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IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA

BANKUNITED, non-successor in interest to [lawfully seized] BANKUNITED, FSB.,

purported plaintiff(s),

vs. DISPOSED CASE NO.: 09-6016-CA JENNIFER FRANKLIN-PRESCOTT, et al.,

purported defendants. _________________________________________________________________________/

MOTION TO DISMISS BY JENNIFER FRANKLIN-PRESCOTT

AFTER SHAM HEARING BEFORE ROGUE ROBO JUDGE D. R. MONACO

08/12/2011 DISPOSITION BY DISPOSITION JUDGE HUGH D. HAYES

1. On 08/12/2010, the wrongful foreclosure action had been disposed.

JENNIFER FRANKLIN-PRESCOTT WAS ENTITLED TO DISMISSAL

2. Here, Jennifer Franklin-Prescott was entitled to the dismissal of the prima facie frivolous

and insufficient complaint as evidenced by the 08/12/2010 disposition and lack of

“BankUnited’s” standing.

ABUSE / MONACO HAD NO JURISDICTION TO OVERTURN DISPOSITION

3. Here, retired robo Judge Monaco had no jurisdiction to overturn the record 08/12/2010

disposition. On 02/18/2011, i.e. before said fraudulent hearing, Franklin-Prescott had filed

her Notice of Appeal and attacked Monaco’s record abuse of discretion.

4. Here, no reasonable and fair judge and/or person in Monaco’s shoes could have possibly

expected Franklin-Prescott at a cancelled and unauthorized hearing after disposition.

ROGUE JUDGE MONACO DISRESPECTS THE RULE OF LAW

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5. Here, rogue Judge Monaco abused his discretion when he perpetrated fraud on the

Court and “denied” Franklin-Prescott dismissal and the right to attend a hearing of her own

Motions.

ESTOPPEL PROHIBITED ROGUE MONACO FROM OVERTURNING DISPOSITION

6. Here, Franklin-Prescott was entitled to rely on the 08/12/2010 disposition record evidence

and hearing cancellation record evidence.

7. Furthermore here, no hearing ever took place at the recorded “09:00 court time”. Here,

Monaco was prohibited from overturning the disposition while the matter was under

appeal.

STEAMROLLING AND FRAUD ON THE COURT BY ROGUE JUDGE MONACO

8. Because retired Judge D. R. Monaco is in the pocket of banks and/or lenders, Monaco kept

Franklin-Prescott away from the court and out of the courtroom on 02/22/2011. Here,

Monaco deliberately deprived Franklin-Prescott of her fundamental right to an appeal and

to appear in court for the hearing of her own Motions to Dismiss and Enjoin after the

08/12/2010 disposition.

JACS - JUDICIAL AUTOMATED FORECLOSURE SYSTEM

9. Here, the judicial system was rigged so that Franklin-Prescott did not even have a chance to

be heard and/or be treated fairly. Monaco abused the “Judicial Automated Calendaring

System (JACS)” to take advantage of Franklin-Prescott in her absence.

10. The hearing had been amended and then cancelled, and JACS prohibited any 02/22/2010

hearing. “Automated foreclosure” is illegal and prejudicial, and Franklin-Prescott appealed

from it.

DISPOSITION EVIDENCE WAS REMOVED AFTER ILLEGAL 02/22/11 HEARING

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11. After the cancelled and unlawful “02/22/2011 hearing”, the disposition record evidence

was removed from the Docket.

12. Here, Monaco tampered with the disposition record evidence to prejudice Franklin-

Prescott and deliberately deprive her of the dismissal and/or disposition in her favor.

13. Because Monaco knew that the record disposition status and Rules prohibited any

hearing, Monaco had the disposition evidence removed after the illegal 02/22/2011 hearing.

RECORD AFFIRMATIVE DEFENSES IN SUPPORT OF DISPOSITION

14. Monaco knew and/or concealed Franklin-Prescott’s record affirmative defenses which had

entitled her to disposition and/or dismissal

NOTICE OF APPEAL AS FILED ON 02/24/2011

15. On 02/24/2011, Prescott filed her “NOTICE OF APPEAL FROM “ROCKET

DOCKET”, ROBO JUDGE(S) ‘02/22 ORDER’,“CORRECTION” OF DISPOSITION &

FRAUD ON THE COURT IN DISPOSED CASE”.

