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Legal Services of Greater Miami, the Florida Justice Institute and Florida Legal Services, Inc; the Housing and Consumer Umbrella
Groups of Florida Legal Services; Legal Services of North Florida, Inc., and North Florida Center for Equal Justice, Inc.; the Florida
Bankers Association; Florida Default Law Group; Ben-Ezra & Katz, P.A; Thomas H. Bateman III and Janet E. Ferris; Henry P. Trawick,
Jr.; and Lisa Epstein. Oral argument was heard in this matter on November 4, 2009. Upon consideration of the Task Force's petition,
the comments filed and responses thereto, and the presentations of the parties at oral argument, we adopt the Task Force's
proposals with minor modifications as discussed below.
First, rule 1.110(b) is amended to require verification of mortgage foreclosure complaints involving residential real property. The
primary purposes of this amendment are (1) to provide incentive for the plaintiff to appropriately investigate and verify its
ownership of the note or right to enforce the note and ensure that the allegations in the complaint are accurate; (2) to conserve
judicial resources that are currently being wasted on inappropriately pleaded ―lost note ‖ counts and inconsistent allegations; (3)
to prevent the wasting of judicial resources and harm to defendants resulting from suits brought by plaintiffs not entitled to enforce
the note; and (4) to give trial courts greater authority to sanction plaintiffs who make false allegations.
Next, the Task Force proposed a new form Affidavit of Diligent Search and Inquiry. In its petition, the Task Force explained that
many foreclosure cases are served by publication. The new form is meant to help standardize affidavits of diligent search and
inquiry and provide information to the court regarding the methods used to attempt to locate and serve the defendant. We adopt
this form as new form 1.924, with several modifications.
The form, as proposed by the Task Force, provides spaces for the affiant to check off, from a list, the various actions taken to
discover the current residence of the defendant and provides a ―catch-all‖ section where the affiant can ―List all additional efforts
made to locate defendant.‖ Additionally, it provides a section where the affiant can describe ―Attempts to Serve Process and
Results.‖ One comment to this form, voiced by several interested parties, was that the form should be signed by the person actually
performing the diligent search and inquiry, likely a process server, and not the plaintiff as the form, as originally proposed, provided.
The Task Force agreed with this comment. Thus, we modify the form to incorporate this change.
Next, although the Task Force stated in its petition that a significant provision of the new form was the ―additional criteria [sic] that
if the process server serves an occupant in the property, he inquires of that occupant whether he knows the location of the
borrower-defendant,‖ the proposed form does not include this provision. The Honorable Thomas McGrady, Chief Judge of the Sixth
Judicial Circuit, raised this point in his comment and suggested the following provision be added to the form: ―I inquired of the
occupant of the premises whether the occupant knows the location of the borrower-defendant, with the following results:
________.‖ Again, the Task Force agreed with this suggestion, and we modify the form to incorporate it.
Finally, section 49.041, Florida Statutes (2009), sets forth the minimum requirements for an affidavit of diligent search and inquiry
and states as follows:
The sworn statement of the plaintiff, his or her agent or attorney, for service of process by publication against a natural person,
shall show:
(1) That diligent search and inquiry have been made to discover the name and residence of such person, and that the same is set
forth in said sworn statement as particularly as is known to the affiant; and
(2) Whether such person is over or under the age of 18 years, if his or her age is known, or that the person's age is unknown; and
(3) In addition to the above, that the residence of such person is, either:
(b) In some state or country other than this state, stating said residence if known; or
(c) In the state, but that he or she has been absent from the state for more than 60 days next preceding the making of the sworn
statement, or conceals himself or herself so that process cannot be personally served, and that affiant believes that there is no
person in the state upon whom service of process would bind said absent or concealed defendant.
§ 49.041, Fla. Stat. (2009). The form as proposed by the Task Force contains the required information, except for a statement
whether the person is over or under the age of eighteen or that the person's age is unknown. Thus, we modify the affidavit form to
include this information.
Finally, we adopt the Task Force's proposed Motion to Cancel and Reschedule Foreclosure Sale as new form 1.996(b). The Task
Force recommended adoption of this new form in which the plaintiff would provide the court with an explanation of why the
foreclosure sale needs to be cancelled and request that the court reschedule the sale. As the reason for this proposal, the Task
Force stated in its petition:
Currently, many foreclosure sales set by the final judgment and handled by the clerks of court are the subject of vague last-minute
motions to reset sales without giving any specific information as to why the sale is being reset. It is important to know why sales
are being reset so as to determine when they can properly be reset, or whether the sales process is being abused. . . . Again, this
is designed at promoting effective case management and keeping properties out of extended limbo between final judgment and
sale.
We adopt this form with minor stylistic and grammatical modifications as suggested in the comments and agreed to by the Task
Force.
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Mark A. Romance, Chair, Civil Procedure Rules Committee, Miami, Florida; Jennifer D. Bailey, Chair, Task Force on Residential
Mortgage Foreclosure Cases, Eleventh Judicial Circuit, Miami, Florida and Alan B. Bookman, Task Force on Residential Mortgage
Foreclosures, Pensacola, Florida; John F. Harkness, Jr., Executive Director, and Madelon Horwich, Bar Staff Liaison, The Florida Bar,
Tallahassee, Florida, for Petitioners.
Henry P. Trawick, Jr., Sarasota, Florida; Virginia Townes of Akerman, Senterfitt, Orlando, Florida on behalf of The Florida Bankers
Association; Marc A. Ben-Ezra of Ben-Ezra and Katz, P.A., Fort Lauderdale, Florida; Carolina A. Lombardi, Marcia K. Cypen, and John
W. McLuskey, Legal Services of Greater Miami, Inc., Miami, Florida, Kendall Coffey and Jeffrey B. Crockett of Coffey Burlington, Llp,
Miami, Florida, Randall C. Berg, Jr. and Joshua A. Glickman, Florida Justice Institute, Inc., Miami, Florida, and Kent R. Spuhler, Florida
Legal Services, Inc., Tallahassee, Florida; B. Elaine New, Court Counsel, on behalf of J. Thomas McGrady, Chief Judge, Sixth Judicial
Circuit, St. Petersburg, Florida; Alice M. Vickers, Florida Legal Services, Inc., Tallahassee, Florida, Lynn Drysdale, Jacksonville Area
Legal Aid, Inc., Jacksonville, Florida, Jeffrey Hearne, Legal Services of Greater Miami, Inc., Miami, Florida, and James R. Carr, Florida
Rural Legal Services, Inc., Lakeland, Florida, on behalf of the Housing Umbrella Group and the Consumer Umbrella Group of Florida
Legal Services, Inc.; Scott Manion, Tallahassee, Florida, on behalf of Legal Services of North Florida, Inc.; Ed ward J. Grunewald,
Tallahassee, Florida, on behalf of The North Florida Center for Equal Justice, Inc.; Thomas H. Bateman, III of Messer, Caparello, and
Self, P.A., Tallahassee, Florida, and Janet E. Ferris, Tallahassee, Florida; Ronald R. Wolfe, Tampa, Florida, on behalf of Florida Default
Law Group, P.L.; Judge William D. Palmer, Chair, Committee on Adr Rules and Policy, Fifth District Court of Appeal, Daytona Beach,
Florida, on behalf of the Supreme Court Committee on Alternative Dispute Resolution Rules and Policy; Lisa Epstein, West Palm
Beach, Florida, Responding with comments.
Per curiam.
Rehearing petition filed: 02/26/2010; Rehearing denied In Light of the Revised Opinion: 06/03/2010
In case number SC09-1460, the Task Force on Residential Mortgage Foreclosure Cases has proposed an amendment to Florida Rule
of Civil Procedure 1.110 (General Rules of Pleading) and two new Forms for Use with Rules of Civil Procedure. In case number SC09-
1579, the Civil Procedure Rules Committee has proposed amendments to form 1.996 (Final Judgment of Foreclosure) of the Forms
for Use with Rules of Civil Procedure. We have consolidated these cases for the purposes of this opinion. We have jurisdiction. See
art. V, § 2(a), Fla. Const.
By administrative order on March 27, 2009, the Task Force on Residential Mortgage Foreclosure Cases (Task Force) was
―established to recommend to the Supreme Court policies, procedures, strategies, and methods for easing the backlog of pending
residential mortgage foreclosure cases while protecting the rights of parties.‖ In re Task Force on Residential Mortgage Foreclosure
Cases, Fla. Admin. Order No. AOSC09-8, at 2 (March 27, 2009) (on file with Clerk of the Florida Supreme Court). The
recommendations could ―include mediation and other alternate dispute resolution strategies, case management techniques, and
approaches to providing pro bono or low-cost legal assistance to homeowners.‖ Id. The Task Force was also specifically asked to
―examine existing court rules and propose new rules or rule changes that will facilitate early, equitable resolution of residential
mortgage foreclosure cases.‖ Id.
