IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA BANKUNITED [non-party

] as [purported] successor in interest to [LAWFULLY SEIZED] BANKUNITED, FSB., purported “plaintiff” vs. DISPOSED CASE NO.: 09-6016-CA

JENNIFER FRANKLIN-PRESCOTT, et al. ___________________________________________________________________________/ INADMISSIBLE DUPLICATE DECEPTION & FRAUD EVIDENCE, IN SUPPORT OF SANCTIONS AGAINST ALBERTELLI LAW & CAMNER LIPSITZ, CH. 90, SECTION 90.953, FLORIDA STATUTES 1. In violation of Florida’s Evidence Code, Ch. 90, F.S., Attorneys at Camner Lipsitz and/or Albertelli Law agreed to defraud by means of inadmissible duplicates of a purported note:

TITLE VII
EVIDENCE CHAPTER 90 EVIDENCE CODE 90.953 [In] Admissibility of duplicates. — A duplicate is admissible to the same extent as an original, unless: (1) The document or writing is a negotiable instrument as defined in s. 673.1041, a security as defined in s. 678.1021, or any other writing that evidences a right to the payment of money, is not itself a security agreement or lease, and is of a type that is transferred by delivery in the ordinary course of business with any necessary endorsement or assignment. (2)

A genuine question is raised about the authenticity of the original or any other document or writing. (3) It is unfair [NO PROTECTION], under the circumstance, to admit the duplicate in lieu of the original.
History. — s. 1, ch. 76-237; s. 1, ch. 77-77; s. 22, ch. 78-361; s. 1, ch. 78-379; s. 57, ch. 92-82; s. 29, ch. 99-2.

90.101 Short title. 90.102 Construction. 90.103 Scope; applicability. 90.104 Rulings on evidence. 90.105 Preliminary questions. 90.106 Summing up and comment by judge. 90.107 Limited admissibility. 90.108 Introduction of related writings or recorded statements. 90.201 Matters which must be judicially noticed. 90.202 Matters which may be judicially noticed. 90.203 Compulsory judicial notice upon request. 90.204 Determination of propriety of judicial notice and nature of matter noticed. 90.205 Denial of a request for judicial notice.

2

90.206 Instructing jury on judicial notice. 90.207 Judicial notice by trial court in subsequent proceedings. 90.301 Presumption defined; inferences. 90.302 Classification of rebuttable presumptions. 90.303 Presumption affecting the burden of producing evidence defined. 90.304 Presumption affecting the burden of proof defined. 90.401 Definition of relevant evidence. 90.402 Admissibility of relevant evidence. 90.4025 Admissibility of paternity determination in certain criminal prosecutions. 90.4026 Statements expressing sympathy; admissibility; definitions. 90.403 Exclusion on grounds of prejudice or confusion. 90.404 Character evidence; when admissible. 90.405 Methods of proving character. 90.406 Routine practice. 90.407 Subsequent remedial measures. 90.408 Compromise and offers to compromise. 90.409 Payment of medical and similar expenses. 90.410 Offer to plead guilty; nolo contendere; withdrawn pleas of guilty.

3

90.501 Privileges recognized only as provided. 90.5015 Journalist’s privilege. 90.502 Lawyer-client privilege. 90.503 Psychotherapist-patient privilege. 90.5035 Sexual assault counselor-victim privilege. 90.5036 Domestic violence advocate-victim privilege. 90.504 Husband-wife privilege. 90.505 Privilege with respect to communications to clergy. 90.5055 Accountant-client privilege. 90.506 Privilege with respect to trade secrets. 90.507 Waiver of privilege by voluntary disclosure. 90.508 Privileged matter disclosed under compulsion or without opportunity to claim privilege. 90.509 Application of privileged communication. 90.510 Privileged communication necessary to adverse party. 90.601 General rule of competency. 90.603 Disqualification of witness. 90.604 Lack of personal knowledge. 90.605 Oath or affirmation of witness.

