IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT

IN AND FOR COLLIER COUNTY, FLORIDA

JENNIFER FRANKLIN-PRESCOTT, WALTER PRESCOTT, JOHN DOE, MARY DOE,

Counterclaimants,

vs. PREVIOUSLY DISPOSED CASE NO.: 09-6016-CA

BANKUNITED [non-successor in interest to bankrupt “BANKUNITED, FSB”],

DANIEL R. MONACO (personal & official capacity), CLERK OF COURT (personal &
official capacity), ALBERTELLI LAW,

Defendants on Counterclaim(s).
_____________________________________________________________________/

“NON-FINAL NOTICE OF APPEAL AND ORDER” & CONCLUSIVE EVIDENCE OF

UNENFORCEABILITY OF LOST/DESTROYED NOTE AND MORTGAGE, AND
LACK OF PERSONAL JURISDICTION OVER DEFENDANT/COUNTERCLAIMANTS

1. Hereby, Walter Prescott, Jennifer Franklin-Prescott, et al., file their Non-Final Notice of

Appeal and interlocutory Order.

APPEALABILITY OF NON-FINAL ORDER UNDER RULE 9.130

2. A non-final order that determines jurisdiction over the person is appealable. Fla. R. App. P.

9.130(a)(3)(C)(i). Subsumed under the general rubric of personal jurisdiction is the issue of

process and service, which has been one of several of Counterclaimants’ concerns here. See

Fisher v. Int'l Longshoremen's Ass'n, 827 So. 2d 1096, 1097 (Fla. 1st DCA 2002) (" 'The term

"jurisdiction of the person" refers to service of process or to the applicability of the long arm

statute to nonresidents.' " (quoting Warren v. Se. Leisure Sys., Inc., 522 So. 2d 979, 980 (Fla.

1st DCA 1988))).

THE 2ND DISTRICT COURT OF APPEAL HAS JURISDICTION

3. Therefore here, the 2nd District Court of Appeal has jurisdiction to review the trial court's

order to the extent that it concerns whether “BankUnited’s” unauthorized service by

publication gave the court personal jurisdiction over Prescott, Franklin-Prescott, et al.

4. Said Court must review de novo a trial court's ruling on a motion to dismiss. See Wendt v.

Horowitz, 822 So. 2d 1252, 1256 (Fla. 2002). Here prejudicially, “rocket docket” Judge

Daniel R. Monaco had not granted “defendants’” Motion to Dismiss during an illegal

“02/22/2011 hearing”.

RECORD OF INSUFFICIENT SERVICE BY PUBLICATION & NO JURISDICTION

5. Prescott, Franklin-Prescott, et al., have challenged the sufficiency of the service of process by

publication on, e.g., the ground that “BankUnited” failed to conduct a diligent search.

Because here, the falsely alleged constructive service has been challenged on the ground that

the plaintiff failed to conduct a diligent search, the trial court must determine whether the

plaintiff "reasonably employed knowledge at his command, made diligent inquiry, and

exerted an honest and conscientious effort appropriate to the circumstances, to acquire the

information necessary to enable him to effect personal service on the defendant." See Wolfe

v. Stevens, 965 So. 2d 1257, 1259 (Fla. 2d DCA 2007) (quoting McDaniel v. McElvy, 108

So. 820, 831 (Fla. 1926)). Here in its denial of “defendants’” motion to dismiss, the trial

court made no specific findings regarding “defendants’” challenge to the fraudulent

affidavit(s) for service by publication filed by “BankUnited”.

APPELLATE COURT MUST REVERSE FOR LACK OF PERSONAL JURISDICTION

6. Because here the deceptively alleged constructive service did not confer personal

jurisdiction, the trial court erred by failing to dismiss the claim. "If constructive service must

be used, then it confers only in rem or quasi in rem jurisdiction upon the court. A personal

2
 judgment against a defendant based upon constructive service of process would deprive a

defendant of his property without due process of law." See Bedford Computer Corp. v.

Graphic Press, Inc., 484 So. 2d 1225, 1227 (Fla. 1986); see also Honegger v. Coastal

Fertilizer & Supply, Inc., 712 So. 2d 1161, 1162 (Fla. 2d DCA 1998) ("A personal money

judgment necessitates in personam jurisdiction over the defendant.").

APPELLATE COURT MUST REVERSE DENIAL OF MOTION TO DISMISS

7. In Count II, paragraph 14, “BankUnited” had alleged:

“Plaintiff is obligated to pay its attorneys a reasonable fee for their services.
WHEREFORE, Plaintiff demands judgment against Franklin-Prescott, together with
interest, court costs and reasonable attorneys’ fees.”

Absent any genuine instruments, in Count III “BankUnited”

improperly sought personal relief against the defendant borrower:

“WHEREFORE, Plaintiff demands … all costs ,,, fee … that a deficiency judgment
be entered … against Jennifer Franklin-Prescott…”

8. Here as such, the Appellate Court must reverse the trial court's denial of “defendants’”

motion to dismiss as to Count II of the complaint, in which “BankUnited” improperly

requested fees and/or money damages on a breach-of-contract theory.

NON-FINAL ILLEGAL “ORDER SETTING [NON-JURY] TRIAL” IN DISPOSED CASE

9. The lower tribunal’s Docket showed the “03/09/2011 ORDER SETTING [NON-JURY]

TRIAL” in this previously disposed case:

“UNDELIVERED” ORDER SETTING ILLEGAL BENCH TRIAL WAS INVALID

10. Said illegal order was not “delivered”. Here, the lower tribunal failed to explain WHY and

HOW said illegal “order” was “undelivered”. Here, “BankUnited” had no right to enforce

3
 the destroyed/lost and non-reestablished instruments alleged in the facially frivolous

complaint.

NOTICE OF UNAVAILABILITY AND NATIONAL EMERGENCY

11. Appellant/Counterclaimant J. Franklin-Prescott had given notice of her unavailability.

Franklin-Prescott, a United Kingdom citizen, has family, friends, and property in the Pacific.

Here, a national emergency was declared after the devastating NZ earthquake, and

Franklin-Prescott cannot leave.

UNENFORCEABILITY OF LOST/DESTROYED NOTE AND MORTGAGE

12. Here, the record had conclusively proven the unenforceability of the alleged destroyed

and/or lost mortgage and/or note.

“BANKUNITED” MADE AFFIDAVITS IN BAD FAITH

13. Florida R. Civ. P. 1.510(g) states:

(g) Affidavits Made in Bad Faith. If it appears to the satisfaction of the court at any
time that any of the affidavits presented pursuant to this rule are presented in bad
faith or solely for the purpose of delay, the court shall forthwith order the party
employing them to pay to the other party the amount of the reasonable expenses
which the filing of the affidavits caused the other party to incur, including reasonable
attorneys‘ fees, and any offending party or attorney may be adjudged guilty of
contempt.
Here, “BankUnited’s” “robo-signed” and made so-called “affidavits” in bad faith.

“BankUnited” knew and had alleged that the time and manner of the destruction and/or loss

of the missing instruments was UNKNOWN.

NON-HOLDER BANK WAS NOT ENTITLED TO SERVICE BY PUBLICATION:

FRAUDULENT UNAUTHORIZED AFFIDAVITS OF DILIGENT SEARCH

14. “BankUnited”, a non-holder of the destroyed/lost mortgage was not entitled to enforce the

missing instruments. A mortgage holder may only resort to service of process by publication

"[w]here personal service of process or . . . service of process under s. 48.194 cannot be

4
 had." § 49.021, Fla. Stat. (emphasis added); see Taylor v. Lopez, 358 So. 2d 69, 70 (Fla. 3d

DCA 1978) (holding that section 49.021 only authorizes service by publication when the

plaintiff cannot effect personal service on a defendant).

