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Counterclaim and Demand For Trial by Jury
Counterclaim and Demand For Trial by Jury
Counterclaimants,
Defendants on Counterclaim(s).
_____________________________________________________________________________/
1. Here, the previously disposed action/complaint was never at issue, but the court abused its
discretion and set it for non-jury trial and “ordered” the “defendants” to “respond” after the
2. Pursuant to Fla. R. Civ. P. 1.440, this action was not even at issue and could not possibly be
set for non-jury trial. Here, “defendants” were entitled to dismissal and the hearing of their
motions to dismiss. Here, this action had been disposed on 08/12/2010 and was not ready to
be set for trial. Retired “robo” Judge Monaco has been in the pocket of the bank(s), and the
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3. Any order setting this disposed case for “trial” would have to be sent to the
4. Counterclaimants assert the following: (1) that they did not receive any order; and/or (2) that
without having received an order in an envelope mailed by this Court, it created doubt as to
the order's authenticity; and/or (3) that the unauthorized “trial” would commence less than
5. Apparently here, “robo” Judge Monaco seeks to deprive the defendants of due process.
6. Strict compliance with Florida Rule of Civil Procedure 1.440 is required and failure to do
so is reversible error. Ramos v. Menks, 509 So. 2d 1123 (Fla. 1st DCA 1986); Bennett v.
Continental Chemicals, Inc., 492 So. 2d 724 (Fla. 1st DCA 1984).
7. Counterclaimants have had a due process entitlement to notice and an opportunity to be heard
pursuant to Florida Rule of Civil Procedure 1.440. Bowman v. Kingsland Development, Inc.,
8. Here, counterclaimants’ fundamental due process rights are being violated by the defective
wrongful foreclosure action, the court would have to determine that the destroyed/lost notes
10. Here, Daniel R. Monaco knew and/or concealed that, e.g., the missing instruments were not
enforceable and null & void, and that the Court had no jurisdiction.
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UNKNOWN]. Here, “BankUnited” and the Court knew that reestablishment was legally
impossible.
issues so triable.
13. Pursuant to Rule 1.170, the counterclaimants have claims for affirmative relief against
14. In this previously disposed case, the complaint sought to reestablish destroyed/lost
(25 6TH Street North Naples, FL), which is in the possession of the defendant
counterclaimants.
15. While the previously disposed wrongful foreclosure suit appears to be equitable in nature,
destruction/loss of alleged instruments) and the counterclaims are based on the exhibits and
assertions that the recorded version and other versions of the instruments conflicted with
each other and were based on fraud and were, in fact, a forgery.
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16. “BankUnited” deceived the counterclaimants with regard to the true legal ownership and
enforceability of the alleged destroyed and/or lost instruments. Here as a matter of law, it
was impossible to reestablish the missing alleged instruments, and the counterclaimants
were entitled to protection and dismissal of the prima facie frivolous and insufficient
complaint.
17. Here, “Walter Prescott” was not the maker of any alleged promissory note dated February 15,
2006, or any other promissory note, as evidenced by the exhibits attached to the complaint.
18. Walter Prescott was not the maker of any “loan modification agreement” as evidenced by the
19. The purported “plaintiff”, “BankUnited”, has not alleged facts sufficient to demonstrate that
it invoked and/or could have possibly invoked the jurisdiction of this court. Here, plaintiff did
not satisfy and could not have possibly satisfied the required conditions precedent as
evidenced by the file. Here, the falsely alleged “promissory note and mortgage have been lost
or destroyed and are not in the custody or control of ‘BankUnited’, and the time and
20. Purported “plaintiff” “BankUnited” does not own and hold any genuine note and mortgage.
21. “BankUnited” failed its burden to affirmatively establish holder in due course status
pursuant to Florida law and Seinfeld v. Commercial Bank & Trust Co., 405 So.2d 1039-
22. Here, “BankUnited” even pleaded inability to establish holder in due course status because
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23. After the pleaded UNKNOWN destruction and loss of the purported note and mortgage
pursuant to paragraph 6 of the complaint, no legal and factual questions were and could
“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.”
24. Here, there was no evidence as to WHO possessed the note WHEN it was lost/destroyed.
25. Here, the undisputed evidence was that “BankUnited, FSB” did not have possession of the
alleged destroyed/lost instruments, and thus, could not enforce the note under section
673.3091 governing lost/destroyed notes/instruments. Because “BankUnited, FSB” could
not enforce the lost instruments under section 673.3091, it had no power of enforcement
which it could possibly assign and/or transfer to “BankUnited”.
26. [Were this Court to allow “BankUnited” to enforce the alleged lost instruments, because
some unidentified person further back in the chain may have possessed the note, it would
render the rule of law and 673.3091 meaningless.]
27. The alleged mortgage copy did not contain a copy of the alleged executed note.
28. “BankUnited” fraudulently prayed for reestablishment, no order reestablishing the lost
instruments was entered, and the wrongful action was disposed on 08/12/2010.
29. As a matter of law, reestablishment of the note was impossible under Ch. 673, Florida
Statutes, and the Uniform Commercial Code.
30. “BankUnited” is not in possession of the purported note and mortgage and not entitled to
enforce them.
31. “BankUnited” did not know WHO destroyed and/or lost the instruments WHEN and
HOW.
