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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).
_____________________________________________________________________________/

EMERGENCY MOTION TO RELIEVE DEFENDANTS/COUNTERCLAIMANTS


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

03/02/2011 COUNTERCLAIM
1. 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


2. Defendants had raised well-evidenced fraud and fraud on the court issues.
08/12/2010 DISPOSITION RECORD & LACK OF “PLAINTIFF’S” STANDING
3. 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
4. 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

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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
5. Here, Defendant Clerk, Darlene Muszynski, and Miriam Jugger knew that
a. The wrongful action had been appropriately disposed and/or terminated;
b. The alleged note/mortgage were lost and/or destroyed;
c. The purported lost instruments were not and could not be reestablished;
d. “BankUnited” was not entitled to enforce the alleged missing instruments;
6. 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


7. 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


8. 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;

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ROGUE “ROBO” JUDGE MONACO’S “ROCKET DOCKET” TACTICS

9. 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

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

Records.

11. 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

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

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

13. 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,

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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


14. 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

15. 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

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

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

17. 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
it is no longer equitable that the judgment or decree should have prospective
application.

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“SUGGESTION OF BANKRUPTCY” ON THE RECORD & CLERK’S ERROR
18. 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.

19. 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

20. 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,
… Thank you for your call and your question. I hope that my reply will be clear and
helpful for you and your staff.

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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
21. 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”


22. 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.

THE CLERK’S ACTIONS & BACKDATING HARMED THE COUNTERCLAIMANTS

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23. 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.

24. 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

25. 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.

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

was to be reported as disposed.

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

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

noticed changed address.

WITHOUT AUTHORITY, ROBO JUDGE MONACO SET BENCH TRIAL

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29. 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

30. 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.

31. 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.

32. 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.

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

34. 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).

35. 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.

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

notice of (non)-jury trial.

KNOWN LACK OF JURISDICTION

37. 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”.

38. 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


39. 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

40. 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.

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

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

42. 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

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

counterclaimants.

43. 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

44. “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.

45. 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.

46. 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

47. 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

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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

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

49. “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).

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

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

51. 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.”
52. Here, there was no evidence as to WHO possessed the note WHEN it was lost/destroyed.
53. 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”.
54. [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.]
55. The alleged mortgage copy did not contain a copy of the alleged executed note.
56. “BankUnited” fraudulently prayed for reestablishment, no order reestablishing the lost
instruments was entered, and the wrongful action was disposed on 08/12/2010.

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57. As a matter of law, reestablishment of the note was impossible under Ch. 673, Florida
Statutes, and the Uniform Commercial Code.
58. “BankUnited” is not in possession of the purported note and mortgage and not entitled to
enforce them.
59. “BankUnited” did not know WHO destroyed and/or lost the instruments WHEN and
HOW.
60. “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.
61. “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).
62. On 05/21/2009, “BankUnited, FSB” was seized.
63. Here, there had been seizure and transfer which prohibited re-establishment.
64. “BankUnited” never produced nor re-established any authentic note and/or mortgage as
proven by the evidence before this Court.
65. 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.
66. This Court knew that “BankUnited’s” facially fraudulent affidavits were sham.
67. 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.
68. “BankUnited” had to, but failed, to prove the terms of the alleged instruments and the
person’s right to enforce the alleged instruments.
69. Here, “BankUnited” failed to prove any terms, and the terms of the alleged obligation and/or
instrument were vague and ambiguous.
70. Here, Walter Prescott neither executed the purported note nor “loan modification agreement”.
FRAUDULENT, NULL, AND VOID “AFFIDAVITS”
71. 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.

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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”.
72. 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.
73. Defendant counterclaimants did not default under the destroyed and/or lost note and
mortgage, and no payment was due to “BankUnited”.
74. “BankUnited” failed to assert any chain of title and/or assignment of the destroyed/lost note
and mortgage.
ALLEGED DESTROYED / LOST INSTRUMENTS / “LOAN MODIFICATION”
75. 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.
76. 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

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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

77. 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.

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

exhibits, and issues complained of.

79. 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.

JUDICIAL ABUSE OF DISCRETION AND UNCONSTITUTIONAL ORDER

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

the governing Constitutions and Statutes.

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

82. 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

83. 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.

84. 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.

85. 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.

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

due process.

87. 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).

88. 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.

