IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT

IN 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.
___________________________________________________________________/

NOTICE OF OBJECTION TO ANY HEARING & MAGISTRATE IN DISPOSED CASE

AND OF BINDING PRECEDENT IN SUPPORT OF 08/12/2010 DISPOSITION

NOTICE OF FRANKLIN-PRESCOTT’S OBJECTION & NON-CONSENT

1. Jennifer Franklin-Prescott again objects to any hearing and/or any magistrate in this
disposed action. Here, no hearing was authorized and/or lawful and the notice a sham.
RECORD DISPOSITION FOR LACK OF STANDING & FAILURE TO STATE CAUSE
2. This action had been disposed on 08/12/2010.

ERRONEOUS “NOTICE” IN DISPOSED ACTION

3. On 02/15/2011, 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

Luis Licourt”, who is not any known party.

UNLAWFUL/UNAUTHORIZED HEARING IN DISPOSED ACTION

4. Here, the erroneously alleged “amended mtoin for summary judgment …” does not pertain to

this disposed action. Any hearing and/or any motion for summary disposition would be

improper, unauthorized, and/or unlawful.

NO FEBRUARY HEARING APPEARED ON THE DOCKET

5. Here, the 02/15/2011 Docket did not show any hearing and/or hearing date:

NO CONSENT & OBJECTION TO ANY MAGISTRATE (HEARING)

6. Previously and repeatedly, Franklin-Prescott had objected to any magistrate hearing.
Because of the record lack of any consent, a previous hearing had been cancelled in this
disposed action.

7. The record lack of consent had been erroneously entered as “non-contest”:

VAGUE & AMBIGUOUS SHAM “NOTICE” IN DISPOSED ACTION

8. In this disposed action, the notice was vague, ambiguous, and unintelligent. A pleading is
considered a sham when it is inherently false and based on plain or conceded facts clearly
known to be false at the time the pleading was made. See Decker v. County of Volusia, 698

2
 So. 2d 650, 651 (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 identifying “BankUnited” had existed. Copies of a

null and void note/mortgage and/or hearsay were not admissible under the Code of Evidence.

Here, there were no witnesses and no notary had acknowledged any authentic note/mortgage.

NON-BINDING “MODIFICATION AGREEMENT”

10. BankUnited, FSB, and/or BankUnited knew and/or concealed that

“8. The Modification will be legally binding upon the parties, only when it is signed
by Note Holder and each Borrower.”
Here, Walter Prescott did not sign the purported “Loan Modification Agreement”. See
12/21/2010 “Notice of Filing of Original Loan Modification Agreement” in disposed
(08/12/2010) action. Because here the alleged 09/05/2007 “Modification Agreement” was
not signed by each Borrower and/or Walter Prescott, it was not legally binding.
FAILURE TO PROVE TERMS
11. A person seeking enforcement of an instrument under UCC § 3-309(a) must prove the terms
of the instrument and the person’s right to enforce the instrument. See UCC § 3-309(b). Here,
plaintiff “BankUnited” failed to prove any terms.
RECORD ABSENCE OF EXECUTION
12. Here, the alleged February 2006 note, mortgage, and/or security instrument did not identify
“BankUnited” and could not have possibly encumbered Franklin-Prescott’s real property,
because they were not properly executed.
NO PROOF ON FILE IN DISPOSED ACTION
13. Here, Franklin-Prescott had denied the authenticity of signatures on the purported note
and/or mortgage alluded to in this disposed case and demanded strict proof thereof, by clear
and convincing evidence, pursuant to § 673.3081, Fla. Stat. (2008). See “Adjustable Rate
Note”, page 4 of 4, in 12/01/2010 and/or 11/01/2010 “Notice of Filing of Original Note &
Original Mortgage”.
14. Here in particular, there were, e.g., no notarial acknowledgment and no signature by
purported “borrower” Walter Prescott.

3
15. 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
16. In this disposed action, the purported “plaintiff” did not assert any valid note and mortgage
assignment status in the complaint. “BankUnited” was never identified. A security could not
possibly follow a non-existent note.
17. 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).
18. In this disposed action, the named parties plaintiffs, and/or borrowers were conflicting and
ambiguous. See Docket:

STYLE OF DISPOSED CASE DID NOT IDENTIFY BANKUNITED, FSB AS PLAINTIFF

19. Here, the style and/or title of the disposed case did not identify “BankUnited, FSB” as any
“plaintiff”. Here purportedly, the “chain of title” included bankrupt “BankUnited, FSB”,
FDIC [lawful seizure of bankrupt bank], and “BankUnited”.
NO TRANSFER OF ALLEGED INSTRUMENT