32. “BankUnited” which is wrongfully seeking to enforce the alleged note and mortgage was
not entitled to enforce the alleged instruments WHEN the UNKNOWN loss and/or
destruction of the alleged instruments occurred.
33. “BankUnited” did not acquire ownership of the instruments from anyone who was entitled to
enforce the alleged instruments WHEN the UNKNOWN loss and/or destruction of the
alleged instruments occurred. See § 673.3091, Florida Statutes (2010).
34. On 05/21/2009, “BankUnited, FSB” was seized.
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35. Here, there had been seizure and transfer which prohibited re-establishment.
36. “BankUnited” never produced nor re-established any authentic note and/or mortgage as
proven by the evidence before this Court.
37. The mortgage that was used to establish the terms of the allegedly lost note and mortgage
was controverted and challenged as to authenticity and alteration of its original terms.
38. This Court knew that “BankUnited’s” facially fraudulent affidavits were sham.
39. A person seeking enforcement of an instrument under UCC § 3-309(a)(b) must prove the
terms of the instrument and the person’s right to enforce the instrument.
40. “BankUnited” had to, but failed, to prove the terms of the alleged instruments and the
person’s right to enforce the alleged instruments.
41. Here, “BankUnited” failed to prove any terms, and the terms of the alleged obligation and/or
instrument were vague and ambiguous.
42. Here, Walter Prescott neither executed the purported note nor “loan modification agreement”.
FRAUDULENT, NULL, AND VOID “AFFIDAVITS”
43. This Court may not enter judgment in favor of “BankUnited”, because the Court knew that
the defendant counterclaimants are not adequately protected against loss and “BankUnited’s”
fraud on the Court by means of, e.g., null and void affidavits.
a. Controverted by the record evidence, “BankUnited” fraudulently stated under oath that
said disposed wrongful action was “uncontested” and allegedly devoid of genuine issues
of material fact. See, e.g., “Affidavit of Plaintiff’s Counsel as to attorney’s fees and costs”.
b. The “Albertelli Law” foreclosure mill employed unlawful “robo-signers” and “robo-
signing” schemes.
c. Barbie Fernandez fraudulently stated under oath, e.g., that BankUnited is the owner or
servicer for the owner of the lost/destroyed and non-reestablished instruments. See
“Affidavit as to amounts due and owing”;
d. Ashley Simon, Esq., stated under oath, e.g., that she had “not reviewed the actual file in
this case”. See “Affidavit as to reasonable attorneys fees”.
44. On the clear evidence presented and before this Court, “plaintiff” “BankUnited” had no
standing and no real interest, and this previously disposed wrongful foreclosure action
cannot be tried and/or adjudged under the Rules and Florida Statutes.
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45. Defendant counterclaimants did not default under the destroyed and/or lost note and
mortgage, and no payment was due to “BankUnited”.
46. “BankUnited” failed to assert any chain of title and/or assignment of the destroyed/lost note
and mortgage.
ALLEGED DESTROYED / LOST INSTRUMENTS / “LOAN MODIFICATION”
47. Section 673.4071, Alteration, Florida Statutes (2010), states in pertinent part:
(1)The term “alteration” means:
(a)An unauthorized change in an instrument which change purports to modify in any
respect the obligation of a party; or
(b)An unauthorized addition of words or numbers or other change to an incomplete
instrument which addition or change relates to the obligation of a party.
(2)Except as provided in subsection (3), an alteration fraudulently made discharges a
party whose obligation is affected by the alteration unless that party assents or is
precluded from asserting the alteration. No other alteration discharges a party, and the
instrument may be enforced according to its original terms.
(3)A payor bank or drawee paying a fraudulently altered instrument or a person taking
it for value, in good faith and without notice of the alteration, may enforce rights with
respect to the instrument according to its original terms or, in the case of an incomplete
instrument altered by unauthorized completion, according to its terms as completed.
48. Fraud was specifically articulated in United States v. Throckmorton, 98 U.S. 61, 65-66, 25
L. Ed. 93 (1878), in which the United States Supreme Court said:
Where the unsuccessful party has been prevented from exhibiting fully his case,
by fraud or deception practiced on him by his opponent, as by keeping him away
from court, a false promise of a compromise; or where the defendant never had
knowledge of the suit, being kept in ignorance by the acts of the plaintiff; or where an
attorney fraudulently or without authority assumes to represent a party and connives
at his defeat; or where the attorney regularly employed corruptly sells out his client's
interest to the other side--these, and similar cases which show that there has never
been a real contest in the trial or hearing of the case, are reasons for which a new suit
may be sustained to set aside and annul the former judgment or decree, and open the
case for a new and a fair hearing. (Citations omitted.)
Consistent with the general rule, Florida Courts have defined fraud as the
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COUNT I: FRAUD COUNTERCLAIM AGAINST DANIEL R. MONACO
49. The counterclaimants are suing retired “robo” Judge Daniel R. Monaco in his private
individual and official capacity. Here, Monaco exceeded the scope of any official capacity
50. Here, “BankUnited’s” and Daniel R. Monaco’s conduct were collateral to the allegations,
c. preside over an amended and then cancelled illegal hearing on 02/22/2011 in the
52. Thus, retired “robo” Judge Monaco’s non-jury trial did not square with the requirements of
53. Accordingly, a jury trial on all issues triable by jury must be granted.
54. Monaco and/or the Court knew that claims in which fraud is an issue should not be resolved
by summary judgment. See Barrios v. Duran, 496 So.2d 239 (Fla. 3d DCA 1986).
