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BANKUNITED,
as [purported] successor in interest to [LAWFULLY SEIZED] BANKUNITED, FSB.,
purported “plaintiff”
___________________________________________________________________________/
MEMORANDUM
Here, neither this Court nor the District Court of Appeal had jurisdiction.
2. The enforcement of lost promissory notes, which are negotiable instruments, is governed by
section 673.3091, Florida Statutes and not section 71.011, which governs enforcement of lost
papers.
3. In State Street Bank and Trust Co., Trustee for Holders of Bear Stearns Mortgage Securities,
Inc. Mortgage Pass-Through Certificates, Series 1993-12 v. Harley Lord, et al., 851 So.2d
790 (Fla. 4th DCA 2003), the Court held that State Street could not maintain a cause of
action to enforce a missing promissory note or to foreclose on the related mortgage in the
absence of proof that it or its assignor ever held possession of the promissory note. Section
4. In Mason v. Rubin, 727 So.2d 2883 (Fla. 4th DCA 1999) the court had previously held that
by section 673.3091, Florida Statutes (1993) and not section 71.011, Florida Statutes (1995).
The court explained that section 71.011, Florida Statutes (1995) provides for establishing lost
documents “except when otherwise provided” — the implication being that section 673.3091,
Florida Statutes (1993) otherwise provides. The court also characterized the provisions of
section 673.3091, Florida Statutes (1993) as “more stringent requirements” than section
5. The Court explained that pursuant to section 90.953, Florida Statutes, (2002), Florida’s code
of evidence, the plaintiff in a mortgage foreclosure must present the original promissory note
because a duplicate of a note is not admissible. Otherwise, the plaintiff must meet the
First Na’tl Bank of Lake City, 81 So.2d 486 (Fla.1955), Nat’l Loan Investors, L.P. v. Joymar
6. In this fraudulent action, there was no evidence as to WHO possessed WHAT purported
note WHEN. See also Slizyk v. Smilack, 825 So.2d 428, 430 (Fla. 4th DCA 2002), Deakter
7. If a party is not in possession of the original note and cannot reestablish it, the party cannot
prevail in 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 instrument and that a party suing on a promissory note, whether just on
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the note itself or together with a foreclose on a mortgage securing the note, must be in
possession of the original of the note or reestablish 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).
8. A party must comply with section 673.3091, Florida Statues, in order to enforce a lost,
destroyed or stolen negotiable instrument. Here, lawfully seized BankUnited, FSB [F.D.I.C.
seizure]
a. FAILED to state that the creditors ever received possession of any original promissory
note;
b. FAILED to state a cause of action;
c. FAILED to satisfy the conditions precedent to sue, Ch. 673, Florida Statutes;
d. COULD NOT possibly have complied with section 673.3091, Florida Statues.
9. 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
10. A promissory note is a negotiable instrument within the definition of section 673.1041(1),
and either the original must be produced, or the lost document must be reestablished under
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.
11. Here, no writing on file evidenced any right to the payment of money by lawfully seized
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JENNIFER FRANKLIN PRESCOTT DEMANDED PROTECTION FROM FRAUD
proceeding so that it does not remain in the stream of commerce. Indeed, if the foreclosing
party alleges that the note is lost, destroyed or stolen, 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
13. A mortgage is the security for the payment of the negotiable promissory note, “and is a mere
14. Here, the admitted loss, the time and manner of which was unknown, was
a. “the result of a transfer or lawful seizure”, [F.D.I.C.], Ch. 673, Florida Statutes;
b. precluded any establishment of any agreement and/or breach of contract.
15. Here, the burden was on lawfully seized BankUnited, i.e., the party seeking to enforce the
16. Furthermore here, the invalidity had been proven in the pleadings, Fla. Stat. § 673.3081
(2008).
17. A court will not enforce an instrument unless the defendant will be adequately protected
against future claims on the lost note. Perry v. Fairbanks, 888 So.2d 725, 727, (Fla. 5d DCA
2004).
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18. Here, lawfully seized BankUnited FSB, did not have standing to bring and/or maintain any
mortgage foreclosure action against Jennifer Franklin Prescott, because it had proven on the
record that it did not hold any note and /or mortgage. Here, said admitted and known non-
holder of any note had no standing to seek any enforcement of the fictitious note.
19. The property of bankrupt BankUnited, FSB, was “lawfully seized“, 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 seized BankUnited, FSB:
20. The admitted loss of the fictitious promissory note was due to lawful seizure of bankrupt
BankUnited, FSB, and/or transfer. Here, lawfully seized BankUnited was not entitled to
21. Here, lawfully seized BankUnited could not have possibly satisfied the absolutely required
“9. On February 15, 2006, Franklin Prescott executed and delivered a promissory
note to Bankunited …” “Complaint”, p. 3.
“16. Plaintiff owns and holds the note and mortgage.” “Complaint”, p. 5.
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“6. Said [fictitious] promissory note and mortgage have been lost or destroyed and
are not in the custody or control of BankUnited, and the time and manner of the loss
or destruction is unknown.” “Complaint”, p. 3.
