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Jennifer Franklin-Prescott “BankUnited” fraud victim CERTIFIED DELIVERIES The Honorable Daniel R. Monaco The Hon.

Hugh D. Hayes, “Disposition” Judge Circuit Court Judges, Twentieth Judicial Circuit Judicial Assistants Karen / Jan Collier County Government Complex 3301 Tamiami Trail East Naples, Florida 34112 Phone: 239.774.8118 Fax: 239.252.8870; 239.775.5538; 239.774.9654; 239-252-8020 Email: dmonaco@ca.cjis20.org, jmetcalfe@ca.cjis20.org, hhayes@ca.cjis20.org RE: Unlawful “hearing” in disposed wrongful foreclosure case 09-6016-CA VIOLATIONS OF “OFFICE POLICIES & PROCEDURES” IN DISPOSED CASE ISSUE OF UNAUTHORIZED / UNLAWFUL “HEARING” 1. “Only hearings for Summary and Default Judgments may be scheduled on the Tuesday, Wednesday and Thursday dockets before Judge Daniel Monaco. These timeslots will be in 5 minute increments. (DO NOT schedule any other kind of motions on this docket.) All motions other than MSJ and DJ will be cancelled by Court Administration. No additional motions will be heard with the Summary/Default Judgments before Judge Monaco.” 2. “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.” See “OFFICE POLICIES AND PROCEDURE, Senior Judge Foreclosure, Collier County Clerk of Court. Here accordingly, “BankUnited” was not entitled to sue nor to any hearing and did not serve any “timely notice” of hearing on Jennifer Franklin-Prescott as also conclusively evidenced by the Clerk’s 02/18/2011 Docket. Respectfully, /s/Jennifer Franklin-Prescott

IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA BANKUNITED, non-successor in interest to [lawfully seized] BANKUNITED, FSB., purported plaintiff(s), vs. DISPOSED CASE NO.: 09-6016-CA JENNIFER FRANKLIN-PRESCOTT, et al., purported defendants. _________________________________________________________________________/ NOTICE OF APPEAL AND OF “BANKUNITED’S” LACK OF STANDING & FRAUD ON THE COURT 1. Jennifer Franklin-Prescott hereby files her NOTICE OF APPEAL. Fraud victim FranklinPrescott defends against fraud on the Court and wrongful foreclosure acts by “BankUnited” and/or foreclosure mill “Albertelli Law”. 02/18/2011 DOCKET EVIDENCE 2. In this disposed action, the Clerk of Court’s 02/18/2011 Docket showed:

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UNAUTHORIZED (AMENDED) “02/22/11, 10:00A.M., HEARING, DEFENDANT’S MOTION TO DISMISS / MOTION TO ENJOIN” 3. On “02/08/2011”, “BankUnited” amended the ‘NOTICE OF 02/22/11 HEARING, 10:00A.M., DEFENDANT’S MOTION TO DISMISS / MOTION TO ENJOIN”. The unauthorized amended “02/14/11 HEARING” did not take place. BANKUNITED DID NOT SERVE NOTICE OF HEARING ON FRANKLIN-PRESCOTT 4. “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.” See “OFFICE POLICIES AND PROCEDURE, Senior Judge Foreclosure, Collier County Clerk of Court. 5. Here, “BankUnited” was not entitled to any hearing and did not serve any “timely notice” of hearing on Jennifer Franklin-Prescott as also conclusively evidenced by the attached 02/18/2011 Docket.

ISSUE OF UNAUTHORIZED SCHEDULING OF UNLAWFUL “HEARING”

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“Only hearings for Summary and Default Judgments may be scheduled on the Tuesday, Wednesday and Thursday dockets before Judge Daniel Monaco. These timeslots will be in 5 minute increments. (DO NOT schedule any other kind of motions on this docket.) All motions other than MSJ and DJ will be cancelled by Court Administration. No additional motions will be heard with the Summary/Default Judgments before Judge Monaco.” Id. “BANKUNITED’S” LACK OF STANDING & FRAUD ON THE COURT 6. Pursuant to the conclusive evidence on file in this disposed action, “BankUnited” lacked any standing, identification as note holder and/or owner, and entitlement to the pretended “hearing” on “02/22/2011”. As a matter of law, “BankUnited” had no right to sue FranklinPrescott who does not owe money to “BankUnited”. LACK OF AUTHORITY AND/OR JURISDICTION 7. In the prima facie absence of any standing and required conditions precedent, the Court has no authority under the Rules. “BankUnited’s” so-called evidence on file was inadmissible, incompetent, and/or hearsay. RECORD DISPOSITION IN FAVOR OF PRESCOTT FOR LACK OF STANDING 8. Case # 09-6016-CA was disposed on 08/12/2010 in favor of Jennifer Franklin-Prescott. This Court disposed of COUNTS I, II, and III. “COUNT I (reestablishment of lost instrument)” was facially frivolous, because the “lost instrument/note” identified bankrupt and defunct “BankUnited, FSB” [rather than “BankUnited”] as a “lender”. 9. In its facially frivolous and insufficient “complaint for mortgage foreclosure”, “plaintiff” “BankUnited” wrongfully sued Jennifer Franklin-Prescott in the record absence of any instrument and/or note identifying “BankUnited”. BANKRUPT & SEIZED “BANKUNITED, FSB” WAS NOT ANY “PLAINTIFF” 10. “BankUnited, FSB” was not any “plaintiff” in this disposed action. 3

