Senate Staff Record Evidence in Support of Sanctions

8/8/2019 Senate Staff Record Evidence in Support of Sanctions

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IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT

IN AND FOR COLLIER COUNTY, FLORIDA

BANKUNITED,

as [purported]successor in interestto [LAWFULLY SEIZED] BANKUNITED, FSB.,

purported plaintiff

vs. DISPOSED CASE NO.: 09-6016-CA

JENNIFER FRANKLIN-PRESCOTT, et al.

___________________________________________________________________________/

SENATE STAFF RECORD EVIDENCE IN SUPPORT OF SANCTIONS

AGAINST ALBERTELLI LAW & CAMNER LIPSITZ,

SENATE STAFF ANALYSIS AND ECONOMIC IMPACT STATEMENT, SB 282

FLORIDA SENATE STAFF ANALYSIS, SB 282

1. Florida [then] Senator William Bill Posey sponsored SB 282. Senate Staff analyzed the

effect of said Bill, 02/02/2004:

The bill [SB 282], however, may not rejectthe result in State Street Bank and Trust

Co. v. Lord, 851 So. 2d 790 (Fla. 4th DCA 2003). A person seeking to enforce a lostnegotiable instrument will still have to prove that the person has acquired the right

to enforce the lost instrument. In order to prove that a person has acquired ownershipof a lost negotiable instrument, including the right to enforce the lost instrument, the

person will likely have to prove WHO owned the instrument WHEN the instrument

was lost. According to State Street, the assignee of a lost note did not produceevidence showing WHICH prior assignor lost the note. State Street, 851 So. 2d at

792.

Here, said Florida Senate analysis was further conclusive evidence of the fraud on the

Court in this disposed Case. Because of the lawful seizure, F.D.I.C., of BankUnited, FSB,

BankUnited, e.g.:

a. Had no rightto enforce any note; b. Had noright to sue Jennifer Franklin Prescott.

c. Was not anyproper party;

d. Had nostanding.


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AUTOMATIC DISSOLUTION OF lis pendens NOTICE, AND

DEMAND FOR RECORDING UNDER RULE 1.420(f), FLA.R.CIV.P.

2. NOTICE IS HEREBY GIVEN that the notice of lis pendens connected with the 08/12/2010

Final Disposition was automatically dissolved at said time pursuant to Rule 1.420 (f),

Fla.R.Civ.P. Here, the notice, stipulation, or order shall be recorded. WHEREFORE,

Jennifer Franklin Prescott demands that the NOTICE OF AUTOMATIC DISSOLUTION

OF [FRAUDULENT] lis pendens, Rule 1.420 (f), be recorded accordingly. See attached

Docket.

FAILURE TO COMPLY WITH STATUTES AND STATE A CAUSE OF ACTION

3. If a party is not in possession of the original note and cannot reestablish it, the party cannot

prevailin an action on the note. In Dasma Investments, LLC v. Realty Associates Fund III,

L.P., 459 F.Supp.2d 1294 (S.D.Fla.2006) the court explained that in Florida a promissory

note is a negotiable instrumentand that a partysuing on a promissory note, whether just on

the note itself or together with a foreclose on a mortgage securing the note, must be in

possession of the original of the note orreestablish the note pursuant to Fla. Stat. 673.3091.

Shelter Dev. Group, Inc. v. Mma of Georgia, Inc., 50 B.R. 588, 590 (Bkrtcy. S.D. Fla.1985).

LAWFULLY SEIZED BANKUNITEDS FAILURE TO COMPLY WITH CH. 673, F.S.

4. A party must comply with section 673.3091, Florida Statues, in order to enforce a lost,

destroyed orstolennegotiable instrument. Here, lawfully seized BankUnited, FSB [F.D.I.C.

seizure]

a. FAILED to state that the creditors everreceived possession of any original promissorynote;

b. FAILED tostate a cause of action;

c. FAILED tosatisfy the conditions precedentto sue, Ch. 673, Florida Statutes;

d. COULD NOTpossibly have complied withsection 673.3091, Florida Statues.

