Counterclaim & Demand for Trial by Jury

8/7/2019 Counterclaim & Demand for Trial by Jury

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IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT

IN AND FOR COLLIER COUNTY, FLORIDA

JENNIFER FRANKLIN-PRESCOTT, 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 FORECLOSUREACTION WAS NEVERAT ISSUE

1. Here, the previously disposed action/complaint was neverat issue, but the court abused its

discretion and set it fornon-jury trial and ordered the defendants to respond after the

unlawfulamended, and then cancelled 02/22/2011 hearing.

MISREPRESENTATION: BENCHTRIAL 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 fornon-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 notready to

be set for trial. Retired robo Judge Monaco has been in the pocket of the bank(s), and the

Court violated said Rule.


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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 notreceive any order; and/or (2) that

without having receivedan 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 ofdue 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. 1

st

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/lostnotes

and mortgages were valid, genuine, enforceable, and ownedby BankUnited.

10. Here, Daniel R. Monaco knew and/orconcealed that, e.g., the missinginstruments were not

enforceable and null & void, and thatthe Court had nojurisdiction.

[IMPOSSIBLE] REESTABLISHMENTDEMANDED JURY TRIAL

11. Count I of the complaint demanded trial by jury [reestablishmentof an alleged destroyed

and/or lost note and mortgage. The time and manner of the loss/destruction were


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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 fordamages forfraud and misrepresentation;

COUNT II: An action to quiet title to certain real property;

COUNT III: A suit seeking damages forbreach of contract; and

COUNT IV: An action fordamages.

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/lostmortgage/note on certain real property

(25 6

TH

Street North Naples, FL), which is in the possession of the defendant

counterclaimants.

15. While the previously disposedwrongful 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


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16. BankUnited deceived the counterclaimants with regard to the true legal ownership and

enforceability of the alleged destroyed and/orlostinstruments. Here asa 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 ofany 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 ofany loan modification agreement as evidenced by the

December 2010 Notice of Filing of Original Loan Modification Agreement on file.

COURTS KNOWN LACK OF JURISDICTION

19. The purported plaintiff, BankUnited, has not alleged facts sufficient to demonstrate that

it invokedand/or could have possiblyinvokedthe 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

mannerof the loss ordestruction is unknown.

BANKUNITED MADE FALSE CLAIMS TO DEFRAUD THE COUNTERCLAIMANTS

20. Purported plaintiff BankUnited does notown and holdany genuinenote 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 1039-

41 (Fla. 3d DCA 1981).

22. Here, BankUnited even pleadedinability to establish holder in due course status because

of the UNKNOWNloss and/ordestruction of the alleged instruments.


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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 ordestroyed and are not in the

custody or control of BankUnited, and the time and manner of the loss ordestruction

is UNKNOWN.

24. Here, there was noevidence as to WHOpossessedthe 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 executednote.

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 notentitled 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 notacquire ownership of the instruments from anyone who was entitledto

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.


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35. Here, there had been seizure and transfer which prohibitedre-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 BankUniteds facially fraudulentaffidavits 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 persons right to enforce the instrument.

40. BankUnited had to, but failed, to prove the terms of the alleged instruments and the

persons right to enforce the alleged instruments.

41. Here, BankUnitedfailed to prove any terms, and the terms of the alleged obligation and/or

instrumentwere vague and ambiguous.

42. Here, Walter Prescott neitherexecutedthe purported notenor 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 notadequately protectedagainst loss and BankUniteds

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 disposedwrongful action was uncontested and allegedly devoid ofgenuine issues

of material fact. See, e.g., Affidavit of Plaintiffs Counsel as to attorneys fees and costs.

b. The Albertelli Law foreclosure mill employed unlawful robo-signers and robo-

signing 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 triedand/oradjudgedunder the Rules and Florida Statutes.


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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 oftitle and/orassignmentof 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 anyrespect 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 theinstrument may be enforced according to its original terms.

