automatic dissolution of lis pendens notice, rule 1.420(f)

8/8/2019 Automatic Dissolution of lis pendens Notice, Rule 1.420(f)

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LAWFULLY SEIZED BANKUNITEDS FAILURE TO COMPLY WITH CH. 673, F.S.

3. A party must comply with section 673.3091, Florida Statues, in order to enforce a lost,

destroyed orstolennegotiable instrument. Here, lawfully seized BankUnited, FSB [F.D.I.C.

seizure]

a. FAILED to state that the creditors everreceived possession of any original promissory

note;

b. FAILED tostate a cause of action;

c. FAILED tosatisfy the conditions precedentto sue, Ch. 673, Florida Statutes;d. COULD NOTpossibly have complied withsection 673.3091, Florida Statues.

RECORD LACK OFpromissory note

4. The original document that is generally required to be filed with the court in a mortgage

foreclosure proceeding is the promissory note, not the mortgage. The Evidence Code

provides the rationale for this conclusion. Section 90.952, Florida Statutes (2002), indicates

that original documents are required to prove the contents of a writing.

5. A promissory note is a negotiableinstrumentwithin the definition of section 673.1041(1),

and either the original must be produced, or the lost document must be reestablishedunder

section 673.3091, Florida Statutes (2002). See Mason v. Rubin, 727 So. 2d 283 (Fla. 4th

DCA 1999); see also Downing v. First Nat'l Bank of Lake City, 81 So. 2d 486 (Fla. 1955);

Thompson v. First Union Nat'l Bank, 673 So. 2d 1179 (Fla. 5th DCA 1994); Figueredo v.

Bank Espirito Santo, 537 So. 2d 1113 (Fla. 3d DCA 1989).

LAWFULLY SEIZED BANKUNITED HAD NO right to the payment of money

6. Here, no writing on file evidenced any right to the payment of money by lawfully seized

bankrupt bankBankUnited, FSB, Ch. 673, Florida Statutes.

JENNIFER FRANKLIN PRESCOTT DEMANDED PROTECTION FROM FRAUD

7. Because it is negotiable, the promissory note must be surrendered in a foreclosure

proceedingso that it does not remain in the stream of commerce. Indeed, if the foreclosing


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party alleges that the note is lost,destroyed orstolen, the trial court is authorized by statute

to take the necessary actions to protect the party purportedly required to pay the note against

loss that might occur by reason of a claim by another party to enforce the instrument. See

section 673.3091(2), Fla. Stat. (2002).

8. A mortgage is the security for the payment of the negotiable promissory note, and is a mere

incident of and ancillary to such note.

08/12/2010 FINAL DISPOSITION FOR LACK OF proper plaintiff

LAWFULLY SEIZED BANKUNITED, FSB, HAD NO interest& NOstanding

9. Here, the admittedloss, the time and manner of which was unknown, was

a. the result of a transfer orlawful seizure, [F.D.I.C.], Ch. 673, Florida Statutes;b. precluded any establishmentof any agreementand/orbreach of contract.

BUSTED BANKUNITED FAILED ITS BURDEN

10. Here, the burden was on lawfully seized BankUnited, i.e., the party seeking to enforce the

lost instrument. See 673.3091(2), Fla. Stat. (2008).

PROVEN INVALIDITY OF RECORD

11. Furthermore here, the invalidity had been proven in the pleadings, Fla. Stat. 673.3081

(2008).

12. A court will not enforce an instrument unless the defendant will be adequately protected

against future claims on the lostnote. Perry v. Fairbanks, 888 So.2d 725, 727, (Fla. 5d DCA

2004).

13. Here, lawfully seized BankUnited FSB, did not have standingto bringand/ormaintain any

mortgage foreclosure action against Jennifer Franklin Prescott, because it had proven on the

record that it did not holdany note and /ormortgage. Here, said admitted and knownnon-

holderof any note had nostandingto seek any enforcementof the fictitious note.