4
20. An instrument is transferred when it is delivered by a person other than its issuer for the
purpose of giving to the person receiving delivery the right to enforce the instrument. See
UCC § 3-203(a). If a transferor purports to transfer less than the entire instrument,
negotiation of the instrument does not occur. The transferee obtains no rights under this
Article and has only the rights of a partial assignee. See UCC 3-203(d). Here, the destroyed
and/or lost instrument could not have possibly been delivered and/or transferred, and the
case was disposed on 08/12/2010.
08/12/2010 DISPOSITION & UNVERIFIED 07/09/09 COMPLAINT OF LOST NOTE
21. In this disposed action, BankUnited had filed an unverified mortgage foreclosure complaint
naming Jennifer Franklin-Prescott as a defendant. Said 07/09/2009 complaint included
COUNT I for reestablishment of a lost note, COUNT II (on promissory note), and COUNT
III (on mortgage foreclosure).
UNKNOWN LOSS / DESTRUCTION OF PURPORTED PROMISSORY NOTE
22. On behalf of “BankUnited”, bankrupt BankUnited, FSB’s founder Alfred Camner, Esq., had
asserted in the complaint:
“6. Said promissory note and mortgage have been lost or destroyed and are not in the
custody or control of BankUnited, and the time and manner of the loss or destruction
is unknown.”
Here, no copy of any genuine promissory note identifying “BankUnited” was attached to the
complaint.
COPY OF MORTGAGE IDENTIFIED BANKRUPT “BankUnited, FSB” AS “LENDER”
23. BankUnited had attached a copy of the mortgage it sought to foreclose to the complaint;
however, said document identified lawfully seized “BankUnited, FSB” as the "lender".
BankUnited had also attached an "Adjustable Rate Rider" to the complaint, which however
also identified bankrupt “BankUnited, FSB” as the "lender."
RECORD PROOF OF LACK OF STANDING
24. Prior to the 08/12/2010 disposition, Jennifer Franklin-Prescott had proven BankUnited’s
lack of standing, answered, and filed a motion to dismiss.
BANKUNITED’S FAILURE TO STATE ANY CAUSE OF ACTION
25. This action was disposed, because BankUnited had failed to state any cause action.
ATTACHMENTS PROVED BANKUNITED’S LACK OF STANDING & CAUSE

5
26. On 08/12/2010, the action was disposed, because Franklin-Prescott had proven that none of
the attachments to the facially frivolous and insufficient complaint showed that BankUnited
actually held the note or mortgage, thus giving rise to the disposition and question as to
whether BankUnited actually ever had standing to foreclose on the mortgage.
BANKUNITED’S FALSE PRETENSES & FRAUD ON THE COURT
27. In this disposed action, BankUnited had falsely pretended:
“16. Plaintiff owns and holds the note and mortgage.” See COUNT II.
While here BankUnited had fraudulently alleged in its unverified complaint that it was the
holder and/or owner of the purported note and mortgage, the copy of the mortgage attached
to the complaint listed "BankUnited, FSB" as the "lender". No authentic note identifying
“BankUnited” was attached.
BANKUNITED’S EXHIBITS CONTRADICTED ITS ALLEGATIONS
28. When exhibits are attached to a complaint, the contents of the exhibits control over the
allegations of the complaint. See, e.g., Hunt Ridge at Tall Pines, Inc. v. Hall, 766 So. 2d 399,
401 (Fla. 2d DCA 2000) ("Where complaint allegations are contradicted by exhibits
attached to the complaint, the plain meaning of the exhibits control[s] and may be the basis
for a motion to dismiss."); see Blue Supply Corp. v. Novos Electro Mech., Inc., 990 So. 2d
1157, 1159 (Fla. 3d DCA 2008); Harry Pepper & Assocs., Inc. v. Lasseter, 247 So. 2d 736,
736-37 (Fla. 3d DCA 1971) (holding that when there is an inconsistency between the
allegations of material fact in a complaint and attachments to the complaint, the differing
allegations "have the effect of neutralizing each allegation as against the other, thus
rendering the pleading objectionable").
08/12/2010 DISPOSITION FOR LACK OF STANDING & FAILURE TO STATE CAUSE
29. Because the exhibits to BankUnited's complaint conflicted with its allegations
concerning standing and the exhibits did not show that BankUnited had any standing to
foreclose the mortgage, BankUnited did not establish its entitlement to foreclose the
mortgage and/or sue as a matter of law. Accordingly, the action was disposed on 08/12/2010.
“BANKUNITED” WAS NEVER IDENTIFIED AND HAD NO RIGHTS TO ENFORCE
30. Moreover, while BankUnited filed the purportedly lost “original note” after the 08/12/2010
disposition, the non-authentic and non-executed note did not identify “BankUnited” as the
lender or holder. BankUnited also did not attach any assignment or any other evidence to