(3)A payor bank or drawee paying a fraudulently altered instrument or a person takingit 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 hadknowledge 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'sinterest 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 thecase 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 ordeceptionpracticed by his adversary; keeping the opponent away from court; falsely promisinga 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


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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, BankUniteds and Daniel R. Monacos conduct were collateral to the allegations,

exhibits, and issues complained of.

51. Retiredtemporary Judge D. R. Monaco had noauthority to, e.g.:

a. overturn the 08/12/2010 disposition by [Disposition] Judge Hugh D. Hayes in the

absence of the courts 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 Monacos 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 mustbe 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 NEVERAT 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 notready to


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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 notreceive any order; and/or (2)

that without having receivedan 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).


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63. Fraud is a compulsory counterclaim to an action in foreclosure on the [here

lost/destroyed] note and/ormortgage. 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 fearfurtherprejudice.

65. To grant any judgment of foreclosure in favor of BankUnited, the Court/Monaco would

have to find, among other things, that said bankownedthe lost/destroyedmortgage/note and

had performedall conditions precedentto enforce the destroyed/missingmortgage/note.

66. However here, BankUnited had asserted the UNKNOWN loss and/ordestruction 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 judgmentin 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

theirfundamentalright 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/holderof the instrument(s)as of thedate of filing suit pursuant to Jeff-Ray Corp. v.


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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 holderand/or

ownerofnorentitledto enforce the destroyed and/ormissinginstruments.

70. BankUnited was not a holderof the lost/destroyed note at the time it wrongfully filed suit

(07/09/2009) or any time thereafter, was not entitledto enforce and/orreestablish 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 neitherstandingnor any real interestand could not have possibly

enforcedthe lost and/ordestroyedinstruments.

72. Here, retired Judge Monaco and BankUnited had actual knowledge of the fraud and lack

ofgood faith prior to the falsely alleged transferfrom BankUnited, FSB to BankUnited,

which precluded BankUnited from claiming holder in due course status.

73. Here, temporary Judge Monaco knew and/orconcealed that Prescott had controverted the

authenticity of the purported note amd that defendant Walter Prescott had notexecutedthe

alleged note pursuant to the evidence on file.

74. Here no mortgage could possibly secure a non-existingobligation.

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 Clerkexceeded the scope of any official capacity.

LACK OF AUTHORITYTO REMOVE 08/12/2010 JUDICIAL DISPOSITION


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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 noauthority to

remove/overturn the 08/12/2010 judicialdisposition record without any legal justification.

78. The Clerk had no judicial authority and was not to practice law at counterclaimantsexpense.

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 notidentify BankUnited as the holderorlender.

80. Albertelli Law and BankUnited also did not attach an assignmentor any otherevidence to

establish that it had purchasedand/oracquiredthe alleged lostnote and mortgage.

81. Here, Albertelli Law concealed that the requiredchain of title was notin evidence.

82. Furthermore, BankUnited did not file any genuine supporting affidavits or deposition

testimony to establish that it owns and holds the alleged lost/destroyednote and mortgage

but re-filed non-authenticcopies of the lost/destroyed instrument(s).

83. Accordingly, the documents before this court and retired robo Judge Monaco at the

22/02/2011unauthorized and cancelledhearingdid not establish BankUniteds standing

to foreclose the destroyed/lostnote and mortgage, Thus, at this point, BankUnited was not

entitledto any trial and any judgment in its favor.


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RECORD LACK OF ADMISSIBLE EVIDENCEIN 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 notenormortgage were assignedand deliveredto BankUnited.

87. Here there was nodelivery of any written assignmentof any instrumentto 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 ofbankrupt and seized

BankUnited, FSB, had alleged unknownloss and/ordestruction of a purported note and/or

mortgage.

89. Here because Alfred Camner was the bankrupt banksfounder, 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 lostagreementand/or instrumentsnotdocumented 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


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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 offraud, 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.


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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 oftrial 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 ofjury 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 nostanding, and could notforeclose and sue.