RECORD LACK OFpromissory note


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5. The original document that is generally required to be filed with the court in a mortgage

foreclosure proceeding is the promissory note, not the mortgage. The Evidence Code

provides the rationale for this conclusion. Section 90.952, Florida Statutes (2002), indicates

that original documents are required to prove the contents of a writing.

6. A promissory note is a negotiableinstrumentwithin the definition of section 673.1041(1),

and either the original must be produced, or the lost document must be reestablishedunder

section 673.3091, Florida Statutes (2002). See Mason v. Rubin, 727 So. 2d 283 (Fla. 4th

DCA 1999); see also Downing v. First Nat'l Bank of Lake City, 81 So. 2d 486 (Fla. 1955);

Thompson v. First Union Nat'l Bank, 673 So. 2d 1179 (Fla. 5th DCA 1994); Figueredo v.

Bank Espirito Santo, 537 So. 2d 1113 (Fla. 3d DCA 1989).

LAWFULLY SEIZED BANKUNITED HAD NO right to the payment of money

7. Here, no writing on file evidenced any right to the payment of money by lawfully seized

bankrupt bankBankUnited, FSB, Ch. 673, Florida Statutes.

JENNIFER FRANKLIN PRESCOTT DEMANDED PROTECTION FROM FRAUD

8. Because it is negotiable, the promissory note must be surrendered in a foreclosure

proceedingso that it does not remain in the stream of commerce. Indeed, if the foreclosing

party alleges that the note is lost,destroyed orstolen, the trial court is authorized by statute

to take the necessary actions to protect the party purportedly required to pay the note against

loss that might occur by reason of a claim by another party to enforce the instrument. See

section 673.3091(2), Fla. Stat. (2002).

9. A mortgage is the security for the payment of the negotiable promissory note, and is a mere

incident of and ancillary to such note.

08/12/2010 FINAL DISPOSITION FOR LACK OF proper plaintiff

LAWFULLY SEIZED BANKUNITED, FSB, HAD NO interest& NOstanding


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10. Here, the admittedloss, the time and manner of which was unknown, was

a. the result of a transfer orlawful seizure, [F.D.I.C.], Ch. 673, Florida Statutes;

b. precluded any establishmentof any agreementand/orbreach of contract.

BUSTED BANKUNITED FAILED ITS BURDEN

11. Here, the burden was on lawfully seized BankUnited, i.e., the party seeking to enforce the

lost instrument. See 673.3091(2), Fla. Stat. (2008).

PROVEN INVALIDITY OF RECORD

12. Furthermore here, the invalidity had been proven in the pleadings, Fla. Stat. 673.3081

(2008).

13. A court will not enforce an instrument unless the defendant will be adequately protected

against future claims on the lostnote. Perry v. Fairbanks, 888 So.2d 725, 727, (Fla. 5d DCA

2004).

14. Here, lawfully seized BankUnited FSB, did not have standingto bringand/ormaintain any

mortgage foreclosure action against Jennifer Franklin Prescott, because it had proven on the

record that it did not holdany note and /ormortgage. Here, said admitted and knownnon-

holderof any note had nostandingto seek any enforcementof the fictitious note.

LAWFUL SEIZURE, FDIC, OF BANKUNITED, FSBS PROPERTY & NOTES

15. The property of bankrupt BankUnited, FSB, was lawfullyseized, Ch. 673, Florida

Statutes. Here in particular, any and all notes and mortgages in the name of failed

BankUnited, FSB, were lawfully seized. Here, lawfully seizedBankUnited, FSB:

a. was not aproper party to bringthis facially fraudulentaction;b. failed tostate a cause of action;

c. could never, under any circumstances, be the proper plaintiffto bring any foreclosureaction against Jennifer Franklin Prescott.

