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1. Appeal Clerk Cheryl Bishop erred and did not properly identify defendants’
“Non-Final Notice of Appeal and Order”. See Bishop’s attached 02/22/2011 letter
to James Birkhold.
Interlocutory Appeal:
Appellants’ Non-final Notice as “Final Civil Other Notice from Collier County”. See
6. These proceedings are “an appeal of a non-final order pursuant to Florida Rule
of Appellate Procedure 9.130”, and this Court has jurisdiction. Here, Prescott’s,
7. Here, a non-final order met the standards for the issuance of an extraordinary
writ and/or came within the orders enumerated in Florida Rule of Appellate
8. Here, said non-final order permitted appellate review before the trial
have been invoking the proper method for this Court’s review.
10. Here, defendants had properly asserted/identified three basic avenues of and
11. Defendants have the right to take their non-final appeal within 30 days of the
order sought to be reviewed or the order can be reviewed at the end of the case. [If
defendants had not chosen to take their interlocutory appeals, they could have still
12. Here, Prescott, Franklin-Prescott, et al., have also asked that their Notices of
13. The lower tribunal had previously disposed of the wrongful foreclosure action
for, e.g., lack of “BankUnited’s” standing and failure to state a cause of action. Said
bank and bankrupt “BankUnited, FSB’s” founder, Alfred Camner, Esq., had alleged
“ORDER” DEFINED
14. The term “order” Is broadly defined to include all final and interlocutory rulings
of a lower tribunal.
15. Here without any authority, the lower tribunal set non-jury trial before the case
was even “at issue” and even though defendants were entitled to trial by jury:
16. The Circuit Court lacks jurisdiction to enter [final] judgment in the present case.
See, e.g., Brewer v. Solovsky, 899 So. 2d 497, 498 (Fla. 4th DCA 2005); Katz v.
NME Hosps., Inc., 791 So. 2d 1127, 1128 (Fla. 4th DCA 2000) (citing the Committee
Note to Rule 9.130(f) in ruling that the lower court loses jurisdiction to enter final
703 So. 2d 501, 501 (Fla. 1st DCA 1997) ("Under subsection (f), therefore, the `lower
tribunal is divested of jurisdiction to enter a final order disposing of the case' while
Notes)."); Imperatore v. NationsBank of Fla., N.A., 677 So. 2d 933, 935 (Fla. 4th DCA
1996). See also Napoleonic Soc'y of Am., Inc. v. Snibbe, 696 So. 2d 1243, 1243
(Fla. 2d DCA 1997) (treating final order entered in violation of Rule 9.130(f) as a
"nullity" … because Rule "9.130(f) prohibits the trial court from rendering a final
17. Here, “Defendants” had raised the issue of the circuit court's lack
case came from a court that lacked jurisdiction to enter judgment. In Sofka, the
Florida Supreme Court refused to review a question the Second District had
certified to it, explaining that "courts are bound to take notice of the limits of their
original or appellate, the court should notice the defect and enter an appropriate
order." West 123 Feet v. City of Orlando, . . . 86 So. 197, 198-99 ([Fla.] 1920). This
the court to address the issue "sua sponte when any doubt exists." See Mapoles v.
Wilson, 122 So.2d 249, 251 (Fla. 1st DCA 1960). Id. at 1245.
[The parties in Sofka had stipulated to the district court's jurisdiction to hear
an appeal from a lower court, and the district court had proceeded to hear the
appeal. Instead of deciding the merits of the case when it reached the
Supreme Court, our Supreme Court quashed the Second District's decision,
on grounds that the district court lacked jurisdiction to make the decision
parties." See Metellus v. State, 900 So. 2d 491, 495 (Fla. 2005).
“FINALITY” RULE
19. The Court(s) knew the basic rule that a judgment or order is final if it brings to a
close all judicial labor in the lower tribunal. See GEICO Fin. Serv., Inc. v. Kramer,
575 So. 2d 1345, 1346 (Fla. 4th DCA 1991); Pruitt v. Brock, 437 So. 2d 768, 773
a. the points of law and/or fact that, in the opinion of the movants, the court
has overlooked or misapprehended in its decision;
b. the points of law or fact in the court’s decision that, in the opinion of the
movant, are in need of clarification.
Here, the movants include a request that the court issue a written opinion, because
they believe that a written opinion would provide a legitimate basis for supreme court
review.
21. Here, the order shall not be deemed rendered as to any party until all of the
evidenced their rights to appeal and the jurisdiction of this Appellate Court as a
disposed action. Here unlawfully, Defendant Clerk of the lower Court had
25. In her attached “02/22/2010” letter to Appellate Clerk James Birkhold, Appeal
Clerk Cheryl Bishop did not mark “Non-final Notice of Appeal and Order”. See
attached letter.
Said record error by the lower Court’s Appeal Clerk prejudiced the Appellants who
hereby demand correction and the striking of this Court’s two 03/01/2011 orders.
“Appellant shall show cause within fifteen days why this appeal should not be
dismissed for lack of jurisdiction, as appellant had failed to provide a copy of
the order appealed as required by Florida Rule of Appellate Procedure
9.110(d), and this court is unable thereby to determine its jurisdiction.”
THIS COURT KNEW THAT “APPELLANTS” NEED NOT PROVIDE FINAL ORDER
29. Here, a non-final order met the standards for the issuance of an extraordinary
writ and/or came within the orders enumerated in Florida Rule of Appellate
30. Here, said non-final order permitted appellate review before the trial
have been invoking the proper method for this Court’s review.