106. Floridas 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 trialcourt should proceed to try the equitable issue non-jury with appropriate provision

made for a jury trial as to the law issues ifdisposition of the equitable issues does not


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conclude the case. But where the compulsory counterclaim entitles the counter-

claimant to a jury trial on issues which are sufficiently similar or related to the issuesmade 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-reestablishedinstruments 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 jurymay 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 fordamages for fraud and breach of

contract, both of which are common law actions fordamages. Because here the causes of

action were intimately intertwined with the previously disposedequitable foreclosure claim

contained in the complaint, there was no question that the counterclaimants were entitled to


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a jury trial on the issues raised by these counts in advance of any non-jury trial on the

previously disposedequitable matters.

COUNT III- SUIT FOR DAMAGES FOR BREACH OF CONTRACT

110. The counterclaimants are suing forbreach of contract based on BankUniteds 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 (notlegally 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 neverrecorded, and there was no evidence of taxes paid,

which rendered the alleged lostmortgageunenforceable.

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

contractand nonovation.

"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


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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 notprove the substitution of the alleged new contract for the old and did

notshow 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/orinvalid, and the previously disposedforeclosure 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/ordestruction of the alleged

instruments, which could not be reestablishedas 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

events.118. Here, plaintiff BankUnited had failed to state a cause of action, and the court could

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

defenses.


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120. 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 defendantcounter-claimants of theirconstitutionalrights

to trial by jury.

123. Here, the issues and/or affirmative claims involved in the compulsory counterclaim

and/orfraud 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).


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125. Defendants were entitled to a jury trial on issues raised in their compulsory

counterclaim that are common to the previously disposedforeclosure claim. See Hightower

v. Bigoney, 156 So.2d 501 (Fla. 1963); Spring, supra.

126. This court cannot determine the factual issues offraud and misrepresentationwithout

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 08/12/2010dispositionrecord, the prejudice

is especially predictable and the legal issues must be tried by jury. The defendants

demanded recusal forfear of furtherbias.

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 disposedwrongful 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 Dismissafterthe 08/12/2010 disposition.

DEFENDANT COUNTERCLAIMANTS DEMANDED JURY TRIAL

133. Defendant counterclaimants had demandedtrial byjury.


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134. Defendants are entitled to trial by jury on, e.g., Count I of Plaintiffs complaint

(reestablishment of lost instruments).

135. Here, defendants have a fundamentalright to jury trial in Floridas State Courts.

136. 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.


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141. 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 jurytrial upon the alleged lostinstruments. See Staiger v. Greb,

App. 3 Dist., 97 So.2d 494 (1957).

142. Because here, there is nodispute that plaintiff seeks to re-establish lost instruments and

to have a deficiency judgment against the defendants, the defendants are emtitled to

demand a jurytrial.

ANSWER TO COMPLAINT BY BANKRUPT BANKS 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. After said 2010 disposition, the action was neverreopened.

147. 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/destroyedmortgage/note or was entitledto the illegal02/22/2011

hearingand any trial.

148. Here, the plain meaning of the exhibits controlled, evidenced lackofstanding, and was

the basis for a motion to dismiss. Blue Supply Corp. v. Novos Electro Mech., Inc., 990 So.


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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 BankUniteds motion

for summary judgment and were to be denied based on principles ofcollateral estoppel and

res judicata. Here on 08/12/2010, the Court had disposed of BankUniteds 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 attorneys fees and in support thereof state:

152. Paragraph 1 of purported plaintiffs complaint is denied.

153. Paragraph 2 is denied. Here under paragraph 6, said [alleged] promissory note and

mortgage have been lost ordestroyed and are not in the custody or control of BankUnited,

and the time and mannerof the loss ordestruction 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 standingand

rightto foreclose and sue the defendants.

154. Here, no default has and/or could have possiblyoccurred, and nocontractual obligation

existed.

