IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT

IN AND FOR COLLIER COUNTY, FLORIDA

BANKUNITED,
as [purported] 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 CANCEL UNAUTHORIZED hearing IN DISPOSED ACTION; and

MOTION FOR JUDICIAL NOTICE OF § 673.3091, CH. 90, FLA. STAT, AND
State Street Bank v. Lord, 851 So.2d 790 (Fla. 4 Dist. 2003)

NOTICE OF NO hearing notification, service, AND “event” PURSUANT TO E-DOCKET

DISPOSITION OF FRIVOLOUS action IN AUGUST 2010

1. “Disposition Judge Hugh D. Hayes” had disposed the facially non-meritorious action on
08/12/2010. See docket.

SEIZURE OF BANKRUPT BANKUNITED, FSB & LOSS/DESTRUCTION OF note

2. Here, purported “plaintiff(s)” and BankUnited, FSB, knew that said defunct bank had been
lawfully seized (F.D.I.C.) and could not have possibly (re) established any admittedly lost
and/or destroyed note under Florida law. See State Street Bank v. Lord, 851 So.2d 790
(Fla. 4 Dist. 2003); and Federal and F.D.I.C. BankUnited seizure reports on file.
LOSS OF PURPORTED note WAS RESULT OF LAWFUL SEIZURE
3. Here, the “plaintiff(s)” had conceded “unknown” loss and/or destruction of the purported
“note”, which “was the result of a lawful seizure” (F.D.I.C.), Section 673.3091, Florida
Statutes. See also § 90.953, Fla. Stat. Therefore, “plaintiff” knew that it could not have
possibly met the requirements to (re) establish a lost/destroyed/stolen note under the law.
BANKRUPT BANKUNITED WAS NOT ENTITLED TO ANY action & attorney’s fees
4. Here, the “plaintiff(s)” lawfully seized and bankrupt bank failed to, e.g.:
a. present the purported original promissory note; and/or
b. give any satisfactory explanation for its admitted failure to do so.
 Here, no exceptions applied or could have possibly applied, because the unauthorized
plaintiff could not satisfy the requirements of § 673.3091(1)(b). Therefore, BankUnited had
No right to sue; and
No right to collect any attorney’s fees.
SEIZED BANK DID NOT know time & manner of LOSS/DESTRUCTION
5. Because here admittedly, lawfully seized BankUnited did not even know WHO had
lost/destroyed the purported note WHEN and HOW, no satisfactory explanation was ever
given or could have possibly been given. Therefore here, said “lawfully seized” bankrupt
Bank was not entitled to any action, attorney’s fees, and “hearing”.
BANKUNITED BANKRUPTCY & LAWFUL SEIZURE PROHIBIT ANY hearing
6. Here, “plaintiff” had no cause of action. BankUnited Financial had filed for protection under
Chapter 11 of the Federal bankruptcy code, listing total assets of $37.7 million and total
debts of $559.7 million. Here, shareholders and other stakeholders were wiped out.
SEIZED BANKUNITED HAD NO RIGHT TO SUE PRESCOTT
7. Here in the absence of any note and after said bank seizure, BankUnited had no right to sue
Jennifer Franklin Prescott and demand a hearing as to fraudulent attorney’s fees.
BANKUNITED COULD NOT (RE)ESTABLISH ANY LOST/DESTOYED NOTE
8. Here concededly, BankUnited could not (re)establish any lost/destroyed note. See
Complaint and case law on file. Here expressly, BankUnited had stated that it could not
possibly (re) establish any note, because it knew that it could not determine:
a. WHEN the purported note was lost and/or destroyed ?
b. WHO had lost/destroyed the purported note ?
Furthermore, if the holder of an instrument destroys it, he thereby forgives and discharges
any debt and may not maintain an action. See District of Columbia v. Cornell, 130 US 655,
32 L ed 1041, 9 S Ct 694.
FRIVOLOUS ACTION IN THE ADMITTED ABSENCE OF ANY NOTE
9. Therefore here under Florida law, “plaintiff(s)’” action was facially frivolous. Because
seized BankUnited knew that it could not possibly (re) establish the lost/destroyed note/
instrument, the bankrupt bank:
a. Had no right to sue J. Franklin-Prescott; no standing; and no cause of action;
b. Could not possibly satisfy the condition precedent to sue Prescott;
c. Had no right to said hearing and attorney’s fees. See case law on file.
BANKUNITED FAILED TO PREVAIL IN DISPOSED & FRIVOLOUS action
10. In the admitted absence of any note, BankUnited was not entitled to any attorney’s fees and
hearing in this disposed fraudulent action.
BANKUNITED WAS NOT ENTITLED TO ANY ATTORNEY’S FEES
11. Here, the electronic docket showed, e.g.:
a. Fraudulently claimed “attorney’s fees”;
b. Serena Kay Paskewicz’, Esq., lack of any authority to represent seized BankUnited, FSB.
NO “EVENT”/HEARING PURSUANT TO CLERK’S E-DOCKET
12. Here on 12/02/2010, Prescott had reviewed the Clerk’s electronic docket while abroad and
on her way to Australasia. Here, the Clerk’s electronic docket did not show any “event”.

See attached docket print out.

2
“Erin M. Rose, Esq.” IS NOT ANY “co-counsel” – PASKEWICZ, ESQ. UNAUTHORIZED
13. Here after the lawful seizure of bankrupt BankUnited, FSB, “Erin M. Rose, Esq.” is not any
“co-counsel”. Absent any possibility to establish the lost note, S. Kay Paskewicz, Esq. and
Camner Lipsitz (BankUnited founder Alfred Camner) were fired and no longer authorized to
appear on behalf of BankUnited and not entitled to any attorney’s fees.

