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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). _____________________________________________________________________________/ 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 1. Here, the previously disposed action/complaint was never at issue, but the court abused its discretion and set it for non-jury trial and “ordered” the “defendants” to “respond” after the unlawful amended, and then cancelled “02/22/2011 hearing”. MISREPRESENTATION: BENCH TRIAL WOULD VIOLATE DUE PROCESS 2. Pursuant to Fla. R. Civ. P. 1.440, this action was not even at issue and could not possibly be set for non-jury trial. Here, “defendants” were entitled to dismissal and the hearing of their motions to dismiss. Here, this action had been disposed on 08/12/2010 and was not ready to be set for trial. Retired “robo” Judge Monaco has been in the pocket of the bank(s), and the Court violated said Rule.
3. 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. 4. Counterclaimants assert the following: (1) that they did not receive any order; and/or (2) that without having received an order in an envelope mailed by this Court, it created doubt as to the order's authenticity; and/or (3) that the unauthorized “trial” would commence less than 30 days from the receipt of the order. 5. Apparently here, “robo” Judge Monaco seeks to deprive the defendants of due process. 6. Strict compliance with Florida Rule of Civil Procedure 1.440 is required and failure to do so is reversible error. Ramos v. Menks, 509 So. 2d 1123 (Fla. 1st DCA 1986); Bennett v. Continental Chemicals, Inc., 492 So. 2d 724 (Fla. 1st DCA 1984). 7. Counterclaimants have had a due process entitlement to notice and an opportunity to be heard pursuant to Florida Rule of Civil Procedure 1.440. Bowman v. Kingsland Development, Inc., 432 So. 2d at 663. 8. Here, counterclaimants’ fundamental due process rights are being violated by the defective notice of (non)-jury trial. KNOWN LACK OF JURISDICTION 9. 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”. 10. Here, Daniel R. Monaco knew and/or concealed that, e.g., the missing instruments were not enforceable and null & void, and that the Court had no jurisdiction. [IMPOSSIBLE] REESTABLISHMENT DEMANDED JURY TRIAL 11. 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 12. 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.
13. Pursuant to Rule 1.170, the counterclaimants have claims for affirmative relief against
“BankUnited”, Albertelli Law, Daniel R. Monaco, and the Clerk of Court. 14. 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. 15. 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
16. “BankUnited” deceived the counterclaimants with regard to the true legal ownership and enforceability of the alleged destroyed and/or lost instruments. Here as a matter of law, it was impossible to reestablish the missing alleged instruments, and the counterclaimants were entitled to protection and dismissal of the prima facie frivolous and insufficient complaint. 17. Here, “Walter Prescott” was not the maker of any alleged promissory note dated February 15, 2006, or any other promissory note, as evidenced by the exhibits attached to the complaint. 18. Walter Prescott was not the maker of any “loan modification agreement” as evidenced by the December 2010 Notice of Filing of Original Loan Modification Agreement on file. COURT’S KNOWN LACK OF JURISDICTION 19. The purported “plaintiff”, “BankUnited”, has not alleged facts sufficient to demonstrate that it invoked and/or could have possibly invoked the jurisdiction of this court. Here, plaintiff did not satisfy and could not have possibly satisfied the required conditions precedent as evidenced by the file. Here, the falsely alleged “promissory note and mortgage have been lost or destroyed and are not in the custody or control of ‘BankUnited’, and the time and manner of the loss or destruction is unknown.” “BANKUNITED” MADE FALSE CLAIMS TO DEFRAUD THE COUNTERCLAIMANTS 20. Purported “plaintiff” “BankUnited” does not own and hold any genuine note and mortgage. 21. “BankUnited” failed its burden to affirmatively establish holder in due course status pursuant to Florida law and Seinfeld v. Commercial Bank & Trust Co., 405 So.2d 103941 (Fla. 3d DCA 1981). 22. Here, “BankUnited” even pleaded inability to establish holder in due course status because of the UNKNOWN loss and/or destruction of the alleged instruments.
23. After the pleaded UNKNOWN destruction and loss of the purported note and mortgage pursuant to paragraph 6 of the complaint, no legal and factual questions were and could 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.” 24. Here, there was no evidence as to WHO possessed the note WHEN it was lost/destroyed. 25. Here, the undisputed evidence was that “BankUnited, FSB” did not have possession of the alleged destroyed/lost instruments, and thus, could not enforce the note under section 673.3091 governing lost/destroyed notes/instruments. Because “BankUnited, FSB” could not enforce the lost instruments under section 673.3091, it had no power of enforcement which it could possibly assign and/or transfer to “BankUnited”. 26. [Were this Court to allow “BankUnited” to enforce the alleged lost instruments, because some unidentified person further back in the chain may have possessed the note, it would render the rule of law and 673.3091 meaningless.] 27. The alleged mortgage copy did not contain a copy of the alleged executed note. 28. “BankUnited” fraudulently prayed for reestablishment, no order reestablishing the lost instruments was entered, and the wrongful action was disposed on 08/12/2010. 29. As a matter of law, reestablishment of the note was impossible under Ch. 673, Florida Statutes, and the Uniform Commercial Code. 30. “BankUnited” is not in possession of the purported note and mortgage and not entitled to enforce them. 31. “BankUnited” did not know WHO destroyed and/or lost the instruments WHEN and HOW. 32. “BankUnited” which is wrongfully seeking to enforce the alleged note and mortgage was not entitled to enforce the alleged instruments WHEN the UNKNOWN loss and/or destruction of the alleged instruments occurred. 33. “BankUnited” did not acquire ownership of the instruments from anyone who was entitled to enforce the alleged instruments WHEN the UNKNOWN loss and/or destruction of the alleged instruments occurred. See § 673.3091, Florida Statutes (2010). 34. On 05/21/2009, “BankUnited, FSB” was seized.
35. Here, there had been seizure and transfer which prohibited re-establishment. 36. “BankUnited” never produced nor re-established any authentic note and/or mortgage as proven by the evidence before this Court. 37. The mortgage that was used to establish the terms of the allegedly lost note and mortgage was controverted and challenged as to authenticity and alteration of its original terms. 38. This Court knew that “BankUnited’s” facially fraudulent affidavits were sham. 39. A person seeking enforcement of an instrument under UCC § 3-309(a)(b) must prove the terms of the instrument and the person’s right to enforce the instrument. 40. “BankUnited” had to, but failed, to prove the terms of the alleged instruments and the person’s right to enforce the alleged instruments. 41. Here, “BankUnited” failed to prove any terms, and the terms of the alleged obligation and/or instrument were vague and ambiguous. 42. Here, Walter Prescott neither executed the purported note nor “loan modification agreement”. FRAUDULENT, NULL, AND VOID “AFFIDAVITS” 43. This Court may not enter judgment in favor of “BankUnited”, because the Court knew that the defendant counterclaimants are not adequately protected against loss and “BankUnited’s” fraud on the Court by means of, e.g., null and void affidavits. a. Controverted by the record evidence, “BankUnited” fraudulently stated under oath that said disposed wrongful action was “uncontested” and allegedly devoid of genuine issues of material fact. See, e.g., “Affidavit of Plaintiff’s Counsel as to attorney’s fees and costs”. b. The “Albertelli Law” foreclosure mill employed unlawful “robo-signers” and “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”. 44. On the clear evidence presented and before this Court, “plaintiff” “BankUnited” had no standing and no real interest, and this previously disposed wrongful foreclosure action cannot be tried and/or adjudged under the Rules and Florida Statutes.