16. “08/12/2011 DISPOSITION” RECORD EVIDENCE

17. “02/08/2011” “AMENDED HEARING” RECORD

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OBJECTIONS TO “02/22/2011 ORDER” AND ILLEGAL “02/22/2011 HEARING” 18. The prima facie unauthorized “02/22/11 hearing” had been “amended” on 02/08/2011 and

then cancelled on 02/21/2011:

19. The purported “02/22/2011 order” arose from an unlawful and previously cancelled hearing.

02/18/2011 NOTICE OF APPEAL AND 02/21/2011 CANCELLATION OF HEARING

RETIRED MONACO HAD NO AUTHORITY TO DENY PRESCOTT’S MOOT MOTION 20. After the 02/18/2011 NOTICE OF APPEAL, 02/21/2011 CANCELLATION OF

HEARING 2/14/2011, and 08/12/2010 DISPOSITION, Judge Daniel R. Monaco had no authority to “deny” Jennifer Franklin-Prescott’s moot motions to dismiss & enjoin.

ARBITRARY REMOVAL / “CORRECTION” OF “08/12/2010 DISPOSITION” RECORD

21. After the unlawful “02/22/11 hearing”, the Docket showed the removal and/or “correction” of the “08/12/2010 disposition”:

WHEREFORE, Jennifer Franklin-Prescott respectfully demands a legal explanation of said

arbitrary and capricious “correction” and a copy of said “MEMORANDUM REGARDING

CORRECTION OF THE DISPOSITION RECORD”.

RETIRED JUDGE “RECYCLES” COMPLAINT OF BANK THAT LACKS STANDING

22. Here, the wrongful foreclosure action had been disposed on 08/12/2010 after Prescott had

filed her Motion(s) to Dismiss. Here, retired Monaco failed to take judicial notice of the

08/12/2010 disposition and case file evidence. Here, Monaco did not read the case file(s)

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any more than the robo-signer at “BankUnited” and/or “Albertelli law”. One attorney

described the sham process and bias towards the bank:

“If the court finds for the defendant, the plaintiffs just re-file. The only way for the caseload to get reduced is to give the case to the plaintiff. The entire process is designed with that fraudulent result in mind.”

Here after disposition in favor of Franklin-Prescott, the court system has been rigged to

enable “BankUnited” to commit fraud all over again. Monaco had no authority to overturn

Judge Hayes’ disposition without any justification. Here after 08/12/2010, the motion to

dismiss had been moot. For financial gain, retired Judge Monaco “re-opened” the closed

door for the “plaintiff” so that “BankUnited” may continue to conceal its lack of note and

standing.

ROBO JUDGE MONACO CONCEALED PERVERSION OF LAW AND FACT

23. Here, “BankUnited” could not possibly obtain any termination of a purported equitable right

of redemption by court order, because no admissible evidence of debt, genuine instrument,

and/or promissory note was on file in this disposed case. Robo Judge Monaco knew and/or

concealed that “BankUnited’s” robo-signed sham affidavits were null and void.

OBJECTIONS TO HEARING BEFORE RETIRED JUDGE AFTER DISPOSITION

24. Here, Jennifer Franklin-Prescott had objected to the retired judge’s prejudice and rejection

of correspondence and pleadings evidencing said fraud on the Court.

25. Airlines understand the risks of retired old pilots. Similarly, courts should not “hire”

temporary judges who need the extra money to sign off on prima facie fraud and may lack

the necessary understanding of instruments that did not even exist when they were on the

bench.

PREJUDICE AGAINST PRESCOTT IN FAVOR OF BANK ON THE RECORD

26. Jennifer Franklin-Prescott contacted Court Administration, which advised her of an alleged

“Order” prejudicing Prescott.

RECORD PREJUDICE AGAINST FRANKLIN-PRESCOTT

27. Hon. Daniel R. Monaco, a retired “temporary” judge reportedly “denied” Franklin-

Prescott’s [moot] motion(s) in her absence and without any authority.

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NOTICE OF APPEAL & RESPONSE TO UNLAWFUL HEARING & TRIAL

28. Hereby, Jennifer Franklin-Prescott appeals from said alleged “02/22/2011 order” and

responds to the fraud on the Court and retired Judge Daniel R. Monaco.

In this disposed case, retired Monaco presided over said unauthorized and cancelled

02/22/2011 hearing in the excused absence of unavailable Franklin-Prescott and set an

unlawful “trial”. Here, Monaco knew and/or concealed that “BankUnited” had no standing

and/or real interest as conclusively evidenced by the file records.

Because of the devastating NZ earthquake, Franklin-Prescott attached the “order” as shown

on the Clerk’s Docket.