4

90.606 Interpreters and translators. 90.6063 Interpreter services for deaf persons. 90.607 Competency of certain persons as witnesses. 90.608 Who may impeach. 90.609 Character of witness as impeachment. 90.610 Conviction of certain crimes as impeachment. 90.611 Religious beliefs or opinions. 90.612 Mode and order of interrogation and presentation. 90.613 Refreshing the memory of a witness. 90.614 Prior statements of witnesses. 90.615 Calling witnesses by the court. 90.616 Exclusion of witnesses. 90.701 Opinion testimony of lay witnesses. 90.702 Testimony by experts. 90.703 Opinion on ultimate issue. 90.704 Basis of opinion testimony by experts. 90.705 Disclosure of facts or data underlying expert opinion. 90.706 Authoritativeness of literature for use in cross-examination.

5

90.801 Hearsay; definitions; exceptions. 90.802 Hearsay rule. 90.803 Hearsay exceptions; availability of declarant immaterial. 90.804 Hearsay exceptions; declarant unavailable. 90.805 Hearsay within hearsay. 90.806 Attacking and supporting credibility of declarant. 90.901 Requirement of authentication or identification. 90.902 Self-authentication. 90.903 Testimony of subscribing witness unnecessary. 90.91 Photographs of property wrongfully taken; use in prosecution, procedure; return of property to owner. 90.951 Definitions. 90.952 Requirement of originals. 90.953 Admissibility of duplicates. 90.954 Admissibility of other evidence of contents. 90.955 Public records. 90.956 Summaries. 90.957 Testimony or written admissions of a party. 90.958 Functions of court and jury.

6

FLORIDA SENATE STAFF ANALYSIS, SB 282 2. Florida [then] Senator William “Bill” Posey sponsored SB 282. Senate Staff analyzed the effect of said Bill, 02/02/2004: “The bill [SB 282], however, may not reject the result in State Street Bank and Trust Co. v. Lord, 851 So. 2d 790 (Fla. 4th DCA 2003). A person seeking to enforce a lost negotiable instrument will still have to prove that the person has acquired the right to enforce the lost instrument. In order to prove that a person has acquired ownership of a lost negotiable instrument, including the right to enforce the lost instrument, the person will likely have to prove WHO owned the instrument WHEN the instrument was lost. According to State Street, the assignee of a lost note did not produce evidence showing WHICH prior assignor lost the note. State Street, 851 So. 2d at 792.” Here, said Florida Senate analysis was further conclusive evidence of the fraud on the Court in this disposed Case. Because of the lawful seizure, F.D.I.C., of BankUnited, FSB, BankUnited, e.g.: a. b. c. d. Had no right to enforce any note; Had no right to sue Jennifer Franklin Prescott. Was not any proper party; Had no standing.

7

8

AUTOMATIC DISSOLUTION OF lis pendens NOTICE, AND DEMAND FOR RECORDING UNDER RULE 1.420(f), FLA.R.CIV.P. 3. NOTICE IS HEREBY GIVEN that the notice of lis pendens connected with the 08/12/2010 Final Disposition was automatically dissolved at said time pursuant to Rule 1.420 (f), Fla.R.Civ.P. Here, the notice, stipulation, or order shall be recorded. WHEREFORE, Jennifer Franklin Prescott demands that the NOTICE OF AUTOMATIC DISSOLUTION OF [FRAUDULENT] lis pendens, Rule 1.420 (f), be recorded accordingly. See attached Docket. FAILURE TO COMPLY WITH STATUTES AND STATE A CAUSE OF ACTION 4. If a party is not in possession of the original note and cannot reestablish it, the party cannot prevail in an action on the note. In Dasma Investments, LLC v. Realty Associates Fund III, L.P., 459 F.Supp.2d 1294 (S.D.Fla.2006) the court explained that in Florida a promissory note is a negotiable instrument and that a party suing on a promissory note, whether just on the note itself or together with a foreclose on a mortgage securing the note, must be in possession of the original of the note or reestablish the note pursuant to Fla. Stat. § 673.3091. Shelter Dev. Group, Inc. v. Mma of Georgia, Inc., 50 B.R. 588, 590 (Bkrtcy. S.D. Fla.1985). LAWFULLY SEIZED BANKUNITED’S FAILURE TO COMPLY WITH CH. 673, F.S. 5. A party must comply with section 673.3091, Florida Statues, in order to enforce a lost, destroyed or stolen negotiable instrument. Here, lawfully seized BankUnited, FSB [F.D.I.C. seizure] a. FAILED to state that the creditors ever received possession of any original promissory note; b. FAILED to state a cause of action; c. FAILED to satisfy the conditions precedent to sue, Ch. 673, Florida Statutes; d. COULD NOT possibly have complied with section 673.3091, Florida Statues. RECORD LACK OF promissory note 9

