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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 APPEAL FROM “ROCKET DOCKET”, ROBO JUDGE(S) ‘02/22 ORDER’, “CORRECTION” OF DISPOSITION & FRAUD ON THE COURT IN DISPOSED CASE 1. “08/12/2011 DISPOSITION” RECORD EVIDENCE
2. “02/08/2011” “AMENDED HEARING” RECORD
OBJECTIONS TO “02/22/2011 ORDER” AND ILLEGAL “02/22/2011 HEARING” 3. The prima facie unauthorized “02/22/11 hearing” had been “amended” on 02/08/2011 and then cancelled:
4. The purported “02/22/2011 order” arose from an unlawful and previously cancelled hearing. 1
02/18/2011 NOTICE OF APPEAL AND 02/21/2011 CANCELLATION OF HEARING
RETIRED MONACO HAD NO AUTHORITY TO DENY PRESCOTT’S MOOT MOTION 5. After the 02/18/2011 NOTICE OF APPEAL, 02/21/2011 CANCELLATION OF HEARING 2/14/2011, and 08/12/2010 DISPOSITION, Judge Daniel R. Monaco had no authority to “deny” Jennifer Franklin-Prescott’s moot motions to dismiss & enjoin. ARBITRARY REMOVAL / “CORRECTION” OF “08/12/2010 DISPOSITION” RECORD 6. After the unlawful “02/22/11 hearing”, the Docket showed the removal and/or “correction” of the “08/12/2010 disposition”:
WHEREFORE, Jennifer Franklin-Prescott respectfully demands a legal explanation of said arbitrary and capricious “correction” and a copy of said “MEMORANDUM REGARDING CORRECTION OF THE DISPOSITION RECORD”. RETIRED JUDGE “RECYCLES” COMPLAINT OF BANK THAT LACKS STANDING 7. Here, the wrongful foreclosure action had been disposed on 08/12/2010 after Prescott had filed her Motion(s) to Dismiss. Here, retired Monaco failed to take judicial notice of the 08/12/2010 disposition and case file evidence. Here, Monaco did not read the case file(s) any more than the robo-signer at “BankUnited” and/or “Albertelli law”. One attorney described the sham process and bias towards the bank: “If the court finds for the defendant, the plaintiffs just re-file. The only way for the caseload to get reduced is to give the case to the plaintiff. The entire process is designed with that fraudulent result in mind.”
Here after disposition in favor of Franklin-Prescott, the court system has been rigged to enable “BankUnited” to commit fraud all over again. Monaco had no authority to overturn Judge Hayes’ disposition without any justification. Here after 08/12/2010, the motion to dismiss had been moot. For financial gain, retired Judge Monaco “re-opened” the closed door for the “plaintiff” so that “BankUnited” may continue to conceal its lack of note and standing. ROBO JUDGE MONACO CONCEALED PERVERSION OF LAW AND FACT 8. Here, “BankUnited” could not possibly obtain any termination of a purported equitable right of redemption by court order, because no admissible evidence of debt, genuine instrument, and/or promissory note was on file in this disposed case. Robo Judge Monaco knew and/or concealed that “BankUnited’s” robo-signed sham affidavits were null and void. OBJECTIONS TO HEARING BEFORE RETIRED JUDGE AFTER DISPOSITION 9. Here, Jennifer Franklin-Prescott had objected to the retired judge’s prejudice and rejection of correspondence and pleadings evidencing said fraud on the Court. 10. Airlines understand the risks of retired old pilots. Similarly, courts should not “hire” temporary judges who need the extra money to sign off on prima facie fraud and may lack the necessary understanding of instruments that did not even exist when they were on the bench. PREJUDICE AGAINST PRESCOTT IN FAVOR OF BANK ON THE RECORD 11. Jennifer Franklin-Prescott contacted Court Administration, which advised her of an alleged “Order” prejudicing Prescott. RECORD PREJUDICE AGAINST FRANKLIN-PRESCOTT 12. Hon. Daniel R. Monaco, a retired “temporary” judge reportedly “denied” FranklinPrescott’s [moot] motion(s) in her absence and without any authority. NOTICE OF APPEAL & RESPONSE TO UNLAWFUL HEARING & TRIAL 13. Hereby, Jennifer Franklin-Prescott appeals from said alleged “02/22/2011 order” and responds to the fraud on the Court and retired Judge Daniel R. Monaco.