COUNTERCLAIMANTS/APPELLANTS ASSERTED, E.G., FRAUD ON THE COURT

15. Generally, the existence of a compulsory counterclaim will render a judgment on the

original complaint non-final for appeal purposes. See Madura v. Turosienski, 901 So. 2d

396, 397 (Fla. 2d DCA 2005); City of Haines City v. Allen, 509 So. 2d 982, 983 (Fla. 2d

DCA 1987).

THE DISTRICT COURT HAS JURISDICTION PURSUANT TO RULE 9.130

16. This is “an Appeal of a non-final order pursuant to Florida Rule of Appellate Procedure

9.130”, and the District Court in Lakeland has jurisdiction. Here, Prescott’s, Franklin-

Prescott’s, et al., Non-Final Notice of Appeal is cognizable, e.g., under Florida Rule of

Appellate Procedure 9.130.

“BANKUNITED” HAD NO CAUSE OF ACTION AND NO RIGHT TO SUE

17. “The party seeking foreclosure must present evidence that it owns and holds the note and

mortgage in question in order to proceed with a foreclosure action.” See Lizio v. McCullom,

36 So. 3d 927, 929 (Fla. 4th DCA 2010). A plaintiff must tender the original promissory note

to the trial court or seek to reestablish the lost note under section 673.3091, Florida Statutes.

See State St. Bank & Trust Co. v. Lord, 851 So. 2d 790, 791 (Fla. 4th DCA 2003).

18. Here, “BankUnited” had failed to state a cause of action and did not own and hold the

alleged destroyed/lost instruments.

TRIBUNALS KNEW OF RECORD LACK OF INDORSEMENT

5
19. Moreover, if the note does not name the plaintiff as the payee, the note must bear a special

indorsement in favor of the plaintiff or a blank indorsement. See Riggs v. Aurora Loan

Servs., LLC, 36 So. 3d 932, 933 (Fla. 4th DCA 2010). Alternatively, the plaintiff may submit

evidence of an assignment from the payee to the plaintiff or an affidavit of ownership to

prove its status as a holder of the note. See Verizzo v. Bank of N.Y., 28 So. 3d 976 (Fla. 2d

DCA 2010); Stanley v. Wells Fargo Bank, 937 So. 2d 708 (Fla. 5th DCA 2006).

20. Here, the record on appeal does not contain the original note, evidence of an assignment of

the destroyed/lost mortgage and/or note to Appellee, or an affidavit of ownership by

Appellee. “Plaintiff”/Appellee “BankUnited” filed no other admissible pleadings,

depositions, answers to interrogatories, admissions, affidavits, and other materials to support

its contention that it owns and holds the alleged lost/destroyed note and mortgage. See Fla.

R. Civ. P. 1.510(c).

RECORD FRAUD ON THE COURT

21. Here absent the existence of any admissible evidence in the record, the previously disposed

case was never “at issue”. Without evidence demonstrating Appellee’s status as holder and

owner of the purported destroyed/lost note and mortgage, the unauthorized 02/22/2011

hearing was unlawful and fraud on the Court.

COUNSEL DECEIVED THE COURT ABOUT MISSING INSTRUMENTS

22. Courts cannot rely on the representations of counsel alone. “[An] attorney’s unsworn,

unverified statements do not establish competent evidence.” See Wright v. Emory, 41 So. 3d

290, 292 (Fla. 4th DCA 2010).

6
23. An appellate court may review only items considered by the trial court. Here, the

destroyed/lost instruments were never reestablished and not part of the record. See Poteat

v. Guardianship of Poteat, 771 So. 2d 569 (Fla. 4th DCA 2000).

FAILURE TO REFUTE COUNTERCLAIMANTS’ AFFIRMATIVE DEFENSES

24. A “party moving for summary judgment must factually refute and/or disprove the affirmative

defenses raised, or establish that the defenses are insufficient as a matter of law.” See LLC v.

TJCV Land Trust, 30 So. 3d 613, 618 (Fla. 4th DCA 2010) (quoting Leal v. Deutsche Bank

Nat’l Trust Co., 21 So. 3d 907, 909 (Fla. 3d DCA 2009)). Here, “BankUnited” failed to

refute the Counterclaimants’/Appellants’ affirmative defenses.

PREVIOUS “NON-FINAL NOTICES OF APPEAL AND ORDER” ON FILE

25. Appeal Clerk Cheryl Bishop had erred and not properly identified defendants’ previous
“Non-Final Notice of Appeal and Order”. See Bishop’s attached 02/22/2011 letter to James
Birkhold.
PREVIOUS INTERLOCUTORY APPEALS OF RECORD AND CLARIFICATION
26. Walter Prescott, Jennifer Franklin-Prescott, et al., had clarified their “02/18/2011” and
“02/24/2011” Interlocutory Appeal(s) and filed “APPELLANTS’ MOTION FOR
CLARIFICATION UNDER RULE 9.330”:

RECORD OF NOTICES OF “INTERLOCUTORY APPEALS”

27. Here, defendant(s) had prayed for “proper processing of their Notice(s) of Interlocutory
Appeal:
“WHEREFORE Jennifer Franklin-Prescott respectfully demands
1. Proper processing of this NOTICE OF APPEAL and/or INTERLOCUTORY
APPEAL;” See 02/24/2011 Non-Final Notice of Appeal.

HISTORY OF COURT ERROR ON THE RECORD

28. Here, there had been court error as evidenced by this Court’s erroneous entry of
Appellants’ Non-final Notice as “Final Civil Other Notice from Collier County”. See
attached DCA Docket.
ADOPTION BY REFERENCE OF NON-FINAL APPEAL NOTICES IN PLEADING
29. Appellants/“Defendants” hereby adopt by reference their previous “02/18/2011” and
“02/24/2011” Non-Final Notices of Appeal in this Pleading.

7
 “DEFENDANTS” WERE ENTITLED TO APPELLATE REVIEW
30. 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 Procedure 9.130 and was
appealable. See Rule 9.130(a).
31. Here, said non-final order permitted appellate review before the trial proceedings are
complete, and said Appellants Prescott, Franklin-Prescott, et al., have been invoking the
proper method for this Court’s review.
32. Florida Rule of Appellate Procedure 9.130(a) states:
RULE 9.130. PROCEEDINGS TO REVIEW NON-FINAL ORDERS AND
SPECIFIED FINAL ORDERS
(a) Applicability.
(1) This rule applies to appeals to the district courts of appeal of the non-final orders
authorized herein and to appeals to the circuit court of non-final orders when
provided by general law. Review of other non-final orders in such courts and non-
final administrative action shall be by the method prescribed by rule 9.100.
(3) Appeals to the district courts of appeal of non-final orders are limited to those that
(A) concern venue;
(B) grant, continue, modify, deny, or dissolve injunctions, or refuse to modify or
dissolve injunctions;
(C) determine
(i) the jurisdiction of the person;
(ii) the right to immediate possession of property …

33. Here, defendants had properly asserted/identified three basic avenues of and their
entitlement to appellate review:
a. Review of interlocutory orders permitted by Rule 9.130;
b. Review by extraordinary writ; and
c. Review of final orders.
34. 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 appealed that order at the end
of the case.]
DEMAND FOR COMMON LAW RELIEF
35. Here, Prescott, Franklin-Prescott, et al., have also asked that their Notices of Appeal be
treated as petitions for writ of certiorari (common law remedy).
RECORD OF 08/12/2010 DISPOSITION
36. 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 the UNKNOWN
destruction and/or loss of mortgage and/or note.