45. Defendant counterclaimants did not default under the destroyed and/or lost note and mortgage, and no payment was due to “BankUnited”. 46. “BankUnited” failed to assert any chain of title and/or assignment of the destroyed/lost note and mortgage. ALLEGED DESTROYED / LOST INSTRUMENTS / “LOAN MODIFICATION” 47. Section 673.4071, Alteration, Florida Statutes (2010), states in pertinent part: (1)The term “alteration” means: (a)An unauthorized change in an instrument which change purports to modify in any respect the obligation of a party; or (b)An unauthorized addition of words or numbers or other change to an incomplete instrument which addition or change relates to the obligation of a party. (2)Except as provided in subsection (3), an alteration fraudulently made discharges a party whose obligation is affected by the alteration unless that party assents or is precluded from asserting the alteration. No other alteration discharges a party, and the instrument may be enforced according to its original terms. (3)A payor bank or drawee paying a fraudulently altered instrument or a person taking it for value, in good faith and without notice of the alteration, may enforce rights with respect to the instrument according to its original terms or, in the case of an incomplete instrument altered by unauthorized completion, according to its terms as completed. 48. Fraud was specifically articulated in United States v. Throckmorton, 98 U.S. 61, 65-66, 25 L. Ed. 93 (1878), in which the United States Supreme Court said: Where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practiced on him by his opponent, as by keeping him away from court, a false promise of a compromise; or where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff; or where an attorney fraudulently or without authority assumes to represent a party and connives at his defeat; or where the attorney regularly employed corruptly sells out his client's interest to the other side--these, and similar cases which show that there has never been a real contest in the trial or hearing of the case, are reasons for which a new suit may be sustained to set aside and annul the former judgment or decree, and open the case for a new and a fair hearing. (Citations omitted.) Consistent with the general rule, Florida Courts have defined fraud as the 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…
COUNT I: FRAUD COUNTERCLAIM AGAINST DANIEL R. MONACO 49. The counterclaimants are suing retired “robo” Judge Daniel R. Monaco in his private individual and official capacity. Here, Monaco exceeded the scope of any official capacity when he, e.g., overturned Judge Hayes’ previous 08/12/2010 disposition. 50. Here, “BankUnited’s” and Daniel R. Monaco’s conduct were collateral to the allegations, exhibits, and issues complained of. 51. 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 52. Thus, retired “robo” Judge Monaco’s non-jury trial did not square with the requirements of the governing Constitutions and Statutes. 53. Accordingly, a jury trial on all issues triable by jury must be granted. 54. Monaco and/or the Court knew that claims in which fraud is an issue should not be resolved by summary judgment. See Barrios v. Duran, 496 So.2d 239 (Fla. 3d DCA 1986). DISPOSED CASE WAS NEVER AT ISSUE -TRIAL WOULD VIOLATE DUE PROCESS 55. Pursuant to Fla. R. Civ. P. 1.440, this action was not even at issue and could not possibly be set for trial. Here, the counterclaimants were entitled to dismissal and the hearing of their motions to dismiss. Here, this action had been disposed on 08/12/2010 and was not ready to
be set for trial. Retired “robo” Judge Monaco has been in the pocket of the bank(s), and the Court violated said Rule. 56. 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. 57. The counterclaimants assert the following: (1) that they did not receive any order; and/or (2) that without having received an order in an envelope mailed by this Court, it created doubt as to the order's authenticity; and/or (3) that the unauthorized “trial” would commence less than 30 days from the receipt of the order. 58. Apparently here, “robo” Judge Monaco seeks to deprive the defendant counterclaimants of due process. 59. Strict compliance with Florida Rule of Civil Procedure 1.440 is required and failure to do so is reversible error. Ramos v. Menks, 509 So. 2d 1123 (Fla. 1st DCA 1986); Bennett v. Continental Chemicals, Inc., 492 So. 2d 724 (Fla. 1st DCA 1984). 60. The counterclaimants have had a due process entitlement to notice and an opportunity to be heard pursuant to Florida Rule of Civil Procedure 1.440. Bowman v. Kingsland Development, Inc., 432 So. 2d at 663. 61. Here, counterclaimants’ fundamental due process rights are being violated by the defective notice of (non)-jury trial. “ROCKET DOCKET” – FRAUD & SPEED INSTEAD OF JUSTICE 62. It is well established that fraud and misrepresentation are valid affirmative defenses in a foreclosure action. See Lake Regis Hotel Co. v. Gollick, 110 Fla. 324, 149 So. 204 (1933) (misrepresentation). Fraud is also a legal action for damages that can be raised as a counterclaim. See Spring v. Ronel Refining, Inc., 421 So.2d 46 (Fla. 3d DCA 1982).
63. Fraud is a compulsory counterclaim to an action in foreclosure on the [here lost/destroyed] note and/or mortgage. See Spring, supra; Yost v. American Nat'l Bank, 570 So.2d 350 (Fla. 1st DCA 1990). Fraud claims are compulsory counterclaims for purposes of Florida Rule of Civil Procedure 1.170. 64. Here without any rational and legal explanation/justification, Monaco/the Court has been speeding from the 08/12/2010 disposition to “trial” to favor the bank at counterclaimant homeowners’ expense. The counterclaimants experienced and fear further prejudice. 65. To grant any judgment of foreclosure in favor of “BankUnited”, the Court/Monaco would have to find, among other things, that said bank owned the lost/destroyed mortgage/note and had performed all conditions precedent to enforce the destroyed/missing mortgage/note. 66. However here, “BankUnited” had asserted the UNKNOWN loss and/or destruction of the purported instruments in its complaint. Furthermore, the evidence on file had conclusively proven non-performance of said conditions. See generally 37 Fla. Jur. 2d Mortgages and Deeds of Trust § 287 (2002). 67. If arbitrarily and capriciously, after the 08/12/2010 disposition, the foreclosure action were to proceed to judgment in favor of “BankUnited”, then a jury would be bound by these findings of fact, which facts are inextricably interwoven with the issues presented by the 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) 68. Here, retired “robo” Judge Monaco knew and/or concealed that a plaintiff must be the owner/holder of the instrument(s) as of the date of filing suit pursuant to Jeff-Ray Corp. v.
Jacobsen, 566 So. 2d 885 (Fla. 4th DCA 1990); WM Specialty Mortgage, LLC v. Salomon, 874 So. 2d 680, 682 (Fla. 4th DCA 2004). 69. 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. 70. “BankUnited” was not a holder of the lost/destroyed note at the time it wrongfully filed suit (07/09/2009) or any time thereafter, was not entitled to enforce and/or reestablish the alleged lost instruments, and no exception to this requirement was ever asserted. See Am. Bank of the S. v. Rothenberg, 598 So. 2d 289, 291 (Fla. 5th DCA 1992) (finding that it is elementary that to be a holder, one must be in possession of the instrument). 71. Here, “BankUnited” had neither standing nor any real interest and could not have possibly enforced the lost and/or destroyed instruments. 72. Here, retired Judge Monaco and “BankUnited” had actual knowledge of the fraud and lack of good faith prior to the falsely alleged transfer from “BankUnited, FSB” to “BankUnited”, which precluded “BankUnited” from claiming holder in due course status.
73. Here, temporary Judge Monaco knew and/or concealed that Prescott had controverted the
authenticity of the purported note amd that “defendant” Walter Prescott had not executed the alleged note pursuant to the evidence on file.
74. Here no mortgage could possibly secure a non-existing obligation.
COUNT I: FRAUD COUNTERCLAIM AGAINST CLERK OF COURT 75. The counterclaimants are suing the Clerk of Court in his private individual and official capacity. Here, said Clerk exceeded the scope of any official capacity. LACK OF AUTHORITY TO REMOVE 08/12/2010 JUDICIAL DISPOSITION
76. The “02/21/2011 memorandum from clerk to file regarding correction of the disposition record to reflect the case as pending” was unauthorized and lacked any legal justification.
77. Here, the wrongful foreclosure action had been disposed by “Disposition Judge” H. D. Hayes (disposition was reached by said Judge in a case that was not dismissed and in which no trial has been held; Category (J). The Clerk and Daniel R. Monaco had no authority to remove/overturn the 08/12/2010 judicial disposition record without any legal justification. 78. The Clerk had no judicial authority and was not to practice law at counterclaimants’ expense. COUNT I: SUIT FOR DAMAGES FOR FRAUD AGAINST ALBERTELLI LAW FRAUD ON THE COURT ON THE RECORD 79. After the 08/12/2010 disposition, Albertelli Law and/or “BankUnited” “filed” the “original note” which did not identify “BankUnited” as the holder or lender. 80. Albertelli Law and “BankUnited” also did not attach an assignment or any other evidence to establish that it had purchased and/or acquired the alleged lost note and mortgage. 81. Here, Albertelli Law concealed that the required chain of title was not in evidence. 82. Furthermore, “BankUnited” did not file any genuine supporting affidavits or deposition testimony to establish that it owns and holds the alleged lost/destroyed note and mortgage but re-filed non-authentic copies of the lost/destroyed instrument(s). 83. Accordingly, the documents before this court and retired “robo” Judge Monaco at the 22/02/2011 unauthorized and cancelled hearing did not establish “BankUnited’s” standing to foreclose the destroyed/lost note and mortgage, Thus, at this point, “BankUnited” was not entitled to any “trial” and any “judgment” in its favor.