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

notice of (non)-jury trial.

“ROCKET DOCKET” – FRAUD & SPEED INSTEAD OF JUSTICE

90. 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).

91. 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.

92. 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.

93. 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.

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

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

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

Deeds of Trust § 287 (2002).

95. 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

16
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)

96. 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).

97. 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.

98. “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).

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

enforced the lost and/or destroyed instruments.

100. 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.

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101. 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.

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

COUNT I: FRAUD COUNTERCLAIM AGAINST CLERK OF COURT

103. 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

104. 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.

105. 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.

106. 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

FRAUD ON THE COURT ON THE RECORD

107. 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.

108. 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.

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

110. 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).

111. 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

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

“BankUnited”.

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

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

115. 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

116. 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.

117. 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.

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

Law Firm were fired.

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

119. 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.

120. 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.

121. 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).

122. 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).

123. 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

124. "'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)

[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).

20
125. 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

126. 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.

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

128. 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."

129. 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.

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

realm of the civil jury trial.

131. 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.

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

action.

133. 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.

134. 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

135. 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)

136. 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:

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…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.

137. 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

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

actions of filing untrue affidavits and failure to account.

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

resulted in proximate damages.

FACIALLY FRAUDULENT ACCOUNTING & NULL & VOID AGREEMENT

140. 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).

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

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

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“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”.

142. 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

143. 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.

DEMAND FOR JURY TRIAL & MEMO BY DEFENDANT COUNTERCLAIMANTS

DEFENDANTS’ COUNTERCLAIM & DEMAND FOR JURY TRIAL

144. 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

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Mortgage Co., 160 Fla. 72, 33 So.2d 586 (1948); Lovett v. Lovett, 93 Fla. 611, 112 So. 768

(1927).

145. 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.

146. 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).

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

defenses.

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

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

149. 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

150. 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.

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151. 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.

152. 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).

153. “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.

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

evidence and without a fact-finding jury.

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

misrepresentation. Any other way would be error.

156. 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”

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

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

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158. 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

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

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

160. 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

161. Defendant counterclaimants had demanded trial by jury.

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

(reestablishment of lost instruments).

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

164. 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.

165. 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.

27
166. Florida courts have consistently highlighted the importance of the right to a trial by

jury.

167. "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”

168. 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.

169. 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).

170. 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.

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ANSWER TO COMPLAINT BY BANKRUPT BANK’S FOUNDER ALFRED CAMNER

171. Hereby, “defendants” “respond” to the unlawful and unauthorized “02/22/2011

hearing” before retired “rocket docket” Judge Daniel R. Monaco who is in the pocket of

the bank(s).

172. On 08/12/2010, and after defendants’ Motions to Dismiss had been filed, this wrongful

action to foreclose a mortgage on real property had been disposed.

173. This Court knew that “BankUnited” did not establish its entitlement to foreclose the

mortgage as a matter of law.

174. After said 2010 disposition, the action was never reopened.

175. The exhibits to “BankUnited's” complaint conflicted with its [false] allegations

concerning standing, and said exhibits did not show that “BankUnited” has standing to

foreclose the alleged lost/destroyed mortgage/note or was entitled to the illegal 02/22/2011

hearing and any “trial”.

176. Here, the plain meaning of the exhibits controlled, evidenced lack of standing, and was

the basis for a motion to dismiss. 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).

177. The “trial” wrongfully “set” by temporary Judge Monaco and “BankUnited’s” motion

for summary judgment and were to be denied based on principles of collateral estoppel and

res judicata. Here on 08/12/2010, the Court had disposed of “BankUnited’s” wrongful

foreclosure action.

178. On 02/22/2011, retired “rocket docket” Judge Monaco had no authority to deny

defendants’ Motion to Dismiss.

29
DENIALS AND AFFIRMATIVE DEFENSES

179. Defendant counterclaimants JENNIFER FRANKLIN-PRESCOTT, WALTER

PRESCOTT, JOHN DOE, and MARY DOE, file their “response(s)”, affirmative defenses

and claim for attorney’s fees and in support thereof state:

180. Paragraph 1 of purported “plaintiff’s” complaint is denied.

181. Paragraph 2 is denied. Here under paragraph 6, “said [alleged] 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.” Furthermore, said alleged

note and/or mortgage could not have possibly been re-established pursuant to Ch. 673,

Florida Statutes (2010), or any other law, and therefore, “BankUnited” had no standing and

right to “foreclose“ and sue the defendants.