11. The electronic docket in this disposed action had erroneously listed “BankUnited, FSB” as a “plaintiff” in this disposed action. 12. In this disposed action, “Plaintiff” “BankUnited” had deceptively alleged “that all conditions precedent to the institution of this action have occurred…” (see complaint, ¶ 2, p. 2 of 8, “General Allegations”). 13. The “subject mortgage referenced” in the wrongful complaint identified “BankUnited, FSB” rather than the “plaintiff”, i.e., “BankUnited”. 14. The “logo” of bankrupt and lawfully seized “BankUnited, FSB” included a palm tree and “BANKUNITED”. 15. “Plaintiff BankUnited” had falsely alleged that “The plaintiff [is] named in the attached complaint [“BankUnited”] is the creditor to whom the debt is owed … The undersigned attorney represents the interest of the plaintiff.” See “Notice Required by the Debt Collection Practices Act …” attached to disposed complaint. 16. “Plaintiff BankUnited” was not any “creditor” in the disposed wrongful action. 17. Jennifer Franklin-Prescott did not owe any debt to “plaintiff BankUnited” pursuant to the evidence on file in this disposed wrongful action. 18. Undersigned “Camner Lipsitz, PA”, and/or founder of bankrupt and defunct “BankUnited, FSB”, Alfred Camner, Esq., “represented the interest of the plaintiff [BankUnited]”. 19. “BankUnited” had fraudulently alleged in the Complaint (¶ 16, Count II) that “plaintiff” [“BankUnited”] owns and holds the note and mortgage.” 20. The purported note and/or mortgage within the four corners of the disposed complaint did not identify “BankUnited” as a “lender”. 21. The purported note/mortgage identified “BankUnited, FSB” as a “lender”.

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22. No admissible evidence of any obligation to pay money to “BankUnited” existed on the record of this disposed wrongful action, and Jennifer Franklin-Prescott was not obligated to make any payment to “BankUnited”. 23. “Plaintiff BankUnited’s” purported “01/12/2011 Affidavits as to amounts due and attorneys fees” were fraudulent and not founded on any note and/or mortgage identifying “BankUnited” as a “lender”. 24. An affidavit that is not executed in accordance with the requirements of Ch. 92, Florida Statutes, is not competent evidence in a civil case. 25. The alleged promissory note was never properly executed. 26. “BankUnited” has had no right to enforce the falsely pretended mortgage/note. 27. “BankUnited” never satisfied the required conditions precedent. 28. “BankUnited” had no standing. 29. “BankUnited” failed to state any cause of action. 30. “BankUnited” could not have possibly been entitled to any summary disposition and/or hearing in this disposed action. 31. “Pedro Luis Licourt” is not any known party to the disposed action, Case # 09-6016-CA 32. The purported “Amended Motion for Summary Judgment and for Attorney Fees against Pedro Luis Licourt” was erroneous, irrational, and irrelevant to said disposed action. 33. Said action was disposed, because here no note and/or mortgage had been “transferred”” to “BankUnited”. 34. The record and/or docket of this disposed action conclusively evidenced the “genuine issues of material fact”, which prohibited any summary disposition after the 08/12/2011 disposition.

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35. The “02/08/2011 “Amended Mtoin for Summary Judgment and for Attorney Fees against Pedro Luis Lizourt” was erroneous, irrational, and irrelevant to said disposed action. 36. There was no service of notice of 02/14/2011 hearing upon Jennifer Franklin-Prescott nor any “02/14/2011 hearing”. 37. There was no service of notice of 02/22/2011 hearing upon Franklin-Prescott, and the “amended hearing on 02/14/2010” did not take place. 38. In this disposed action, the purported “Defendant’s motion to dismiss/motion to enjoin” was moot and irrational. 39. Jennifer Franklin-Prescott was never properly served either by personal service of process or by any other service of process in strict compliance with Chapters 48 and 49, Florida Statutes. 40. “BankUnited” failed to conduct a diligent search in strict compliance with the Florida statutes governing service of process. 41. The record established that the falsely alleged service by publication was void. 42. Florida’s Statutes governing service of process are to be strictly construed to assure that defendants have the opportunity to protect their rights. 43. Any judgment against a defendant based upon improper service by publication would have lacked authority of law. 44. Estoppel prevented identical parties from re-litigating prima facie frivolous issues after the 08/12/2010 disposition “under the disguise” of an unlawful and controverted summary disposition motion. NOTICE OF OBJECTION TO ANY HEARING & MAGISTRATE IN DISPOSED CASE AND OF BINDING PRECEDENT IN SUPPORT OF 08/12/2010 DISPOSITION

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FILED NOTICE OF FRANKLIN-PRESCOTT’S OBJECTION & NON-CONSENT 45. Jennifer Franklin-Prescott again objects to any hearing and/or any magistrate in this disposed action. Here, no hearing was authorized and/or lawful and the notice a sham. RECORD DISPOSITION FOR LACK OF STANDING & FAILURE TO STATE CAUSE 46. This action had been disposed on 08/12/2010.