RECORD LACK OF ADMISSIBLE EVIDENCE IN DISPOSED WRONGFUL ACTION 84. Defendants did not execute and deliver an authentic promissory note and mortgage to “BankUnited”. 85. Under Florida law delivery is necessary to validate a negotiable instrument. 86. Here, neither any note nor mortgage were assigned and delivered to “BankUnited”. 87. Here there was no delivery of any written assignment of any instrument to “BankUnited”. “BANKUNITED” FAILED TO STATE A CAUSE OF ACTION & HAD NO STANDING 88. On or around 07/09/2009, Alfred Camner, Esq., the troubled founder of bankrupt and seized “BankUnited, FSB”, had alleged unknown loss and/or destruction of a purported note and/or mortgage. 89. Here because Alfred Camner was the bankrupt bank’s founder, it was as if “BankUnited, FSB” had asserted the loss/destruction of the alleged instruments. 90. 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 91. Here, Albertelli Law knew that a federal depository institution regulatory agency [F.D.I.C.] was confronted with a purported lost agreement and/or instruments not documented in the institution's records. 92. No agreement/instruments between a borrower and a bank, which does not plainly appear on the face of an obligation or in the bank's official records is enforceable against the Federal Deposit Insurance Corporation. 93. It makes no difference whether the issue is presented in the form of a claim or of a defense; as long as the claim or defense is based upon an alleged agreement the terms of which are
not contained within the four corners of the written obligation or found in the official records of the financial institution, the claim or defense is barred. See, e.g., Langley v. FDIC, 484 U.S. 86, 91-92, 108 S. Ct. 396, 401, 98 L. Ed. 2d 340, 347 (1987). 94. Said rule was codified by the Federal Deposit Insurance Act of 1950, § 13(e), 64 Stat. 889, as amended, 12 U.S.C. § 1823(e). 95. 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 96. "'Fraud upon the court' is a special kind of fraud, more serious in scope and implication than fraud sufficient for relief under Federal Rule of Civil Procedure 60(b)(3) [Florida Rule of Civil Procedure 1.540(b)(3)] or as a ground for an 'independent action." See 7 J. Moore & J. Lucas, Moore's Federal PracticeP60.31-33 (2d ed. 1983); P60.33 at 515. See also Dankese Engineering, Inc. v. Ionics, Inc., 89 F.R.D. 154 (D.Mass. 1981). 97. Thus, where an action is grounded on "fraud upon the court," traditional principles of equity, the failure of the seeker of equity to do equity, etc., see, e.g., Kearley v. Hunter, 154 Fla. 81, 16 So.2d 728 (1944), which might disentitle one to relief, are not applied. As Professor Moore notes: "The court must also distinguish between relief for 'fraud upon the court,' for which there is no time limit, from relief by motion, for which there is a one-year limitation, and from relief by independent action, which is limited only by laches." Moore's, supra, P6. RECORD OBJECTIONS TO UNCONSTITUTIONAL NON-JURY/BENCH TRIAL 98. The defendant counterclaimants objected to a non-jury trial, pointing out that they have been demanded a jury trial, and again ask that the case be set for resolution before a jury.
99. The court failed to communicate and notice the counterclaimants. 100. Section 22 of the Declaration of Rights contained within the Florida Constitution begins
by declaring that "The right of trial by jury shall be secure to all and remain inviolate." See also Amend. VII, U.S. Const. Rule 1.430, Florida Rules of Civil Procedure also provides that "The right of trial by jury as declared by the Constitution or by statute shall be preserved to the parties inviolate." 101. In the present case, Count I was at law for reestablishment of an alleged destroyed
and/or lost note and mortgage. The time and manner of the loss/destruction were UNKNOWN. 102. The counterclaims are unquestionably suits at law seeking damages, the traditional
realm of the civil jury trial. 103. 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. 104. The claims at law are intermixed with the previously disposed wrongful foreclosure
action. 105. In the record absence of any [reestablished] instruments, “BankUnited” had failed to
state a cause of action, had no standing, and could not foreclose and sue. 106. Florida’s appellate courts had previously addressed intermixed causes: Spring v. Ronel
Refining, Inc., 421 So. 2d 46 (Fla. 3d DCA 1982); Adams v. Citizens Bank of Brevard, 248 So. 2d 682, 684 (Fla. 4th DCA 1971). The Spring court cited to Adams, in which the District 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 107. The second Count of the counterclaim(s) seeks to quiet title to said real property that is
the subject of the destroyed/lost and non-reestablished instruments referenced in the facially frivolous and insufficient complaint. DEMAND OF JURY TRIAL - QUIET TITLE / EJECTMENT ACTION(S) 108. 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. 109. Counts 1 and 3 of the counterclaim are actions for damages for fraud and breach of
contract, both of which are common law actions for damages. Because here the causes of action were intimately intertwined with the previously disposed equitable foreclosure claim contained in the complaint, there was no question that the counterclaimants were entitled to
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 110. The counterclaimants are suing for breach of contract based on “BankUnited’s” record
actions of filing untrue affidavits and failure to account. 111. “BankUnited” materially breached its duty of good faith and fair dealing, which
resulted in proximate damages. FACIALLY FRAUDULENT ACCOUNTING & NULL & VOID AGREEMENT 112. 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). 113. 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”. 114. 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 115. Even if the parties had entered into a new contract, it could not have been legally
substituted for the old contract unless there had been a novation. Here, there were no 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 17
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 116. Defendants’ affirmative defenses defeated the disposed action by a denial and/or
avoidance. “Defendants” admitted the UNKNOWN loss and/or destruction of the alleged instruments, which could not be reestablished as a matter of law. See Schupler v.Eastern Mortgage Co., 160 Fla. 72, 33 So.2d 586 (1948); Lovett v. Lovett, 93 Fla. 611, 112 So. 768 (1927). 117. In addition, defendants filed a counterclaim and/or cause of action that seeks
affirmative relief. The counterclaim and affirmative defenses were separate and distinct 118. Here, “plaintiff” “BankUnited” had failed to state a cause of action, and the court could events. not grant [summary] judgment because the defendants have asserted legally sufficient affirmative defenses that have not been rebutted. See Ton-Will Enterprises, Inc. v. T & J Losurdo, Inc., 440 So.2d 621 (Fla. 2d DCA 1983). 119. 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. 121. Thus, this court erred by ignoring defendants’ affirmative defenses and denying
defendants’ motion to dismiss during an illegal “02/22/2011 hearing” which had been cancelled. DEFENDANT COUNTERCLAIMANTS ARE ENTITLED TO JURY TRIAL 122. 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. 123. Here, the issues and/or affirmative claims involved in the compulsory counterclaim
and/or fraud claim were sufficiently similar to the issues in the foreclosure action stated in the complaint to require a jury trial of the claim at law before the equitable claims could possibly be reached. Only after a jury verdict on the common law issues could the trial court dispose of the equitable issues that were remaining. 124. 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. 126. This court cannot determine the factual issues of fraud and misrepresentation without
evidence and without a fact-finding jury. 127. Thus, the Court must first resolve the affirmative claims and defenses of fraud and
misrepresentation. Any other way would be error. 128. Here after the capricious removal of the 08/12/2010 disposition record, the prejudice
is especially predictable and the legal issues must be tried by jury. The defendants demanded recusal for fear of further bias. APPEAL AFTER PREJUDICIAL AND UNLAWFUL “02/22/2011 HEARING” 129. The defendants in this disposed wrongful mortgage foreclosure action appealed the
order(s) entered at the illegal and cancelled “02/22/2011 hearing”. 130. In this disposed action, and in the absence of any re-opening, this court improperly
handled disputed factual issues raised in the affirmative defenses and compulsory counterclaim when it set a “trial” during said unlawful “hearing”. RECORD PREJUDICE AND ERROR 131. Here, it would be error to proceed with the previously disposed wrongful foreclosure
action before jury trial on the interrelated legal counterclaim(s). 132. 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 133. 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). 135. 136. 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. 137. Art. I, § 22, Fla. Const. Similarly, the Seventh Amendment of the United States Constitution provides: In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law. Amend VII, U.S. Const. 138. Florida courts have consistently highlighted the importance of the right to a trial by
jury. 139. "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” 140. When a plaintiff brings a count “in law and in equity” to re-establish a note and/or for
deficiency judgment against the defendants, defendants have a right to a jury trial.
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). 142. Because here, there is no dispute that plaintiff seeks to re-establish lost instruments and
to have a “deficiency judgment” against the defendants, the defendants are emtitled to demand a jury trial. ANSWER TO COMPLAINT BY BANKRUPT BANK’S FOUNDER ALFRED CAMNER 143. 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). 144. 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. 145. This Court knew that “BankUnited” did not establish its entitlement to foreclose the
mortgage as a matter of law. 146. 147. 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”. 148. Here, the plain meaning of the exhibits controlled, evidenced lack of standing, and was
the basis for a motion to dismiss. Blue Supply Corp. v. Novos Electro Mech., Inc., 990 So.
