and/or 
transfer
. Here,
lawfully seized
 
BankUnited
was not
entitled toenforce
the
fictitious
 
note
.
SEIZED BANKUNITED FAILED TO COMPLY WITH
CONDITION PRECEDENT 
 
13. Here,
lawfully seized
BankUnited could not have
 possibly
 
 satisfied 
the
absolutely
 
required
 
condition precedent 
”, Ch.
673
, Florida Statutes.
FRAUDULENT & FALSE PRETENSES - MATERIAL MISREPRESENTATION
14. “
 BankUnited, FSB
”,
fraudulently
pretended:
9. On February 15, 2006, Franklin Prescott executed and delivered a promissorynote to Bankunited 
…” “Complaint”, p. 3.

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