ERRONEOUS “NOTICE” IN DISPOSED ACTION 47. On 02/18/2011, the Docket showed a “notice of hearing” which was “amended”. Here, the notice did not pertain to Jennifer Franklin-Prescott and/or the disposed action but to “Pedro Luis Licourt”, who is not any known party.

UNLAWFUL/UNAUTHORIZED HEARING IN DISPOSED ACTION 48. Here, the erroneously alleged “amended mtoin for summary judgment …” does not pertain to this disposed action. Any hearing and/or any motion for summary disposition would be improper, unauthorized, and/or unlawful. NO FEBRUARY HEARING APPEARED ON THE DOCKET 49. Here, the 02/18/2011 Docket did not show any hearing and/or hearing date:

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NO CONSENT & OBJECTION TO ANY MAGISTRATE (HEARING) 50. Previously and repeatedly, Franklin-Prescott had objected to any magistrate hearing. Because of the record lack of any consent, a previous hearing had been cancelled in this disposed action.

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

VAGUE & AMBIGUOUS SHAM “NOTICE” IN DISPOSED ACTION 52. In this disposed action, the notice was vague, ambiguous, and unintelligent. A pleading is considered a sham when it is inherently false and based on plain or conceded facts clearly known to be false at the time the pleading was made. See Decker v. County of Volusia, 698 So. 2d 650, 651 (Fla. 5th DCA 1997); Destiny Constr. Co. v. Martin K. Eby Constr., 662 So. 2d 388, 390 (Fla. 5th DCA 1995). RECORD ABSENCE OF NOTE AND CONDITIONS PRECEDENT 53. Here, no genuine properly executed note identifying “BankUnited” had existed. Copies of a null and void note/mortgage and/or hearsay were not admissible under the Code of Evidence. Here, there were no witnesses and no notary had acknowledged any authentic note/mortgage. NON-BINDING “MODIFICATION AGREEMENT” 54. BankUnited, FSB, and/or BankUnited knew and/or concealed that “8. The Modification will be legally binding upon the parties, only when it is signed by Note Holder and each Borrower.” Here, Walter Prescott did not sign the purported “Loan Modification Agreement”. See 12/21/2010 “Notice of Filing of Original Loan Modification Agreement” in disposed 8

(08/12/2010) action. Because here the alleged 09/05/2007 “Modification Agreement” was not signed by each Borrower and/or Walter Prescott, it was not legally binding. FAILURE TO PROVE TERMS 55. A person seeking enforcement of an instrument under UCC § 3-309(a) must prove the terms of the instrument and the person’s right to enforce the instrument. See UCC § 3-309(b). Here, plaintiff “BankUnited” failed to prove any terms. RECORD ABSENCE OF EXECUTION 56. Here, the alleged February 2006 note, mortgage, and/or security instrument did not identify “BankUnited” and could not have possibly encumbered Franklin-Prescott’s real property, because they were not properly executed. NO PROOF ON FILE IN DISPOSED ACTION 57. Here, Franklin-Prescott had denied the authenticity of signatures on the purported note and/or mortgage alluded to in this disposed case and demanded strict proof thereof, by clear and convincing evidence, pursuant to § 673.3081, Fla. Stat. (2008). See “Adjustable Rate Note”, page 4 of 4, in 12/01/2010 and/or 11/01/2010 “Notice of Filing of Original Note & Original Mortgage”. 58. Here in particular, there were, e.g., no notarial acknowledgment and no signature by purported “borrower” Walter Prescott. 59. The “complaint” and above “Notice(s) of Filing” established the purported note as null and void. Furthermore, the non-genuine copies (prima facie hearsay) in the complaint and “Notices of Filing” fatally conflicted. “PARTIES” TO ALLEGED NOTE WERE CONFLICTING AND AMBIGUOUS 60. In this disposed action, the purported “plaintiff” did not assert any valid note and mortgage assignment status in the complaint. “BankUnited” was never identified. A security could not possibly follow a non-existent note. 61. Here, there was no assignee of any note. Here, no promissory note and no note assignment were recorded. See Collier County Public Records. However, assignments must be recorded to be valid against creditors and subsequent purchasers. § 701.02, Fla. Stat. (2010). See also, Glynn v. First Union Nat’l. Bank, 912 So. 2d 357, 358 (Fla. 4th DCA 2005). 62. In this disposed action, the named parties plaintiffs, and/or borrowers were conflicting and ambiguous. See Docket:

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

63. Here, the style and/or title of the disposed case did not identify “BankUnited, FSB” as any “plaintiff”. Here purportedly, the “chain of title” included bankrupt “BankUnited, FSB”, FDIC [lawful seizure of bankrupt bank], and “BankUnited”. NO TRANSFER OF ALLEGED INSTRUMENT 64. An instrument is transferred when it is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument. See UCC § 3-203(a). If a transferor purports to transfer less than the entire instrument, negotiation of the instrument does not occur. The transferee obtains no rights under this Article and has only the rights of a partial assignee. See UCC 3-203(d). Here, the destroyed and/or lost instrument could not have possibly been delivered and/or transferred, and the case was disposed on 08/12/2010. 08/12/2010 DISPOSITION & UNVERIFIED 07/09/09 COMPLAINT OF LOST NOTE 65. In this disposed action, BankUnited had filed an unverified mortgage foreclosure complaint naming Jennifer Franklin-Prescott as a defendant. Said 07/09/2009 complaint included COUNT I for reestablishment of a lost note, COUNT II (on promissory note), and COUNT III (on mortgage foreclosure). UNKNOWN LOSS / DESTRUCTION OF PURPORTED PROMISSORY NOTE