LAWFUL SEIZURE, FDIC, OF BANKUNITED, FSBS PROPERTY & NOTES


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14. The property of bankrupt BankUnited, FSB, was lawfullyseized, Ch. 673, Florida

Statutes. Here in particular, any and all notes and mortgages in the name of failed

BankUnited, FSB, were lawfully seized. Here, lawfully seizedBankUnited, FSB:

a. was not aproper party to bringthis facially fraudulentaction;

b. failed tostate a cause of action;

c. could never, under any circumstances, be the proper plaintiffto bring any foreclosure

action against Jennifer Franklin Prescott.

LAWFUL SEIZURE OF BUSTED BANKUNITED, FSB

15. The admittedloss of the fictitiouspromissory note was due to lawful seizure ofbankrupt

BankUnited, FSB, and/ortransfer. Here, lawfully seizedBankUnited was not entitled to

enforce the fictitiousnote.

SEIZED BANKUNITED FAILED TO COMPLY WITH CONDITION PRECEDENT

16. Here, lawfully seized BankUnited could not havepossiblysatisfiedthe absolutelyrequired

condition precedent, Ch. 673, Florida Statutes.

FRAUDULENT & FALSE PRETENSES - MATERIAL MISREPRESENTATION

17. BankUnited, FSB, fraudulently pretended:

9. On February 15, 2006, Franklin Prescott executed and delivered a promissorynote to Bankunited Complaint, p. 3.

Here on 02/15/2006, BankUnited had not even legally existed.

16.Plaintiff owns and holds the note and mortgage. Complaint, p. 5.

6. Said [fictitious ] promissory note and mortgage have been lostordestroyedand

are notin the custody or control of BankUnited, and the time and mannerof the lossor destruction is unknown. Complaint, p. 3.

Here, bankrupt BankUnited did notholdorown any note and mortgage. Here, any and

all notes and mortgages had been seized by a U.S Agency. Here, there was fraud on the

Court, Fla. R. Civ. P. 1.540.

THIS COURTS AUTHORITY TO SANCTION SEIZED BANKS ATTORNEY(S)


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18. This court has ample authority to sanction lawyers and lenders asserting improper and

facially fraudulentforeclosure claims. Here, Federal Agents had lawfully seized bankrupt

BankUnited, FSB. This courts authority to sanction crooked attorneys is explicit in Florida

law and implicit in the courts' inherent power to sanction bad faith litigation.

19. Any party seeking toforeclose a mortgagewithout a good faith belief in the facts giving rise

to the asserted claim may be sanctioned upon the court's initiative. 57.105(1), Fla. Stat.

20. This statute affords judges the authority to immediately impose significant penalties for

bringing unfounded litigation. See Moakely v. Smallwood, 826 So. 2d 221, 223 (Fla. 2002),

citing United States Savings Bank v. Pittman, 80 Fla. 423, 86 So. 567, 572 (1920)

(sanctioning attorney foracting in bad faith in a mortgage foreclosure sale).

CONFIRMED CANCELLATION

21. On 09/02/2010, at 11:20 AM, the Clerk inside Hearing Room 4-1, Naples Courthouse, and

Bailiff D. Chenoweth confirmed the cancellation of the unauthorized hearing before

judicial imposter Tony Perez and/or Antonio J. Perez-Benitoa.

22. The Court explained that Perez-Benitoa was under contract with this Court for one day

per week. The Court did not disclose Tony Perez credentials.

23. Franklin Prescott contacted the Florida Bar in this matter.

24. Pursuant to the Magistrates Office, Debbie, Supervisor, Melanie [09/02/2010, AM], the

09/02/2010 hearing before judicial imposter Tony Perez was cancelled.

25. Here, the law required use of the legal name of anyjudicial officer. Tony Perez is not any

legal name.

NOTICE OF UNTIMELY notice and entry

26. On the day of the unauthorizedhearing, 09/02/2010, the notice of hearing appeared for

the first time. On 09/01/2010, said notice had not appearedon the Docket.


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IMPROPER USE OF NON-LEGAL NAME JUDICIAL IMPOSTER Tony Perez

27. NOTICE IS HEREBY GIVEN of Jennifer Franklin Prescotts cancellation of

unauthorized 09/02/2010 hearing because there was

a. Non-consent by J. Franklin Prescott;b. Noorder of referralto any magistrate;

c. Nonotice of hearing;

d. Nosetting party of record;

e. Nojurisdiction;

f. Nostanding.

