NOTICE OF OBJECTION TO ANY HEARING & MAGISTRATE IN DISPOSED ACTION

8/7/2019 NOTICE OF OBJECTION TO ANY HEARING & MAGISTRATE IN DISPOSED ACTION

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IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT

IN AND FOR COLLIER COUNTY, FLORIDA

BANKUNITED,

non- successor in interest to [lawfully seized] BANKUNITED, FSB.,

purported plaintiff(s),

vs.

DISPOSED CASE NO.: 09-6016-CA

JENNIFER FRANKLIN-PRESCOTT, et al ., purported defendants.

___________________________________________________________________/

NOTICE OF OBJECTION TO ANY HEARING & MAGISTRATE IN DISPOSED CASE

AND OF NON-CONSENT

NOTICE OF FRANKLIN-PRESCOTT’S OBJECTION & NON-CONSENT

1. Jennifer Franklin-Prescott objects to any hearing and/or any magistrate in this disposed

action. Here, no hearing was authorized and/or lawful and the notice a sham.

RECORD DISPOSITION

2. This action had been disposed on 08/12/2010.

ERRONEOUS “ NOTICE ” IN DISPOSED ACTION

3. On 02/12/2011, the Docket showed a “notice of hearing ” which was “amended ”. Here, the

notice did not pertain to Jennifer Franklin-Prescott and/or the disposed action but to “ Pedro

Luis Licourt ”, who is not any known party.

UNLAWFUL/UNAUTHORIZED HEARING IN DISPOSED ACTION



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4. Here, the erroneously alleged “amended mtoin for summary judgment …” does not pertain to

this disposed action. Any hearing and/or any motion for summary disposition would be

improper, unauthorized, and/or unlawful.

NO FEBRUARY HEARING APPEARED ON THE DOCKET

5. Here, the 02/12/2011 Docket did not show any hearing and/or hearing date:

NO CONSENT & OBJECTION TO ANY MAGISTRATE (HEARING)

6. Previously and repeatedly, Franklin-Prescott had objected to any magistrate hearing.

Because of the record lack of any consent , a previous hearing had been cancelled in this

disposed action.

7. The record lack of consent was erroneously entered as “non-contest ”:

VAGUE & AMBIGUOUS SHAM “ NOTICE ”

8. Here, the notice was vague, ambiguous, and unintelligent. A pleading is considered a sham

when it is inherently false and based on plain or conceded facts clearly known to be false

at the time the pleading was made. See Decker v. County of Volusia, 698 So. 2d 650, 651



3

(Fla. 5th

DCA 1997); Destiny Constr. Co. v. Martin K. Eby Constr., 662 So. 2d 388, 390 (Fla.

5th

DCA 1995).

RECORD ABSENCE OF NOTE AND CONDITIONS PRECEDENT

9. Here, no genuine properly executed note had existed. Copies of a null and void

note/mortgage and/or hearsay were not admissible under the Code of Evidence. Here, there

were no witnesses and no notary had acknowledged any authentic note/mortgage.

NON- BINDING “ MODIFICATION AGREEMENT ”

10. BankUnited, FSB, and/or BankUnited knew and/or concealed that

“8. The Modification will be legally binding upon the parties, only when it is signed

by Note Holder and each Borrower .”11. Here, Walter Prescott did not sign the purported “ Loan Modification Agreement”. See

12/21/2010 “ Notice of Filing of Original Loan Modification Agreement ” in disposed

(08/12/2010) action. Because here the alleged 09/05/2007 “Modification Agreement ” was

not signed by each Borrower and/or Walter Prescott, it was not legally binding .

FAILURE TO PROVE TERMS

12. A person seeking enforcement of an instrument under UCC § 3-309(a) must prove the terms

of the instrument and the person’s right to enforce the instrument. See UCC § 3-309(b). Here,

plaintiff failed to prove any terms.