In this disposed case, retired Monaco presided over said unauthorized and cancelled 02/22/2011 hearing in the excused absence of unavailable Franklin-Prescott and set an unlawful “trial”. Here, Monaco knew and/or concealed that “BankUnited” had no standing and/or real interest as conclusively evidenced by the file records. Because of the devastating NZ earthquake, Franklin-Prescott attached the “order” as shown on the Clerk’s Docket. NOTICE OF ILLEGALITY OF “TRIAL SET” ON 02/22/11 & UNAVAILABILITY 14. Under the well-proven circumstances, retired Judge Monaco had no authority to “set trial date for April 7, 2011” during said unlawful hearing. Here, Monaco deliberately deprived J. Franklin-Prescott who was entitled to dismissal in this disposed wrongful foreclosure action. Here, Monaco concealed that the filed evidence had conclusively proven “BankUnited’s” lack of standing and any entitlement to any trial. 15. Because of the devastating New Zealand earthquake, Franklin-Prescott is unavailable. Furthermore, Prescott fears further deliberate deprivations by retired robo Judge Monaco, who presides over the notorious 20th Circuit “rocket docket”. COURT DELIBERATELY DEPRIVED PRESCOTT OF FUNDAMENTAL RIGHTS 16. Franklin-Prescott had a fundamental Federal & Florida Constitutional right to attend any hearing of her own motions to dismiss and enjoin. However, Monaco deprived Prescott of said fundamental right to benefit “BankUnited”. ERRONEOUS AND AMBIGUOUS HEARING DATES & TIMES 17. The Docket showed an erroneous “hearing” and/or ”court time” of 09:00 AM:
While here the Clerk recorded said “09:00 Court Time”, Court Administration conflictingly stated otherwise. No hearing took place at 9:00AM. This Court deceived homeowner Franklin-Prescott about said a. “Amended hearing”; b. Cancellation of said amended 02/22/2010 hearing; c. Vague and ambiguous “court times”. UNAUTHORIZED “02/22/2011 HEARING” IN FAVOR OF “BANKUNITED” 18. For personal financial gain, retired Judge Daniel R. Monaco favored “BankUnited”. Here, “temporary” Judge Monaco knew that no authentic note existed and that “BankUnited” had
no right to sue, schedule a hearing, and/or foreclose on Prescott. Foreclosure of any right of redemption could only occur if there had been a contractual obligation. However here, no admissible evidence of any genuine executed note existed on the record. RETIRED ROBO JUDGE D. R. MONACO CONCEALED ILLEGALITY OF HEARING
19. Here, “rocket docket” Judge Monaco failed to take notice of the file evidence and
08/12/2010 disposition. Here, the judicial mission was not justice but speed and favors to “BankUnited” at Prescott’s expense. Monaco’s “rocket docket” launders fraudulent banking acts. Because banking crimes are so pervasive, Judges of the 20th Judicial feverishly rubberstamp the fraud away. Apparently in need of extra money, retired Judge Monaco presided over said unauthorized and cancelled hearing and the “correction” of the 08/12/2010 disposition record in the known absence of any note evidence.
D. R. MONACO KNEW THAT THE ALLEGED NOTE WAS NOT AUTHENTIC
20. Here, temporary Judge Monaco knew and/or concealed that Prescott had controverted the
authenticity of the purported note. Defendant Walter Prescott had not executed the alleged note pursuant to the evidence on file. Here, Monaco knew that there had been no proper execution, no notarial acknowledgment, no recording, and no contractual obligation.
21. Here no mortgage could possibly secure that which had been proven not to exist.
20TH CIRCUIT “ROCKET DOCKET” - BEAT-THE-CLOCK JUDICIAL TRICKERY 22. The notorious 20th Judicial Circuit has heard up to 1,000 cases per day. Assuming an 8-hour day, this equated to less than 30 seconds per case.