Here, seized and bankrupt BankUnited, FSB, had nostandingand could not havepossibly

been anyparty.

28. Pursuant to the Magistrates Office, Supervisor Debbie, Rose, 239-252-8870

a. Jennifer Franklin Prescott faxed her filed and recorded NOTICE OF NON-CONSENTand NOTICE OF OBJECTION to the Magistrates Office;

b. Jennifer Franklin Prescotts MOTION TO DISMISS is not to be heard in the record

absence of any notice of hearingrequired under the Rules. See Docket of this disposedCase.

29. NOTICE IS HEREBY GIVEN of Jennifer Franklin Prescotts service of NOTICE OF

DISPOSITION AND NON-CONSENT upon the magistrate and/or Antonio J. Perez-Benitoa

at:

a. Magistrates Office, c/o Supervisor Debbie, Rose

Naples Courthouse5

thFloor

Naples, FL 34112,T: 252-8331, F: 252-8870 and

b. Antonio J. Perez-Benitoa, P.A.

900 Sixth Avenue South

Suite 303Naples, Florida 34102

Telephone: 239-430-1884

Fax: 239-30-1885


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http://www.tonypblaw.com

30. Jennifer Franklin Prescott, record holder of unencumbered title to the subject property

[address: 25 6th

ST North, Naples, Florida 34102] does not consent and objected to any

referral to any magistrate, hearing officer, and/or special master, Rule 1.490, Florida

Rules of Civil Procedure.

JENNIFER FRANKLIN PRESCOTTS OBJECTIONS TO ANY magistrate

31. In particular, J. Franklin Prescott objects and did not consentto any magistrate

a. findings of fact;b. conclusions of law.

MEMORANDUM

A REFERRAL TO A MAGISTRATE REQUIRES THE CONSENT OF ALLPARTIES. JENNIFER FRANKLIN PRESCOTT IS ENTITLED TO HAVE THIS

MATTER HEARD BY A JUDGE AND DOES NOT WANT TO HAVE THISMATTER HEARD BY ANY MAGISTRATE. JENNIFER FRANKLIN PRESCOTT

FILE A WRITTEN OBJECTION TO FICTITIOUS referral PRIOR TO

COMMENCEMENT OF THE HEARING.

Here, no hearingcanpossibly commence.

PUBLICLY RECORDED 08/12/2010 FINAL DISPOSITION

32. On 08/12/2010, Def. Judge Hugh D. Hayes disposed of the fraudulent action.

NO order of referral

33. Here, there were

a. 08/12/2010 Final Disposition;

b. Noorder of referral;c. No notice of any hearing;

d. J. Franklin Prescotts non-consent and objection to any magistrate referraland hearing.


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RECORD LACK OF note and mortgage

34. Here, in the recorded absence of any note and/ormortgage, there was

a. Noagreement;

b. Nodebt;

c. Nolien;

d. No BankUnited interest.

LACK OF TIMELY NOTICE OF ANY hearing

35. Court staff asserted and published:

A party/attorney scheduling a hearing mustconcurrently notice the matter in

conformance with the Florida Rules of Civil Procedure and ensure timely notice is

served on all pro se parties and counsel of record in advance of the hearing. Theoriginal notice must be timely filed with the Clerk of Court. The Judges and

Magistrates ask that no courtesy copies be sent to their offices on foreclosure cases

only. The setting party/attorney is responsible for preparing and filing the Order of Referral pursuant to Rule 1.490, Fl. Civil Rules of Court (also can be found at

www.ca.cjis20.org/web/main/magistrates as a reference, no more signed Order of

Referrals from the above website will be accepted). You will be required to submit

your proposed Order of Referral to the appropriate Judge for each hearing in front

of the Magistrate. This will include all hearings for 10, 15 or 30 minutes and

Special Set hearings. (This will also include any Summary/Default Judgment

hearings requesting more than 5 minutes.)

Here, no notice was servedon Jennifer Franklin Prescott. Here, nothing, no matter, and no

hearingwere noticedin violation of the Florida Rules of Civil Procedure.

BANKUNITED, FSBS LACK OFstanding

36. Pursuant to 48.23, Fla. Stat.,

1. A notice oflis pendens must contain the following:


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a. The names of the parties.