NOTICE OF ILLEGALITY OF “TRIAL SET” ON 02/22/11 & UNAVAILABILITY

29. Under the well-proven circumstances, retired Judge Monaco had no authority to “set trial

date for April 7, 2011” during said unlawful hearing. Here, Monaco deliberately deprived

J. Franklin-Prescott who was entitled to dismissal in this disposed wrongful foreclosure

action. Here, Monaco concealed that the filed evidence had conclusively proven

“BankUnited’s” lack of standing and any entitlement to any trial.

30. Because of the devastating New Zealand earthquake, Franklin-Prescott is unavailable.

Furthermore, Prescott fears further deliberate deprivations by retired robo Judge

Monaco, who presides over the notorious 20th Circuit “rocket docket”.

COURT DELIBERATELY DEPRIVED PRESCOTT OF FUNDAMENTAL RIGHTS

31. Franklin-Prescott had a fundamental Federal & Florida Constitutional right to attend any

hearing of her own motions to dismiss and enjoin. However, Monaco deprived Prescott of

said fundamental right to benefit “BankUnited”.

ERRONEOUS AND AMBIGUOUS HEARING DATES & TIMES

32. The Docket showed an erroneous “hearing” and/or ”court time” of 09:00 AM:

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While here the Clerk recorded said “09:00 Court Time”, Court Administration conflictingly

stated otherwise. No hearing took place at 9:00AM. This Court deceived homeowner

Franklin-Prescott about said

a. “Amended hearing”; b. Cancellation of said amended 02/22/2010 hearing; c. Vague and ambiguous “court times”.

UNAUTHORIZED “02/22/2011 HEARING” IN FAVOR OF “BANKUNITED”

33. For personal financial gain, retired Judge Daniel R. Monaco favored “BankUnited”. Here,

“temporary” Judge Monaco knew that no authentic note existed and that “BankUnited” had

no right to sue, schedule a hearing, and/or foreclose on Prescott. Foreclosure of any right of

redemption could only occur if there had been a contractual obligation. However here, no

admissible evidence of any genuine executed note existed on the record.

RETIRED ROBO JUDGE D. R. MONACO CONCEALED ILLEGALITY OF HEARING

34. Here, “rocket docket” Judge Monaco failed to take notice of the file evidence and

08/12/2010 disposition. Here, the judicial mission was not justice but speed and favors to

“BankUnited” at Prescott’s expense. Monaco’s “rocket docket” launders fraudulent banking

acts. Because banking crimes are so pervasive, Judges of the 20th Judicial feverishly rubber-

stamp the fraud away. Apparently in need of extra money, retired Judge Monaco presided over

said unauthorized and cancelled hearing and the “correction” of the 08/12/2010 disposition

record in the known absence of any note evidence.

D. R. MONACO KNEW THAT THE ALLEGED NOTE WAS NOT AUTHENTIC

35. Here, temporary Judge Monaco knew and/or concealed that Prescott had controverted the

authenticity of the purported note. Defendant Walter Prescott had not executed the alleged

note pursuant to the evidence on file. Here, Monaco knew that there had been no proper

execution, no notarial acknowledgment, no recording, and no contractual obligation.

36. Here no mortgage could possibly secure that which had been proven not to exist.

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20TH CIRCUIT “ROCKET DOCKET” - BEAT-THE-CLOCK JUDICIAL TRICKERY

37. The notorious 20th Judicial Circuit has heard up to 1,000 cases per day. Assuming an 8-hour

day, this equated to less than 30 seconds per case.

NO RULE-OF-LAW AND NO “REOPEN REASON”

38. Here, the Docket showed “Judge Hugh D. Hayes” and the lack of any “Reopen Reason”:

Here, Monaco’s “rocket docket” was devoid of due process and the rule of law. WHY and

HOW retired robo Judge Monaco was authorized to preside over the unauthorized and

cancelled 02/22/11 hearing and overturn Judge Hayes’ 08/12/2010 disposition could not be

explained by any reasonable person, judge or juror in Monaco’s shoes.

NATIONAL EMERGENCY AND PRESCOTT’S NOTICE OF UNAVAILABILITY

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

Pacific. A national emergency was declared after the devastating NZ earthquake.

Franklin-Prescott cannot leave because of said emergency and will therefore be unavailable.

Hereby, Franklin-Prescott gives again notice of her unavailability.

PRESCOTT FEARS FURTHER FRAUD, DEPRIVATIONS & SHAM PROCEEDINGS

40. After said unlawful “02/22/2011 hearing”, Prescott fears that Monaco may further extend

his prima facie bias and again deprive her of due process and fundamental rights to defend

against “BankUnited’s” fraud on the court.

41. Because here no reasonable person, juror or judge could possibly explain the record errors,

contradictions, and arbitrary acts in this disposed case, Franklin-Prescott cannot possibly

trust Judge Monaco, said Circuit, and said “rocket docket” sham proceedings.