NO RULE-OF-LAW AND NO “REOPEN REASON” 23. Here, the Docket showed “Judge Hugh D. Hayes” and the lack of any “Reopen Reason”: Here, Monaco’s “rocket docket” was devoid of due process and the rule of law. WHY and HOW retired robo Judge Monaco was authorized to preside over the unauthorized and cancelled 02/22/11 hearing and overturn Judge Hayes’ 08/12/2010 disposition could not be explained by any reasonable person, judge or juror in Monaco’s shoes. NATIONAL EMERGENCY AND PRESCOTT’S NOTICE OF UNAVAILABILITY 24. Jennifer Franklin-Prescott, a United Kingdom citizen, has family, friends, and property in the Pacific. A national emergency was declared after the devastating NZ earthquake. Franklin-Prescott cannot leave because of said emergency and will therefore be unavailable. Hereby, Franklin-Prescott gives again notice of her unavailability. PRESCOTT FEARS FURTHER FRAUD, DEPRIVATIONS & SHAM PROCEEDINGS 25. After said unlawful “02/22/2011 hearing”, Prescott fears that Monaco may further extend his prima facie bias and again deprive her of due process and fundamental rights to defend against “BankUnited’s” fraud on the court. 26. Because here no reasonable person, juror or judge could possibly explain the record errors, contradictions, and arbitrary acts in this disposed case, Franklin-Prescott cannot possibly trust Judge Monaco, said Circuit, and said “rocket docket” sham proceedings. NO FEBRUARY HEARING HAD APPEARED ON THE 02/18/2011 DOCKET 27. Here, the 02/18/2011 Docket had not shown any hearing and/or hearing date:
UNKNOWN LOSS / DESTRUCTION OF PURPORTED PROMISSORY NOTE 28. 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” 29. 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 30. 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 31. This action was disposed, because BankUnited had failed to state any cause action. ATTACHMENTS PROVED BANKUNITED’S LACK OF STANDING & CAUSE 32. 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 7
33. 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 34. 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 35. 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 36. 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 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 37. 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 38. 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 39. 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 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”
40. 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). 41. 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). FranklinPrescott 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 42. 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 …” 43. 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
In this disposed action, Jennifer Franklin-Prescott was entitled to the dismissal of “BankUnited’s” facially frivolous and insufficient complaint and/or action as conclusively proven by the conclusive evidence on file. Retired robo Judge Monaco presiding over said illegal and cancelled hearing without the rule of law in the excused absence of Franklin-Prescott, capriciously overturning Judge Hayes disposition, and “setting trial” in the well-proven absence of any “BankUnited” standing was another unlawful “rocket docket” charade from which Franklin-Prescott is appealing. WHEREFORE Jennifer Franklin-Prescott respectfully demands 1. Proper processing of this NOTICE OF APPEAL and/or INTERLOCUTORY APPEAL; 2. An Order declaring the “trial set” during said unlawful and cancelled “02/22/10 hearing” in the excused absence of Franklin-Prescott unlawful for lack of due process and because 10
“BankUnited” had never been entitled to any action and trial for lack of standing and note in this disposed case; 3. An Order declaring the “correction of the disposition record” unlawful and prejudicial at Franklin-Prescott’s expense;
4. An Order enjoining retired robo Judge Monaco from any further deliberate deprivations of Franklin-Prescott’s fundamental Federal and Florida Constitutional rights to own her property without judicial fraud and fraud on the court; 5. An Order taking judicial notice of said binding precedent (BAC Funding) in support of the record 08/12/2010 disposition; 6. 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; 7. 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; 8. An Order declaring the cancelled “02/22/2011 hearing” unauthorized in this disposed action; 9. An Order declaring “BankUnited’s” prima facie sham “motion(s)” and “affidavits” unlawful in this previously disputed and disposed action; 10. An Order declaring the purported note and/or mortgage unenforceable; 11. An Order taking judicial notice of the prima facie unenforceability of the unrecorded, un-assignable, and unpaid mortgage (unpaid mortgage taxes); 12. An Order declaring the purported “plaintiff” to be in violation of Fed.R.Civ.P. 1.510 in this disposed and previously controverted action; 13. 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; 14. An Order declaring said affidavits “hearsay” and lacking any legal and/or factual basis in the absence of any authentic “note” and/or mortgage; 15. 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;
16. 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 UNLAWFUL “02/22/2011 ORDER” “S/MONACO”
CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of this NOTICE OF APPEAL has been delivered to “BankUnited”, “Albertelli Law”, P.O. Box 23028, Tampa, FL 33623, USA, the Clerk of Court, Hon. Hugh D. Hayes, and retired Hon. Daniel R. Monaco, Courthouse, Naples, FL 34112, USA, on February 24, 2011, Pacific Time. Respectfully, /s/Jennifer Franklin Prescott, fraud victim CC: Hon. Hugh D. Hayes (Disposition Judge), Albertelli Law, Hon. Daniel R. Monaco, Karen (JA), United States District Court, Clerk of Court, The Florida Bar, New York Times, et al. firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, NetNet@cnbc.com, email@example.com, firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, email@example.com, CollierJACS@ca.cjis20.org, firstname.lastname@example.org, lllayden@NAPLESNEWS.COM, email@example.com, firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, email@example.com, Collierclerk@collierclerk.com, Sue.Barbiretti@collierclerk.com, Jill.Lennon@collierclerk.com, Dwight.Brock@collierclerk.com, Robert.StCyr@collierclerk.com, firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, email@example.com,
UNLAWFUL “02/22/2011 ORDER” “S/MONACO”
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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 CBASS 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
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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 © 1992-2010 VersusLaw Inc.
