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Demand of Forensic Review ...

Demand of Forensic Review ...

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Published by Albertelli_Law
ALBERTELLI LAW FORECLOSURE MILL, FLORIDA
ALBERTELLI LAW FORECLOSURE MILL, FLORIDA

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Published by: Albertelli_Law on Feb 12, 2011
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06/20/2013

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IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUITIN AND FOR COLLIER COUNTY, FLORIDA
BANKUNITED,
non-
 successor in interest 
to [
lawfully seized
] BANKUNITED, FSB., purported
 plaintiff(s)
,vs.
DISPOSED CASE NO.: 09-6016-CA
JENNIFER FRANKLIN-PRESCOTT,
et al 
., purported
defendants
. ___________________________________________________________________/
 
DEMAND OF FORENSIC REVIEW & AUDIT AND NOTICE OFFRAUDULENT AND/OR INACCURATE ACCOUNTING IN DISPOSED ACTIONRECORD EVIDENCE OF INACCURATE ACCOUNTING
1. The 10/25/2010 “Affidavit as to Amounts Due and Owing” evidenced
inaccurate accounting
 and was not supported by the 07/09/2009 Complaint. Here, non-lawyer Barbie Fernandezdeceived the Court:
 I am familiar with … concerning the transactions alleged in the Complaint 
.”
FERNANDEZ’ FALSE ALLEGATIONS OF INDEBTEDNESS (“
1,146,921.71
2. Here, the purported “
 plaintiff 
” had asserted
in the Complaint 
:
 
 2Here, Fernandez concealed that her 
fraudulent accounting
was not supported by andconflicted with the
destroyed
/
lost
“02/15/2006 note/mortgage”. Fernandez falsely alleged
indebtedness
in the amount of 
“$1,146,921.71
”. See 07/09/2009 Complaint.
 
 ENFORCEABILITY 
 
OF
 
ALLEGED
 
 NOTE/MORTGAGE 
COULD NOT BE
 ESTABLISHED
 
3. The
obligation
falsely alleged to be
due
was never placed into BankUnited’s possessionand/or the Bank was not
entitled to enforce
the
destroyed
/
missing
 
note/mortgage
after BankUnited, FSB’s
legal seizure
. See Uniform Commercial Code. No
endorsement 
and/or 
assignment 
to BankUnited existed.4. No
evidence
of any
enforceable
properly executed and/or recorded note/mortgage existed inthis
disposed
action. Here, the
enforceability
of the alleged
note/mortgage
could not be
established 
. Here, no
right to enforce
the alleged
note/mortgage
transferred and/or couldhave
 possibly
transferred to BankUnited.5. Here, BankUnited knew/concealed that the
right 
to
enforce
an instrument and ownership of the instrument are two different concepts. Moreover, a person who has an
ownership
right inan instrument might not be a person
entitled to enforce
the instrument. Accordingly here,BankUnited may not
enforce
the purported
note/mortgage
.
 
TIMELINE OF DISPOSITION & BANK’S LAWFUL SEIZURE
08/12/2010
Disposition
in favor of Jennifer Franklin-Prescott07/09/2010
Motion to Dismiss
by Jennifer Franklin-Prescott2009 BankUnited, FSB, knew that it had no
right to enforce
alleged
instrument 
,and the
unknown
 
destruction
/
loss
were the result of a
lawful seizure
07/09/2009 Complaint of 
unknown
 
Destruction
/
Loss
of purported
note/mortgage
by
Bankrupt
BankUnited, FSB founder A. Camner, Esq. (Camner Lipsitz, PA)
 
Evidence of 
lack 
of 
 proper execution
of alleged
note and/or mortgage
Complaint
devoid
of purported “
modified note/mortgage
Ch. 11
Bankruptcy
filing05/21/2009
 
Seizure
of 
bankrupt
BankUnited, FSBSeptember 2007 Purported
loan modification
February 2006 Purported date of 
destroyed
and/or 
lost
 
note/mortgage
 Because BankUnited, FSB, could not
enforce
the
lost
and/or 
destroyed
note under section673.3091, it had no
 power of enforcement 
, which it could
assign
to BankUnited.
 
 3[In Dennis Joslin Company v. Robinson Broadcasting Corp., 977 F. Supp. 491 (D.D.C.1997), the district court rejected the right to assign the enforcement of a lost note.]The party seeking to enforce the instrument must either have been
entitled 
to
enforce
theinstrument
WHEN
 
loss of possession
occurred, or acquired
ownership
of the instrumentfrom a party who was
entitled 
to enforce the instrument
WHEN
 
loss of possession
occurred.See U.C.C. § 3-309. Here, no
 power of enforcement 
could have
 possibly transferred 
toBankUnited, and nobody knew
WHEN
and
WHO
had
lost/destroyed
the
note
/mortgage.
 
6.
Bankrupt
BankUnited, FSB, did not
know
the time and manner of the
destruction
/
loss
andwas not
entitled 
to
enforce
the
note/mortgage
, because the
unknown
 
destruction
/
loss
wasthe result of a
lawful seizure
. See Section
673.3091
, F.S.; U.C.C.7. BankUnited, the party wrongfully seeking to enforce the alleged
note/mortgage
was not
entitled to enforce
the
instrument 
and did not know
WHEN loss of possession
had occurred.8. Failed and
seized
BankUnited could not have
 possibly transferred 
the alleged
note
and/or 
mortgage
to BankUnited under 673.2031, F.S., and
none
was
delivered 
. Since
lawfullyseized
BankUnited, FSB was not
in possession
of the
note
and/or 
mortgage
, it was neither the “
holder 
” nor “
bearer 
” thereof.
 
NO
 PROOF OF CHAIN OF TITLE 
& PRESCOTT’S RIGHTS IN DISPOSED ACTION
9. Here, Prescott as purported
maker 
of the
note/mortgage
has been properly pressing “
 plaintiff 
to establish its purported
holder 
status. BankUnited exposed Prescott, the purported
obligor 
,to the risk of double payment, or at least to the expense of litigation incurred to preventwrongful and/or duplicative enforcement of an alleged
instrument 
. Here, Franklin-Prescotthad a recognizable interest in demanding
 proof 
of the alleged
chain of title
.
NO TRANSFER OF
 RIGHTS 
 10. “Mere ownership or possession of a note is insufficient to qualify an individual as a‘holder’.” See Adams v. Madison Realty & Dev. Inc., 853 F.2d 163, 166 (3d Cir. 1988).Where
ownership
of an instrument is allegedly
transferred 
, the transferee’s attainment of thestatus of “holder” depends on the
negotiation
of the instrument to the transferee. See U.C.C.The two elements required for 
negotiation
, both of which are
missing
here, are the
transfer 
 of possession of the instrument to the transferee, and its
indorsement 
by any
holder 
.
 
NO
 INDORSEMENT 
 

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