LAWFUL SEIZURE OF BUSTED BANKUNITED, FSB


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16. The admittedloss of the fictitiouspromissory note was due to lawful seizure ofbankrupt

BankUnited, FSB, and/ortransfer. Here, lawfully seizedBankUnited was not entitled to

enforce the fictitiousnote.

SEIZED BANKUNITED FAILED TO COMPLY WITH CONDITION PRECEDENT

17. Here, lawfully seized BankUnited could not havepossiblysatisfiedthe absolutelyrequired

condition precedent, Ch. 673, Florida Statutes.

FRAUDULENT & FALSE PRETENSES - MATERIAL MISREPRESENTATION

18. BankUnited, FSB, fraudulently pretended:

9. On February 15, 2006, Franklin Prescott executed and delivered a promissorynote to Bankunited Complaint, p. 3.

Here on 02/15/2006, BankUnited had not even legally existed.

16.Plaintiff owns and holds the note and mortgage. Complaint, p. 5.

6. Said [fictitious ] promissory note and mortgage have been lostordestroyedand

are notin the custody or control of BankUnited, and the time and mannerof the lossor destruction is unknown. Complaint, p. 3.

Here, bankrupt BankUnited did notholdorown any note and mortgage. Here, any and

all notes and mortgages had been seized by a U.S Agency. Here, there was fraud on the

Court, Fla. R. Civ. P. 1.540.

THIS COURTS AUTHORITY TO SANCTION SEIZED BANKS ATTORNEY(S)

19. This court has ample authority to sanction lawyers and lenders asserting improper and

facially fraudulentforeclosure claims. Here, Federal Agents had lawfully seized bankrupt

BankUnited, FSB. This courts authority to sanction crooked attorneys is explicit in Florida

law and implicit in the courts' inherent power to sanction bad faith litigation.

20. Any party seeking toforeclose a mortgagewithout a good faith belief in the facts giving rise

to the asserted claim may be sanctioned upon the court's initiative. 57.105(1), Fla. Stat.


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21. This statute affords judges the authority to immediately impose significant penalties for

bringing unfounded litigation. See Moakely v. Smallwood, 826 So. 2d 221, 223 (Fla. 2002),

citing United States Savings Bank v. Pittman, 80 Fla. 423, 86 So. 567, 572 (1920)

(sanctioning attorney foracting in bad faith in a mortgage foreclosure sale).

CONFIRMED CANCELLATION

22. On 09/02/2010, at 11:20 AM, the Clerk inside Hearing Room 4-1, Naples Courthouse, and

Bailiff D. Chenoweth confirmed the cancellation of the unauthorized hearing before

judicial imposter Tony Perez and/or Antonio J. Perez-Benitoa.

23. The Court explained that Perez-Benitoa was under contract with this Court for one day

per week. The Court did not disclose Tony Perez credentials.

24. Franklin Prescott contacted the Florida Bar in this matter.

25. Pursuant to the Magistrates Office, Debbie, Supervisor, Melanie [09/02/2010, AM], the

09/02/2010 hearing before judicial imposter Tony Perez was cancelled.

26. Here, the law required use of the legal name of anyjudicial officer. Tony Perez is not any

legal name.

NOTICE OF UNTIMELY notice and entry

27. On the day of the unauthorizedhearing, 09/02/2010, the notice of hearing appeared for

the first time. On 09/01/2010, said notice had not appearedon the Docket.

IMPROPER USE OF NON-LEGAL NAME JUDICIAL IMPOSTER Tony Perez

28. NOTICE IS HEREBY GIVEN of Jennifer Franklin Prescotts cancellation of

unauthorized 09/02/2010 hearing because there was


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a. Non-consent by J. Franklin Prescott;

b. Noorder of referralto any magistrate;c. Nonotice of hearing;

d. Nosetting party of record;

e. Nojurisdiction;

f. Nostanding.

Here, seized and bankrupt BankUnited, FSB, had nostandingand could not havepossibly

been anyparty.