2d 1157, 1159 (Fla. 3d DCA 2008); Harry Pepper & Assocs., Inc. v. Lasseter, 247 So. 2d 736, 736-37 (Fla. 3d DCA 1971). 149. The “trial” wrongfully “set” by temporary Judge Monaco and “BankUnited’s” motion
for summary judgment and were to be denied based on principles of collateral estoppel and res judicata. Here on 08/12/2010, the Court had disposed of “BankUnited’s” wrongful foreclosure action. 150. On 02/22/2011, retired “rocket docket” Judge Monaco had no authority to deny
defendants’ Motion to Dismiss. DENIALS AND AFFIRMATIVE DEFENSES 151. 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: 152. 153. 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. 154. Here, no “default” has and/or could have possibly occurred, and no contractual obligation
existed. 155. Paragraph 3 is denied. Here, “BankUnited” was never entitled to any action and/or
reestablishment of any note based on the admissible evidence on file.
156. 157. 158.
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. 159. 160. 161. Paragraph 7 is denied. Paragraph 8 is denied. Paragraph 9 is denied. “BankUnited” is not any “successor in interest to” “BankUnited,
FSB”. 162. Paragraph 10 is denied. Here, “BankUnited” could not enforce and/or reestablish any note,
and pursuant to paragraph 6, the alleged “promissory note and mortgage have been lost or destroyed and are not in the custody or control of ‘BankUnited’, and the time and manner of the loss or destruction is unknown.” 163. 164. 165. 166. 167. 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. 168. Paragraph 15 is denied. Here, pursuant to paragraph 6 (Count I), the alleged “promissory
note and mortgage have been lost or destroyed and are not in the custody or control of ‘BankUnited’, and the time and manner of the loss or destruction is unknown.” 169. Paragraph 16 is denied. Here under Paragraph 6, “said [purported] promissory note and
mortgage have been lost or destroyed and are not in the custody or control of ‘BankUnited’, and the time and manner of the loss or destruction is unknown.” Furthermore, said alleged note and/or mortgage could not have possibly been re-established pursuant to Ch. 673, Florida Statutes (2010), or any other law, and therefore, “BankUnited” had no standing and right to “foreclose“ and sue the defendants. DISSOLVED LIS PENDENS DUE UNENFORCEABILITY OF LOST INSTRUMENTS 170. 171. 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. 172. Pursuant to § 48.23(2), Fla. Stat. (2010), the notice of lis pendens became invalid on
07/10/2010. 173. Here, the instruments were missing and the lis pendens was unjustified under Florida
Communities Hutchinson Island v. Arabia, 452 So.2d 1131, 1132 (Fla. 4th DCA 1984). 174. Here, the null and void lis pendens placed a non-existent cloud on the title. See Andre
Pirio Assocs. v. Parkmount Properties, Inc., N.V., 453 So.2d 1184, 1186 (Fla. 2d DCA 1984).
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. 176. 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. 177. The record evidence established that plaintiff could not possibly re-establish the note and
that no authentic instruments could possibly be proven under the Evidence Code. 178. 179. 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. 180. Here, the record did not conclusively establish that “BankUnited” is a holder in due
course of any negotiable instrument. “BankUnited” did not raise any law and/or doctrine under which “BankUnited” did and/or could have possibly become a note owner and/or holder in due course. 181. 182. 183. 184. 185. 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. 186. “BankUnited” filed the wrongful suit after the May 2009 seizure of defunct
After bankrupt “BankUnited, FSB” was seized, its troubled founder, Alfred Camner,
Esq., complained of an UNKNOWN loss/destruction of the purported instruments. 188. 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”. 189. Here, time and manner of the loss were UNKNOWN pursuant to the 07/09/2009
complaint. 190. Here, “BankUnited” was not any assignee and did not hold title in the purported
lost/destroyed instruments. 191. 192. 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. 193. Here, there was no effective assignment from “BankUnited, FSB” to “BankUnited” or any
legal justification why and how “BankUnited” could possibly be entitled to enforce the lost instruments. 194. The destroyed/lost instruments were unenforceable as a matter of law. See, e.g., section
673.3091, Florida Statutes. 195. Here, retired Monaco and the Court knew that “BankUnited” failed to meet, and could not
possibly have met, the Uniform Commercial Code provisions pertaining to lost and/or 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).
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. 197. 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.] 198. This Court knew that “BankUnited” cannot foreclose on the note and mortgage, because
“plaintiff” is not in possession of the original note and did not reestablish the alleged lost/destroyed instruments. See § 673.3091(1), Fla. Stat.; Dasma Invest., LLC v. Realty Associates Fund III, L.P. 459 F. Supp. 2d 1294, 1302 (S.D. Fla. 2006). 199. Here, this Court knew that “BankUnited” had no standing and/or right to sue and/or
This Court knew that defendants had demanded indemnification of defendants for
[wrongful] prosecution on the purported destroyed and/or lost instruments. 201. So far, this Court did not require a bond pursuant to Lovingood v. Butler Construction
Co., 131 So. 126, 135 (Fla. 1930). 202. However in this disposed action, the bond was simply mandatory pursuant to Porter
Homes, Inc. v. Soda, 540 So.2d 195, 196 (Fla. 2d DCA 1989)(where a lis pendens is not founded upon a lawsuit involving a recorded instrument, section 48.23(3) "requires the posting of a bond."). See Machado v. Foreign Trade, Inc., 537 So.2d 607, 607 n.1 (Fla. 3d DCA 1988); Munilla v. Espinosa, 533 So.2d 895 (Fla. 3d DCA 1988).
The notorious 20th Judicial Circuit has heard up to 1,000 foreclosure cases per day.
Assuming an 8-hour day, this equated to less than 30 seconds per case, which established organized bias against defendants and homeowners. 204. The law prohibits “rocket dockets” for speed and errors at the expense of justice in favor of banks and lenders.
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
NATIONAL EMERGENCY AND PRESCOTT’S NOTICE OF UNAVAILABILITY 208. Jennifer Franklin-Prescott, a United Kingdom citizen, has family, friends, and property in
the Pacific. A national emergency was declared after the devastating NZ earthquake.
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 209. A person seeking enforcement of a lost, destroyed or stolen instrument must first prove
entitlement to enforce the instrument WHEN the loss of possession occurred, or has directly or indirectly acquired ownership of the instrument from a person who was entitled to enforce the instrument WHEN loss of possession occurred. Further, he/she must prove the loss of possession was not the result of a transfer by the person or a lawful seizure; and the person cannot reasonably obtain possession of the instrument because the instrument was destroyed, 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). 210. Here, “defendants” had denied that “BankUnited” has ever had possession of the alleged
note and/or mortgage and/or that “plaintiff” was ever entitled to enforce the instruments the loss and destruction of which were UNKNOWN. “Plaintiff” could not establish foundation to show possession of the note WHEN the loss of possession occurred. Plaintiff could not establish that plaintiff lost possession of the note after it was transferred to the “plaintiff” and that it could not reasonably obtain possession thereof. Absent such proof in this disposed action, plaintiff had been required by Florida law to provide the original note and mortgage. Having failed to provide the original note and mortgage at the time of filing, “plaintiff” could not sue and/or maintain this disposed action.
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 212. Prescott had asserted and proven (another affirmative defense) that the plaintiff(s) had
failed to follow Florida law of negotiable instruments and including, e.g., obtaining 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 213. Defendants’ motion to recuse retired Judge D. R. Monaco was legally sufficient,
because the facts alleged demonstrate that the moving party has a well-grounded fear that defendants will not receive a fair trial at the hands of said judge. Cave v. State, 660 So. 2d 705, 708 (Fla. 1995); Fla. R. Jud. Admin. 2.160.