“ORDER” DEFINED
37. The term “order” Is broadly defined to include all final and interlocutory rulings of a lower
tribunal.
UNLAWFUL NON-FINAL ORDER BY LOWER TRIBUNAL

8
38. 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:

CIRCUIT COURT LACKS JURISDICTION

39. 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 judgment as long as an appeal
from a non-final order is pending); Jones v. Jones, 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 an appeal [of a non-final order] is pending. Fla. R.
App. P. 9.130(f)(Committee 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 order
during the pendency of appellate review of a non-final order").
MEMORANDUM IN SUPPORT OF LOWER TRIBUNALS LACK OF JURISDICTION
40. Here, “Defendants” had raised the issue of the circuit court's lack of jurisdiction to enter
final judgment. The Supreme Court, in Polk County v. Sofka, 702 So. 2d 1243, 1244-45
(Fla. 1997), refused to decide merits where a 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 authority and if want of jurisdiction appears at any stage
of the proceedings, 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 is because the limits of a court's jurisdiction are of "primary concern," requiring 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 which the petitioner sought review of
in the Supreme Court.]
THE CIRCUIT COURT HAD NO JURISDICTION AND ERRED
41. “A jurisdictional rule cannot be altered by the court or by agreement of the parties." See
Metellus v. State, 900 So. 2d 491, 495 (Fla. 2005).
“FINALITY” RULE
42. 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 (Fla. 1st DCA 1983).
MOTION FOR CLARIFICATION UNDER RULE 9.330
43. This motion for clarification states with particularity

9
 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.
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.
44. Here, the order shall not be deemed rendered as to any party until all of the motions are
either abandoned or resolved by the filing of a written order.
CLEAR SHOW OF CAUSE - THIS APPELLATE COURT HAS JURISDICTION
45. Here, Prescott and Franklin-Prescott had shown cause before the District Court:
“APPELLANTS’ RESPONSE TO COURT’S PREJUDICIAL “03/01/2010 ORDERS”,
NOTICE OF APPELLATE & LOWER COURTS’ ERRORS IN FAVOR OF BANK, AND
DEMAND FOR RELIEF AND INJUNCTION”

46. Appellants, Walter Prescott, Jennifer Franklin-Prescott, et al., conclusively evidenced their
rights to appeal and the jurisdiction of this Appellate Court as a matter of law. No final
order needed to be provided under the Rules.
ISSUES – SHOW OF CAUSE
47. Here clearly, Counterclaimants/Appellants
a. had the right to appeal a non-final order (interlocutory);
b. were not required to provide any final order.

Therefore here, this Court’s improper 03/01/2011 orders were prejudicial and extended the
“mass foreclosure” fraud-on-the-Court-scheme in the previously disposed action. Here
unlawfully, Defendant Clerk of the lower Court had removed the final disposition record
after “suggestion of bankruptcy”:

APPEAL CLERK’S ERROR ON THE RECORD

48. 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.
THIS APPELLATE COURT CLEARLY ERRED
49. On “March 1, 2011”, this Court allegedly wrote:
“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
50. Here, this Court knew that
a. Defendants/Appellants were not required to provide a final order;
b. Appellant(s) had appealed from fraud on the Court, corruption, and/or a non-final
order pursuant to Florida Appellate Rules of Procedure 9.130 [and not “9.110(d)”];
c. Appellants had not appealed from a “final order” under Rule 9.110(d);

10
 d. Appellants were of course not required to provide a copy of any final order;
e. No “final order” was “rendered” and/or could have possibly been “rendered”.

SAID 03/01/11 ORDER WAS PREJUDICIAL AND FOR IMPROPER PURPOSES

51. Accordingly, this Court had jurisdiction, and said Order of this Court was prejudicial
because it was for improper purposes of keeping the “defendants” away from this Court
(fraud on the Court).
“DEFENDANTS” WERE ENTITLED TO APPELLATE REVIEW
52. 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 Procedure 9.130 and was
appealable. See Rule 9.130(a).
53. Here, said non-final order permitted appellate review before the trial proceedings are
complete, and said Appellants Prescott, Franklin-Prescott, et al., have been invoking the
proper method for this Court’s review.
54. Florida Rule of Appellate Procedure 9.130(a) states:
RULE 9.130. PROCEEDINGS TO REVIEW NON-FINAL ORDERS AND
SPECIFIED FINAL ORDERS
(a) Applicability.
(1) This rule applies to appeals to the district courts of appeal of the non-final orders
authorized herein and to appeals to the circuit court of non-final orders when
provided by general law. Review of other non-final orders in such courts and non-
final administrative action shall be by the method prescribed by rule 9.100.
(3) Appeals to the district courts of appeal of non-final orders are limited to those that
(A) concern venue;
(B) grant, continue, modify, deny, or dissolve injunctions, or refuse to modify or
dissolve injunctions;
(C) determine
(i) the jurisdiction of the person;
(ii) the right to immediate possession of property …

55. 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.
56. This Court and the lower Court have known that “BankUnited” had no standing and no right
to sue Prescott, Franklin-Prescott, et al.
57. 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:

58. The lower court’s record evidenced that 3 (three) prima facie unlawful and unauthorized
hearings were scheduled after said 08/12/2010 disposition:

59. § 28.29, Florida Statutes (2010), Recording of orders and judgments, states:

11
 “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).
PREJUDICE EVIDENCE – FAILURE TO PROCESS INTERLOCUTORY APPEAL
60. On “02/24/2011”, Appellants/”defendants” in the previously disposed action had filed their
“NOTICE OF APPEAL FROM ROCKET DOCKET…” However here, the Clerk did not
process said Interlocutory Appeal:

Appellants demand correction of said fraud on the Court in favor of bank(s).

‘BankUnited’ HAD NO “RIGHT OF POSSESSION OF” DEFENDANT(S)’ PROPERTY
61. Here, “BankUnited” had no right to possession of defendant(s)’s property. Item (C)(ii) of
said Rule 9.1130 is intended to apply whether the property involved is personal or real as
here. It applies to cases in which a party seeks to take possession and/or title to real property.
62. Here, said Rule applied to this appeal to the circuit court of a non-final order as provided by
general law.
63. 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 foreclose and
sue Prescott and Franklin-Prescott
64. Here, the lower court’s record evidenced clear error and a proper appeal was taken.
65. Here, the highly meritorious issues for appellate review were perfectly isolated, identified,
and framed, and this Court has jurisdiction to review.
APPEAL FROM FRAUD ON THE COURT, AND FRAUDULENT NON-FINAL ORDER
66. Fraudulently, “mass foreclosure” Judge Monaco set the previously disposed case for non-
jury trial in the record absence of any jurisdiction and/or authority.

UNLAWFUL HEARINGS DEFRAUDED W. PRESCOTT, J. F.-PRESCOTT, et al.

67. Florida Rule of Appellate Procedure 9.130 is entitled:
9.130. PROCEEDINGS TO REVIEW NON-FINAL ORDERS AND SPECIFIED
FINAL ORDERS

THE LOWER COURT MAY NOT RENDER ANY FINAL ORDER

68. 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.