6
 establish that it had purchased the note and mortgage. Further, BankUnited did not file any
supporting affidavits or deposition testimony to establish that it owns and holds the purported
note and mortgage. Accordingly, this Court disposed the action on 08/12/2010, because the
documents before it did not and could not possibly establish BankUnited's standing to
foreclose the purported note and mortgage.
BANKUINTED WAS NO “HOLDER” & HAD NO RIGHTS TO ENFORCE NOTE
31. A “holder” is defined as the person in possession if the instrument is payable to bearer or, in
the case of an instrument payable to an identified person, if the identified person is in
possession. “Mere ownership or possession of a note is insufficient to qualify an individual
as a ‘holder’.” See also Adams v. Madison Realty & Dev. Inc., 853 F.2d 163, 166 (3d Cir.
1988). Attainment of the status of “holder” depends on the negotiation of the instrument to
the transferee. The two elements required for negotiation, both of which were missing here,
were the transfer of possession of the alleged instrument to BankUnited (non- transferee),
and its indorsement by the holder.
BINDING PRECEDENT – BAC FUNDING CONSORTIUM, INC
32. The Second District confronted a similar situation in BAC Funding Consortium, Inc.
ISAOA/ATIMA v. Jean-Jacques, 28 So. 3d 936 (Fla. 2d DCA 2010), when the trial court had
granted the alleged assignee U.S. Bank's motion for summary judgment. That court reversed
because, inter alia, "[t]he incomplete, unsigned, and unauthenticated assignment attached as
an exhibit to U.S. Bank's response to BAC's motion to dismiss did not constitute admissible
evidence establishing U.S. Bank's standing to foreclose the note and mortgage." Id. at 939.
Said Appellate Court in BAC Funding Consortium, properly noted that U.S. Bank was
"required to prove that it validly held the note and mortgage it sought to foreclose." Id.
RECORD LACK OF ANY ADMISSIBLE EVIDENCE:
“BANKUNITED” WAS NOT ANY OWNER AND HAD NO RIGHT TO SUE PRESCOTT
33. In the instant case, the purported note was, e.g., not properly executed, not assigned, the
falsely pretended assignment not recorded, and the endorsement in blank was unsigned and
unauthenticated, creating genuine issues of material fact as to whether “BankUnited” was
ever the lawful owner and holder of the purported note and/or mortgage. As
in BAC Funding Consortium, here there were no supporting affidavits or deposition
testimony in the record to establish that “BankUnited” validly owned and held the improperly

7
 executed note and mortgage, no evidence of an assignment to “BankUnited”, no proof of
purchase of the debt nor any other evidence of an effective transfer to “BankUnited”.
AUTOMATICALLY DISSOLVED “LIS PENDENS”
34. Here, the improper and unauthorized lis pendens was automatically dissolved upon the
disposition of foreclosure. See Rule 1.420(f), Fla. R. Civ. P. (2010). The validity of a notice
of lis pendens is one year from filing. § 48.23(2), Fla. Stat. (2010).
35. In this disposed action, the purported “plaintiff” sought to re-establish the missing note in
“COUNT I (Reestablishment of Lost Instruments)” of the complaint (see p. 2 of 8). Franklin-
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
36. 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 …”
37. 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.
02/15/11 DOCKET SHOWED FRAUD EVIDENCE & DEMAND IN DISPOSED ACTION

PREVIOUS NOTICE OF UNAVAILABILITY IN DISPOSED ACTION

38. 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

circumstances on such unintelligent, irrelevant, unauthorized, and short notice.

UNAUTHORIZED ATTORNEYS

39. “Rose, Erin M.” was the only attorney authorized in this disposed action.

8
Here unlawfully, various unknown “attorneys” appeared without any authority and falsely
pretended a “hearing”.
RECORD FRAUD ON THE COURT

40. This court knows about the fraud on the Court perpetrated by BankUnited & Albertelli Law:

In this disposed action, any hearing and/or motion for summary disposition were unauthorized
and improper.
“BANKUNITED” HAD NO VALID SECURITY INTEREST
41. 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
42. 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.