PRESCOTT FEARS FURTHER FRAUD, DEPRIVATIONS & SHAM PROCEEDINGS 214. After said unlawful “02/22/2011 hearing”, Prescott fears that Monaco may further
extend his prima facie bias and again deprive her of due process and fundamental rights to defend against “BankUnited’s” fraud on the court. 215. Because here no reasonable person, juror or judge could possibly explain the record
errors, contradictions, and arbitrary acts in this disposed case, Franklin-Prescott cannot possibly trust Judge Monaco, said Circuit, and said “rocket docket” sham proceedings. WHEREFORE counterclaimants respectfully demand 1. An Order for compensatory and punitive damages in favor of counterclaimant fraud victims; 2. An Order for compensatory and punitive damages for breach of contract in favor of counterclaimants; 3. An Order for judgment against “BankUnited” for counterclaimants’ damages and for an award of attorney’s fees and for all other relief to which counterclaimants prove entitled; 4. An Order dismissing the previously disposed wrongful foreclosure action because “BankUnited” had no standing and failed to state a cause of action; 5. An Order canceling any non-jury and/or bench trial; 6. 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; 7. 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; 8. Proper processing of this NOTICE OF APPEAL and/or INTERLOCUTORY APPEAL;
9. An Order declaring the “trial set” during said unlawful and cancelled “02/22/10 hearing” in the excused absence of Franklin-Prescott unlawful for lack of due process and because “BankUnited” had never been entitled to any action and trial for lack of standing and note in this disposed case; 10. An Order declaring the “correction of the disposition record” unlawful and prejudicial at Franklin-Prescott’s expense;
11. An Order enjoining retired robo Judge Monaco from any further deliberate deprivations of Franklin-Prescott’s fundamental Federal and Florida Constitutional rights to own her property without judicial fraud and fraud on the court; 12. An Order taking judicial notice of said binding precedent (BAC Funding) in support of the record 08/12/2010 disposition; 13. An Order determining that the invalid lis pendens was not founded upon a duly recorded authentic instrument therefore requiring a bond to prevent further irreparable harm following the 08/12/2010 disposition; 14. An Order declaring the purported “plaintiff” in this disposed action without any authority to sue, foreclose, and/or demand any payment from Jennifer Franklin Prescott; 15. An Order declaring the cancelled “02/22/2011 hearing” unauthorized in this disposed action; 16. An Order declaring “BankUnited’s” prima facie sham “motion(s)” and “affidavits” unlawful in this previously disputed and disposed action; 17. An Order declaring the purported note and/or mortgage unenforceable;
18. An Order taking judicial notice of the prima facie unenforceability of the unrecorded, un-assignable, and unpaid mortgage (unpaid mortgage taxes); 19. An Order declaring the purported “plaintiff” to be in violation of Fed.R.Civ.P. 1.510 in this disposed and previously controverted action; 20. An Order declaring the purported 2009 “lis pendens” invalid on its face and taking judicial notice of the nullity of the lis pendens and unenforceable mortgage and/or note; 21. An Order declaring said affidavits “hearsay” and lacking any legal and/or factual basis in the absence of any authentic “note” and/or mortgage; 22. An Order taking judicial notice of the lack of any genuine “note”, “plaintiff’s” proven fraud on the Court, opposition, opposition evidence, and case law as to this disposed case; 23. An Order prohibiting Counsel and/or Jason M. Tharokh, Esq., who did not file any notice 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 02, 2011. Respectfully, /s/Jennifer Franklin-Prescott, fraud victim /s/Walter Prescott, foreclosure fraud victim 35
CC: Hon. Hugh D. Hayes (Disposition Judge), Albertelli Law, Hon. Daniel R. Monaco, Karen (JA), United States District Court, Clerk of Court, The Florida Bar, New York Times, et al. firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, NetNet@cnbc.com, email@example.com, firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, email@example.com, CollierJACS@ca.cjis20.org, firstname.lastname@example.org, lllayden@NAPLESNEWS.COM, email@example.com, firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, email@example.com, Collierclerk@collierclerk.com, Sue.Barbiretti@collierclerk.com, Jill.Lennon@collierclerk.com, Dwight.Brock@collierclerk.com, Robert.StCyr@collierclerk.com, firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, email@example.com,
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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: 02/22/2011 Last Docket Date: 02/17/2011 Disposition Judge: HAYES, HUGH D Disposed: 08/12/2010 Reopen Reason: Reopened: Reopen Close: A ppealed: Filed: 07/09/2009
Dockets of 2 page s. Text
Financials Entrie s pe r page :
09/07/2010 R EQ UEST FO R JUDIC IAL NO TIC E 09/07/2010 NO TIC E O F AUTO MATIC DISSO LUTIO N O F LIS PENDENS 09/07/2010 R EQ UEST FO R JUDIC IAL NO TIC E 09/14/2010 NO TIC E O F APP EAL AMENDED NO TIC E O F AP PEAL 2D10-4158 09/14/2010 C O PY C O R R ESPO NDENC E TO 2ND DCA W /ATTAC HMENTS 09/15/2010 NO TIC E O F APP EAL AMENDED NO TIC E O F AP PEAL 2D10-4158 09/15/2010 C O PY AMENDED NO TIC E O F APPEAL TITLED TO 2ND DC A 09/15/2010 C O RR ESPO NDENCE FR O M APP EAL CLER K TO DC A W /C ER TIFIED C O PY AMENDED NO TICE O F APPEAL 2D10-4158 09/16/2010 C O RR ESPO NDENCE FR O M APP EAL CLER K TO DC A W /C ER TIFIED C O PY AMENDED NO TICE O F 2ND AMENDED NO TIC E O F APP EAL 09/16/2010 DEMAND FO R FINAL O R DER 10/04/2010 O R DER BY DC A THIS APPEAL DISMISSED BEC AUSE AP PELLANT FAILED TO C O MPLY W ITH THIS C O UR TS O R DER O F 8/31/10 R EQ UIR ING A C O PY O F O RDER APPEALED 10/25/2010 O R DER BY DC A THIS APPEAL IS DISMISSED 11/12/2010 NO TIC E O F HEARING 11/12/2010 NO TIC E O F FILING AFFIDAVIT O F ATTO R NEY FEES 11/12/2010 AFFIDAVIT AS TO ATTO R NEYS FEES 12/02/2010 NO TIC E O F FILING O R IGINAL NO TE & O R IGINAL MO R TGAGE 12/03/2010 MO TIO N TO C ANC EL UNAUTHO R IZED HEAR ING IN DISP O SED AC TIO N MO TIO N FO R JUDIC IAL NO TIC E / BY JENNIFER FR ANKLIN-PR ESC O 12/06/2010 C O RR ESPO NDENCE FR O M C O UNSEL TO C LERK 12/06/2010 MO TIO N TO C ANC EL HEAR ING 12/06/2010 O BJEC TIO N TO & MO TIO N TO C O MPEL & Q UIET TITLE BY JENNIFER FR ANKLIN-PR ESCO T
12/06/2010 NO APPEAR ANC E BY THE PARTIES
12/06/2010 MINUTES - HEAR ING SEE SC HEDULE MINUTES FO R DETAILS 12/07/2010 NO TIC E O F C ANC ELLATIO N 12/06/10 @ 3:00 MO TIO N FO R SUMMARY JUDGMENT 12/08/2010 O BJEC TIO N TO HEAR ING BY JENNIFER FR ANKLIN PR ESC O TT 12/08/2010 O BJEC TIO N TO STATUS O F DISPO SITIO N JUDGE & R EC USAL MO TIO N BY JENNIFER FR ANKLIN PR ESC O TT 12/17/2010 NO TIC E O F FR AUD & LO SS BY JENNIFER FR ANKLIN-PR ESCO TT 12/17/2010 MO TIO N TO C ANC EL UNAUTHO R IZED HEAR ING IN DISP O SED AC TIO N BY JENNIFER FR ANKLIN PR ESC O 12/20/2010 O BJEC TIO N TO (EMER GENC Y) TO PUR PO R TED NO TE IN DISPO SED AC TIO N & UNNO TIC ED & UNAUTHO R IZED HEAR ING IN FR AUD O N C O UR T C ASE BASED O N DEFENDANT ET AL 12/22/2010 NO TIC E O F FILING O R IGINAL LO AN MO DIFIC ATIO N AGR EEMENT 01/04/2011 O BJEC TIO N TO FR AUD O N THE C O UR T BY JENNIFER FR ANKLIN-PR ESC O TT 01/12/2011 NO TIC E O F DR O PPING PAR TY JO HN DO E/JANE DO E 01/12/2011 MO TIO N FO R SUMMAR Y JUDGMENT 01/12/2011 AFFIDAVIT AS TO AMO UNTS DUE 01/12/2011 AFFIDAVIT AS TO ATTO R NEYS FEES 02/01/2011 C O PY (FAX) NO TIC E O F O PPO SITIO N & O PPO SITIO N EVIDENC E/FR AUD EVIDENC E & UNAVAILABILITY IN DISPO SED AC TIO N/NO TIFIC ATIO N O F C O URT & C LER K ET AL 02/07/2011 NO TIC E O F FR AUDULENT AFFIDAVITS BY JASO N M TAR O KH ESQ & O F UNLAW FUL/ UNAUTHO R IZED AC T BY ALBER TELLI LAW (UNSIGNED) 02/08/2011 NO TIC E O F HEARING 02/22/11 @10:00A.M., DEFENDANT'S MO TIO N TO DISMISS/MO TIO N TO ENJO IN 02/08/2011 AMENDED NO TIC E O F HEAR ING 02/14/11 @3:30P.M. AMENDED MO TIO NFO R SUMMAR Y JUDGMENT AND FO R ATTO R NEY FEES AGAINST PEDR O LUIS LIC O UR T 02/08/2011 AMENDED MTO IN FO R SUMMAR Y JUDGMENT AND FO R ATTO R NEY FEES AGAINST P EDR O LUIS LIC O UR T 02/09/2011 DEMAND O F FO R ENSIC R EVIEW & AUDIT AND NO TIC E O F FR AUDULENT AND/O R INAC C UR ATE AC C O UNTING IN DISPO SED AC TIO N 02/15/2011 NO TIC E O F O BJEC TIO N TO ANY HEAR ING & MAGISTR ATE IN DISPO SED C ASE AND O F BEING BINDING PR EC EDENT IN SUPPO R T O F 8/12/10 DIPO SITIO N 02/17/2011 AFFIDAVIT & O R DEC LARATO R Y STATEMENT IN DISPO SED AC TIO N AS TO LAC K O F STANDING O F BANKUNITED & ITS FRAUD O N THE C O UR T
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Florida Foreclosure Mill King David Ste…
Monday, February 7, 2011
Florida Foreclosure Mill King David Stern Shows Crime Sure Did Pay