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66. On behalf of “BankUnited”, bankrupt BankUnited, FSB’s founder Alfred Camner, Esq., had asserted in the complaint: “6. Said promissory note and mortgage have been lost or destroyed and are not in the custody or control of BankUnited, and the time and manner of the loss or destruction is unknown.” Here, no copy of any genuine promissory note identifying “BankUnited” was attached to the complaint. COPY OF MORTGAGE IDENTIFIED BANKRUPT “BankUnited, FSB” AS “LENDER” 67. BankUnited had attached a copy of the mortgage it sought to foreclose to the complaint; however, said document identified lawfully seized “BankUnited, FSB” as the "lender". BankUnited had also attached an "Adjustable Rate Rider" to the complaint, which however also identified bankrupt “BankUnited, FSB” as the "lender." RECORD PROOF OF LACK OF STANDING 68. Prior to the 08/12/2010 disposition, Jennifer Franklin-Prescott had proven BankUnited’s lack of standing, answered, and filed a motion to dismiss. BANKUNITED’S FAILURE TO STATE ANY CAUSE OF ACTION 69. This action was disposed, because BankUnited had failed to state any cause action. ATTACHMENTS PROVED BANKUNITED’S LACK OF STANDING & CAUSE 70. On 08/12/2010, the action was disposed, because Franklin-Prescott had proven that none of the attachments to the facially frivolous and insufficient complaint showed that BankUnited actually held the note or mortgage, thus giving rise to the disposition and question as to whether BankUnited actually ever had standing to foreclose on the mortgage. BANKUNITED’S FALSE PRETENSES & FRAUD ON THE COURT 71. In this disposed action, BankUnited had falsely pretended: “16. Plaintiff owns and holds the note and mortgage.” See COUNT II. While here BankUnited had fraudulently alleged in its unverified complaint that it was the holder and/or owner of the purported note and mortgage, the copy of the mortgage attached to the complaint listed "BankUnited, FSB" as the "lender". No authentic note identifying “BankUnited” was attached. BANKUNITED’S EXHIBITS CONTRADICTED ITS ALLEGATIONS 72. When exhibits are attached to a complaint, the contents of the exhibits control over the allegations of the complaint. See, e.g., Hunt Ridge at Tall Pines, Inc. v. Hall, 766 So. 2d 399,

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401 (Fla. 2d DCA 2000) ("Where complaint allegations are contradicted by exhibits attached to the complaint, the plain meaning of the exhibits control[s] and may be the basis for a motion to dismiss."); see Blue Supply Corp. v. Novos Electro Mech., Inc., 990 So. 2d 1157, 1159 (Fla. 3d DCA 2008); Harry Pepper & Assocs., Inc. v. Lasseter, 247 So. 2d 736, 736-37 (Fla. 3d DCA 1971) (holding that when there is an inconsistency between the allegations of material fact in a complaint and attachments to the complaint, the differing allegations "have the effect of neutralizing each allegation as against the other, thus rendering the pleading objectionable"). 08/12/2010 DISPOSITION FOR LACK OF STANDING & FAILURE TO STATE CAUSE 73. Because the exhibits to BankUnited's complaint conflicted with its allegations concerning standing and the exhibits did not show that BankUnited had any standing to foreclose the mortgage, BankUnited did not establish its entitlement to foreclose the mortgage and/or sue as a matter of law. Accordingly, the action was disposed on 08/12/2010. “BANKUNITED” WAS NEVER IDENTIFIED AND HAD NO RIGHTS TO ENFORCE 74. Moreover, while BankUnited filed the purportedly lost “original note” after the 08/12/2010 disposition, the non-authentic and non-executed note did not identify “BankUnited” as the lender or holder. BankUnited also did not attach any assignment or any other evidence to establish that it had purchased the note and mortgage. Further, BankUnited did not file any supporting affidavits or deposition testimony to establish that it owns and holds the purported note and mortgage. Accordingly, this Court disposed the action on 08/12/2010, because the documents before it did not and could not possibly establish BankUnited's standing to foreclose the purported note and mortgage. BANKUINTED WAS NO “HOLDER” & HAD NO RIGHTS TO ENFORCE NOTE 75. A “holder” is defined as the person in possession if the instrument is payable to bearer or, in the case of an instrument payable to an identified person, if the identified person is in possession. “Mere ownership or possession of a note is insufficient to qualify an individual as a ‘holder’.” See also Adams v. Madison Realty & Dev. Inc., 853 F.2d 163, 166 (3d Cir. 1988). Attainment of the status of “holder” depends on the negotiation of the instrument to the transferee. The two elements required for negotiation, both of which were missing here,