THIS COURT KNOWINGLY MIS-APPLIED RULE 9.110

69. 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 concealing
“BankUnited’s” fraudulent robo-signing and affidavits:

12
 9.110. APPEAL PROCEEDINGS TO REVIEW FINAL ORDERS OF LOWER
TRIBUNALS AND ORDERS GRANTING NEW TRIAL IN JURY AND NON-
JURY CASES

Here, this Court concealed designated certain instances in which interlocutory appeals may
be prosecuted under the procedures set forth in said Rule without any requirement to provide
a final order.
APPELLANTS WERE ENTITLED TO STAY IN PREVIOUSLY DISPOSED CASE
70. Stays of proceedings in lower tribunals should be liberally granted, in particular if the
interlocutory appeal involves fraud on the court and/or jurisdiction. See Rule 9.1130.
71. 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.
72. 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

73. On “March 1, 2011”, this Court allegedly wrote:
“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.”

74. 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, because there was no
rendition of any final judgment/order.
THIS COURT KNEW THAT NO “FINAL ORDER” WAS EVER RENDERED/FILED IN
DISPOSED WRONGFUL FORECLOSURE ACTION
75. 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 “rendered” before it is
ripe for appeal.
76. 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

13
77. Here, three times in a row, the lower Court, Clerk, and “BankUnited” agreed to schedule
unauthorized hearings in a disposed wrongful foreclosure action, and the “defendants” had
demanded relief and/or an injunction:

COMMON LAW CERTIORARI WAS AVAILABLE IN DISPOSED WRONGFUL CASE

78. 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 fundamental rights under
both the Federal and Florida Constitutions.
79. Otherwise irreparable harm will result from “robo” Judge Daniel R. Monaco’s wrongful
“mass foreclosure” fraud scheme in the previously disposed action.
ERRONEOUS UNLAWFUL RULING WAS APPEALABLE
80. 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 erroneous interlocutory
ruling which can be corrected by resort to common law certiorari.
81. Here, this Court and the lower Court knew that the Legislative Branch of Government had
instructed the Judicial Branch to illegally mass-reduce the foreclosure rocket docket in
order to “speed up the State’s economic recovery”.
82. 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, fraud,
satisfaction of judgment, or other grounds listed in Florida Rule of Civil 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 authority to set the previously disposed
case for non-jury trial.
APPELLANTS’/DEFENDANTS’ CHANGED ADDRESS OF RECORD
83. Hereby, Appellants restate their changed address of record:
Care/of Papanui PostShop
7 Main North Road, Papanui, Christchurch, 8053
New Zealand

DISMISSAL OF PREVIOUSLY DISPOSED ACTION UNDER RULE 1.420

84. 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.

08/12/2010 AUTOMATIC DISSOLUTION OF LIS PENDENS

14
85. 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

removal of the disposition record was fraudulent:

RECORD “SUGGESTION OF BANKRUPTCY”

86. 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.

Defunct “BankUnited, FSB” underwent bankruptcy.

COUNTERCLAIMANTS ARE ENTITLED TO TRIAL BY JURY

(SEE COUNT I; COUNTERCLAIM)
87. The Counterclaimants/Defendants had demanded and are entitled to trial by jury. Here,

the destroyed/lost instruments could not be reestablished.

THIS COURT ERRED & VIOLATED THE STRICT MANDATE OF RULE 1.440

88. RULE 1.440, SETTING ACTION FOR TRIAL, states:

(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.

15
 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

89. 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.

Continental Chemicals, Inc., 492 So.2d 724 (Fla. 1st DCA 1984); see also Broussard v.

Broussard, 506 So.2d 463 (Fla. 2d DCA 1987). Id.

90. Serious consequences occur when a case is set for trial prematurely as here prejudicially

and capriciously by “temporary” “rocket docket” Judge Daniel R. Monaco.

91. 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

so by filing a notice for trial.

DEFENDANTS’ RECORD OBJECTIONS & OBJECTIONS UNDER RULE 1.440

92. 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

destroyed and/or lost mortgage/note.

FRAUD ON THE COURT SCHEME BY RETIRED “ROBO” JUDGE MONACO

93. 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

16
 took place on 02/21/2011. Furthermore here, the illegal “02/22/2011 hearing” had been

amended and was then cancelled:

94. Fla.R.Civ.P. 1.440(c) provides that a Court may not set the trial less than thirty days from

the time of service of the notice for trial.

95. 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

on the trial with a built in thirty day hiatus.

96. On 02/17/2011, Defendants had filed their Affidavit conclusively evidencing fraud on the

Court and deliberate deprivations of due process and Counterclaimants’ fundamental

Florida and Federal Constitutional rights.

97. On 02/18/2011, Defendants had filed their Notice of Appeal.

98. On 02/21/2011, the hearing(s) were cancelled.

DISPOSED CASE WAS NOT AT ISSUE

99. Here, the pleadings were open, the pleadings not settled, and the case was not at issue. This

Court had no authority to set the case for non-jury trial.

100. Here at the time of the alleged fraudulent “02/22/2011, 9:00AM, hearing”, this case

which had been disposed on 08/12/2010, was disposed and not at issue:

17
101. 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 case was at issue.

NO TIMELY NOTICE OF TRIAL WAS FILED

102. Furthermore here, no notice for trial was filed. See Docket.

103. Said Court held that failure to adhere strictly to the mandates of Rule 1.440 was

reversible error.

ANY NOTICE OF TRIAL WOULD HAVE BEEN NULL & VOID

104. 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).

105. Fla.R.Civ.P. 1.440 must be strictly construed so as not to set a case for trial

prematurely.

106. In the event of amendments and/or open pleadings after a case is set, a new notice of trial

must be filed once the pleadings are again settled.

18
 DEPRIVATIONS, TAINTED COURT, AND DEMAND FOR RECUSAL

107. 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.

108. Here, this Court did not comply with said Rule and tainted any judgment. The

Counterclaimants defend against the Court’s deliberate deprivations of Counterclaimants’

rights to a jury trial.

109. Here, Defendant Judge Monaco knew and/or fraudulently concealed that

a. “BankUnited” had lacked any standing;

b. “BankUnited” had failed to comply with Florida Statutes and Rules of Civil Procedure;
c. The lost/destroyed instruments were not and could not possibly be reestablished;
d. On the facts and the law the party seeking affirmative relief had shown no right to relief.

EMERGENCY DEMAND FOR DISQUALIFICATION/RECUSAL

110. The Defendants/Counterclaimants had filed their

“EMERGENCY DEMAND FOR DISQUALIFICATION/RECUSAL OF

RETIRED ”ROBO” JUDGE D. R. MONACO & REMOVAL OF ‘ROCKET DOCKET’”

DEMAND FOR DISQUALIFICATION OF ROGUE “ROBO” JUDGE D. R. MONACO

111. "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).

112. 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 cancelled “hearing” on “02/22/2011”.

ILLEGAL “HEARING”-SCHEME & DECEPTION

19
113. Here, Defendant Clerk had reported a “9:00 AM” hearing, which did not take place on

02/22/2011.

EMERGENCY

114. It is an utter emergency when rogue Judges are allowed to

a. Partially and capriciously favor “plaintiff” bank(s);

b. Pervert the law and Florida and Federal Constitutions;
c. Deliberately deprive Defendants of their fundamental rights to due process;
d. Deliberately deprive Defendants of their fundamental rights to jury trial;
e. Inore Florida Supreme Court proceedings.

PRIMA FACIE PARTIALITY & FRAUD ON COURT BY DEFENDANT MONACO

115. 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).