NO FEBRUARY HEARING HAD APPEARED ON THE 02/18/2011 DOCKET

42. Here, the 02/18/2011 Docket had not shown any hearing and/or hearing date:

UNKNOWN LOSS / DESTRUCTION OF PURPORTED PROMISSORY NOTE

43. On behalf of “BankUnited”, bankrupt BankUnited, FSB’s founder Alfred Camner, Esq., had

asserted in the complaint:

“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.”

Here, no copy of any genuine promissory note identifying “BankUnited” was attached to the

complaint.

COPY OF MORTGAGE IDENTIFIED BANKRUPT “BankUnited, FSB” AS “LENDER”

44. BankUnited had attached a copy of the mortgage it sought to foreclose to the complaint;

however, said document identified lawfully seized “BankUnited, FSB” as the "lender".

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BankUnited had also attached an "Adjustable Rate Rider" to the complaint, which however

also identified bankrupt “BankUnited, FSB” as the "lender."

RECORD PROOF OF LACK OF STANDING

45. Prior to the 08/12/2010 disposition, Jennifer Franklin-Prescott had proven BankUnited’s

lack of standing, answered, and filed a motion to dismiss.

BANKUNITED’S FAILURE TO STATE ANY CAUSE OF ACTION

46. This action was disposed, because BankUnited had failed to state any cause action.

ATTACHMENTS PROVED BANKUNITED’S LACK OF STANDING & CAUSE

47. On 08/12/2010, the action was disposed, because Franklin-Prescott had proven that none of

the attachments to the facially frivolous and insufficient complaint showed that BankUnited

actually held the note or mortgage, thus giving rise to the disposition and question as to

whether BankUnited actually ever had standing to foreclose on the mortgage.

BANKUNITED’S FALSE PRETENSES & FRAUD ON THE COURT

48. In this disposed action, BankUnited had falsely pretended:

“16. Plaintiff owns and holds the note and mortgage.” See COUNT II.

While here “BankUnited” had fraudulently alleged in its unverified complaint that it was the

holder and/or owner of the purported note and mortgage, the copy of the mortgage attached

to the complaint listed "BankUnited, FSB" as the "lender". No authentic note identifying

“BankUnited” was attached.

BANKUNITED’S EXHIBITS CONTRADICTED ITS ALLEGATIONS

49. When exhibits are attached to a complaint, the contents of the exhibits control over the

allegations of the complaint. See, e.g., Hunt Ridge at Tall Pines, Inc. v. Hall, 766 So. 2d 399,

401 (Fla. 2d DCA 2000) ("Where complaint allegations are contradicted by exhibits

attached to the complaint, the plain meaning of the exhibits control[s] and may be the basis

for a motion to dismiss."); see Blue Supply Corp. v. Novos Electro Mech., Inc., 990 So. 2d

1157, 1159 (Fla. 3d DCA 2008); Harry Pepper & Assocs., Inc. v. Lasseter, 247 So. 2d 736,

736-37 (Fla. 3d DCA 1971) (holding that when there is an inconsistency between the

allegations of material fact in a complaint and attachments to the complaint, the differing

allegations "have the effect of neutralizing each allegation as against the other, thus

rendering the pleading objectionable").

08/12/2010 DISPOSITION FOR LACK OF STANDING & FAILURE TO STATE CAUSE

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50. Because the exhibits to BankUnited's complaint conflicted with its allegations

concerning standing and the exhibits did not show that BankUnited had any standing to

foreclose the mortgage, BankUnited did not establish its entitlement to foreclose the

mortgage and/or sue as a matter of law. Accordingly, the action was disposed on 08/12/2010.

“BANKUNITED” WAS NEVER IDENTIFIED AND HAD NO RIGHTS TO ENFORCE

51. Moreover, while BankUnited filed the purportedly lost “original note” after the 08/12/2010

disposition, the non-authentic and non-executed note did not identify “BankUnited” as the

lender or holder. BankUnited also did not attach any assignment or any other evidence to

establish that it had purchased the note and mortgage. Further, BankUnited did not file any

supporting affidavits or deposition testimony to establish that it owns and holds the purported

note and mortgage. Accordingly, this Court disposed the action on 08/12/2010, because the

documents before it did not and could not possibly establish BankUnited's standing to

foreclose the purported note and mortgage.