RECORD ABSENCE OF EXECUTION

13. Here, the alleged February 2006 note, mortgage, and/or security instrument did not and could

not have possibly encumbered Franklin-Prescott’s real property, because they were not

properly executed .

NO PROOF ON FILE IN DISPOSED ACTION

14. Here, Franklin-Prescott had denied the authenticity of signatures on the purported note

and/or mortgage alluded to in this disposed case and demanded strict proof thereof, by clear

and convincing evidence, pursuant to § 673.3081, Fla. Stat. (2008). See “ Adjustable Rate

Note”, page 4 of 4, in 12/01/2010 and/or 11/01/2010 “ Notice of Filing of Original Note &

Original Mortgage”.

15. Here in particular, there were, e.g., no notarial acknowledgment and no signature by

purported “borrower ” Walter Prescott.



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16. The “complaint ” and above “ Notice(s) of Filing ” established the purported note as null and

void. Furthermore, the non-genuine copies (prima facie hearsay) in the complaint and

“ Notices of Filing ” fatally conflicted.

“ PARTIES ” TO ALLEGED NOTE WERE CONFLICTING AND AMBIGUOUS

17. In this disposed action, the purported “ plaintiff ” did not assert any valid note and mortgage

assignment status in the complaint. A security could not possibly follow a non-existent note.

18. Here, there was no assignee of any note. Here, no promissory note and no note assignment

were recorded . See Collier County Public Records. However, assignments must be recorded

to be valid against creditors and subsequent purchasers. § 701.02, Fla. Stat. (2010). See also,

Glynn v. First Union Nat’l. Bank, 912 So. 2d 357, 358 (Fla. 4th

DCA 2005).

19. In this disposed action, the named parties plaintiffs, and/or borrowers were conflicting and

ambiguous:

NO TRANSFER OF ALLEGED INSTRUMENT

20. An instrument istransferred

when it isdelivered

by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument. See

UCC § 3-203(a). If a transferor purports to transfer less than the entire instrument,

negotiation of the instrument does not occur. The transferee obtains no rights under this

Article and has only the rights of a partial assignee. See UCC 3-203(d). Here, the destroyed

and/or lost instrument could not have possibly been delivered and/or transferred , and the

case was disposed on 08/12/2010.

AUTOMATICALLY DISSOLVED “ LIS PENDENS ”

21. Here, the improper and unauthorized lis pendens was automatically dissolved upon the

disposition of foreclosure. See Rule 1.420(f), Fla. R. Civ. P. (2010). The validity of a notice

of lis pendens is one year from filing. § 48.23(2), Fla. Stat. (2010).

22. In this disposed action, the purported “ plaintiff ” sought to re-establish the missing note in

“COUNT I (Reestablishment of Lost Instruments)” of the complaint (see p. 2 of 8). Franklin-



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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. Here, the record reflected

that plaintiff could not possibly re-establish the note and that no authentic note could possibly

be proven under the Evidence Code.

FRAUD ON THE COURT & RECORD EVDENCE THEREOF

23. Here however, “ plaintiff(s)”, BankUnited and BankUnited, FSB, fraudulently asserted:

“that all conditions to the institutions of this action have occurred, been performed or

excused …”

24. Prior to the 08/12/2010 disposition, plaintiff had failed to re-establish and could not have

possibly re-established the destroyed and/or lost note/mortgage. Here, the time and manner

of the loss/destruction had been uinknown. See UCC §§ 3-309; 3-305.

02/12/11 DOCKET SHOWED FRAUD EVIDENCE & DEMAND IN DISPOSED ACTION

PREVIOUS NOTICE OF UNAVAILABILITY IN DISPOSED ACTION

25. Prescott who is in the Pacific had given her notice of unavailability. In this disposed action,

Prescott could not possibly be expected to appear under said entirely unreasonable

circumstances on such unintelligent, irrelevant, unauthorized, and short notice.

UNAUTHORIZED ATTORNEYS

26. “ Rose, Erin M.” was the only attorney authorized in this disposed action.

