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-0327 CASE NO.: 2D11-1003 L.T. No.: 09-6016-CA Jennifer Franklin-Prescott, v. “BankUnited” Walter Prescott, et al., _____________________________________________________________________ Appellants/Petitioners, Appellee / Respondent(s). APPELLANTS’ RESPONSE TO COURT’S PREJUDICIAL “03/01/2010 ORDERS”, NOTICE OF APPELLATE & LOWER COURTS’ ERRORS IN FAVOR OF BANK, AND DEMAND FOR RELIEF AND INJUNCTION
CLEAR SHOW OF CAUSE - THIS APPELLATE COURT HAS JURISDICTION 1. Appellants, Walter Prescott, Jennifer Franklin-Prescott, et al., conclusively evidenced their rights to appeal and the jurisdiction of this Appellate Court as a matter of law. No final order needed to be provided under the Rules. ISSUES – SHOW OF CAUSE 2. Here clearly, Appellants a. had the right to appeal (interlocutory); b. were not required to provide any final order. Therefore here, this Court’s improper 03/01/2011 orders were prejudicial and extended the “mass foreclosure” fraud-on-the-Court-scheme in the previously disposed action. Here unlawfully, Defendant Clerk of the lower Court had removed the final disposition record after “suggestion of bankruptcy”:
APPEAL CLERK’S ERROR ON THE RECORD
3. In her attached “02/22/2010” letter to Appellate Clerk James Birkhold, Appeal Clerk Cheryl Bishop did not mark “Non-final Notice of Appeal and Order”. See attached letter. Said record error by the lower Court’s Appeal Clerk prejudiced the Appellants who hereby demand correction and the striking of this Court’s two 03/01/2011 orders. THIS APPELLATE COURT CLEARLY ERRED 4. On “March 1, 2011”, this Court allegedly wrote: “Appellant shall show cause within fifteen days why this appeal should not be dismissed for lack of jurisdiction, as appellant had failed to provide a copy of the order appealed as required by Florida Rule of Appellate Procedure 9.110(d), and this court is unable thereby to determine its jurisdiction.” THIS COURT KNEW THAT “APPELLANTS” NEED NOT PROVIDE FINAL ORDER 5. Here, this Court knew that a. Defendants/Appellants were not required to provide a final order; b. Appellant(s) had appealed from fraud on the Court, corruption, and/or a nonfinal order pursuant to Florida Appellate Rules of Procedure 9.130 [and not “9.110(d)”]; c. Appellants had not appealed from a “final order” under Rule 9.110(d); d. Appellants were of course not required to provide a copy of any final order; e. No “final order” was “rendered” and/or could have possibly been “rendered”. SAID 03/01/11 ORDER WAS PREJUDICIAL AND FOR IMPROPER PURPOSES 6. Accordingly, this Court had jurisdiction, and said Order of this Court was prejudicial because it was for improper purposes of keeping the “defendants” away from this Court (fraud on the Court). “DEFENDANTS” WERE ENTITLED TO APPELLATE REVIEW 7. Here, a non-final order met the standards for the issuance of an extraordinary writ and/or came within the orders enumerated in Florida Rule of Appellate Procedure 9.130 and was appealable. See Rule 9.130(a).
8. Here, said non-final order permitted appellate review before the trial proceedings are complete, and said Appellants Prescott, Franklin-Prescott, et al., have been invoking the proper method for this Court’s review. 9. Florida Rule of Appellate Procedure 9.130(a) states: RULE 9.130. PROCEEDINGS TO REVIEW NON-FINAL ORDERS AND SPECIFIED FINAL ORDERS (a) Applicability. (1) This rule applies to appeals to the district courts of appeal of the non-final orders authorized herein and to appeals to the circuit court of non-final orders when provided by general law. Review of other non-final orders in such courts and non-final administrative action shall be by the method prescribed by rule 9.100. (3) Appeals to the district courts of appeal of non-final orders are limited to those that (A) concern venue; (B) grant, continue, modify, deny, or dissolve injunctions, or refuse to modify or dissolve injunctions; (C) determine (i) the jurisdiction of the person; (ii) the right to immediate possession of property … 10. Here wrongfully, the Court(s) did not “grant an injunction” even though the lower Court and “BankUnited” perpetrated fraud on the Court and deliberately deprived Walter Prescott, Jennifer Franklin-Prescott, et al., of due process and their fundamental rights to, e.g., jury trial and disposition in Appellants’ favor. 11. This Court and the lower Court have known that “BankUnited” had no standing and no right to sue Prescott, Franklin-Prescott, et al. 12. This Court and the lower Court know that “BankUnited” had no right to schedule hearings after the lower court had disposed the wrongful foreclosure action on 08/12/2010:
13. The lower court’s record evidenced that 3 (three) prima facie unlawful and unauthorized hearings were scheduled after said 08/12/2010 disposition:
14. § 28.29, Florida Statutes (2010), Recording of orders and judgments, states: “Orders of dismissal and final judgments of the courts in civil actions shall be recorded in official records… Here, the 08/12/2010 disposition record was unlawfully removed from the official record(s). PREJUDICE EVIDENCE – FAILURE TO PROCESS INTERLOCUTORY APPEAL 15. On “02/24/2011”, Appellants/”defendants” in the previously disposed action had filed their “NOTICE OF APPEAL FROM ROCKET DOCKET…” However here, the Clerk did not process said Interlocutory Appeal:
Appellants demand correction of said fraud on the Court in favor of bank(s). ‘BankUnited’ HAD NO “RIGHT OF POSSESSION OF” DEFENDANT(S)’ PROPERTY 16. Here, “BankUnited” had no right to possession of defendant(s)’s property. Item (C)(ii) of said Rule 9.1130 is intended to apply whether the property involved is personal or real as here. It applies to cases in which a party seeks to take possession and/or title to real property. 17. Here, said Rule applied to this appeal to the circuit court of a non-final order as provided by general law.