9
43. 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).
44. 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).
45. 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
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
46. 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
47. Here, all of Franklin-Prescott’s pleadings were signed (“/s/ Jennifer Franklin-Prescott”).
NOTICE OF INTERLOCUTORY APPEAL FROM HEARING IN DISPOSED ACTION
48. 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
49. 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

10
 person or a person that cannot be found or is not amenable to service of process. 673.3091
Fla. Stat. (2009).
50. 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.
51. 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
52. 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 taking judicial notice of said binding precedent (BAC Funding) in support of the
record 08/12/2010 disposition;
2. 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;

11
3. 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;
4. An Order declaring any hearing unauthorized in this disposed action;
5. An Order declaring the prima facie sham “motion” and “affidavits” unlawful in this
previously disputed and disposed action;
6. An Order declaring the purported note and/or mortgage unenforceable;
7. An Order taking judicial notice of the prima facie unenforceability of the unrecorded, un-
assignable, and unpaid mortgage (unpaid mortgage taxes);
8. An Order declaring the purported “plaintiff” to be in violation of Fed.R.Civ.P. 1.510 in this
disposed and previously controverted action;
9. 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;
10. An Order declaring said affidavits “hearsay” and lacking any legal and/or factual basis in
the absence of any authentic “note” and/or mortgage;
11. 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;
12. 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 02/15/2011 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 15, 2011,
Pacific Time.
Respectfully,

/s/Jennifer Franklin Prescott, fraud victim

CC: Hon. Hugh D. Hayes (Disposition Judge),
Albertelli Law
United States District Court
The Florida Bar, New York Times

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BAC Funding Consortium Inc. ISAOA/ATIMA v. Jean-Jacques

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

Docket Number available at www.versuslaw.com

Citation Number available at www.versuslaw.com

February 12, 2010

BAC FUNDING CONSORTIUM INC. ISAOA/ATIMA, APPELLANT,

v.
GINELLE JEAN-JACQUES, SERGE JEAN-JACQUES, JR., AND U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR THE C-
BASS MORTGAGE LOAN ASSET BACKED CERTIFICATES, SERIES 2006-CB5, APPELLEES.

Appeal from the Circuit Court for Sarasota County; Robert B. Bennett, Jr., Judge.

F. Malcolm Cunningham, Jr., and Amy Fisher of The Cunningham Law Firm, P.A., West Palm Beach, for Appellant.

Cindy L. Runyan of Florida Default Law Group, Lp, Tampa, for Appellee U.S. Bank National Association.

No appearance for Appellees Ginelle M. Jean-Jacques and Serge Jean-Jacques, Jr.

The opinion of the court was delivered by: VILLANTI, Judge

BAC Funding Consortium Inc. ISAOA/ATIMA (BAC) appeals the final summary judgment of foreclosure entered in favor of U.S. Bank
National Association, as Trustee for the C-Bass Mortgage Loan Asset Backed Certificates, Series 2006-CB5 (U.S. Bank). Because
summary judgment was prematurely entered, we reverse and remand for further proceedings.

On December 14, 2007, U.S. Bank filed an unverified mortgage foreclosure complaint naming the Jean-Jacqueses and BAC as
defendants. The complaint included one count for foreclosure of the mortgage and a second count for reestablishment of a lost
note. U.S. Bank attached a copy of the mortgage it sought to foreclose to the complaint; however, this document identified Fremont
Investment and Loan as the "lender" and Mortgage Electronic Registrations Systems, Inc., as the "mortgagee." U.S. Bank also
attached an "Adjustable Rate Rider" to the complaint, which also identified Fremont as the "lender."

Rather than answering the complaint, BAC responded by filing a motion to dismiss based on U.S. Bank's lack of standing. BAC
argued that none of the attachments to the complaint showed that U.S. Bank actually held the note or mortgage, thus giving rise to
a question as to whether U.S. Bank actually had standing to foreclose on the mortgage. BAC argued that the complaint should be
dismissed based on this lack of standing.

U.S. Bank filed a written response to BAC's motion to dismiss. Attached as Exhibit A to this response was an "Assignment of
Mortgage." However, the space for the name of the assignee on this "assignment" was blank, and the "assignment" was neither
signed nor notarized. Further, U.S. Bank did not attach or file any document that would authenticate this "assignment" or otherwise
render it admissible into evidence.

For reasons not apparent from the record, BAC did not set its motion to dismiss for hearing. Subsequently, U.S. Bank filed a motion
for summary judgment. At the same time, U.S. Bank voluntarily dismissed its count for reestablishment of a lost note, and it filed the
"Original Mortgage and Note" with the court. However, neither of these documents identified U.S. Bank as the holder of the note or
mortgage in any manner. U.S. Bank did not file the original of the purported "assignment" or any other document to establish that it
had standing to foreclose on the note or mortgage.