In response to this charge, the Task Force has filed a petition proposing amendments to the civil procedure rules and forms.*fn1
After submission to the Court, the proposals were published for comment on an expedited basis. Comments were received from
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Legal Services of Greater Miami, the Florida Justice Institute and Florida Legal Services, Inc; the Housing and Consumer Umbrella
Groups of Florida Legal Services; Legal Services of North Florida, Inc., and North Florida Center for Equal Justice, Inc.; the Florida
Bankers Association; Florida Default Law Group; Ben-Ezra & Katz, P.A; Thomas H. Bateman III and Janet E. Ferris; Henry P. Trawick,
Jr.; and Lisa Epstein. Oral argument was heard in this matter on November 4, 2009. Upon consideration of the Task Force's petition,
the comments filed and responses thereto, and the presentations of the parties at oral argument, we adopt the Task Force's
proposals with minor modifications as discussed below.
First, rule 1.110(b) is amended to require verification of mortgage foreclosure complaints involving residential real property. The
primary purposes of this amendment are (1) to provide incentive for the plaintiff to appropriately investigate and verify its
ownership of the note or right to enforce the note and ensure that the allegations in the complaint are accurate; (2) to conserve
judicial resources that are currently being wasted on inappropriately pleaded ―lost note ‖ counts and inconsistent allegations; (3)
to prevent the wasting of judicial resources and harm to defendants resulting from suits brought by plaintiffs not entitled to enforce
the note; and (4) to give trial courts greater authority to sanction plaintiffs who make false allegations.
Next, the Task Force proposed a new form Affidavit of Diligent Search and Inquiry. In its petition, the Task Force explained that
many foreclosure cases are served by publication. The new form is meant to help standardize affidavits of diligent search and
inquiry and provide information to the court regarding the methods used to attempt to locate and serve the defendant. We adopt
this form as new form 1.924, with several modifications.
The form, as proposed by the Task Force, provides spaces for the affiant to check off, from a list, the various actions taken to
discover the current residence of the defendant and provides a ―catch-all‖ section where the affiant can ―List all additional efforts
made to locate defendant.‖ Additionally, it provides a section where the affiant can describe ―Attempts to Serve Process and
Results.‖ One comment to this form, voiced by several interested parties, was that the form should be signed by the person actually
performing the diligent search and inquiry, likely a process server, and not the plaintiff as the form, as originally proposed, provided.
The Task Force agreed with this comment. Thus, we modify the form to incorporate this change.
Next, although the Task Force stated in its petition that a significant provision of the new form was the ―additional criteria [sic] that
if the process server serves an occupant in the property, he inquires of that occupant whether he knows the location of the
borrower-defendant,‖ the proposed form does not include this provision. The Honorable Thomas McGrady, Chief Judge of the Sixth
Judicial Circuit, raised this point in his comment and suggested the following provision be added to the form: ―I inquired of the
occupant of the premises whether the occupant knows the location of the borrower-defendant, with the following results:
________.‖ Again, the Task Force agreed with this suggestion, and we modify the form to incorporate it.
Finally, section 49.041, Florida Statutes (2009), sets forth the minimum requirements for an affidavit of diligent search and inquiry
and states as follows:
The sworn statement of the plaintiff, his or her agent or attorney, for service of process by publication against a natural person,
shall show:
(1) That diligent search and inquiry have been made to discover the name and residence of such person, and that the same is set
forth in said sworn statement as particularly as is known to the affiant; and
(2) Whether such person is over or under the age of 18 years, if his or her age is known, or that the person's age is unknown; and
(3) In addition to the above, that the residence of such person is, either:
(b) In some state or country other than this state, stating said residence if known; or
(c) In the state, but that he or she has been absent from the state for more than 60 days next preceding the making of the sworn
statement, or conceals himself or herself so that process cannot be personally served, and that affiant believes that there is no
person in the state upon whom service of process would bind said absent or concealed defendant.
§ 49.041, Fla. Stat. (2009). The form as proposed by the Task Force contains the required information, except for a statement
whether the person is over or under the age of eighteen or that the person's age is unknown. Thus, we modify the affidavit form to
include this information.
Finally, we adopt the Task Force's proposed Motion to Cancel and Reschedule Foreclosure Sale as new form 1.996(b). The Task
Force recommended adoption of this new form in which the plaintiff would provide the court with an explanation of why the
foreclosure sale needs to be cancelled and request that the court reschedule the sale. As the reason for this proposal, the Task
Force stated in its petition:
Currently, many foreclosure sales set by the final judgment and handled by the clerks of court are the subject of vague last-minute
motions to reset sales without giving any specific information as to why the sale is being reset. It is important to know why sales
are being reset so as to determine when they can properly be reset, or whether the sales process is being abused. . . . Again, this
is designed at promoting effective case management and keeping properties out of extended limbo between final judgment and
sale.
We adopt this form with minor stylistic and grammatical modifications as suggested in the comments and agreed to by the Task
Force.
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Case No. SC09-1579
In this case, the Civil Procedure Rules Committee has filed an out-of-cycle report under Florida Rule of Judicial Administration
2.140(e), proposing amendments to Florida Rule of Civil Procedure Form 1.996 (Final Judgment of Foreclosure). The Committee
proposes amendments to this form in order to bring it into conformity with current statutory provisions and requirements. The
Committee's proposal also includes several changes suggested by The Florida Bar's Real Property, Probate, and Trust Law Section
to improve the form's clarity and readability and better conform to prevailing practices in the courts.*fn2 Upon consideration, we
adopt the proposed amendments to form 1.996, with one exception, as further explained below.
First, to conform to current statutory requirements, a notice to lienholders and directions to property owners as to how to claim a
right to funds remaining after public auction is added to the form. See § 45.031(1), Fla. Stat. (2009). Additionally, to conform to
current statutory provisions allowing the clerk of court to conduct judicial sales via electronic means, the form is amended to
accommodate this option. See § 45.031(10), Fla. Stat. (2009).
Other amendments are as follows: (1) in order to provide greater clarity and prevent errors, paragraph one of the form is amended
to set out amounts due in a column format; (2) paragraph two is amended to allow for the possibility that there may be more than
one defendant, and out of concern for privacy interests, the lines for an address and social security number are deleted; (3)
paragraph four is amended to conform to existing practice and require a successful purchaser to pay the documentary stamps on
the certificate of title; (4) paragraph six is amended to accommodate the possibility that there may be multiple defendants, to adapt
to the requirements of section 45.0315, Florida Statutes (2009), stating that the right of redemption expires upon the filing of the
certificate of sale, unless otherwise specified in the judgment, to recognize the potential survival of certain liens after foreclosure as
provided in chapter 718 (the Condominium Act) and chapter 720 (Homeowners' Association), Florida Statutes (2009), and to allow a
purchaser to obtain a writ of possession from the clerk of court without further order of the court.*fn3 As noted, these amendments
were suggested to the committee by The Florida Bar's Real Property, Probate, and Trust Law Section to improve the form's clarity
and readability and better conform to prevailing practices in the courts.
However, one of the changes suggested by the Real Property, Probate, and Trust Law Section and incorporated by the committee
into its proposal was the addition of a new paragraph stating that a foreclosure sale shall not begin until a representative of the
plaintiff is present and that the plaintiff has the right to cancel the sale upon notice to the clerk. Obviously, including such a
provision, as standard, in the final judgment of foreclosure form would be at odds with our adoption of new form 1.996(b) (Motion to
Cancel and Reschedule Foreclosure Sale). Accordingly, we decline to adopt this particular amendment. Also, in light of our adoption
of the Motion to Cancel and Reschedule Foreclosure Sale as new form 1.996(b), we renumber the Final Judgment of Foreclosure
Form as form 1.996(a).
Conclusion
Accordingly, the Florida Rules of Civil Procedure and the Forms for Use with Rules of Civil Procedure are hereby amended as set forth
in the appendix to this opinion. New language is underscored; deleted language is struck through. Committee notes are offered for
explanation only and are not adopted as an official part of the rules. The amendments shall become effective immediately upon the
release of this opinion. Because the amendments to form 1.996(a) (Final Judgment of Foreclosure) were not published by the Court
for comment prior to their adoption, interested persons shall have sixty days from the date of this opinion in which to file comments,
on those amendments only, with the Court.*fn4
It is so ordered.
QUINCE, C.J., and PARIENTE, LEWIS, LABARGA, and PERRY, JJ., concur. CANADY, J., concurs in part and dissents in part with an
opinion, in which POLSTON, J., concurs.