COUNTERCLAIMANTS HAD DEMANDED RELIEF FROM EXTRINSIC FRAUD

116. Because of Monaco’s misconduct and collateral extrinsic fraud on the record, the
Defendants/Counterclaimants had filed their:

“EMERGENCY MOTION TO RELIEVE DEFENDANTS/COUNTERCLAIMANTS

FROM FRAUDULENT “ORDER” BY RETIRED “ROBO” JUDGE D. L. MONACO
AND VACATE PROCEEDINGS, ORDER, AND NON-JURY TRIAL”

D. R. MONACO DID NOT COMPLY WITH INTENT OF FLORIDA SUPREME COURT

20
117. Here, because of frivolous and/or insufficient bank complaints, the Florida Supreme
Court required verification of mortgage foreclosure complaints in amended Rule 1.110(b):

… require verification of mortgage foreclosure complaints involving residential real

property. The primary purposes of this amendment were (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.
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

118. A cause can be dismissed for fraud upon the showing of pretense, fraud, collusion

and/or other similar wrongdoing as conclusively evidenced in this case of alleged

lost/destroyed instruments.

119. Here on “02/22/2011”, rogue Judge Monaco had deliberately deprived the

Defendants/Counterclaimants of their rights to dismissal of the prima facie fraudulent

action.

120. 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.

121. 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

triers-of-fact in a jury trial and cannot be decided as a matter of law.

EVIDENCE OF PREJUDICE ON THE RECORD & JUDGE’S RECUSAL REFUSAL

122. 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

21
 legal sufficiency of a suggestion of prejudice and attempted to refute the charges of

partiality, he 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) (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 notorious “rocket docket”.

03/02/2011 COUNTERCLAIM & DEFENDANT JUDGE MONACO

123. On or around March 2, 2011, Defendants/Counterclaimants had filed their counterclaim:
“COUNTERCLAIM(S) AND DEMAND FOR TRIAL BY JURY
DEMAND FOR AFFIRMATIVE RELIEF IN ADDITION TO AFFIRMATIVE DEFENSES
DISPOSED WRONGFUL FORECLOSURE ACTION WAS NEVER AT ISSUE”

RECORD FRAUD & FRAUD ON THE COURT IN DISPOSED WRONGFUL ACTION

124. Defendants had raised well-evidenced fraud and fraud on the court issues.
08/12/2010 DISPOSITION RECORD & LACK OF “PLAINTIFF’S” STANDING
125. Bankrupt “BankUnited, FSB” was not any “plaintiff” and could not possibly be any
“party” to this previously disposed wrongful foreclosure action.
SUGGESTION OF BANKRUPTCY AND 08/12/2010 DISPOSITION
126. Here, Defendant Clerk knew that the wrongful foreclosure action had been disposed for,
e.g., lack of “plaintiff’s” standing after suggestion of bankruptcy:
“Report cases disposed when a suggestion of bankruptcy is filed. Cases involving
multiple defendants should not be reported disposed at this juncture if disposition is
still pending as to remaining defendants. The case is to be reported in the SRS
disposition category that results in the greatest amount of judicial activity (See
Number of Dispositions, page 4-2).” See CIRCUIT CIVIL 4-7 (Rev. Jan 2010).
DEFENDANT CLERK KNEW OF WRONGFUL DISPOSED ACTION
127. Here, Defendant Clerk, Darlene Muszynski, and Miriam Jugger knew that

22
 g. The wrongful action had been appropriately disposed and/or terminated;
h. The alleged note/mortgage were lost and/or destroyed;
i. The purported lost instruments were not and could not be reestablished;
j. “BankUnited” was not entitled to enforce the alleged missing instruments;
128. Here, this Court used the following definition of “disposition”:
Disposition: The final decision or judgment which terminates a judicial
proceeding. Examples include disposed by judge, disposed by jury, no file,
dismissed, transferred, convicted after plea, adjudication withheld, acquitted,
convicted, dismissed before hearing, dismissed after hearing, bond estreature and
non-jury trial.” See www.flcourts.org.
Here, the Court had reported the final decision and termination of the judicial proceeding,

and the Defendants/Counterclaimants were entitled to rely on said disposition.

DISPOSITION OF INAPPROPRIATELY PLEADED & FRIVOLOUS COMPLAINT

129. The Florida Supreme Court amended Rule 1.110(b) to
require verification of mortgage foreclosure complaints involving residential real
property. The primary purposes of this amendment were (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.

See In re Amendments to the Florida Rules of Civil Procedure, Supreme Court of Florida,
Rule 1.110; Form 1.924.

ON 02/18/11 DEFENDANTS HAD APPEALED & JUDGE LACKED JURISDICTION

130. Here, this Court knew that Defendants/Counterclaimants had filed their Notice of

Appeal on 02/18/2011 and that retired “robo” Judge Daniel R. Monaco:

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

23
131. 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.

DEF. CLERK KNEW OF PRECLUSION OF ANY JUDICIAL ENFORCEMENT

132. Defendant Clerk of Court, Dwight E. Brock, is the custodian of the Collier County

Public Records.

133. 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.

DEFENDANT CLERK KNEW THAT PLAINTIFF BANK LACKED STANDING

134. Here, bankrupt and defunct “BankUnited, FSB” had no standing, and the alleged

lost/destroyed instruments never transferred to “BankUnited”. See complaint.

135. Section 201.08(1)(a), Florida Statutes (2010), states:

201.08 Tax on promissory or non-negotiable notes, written obligations to pay

money, or assignments of wages or other compensation; exception.—
(1)(a) On promissory notes, nonnegotiable notes, written obligations to pay
money, or assignments of salaries, wages, or other compensation made, executed,

24
 delivered, sold, transferred, or assigned in the state, and for each renewal of the same,
the tax shall be 35 cents on each $100 or fraction thereof of the indebtedness or
obligation evidenced thereby. The tax on any document described in this
paragraph 1may not exceed $2,450.

DEFENDANT CLERK KNEW THAT DEFENDANTS HAD NOT BEEN SERVED

136. Defendant Clerk knew that the Defendants had not been served in compliance with
Florida Statutes.

The Supreme Court Task Force had proposed a new form Affidavit of Diligent
Search and Inquiry. In its petition, the Task Force explained that
many foreclosure cases are improperly served by publication. The new form was
meant to help prevent fraudulent affidavits of diligent search and inquiry as shown in
the instant case. Here, the Defendants were not served. The Supreme Court adopted
new form 1.924, with several modifications.

DEFENDANT CLERK LACKS AUTHORITY TO MAKE JUDICIAL DETERMINATION

137. Here, the Clerk was not authorized to make any judicial determinations, but proceeded

with wrongful judicial determinations, which harmed the Defendants/Counterclaimants in

favor of “BankUnited”.

DEFENDANTS DEMAND THAT PROCEEDING & ORDER BE VACATED

138. The Counterclaimants demand that this Court vacate said wrongful “order” and

proceeding.

PLEADINGS TO VACATE FRAUDULENT 02/22/11 PROCEEDING AND ORDER

139. Defendants/Counterclaimants have been moving to vacate the facially fraudulent

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:

Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc.

On motion and upon such terms as are just, the court may relieve a party or his legal
representative from a final judgment, decree, order or proceeding for the following
reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly
discovered evidence which by due diligence could not have been discovered in time
to move for a new trial or rehearing; (3) fraud (whether heretofore denominated
intrinsic or extrinsic), misrepresentation or other conduct of an adverse party; (4) the
judgment or decree upon which it is based has been reversed or otherwise vacated or

25
 it is no longer equitable that the judgment or decree should have prospective
application.