The Associated Press has a juicy story on the rise and fall of Florida’s foreclosure mill kingpin David Stern (hat tip Lisa Epstein). It combines sordid detail with an account of how his business as a business went wildly off the rails. For those new to this blog, the Law Offices of David Stern was the biggest foreclosure mill in Florida, one of the first to be targeted by a state attorney general, and per both reports on the ground as well as revelations from official and media investigations, one of the worst abusers of court procedures and borrower rights. Aside from depicting how utterly out of control Stern was as a businessman, the AP story helps explain how the mortgage business got to be such a horrorshow. Moe Tkacik, a financial writer who has poked around the dark corners of the securitization and muni finance businesses, and I chatted a couple of nights ago about the foreclosure crisis. One of the questions that was nagging at her was who came up with the idea of robosigning? The article suggests that it was the foreclosure mills in response to servicer pressure on fees. And notice the stance of the writer in this extract. Most MSM accounts so far have bent over backwards not to be too critical of banks. By contrast, this article depicts servicers as partners with Stern in what Bill Black would call a criminogenic environment (boldface ours): The rise and fall of Stern, now 50, provides an inside look at how the foreclosure industry worked in the last decade — and how it fell apart. It also shows how banks, together with their law firms, built a quick-and-dirty foreclosure machine that was designed to take as many houses as fast as possible… Florida authorities characterize the foreclosure process at these law firms as a “virtual morass” of “fake documents” and depicted Stern’s operations as something akin to the TV show “Lost” — only instead of people that went missing, it was paperwork. Stern’s employees churned out bogus mortgage assignments, faked signatures, falsified notarizations and foreclosed on people without verifying their identities, the amounts they owed or who owned their loans, according to employee testimony. The attorney general is also looking at whether Stern paid kickbacks to big banks.… The foreclosure business is a volume game. Banks typically pay law firms like Stern’s about $1,400 for each successful foreclosure. But the banks can pay a lot less if the firm doesn’t successfully foreclose within a certain time frame, usually around six months…. Like so many in the industry, Stern had a strategy to cope with all the volume and velocity: robo-signing. One employee testified that Stern’s chief lieutenant, a one-time file clerk named Cheryl Samons who rose to become the firm’s chief operating officer, signed as many as 1,000 foreclosure affidavits a day without reading a single word. The employee said Samons’ hand got so tired that she told three other employees to forge her signature. Samons also signed numerous mortgage assignments with a notary stamp that didn’t even exist at the time of signing. Notary stamps are only valid for four years. The only way Samons could have signed mortgage assignments at the time they were supposedly notarized was if she had been capable of time travel… Stern battled to keep the chaos inside his firm a secret. In 2008 and 2009, whenever the Fannie Mae auditors were about to touch down in Miami for their routine monitoring, Stern’s employees sometimes toiled through the night, ripping the stickers and client codes off of Fannie files and replacing them with those of a different lender. Then, as an extra precaution, they hauled the disguised files to a remote back room.
Florida Foreclosure Mill King David Ste…
Stern then gave Fannie officials the white-glove treatment, with catered meals and chauffeuring. The incomplete files stayed hidden until the auditors left town. I’ve omitted a lot of prurient detail (Stern allegedly didn’t merely grope employees but even fake humped them) but the business-related part of the account is plenty ugly. Nevertheless, Moe’s question is only partially answered. How did robosigning become so widespread across so many law firms spread across the country? This suggests there must have been a propagation channel for this “innovation”. Did servicers go so far as to say, “We use XYZ firm in Florida, they sign affidavits on a factory basis. That enables them to meet the fees we are willing to pay. It’s up to you to make your economics meet prevailing standards.” Tom Adams, a mortgage securitization expert, has suggested that the significance of miscreant servicer Fairbanks has not been recognized. Law professor Kurt Eggert provides a good overview in his 2007 article, “Limiting Abuse and Opportunism by Mortgage Servicers.” In 2003, Fairbanks had become the biggest subprime servicer in the US by acquiring other subprime servicers. Some of the servicers it had bought were affiliated with originators that had overstated property values and engaged in lax underwriting. That meant a lot of the loans were due to go bad. Fairbanks came under pressure, via litigation, downgrades in servicer ratings, FTC and HUD investigations, due to widespread evidence of serious servicing abuses. Notice Fairbank’s argument, per Eggert: In response to the lawsuits and media reports, Fairbanks argued that it was being blamed for the problems inherent in the portfolios that it had acquired, such as Conti’s. Such portfolios, Fairbanks claimed, presented special problems because they had not previously been serviced properly and because subprime borrowers present special challenges, such as their precarious financial condition and the lack of escrow accounts for taxes and insurance in these mortgages (Collins 2003a). Furthermore, Fairbanks argued that because many of the loans it acquired were already delinquent, it would naturally receive a greater number of complaints (Mitchell 2003). In May 2003, according to an executive at Fairbanks, about 30 percent of its 600,000 home loans were more than two payments behind, and 45,000 of its loans were in foreclosure. Why is this significant? Adams argues that everyone is missing the causality. Servicing agreements simply do not pay enough for the servicer to handle a high level of delinquent loans (Adam Levitin has also made the similar observations). When they wind up with a high enough level of delinquencies, the only way they can find out of their fee mess is to cut corners to such a degree that it railroads consumers, or engage in other types of abuses to increase fees (we’ve commented repeatedly on how servicers charge junk fees and engage in fee pyramiding that is in violation of their contracts and Federal law, yet goes unchallenged. And these fees are often so large that they can quickly add up to thousands of dollars, well beyond what even a responsible borrower can pay. So overly low fees and immutable contracts, perversely, are the breeding ground of criminal behavior. Yet the officialdom is still remarkably loath to acknowledge the level of abuse at servicers. The tone of the AP article suggests that it is becoming harder and harder for them to maintain that fiction. More on this topic(What's this?) The 2011 Foreclosure Flood(Wealth Daily, 1/13/11) U.S. Banks Are Reporting Phantom $1.4T on Interest From Foreclosed Properties: Massive Losses Coming(Shocked Investor, 1/13/11) Face to face with Gerald Celente(Investment Postcards from Cape Town, 2/5/11) Read more onForeclosure, Kingat Wikinvest Topics: Banana republic, Banking industry, Credit markets, Legal, Real estate Email This Post Posted by Yves Smithat4:27 am 24 Comments »Links to this post AddThis
Florida Foreclosure Mill King David Ste…
attempter says: February 7, 2011 at 5:04 am How did robosigning become so widespread across so many law firms spread across the country? This suggests there must have been a propagation channel for this “innovation”. Did servicers go so far as to say, “We use XYZ firm in Florida, they sign affidavits on a factory basis. That enables them to meet the fees we are willing to pay. It’s up to you to make your economics meet prevailing standards.”