Here, bankrupt BankUnited did not hold or own 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
23. This court has ample authority to sanction lawyers and lenders asserting improper and
facially fraudulent foreclosure claims. Here, Federal Agents had lawfully seized bankrupt
BankUnited, FSB. This court’s authority to sanction crooked attorneys is explicit in Florida
law and implicit in the courts' inherent power to sanction bad faith litigation.
24. Any party seeking to foreclose a mortgage without 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.
25. 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)
CONFIRMED CANCELLATION
26. On 09/02/2010, at 11:20 AM, the Clerk inside Hearing Room 4-1, Naples Courthouse, and
27. 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.
6
29. Pursuant to the Magistrate’s Office, Debbie, Supervisor, Melanie [09/02/2010, AM], the
30. Here, the law required use of the legal name of any judicial officer. “Tony Perez” is not any
legal name.
31. On the day of the unauthorized hearing, 09/02/2010, the “notice of hearing” appeared for
the first time. On 09/01/2010, said “notice” had not appeared on the Docket.
Here, seized and bankrupt BankUnited, FSB, had no standing and could not have possibly
a. Jennifer Franklin Prescott faxed her filed and recorded NOTICE OF NON-CONSENT
and NOTICE OF OBJECTION to the Magistrate’s Office;
b. Jennifer Franklin Prescott’s MOTION TO DISMISS is not to be heard in the record
absence of any notice of hearing required under the Rules. See Docket of this disposed
Case.
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34. NOTICE IS HEREBY GIVEN of Jennifer Franklin Prescott’s service of NOTICE OF
at:
35. 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
36. In particular, J. Franklin Prescott objects and did not consent to any magistrate
a. findings of fact;
b. conclusions of law.
MEMORANDUM
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PUBLICLY RECORDED 08/12/2010 FINAL DISPOSITION
37. On 08/12/2010, Def. Judge Hugh D. Hayes disposed of the fraudulent action.
NO order of referral
39. Here, in the recorded absence of any note and/or mortgage, there was
a. No agreement;
b. No debt;
c. No lien;
d. No BankUnited interest.
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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 served on Jennifer Franklin Prescott. Here, nothing, no matter, and no
Here, the fraudulent notice of lis pendens “contained” “BankUnited, FSB”. However here,
said BankUnited was not any note/mortgage holder or party. Here, U.S. agents had seized
BankUnited, FSB.
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.
NO jurisdiction
Here, bankrupt BankUnited, FSB, had no standing, and this Court has no jurisdiction.
44. Here after disposition and Jennifer Franklin Prescott’s Notice of Appeal, this Court had no
jurisdiction:
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NOTICE OF RELEASE & DISCHARGE OF FRAUDULENT lis pendens, CH. 48, F.S.
45. 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 or mortgage, said seized bank’s fraudulent action
and notice were null & void and did not operate as a lis pendens, Ch. 48.
46. Furthermore, a lis pendens is not effectual for any purpose beyond 1 year from the
47. Here, the pleadings conclusively proved that no action could be founded on any lost and/or
destroyed note and/or instrument. Therefore, the bankrupt and seized bank’s non-
meritorious action not possibly affect the subject property, and the court controlled and
discharged the fraudulent notice of lis pendens, § 48.23, Fla. Stat. The Docket showed the
48. 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
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WHEREFORE, Jennifer Franklin Prescott hereby again demands