DISPOSED CASE WAS NEVER AT ISSUE -TRIAL WOULD VIOLATE DUE PROCESS
55. Pursuant to Fla. R. Civ. P. 1.440, this action was not even at issue and could not possibly be
set for trial. Here, the counterclaimants were entitled to dismissal and the hearing of their
motions to dismiss. Here, this action had been disposed on 08/12/2010 and was not ready to
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be set for trial. Retired “robo” Judge Monaco has been in the pocket of the bank(s), and the
56. Any order setting this disposed case for “trial” would have to be sent to the defendant
57. The counterclaimants assert the following: (1) that they did not receive any order; and/or (2)
that without having received an order in an envelope mailed by this Court, it created doubt
as to the order's authenticity; and/or (3) that the unauthorized “trial” would commence less
58. Apparently here, “robo” Judge Monaco seeks to deprive the defendant counterclaimants of
due process.
59. Strict compliance with Florida Rule of Civil Procedure 1.440 is required and failure to do
so is reversible error. Ramos v. Menks, 509 So. 2d 1123 (Fla. 1st DCA 1986); Bennett v.
Continental Chemicals, Inc., 492 So. 2d 724 (Fla. 1st DCA 1984).
60. The counterclaimants have had a due process entitlement to notice and an opportunity to be
61. Here, counterclaimants’ fundamental due process rights are being violated by the defective
62. It is well established that fraud and misrepresentation are valid affirmative defenses in a
foreclosure action. See Lake Regis Hotel Co. v. Gollick, 110 Fla. 324, 149 So. 204 (1933)
(misrepresentation). Fraud is also a legal action for damages that can be raised as a
counterclaim. See Spring v. Ronel Refining, Inc., 421 So.2d 46 (Fla. 3d DCA 1982).
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63. Fraud is a compulsory counterclaim to an action in foreclosure on the [here
lost/destroyed] note and/or mortgage. See Spring, supra; Yost v. American Nat'l Bank, 570
So.2d 350 (Fla. 1st DCA 1990). Fraud claims are compulsory counterclaims for purposes of
64. Here without any rational and legal explanation/justification, Monaco/the Court has been
speeding from the 08/12/2010 disposition to “trial” to favor the bank at counterclaimant
65. To grant any judgment of foreclosure in favor of “BankUnited”, the Court/Monaco would
have to find, among other things, that said bank owned the lost/destroyed mortgage/note and
66. However here, “BankUnited” had asserted the UNKNOWN loss and/or destruction of the
purported instruments in its complaint. Furthermore, the evidence on file had conclusively
proven non-performance of said conditions. See generally 37 Fla. Jur. 2d Mortgages and
67. If arbitrarily and capriciously, after the 08/12/2010 disposition, the foreclosure action
were to proceed to judgment in favor of “BankUnited”, then a jury would be bound by these
findings of fact, which facts are inextricably interwoven with the issues presented by the
foreclosure action to proceed before the petitioners' legal counterclaims would deny them
their fundamental right to a jury trial, which they have demanded, on those issues.
68. Here, retired “robo” Judge Monaco knew and/or concealed that a plaintiff must be the
owner/holder of the instrument(s) as of the date of filing suit pursuant to Jeff-Ray Corp. v.
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Jacobsen, 566 So. 2d 885 (Fla. 4th DCA 1990); WM Specialty Mortgage, LLC v. Salomon,
69. Here as of “07/09/2009”, the date of filing suit, “BankUnited” was not any holder and/or
70. “BankUnited” was not a holder of the lost/destroyed note at the time it wrongfully filed suit
(07/09/2009) or any time thereafter, was not entitled to enforce and/or reestablish the alleged
lost instruments, and no exception to this requirement was ever asserted. See Am. Bank of
the S. v. Rothenberg, 598 So. 2d 289, 291 (Fla. 5th DCA 1992) (finding that it is elementary
71. Here, “BankUnited” had neither standing nor any real interest and could not have possibly
72. Here, retired Judge Monaco and “BankUnited” had actual knowledge of the fraud and lack
of good faith prior to the falsely alleged transfer from “BankUnited, FSB” to “BankUnited”,
73. Here, temporary Judge Monaco knew and/or concealed that Prescott had controverted the
authenticity of the purported note amd that “defendant” Walter Prescott had not executed the
75. The counterclaimants are suing the Clerk of Court in his private individual and official
capacity. Here, said Clerk exceeded the scope of any official capacity.
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76. The “02/21/2011 memorandum from clerk to file regarding correction of the disposition
record to reflect the case as pending” was unauthorized and lacked any legal justification.
77. Here, the wrongful foreclosure action had been disposed by “Disposition Judge” H. D.
Hayes (disposition was reached by said Judge in a case that was not dismissed and in which
no trial has been held; Category (J). The Clerk and Daniel R. Monaco had no authority to
remove/overturn the 08/12/2010 judicial disposition record without any legal justification.
78. The Clerk had no judicial authority and was not to practice law at counterclaimants’
expense.
79. After the 08/12/2010 disposition, Albertelli Law and/or “BankUnited” “filed” the
“original note” which did not identify “BankUnited” as the holder or lender.
