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, WALTER PRESCOTT, JOHN DOE, MARY DOE, Counterclaimants, vs. PREVIOUSLY DISPOSED CASE NO.: 09-6016-CA
BANKUNITED [non-successor in interest to bankrupt “BANKUNITED, FSB”], DANIEL R. MONACO (personal & official capacity), CLERK OF COURT (personal & official capacity), ALBERTELLI LAW, Defendants on Counterclaim(s). _____________________________________________________________________________/ DISMISSAL OF PREVIOUSLY DISPOSED ACTION AND CANCELLATION OF ILLEGAL NON-JURY TRIAL AS A MATTER OF LAW DISMISSAL OF PREVIOUSLY DISPOSED ACTION UNDER RULE 1.420 1. The previously disposed action must be dismissed pursuant to F.R.Civ.P. 1.420, which states: (f) Effect on Lis Pendens. If a notice of lis pendens has been filed in connection with a claim for affirmative relief that is dismissed under this rule, the notice of lis pendens connected with the dismissed claim is automatically dissolved at the same time. The notice, stipulation, or order shall be recorded. 08/12/2010 AUTOMATIC DISSOLUTION OF LIS PENDENS 2. Here, the fraudulent notice of lis pendens connected with the 08/12/2010 disposition was automatically dissolved at the same time, i.e., on 08/12/2010. Defendant Clerk’s unlawful removal of the disposition record was fraudulent:
RECORD “SUGGESTION OF BANKRUPTCY” 3. Here, there has been a suggestion of bankruptcy and the lack of any cause of action on the record. Allegedly, the mandatory instruments and conditions precedent strictly required to establish any cause of action were destroyed and/or lost and could not be reestablished, because, e.g., the manner and time of the loss and/or destruction were UNKNOWN. Defunct “BankUnited, FSB” underwent bankruptcy. COUNTERCLAIMANTS ARE ENTITLED TO TRIAL BY JURY (SEE COUNT I; COUNTERCLAIM) 4. The Counterclaimants/Defendants had demanded and are entitled to trial by jury. Here, the destroyed/lost instruments could not be reestablished. THIS COURT ERRED & VIOLATED THE STRICT MANDATE OF RULE 1.440 5. RULE 1.440, SETTING ACTION FOR TRIAL, states: (a) When at Issue. An action is at issue after any motions directed to the last pleading served have been disposed of or, if no such motions are served, 20 days after service of the last pleading. The party entitled to serve motions directed to the last pleading may waive the right to do so by filing a notice for trial at any time after the last pleading is served. The existence of crossclaims among the parties shall not prevent the court from setting the action for trial on the issues raised by the complaint, answer, and any answer to a counterclaim. (b) Notice for Trial. Thereafter any party may file and serve a notice that the action is at issue and ready to be set for trial. The notice shall include an estimate of the time required, whether the trial is to be by a jury or not, and whether the trial is on the original action or a subsequent proceeding. The clerk shall then submit the notice and the case file to the court. (c) Setting for Trial. If the court finds the action ready to be set for trial, it shall enter an order fixing a date for trial. Trial shall be set not less than 30 days from the service of the notice for trial. By giving the same notice the court may set an action for trial. In actions in which the damages are not liquidated, the order setting an ac-tion for trial shall be served on parties who are in default in accordance with rule 1.080(a). (d) Applicability. This rule does not apply to actions to which chapter 51, Florida Statutes (1967), applies BINDING PRECEDENT PROHIBITED ANY NON-JURY TRIAL 6. Strict compliance with Florida Rule of Civil Procedure 1.440 is required and failure to do so is reversible error. See Ramos v. Menks, 509 So.2d 1123 (Fla. 1st DCA 1986); Bennett v.
Continental Chemicals, Inc., 492 So.2d 724 (Fla. 1st DCA 1984); see also Broussard v. Broussard, 506 So.2d 463 (Fla. 2d DCA 1987). Id. 7. Serious consequences occur when a case is set for trial prematurely as here prejudicially and capriciously by “temporary” “rocket docket” Judge Daniel R. Monaco. 8. Fla.R.Civ.P. 1.440(a) provides that an action is not at issue until all motions directed to the last pleading have been disposed of, or if no such motions are served, twenty days after service of the last pleading, unless the party entitled to serve motions waives the right to do so by filing a notice for trial. DEFENDANTS’ RECORD OBJECTIONS & OBJECTIONS UNDER RULE 1.440 9. Defendants have objected to, e.g., non-compliance with Florida Rule of Civil Procedure 1.440, bench-trial, omission of jury trial, omission of evidentiary hearing proving the lack of “BankUnited’s” standing and lack of right to sue and foreclose the alleged destroyed and/or lost mortgage/note. FRAUD ON THE COURT SCHEME BY RETIRED “ROBO” JUDGE MONACO 10. Here, on 02/21/2011, the wrongful foreclosure action had been disposed, and retired “robo” Judge Monaco could not have possibly “disposed of” Defendants’/Counterclaimants’ “Motion to Dismiss”. Defendant Clerk’s Docket showed a “9:00 AM” hearing, which never took place on 02/21/2011. Furthermore here, the illegal “02/22/2011 hearing” had been amended and was then cancelled:
11. Fla.R.Civ.P. 1.440(c) provides that a Court may not set the trial less than thirty days from the time of service of the notice for trial. 12. Said prohibition against setting a cause for trial until the pleadings are settled and twenty days has passed is apparently to permit the parties to focus their attention on pleading issues during the time the pleadings are not at issue and then allow them to refocus their attention on the trial with a built in thirty day hiatus. 13. On 02/17/2011, Defendants had filed their Affidavit conclusively evidencing fraud on the Court and deliberate deprivations of due process and Counterclaimants’ fundamental Florida and Federal Constitutional rights. 14. On 02/18/2011, Defendants had filed their Notice of Appeal. 15. On 02/21/2011, the hearing(s) were cancelled. DISPOSED CASE WAS NOT AT ISSUE 16. Here, the pleadings were open, the pleadings not settled, and the case was not at issue. This Court had no authority to set the case for non-jury trial. 17. Here at the time of the alleged fraudulent “02/22/2011, 9:00AM, hearing”, this case which had been disposed on 08/12/2010, was disposed and not at issue:
18. In Precision Constructors, Inc. v. Valtec Construction Corp., 825 So. 2d 1062 (Fla. 3rd DCA 2002), the appellate court reversed a final judgment in a case which was tried before the case was at issue. NO TIMELY NOTICE OF TRIAL WAS FILED 19. Furthermore here, no notice for trial was filed. See Docket. 20. Said Court held that failure to adhere strictly to the mandates of Rule 1.440 was reversible error. ANY NOTICE OF TRIAL WOULD HAVE BEEN NULL & VOID 21. Courts have even held that a notice for trial before the case is at issue is a nullity, not to be considered on the issue of whether or not there has been record activity under Fla.R.Civ.P. 1.420(e). See Jones v. Volunteers of American North and Central Florida, Inc., 834 So.2d 280 (Fla. 2nd DCA 2003) and Alech v. General Ins. Co., 491 So. 2d 337 (Fla. 3rd DCA 1986). 22. Fla.R.Civ.P. 1.440 must be strictly construed so as not to set a case for trial prematurely. 23. In the event of amendments and/or open pleadings after a case is set, a new notice of trial must be filed once the pleadings are again settled. DEPRIVATIONS, TAINTED COURT, AND DEMAND FOR RECUSAL 24. Florida Appellate Courts have strictly construed the requirements of Fla.R.Civ.P. 1.440 to preclude the setting of a trial when a case is not at issue as in the instant previously disposed action. 25. Here, this Court did not comply with said Rule and tainted any judgment. The Counterclaimants defend against the Court’s deliberate deprivations of Counterclaimants’ rights to a jury trial.