29. Pursuant to the Magistrates Office, Supervisor Debbie, Rose, 239-252-8870

a. Jennifer Franklin Prescott faxed her filed and recorded NOTICE OF NON-CONSENT

and NOTICE OF OBJECTION to the Magistrates Office; b. Jennifer Franklin Prescotts MOTION TO DISMISS is not to be heard in the record

absence of any notice of hearingrequired under the Rules. See Docket of this disposedCase.

30. NOTICE IS HEREBY GIVEN of Jennifer Franklin Prescotts service of NOTICE OF

DISPOSITION AND NON-CONSENT upon the magistrate and/or Antonio J. Perez-Benitoa

at:

a. Magistrates Office, c/o Supervisor Debbie, RoseNaples Courthouse

5th

FloorNaples, FL 34112,

T: 252-8331, F: 252-8870 and

b. Antonio J. Perez-Benitoa, P.A.

900 Sixth Avenue South

Suite 303

Naples, Florida 34102Telephone: 239-430-1884

Fax: 239-30-1885

http://www.tonypblaw.com

31. Jennifer Franklin Prescott, record holder of unencumbered title to the subject property

[address: 25 6th

ST North, Naples, Florida 34102] does not consent and objected to any

referral to any magistrate, hearing officer, and/or special master, Rule 1.490, Florida

Rules of Civil Procedure.


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JENNIFER FRANKLIN PRESCOTTS OBJECTIONS TO ANY magistrate

32. In particular, J. Franklin Prescott objects and did not consentto any magistrate

a. findings of fact;

b. conclusions of law.

MEMORANDUM

A REFERRAL TO A MAGISTRATE REQUIRES THE CONSENT OF ALLPARTIES. JENNIFER FRANKLIN PRESCOTT IS ENTITLED TO HAVE THIS

MATTER HEARD BY A JUDGE AND DOES NOT WANT TO HAVE THISMATTER HEARD BY ANY MAGISTRATE. JENNIFER FRANKLIN PRESCOTT

FILE A WRITTEN OBJECTION TO FICTITIOUS referral PRIOR TO

COMMENCEMENT OF THE HEARING.

Here, no hearingcanpossibly commence.

PUBLICLY RECORDED 08/12/2010 FINAL DISPOSITION

33. On 08/12/2010, Def. Judge Hugh D. Hayes disposed of the fraudulent action.

NO order of referral

34. Here, there were

a. 08/12/2010 Final Disposition;

b. Noorder of referral;c. No notice of any hearing;

d. J. Franklin Prescotts non-consent and objection to any magistrate referraland hearing.

RECORD LACK OF note and mortgage

35. Here, in the recorded absence of any note and/ormortgage, there was

a. Noagreement;

b. Nodebt;


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c. Nolien;

d. No BankUnited interest.

LACK OF TIMELY NOTICE OF ANY hearing

36. Court staff asserted and published:

A party/attorney scheduling a hearing mustconcurrently notice the matter in

conformance with the Florida Rules of Civil Procedure and ensure timely notice is served on all pro se parties and counsel of record in advance of the hearing. The

original notice must be timely filed with the Clerk of Court. The Judges andMagistrates ask that no courtesy copies be sent to their offices on foreclosure cases

only. The setting party/attorney is responsible for preparing and filing the Order of

Referral pursuant to Rule 1.490, Fl. Civil Rules of Court (also can be found at

www.ca.cjis20.org/web/main/magistrates as a reference, no more signed Order of

Referrals from the above website will be accepted). You will be required to submit

your proposed Order of Referral to the appropriate Judge for each hearing in front

of the Magistrate. This will include all hearings for 10, 15 or 30 minutes and

Special Set hearings. (This will also include any Summary/Default Judgment

hearings requesting more than 5 minutes.)

Here, no notice was servedon Jennifer Franklin Prescott. Here, nothing, no matter, and no

hearingwere noticedin violation of the Florida Rules of Civil Procedure.

BANKUNITED, FSBS LACK OFstanding

37. Pursuant to 48.23, Fla. Stat.,

1. A notice oflis pendens must contain the following:

a. The names of the parties.