32. Here wrongfully, the Court(s) did not “grant an injunction” even though the
lower Court and “BankUnited” perpetrated fraud on the Court and deliberately
deprived Walter Prescott, Jennifer Franklin-Prescott, et al., of due process and their
fundamental rights to, e.g., jury trial and disposition in Appellants’ favor.
33. This Court and the lower Court have known that “BankUnited” had no standing
34. This Court and the lower Court know that “BankUnited” had no right to schedule
hearings after the lower court had disposed the wrongful foreclosure action on
08/12/2010:
35. The lower court’s record evidenced that 3 (three) prima facie unlawful and
36. § 28.29, Florida Statutes (2010), Recording of orders and judgments, states:
“Orders of dismissal and final judgments of the courts in civil actions shall be
recorded in official records…
Here, the 08/12/2010 disposition record was unlawfully removed from the official
record(s).
filed their “NOTICE OF APPEAL FROM ROCKET DOCKET…” However here, the
(C)(ii) of said Rule 9.1130 is intended to apply whether the property involved is
39. Here, said Rule applied to this appeal to the circuit court of a non-final order as
40. The lower court had no authority to perpetrate fraud on the Court and deceive
the “defendants” about “BankUnited’s” lack of standing and lack of any right to
41. Here, the lower court’s record evidenced clear error and a proper appeal was
taken.
42. Here, the highly meritorious issues for appellate review were perfectly
isolated, identified, and framed, and this Court has jurisdiction to review.
43. Fraudulently, “mass foreclosure” Judge Monaco set the previously disposed
case for non-jury trial in the record absence of any jurisdiction and/or authority.
45. Here, the corrupted lower Court may not render any final order:
(f) Stay of Proceedings. In the absence of a stay, during the pendency of a
review of a non-final order, the lower tribunal may proceed with all matters,
including trial or final hearing; provided that the lower tribunal may not render
a final order disposing of the cause pending such review.
46. Here, this Court knowingly mis-applied said Rule 9.110 for improper
purposes of, e.g., promoting the 20th Judicial Circuit’s illegal “rocket docket” and
appeals may be prosecuted under the procedures set forth in said Rule without any
particular if the interlocutory appeal involves fraud on the court and/or jurisdiction.
48. Here, both Courts knew that in the record absence of any reestablishment of
the destroyed and/or lost mortgage and note, “BankUnited” had never stated any
cause of action.
49. The lower Court’s Clerk erred when he/she listed bankrupt “BankUnited, FSB”
as a plaintiff:
NO RENDITION OF ANY FINAL JUDGMENT – NO PAYMENT REQUIRED
“This appeal has been filed without a filing fee required by section 35.22(3),
Florida Statutes (2008).
Appellant[s] shall forward the required $300.00 filing fee or, if applicable, a
certificate or order from the circuit court finding appellant insolvent pursuant to
section 57.081 or 57.085, F.S. (2008), as applicable, within forty days from
the date of this order.”
51. Rule 9.110(b) provides that a party seeking to appeal must pay the required filing
fees within 30 days with the clerk of the lower court after the judgment is rendered.
Here, an appeal from a final order/judgment could not have possibly commenced,
52. This Court knew that the action had been disposed on 08/12/2010, and that no
trial could have ever possibly taken place. However, a [“final”] order must be
53. For appellate purposes, the “rendition” date begins the jurisdictional period for
filing an appeal. The rules on rendition, however, are confusing. Rule 9.020(h)
provides that an order is not rendered until the clerk has actually filed the order
signed by a judge. Thus, contrary to popular opinion, an order is not rendered when
the court first announces its ruling or even when the order is signed by the judge.
PATTERN OF UNAUTHORIZED & UNLAWFUL ACTS
54. Here, three times in a row, the lower Court, Clerk, and “BankUnited” agreed to
55. The common law writ of certiorari is available at any time. Said writ provides a
remedy for the clear departure from the essential requirements of law proven in this
case. Here, the lower tribunal deliberately deprived the “defendants” of their
56. Otherwise irreparable harm will result from “robo” Judge Daniel R. Monaco’s
57. Setting a previously disposed wrongful foreclosure case [in which “BankUnited”
had no standing, and which was not even at issue] for bench-trial was an
certiorari.
58. Here, this Court and the lower Court knew that the Legislative Branch of
recovery”.
59. Here, Prescott, Franklin-Prescott, et al. have rights of review of, e.g., orders on
motions seeking relief from a previous court order on the grounds of, e.g., mistake,
Procedure 1.540. Said “defendants” were clearly entitled to and demanded trial
by jury. The alleged destroyed and/or lost instruments could not be reestablished
as a matter of common law. Here, “rocket docket” robo Judge Monaco had no
Interlocutory Appeal;
appeals;
8. An Order declaring that Appellants/Defendants in the previously disposed
prejudicial.
Respectfully,
ATTACHMENTS
CERTIFICATE OF SERVICE
We hereby certify that a true and correct copy of this pleading has been delivered to
“BankUnited”, “Albertelli Law”, P.O. Box 23028, Tampa, FL 33623, USA, the Clerk
of Appellate Court, Mr. Birkhold, the Clerk of lower Court, Hon. Hugh D. Hayes, and
Respectfully,