Here, the fraudulentnotice of lis pendens contained BankUnited, FSB. However here,

said BankUnited was not any note/mortgage holderorparty. Here, U.S. agents had seized

BankUnited, FSB.

37. Furthermore here, Jennifer Franklin-Prescott was mischaracterized as a married woman

and Walter Prescott as her husband. However here, Walter Prescott is not the

husband of Jennifer Franklin Prescott. Here, the notice of lis pendens did not contain the

parties names.

NOjurisdiction

38. Here, BankUnited, FSB was

a. Not anyparty; b. Had nointerest;

c. Had nostanding.

Here, bankrupt BankUnited, FSB, had nostanding, and this Court has nojurisdiction.

RECORD APPEAL - NOjurisdiction

39. Here after disposition and Jennifer Franklin Prescotts Notice of Appeal, this Court had no

jurisdiction:

NOTICE OF RELEASE & DISCHARGE OF FRAUDULENT lis pendens, CH. 48, F.S.

40. The fraudulent notice of lis pendens, purported INSTR 4318185, Collier County Records,

has been released and discharged. Here admittedly, no note or mortgage could be


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established, Ch. 48, 71, F. S. Purported Plaintiff bankrupt BankUnited failed and was

seized. In the record absence of any note ormortgage, said seized banks fraudulentaction

and notice were null & void and did not operateas a lis pendens, Ch. 48.

41. Furthermore, a lis pendens is not effectual for any purpose beyond 1 year from the

commencement of the action and expires, 48.23, Florida Statutes.

42. Here, the pleadings conclusively proved that no action could befoundedon any lost and/or

destroyed note and/or instrument. Therefore, the bankrupt and seized banks non-

meritorious action not possibly affect the subject property, and the court controlled and

discharged the fraudulent notice oflis pendens, 48.23, Fla. Stat. The Docket showed the

08/12/2010 Final Disposition by Def. Judge Hugh D. Hayes.

08/12/2010 FINAL DISPOSITION, FLA.R.CIV.P. 1.998

43. Hereby, prevailing Jennifer Franklin Prescott filed the Final Disposition Form pursuant to

Florida Rules of Civil Procedure 1.998, 25.075, Florida Statutes. The Docket evidenced

Judge Hugh D. Hayes 08/12/2010 Final Disposition before any hearing.

44. Here, the Docket and official record alterations were

a. Arbitrary and capricious;

b. Unlawful.

WHEREFORE, Jennifer Franklin Prescott hereby again demands

1. An Order for the recording of the automatic dissolution of [fraudulent] notice of lis

pendens pursuant to Rule 1.420, Fla.R.Civ.P.;

2. An Order takingjudicial notice, Ch. 92, Fla. Stat., of Ch. 673, Fla. Stat., and the lawful

seizure [F.D.I.C.] ofbusted BankUnited, FSB;

3. An Order takingjudicial notice of Ch. 673, 59, 90, and 92, Fla. Stat.;

4. An Order sanctioning the attorneys of lawfully seized BankUnited, FSB, for their

unfounded and fraudulentaction;


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5. An Orderdirecting judicial imposter Tony Perez to use and disclose his legal name.

CERTIFICATE OF SERVICE AND PUBLICATION

I HEREBY CERTIFY that a true and correct copy of the above has been furnished to thepurported non-plaintiff, James E. Albertelli, Erin Quinn Rose, and Erin Rowland, Albertelli Law,

P.O. Box 23028, Tampa, FL 33623, judicial imposter Tony Perez, Magistrates Office, Debbie,

Supervisor, Fax: 239-252-8870, and Defendant Judge Hugh D. Hayes, Naples Courthouse, 3301

E. Tamiami Trail, Naples, FL 34112, on this 3rd

day of September, 2010.

The pleading is also being published worldwide.