6. The original document that is generally required to be filed with the court in a mortgage foreclosure proceeding is the promissory note, not the mortgage. The Evidence Code provides the rationale for this conclusion. Section 90.952, Florida Statutes (2002), indicates that original documents are required to prove the contents of a writing. 7. A promissory note is a negotiable instrument within the definition of

section 673.1041(1), and either the original must be produced, or the lost document must be reestablished under section 673.3091, Florida Statutes (2002). See Mason v. Rubin, 727 So. 2d 283 (Fla. 4th DCA 1999); see also Downing v. First Nat'l Bank of Lake City, 81 So. 2d 486 (Fla. 1955); Thompson v. First Union Nat'l Bank, 673 So. 2d 1179 (Fla. 5th DCA 1994); Figueredo v. Bank Espirito Santo, 537 So. 2d 1113 (Fla. 3d DCA 1989). LAWFULLY SEIZED BANKUNITED HAD NO right to the payment of money 8. Here, no writing on file evidenced any right to the payment of money by lawfully seized bankrupt bank BankUnited, FSB, Ch. 673, Florida Statutes. JENNIFER FRANKLIN PRESCOTT DEMANDED PROTECTION FROM FRAUD 9. Because it is negotiable, the promissory note must be surrendered in a foreclosure proceeding so that it does not remain in the stream of commerce. Indeed, if the foreclosing party alleges that the note is lost, destroyed or stolen, the trial court is authorized by statute to take the necessary actions to protect the party purportedly required to pay the note against loss that might occur by reason of a claim by another party to enforce the instrument. See section 673.3091(2), Fla. Stat. (2002). 10. A mortgage is the security for the payment of the negotiable promissory note, “and is a mere incident of and ancillary to such note.” 08/12/2010 FINAL DISPOSITION FOR LACK OF “proper plaintiff” LAWFULLY SEIZED BANKUNITED, FSB, HAD NO interest & NO standing 10

11. Here, the admitted loss, the time and manner of which was unknown, was a. b. “the result of a transfer or lawful seizure”, [F.D.I.C.], Ch. 673, Florida Statutes; precluded any establishment of any agreement and/or breach of contract. BUSTED BANKUNITED FAILED ITS BURDEN 12. Here, the burden was on lawfully seized BankUnited, i.e., the party seeking to enforce the lost “instrument”. See § 673.3091(2), Fla. Stat. (2008). PROVEN INVALIDITY OF RECORD 13. Furthermore here, the invalidity had been proven in the pleadings, Fla. Stat. § 673.3081 (2008). 14. A court will not enforce an instrument unless the defendant will be adequately protected against future claims on the lost note. Perry v. Fairbanks, 888 So.2d 725, 727, (Fla. 5d DCA 2004). 15. Here, lawfully seized BankUnited FSB, did not have standing to bring and/or maintain any mortgage foreclosure action against Jennifer Franklin Prescott, because it had proven on the record that it did not hold any note and /or mortgage. Here, said admitted and known non-holder of any note had no standing to seek any enforcement of the fictitious note. “LAWFUL SEIZURE”, FDIC, OF BANKUNITED, FSB’S PROPERTY & NOTES 16. The property of bankrupt BankUnited, FSB, was “lawfully seized“, Ch. 673, Florida Statutes. Here in particular, any and all notes and mortgages in the name of failed BankUnited, FSB, were lawfully seized. Here, lawfully seized BankUnited, FSB: a. was not a proper party to bring this facially fraudulent action; b. failed to state a cause of action; c. could never, under any circumstances, be the proper plaintiff to bring any foreclosure action against Jennifer Franklin Prescott. “LAWFUL SEIZURE” OF BUSTED BANKUNITED, FSB