Despite the lack of any admissible evidence that U.S. Bank validly held the note and mortgage, the trial court granted summary
judgment of foreclosure in favor of U.S. Bank. BAC now appeals, contending that the summary judgment was improper because U.S.
Bank never established its standing to foreclose.

The summary judgment standard is well-established. "A movant is entitled to summary judgment 'if the pleadings, depositions,
answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is
no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' " Estate of Githens

…findacase.com/…/wfrmDocViewer.aspx 1/3
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ex rel. Seaman v. Bon Secours-Maria Manor Nursing Care Ctr., Inc., 928 So. 2d 1272, 1274 (Fla. 2d DCA 2006) (quoting Fla. R. Civ. P.
1.510(c)). When a plaintiff moves for summary judgment before the defendant has filed an answer, "the burden is upon the plaintiff
to make it appear to a certainty that no answer which the defendant might properly serve could present a genuine issue of fact."
Settecasi v. Bd. of Pub. Instruction of Pinellas County, 156 So. 2d 652, 654 (Fla. 2d DCA 1963); see also W. Fla. Cmty. Builders, Inc.
v. Mitchell, 528 So. 2d 979, 980 (Fla. 2d DCA 1988) (holding that when plaintiffs move for summary judgment before the defendant
files an answer, "it [is] incumbent upon them to establish that no answer that [the defendant] could properly serve or affirmative
defense it might raise" could present an issue of material fact); E.J. Assocs., Inc. v. John E. & Aliese Price Found., Inc., 515 So. 2d
763, 764 (Fla. 2d DCA 1987) (holding that when a plaintiff moves for summary judgment before the defendant files an answer, "the
plaintiff must conclusively show that the defendant cannot plead a genuine issue of material fact"). As these cases show, a plaintiff
moving for summary judgment before an answer is filed must not only establish that no genuine issue of material fact is present in
the record as it stands, but also that the defendant could not raise any genuine issues of material fact if the defendant were
permitted to answer the complaint.

In this case, U.S. Bank failed to meet this burden because the record before the trial court reflected a genuine issue of material fact
as to U.S. Bank's standing to foreclose the mortgage at issue. The proper party with standing to foreclose a note and/or mortgage
is the holder of the note and mortgage or the holder's representative. See Mortgage Elec. Registration Sys., Inc. v. Azize, 965 So.
2d 151, 153 (Fla. 2d DCA 2007); Troupe v. Redner, 652 So. 2d 394, 395-96 (Fla. 2d DCA 1995); see also Philogene v. ABN Amro
Mortgage Group, Inc., 948 So. 2d 45, 46 (Fla. 4th DCA 2006) ("[W]e conclude that ABN had standing to bring and maintain a
mortgage foreclosure action since it demonstrated that it held the note and mortgage in question."). While U.S. Bank alleged in its
unverified complaint that it was the holder of the note and mortgage, the copy of the mortgage attached to the complaint lists
"Fremont Investment & Loan" as the "lender" and "MERS" as the "mortgagee." When exhibits are attached to a complaint, the
contents of the exhibits control over the allegations of the complaint. See, e.g., Hunt Ridge at Tall Pines, Inc. v. Hall, 766 So. 2d 399,
401 (Fla. 2d DCA 2000) ("Where complaint allegations are contradicted by exhibits attached to the complaint, the plain meaning of
the exhibits control[s] and may be the basis for a motion to dismiss."); Blue Supply Corp. v. Novos Electro Mech., Inc., 990 So. 2d
1157, 1159 (Fla. 3d DCA 2008); Harry Pepper & Assocs., Inc. v. Lasseter, 247 So. 2d 736, 736-37 (Fla. 3d DCA 1971) (holding that
when there is an inconsistency between the allegations of material fact in a complaint and attachments to the complaint, the
differing allegations "have the effect of neutralizing each allegation as against the other, thus rendering the pleading
objectionable"). Because the exhibit to U.S. Bank's complaint conflicts with its allegations concerning standing and the exhibit does
not show that U.S. Bank has standing to foreclose the mortgage, U.S. Bank did not establish its entitlement to foreclose the
mortgage as a matter of law.

Moreover, while U.S. Bank subsequently filed the original note, the note did not identify U.S. Bank as the lender or holder. U.S. Bank
also did not attach an assignment or any other evidence to establish that it had purchased the note and mortgage. Further, it did
not file any supporting affidavits or deposition testimony to establish that it owns and holds the note and mortgage. Accordingly,
the documents before the trial court at the summary judgment hearing did not establish U.S. Bank's standing to foreclose the note
and mortgage, and thus, at this point, U.S. Bank was not entitled to summary judgment in its favor.