1. An Order taking judicial notice, Ch. 92, Fla. Stat., of Ch. 673, Fla. Stat., and the “lawful
2. An Order taking judicial notice of Ch. 673, 59, 90, and 92, Fla. Stat.;
3. An Order sanctioning the attorneys of lawfully seized BankUnited, FSB, for their
4. An Order directing judicial imposter “Tony Perez” to use and disclose his legal name.
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”, Magistrate’s 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 of lawfully seized BankUnited’s record fraud
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9/5/2010 Public Inquiry
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apps.collierclerk.com/…/Case.aspx?UC… 1/3
9/5/2010 Public Inquiry
06/15/2010 C O RR ESPO NDENCE FR O M C O UNSEL TO GULF C O AST BUSINESS R EVIEW
06/17/2010 LETTER TO GULF C O AST BUSINESS R EVIEW
06/17/2010 NO TIC E O F AC TIO N
TO W ALTER PR ESC O TT/JENNIFER FRANKLIN-PR ESC O TT & ANY AND ALL UNKNO W N
PAR TIES C LAIMING
06/17/2010 AFFIDAVIT O F MAILING MAILED 6/18/10
06/18/2010 C O NFIR MATIO N O F EMAIL R EC EIVED BY GULF C O AST BUSINESS R EVIEW
07/07/2010 AFFIDAVIT O F PUBLIC ATIO N
NO TIC E O F AC TIO N TO W ALTER PR ESC O TT/JENNIFER FR ANKLIN-PR ESC O TT/ANSW ER
W ITHIN 30 DAYS O F FIRST PUBLIC ATIO N 6/25/10
07/09/2010 MO TIO N TO DISMISS BY JENNIFER FR ANKLIN P RESC O TT
07/22/2010 NO TIC E O F SER VIC E MO TIO N TO DISMISS
07/22/2010 MO TIO N TO DISMISS BY JENNIFER FR ANKLIN P RESC O TT /PR O SE
07/22/2010 MO TIO N TO ENJO IN / BY JENNIFER FR ANKLIN-PR ESC O TT -P RO SE
07/22/2010 NO TIC E O F SER VIC E
O F PUBLISHED NO TIC E O F R EC O R D & MO TIO N TO DISMISS
BY DEFENDANT
07/23/2010 MO TIO N FO R C LAR IFIC ATIO N O F C O UNSEL
07/23/2010 MO TIO N TO DISMISS
07/23/2010 MO TIO N TO C LAR IFY ALLEGED PLAINTIFFS PUBLISHED NO TIC E O F R EC O R D FR AUD
08/12/2010 MO TIO N TO DISMISS PR O SE JENNIFER FR ANKLIN P RESC O TT
08/12/2010 BANKR UPTC Y BANKUNITED
08/12/2010 C A48/R EAL PR O PER TY MO R TGAGE FO R EC LO SUR E (PR E 2010) (DISPO SITIO N)
08/17/2010 BANKR UPTC Y BANKUNITED
08/17/2010 NO TIC E
O F BANKR UPT BANKUNITED INC IDENT R EPO R T APP AR ENT FALSIFIC ATIO NS NO TIC E
08/17/2010 NO TIC E O F BANKR UPT BANKUNITED
08/17/2010 NO TIC E O F BANKR UPT BANKUNITED DO C KET ALTER ATIO NS EVIDENC E
08/17/2010 NO TIC E O F BANKR UPT NO N SER VIC E NO TIC E
08/17/2010 NO TIC E
O F BANKR UPT BANKUNITED EMER GENC Y DEMAND TO EXTINGUISH FR AUDULENT
AC TIO N
08/18/2010 NO TIC E O F APP EAL
FR O M ALTER ATIO N O F REC O R D NO O R DER ATTAC HED
NO FEES ENC LO SED
08/20/2010 C O RR ESPO NDENCE FR O M
APP EAL CLEER K TO DC A W /NO TIC E O F AP PEAL
NO FEE INC LUDED
08/20/2010 BILLED APP EAL FILING FEE $150.00
08/26/2010 NO TIC E O F HEARING 9/2/10 @ 11:30 MO TIO NS TO DISMISS & ENJO IN
08/30/2010 NO TIC E O F R ELEASE O F LIS PENDENS FILED BY DEFENDANT
08/30/2010 FINAL DISPO SITIO N FO R M
08/31/2010 NO TIC E
O F R ELEASE & DISC HAR GE O F FRAUDULENT LIS PENDENS BY DEFENENDANT
JENNIFER FR ANKLIN PR ESC O TT
08/31/2010 FINAL DISPO SITIO N FO R M BY DEFENDANT
09/01/2010 NO TIC E O F SER VIC E
09/01/2010 NO TIC E O F SER VIC E
09/01/2010 DEFENDANT NO N C O NTEST TO ANY MAGISTR ATE
09/01/2010 O BJEC TIO N TO MAGISTR ATE
09/01/2010 NO TIC E O F C ANC ELLATIO N O F HEAR ING 9/2/10 FILED BY DEFENDANT
09/01/2010 NO TIC E O F R EC O R DATIO N O F RELEASE O F LIS PENDENS
09/01/2010 NO TIC E O F SER VIC E
O F NO TIC E O F DISPO SITIO N AND NO N C O NTEST TO ANY MAGISTR ATE
09/01/2010 O BJEC TIO N TO MAGISTR ATE
09/02/2010 C ANC ELLED
09/02/2010 MINUTES - HEAR ING SEE SC HEDULE MINUTES FO R DETAILS
09/02/2010 R EC EIP T FR O M DC A
AC KNO W LEDGMENT O F NEW C ASE FILED W /DC A 8/18/10 2D10-4158
09/02/2010 O R DER BY DC A
APP ELLANT SHALL W ITHIN 15 DAYS SHALL FILE AN AMENDED APPEAL
apps.collierclerk.com/…/Case.aspx?UC… 2/3
9/5/2010 Public Inquiry
09/02/2010 O R DER BY DC A
APP ELLANT SHALL FO R W AR D FILING FEE O R O R DER O F INSO LVENC Y W ITTHIN
40 DAYS
09/02/2010 O R DER BY DC A APP ELLANT SHALL SHO W C AUSE W ITHIN 15 DAYS
W e dne sday night is re gular m a inte nance tim e on our se rve rs; as a re sult brie f o utage s m ay o ccur.
W e apologize in advance for any inconve nie nce.
apps.collierclerk.com/…/Case.aspx?UC… 3/3