BANKUINTED WAS NO “HOLDER” & HAD NO RIGHTS TO ENFORCE NOTE

52. A “holder” is defined as the person in possession if the instrument is payable to bearer or, in

the case of an instrument payable to an identified person, if the identified person is in

possession. “Mere ownership or possession of a note is insufficient to qualify an individual

as a ‘holder’.” See also Adams v. Madison Realty & Dev. Inc., 853 F.2d 163, 166 (3d Cir.

1988). Attainment of the status of “holder” depends on the negotiation of the instrument to

the transferee. The two elements required for negotiation, both of which were missing here,

were the transfer of possession of the alleged instrument to BankUnited (non- transferee),

and its indorsement by the holder.

BINDING PRECEDENT – BAC FUNDING CONSORTIUM, INC 53. The Second District confronted a similar situation in BAC Funding Consortium, Inc.

ISAOA/ATIMA v. Jean-Jacques, 28 So. 3d 936 (Fla. 2d DCA 2010), when the trial court had

granted the alleged assignee U.S. Bank's motion for summary judgment. That court reversed

because, inter alia, "[t]he incomplete, unsigned, and unauthenticated assignment attached as

an exhibit to U.S. Bank's response to BAC's motion to dismiss did not constitute admissible

evidence establishing U.S. Bank's standing to foreclose the note and mortgage." Id. at 939.

Said Appellate Court in BAC Funding Consortium, properly noted that U.S. Bank was

"required to prove that it validly held the note and mortgage it sought to foreclose." Id.

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RECORD LACK OF ANY ADMISSIBLE EVIDENCE:

“BANKUNITED” WAS NOT ANY OWNER AND HAD NO RIGHT TO SUE PRESCOTT

54. In the instant case, the purported note was, e.g., not properly executed, not assigned, the

falsely pretended assignment not recorded, and the endorsement in blank was unsigned and

unauthenticated, creating genuine issues of material fact as to whether “BankUnited” was

ever the lawful owner and holder of the purported note and/or mortgage. As

in BAC Funding Consortium, here there were no supporting affidavits or deposition

testimony in the record to establish that “BankUnited” validly owned and held the improperly

executed note and mortgage, no evidence of an assignment to “BankUnited”, no proof of

purchase of the debt nor any other evidence of an effective transfer to “BankUnited”.

AUTOMATICALLY DISSOLVED “LIS PENDENS”

55. Here, the improper and unauthorized lis pendens was automatically dissolved upon the

disposition of foreclosure. See Rule 1.420(f), Fla. R. Civ. P. (2010). The validity of a notice

of lis pendens is one year from filing. § 48.23(2), Fla. Stat. (2010).

56. In this disposed action, the purported “plaintiff” sought to re-establish the missing note in

“COUNT I (Reestablishment of Lost Instruments)” of the complaint (see p. 2 of 8). Franklin-

Prescott had filed her answer(s) and motions to dismiss and proven plaintiff’s lack of

standing, which was one of the ultimate affirmative defenses. Here, the record reflected

that plaintiff could not possibly re-establish the note and that no authentic note could possibly

be proven under the Evidence Code.

FRAUD ON THE COURT & RECORD EVDENCE THEREOF

57. Here however, “plaintiff(s)”, BankUnited and BankUnited, FSB, fraudulently asserted:

“that all conditions to the institutions of this action have occurred, been performed or

excused …”

58. Prior to the 08/12/2010 disposition, plaintiff had failed to re-establish and could not have

possibly re-established the destroyed and/or lost note/mortgage. Here, the time and manner

of the loss/destruction had been uinknown. See UCC §§ 3-309; 3-305.

02/15/11 DOCKET SHOWED FRAUD EVIDENCE & DEMAND IN DISPOSED ACTION

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In this disposed action, Jennifer Franklin-Prescott was entitled to the dismissal of

“BankUnited’s” facially frivolous and insufficient complaint and/or action as conclusively

proven by the conclusive evidence on file.

Retired robo Judge Monaco presiding over said illegal and cancelled hearing without the

rule of law in the excused absence of Franklin-Prescott, capriciously overturning Judge

Hayes disposition, and “setting trial” in the well-proven absence of any “BankUnited”

standing was another unlawful “rocket docket” charade from which Franklin-Prescott is

appealing.

WHEREFORE Jennifer Franklin-Prescott respectfully demands

1. 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;

2. 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;

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

4. 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;

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

Franklin-Prescott’s expense;

6. 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;

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

record 08/12/2010 disposition;

8. 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;

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9. 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;

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

action;

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

unlawful in this previously disputed and disposed action;

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

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

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

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

disposed and previously controverted action;

15. 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;

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

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

17. 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;

18. 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

ATTACHMENTS

UNLAWFUL “02/22/2011 ORDER” “S/MONACO”

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of this NOTICE OF APPEAL has been delivered to

“BankUnited”, “Albertelli Law”, P.O. Box 23028, Tampa, FL 33623, USA, the Clerk of Court,

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

on February 25, 2011, Pacific Time.