…. In 2003, Fairbanks had become the biggest subprime servicer in the US by acquiring other subprime servicers. Some of the servicers it had bought were affiliated with originators that had overstated property values and engaged in lax underwriting. That meant a lot of the loans were due to go bad. Fairbanks came under pressure, via litigation, downgrades in servicer ratings, FTC and HUD investigations, due to widespread evidence of serious servicing abuses. We can see the servicers’ proximate interest in robo-signing. But as the second part of the quote demonstrates, it was predictable that the bubble would burst and massive numbers of loans would go bad. It was so predictable, it’s hard to believe it wasn’t predicted, and part of the plan from the start. It’s hard to see how the vast majority of mortgages (and not just subprimes ones) going back to the late 90s weren’t fraudulently induced. So that puts robosigning in a broader perspective. They expected huge numbers of loans to go bad once the bubble burst. They had fraudulently sold these MBS based on those time bomb loans. They systematically failed to convey the notes as per PSA and REMIC requirements. (This is because they were misrepresenting the quality of the loans in the securities, because they wanted to maintain the ability to assign loans to tranches as they went bad, and probably also because they were selling the same loan multiple times. And also to evade recording fees and taxes.) So given the fact that they knew the time would come when they’d be engaging in large numbers of foreclosures with insufficient documentation (since they couldn’t go into court with anyone but the trustee holding the properly conveyed note, otherwise they’d be admitting the MBS were fraudulent), the answer was to use lost-note affidavits which would vaguely vouch that the note had been properly conveyed. Hopefully that would be enough. And since they’d have to produce such massive numbers of these fraudulent affidavits, robo-signing followed as the obvious practice. I’m still trying to figure all this out, but that’s basically the way it looks to me. Jim A. says: February 7, 2011 at 9:19 am Even though everybody KNEW that there was a near-zero chance of borrowers making the agreedupon payments, I’m not sure that those who agreed to service those mortgages anticipated the level of foreclosures. But like the borrowers, they anticipated that this “30 year” mortgage would last for no more than 2 years before the borrower refinanced. But like so many things that worked until it stopped working, and when it stopped, it stopped with a vengence. Because with no real brakes on the system, everything just ran into a concrete wall. attempter says: February 7, 2011 at 5:05 pm
Florida Foreclosure Mill King David Ste…
They knew it was a bubble which would burst (in addition to its inherent unsustainability, their own assaults on the real economy guaranteed people wouldn’t be able to keep paying and buying), and that at least all the subprime loans would go bust, and probably many more. That’s a lot of foreclosures they must’ve anticipated. Dwight Baker says: February 7, 2011 at 9:07 am Harvard, Yale, Columbia and other East Coast Blue Blood Universities teach and preach —– the SEE SAW YAW OF THE LAW BY Dwight Baker February 7, 2011 Dbaker007@stx.rr.com \ http://www.nakedcapitalism.com/2011/02/florida-foreclosure-mill-king-david-stern-shows-crime-sure-didpay.html?utm_source=feedburner&utm_medium=email&utm_campaign=Feed:+NakedCapitalism+ (naked+capitalism) MY TAKE Truth once thought to be the same as Justice took a dump long ago. Maybe some places around the globe there is Justice but certainly NOT IN AMERICA. For the schools of higher education teach those most privileged how to game then con the system for personal profit. Now, the truth is out how David Stern gamed then conned the system, as he obliged the big banks in their squirrelly deals to push along their needs to exit. But what NOW —- SO WHAT I say! Another fine example before us of the sad state that we are all in —- for none of us has the most minuscule form of Justice. For 90 % our lawyers practice the art of the SEE SAW YAW OF THE LAW. At the time of the Obama inauguration our Justice department was castrated! No Balls to the walls investigations any longer for now there were No more Balls, Bobby Kennedy tried to bring some down and he received the fatal bullets. So those in DC know how to walk the line, stay in line and behave as told too. So what will happen with all these things revealed? Probably end up in a Washington Senate Internal Investigation that will give rise to a quick demise of all the hardcore evidence. For again most of our elected officials to spend our money wisely are crooked ass Lawyers schooled in the art of practicing the SEE SAW YAW OF THE LAW. NOW what say you? MinnItMan says: February 7, 2011 at 9:28 am In 2003, the machine was just getting perfected. Aside from a very small number of lenders – Conseco Financial comes to mind – very few foreclosures ended up as repos, so losses weren’t a big factor in the business. Instead, the foreclosure bailout/rescue industry was making money on the spread between jacked up redemption prices, which essentially converted the ubiquitous prepayment penalties into forsclosure fees and add ons to the redemption price, and the jacked up appraised price for the new buyer. I attended a continuing legal ed where a FC attorney said as much, saying “let the loan go to sale where the PrePay no longer applies.” Your client will be better off.” Many states began regulating foreclosure bailout/rescue deals, and when these laws began taking effect – here August 1995 – this market disappeared, and the repos did become a significant factor.
Florida Foreclosure Mill King David Ste…
This aspect never really ocurred to me, but the prepay penalty and the foreclosure servicing charges were about the same magnitude (the servicing charges might have been a little less, thus that attorney’s comment, but they were still a few thousand dollars), and represented a pretty good income stream until nobody was paying them anymore. Volume transactional business always gets takers, even when the numbers don’t work. The takers can always find a way to make them work, at least temporarily. Historically, this is a major reason why insurance is regulated – the tendency is to charge too little when there are no claims, and then be broke when the claims come in. This highlights a key problem reconciling competitive pricing on long term liability with the IBG YBG tendency of volume paper businesses. ella says: February 7, 2011 at 9:32 am In the vast majority of cases white collar crime always pays. Even after a prison sentence and a hefty fine, the criminal is always left with a substantial portion of the fruits of the crime (big bucks). Now, at the mob level we have criminal laws that strip the mobster of the fruits of their crime, provided the state can find the fruits. Time to apply the same law to the white collar criminals and a similar civil claw back as that found in the federal RICO statute. We can start by redefining fraud and other white collar crime to make it easier to prove. Next, we apply the same to set of laws to Corporate types in what in now known as “control fraud”. Let us have personal responsibility at this level as well. (not holding my breath) StillReading says: February 7, 2011 at 9:59 am I have been reading “Naked Capitalism” and other sources, searching for an explanation for the failure of common sense. The best “unified field” theory describing such failure is presented by William Black. http://neweconomicperspectives.blogspot.com/ My reading of Black, and others, provides a straight forward explanation. 1) 2) 3) 4) Fraud Fraud Fraud Fraud pays better than honest. occurred. will spread in an endemic fashion. Fraudulent transactions grow to replace honest transactions. must be stopped or else fraud will continue.
At each step of the complicated sequence, fraud is the explanation for the failure of honesty. The cure for fraud is prosecution. readerOfTeaLeaves says: February 7, 2011 at 11:15 am That’s the best that I can figure. And with computerized networks, there is plenty of anonymity and new means for people to commit white collar crime. But all of this requires that the environment become ‘criminogenic’. Sterns is a chilling example.
Florida Foreclosure Mill King David Ste…
KMR says: February 7, 2011 at 10:30 am Minor but important point of correction: Kurt Eggert’s article was published in 2004, not 2007. Schofield says: February 7, 2011 at 11:21 am Is there any update anywhere on the action the Obama administration is taking to prosecute these Foreclosure Fraudsters? Procopius says: February 7, 2011 at 7:34 pm @schofeild: The Obama administration is NOT planning to do anything about the fraudsters. We must look forward, not back, don’t you know, so that these mistakes are never made again. Also, if he prosecutes the banksters it will make them sad. MinnItMan says: February 7, 2011 at 12:45 pm 1995 should have been 2005 Monday Static says: February 7, 2011 at 1:06 pm Stern can’t be the only hood on Fannie Mae’s go-to debt collectors list. Other firms have not only engaged in felonies, but have either equalled or surpassed Stern’s outrageous behavior, and flourish simply for a lack of press coverage. To hell with that – it’s time for automatic disbarment, is this country a kleptocratic banana republic or what? It’s time for massive civil disobedience. ScottS says: February 7, 2011 at 9:04 pm Fannie’s retained attorney list: https://www.efanniemae.com/sf/technology/servinvreport/amn/pdf/retainedattorneylist.pdf I’ll start you off. Florida retained attorney Shapiro & Fishman just complained to the court that they don’t want to have to swear to the validity of affidavits filed in Florida foreclosures: http://floridaforeclosurefraud.com/2010/03/foreclosure-lawsuits-are-built-on-lies-shapiro-fishmanadmits-foreclosure-claims-cannot-be-verified/ F. Beard says: February 7, 2011 at 1:06 pm Fractional reserve lending in a government enforced monopoly money supply is theft of purchasing power via temporary money (credit) creation. Period. Some claim it is also fraud but that is a relic of the gold standard, imo. Meanwhile, many assume that we can have an honest economy based on that dishonest foundation.