18. The lower court had no authority to perpetrate fraud on the Court and deceive the “defendants” about “BankUnited’s” lack of standing and lack of any right to foreclose and sue Prescott and Franklin-Prescott 19. Here, the lower court’s record evidenced clear error and a proper appeal was taken. 20. Here, the highly meritorious issues for appellate review were perfectly isolated, identified, and framed, and this Court has jurisdiction to review. APPEAL FROM FRAUD ON THE COURT, AND FRAUDULENT NON-FINAL ORDER 21. Fraudulently, “mass foreclosure” Judge Monaco set the previously disposed case for non-jury trial in the record absence of any jurisdiction and/or authority.
UNLAWFUL HEARINGS DEFRAUDED W. PRESCOTT, J. F.-PRESCOTT, et al. 22. Florida Rule of Appellate Procedure 9.130 is entitled: 9.130. PROCEEDINGS TO SPECIFIED FINAL ORDERS REVIEW NON-FINAL ORDERS AND
THE LOWER COURT MAY NOT RENDER ANY FINAL ORDER 23. Here, the corrupted lower Court may not render any final order: (f) Stay of Proceedings. In the absence of a stay, during the pendency of a review of a non-final order, the lower tribunal may proceed with all matters, including trial or final hearing; provided that the lower tribunal may not render a final order disposing of the cause pending such review. THIS COURT KNOWINGLY MIS-APPLIED RULE 9.110 24. Here, this Court knowingly mis-applied said Rule 9.110 for improper purposes of, e.g., promoting the 20th Judicial Circuit’s illegal “rocket docket” and concealing “BankUnited’s” fraudulent robo-signing and affidavits:
9.110. APPEAL PROCEEDINGS TO REVIEW FINAL ORDERS OF LOWER TRIBUNALS AND ORDERS GRANTING NEW TRIAL IN JURY AND NONJURY CASES Here, this Court concealed designated certain instances in which interlocutory appeals may be prosecuted under the procedures set forth in said Rule without any requirement to provide a final order. APPELLANTS WERE ENTITLED TO STAY IN PREVIOUSLY DISPOSED CASE 25. Stays of proceedings in lower tribunals should be liberally granted, in particular if the interlocutory appeal involves fraud on the court and/or jurisdiction. See Rule 9.1130. 26. Here, both Courts knew that in the record absence of any reestablishment of the destroyed and/or lost mortgage and note, “BankUnited” had never stated any cause of action. 27. The lower Court’s Clerk erred when he/she listed bankrupt “BankUnited, FSB” as a plaintiff:
NO RENDITION OF ANY FINAL JUDGMENT – NO PAYMENT REQUIRED 28. On “March 1, 2011”, this Court allegedly wrote: “This appeal has been filed without a filing fee required by section 35.22(3), Florida Statutes (2008). Appellant[s] shall forward the required $300.00 filing fee or, if applicable, a certificate or order from the circuit court finding appellant insolvent pursuant to section 57.081 or 57.085, F.S. (2008), as applicable, within forty days from the date of this order.”