80. Albertelli Law and “BankUnited” also did not attach an assignment or any other evidence to
establish that it had purchased and/or acquired the alleged lost note and mortgage.
81. Here, Albertelli Law concealed that the required chain of title was not in evidence.
82. Furthermore, “BankUnited” did not file any genuine supporting affidavits or deposition
testimony to establish that it owns and holds the alleged lost/destroyed note and mortgage
83. Accordingly, the documents before this court and retired “robo” Judge Monaco at the
22/02/2011 unauthorized and cancelled hearing did not establish “BankUnited’s” standing
to foreclose the destroyed/lost note and mortgage, Thus, at this point, “BankUnited” was not
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RECORD LACK OF ADMISSIBLE EVIDENCE IN DISPOSED WRONGFUL ACTION
84. Defendants did not execute and deliver an authentic promissory note and mortgage to
“BankUnited”.
86. Here, neither any note nor mortgage were assigned and delivered to “BankUnited”.
87. Here there was no delivery of any written assignment of any instrument to “BankUnited”.
88. On or around 07/09/2009, Alfred Camner, Esq., the troubled founder of bankrupt and seized
“BankUnited, FSB”, had alleged unknown loss and/or destruction of a purported note and/or
mortgage.
89. Here because Alfred Camner was the bankrupt bank’s founder, it was as if “BankUnited,
90. Thereafter, Alfred Camner, Esq., Serena Kay Paskewicz, Esq., and/or the Camner Lipsitz Law
91. Here, Albertelli Law knew that a federal depository institution regulatory agency [F.D.I.C.]
was confronted with a purported lost agreement and/or instruments not documented in the
institution's records.
92. No agreement/instruments between a borrower and a bank, which does not plainly appear on
the face of an obligation or in the bank's official records is enforceable against the Federal
93. It makes no difference whether the issue is presented in the form of a claim or of a defense;
as long as the claim or defense is based upon an alleged agreement the terms of which are
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not contained within the four corners of the written obligation or found in the official records
of the financial institution, the claim or defense is barred. See, e.g., Langley v. FDIC, 484
U.S. 86, 91-92, 108 S. Ct. 396, 401, 98 L. Ed. 2d 340, 347 (1987).
94. Said rule was codified by the Federal Deposit Insurance Act of 1950, § 13(e), 64 Stat. 889, as
95. Here, the Court was obligated to determine and/or consider the lack of subject matter
96. "'Fraud upon the court' is a special kind of fraud, more serious in scope and implication
than fraud sufficient for relief under Federal Rule of Civil Procedure 60(b)(3) [Florida Rule
of Civil Procedure 1.540(b)(3)] or as a ground for an 'independent action." See 7 J. Moore &
J. Lucas, Moore's Federal PracticeP60.31-33 (2d ed. 1983); P60.33 at 515. See also Dankese
97. Thus, where an action is grounded on "fraud upon the court," traditional principles of
equity, the failure of the seeker of equity to do equity, etc., see, e.g., Kearley v. Hunter, 154
Fla. 81, 16 So.2d 728 (1944), which might disentitle one to relief, are not applied. As
Professor Moore notes: "The court must also distinguish between relief for 'fraud upon the
court,' for which there is no time limit, from relief by motion, for which there is a one-year
limitation, and from relief by independent action, which is limited only by laches." Moore's,
supra, P6.
98. The defendant counterclaimants objected to a non-jury trial, pointing out that they have been
demanded a jury trial, and again ask that the case be set for resolution before a jury.
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99. The court failed to communicate and notice the counterclaimants.
100. Section 22 of the Declaration of Rights contained within the Florida Constitution begins
by declaring that "The right of trial by jury shall be secure to all and remain inviolate." See
also Amend. VII, U.S. Const. Rule 1.430, Florida Rules of Civil Procedure also provides that
"The right of trial by jury as declared by the Constitution or by statute shall be preserved to
101. In the present case, Count I was at law for reestablishment of an alleged destroyed
and/or lost note and mortgage. The time and manner of the loss/destruction were
UNKNOWN.
102. The counterclaims are unquestionably suits at law seeking damages, the traditional
103. Thus, the issue with which this Court and its “rocket docket” must come to grips, then,
104. The claims at law are intermixed with the previously disposed wrongful foreclosure
action.
105. In the record absence of any [reestablished] instruments, “BankUnited” had failed to
state a cause of action, had no standing, and could not foreclose and sue.
106. Florida’s appellate courts had previously addressed intermixed causes: Spring v. Ronel
Refining, Inc., 421 So. 2d 46 (Fla. 3d DCA 1982); Adams v. Citizens Bank of Brevard, 248
So. 2d 682, 684 (Fla. 4th DCA 1971). The Spring court cited to Adams, in which the District
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conclude the case. But where the compulsory counterclaim entitles the counter-
claimant to a jury trial on issues which are sufficiently similar or related to the issues
made by the equitable claim that a determination by the first fact finder would
necessarily bind the latter one, such issues may not be tried non-jury by the court
since to do so would deprive the counter-claimant of his constitutional right to trial by
jury.
