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BANKUNITED,
as [purported] successor in interest to [LAWFULLY SEIZED] BANKUNITED, FSB.,
purported “plaintiff”
1. 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.
2. Here, the burden was on lawfully seized BankUnited, i.e., the party seeking to enforce the
3. Furthermore here, the invalidity had been proven in the pleadings, Fla. Stat. § 673.3081
(2008).
4. 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).
5. 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.
6. 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:
7. 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
8. 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
10. 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.
11. 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.
12. 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
13. On 09/02/2010, at 11:20 AM, the Clerk inside Hearing Room 4-1, Naples Courthouse, and
14. 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.
3
16. Pursuant to the Magistrate’s Office, Debbie, Supervisor, Melanie [09/02/2010, AM], the
17. Here, the law required use of the legal name of any judicial officer. “Tony Perez” is not any
legal name.
18. 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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21. NOTICE IS HEREBY GIVEN of Jennifer Franklin Prescott’s service of NOTICE OF
at:
22. 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
23. In particular, J. Franklin Prescott objects and did not consent to any magistrate
a. findings of fact;
b. conclusions of law.
MEMORANDUM
5
PUBLICLY RECORDED 08/12/2010 FINAL DISPOSITION
24. On 08/12/2010, Def. Judge Hugh D. Hayes disposed of the fraudulent action.
NO order of referral
26. 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.
31. 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.
32. 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.
33. Furthermore, a lis pendens is not effectual for any purpose beyond 1 year from the
34. 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
35. 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, 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.
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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”, 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 2nd 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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IN THE SUPREME COURT OF FLORIDA
The Florida Bankers Association thanks this Honorable Court for the
Introduction:
association. Its membership is composed of more than 300 banks and financial
institutions ranging in size from small community banks and thrifts, to medium
sized banks operating in several parts of the state, to large regional financial
institutions headquartered in Florida or outside the state. The FBA serves its
resource to all branches and levels of government in addressing those issues which
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SUMMARY OF THE COMMENTS
rule does not effectuate its stated goal of deterring plaintiffs that are not entitled to
enforce the underlying obligation from bringing foreclosure actions. Existing and
standards when the original note is not available, and requires the court to protect
the mortgagor against additional foreclosure actions. In addition, the courts have
claims. This authority is explicit in Florida law and implicit in the courts' inherent
power to sanction bad faith litigation. Finally, the proposed amendment imposes a
powers.
COMMENTS
The rationale for the proposed amendment is set forth in the proposal for
promulgation:
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This rule change is recommended because of the new economic
reality dealing with mortgage foreclosure cases in an era of
securitization. Frequently, the note has been transferred on multiple
occasions prior to the default and filing of the foreclosure. Plaintiff's
status as owner and holder of the note at the time of filing has become a
significant issue in these case, particularly because many firms file lost
note counts as a standard alternative pleading in the complaint. There
have been situations where two different plaintiffs have filed suit on the
same note at the same time. Requiring the plaintiff to verify its
ownership of the note at the time of filing provides incentive to review
and ensures that the filing is accurate, ensures that investigation has been
made and that the plaintiff is the owner and holder of the note. This
requirement will reduce confusion and give the trial judges the authority
to sanction those who file without assuring themselves of their authority
to do so.
With respect and appreciation for the efforts of the Task Force and its
laudable goals, the proposed amendment will not effectuate the reduction of
In actual practice, confusion over who owns and holds the note stems less
from the fact that the note may have been transferred multiple times than it does
from the form in which the note is transferred. It is a reality of commerce that
virtually all paper documents related to a note and mortgage are converted to
electronic files almost immediately after the loan is closed. Individual loans, as
electronic data, are compiled into portfolios which are transferred to the secondary
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The reason "many firms file lost note counts as a standard alternative
file. See State Street Bank and Trust Company v. Lord, 851 So. 2d 790 (Fla. 4th
efficient and less expensive than maintaining the originals in hard copy, which
mortgage foreclosure action will be drawn from the same database that includes
the electronic document and the record of the event of default. The verification,
made "to the best of [the signing record custodian's] knowledge and belief" will not
imposes a strict burden of proof and instructs the court to protect the obligor from
multiple suits on the same instrument. Section 673.3091, Florida Statutes, sets
forth the elements a plaintiff must prove in order to enforce an obligation for which
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A person not in possession of an instrument is entitled to enforce the
instrument if:
b) The loss of possession was not the result of a transfer by the person or
a lawful seizure; and
Once the plaintiff has plead and proved the foregoing, there is an additional
judicial requirement:
The court may not enter judgment in favor of the person seeking
enforcement unless it finds that the person required to pay the
instrument is adequately protected against loss that might occur by
reason of a claim by another person to enforce the instrument.