182. Here, no “default” has and/or could have possibly occurred, and no contractual obligation

existed.

183. Paragraph 3 is denied. Here, “BankUnited” was never entitled to any action and/or

reestablishment of any note based on the admissible evidence on file.

184. Paragraph 4 is denied.

185. Paragraph 5 is denied.

186. Paragraph 6 is admitted and “said [purported] 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.” Furthermore, said alleged note and/or

mortgage could not have possibly been re-established pursuant to Ch. 673, Florida Statutes

(2010), or any other law, and therefore, “BankUnited” had no standing and right to

“foreclose“ and sue the defendants.

30
187. Paragraph 7 is denied.

188. Paragraph 8 is denied.

189. Paragraph 9 is denied. “BankUnited” is not any “successor in interest to” “BankUnited,

FSB”.

190. Paragraph 10 is denied. Here, “BankUnited” could not enforce and/or reestablish any note,

and pursuant to paragraph 6, the alleged “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.”

191. Paragraph 11 is denied.

192. Paragraph 12 is denied.

193. Paragraph 13 is denied. Furthermore, said paragraph is grammatically in error.

194. Here, paragraph 14 was vague and ambiguous as there were two “paragraph 14”.

195. Paragraph 14 is denied. None of the defendants owe(s) any fees to “BankUnited” in the

record absence of any note in evidence. Here, “BankUnited” owes fees to the defendants.

Here, there had been a disposed wrongful foreclosure action, which was facially frivolous

and insufficient.

196. Paragraph 15 is denied. Here, pursuant to paragraph 6 (Count I), the alleged “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.”

197. Paragraph 16 is denied. Here under Paragraph 6, “said [purported] 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.” Furthermore, said alleged

note and/or mortgage could not have possibly been re-established pursuant to Ch. 673,

31
Florida Statutes (2010), or any other law, and therefore, “BankUnited” had no standing and

right to “foreclose“ and sue the defendants.

DISSOLVED LIS PENDENS DUE UNENFORCEABILITY OF LOST INSTRUMENTS

198. Jennifer Franklin-Prescott owns the property at 25 6th Street North, Naples, Florida 34102.

199. Under Rule 1.420(f), Fla. R. Civ. P. (2010), the improper and unauthorized lis pendens

was automatically dissolved upon the disposition of foreclosure on 08/12/2010.

200. Pursuant to § 48.23(2), Fla. Stat. (2010), the notice of lis pendens became invalid on

07/10/2010.

201. Here, the instruments were missing and the lis pendens was unjustified under Florida

Communities Hutchinson Island v. Arabia, 452 So.2d 1131, 1132 (Fla. 4th DCA 1984).

202. Here, the null and void lis pendens placed a non-existent cloud on the title. See Andre

Pirio Assocs. v. Parkmount Properties, Inc., N.V., 453 So.2d 1184, 1186 (Fla. 2d DCA

1984).

203. In this disposed action, the purported “plaintiff” frivolously sought to re-establish the

missing note in “COUNT I (Reestablishment of Lost Instruments)” of the complaint, which

was impossible as a matter of law.

204. 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.

205. The record evidence established that plaintiff could not possibly re-establish the note and

that no authentic instruments could possibly be proven under the Evidence Code.

206. Paragraphs 17, 18, and 19 are denied.

207. Purported plaintiff “BankUnited” is not any note owner/holder, had no standing, and could

not possibly declared any amounts due under a lost, destroyed, and/or non-reestablished note.

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208. Here, the record did not conclusively establish that “BankUnited” is a holder in due

course of any negotiable instrument. “BankUnited” did not raise any law and/or doctrine

under which “BankUnited” did and/or could have possibly become a note owner and/or

holder in due course.

209. Paragraph 20 is denied.

210. Paragraph 21 is denied.

211. Paragraph 22 is denied as the sentence is incomplete.

212. Paragraph 23 is denied in the record absence of any enforceable instruments.

213. The purported lost mortgage lien was unenforceable due to the deprivation of the

original instrument(s). Here, “BankUnited” was unable to enforce any mortgage lien,

because it never properly obtained the lost/destroyed instruments.