Because I am concerned that requiring prior judicial approval for the cancellation of foreclosure sales may produce untoward results,
I dissent from the adoption of form 1.996(b). I would have instead adopted the proposal suggested by the Real Property, Probate,
and Trust Law Section for the addition of a paragraph to the form final judgment of foreclosure stating that a foreclosure sale shall
not begin until a representative of the plaintiff is present and that the plaintiff has the right to cancel the sale upon notice to the
clerk.
APPENDIX
(b) Claims for Relief. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, crossclaim, or third-party
claim, must state a cause of action and shall contain (1) a short and plain statement of the grounds upon which the court's
jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it, (2) a
short and plain statement of the ultimate facts showing that the pleader is entitled to relief, and (3) a demand for judgment for the
relief to which the pleader deems himself or herself entitled. Relief in the alternative or of several different types may be demanded.
Every complaint shall be considered to demand general relief. When filing an action for foreclosure of a mortgage on residential real
property the complaint shall be verified. When verification of a document is required, the document filed shall include an oath,
affirmation, or the following statement: ―Under penalty of perjury, I declare that I have read the foregoing, and the facts alleged
th i t d t t th b t f k l d d b li f ‖
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therein are true and correct to the best of my knowledge and belief.‖
Committee Notes
[no change]
I, (full legal name) _________________________ (individually or an Employee of ____________________), being sworn, certify
that the following information is true:
1. I have made diligent search and inquiry to discover the current residence of ____________________,who is [over 18 years old]
[under 18 years old] [age is unknown] (circle one). Refer to checklist below and identify all actions taken (any additional information
included such as the date the action was taken and the person with whom you spoke is helpful) (attach additional sheet if
necessary):
_____ Voter Registration in the area where defendant was last known to reside.
_____ Tax Collector's records in area where defendant was last known to reside.
_____ Tax Assessor's records in area where defendant was last known to reside
_____ Department of Motor vehicle records in the state of defendant's last known address
_____ Driver's License records search in the state of defendant's last known address.
_____ Department of Corrections records in the state of defendant's last known address.
__________________________________________________________________
__________________________________________________________________
____ I inquired of the occupant of the premises whether the occupant knows the location of the borrower-defendant, with the
following results: ______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
_____ b. _________________________'s current residence is in some state or country other than Florida and
_________________________'s last known address is:
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________________________________________________________
_____ c. The _________________________, having residence in Florida, has been absent from Florida for more than 60 days prior
to the date of this affidavit, or conceals him (her) self so that process cannot be served personally upon him or her, and I believe
there is no person in the state upon whom service of process would bind this absent or concealed ____________________.
I understand that I am swearing or affirming under oath to the truthfulness of the claims made in this affidavit and that the
punishment for knowingly making a false statement includes fines and/or imprisonment.
Signature of Plaintiff
FINAL JUDGMENT
This action was tried before the court. On the evidence presented
IT IS ADJUDGED that:
1. Plaintiff, .....(name and address)....., is due .................... as principal, $.......... as interest to date of this judgment, $.......... for title
search expense, $.......... for taxes, $.......... for insurance premiums, $.......... for attorneys' fees, with $.......... for court costs now
taxed, less $.......... for undisbursed escrow funds and less $.......... for unearned insurance premiums, under the note and mortgage
sued on in this action, making a total sum of $........., that shall bear interest at the rate of .....% a year.
Principal $....................
Taxes ....................
Attorneys' fees
Subtotal $...................
TOTAL $...................
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that shall bear interest at the rate of .....% a year.
2. Plaintiff holds a lien for the total sum superior to anyall claims or estates of defendant(s), .....(name and address, and social
security number if known)....., on the following described property in .................... County, Florida:
(describe property)
3. If the total sum with interest at the rate described in paragraph 1 and all costs accrued subsequent to this judgment are not
paid, the clerk of this court shall sell the property at public sale on .....(date)....., between 11:00 a.m. and 2:00 p.m. to the highest
bidder for cash, except as prescribed in paragraph 45, at the ..... door of the courthouse inlocated at .....(street address of
courthouse)..... in .................... County in .........................(name of city)....., Florida, in accordance with section 45.031, Florida
Statutes., using the following method (CHECK ONE):
□ At .....(location of sale at courthouse; e.g., north door)....., beginning at .....(time of sale)..... on the prescribed date.
4. Plaintiff shall advance all subsequent costs of this action and shall be reimbursed for them by the clerk if plaintiff is not the
purchaser of the property for sale, provided, however, that the purchaser of the property for sale shall be responsible for the
documentary stamps payable on the certificate of title. If plaintiff is the purchaser, the clerk shall credit plaintiff's bid with the total
sum with interest and costs accruing subsequent to this judgment, or such part of it, as is necessary to pay the bid in full.
5. On filing the certificate of title the clerk shall distribute the proceeds of the sale, so far as they are sufficient, by paying: first, all of
plaintiff's costs; second, documentary stamps affixed to the certificate; third, plaintiff's attorneys' fees; fourth, the total sum due to
plaintiff, less the items paid, plus interest at the rate prescribed in paragraph 1 from this date to the date of the sale; and by
retaining any remaining amount pending the further order of this court.
6. On filing the certificate of titlesale, defendant(s) and all persons claiming under or against defendant(s) since the filing of the
notice of lis pendens shall be foreclosed of all estate or claim in the property and the purchaser at the sale, except as to claims or
rights under chapter 718 or chapter 720, Florida Statutes, if any. Upon the filing of the certificate of title, the person named on the
certificate of title shall be let into possession of the property. If any defendant remains in possession of the property, the clerk shall
without further order of the court issue forthwith a writ of possession upon request of the person named on the certificate of title.
7. Jurisdiction of this action is retained to enter further orders that are proper including, without limitation, writs of possession and a
deficiency judgment.
IF THIS PROPERTY IS SOLD AT PUBLIC AUCTION, THERE MAY BE ADDITIONAL MONEY FROM THE SALE AFTER PAYMENT OF PERSONS
WHO ARE ENTITLED TO BE PAID FROM THE SALE PROCEEDS PURSUANT TO THE FINAL JUDGMENT.
IF YOU ARE A SUBORDINATE LIENHOLDER CLAIMING A RIGHT TO FUNDS REMAINING AFTER THE SALE, YOU MUST FILE A CLAIM WITH
THE CLERK NO LATER THAN 60 DAYS AFTER THE SALE. IF YOU FAIL TO FILE A CLAIM, YOU WILL NOT BE ENTITLED TO ANY REMAINING
FUNDS.
[If the property being foreclosed on has qualified for the homestead tax exemption in the most recent approved tax roll, the final
judgment shall additionally contain the following statement in conspicuous type:]
IF YOU ARE THE PROPERTY OWNER, YOU MAY CLAIM THESE FUNDS YOURSELF. YOU ARE NOT REQUIRED TO HAVE A LAWYER OR ANY
OTHER REPRESENTATION AND YOU DO NOT HAVE TO ASSIGN YOUR RIGHTS TO ANYONE ELSE IN ORDER FOR YOU TO CLAIM ANY
MONEY TO WHICH YOU ARE ENTITLED. PLEASE CHECK WITH THE CLERK OF THE COURT, (INSERT INFORMATION FOR APPLICABLE
COURT) WITHIN 10 DAYS AFTER THE SALE TO SEE IF THERE IS ADDITIONAL MONEY FROM THE FORECLOSURE SALE THAT THE CLERK
HAS IN THE REGISTRY OF THE COURT.
IF YOU DECIDE TO SELL YOUR HOME OR HIRE SOMEONE TO HELP YOU CLAIM THE ADDITIONAL MONEY, YOU SHOULD READ VERY
CAREFULLY ALL PAPERS YOU ARE REQUIRED TO SIGN, ASK SOMEONE ELSE, PREFERABLY AN ATTORNEY WHO IS NOT RELATED TO THE
PERSON OFFERING TO HELP YOU, TO MAKE SURE THAT YOU UNDERSTAND WHAT YOU ARE SIGNING AND THAT YOU ARE NOT
TRANSFERRING YOUR PROPERTY OR THE EQUITY IN YOUR PROPERTY WITHOUT THE PROPER INFORMATION. IF YOU CANNOT AFFORD
TO PAY AN ATTORNEY, YOU MAY CONTACT (INSERT LOCAL OR NEAREST LEGAL AID OFFICE AND TELEPHONE NUMBER) TO SEE IF YOU
QUALIFY FINANCIALLY FOR THEIR SERVICES. IF THEY CANNOT ASSIST YOU, THEY MAY BE ABLE TO REFER YOU TO A LOCAL BAR
REFERRAL AGENCY OR SUGGEST OTHER OPTIONS. IF YOU CHOOSE TO CONTACT (NAME OF LOCAL OR NEAREST LEGAL AID OFFICE
AND TELEPHONE NUMBER) FOR ASSISTANCE, YOU SHOULD DO SO AS SOON AS POSSIBLE AFTER RECEIPT OF THIS NOTICE.