26. Here, Defendant Judge Monaco knew and/or fraudulently concealed that a. b. c. d. “BankUnited” had lacked any standing; “BankUnited” had failed to comply with Florida Statutes and Rules of Civil Procedure; The lost/destroyed instruments were not and could not possibly be reestablished; On the facts and the law the party seeking affirmative relief had shown no right to relief. EMERGENCY DEMAND FOR DISQUALIFICATION/RECUSAL 27. The Defendants/Counterclaimants had filed their “EMERGENCY DEMAND FOR DISQUALIFICATION/RECUSAL OF RETIRED ”ROBO” JUDGE D. R. MONACO & REMOVAL OF ‘ROCKET DOCKET’” DEMAND FOR DISQUALIFICATION OF ROGUE “ROBO” JUDGE D. R. MONACO 28. "The motion [for disqualification] is legally sufficient if the facts alleged demonstrate that the moving party has a well grounded fear that she or he will not receive a fair trial at the hands of the judge." See Cave v. State, 660 So. 2d 705, at 708 (Fla. 1995). 29. Here, the moving party and/or Defendants/Counterclaimants were entitled to the demanded jury trial. However, retired “robo” Judge Daniel R. Monaco has been in the pocket of the bank(s), and without any authority, set a bench trial for 04/07/2011 during an unlawful and cancelled “hearing” on “02/22/2011”. ILLEGAL “HEARING”-SCHEME & DECEPTION 30. Here, Defendant Clerk had reported a “9:00 AM” hearing, which did not take place on 02/22/2011.
EMERGENCY 31. It is an utter emergency when rogue Judges are allowed to a. Partially and capriciously favor “plaintiff” bank(s); b. Pervert the law and Florida and Federal Constitutions; c. Deliberately deprive Defendants of their fundamental rights to due process;
d. Deliberately deprive Defendants of their fundamental rights to jury trial; e. Inore Florida Supreme Court proceedings. PRIMA FACIE PARTIALITY & FRAUD ON COURT BY DEFENDANT MONACO 32. Here, rogue “robo” Judge Daniel R. Monaco agreed with the bank to keep the pro se Defendants/Counterclaimants away from the Court and to perpetrate fraud upon this Court. In particular, said retired Judge knew and/or fraudulently concealed that a. “BankUnited” could not verify ownership of the destroyed/lost mortgage and/or note; b. “BankUnited” had no right to enforce the missing instruments; c. “BankUnited” could not ensure that the allegations in its facially frivolous complaint were accurate; d. “BankUnited” wasted judicial resources on lost note counts and inconsistent allegations; e. “BankUnited” could not possibly reestablish the lost/destroyed instruments; f. Counterclaimants/Defendants were entitled to jury trial, because “BankUnited” had prayed for reestablishment of alleged destroyed/lost instruments (Count I). COUNTERCLAIMANTS HAD DEMANDED RELIEF FROM EXTRINSIC FRAUD 33. Because of Monaco’s misconduct and collateral extrinsic fraud on the record, the Defendants/Counterclaimants had filed their: “EMERGENCY MOTION TO RELIEVE DEFENDANTS/COUNTERCLAIMANTS FROM FRAUDULENT “ORDER” BY RETIRED “ROBO” JUDGE D. L. MONACO AND VACATE PROCEEDINGS, ORDER, AND NON-JURY TRIAL” D. R. MONACO DID NOT COMPLY WITH INTENT OF FLORIDA SUPREME COURT 34. Here, because of frivolous and/or insufficient bank complaints, the Florida Supreme Court required verification of mortgage foreclosure complaints in amended Rule 1.110(b): … require verification of mortgage foreclosure complaints involving residential real property. The primary purposes of this amendment were (1) to provide incentive for the plaintiff to appropriately investigate and verify its ownership of the note or right to enforce the note and ensure that the allegations in the complaint are accurate; (2) to conserve judicial resources that are currently being wasted on inappropriately pleaded ―lost note counts and inconsistent allegations; (3) to prevent the wasting of judicial resources and harm to defendants resulting from suits brought by plaintiffs not entitled to enforce the note; and (4) to give trial courts greater authority to sanction plaintiffs who make false allegations.