In this appeal, U.S. Bank contends that it was not required to file an assignment of the note or mortgage or otherwise prove that it
validly held them in order to be entitled to summary judgment in its favor. We disagree for two reasons. First, because BAC had not
yet answered the complaint, it was incumbent on U.S. Bank to establish that no answer that BAC could properly serve or affirmative
defense that it might allege could raise an issue of material fact. Given the facial conflict between the allegations of the complaint
and the contents of the exhibit to the complaint and other filings, U.S. Bank failed to meet this burden.

Second, regardless of whether BAC answered the complaint, U.S. Bank was required to establish, through admissible evidence, that
it held the note and mortgage and so had standing to foreclose the mortgage before it would be entitled to summary judgment in
its favor. Whether U.S. Bank did so through evidence of a valid assignment, proof of purchase of the debt, or evidence of an
effective transfer, it was nevertheless required to prove that it validly held the note and mortgage it sought to foreclose. See
Booker v. Sarasota, Inc., 707 So. 2d 886, 889 (Fla. 1st DCA 1998) (holding that the trial court, when considering a motion for
summary judgment in an action on a promissory note, was not permitted to simply assume that the plaintiff was the holder of the
note in the absence of record evidence of such). The incomplete, unsigned, and unauthenticated assignment attached as an exhibit
to U.S. Bank's response to BAC's motion to dismiss did not constitute admissible evidence establishing U.S. Bank's standing to
foreclose the note and mortgage, and U.S. Bank submitted no other evidence to establish that it was the proper holder of the note
and/or mortgage.

Essentially, U.S. Bank's argument in favor of affirmance rests on two assumptions: a) that a valid assignment or transfer of the note
and mortgage exists, and b) that a valid defense to this action does not. However, summary judgment is appropriate only upon
record proof-not assumptions. Given the vastly increased number of foreclosure filings in Florida's courts over the past two years,
which volume has taxed both litigants and the judicial system and increased the risk of paperwork errors, it is especially important
that trial courts abide by the proper standards and apply the proper burdens of proof when considering a summary judgment
motion in a foreclosure proceeding.

Accordingly, because U.S. Bank failed to establish its status as legal owner and holder of the note and mortgage, the trial court
acted prematurely in entering final summary judgment of foreclosure in favor of U.S. Bank. We therefore reverse the final summary
judgment of foreclosure and remand for further proceedings.

Reversed and remanded for further proceedings.

ALTENBERND and SILBERMAN, JJ., Concur.

20100212

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Case Information Printer Friendly Version

Style: BANKUNITED vs FRANKLIN-PR ESC O TT, JENNIFER

Uniform Case Number: 112009C A0060160001XX Filed: 07/09/2009
Clerks Case Number: 0906016C A
Court Type: C IR C UIT CIVIL Disposition Judge: HAYES, HUGH D
Case Type: MO R TGAGE FO R ECLO SUR ES Disposed: 08/12/2010
Judge: HAYES, HUGH D Reopen Reason:
Case Status: DISPO SED Reopened:
Next Court Date: Reopen Close:
Last Docket Date: 02/09/2011 A ppealed:

Parties Dockets Events Financials

Docket Type Judge Court Date Court Time

MO TIO N HEAR ING HAYES, HUGH D 12/06/2010 13:30
MO TIO N HEAR ING PER EZ-BENITO A, MAGISTR ATE 09/02/2010 11:30

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Case Information Printer Friendly Version

Style: BANKUNITED vs FRANKLIN-PR ESC O TT, JENNIFER

Uniform Case Number: 112009C A0060160001XX Filed: 07/09/2009
Clerks Case Number: 0906016C A
Court Type: C IR C UIT CIVIL Disposition Judge: HAYES, HUGH D
Case Type: MO R TGAGE FO R ECLO SUR ES Disposed: 08/12/2010
Judge: HAYES, HUGH D Reopen Reason:
Case Status: DISPO SED Reopened:
Next Court Date: Reopen Close:
Last Docket Date: 02/09/2011 A ppealed:

Parties Dockets Events Financials

2 of 2 page s. Entrie s pe r page : 60

Date Text All Entries

09/01/2010 O BJEC TIO N TO MAGISTR ATE
09/02/2010 C ANC ELLED
09/02/2010 MINUTES - HEAR ING SEE SC HEDULE MINUTES FO R DETAILS
09/02/2010 R EC EIP T FR O M DC A
AC KNO W LEDGMENT O F NEW C ASE FILED W /DC A 8/18/10 2D10-4158
09/02/2010 O R DER BY DC A
APP ELLANT SHALL W ITHIN 15 DAYS SHALL FILE AN AMENDED APPEAL
09/02/2010 O R DER BY DC A
APP ELLANT SHALL FO R W AR D FILING FEE O R O R DER O F INSO LVENC Y W ITTHIN
40 DAYS
09/02/2010 O R DER BY DC A APP ELLANT SHALL SHO W C AUSE W ITHIN 15 DAYS
09/02/2010 NO TIC E O F LAC K O F JUR ISDIC TIO N
09/02/2010 NO TIC E O F LAC K O F JUR ISDIC TIO N
09/02/2010 NO TIC E NO TIC E O F LAC K O F JUR ISDIC TIO N
09/02/2010 NO TIC E
09/02/2010 MO TIO N FO R R EC USAL
09/02/2010 NO TIC E IN SUPPO R T O F HUGH HAYES R EC USAL
09/02/2010 NO TIC E O F LAC K O F JUR ISDIC TIO N
09/02/2010 NO TIC E O F LAC K O F JUR ISDIC TIO N
09/03/2010 NO TIC E O F LAC K O F JUR ISDIC TIO N

09/03/2010 NO TIC E O F LAC K O F JUR ISDIC TIO N

09/03/2010 NO TIC E O F LAC K O F JUR ISDIC TIO N
09/07/2010 O R IGINAL SENATE STAFF R EC O R D EVIDENC E IN SUPPO R T O F SANC TIO NS
09/07/2010 NO TIC E O F LAC K O F JUSIDIC TIO N
09/07/2010 R EQ UEST FO R JUDIC IAL NO TIC E
09/07/2010 NO TIC E O F AUTO MATIC DISSO LUTIO N O F LIS PENDENS
09/07/2010 R EQ UEST FO R JUDIC IAL NO TIC E
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Public Inquiry
09/14/2010 NO TIC E O F APP EAL AMENDED NO TIC E O F AP PEAL 2D10-4158
09/14/2010 C O PY C O R R ESPO NDENC E TO 2ND DCA W /ATTAC HMENTS
09/15/2010 NO TIC E O F APP EAL AMENDED NO TIC E O F AP PEAL 2D10-4158
09/15/2010 C O PY AMENDED NO TIC E O F APPEAL TITLED TO 2ND DC A
09/15/2010 C O RR ESPO NDENCE FR O M
APP EAL CLER K TO DC A W /C ER TIFIED C O PY AMENDED NO TICE O F APPEAL
2D10-4158
09/16/2010 C O RR ESPO NDENCE FR O M
APP EAL CLER K TO DC A W /C ER TIFIED C O PY AMENDED NO TICE O F 2ND AMENDED
NO TIC E O F APP EAL
09/16/2010 DEMAND FO R FINAL O R DER
10/04/2010 O R DER BY DC A
THIS APPEAL DISMISSED BEC AUSE AP PELLANT FAILED TO C O MPLY W ITH THIS
C O UR TS O R DER O F 8/31/10 R EQ UIR ING A C O PY O F O RDER APPEALED
10/25/2010 O R DER BY DC A THIS APPEAL IS DISMISSED
11/12/2010 NO TIC E O F HEARING
11/12/2010 NO TIC E O F FILING AFFIDAVIT O F ATTO R NEY FEES
11/12/2010 AFFIDAVIT AS TO ATTO R NEYS FEES
12/02/2010 NO TIC E O F FILING O R IGINAL NO TE & O R IGINAL MO R TGAGE
12/03/2010 MO TIO N
TO C ANC EL UNAUTHO R IZED HEAR ING IN DISP O SED AC TIO N MO TIO N FO R
JUDIC IAL NO TIC E / BY JENNIFER FR ANKLIN-PR ESC O
12/06/2010 C O RR ESPO NDENCE FR O M C O UNSEL TO C LERK
12/06/2010 MO TIO N TO C ANC EL HEAR ING
12/06/2010 O BJEC TIO N TO
& MO TIO N TO C O MPEL & Q UIET TITLE BY JENNIFER FR ANKLIN-PR ESCO T
12/06/2010 NO APPEAR ANC E BY THE PARTIES
12/06/2010 MINUTES - HEAR ING SEE SC HEDULE MINUTES FO R DETAILS
12/07/2010 NO TIC E O F C ANC ELLATIO N 12/06/10 @ 3:00 MO TIO N FO R SUMMARY JUDGMENT
12/08/2010 O BJEC TIO N TO HEAR ING BY JENNIFER FR ANKLIN PR ESC O TT
12/08/2010 O BJEC TIO N TO
STATUS O F DISPO SITIO N JUDGE & R EC USAL MO TIO N BY JENNIFER FR ANKLIN
PR ESC O TT
12/17/2010 NO TIC E O F FR AUD & LO SS BY JENNIFER FR ANKLIN-PR ESCO TT
12/17/2010 MO TIO N
TO C ANC EL UNAUTHO R IZED HEAR ING IN DISP O SED AC TIO N BY JENNIFER FR ANKLIN
PR ESC O
12/20/2010 O BJEC TIO N TO
(EMER GENC Y) TO PUR PO R TED NO TE IN DISPO SED AC TIO N & UNNO TIC ED &
UNAUTHO R IZED HEAR ING IN FR AUD O N C O UR T C ASE BASED O N DEFENDANT ET AL
12/22/2010 NO TIC E O F FILING O R IGINAL LO AN MO DIFIC ATIO N AGR EEMENT
01/04/2011 O BJEC TIO N TO FR AUD O N THE C O UR T BY JENNIFER FR ANKLIN-PR ESC O TT
01/12/2011 NO TIC E O F DR O PPING PAR TY JO HN DO E/JANE DO E
01/12/2011 MO TIO N FO R SUMMAR Y JUDGMENT
01/12/2011 AFFIDAVIT AS TO AMO UNTS DUE
01/12/2011 AFFIDAVIT AS TO ATTO R NEYS FEES
02/01/2011 C O PY
(FAX) NO TIC E O F O PPO SITIO N & O PPO SITIO N EVIDENC E/FR AUD EVIDENC E &
UNAVAILABILITY IN DISPO SED AC TIO N/NO TIFIC ATIO N O F C O URT & C LER K ET AL
02/07/2011 NO TIC E
O F FR AUDULENT AFFIDAVITS BY JASO N M TAR O KH ESQ & O F UNLAW FUL/
UNAUTHO R IZED AC T BY ALBER TELLI LAW (UNSIGNED)
02/08/2011 NO TIC E O F HEARING
02/22/11 @10:00A.M., DEFENDANT'S MO TIO N TO DISMISS/MO TIO N TO ENJO IN
02/08/2011 AMENDED NO TIC E O F HEAR ING
02/14/11 @3:30P.M. AMENDED MO TIO NFO R SUMMAR Y JUDGMENT AND FO R
ATTO R NEY FEES AGAINST PEDR O LUIS LIC O UR T
02/08/2011 AMENDED
MTO IN FO R SUMMAR Y JUDGMENT AND FO R ATTO R NEY FEES AGAINST P EDR O LUIS
LIC O UR T
02/09/2011 DEMAND
O F FO R ENSIC R EVIEW & AUDIT AND NO TIC E O F FR AUDULENT AND/O R INAC C UR ATE
AC C O UNTING IN DISPO SED AC TIO N