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were the transfer of possession of the alleged instrument to BankUnited (non- transferee), and its indorsement by the holder. BINDING PRECEDENT – BAC FUNDING CONSORTIUM, INC 76. The Second District confronted a similar situation in BAC Funding Consortium, Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So. 3d 936 (Fla. 2d DCA 2010), when the trial court had granted the alleged assignee U.S. Bank's motion for summary judgment. That court reversed because, inter alia, "[t]he incomplete, unsigned, and unauthenticated assignment attached as an exhibit to U.S. Bank's response to BAC's motion to dismiss did not constitute admissible evidence establishing U.S. Bank's standing to foreclose the note and mortgage." Id. at 939. Said Appellate Court in BAC Funding Consortium, properly noted that U.S. Bank was "required to prove that it validly held the note and mortgage it sought to foreclose." Id. RECORD LACK OF ANY ADMISSIBLE EVIDENCE: “BANKUNITED” WAS NOT ANY OWNER AND HAD NO RIGHT TO SUE PRESCOTT 77. In the instant case, the purported note was, e.g., not properly executed, not assigned, the falsely pretended assignment not recorded, and the endorsement in blank was unsigned and unauthenticated, creating genuine issues of material fact as to whether “BankUnited” was ever the lawful owner and holder of the purported note and/or mortgage. As in BAC Funding Consortium, here there were no supporting affidavits or deposition testimony in the record to establish that “BankUnited” validly owned and held the improperly executed note and mortgage, no evidence of an assignment to “BankUnited”, no proof of purchase of the debt nor any other evidence of an effective transfer to “BankUnited”. AUTOMATICALLY DISSOLVED “LIS PENDENS” 78. Here, the improper and unauthorized lis pendens was automatically dissolved upon the disposition of foreclosure. See Rule 1.420(f), Fla. R. Civ. P. (2010). The validity of a notice of lis pendens is one year from filing. § 48.23(2), Fla. Stat. (2010). 79. In this disposed action, the purported “plaintiff” sought to re-establish the missing note in “COUNT I (Reestablishment of Lost Instruments)” of the complaint (see p. 2 of 8). FranklinPrescott had filed her answer(s) and motions to dismiss and proven plaintiff’s lack of standing, which was one of the ultimate affirmative defenses. Here, the record reflected

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that plaintiff could not possibly re-establish the note and that no authentic note could possibly be proven under the Evidence Code. FRAUD ON THE COURT & RECORD EVDENCE THEREOF 80. Here however, “plaintiff(s)”, BankUnited and BankUnited, FSB, fraudulently asserted: “that all conditions to the institutions of this action have occurred, been performed or excused …” 81. Prior to the 08/12/2010 disposition, plaintiff had failed to re-establish and could not have possibly re-established the destroyed and/or lost note/mortgage. Here, the time and manner of the loss/destruction had been uinknown. See UCC §§ 3-309; 3-305. 02/15/11 DOCKET SHOWED FRAUD EVIDENCE & DEMAND IN DISPOSED ACTION

PREVIOUS NOTICE OF UNAVAILABILITY IN DISPOSED ACTION 82. Prescott who is in the Pacific had given her notice of unavailability. In this disposed action, Prescott could not possibly be expected to appear under said entirely unreasonable circumstances on such unintelligent, irrelevant, unauthorized, and short notice. UNAUTHORIZED ATTORNEYS 83. “Rose, Erin M.” was the only attorney authorized in this disposed action.

Here unlawfully, various unknown “attorneys” appeared without any authority and falsely pretended a “hearing”. RECORD FRAUD ON THE COURT 84. This court knows about the fraud on the Court perpetrated by BankUnited & Albertelli Law:

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In this disposed action, any hearing and/or motion for summary disposition were unauthorized and improper. “BANKUNITED” HAD NO VALID SECURITY INTEREST 85. In Florida, a security interest in a mortgage and/or the assignment of a mortgage must be recorded in order to perfect the security interest in the mortgage. Here, no valid BankUnited security interest existed. DEMAND OF LIS PENDENS BOND 86. Florida Statutes, section 48.23, governs the use of a lis pendens, and treats a lis pendens as one of two types. Here, the purported invalid lis pendens was not founded on a duly recorded instrument. Here, the purported promissory note was destroyed, lost, and/or transferred. See Complaint. Furthermore here, there was the lawful seizure of bankrupt BankUnited and/or an alleged transfer/sale. Here, the missing note/mortgage could not have possibly been reestablished and/or enforced. § 48.23(3), Fla. Stat. (1993) authorizes the trial court to "control and discharge the notice of lis pendens as the court may grant and dissolve injunctions." Here, Prescott appears to be entitled to a lis pendens bond. 87. Here, Prescott showed that the bond is necessary to protect her from irreparable harm after the disposition. Here, the lis pendens was not based on a recorded genuine instrument. See Feinstein v. Dolene, Inc., 455 So.2d 1126, 1128 (Fla. 4th DCA 1984). 88. Here, the note was missing and the lis pendens was unjustified. See Florida Communities Hutchinson Island v. Arabia, 452 So.2d 1131, 1132 (Fla. 4th DCA 1984). Here, the null and void lis pendens placed a cloud on the title that did not exist. See Andre Pirio Assocs. v. Parkmount Properties, Inc., N.V., 453 So.2d 1184, 1186 (Fla. 2d DCA 1984). 89. In this disposed action, the bond is simply mandatory. See Porter Homes, Inc. v. Soda, 540 So.2d 195, 196 (Fla. 2d DCA 1989)(where a lis pendens is not founded upon a lawsuit involving a recorded instrument, section 48.23(3) "requires the posting of a bond."). See