Judge
NOTE: Paragraph 1 must be varied in accordance with the items unpaid, claimed, and proven. The form does not provide for an
adjudication of junior lienors' claims nor for redemption by the United States of America if it is a defendant. The address of the
person who claims a lien as a result of the judgment must be included in the judgment in order for the judgment to become a lien
on real estate when a certified copy of the judgment is recorded. Alternatively, an affidavit with this information may be
simultaneously recorded. For the specific requirements, see section 55.10(1), Florida Statutes; Hott Interiors, Inc. v. Fostock, 721
So. 2d 1236 (Fla. 4th DCA 1998). The address and social security number (if known) of each person against whom the judgment is
rendered must be included in the judgment, pursuant to section 55.01(2), Florida Statutes.
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rendered must be included in the judgment, pursuant to section 55.01(2), Florida Statutes.
Committee Notes
1980 Amendment. The reference to writs of assistance in paragraph 7 is changed to writs of possession to comply with the
consolidation of the 2 writs.
2010 Amendment. Mandatory statements of the mortgagee/property owner's rights are included as required by the 2006
amendment to section 45.031, Florida Statutes. Changes are also made based on 2008 amendments to section 45.031, Florida
Statutes, permitting courts to order sale by electronic means.
Additional changes were made to bring the form into compliance with chapters 718 and 720 and section 45.0315, Florida Statutes,
and to better align the form with existing practices of clerks and practitioners. The breakdown of the amounts due is now set out in
column format to simplify calculations. The requirement that the form include the address and social security number of all
defendants was eliminated to protect the privacy interests of those defendants and in recognition of the fact that this form of
judgment does not create a personal final money judgment against the defendant borrower, but rather an in rem judgment against
the property. The address and social security number of the defendant borrower should be included in any deficiency judgment later
obtained against the defendant borrower.
Plaintiff moves to cancel and reschedule the mortgage foreclosure sale because:
1. On this Court entered a Final Judgment of Foreclosure pursuant to which a foreclosure sale was scheduled for , 20 .
b._______ Defendant is negotiating for the sale of the property that is the subject of this matter and Plaintiff wants to allow the
Defendant an opportunity to sell the property and pay off the debt that is due and owing to Plaintiff.
c.________ Defendant has entered into a contract to sell the property that is the subject of this matter and Plaintiff wants to give
the Defendant an opportunity to consummate the sale and pay off the debt that is due and owing to Plaintiff.
d.________ Defendant has filed a Chapter ____ Petition under the Federal Bankruptcy Code;
e.________ Plaintiff has ordered but has not received a statement of value/appraisal for the property;
g.________Other
_____________________________________________________________
3. If this Court cancels the foreclosure sale, Plaintiff moves that it be rescheduled.
I hereby certify that a copy of the foregoing Motion has been furnished by U.S. mail postage prepaid, facsimile or hand delivery to
this ______ day of , 20 .
NOTE. This form is used to move the court to cancel and reschedule a foreclosure sale.
Opinion Footnotes
*fn1 The Task Force also submitted a companion report entitled ―Final Report and Recommendations on Residential Mortgage
Foreclosure Cases.‖ The report urges the adoption of the proposed rule amendments and also contains administrative
recommendations. The main recommendation in the report is the - --approval of a Model Administrative Order for a managed
mediation program for residential mortgage foreclosure actions for use by the chief judges. The report was addressed separately as
an administrative matter. The task forces petition also recommended amendments to form 1.997 (Civil Coversheet). However, the
civil coversheet was the subject of another case, case number SC08-1141, and the Task Force's proposals with regard to the civil
coversheet were addressed in that case. See In re Amendments to Florida Rules of Civil Procedure-Management of Cases Involving
Complex Litigation, 34 Fla. L. Weekly S576 (Fla. Oct. 15, 2009).
*fn2 Prior to submitting this proposal to the Court, the committee published it for comment. One comment was received suggesting
that, in addition to the other amendments proposed by the committee, provisions for specific findings as to the reasonable number
of hours and the reasonable hourly rate for an award of attorneys' fees be added to paragraph one of the form. The committee
initially took the position that the comment suggested a change unrelated to its proposed amendments and that the committee
would consider it in its 2013 regular-cycle report. Subsequently, however, the committee filed an additional response in which it
agreed with the comment and recommended that the suggested change be made in this case. We agree with the committee that
this additional change is appropriate and, accordingly, we include it in the amendments adopted in this case.
…findacase.com/…/wfrmDocViewer.aspx 7/8
3/8/2011 FindACase™ | In re Amendments to th…
*fn3 An explanatory committee note is also added.
*fn4 An original and nine paper copies of all comments must be filed with the Court on or before April 12, 2010, with a certificate of
service verifying that a copy has been served on the Committee Chair, Mark A. Romance, 201 S. Biscayne Blvd, Suite 1000, Miami, FL
33131-4327, as well as separate request for oral argument if the person filing the comment wishes to participate in oral argument,
which may be scheduled in this case. The Committee Chair has until May 3, 2010, to file a response to any comments filed with the
Court. Electronic copies of all comments and responses also must be filed in accordance with the Court's administrative order in In
re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004).
20100211
…findacase.com/…/wfrmDocViewer.aspx 8/8
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR COLLIER COUNTY, FLORIDA
Counterclaimants,
Defendants on Counterclaim(s).
_____________________________________________________________________________/
1. The previously disposed action must be dismissed pursuant to F.R.Civ.P. 1.420, which
states:
(f) Effect on Lis Pendens. If a notice of lis pendens has been filed in connection with
a claim for affirmative relief that is dismissed under this rule, the notice of lis
pendens connected with the dismissed claim is automatically dissolved at the same
time. The notice, stipulation, or order shall be recorded.
2. Here, the fraudulent notice of lis pendens connected with the 08/12/2010 disposition was
automatically dissolved at the same time, i.e., on 08/12/2010. Defendant Clerk’s unlawful
1
RECORD “SUGGESTION OF BANKRUPTCY”
3. Here, there has been a suggestion of bankruptcy and the lack of any cause of action on the
record. Allegedly, the mandatory instruments and conditions precedent strictly required to
establish any cause of action were destroyed and/or lost and could not be reestablished,
because, e.g., the manner and time of the loss and/or destruction were UNKNOWN.
THIS COURT ERRED & VIOLATED THE STRICT MANDATE OF RULE 1.440
(a) When at Issue. An action is at issue after any motions directed to the last
pleading served have been disposed of or, if no such motions are served, 20 days
after service of the last pleading. The party entitled to serve motions directed to the
last pleading may waive the right to do so by filing a notice for trial at any time after
the last pleading is served. The existence of crossclaims among the parties shall not
prevent the court from setting the action for trial on the issues raised by the
complaint, answer, and any answer to a counterclaim.
(b) Notice for Trial. Thereafter any party may file and serve a notice that the action
is at issue and ready to be set for trial. The notice shall include an estimate of the time
required, whether the trial is to be by a jury or not, and whether the trial is on the
original action or a subsequent proceeding. The clerk shall then submit the notice and
the case file to the court.
(c) Setting for Trial. If the court finds the action ready to be set for trial, it shall enter
an order fixing a date for trial. Trial shall be set not less than 30 days from the service
of the notice for trial. By giving the same notice the court may set an action for trial.
In actions in which the damages are not liquidated, the order setting an ac-tion for
trial shall be served on parties who are in default in accordance with rule 1.080(a).
(d) Applicability. This rule does not apply to actions to which chapter 51, Florida
Statutes (1967), applies
BINDING PRECEDENT PROHIBITED ANY NON-JURY TRIAL
6. Strict compliance with Florida Rule of Civil Procedure 1.440 is required and failure to do
so is reversible error. See Ramos v. Menks, 509 So.2d 1123 (Fla. 1st DCA 1986); Bennett v.
2
Continental Chemicals, Inc., 492 So.2d 724 (Fla. 1st DCA 1984); see also Broussard v.