________________________

/s/Jennifer Franklin Prescott, Prevailing Victim oflawfully seized BankUniteds record fraud


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Home/ Records Search / Court Records / Public Inquiry / Search Results - ALL / Case - 112009CA0060160001XX

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Case Information Printer Friendly Version

Style: BANKUNITED vs FRANKLIN-PRESCOTT, JENNIFER

Uniform Case Number: 112009CA0060160001XX Filed: 07/09/2009

Clerks Case Number: 0906016CA

Court Type: CIRCUIT CIVIL Disposition Judge: HAYES, HUGH D

Case Type: MORTGAGE FORECLOSURES Disposed: 08/12/2010

Judge: HAYES, HUGH D Reopen Reason:

Case Status: DISPOSED Reopened:Next Court Date: Reopen Close:

Last Docket Date: 09/02/2010 Appealed:

Parties

Dockets

Events

Financials

1 of 1 pages. Entries per page: 100

Date Text All Entries

07/09/2009 CA48/REAL PRO PERTY MORTGAGE FORECLOSURE (PRE 2010) (FILING)

07/09/2009 CIVIL COVER SHEET

07/09/2009 COMPLAINT

07/09/2009 NOTIC E OF LIS PENDENS

07/09/2009 PAID $10.00 PER ISSUANCE OF SUMMONS $40.00

07/09/2009 REAL PRO PERTY VALUATION SHEET

07/10/2009 SUMMONS ISSUEDJENNIFER FRANKLIN PRESCOTT/ WALTER PRESCOTT/ JOHN DOE/ MARY DOE/PLACED IN SOUTH FLORIDA PROCESS SERVERS BIN

09/03/2009 AFFIDAVIT OF NON-SERVICE OF SUMMONS MARY DOE

10/14/2009 AFFIDAVIT OF LOST OR IGINAL SUMMONS JOHN DOE

10/14/2009 AFFIDAVIT OF NON-SERVICE OF SUMMONS JOHN DOE

12/21/2009 AFFIDAVIT OF NON-SERVICE OF SUMMONS WALTER PRESCOTT

12/21/2009 AFFIDAVIT OF NON-SERVICE OF SUMMONS JENNIFER FRANKLIN-PRESCOTT

02/22/2010 NOTICE OF APPEARANCE

AS CO-COUNSEL BY ERIN M ROSE QUINN ON BEHALF OF PLT

04/06/2010 ALIAS SUMMONS ISSUEDJENNIFER FRANKLIN-PRESCOTT/WALTER PRESCOTT/PLACED IN PROVEST LLC BIN

05/20/2010 AFFIDAVIT OF NON-SERVIC E OF SUMMONS JENNIFER FRANKLIN PRESCO TT

05/20/2010 AFFIDAVIT OF NON-SERVICE OF SUMMONS WALTER PRESCOTT

06/15/2010 COR RESPONDENCE FROM COUNSEL TO CLERK

06/15/2010 AFFIDAVIT OF CONSTRUCT IVE SERVICE AS TO WALTER PRESCOTT

06/15/2010 AFFIDAVIT OF C ONSTRUCTIVE SERVICE AS TO JENNIFER FRANKLIN-PRESCOTT

06/15/2010 AFFIDAVIT OF CONSTRUCTIVE SERVICEAS TO ANY AND ALL UNKNOW N PARTIES CLAIMING

06/15/2010 AFFIDAVIT OF DILIGENT SEARCH AS TO WALTER PRESCOTT

06/15/2010 AFFIDAVIT OF DILIGENT SEARCH AS TO JENNIFER FRANKLIN-PRESCOTT

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06/15/2010 COR RESPONDENCE FROM C OUNSEL TO GULF COAST BUSINESS REVIEW

06/17/2010 LETTER TO GULF COAST BUSINESS REVIEW

06/17/2010 NOTICE OF ACTIONTO WALTER PRESCOTT/JENNIFER FRANKLIN-PRESCOTT & ANY AND ALL UNKNOWNPARTIES CLAIMING

06/17/2010 AFFIDAVIT OF MAILING MAILED 6/18/10

06/18/2010 CONFIRMATION OF EMAIL RECEIVED BY GULF CO AST BUSINESS REVIEW

07/07/2010 AFFIDAVIT OF PUBLICATIONNOTICE OF ACTION TO WALTER PRESCOTT/JENNIFER FRANKLIN-PRESCOTT/ANSWERWITHIN 30 DAYS OF FIRST P UBLICATION 6/25/10