Respectfully,

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/s/Jennifer Franklin Prescott, fraud victim

CC: Hon. Hugh D. Hayes (Disposition Judge), Albertelli Law, Hon. Daniel R. Monaco, Karen (JA), United States District Court, Clerk of Court, The Florida Bar, New York Times, et al.

robin.sidel@wsj.com, dawn.wotapka@dowjones.com, erose@albertellilaw.com, NetNet@cnbc.com, khundley@sptimes.com, mmiddlebrook@ca.cjis20.org, dmclaughlin9@bloomberg.net, crice@ca.cjis20.org, drovella@bloomberg.net, pforeclosures@ca.cjis20.org, hforeclosures@ca.cjis20.org, CollierJACS@ca.cjis20.org, kbailey@ca.cjis.org, lllayden@NAPLESNEWS.COM, dwilliams@ca.cjis.org, tom.lyons@heraldtribune.com, eecamner@clplaw.net, acamner@clplaw.net, dmonaco@ca.cjis20.org, hhayes@ca.cjis20.org, froomkin@huffingtonpost.com, darlene.muszynski@collierclerk.com, christine@desertedgelegal.com, Collierclerk@collierclerk.com, Sue.Barbiretti@collierclerk.com, Jill.Lennon@collierclerk.com, Dwight.Brock@collierclerk.com, Robert.StCyr@collierclerk.com, afivecoat@albertellilaw.com, simone@albertellilaw.com, nreed@albertellilaw.com, tbaron@albertellilaw.com, jsawyer@albertellilaw.com, jalbertelli@albertellilaw.com,

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UNLAWFUL “02/22/2011 ORDER” “S/MONACO”

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SCHEDULING HEARINGS

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OFFICE POLICIES AND PROCEDURES

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BONITA

POLL COLLIER’S NEW FORECLOSURE HEARING PROCESS FAVORS BANKS, ATTORNEYS SAY

By LAURA LAYDENPublished Sunday, June 20, 2010

NAPLES — Foreclosure attorneys who represent homeowners say recent changes in the way hearingsare scheduled in Collier County have given banks the upper hand.

They say they’ve had trouble getting hearings and that five-minute hearings on foreclosure cases appearto now be reserved for banks’ motions for default and summary judgment.

When a bank gets a summary judgment, it has the right to take a house. At that point, a homeowner isunlikely to get a second chance.

Mark Middlebrook, a senior deputy court administrator in Collier County, said, “We have not changedanything regarding the scheduling of these hearings. That’s absolutely not true.”

Foreclosure hearings are scheduled through an automated calendaring system online called JACS. Usersin Collier County are warned to read the foreclosure rules carefully “due to recent changes.”

Middlebrook said the changes haven’t been made yet.

Under the rules for booking hearings, it says “only hearings for summary judgment and default may bescheduled for the five-minute time slots. In parenthesis, it says: “Do not schedule other hearings in thesetime slots.”

Foreclosure attorneys who represent homeowners say these rules only appear to apply in Collier andthey’ve never been enforced until recently.

“Somebody is speaking without understanding how the scheduling occurs,” Middlebrook said.

He said five-minute hearings still are available outside of an online calendaring system and that changesare planned over the coming months that will significantly increase the amount of hearing time available forforeclosure cases.

With money from a state grant, Collier County plans to increase hearings from one day a week to three byAugust. In January, there will be hearings four days a week, Middlebrook said.

Defense attorneys likely haven’t been getting hearings because there’s such a backlog of cases and timeslots fill up so quickly, not because of any rule changes, Middlebrook said. There are about 9,000unresolved foreclosure cases in the county and that’s why changes are planned in the future, he said.

2/22/2011 POLL Collier’s new foreclosure hearing…

…naplesnews.com/…/colliers-new-fore… 1/4

Wednesday, June 23rd, 2010 | Posted by Amitesh Kumar

Naples Attorneys complain – Collier Countynew foreclosure hearing process only favorsbanksThe Attorneys representing home owners in foreclosure cases at Naples are the worried lot – they sayrecent changes in the way hearings are scheduled in Collier County give banks undue advantage. Theyhave had trouble getting hearings and the five minute hearings by magistrates on foreclosure cases,seem to be reserved now for banks’ motions for default and summary judgment.

What happens when a bank gets a summary judgment? It gets the right to forfeit a house, when thedistressed homeowner is not likely to get a second chance.