Here, the fraudulentnotice of lis pendens contained BankUnited, FSB. However here,

said BankUnited was not any note/mortgage holderorparty. Here, U.S. agents had seized

BankUnited, FSB.

38. Furthermore here, Jennifer Franklin-Prescott was mischaracterized as a married woman

and Walter Prescott as her husband. However here, Walter Prescott is not the

husband of Jennifer Franklin Prescott. Here, the notice of lis pendens did not contain the

parties names.


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NOjurisdiction

39. Here, BankUnited, FSB was

a. Not anyparty;

b. Had nointerest;c. Had nostanding.

Here, bankrupt BankUnited, FSB, had nostanding, and this Court has nojurisdiction.

RECORD APPEAL - NOjurisdiction

40. Here after disposition and J. Franklin Prescotts Notice of Appeal, this Court had no

jurisdiction:

NOTICE OF RELEASE & DISCHARGE OF FRAUDULENT lis pendens, CH. 48, F.S.

41. The fraudulent notice of lis pendens, purported INSTR 4318185, Collier County Records,

has been released and discharged. Here admittedly, no note or mortgage could be

established, Ch. 48, 71, F. S. Purported Plaintiff bankrupt BankUnited failed and was

seized. In the record absence of any note ormortgage, said seized banks fraudulentaction

and notice were null & void and did not operateas a lis pendens, Ch. 48.

42. Furthermore, a lis pendens is not effectual for any purpose beyond 1 year from the

commencement of the action and expires, 48.23, Florida Statutes.

43. Here, the pleadings conclusively proved that no action could befoundedon any lost and/or

destroyed note and/or instrument. Therefore, the bankrupt and seized banks non-

meritorious action not possibly affect the subject property, and the court controlled and


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discharged the fraudulent notice oflis pendens, 48.23, Fla. Stat. The Docket showed the

08/12/2010 Final Disposition by Def. Judge Hugh D. Hayes.

08/12/2010 FINAL DISPOSITION, FLA.R.CIV.P. 1.998

44. Hereby, prevailing Jennifer Franklin Prescott filed the Final Disposition Form pursuant to

Florida Rules of Civil Procedure 1.998, 25.075, Florida Statutes. The Docket evidenced

Judge Hugh D. Hayes 08/12/2010 Final Disposition before any hearing.

45. Here, the Docket and official record alterations were

a. Arbitrary and capricious;b. Unlawful.

WHEREFORE, Jennifer Franklin Prescott hereby again demands

1. An Order for the recording of the automatic dissolution of [fraudulent] notice of lis

pendens pursuant to Rule 1.420, Fla.R.Civ.P.;

2. An Order takingjudicial notice, Ch. 92, Fla. Stat., of Ch. 673, Fla. Stat., and the lawful

seizure [F.D.I.C.] ofbusted BankUnited, FSB;

3. An Order takingjudicial notice of Ch. 673, 59, 90, and 92, Fla. Stat.;

4. An Order sanctioning the attorneys of lawfully seized BankUnited, FSB, for their

unfounded and fraudulentaction;

5. An Orderdirecting judicial imposter Tony Perez to use and disclose his legal name.

CERTIFICATE OF SERVICE AND PUBLICATION

I HEREBY CERTIFY that a true and correct copy of the above has been furnished to the

purported non-plaintiff, James E. Albertelli, Erin Quinn Rose, and Erin Rowland, Albertelli Law,

P.O. Box 23028, Tampa, FL 33623, judicial imposter Tony Perez, Magistrates Office, Debbie,

Supervisor, Fax: 239-252-8870, and Defendant Judge Hugh D. Hayes, Naples Courthouse, 3301

E. Tamiami Trail, Naples, FL 34112, on this 3rd

day of September, 2010.

The pleading is also being published worldwide.

________________________

/s/Jennifer Franklin Prescott, Prevailing Victim oflawfully seized BankUniteds record fraud

Senate Staff Record Evidence in Support of Sanctions

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