7. Serious consequences occur when a case is set for trial prematurely as here prejudicially
8. Fla.R.Civ.P. 1.440(a) provides that an action is not at issue until all motions directed to the
last pleading have been disposed of, or if no such motions are served, twenty days after
service of the last pleading, unless the party entitled to serve motions waives the right to do
9. Defendants have objected to, e.g., non-compliance with Florida Rule of Civil
Procedure 1.440, bench-trial, omission of jury trial, omission of evidentiary hearing proving
the lack of “BankUnited’s” standing and lack of right to sue and foreclose the alleged
10. Here, on 02/21/2011, the wrongful foreclosure action had been disposed, and retired
“robo” Judge Monaco could not have possibly “disposed of” Defendants’/Counterclaimants’
“Motion to Dismiss”. Defendant Clerk’s Docket showed a “9:00 AM” hearing, which never
took place on 02/21/2011. Furthermore here, the illegal “02/22/2011 hearing” had been
3
11. Fla.R.Civ.P. 1.440(c) provides that a Court may not set the trial less than thirty days from
12. Said prohibition against setting a cause for trial until the pleadings are settled and twenty
days has passed is apparently to permit the parties to focus their attention on pleading issues
during the time the pleadings are not at issue and then allow them to refocus their attention
13. On 02/17/2011, Defendants had filed their Affidavit conclusively evidencing fraud on the
16. Here, the pleadings were open, the pleadings not settled, and the case was not at issue. This
17. Here at the time of the alleged fraudulent “02/22/2011, 9:00AM, hearing”, this case which
4
18. In Precision Constructors, Inc. v. Valtec Construction Corp., 825 So. 2d 1062 (Fla. 3rd DCA
2002), the appellate court reversed a final judgment in a case which was tried before the
19. Furthermore here, no notice for trial was filed. See Docket.
20. Said Court held that failure to adhere strictly to the mandates of Rule 1.440 was reversible
error.
21. Courts have even held that a notice for trial before the case is at issue is a nullity, not to be
considered on the issue of whether or not there has been record activity under Fla.R.Civ.P.
1.420(e). See Jones v. Volunteers of American North and Central Florida, Inc., 834 So.2d
280 (Fla. 2nd DCA 2003) and Alech v. General Ins. Co., 491 So. 2d 337 (Fla. 3rd DCA 1986).
22. Fla.R.Civ.P. 1.440 must be strictly construed so as not to set a case for trial prematurely.
23. In the event of amendments and/or open pleadings after a case is set, a new notice of trial
24. Florida Appellate Courts have strictly construed the requirements of Fla.R.Civ.P. 1.440 to
preclude the setting of a trial when a case is not at issue as in the instant previously
disposed action.
25. Here, this Court did not comply with said Rule and tainted any judgment. The
5
26. Here, Defendant Judge Monaco knew and/or fraudulently concealed that
28. "The motion [for disqualification] is legally sufficient if the facts alleged demonstrate that
the moving party has a well grounded fear that she or he will not receive a fair trial at the
hands of the judge." See Cave v. State, 660 So. 2d 705, at 708 (Fla. 1995).
29. Here, the moving party and/or Defendants/Counterclaimants were entitled to the demanded
jury trial. However, retired “robo” Judge Daniel R. Monaco has been in the pocket of the
bank(s), and without any authority, set a bench trial for 04/07/2011 during an unlawful and
30. Here, Defendant Clerk had reported a “9:00 AM” hearing, which did not take place on
02/22/2011.
EMERGENCY
6
d. Deliberately deprive Defendants of their fundamental rights to jury trial;
e. Inore Florida Supreme Court proceedings.
32. Here, rogue “robo” Judge Daniel R. Monaco agreed with the bank to keep the pro se
Defendants/Counterclaimants away from the Court and to perpetrate fraud upon this
Court. In particular, said retired Judge knew and/or fraudulently concealed that
a. “BankUnited” could not verify ownership of the destroyed/lost mortgage and/or note;
b. “BankUnited” had no right to enforce the missing instruments;
c. “BankUnited” could not ensure that the allegations in its facially frivolous complaint
were accurate;
d. “BankUnited” wasted judicial resources on lost note counts and inconsistent
allegations;
e. “BankUnited” could not possibly reestablish the lost/destroyed instruments;
f. Counterclaimants/Defendants were entitled to jury trial, because “BankUnited” had
prayed for reestablishment of alleged destroyed/lost instruments (Count I).
7
See In re Amendments to the Florida Rules of Civil Procedure, Supreme Court of Florida,
Rule 1.110; Form 1.924.
ROGUE JUDGES “BENCH-TRIAL” FRAUD SCHEME
35. A cause can be dismissed for fraud upon the showing of pretense, fraud, collusion and/or
instruments.
36. Here on “02/22/2011”, rogue Judge Monaco had deliberately deprived the
action.
37. Here, “BankUnited’s” testimony was impeached with inconsistencies on material issues,
and “plaintiff’s” and Counsel’s veracity and credibility had been clearly placed in question.
38. Whether the alleged exhibits of the lost/destroyed note's essential terms proffered by
“BankUnited” were adequate for their reestablishment was a matter for determination by the
39. Here, said temporary “rocket docket” Judge Monaco exceeded the proper scope of inquiry,
which alone was a basis for disqualification. See Fla. R. Jud. Admin. 2.160(g); Cave v.
State, 660 So. 2d 705, 708 (Fla. 1995) ("When a judge has looked beyond the mere legal
has then exceeded the proper scope of his inquiry and on that basis alone established grounds
for his disqualification.") (citations omitted); J&J Indus., Inc. v. Carpet Showcase of Tampa
Bay, Inc., 723 So. 2d 281, 283 (Fla. 2d DCA 1998) ("Attempts to refute the charges of
partiality exceed the scope of inquiry and alone establish grounds for disqualification.")
(citations omitted); Kielbania v. Jasberg, 744 So. 2d 1027, 1028 (Fla. 4th DCA 1997)
8
(holding that "even though there is no evidence of actual bias, we find that recusal is
necessary to satisfy the appearance of justice."). Here, this previously disposed case must be
assigned to a different judge for further proceedings and be removed from this Court’s
9
Here, the Court had reported the final decision and termination of the judicial proceeding,
a. Had no jurisdiction;
b. Presided over a sham hearing on 02/22/2011;
c. Conducted a sham hearing that had been amended to a 02/14/11 hearing and then been
cancelled;
ROGUE “ROBO” JUDGE MONACO’S “ROCKET DOCKET” TACTICS
48. All interlocutory proceedings are merged into and disposed of by the final determination.
See Duss v. Duss, 111 So. 382, 385 (Fla. 1926). After entry of the disposition, the trial
court's authority to modify, amend, or vacate an order after termination is limited to the time
and manner provided by rule or statute. Thus here, upon the 08/12/2010 disposition, this
Court’s inherent authority to hear the motion to dismiss had apparently ceased. Only a rogue
judge would steamroll pro se Defendants after this case had been disposed for more than
six months, and had been reported as disposed on the 02/21/2010 Docket.
10
49. Defendant Clerk of Court, Dwight E. Brock, is the custodian of the Collier County Public
Records.
50. Said Defendant Clerk knew that here, Florida law precluded any judicial enforcement of the
lost/destroyed mortgage and/or note. Section 201.08(1)(b), Florida Statutes (2010), e.g.,
precludes judicial enforcement of a mortgage “unless and until the tax due thereon . . . has
been paid.” The alleged destroyed/lost note and mortgage attached to the 2009 complaint
were copies of lost/missing unrecorded instruments, and there is no indication that the
purported original note and/or mortgage were filed or presented to this Court.
51. Here, bankrupt and defunct “BankUnited, FSB” had no standing, and the alleged
11
DEFENDANT CLERK LACKS AUTHORITY TO MAKE JUDICIAL DETERMINATION
54. Here, the Clerk was not authorized to make any judicial determinations, but proceeded with
of “BankUnited”.
55. The Counterclaimants demand that this Court vacate said wrongful “order” and proceeding.
02/22/2011 proceeding and “order” under Rule 1.540. Here, there have been valid grounds
for relief under that Rule. Florida Rule of Civil Procedure 1.540(b) states:
12
Here in reality, the Clerk’s error was not “corrected” during business hours on
02/21/2011, and no reasonable juror or judge in rogue Judge Monaco’s shoes could have
possibly expected the Defendants/Counterclaimants [who the Clerk knew were in the
Pacific] to have learnt about the “correction of the Clerk’s error” prior to the illegal
“02/22/2011, 9:00 AM hearing”, which had been amended and then cancelled. See
Docket.
58. Defendant Clerk also knew that the incongruities in “plaintiff’s” pleadings and affidavits
were clearly evident in the interest rates and amounts erroneously computed. Simple
Hi Darlene,
… Thank you for your call and your question. I hope that my reply will be clear and
helpful for you and your staff.
Question: If a defendant filed a notice that the plaintiff was in bankruptcy would that be
a proper disposition for SRS purposes?”