Here on 08/12/2010, the wrongful foreclosure action had been disposed. Here, Count I of
the complaint and the counterclaims were at law, and counterclaimants have been
107. The second Count of the counterclaim(s) seeks to quiet title to said real property that is
the subject of the destroyed/lost and non-reestablished instruments referenced in the facially
108. In this instance, Florida's quiet title statute specifically authorizes a trial by jury. Section
…if any defendant is in actual possession of any part of the land, a trial by jury
may be demanded by any party, whereupon the court shall order an issue in
ejectment as to such lands to be made and tried by a jury…
Thus, in Westview Community Cemetery of Pompano Beach v. Lewis, 293 So. 2d 373 (Fla.
4th DCA 1974), the court held that because a defendant on the counterclaim was a defendant
in actual possession of the land in question, either party was entitled to a jury trial on the
issues presented.
109. Counts 1 and 3 of the counterclaim are actions for damages for fraud and breach of
contract, both of which are common law actions for damages. Because here the causes of
action were intimately intertwined with the previously disposed equitable foreclosure claim
contained in the complaint, there was no question that the counterclaimants were entitled to
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a jury trial on the issues raised by these counts in advance of any non-jury trial on the
110. The counterclaimants are suing for breach of contract based on “BankUnited’s” record
111. “BankUnited” materially breached its duty of good faith and fair dealing, which
agreement” was not signed and executed by “defendant” Walter Prescott and therefore
113. Even though said “modification agreement” was not legally binding, “BankUnited”
“The interest rate required by this section 1 (7.625%) is the rate I will pay both before
and after any default described in the note.”
Here, the October 2010 “Affidavit as to amounts due and owing” fraudulently stated a
114. The “modified” mortgage was never recorded, and there was no evidence of taxes paid,
115. Even if the parties had entered into a new contract, it could not have been legally
substituted for the old contract unless there had been a novation. Here, there were no
"A novation is a mutual agreement between the parties for the discharge of a valid
existing obligation by the substitution of a new valid obligation." See Jakobi v. Kings
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Creek Vill. Townhouse Ass'n, 665 So. 2d 325, 327 (Fla. 3d DCA 1995) (citing Ades
v. Bank of Montreal, 542 So. 2d 1013 (Fla. 3d DCA 1989)).
“BankUnited” did not prove the substitution of the alleged new contract for the old and did
not show the four required elements of: (1) the existence of a previously valid contract; (2)
the agreement of the parties to cancel the first contract; (3) the agreement of the parties that
the second contract replace the first; and (4) the validity of the second contract. Id.
Here, the intention of “BankUnited” did not support novation, and the alleged lien was lost,
destroyed, and/or invalid, and the previously disposed foreclosure action wrongful.
116. Defendants’ affirmative defenses defeated the disposed action by a denial and/or
avoidance. “Defendants” admitted the UNKNOWN loss and/or destruction of the alleged
instruments, which could not be reestablished as a matter of law. See Schupler v.Eastern
Mortgage Co., 160 Fla. 72, 33 So.2d 586 (1948); Lovett v. Lovett, 93 Fla. 611, 112 So. 768
(1927).
117. In addition, defendants filed a counterclaim and/or cause of action that seeks
affirmative relief. The counterclaim and affirmative defenses were separate and distinct
Here, “plaintiff” “BankUnited” had failed to state a cause of action, and the court could
118.events.
not grant [summary] judgment because the defendants have asserted legally sufficient
affirmative defenses that have not been rebutted. See Ton-Will Enterprises, Inc. v. T & J
119. Here, “BankUnited” did not dispute that it failed to rebut defendants’ affirmative
defenses.
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120. Here, Defendants’ action/compulsory counterclaim for, e.g., damages for fraud and
121. Thus, this court erred by ignoring defendants’ affirmative defenses and denying
defendants’ motion to dismiss during an illegal “02/22/2011 hearing” which had been
cancelled.
a jury trial on issues which are sufficiently similar or related to the issues made by the
previously disposed foreclosure claim that a determination by the first fact finder would
necessarily bind the latter one. Therefore, the issues may not be tried non-jury by the court
to trial by jury.
123. Here, the issues and/or affirmative claims involved in the compulsory counterclaim
and/or fraud claim were sufficiently similar to the issues in the foreclosure action stated in
the complaint to require a jury trial of the claim at law before the equitable claims could
possibly be reached. Only after a jury verdict on the common law issues could the trial
124. Here, the rule is that even where a complaint lies solely in equity, the filing of a
a jury trial of the legal issues. See Widera v. Fla. Power Corp., 373 So. 2d 714 (Fla. 2d DCA
1979); Sarasota-Manatee Airport Auth. v. Alderman, 238 So. 2d 678 (Fla. 2d DCA 1970).
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125. “Defendants” were entitled to a jury trial on issues raised in their compulsory
counterclaim that are common to the previously disposed foreclosure claim. See Hightower
126. This court cannot determine the factual issues of fraud and misrepresentation without
127. Thus, the Court must first resolve the affirmative claims and defenses of fraud and
128. Here after the capricious removal of the 08/12/2010 disposition record, the prejudice
is especially predictable and the legal issues must be tried by jury. The defendants
129. The defendants in this disposed wrongful mortgage foreclosure action appealed the
130. In this disposed action, and in the absence of any re-opening, this court improperly
handled disputed factual issues raised in the affirmative defenses and compulsory
131. Here, it would be error to proceed with the previously disposed wrongful foreclosure
132. This court did not have the discretion to deny the demanded jury trial on these factual
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134. Defendants are entitled to trial by jury on, e.g., Count I of Plaintiff’s complaint
135. Here, defendants have a fundamental right to jury trial in Florida’s State Courts.
136. The Florida Constitution expressly provides for the right to trial by jury. Article I,
The right of trial by jury shall be secure to all and remain inviolate. The qualifications
and the number of jurors, not fewer than six, shall be fixed by law.