Here unlawfully, various unknown “attorneys” appeared without any authority and falsely

pretended a “hearing ”.

RECORD FRAUD ON THE COURT

27. This court knows about the fraud on the Court perpetrated by BankUnited & Albertelli Law:



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In this disposed action, any hearing and/or motion for summary disposition were unauthorized

and improper.

BANKUNITED HAD NO VALID SECURITY INTEREST

28. In Florida, a security interest in a mortgage and/or the assignment of a mortgage must be

recorded in order to perfect the security interest in the mortgage. Here, no valid BankUnited

security interest existed.

DEMAND OF LIS PENDENS BOND

29. Florida Statutes, section 48.23, governs the use of a lis pendens, and treats a lis pendens as

one of two types. Here, the purported invalid lis pendens was not founded on a duly recorded

instrument . Here, the purported promissory note was destroyed, lost, and/or transferred.

See Complaint. Furthermore here, there was the lawful seizure of bankrupt BankUnited

and/or an alleged transfer / sale. Here, the missing note/mortgage could not have possibly been reestablished and/or enforced . § 48.23(3), Fla. Stat. (1993) authorizes the trial court to

"control and discharge the notice of lis pendens as the court may grant and dissolve

injunctions." Here, Prescott appears to be entitled to a lis pendens bond.

30. Here, Prescott showed that the bond is necessary to protect her from irreparable harm after

the disposition. Here, the lis pendens was not based on a recorded genuine instrument . See

Feinstein v. Dolene, Inc., 455 So.2d 1126, 1128 (Fla. 4th DCA 1984).

31. Here, the note was missing and the lis pendens was unjustified. See Florida Communities

Hutchinson Island v. Arabia, 452 So.2d 1131, 1132 (Fla. 4th DCA 1984). Here, the null and

void lis pendens placed a cloud on the title that did not exist. See Andre Pirio Assocs. v.

Parkmount Properties, Inc., N.V., 453 So.2d 1184, 1186 (Fla. 2d DCA 1984).

32. In this disposed action, the bond is simply mandatory. See Porter Homes, Inc. v. Soda, 540

So.2d 195, 196 (Fla. 2d DCA 1989)(where a lis pendens is not founded upon a lawsuit



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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).

CONTESTED SIGNATURE ON PURPORTED NOTE

33. Here, the signature on the purported note was contested and not authentic. There was no

notarial acknowledgment . See evidence on file.

ALL PLEADINGS WERE SIGNED

34. Here, all of Franklin-Prescott’s pleadings were signed (“/s/ Jennifer Franklin-Prescott”).

NOTICE OF INTERLOCUTORY APPEAL FROM HEARING IN DISPOSED ACTION

35. Here, more than one hearing appeared on the Docket after said 08/12/2010 disposition and

Franklin-Prescott appeals from the unauthorized scheduling of hearings in this disposed

action.

AFFIRMATIVE DEFENSES PRIOR TO DISPOSITION

FIRST AFFIRMATIVE DEFENSE: FAILURE TO PRODUCE ORIGINAL NOTE

36. A person seeking enforcement of a lost, destroyed or stolen instrument must first prove

entitlement to enforce the instrument WHEN the loss of possession occurred, or has directly

or indirectly acquired ownership of the instrument from a person who was entitled to enforce

the instrument when loss of possession occurred. Further, he must prove the loss of

possession was not the result of a transfer by the person or a lawful seizure; and the person

cannot reasonably obtain possession of the instrument because the instrument was destroyed,

its whereabouts cannot be determined, or it is in the wrongful possession of an unknown

person or a person that cannot be found or is not amenable to service of process. 673.3091

Fla. Stat. (2009).

37. Here, Franklin-Prescott had denied the purported “ plaintiff ” has ever had possession of the

alleged note and/or mortgage. Plaintiff could not establish foundation to show possession of

the note WHEN the loss of possession occurred. Plaintiff could not establish that plaintiff

lost possession of the note after it was transferred to the Plaintiff and that it could not

reasonably obtain possession thereof. Absent such proof in this disposed action, plaintiff

had been required by Florida Law to provide the original note and mortgage. Having failed

to provide the original note and mortgage at the time of filing, Plaintiff could not sue and/or

maintain this disposed action.