Florida Foreclosure Mill King David Ste…
My question: When? AR says: February 7, 2011 at 2:21 pm Is this article really trying to pin the blame for robosigning on David J. Stern? Are we forgetting about the 2004 DocX price list, and the fact that robosigners were working at LPS until 2010, when a federal investigation induced them to farm out the robosigning to the foreclosure mills, as described by Scott J. Paltrow? http://www.reuters.com/article/idUSTRE6B547N20101206 I commented months ago that the way to the heart of the scam is to turn foreclosure mill attorneys against LPS. LPS software manages servicer operations, directs the foreclosure mills, and fabricates documents for the foreclosure mills. I really think this article is meant to divert attention away from LPS onto the alreadydisgraced DJS. Yves Smith says: February 7, 2011 at 6:45 pm First, robosigning is not the same a document fabrication, although they are related phenomena. Second, you overstate what I said about the article. Please reread the paragrpah in question. AR says: February 7, 2011 at 8:27 pm Yves, You write: “So overly low fees and immutable contracts, perversely, are the breeding ground of criminal behavior.” I think the entire housing bubble was criminogenic, starting at least with the creation of MERS. The intentional destruction, or failure to create and record, documents in a timely fashion was part of the scheme. They wrote the PSAs, knowing there’d be millions of defaults and foreclosures. Robosigners would be required to sign the requisite fabricated documents. MERS took that into account in its plan. Much of the robosigning was done at LPS until the fee-sharing lawsuit, and the public release of the DocX price list. According to Scott J. Paltrow in his December Reuters article: “beginning early in 2010, county recorders’ records show, signing shifted also to law firms under contract with LPS.” It was LPS’ red-yellow-green pressure on the foreclosure mills, not the servicers’. I certainly don’t know the deep history, but based solely on this AP article, I wouldn’t assume that DJS or other foreclosure mills initiated robosigning. MERS‘ plan called for lender employees to do the robosigning, to keep the assignments ‘in house’, thus justifying the ruse of recording mortgages in MERS’ name. Foreclosure mill employees were never supposed to perform that function, within the MERS rationale. But then neither were LPS employees. The same banks who were selling phony MBS securities surely must have known that their servicing arms would have to ‘earn’ their keep via bogus fees. They expected lots of defaults. This was already happening in 2003, according to Kurt Eggert. The mortgages were designed to strip the borrowers’ equity, and the empty MBS and bogus fees were the means towards stripping investors and pension funds.* Why else sell the same loan multiple times? Try to explain how one mortgage payment to one servicer winds up being remitted to several MBS each month. No wonder the PSAs made it impossible for servicers to ask investors’ permission to modify loans. We know that banks have been using perverse fees to bilk credit card holders. Why wouldn’t servicers intend to do the same, regardless of the PSAs fixed fees? And if the intent of the
Florida Foreclosure Mill King David Ste…
masterminds was to collect CDS upon massive defaults, why not construct PSAs that would incentivize servicer-induced defaults? I just assume that the PSAs were written the way they were as part of the overall scheme. Making it impossible to modify loans makes as much sense as setting up servicers understaffed and with software that only drives toward default and foreclosure, like a ratchet, with no way to adjust to individual circumstances of each borrower. Yet that’s what they did, which to me implies that they did it on purpose. But then I’ve become extremely cynical. I have no professional background in any of this, so I’m not assuming or expecting anything other than what I’ve read. Perhaps the professionals are too deep in the weeds to perceive the possibility that this was by design? I know you write about servicer abuse in the hopes that the AGs or Fed or other regulator will do something about this. I was pushing this in comments at other blogs last fall too. So I don’t mean to harm this effort. My impression now is that Treasury is temporarily creating the illusion of a recovery by propping up the economy with bailouts and statistics, while exhorting and enabling the banks to use whatever predatory, parasitic tricks and bogus fees they can devise to ‘earn‘ their way back to ‘solvency’ on the backs of their customers. It seems to be administration policy to look the other way while the banks force as many foreclosures as possible, in order to be paid by GSEs at par for each foreclosure, whether the family was able to pay or not. Since there’s no way to do this legally, robosigning is a feature, not a bug. Florida is the model of a compliant judiciary for carrying out this scheme. * It is my belief that the certain knowledge that peak oil spells the end of capitalism, debt creation, and debt repayment provided the impetus to not only prop up the hollowed-out US economy with the housing bubble, but also to ‘cash out’ of the US economy. Dmitry Orlov described it this way in his Nation video released last week: “So what we saw in the Soviet Union was a political dysfunction where basically the communist regime was so endemically corrupt and so out to steal as much as they could at the very end that they really didn’t even bother paying attention to whether they kept the system going, the system was basically on autopilot until it crashed. Something similar is happening here where we have people in all branches of government, both political parties, really trying to prop up the financial industry which has really become completely irrelevant to most people in the United States who don’t have savings and are not credit worthy. They’re basically trying to use up people’s savings and use up people’s retirement to prop up this set of institutions that only help the very rich people.” http://www.thenation.com/video/157985/dmitry-orlov-peak-oil-lessons-soviet-union Yves Smith says: February 8, 2011 at 1:36 am MERS didn’t write the PSAs, in fact it has nothing to do with origination, no seat at the table. The standard form PSAs were developed long before the industry went off the rails, so you can’t tie the deal design (which was very carefully crafted) with the bad practices that developed over a decade later. In fact, as a crime, it would have been far more successful if they had changed the PSAs to conform with the new practices they started to implement sometime between 2002 and 2004, namely, not transferring the notes to the securitization trust as specified in the PSA. Robosigning is penny-ante and asking for trouble. AR says: February 8, 2011 at 7:19 am I’m fully aware that MERS didn’t originate mortgages or write the PSAs. But MERS was intentionally created (carefully crafted?) as a black box to hide what they intended to do with the mortgages & notes.
Florida Foreclosure Mill King David Ste…
L. Randall Wray wrote that MERS’ 1999 State-by-State Recommended Foreclosure Procedures Manual directs servicers to retain the notes.* They had to use the same boilerplate PSAs from the past or people would have been alerted ahead of time that something was different this time. “The deals were carefully crafted.” Are you saying they carefully crafted the deals but didn’t bother to adjust the PSAs? Maybe this was intentional. If the MERS manual is to be taken seriously then what you sate: “the bad practices that developed over a decade later.” is incorrect. Those bad practices were crafted as well, as far as the MERS manual indicates. * Anatomy of Mortgage Fraud: MERS’s Smoking Gun, Part I http://www.huffingtonpost.com/l-randall-wray/merss-smoking-gun-part-1_b_794713.html?view=print JP Warchild says: February 8, 2011 at 10:38 am It seems clear that a much greater portion of the fraudulent activity was in NOT following the PSA agreements, rather than anything that was actually in them. Blurtman says: February 7, 2011 at 2:29 pm Failed NY Fed Regulator Takes Job With AIG AIG hired Federal Reserve Bank of New York veteran Brian Peters to help manage risk after the bailed-out insurer paid down a credit line with the regulator. Peters is joining as a senior managing director in the enterprise risk management group, according to a Jan. 18 memo to staff from Sid Sankaran, chief risk officer. The insurer was rescued by the Fed in 2008 and repaid the last $21 billion it owed the regulator on Jan. 14. Peters was senior vice president in risk management at the New York Fed, where he helped oversee the 12 “largest and most systemically important financial institutions and industry utilities,” according to the memo. http://www.bloomberg.com/news/2011-02-04/aig-hires-new-york-fed-s-brian-peters-to-risk-managementafter-paying-loan.html “Peters’ risk management talents contributed to the meltdown of Wall Street, rampant fraud, and the TARP bailouts. Based upon that track record, Peters is our man.” said an AIG spokesperson. PJ says: February 7, 2011 at 7:05 pm What”s wrong with this statement below… “Stern battled to keep the chaos inside his firm a secret. In 2008 and 2009, whenever the Fannie Mae auditors were about to touch down in Miami for their routine monitoring, Stern’s employees sometimes toiled through the night, ripping the stickers and client codes off of Fannie files and replacing them with those of a different lender. Then, as an extra precaution, they hauled the disguised files to a remote back room. Stern then gave Fannie officials the white-glove treatment, with catered meals and chauffeuring. The incomplete files stayed hidden until the auditors left town.” What’s wrong, they all including Stern were on the taxpayers dime… no doubt Stern, Fannie Mae “attorney
Florida Foreclosure Mill King David Ste…
of the year” was able to bill back his largess showdered on Fannie Mae auditors, while lining a few pockets, with a good ole wink, wink, nod, nod! Indite the auditors on the taxpayers salary! Short, sweet and simple! Francois T says: February 7, 2011 at 9:47 pm “Yet the officialdom is still remarkably loath to acknowledge the level of abuse at servicers.” You mean “predictably loath” I presume. Officialdumb has a lot to answer for in this unbelievable mess, and it is the very last thing they want to do. So, extend and pretend, obfuscate, spin and more spin is the game plan of Geithner & Compadres. As for Obama, he has an “agenda” to fulfill, and mere distractions like the economy (most especially job creation) just cannot be allowed to be an impediment toward his goal.
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