137. Art. I, § 22, Fla. Const. Similarly, the Seventh Amendment of the United States
Constitution provides:
In Suits at common law, where the value in controversy shall exceed twenty dollars,
the right of trial by jury shall be preserved, and no fact tried by a jury, shall be
otherwise reexamined in any Court of the United States, than according to the rules of
the common law.
138. Florida courts have consistently highlighted the importance of the right to a trial by
139.jury.
"Questions as to the right to a jury trial should be resolved, if at all possible, in favor of
the party seeking the jury trial, for that right is fundamentally guaranteed by the U.S.
and Florida Constitutions." Hollywood, Inc. v. City of Hollywood, 321 So. 2d 65, 71 (Fla.
1975); see also Hansard Constr. Corp. v. Rite Aid of Fla., Inc., 783 So. 2d 307, 308 (Fla. 4th
DCA 2000) ("Questions regarding the right to a jury trial should be resolved in favor of a
jury trial…") (citing King Mountain Condo Ass'n v. Gundlach, 425 So. 2d 569 (Fla. 4th
DCA 1982)).
140. When a plaintiff brings a count “in law and in equity” to re-establish a note and/or for
deficiency judgment against the defendants, defendants have a right to a jury trial.
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141. A complaint to re-establish a lost note and to have a personal decree against the
defendant(s) for the amount of debt to be evidenced by the re-established note is without
equity, because the lost instruments may be established by secondary evidence at law, and
defendants are entitled to a jury trial upon the alleged lost instruments. See Staiger v. Greb,
142. Because here, there is no dispute that plaintiff seeks to re-establish lost instruments and
to have a “deficiency judgment” against the defendants, the defendants are emtitled to
hearing” before retired “rocket docket” Judge Daniel R. Monaco who is in the pocket of
the bank(s).
144. On 08/12/2010, and after defendants’ Motions to Dismiss had been filed, this wrongful
145. This Court knew that “BankUnited” did not establish its entitlement to foreclose the
146. After said 2010 disposition, the action was never reopened.
147. The exhibits to “BankUnited's” complaint conflicted with its [false] allegations
concerning standing, and said exhibits did not show that “BankUnited” has standing to
foreclose the alleged lost/destroyed mortgage/note or was entitled to the illegal 02/22/2011
148. Here, the plain meaning of the exhibits controlled, evidenced lack of standing, and was
the basis for a motion to dismiss. Blue Supply Corp. v. Novos Electro Mech., Inc., 990 So.
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2d 1157, 1159 (Fla. 3d DCA 2008); Harry Pepper & Assocs., Inc. v. Lasseter, 247 So. 2d
149. The “trial” wrongfully “set” by temporary Judge Monaco and “BankUnited’s” motion
for summary judgment and were to be denied based on principles of collateral estoppel and
res judicata. Here on 08/12/2010, the Court had disposed of “BankUnited’s” wrongful
foreclosure action.
150. On 02/22/2011, retired “rocket docket” Judge Monaco had no authority to deny
PRESCOTT, JOHN DOE, and MARY DOE, file their “response(s)”, affirmative defenses
153. Paragraph 2 is denied. Here under paragraph 6, “said [alleged] 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.” Furthermore, said alleged
note and/or mortgage could not have possibly been re-established pursuant to Ch. 673,
Florida Statutes (2010), or any other law, and therefore, “BankUnited” had no standing and
154. Here, no “default” has and/or could have possibly occurred, and no contractual obligation
existed.
155. Paragraph 3 is denied. Here, “BankUnited” was never entitled to any action and/or
23
156. Paragraph 4 is denied.
158. Paragraph 6 is admitted and “said [purported] 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.” Furthermore, said alleged note and/or
mortgage could not have possibly been re-established pursuant to Ch. 673, Florida Statutes
(2010), or any other law, and therefore, “BankUnited” had no standing and right to
161. Paragraph 9 is denied. “BankUnited” is not any “successor in interest to” “BankUnited,
FSB”.
162. Paragraph 10 is denied. Here, “BankUnited” could not enforce and/or reestablish any note,
and pursuant to paragraph 6, the alleged “promissory note and mortgage have been lost or
destroyed and are not in the custody or control of ‘BankUnited’, and the time and manner
166. Here, paragraph 14 was vague and ambiguous as there were two “paragraph 14”.
167. Paragraph 14 is denied. None of the defendants owe(s) any fees to “BankUnited” in the
record absence of any note in evidence. Here, “BankUnited” owes fees to the defendants.
24
Here, there had been a disposed wrongful foreclosure action, which was facially frivolous
and insufficient.
168. Paragraph 15 is denied. Here, pursuant to paragraph 6 (Count I), the alleged “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.”
169. Paragraph 16 is denied. Here under Paragraph 6, “said [purported] 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.” Furthermore, said alleged
note and/or mortgage could not have possibly been re-established pursuant to Ch. 673,
Florida Statutes (2010), or any other law, and therefore, “BankUnited” had no standing and
170. Jennifer Franklin-Prescott owns the property at 25 6th Street North, Naples, Florida 34102.
171. Under Rule 1.420(f), Fla. R. Civ. P. (2010), the improper and unauthorized lis pendens
172. Pursuant to § 48.23(2), Fla. Stat. (2010), the notice of lis pendens became invalid on
07/10/2010.