See In re Amendments to the Florida Rules of Civil Procedure, Supreme Court of Florida, Rule 1.110; Form 1.924. ROGUE JUDGES “BENCH-TRIAL” FRAUD SCHEME 35. A cause can be dismissed for fraud upon the showing of pretense, fraud, collusion and/or other similar wrongdoing as conclusively evidenced in this case of alleged lost/destroyed instruments. 36. Here on “02/22/2011”, rogue Judge Monaco had deliberately deprived the
Defendants/Counterclaimants of their rights to dismissal of the prima facie fraudulent action. 37. Here, “BankUnited’s” testimony was impeached with inconsistencies on material issues, and “plaintiff’s” and Counsel’s veracity and credibility had been clearly placed in question. 38. Whether the alleged exhibits of the lost/destroyed note's essential terms proffered by “BankUnited” were adequate for their reestablishment was a matter for determination by the triers-of-fact in a jury trial and cannot be decided as a matter of law. EVIDENCE OF PREJUDICE ON THE RECORD & JUDGE’S RECUSAL REFUSAL 39. Here, said temporary “rocket docket” Judge Monaco exceeded the proper scope of inquiry, which alone was a basis for disqualification. See Fla. R. Jud. Admin. 2.160(g); Cave v. State, 660 So. 2d 705, 708 (Fla. 1995) ("When a judge has looked beyond the mere legal sufficiency of a suggestion of prejudice and attempted to refute the charges of partiality, he has then exceeded the proper scope of his inquiry and on that basis alone established grounds for his disqualification.") (citations omitted); J&J Indus., Inc. v. Carpet Showcase of Tampa Bay, Inc., 723 So. 2d 281, 283 (Fla. 2d DCA 1998) ("Attempts to refute the charges of partiality exceed the scope of inquiry and alone establish grounds for disqualification.") (citations omitted); Kielbania v. Jasberg, 744 So. 2d 1027, 1028 (Fla. 4th DCA 1997)
(holding that "even though there is no evidence of actual bias, we find that recusal is necessary to satisfy the appearance of justice."). Here, this previously disposed case must be assigned to a different judge for further proceedings and be removed from this Court’s notorious “rocket docket”. 03/02/2011 COUNTERCLAIM & DEFENDANT JUDGE MONACO 40. On or around March 2, 2011, Defendants/Counterclaimants had filed their counterclaim: “COUNTERCLAIM(S) AND DEMAND FOR TRIAL BY JURY DEMAND FOR AFFIRMATIVE RELIEF IN ADDITION TO AFFIRMATIVE DEFENSES DISPOSED WRONGFUL FORECLOSURE ACTION WAS NEVER AT ISSUE” RECORD FRAUD & FRAUD ON THE COURT IN DISPOSED WRONGFUL ACTION 41. Defendants had raised well-evidenced fraud and fraud on the court issues. 08/12/2010 DISPOSITION RECORD & LACK OF “PLAINTIFF’S” STANDING 42. Bankrupt “BankUnited, FSB” was not any “plaintiff” and could not possibly be any “party” to this previously disposed wrongful foreclosure action. SUGGESTION OF BANKRUPTCY AND 08/12/2010 DISPOSITION 43. Here, Defendant Clerk knew that the wrongful foreclosure action had been disposed for, e.g., lack of “plaintiff’s” standing after suggestion of bankruptcy: “Report cases disposed when a suggestion of bankruptcy is filed. Cases involving multiple defendants should not be reported disposed at this juncture if disposition is still pending as to remaining defendants. The case is to be reported in the SRS disposition category that results in the greatest amount of judicial activity (See Number of Dispositions, page 4-2).” See CIRCUIT CIVIL 4-7 (Rev. Jan 2010). DEFENDANT CLERK KNEW OF WRONGFUL DISPOSED ACTION 44. Here, Defendant Clerk, Darlene Muszynski, and Miriam Jugger knew that a. b. c. d. The wrongful action had been appropriately disposed and/or terminated; The alleged note/mortgage were lost and/or destroyed; The purported lost instruments were not and could not be reestablished; “BankUnited” was not entitled to enforce the alleged missing instruments; Disposition: The final decision or judgment which terminates a judicial proceeding. Examples include disposed by judge, disposed by jury, no file, dismissed, transferred, convicted after plea, adjudication withheld, acquitted, convicted, dismissed before hearing, dismissed after hearing, bond estreature and non-jury trial.” See www.flcourts.org.
45. Here, this Court used the following definition of “disposition”:
Here, the Court had reported the final decision and termination of the judicial proceeding, and the Defendants/Counterclaimants were entitled to rely on said disposition. DISPOSITION OF INAPPROPRIATELY PLEADED & FRIVOLOUS COMPLAINT 46. The Florida Supreme Court amended Rule 1.110(b) to require verification of mortgage foreclosure complaints involving residential real property. The primary purposes of this amendment were (1) to provide incentive for the plaintiff to appropriately investigate and verify its ownership of the note or right to enforce the note and ensure that the allegations in the complaint are accurate; (2) to conserve judicial resources that are currently being wasted on inappropriately pleaded ―lost note counts and inconsistent allegations; (3) to prevent the wasting of judicial resources and harm to defendants resulting from suits brought by plaintiffs not entitled to enforce the note; and (4) to give trial courts greater authority to sanction plaintiffs who make false allegations. See In re Amendments to the Florida Rules of Civil Procedure, Supreme Court of Florida, Rule 1.110; Form 1.924. ON 02/18/11 DEFENDANTS HAD APPEALED & JUDGE LACKED JURISDICTION 47. Here, this Court knew that Defendants/Counterclaimants had filed their Notice of Appeal on 02/18/2011 and that retired “robo” Judge Daniel R. Monaco: a. Had no jurisdiction; b. Presided over a sham hearing on 02/22/2011; c. Conducted a sham hearing that had been amended to a 02/14/11 hearing and then been cancelled; ROGUE “ROBO” JUDGE MONACO’S “ROCKET DOCKET” TACTICS 48. All interlocutory proceedings are merged into and disposed of by the final determination. See Duss v. Duss, 111 So. 382, 385 (Fla. 1926). After entry of the disposition, the trial court's authority to modify, amend, or vacate an order after termination is limited to the time and manner provided by rule or statute. Thus here, upon the 08/12/2010 disposition, this Court’s inherent authority to hear the motion to dismiss had apparently ceased. Only a rogue judge would steamroll pro se Defendants after this case had been disposed for more than six months, and had been reported as disposed on the 02/21/2010 Docket. DEF. CLERK KNEW OF PRECLUSION OF ANY JUDICIAL ENFORCEMENT 10
49. Defendant Clerk of Court, Dwight E. Brock, is the custodian of the Collier County Public Records. 50. Said Defendant Clerk knew that here, Florida law precluded any judicial enforcement of the lost/destroyed mortgage and/or note. Section 201.08(1)(b), Florida Statutes (2010), e.g., precludes judicial enforcement of a mortgage “unless and until the tax due thereon . . . has been paid.” The alleged destroyed/lost note and mortgage attached to the 2009 complaint were copies of lost/missing unrecorded instruments, and there is no indication that the purported original note and/or mortgage were filed or presented to this Court. DEFENDANT CLERK KNEW THAT PLAINTIFF BANK LACKED STANDING 51. Here, bankrupt and defunct “BankUnited, FSB” had no standing, and the alleged lost/destroyed instruments never transferred to “BankUnited”. See complaint. 52. Section 201.08(1)(a), Florida Statutes (2010), states: 201.08 Tax on promissory or non-negotiable notes, written obligations to pay money, or assignments of wages or other compensation; exception.— (1)(a) On promissory notes, nonnegotiable notes, written obligations to pay money, or assignments of salaries, wages, or other compensation made, executed, delivered, sold, transferred, or assigned in the state, and for each renewal of the same, the tax shall be 35 cents on each $100 or fraction thereof of the indebtedness or obligation evidenced thereby. The tax on any document described in this paragraph 1may not exceed $2,450. DEFENDANT CLERK KNEW THAT DEFENDANTS HAD NOT BEEN SERVED 53. Defendant Clerk knew that the Defendants had not been served in compliance with Florida Statutes. The Supreme Court Task Force had proposed a new form Affidavit of Diligent Search and Inquiry. In its petition, the Task Force explained that many foreclosure cases are improperly served by publication. The new form was meant to help prevent fraudulent affidavits of diligent search and inquiry as shown in the instant case. Here, the Defendants were not served. The Supreme Court adopted new form 1.924, with several modifications.