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38. Here, the Plaintiff could not prove the terms of the instrument and the plaintiff bank’s right to

enforce the alleged instrument . The court may not enter judgment in favor of the person

seeking enforcement unless it finds that the person required to pay the instrument is

adequately protected against loss that might occur by reason of a claim by another person to

enforce the instrument. Fla. Stat. 673.3091(2). In this disposed action, Franklin-Prescott

specifically had been denying all necessary terms of the note are provided in the attached

mortgage/note. Clearly, since the note is missing, necessary endorsements on the note are

missing; as such, essential terms and conditions precedent were not provided by the plaintiff .

UNCLEAN HANDS DEFENSE

39. Prescott had asserted and proven (another affirmative defense) that the plaintiff(s) had failed

to follow Florida law of negotiable instruments and including, e.g., obtaining necessary

signatures, acknowledgments, recordations, assignments, and/or endorsements on the

purported non-authentic promissory note and mortgage deceptively submitted to this Court

as alleged debt evidence. As such, the plaintiff came to this court with unclean hands.

WHEREFORE Jennifer Franklin-Prescott respectfully demands

1. 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;

2. 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;

3. An Order declaring any hearing unauthorized in this disposed action;

4. An Order declaring the prima facie sham “motion” and “affidavits” unlawful in this

previously disputed and disposed action;

5. An Order declaring the purported note and/or mortgage unenforceable;

6. An Order taking judicial notice of the prima facie unenforceability of the unrecorded, un-

assignable, and unpaid mortgage (unpaid mortgage taxes);

7. An Order declaring the purported “ plaintiff ” to be in violation of Fed.R.Civ.P. 1.510 in this

disposed and previously controverted action;

8. 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;



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9. An Order declaring said affidavits “hearsay” and lacking any legal and/or factual basis in

the absence of any authentic “note” and/or mortgage;

10. 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;

11. An Order prohibiting Counsel and/or Jason M. Tharokh, Esq., who did not file any notice

from appearing in this disposed action.

Respectfully,

/s/ Jennifer Franklin-Prescott , BankUnited foreclosure fraud victim

ATTACHMENTS

Docket, et al.

CERTIFICATE OF SERVICEI hereby certify that a true and correct copy of this NOTICE IN DISPOSED ACTION has been

delivered to BankUnited, Albertelli Law, P.O. Box 23028, Tampa, FL 33623, USA, the Clerk of

Court, and Hon. Hugh D. Hayes, Courthouse, Naples, FL 34112, USA, on February 12, 2011,

Pacific Time.

Respectfully,

/s/Jennifer Franklin Prescott, fraud victim

CC: Hon. Hugh D. Hayes (Disposition Judge),Albertelli Law

United States District Court

The Florida Bar New York Times

[email protected], [email protected],[email protected], [email protected],

[email protected], [email protected] …



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Case Information Printer Friendly Version

Style: BANKUNITED vs FRANKLIN-PRESCOTT, JENNIFER

Uniform Case Number: 112009CA0060160001XX Filed: 07/09/2009

Clerks Case Number: 0906016CA

Court Type: CIRCUIT CIVIL Disposition Judge: HAYES, HUGH D

Case Type: MORTGAGE FOR ECLOSURES Disposed: 08/12/2010

Judge: HAYES, HUGH D Reopen Reason:

Case Status: DISPOSED Reopened:Next Court Date: Reopen Close:

Last Docket Date: 02/08/2011 Appealed:

Parties

Dockets

Events

Financials

Docket Type Judge Court Date Court Time

MOTION HEARING HAYES, HUGH D 12/06/2010 13:30

MOTION HEARING PEREZ-BENITOA, MAGISTRATE 09/02/2010 11:30

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2/12/2011 Public Inquiry

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Parties

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2 of 2 pages. Entries per page: 60

