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Florida Bar Complaints, Exh. 0010: Dismissal of Previously Disposed Action

Florida Bar Complaints, Exh. 0010: Dismissal of Previously Disposed Action

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Published by Judicial_Fraud
FLORIDA CORRUPTION
FLORIDA CORRUPTION

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Published by: Judicial_Fraud on Mar 11, 2011
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 1
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUITIN AND FOR COLLIER COUNTY, FLORIDA
JENNIFER FRANKLIN-PRESCOTT, WALTER PRESCOTT, JOHN DOE, MARY DOE,
Counterclaimants
,vs.
PREVIOUSLY DISPOSED CASE NO.: 09-6016-CA
 BANKUNITED [
non-
successor in interest 
to
bankrupt
BANKUNITED, FSB
”],DANIEL R. MONACO (personal & official capacity), CLERK OF COURT (personal &official capacity), ALBERTELLI LAW,
 
Defendants on Counterclaim(s).
_____________________________________________________________________________/
DISMISSAL OF PREVIOUSLY DISPOSED ACTION ANDCANCELLATION OF ILLEGAL
NON-JURY TRIAL
AS A MATTER OF LAWDISMISSAL OF PREVIOUSLY DISPOSED ACTION UNDER RULE 1.420
1. The previously
disposed
action
must
be
dismissed
pursuant to F.R.Civ.P. 1.420, whichstates:
 
(f) Effect on Lis Pendens.
If a notice of lis pendens has been filed in connection witha claim for affirmative relief that is
dismissed
under this rule, the notice of lispendens connected with the
dismissed
claim is
automatically dissolved
at the same
 
time. The notice, stipulation, or order shall be recorded.
08/12/2010 AUTOMATIC DISSOLUTION OF
LIS PENDENS 
 
2. Here, the
fraudulent
 
notice of lis pendens
connected with the
08/12/2010 disposition
was
automatically dissolved
at the same time, i.e., on
08/12/2010
. Defendant Clerk’s
unlawful
 removal of the disposition record was
fraudulent
:
 
 2
RECORD “SUGGESTION OF BANKRUPTCY”
3. Here, there has been a
suggestion of bankruptcy
and the
lack 
of any
cause of action
on therecord. Allegedly, the
mandatory
 
instruments
and
conditions precedent 
 
strictly
 
required
to
establish
any
cause of action
were
destroyed
and/or 
lost
and could
not
be
reestablished 
,because, e.g., the
manner 
and
time
of the
loss
and/or 
destruction
were
UNKNOWN
.
Defunct
BankUnited, FSB
” underwent
bankruptcy
.
 
COUNTERCLAIMANTS ARE ENTITLED TO TRIAL BY JURY(SEE COUNT I; COUNTERCLAIM)
4. The Counterclaimants/Defendants had
demanded and are entitled to trial by jury
. Here,the
destroyed
/
lost
 
instruments
could
not
be
reestablished 
.
 
THIS COURT ERRED & VIOLATED THE STRICT MANDATE OF RULE 1.440
5.
RULE 1.440, SETTING ACTION FOR TRIAL
, states:
 (a) When at Issue.
An action is at issue after any motions directed to the lastpleading served have been
disposed
of or, if no such motions are served, 20 days
 
after service of the last pleading. The party entitled to serve motions directed to thelast pleading may waive the right to do so by filing a notice for trial at any time after the last pleading is served. The existence of crossclaims among the parties shall notprevent the court from setting the action for trial on the issues raised by thecomplaint, answer, and any answer to a counterclaim.
(b) Notice for Trial.
Thereafter any party may file and serve a notice that the actionis at issue and ready to be set for trial. The notice shall include an estimate of the timerequired, whether the trial is to be by a jury or not, and whether the trial is on theoriginal action or a subsequent proceeding. The clerk shall then submit the notice andthe case file to the court.
(c) Setting for Trial.
If the court finds the action ready to be set for trial, it shall enter an order fixing a date for trial. Trial shall be set not less than 30 days from the serviceof the notice for trial. By giving the same notice the court may set an action for trial.In actions in which the damages are not liquidated, the order setting an ac-tion for trial shall be served on parties who are in default in accordance with rule 1.080(a).
(d) Applicability.
This rule does not apply to actions to which chapter 51, FloridaStatutes (1967), applies
BINDING PRECEDENT PROHIBITED ANY
NON-JURY TRIAL
 
6.
Strict compliance
with Florida Rule of Civil Procedure 1.440 is
required
and
failure
to doso is
reversible error
. See Ramos v. Menks, 509 So.2d 1123 (Fla. 1
st
DCA 1986); Bennett v.
 
 3Continental Chemicals, Inc., 492 So.2d 724 (Fla. 1
st
DCA 1984); see also Broussard v.Broussard, 506 So.2d 463 (Fla. 2d DCA 1987). Id.7.
Serious consequences
occur when a case is set for trial
prematurely
as here
prejudicially
 and
capriciously
by “
temporary
” “
rocket docket
” Judge Daniel R. Monaco.8. Fla.R.Civ.P. 1.440(a) provides that an action is
not
at issue until all motions directed to thelast pleading have been
disposed
of, or if no such motions are served, twenty days after service of the last pleading, unless the party entitled to serve motions waives the right to doso by filing a notice for trial.
 
DEFENDANTS’ RECORD OBJECTIONS & OBJECTIONS UNDER RULE 1.440
9. Defendants have
objected
to, e.g.,
non
-compliance with Florida Rule of CivilProcedure 1.440,
bench-trial 
,
omission
of 
jury trial 
,
omission
of 
evidentiary hearing 
provingthe
lack 
of
BankUnited’s
standing 
and lack of right to
sue
and
foreclose
the alleged
destroyed
and/or 
lost
 
mortgage
/
note
.
 
FRAUD ON THE COURT SCHEME BY RETIRED “ROBO” JUDGE MONACO
10. Here, on
02/21/2011
, the
wrongful
 
foreclosure
action had been
disposed
, and
retired
 
robo
” Judge Monaco could
not
have
possibly
disposed of 
” Defendants’/Counterclaimants’
Motion to Dismiss
”. Defendant Clerk’s Docket showed a “
9:00 AM 
” hearing, which
never
 
took place
on 02/21/2011. Furthermore here, the
illegal
02/22/2011 hearing 
” had been
amended
and was then
cancelled
:

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