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. JENNIFER FRANKLIN-PRESCOTT, et al., purported defendants. _________________________________________________________________________/ COMPLAINT OF FRAUD ON THE COURT & SHAM 02/22/11 HEARING AND EMERGENCY DEMAND TO ENJOIN BANKUNITED’S FRAUD IN DISPOSED CASE FROM: Jennifer Franklin-Prescott, “BankUnited” fraud victim TO: MARK MIDDLEBROOK, CCM, Senior Deputy Court Administrator 20th Judicial Circuit of Florida Phone: 239-252-8785 Fax: 239-252-8272 E-Mail: firstname.lastname@example.org [reportedly did not come to the office on 02/21/2011] Charles Rice, Director Collier County Probation Dept. Phone: 239-252-8135 E-Mail: email@example.com Karen Bailey, Administrative Assistant [reportedly unavailable] Debbie Mravic, “Case Manager”; “Program Coordinator” RE: Fraudulent “02/22/11” hearing” in disposed wrongful foreclosure case 09-6016-CA Dear Mr. Middlebrook: 02/21/2011 SKYPE CALLS TO COURT ADMINISTRATION 1. Thank you for our phone conversations via Skype from the Pacific on 02/21/2011, PM, regarding “BankUnited’s” fraud on the Court and unauthorized “02/22/2011 hearing”. DISPOSED CASE NO.: 09-6016-CA
COURT ADMINISTRATION FAVORS BANKUNITED & FAILS TO CANCEL 2. As conclusively evidenced by the Court’s “OFFICE POLICIES AND PROCEDURES”, the Court has failed to cancel the “02/22/2011 hearing”. The Court and its Administration have failed to rationally explain the errors and contradictions on the record. 3. Here, neither this Court nor any reasonable person could possibly explain WHY and HOW there could be any “hearing on 02/22/2011”: “OFFICE POLICIES AND PROCEDURES SENIOR JUDGE FORECLOSURE – Summary Judgments only Only hearings for Summary and Default Judgments may be scheduled on the Tuesday, Wednesday and Thursday dockets before Judge Daniel Monaco. These timeslots will be in 5 minute increments. (DO NOT schedule any other kind of motions on this docket.) All motions other than MSJ and DJ will be cancelled by Court Administration. No additional motions will be heard with the Summary/Default Judgments before Judge Monaco.” 02/08/2011 AMENDED NOTICE OF 02/14/2011 HEARING 4. Pursuant to the Docket in this disposed case, the unauthorized “02/22/2011 hearing” had been amended on “02/08/2011”. See “AMENDED NOTICE OF HEARING 02/14/11”. Pursuant to the public record, “BankUnited” and/or “Albertelli Law” did not appear on 02/14/2011. 5. After said 02/08/11 hearing amendment, the Court now alleges a “02/22/2011, 9:00AM” hearing. Said allegation is erroneous. See 02/21/2011 Docket. MOOT “MOTIONS TO DISMISS AND ENJOIN” IN DISPOSED ACTION 6. During said conversations today, Court administration alleged “motions to dismiss and enjoin”, which however are known to be MOOT after the 08/12/2010 disposition. ERRORS, ERRORS & FRAUD, FRAUD, FRAUD 7. After said 2010 disposition, and in the absence of any promissory note, the record evidenced a. Conflicting court dates and times; b. Erroneous ”plaintiff”” “BankUnited, FSB”; c. Erroneous parties such as, e.g., “Pedro Luis Licourt”; see 02/08/11 filings. “ALBERTELLI LAW” FORECLOSURE MILL & ROBO SIGNING 8. Crooked bank lawyers at the “Albertelli Law” Foreclosure Mill are not to run this Court. In this Court apparently anyone can schedule a hearing after disposition and in the known absence of, e.g., a. Any standing of the purported “plaintiff” bank; b. Any evidence of a contractual obligation/debt; c. Conditions precedent; d. Any notice of appearance.