Date Text All Entries

09/01/2010 OBJECTION TO MAGISTRATE

09/02/2010 CANCELLED

09/02/2010 MINUTES - HEARING SEE SCHEDULE MINUTES FOR DETAILS

09/02/2010 RECEIPT FROM DCAACKNOWLEDGMENT OF NEW CASE FILED W/DCA 8/18/10 2D10-4158

09/02/2010 ORDER BY DCAAPPELLANT SHALL WITHIN 15 DAYS SHALL FILE AN AMENDED APPEAL

09/02/2010 ORDER BY DCAAPPELLANT SHALL FORWARD FILING FEE OR ORDER OF INSOLVENCY WITTHIN40 DAYS

09/02/2010 ORDER BY DCA APPELLANT SHALL SHOW C AUSE WITHIN 15 DAYS

09/02/2010 NOTICE OF LACK OF JURISDICTION


09/02/2010 NOTICE NOTICE OF LACK OF JURISDICTION

09/02/2010 NOTICE

09/02/2010 MOTION FOR RECUSAL

09/02/2010 NOTIC E IN SUPPORT OF HUGH HAYES RECUSAL






09/07/2010 ORIGINAL SENATE STAFF RECORD EVIDENCE IN SUPPORT OF SANCTIONS

09/07/2010 NOTICE OF LACK OF JUSIDICTION

09/07/2010 REQUEST FOR JUDICIAL NOTICE

09/07/2010 NOTIC E OF AUTOMATIC DISSOLUTIO N OF LIS PENDENS

09/07/2010 REQUEST FOR JUDICIAL NOTICE






09/14/2010 NOTIC E OF APPEAL AMENDED NOTICE OF APPEAL 2D10-4158

09/14/2010 COPY CORRESPONDENCE TO 2ND DCA W/ATTACHMENTS

09/15/2010 NOTIC E OF APPEAL AMENDED NOTICE OF APPEAL 2D10-4158

09/15/2010 COP Y AMENDED NOTIC E OF APPEAL TITLED TO 2ND DCA

09/15/2010 CORRESPONDENCE FROMAPPEAL CLERK TO DCA W/CERTIFIED COPY AMENDED NOTICE OF APPEAL2D10-4158

09/16/2010 CORRESPONDENCE FROMAPPEAL CLERK TO DCA W/CERTIFIED COPY AMENDED NOTICE OF 2ND AMENDEDNOTICE OF APPEAL

09/16/2010 DEMAND FOR FINAL ORDER

10/04/2010 ORDER BY DCATHIS APPEAL DISMISSED BECAUSE APPELLANT FAILED TO COMPLY WITH THISCOUR TS ORDER OF 8/31/10 R EQUIR ING A COPY OF ORDER APPEALED

10/25/2010 ORDER BY DCA THIS APPEAL IS DISMISSED

11/12/2010 NOTICE OF HEARING

11/12/2010 NOTIC E OF FILING AFFIDAVIT OF ATTORNEY FEES

11/12/2010 AFFIDAVIT AS TO ATTORNEYS FEES

12/02/2010 NOTIC E OF FILING ORIGINAL NOTE & ORIGINAL MORTGAGE

12/03/2010 MOTIONTO CANCEL UNAUTHORIZED HEARING IN DISPOSED ACTION MOTION FORJUDICIAL NOTICE / BY JENNIFER FRANKLIN-PRESCO