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Machado v. Foreign Trade, Inc., 537 So.2d 607, 607 n.1 (Fla. 3d DCA 1988); Munilla v. Espinosa, 533 So.2d 895 (Fla. 3d DCA 1988). CONTESTED SIGNATURE ON PURPORTED NOTE 90. Here, the signature on the purported note was contested and not authentic. There was no notarial acknowledgment. See evidence on file. ALL PLEADINGS WERE SIGNED 91. Here, all of Franklin-Prescott’s pleadings were signed (“/s/ Jennifer Franklin-Prescott”). NOTICE OF INTERLOCUTORY APPEAL FROM HEARING IN DISPOSED ACTION 92. Here, more than one hearing appeared on the Docket after said 08/12/2010 disposition and Franklin-Prescott appeals from the unauthorized scheduling of hearings in this disposed action. AFFIRMATIVE DEFENSES PRIOR TO DISPOSITION FIRST AFFIRMATIVE DEFENSE: FAILURE TO PRODUCE ORIGINAL NOTE 93. A person seeking enforcement of a lost, destroyed or stolen instrument must first prove entitlement to enforce the instrument WHEN the loss of possession occurred, or has directly or indirectly acquired ownership of the instrument from a person who was entitled to enforce the instrument when loss of possession occurred. Further, he must prove the loss of possession was not the result of a transfer by the person or a lawful seizure; and the person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process. 673.3091 Fla. Stat. (2009). 94. Here, Franklin-Prescott had denied the purported “plaintiff” has ever had possession of the alleged note and/or mortgage. Plaintiff could not establish foundation to show possession of the note WHEN the loss of possession occurred. Plaintiff could not establish that plaintiff lost possession of the note after it was transferred to the Plaintiff and that it could not reasonably obtain possession thereof. Absent such proof in this disposed action, plaintiff had been required by Florida Law to provide the original note and mortgage. Having failed to provide the original note and mortgage at the time of filing, Plaintiff could not sue and/or maintain this disposed action.

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95. Here, the Plaintiff could not prove the terms of the instrument and the plaintiff bank’s right to enforce the alleged instrument. The court may not enter judgment in favor of the person seeking enforcement unless it finds that the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument. Fla. Stat. 673.3091(2). In this disposed action, Franklin-Prescott specifically had been denying all necessary terms of the note are provided in the attached mortgage/note. Clearly, since the note is missing, necessary endorsements on the note are missing; as such, essential terms and conditions precedent were not provided by the plaintiff. UNCLEAN HANDS DEFENSE 96. Prescott had asserted and proven (another affirmative defense) that the plaintiff(s) had failed to follow Florida law of negotiable instruments and including, e.g., obtaining necessary signatures, acknowledgments, recordations, assignments, and/or endorsements on the purported non-authentic promissory note and mortgage deceptively submitted to this Court as alleged debt evidence. As such, the plaintiff came to this court with unclean hands. WHEREFORE Jennifer Franklin-Prescott respectfully demands 1. Proper processing of this NOTICE OF APPEAL and/or INTERLOCUTORY APPEAL; 2. An Order taking judicial notice of said binding precedent (BAC Funding) in support of the record 08/12/2010 disposition; 3. 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; 4. 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; 5. An Order declaring any hearing unauthorized in this disposed action; 6. An Order declaring the prima facie sham “motion” and “affidavits” unlawful in this previously disputed and disposed action; 7. An Order declaring the purported note and/or mortgage unenforceable; 8. An Order taking judicial notice of the prima facie unenforceability of the unrecorded, unassignable, and unpaid mortgage (unpaid mortgage taxes); 9. An Order declaring the purported “plaintiff” to be in violation of Fed.R.Civ.P. 1.510 in this disposed and previously controverted action;

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10. 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; 11. An Order declaring said affidavits “hearsay” and lacking any legal and/or factual basis in the absence of any authentic “note” and/or mortgage; 12. 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; 13. An Order prohibiting Counsel and/or Jason M. Tharokh, Esq., who did not file any notice from appearing in this disposed action. Respectfully, /s/Jennifer Franklin-Prescott, BankUnited foreclosure fraud victim ATTACHMENTS 02/18/2011 Docket, et al. 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 Hon. Daniel R. Monaco, Courthouse, Naples, FL 34112, USA, on February 18, 2011, Pacific Time. Respectfully, /s/Jennifer Franklin Prescott, fraud victim CC: Hon. Hugh D. Hayes (Disposition Judge), Albertelli Law, Hon. Daniel R. Monaco, Karen, United States District Court, Clerk of Court, The Florida Bar, New York Times, et al. hhayes@ca.cjis20.org, Dwight.Brock@collierclerk.com, dmonaco@ca.cjis20.org, acamner@clplaw.net, eecamner@clplaw.net, darlene.muszynski@collierclerk.com, Collierclerk@collierclerk.com, Sue.Barbiretti@collierclerk.com, Jill.Lennon@collierclerk.com …