29. Rule 9.110(b) provides that a party seeking to appeal must pay the required filing fees within 30 days with the clerk of the lower court after the judgment is rendered. Here, an appeal from a final order/judgment could not have possibly commenced, because there was no rendition of any final judgment/order. THIS COURT KNEW THAT NO “FINAL ORDER” WAS EVER RENDERED/FILED IN DISPOSED WRONGFUL FORECLOSURE ACTION 30. This Court knew that the action had been disposed on 08/12/2010, and that no trial could have ever possibly taken place. However, a [“final”] order must be “rendered” before it is ripe for appeal. 31. For appellate purposes, the “rendition” date begins the jurisdictional period for filing an appeal. The rules on rendition, however, are confusing. Rule 9.020(h) provides that an order is not rendered until the clerk has actually filed the order signed by a judge. Thus, contrary to popular opinion, an order is not rendered when the court first announces its ruling or even when the order is signed by the judge. PATTERN OF UNAUTHORIZED & UNLAWFUL ACTS 32. Here, three times in a row, the lower Court, Clerk, and “BankUnited” agreed to schedule unauthorized hearings in a disposed wrongful foreclosure action, and the “defendants” had demanded relief and/or an injunction:
COMMON LAW CERTIORARI WAS AVAILABLE IN DISPOSED WRONGFUL CASE 33. The common law writ of certiorari is available at any time. Said writ provides a remedy for the clear departure from the essential requirements of law proven in this
case. Here, the lower tribunal deliberately deprived the “defendants” of their fundamental rights under both the Federal and Florida Constitutions. 34. Otherwise irreparable harm will result from “robo” Judge Daniel R. Monaco’s wrongful “mass foreclosure” fraud scheme in the previously disposed action. ERRONEOUS UNLAWFUL RULING WAS APPEALABLE 35. Setting a previously disposed wrongful foreclosure case [in which “BankUnited” had no standing, and which was not even at issue] for bench-trial was an erroneous interlocutory ruling which can be corrected by resort to common law certiorari. 36. Here, this Court and the lower Court knew that the Legislative Branch of Government had instructed the Judicial Branch to illegally mass-reduce
the foreclosure rocket docket in order to “speed up the State’s economic recovery”. 37. Here, Prescott, Franklin-Prescott, et al. have rights of review of, e.g., orders on motions seeking relief from a previous court order on the grounds of, e.g., mistake, fraud, satisfaction of judgment, or other grounds listed in Florida Rule of Civil Procedure 1.540. Said “defendants” were clearly entitled to and demanded trial by jury. The alleged destroyed and/or lost instruments could not be reestablished as a matter of common law. Here, “rocket docket” robo Judge Monaco had no authority to set the previously disposed case for non-jury trial. WHEREFORE, said Appellants/Defendants in previously disposed respectfully demand 1. An Order restoring justice and the rule of law;
2. An Order staying proceedings in the objectively corrupted lower tribunal under retired temporary Judge Daniel R. Monaco; 3. An Order prohibiting said mass foreclosure “rocket docket”; 4. An Order enjoining Clerk Brock from obstructing the “02/24/2011” Interlocutory Appeal; 5. An Order directing proper processing of Appellants’ 02/18/2011 and 02/24/2011” appeals; 6. An Order declaring that Appellants/Defendants in the previously disposed action did not need to provide any [non-existent] final order; 7. An Order striking this Court’s two 03/01/2011 orders as erroneous and prejudicial. Respectfully, /s/Walter Prescott, foreclosure fraud victim /s/Jennifer Franklin-Prescott, BankUnited foreclosure fraud victim ATTACHMENTS CERTIFICATE OF SERVICE We hereby certify that a true and correct copy of this pleading has been delivered to “BankUnited”, “Albertelli Law”, P.O. Box 23028, Tampa, FL 33623, USA, the Clerk of Appellate Court, Mr. Birkhold, the Clerk of lower Court, Hon. Hugh D. Hayes, and retired “rocket docket” Judge Daniel R. Monaco, Courthouse, Naples, FL 34112, USA, on March 14, 2011. Respectfully, /s/Walter Prescott, foreclosure fraud victim /s/Jennifer Franklin-Prescott, fraud victim
08/12/2010 DISPOSITION RECORD EVIDENCE
APPEAL CLERK’S RECORD ERROR
CC: James Birkhold, Clerk, Hon. Hugh D. Hayes (Disposition Judge), Albertelli Law, Hon. Daniel R. Monaco, Karen (JA), United States District Court, Clerk of Court, The Florida Bar, New York Times, et al. email@example.com, firstname.lastname@example.org, email@example.com, MAIL1@flabar.org, 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, 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, firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, email@example.com,
BFERNANDEZ@BANKUNITED.COM, firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, email@example.com, TAIDMAN@FordHarrison.com, firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, Pascolaw@aol.com, email@example.com, firstname.lastname@example.org, Dmravic@ca.cjis20.org email@example.com, firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, 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, 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,
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