Answer: No, that type of notice or filing would not and should not be reported as a
proper disposition for SRS purposes. To give clarity to the Circuit Civil SRS Disposition
instructions, please note that if a defendant (not the plaintiff) in a case files a suggestion
of bankruptcy that case is to be reported under the proper Circuit Civil disposition
category that results in the greatest amount of judicial activity.
Also note that a “suggestion of bankruptcy” filed by the defendant (for the defendant
only) will result in case disposition. Notices of bankruptcy file by the defendant to
counter motion of counter petition the plaintiff should be reported as such and not as
dispositions.
Darlene, I hope that this response was helpful to you and your staff. Please let me know if
you have any comments or questions regarding this or any SRS matter. Thank you as
always for your commitment to SRS standards and reporting.
13
Miriam Jugger
Supreme Court of Florida
Office of the States Courts Administrator
500 S. Duval Street
Tallahassee, FL 32399”
DEFENDANT CLERK’S QUESTION TO STATE COURT ADMINISTRATOR
60. Defendant Clerk “questioned” the State Court Administrator in the below e-mail from
Darlene M. Muszynski to Miriam Jugger, sent Monday, February 21, 2011, 4:37 PM:
“Miriam,
If a defendant filed a notice that the plaintiff was in bankruptcy would that be a
proper disposition for SRS purposes? Your help would be greatly appreciated.
Darlene Muszynski
Assistant Director Civil
(239) 252-2706
Darlene.muszynski@collierclerk.com”
62. Here, the wrongful actions of the Clerk harmed the Defendants/Counterclaimants, because
the Clerk’s “after-hours” deception prejudiced the Defendants and had de facto judicial
consequences.
63. While here, the Clerk’s “02/21/2011” Docket showed the wrongful action as “DISPOSED”
in the absence of any reopening, the Clerk reported a “9:00 AM hearing” on 02/22/2011.
64. Pursuant to Section 25.075, Florida Statutes, the Supreme Court developed a uniform case
provides the Office of the State Courts Administrator with data which assist the Supreme
14
Court in its management and oversight role. See CIRCUIT CIVIL PROCEEDINGS
65. Here, “defendant(s) filed suggestion [and conclusive evidence] of bankruptcy” and the case
66. In error, the Clerk of Court had reported bankrupt “BankUnited, FSB” as a “plaintiff”.
67. Hereby, the Clerk is again instructed to submit any and all bills and communications to the
68. Here, the previously disposed action/complaint was never at issue, but the court abused its
discretion and set it for non-jury trial and “ordered” the “defendants” to “respond” after the
69. Pursuant to Fla. R. Civ. P. 1.440, this action was not even at issue and could not possibly be
set for non-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 not ready to
be set for trial. Retired “robo” Judge Monaco has been in the pocket of the bank(s), and the
15
70. Any order setting this disposed case for “trial” would have to be sent to the
71. Counterclaimants assert the following: (1) that they did not receive any order; and/or (2) that
without having received an 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
72. Apparently here, “robo” Judge Monaco seeks to deprive the defendants of due process.
73. 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).
74. 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.,
75. Here, counterclaimants’ fundamental due process rights are being violated by the defective
wrongful foreclosure action, the court would have to determine that the destroyed/lost notes
77. Here, Daniel R. Monaco knew and/or concealed that, e.g., the missing instruments were not
enforceable and null & void, and that the Court had no jurisdiction.
16
UNKNOWN]. Here, “BankUnited” and the Court knew that reestablishment was legally
impossible.
issues so triable.
80. Pursuant to Rule 1.170, the counterclaimants have claims for affirmative relief against
81. In this previously disposed case, the complaint sought to reestablish destroyed/lost
(25 6TH Street North Naples, FL), which is in the possession of the defendant
counterclaimants.
82. While the previously disposed wrongful foreclosure suit appears to be equitable in nature,
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.
17
83. “BankUnited” deceived the counterclaimants with regard to the true legal ownership and
enforceability of the alleged destroyed and/or lost instruments. Here as a 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.
84. Here, “Walter Prescott” was not the maker of any alleged promissory note dated February 15,
2006, or any other promissory note, as evidenced by the exhibits attached to the complaint.
85. Walter Prescott was not the maker of any “loan modification agreement” as evidenced by the
86. The purported “plaintiff”, “BankUnited”, has not alleged facts sufficient to demonstrate that
it invoked and/or could have possibly invoked the 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
87. Purported “plaintiff” “BankUnited” does not own and hold any genuine note and mortgage.
88. “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-
89. Here, “BankUnited” even pleaded inability to establish holder in due course status because
18
90. 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
“6. Said 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.”
91. Here, there was no evidence as to WHO possessed the note WHEN it was lost/destroyed.
92. 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”.
93. [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.]
94. The alleged mortgage copy did not contain a copy of the alleged executed note.
95. “BankUnited” fraudulently prayed for reestablishment, no order reestablishing the lost
instruments was entered, and the wrongful action was disposed on 08/12/2010.
96. As a matter of law, reestablishment of the note was impossible under Ch. 673, Florida
Statutes, and the Uniform Commercial Code.
97. “BankUnited” is not in possession of the purported note and mortgage and not entitled to
enforce them.
98. “BankUnited” did not know WHO destroyed and/or lost the instruments WHEN and
HOW.
99. “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.
100. “BankUnited” did not acquire ownership of the instruments from anyone who was
entitled to enforce the alleged instruments WHEN the UNKNOWN loss and/or destruction
of the alleged instruments occurred. See § 673.3091, Florida Statutes (2010).
101. On 05/21/2009, “BankUnited, FSB” was seized.
19
102. Here, there had been seizure and transfer which prohibited re-establishment.
103. “BankUnited” never produced nor re-established any authentic note and/or mortgage as
proven by the evidence before this Court.
104. 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.
105. This Court knew that “BankUnited’s” facially fraudulent affidavits were sham.
106. A person seeking enforcement of an instrument under UCC § 3-309(a)(b) must prove the
terms of the instrument and the person’s right to enforce the instrument.
107. “BankUnited” had to, but failed, to prove the terms of the alleged instruments and the
person’s right to enforce the alleged instruments.
108. Here, “BankUnited” failed to prove any terms, and the terms of the alleged obligation
and/or instrument were vague and ambiguous.
109. Here, Walter Prescott neither executed the purported note nor “loan modification
agreement”.
FRAUDULENT, NULL, AND VOID “AFFIDAVITS”
110. This Court may not enter judgment in favor of “BankUnited”, because the Court knew
that the defendant counterclaimants are not adequately protected against loss and
“BankUnited’s” 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 disposed wrongful action was “uncontested” and allegedly devoid of genuine issues
of material fact. See, e.g., “Affidavit of Plaintiff’s Counsel as to attorney’s 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”.
111. 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 tried and/or adjudged under the Rules and Florida Statutes.
20
112. Defendant counterclaimants did not default under the destroyed and/or lost note and
mortgage, and no payment was due to “BankUnited”.
113. “BankUnited” failed to assert any chain of title and/or assignment of the destroyed/lost
note and mortgage.
ALLEGED DESTROYED / LOST INSTRUMENTS / “LOAN MODIFICATION”
114. 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 any
respect 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 the
instrument may be enforced according to its original terms.
(3)A payor bank or drawee paying a fraudulently altered instrument or a person taking
it 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.
115. 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 had
knowledge 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's
interest 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 the
case for a new and a fair hearing. (Citations omitted.)
Consistent with the general rule, Florida Courts have defined fraud as the
21
COUNT I: FRAUD COUNTERCLAIM AGAINST DANIEL R. MONACO
116. 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
117. Here, “BankUnited’s” and Daniel R. Monaco’s conduct were collateral to the allegations,
c. preside over an amended and then cancelled illegal hearing on 02/22/2011 in the
119. Thus, retired “robo” Judge Monaco’s non-jury trial did not square with the
120. Accordingly, a jury trial on all issues triable by jury must be granted.
121. 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 NEVER AT ISSUE -TRIAL WOULD VIOLATE DUE PROCESS
122. 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 not
22
ready to be set for trial. Retired “robo” Judge Monaco has been in the pocket of the
123. Any order setting this disposed case for “trial” would have to be sent to the defendant
124. The counterclaimants assert the following: (1) that they did not receive any order; and/or
(2) that without having received an 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
125. Apparently here, “robo” Judge Monaco seeks to deprive the defendant counterclaimants
of due process.
126. 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).
127. The counterclaimants have had a due process entitlement to notice and an opportunity to
128. Here, counterclaimants’ fundamental due process rights are being violated by the
129. 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).