“SUGGESTION OF BANKRUPTCY” ON THE RECORD & CLERK’S ERROR

140. Defendant Clerk and/or Darlene Muszynski alleged a ”MEMORANDUM”:

“MEMO TO FILE regarding 09-6016-CA

Upon questions from case management regarding the status of this file, I found that a
Disposition record had been entered based on a document file by one of the defendants
regarding bankruptcy of the Plaintiff BankUnited. Upon communication with the Office
of the State Court Administrator and according to SRS [Summary Reporting System]
rules, this case was disposed by the Clerk in error. The error was corrected on February
21, 2011 and the status of the case …”

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.

141. 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

arithmetic disclosed said error and fraud scheme.

ADMINISTRATOR MIRIAM JUGGER’S “REPLY” OF PUBLIC RECORD

142. At 4:58 PM, Miriam Jugger “answered” on the record:

“Miriam Jugger [juggerm@flcourts.org]

Monday, February 21, 2011, 4:58 PM

RE: Collier Co SRS Disposition Question

Hi Darlene,

26
 … 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.

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
143. 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”

DEFENDANT CLERK UNLAWFULLY BACKDATED THE ALLEGED “MEMO”

144. Here, the Defendant Clerk had received a “helpful” e-mail from said administrator at
4:58 PM, and backdated the alleged “MEMORANDUM” to “02/21/2011“ for illegal
purposes of, e.g.:
a. Proceeding with an unauthorized hearing on 02/22/2011;
b. Deceiving the Defendants/Counterclaimants;
c. Perpetrating fraud upon the Court.

27
THE CLERK’S ACTIONS & BACKDATING HARMED THE COUNTERCLAIMANTS

145. 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.

146. 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.

08/12/2010 DISPOSITION AND “SRS” DISPOSITION REPORTING

147. Pursuant to Section 25.075, Florida Statutes, the Supreme Court developed a uniform

case reporting system. The Summary Reporting System (SRS), as it is commonly known,

provides the Office of the State Courts Administrator with data which assist the Supreme

Court in its management and oversight role. See CIRCUIT CIVIL PROCEEDINGS

MANUAL at http://www.flcourts.org/gen_public/pubs/srsmanual.shtml (Circuit Civil 2010

Revision). Section 25.075, F.S., states:

25.075 Uniform case reporting system.—

(1) The Supreme Court shall develop a uniform case reporting system, including a
uniform means of reporting categories of cases, time required in the disposition of
cases, and manner of disposition of cases.
(2) If any clerk shall willfully fail to report to the Supreme Court as directed by the
court, the clerk shall be guilty of misfeasance in office.
(3) The Auditor General shall audit the reports made to the Supreme Court in
accordance with the uniform system established by the Supreme Court.

148. Here, “defendant(s) filed suggestion [and conclusive evidence] of bankruptcy” and the

case was to be reported as disposed.

149. In error, the Clerk of Court had reported bankrupt “BankUnited, FSB” as a “plaintiff”.

150. Hereby, the Clerk is again instructed to submit any and all bills and communications to

the noticed changed address.

28
 WITHOUT AUTHORITY, ROBO JUDGE MONACO SET BENCH TRIAL

151. 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 unlawful amended, and then cancelled “02/22/2011 hearing”.

MISREPRESENTATION: BENCH TRIAL WOULD VIOLATE DUE PROCESS

152. 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 Court violated said Rule.

153. Any order setting this disposed case for “trial” would have to be sent to the

counterclaimants by the trial court in order to assure due process.

154. 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 30 days from the receipt of the order.

155. Apparently here, “robo” Judge Monaco seeks to deprive the defendants of due process.

156. 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).

157. 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., 432 So. 2d at 663.

29
158. Here, counterclaimants’ fundamental due process rights are being violated by the

defective notice of (non)-jury trial.

KNOWN LACK OF JURISDICTION

159. To allow “BankUnited” to sue defendants/counterclaimants in the previously disposed

wrongful foreclosure action, the court would have to determine that the destroyed/lost notes

and mortgages were valid, genuine, enforceable, and owned by “BankUnited”.

160. 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.

[IMPOSSIBLE] REESTABLISHMENT DEMANDED JURY TRIAL

161. Count I of the complaint demanded trial by jury [reestablishment of an alleged
destroyed and/or lost note and mortgage. The time and manner of the loss/destruction were
UNKNOWN]. Here, “BankUnited” and the Court knew that reestablishment was legally
impossible.

COUNTERCLAIM(S) AT COMMON LAW AND DEMAND FOR JURY TRIAL

162. The Counterclaim(s) is in four Counts and consists of

COUNT I: A suit for damages for fraud and misrepresentation;

COUNT II: An action to quiet title to certain real property;

COUNT III: A suit seeking damages for breach of contract; and

COUNT IV: An action for damages.

Specifically, the counterclaimants and/or counterclaims demand trial by jury on all

issues so triable.

163. Pursuant to Rule 1.170, the counterclaimants have claims for affirmative relief against

“BankUnited”, Albertelli Law, Daniel R. Monaco, and the Clerk of Court.

164. In this previously disposed case, the complaint sought to reestablish destroyed/lost

instruments and foreclose an alleged destroyed/lost mortgage/note on certain real property

30
 (25 6TH Street North Naples, FL), which is in the possession of the defendant

counterclaimants.

165. While the previously disposed wrongful foreclosure suit appears to be equitable in

nature, Count I of the complaint (facially impossible reestablishment after UNKNOWN

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.

COUNT 1 AGAINST “BANKUNITED”:

SUIT FOR DAMAGES FOR FRAUD AND MISREPRESENTATION

166. “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.

167. 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.

168. Walter Prescott was not the maker of any “loan modification agreement” as evidenced by

the December 2010 Notice of Filing of Original Loan Modification Agreement on file.

COURT’S KNOWN LACK OF JURISDICTION

169. 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

31
 or destroyed and are not in the custody or control of ‘BankUnited’, and the time and

manner of the loss or destruction is unknown.”

“BANKUNITED” MADE FALSE CLAIMS TO DEFRAUD THE

COUNTERCLAIMANTS

170. Purported “plaintiff” “BankUnited” does not own and hold any genuine note and mortgage.

171. “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-

41 (Fla. 3d DCA 1981).

172. Here, “BankUnited” even pleaded inability to establish holder in due course status

because of the UNKNOWN loss and/or destruction of the alleged instruments.

173. 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

possibly have been at issue here:

“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.”
174. Here, there was no evidence as to WHO possessed the note WHEN it was
lost/destroyed.
175. 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”.
176. [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.]
177. The alleged mortgage copy did not contain a copy of the alleged executed note.

32
178. “BankUnited” fraudulently prayed for reestablishment, no order reestablishing the lost
instruments was entered, and the wrongful action was disposed on 08/12/2010.
179. As a matter of law, reestablishment of the note was impossible under Ch. 673, Florida
Statutes, and the Uniform Commercial Code.
180. “BankUnited” is not in possession of the purported note and mortgage and not entitled to
enforce them.
181. “BankUnited” did not know WHO destroyed and/or lost the instruments WHEN and
HOW.
182. “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.
183. “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).
184. On 05/21/2009, “BankUnited, FSB” was seized.
185. Here, there had been seizure and transfer which prohibited re-establishment.
186. “BankUnited” never produced nor re-established any authentic note and/or mortgage as
proven by the evidence before this Court.
187. 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.
188. This Court knew that “BankUnited’s” facially fraudulent affidavits were sham.
189. 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.
190. “BankUnited” had to, but failed, to prove the terms of the alleged instruments and the
person’s right to enforce the alleged instruments.
191. Here, “BankUnited” failed to prove any terms, and the terms of the alleged obligation
and/or instrument were vague and ambiguous.
192. Here, Walter Prescott neither executed the purported note nor “loan modification
agreement”.
FRAUDULENT, NULL, AND VOID “AFFIDAVITS”

33
193. 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”.
194. 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.
195. Defendant counterclaimants did not default under the destroyed and/or lost note and
mortgage, and no payment was due to “BankUnited”.
196. “BankUnited” failed to assert any chain of title and/or assignment of the destroyed/lost
note and mortgage.
ALLEGED DESTROYED / LOST INSTRUMENTS / “LOAN MODIFICATION”
197. 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.