Adequate protection may be provided by any reasonable means.
any means satisfactory to the court. It commonly takes the form of a provision in
the final judgment stating that to the extent any obligation of the note is later
deemed not to have been extinguished by merger into the final judgment, the
plaintiff has by law accepted assignment of those obligations. In other words, the
1
The legislature amended Section 673.3091, Florida Statutes, in 2004 to address
the issues raised by the State Street court in recognition of the commercial reality
that almost all purchase money notes are electronically stored and assigned in
electronic form.
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plaintiff who enforces a lost or destroyed instrument assumes the risk that a third
party in lawful possession of the original note or with a superior interest therein
based on investigation reasonable under the circumstances--in the facts giving rise
to the asserted claim may be sanctioned "upon the court's initiative." § 57.105(1),
Fla. Stat. This statute, though somewhat underused by our courts, affords judges
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 for acting in
2
The potential for sanctions is in addition to the significant economic deterrence
to bringing unauthorized foreclosure actions. Presuit costs such as title searches
and identification of tenants and/or subordinate lienors, the escalating filing fees
and costs of service (particularly publication service and the concomitant cost of
diligent search if the mortgagor no longer resides in the collateral) significantly
raise the cost of filing a suit in error.
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II. REQUIRING VERIFICATION OF RESIDENTIAL MORTGAGE
FORECLOSURE COMPLAINTS IMPLEMENTS PUBLIC POLICY
WITHIN THE LEGISLATURE'S CONSTITUTIONAL AUTHORITY.
The Task Force Report giving rise to the proposed amendment clearly
courts. The stated purpose—to prevent the filing of multiple suits on the same
note—is clearly a matter of public policy rather than one of court procedure.
condition precedent to access to courts that exceeds the procedural scope of the
action, that requirement is imposed by the legislature. See, e.g., § 702.10, Fla. Stat.
threshold for access to courts, the legislature must exercise its policy-making
authority.
The only other rule of civil procedure which imposes the duty to verify a
petition is a petition for temporary injunction. Fla. R. Civ. P. 1.610. The rationale
for requiring verification there is clear: The petition itself and any supporting
The court's decision is made solely on the evidentiary quality of the documents
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before it. That is not the case here. Verification of the foreclosure complaint will
not relieve the plaintiff seeking to foreclose a residential mortgage of the burden of
proving by competent and substantial evidence that it is the holder of the note
Verification adds little protection for the mortgagor and, realistically, will
not significantly diminish the burden on the courts. The amendment is not needed
or helpful.
CONCLUSION
The Florida Bankers Association recognized the hard work and the laudable
Cases. However, it appears that in the urge to find new ways to address the crisis
facing mortgagors and mortgagees as well as the court system, the Task Force
fashioned a new and ineffectual rule while ignoring the panoply of significant and
Association respectfully requests that this Honorable Court decline to adopt the
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Respectfully submitted,
___________________________
Alejandro M. Sanchez Virginia B. Townes, Esquire
President and CEO Florida Bar No.: 361879
Florida Bankers Association AKERMAN, SENTERFITT
1001 Thomasville Road, Suite 201 420 South Orange Avenue
Suite 201 Suite 1200 (32801)
Tallahassee, FL 32303 Post Office Box 231
Phone: (850) 224-2265 Orlando, FL 32802
Fax: (850) 224-2423 Phone: (407) 423-4000
asanchez@floridabankers.com Fax: (407) 843-6610
virginia.townes@akerman.com
CERTIFICATE OF SERVICE
comments have been served on The Honorable Jennifer D. Bailey, Task Force
Chair, 73 W. Flagler Street, Suite 1307, Miami, Florida 33130-4764, this 28th day
of September, 2009.
___________________________
Virginia Townes, Esquire
Florida Bar No. 361879
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