DEFENDANT CLERK LACKS AUTHORITY TO MAKE JUDICIAL DETERMINATION 54. Here, the Clerk was not authorized to make any judicial determinations, but proceeded with wrongful judicial determinations, which harmed the Defendants/Counterclaimants in favor of “BankUnited”. DEFENDANTS DEMAND THAT PROCEEDING & ORDER BE VACATED 55. The Counterclaimants demand that this Court vacate said wrongful “order” and proceeding. PLEADINGS TO VACATE FRAUDULENT 02/22/11 PROCEEDING AND ORDER 56. Defendants/Counterclaimants have been moving to vacate the facially fraudulent 02/22/2011 proceeding and “order” under Rule 1.540. Here, there have been valid grounds for relief under that Rule. Florida Rule of Civil Procedure 1.540(b) states: Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, decree, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other conduct of an adverse party; (4) the judgment or decree upon which it is based has been reversed or otherwise vacated or it is no longer equitable that the judgment or decree should have prospective application. “SUGGESTION OF BANKRUPTCY” ON THE RECORD & CLERK’S ERROR 57. Defendant Clerk and/or Darlene Muszynski alleged a ”MEMORANDUM”:
“MEMO TO FILE regarding 09-6016-CA Upon questions from case management regarding the status of this file, I found that a Disposition record had been entered based on a document file by one of the defendants regarding bankruptcy of the Plaintiff BankUnited. Upon communication with the Office of the State Court Administrator and according to SRS [Summary Reporting System] rules, this case was disposed by the Clerk in error. The error was corrected on February 21, 2011 and the status of the case …”
Here in reality, the Clerk’s error was not “corrected” during business hours on 02/21/2011, and no reasonable juror or judge in rogue Judge Monaco’s shoes could have possibly expected the Defendants/Counterclaimants [who the Clerk knew were in the Pacific] to have learnt about the “correction of the Clerk’s error” prior to the illegal “02/22/2011, 9:00 AM hearing”, which had been amended and then cancelled. See Docket. 58. Defendant Clerk also knew that the incongruities in “plaintiff’s” pleadings and affidavits were clearly evident in the interest rates and amounts erroneously computed. Simple arithmetic disclosed said error and fraud scheme. ADMINISTRATOR MIRIAM JUGGER’S “REPLY” OF PUBLIC RECORD 59. At 4:58 PM, Miriam Jugger “answered” on the record: “Miriam Jugger [email@example.com] Monday, February 21, 2011, 4:58 PM RE: Collier Co SRS Disposition Question Hi Darlene, … Thank you for your call and your question. I hope that my reply will be clear and helpful for you and your staff. Question: If a defendant filed a notice that the plaintiff was in bankruptcy would that be a proper disposition for SRS purposes?” Answer: No, that type of notice or filing would not and should not be reported as a proper disposition for SRS purposes. To give clarity to the Circuit Civil SRS Disposition instructions, please note that if a defendant (not the plaintiff) in a case files a suggestion of bankruptcy that case is to be reported under the proper Circuit Civil disposition category that results in the greatest amount of judicial activity. Also note that a “suggestion of bankruptcy” filed by the defendant (for the defendant only) will result in case disposition. Notices of bankruptcy file by the defendant to counter motion of counter petition the plaintiff should be reported as such and not as dispositions. Darlene, I hope that this response was helpful to you and your staff. Please let me know if you have any comments or questions regarding this or any SRS matter. Thank you as always for your commitment to SRS standards and reporting.
Miriam Jugger Supreme Court of Florida Office of the States Courts Administrator 500 S. Duval Street Tallahassee, FL 32399” DEFENDANT CLERK’S QUESTION TO STATE COURT ADMINISTRATOR 60. Defendant Clerk “questioned” the State Court Administrator in the below e-mail from Darlene M. Muszynski to Miriam Jugger, sent Monday, February 21, 2011, 4:37 PM: “Miriam, If a defendant filed a notice that the plaintiff was in bankruptcy would that be a proper disposition for SRS purposes? Your help would be greatly appreciated. Darlene Muszynski Assistant Director Civil (239) 252-2706 Darlene.firstname.lastname@example.org” DEFENDANT CLERK UNLAWFULLY BACKDATED THE ALLEGED “MEMO” 61. Here, the Defendant Clerk had received a “helpful” e-mail from said administrator at 4:58 PM, and backdated the alleged “MEMORANDUM” to “02/21/2011“ for illegal purposes of, e.g.: a. Proceeding with an unauthorized hearing on 02/22/2011; b. Deceiving the Defendants/Counterclaimants; c. Perpetrating fraud upon the Court. THE CLERK’S ACTIONS & BACKDATING HARMED THE COUNTERCLAIMANTS 62. Here, the wrongful actions of the Clerk harmed the Defendants/Counterclaimants, because the Clerk’s “after-hours” deception prejudiced the Defendants and had de facto judicial consequences. 63. While here, the Clerk’s “02/21/2011” Docket showed the wrongful action as “DISPOSED” in the absence of any reopening, the Clerk reported a “9:00 AM hearing” on 02/22/2011. 08/12/2010 DISPOSITION AND “SRS” DISPOSITION REPORTING 64. Pursuant to Section 25.075, Florida Statutes, the Supreme Court developed a uniform case reporting system. The Summary Reporting System (SRS), as it is commonly known, provides the Office of the State Courts Administrator with data which assist the Supreme
Court in its management and oversight role. See CIRCUIT CIVIL PROCEEDINGS MANUAL at http://www.flcourts.org/gen_public/pubs/srsmanual.shtml (Circuit Civil 2010 Revision). Section 25.075, F.S., states: 25.075 Uniform case reporting system.— (1) The Supreme Court shall develop a uniform case reporting system, including a uniform means of reporting categories of cases, time required in the disposition of cases, and manner of disposition of cases. (2) If any clerk shall willfully fail to report to the Supreme Court as directed by the court, the clerk shall be guilty of misfeasance in office. (3) The Auditor General shall audit the reports made to the Supreme Court in accordance with the uniform system established by the Supreme Court. 65. Here, “defendant(s) filed suggestion [and conclusive evidence] of bankruptcy” and the case was to be reported as disposed. 66. In error, the Clerk of Court had reported bankrupt “BankUnited, FSB” as a “plaintiff”. 67. Hereby, the Clerk is again instructed to submit any and all bills and communications to the noticed changed address. WITHOUT AUTHORITY, ROBO JUDGE MONACO SET BENCH TRIAL 68. 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 unlawful amended, and then cancelled “02/22/2011 hearing”. MISREPRESENTATION: BENCH TRIAL WOULD VIOLATE DUE PROCESS 69. 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 Court violated said Rule.