NO record address
14. Here, the electronic docket does not show any “address”, and Jennifer Franklin-Prescott was
not noticed and/or served any
a. “notice of hearing”;
b. “affidavit”; and “notice of filing”. No address to send anything to existed. See attachment.

ANY service and hearing WAS LEGALLY IMPOSSIBLE

15. In the record absence of any address and possibility to (re) establish any note, Prescott
could not have possibly been “served” and obligated to pay any “attorney’s fees”.
PRESCOTT’S ABSENCE & UNAVAILABILITY
16. J. Franklin Prescott is abroad, on her way to Australasia, and could not possibly appear.
WHEREFORE, Jennifer Franklin-Prescott respectfully demands
1. An Order taking judicial notice of said
a. 08/12/2010 disposition by Disposition Judge Hugh D. Hayes;
b. Section 673.3091, Fla. Stat.;
c. Section 90.953, Fla. Stat.;
d. Said case law and State Street Bank v. Lord, 851 So.2d 790 (Fla. 4 Dist. 2003).
2. An Order canceling said unauthorized hearing in this frivolous, fraudulent, and hence
disposed action;
3. An Order restraining “plaintiff(s)” from extorting “attorney’s fees” in the absence of any
cause of action and interest and because of the absolute impossibility to establish any note;
4. An Order declaring Jennifer Franklin-Prescott’s record title to the subject property free and
clear, because of said conceded and absolute impossibility to establish any instrument/note.
/s/Jennifer Franklin-Prescott, foreclosure fraud victim

ATTACHMENTS (12/02/2010)

By Certified Facsimile and Delivery to Clerk of Court, Dwight E. Brock & Disposition Judge.

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Style: BANKUNITED vs FRANKLIN-PR ESC O TT, JENNIFER Work A pplication
Uniform Case Number: 112009C A0060160001XX Filed: 07/09/2009
Clerks Case Number: 0906016C A
Court Type: C IR C UIT CIVIL Disposition Judge: HAYES, HUGH D
Case Type: MO R TGAGE FO R ECLO SUR ES Disposed: 08/12/2010
Judge: HAYES, HUGH D Reopen Reason:
Case Status: DISPO SED Reopened:
Next Court Date: Reopen Close:
Last Docket Date: 11/12/2010 A ppealed:

Parties Dockets Events Financials

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MO TIO N HEAR ING PER EZ-BENITO A, MAGISTR ATE 09/02/2010 11:30

W e dne sday night is re gular m a inte nance tim e on our se rve rs; as a re sult brie f o utage s m ay o ccur.
W e apologize in advance for any inconve nie nce.

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PRIOR HISTORY:

[*1] Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County;
Edward Fine and John Wessel, Judges; L.T. Case No.CL 99-006652 AW.

DISPOSITION:

Affirmed.

COUNSEL: Forrest G. McSurdy of Law Offices of David J. Stern, P.A., Plantation, for Your State's Research
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OPINION

STONE, J.

The issue on appeal is whether a mortgagee by assignment, State Street Bank, may pursue a
mortgage foreclosure in the absence of proof that either the mortgagee, or its assignor, ever
had possession of the missing promissory note. A summary judgment was entered in favor of
the mortgagor, Hartley Lord. We affirm.

State Street sought to establish the promissory note and mortgage under section 71.011,

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COMMERCIAL UNIFORM COMMERCIAL CODE: NEGOTIABLE Chapter
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673.3091 Enforcement of lost, destroyed, or stolen instrument.—
(1) A person not in possession of an instrument is entitled to enforce the instrument if:
Session: 2011 (a) The person seeking to enforce the instrument was entitled to enforce the instrument when
loss of possession occurred, or has directly or indirectly acquired ownership of the instrument from a
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person who was entitled to enforce the instrument when loss of possession occurred;
(b) The loss of possession was not the result of a transfer by the person or a lawful seizure; and
(c) The person cannot reasonably obtain possession of the instrument because the instrument was
Session: 2011 destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown
person or a person that cannot be found or is not amenable to service of process.
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(2) A person seeking enforcement of an instrument under subsection (1) must prove the terms of
the instrument and the person’s right to enforce the instrument. If that proof is made, s. 673.3081
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applies to the case as if the person seeking enforcement had produced the instrument. The court may
not enter judgment in favor of the person seeking enforcement unless it finds that the person
required to pay the instrument is adequately protected against loss that might occur by reason of a
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CERTIFIED INTERNATIONAL DELIVERY
Hon. Hugh D. Hayes
“Disposition Judge”; Disposed Case # 09-6016-CA
Style: [SEIZED] BANKUNITED vs. JENNIFER FRANKLIN-PRESCOTT
T: 239.252.8116
Fax: 239.774.9654 [www.MYFAX.COM]

E-Mail: hhayes@ca.cjis20.org

ID Number: 160093
Collier County Government Complex
3301 Tamiami Trail East
Naples, Florida 34112-4961
United States
Phone: 239.252.8116
Fax: 239.774.9654
E-Mail: hhayes@ca.cjis20.org

Certificate of International Delivery: www.scribd.com

RE: MOTIONS, NOTICE, Disposed Case # 09-6016-CA

BY RUSH MESSENGER SERVICE

F: 001-239-498-6727; D., AMEXPRESS