173. Here, the instruments were missing and the lis pendens was unjustified under Florida
Communities Hutchinson Island v. Arabia, 452 So.2d 1131, 1132 (Fla. 4th DCA 1984).
174. Here, the null and void lis pendens placed a non-existent cloud on the title. See Andre
Pirio Assocs. v. Parkmount Properties, Inc., N.V., 453 So.2d 1184, 1186 (Fla. 2d DCA
1984).
25
175. In this disposed action, the purported “plaintiff” frivolously sought to re-establish the
176. Franklin-Prescott had filed her answer(s) and motions to dismiss and proven plaintiff’s
177. The record evidence established that plaintiff could not possibly re-establish the note and
that no authentic instruments could possibly be proven under the Evidence Code.
179. Purported plaintiff “BankUnited” is not any note owner/holder, had no standing, and could
not possibly declared any amounts due under a lost, destroyed, and/or non-reestablished note.
180. Here, the record did not conclusively establish that “BankUnited” is a holder in due
course of any negotiable instrument. “BankUnited” did not raise any law and/or doctrine
under which “BankUnited” did and/or could have possibly become a note owner and/or
185. The purported lost mortgage lien was unenforceable due to the deprivation of the
original instrument(s). Here, “BankUnited” was unable to enforce any mortgage lien,
186. “BankUnited” filed the wrongful suit after the May 2009 seizure of defunct
“BankUnited, FSB”.
26
187. After bankrupt “BankUnited, FSB” was seized, its troubled founder, Alfred Camner,
188. As founder of defunct “BankUnited, FSB”, Alfred Camner knew and concealed that the
“BankUnited”.
189. Here, time and manner of the loss were UNKNOWN pursuant to the 07/09/2009
complaint.
190. Here, “BankUnited” was not any assignee and did not hold title in the purported
lost/destroyed instruments.
191. Here, the record had conclusively evidenced the lack of any chain of title.
192. “BankUnited” was not any real party in interest, did not hold legal title to the
destroyed/missing mortgage and note, and was not the proper party to file suit to foreclose
193. Here, there was no effective assignment from “BankUnited, FSB” to “BankUnited” or any
legal justification why and how “BankUnited” could possibly be entitled to enforce the lost
instruments.
194. The destroyed/lost instruments were unenforceable as a matter of law. See, e.g., section
195. Here, retired Monaco and the Court knew that “BankUnited” failed to meet, and could not
possibly have met, the Uniform Commercial Code provisions pertaining to lost and/or
possibly occur. See Article 3, U.C.C.; Ch. 673, Florida Statutes (2010).
27
196. The endorsement in blank was unsigned and unauthenticated, creating a genuine issue
of material fact as to whether “BankUnited” was the lawful owner and holder of the
Jacques, 28 So. 3d 936 (Fla. 2d DCA 2010), there were no supporting affidavits or
deposition testimony in the record to establish that “BankUnited” validly owns and holds the
of purchase of the alleged debt nor any other evidence of an effective transfer. Therefore, the
197. This Court knew of binding precedent and that the Second District had confronted a
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
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
198. This Court knew that “BankUnited” cannot foreclose on the note and mortgage, because
“plaintiff” is not in possession of the original note and did not reestablish the alleged
lost/destroyed instruments. See § 673.3091(1), Fla. Stat.; Dasma Invest., LLC v. Realty
Associates Fund III, L.P. 459 F. Supp. 2d 1294, 1302 (S.D. Fla. 2006).
199. Here, this Court knew that “BankUnited” had no standing and/or right to sue and/or
foreclose.
28
200. This Court knew that defendants had demanded indemnification of defendants for
201. So far, this Court did not require a bond pursuant to Lovingood v. Butler Construction
202. However in this disposed action, the bond was simply mandatory pursuant to 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).
203. The notorious 20th Judicial Circuit has heard up to 1,000 foreclosure cases per day.
Assuming an 8-hour day, this equated to less than 30 seconds per case, which established
organized bias against defendants and homeowners.
204. The law prohibits “rocket dockets” for speed and errors at the expense of justice in favor
of banks and lenders.
29
205. Here, the Docket showed “Judge Hugh D. Hayes” and the lack of any “Reopen Reason”
New Zealand
208. 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.
30
Franklin-Prescott cannot leave because of said emergency and will therefore be unavailable.
209. 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/she 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,
person or a person that cannot be found or is not amenable to service of process. 673.3091
210. Here, “defendants” had denied that “BankUnited” has ever had possession of the alleged
note and/or mortgage and/or that “plaintiff” was ever entitled to enforce the instruments the
loss and destruction of which were UNKNOWN. “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”
31
211. 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, defendants
specifically have been denying all necessary terms of the note are provided in the attached
mortgage/note. Clearly, since the note has been missing, necessary endorsements on the note
are missing; as such, essential terms and conditions precedent were not provided by the
212. 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
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.