70. Any order setting this disposed case for “trial” would have to be sent to the counterclaimants by the trial court in order to assure due process. 71. 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 30 days from the receipt of the order. 72. Apparently here, “robo” Judge Monaco seeks to deprive the defendants of due process. 73. 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). 74. 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., 432 So. 2d at 663. 75. Here, counterclaimants’ fundamental due process rights are being violated by the defective notice of (non)-jury trial. KNOWN LACK OF JURISDICTION 76. To allow “BankUnited” to sue defendants/counterclaimants in the previously disposed wrongful foreclosure action, the court would have to determine that the destroyed/lost notes and mortgages were valid, genuine, enforceable, and owned by “BankUnited”. 77. 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. [IMPOSSIBLE] REESTABLISHMENT DEMANDED JURY TRIAL 78. Count I of the complaint demanded trial by jury [reestablishment of an alleged destroyed and/or lost note and mortgage. The time and manner of the loss/destruction were
UNKNOWN]. Here, “BankUnited” and the Court knew that reestablishment was legally impossible. COUNTERCLAIM(S) AT COMMON LAW AND DEMAND FOR JURY TRIAL 79. The Counterclaim(s) is in four Counts and consists of COUNT I: A suit for damages for fraud and misrepresentation; COUNT II: An action to quiet title to certain real property; COUNT III: A suit seeking damages for breach of contract; and COUNT IV: An action for damages. Specifically, the counterclaimants and/or counterclaims demand trial by jury on all issues so triable.
80. Pursuant to Rule 1.170, the counterclaimants have claims for affirmative relief against
“BankUnited”, Albertelli Law, Daniel R. Monaco, and the Clerk of Court. 81. In this previously disposed case, the complaint sought to reestablish destroyed/lost instruments and foreclose an alleged destroyed/lost mortgage/note on certain real property (25 6TH Street North Naples, FL), which is in the possession of the defendant counterclaimants. 82. While the previously disposed wrongful foreclosure suit appears to be equitable in nature, Count I of the complaint (facially impossible reestablishment after UNKNOWN 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. COUNT 1 AGAINST “BANKUNITED”: SUIT FOR DAMAGES FOR FRAUD AND MISREPRESENTATION
83. “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. 84. 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. 85. Walter Prescott was not the maker of any “loan modification agreement” as evidenced by the December 2010 Notice of Filing of Original Loan Modification Agreement on file. COURT’S KNOWN LACK OF JURISDICTION 86. 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 manner of the loss or destruction is unknown.” “BANKUNITED” MADE FALSE CLAIMS TO DEFRAUD THE COUNTERCLAIMANTS 87. Purported “plaintiff” “BankUnited” does not own and hold any genuine note and mortgage. 88. “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 103941 (Fla. 3d DCA 1981). 89. Here, “BankUnited” even pleaded inability to establish holder in due course status because of the UNKNOWN loss and/or destruction of the alleged instruments.
90. 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 possibly have been at issue here: “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.” 91. Here, there was no evidence as to WHO possessed the note WHEN it was lost/destroyed. 92. 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”. 93. [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.] 94. The alleged mortgage copy did not contain a copy of the alleged executed note. 95. “BankUnited” fraudulently prayed for reestablishment, no order reestablishing the lost instruments was entered, and the wrongful action was disposed on 08/12/2010. 96. As a matter of law, reestablishment of the note was impossible under Ch. 673, Florida Statutes, and the Uniform Commercial Code. 97. “BankUnited” is not in possession of the purported note and mortgage and not entitled to enforce them. 98. “BankUnited” did not know WHO destroyed and/or lost the instruments WHEN and HOW. 99. “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. 100. “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). 101. On 05/21/2009, “BankUnited, FSB” was seized.
102. 103. 104. 105. 106. 107. 108. 109.
Here, there had been seizure and transfer which prohibited re-establishment. “BankUnited” never produced nor re-established any authentic note and/or mortgage as The mortgage that was used to establish the terms of the allegedly lost note and mortgage This Court knew that “BankUnited’s” facially fraudulent affidavits were sham. A person seeking enforcement of an instrument under UCC § 3-309(a)(b) must prove the “BankUnited” had to, but failed, to prove the terms of the alleged instruments and the Here, “BankUnited” failed to prove any terms, and the terms of the alleged obligation Here, Walter Prescott neither executed the purported note nor “loan modification FRAUDULENT, NULL, AND VOID “AFFIDAVITS”
proven by the evidence before this Court. was controverted and challenged as to authenticity and alteration of its original terms.
terms of the instrument and the person’s right to enforce the instrument. person’s right to enforce the alleged instruments. and/or instrument were vague and ambiguous. agreement”. 110. 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 “robosigning” 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”. 111. 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.
Defendant counterclaimants did not default under the destroyed and/or lost note and “BankUnited” failed to assert any chain of title and/or assignment of the destroyed/lost ALLEGED DESTROYED / LOST INSTRUMENTS / “LOAN MODIFICATION”
mortgage, and no payment was due to “BankUnited”. note and mortgage. 114. 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. 115. Fraud was specifically articulated in United States v. Throckmorton, 98 U.S. 61, 65-66, 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 prevention of an unsuccessful party [from] presenting his case, by fraud or deception practiced by his adversary; keeping the opponent away from court; falsely promising a compromise; ignorance of the adversary about the existence of the suit or the acts of the plaintiff; fraudulent representation of a party without his consent and connivance in his defeat… 25 L. Ed. 93 (1878), in which the United States Supreme Court said:
COUNT I: FRAUD COUNTERCLAIM AGAINST DANIEL R. MONACO 116. 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 when he, e.g., overturned Judge Hayes’ previous 08/12/2010 disposition. 117. Here, “BankUnited’s” and Daniel R. Monaco’s conduct were collateral to the allegations,
exhibits, and issues complained of. 118. Retired temporary Judge D. R. Monaco had no authority to, e.g.:
a. overturn the 08/12/2010 disposition by [Disposition] Judge Hugh D. Hayes in the absence of the court’s jurisdiction; b. deny dismissal after the previous disposition by Judge Hayes; c. preside over an amended and then cancelled illegal hearing on 02/22/2011 in the excused absence of the counterclaimants. JUDICIAL ABUSE OF DISCRETION AND UNCONSTITUTIONAL ORDER 119. Thus, retired “robo” Judge Monaco’s non-jury trial did not square with the
requirements of the governing Constitutions and Statutes. 120. 121. Accordingly, a jury trial on all issues triable by jury must be granted. 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 122. 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 be set for trial. Retired “robo” Judge Monaco has been in the pocket of the bank(s), and the Court violated said Rule. 123. Any order setting this disposed case for “trial” would have to be sent to the defendant
counterclaimants by the trial court in order to assure due process. 124. 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 than 30 days from the receipt of the order. 125. Apparently here, “robo” Judge Monaco seeks to deprive the defendant counterclaimants
of due process. 126. 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). 127. The 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., 432 So. 2d at 663. 128. Here, counterclaimants’ fundamental due process rights are being violated by the
defective notice of (non)-jury trial. “ROCKET DOCKET” – FRAUD & SPEED INSTEAD OF JUSTICE 129. 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).