The officials of the Court deny these allegations. According to Mark Middlebrook, a senior deputycourt administrator in Collier County, this is absolutely not true and they have not changed anythingregarding the scheduling of these hearings.

In the normal course, Foreclosure hearings are scheduled through an automated calendaring systemonline, known as JACS. In Collier County, users are warned to read the foreclosure rules carefully“due to recent changes”. But Middlebrook refutes that the changes have not been made yet.

The practice at Collier County is foreclosure cases that are contested by homeowners are generallyhandled by magistrates. Foreclosure attorneys representing homeowners must get an order of referralfrom a judge, to have their arguments heard by the concerned magistrate.

Attorneys on behalf of homeowners, handling foreclosure cases say that Banks are not required to dothe same for hearings on their motions for summary judgment, which gives them unfair time advantage.With the result, where foreclosures might have taken a year or two in the past, the Attorneys allegethat they can happen now in less than six months.

What the rules are saying? The rules for booking foreclosure hearings say “only hearings for summaryjudgment and default may be scheduled for the five-minute time slots”. In other words it says “Do notschedule other hearings in these time slots”.

Naples foreclosure Attorneys, representing troubled homeowners, caught in the legal proceedings offoreclosures, say that these rules only appear to apply in Collier County and they have never beenenforced until recently.

So the tussle continues and we will see more of it in the near future.

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2/22/2011 Naples Attorneys complain – Collier Co…

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IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA

BANKUNITED, non-successor in interest to [lawfully seized] BANKUNITED, FSB.,

purported plaintiff(s),

vs. DISPOSED CASE NO.: 09-6016-CA JENNIFER FRANKLIN-PRESCOTT, et al.,

purported defendants. _________________________________________________________________________/

CANCELLATION OF HEARING UNDER COURT’S POLICIES & PROCEDURES

IN DISPOSED CASE (NOTICE)

EMERGENCY WRITTEN DEMAND TO CANCEL HEARING IN DISPOSED CASE AS REQUIRED UNDER THE RULES & PROCEDURES

FROM: Jennifer Franklin-Prescott, “BankUnited” fraud victim CERTIFIED DELIVERIES The Honorable Daniel R. Monaco The Hon. Hugh D. Hayes, “Disposition Judge” Circuit Court Judges, Twentieth Judicial Circuit Judicial Assistants Karen / Jan Collier County Government Complex 3301 Tamiami Trail East Naples, Florida 34112 Phone: 239.774.8118; 239.252.8119; Fax: 239.252.8870; 239.775.5538; 239.774.9654; 239-252-8020 Email: dmonaco@ca.cjis20.org, jmetcalfe@ca.cjis20.org, hhayes@ca.cjis20.org RE: CANCELLATION of unlawful hearing in disposed wrongful foreclosure case 09-6016-CA

“BANKUNITED” v. FRANKLIN-PRESCOTT, JENNIFER DISPOSED CASE NO. 09-6016-CA; DISPOSITION JUDGE HAYES, HUGH D. UNAUTHORIZED “02/22/11 HEARING” [AMENDED TO 02/14/11 & CANCELLED]

08/12/2010 DISPOSITION FOR LACK OF “BANKUNITED’S” STANDING

1. “Disposition Judge” Hayes had disposed of this prima facie frivolous action on 08/12/2010 for record lack of any “BankUnited” standing and interest.

“BANKUNITED” WAS NOT ENTITLED TO ANY HEARING

2

2. “BankUnited” has had no right to sue and/or schedule any hearing. Here, Jennifer Franklin-Prescott did not owe any debt to “plaintiff BankUnited” pursuant to the evidence on file in this disposed wrongful action. The record and evidence never identified “BankUnited”.

AFTER DISPOSITION THE MOTIONS WERE MOOT 3. After the 08/12/2010 DISPOSITION, the “Motion to Dismiss” was MOOT.

“BANKUNITED” KNEW/CONCEALED THAT IT LACKED ANY STANDING 4. “Plaintiff BankUnited” was not any “creditor” in the disposed wrongful action. 5. Here, undersigned “Camner Lipsitz, PA”, and/or founder of bankrupt and defunct

“BankUnited, FSB”, Alfred Camner, Esq., “represented the interest of the plaintiff [BankUnited]”. See facially frivolous and insufficient Complaint. “BankUnited” had fraudulently alleged in the Complaint (¶ 16, Count II) that “plaintiff” [“BankUnited”] owns and holds the note and mortgage.”

6. The purported note and/or mortgage within the four corners of the disposed complaint did not identify “BankUnited” as a “lender”.