07/09/2010 MOTIO N TO DISMISS BY JENNIFER FRANKLIN PRESCOTT

07/22/2010 NOTICE OF SERVICE MOTION TO DISMISS

07/22/2010 MOTIO N TO DISMISS BY JENNIFER FRANKLIN PRESCOTT /PRO SE

07/22/2010 MOTIO N TO ENJOIN / BY JENNIFER FRANKLIN-PRESCOTT -PRO SE

07/22/2010 NOTICE OF SERVICEOF PUBLISHED NOTIC E OF RECORD & MOT ION TO DISMISSBY DEFENDANT

07/23/2010 MOTION FOR CLARIFICATION OF COUNSEL

07/23/2010 MOTION TO DISMISS

07/23/2010 MOTIO N TO C LARIFY ALLEGED PLAINTIFFS PUBLISHED NOTICE OF RECORD FRAUD

08/12/2010 MOTIO N TO DISMISS PRO SE JENNIFER FRANKLIN PRESCOTT

08/12/2010 BANKRUPTCY BANKUNITED

08/12/2010 CA48/REAL PRO PERTY MORTGAGE FORECLOSURE (PRE 2010) (DISPOSITION)

08/17/2010 BANKRUPTCY BANKUNITED

08/17/2010 NOTICEOF BANKRUPT BANKUNITED INCIDENT REPORT APPARENT FALSIFICATIONS NOTICE

08/17/2010 NOTIC E OF BANKRUPT BANKUNITED

08/17/2010 NOTIC E OF BANKRUPT BANKUNITED DOCKET ALTERATIONS EVIDENCE

08/17/2010 NOTIC E OF BANKRUPT NON SERVICE NOTIC E

08/17/2010 NOTICEOF BANKRUPT BANKUNITED EMERGENCY DEMAND TO EXTINGUISH FRAUDULENTACTION

08/18/2010 NOTICE OF APPEALFROM ALTERATION OF RECOR D NO O RDER ATTACHEDNO FEES ENCLO SED

08/20/2010 CORR ESPONDENCE FROM

APPEAL CLEERK TO DCA W/NOTICE OF APPEALNO FEE INCLUDED

08/20/2010 BILLED APPEAL FILING FEE $150.00

08/26/2010 NOTIC E OF HEARING 9/2/10 @ 11:30 MOTIO NS TO DISMISS & ENJOIN

08/30/2010 NOTICE OF RELEASE OF LIS PENDENS FILED BY DEFENDANT

08/30/2010 FINAL DISPOSITION FORM

08/31/2010 NOTICEOF RELEASE & DISCHARGE OF FRAUDULENT LIS PENDENS BY DEFENENDANTJENNIFER FRANKLIN PRESCOT T

08/31/2010 FINAL DISPOSITION FORM BY DEFENDANT

09/01/2010 NOTICE OF SERVICE

09/01/2010 NOTICE OF SERVICE

09/01/2010 DEFENDANT NON CONTEST T O ANY MAGISTRATE

09/01/2010 OBJECTION TO MAGISTRATE

09/01/2010 NOTICE OF CANCELLATION OF HEARING 9/2/10 FILED BY DEFENDANT

09/01/2010 NOTIC E OF RECORDATION OF R ELEASE OF LIS PENDENS

09/01/2010 NOTICE OF SERVICEOF NOTICE OF DISPOSITION AND NON CONTEST TO ANY MAGISTRATE

09/01/2010 OBJECTION TO MAGISTRATE

09/02/2010 CANCELLED

09/02/2010 MINUTES - HEARING SEE SCHEDULE MINUTES FOR DETAILS

09/02/2010 RECEIPT FROM DCAACKNOWLEDGMENT OF NEW CASE FILED W/DCA 8/18/10 2D10-4158

09/02/2010 ORDER BY DCAAPPELLANT SHALL WITHIN 15 DAYS SHALL FILE AN AMENDED APPEAL


apps.collierclerk.com//Case.aspx?UC 2


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09/02/2010 ORDER BY DCAAPPELLANT SHALL FORWARD FILING FEE OR ORDER OF INSOLVENCY WITTHIN40 DAYS

09/02/2010 ORDER BY DCA APPELLANT SHALL SHOW CAUSE WITHIN 15 DAYS

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