155. Paragraph 3 is denied. Here, BankUnited was never entitled to any action and/or

reestablishmentof any note based on the admissible evidence on file.


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156. Paragraph 4 is denied.


158. Paragraph 6 is admitted and said [purported] promissory note and mortgage have been

lost ordestroyed 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-establishedpursuant to Ch. 673, Florida Statutes

(2010), or any other law, and therefore, BankUnited had no standing and right to

foreclose and sue the defendants.



161. Paragraph 9 is denied. BankUnited is not any successor in interest to BankUnited,

FSB.

162. Paragraph 10 is denied. Here, BankUnited could notenforce and/orreestablish 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 ordestruction is unknown.



165. Paragraph 13 is denied. Furthermore, said paragraph is grammatically in error.

166. Here, paragraph 14 was vague and ambiguous as there were two paragraph 14.

167. 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.


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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 mannerof the loss ordestruction is unknown.

169. Paragraph 16 is denied. Here under Paragraph 6, said [purported] promissory note and

mortgage have been lost ordestroyed and are not in the custody or control of BankUnited,

and the time and mannerof the loss ordestruction 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 standingand

rightto foreclose and sue the defendants.

DISSOLVED LIS PENDENS DUE UNENFORCEABILITY OF LOST INSTRUMENTS

170. Jennifer Franklin-Prescott owns the property at 25 6th

Street North, Naples, Florida 34102.

171. Under Rule 1.420(f), Fla. R. Civ. P. (2010), the improper and unauthorized lis pendens

was automaticallydissolved 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 voidlis pendens placed a non-existentcloud on the title. See Andre

Pirio Assocs. v. Parkmount Properties, Inc., N.V., 453 So.2d 1184, 1186 (Fla. 2d DCA

1984).


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175. In this disposed action, the purported plaintiff frivolously sought to re-establish the

missingnote in COUNT I (Reestablishment of Lost Instruments) of the complaint, which

was impossibleas a matter of law.

176. Franklin-Prescott had filed heranswer(s) and motions to dismiss and proven plaintiffs

lack of standing, which was one of the ultimate affirmative defenses.

177. The record evidence established that plaintiffcould not possiblyre-establish the note and

that no authentic instruments could possibly be proven under the Evidence Code.

178. Paragraphs 17, 18, and 19 are denied.

179. Purported plaintiffBankUnited is not any note owner/holder, had nostanding, and could

notpossibly declaredany amounts due under a lost, destroyed, and/ornon-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.



183. Paragraph 22 is denied as the sentence is incomplete.

184. Paragraph 23 is denied in the record absence of any enforceable instruments.

185. 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 neverproperly obtainedthe lost/destroyedinstruments.

186. BankUnited filed the wrongful suit after the May 2009 seizure of defunct

BankUnited, FSB.


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187. After bankrupt BankUnited, FSB was seized, its troubled founder, Alfred Camner,

Esq., complained of an UNKNOWNloss/destruction of the purported instruments.

188. As founder ofdefunct BankUnited, FSB, Alfred Camnerknew 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/destroyedinstruments.

191. Here, the record had conclusively evidenced the lackof any chain of title.

192. BankUnited was not any real party in interest, did not hold legal title to the

destroyed/missingmortgage and note, and was not the proper party to file suit to foreclose

the alleged mortgage.

193. Here, there was noeffective assignmentfrom BankUnited, FSB to BankUnited or any

legal justification why and how BankUnited could possibly be entitled to enforce the lost

instruments.

194. The destroyed/lostinstruments 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).


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196. 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. Jean-

Jacques, 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, noevidence of an assignmentto BankUnited, noproof

of purchase of the alleged debt nor any otherevidence of an effective transfer. Therefore, the

defendants were entitledto dismissal. Here, noexceptions were invoked.

197. This Court knew ofbinding 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'sstandingto 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 BankUnitedcannotforeclose 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

foreclose.


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200. This Court knew that defendants had demanded indemnification of defendants for

[wrongful] prosecution on the purported destroyed and/orlostinstruments.