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2/18/2011

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

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12/06/2010 NO APPEAR ANC E BY THE PARTIES 12/06/2010 MINUTES - HEAR ING SEE SC HEDULE MINUTES FO R DETAILS 12/07/2010 NO TIC E O F C ANC ELLATIO N 12/06/10 @ 3:00 MO TIO N FO R SUMMARY JUDGMENT 12/08/2010 O BJEC TIO N TO HEAR ING BY JENNIFER FR ANKLIN PR ESC O TT 12/08/2010 O BJEC TIO N TO STATUS O F DISPO SITIO N JUDGE & R EC USAL MO TIO N BY JENNIFER FR ANKLIN PR ESC O TT 12/17/2010 NO TIC E O F FR AUD & LO SS BY JENNIFER FR ANKLIN-PR ESCO TT 12/17/2010 MO TIO N TO C ANC EL UNAUTHO R IZED HEAR ING IN DISP O SED AC TIO N BY JENNIFER FR ANKLIN PR ESC O 12/20/2010 O BJEC TIO N TO (EMER GENC Y) TO PUR PO R TED NO TE IN DISPO SED AC TIO N & UNNO TIC ED & UNAUTHO R IZED HEAR ING IN FR AUD O N C O UR T C ASE BASED O N DEFENDANT ET AL 12/22/2010 NO TIC E O F FILING O R IGINAL LO AN MO DIFIC ATIO N AGR EEMENT 01/04/2011 O BJEC TIO N TO FR AUD O N THE C O UR T BY JENNIFER FR ANKLIN-PR ESC O TT 01/12/2011 NO TIC E O F DR O PPING PAR TY JO HN DO E/JANE DO E 01/12/2011 MO TIO N FO R SUMMAR Y JUDGMENT 01/12/2011 AFFIDAVIT AS TO AMO UNTS DUE 01/12/2011 AFFIDAVIT AS TO ATTO R NEYS FEES 02/01/2011 C O PY (FAX) NO TIC E O F O PPO SITIO N & O PPO SITIO N EVIDENC E/FR AUD EVIDENC E & UNAVAILABILITY IN DISPO SED AC TIO N/NO TIFIC ATIO N O F C O URT & C LER K ET AL 02/07/2011 NO TIC E O F FR AUDULENT AFFIDAVITS BY JASO N M TAR O KH ESQ & O F UNLAW FUL/ UNAUTHO R IZED AC T BY ALBER TELLI LAW (UNSIGNED) 02/08/2011 NO TIC E O F HEARING 02/22/11 @10:00A.M., DEFENDANT'S MO TIO N TO DISMISS/MO TIO N TO ENJO IN 02/08/2011 AMENDED NO TIC E O F HEAR ING 02/14/11 @3:30P M AMENDED MO TIO NFO R SUMMAR Y JUDGMENT AND FO R

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02/14/11 @3:30P.M. AMENDED MO TIO NFO R SUMMAR Y JUDGMENT AND FO R ATTO R NEY FEES AGAINST PEDR O LUIS LIC O UR T

Public Inquiry

02/08/2011 AMENDED MTO IN FO R SUMMAR Y JUDGMENT AND FO R ATTO R NEY FEES AGAINST P EDR O LUIS LIC O UR T 02/09/2011 DEMAND O F FO R ENSIC R EVIEW & AUDIT AND NO TIC E O F FR AUDULENT AND/O R INAC C UR ATE AC C O UNTING IN DISPO SED AC TIO N

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Dear Jennifer Franklin-Prescott: Your fax to HON. JUDGE DANIEL R. MONACO at +1 (239) 252-8870 has been successfully sent: Your fax was delivered at 2/18/2011 9:41:46 PM, and contained 25 page(s). Thank you for choosing MyFax, The MyFax Team http://www.myfax.com

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Judges Berate Bank Lawyers in Foreclosures
By JOHN SCHWARTZ Published: January 10, 2011

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With judges looking ever more critically at home foreclosures, they are reaching beyond the bankers to heap some of their most scorching criticism on the lawyers.
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In numerous opinions, judges have accused lawyers of processing shoddy or even fabricated paperwork in foreclosure actions when representing the banks.

Ozier Muhammad/The New Y ork Times, lef t; Julie Glassberg/The New Y ork Times

Judge Arthur M. Schack of New Y ork State Supreme Court in Brooklyn has taken aim at an upstate lawyer, Steven J. Baum, referring to one filing as “incredible, outrageous, ludicrous and disingenuous.” But New Y ork judges are also trying to take the lead in fixing the mortgage mess by leaning on the lawyers. In November, a judge ordered Mr. Baum’s firm to pay nearly $20,000 in fines and costs related to papers that he said contained numerous “falsities.” The judge, Scott Fairgrieve of Nassau County District Court, wrote that “swearing to false statements reflects poorly on the profession as a whole.”

Judge Arthur Schack, left, of New York State Supreme Court, called one filing “outrageous.” Jonathan Lippman, the state’s chief judge, says law yers must ask clients if their paperw ork is sound.