11

17. The admitted loss of the fictitious promissory note was due to lawful seizure of bankrupt BankUnited, FSB, and/or transfer. Here, lawfully seized BankUnited was not entitled to enforce the fictitious note. SEIZED BANKUNITED FAILED TO COMPLY WITH CONDITION PRECEDENT 18. Here, lawfully seized BankUnited could not have possibly satisfied the absolutely required “condition precedent”, Ch. 673, Florida Statutes. FRAUDULENT & FALSE PRETENSES - MATERIAL MISREPRESENTATION 19. “BankUnited, FSB”, fraudulently pretended: “9. On February 15, 2006, Franklin Prescott executed and delivered a promissory note to Bankunited …” “Complaint”, p. 3. Here on 02/15/2006, BankUnited had not even legally existed. “16. Plaintiff owns and holds the note and mortgage.” “Complaint”, p. 5. “6. Said [fictitious] 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.” “Complaint”, p. 3. Here, bankrupt BankUnited did not hold or own any note and mortgage. Here, any and all notes and mortgages had been seized by a U.S Agency. Here, there was fraud on the Court, Fla. R. Civ. P. 1.540. THIS COURT’S AUTHORITY TO SANCTION SEIZED BANK’S ATTORNEY(S) 20. This court has ample authority to sanction lawyers and lenders asserting improper and facially fraudulent foreclosure claims. Here, Federal Agents had lawfully seized bankrupt BankUnited, FSB. This court’s authority to sanction crooked attorneys is explicit in Florida law and implicit in the courts' inherent power to sanction bad faith litigation. 21. Any party seeking to foreclose a mortgage without a good faith belief in the facts giving rise to the asserted claim may be sanctioned “upon the court's initiative.” § 57.105(1), Fla. Stat. 12

22. This statute affords judges the authority to immediately impose significant penalties for bringing unfounded litigation. See Moakely v. Smallwood, 826 So. 2d 221, 223 (Fla. 2002), citing United States Savings Bank v. Pittman, 80 Fla. 423, 86 So. 567, 572 (1920) (sanctioning attorney for acting in bad faith in a mortgage foreclosure sale). CONFIRMED CANCELLATION 23. On 09/02/2010, at 11:20 AM, the Clerk inside Hearing Room 4-1, Naples Courthouse, and Bailiff D. Chenoweth confirmed the cancellation of the unauthorized “hearing” before judicial imposter “Tony Perez” and/or Antonio J. Perez-Benitoa. 24. The Court explained that Perez-Benitoa was “under contract with” this Court for “one day per week”. The Court did not disclose “Tony Perez’ credentials. 25. Franklin Prescott contacted the Florida Bar in this matter. 26. Pursuant to the Magistrate’s Office, Debbie, Supervisor, Melanie [09/02/2010, AM], the “09/02/2010 hearing” before judicial imposter “Tony Perez” was cancelled. 27. Here, the law required use of the legal name of any judicial officer. “Tony Perez” is not any legal name. NOTICE OF UNTIMELY “notice” and “entry” 28. On the day of the unauthorized hearing, 09/02/2010, the “notice of hearing” appeared for the first time. On 09/01/2010, said “notice” had not appeared on the Docket.

IMPROPER USE OF NON-LEGAL NAME – JUDICIAL IMPOSTER “Tony Perez”

29. NOTICE IS HEREBY GIVEN of Jennifer Franklin Prescott’s cancellation of unauthorized “09/02/2010 hearing” because there was 13

a. b. c. d. e. f.

Non-consent by J. Franklin Prescott; No order of referral to any magistrate; No notice of hearing; No setting party of record; No jurisdiction; No standing.