“BANKUNITED” AND/OR “ALBERTELLI LAW” DECEIVED THE COURT 7. Here, “BankUnited” and/or “Albertelli Law” perpetrated fraud on the Court, because after

disposition in the record absence of any “BankUnited” note, “BankUnited” falsely pretended entitlement to the “hearing” of a MOOT “Motion to Dismiss / Enjoin”.

“… it is the responsibility of the lawyers to keep the judge's office informed. Our office cannot possibly call all the lawyers on a trial docket to check the status of each case prior to trial. PLEASE let us know when you have settled or otherwise disposed of your case. Please cancel your trials and hearings.”

“BANKUNITED’S” SANCTIONABLE CONDUCT AND FRAUD 8. Here, “BankUnited” failed to comply with the Rules …

“PLEASE READ THE "GENERAL RULES AND REQUIREMENTS" AND ENSURE THAT YOUR ATTORNEY HAS BOTH READ AND UNDERSTANDS THE "GENERAL RULES AND REQUIREMENTS" AND THE "STANDARDS OF PROFESSIONAL COURTESY AND CONDUCT." The Standards of Professional Courtesy and Conduct govern scheduling, hearings, motion practice, submissions to the Court, etc. and may be found at www.ca.cjis20.org/pdf/ao_2_20.pdf FAILURE TO COMPLY WITH THE RULES, REQUIREMENTS, AND STANDARDS MAY RESULT IN IMPOSITION OF SANCTIONS AND THE MATTER NOT BEING HEARD”

See Judicial “Office Policies and Procedures”.

ARBITRARY & CAPRICIOUS SCHEDULING OF UNAUTHORIZED HEARING 9. Arbitrary, ambiguous, and/or unlawful acts undermine the authority of this Court. Here,

violations of this Court’s “OFFICE POLICES AND PROCEDURES” in favor of crooked bank lawyers threatened the integrity of the Court.

COURT ADMINISTRATION MUST CANCEL UNAUTHORIZED 02/22/11 HEARING

VIOLATIONS OF “OFFICE POLICIES & PROCEDURES” IN DISPOSED CASE 10. All motions other than MSJ and DJ will be CANCELLED by Court Administration. In this

disposed action, “Motions to Dismiss / Enjoin” were scheduled without any authority.

Executive · Law · U.S. · Real EstateRelated New s:

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Foreclosure Fortune Buys Bugatti, Yacht,Mansions for Attorney

For Americans, the foreclosure crisis has wiped out fortunes,

bringing destitution and homelessness. For Florida attorney

David J. Stern, it has brought mansions, a Bugatti sports car

and a luxury yacht.

Florida has the third-highest residential foreclosure rate in the

U.S., and Stern, 50, has made a fortune off the bust. His

foreclosure-processing business has generated hundreds of

millions of dollars in revenue preparing documents for the cases

that his law firm brings on behalf of lenders seeking to reclaim

homes from borrowers who can’t pay their mortgages.

Now his business is under scrutiny, as banks suspend

foreclosures and evictions amid allegations that some home

seizures were based on fraudulent documents. Attorneys

general in every U.S. state have joined to probe foreclosure

practices generally. Stern’s foreclosure firm and three others are

under investigation by Florida Attorney General Bill McCollum.

“Some of these law firms we’re dealing with, we have reason to

believe, actually forged documents, committed fraud, did all

kinds of things,” McCollum said in an interview Oct. 15. “We

don’t know where this is headed right now.”

Stern’s attorney, Jeffrey Tew, said Stern has used technology

and a well-organized operation to efficiently process

foreclosures. Stern gets a flat fee of about $1,400 a foreclosure, according to Tew, of Tew

Cardenas LLP in Miami.

‘His Acumen’

“David’s wealth is a reflection of his acumen and the tremendous volume of foreclosures,” Tew

said in an interview yesterday. “He had something to do with the acumen part. He had nothing

to do with the amount of foreclosures we have.”

Stern’s firm handles thousands of cases a month. It conducted a review of its files and found 21

had “issues with the affidavits,” Stern said in a Sept. 8 conference call to discuss second-quarter

results for DJSP Enterprises Inc. DJSP provides non-legal foreclosure services, such as title

searches, for his law firm, Law Offices of David J. Stern PA. Both businesses share the same

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A screengrab taken from Google Earthshows the home of David J. Stern in FortLauderdale, Florida. The larger boat tothe right is his yacht, "Misunderstood".Source: Google Earth/wbipi.com viaBloomberg

Bil l McCollum, Attorney General ofFlorida. Photographer: RicFeld/Bloomberg

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