213. Defendants’ motion to recuse retired Judge D. R. Monaco was legally sufficient,
because the facts alleged demonstrate that the moving party has a well-grounded fear that
defendants will not receive a fair trial at the hands of said judge. Cave v. State, 660 So. 2d
32
PRESCOTT FEARS FURTHER FRAUD, DEPRIVATIONS & SHAM PROCEEDINGS
214. 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
215. 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.
victims;
2. An Order for compensatory and punitive damages for breach of contract in favor of
counterclaimants;
3. An Order for judgment against “BankUnited” for counterclaimants’ damages and for an
award of attorney’s fees and for all other relief to which counterclaimants prove entitled;
6. An Order declaring rogue “robo” Judge Monaco’s lack of jurisdiction to overturn and/or
Appeal;
7. An Order properly setting this Motion to Dismiss for hearing so that Franklin-Prescott can
33
9. 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
“BankUnited” had never been entitled to any action and trial for lack of standing and note in
10. An Order declaring the “correction of the disposition record” unlawful and prejudicial at
Franklin-Prescott’s expense;
11. An Order enjoining retired robo Judge Monaco from any further deliberate deprivations
12. An Order taking judicial notice of said binding precedent (BAC Funding) in support of the
13. 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
14. 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;
15. An Order declaring the cancelled “02/22/2011 hearing” unauthorized in this disposed
action;
16. An Order declaring “BankUnited’s” prima facie sham “motion(s)” and “affidavits”
34
18. An Order taking judicial notice of the prima facie unenforceability of the unrecorded,
19. An Order declaring the purported “plaintiff” to be in violation of Fed.R.Civ.P. 1.510 in this
20. 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;
21. An Order declaring said affidavits “hearsay” and lacking any legal and/or factual basis in
22. 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;
23. An Order prohibiting Counsel and/or Jason M. Tharokh, Esq., who did not file any notice
Respectfully,
/s/Jennifer Franklin-Prescott, BankUnited foreclosure fraud victim
/s/Walter Prescott, foreclosure fraud victim
ATTACHMENTS
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,
Respectfully,
35
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.
robin.sidel@wsj.com, dawn.wotapka@dowjones.com, erose@albertellilaw.com,
NetNet@cnbc.com, khundley@sptimes.com, mmiddlebrook@ca.cjis20.org,
dmclaughlin9@bloomberg.net, crice@ca.cjis20.org, drovella@bloomberg.net,
pforeclosures@ca.cjis20.org, hforeclosures@ca.cjis20.org, CollierJACS@ca.cjis20.org,
kbailey@ca.cjis.org, lllayden@NAPLESNEWS.COM, dwilliams@ca.cjis.org,
tom.lyons@heraldtribune.com, eecamner@clplaw.net, acamner@clplaw.net,
dmonaco@ca.cjis20.org, hhayes@ca.cjis20.org, froomkin@huffingtonpost.com,
darlene.muszynski@collierclerk.com, christine@desertedgelegal.com,
Collierclerk@collierclerk.com, Sue.Barbiretti@collierclerk.com, Jill.Lennon@collierclerk.com,
Dwight.Brock@collierclerk.com, Robert.StCyr@collierclerk.com, afivecoat@albertellilaw.com,
simone@albertellilaw.com, nreed@albertellilaw.com, tbaron@albertellilaw.com,
jsawyer@albertellilaw.com, jalbertelli@albertellilaw.com,
36
3/3/2011 Fwd: DISPOSED CASE & FRAUDULENT…
From: bhtjw@aol.com
To: Naplesnano@aol.com; JRBU@aol.com
Subject: Fwd: DISPOSED CASE & FRAUDULENT "HEARING", RETIRED TEMP. JUDGE HON. DANIEL R. MONACO
Date: Thu, Mar 3, 2011 3:00 pm
-----Original Message-----
From: Darlene M. Muszynski <Darlene.Muszynski@collierclerk.com>
To: bhtjw@aol.com
Sent: Mon, Feb 21, 2011 7:18 am
Subject: RE: DISPOSED CASE & FRAUDULENT "HEARING", RETIRED TEMP. JUDGE HON. DANIEL R. MONACO
We have received various e mails regarding this case. Please be advised that we cannot accept e filing or fax’s.
You may submit original documents for filing to:
Darlene Muszynski
Assistant Director Civil
(239) 252-2706
darlene.muszynski@collierclerk.com
This e le ctronic com m unica tion is confide ntial a nd m a y conta in privile ge d inform ation inte nde d sole ly for the nam e d
addre sse e (s). It m a y not be use d or disclose d e x ce pt for the purpose for which it ha s be e n se nt. If you are not the
inte nde d re cipie nt, you m ust not copy, distribute or ta k e a ny a ction induce d by or in re liance on inform a tion conta ine d in
this m e ssa ge .
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2/21/2011 Public Inquiry
Home / Records Search / Court Records / Public Inquiry / Search Results - A LL / C ase - 112009C A0060160001XX
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2/21/2011 Public Inquiry
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
02/15/2011 NO TIC E
O F O BJEC TIO N TO ANY HEAR ING & MAGISTR ATE IN DISPO SED C ASE AND O F BEING
BINDING PR EC EDENT IN SUPPO R T O F 8/12/10 DIPO SITIO N
02/17/2011 AFFIDAVIT
& O R DEC LARATO R Y STATEMENT IN DISPO SED AC TIO N AS TO LAC K O F STANDING
O F BANKUNITED & ITS FRAUD O N THE C O UR T
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.
apps.collierclerk.com/…/Case.aspx?UC… 2/2