12/06/2010 CORRESPONDENCE FROM COUNSEL TO CLERK

12/06/2010 MOTION TO CANCEL HEARING

12/06/2010 OBJECTION TO& MOTION TO COMPEL & QUIET TITLE BY JENNIFER FRANKLIN-PRESCOT

12/06/2010 NO APPEARANCE BY THE PARTIES

12/06/2010 MINUTES - HEARING SEE SCHEDULE MINUTES FOR DETAILS

12/07/2010 NOTIC E OF CANCELLATION 12/06/10 @ 3:00 MOTION FOR SUMMARY JUDGMENT

12/08/2010 OBJECTION TO HEARING BY JENNIFER FRANKLIN PRESCOTT

12/08/2010 OBJECTION TOSTATUS OF DISPOSITION JUDGE & RECUSAL MOTION BY JENNIFER FRANKLINPRESCOTT

12/17/2010 NOTIC E OF FRAUD & LOSS BY JENNIFER FRANKLIN-PRESCOTT

12/17/2010 MOTIONTO CANCEL UNAUTHORIZED HEARING IN DISPOSED ACTION BY JENNIFER FRANKLIN

PRESCO12/20/2010 OBJECTION TO

(EMERGENCY) TO PURPORTED NOTE IN DISPOSED ACTION & UNNOTICED & UNAUTHORIZED HEARING IN FRAUD ON COUR T C ASE BASED ON DEFENDANT ET AL

12/22/2010 NOTIC E OF FILING ORIGINAL LOAN MODIFICATION AGREEMENT

01/04/2011 OBJECTION TO FRAUD ON THE COURT BY JENNIFER FRANKLIN-PRESCOTT

01/12/2011 NOTIC E OF DROPP ING PARTY JOHN DOE/JANE DOE

01/12/2011 MOTION FOR SUMMARY JUDGMENT

01/12/2011 AFFIDAVIT AS TO AMOUNTS DUE

01/12/2011 AFFIDAVIT AS TO ATTORNEYS FEES

02/01/2011 COPY

(FAX) NOTICE OF OPPOSITION & OPPOSITION EVIDENCE/FRAUD EVIDENCE & UNAVAILABILITY IN DISPOSED ACTION/NOTIFICATION OF COURT & CLERK ET AL

02/07/2011 NOTICEOF FRAUDULENT AFFIDAVITS BY JASON M TAROKH ESQ & OF UNLAWFUL/UNAUTHORIZED ACT BY ALBERTELLI LAW (UNSIGNED)

02/08/2011 NOTICE OF HEARING02/22/11 @10:00A.M., DEFENDANT'S MOTION TO DISMISS/MOTION TO ENJOIN

02/08/2011 AMENDED NOTIC E OF HEARING02/14/11 @3:30P.M. AMENDED MOTIONFOR SUMMARY JUDGMENT AND FORATTORNEY FEES AGAINST PEDRO LUIS LICOURT

02/08/2011 AMENDEDMTOIN FOR SUMMARY JUDGMENT AND FOR ATTORNEY FEES AGAINST PEDRO LUISLICOURT

02/09/2011 DEMANDOF FORENSIC REVIEW & AUDIT AND NOTICE OF FRAUDULENT AND/OR INACCURATEACCOUNTING IN DISPOSED ACTION
















Parties

Dockets

Events

Financials

Name Type DOB City, State, Zip

BANKUNITED PLAINTIFF

BANKUNITED FSB PLAINTIFF

PASKEWICZ, SERENA KAY ESQ PLAINTIFF'S ATTORNEY MIAMI, FL 33134

ROSE, ERIN M ESQ PLAINTIFF'S CO-COUNSEL TAMPA, FL 33623

FRANKLIN-PRESCOTT, JENNIFER DEFENDANT

PRESCOTT, WALTER DEFENDANT

DOE, JOHN DEFENDANT

DOE, MARY DEFENDANT

Wedne sday night is regular ma intenance time on our se rvers; as a result brief outages may occur.We apologize in advance for any inconvenience.

Home | Site Map | Search | Disclaimer | Privacy Statement | FAQs | Contact Us

This website is ma intained by The Collier County Clerk of the Circuit Court. Under Florida law, em ailaddresse s are public records. If you do not want your email address released in response to a publicrecords request, do not send email to this entity. Instead, contact this office by phone or in writing.




NOTICE OF OBJECTION TO ANY HEARING & MAGISTRATE IN DISPOSED ACTION

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