201. So far, this Court didnotrequirea 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).

203. 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

organizedbias 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.


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205. Here, the Docket showed Judge Hugh D. Hayes and the lackof any Reopen Reason

after the 08/12/2010 disposition:

206. 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 orpromissory note, or an order, acquittance, or dischargefor money or other property, or an acceptance of a bill of exchange or promissorynote 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 commoncarrier, 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

207. 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 PRESCOTTS 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.


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Franklin-Prescott cannot leave because of said emergency and will therefore be unavailable.

Hereby, Franklin-Prescott gives again notice of herunavailability.

AFFIRMATIVE DEFENSES PRIOR TO DISPOSITION

FIRST AFFIRMATIVE DEFENSE: FAILURE TO PRODUCE ORIGINAL NOTE

209. A person seeking enforcementof a lost, destroyed or stolen instrument must first prove

entitlementto 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/ormortgage and/or that plaintiff was everentitled 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. Plaintiffcould 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 mortgageat the time of filing, plaintiff

could not sue and/ormaintain this disposed action.


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211. Here, the plaintiff could notprove the terms of the instrument and the plaintiff banks

right to enforce the alleged instrument. The court may notenter 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

plaintiffwho 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/orendorsements on

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

Court as alleged debtevidence. As such, the plaintiffcame 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.


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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 fundamentalrights to

defend against BankUniteds fraud on the court.

215. Because here no reasonable person, juror or judge could possibly explain the record

errors, contradictions, and arbitraryacts in this disposed case, Franklin-Prescott cannot

possiblytrustJudge Monaco, said Circuit, and said rocket docket sham proceedings.

WHEREFORE counterclaimantsrespectfully 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 attorneys fees and for all other relief to which counterclaimants prove entitled;

4. An Order dismissing the previously disposed wrongful foreclosure action because

BankUnited had nostandingand failed to state a cause of action;

5. An Ordercanceling any non-jury and/or bench trial;

6. An Orderdeclaringrogue robo Judge Monacos lackof jurisdiction to overturn and/or

remove the 08/12/2010 disposition record after Franklin-Prescotts 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;


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9. An Orderdeclaring 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 entitledto any action and trialforlackofstandingand note in

this disposedcase;

10. An Orderdeclaring the correction of the disposition record unlawful and prejudicial at

Franklin-Prescotts expense;

11. An Orderenjoiningretiredrobo Judge Monaco from any furtherdeliberate deprivations

of Franklin-Prescotts fundamentalFederal and Florida Constitutional rights to own her

property without judicial fraud and fraud on the court;

12. An Ordertaking 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 Orderdeclaring the purported plaintiff in this disposed action without any authority to

sue, foreclose, and/ordemandany paymentfrom Jennifer Franklin Prescott;

15. An Order declaring the cancelled 02/22/2011 hearing unauthorized in this disposed

action;

16. An Order declaring BankUniteds prima facie sham motion(s) and affidavits

unlawful in this previously disputed and disposed action;

17. An Orderdeclaring the purported note and/ormortgageunenforceable;


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18. An Order taking judicial notice of the prima facie unenforceability of the unrecorded,

un-assignable, and unpaid mortgage (unpaid mortgage taxes);

19. An Orderdeclaring the purported plaintiff to be in violation of Fed.R.Civ.P. 1.510 in this

disposed and previously controverted action;

20. An Orderdeclaring the purported 2009 lis pendens invalid on its face and taking judicial

notice of the nullity of the lis pendens and unenforceable mortgage and/ornote;

21. An Orderdeclaring said affidavits hearsay and lacking any legal and/or factual basis in

the absence of any authentic note and/ormortgage;

22. An Ordertaking judicial notice of the lack of any genuine note, plaintiffs proven fraud

on the Court, opposition, opposition evidence, and case law as to this disposed case;

23. An Orderprohibiting Counsel and/or Jason M. Tharokh, Esq., who did not file any notice

from appearingin this disposed action.