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Home / Records Search / Court Records / Public Inquiry / Search Results - A LL / C ase - 112009C A0060160001XX

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Case Information Printer Friendly Version

Style: BANKUNITED vs FRANKLIN-PR ESC O TT, JENNIFER

Uniform Case Number: 112009C A0060160001XX Filed: 07/09/2009
Clerks Case Number: 0906016C A
Court Type: C IR C UIT CIVIL Disposition Judge: HAYES, HUGH D
Case Type: MO R TGAGE FO R ECLO SUR ES Disposed: 08/12/2010
Judge: HAYES, HUGH D Reopen Reason:
Case Status: DISPO SED Reopened:
Next Court Date: Reopen Close:
Last Docket Date: 02/09/2011 A ppealed:

Parties Dockets Events Financials

Name Type DOB City, State, Zip

BANKUNITED PLAINTIFF
BANKUNITED FSB PLAINTIFF
PASKEW IC Z, SER ENA KAY ESQ PLAINTIFF'S ATTO R NEY MIAMI, FL 33134
R O SE, ER IN M ESQ PLAINTIFF'S C O -C O UNSEL TAMP A, FL 33623
FR ANKLIN-PR ESC O TT, JENNIFER DEFENDANT
PR ESCO TT, W ALTER DEFENDANT
DO E, JO HN DEFENDANT
DO E, MAR Y DEFENDANT

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.

Home | Site Map | Search | Disclaimer | Privacy Statement | FA Qs | Contact Us

This we bsite is m aintaine d by The C ollie r C ounty C le rk of the C ircuit C ourt. Unde r Flo rida law, e m ail
addre sse s are public re co rds. If you do not want your e m a il addre ss re le ase d in re sponse to a public
re cords re que st, do not se nd e m ail to this e ntity. Inste ad, co ntact this office by phone or in writing.

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