34
198. 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

prevention of an unsuccessful party [from] presenting his case, by fraud or deception

practiced by his adversary; keeping the opponent away from court; falsely promising
a compromise; ignorance of the adversary about the existence of the suit or the acts of
the plaintiff; fraudulent representation of a party without his consent and
connivance in his defeat…

COUNT I: FRAUD COUNTERCLAIM AGAINST DANIEL R. MONACO

199. 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

when he, e.g., overturned Judge Hayes’ previous 08/12/2010 disposition.

200. Here, “BankUnited’s” and Daniel R. Monaco’s conduct were collateral to the allegations,

exhibits, and issues complained of.

201. Retired temporary Judge D. R. Monaco had no authority to, e.g.:

a. overturn the 08/12/2010 disposition by [Disposition] Judge Hugh D. Hayes in the

absence of the court’s jurisdiction;

b. deny dismissal after the previous disposition by Judge Hayes;

c. preside over an amended and then cancelled illegal hearing on 02/22/2011 in the

excused absence of the counterclaimants.

35
 JUDICIAL ABUSE OF DISCRETION AND UNCONSTITUTIONAL ORDER

202. Thus, retired “robo” Judge Monaco’s non-jury trial did not square with the

requirements of the governing Constitutions and Statutes.

203. Accordingly, a jury trial on all issues triable by jury must be granted.

204. 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

205. 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

ready to be set for trial. Retired “robo” Judge Monaco has been in the pocket of the

bank(s), and the Court violated said Rule.

206. Any order setting this disposed case for “trial” would have to be sent to the defendant

counterclaimants by the trial court in order to assure due process.

207. 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

commence less than 30 days from the receipt of the order.

208. Apparently here, “robo” Judge Monaco seeks to deprive the defendant counterclaimants

of due process.

209. 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).

36
210. The 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., 432 So. 2d at 663.

211. Here, counterclaimants’ fundamental due process rights are being violated by the

defective notice of (non)-jury trial.

“ROCKET DOCKET” – FRAUD & SPEED INSTEAD OF JUSTICE

212. 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).

213. 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

Florida Rule of Civil Procedure 1.170.

214. 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

homeowners’ expense. The counterclaimants experienced and fear further prejudice.

215. 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

had performed all conditions precedent to enforce the destroyed/missing mortgage/note.

216. However here, “BankUnited” had asserted the UNKNOWN loss and/or destruction of

the purported instruments in its complaint. Furthermore, the evidence on file had

37
 conclusively proven non-performance of said conditions. See generally 37 Fla. Jur. 2d

Mortgages and Deeds of Trust § 287 (2002).

217. 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

defendant counterclaimants’ affirmative defenses and counterclaims. Thus, to allow 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.

TEMPORARY “ROBO JUDGE MONACO IS BIASED IN FAVOR OF BANK(S)

218. 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.

Jacobsen, 566 So. 2d 885 (Fla. 4th DCA 1990); WM Specialty Mortgage, LLC v. Salomon,

874 So. 2d 680, 682 (Fla. 4th DCA 2004).

219. Here as of “07/09/2009”, the date of filing suit, “BankUnited” was not any holder and/or

owner of nor entitled to enforce the destroyed and/or missing instruments.

220. “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

elementary that to be a holder, one must be in possession of the instrument).

221. Here, “BankUnited” had neither standing nor any real interest and could not have

possibly enforced the lost and/or destroyed instruments.

38
222. 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.

223. 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

the alleged note pursuant to the evidence on file.

224. Here no mortgage could possibly secure a non-existing obligation.

COUNT I: FRAUD COUNTERCLAIM AGAINST CLERK OF COURT

225. 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.

LACK OF AUTHORITY TO REMOVE 08/12/2010 JUDICIAL DISPOSITION

226. 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.

227. 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.

228. The Clerk had no judicial authority and was not to practice law at counterclaimants’
expense.

COUNT I: SUIT FOR DAMAGES FOR FRAUD AGAINST ALBERTELLI LAW

39
 FRAUD ON THE COURT ON THE RECORD

229. 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.

230. 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.

231. Here, Albertelli Law concealed that the required chain of title was not in evidence.

232. 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

but re-filed non-authentic copies of the lost/destroyed instrument(s).

233. 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

entitled to any “trial” and any “judgment” in its favor.

RECORD LACK OF ADMISSIBLE EVIDENCE IN DISPOSED WRONGFUL ACTION

234. Defendants did not execute and deliver an authentic promissory note and mortgage to

“BankUnited”.

235. Under Florida law delivery is necessary to validate a negotiable instrument.

236. Here, neither any note nor mortgage were assigned and delivered to “BankUnited”.

237. Here there was no delivery of any written assignment of any instrument to “BankUnited”.

“BANKUNITED” FAILED TO STATE A CAUSE OF ACTION & HAD NO STANDING

238. 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.

40
239. Here because Alfred Camner was the bankrupt bank’s founder, it was as if

“BankUnited, FSB” had asserted the loss/destruction of the alleged instruments.

240. Thereafter, Alfred Camner, Esq., Serena Kay Paskewicz, Esq., and/or the Camner Lipsitz

Law Firm were fired.

CONCEALMENT OF LOST AND/OR DESTROYED F.D.I.C. RECORDS

241. 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

documented in the institution's records.

242. 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

Deposit Insurance Corporation.

243. 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

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).

244. Said rule was codified by the Federal Deposit Insurance Act of 1950, § 13(e), 64 Stat.

889, as amended, 12 U.S.C. § 1823(e).

245. Here, the Court was obligated to determine and/or consider the lack of subject matter

jurisdiction as invoked by federal law.

RECORD FRAUD UPON THE COURT

246. "'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)

41
 [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).

247. 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.

RECORD OBJECTIONS TO UNCONSTITUTIONAL NON-JURY/BENCH TRIAL

248. 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.

249. The court failed to communicate and notice the counterclaimants.

250. 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

the parties inviolate."

251. 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.

42
252. The counterclaims are unquestionably suits at law seeking damages, the traditional

realm of the civil jury trial.

253. Thus, the issue with which this Court and its “rocket docket” must come to grips, then,

is how to secure inviolate counterclaimants’ rights of jury trial.

254. The claims at law are intermixed with the previously disposed wrongful foreclosure

action.

255. 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.

256. 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

Court held that:

[I]f a compulsory legal counterclaim entitles the counter-claimant to a jury trial on

issues which are not common to any issue made by the equitable complaint, the trial
court should proceed to try the equitable issue non-jury with appropriate provision
made for a jury trial as to the law issues if disposition of the equitable issues does not
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

demanding jury trial.

COUNT II – SUIT TO QUIET TTILE TO CERTAIN REAL PROPERTY

43
257. 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

frivolous and insufficient complaint.

DEMAND OF JURY TRIAL - QUIET TITLE / EJECTMENT ACTION(S)

258. In this instance, Florida's quiet title statute specifically authorizes a trial by jury. Section

65.061(1), Florida Statutes (2010), provides in pertinent part that:

…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.