214. “BankUnited” filed the wrongful suit after the May 2009 seizure of defunct

“BankUnited, FSB”.

215. After bankrupt “BankUnited, FSB” was seized, its troubled founder, Alfred Camner,

Esq., complained of an UNKNOWN loss/destruction of the purported instruments.

216. As founder of defunct “BankUnited, FSB”, Alfred Camner knew and concealed that the

alleged lost/destroyed instruments could not have possibly been transferred to

“BankUnited”.

217. Here, time and manner of the loss were UNKNOWN pursuant to the 07/09/2009

complaint.

218. Here, “BankUnited” was not any assignee and did not hold title in the purported

lost/destroyed instruments.

219. Here, the record had conclusively evidenced the lack of any chain of title.

33
220. “BankUnited” was not any real party in interest, did not hold legal title to the

destroyed/missing mortgage and note, and was not the proper party to file suit to foreclose

the alleged mortgage.

221. Here, there was no effective assignment from “BankUnited, FSB” to “BankUnited” or any

legal justification why and how “BankUnited” could possibly be entitled to enforce the lost

instruments.

222. The destroyed/lost instruments were unenforceable as a matter of law. See, e.g., section

673.3091, Florida Statutes.

223. Here, retired Monaco and the Court knew that “BankUnited” failed to meet, and could not

possibly have met, the Uniform Commercial Code provisions pertaining to lost and/or

destroyed notes and enforceability of lost/destroyed notes. Therefore, no foreclosure could

possibly occur. See Article 3, U.C.C.; Ch. 673, Florida Statutes (2010).

224. The endorsement in blank was unsigned and unauthenticated, creating a genuine issue

of material fact as to whether “BankUnited” was the lawful owner and holder of the

note and/or mortgage. As in BAC Funding Consortium, Inc. ISAOA/ATIMA v. Jean-

Jacques, 28 So. 3d 936 (Fla. 2d DCA 2010), there were no supporting affidavits or

deposition testimony in the record to establish that “BankUnited” validly owns and holds the

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

of purchase of the alleged debt nor any other evidence of an effective transfer. Therefore, the

defendants were entitled to dismissal. Here, no exceptions were invoked.

225. This Court knew of binding precedent and that the Second District had 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.

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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.]

226. This Court knew that “BankUnited” cannot foreclose on the note and mortgage, because

“plaintiff” is not in possession of the original note and did not reestablish the alleged

lost/destroyed instruments. See § 673.3091(1), Fla. Stat.; Dasma Invest., LLC v. Realty

Associates Fund III, L.P. 459 F. Supp. 2d 1294, 1302 (S.D. Fla. 2006).

227. Here, this Court knew that “BankUnited” had no standing and/or right to sue and/or

foreclose.

228. This Court knew that defendants had demanded indemnification of defendants for

[wrongful] prosecution on the purported destroyed and/or lost instruments.

229. So far, this Court did not require a bond pursuant to Lovingood v. Butler Construction

Co., 131 So. 126, 135 (Fla. 1930).

230. However in this disposed action, the bond was simply mandatory pursuant to Porter

Homes, Inc. v. Soda, 540 So.2d 195, 196 (Fla. 2d DCA 1989)(where a lis pendens is not

founded upon a lawsuit involving a recorded instrument, section 48.23(3) "requires the

posting of a bond."). See Machado v. Foreign Trade, Inc., 537 So.2d 607, 607 n.1 (Fla. 3d

DCA 1988); Munilla v. Espinosa, 533 So.2d 895 (Fla. 3d DCA 1988).

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231. The notorious 20th Judicial Circuit has heard up to 1,000 foreclosure cases per day.
Assuming an 8-hour day, this equated to less than 30 seconds per case, which established
organized bias against defendants and homeowners.
232. The law prohibits “rocket dockets” for speed and errors at the expense of justice in favor
of banks and lenders.

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

after the 08/12/2010 disposition:

234. Section 831.01, Fla. Stat., provides:

“Whoever falsely makes, alters, forges or counterfeits a public record, or a


certificate, return or attestation of any clerk or register of a court, public register,

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notary public, town clerk or any public officer, in relation to a matter wherein such
certificate, return or attestation may be received as legal proof; or a charter, deed,
will, testament, bond, or writing obligatory, letter of attorney, policy of insurance, bill
of lading, bill of exchange or promissory note, or an order, acquittance, or discharge
for money or other property, or an acceptance of a bill of exchange or promissory
note for the payment of money, or any receipt for money, goods or other property, or
any passage ticket, pass or other evidence of transportation issued by a common
carrier, with intent to injure or defraud any person, shall be guilty of a felony of the
third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.”