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 Florida Rule of Civil Procedure 1.170. 131. 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 homeowners’ expense. The counterclaimants experienced and fear further prejudice. 132. 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 had performed all conditions precedent to enforce the destroyed/missing mortgage/note. 133. 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 Deeds of Trust § 287 (2002). 134. 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 defendant counterclaimants’ affirmative defenses and counterclaims. Thus, to allow 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. TEMPORARY “ROBO JUDGE MONACO IS BIASED IN FAVOR OF BANK(S) 135. 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.
Jacobsen, 566 So. 2d 885 (Fla. 4th DCA 1990); WM Specialty Mortgage, LLC v. Salomon, 874 So. 2d 680, 682 (Fla. 4th DCA 2004). 136. Here as of “07/09/2009”, the date of filing suit, “BankUnited” was not any holder and/or
owner of nor entitled to enforce the destroyed and/or missing instruments. 137. “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 that to be a holder, one must be in possession of the instrument). 138. Here, “BankUnited” had neither standing nor any real interest and could not have
possibly enforced the lost and/or destroyed instruments. 139. 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”, which precluded “BankUnited” from claiming holder in due course status.
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 alleged note pursuant to the evidence on file.
Here no mortgage could possibly secure a non-existing obligation. COUNT I: FRAUD COUNTERCLAIM AGAINST CLERK OF COURT
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. LACK OF AUTHORITY TO REMOVE 08/12/2010 JUDICIAL DISPOSITION
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.
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. 145. The Clerk had no judicial authority and was not to practice law at counterclaimants’ expense. COUNT I: SUIT FOR DAMAGES FOR FRAUD AGAINST ALBERTELLI LAW FRAUD ON THE COURT ON THE RECORD 146. 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. 147. 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. 148. 149. Here, Albertelli Law concealed that the required chain of title was not in evidence. 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 but re-filed non-authentic copies of the lost/destroyed instrument(s). 150. 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 entitled to any “trial” and any “judgment” in its favor.
RECORD LACK OF ADMISSIBLE EVIDENCE IN DISPOSED WRONGFUL ACTION 151. Defendants did not execute and deliver an authentic promissory note and mortgage to
“BankUnited”. 152. 153. 154. Under Florida law delivery is necessary to validate a negotiable instrument. Here, neither any note nor mortgage were assigned and delivered to “BankUnited”. Here there was no delivery of any written assignment of any instrument to “BankUnited”.
“BANKUNITED” FAILED TO STATE A CAUSE OF ACTION & HAD NO STANDING 155. 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. 156. Here because Alfred Camner was the bankrupt bank’s founder, it was as if
“BankUnited, FSB” had asserted the loss/destruction of the alleged instruments. 157. Thereafter, Alfred Camner, Esq., Serena Kay Paskewicz, Esq., and/or the Camner Lipsitz
Law Firm were fired. CONCEALMENT OF LOST AND/OR DESTROYED F.D.I.C. RECORDS 158. 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. 159. 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 Deposit Insurance Corporation. 160. 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 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). 161. Said rule was codified by the Federal Deposit Insurance Act of 1950, § 13(e), 64 Stat.
889, as amended, 12 U.S.C. § 1823(e). 162. Here, the Court was obligated to determine and/or consider the lack of subject matter
jurisdiction as invoked by federal law. RECORD FRAUD UPON THE COURT 163. "'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 Engineering, Inc. v. Ionics, Inc., 89 F.R.D. 154 (D.Mass. 1981). 164. 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. RECORD OBJECTIONS TO UNCONSTITUTIONAL NON-JURY/BENCH TRIAL 165. 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.
The court failed to communicate and notice the counterclaimants. 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 the parties inviolate." 168. 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. 169. The counterclaims are unquestionably suits at law seeking damages, the traditional
realm of the civil jury trial. 170. Thus, the issue with which this Court and its “rocket docket” must come to grips, then,
is how to secure inviolate counterclaimants’ rights of jury trial. 171. The claims at law are intermixed with the previously disposed wrongful foreclosure
action. 172. 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. 173. 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 Court held that: [I]f a compulsory legal counterclaim entitles the counter-claimant to a jury trial on issues which are not common to any issue made by the equitable complaint, the trial court should proceed to try the equitable issue non-jury with appropriate provision made for a jury trial as to the law issues if disposition of the equitable issues does not
conclude the case. But where the compulsory counterclaim entitles the counterclaimant 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 demanding jury trial. COUNT II – SUIT TO QUIET TTILE TO CERTAIN REAL PROPERTY 174. 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 frivolous and insufficient complaint. DEMAND OF JURY TRIAL - QUIET TITLE / EJECTMENT ACTION(S) 175. In this instance, Florida's quiet title statute specifically authorizes a trial by jury. Section
65.061(1), Florida Statutes (2010), provides in pertinent part that: …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. 176. 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
a jury trial on the issues raised by these counts in advance of any non-jury trial on the previously disposed equitable matters. COUNT III- SUIT FOR DAMAGES FOR BREACH OF CONTRACT 177. The counterclaimants are suing for breach of contract based on “BankUnited’s” record
actions of filing untrue affidavits and failure to account. 178. “BankUnited” materially breached its duty of good faith and fair dealing, which
resulted in proximate damages. FACIALLY FRAUDULENT ACCOUNTING & NULL & VOID AGREEMENT 179. As witnessed and/or notarized, the alleged destroyed/lost “loan modification
agreement” was not signed and executed by “defendant” Walter Prescott and therefore unenforceable (not legally binding). 180. Even though said “modification agreement” was not legally binding, “BankUnited”
wrongfully sought to enforce the null & void “agreement”: “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 “7.625% interest rate”. 181. The “modified” mortgage was never recorded, and there was no evidence of taxes paid,
which rendered the alleged lost mortgage unenforceable. BANK KNEW OF RECORD ABSENCE OF CONTRACTUAL OBLIGATION 182. 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 contract and no novation. "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 31
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. DEMAND FOR JURY TRIAL & MEMO BY DEFENDANT COUNTERCLAIMANTS DEFENDANTS’ COUNTERCLAIM & DEMAND FOR JURY TRIAL 183. 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). 184. In addition, defendants filed a counterclaim and/or cause of action that seeks
affirmative relief. The counterclaim and affirmative defenses were separate and distinct events. 185. Here, “plaintiff” “BankUnited” had failed to state a cause of action, and the court could
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 Losurdo, Inc., 440 So.2d 621 (Fla. 2d DCA 1983). 186. Here, “BankUnited” did not dispute that it failed to rebut defendants’ affirmative
Here, Defendants’ action/compulsory counterclaim for, e.g., damages for fraud and
breach of contract, were both common law actions for damages. 188. 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. DEFENDANT COUNTERCLAIMANTS ARE ENTITLED TO JURY TRIAL 189. Here, the compulsory counterclaim entitled the defendant counter-claimants to
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 since to do so would deprive the defendant counter-claimants of their constitutional rights to trial by jury. 190. 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 court dispose of the equitable issues that were remaining. 191. Here, the rule is that even where a complaint lies solely in equity, the filing of a
compulsory counterclaim seeking remedies at law entitles the counterclaimant(s) to 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).