THIS COURT KNEW OF “ROBO SIGNING” AND FRAUD ON THE RECORD 9. Here without any personal knowledge, e.g., Ashley Simon, Esq., and Barbie Fernandez “robo-signed” documents for unlawful purposes of defrauding the alleged “defendants”. 10. This Court knew that Jennifer Franklin-Prescott was under no contractual obligation to pay “BankUnited”, and the wrongful action was disposed. See evidence on file. 08/12/2010 DISPOSITION 11. The wrongful foreclosure action had been disposed on 08/12/2010 for lack of standing. Here, bankrupt “BankUnited, FSB” was seized by the F.D.I.C, and “BankUnited” had no standing and no right to sue “Jennifer Franklin Prescott”. RECORD UNAVAILABILITY IN DISPOSED ACTION 12. I have been in the Pacific and given notice(s) of my unavailability. See Docket. PREVIOUS UNAUTHORIZED HEARINGS 13. After the objections on file, previous unauthorized “hearings” on 09/02/2010 and 12/06/2010 did not take place. This is the third attempt by crooked bank lawyers to steamroll pro se “defendants” without any authority and in the record absence of any admissible and/or competent evidence of any debt and/or note. MANDATORY CANCELLATION FOR LACK OF SERVICE IN DISPOSED ACTION 14. Here, “BankUnited” did not serve any “timely notice” of hearing on Jennifer FranklinPrescott as also conclusively evidenced by the Clerk’s 02/18/2011 Docket. Here, said bank was not entitled to sue nor to any hearing. “A party/attorney scheduling a hearing must concurrently notice the matter in conformance with the Florida Rules of Civil Procedure and ensure timely notice is served on all pro-se parties and counsel of record in advance of the hearing. The original notice must be timely filed with the Clerk of Court.” Id. UNAUTHORIZED ATTORNEY “ANDREW LEE FIVECOAT”, ESQ. 15. “Andrew Lee Fivecoat” had no authority to schedule any hearing in said disposed wrongful foreclosure action. Here, Fivecoat knew and/or fraudulently concealed that “BankUnited” had no standing and that the exhibits on file conclusively evidenced that “BankUnited” was not identified as “lender” and was not any note holder and/or owner. PERJURIOUS EVIDENCE ON FILE 16. Forged and perjurious evidence are a fraud on the defendants and the court. After the bank had submitted sham “ownership” documents, it came back after the 08/12/2010 disposition to file more perjurious papers. ROBO / ROCKET DOCKET 17. Here, a retired “temporary” judge is paid to “accelerate” the rocket docket and has a financial interest in dispensing cases. In this disposed case, the record bias against “defendant” homeowner violates due process.
RETIRED ROBO JUDGE 18. Here, the retired robo judge failed to take judicial notice of the 08/12/2010 disposition and case facts. The robo judge is not reading the case file(s) any more than the robo signer at “BankUnited” and/or “Albertelli law”. One attorney observed: “If the court finds for the defendant, the plaintiffs just refile. The only way for the caseload to get reduced is to give the case to the plaintiff. The entire process is designed with that fraudulent result in mind.” Here after disposition in favor of Franklin-Prescott, the court system is set up to enable “BankUnited” to commit fraud over and over again. OBJECTION TO HEARING BEFORE RETIRED JUDGE AFTER DISPOSITION 19. Jennifer Franklin-Prescott objects to the retired judge‘s rocket docket. Here, all correspondence and pleadings evidencing the fraud on the Court have been utterly ignored. Retired “temporary” Judge Hon. D. R. Monaco does not even have any assistant. 20. Airlines understand the risks of retired pilots. Similarly, courts should not “hire” temporary judges who need the extra money to sign off on prima facie fraud. APPEAL & OBJECTION TO POST-RULE-OF-LAW “HEARING” 21. On 02/18/2011, I had appealed from the lack of due process and arbitrary and capricious acts in this disposed wrongful action. Here, defunct “BankUnited, FSB” was not any “plaintiff”, and “BankUnited” had no right to sue and/or schedule any hearing. WORLDWIDE PUBLICATION 22. These pleadings and/or communications have been published at www.scribd.com. See www.Google.com; www.YouTube.com. Respectfully, /s/Jennifer Franklin-Prescott, “BankUnited” fraud victim ATTACHMENTS
“POLL COLLIER’S NEW FORECLOSURE HEARING PROCESS FAVORS BANKS, ATTORNEYS SAY”; Naples News
“Naples Attorneys complain – Collier County new foreclosure hearing process only favors banks”
“Collier County Court and Foreclosure Case Hearings” Florida Attorney General New York Times Naples News Robert D. St. Cyr, Director, Community Outreach
Clerk of the Circuit Court, Collier County, FL; T: (239) 252-6879 The Honorable Daniel R. Monaco The Hon. Hugh D. Hayes, “Disposition Judge” Circuit Court Judges, Twentieth Judicial Circuit Judicial Assistants Karen / Jan Collier County Government Complex 3301 Tamiami Trail East Naples, Florida 34112 Phone: 239.774.8118; 239.252.8119; Fax: 239.252.8870; 239.775.5538; 239.774.9654; 239-252-8020 Email: firstname.lastname@example.org, email@example.com, firstname.lastname@example.org Other …