Here, seized and bankrupt BankUnited, FSB, had no standing and could not have possibly been any party. 30. Pursuant to the Magistrate’s Office, Supervisor Debbie, Rose, 239-252-8870 a. Jennifer Franklin Prescott faxed her filed and recorded NOTICE OF NONCONSENT and NOTICE OF OBJECTION to the Magistrate’s Office; b. Jennifer Franklin Prescott’s MOTION TO DISMISS is not to be heard in the record absence of any notice of hearing required under the Rules. See Docket of this disposed Case. 31. NOTICE IS HEREBY GIVEN of Jennifer Franklin Prescott’s service of NOTICE OF DISPOSITION AND NON-CONSENT upon the magistrate and/or Antonio J. Perez-Benitoa at: a. Magistrate’s Office, c/o Supervisor Debbie, Rose Naples Courthouse 5th Floor Naples, FL 34112, T: 252-8331, F: 252-8870 and b. Antonio J. Perez-Benitoa, P.A. 900 Sixth Avenue South Suite 303 Naples, Florida 34102 Telephone: 239-430-1884 Fax: 239-30-1885 http://www.tonypblaw.com 32. Jennifer Franklin Prescott, record holder of unencumbered title to the subject property [address: 25 6th ST North, Naples, Florida 34102] does not consent and objected to any referral to any magistrate, hearing officer, and/or “special master”, Rule 1.490, Florida Rules of Civil Procedure.

14

JENNIFER FRANKLIN PRESCOTT’S OBJECTIONS TO ANY magistrate 33. In particular, J. Franklin Prescott objects and did not consent to any magistrate a. b. findings of fact; conclusions of law. MEMORANDUM “A REFERRAL TO A MAGISTRATE REQUIRES THE CONSENT OF ALL PARTIES.” JENNIFER FRANKLIN PRESCOTT IS ENTITLED TO HAVE THIS MATTER HEARD BY A JUDGE AND DOES NOT WANT TO HAVE THIS MATTER HEARD BY ANY MAGISTRATE. JENNIFER FRANKLIN PRESCOTT FILE A WRITTEN OBJECTION TO FICTITIOUS referral PRIOR TO COMMENCEMENT OF THE HEARING. Here, no hearing can possibly commence. PUBLICLY RECORDED 08/12/2010 FINAL DISPOSITION 34. On 08/12/2010, Def. Judge Hugh D. Hayes disposed of the fraudulent action. NO order of referral 35. Here, there were a. 08/12/2010 Final Disposition; b. No order of referral; c. No notice of any hearing; d. J. Franklin Prescott’s non-consent and objection to any magistrate referral and hearing.

RECORD LACK OF note and mortgage 36. Here, in the recorded absence of any note and/or mortgage, there was a. No agreement; 15

b. c. d.

No debt; No lien; No BankUnited interest. LACK OF TIMELY NOTICE OF ANY hearing

37. Court staff asserted and published: “A party/attorney scheduling a hearing must concurrently notice the matter in conformance with the Florida Rules of Civil Procedure and ensure timely notice is served on all pro se parties and counsel of record in advance of the hearing. The original notice must be timely filed with the Clerk of Court. The Judges’ and Magistrates ask that no courtesy copies be sent to their offices on foreclosure cases only. The setting party/attorney is responsible for preparing and filing the Order of Referral pursuant to Rule 1.490, Fl. Civil Rules of Court (also can be found at www.ca.cjis20.org/web/main/magistrates as a reference, no more signed Order of Referrals from the above website will be accepted). You will be required to submit your proposed Order of Referral to the appropriate Judge for each hearing in front of the Magistrate. This will include all hearings for 10, 15 or 30 minutes and Special Set hearings. (This will also include any Summary/Default Judgment hearings requesting more than 5 minutes.)” Here, no notice was served on Jennifer Franklin Prescott. Here, nothing, no matter, and no hearing were noticed in violation of the Florida Rules of Civil Procedure. BANKUNITED, FSB’S LACK OF standing 38. Pursuant to § 48.23, Fla. Stat., “1. A notice of lis pendens must contain the following: a. The names of the parties.” Here, the fraudulent notice of lis pendens “contained” “BankUnited, FSB”. However here, said BankUnited was not any note/mortgage holder or party. Here, U.S. agents had seized BankUnited, FSB. 39. Furthermore here, Jennifer Franklin-Prescott was mischaracterized as a “married woman” and “Walter Prescott” as “her husband”. However here, “Walter Prescott” is not the