“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 v. Bigoney, 156 So.2d 501 (Fla. 1963); Spring, supra. 193. This court cannot determine the factual issues of fraud and misrepresentation without
evidence and without a fact-finding jury. 194. Thus, the Court must first resolve the affirmative claims and defenses of fraud and
misrepresentation. Any other way would be error. 195. 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 demanded recusal for fear of further bias. APPEAL AFTER PREJUDICIAL AND UNLAWFUL “02/22/2011 HEARING” 196. The defendants in this disposed wrongful mortgage foreclosure action appealed the
order(s) entered at the illegal and cancelled “02/22/2011 hearing”. 197. 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 counterclaim when it set a “trial” during said unlawful “hearing”. RECORD PREJUDICE AND ERROR 198. Here, it would be error to proceed with the previously disposed wrongful foreclosure
action before jury trial on the interrelated legal counterclaim(s). 199. This court did not have the discretion to deny the demanded jury trial on these factual
issues and Motion(s) to Dismiss after the 08/12/2010 disposition. DEFENDANT COUNTERCLAIMANTS DEMANDED JURY TRIAL 200. Defendant counterclaimants had demanded trial by jury.
Defendants are entitled to trial by jury on, e.g., Count I of Plaintiff’s complaint
(reestablishment of lost instruments). 202. 203. Here, defendants have a fundamental right to jury trial in Florida’s State Courts. The Florida Constitution expressly provides for the right to trial by jury. Article I,
Section 22, of the Florida Constitution provides: § 22. Trial by Jury 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. 204. 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. Amend VII, U.S. Const. 205. Florida courts have consistently highlighted the importance of the right to a trial by
jury. 206. "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)). MEMORANDUM OF LAW IN SUPPORT OF JURY TRIAL – “REESTABLISHMENT”
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. 208. 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, App. 3 Dist., 97 So.2d 494 (1957). 209. 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 demand a jury trial. ANSWER TO COMPLAINT BY BANKRUPT BANK’S FOUNDER ALFRED CAMNER 210. Hereby, “defendants” “respond” to the unlawful and unauthorized “02/22/2011
hearing” before retired “rocket docket” Judge Daniel R. Monaco who is in the pocket of the bank(s). 211. On 08/12/2010, and after defendants’ Motions to Dismiss had been filed, this wrongful
action to foreclose a mortgage on real property had been disposed. 212. This Court knew that “BankUnited” did not establish its entitlement to foreclose the
mortgage as a matter of law. 213. 214. After said 2010 disposition, the action was never reopened. 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 hearing and any “trial”.
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. 2d 1157, 1159 (Fla. 3d DCA 2008); Harry Pepper & Assocs., Inc. v. Lasseter, 247 So. 2d 736, 736-37 (Fla. 3d DCA 1971). 216. 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. 217. On 02/22/2011, retired “rocket docket” Judge Monaco had no authority to deny
defendants’ Motion to Dismiss. DENIALS AND AFFIRMATIVE DEFENSES 218. Defendant counterclaimants JENNIFER FRANKLIN-PRESCOTT, WALTER
PRESCOTT, JOHN DOE, and MARY DOE, file their “response(s)”, affirmative defenses and claim for attorney’s fees and in support thereof state: 219. 220. Paragraph 1 of purported “plaintiff’s” complaint is denied. 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 right to “foreclose“ and sue the defendants. 221. Here, no “default” has and/or could have possibly occurred, and no contractual obligation
Paragraph 3 is denied. Here, “BankUnited” was never entitled to any action and/or
reestablishment of any note based on the admissible evidence on file. 223. 224. 225. Paragraph 4 is denied. Paragraph 5 is denied. 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 “foreclose“ and sue the defendants. 226. 227. 228. Paragraph 7 is denied. Paragraph 8 is denied. Paragraph 9 is denied. “BankUnited” is not any “successor in interest to” “BankUnited,
FSB”. 229. 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 of the loss or destruction is unknown.” 230. 231. 232. 233. Paragraph 11 is denied. Paragraph 12 is denied. Paragraph 13 is denied. Furthermore, said paragraph is grammatically in error. Here, paragraph 14 was vague and ambiguous as there were two “paragraph 14”.
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. Here, there had been a disposed wrongful foreclosure action, which was facially frivolous and insufficient. 235. 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.” 236. 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 right to “foreclose“ and sue the defendants. DISSOLVED LIS PENDENS DUE UNENFORCEABILITY OF LOST INSTRUMENTS 237. 238. Jennifer Franklin-Prescott owns the property at 25 6th Street North, Naples, Florida 34102. Under Rule 1.420(f), Fla. R. Civ. P. (2010), the improper and unauthorized lis pendens
was automatically dissolved upon the disposition of foreclosure on 08/12/2010. 239. Pursuant to § 48.23(2), Fla. Stat. (2010), the notice of lis pendens became invalid on
07/10/2010. 240. 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).
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). 242. In this disposed action, the purported “plaintiff” frivolously sought to re-establish the
missing note in “COUNT I (Reestablishment of Lost Instruments)” of the complaint, which was impossible as a matter of law. 243. Franklin-Prescott had filed her answer(s) and motions to dismiss and proven plaintiff’s
lack of standing, which was one of the ultimate affirmative defenses. 244. 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. 245. 246. Paragraphs 17, 18, and 19 are denied. 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. 247. 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 holder in due course. 248. 249. 250. 251. Paragraph 20 is denied. Paragraph 21 is denied. Paragraph 22 is denied as the sentence is incomplete. Paragraph 23 is denied in the record absence of any enforceable instruments.
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, because it never properly obtained the lost/destroyed instruments. 253. “BankUnited” filed the wrongful suit after the May 2009 seizure of defunct
“BankUnited, FSB”. 254. After bankrupt “BankUnited, FSB” was seized, its troubled founder, Alfred Camner,
Esq., complained of an UNKNOWN loss/destruction of the purported instruments. 255. As founder of defunct “BankUnited, FSB”, Alfred Camner knew and concealed that the
alleged lost/destroyed instruments could not have possibly been transferred to “BankUnited”. 256. Here, time and manner of the loss were UNKNOWN pursuant to the 07/09/2009
complaint. 257. Here, “BankUnited” was not any assignee and did not hold title in the purported
lost/destroyed instruments. 258. 259. Here, the record had conclusively evidenced the lack of any chain of title. “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 the alleged mortgage. 260. 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. 261. The destroyed/lost instruments were unenforceable as a matter of law. See, e.g., section
673.3091, Florida Statutes.