Respectfully,

/s/Jennifer Franklin-Prescott, BankUnitedforeclosure 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


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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.

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

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


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


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


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


37/39

From: [email protected]

To:[email protected]; [email protected]

Subject: Fwd: DISPOSED CASE & FRAUDULENT "HEARING", RETIRED TEMP. JUDGE HON. DANIEL R. MONACO

Date: Thu, Mar 3, 2011 3:00 pm

-----Original Message-----

From: Darlene M. Muszynski

To: [email protected]

Sent: Mon, Feb 21, 2011 7:18 am

Subject: RE: DISPOSED CASE & FRAUDULENT "HEARING", RETIRED TEMP. JUDGE HON. DANIEL R. MONACO

We have received various e mails regarding this case. Please be advised that we cannot accept e filing or faxs.

You may submit original documents for filing to:

Collier County Clerk of the Circuit Court

Attn Civil Department3315 Tamiami Trail E Suite #102

Naples, FL 34112-5324

Darlene Muszynski

Assistant Director Civil

(239) 252-2706

[email protected]

From:[email protected][mailto:[email protected]]

Sent: Monday, February 21, 2011 12:22 AM

To:[email protected]; [email protected] ; [email protected]; [email protected];

[email protected] ; [email protected]; [email protected] ; [email protected]; Daniel

Monaco - Circuit Judge; Hugh Hayes - Circuit Judge; [email protected]; Darlene M. Muszynski;

[email protected]; Collierclerk; Sue M. Barbiretti; Jill M. Lennon; Dwight E. Brock; Robert D. St. Cyr;

[email protected]; [email protected]; [email protected]; [email protected];

[email protected]; [email protected]; [email protected]; [email protected]; [email protected]

[email protected]; [email protected]; [email protected]; [email protected]; [email protected];



[email protected]; [email protected]; [email protected]; [email protected]; [email protected];[email protected]; [email protected]; Jan Metcalfe - JA Judge Hugh Hayes

Subject:DISPOSED CASE & FRAUDULENT "HEARING", RETIRED TEMP. JUDGE HON. DANIEL R. MONACO

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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: 02/22/2011 Reopen Close:

Last Docket Date: 02/17/2011 Appealed:

Parties

Dockets

Events

Financials

2 of 2 pages. Entries per page: 80

Date Text All Entries

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 NOTICE OF APPEAL AMENDED NOTICE OF APPEAL 2D10-4158

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

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

09/15/2010 COPY AMENDED NOTICE 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 THIS

COUR 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 NOTIC E OF HEARING

11/12/2010 NOTICE OF FILING AFFIDAVIT OF ATTORNEY FEES

11/12/2010 AFFIDAVIT AS TO ATTORNEYS FEES

12/02/2010 NOTICE 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 CO UNSEL TO CLERK

12/06/2010 MOTIO N TO CANCEL HEARING

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

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2/21/2011 Public Inquiry

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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 MOTIO N FOR SUMMARY JUDGMENT

12/08/2010 OBJECTIO N TO HEARING BY JENNIFER FRANKLIN PRESCOTT

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

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

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

PRESCO

12/20/2010 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 NOTICE 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 MOTIO N 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 NOTIC E OF HEARING02/22/11 @10:00A.M., DEFENDANT'S MOTION TO DISMISS/MOTION TO ENJOIN

02/08/2011 AMENDED NOTICE 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

02/15/2011 NOTICE

OF O BJECTION TO ANY HEARING & MAGISTRATE IN DISPOSED CASE AND OF BEINGBINDING PRECEDENT IN SUPPORT OF 8/12/10 DIPOSITION

02/17/2011 AFFIDAVIT& OR DECLARATORY STATEMENT IN DISPOSED ACTION AS TO LACK OF STANDINGOF BANKUNITED & ITS FRAUD ON THE COURT

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2/21/2011 Public Inquiry

Counterclaim & Demand for Trial by Jury

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