23
130. Fraud is a compulsory counterclaim to an action in foreclosure on the [here
lost/destroyed] note and/or mortgage. 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
131. 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
132. To grant any judgment of foreclosure in favor of “BankUnited”, the Court/Monaco would
have to find, among other things, that said bank owned the lost/destroyed mortgage/note and
133. However here, “BankUnited” had asserted the UNKNOWN loss and/or destruction of
the purported instruments in its complaint. Furthermore, the evidence on file had
134. If arbitrarily and capriciously, after the 08/12/2010 disposition, the foreclosure action
were to proceed to judgment in 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
foreclosure action to proceed before the petitioners' legal counterclaims would deny them
their fundamental right to a jury trial, which they have demanded, on those issues.
135. Here, retired “robo” Judge Monaco knew and/or concealed that a plaintiff must be the
owner/holder of the instrument(s) as of the date of filing suit pursuant to Jeff-Ray Corp. v.
24
Jacobsen, 566 So. 2d 885 (Fla. 4th DCA 1990); WM Specialty Mortgage, LLC v. Salomon,
136. Here as of “07/09/2009”, the date of filing suit, “BankUnited” was not any holder and/or
137. “BankUnited” was not a holder of the lost/destroyed note at the time it wrongfully filed
suit (07/09/2009) or any time thereafter, was not entitled to enforce and/or reestablish 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
138. Here, “BankUnited” had neither standing nor any real interest and could not have
139. Here, retired Judge Monaco and “BankUnited” had actual knowledge of the fraud and
lack of good faith prior to the falsely alleged transfer from “BankUnited, FSB” to
“BankUnited”, which precluded “BankUnited” from claiming holder in due course status.
140. Here, temporary Judge Monaco knew and/or concealed that Prescott had controverted
the authenticity of the purported note amd that “defendant” Walter Prescott had not executed
142. The counterclaimants are suing the Clerk of Court in his private individual and official
capacity. Here, said Clerk exceeded the scope of any official capacity.
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143. 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.
144. 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 no authority to
remove/overturn the 08/12/2010 judicial disposition record without any legal justification.
145. The Clerk had no judicial authority and was not to practice law at counterclaimants’
expense.
146. After the 08/12/2010 disposition, Albertelli Law and/or “BankUnited” “filed” the
“original note” which did not identify “BankUnited” as the holder or lender.
147. Albertelli Law and “BankUnited” also did not attach an assignment or any other evidence
to establish that it had purchased and/or acquired the alleged lost note and mortgage.
148. Here, Albertelli Law concealed that the required chain of title was not in evidence.
149. Furthermore, “BankUnited” did not file any genuine supporting affidavits or deposition
testimony to establish that it owns and holds the alleged lost/destroyed note and mortgage
150. Accordingly, the documents before this court and retired “robo” Judge Monaco at the
22/02/2011 unauthorized and cancelled hearing did not establish “BankUnited’s” standing
to foreclose the destroyed/lost note and mortgage, Thus, at this point, “BankUnited” was not
26
RECORD LACK OF ADMISSIBLE EVIDENCE IN DISPOSED WRONGFUL ACTION
151. Defendants did not execute and deliver an authentic promissory note and mortgage to
“BankUnited”.
153. Here, neither any note nor mortgage were assigned and delivered to “BankUnited”.
154. Here there was no delivery of any written assignment of any instrument to “BankUnited”.
155. On or around 07/09/2009, Alfred Camner, Esq., the troubled founder of bankrupt and
seized “BankUnited, FSB”, had alleged unknown loss and/or destruction of a purported note
and/or mortgage.
156. Here because Alfred Camner was the bankrupt bank’s founder, it was as if
157. Thereafter, Alfred Camner, Esq., Serena Kay Paskewicz, Esq., and/or the Camner Lipsitz
158. Here, Albertelli Law knew that a federal depository institution regulatory agency
[F.D.I.C.] was confronted with a purported lost agreement and/or instruments not
159. 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
160. 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
27
which are 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).
161. Said rule was codified by the Federal Deposit Insurance Act of 1950, § 13(e), 64 Stat.
162. Here, the Court was obligated to determine and/or consider the lack of subject matter
163. "'Fraud upon the court' is a special kind of fraud, 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).
164. 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.
165. 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.
28
166. The court failed to communicate and notice the counterclaimants.
167. 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 of trial by jury as declared by the Constitution or by statute shall be preserved to
168. 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.
169. The counterclaims are unquestionably suits at law seeking damages, the traditional
170. Thus, the issue with which this Court and its “rocket docket” must come to grips, then,
171. The claims at law are intermixed with the previously disposed wrongful foreclosure
action.
172. In the record absence of any [reestablished] instruments, “BankUnited” had failed to
state a cause of action, had no standing, and could not foreclose and sue.
173. Florida’s 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
29
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 issues
made 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
174. 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-reestablished instruments referenced in the facially
175. In this instance, Florida's quiet title statute specifically authorizes a trial by jury. Section
…if any defendant is in actual possession of any part of the land, a trial by jury
may 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.
176. Counts 1 and 3 of the counterclaim are actions for damages for fraud and breach of
contract, both of which are common law actions for damages. Because here the causes of
action were intimately intertwined with the previously disposed equitable foreclosure claim
contained in the complaint, there was no question that the counterclaimants were entitled to
30
a jury trial on the issues raised by these counts in advance of any non-jury trial on the
177. The counterclaimants are suing for breach of contract based on “BankUnited’s” record
178. “BankUnited” materially breached its duty of good faith and fair dealing, which
agreement” was not signed and executed by “defendant” Walter Prescott and therefore
180. Even though said “modification agreement” was not legally binding, “BankUnited”
“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
181. The “modified” mortgage was never recorded, and there was no evidence of taxes paid,
182. 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
"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
31
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 not prove the substitution of the alleged new contract for the old and did
not show 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/or invalid, and the previously disposed foreclosure action wrongful.
183. Defendants’ affirmative defenses defeated the disposed action by a denial and/or
avoidance. “Defendants” admitted the UNKNOWN loss and/or destruction of the alleged
instruments, which could not be reestablished as 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).
184. 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.
185. 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
186. Here, “BankUnited” did not dispute that it failed to rebut defendants’ affirmative
defenses.
32
187. Here, Defendants’ action/compulsory counterclaim for, e.g., damages for fraud and
188. 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.
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
to trial by jury.
190. Here, the issues and/or affirmative claims involved in the compulsory counterclaim
and/or fraud 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
191. Here, the rule is that even where a complaint lies solely in equity, the filing of a
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).
33
192. “Defendants” were entitled to a jury trial on issues raised in their compulsory
counterclaim that are common to the previously disposed foreclosure claim. See Hightower
193. This court cannot determine the factual issues of fraud and misrepresentation without
194. Thus, the Court must first resolve the affirmative claims and defenses of fraud and
195. Here after the capricious removal of the 08/12/2010 disposition record, the prejudice
is especially predictable and the legal issues must be tried by jury. The defendants
196. The defendants in this disposed wrongful mortgage foreclosure action appealed the
197. 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
198. Here, it would be error to proceed with the previously disposed wrongful foreclosure
199. This court did not have the discretion to deny the demanded jury trial on these factual
34
201. Defendants are entitled to trial by jury on, e.g., Count I of Plaintiff’s complaint
202. Here, defendants have a fundamental right to jury trial in Florida’s State Courts.
203. The Florida Constitution expressly provides for the right to trial by jury. Article I,
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.
204. 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.
205. Florida courts have consistently highlighted the importance of the right to a trial by
jury.
206. "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)).
35
207. 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.
208. 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 jury trial upon the alleged lost instruments. See Staiger v. Greb,
209. Because here, there is no dispute that plaintiff seeks to re-establish lost instruments and
to have a “deficiency judgment” against the defendants, the defendants are emtitled to
hearing” before retired “rocket docket” Judge Daniel R. Monaco who is in the pocket of
the bank(s).
211. On 08/12/2010, and after defendants’ Motions to Dismiss had been filed, this wrongful
212. This Court knew that “BankUnited” did not establish its entitlement to foreclose the
213. After said 2010 disposition, the action was never reopened.
214. 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/destroyed mortgage/note or was entitled to the illegal 02/22/2011
36
215. Here, the plain meaning of the exhibits controlled, evidenced lack of standing, and was
the basis for a motion to dismiss. Blue Supply Corp. v. Novos Electro Mech., Inc., 990 So.
2d 1157, 1159 (Fla. 3d DCA 2008); Harry Pepper & Assocs., Inc. v. Lasseter, 247 So. 2d
216. The “trial” wrongfully “set” by temporary Judge Monaco and “BankUnited’s” motion
for summary judgment and were to be denied based on principles of collateral estoppel and
res judicata. Here on 08/12/2010, the Court had disposed of “BankUnited’s” wrongful
foreclosure action.