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 destroyed notes and enforceability of lost/destroyed notes. Therefore, no foreclosure could possibly occur. See Article 3, U.C.C.; Ch. 673, Florida Statutes (2010). 263. 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 note and/or mortgage. As in BAC Funding Consortium, Inc. ISAOA/ATIMA v. JeanJacques, 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 falsely alleged note and mortgage, no evidence of an assignment to “BankUnited”, no proof of purchase of the alleged debt nor any other evidence of an effective transfer. Therefore, the defendants were entitled to dismissal. Here, no exceptions were invoked. 264. This Court knew of binding precedent and that the Second District had 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.] 265. 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). 266. Here, this Court knew that “BankUnited” had no standing and/or right to sue and/or
foreclose. 267. This Court knew that defendants had demanded indemnification of defendants for
[wrongful] prosecution on the purported destroyed and/or lost instruments. 268. So far, this Court did not require a bond pursuant to Lovingood v. Butler Construction
Co., 131 So. 126, 135 (Fla. 1930). 269. 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).
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. 43
The law prohibits “rocket dockets” for speed and errors at the expense of justice in favor
of banks and lenders.
Here, the Docket showed “Judge Hugh D. Hayes” and the lack of any “Reopen Reason”
after the 08/12/2010 disposition:
Section 831.01, Fla. Stat., provides: “Whoever falsely makes, alters, forges or counterfeits a public record, or a certificate, return or attestation of any clerk or register of a court, public register, notary public, town clerk or any public officer, in relation to a matter wherein such certificate, return or attestation may be received as legal proof; or a charter, deed, will, testament, bond, or writing obligatory, letter of attorney, policy of insurance, bill of lading, bill of exchange or promissory note, or an order, acquittance, or discharge for money or other property, or an acceptance of a bill of exchange or promissory note for the payment of money, or any receipt for money, goods or other property, or any passage ticket, pass or other evidence of transportation issued by a common carrier, with intent to injure or defraud any person, shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.” NOTICE OF DEFENDANTS’ CHANGE OF ADDRESS
Hereby, defendants file their Notice of change of address: Jennifer Franklin-Prescott, et al., defendants Care/of Papanui PostShop 7 Main North Road, Papanui, Christchurch, 8053 New Zealand 44
NATIONAL EMERGENCY AND PRESCOTT’S NOTICE OF UNAVAILABILITY 275. 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. AFFIRMATIVE DEFENSES PRIOR TO DISPOSITION FIRST AFFIRMATIVE DEFENSE: FAILURE TO PRODUCE ORIGINAL NOTE 276. 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, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process. 673.3091 Fla. Stat. (2010). 277. 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” could not sue and/or maintain this disposed action. 278. 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 plaintiff who failed to state a cause of action. UNCLEAN HANDS DEFENSE 279. Prescott had asserted and proven (another affirmative defense) that the plaintiff(s) had
failed to follow Florida law of negotiable instruments and including, e.g., obtaining necessary signatures, acknowledgments, recordations, assignments, and/or endorsements on the purported non-authentic promissory note and mortgage deceptively submitted to this Court as alleged debt evidence. As such, the plaintiff came to this court with unclean hands. RECUSAL/DISQUALIFICATION OF THE “TRIAL” JUDGE 280. 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 705, 708 (Fla. 1995); Fla. R. Jud. Admin. 2.160.
PRESCOTT FEARS FURTHER FRAUD, DEPRIVATIONS & SHAM PROCEEDINGS 281. 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. 282. 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. WHEREFORE counterclaimants respectfully demand 1. An Order dismissing the previously disposed action after automatic dissolution of the alleged lis pendens and in the record absence of any cause of action; 2. An Order striking the bench-trial for the foresaid grounds and non-compliance with said Rule 1.440; 3. An Order vacating the fraudulent 02/22/2011 proceeding and “order”; 4. An Order for the disqualification/recusal of retired “robo” Judge Daniel R. Monaco; 5. An Order for the removal of said “rocket docket”; 6. An Order vacating the prejudicial non-jury trial; 7. An Order for compensatory and punitive damages in favor of counterclaimant fraud victims; 8. An Order for compensatory and punitive damages for breach of contract in favor of counterclaimants; 9. 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;
10. An Order dismissing the previously disposed wrongful foreclosure action because “BankUnited” had no standing and failed to state a cause of action; 11. An Order canceling any non-jury and/or bench trial; 12. An Order declaring rogue “robo” Judge Monaco’s lack of jurisdiction to overturn and/or remove the 08/12/2010 disposition record after Franklin-Prescott’s 02/18/2011 Notice of Appeal; 13. An Order properly setting this Motion to Dismiss for hearing so that Franklin-Prescott can attend without the illegal interference by rogue retired Judge Monaco; 14. Proper processing of this NOTICE OF APPEAL and/or INTERLOCUTORY APPEAL; 15. 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 this disposed case; 16. An Order declaring the “correction of the disposition record” unlawful and prejudicial at Franklin-Prescott’s expense;
17. 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; 18. An Order taking judicial notice of said binding precedent (BAC Funding) in support of the record 08/12/2010 disposition;
19. 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; 20. 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; 21. An Order declaring the cancelled “02/22/2011 hearing” unauthorized in this disposed action; 22. An Order declaring “BankUnited’s” prima facie sham “motion(s)” and “affidavits” unlawful in this previously disputed and disposed action; 23. An Order declaring the purported note and/or mortgage unenforceable; 24. An Order taking judicial notice of the prima facie unenforceability of the unrecorded, un-assignable, and unpaid mortgage (unpaid mortgage taxes); 25. An Order declaring the purported “plaintiff” to be in violation of Fed.R.Civ.P. 1.510 in this disposed and previously controverted action; 26. 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; 27. An Order declaring said affidavits “hearsay” and lacking any legal and/or factual basis in the absence of any authentic “note” and/or mortgage; 28. 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; 29. 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 /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, on March 09, 2011. Respectfully, /s/Jennifer Franklin-Prescott, fraud victim /s/Walter Prescott, foreclosure 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. email@example.com, firstname.lastname@example.org, email@example.com, NetNet@cnbc.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, CollierJACS@ca.cjis20.org, email@example.com, lllayden@NAPLESNEWS.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, firstname.lastname@example.org, Collierclerk@collierclerk.com, Sue.Barbiretti@collierclerk.com, Jill.Lennon@collierclerk.com, Dwight.Brock@collierclerk.com, Robert.StCyr@collierclerk.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,
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