16

“husband” of Jennifer Franklin Prescott. Here, the notice of lis pendens did not contain the parties’ names. NO jurisdiction 40. Here, “BankUnited, FSB” was a. b. c. Not any party; Had no interest; Had no standing.

Here, bankrupt BankUnited, FSB, had no standing, and this Court has no jurisdiction. RECORD APPEAL - NO jurisdiction 41. Here after disposition and J. Franklin Prescott’s Notice of Appeal, this Court had no jurisdiction:

NOTICE OF RELEASE & DISCHARGE OF FRAUDULENT lis pendens, CH. 48, F.S. 42. The fraudulent notice of lis pendens, purported INSTR 4318185, Collier County Records, has been released and discharged. Here admittedly, no note or mortgage could be established, Ch. 48, 71, F. S. Purported Plaintiff bankrupt BankUnited failed and was seized. In the record absence of any note or mortgage, said seized bank’s fraudulent action and notice were null & void and did not operate as a lis pendens, Ch. 48. 43. Furthermore, a lis pendens is not effectual for any purpose beyond 1 year from the commencement of the action and expires, § 48.23, Florida Statutes. 44. Here, the pleadings conclusively proved that no action could be founded on any lost and/or destroyed note and/or instrument. Therefore, the bankrupt and seized bank’s non17

meritorious action not possibly affect the subject property, and the court controlled and discharged the fraudulent notice of lis pendens, § 48.23, Fla. Stat. The Docket showed the 08/12/2010 Final Disposition by Def. Judge Hugh D. Hayes. 08/12/2010 FINAL DISPOSITION, FLA.R.CIV.P. 1.998 45. Hereby, prevailing Jennifer Franklin Prescott filed the Final Disposition Form pursuant to Florida Rules of Civil Procedure 1.998, 25.075, Florida Statutes. The Docket evidenced Judge Hugh D. Hayes’ 08/12/2010 Final Disposition before any hearing. 46. Here, the Docket and official record alterations were a. b. Arbitrary and capricious; Unlawful.

WHEREFORE, Jennifer Franklin Prescott hereby again demands 1. An Order for the recording of the automatic dissolution of [fraudulent] notice of lis pendens pursuant to Rule 1.420, Fla.R.Civ.P.; 2. An Order taking judicial notice, Ch. 92, Fla. Stat., of Ch. 673, Fla. Stat., and the “lawful seizure” [F.D.I.C.] of busted BankUnited, FSB; 3. An Order taking judicial notice of Ch. 673, 59, 90, and 92, Fla. Stat.; 4. An Order sanctioning the attorneys of lawfully seized BankUnited, FSB, for their unfounded and fraudulent action; 5. An Order directing judicial imposter “Tony Perez” to use and disclose his legal name. CERTIFICATE OF SERVICE AND PUBLICATION I HEREBY CERTIFY that a true and correct copy of the above has been furnished to the purported non-plaintiff, James E. Albertelli, Erin Quinn Rose, and Erin Rowland, Albertelli Law, P.O. Box 23028, Tampa, FL 33623, judicial imposter “Tony Perez”, Magistrate’s Office, Debbie, Supervisor, Fax: 239-252-8870, and Defendant Judge Hugh D. Hayes, Naples Courthouse, 3301 E. Tamiami Trail, Naples, FL 34112, on this 3rd day of September, 2010. The pleading is also being published worldwide. 18

________________________ /s/Jennifer Franklin Prescott, Prevailing Victim of lawfully seized BankUnited’s record fraud

19

Sign up to vote on this title
UsefulNot useful