NOTICE OF DEFENDANTS’ CHANGE OF ADDRESS

235. Hereby, defendants file their Notice of change of address:

Jennifer Franklin-Prescott, et al., defendants

Care/of Papanui PostShop

7 Main North Road, Papanui, Christchurch, 8053

New Zealand

NATIONAL EMERGENCY AND PRESCOTT’S NOTICE OF UNAVAILABILITY

236. 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.

AFFIRMATIVE DEFENSES PRIOR TO DISPOSITION

FIRST AFFIRMATIVE DEFENSE: FAILURE TO PRODUCE ORIGINAL NOTE

237. A person seeking enforcement of a lost, destroyed or stolen instrument must first prove

entitlement to enforce the instrument WHEN the loss of possession occurred, or has directly

or indirectly acquired ownership of the instrument from a person who was entitled to enforce

the instrument WHEN loss of possession occurred. Further, he/she must prove the loss of

possession was not the result of a transfer by the person or a lawful seizure; and the person

37
cannot reasonably obtain possession of the instrument because the instrument was 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. 673.3091

Fla. Stat. (2010).

238. Here, “defendants” had denied that “BankUnited” has ever had possession of the alleged

note and/or mortgage and/or that “plaintiff” was ever entitled to enforce the instruments the

loss and destruction of which were UNKNOWN. “Plaintiff” could not establish foundation

to show possession of the note WHEN the loss of possession occurred. Plaintiff could not

establish that plaintiff lost possession of the note after it was transferred to the “plaintiff” and

that it could not reasonably obtain possession thereof. Absent such proof in this disposed

action, plaintiff had been required by Florida law to provide the original note and mortgage.

Having failed to provide the original note and mortgage at the time of filing, “plaintiff”

could not sue and/or maintain this disposed action.

239. Here, the “plaintiff” could not prove the terms of the instrument and the plaintiff bank’s

right to enforce the alleged 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 claim by another person to

enforce the instrument. Fla. Stat. 673.3091(2). In this disposed action, defendants

specifically have been denying all necessary terms of the note are provided in the attached

mortgage/note. Clearly, since the note has been missing, necessary endorsements on the note

are missing; as such, essential terms and conditions precedent were not provided by the

plaintiff who failed to state a cause of action.

UNCLEAN HANDS DEFENSE

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240. Prescott had asserted and proven (another affirmative defense) that the plaintiff(s) had

failed to follow Florida law of negotiable instruments and including, e.g., obtaining

necessary signatures, acknowledgments, recordations, assignments, and/or endorsements on

the purported non-authentic promissory note and mortgage deceptively submitted to this

Court as alleged debt evidence. As such, the plaintiff came to this court with unclean hands.

RECUSAL/DISQUALIFICATION OF THE “TRIAL” JUDGE

241. Defendants’ motion to recuse retired Judge D. R. Monaco was legally sufficient,

because the facts alleged demonstrate that the moving party has a well-grounded fear that

defendants will not receive a fair trial at the hands of said judge. Cave v. State, 660 So. 2d

705, 708 (Fla. 1995); Fla. R. Jud. Admin. 2.160.

PRESCOTT FEARS FURTHER FRAUD, DEPRIVATIONS & SHAM PROCEEDINGS

242. 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.

243. 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.

WHEREFORE counterclaimants respectfully demand

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

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

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

victims;

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

counterclaimants;

5. 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;

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

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

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

8. 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;

9. 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;

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

11. 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;

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

Franklin-Prescott’s expense;

13. 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;

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

record 08/12/2010 disposition;

15. 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;

16. 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;

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

action;

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

unlawful in this previously disputed and disposed action;

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

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

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

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

disposed and previously controverted action;

22. 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;

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

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

24. 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;

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25. 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,

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

on March 03, 2011.

Respectfully,

/s/Jennifer Franklin-Prescott, fraud victim


/s/Walter Prescott, foreclosure 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, colin_barr@fortune.com,
juggerm@flcourts.org,

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