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More broadly, the courts in New Y ork State, along with Florida, have begun requiring that lawyers in foreclosure Wells Fargo & Co cases vouch for the accuracy of the documents they Go to your Portfolio » present, which prompted a protest from the New Y ork bar. The requirement, which is being considered by courts in other states, could open lawyers to disciplinary actions that could harm or even end careers.
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Stephen Gillers, an expert in legal ethics at New Y ork University, agreed with Judge Fairgrieve that the involvement of lawyers in questionable transactions could damage the overall reputation of the legal profession, “which does not fare well in public opinion” throughout history. “When the consequence of a lawyer plying his trade is the loss of someone’s home, and it turns out there are documents being given to the courts that have no basis in reality, the profession gets a very big black eye,” Professor Gillers said. The issue of vouching for documents will undoubtedly meet resistance by lawyers elsewhere as it has in New Y ork.

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Anne Reynolds Copps, the chairwoman of the real property law section of the New Y ork State bar, said, “We had a lot of concerns, because it seemed to paint attorneys as being the problem.” Lawyers feared they would be responsible for a bank’s mistakes. “They are relying on a client, or the client’s employees, to provide the information on which they are basing the documents,” she said. The role of lawyers is under scrutiny in the 23 states where foreclosures must be reviewed by a court. The situation has become especially heated for high-volume firms whose practices mirror the so-called robo-signing of some financial institutions; in these cases, documents were signed without sufficient examination or proper notarization. In the most publicized example, David J. Stern, a lawyer whose Florida firm has been part of an estimated 20 percent of the foreclosure actions in the state, has been accused of filing sloppy and even fraudulent mortgage paperwork. Major institutions have dropped the firm, which has been the subject of several lawsuits, and 1,200 of the 1,400 people once at the firm are out of work. The Florida attorney general’s office is conducting a civil investigation of Mr. Stern’s firm and two others. “There’s been no determination” in a court that Mr. Stern or his employees “did wrong things, said Jeffrey Tew, Mr. Stern’s lawyer, adding that the impact was nevertheless devastating. “There are groups in society that everybody likes to hate,” Mr. Tew added. “Now foreclosure lawyers are on the list.” Such concerns have, in recent months, brought a sharp focus on activities in New Y ork State, and in particular on the practice of Mr. Baum, a lawyer in Amherst, outside Buffalo. Judges have cited his firm for what they call slipshod work that, in some cases, was followed by the dismissal of foreclosure actions. One case involved Sunny D. Eng, a former manager of computer systems on Wall Street. He and his wife, who has cancer, stopped paying the mortgage on their Holtsville, N.Y ., home after Mr. Eng’s Internet services business foundered. The mortgage was originally held by the HTFC Corporation, but the foreclosure notice came from Wells Fargo, a bank that the Engs had no relationship with. They hired an experienced foreclosure defense lawyer on Long Island, Craig Robins. The court ultimately ruled in favor of Mr. Eng.
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Judges Berate Bank Lawyers in Foreclosures
Published: January 10, 2011

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“Y ou want to call it God, you can call it God,” Mr. Eng said. “Y ou want to call it luck, you can call it luck. We just followed the system, and thank God the system worked.”
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Through a spokesman, Mr. Baum REPRINTS said, “The foreclosure process in New SHARE The Takeaw ay With John Y ork State is extremely complex and Schw artz subject to extensive judicial review. We believe this review respects the due process of anyone who challenges a Add to Portfolio foreclosure. Consumer activists and Wells Fargo & Co attorneys representing homeowners have their own agenda Go to your Portfolio » in this process, including degrading the legal work we conduct on behalf of our clients by using terms like ’foreclosure mill,’ which I find personally and professionally insulting.” He added, “What is important now is that all parties attempt to work together to resolve issues amicably. The barrage of accusations and litigation does little to help the underlying problems.” Cases across the nation like Mr. Eng’s have led New Y ork’s judicial system to take a hard look at the 80,000 pending foreclosures in the state and demand that the paperwork be sound, said the state’s chief judge, Jonathan Lippman. “Knowing what we know, our only option — at least from my perspective — is to turn to the lawyers who are officers of the court and say, ’Y ou’d better go to your clients and find out if these cases are real,’ ” he said. The court devised a two-page affirmation to be signed by lawyers in foreclosure actions saying they had reviewed the documents and had “confirmed the factual accuracy” of any allegations with the clients. Ann Pfau, deputy chief administrative judge for New Y ork State, who has worked directly with the state bar to carry out the plan, said, “We need to know that this is a court process that has some integrity.” Judge Pfau said, “If you can’t get good information, you shouldn’t be filing the cases in the first place.” To address some lawyer concerns, the judiciary issued a modified version of the affirmation in November but said that the alterations were minor. In the end, the lawyers are vouching for their filing, Judge Pfau said. “They are absolutely still on the hook.” While lawyers are being implicated as part of the problem, they should also be part of the solution, said Stephen P. Y ounger, the president of the New Y ork State Bar Association,

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which has not taken an overall position on the foreclosure matter. Foreclosure defense lawyers, he noted, have led court proceedings to throw out flawed cases. “The real problem is that there are thousands and thousands of people who are unrepresented by lawyers,” Mr. Y ounger said.
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A version of this article appeared in print on January 11, 2011, on page A1 of the New York edition.

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