217. On 02/22/2011, retired “rocket docket” Judge Monaco had no authority to deny
PRESCOTT, JOHN DOE, and MARY DOE, file their “response(s)”, affirmative defenses
220. Paragraph 2 is denied. Here under paragraph 6, “said [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 or destruction 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 standing and
221. Here, no “default” has and/or could have possibly occurred, and no contractual obligation
existed.
37
222. Paragraph 3 is denied. Here, “BankUnited” was never entitled to any action and/or
225. Paragraph 6 is admitted and “said [purported] 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.” 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 standing and right to
228. Paragraph 9 is denied. “BankUnited” is not any “successor in interest to” “BankUnited,
FSB”.
229. Paragraph 10 is denied. Here, “BankUnited” could not enforce and/or reestablish 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
233. Here, paragraph 14 was vague and ambiguous as there were two “paragraph 14”.
38
234. 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.
Here, there had been a disposed wrongful foreclosure action, which was facially frivolous
and insufficient.
235. 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 manner of the loss or destruction is unknown.”
236. Paragraph 16 is denied. Here under Paragraph 6, “said [purported] 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.” 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 standing and
237. Jennifer Franklin-Prescott owns the property at 25 6th Street North, Naples, Florida 34102.
238. Under Rule 1.420(f), Fla. R. Civ. P. (2010), the improper and unauthorized lis pendens
239. Pursuant to § 48.23(2), Fla. Stat. (2010), the notice of lis pendens became invalid on
07/10/2010.
240. 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).
39
241. Here, the null and void lis pendens placed a non-existent cloud on the title. See Andre
Pirio Assocs. v. Parkmount Properties, Inc., N.V., 453 So.2d 1184, 1186 (Fla. 2d DCA
1984).
242. In this disposed action, the purported “plaintiff” frivolously sought to re-establish the
243. Franklin-Prescott had filed her answer(s) and motions to dismiss and proven plaintiff’s
244. The record evidence established that plaintiff could not possibly re-establish the note and
that no authentic instruments could possibly be proven under the Evidence Code.
246. Purported plaintiff “BankUnited” is not any note owner/holder, had no standing, and could
not possibly declared any amounts due under a lost, destroyed, and/or non-reestablished note.
247. 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
40
252. 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,
253. “BankUnited” filed the wrongful suit after the May 2009 seizure of defunct
“BankUnited, FSB”.
254. After bankrupt “BankUnited, FSB” was seized, its troubled founder, Alfred Camner,
255. As founder of defunct “BankUnited, FSB”, Alfred Camner knew and concealed that the
“BankUnited”.
256. Here, time and manner of the loss were UNKNOWN pursuant to the 07/09/2009
complaint.
257. Here, “BankUnited” was not any assignee and did not hold title in the purported
lost/destroyed instruments.
258. Here, the record had conclusively evidenced the lack of any chain of title.
259. “BankUnited” was not any real party in interest, did not hold legal title to the
destroyed/missing mortgage and note, and was not the proper party to file suit to foreclose
260. Here, there was no effective assignment from “BankUnited, FSB” to “BankUnited” or any
legal justification why and how “BankUnited” could possibly be entitled to enforce the lost
instruments.
261. The destroyed/lost instruments were unenforceable as a matter of law. See, e.g., section
41
262. 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
possibly occur. See Article 3, U.C.C.; Ch. 673, Florida Statutes (2010).
263. 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
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
of purchase of the alleged debt nor any other evidence of an effective transfer. Therefore, the
264. This Court knew of binding precedent and that the Second District had confronted a
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
response to BAC's motion to dismiss did not constitute admissible evidence establishing U.S.
Bank's standing to 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
265. This Court knew that “BankUnited” cannot foreclose on the note and mortgage, because
“plaintiff” is not in possession of the original note and did not reestablish the alleged
42
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).
266. Here, this Court knew that “BankUnited” had no standing and/or right to sue and/or
foreclose.
267. This Court knew that defendants had demanded indemnification of defendants for
268. So far, this Court did not require a bond pursuant to Lovingood v. Butler Construction
269. 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).
270. 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
organized bias against defendants and homeowners.
43
271. The law prohibits “rocket dockets” for speed and errors at the expense of justice in favor
of banks and lenders.
272. Here, the Docket showed “Judge Hugh D. Hayes” and the lack of any “Reopen Reason”
New Zealand
44
NATIONAL EMERGENCY AND PRESCOTT’S NOTICE OF UNAVAILABILITY
275. 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.
Franklin-Prescott cannot leave because of said emergency and will therefore be unavailable.
276. A person seeking enforcement of a lost, destroyed or stolen instrument must first prove
entitlement to enforce the instrument WHEN the loss of possession occurred, or has directly
or indirectly acquired ownership of the instrument from a person who was entitled to enforce
the instrument WHEN loss of possession occurred. Further, he/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,
person or a person that cannot be found or is not amenable to service of process. 673.3091
277. Here, “defendants” had denied that “BankUnited” has ever had possession of the alleged
note and/or mortgage and/or that “plaintiff” was ever entitled 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. Plaintiff could not
establish that plaintiff lost possession of the note after it was transferred to the “plaintiff” and
that it could not reasonably obtain possession thereof. Absent such proof in this disposed
action, plaintiff had been required by Florida law to provide the original note and mortgage.
45
Having failed to provide the original note and mortgage at the time of filing, “plaintiff”
278. Here, the “plaintiff” could not prove the terms of the instrument and the plaintiff bank’s
right to enforce the alleged instrument. The court may not enter judgment in favor of the
person seeking enforcement unless it finds that the person required to pay the instrument is
adequately protected against loss that might occur by reason of a claim by another person to
enforce the instrument. Fla. Stat. 673.3091(2). In this disposed action, 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
279. 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
the purported non-authentic promissory note and mortgage deceptively submitted to this
Court as alleged debt evidence. As such, the plaintiff came to this court with unclean hands.
280. 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
46
PRESCOTT FEARS FURTHER FRAUD, DEPRIVATIONS & SHAM PROCEEDINGS
281. 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 fundamental rights to
282. Because here no reasonable person, juror or judge could possibly explain the record
errors, contradictions, and arbitrary acts in this disposed case, Franklin-Prescott cannot
possibly trust Judge Monaco, said Circuit, and said “rocket docket” sham proceedings.
1. An Order dismissing the previously disposed action after automatic dissolution of the
alleged lis pendens and in the record absence of any cause of action;
2. An Order striking the bench-trial for the foresaid grounds and non-compliance with said
Rule 1.440;
victims;
8. An Order for compensatory and punitive damages for breach of contract in favor of
counterclaimants;
9. An Order for judgment against “BankUnited” for counterclaimants’ damages and for an
award of attorney’s fees and for all other relief to which counterclaimants prove entitled;
47
10. An Order dismissing the previously disposed wrongful foreclosure action because
12. An Order declaring rogue “robo” Judge Monaco’s lack of jurisdiction to overturn and/or
Appeal;
13. An Order properly setting this Motion to Dismiss for hearing so that Franklin-Prescott can
15. An Order declaring 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 entitled to any action and trial for lack of standing and note in
16. An Order declaring the “correction of the disposition record” unlawful and prejudicial at
Franklin-Prescott’s expense;
17. An Order enjoining retired robo Judge Monaco from any further deliberate deprivations
18. An Order taking judicial notice of said binding precedent (BAC Funding) in support of the
48
19. 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
20. An Order declaring the purported “plaintiff” in this disposed action without any authority to
sue, foreclose, and/or demand any payment from Jennifer Franklin Prescott;
21. An Order declaring the cancelled “02/22/2011 hearing” unauthorized in this disposed
action;
22. An Order declaring “BankUnited’s” prima facie sham “motion(s)” and “affidavits”
24. An Order taking judicial notice of the prima facie unenforceability of the unrecorded,
25. An Order declaring the purported “plaintiff” to be in violation of Fed.R.Civ.P. 1.510 in this
26. An Order declaring the purported 2009 “lis pendens” invalid on its face and taking judicial
notice of the nullity of the lis pendens and unenforceable mortgage and/or note;
27. An Order declaring said affidavits “hearsay” and lacking any legal and/or factual basis in
28. An Order taking judicial notice of the lack of any genuine “note”, “plaintiff’s” proven fraud
on the Court, opposition, opposition evidence, and case law as to this disposed case;
29. An Order prohibiting Counsel and/or Jason M. Tharokh, Esq., who did not file any notice
Respectfully,
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/s/Jennifer Franklin-Prescott, BankUnited foreclosure 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,
Respectfully,
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