259. 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

a jury trial on the issues raised by these counts in advance of any non-jury trial on the

previously disposed equitable matters.

COUNT III- SUIT FOR DAMAGES FOR BREACH OF CONTRACT

260. The counterclaimants are suing for breach of contract based on “BankUnited’s” record

actions of filing untrue affidavits and failure to account.

261. “BankUnited” materially breached its duty of good faith and fair dealing, which

resulted in proximate damages.

FACIALLY FRAUDULENT ACCOUNTING & NULL & VOID AGREEMENT

44
262. As witnessed and/or notarized, the alleged destroyed/lost “loan modification

agreement” was not signed and executed by “defendant” Walter Prescott and therefore

unenforceable (not legally binding).

263. Even though said “modification agreement” was not legally binding, “BankUnited”

wrongfully sought to enforce the null & void “agreement”:

“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

“7.625% interest rate”.

264. The “modified” mortgage was never recorded, and there was no evidence of taxes paid,

which rendered the alleged lost mortgage unenforceable.

BANK KNEW OF RECORD ABSENCE OF CONTRACTUAL OBLIGATION

265. 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

contract and no novation.

"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
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.

45
 DEMAND FOR JURY TRIAL & MEMO BY DEFENDANT COUNTERCLAIMANTS

DEFENDANTS’ COUNTERCLAIM & DEMAND FOR JURY TRIAL

266. 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).

267. 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.

268. 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

Losurdo, Inc., 440 So.2d 621 (Fla. 2d DCA 1983).

269. Here, “BankUnited” did not dispute that it failed to rebut defendants’ affirmative

defenses.

270. Here, Defendants’ action/compulsory counterclaim for, e.g., damages for fraud and

breach of contract, were both common law actions for damages.

271. 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.

DEFENDANT COUNTERCLAIMANTS ARE ENTITLED TO JURY TRIAL

46
272. Here, the compulsory counterclaim entitled the defendant counter-claimants to

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

since to do so would deprive the defendant counter-claimants of their constitutional rights

to trial by jury.

273. 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

court dispose of the equitable issues that were remaining.

274. Here, the rule is that even where a complaint lies solely in equity, the filing of a

compulsory counterclaim seeking remedies at law entitles the counterclaimant(s) to

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).

275. “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

v. Bigoney, 156 So.2d 501 (Fla. 1963); Spring, supra.

276. This court cannot determine the factual issues of fraud and misrepresentation without

evidence and without a fact-finding jury.

277. Thus, the Court must first resolve the affirmative claims and defenses of fraud and

misrepresentation. Any other way would be error.

47
278. 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

demanded recusal for fear of further bias.

APPEAL AFTER PREJUDICIAL AND UNLAWFUL “02/22/2011 HEARING”

279. The defendants in this disposed wrongful mortgage foreclosure action appealed the

order(s) entered at the illegal and cancelled “02/22/2011 hearing”.

280. 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

counterclaim when it set a “trial” during said unlawful “hearing”.

RECORD PREJUDICE AND ERROR

281. Here, it would be error to proceed with the previously disposed wrongful foreclosure

action before jury trial on the interrelated legal counterclaim(s).

282. This court did not have the discretion to deny the demanded jury trial on these factual

issues and Motion(s) to Dismiss after the 08/12/2010 disposition.

DEFENDANT COUNTERCLAIMANTS DEMANDED JURY TRIAL

283. Defendant counterclaimants had demanded trial by jury.

284. Defendants are entitled to trial by jury on, e.g., Count I of Plaintiff’s complaint

(reestablishment of lost instruments).

285. Here, defendants have a fundamental right to jury trial in Florida’s State Courts.

286. The Florida Constitution expressly provides for the right to trial by jury. Article I,

Section 22, of the Florida Constitution provides:

§ 22. Trial by Jury

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.

48
287. 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.

Amend VII, U.S. Const.

288. Florida courts have consistently highlighted the importance of the right to a trial by

jury.

289. "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)).

MEMORANDUM OF LAW IN SUPPORT OF JURY TRIAL – “REESTABLISHMENT”

290. 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.

291. 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,

App. 3 Dist., 97 So.2d 494 (1957).

49
292. 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

demand a jury trial.

WHEREFORE counterclaimants respectfully demand

1. An Order declaring the record lack of any jurisdiction over the person (defendants);

2. 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;

3. An Order striking the bench-trial for the foresaid grounds and non-compliance with said

Rule 1.440;

4. An Order vacating the fraudulent 02/22/2011 proceeding and “order”;

5. An Order for the disqualification/recusal of retired “robo” Judge Daniel R. Monaco;

6. An Order for the removal of said “rocket docket”;

7. An Order vacating the prejudicial non-jury trial;

8. An Order for compensatory and punitive damages in favor of counterclaimant fraud

victims;

9. An Order for compensatory and punitive damages for breach of contract in favor of

counterclaimants;

10. 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;

11. An Order dismissing the previously disposed wrongful foreclosure action because

“BankUnited” had no standing and failed to state a cause of action;

12. An Order canceling any non-jury and/or bench trial;

50
13. An Order declaring rogue “robo” Judge Monaco’s lack of jurisdiction to overturn and/or

remove the 08/12/2010 disposition record after Franklin-Prescott’s 02/18/2011 Notice of

Appeal;

14. An Order properly setting this Motion to Dismiss for hearing so that Franklin-Prescott can

attend without the illegal interference by rogue retired Judge Monaco;

15. Proper processing of this NOTICE OF APPEAL and/or INTERLOCUTORY APPEAL;

16. 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

this disposed case;

17. An Order declaring the “correction of the disposition record” unlawful and prejudicial at

Franklin-Prescott’s expense;

18. An Order enjoining retired robo Judge Monaco from any further deliberate deprivations

of Franklin-Prescott’s fundamental Federal and Florida Constitutional rights to own her

property without judicial fraud and fraud on the court;

19. An Order taking judicial notice of said binding precedent (BAC Funding) in support of the

record 08/12/2010 disposition;

20. 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

the 08/12/2010 disposition;

21. 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;

51
22. An Order declaring the cancelled “02/22/2011 hearing” unauthorized in this disposed

action;

23. An Order declaring “BankUnited’s” prima facie sham “motion(s)” and “affidavits”

unlawful in this previously disputed and disposed action;

24. An Order declaring the purported note and/or mortgage unenforceable;

25. An Order taking judicial notice of the prima facie unenforceability of the unrecorded,

un-assignable, and unpaid mortgage (unpaid mortgage taxes);

26. An Order declaring the purported “plaintiff” to be in violation of Fed.R.Civ.P. 1.510 in this

disposed and previously controverted action;

27. 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;

28. An Order declaring said affidavits “hearsay” and lacking any legal and/or factual basis in

the absence of any authentic “note” and/or mortgage;

29. 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;

30. An Order prohibiting Counsel and/or Jason M. Tharokh, Esq., who did not file any notice

from appearing in this disposed action.

Respectfully,
/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,

52
Hon. Hugh D. Hayes, and retired Hon. Daniel R. Monaco, Courthouse, Naples, FL 34112, USA,

on March 16, 2011.

Respectfully,

/s/Walter Prescott, foreclosure fraud victim

/s/Jennifer Franklin-Prescott, fraud victim
Care/of Papanui PostShop
7 Main North Road, Papanui, Christchurch, 8053
New Zealand

53
DOCKETS

54
55
03/15/2011 FILING

56
08/12/2010 DISPOSITION RECORD EVIDENCE

57
APPEAL CLERK’S RECORD ERROR

58
59
60